551 U.S. 449 (2007), 06-969, Federal Election Com'n v. Wisconsin Right to Life, Inc.

Docket Nº:06-969, 06-970.
Citation:551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329
Opinion Judge:ROBERTS, Chief Justice
Party Name:FEDERAL ELECTION COMMISSION, Appellant, v. WISCONSIN RIGHT TO LIFE, INC. Senator John McCain, et al., Appellants,
Case Date:June 25, 2007
Court:United States Supreme Court

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551 U.S. 449 (2007)

127 S.Ct. 2652, 168 L.Ed.2d 329




Senator John McCain, et al., Appellants,



Nos. 06-969, 06-970.

United States Supreme Court

June 25, 2007 [*]

Argued April 25, 2007.

[127 S.Ct. 2653] SYLLABUS

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), makes it a federal crime for a corporation to use its general treasury funds to pay for any "electioneering communication," 2 U.S.C. §441b(b)(2), which BCRA defines as any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running, §434(f)(3)(A). In McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491, this Court upheld §203 against a First Amendment facial challenge even though the section encompassed not only campaign speech, or "express advocacy" promoting a candidate's election or defeat, but also "issue advocacy," or speech about public issues more generally, that also mentions such a candidate. The Court concluded there was no overbreadth concern to the extent the speech in question was the "functional equivalent" of express advocacy. Id., at 204-205, 206, 124 S.Ct. 619.

On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL), began broadcasting advertisements declaring that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster. WRTL planned to run the ads throughout August 2004 and finance them with its general treasury funds. Recognizing, however, that as of August 15, 30 days before the Wisconsin primary, the ads would be illegal "electioneering communication[s]" under BCRA §203, but believing that it nonetheless had a First Amendment right to broadcast them, WRTL filed suit against the Federal Election Commission (FEC), seeking declaratory and injunctive relief and alleging [127 S.Ct. 2654] that §203's prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future. Just before the BCRA blackout, the three-judge District Court denied a preliminary injunction, concluding that McConnell's reasoning that §203 was not facially overbroad left no room for such "as-applied"

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challenges. WRTL did not run its ads during the blackout period, and the court subsequently dismissed the complaint. This Court vacated that judgment, holding that McConnell "did not purport to resolve future as-applied challenges" to §203. Wisconsin Right to Life, Inc. v. Federal Election Comm'n (WRTL I), 546 U.S. 410, 412, 126 S.Ct. 1016, 163 L.Ed.2d 990. On remand, the District Court granted WRTL summary judgment, holding §203 unconstitutional as applied to the three ads. The court first found that adjudication was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its "functional equivalent" under McConnell, and held that no compelling interest justified BCRA's regulation of such ads.


The judgment is affirmed.

466 F.Supp.2d 195, affirmed.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding that the Court has jurisdiction to decide these cases. The FEC argues that the cases are moot because the 2004 election has passed and WRTL neither asserts a continuing interest in running its ads nor identifies any reason to believe that a significant dispute over Senate filibusters of judicial nominees will occur in the foreseeable future. These cases, however, fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. That exception applies where "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again," Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43. Both circumstances are present here. First, it would be unreasonable to expect that WRTL could have obtained complete judicial review of its claims in time to air its ads during the BCRA blackout periods. Indeed, two BCRA blackout periods have passed during the pendency of this action. Second, there exists a reasonable expectation that the same "controversy" involving the same party will recur: WRTL has credibly claimed that it plans to run materially similar targeted ads during future blackout periods, and there is no reason to believe that the FEC will refrain from prosecuting future BCRA violations. Pp. 461-464.

THE CHIEF JUSTICE, joined by Justice ALITO, concluded that BCRA §203 is unconstitutional as applied to the ads at issue in these cases. Pp. 464-476.

1. The speech at issue is not the "functional equivalent" of express campaign speech. Pp. 2663 - 2670.

(a) Appellants are wrong in arguing that WRTL has the burden of demonstrating that §203 is unconstitutional. Because §203 burdens

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political speech, it is subject to strict scrutiny, see, e.g., McConnell, supra, at 205, 124 S.Ct. 619, under which the Government must prove that applying BCRA to WRTL's ads furthers a compelling governmental interest and is narrowly tailored to achieve that interest, see First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 55 L.Ed.2d 707. Given that McConnell, supra, at 206, 124 S.Ct. 619, already ruled [127 S.Ct. 2655] that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent, the FEC's burden is not onerous insofar as these ads fit this description. Pp.464-465.

(b) Contrary to the FEC's contention, McConnell, 540 U.S. at 205-206, 124 S.Ct. 619, did not establish an intent-and-effect test for determining if a particular ad is the functional equivalent of express advocacy. Indeed, McConnelldid not adopt any test for future as-applied challenges, but simply grounded its analysis in the evidentiary record, which included two key studies that separated ads based on whether they were intended to, or had the effect of, supporting candidates for federal office. Id., at 308-309. More importantly, Buckley v. Valeo, 424 U.S. 1, 14, 43-44, 96 S.Ct. 612, 46 L.Ed.2d 659, rejected an intent-and-effect test for distinguishing between discussions of issues and candidates, and McConnell did not purport to overrule Buckley on this point--or even address what Buckleyhad to say on the subject. Pp. 465-469.

(c) Because WRTL's ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy, and there-fore fall outside McConnell's scope. To safeguard freedom of speech on public issues, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the communication's substance rather than on amorphous considerations of intent and effect. See Buckley, supra, at 43-44, 96 S.Ct. 612. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148. and it must eschew "the open-ended rough-and-tumble of factors," which "invit[es] complex argument in a trial court and a virtually inevitable appeal." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547, 115 S.Ct. 1043, 130 L.Ed.2d 1024. In short, it must give the benefit of any doubt to protecting rather than stifling speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 11 L.Ed.2d 686. In light of these considerations, a court should find that 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. WRTL's three ads are plainly not the functional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad: They focus and take a position on a legislative issue and exhort the public to adopt that position and to contact public officials with respect to the matter. Second, their content lacks indicia of express

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advocacy: They do not mention an election, candidacy, political party, or challenger; and they take no position on a candidate's character, qualifications, or fitness for office. Pp. 469-476.

2. Because WRTL's ads are not express advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL's speech, BCRA §203 is unconstitutional as applied to the ads. The section can be constitutionally applied only if it is narrowly tailored to further a compelling interest. E.g., McConnell, supra, at 205, 124 S.Ct. 619. None of the interests that might justify regulating WRTL's ads are sufficiently compelling. Although the Court has long recognized "the governmental interest in preventing corruption and the appearance of corruption" in election campaigns, Buckley, 424 U.S. at 45, 96 S.Ct. 612, it has invoked this interest as a reason for upholding contribution limits, [127 S.Ct. 2656] id., at 26-27, 96 S.Ct. 612, and suggested that it might also justify limits on electioneering expenditures posing the same dangers as large contributions, id., at 45, 96 S.Ct. 612. McConnell arguably applied this interest to ads that were the "functional equivalent" of express advocacy. See 540 U.S. at 204-206, 124 S.Ct. 619....

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