Is the Electioneering Communication prohibition of the Bipartisan Campaign Reform Act unconstitutional as applied to grassroots lobbying ads, such as those that Wisconsin Right to Life wanted to run in 2004?
In July 2004, Wisconsin Right to Life aired a series of advertisements encouraging Wisconsin voters to urge their U.S. Senators, Russell Feingold and Herb Kohl, to oppose efforts to filibuster President Bush’s federal judicial nominees. The ads came into conflict with the limitations of the Bipartisan Campaign Reform Act because they coincided with Senator Feingold’s November 2004 re-election bid. The provision at issue prohibits corporations and unions from running ads targeted at a specific candidate within 30 days of a primary or 60 days of a general election. WRTL argues that the Act should not be applied to its ads because they were grassroots “issue ads,” and not “electioneering ads” covered by this Act. The Federal Election Commission contends that the WRTL ads were intended to sway voters in the federal election, and thus the Bipartisan Campaign Reform Act should be applied. The Supreme Court’s decision in this case will have an important effect on the delicate balance between the free speech rights guaranteed by the First Amendment and the interests of campaign finance reformers seeking to limit the electoral involvement of special interests, such as corporations and unions, which may improperly influence the electoral process.
Questions as Framed for the Court by the Parties
F.E.C. v. Wisconsin Right to Life
Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.
McCain v. Wisconsin Right to Life
Whether the three-judge district court erred in holding that Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, is unconstitutional as applied to the three advertisements that appellee Wisconsin Right to Life, Inc. sought to broadcast in 2004.
In 2004, many political experts anticipated that members of the U.S. Senate would try to further delay a Senate vote on President George Bush’s judicial nominees with continued filibustering. In response to this tactic, Wisconsin Right to Life (“WRTL”) ran what it considered a grassroots lobbying campaign, with broadcast advertisements in which the announcer urged listeners to “contact Senators Feingold and Kohl and tell them to oppose the filibuster." Robert Barnes and Mathew Mosk, High Court to Revisit Campaign Finance law: New Line Up on Bench will Consider Ad Limits, Washington Post, January 20, 2007 at A01. The ads ran from August 15th to November 2nd in 2004. Brief for Appellee at 8–9.
After the ads aired, the Federal Election Commission (“FEC”) banned the ads as violations of the prohibition against “electioneering communications” under the Bipartisan Campaign Reform Act of 2002 (“BCRA”). The BCRA prohibits corporations and unions from using money from their general treasury funds to finance ads aimed at specific candidates in a federal elections. 2 U.S.C. § 434(f)(3). Specifically, the BCRA prohibits such ads from running thirty days prior to a primary election or sixty days prior to a general election. Id. Senator Feingold was a candidate for the September 2004 primary election. Under the BCRA, ads funded by corporate monies that advocated against the position of a candidate and mentioned the candidate by name could not be run from August 15th to September 3rd, the thirty-day period prior to the primary election. Brief for Appellee at 9.
To prevent the FEC ban from cutting its ad campaign short, WRTL filed a complaint in court and petitioned for a preliminary injunction on July 28, 2004. Id. Justice Rehnquist denied WRTL’s request on August 12, 2004, leaving WRTL with no choice other than to cease broadcasting the ads. WRTL v. FEC, 542 U.S. 1305 (2004). WRTL’s complaint was dismissed by the district court, which interpreted the Supreme Court’s decision in McConnell v. F.E.C., 540 U.S. 93 (2003), to preclude facial as well as “as-applied challenges” to the BCRA. Brief for Appellee at 10. In dismissing WRTL’s complaint, the district court noted that “WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling interest in regulating.” Id.
