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Wisconsin Right to Life v. FEC

January 25, 2006

The United States Supreme Court issued a unanimous, if abbreviated, procedural opinion on Monday that has given some measure of hope to critics of the Bipartisan Campaign Reform Act of 2002 ("BCRA") and its limits on electioneering communications. In Wisconsin Right to Life v. FEC, No. 04-1581 (Jan. 23, 2006), the Supreme Court opened the door to an "as-applied" challenge to those limits, which Congress designed to eliminate certain issue advocacy communications broadcast during the weeks before a federal election. In short, BCRA’s limits on "electioneering communications"—that is, television or radio ads mentioning the name or likeness of federal candidate 30 days before a primary or 60 days before a general election—prohibit corporations and labor organizations from purchasing such communications with general (non-PAC) funds. 2 U.S.C. § 434(f)(3).

In Wisconsin Right to Life v. FEC, the Supreme Court explained that although it upheld the constitutionality of BCRA’s limits on electioneering communications in McConnell v. FEC, 540 U.S. 93 (2003), it "did not purport to resolve future as-applied challenges" to those limits. No. 04-1581, slip op. at 2. Thus, the Court remanded the case back to a panel of three judges in Washington, D.C., for a ruling on whether the limits are constitutional under the circumstances of that case. Implicitly, the Court suggested that the restrictions might not apply to certain political ads. Wisconsin Right to Life, for example, argues that the limits on electioneering communications unconstitutionally prohibited the organization from expressing its views on judicial appointees in the weeks before the 2004 elections through advertisements that mentioned, but did not endorse or attack, a federal candidate. Instead, the advertisements would have urged the public to contact Senator Feingold, who was up for reelection, to tell him not to support a filibuster of President Bush’s judicial nominees.

Attorneys for WRTL have already moved the three-judge panel to expedite its review, but a definitive ruling from the Supreme Court in this matter is not likely in the near future. Instead, this case is likely to come before the Supreme Court for a second time when the makeup and politics of the Court will be different. In the short term, however, Monday’s opinion leaves BCRA unchanged for the 2006 election cycle, and, of course, no similar legislation has been enacted in Wisconsin.

We do expect the Court to issue another opinion on campaign finance issues this term in Randall v. Sorrell (No. 04-1528), a case challenging Vermont’s state contribution limits, limits on candidate expenditures, and strict rules regarding independent and coordinated expenditures. We will continue to monitor the activity in these cases and keep you apprised of any significant developments. In the meantime, do not hesitate to contact us with any questions or concerns.

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