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

466 F. Supp. 2d 195, 2006 U.S. Dist. LEXIS 92289

• Court: District Court, District of Columbia
• Decided: December 21, 2006
• Docket: Civ.04-1260(DBS RWR RJL)
• Status: Published

Opinions

Opinion for the Court filed by District Judge LEON, in which Circuit Judge SENTELLE joins in full.

Dissenting opinion filed by District Judge ROBERTS.

LEON, District Judge.

Plaintiff, Wisconsin Right to Life, Inc. (‘WRTL” or “the Corporation”), brings this action against defendant, the Federal Election Commission (“FEC”), seeking a judgment declaring section 203 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub.L. No. 107-155, 116 Stat. 81,¹ unconstitutional as it applies to three broadcast advertisements WRTL intended to run within thirty days of Wisconsin’s 2004 federal primary and sixty days of the 2004 federal general election, as well as “materially similar ads” it “intends to run” in the future. (Am.Compl.1ffl 1, 13, 15, 16.)

Under BCRA’s prohibition on “electioneering communications,” WRTL could not lawfully run the three advertisements during the 30- and 60-day periods before the 2004 primary and general elections. Thus, WRTL claims that the enforcement of BCRA with regard to these advertisements would violate the First Amendment, which provides: “Congress shall make no law ... abridging the freedom of speech ... or the right of the people ... to petition the Government for a redress of grievances.” U.S. Const. Amend. I.

Now before the Court are cross-motions for summary judgment filed on behalf of (1) WRTL, (2) the FEC, and (3) intervening defendants, United States Senator John McCain and Representatives Tammy Baldwin, Martin Meehan, and Christopher Shays (collectively, “Interveners”). Upon due consideration of the parties’ submissions, the relevant case law, and the entire record herein, WRTL’s Motion for Summary Judgment is GRANTED as to the three ads WRTL intended to run in 2004, and the FEC and Interveners’ Motions are DENIED.

BACKGROUND

WRTL is a nonprofit, nonstock, Wisconsin, ideological advocacy corporation recognized by the Internal Revenue Service as tax-exempt under § 501(c)(4) of the Internal Revenue Code.² (Mem. & Op., Findings of Fact ¶ 1, Sept. 14, 2006.) On July 26, 2004, WRTL began broadcasting a radio advertisement entitled “Wedding”³ (CompLEx. A), which “encourage[d] Wisconsin listeners to contact their U.S. Senators (Sen. Russell Feingold and Sen. Herb Kohl) ... to ask them to vote against [the then-]anticipated filibusters of President Bush’s federal judicial nominees” (Am. Comply 6). At the same time, the Corporation initiated the production of a second radio ad entitled “Loar”⁴ (CompLEx. B) and one television ad entitled “Waiting”⁵ (id. Ex. C). (Am.CompIY 12.) Like Wedding, Loan and Waiting encourage their listeners to contact Senators Feingold and Kohl and urge them to oppose the filibustering of federal judicial nominees. None of the three advertisements, however, reference either Senator’s past votes on the filibuster issue and none contain any language that could be fairly construed as promoting, attacking, supporting, or opposing (“PASO”) either Senator. Yet because WRTL intended to use its general treasury funds to continue to run its ads through “the adjournment of Congress” ⁶ (id. ¶ 13), the ads would be prohibited as “electioneering communications” by BCRA section 203⁷ between the dates of August 15 and November 2, 2004⁸ (id. ¶ 14). Accordingly, on July 28, 2004, WRTL filed a complaint in this Court against the FEC,⁹ challenging the constitutionality of section 203 as it applies to the Corporation’s anti-filibuster ads and seeking “declaratory and injunctive relief permitting [the Corporation] to run [its ads] and materially similar ads in the future.”¹⁰ (Am.Compl^ 15.) That same day, WRTL filed a Motion for Preliminary Injunction, requesting that the Court “preliminarily enjoin the FEC from enforcing the prohibition on corporate expenditures for electioneering communications at Section 203 of the [BCRA], as applied to (a) electioneering communications by WRTL that constitute grass-roots lobbying and (b) the electioneering communications by WRTL contained in [the Wedding, Loan, and Waiting advertisements] until a final hearing on the merits.” (PL’s Mot. Prelim. Inj. at 2.) On July 29, 2004, WRTL’s application for a three-judge district court was granted pursuant to 28 U.S.C. § 2284 and section 403 of the BCRA (Order, July 29, 2004); this Court was empaneled four days later (Order, Aug. 9, 2004).

