Tomorrow’s Argument in Wisconsin Right to Life v. FEC

In its decision in McConnell v. FEC, the Supreme Court upheld most of the Bipartisan Campaign Reform Act (BCRA) against a facial First Amendment challenge. Yet only two years later, the constitutionality of one of BCRA’s provisions is again at issue. The Court must now clarify exactly how much its opinion in McConnell decided, and whether it left open certain as-applied challenges to BCRA for corporations that want to pay for grassroots lobbying.

Section 203 of BCRA prohibits corporations from using general treasury funds to pay for “electioneering communications” – broadcast ads that reference a clearly identified candidate and air either 60 days before a general election or 30 days before a primary election. Section 203 applies to both for-profit and nonprofit corporations, although FEC regulations exempt certain non-profits (known as MCFL corporations) that are formed for the express purpose of advocating political views and that meet certain additional requirements.

Wisconsin Right to Life, Inc. (WRTL) is a non-profit corporation that is not an MCFL corporation, and thus it is bound by Section 203. Starting in July 2004, WRTL used general treasury funds to begin airing broadcast ads that criticized Senate Democrats for filibustering the President’s judicial nominees. The ads clearly identified both of Wisconsin’s Senators, Herb Kohl and Russell Feingold, and asked viewers to contact them to encourage them to cease filibustering. However, because Senator Feingold was up for reelection in 2004, WRTL ceased advertising on August 15th, as after that date the ads would be considered electioneering communications under BCRA.

Desiring to continue its ads, WRTL sought an injunction against the enforcement of Section 203 on the ground that its application to WRTL violated the First Amendment. WRTL argued that its ads were genuine grassroots lobbying and thus constitutionally protected. A three-judge panel rejected the challenge. It reasoned that McConnell’s discussion of Section 203 had completely foreclosed as-applied challenges. Moreover, the court concluded that even if this were not so, WRTL’s specific advertisements were exactly the type that McConnell said Congress had a compelling interest in regulating. The district court denied the injunction (and subsequently issued a final judgment in the FEC’s favor), and the Supreme Court noted probable jurisdiction.

James Bopp, Jr. of Bopp, Coleson & Bostrom will argue on behalf of WRTL. Solicitor General Paul D. Clement will argue on behalf of the United States.

In its opening brief, WRTL stresses that McConnell did not and could not have foreclosed as-applied challenges to Section 203. First, WRTL observes that in McConnell the FEC had argued that as-applied challenges could cure any potential overbreadth in BCRA. Yet now the FEC is claiming that only its rulemaking process – and not federal courts – can carve out exceptions sufficient to cure overbreadth problems. Second, WRTL suggests that Article III of the Constitution ensures that as-applied challenges are available; if McConnell had in fact foreclosed such challenges then it would have been an advisory opinion. Finally, WRTL confronts the language in McConnell on which the district court relied. Though McConnell did say it was upholding Section 203’s definition of electioneering “in all applications,” WRTL suggests that this merely referred to all of the definition’s statutory applications. That is, the Court found the definition facially acceptable in every place where it appears in the statute, but did not uphold the definition as to all of its factual applications.

Moving past those threshold issues, WRTL argues that its ads constitute constitutionally protected grassroots lobbying. WRTL’s brief emphasizes the importance of democratic exchange between representatives and constituents, as well as case law protecting the First Amendment rights of corporations. Furthermore, WRTL distinguishes McConnell’s discussion of electioneering by categorizing grassroots lobbying as attempts to influence the behavior of current officials, rather than attempts to influence which officials are elected. Because these ads do not resemble the “sham” ads discussed in McConnell, they do not raise any of the same concerns. Indeed, WRTL says this is especially true given that it is a non-profit corporation; to address possible concerns that WRTL is advantaged by its corporate form, WRTL even offers to finance its ads out of a segregated bank account. Finally, WRTL stresses that other options, such as forming a PAC, or communicating through non-broadcast media, are inadequate to serve its First Amendment interests.

The government argues that McConnell has foreclosed WRTL’s as-applied challenge. The government makes much of the fact that McConnell grappled with, and found acceptable, Section 203’s potential to ban activity that was not intended to influence federal elections. Contrary to how WRTL seems to portray the argument, the government does not claim that McConnell prevents a party from ever bringing an as-applied challenge. Instead, the government posits that McConnell’s logic simply leaves no room for WRTL’s claim: because McConnell upheld the prophylactic nature of Section 203, the Court necessarily upheld the statute’s application in individual fact-situations in which Congress’s regulatory interest is not particularly strong. Additionally, the government argues that allowing as-applied challenges to Section 203 would severely impede Congress’s ability to workably regulate electioneering. Congress needs a bright-line definition to distinguish grassroots lobbying from other electioneering, but WRTL has not offered one. Instead, its approach is highly case-specific and ignores the fact that some communications can be both grassroots lobbying and electioneering. Finally, in response to WRTL’s offer to finance ads through a segregated bank account, the government notes that Congress considered and rejected this alternative. Instead, Congress opted to provide PACs as an alternative financing vehicle for nonprofits – a choice that McConnell specifically approved. Indeed, WRTL’s approach would allow corporations to litigate an infinite range of hypothetical campaign finance regimes.

In reply, WRTL stresses that the government’s approach will effectively allow incumbents to shield themselves from grassroots lobbying. Turning to the government’s claim that McConnell forecloses its challenge, WRTL argues that the government has failed to address a number of its arguments, including its Article III argument, and its contextual reading of McConnell’s language upholding “all applications” of Section 203. Additionally, WRTL claims that McConnell did not actually endorse the “prophylaxis” approach, and that such an approach is inconsistent with strict scrutiny. Finally, WRTL argues that its proposed test for grassroots lobbying is clear because it looks solely at the content of the communication; it is the government that seems to want to look at subjective intent when it intimates that WRTL’s ads were not genuine grass-roots lobbying.

WRTL’s opening brief is available Here.

The government’s brief is available Here.

WRTL’s reply brief is available Here.