Wisconsin Right to Life v. Federal Elec. Com'n
| Decision Date | 21 December 2006 |
| Docket Number | No. Civ.04-1260(DBS RWR RJL).,Civ.04-1260(DBS RWR RJL). |
| Parties | WISCONSIN RIGHT TO LIFE, INC., Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant, and Sen. John McCAIN et al., Intervening Defendants |
| Court | U.S. District Court — District of Columbia |
James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, Michael S. Nadel, McDermott, Will & Emery, Washington, DC, for Plaintiff.
Colleen T. Sealander, Gregory John Mueller, Harry Jacobs Summers, Lawrence Howard Norton, Richard Blair Bader, Steve Nicholas Hajjar, Vivien Clair, Benjamin A. Streeter, III; Kevin Deeley, David Brett Kolker, Federal Election Commission, Washington, DC, for Defendant.
Randolph D. Moss, Wilmer Cutler Pickering Hale & Dorr LLP, Donald Jay Simon, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, for Movants.
Before: SENTELLE, Circuit Judge; ROBERTS, District Judge; and LEON, District Judge.
Opinion for the Court filed by District Judge LEON, in which Circuit Judge SENTELLE joins in full.
Plaintiff, Wisconsin Right to Life, Inc. ("WRTL" or "the Corporation"), brings this action against defendant, the Federal Election Commission ("FEC"), seeking a judgment declaring section 203 of the Bipartisan Campaign Reform Act of 2002 ("BCRA"), Pub.L. No. 107-155, 116 Stat. 81,1 unconstitutional as it applies to three broadcast advertisements WRTL intended to run within thirty days of Wisconsin's 2004 federal primary and sixty days of the 2004 federal general election, as well as "materially similar ads" it "intends to run" in the future. (Am.Compl.¶¶ 13, 15, 16.)
Under BCRA's prohibition on "electioneering communications," WRTL could not lawfully run the three advertisements during the 30- and 60-day periods before the 2004 primary and general elections. Thus, WRTL claims that the enforcement of BCRA with regard to these advertisements would violate the First Amendment, which provides: "Congress shall make" no law ... abridging the freedom of speech ... or the right of the people ... to petition the Government for a redress of grievances." U.S. Const. Amend. I.
Now before the Court are cross-motions for summary judgment filed on behalf of (1) WRTL, (2) the FEC, and (3) intervening defendants, United States Senator John McCain and Representatives Tammy Baldwin, Martin Meehan, and Christopher Shays (collectively, "Interveners"). Upon due consideration of the parties' submissions, the relevant case law, and the entire record herein, WRTL's Motion for Summary Judgment is GRANTED as to the three ads WRTL intended to run in 2004, and the FEC and Interveners' Motions are DENIED.
WRTL is a nonprofit, nonstock, Wisconsin, ideological advocacy corporation recognized by the Internal Revenue Service as tax-exempt under § 501(c)(4) of the Internal Revenue Code.2 (Mem. & Op., Findings of Fact ¶ 1, Sept. 14, 2006.) On July 26, 2004, WRTL began broadcasting a radio advertisement entitled "Wedding"3 , which "encourage[d] Wisconsin listeners to contact their U.S. Senators (Sen. Russell Feingold and Sen. Herb Kohl) ... to them to vote against [the then-]anticipated filibusters of President Bush's federal judicial nominees" (Am. Compl.¶ 6). At the same time, the Corporation initiated the production of a second radio ad entitled "Loar"4 (Compl.Ex. B) and one television ad entitled "Waiting"5 (id. Ex. C). (Am.Compl. ¶¶ 2.) Like Wedding, Loan and Waiting encourage their listeners to contact Senators Feingold and Kohl and urge them to oppose the filibustering of federal judicial nominees. None of the three advertisements, however, reference either Senator's past votes on the filibuster issue and none contain any language that could be fairly construed as promoting, attacking, supporting, or opposing ("PASO") either Senator. Yet because WRTL intended to use its general treasury funds to continue to run its ads through "the adjournment of Congress"6 (id. ¶ 13), the ads would be prohibited as "electioneering communications" by BCRA section 2037 between the dates of August 15 and November 2, 20048 (id. ¶ 14). Accordingly, on July 28, 2004, WRTL filed a complaint in this Court against the FEC,9 challenging the constitutionality of section 203 as it applies to the Corporation's anti-filibuster ads and seeking "declaratory and injunctive relief permitting [the Corporation] to run [its ads] and materially similar ads in the future."10 (Am.Compl.¶ 15.) That same day, WRTL filed a Motion for Preliminary Injunction, requesting that the Court "preliminarily enjoin the FEC from enforcing the prohibition on corporate expenditures for electioneering communications at Section 203 of the [BCRA], as applied to (a) electioneering communications by WRTL that constitute grass-roots lobbying and (b) the electioneering communications by WRTL contained in [the Wedding, Loan, and Waiting advertisements] until a final hearing on the merits." (Pl.'s Mot. Prelim. Inj. at 2.) On July 29, 2004, WRTL's application for a three-judge district court was granted pursuant to 28 U.S.C. § 2284 and section 403 of the BCRA (Order, July 29, 2004); this Court was empaneled four days later (Order, Aug. 9, 2004).