On August 12, 2004, this Court held oral argument on plaintiffs Motion for Preliminary Injunction, which it denied via Minute Order later that day. In denying WRTL’s Motion, we relied on the Supreme Court’s opinion in McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). Recognizing that the McConnell Court was only considering a facial challenge to BCRA, this Court nevertheless concluded that “the reasoning of the McConnell Court leaves no room for the kind of ‘as applied’ challenge WRTL propounds before us.”¹¹ (Mem. & Op. at 4, Aug. 17, 2004.) On May 10, 2005, following supplemental briefing by the parties, we dismissed plaintiffs Complaint in its entirety. Again, this Court concluded that “WRTL’s ‘as-applied’ challenge to BCRA is foreclosed by the Supreme Court’s decision in McConnell.” (Mem. & Op. at 2, May 10, 2005.) Within two days of this Court’s Order, plaintiff filed a Notice of Appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1253 and BCRA section 403(a)(3). (Notice of Appeal, May 12, 2005). The Supreme Court noted probable jurisdiction on September 27, 2005. WRTL v. FEC, 545 U.S. 1164, 126 S.Ct. 36, 162 L.Ed.2d 932 (2005).

On January 23, 2006, the Supreme Court vacated this Court’s May 10, 2005 dismissal, explaining that “[i]n upholding § 203 [of BCRA] against a facial challenge, we did not purport to resolve future as-applied challenges.” WRTL v. FEC, 546 U.S. 410, 126 S.Ct. 1016, 1018, 163 L.Ed.2d 990 (2006). The case was thus remanded to this Court with instructions to “consider the merits of WRTL’s as-applied challenge in the first instance.” Id.

On March 23, 2006, this Court granted a Motion to Intervene as Defendants brought by United States Senator John McCain and Representatives Tammy Baldwin, Christopher Shays, and Martin Meehan pursuant to BCRA section 403(b). We then issued a Scheduling Order on April 17, 2006, which allowed for an expedited period of discovery.¹² From June 23 to September 11, 2006, the parties submitted their respective Motions for Summary Judgment, response briefs, and proposed findings of fact.¹³ On September 18, 2006, the Court held oral argument on the parties’ Motions.

STANDARD OF REVIEW

All parties move for summary judgment pursuant to Federal Rule of Civil Procedure 56, which states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the court finds that facts material to the outcome of the case are at issue, a case may not be disposed of by summary judgment. Id. at 248, 106 S.Ct. 2505. If the facts in dispute are “merely colorable, or ... not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Though the moving party bears the burden of establishing that there are no genuine issues of material fact and that judgment on the legal issues is appropriate in its favor, Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548, a party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial,” Fed.R.Civ.P. 56(e). If there is insufficient evidence indicating that the fact-finder could return a favorable verdict for the nonmoving party, then summary judgment is proper. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

JURISDICTION

Jurisdiction for constitutional challenges to BCRA was squarely vested in this Court by Congress. Defendants, however, as an initial matter, oppose WRTL’s constitutional challenge to the 2004 anti-filibuster ads as moot and WRTL’s challenge to certain hypothetical “materially similar” ads that it wishes to run in the future as not ripe. For the following reasons, we disagree with defendants’ mootness argument, but agree with their ripeness position.

I. Mootness

WRTL chose to forgo running its ads in 2004 rather than take the risk that enforcement proceedings would be brought against it. (Am. Compl. ¶ 52; Pl.’s Proposed Findings of Fact ¶ 42.) As a result, defendants’ mootness argument boils down to its contention that Article Ill’s “case or controversy” requirement is not satisfied because “[e]vents have so transpired that the decision [of this Court] will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” (Def.’s Mem. Addressing Apr. 17, 2006 Scheduling Order, at 3 (internal quotation marks omitted) (quoting Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C.Cir. 2002)).) We disagree.

