Federal Election Commission v. Wisconsin Right to Life; McCain v. Wisconsin Right to Life

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.