WRTL appealed, and on January 23, 2006, the Supreme Court vacated the district court’s dismissal of WRTL’s complaint and remanded the case. The Supreme Court explained that in its decision to uphold the BCRA prohibition against a facial challenge in McConnell, it did not purport to resolve “future as -applied challenges.” WRTL v. FEC, 546 U.S. 410 (2006). On remand, the district court granted summary judgment to WRTL, finding that the common denominator between “express advocacy” and its “functional equivalent,” as the Supreme Court defined it in McConnell, is the link between words and images used in the ad, and the fitness, or lack thereof, of the candidate running for public office. Brief for Appellee at 23. The absence of that link enables an issue to be fairly regarded as a genuine “issue ad.” Id. The FEC appealed the decision and the Supreme Court agreed to readdress the case.
At issue is the precarious balance between the First Amendment right to free speech, and the interests of campaign finance reformers who want to broadly limit the campaign financing and advertising options of corporations and unions to prevent campaign financing improprieties and the influence of special interests.
The Parameters of the BCRA “Electioneering Communications” Provision
The Supreme Court has previously upheld Congress’s “compelling interest in guarding against ‘the corrosive and distorting effects’ that unregulated corporate or union wealth may have on federal elections.” Brief for Appellants (McCain, et al.) at 2. Applying this compelling congressional interest test, in McConnell v. F.E.C., 540 U.S. 93 (2003), the Court concluded that Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 441b, which prohibits corporations and unions from using general treasury funds to finance “electioneering communications,” was sufficiently narrowly tailored to achieve this critical legislative goal. Id.
Under the BCRA, an electioneering communication is defined as a broadcast, cable, or satellite communication referring to the name or likeness of a clearly identified candidate for federal office 30 days before a primary election or 60 days before a general election. 2 U.S.C. § 434(f)(3). Also, although the BCRA bars the use of general treasury funds, it does permit corporations and unions to establish separate, segregate funds for the financing of electioneering communications. Brief for Appellants (McCain, et al.) at 2.
In ruling on the parameters of the BCRA’s electioneering communications provision, the Supreme Court in McConnell rejected the argument that the BCRA’s funding restrictions only applied to advertisements using “magic words” expressly advocating or opposing a candidate’s election to office (e.g., “vote for,” “support,” “elect,” etc.). McConnell v. F.E.C., 540 U.S. at 193.
Also, the Court refused to accept the argument that all “issue advocacy” ads should be outside of the BCRA’s reach. Id. at 206–07. Instead, the Court held that the limitations applying to “express advocacy” ads should apply equally to issue advocacy ads that are intended to influence the decisions of voters in the election. Id. at 206. Such issue ads are the functional equivalent of express advocacy ads because they achieve the same result: permitting corporations and unions to use general treasury funds to sway federal elections. Id. Thus, the issue in the instant case is whether the advertisements broadcasted by Wisconsin Right to Life were intended to influence voters and sway the federal election, and therefore “electioneering communications” under the BCRA.
Wisconsin Right to Life Argues that the BCRA Should not be Applied to the Ads
Wisconsin Right to Life contends that the BCRA should not be applied to its advertisements because the ads do not fall within the types of “electioneering communications” envisioned by the BCRA and its proponents. Appellee’s Response to Jurisdictional Statements at 1. WRTL argues that when the “electioneering communication” prohibition was proposed as an amendment to the BCRA, its sponsors explained that it “[would] not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes.” Id.
Thus, WRTL argues that its advertisements fall under these types of grassroots communications that are designed to urge citizens to contact their lawmakers and become a part of the political process. Id. Furthermore, using the language of the BCRA as its support, WRTL claims that it is the actual words used in the broadcast ads that determine whether the BCRA’s “electioneering communication” prohibition should apply. Id. at 2.
An “electioneering communication,” contends WRTL, is defined solely based on the text of the relevant communication: “the term ‘electioneering communication’ means any broadcast, cable, or satellite communication which . . . refers to a clearly identified candidate for Federal office,” when made in defined proximity to an election and targeted to the relevant electorate. 2 U.S.C. § 434(f)(3). Here, says the WRTL, the BCRA does not refer to anything outside the content of the ads themselves. Appellee’s Response at 2.
