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.