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

This case concerns an effort to obtain an exemption from the Bipartisan Campaign Reform Act of 2002 for radio ads aired by Wisconsin Right to Life during the 2004 election campaign of Senator Russ Feingold.

Published: June 25, 2007

This case concerns an effort to obtain an exemp­tion from the Bipar­tisan Campaign Reform Act of 2002 (BCRA) for radio ads aired by Wiscon­sin Right to Life (WRTL) during the 2004 elec­tion campaign of Senator Russ Fein­gold. The ads urged Wiscon­sin citizens to contact Senat­ors Fein­gold and Kohl and tell them to oppose the fili­buster that had preven­ted confirm­a­tion of some federal judi­cial nomin­ees. The ads were run while the Senate was in recess and could not vote on judi­cial nomin­ees, but they were not run once Senator Fein­gold won re-elec­tion and the fili­buster again became an issue. To avoid regu­la­tion under BCRA, which prohib­its corpor­ate fund­ing of broad­cast ads that mention a candid­ate in the pre-elec­tion period and target the candid­ates constitu­ents, WRTL stopped running its ads and instead filed an as-applied chal­lenge of BCRA. WRTL is a non-profit corpor­a­tion that accepts substan­tial funds from for-profit corpor­a­tions.

In 2005, the trial court ruled that BCRA does not allow as-applied chal­lenges, and WRTL appealed. The Supreme Court accep­ted the case, ruled that BCRA does indeed allow as-applied chal­lenges, and sent the case back to the trial court.

On remand, the trial court reversed course and gran­ted the exemp­tion on the grounds that the ads contained no words of elect­oral exhorta­tion. The ruling effect­ively re-estab­lishes the magic words test for elec­tion­eer­ing rejec­ted by Congress in BCRA and the Supreme Court in McCon­nell v. FEC (the case uphold­ing BCRA). The FEC appealed, and the case is now before the Supreme Court. Argu­ment is sched­uled for April, and a decision is expec­ted no later than July.

On Febru­ary 23, 2007, the Bren­nan Center submit­ted an amicus curiae brief in support of the FEC. The Amici, four former lead­ers of the Amer­ican Civil Liber­ties Union, hope to end the stra­tegic game being played by both sides. They seek to prevent proponents of corpor­ate-funded elec­tion­eer­ing from creat­ing a loop­hole in BCRA in the name of preserving consti­tu­tion­ally protec­ted issue speech and to stop oppon­ents of corpor­ate-funded elect­oral speech from over-regu­lat­ing genu­ine issue speech in the name of preserving BCRA. The Center’s amicus brief may be found here.

On June 25, 2007, the Supreme Court affirmed the District Court decision.  The Center’s analysis of the decision may be found here.