Plaintiffs factual predicament is not novel. Indeed, it is a classic example of the well-established exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.” Plaintiffs citation to no less than ten federal court decisions involving election-related challenges in which this exception was applied well establishes this point. (See Pl.’s Mem. Compliance Apr. 17, 2006 Scheduling Order at 4-5 n. 3 (citing Norman v. Reed, 502 U.S. 279, 287-88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)); Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Cal. Pro-Life Council v. Getman, 328 F.3d 1088, 1095 n. 4 (9th Cir.2003); Majors v. Abell, 317 F.3d 719, 722 (7th Cir.2003); Fla. Right to Life, Inc. v. Lamar, 273 F.3d 1318, 1324 n. 6 (11th Cir.2001); Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 390 n. 3 (4th Cir.2001); Stewart v. Taylor, 104 F.3d 965, 969-71 (7th Cir.1997); N.H. Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 18 (1st Cir.1996); Kansans for Life, Inc. v. Gaede, 38 F.Supp.2d 928, 932 (D.Kan.1999).)

Defendants grudgingly' characterize the application of this exception as a “close question” notwithstanding our Circuit Court’s holding in Branch v. FCC, 824 F.2d 37, 41 n. 2 (D.C.Cir.1987), that “[Controversies that arise in election campaigns are unquestionably among those saved from mootness under the exception for matters ‘capable of repetition, yet evading review.’ ” (Intervening Def.s’ Resp. Scheduling Order, at 4). The thesis underlying their objection is that plaintiff cannot satisfy the two-prong test established by the Supreme Court to determine whether this exception should apply. How so?

In First National Bank of Boston v. Bellotti, the Supreme Court, citing its decision in Weinstein v. Bradford, held that a court can exercise jurisdiction over a plaintiffs claims if: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” 435 U.S. at 774, 98 S.Ct. 1407 (internal quotation marks omitted; alterations in original) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). Plaintiff easily satisfies both prongs of this test.

As to the first prong, it is entirely unreasonable, if not fanciful, to expect that plaintiff could have obtained complete judicial review of its claims in time for it to air its ads during the 30 and 60-day periods leading up to federal primary and general elections (“BCRA blackout period”) in 2004. WRTL filed its Complaint and Motion for Preliminary Injunction in this Court on July 28, 2004. The Supreme Court issued its remand order on January 23, 2006. It is now December 2006, and despite the fact that both courts have— pursuant to BCRA section 403(a)(4) — expedited the disposition of this matter “to the greatest possible extent,” plaintiffs claims have yet to be “fully litigated.” Defendants’ argument that “the two-year election cycle should ordinarily provide sufficient time for final resolution of the type of as-applied challenge at issue here” (Intervening Def.s’ Resp. Scheduling Order, at 4-5) is wholly unrealistic. It assumes — without support — that a plaintiff can know the pieces of legislation that will be pending before Congress hvo years in advance of Congress actually considering the legislation. This Court finds no evidence in the record to suggest that WRTL knew, in the summer/fall of 2002, that judicial filibustering would be an issue before the United States Senate during the BCRA blackout period in 2004. Indeed, there is no evidence in the record to suggest that the Senate knew, in the summer/fall of 2002, that judicial filibustering would be an issue during the BCRA blackout period in 2004. In fact, it was not until December 10, 2003 — the date that the Supreme Court issued its opinion in McConnell — that anyone knew if there would even be a BCRA blackout period in 2004. Thus, WRTL easily satisfies the first prong of the Weinstein test.

As to the second prong, the Court finds that there is a highly “reasonable expectation” that plaintiff “will be subject to the same action again.” Defendants’ contrary argument that the present controversy is incapable of repetition is premised on its contention — that we reject— that the context surrounding the creation and dissemination of the ads (including plaintiffs intent, the availability and adequacy of non-broadcast media, the perceptions of the target audience, and the circumstances of the 2004 campaign) should be relied upon in assessing this decision. (See id. at 5.) To the contrary, because we believe that our review should be limited to the text and images of the ads themselves — as will be explained more fully later — we are not concerned with the supposed “perfect storm” of contextual characteristics alleged by defendants.¹⁴ While WRTL’s intention to run genuine issue advertisements during future BCRA blackout periods is not enough to sustain its generalized claim regarding “grassroots lobbying advertisements,” it is enough to create a “reasonable expectation” that it “will be subject to the same action again.”¹⁵ In light of the fact that legislation typically arises in the 30- and 60-day periods before a federal primary or general election, see McConnell v. FEC, 251 F.Supp.2d 176, 793 (D.D.C.2003) (Leon, J.), this Court finds that WRTL’s remaining claim is “capable of repetition, yet evading review.”

