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

551 U.S. 449

Case Year: 2007

Case Ruling: 5-4, Affirmed

Opinion Justice: Kennedy

FACTS

On July 26, 2004, Wisconsin Right to Life, Inc. (WRTL) began broadcasting three advertisements declaring that a group of U.S. senators was filibustering to delay or block confirmation of federal judicial nominees. The advertisements urged voters to contact Wisconsin Senators Feingold and Kohl asking them to oppose the delaying tactics. WRTL intended to run the advertisements throughout August and finance them with its general treasury funds. WRTL officials, however, realized that after August 15, 2004, they would be within the 30-day period before a primary election during which the ads would be considered "electioneering communication" prohibited by section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA). The statute made it a crime to engaged in "express advocacy" for or against a candidate for office or "issue advocacy" that was the functional equivalent. Section 203 had been found constitutional on its face by the Supreme Court in McConnell v. Federal Election Commission (2003). WRTL believed, however, that the BCRA as appliedto its ads would constitute a violation of the First Amendment. WRTL sued the Federal Election Commission (FEC) to have the enforcement of BCRA declared unconstitutional as applied to its advertisements.

A three-judge district court ruled that the advertisements in question were genuine issue ads and not express advocacy or the functional equivalent of express advocacy. Applying the BCRA to them would be unconstitutional.

The FEC appealed.

After rejecting procedural arguments that would have blocked the Supreme Court from considering the case, the Court turned to the merits.

 

CHIEF JUSTICE ROBERTS ANNOUNCED THE JUDGMENT OF THE COURT...AND AN OPINION ... WHICH JUSTICE ALITO JOINS.

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) makes it a federal crime for any corporation to broadcast, shortly before an election, any communication that names a federal candidate for elected office and is targeted to the electorate. In McConnell v. Federal Election Comm'n (2003), this Court considered whether §203 was facially overbroad under the First Amendment because it captured within its reach not only campaign speech, or "express advocacy," but also speech about public issues more generally, or "issue advocacy," that mentions a candidate for federal office. The Court concluded that there was no overbreadth concern to the extent the speech in question was the "functional equivalent" of express campaign speech. On the other hand, the Court "assume[d]" that the interests it had found to "justify the regulation of campaign speech might not apply to the regulation of genuine issue ads." The Court nonetheless determined that §203 was not facially overbroad. Even assuming §203 "inhibit[ed] some constitutionally protected corporate and union speech," the Court concluded that those challenging the law on its face had failed to carry their "heavy burden" of establishing that all enforcement of the law should therefore be prohibited....

We now confront ...an as-applied challenge. Resolving it requires us first to determine whether the speech at issue is the "functional equivalent" of speech expressly advocating the election or defeat of a candidate for federal office, or instead a "genuine issue a[d]." ...

In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the "functional equivalent" of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases. Prior to BCRA, corporations were free under federal law to use independent expenditures to engage in political speech so long as that speech did not expressly advocate the election or defeat of a clearly identified federal candidate.

BCRA significantly cut back on corporations' ability to engage in political speech. BCRA §203, at issue in [this case], makes it a crime for any labor union or incorporated entity--whether the United Steelworkers, the American Civil Liberties Union, or General Motors--to use its general treasury funds to pay for any "electioneering communication." BCRA's definition of "electioneering communication" is clear and expansive. It encompasses any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is aired 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....

WRTL rightly concedes that its ads are prohibited by BCRA §203. Each ad clearly identifies Senator Feingold, who was running (unopposed) in the Wisconsin Democratic primary on September 14, 2004, and each ad would have been "targeted to the relevant electorate" during the BCRA blackout period.... The only question, then, is whether it is consistent with the First Amendment for BCRA §203 to prohibit WRTL from running these three ads. ...Because BCRA §203 burdens political speech, it is subject to strict scrutiny. See McConnell. Under strict scrutiny, the Government must prove that applying BCRA to WRTL's ads furthers a compelling interest and is narrowly tailored to achieve that interest.

The strict scrutiny analysis is, of course, informed by our precedents. This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent. McConnell. So to the extent the ads in these cases fit this description, the FEC's burden is not onerous; all it need do is point to McConnell and explain why it applies here. If, on the other hand, WRTL's ads are not express advocacy or its equivalent, the Government's task is more formidable. It must then demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling interest. No precedent of this Court has yet reached that conclusion.

The FEC ... and the dissent below contend that McConnell already established the constitutional test for determining if an ad is the functional equivalent of express advocacy: whether the ad is intended to influence elections and has that effect....

