Wisconsin Right to Life v. FEC
On January 23, 2006, the U.S. Supreme Court issued a per curiam decision vacating the U.S. District Court for the District of Columbia’s judgment and held that the McConnell v. FEC decision did not preclude “as applied” challenges to the electioneering communication (EC) restrictions in the Bipartisan Campaign Reform Act (BCRA). The Supreme Court asked the District Court to reconsider the merits of Wisconsin Right to Life’s (WRTL) challenge “as applied” to certain activities that WRTL describes as grassroots lobbying.
Background
WRTL filed suit in the U.S. District Court for the District of Columbia on July 26, 2004, asking the court to find the prohibition on the use of corporate funds to pay for ECs unconstitutional as applied to what it described as grassroots lobbying activities. On August 17, 2004, the District Court denied WRTL’s motion for a preliminary injunction. WRTL appealed the decision, but on May 9, 2005 the District Court dismissed the case, with prejudice, for the same reasons given in the court’s August 2004 decision. WRTL appealed to the Supreme Court and on September 17, 2005, the Supreme Court agreed to hear the case.
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 in the relevant jurisdiction 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.
The plaintiff’s activities involved paying for broadcast advertisements in 2004 that asked Wisconsin listeners to contact U.S. Senators Kohl and Feingold and to ask them to vote against anticipated filibusters of federal judicial nominees. Senator Feingold was up for re-election in 2004 and some of the intended ads would have run during the EC periods for Wisconsin’s primary and general elections.
According to WRTL, because the ads expressed an opinion on pending Senate legislative activity, urged listeners to contact their Senators and did not refer to any political party or support or attack any candidate, they constituted bona fide grassroots lobbying. WRTL argued that the ads were not the “functional equivalent of express advocacy;” thus, there was no constitutional justification for the prohibition on corporate payments for these ads or for requiring the ads to be paid for through a political action committee. WRTL asserted that in this instance the prohibition on corporate-sponsored ECs unconstitutionally burdened the rights of free speech, free association and petitioning the government — all in violation of the First Amendment.
Court decision
The Supreme Court issued a per curiam decision vacating the District Court’s judgment in this case based on the district court’s incorrect interpretation of McConnell.
The district court reasoned that in upholding the EC provisions of BCRA in McConnell, the Supreme Court left no room for the kind of “as applied” challenge brought by WRTL. According to the District Court’s interpretation, McConnell upheld all applications of the primary definition of electioneering communication, suggesting little likelihood of success for an “as applied” challenge to a particular application of that definition. The District Court determined that this deliberate upholding of “all applications” stands in contrast to the Supreme Court’s explicit acknowledgment that other parts of the statute, which it also upheld, might be subject to “as applied” challenges in the future.
The Supreme Court, however, concluded that the District Court misinterpreted the relevance of McConnell’s statement that it was upholding “all applications of the primary definition of electioneering communications.” The Supreme Court clarified that McConnell, in upholding the primary definition against a facial challenge, “did not purport to resolve future as applied challenges,” such as the one brought forth by WRTL. The Supreme Court vacated the judgment in the case and remanded it to the District Court to reconsider the merits of WRTL’s as applied challenge in the first instance.
WRTL filed a motion to reinstate the parties’ prior cross-motions for summary judgment on January 24, 2006.
¹ Commission regulations provide an exception allowing “qualified nonprofit corporations” to pay for electioneering communications. 11 CFR 114.2(b)(2); 11 CFR 114.10. However, WRTL alleges that it does not meet the definition of a qualified nonprofit corporation.