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Federal Election Commission v. Wisconsin Right to Life, Inc.

Supreme Court of the United States · 2007 · Constitutional Law

Constitutional LawFirst AmendmentCampaign FinancePolitical SpeechBCRA § 203electioneering communicationstrict scrutinyissue advocacy

Facts

BCRA § 203 made it a crime for corporations to use general treasury funds to pay for certain broadcast ads that referred to a federal candidate and aired shortly before an election. WRTL, a nonprofit ideological advocacy corporation, prepared radio and television ads urging listeners to contact Senators Feingold and Kohl to oppose the filibuster of judicial nominees and planned to fund the ads with treasury funds during the 2004 blackout period. WRTL conceded the ads fell within BCRA's definition of "electioneering communication," but claimed the First Amendment protected the ads because they were genuine issue advocacy rather than the functional equivalent of express advocacy. WRTL did not air the ads during the blackout period after the District Court initially denied preliminary relief, but after remand the District Court held § 203 unconstitutional as applied to those ads.

Issue

Whether BCRA § 203 may constitutionally be applied to prohibit WRTL from using corporate treasury funds to broadcast these ads during the blackout period. More specifically, whether the ads were the functional equivalent of express advocacy or instead genuine issue ads protected by the First Amendment.

Rule

Because BCRA § 203 burdens political speech, its application is subject to strict scrutiny. For an as-applied challenge, an ad is the functional equivalent of express advocacy only if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate; if not, the government must show a compelling interest narrowly tailored to justify banning the speech.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lakefront Voters Forum, a nonprofit corporation in Milwaukee, sought to air a television ad naming a U.S. senator during the 30 days before a primary. After a district court denied emergency relief, the group did not air the ad, and by the time the appeal was ready the election had passed. The group alleges it regularly runs materially similar blackout-period ads on emerging legislative issues and plans to do so again.

Is the case most likely moot?

Explanation. The controversy falls within the exception for disputes capable of repetition yet evading review when (1) the challenged action is too short in duration to be fully litigated before expiration and (2) there is a reasonable expectation the same complaining party will face the same action again. The majority rejected any demand for repetition of every legally relevant detail; materially similar future ads sufficed. (Derived from Federal Election Commission v. Wisconsin Right to Life, Inc. (2007).)