WRTL and the District Court majority, on the other hand, claim that McConnell did not adopt any test as the standard for future as-applied challenges. We agree....

For the reasons regarded as sufficient in Buckley [ v. Valeo (1976)], we decline to adopt a test for as-applied challenges turning on the speaker's intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also "reflec[t] our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'" Buckley. A test turning on the intent of the speaker does not remotely fit the bill.

Far from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of §203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard "blankets with uncertainty whatever may be said," and "offers no security for free discussion." Buckley.... A test focused on the speaker's intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. "First Amendment freedoms need breathing space to survive." NAACP v. Button (1963). An intent test provides none....

"The freedom of speech ... guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment."

[ First National Bank of Boston v. ] Bellotti [1978]. To safeguard this liberty, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect. 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 (2003). 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. (1995). In short, it must give the benefit of any doubt to protecting rather than stifling speech.

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. Under this test, WRTL's three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate's character, qualifications, or fitness for office.

Despite these characteristics, appellants assert that the content of WRTL's ads alone betrays their electioneering nature. Indeed, the FEC suggests that any ad covered by §203 that includes "an appeal to citizens to contact their elected representative" is the "functional equivalent" of an ad saying defeat or elect that candidate. We do not agree.... Issue advocacy conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions.

The FEC [tries] to turn this difference to [its] advantage, citing McConnell's statements "that the most effective campaign ads, like the most effective commercials for products . . . avoid the [ Buckley] magic words [expressly advocating the election or defeat of a candidate]" and that advertisers "would seldom choose to use such words even if permitted." ... Rephrased a bit, the argument perversely maintains that the less an issue ad resembles express advocacy, the more likely it is to be the functional equivalent of express advocacy. This "heads I win, tails you lose" approach cannot be correct. It would effectively eliminate First Amendment protection for genuine issue ads... Under appellants' view, there can be no such thing as a genuine issue ad during the blackout period--it is simply a very effective electioneering ad....

...Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.... Because 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, and therefore fall outside the scope of McConnell's holding.

BCRA §203 can be constitutionally applied to WRTL's ads only if it is narrowly tailored to further a compelling interest.McConnell. This Court has never recognized a compelling interest in regulating ads, like WRTL's, that are neither express advocacy nor its functional equivalent. The District Court below considered interests that might justify regulating WRTL's ads here, and found none sufficiently compelling. We reach the same conclusion.

At the outset, we reject the contention that issue advocacy may be regulated because express election advocacy may be, and "the speech involved in so-called issue advocacy is [not] any more core political speech than are words of express advocacy." McConnell. This greater-includes-the-lesser approach is not how strict scrutiny works.... A court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech. That a compelling interest justifies restrictions on express advocacy tells us little about whether a compelling interest justifies restrictions on issue advocacy; the McConnell Court itself made just that point. Such a greater-includes-the-lesser argument would dictate that virtually all corporate speech can be suppressed, since few kinds of speech can lay claim to being as central to the First Amendment as campaign speech. That conclusion is clearly foreclosed by our precedent. See, e.g., Bellotti....

[This case is] about political speech. The importance of the [case] to speech and debate on public policy issues is reflected in the number of diverse organizations that have joined in supporting WRTL before this Court: the American Civil Liberties Union, the National Rifle Association, the American Federation of Labor and Congress of Industrial Organizations, the Chamber of Commerce of the United States of America, Focus on the Family, the Coalition of Public Charities, the Cato Institute, and many others.

Yet, as is often the case in this Court's First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: "Congress shall make no law . . . abridging the freedom of speech." The Framers' actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech--between what is protected and what the Government may ban--it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that determination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban--the issue we do have to decide--we give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech" demands at least that.

The judgment of the United States District Court for the District of Columbia is affirmed.

It is so ordered.

JUSTICE SCALIA, WITH WHOM JUSTICE KENNEDY AND JUSTICE THOMAS JOIN, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.

Today's [case presents] the question of what sort of showing is necessary [to distinguish genuine issue advertisements from express advocacy].... [I]t is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced inMcConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion....

...The District Court ... held that §203 is unconstitutional as applied to the three ads at issue. The Court today affirms the judgment of the District Court. While I agree with that result, I disagree with the principal opinion's reasons....

