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  • FEC Record: Litigation

FEC v. Wisconsin Right to Life Inc.

August 1, 2007

On June 25, 2007, the Supreme Court upheld a district court ruling that the electioneering communication (EC) financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional "as applied" to ads that Wisconsin Right to Life, Inc., a 501(c)(4) nonprofit corporation, intended to run before the 2004 elections. The Supreme Court concluded that the EC financing restrictions are unconstitutional as applied to these ads because:

  • The ads are not express advocacy or its functional equivalent; and
  • The Court found no sufficiently compelling governmental interest to justify burdening WRTL's speech.


Under the Federal Election Campaign Act (the Act) and Commission regulations, an EC is defined, with some exceptions, as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate and is publicly distributed within 60 days before the general election or 30 days before a primary election or a nominating convention for the office sought by the candidate. 2 U.S.C. §434(f)(3) and 11 CFR 100.29. Corporations may not make ECs using their general treasury funds.(1) 2 U.S.C. 441b(a)-(b) and 11 CFR 114.2 and 114.14.

WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the prohibition on the use of corporate funds to pay for ECs unconstitutional as applied to what it calls "grassroots lobbying" communications planned for the period before the 2004 elections. After the district court both denied WRTL's motion for a preliminary injunction and dismissed WRTL's complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL's "as applied" challenge.

District Court decision

The three communications in question were two radio advertisements and one television advertisement WRTL had planned to run before the 2004 primary and general elections concerning anticipated filibusters of President Bush's federal judicial nominees. The ads encouraged Wisconsin listeners and viewers to contact their Senators (Senators Feingold and Kohl) to urge them to oppose the filibusters. Senator Feingold was up for reelection in 2004, but Senator Kohl was not.

A three-judge panel of the District Court considered the "as applied" challenge to the EC provisions based on two main arguments: whether the ads contained express advocacy for or against a federal candidate or the "functional equivalent" of express advocacy; and, if they did not, whether the government had demonstrated a compelling interest in regulating these ads.

Express advocacy. To determine whether WRTL's 2004 anti-filibuster ads contained express advocacy, or its functional equivalent, the court considered only the text and images of the ads and declined to consider contextual factors bearing on the ads' purpose or likely effect. The court's evaluation was based upon whether the ads:

  1. Described an issue that was or "likely" soon would be a "subject of legislative scrutiny";
  2. Referred to the prior voting record or current position of the named candidate on the described issue;
  3. Exhorted the audience to do anything other than contact the candidate about the described issue;
  4. Promoted, attacked, supported or opposed the named candidate; and
  5. Referred to an upcoming election, candidacy or party of the candidate.

Considering those five factors, the court found that the anti-filibuster ads did not contain express advocacy or its functional equivalent and thus were not "intended to influence the voters' decisions." The court noted that the ads did not mention an election, a candidacy or the individual's "fitness for office." While the ads discussed the filibuster issue, the court stated that they did not reference the Senators' voting records, current or past, on this issue, and that they did not promote, attack, support or oppose either Senator. Additionally, the court noted the ads asked the audience to contact both Senators, not just the Senator up for reelection.

Government interest in regulating issue ads. In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court found that the compelling government interest in regulating the communications covered by the definition of electioneering communication was sufficient to uphold the statute on its face. However, the district court stated that by permitting "as applied" challenges to the provisions of the BCRA, the Supreme Court left open the question as to whether there is a compelling government interest in regulating "genuine issue ads" covered by the statute. In light of its finding that WRTL's anti-filibuster ads did not contain express advocacy, or its functional equivalent, the three-judge panel evaluated the government interest in regulating these ads. The court found no compelling government interest and rejected the argument that the need for a "bright line" test is a basis for regulating "genuine issue ads," noting that the "virtues of the bright line test cannot alone justify regulating constitutionally protected speech."

On December 29, 2006, the Commission filed a Notice of Appeal to the Supreme Court.

Supreme Court Decision

On June 25, 2007, the Supreme Court issued a decision upholding the District Court ruling that the EC financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional as applied to WRTL's ads. The Supreme Court also rejected the FEC's argument that the case was moot.

Mootness. The FEC argued that the cases involving WRTL's ads were moot because the 2004 election has passed and WRTL has no continuing interest in running its ads. The Court rejected this argument, noting that the case fits within the established exception to mootness for actions "capable of repetition, yet evading review." The Court noted that WRTL could not have obtained complete judicial review of its claims in time to air its ads in the period prior to the 2004 election and that WRTL had credibly claimed that it intended to run materially similar ads during future EC periods.

Electioneering communication financing restrictions unconstitutional "as applied" to WRTL ads. The Court rejected the FEC's argument that WRTL has the burden of demonstrating that the EC provisions are unconstitutional as applied to its ads. The Court reasoned that the EC provisions burden political speech and, as such, are subject to strict scrutiny. Therefore, the government must prove that applying the EC provisions to WRTL's ads "furthers a compelling governmental interest and is narrowly tailored to achieve that interest." The Court stated that while in McConnell v. FEC the EC provisions had satisfied the standard of strict scrutiny for the regulation of express advocacy and its functional equivalent, the Court in McConnell did not formulate a test for future as-applied challenges. The Court rejected the use of an intent-and-effect test for determining when an ad is the functional equivalent of express advocacy and instead explained that the inquiry should focus on the substance of the communication.

The Court found that WRTL's ads may reasonably be interpreted as something other than an appeal to vote for or against a specific federal candidate and, as such, did not constitute the functional equivalent of express advocacy. The Court noted that the content of the ads was consistent with that of a "genuine issue ad" focused on a specific legislative issue and urging the public to take action regarding that issue. Also, the Court noted, the ads' content lacked "indicia of express advocacy" because they made no mention of "an election, candidacy, political party, or challenger . . . and [took no] position on a candidate's character, qualifications, or fitness for office."

In the decision, the Court cited its long recognition of the governmental interest in preventing corruption and the appearance of corruption in elections. The Court acknowledged that McConnell had upheld the EC financing restrictions on their face, but the Court determined that that anti-corruption interest did not justify application of the restrictions to the advertisements proposed by WRTL.

The Court concluded that because WRTL's ads are not express advocacy or its functional equivalent, and because the Court found no compelling governmental interest to justify the burden on WRTL's speech, the EC financing restrictions are unconstitutional as applied to these ads. The Court also noted that this case does not present the occasion to revisit McConnell's facial upholding of the EC financing restrictions.

1) Commission regulations provide an exception allowing "qualified nonprofit corporations" to pay for electioneering communications. 11 CFR 114.2(b)(2). However, WRTL alleges that it does not meet the definition of a qualified nonprofit corporation. 11 CFR 114.10.

  • Author 
    • Gary Mullen