Federal Election Commission v. Wisconsin Right to Life, Inc.

PETITIONER: Federal Election Commission
RESPONDENT: Wisconsin Right to Life, Inc.
LOCATION: United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 06-969
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: Federal district court

CITATION: 551 US 449 (2007)
ARGUED: Apr 25, 2007
DECIDED: Jun 25, 2007

James Bopp, Jr. -
Paul D. Clement -
Seth P. Waxman -

Facts of the case

Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the Federal Election Commission (FEC), claiming that the BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as applied" challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In McConnell v. Federal Election Commission, the Court had upheld Congress's power to regulate "express advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads" rather than express advocacy. WRTL also argued that the government lacked a compelling interest sufficient to override the corporation's First Amendment free speech interest. The FEC countered that WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but are intended to affect an election.

A three-judge District Court agreed with WRTL's arguments and ruled the BCRA unconstitutional as applied to the ads. The court refused the FEC's request that it inquire into the intent and likely effect of the ads, because those determinations would be impractical and would have a chilling effect on protected speech. Analyzing only the explicit content of the ads, the court found them to be legitimate issue ads and not express advocacy or sham issue ads. The court also held that the government's justification for banning express advocacy ads by corporations - the need to reduce political corruption and public cynicism - did not apply to ads that do not endorse or oppose a candidate. Therefore, the court ruled that the government lacked a compelling interest to justify the burden on WRTL's First Amendment rights.


Is the Bipartisan Campaign Reform Act's ban on the use of corporate treasury funds for political advertisements in the 60 days before an election unconstitutional as applied to advertisements that do not explicitly endorse or oppose a candidate?

Media for Federal Election Commission v. Wisconsin Right to Life, Inc.

Audio Transcription for Oral Argument - April 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.

Audio Transcription for Opinion Announcement - June 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.

John G. Roberts, Jr.:

I also have the announcement this morning and then opinion in case No. 06-969, Federal Election Commission versus Wisconsin Right to Life and the consolidated case number 06-970 McCain versus Wisconsin Right to Life.

Unlike the case we just finished announcing, these cases concern core political speech not in the school environment.

They involve Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA).

Abbreviation makes it a felony for union or corporation to broadcast shortly before an election any communication that names a candidate for elected federal office and is targeted to the electorate.

Three terms ago in a case known as McConnell versus Federal Election Commission we considered the claim that Section 203 violated the First Amendment because of it was overbroad on its face.

The objection was that it covered not only expressed campaign advocacy an ad saying “vote for Jones” but also genuine issue advocacy an ad saying “here is an issue we feel strongly about contact representative Jones and tell him to do something about it."

BCRA was concerned about election speech but Section 203 by it terms covers both types of ads because both mention the federal candidate by name.

In the McConnell case, this court held that Section 203 was not so overbroad on its face that all enforcement of it should be banned.

In July 2004, a nonprofit corporation called Wisconsin Right to Life (WRTL) began broadcasting radio ads that refer to a group of senators that was using a filibuster tactic to block federal judicial nominees from a simple yes or no vote.

The ads ended buying urging listeners to contact senators Feingold and Kohl the two Wisconsin senators and tell them to oppose the filibuster because the ads mention senator Feingold by name and he was up to reelection BCRA Section 203 made their broadcast illegal as of 30-days prior to the Wisconsin primary.

Believing it had a First Amendment right to continue running these ads WRTL filed a suit against the Federal Election Commission.

The District Court initially denied relief concluding that our McConnell decision essentially held that BCRA Section 203 was constitutional in every application but last term we vacated that judgment explaining that McConnell held only that Section 203 was not unconstitutional on its face.

McConnell did not purport to resolve future as applied challenges.

On remand the District Court held Section 203 unconstitutional as applied to WRTL’s ads.

The court ruled that these ads were not election advocacy or its functional equivalent but instead were genuine issue ads and no compelling interest justified their suppression.

The Federal Election Commission and a group of legislators who had intervene appealed the case.

We began by holding that we have jurisdiction to hear the case the government argues that the case is moot because the 2004 election is coming on and WRTL no longer desires to run the particular three advertisements that are the subject of this suit.

We hold however that these cases get comfortably within the established exception to mootness for disputes that are capable of repetition yet evading review.

It would be unreasonable to expect that WRTL could have obtain complete judicial review of its claims in time to air its ads during the BCRA blackout periods and WRTL credibly that a plans to run materially similar are targeted broadcast ads during future blackout periods.

On the merits a majority of the court affirms the judgment of the District Court.

In an opinion joined by Justice Alito, I find Section 203 unconstitutional as applied to WRTL’s ads.

In McConnell the court held that Section 203 properly regulates ads that are expressed election advocacy or its functional equivalent.

These ads are not expressed election advocacy, they don’t say, “vote for” or “against Feingold” but how to tell whether they are the so called functional equivalent of such advocacy.

In answering that question we have to remember that we are talking about core political speech, public discussion and debate about policy matters and the ability of speakers to mention public officials in the course of that discussion and we need to remember that we are applying the First Amendment which provides “congress shall make no law abridging the freedom of speech.”

Now, this court has not adopted an absolutist interpretation of that Amendment but it is important in considering a law that makes it a crime to mention an elected official by name to recall the scope of the words that the Framers use.

In light of this the test for deciding whether these ads are the functional equivalent of expressed campaign speech cannot turn on amorphous factors like the speaker intent or the possible effect of the ads on voters.

The test cannot turn on multiple contextual factors it would surely chill political speech if people could not know in advance whether they could speak or would be committing a felony.

Given these considerations a court should find that an ad is the functional equivalent of express advocacy and maybe barred under Section 203 only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.

Under this test WRTL’s three ads are plainly not the functional equivalent of express election advocacy the ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position and urge the public to contact public officials with respect to that matter.

The ads do not mention an election candidacy, political party or challenger and they do not take a position on a candidate’s character, qualifications or fitness for office.