The question is whether WRTL meets the standard for prevailing in an as-applied challenge to BCRA §203. Answering that question obviously requires the Court to articulate the standard. The most obvious one, and the one suggested by the Federal Election Commission (FEC)..., is the standard set forth in McConnell itself: whether the advertisement is the "functional equivalent of express advocacy." ... The District Court instead articulated a five-factor test that looks to whether the ad under review "(1) describes a legislative issue that is either currently the subject of legislative scrutiny or likely to be the subject of such scrutiny in the near future; (2) refers to the prior voting record or current position of the named candidate on the issue described; (3) exhorts the listener to do anything other than contact the candidate about the described issue; (4) promotes, attacks, supports, or opposes the named candidate; and (5) refers to the upcoming election, candidacy, and/or political party of the candidate." The backup definition of "electioneering communications" contained in BCRA itself offers another possibility. It covers any communication that "promotes or supports a candidate for that office ... (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." And the principal opinion in this case offers a variation of its own (one bearing a strong likeness to BCRA's backup definition): whether "the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

There is a fundamental and inescapable problem with all of these various tests. Each of them (and every other test that is tied to the public perception, or a court's perception, of the import, the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segment of society to which §203 applies. Consider the application of these tests to WRTL's ads: There is not the slightest doubt that these ads had an issue-advocacy component. They explicitly urged lobbying on the pending legislative issue of appellate-judge filibusters. The question before us is whether something about them caused them to be the "functional equivalent" of express advocacy, and thus constitutionally subject to BCRA's criminal penalty. Does any of the tests suggested above answer this question with the degree of clarity necessary to avoid the chilling of fundamental political discourse? I think not.

The "functional equivalent" test does nothing more than restate the question (and make clear that the electoral advocacy need not be express). The test which asks how the ad's audience "would reasonably understand the ad" provides ample room for debate and uncertainty. The District Court's five-factor test does not (and could not possibly) specify how much weight is to be given to each factor--and includes the inherently vague factor of whether the ad "promotes, attacks, supports, or opposes the named candidate." The tests which look to whether the ad is "susceptible of no plausible meaning" or "susceptible of no reasonable interpretation" other than an exhortation to vote for or against a specific candidate seem tighter. They ultimately depend, however, upon a judicial judgment (or is it--worse still--a jury judgment?) concerning "reasonable" or "plausible" import that is far from certain, that rests upon consideration of innumerable surrounding circumstances which the speaker may not even be aware of, and that lends itself to distortion by reason of the decisionmaker's subjective evaluation of the importance or unimportance of the challenged speech. In this critical area of political discourse, the speaker cannot be compelled to risk felony prosecution with no more assurance of impunity than his prediction that what he says will be found susceptible of some "reasonable interpretation other than as an appeal to vote for or against a specific candidate." Under these circumstances, "[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech--harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas."Virginia v. Hicks (2003).... What, then, is to be done?...

Perhaps overruling this one part of McConnell with respect to one part of BCRA would not "ai[d] the legislative effort to combat real or apparent corruption." But the First Amendment was not designed to facilitate legislation, even wise legislation. Indeed, the assessment of former House Minority Leader Richard Gephardt, a proponent of campaign-finance reform, may well be correct. He said that " '[w]hat we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy,'' " and " '[y]ou can't have both.' " If he was wrong, however, and the two values can coexist, it is pretty clear which side of the equation this institution is primarily responsible for. It is perhaps our most important constitutional task to assure freedom of political speech. And when a statute creates a regime as unworkable and unconstitutional as today's effort at as-applied review proves §203 to be, it is our responsibility to decline enforcement....

I would overrule that part of the Court's decision in McConnell upholding §203 of BCRA. Accordingly, I ... concur only in the judgment.

JUSTICE SOUTER, WITH WHOM JUSICE STEVENS, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN, DISSENTING.

An issue ad is an advertisement on a political subject urging the reader or listener to let a politician know what he thinks, but containing no magic words telling the recipient to vote for or against anyone. By the 1996 election cycle, between $135 and $150 million was being devoted to these ads, and because they had no magic words, they failed to trigger the limitation on union or corporate expenditures for electioneering. Experience showed, however, just what we foresaw in Buckley, that the line between "issue" broadcasts and outright electioneering was a patent fiction, as in the example of a television "issue ad" that ran during a Montana congressional race between Republican Rick Hill and Democrat Bill Yellowtail in 1996:

"Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But 'her nose was not broken.' He talks law and order ... but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments--then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values." McConnell.

There are no "magic words" of "express advocacy" in that statement, but no one could deny with a straight face that the message called for defeating Yellowtail.

There was nothing unusual about the Yellowtail issue ad in 1996, and an enquiry into campaign practices by the Senate Committee on Governmental Affairs found as a general matter that "the distinction between issue and express advocacy ... appeared to be meaningless in the 1996 elections."

Nor was it surprising that the Senate Committee heard testimony that "[w]ithout taming the vast sums flowing into issue ads, campaign finance reform--no matter how thoroughly it addresses ... perceived problems--will come to naught." ...

