On December 21, 2006, a three-judge panel of the United States District Court for the District of Columbia issued a 2-1 decision granting Wisconsin Right to Life's (WRTL's) motion for summary judgment, finding the electioneering communications (EC) provisions unconstitutional "as applied" to three broadcast ads WRTL had intended to run before the 2004 election. Based on the court's decision, the ads would not have been subject to the ban on the use of corporate treasury funds to finance ECs.
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 finance 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 ban on corporate treasury funding of ECs unconstitutional as applied to what it called "grassroots lobbying" communications planned for the period before the 2004 elections. After the district court denied WRTL's motion for a preliminary injunction and dismissed its 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. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL's 2004 ads.
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.
The three-judge panel 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 that 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."
Notice of appeal
On December 29, 2006, the Commission filed a Notice of Appeal to the Supreme Court.
U.S. District Court for the District of Columbia, CV04-1260 (DBS, RWR, RJL).