The Constitutionality of Regulating Political Advertisements: An Analysis of Federal Election Commission v. Wisconsin Right to Life, Inc.

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

On June 25, 2007, in a 5-4 decision, the Supreme Court in FEC v. Wisconsin Right to Life, Inc.
(WRTL II) affirmed a lower court ruling, finding that a provision of the Bipartisan Campaign
Reform Act of 2002 (BCRA), prohibiting corporate or labor union treasury funds from being
spent on advertisements broadcast within 30 days of a primary or 60 days of a general election,
was unconstitutional as applied to ads that Wisconsin Right to Life, Inc. sought to run. While not
expressly overruling its 2003 ruling in McConnell v. FEC, which upheld the BCRA provision
against a First Amendment facial challenge, the Court limited the law’s application. Specifically,
it ruled that advertisements that may reasonably be interpreted as something other than as an
appeal to vote for or against a specific candidate are not the functional equivalent of express
advocacy and, therefore, cannot be regulated.

Background and Case History...................................................................................................1
Supreme Court Decision...........................................................................................................2
Conclusion ................................................................................................................................ 5
Author Contact Information............................................................................................................5

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)¹ prohibits corporate or
labor union treasury funds from being spent for “electioneering communications.” BCRA defines
“electioneering communication” as any broadcast, cable, or satellite transmission made within 30
days of a primary or 60 days of a general election (sometimes referred to as the “blackout ²
periods”) that refers to a candidate for federal office and is targeted to the relevant electorate. In ³
a 2003 decision, McConnell v. Federal Election Commission (FEC), the U.S. Supreme Court
upheld Section 203 of BCRA against a First Amendment facial challenge even though the
provision regulates not only campaign speech or “express advocacy,” (speech that expressly
advocates the election or defeat of a clearly identified candidate), but also “issue advocacy,”
(speech that discusses public policy issues, while also mentioning a candidate). Specifically, the
Court determined that the speech regulated by Section 203 was the “functional equivalent” of ⁴
express advocacy.
On July 26, 2004, Wisconsin Right to Life (WRTL), a corporation that accepts contributions from
other corporations, began broadcasting advertisements exhorting viewers to contact Senators
Feingold and Kohl to urge them to oppose a Senate filibuster to delay and block consideration of
federal judicial nominations. WRTL planned to run the ads throughout August 2004 and to
finance them with its general treasury funds, thereby running afoul of Section 203, as such ads
would have been broadcast within the 30-day period prior to the September 14, 2004, primary.
Anticipating that the ads would be illegal “electioneering communications,” but believing that
they nevertheless had a First Amendment right to broadcast them, WRTL filed suit against the
FEC, seeking declaratory and injunctive relief and alleging that Section 203’s prohibition was
unconstitutional as applied to the ads and any future ads that they might plan to run.
Just prior to the BCRA 30-day blackout period, a three-judge district court denied a preliminary
injunction, finding that McConnell v. FEC left no room for such an “as-applied” challenge.
Accordingly, WRTL did not broadcast its ads during the blackout period, and the district court
subsequently dismissed the complaint in an unpublished opinion. On appeal, in Wisconsin Right ⁵
to Life, Inc. v. FEC (WRTL I), the Supreme Court vacated the lower court judgment, finding that
by upholding Section 203 against a facial challenge in McConnell, “we did not purport to resolve ⁶
future as-applied challenges.” On remand, after permitting four Members of Congress to
intervene as defendants, the three-judge district court granted WRTL summary judgment, ⁷
determining that Section 203 was unconstitutional as applied to WRTL’s ads. It concluded that
the ads were genuine issue ads, not express advocacy or its “functional equivalent” under ⁸
McConnell, and held that no compelling interest justified their regulation. The FEC appealed.