WRTL also focuses on the legislative history of the BCRA. WRTL notes that Senator James Jeffords, one of the Congressional sponsors, had assured organizations, including civic groups and unions, that “their grassroots communications . . . legitimately trying to influence policy debates” were excluded from the prohibition, and only those ads clearly trying to skew elections through “electioneering” were prohibited. Id.
Finally, WRTL argues that McConnell does not apply in this case. WRTL contends that “this case presents the issue reserved in McConnell: whether the interests that support regulation of election-related speech are sufficient to also prohibit grassroots lobbying about upcoming votes in Congress.” Id. at 4. Although the Supreme Court upheld the BCRA against a facial challenge in McConnell, WRTL argues that neither the language nor the logic of McConnell precluded an as-applied challenge to the “electioneering communication” prohibition. Id.
FEC and McCain, et al., Argue that the BCRA Should be Applied to the Ads
According to the FEC and McCain et al., the facts demonstrate that the advertisements broadcasted by WRTL fall squarely into the category of issue advocacy ads that go beyond the BCRA limits to become the functional equivalents of express advocacy ads. Brief for Appellants (McCain, et al.) at 2. In this case, the FEC and McCain argue, the ads were in fact intended to influence voters in the re-election of Senator Feingold, although on their face the ads appeared to be aimed at a pending legislative issue. Id. at 3.
To bolster their argument, the FEC and McCain point to the language of the WRTL ads and the political context in which the ads were broadcasted. All of the WRTL ads denounced “a group of Senators” for filibustering judicial nominees and “causing gridlock” in the political process, and two of the ads emphasized that the Senators were “backing up some of our courts to a state of emergency.” Id. at 2–3. Finally, the ads urged the audience to contact Senator Kohl and Senator Feingold—then a candidate for federal office—to tell them to oppose the filibustering. Id. at 3.
The FEC and McCain contend that the language of the ads had additional meaning in the political context at the time. They argue that it was public knowledge that Senator Feingold was one of the “group of Senators” to whom the ads referred. Id. Indeed, say the FEC and McCain, WRTL itself had publicized Senator Feingold’s involvement in the filibusters and had called for his defeat on this ground, which had become an important issue in the election. Id.
Also, while the ads asked the audience to contact the Senators, they did not give any contact information, and instead directed viewers to a website criticizing the Senators for their role in the filibusters. Id. WRTL also sought to run its ads immediately before the 2004 federal election, during a time when Congress was in recess and no vote on the filibuster was imminent, rather than after the election, when the filibuster controversy was at its apogee. Id. Finally, although WRTL had a separate fund for financing political activity, it made no attempt to use that fund to finance its ads. Id.
The district court, argue the FEC and McCain, shut its eyes to the facts that evidence the intent of WRTL in broadcasting these ads. Id. The district court, they contend, improperly confined its analysis to the literal words and images of the ads, and “fail[ed] to ask whether, understood in context, the ads in fact functioned as election advocacy”: “WRTL’s advertisements, like many of the ads this Court considered in McConnell, may have addressed an ‘issue’ in which WRTL had a genuine interest, but their potential to influence the impending federal election was nonetheless patent.” Id. at 4.
WRTL maintains that its 2004 ads were neither express advocacy, nor its functional equivalent. Instead, WRTL characterizes its ads as true “issue ads,” which should not fall under the BCRA prohibition. Moreover, WRTL argues that the FEC failed to demonstrate a compelling interest in regulating the WRTL ads. WRTL v. FEC, 466 F. Supp. 2d 195, 204 (2006). Its stance is based on the idea that the electioneering communication prohibition should not apply to grassroots lobbying because such efforts encourage Americans to use their First Amendment rights to influence policy and law. Fears of the effect of sham issue ads and their effect on the electoral process, the argument goes, do not justify taking the over inclusive approach of banning ads like the WRTL ads. The ends do not justify the means where First Amendment rights are being curtailed to such a large extent.
