Summary of Federal Election Commission v. Wisconsin Right to Life, Inc.
On June 25, 2007, in Federal Election Commission v. Wisconsin Right to Life, Inc., the Supreme Court of the United States ruled that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibiting non-profit and other corporations from airing certain advertisements within 30 days of a primary election or 60 days of a general election violated the First Amendment as applied to the activities of Wisconsin Right to Life (WRTL). WRTL, a non-profit pro-life advocacy corporation, wanted to air ads encouraging citizens to contact Senators Feingold and Kohl of Wisconsin to tell them to oppose a filibuster of President Bushs judicial nominees, but BCRA severely limited their ability to do so. This case represents a significant victory not only for Wisconsin Right to Life, but for all pro-life, religious, non-profit, and other grassroots organizations that seek to inform Americans about important policy issues and encourage them to take action.
The American Center for Law and Justice (ACLJ) filed an amicus curiae brief on behalf of the ACLJ and Focus on the Family in support of WRTL. In his plurality opinion which represents the holding of the case, Chief Justice Roberts cited the ACLJs amicus curiae brief to illustrate that an ad like WRTLs that asks citizens to contact their elected representatives with respect to a particular issue is not equivalent to an ad saying vote for or against a candidate. Chief Justice Roberts also acknowledged that Focus on the Family was among the number of diverse organizations that have joined in supporting WRTL before this Court through amicus curiae briefs.
I. Factual History and Procedural Background.
Section 203 of BCRA makes it a federal crime for a corporationwhether for-profit or non-profitto broadcast, shortly before an election, a communication that names a federal candidate for public office and is targeted to the electorate. BCRA also prohibits corporations from using funds from their general treasury to pay for any electioneering communication, which includes any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is aired within 30 days of a federal primary election or 60 days of a federal general election. Section 203 and other BCRA provisions were challenged in McConnell v. Federal Election Commission; while the McConnell Court upheld 203 against a facial challenge, it also unanimously agreed with the ACLJ that another provision of BCRA violated the First Amendment rights of minors.
In 2004, WRTL began to air radio advertisements encouraging listeners to contact Senators Feingold and Kohl to tell them to oppose a filibuster of federal judicial nominees. WRTL planned to finance these ads with its general treasury funds and air them throughout August 2004. Realizing that the ads could become electioneering communications prohibited by BCRA as of August 15 (30 days prior to the primary), WRTL filed suit in federal court.
The District Court dismissed WRTLs complaint, interpreting McConnell to preclude as-applied challenges to BCRA 203. On appeal, the Supreme Court of the United States vacated the District Courts judgment, holding that McConnell did not purport to resolve future as-applied challenges to BCRA 203. On remand, the District Court held BCRA 203 unconstitutional as applied to the three advertisements WRTL planned to run. The District Court concluded that WRTLs ads were not express advocacy or its functional equivalent under BCRA, and there was no compelling interest justif[ying] BCRAs regulation of genuine issue ads.
II. Chief Justice Roberts Opinion.
The Supreme Court ruled in favor of WRTL by a 5-4 vote. While five Justices agreed that WRTLs First Amendment rights had been infringed, they could not agree on the appropriate method of analysis. Chief Justice Roberts and Justice Alito held that, under McConnell, Section 203 violated the First Amendment as applied to WRTL. Justices Scalia, Kennedy, and Thomas argued that McConnells holding concerning 203 was wrong and should be abandoned by the Court.
Chief Justice Roberts opinion stated the question presented as whether it is consistent with the First Amendment for BCRA 203 to prohibit WRTL from running [its] ads. A majority of the Justices joined a portion of Chief Justice Roberts opinion which rejected the FECs claim that the case had become moot. On the merits, Chief Justice Roberts (joined only by Justice Alito) made it clear that, when free speech and government censorship collide, the tie goes to the speaker, not the censor. He explained that BCRA 203 is subject to strict scrutiny because it directly burdens political speech. This places the burden of persuasion on the censor (the government) to prove that BCRAs preclusion of WRTLs ads furthers a compelling interest and is narrowly tailored to achieve that interest.
Chief Justice Roberts then considered the applicability of the McConnell decision to the case at hand. He rejected the dissents argument that McConnell established [the following] test for determining if an ad is the functional equivalent of express advocacy: whether the ad is intended to influence elections and has that effect. Chief Justice Roberts noted that McConnell did not explain that it was adopting a particular test for determining what constituted the functional equivalent of express advocacy. He also stated that the Court had already rejected an intent-and-effect test for distinguishing between discussions of issues and candidates which would chill core political speech by opening the door to a trial on every ad within the terms of 203.