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In a 5 to 4 decision, FEC v. Wisconsin Right to Life, Inc. (WRTL II),⁹ the Supreme Court affirmed
the lower court ruling, finding that Section 203 of BCRA was unconstitutional as applied to the
WRTL ads, and that they should have been permissible to broadcast. In a plurality opinion,
written by Chief Justice Roberts, joined by Justice Alito—Justice Scalia wrote a separate ¹⁰
concurrence, joined by Justices Kennedy and Thomas—the Court announced that “[b]ecause
WRTL’s ads may reasonably be interpreted as something other than as an appeal to vote for or
against a specific candidate, we hold they are not the functional equivalent of express advocacy, ¹¹
and therefore, fall outside the scope of McConnell’s holding.” In determining the threshold
question, as required by McConnell, of whether the ads were the “functional equivalent” of
speech expressly advocating the election or defeat of a candidate for federal office or genuine
issue advocacy, the Court observed that it had long recognized that the practical distinction
between campaign advocacy and issue advocacy can often dissolve because candidates,
particularly incumbents, “are intimately tied to public issues involving legislative proposals and ¹²
governmental actions.” Nonetheless, the Court stated, its jurisprudence in this area requires it to
make such a distinction, and “[i]n drawing that line, the First Amendment requires ... err[ing] on ¹³
the side of protecting political speech rather than suppressing it.”
In WRTL II, the FEC appealed the lower court ruling arguing that in view of the fact that
McConnell had already held that Section 203 was facially valid, WRTL—and not the
government—should bear the burden of demonstrating that BCRA is unconstitutional as applied ¹⁴
to its ads. Rejecting the FEC’s contention, the Court pointed out that Section 203 burdens ¹⁵
political speech and is therefore subject to strict scrutiny. Under strict scrutiny, the Court
determined that the FEC—not the regulated community—had the burden of proving that the
application of Section 203 to WRTL’s ads furthered a compelling interest, and was narrowly ¹⁶
tailored to achieve that interest. As it had already ruled in McConnell that Section 203 “survives
strict scrutiny to the extent it regulates express advocacy or its functional equivalent,” the Court
found that in order to prevail, the FEC needed to show that the WRTL ads it sought to regulate

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fell within that category.¹⁷ On the other hand, if the speech that the FEC sought to regulate is not
express advocacy or its functional equivalent, the Court cautioned that the FEC’s task is “more
formidable” because it must demonstrate that banning such ads during the blackout periods is
narrowly tailored to serve a compelling governmental interest, a conclusion that no precedent has ¹⁸
reached.
In response to the FEC’s and the dissent’s¹⁹ argument that McConnell established a test for
determining whether an ad is the functional equivalent of express advocacy, that is, “whether the
ad is intended to influence elections or has that effect,” the Court disagreed, finding that it had not ²⁰
adopted any type of test as the standard for future as-applied challenges. Instead, the Court
found that its analysis in McConnell was grounded in the evidentiary record, particularly studies
showing that the BCRA definition of “Electioneering Communications accurately captures ads ²¹
having the purpose or effect of supporting candidates for election to office.” Hence, when the
McConnell Court made its assessment that the plaintiffs in that case had not sufficiently proven
that Section 203 was overbroad and could not be enforced in any circumstance, it did not adopt a
particular test for determining what constituted the “functional equivalent” of express advocacy.
Indeed, the Court held, the fact that in McConnell it looked to such intent and effect “neither
compels nor warrants accepting that same standard as the constitutional test for separating, in an
as-applied challenge, political speech protected under the First Amendment from that which may ²²
be banned.”
Accordingly, the Court turned to establishing the proper standard for an as-applied challenge to
Section 203 of BCRA, finding that such a standard “must be objective, focusing on the substance
of the communication rather than amorphous considerations of intent and effect,” involving
“minimal if any discovery” so that parties can resolve disputes “quickly without chilling speech
through the threat of burdensome litigation,” and eschewing “‘the open-ended rough-and-tumble ²³
of factors,’ which ‘invit[es] complex argument in a trial court and a virtually inevitable appeal.’”
In summation, the Court announced that the standard “must give the benefit of any doubt to ²⁴
protecting rather than stifling speech.” Taking such considerations into account, the Court held
that

