WISCONSIN RIGHT TO LIFE, INC., APPELLANT v.
FEDERAL ELECTION COMMISSION
on appeal from the united states district court forthe district of columbia
The Bipartisan Campaign Reform Act of 2002 (BCRA), §203, 116Stat. 91, prohibits corporations from using their general treasury funds to pay for any electioneering communications. 2 U.S.C. §441b(b)(2) (2000 ed., Supp. III). BCRA §201 defines electioneering communications as any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is broadcast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office. 2 U.S.C. §434(f)(3). Appellant Wisconsin Right to Life, Inc. (WRTL) brought this action against the Federal Election Commission (FEC), seeking a judgment declaring BCRA unconstitutional as applied to several broadcast advertisements that it intended to run during the 2004 election. WRTL also sought a preliminary injunction barring the FEC from enforcing BCRA against those advertisements. WRTL does not dispute that its advertisements are covered by BCRAs definition of prohibited electioneering communications. Instead, it contends that BCRA cannot be constitutionally applied to its particular communications because they constitute grassroots lobbying advertisements. Although the FEC has statutory authority to exempt by regulation certain communications from BCRAs prohibition on electioneering communications, §434(f)(3)(B)(iv), at this point, it has not done so for the types of advertisements at issue here.
The three-judge District Court denied the motion for a preliminary injunction and subsequently dismissed WRTLs complaint in an unpublished opinion. We noted probable jurisdiction, 545 U. S. ___ (2005). Appellant asks us to reverse the judgment of the District Court because that court incorrectly read a footnote in our opinion in McConnell v. Federal Election Commn, 540 U. S. 93, (2003), as foreclosing any as-applied challenges to the prohibition on electioneering communications. We agree with WRTL that the District Court misinterpreted the relevance of our uphold[ing] all applications of the primary definition of electioneering communications. Id., at 190, n. 73. Contrary to the understanding of the District Court, that footnote merely notes that because we found BCRAs primary definition of electioneering communication facially valid when used with regard to BCRAs disclosure and funding requirements, it was unnecessary to consider the constitutionality of the backup definition Congress provided. Ibid. In upholding §203 against a facial challenge, we did not purport to resolve future as-applied challenges.
The FEC argues that the District Court also rested its decision on the alternative ground that the facts of this case suggest that WRTLs advertisements may fit the very type of activity McConnell found Congress had a compelling interest in regulating. No. 041260 (DC, Aug. 17, 2004), App. to Juris. Statement 8a. It is not clear to us, however, that the District Court intended its opinion to rest on this ground. For one thing, the court used the word may. For another, its separate opinion dismissing WRTLs challenge with prejudice characterized its previous opinion as holding that WRTLs as-applied challenge to BCRA is foreclosed by the Supreme Courts decision in McConnell. Id., at 3a. Given this ambiguity, we cannot say with certainty that the District Courts dismissal was based on this alternative ground.
We therefore vacate the judgment and remand the case for the District Court to consider the merits of WRTLs as-applied challenge in the first instance.
It is so ordered.