Chief Justice Roberts established a straightforward rule: an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Applying this rule, Chief Justice Roberts held that WRTLs three ads are plainly not the functional equivalent of express advocacy. The ads focused on legislative issues and encouraged citizens to call their representatives. They also lack[] indicia of express advocacy because they failed to mention an election, candidacy, political party, or challenger . . . or a candidates character, qualifications of fitness for office.
Chief Justice Roberts then turned to the FECs argument that any ad covered by 203 that includes an appeal to citizens to contact their elected representative is the functional equivalent of an ad saying defeat or elect that candidate. Chief Justice Roberts cited the ACLJs amicus curiae brief in rejecting this argument:
We do not agree. To take just one example, during a blackout period the House considered the proposed Universal National Service Act. See App. to Brief for American Center for Law and Justice et al. as Amicus Curiae B-3. There would be no reason to regard an ad supporting or opposing that Act, and urging citizens to contact their Representative about it, as the equivalent of an ad saying vote for or against the Representative. Issue advocacy conveys information and educates. An issue ads impact on an election, if it exists at all, will come only after the voters hear the information and chooseuninvited by the adto factor it into their voting decisions.
The portion of the ACLJs amicus curiae brief that Chief Justice Roberts cited was a comprehensive 260-page appendix that described in detail all of the public policy issues that Congress and the President considered during the 60-day periods before the 2004 and 2006 general elections. To illustrate the broad chilling effect that Section 203 has on free speech, the appendix included every action of the President, Congressional floor vote, committee hearing, committee report, and issue discussed on the floor of the House and Senate during the relevant 60-day periods.
Chief Justice Roberts also explained that WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues. Importantly, he observed that [d]iscussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. He also explained that the governmental interest in preventing corruption and the appearance of corruption in election campaigns does not justify regulation of WRTLs ads. Under the First Amendment, WRTLs advocacy simply cannot be treated as the functional equivalent of express advocacy.
Chief Justice Roberts concluded by noting that [t]he importance of [this case] to speech and debate on public policy issues is reflected in the number of diverse organizations that have joined in supporting WRTL before this Court. . . . He listed several organizations as examples, including Focus on the Family which joined the ACLJs amicus curiae brief on behalf of WRTL. Chief Justice Roberts concluded by noting: we give the benefit of the doubt to speech, not censorship. The First Amendments command that Congress shall make no law . . . abridging the freedom of speech demands at least that. In other words, [t]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it.
III. Justice Scalias Concurring Opinion.
Justice Scalia, joined by Justices Kennedy and Thomas, argued in a concurring opinion that McConnell should be reconsidered because it sets up the unsavory task of separating issue-speech from election-speech. No test the Court could create would both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of 203 (as pronounced in McConnell). Justice Scalia argued that independent expenditures by corporations should be treated the same as an individuals expenditures. Under Austin v. Michigan Chamber of Commerce, however, the Court upheld the regulation of political speech based on the speakers corporate status. Justice Scalia argued that [t]he First Amendments protection against governmental abridgment of free expression cannot properly be made to depend on a persons financial ability to engage in public discussion.
After stating five different tests that have been proposed to determine whether an ad is express advocacy, Justice Scalia noted one common denominator they all share: [e]ach of them . . . is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segment of society to which 203 applies. No test that has been offered provides the degree of clarity necessary to avoid the chilling of fundamental political discourse. Justice Scalia noted that, under 203, many persons will choose simply to abstain from protected speech rather than engage in the protected speech and chance vindicating their rights through litigation. For these reasons, McConnells holding concerning 203 was wrong and should be abandoned.
IV. Justice Souters Dissenting Opinion.
Justice Souter wrote a dissenting opinion which was joined by Justices Stevens, Ginsburg, and Breyer. The dissent focused on several things that will affect the significance and effect of todays judgment. First, the public is aware of the influence that money can buy in the political process and has become quite cynical of this influence. This public perception threatens the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves. In response, Congress has enacted laws such as BCRA to protect the integrity of the system and alleviate the populaces distrust.
In addition, the dissent argued that the basic holding in McConnell was that the resulting line separating regulated election speech from general political discourse does not, on its face, violate the First Amendment. According to the dissent, the test established by Chief Justice Roberts identif[ies] a severely limited class of ads that may constitutionally be regulated as electioneering communications, a test that is flatly contrary to McConnell. The dissent argued that [t]he Court loses when important precedent is overruled without good reason, and there is no justification for departing from our usual rule of stare decisis here.
Conclusion
The Wisconsin Right to Life decision is a great victory for pro-life, religious, non-profit, and other grassroots organizations that seek to inform their fellow citizens about public policy issues and encourage them to take action. The ACLJ will continue to work to ensure that laws considered or passed by Congress stay within the limits set by the First Amendment.