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¹⁸^Id^.
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Moreover, the Court cautioned, contextual factors “should seldom play a significant role in the
inquiry.” Although courts are not required to ignore basic background information that provides
relevant contextual information about an advertisement—such as whether the ad describes a
legislative issue that is under legislative consideration—the Court found that such background ²⁶
information “should not become an excuse for discovery.”
In applying the standard it developed for as-applied challenges to the ads that WRTL sought to
broadcast, the Court determined that the FEC had failed to demonstrate that such ads constituted
the functional equivalent of express advocacy because they could reasonably be interpreted as
something other than a vote for or against a candidate. The Court’s established jurisprudence has
recognized the governmental interest in preventing corruption and the appearance of corruption in
elections, which has been invoked in order to justify contribution limits and, in certain
circumstances, spending limits on electioneering expenditures that pose the risk of quid pro quo
corruption. In McConnell, the Court noted, it had applied this interest in justifying the regulation
of express advocacy and its functional equivalent, but in order to justify regulating WRTL’s ads,
“this interest must be stretched yet another step to ads that are not the functional equivalent of ²⁷
express advocacy.” In strongly worded opposition to extending the application of this
governmental interest yet again, the Court announced, “[e]nough is enough.” The WRTL ads are
not equivalent to contributions—they are political speech—and the governmental interest in ²⁸
avoiding quid pro quo corruption cannot be used to justify their regulation. The Court also
announced that the discussion of issues cannot be suppressed simply because the issues may also
be relevant to an election: “Where the First Amendment is implicated, the tie goes to the speaker, ²⁹
not the censor.”
In an equally strongly worded dissent, Justice Souter—with whom Justices Stevens, Ginsburg,
and Breyer joined—argued that WRTL II overruled that portion of McConnell v. FEC upholding
Section 203 of BCRA against a facial constitutional challenge. Among other points in opposition
to the Court’s ruling, the dissent observed that Section 203 was less restrictive than the Court’s
opinion would indicate in that it did not effect a complete ban on corporate and labor union funds
being spent on electioneering communications. Indeed, the dissent remarked, quoting McConnell,
“‘corporations and unions may finance genuine issue ads [in the runup period] by simply
avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad ³⁰
from a segregated [PAC] fund.’” Moreover, the dissent added, a nonprofit corporation,

²⁵^Id^.
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regardless of its source of funding, may communicate its criticism or support of a particular
candidate within days of an election by speaking via a newspaper ad or on a website and, in
accordance with earlier Court precedent, may use its general treasury funds to pay for
electioneering communications so long as it does not finance such ads with funding from business ³¹
corporations and unions. Of particular significance, the dissent cautioned that it is possible,
based on the reasoning of the Court’s ruling, that even advertisements containing express words ³²
of advocacy—known as “magic words”—could now escape regulation under Section 203.
While the ultimate impact and aftermath of the Supreme Court’s decision in WRTL II remains to ³³
be seen, application of the federal law prohibiting corporate and labor union treasury funds from
being spent on ads that are broadcast 30 days before a primary and 60 days before a general
election has been limited. As a result of this ruling, only ads that are susceptible of no reasonable
interpretation other than an exhortation to vote for or against a candidate can be regulated. While
the Court’s ruling was careful not to overrule explicitly its earlier upholding of this portion of the
Bipartisan Campaign Reform Act (BCRA) in its 2003 decision, McConnell v. FEC, WRTL II
seems to indicate that the FEC’s ability to regulate the “electioneering communication” ban has ³⁴
nonetheless been circumscribed.
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^http:^//w^w^w^.s^c^o^tus^b^log^.^c^o^m^/^m^ovable^t^y^p^e^/^a^r^c^h^iv^e^s^/200^7/^06/^c^o^m^m^e^nta^r^y^_^the^_4.h^t^m^l^la^s^t^vⁱ^s^ite^{d J}^une^28,²⁰⁰⁷^.