Wis. Right to Life, Inc. v. Fed. Election Comm'n, 546 U.S. 410 (2006)

WISCONSIN RIGHT TO LIFE, INC. v. FEDERAL ELECTION COMMISSION

appeal from the united states district court for the district of columbia

No. 04–1581. Argued January 17, 2006—Decided January 23, 2006

Appellant Wisconsin Right to Life, Inc. (WRTL), sought a judgment declar ing § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) uncon stitutional as applied to broadcast advertisements that it intended to run during the 2004 election, arguing that BCRA cannot be constitutionally applied to its particular electioneering communications. In dismissing WRTL’s complaint, the District Court read a footnote in McConnell v. Federal Election Comm’n, 540 U. S. 93, 190, n. 73, as foreclosing any “as applied” challenges to the prohibition on electioneering communications. Held: WRTL’s as-applied challenge is not foreclosed by McConnell. The

District Court misinterpreted the McConnell footnote, which merely notes that because this Court found BCRA’s primary definition of “elec tioneering communication” facially valid when used with regard to BCRA’s disclosure and funding requirements, it was unnecessary to con sider the constitutionality of the backup definition Congress provided. The Court did not purport to resolve future as-applied challenges. Contrary to the Federal Election Commission’s argument, it is not clear that the District Court’s dismissal also rested on an alternative ground. Vacated and remanded.

James Bopp, Jr., argued the cause for appellant. With him on the briefs were Richard E. Coleson and M. Miller Baker.

Solicitor General Clement argued the cause for appellee. With him on the brief were Deputy Solicitor General Garre, Malcolm L. Stewart, Lawrence H. Norton, Richard B. Bader, David Kolker, and Harry J. Summers.

Per Curiam.

The Bipartisan Campaign Reform Act of 2002 (BCRA), § 203, as amended, 116 Stat. 91, prohibits corporations from using their general treasury funds to pay for any “election eering communications.” 2 U. S. C. § 441b(b)(2) (2000 ed., Supp. III). BCRA § 201 defines “electioneering communica tions” as any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is broad cast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office. 2 U. S. C. § 434(f)(3) (2000 ed., Supp. III). Appellant Wisconsin Right to Life, Inc. (WRTL), brought this action against the Federal Election Commission (FEC), seeking a judgment declaring BCRA un constitutional as applied to several broadcast advertisements that it intended to run during the 2004 election. WRTL also sought a preliminary injunction barring the FEC from en forcing BCRA against those advertisements. WRTL does not dispute that its advertisements are covered by BCRA’s definition of prohibited electioneering communications. In stead, it contends that BCRA cannot be constitutionally applied to its particular communications because they consti tute “grassroots lobbying advertisements.” Brief for Ap pellee 35 (internal quotation marks omitted). Although the FEC has statutory authority to exempt by regulation cer tain communications from BCRA’s prohibition on election eering communications, § 434(f)(3)(B)(iv), at this point, it has not done so for the types of advertisements at issue here.

The three-judge District Court denied the motion for a preliminary injunction and subsequently dismissed WRTL’s

Briefs of amici curiae urging affirmance were filed for AARP et al. by Daniel R. Ortiz; for Douglas L. Bailey by Randy L. Dryer; for Frances R. Hill by J. Gerald Hebert; for Senator John McCain et al. by Bradley S. Phillips, Seth P. Waxman, Randolph D. Moss, Roger M. Witten, Fred Wertheimer, Donald J. Simon, Alan Morrison, Charles G. Curtis, Jr., Trevor Potter, Paul Ryan, and Scott L. Nelson; and for Norman Ornstein et al. by H. Christopher Bartolomucci.

complaint in an unpublished opinion. We noted probable jurisdiction, 545 U. S. 1164 (2005). Appellant asks us to re verse the judgment of the District Court because that court incorrectly read a footnote in our opinion in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), as foreclosing any “as-applied” challenges to the prohibition on electioneer ing communications. We agree with WRTL that the Dis trict Court misinterpreted the relevance of our “uphold[ing] all applications of the primary definition” of election eering communications. Id., at 190, n. 73. Contrary to the understanding of the District Court, that footnote merely notes that because we found BCRA’s primary definition of “electioneering communication” facially valid when used with regard to BCRA’s disclosure and funding require ments, it was unnecessary to consider the constitutionality of the backup definition Congress provided. Ibid. In up holding § 203 against a facial challenge, we did not purport to resolve future as-applied challenges.

The FEC argues that the District Court also rested its decision on the alternative ground that the facts of this case “suggest that WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling in terest in regulating.” No. 04–1260 (DC, Aug. 17, 2004), App. to Juris. Statement 8a. It is not clear to us, however, that the District Court intended its opinion to rest on this ground. For one thing, the court used the word “may.” For another, its separate opinion dismissing WRTL’s challenge with prej udice characterized its previous opinion as holding that “WRTL’s ‘as-applied’ challenge to BCRA is foreclosed by the Supreme Court’s decision in McConnell.” Id., at 3a. Given this ambiguity, we cannot say with certainty that the Dis trict Court’s dismissal was based on this alternative ground.

We therefore vacate the judgment and remand the case for the District Court to consider the merits of WRTL’s as applied challenge in the first instance.