On August 12, 2004, this Court held oral argument on plaintiffs Motion for Preliminary Injunction, which it denied via Minute Order later that day. In denying WRTL's Motion, we relied on the Supreme Court's opinion in McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). Recognizing that the McConnell Court was only considering a facial challenge to BCRA, this Court nevertheless concluded that "the reasoning of the McConnell Court leaves no room for the kind of `as applied' challenge WRTL propounds before us."11 (Mem. & Op. at 4, Aug. 17, 2004.) On May 10, 2005, following supplemental briefing by the parties, we dismissed plaintiffs Complaint in its entirety. Again, this Court concluded that "WRTL's `as-applied' challenge to BCRA is foreclosed by the Supreme Court's decision in McConnell." (Mem. & Op. at 2, May 10, 2005.) Within two days of this Court's Order, plaintiff filed a Notice of Appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1253 and BCRA section 403(a)(3). (Notice of Appeal, May 12, 2005). The Supreme Court noted probable jurisdiction on September 27, 2005. WRTL v. FEC, 545 U.S. 1164, 126 S.Ct. 36, 162 L.Ed.2d 932 (2005).
On January 23, 2006, the Supreme Court vacated this Court's May 10, 2005 dismissal, explaining that "[i]n upholding § 203 [of BCRA] against a facial challenge, we did not purport to resolve future as-applied challenges." WRTL v. FEC, 546 U.S. 410, 126 S.Ct. 1016, 1018, 163 L.Ed.2d 990 (2006). The case was thus remanded to this Court with instructions to "consider the merits of WRTL's as-applied challenge in the first instance." Id.
On March 23, 2006, this Court granted a Motion to Intervene as Defendants brought by United States Senator John McCain and Representatives Tammy Baldwin, Christopher Shays, and Martin Meehan pursuant to BCRA section 403(b). We then issued a Scheduling Order on April 17, 2006, which allowed for an expedited period of discovery.12 From June 23 to September 11, 2006, the parties submitted their respective Motions for Summary Judgment, response briefs, and proposed findings of fact.13 On September 18, 2006, the Court held oral argument on the parties' Motions.
All parties move for summary judgment pursuant to Federal Rule of Civil Procedure 56, which states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the court finds that facts material to the outcome of the case are at issue, a case may not be disposed of by summary judgment. Id. at 248, 106 S.Ct. 2505. If the facts in dispute are "merely colorable, or ... not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Though the moving party bears the burden of establishing that there are no genuine issues of material fact and that judgment on the legal issues is appropriate in its favor, Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548, a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e). If there is insufficient evidence indicating that the fact-finder could return a favorable verdict for the nonmoving party, then summary judgment is proper. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
Jurisdiction for constitutional challenges to BCRA was squarely vested in this Court by Congress. Defendants, however, as an initial matter, oppose WRTL's constitutional challenge to the 2004 anti-filibuster ads as moot and WRTL's challenge to certain hypothetical "materially similar" ads that it wishes to run in the future as not ripe. For the following reasons, we disagree with defendants' mootness argument, but agree with their ripeness position.
WRTL chose to forgo running its ads in 2004 rather than take the risk that enforcement proceedings would be brought against it. (Am. Compl. ¶ 52; Pl.'s Proposed Findings of Fact ¶ 42.) As a result, defendants' mootness argument boils down to its contention that Article III's ...
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