FEC v. WISCONSIN RIGHT TO LIFE

Legal Principle at Issue

Whether the Bipartisan Campaign Reform Acts ban on election season campaign ads by corporations violates the First Amendment.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

Section 203 of the Bipartisan Campaign Reform Act of 2002 makes it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication,” which the Act defines as any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running. In McConnell v. FEC, the Supreme Court upheld Section 203 against a First Amendment facial challenge even though the section encompassed not only campaign speech, or “express advocacy” promoting a candidate’s election or defeat, but also “issue advocacy,” or speech about public issues more generally, that also mentions such a candidate. The Court concluded there was no overbreadth concern to the extent the speech in question was the “functional equivalent” of express advocacy.

On July 26, 2004, appellee Wisconsin Right to Life began broadcasting advertisements declaring that a group of senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster. WRTL planned to run the ads throughout August 2004 and finance them with its general treasury funds. Recognizing, however, that as of August 15, 30 days before the Wisconsin primary, the ads would be illegal “electioneering communication[s]” under Section 203 of the Bipartisan Campaign Reform Act, but believing that it nonetheless had a First Amendment right to broadcast them, WRTL filed suit against the Federal Election Commission, seeking declaratory and injunctive relief and alleging that Section 203's prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future. 

Just before the BCRA blackout, the three-judge District Court denied a preliminary injunction, concluding that McConnell’s reasoning that Section 203 was not facially overbroad left no room for such “as-applied” challenges. WRTL did not run its ads during the blackout period, and the court subsequently dismissed the complaint. The Supreme Court vacated that judgment, holding that McConnell “did not purport to resolve future as-applied challenges” to Section 203. On remand, the District Court granted WRTL summary judgment, holding Section 203 of the Bipartisan Campaign Reform Act unconstitutional as applied to the three ads. The court first found that adjudication was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its “functional equivalent” under McConnell, and held that no compelling interest justified BCRA’s regulation of such ads.