The FEC focuses less on whether the BCRA prohibition impermissibly curtails First Amendment rights and more on how the use of corporate funds in electioneering can distort democracy during elections. This possible distortion is arguably what creates a compelling interest in limiting First Amendment rights in the context of electioneering. Furthermore, the purpose of the BCRA ban was to stop people with access to large amounts of money from unfairly influencing elections by overpowering the voices of those without equal wealth. The FEC maintains that both “Congress and this court have recognized that advertisements urging citizens to contact elected representatives are often intended to influence federal elections and will often frequently have that effect.” See Brief for Appellant at 25–29. Creating an exemption for grassroots lobbying, the FEC argues, will just open a loophole through which sham ads can defeat the purpose of the BCRA. See id.
The FEC continues to support an intent-effect test to differentiate between genuine issue ads and sham issue ads. However, WRTL points out that McConnell did not adopt such a test, and argues that the Supreme Court is likely to reject it because an intent-effect test is too subjective and verges on constitutional impermissibility, and because the Court has previously rejected intent-effect tests. Brief for Appellee at 37. Arguments have also been made that it would be difficult to find the intent behind ads; in fact, it was for this reason that the district court opted for a facial analysis. Also, a strict interpretation and application of the BCRA would mean having to ban everything that has an effect on the electoral process including the evening news. Associated Press, Federal Panel hears challenge to campaign ad limits, September 9, 2006. In addition, Professor Joel Gora expresses concern that upholding the BCRA restrictions as constitutional will mean that the blackout dates of the BCRA for the upcoming congressional elections and presidential primaries could cover most of that election year. Faryl Ury, FEC v. WRTL/ McCain, et al. v. WRTL, Medill News Service. Restricting freedom of speech for such an extended period of time is arguably rather excessive and could reasonably be perceived by the Supreme Court as an unjustifiable violation of First Amendment rights in the case of issue ads.
In this case, the Supreme Court will decide the issues presented, but the Court may also decide to do what it did not do in McConnell: create guidelines for future as-applied challenges to the BCRA. As James Bopp, Jr., lead counsel for WRTL, states, “While this case involves grassroots lobbying ads that Wisconsin Right to Life was deprived of running in 2004, it provides an opportunity for the Supreme Court to state a test under which such ads can safely be run in the future.” Randy Hall, Supreme Court Urged to Lift Political Ad Restrictions, CNSNews.com, March 27, 2007. He adds: “This will provide a safe haven for the First Amendment right of citizen groups to participate in self-government by asking other citizens to petition their congressional representatives about upcoming legislative action even near elections.” National Right To Life News, Two Good Pieces of News and an Eloquent Papal Denunciation of Abortion and Euthanasia, February 6, 2007.
In McConnell, the Supreme Court majority held that “in the future corporations and unions may finance genuine issue ads during those time frames [prohibited by the BCRA] by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.” McConnell v. FEC, 540 U.S. 93. The 5-4 majority in McConnell included Justice O’Connor who has now been replaced by Justice Alito, making it difficult to predict how the court will rule in this case.
First Amendment protection is a primary concern for U.S. Courts, but so is protection of the democratic process. The purpose of the BCRA is to make sure that the voices of the rich do not overpower the voice of those who do not have access to equal wealth. Although making sure that money is not the deciding factor in elections is crucial, it is unlikely that the Supreme Court will uphold the BCRA if it sacrifices First Amendment rights without a sufficiently compelling governmental interest. Central to the Court’s analysis will be the question of whether WRTL’s ads were “real issue” ads or whether they constituted express advocacy or its functional equivalent. The Court will also have to determine whether the government has a compelling interest to regulate genuine issue ads during the black out periods of the BCRA. Due to the importance of both First Amendment rights and protecting the democratic process during elections, the Court is likely to try to find a middle ground solution. A possible way would be to uphold the BCRA as constitutional and carve out an exemption for issue ads after delineating a clearer test to differentiate sham issue ads from real issue ads.Written by:
- Wisconsin Right to Life v. F.E.C., Duke Law School
- Supreme Court Urged to Lift Political Ad Restrictions, by Randy Hall, Cybercast News Service