The congressional response was §203 of the Bipartisan Campaign Reform Act of 2002, which redefined prohibited "expenditure" so as to restrict corporations and unions from funding "electioneering communication[s]" out of their general treasuries. The new phrase "electioneering communication" was narrowly defined in BCRA's §201 as "any broadcast, cable, or satellite communication" that

"(I) refers to a clearly identified candidate for Federal office;

"(II) is made within--

"(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or

"(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and

"(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate."

In McConnell, we found this definition to be "easily understood and objectiv[e]," raising "none of the vagueness concerns that drove our analysis" of the statutory language at issue in Buckley ..., and we held that the resulting line separating regulated election speech from general political discourse does not, on its face, violate the First Amendment.....

We understood that Congress had a compelling interest in limiting this sort of electioneering by corporations and unions, for §203 exemplified a tradition of "repeatedly sustained legislation aimed at 'the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.' " Nor did we see any plausible claim of substantial overbreadth from incidentally prohibiting ads genuinely focused on issues rather than elections, given the limitation of "electioneering communication" by time, geographical coverage, and clear reference to candidate....

... Wisconsin Right to Life (WRTL) is a nonprofit corporation funded to a significant extent by contributions from other corporations. In 2004, WRTL accepted over $315,000 in corporate donations, and of its six general fund contributions of $50,000 or more between 2002 and 2005, three, including the largest (for $140,000), came from corporate donors.

WRTL also runs a PAC, funded by individual donations, which has been active over the years in making independent campaign expenditures, as in the previous two elections involving Senator Feingold. During the 1998 campaign, for example, WRTL's PAC spent $60,000 to oppose him....

Throughout the 2004 senatorial campaign, WRTL made no secret of its views about who should win the election and explicitly tied its position to the filibuster issue. Its PAC issued at least two press releases saying that its "Top Election Priorities" were to "Re-elect George W. Bush" and "Send Feingold Packing!" In one of these, the Chair of WRTL's PAC was quoted as saying, "We do not want Russ Feingold to continue to have the ability to thwart President Bush's judicial nominees." The Spring 2004 issue of the WRTL PAC's quarterly magazine ran an article headlined "Radically Pro-Abortion Feingold Must Go!", which reported that "Feingold has been active in his opposition to Bush's judicial nominees" and said that "the defeat of Feingold must be uppermost in the minds of Wisconsin's pro-life community in the 2004 elections."

It was under these circumstances that WRTL ran the three television and radio ads in question. The bills for them were not paid by WRTL's PAC, but out of the general treasury with its substantial proportion of corporate contributions; in fact, corporations earmarked more than $50,000 specifically to pay for the ads. Each one criticized an unnamed "group of Senators" for "using the filibuster delay tactic to block federal judicial nominees from a simple 'yes' or 'no' vote," and described the Senators' actions as "politics at work, causing gridlock and backing up some of our courts to a state of emergency." They exhorted viewers and listeners to "[c]ontact Senators Feingold and Kohl and tell them to oppose the filibuster," but instead of providing a phone number or e-mail address, they told the audience to go to BeFair.org, a website set up by WRTL. A visit to this website would erase any doubt a listener or viewer might have as to whether Senators Feingold and Kohl were part of the "group" condemned in the ads: it displayed a document that criticized the two Senators for voting to filibuster "16 out of 16 times" and accused them of "putting politics into the court system, creating gridlock, and costing taxpayers money."

WRTL's planned airing of the ads had no apparent relation to any Senate filibuster vote but was keyed to the timing of the senatorial election. WRTL began broadcasting the ads on July 26, 2004, four days after the Senate recessed for the summer, and although the filibuster controversy raged on through 2005, WRTL did not resume running the ads after the election. During the campaign period that the ads did cover, Senator Feingold's support of the filibusters was a prominent issue. His position was well known and his Republican opponents, who vocally opposed the filibusters, made the issue a major talking point in their campaigns against him.

In sum, any Wisconsin voter who paid attention would have known that Democratic Senator Feingold supported filibusters against Republican presidential judicial nominees, that the propriety of the filibusters was a major issue in the senatorial campaign, and that WRTL along with the Senator's Republican challengers opposed his reelection because of his position on filibusters. Any alert voters who heard or saw WRTL's ads would have understood that WRTL was telling them that the Senator's position on the filibusters should be grounds to vote against him.

Given these facts, it is beyond all reasonable debate that the ads are constitutionally subject to regulation underMcConnell....

... I respectfully dissent from this judgment today.