II. Ripeness

WRTL’s as-applied challenge features a prophylactic challenge to what it anticipates to be the prohibition by the FEC of its broadcasting “materially similar” ads in future election contests. WRTL appears to add this prayer for relief as part of its larger objective: to get this Court — and ultimately the Supreme Court — to carve out an exception to BCRA’s electioneering communications definition for what it refers to as “grassroots lobbying” advertisements. (Am. ComplJ 6.) Indeed, WRTL admits that “this Court is not required by the [Supreme Court’s] remand to go beyond WRTL’s specific ads,” but nevertheless asks the Court to fashion a “more general rule to guide the regulated public.” (PL’s Mem. Compliance Apr. 17, 2006 Scheduling Order at 7.) Defendants, not surprisingly, contend that this Court should not consider WRTL’s generalized grassroots lobbying claim as it is “beyond the scope of the Supreme Court’s remand, ... not ripe, and ... too speculative and hypothetical to be justiciable under Article III.” (Def.’s Mem. Addressing Apr. 17, 2006 Scheduling Order, at 8.) We agree.

WRTL alleges, at most, that it “intends to run materially similar grass-roots lobbying ads falling within the electioneering communication prohibition periods before future primary and general elections in Wisconsin.” (Am.Compl^ 16.) Simply stated, such an intention is too speculative and thus not sufficiently concrete to state a cognizable claim under Article III. Like another three-judge panel of this District Court that recently reached the same conclusion in a similar case, see CCLM, 2006 WL 2792683, at *2-5, we also cannot expand our authority beyond the contours of Article III. Accordingly, we reject WRTL’s generalized lobbying claim as unripe and turn to plaintiffs arguments challenging the constitutionality of BCRA as it applies to the three anti-filibuster ads.

ANALYSIS

Reduced to its essence, plaintiffs as-applied challenge boils down to two arguments: (1) that its 2004 ads are neither express advocacy nor its functional equivalent; and (2) that the Government has failed to demonstrate a compelling interest in regulating these ads. For the following reasons, we agree with each of plaintiffs contentions.

I. Express Advocacy and Its Functional Equivalent Versus Genuine Issue

Advertising

In McConnell, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491, the Supreme Court evaluated a facial challenge to the constitutionality of BCRA’s electioneering communications provision. In doing so, its majority concluded that there was a compelling government interest in regulating express advocacy and its functional equivalent (i.e., “sham issue ads”) during the BCRA blackout period. Based on our interpretation of that ruling, this three-judge Court in 2004 dismissed this as-applied challenge to the constitutionality of the FEC’s prohibition of the ads designed to be aired on television in Wisconsin during the BCRA blackout period leading up to the 2004 primary and general election. On appeal, however, the Supreme Court, in evaluating our decision, stated that McConnell had not foreclosed as-applied challenges to the constitutionality of the electioneering communications definition and, accordingly, remanded the case back to us for consideration of the merits of WRTL’s claims. In doing so, the Supreme Court, in essence, acknowledged the possibility that certain ads (i.e., “genuine issue ads”), that are neither express advocacy nor its functional equivalent, could be unconstitutionally captured by BCRA’s electioneering communications definition. Plaintiff, not surprisingly, contends that these ads fall into that category.

To determine whether plaintiff is correct, this Court must engage in a two-step analysis of the ads in question. First, it must evaluate whether any or all of the ads constitute either express advocacy or its functional equivalent. If they do, of course, that would be the end of the challenge because the Supreme Court in McConnell upheld BCRA’s authority to regulate them. If they are not, however, this Court must then move on to determine whether the Government has demonstrated the necessary compelling state interest to regulate genuine issue ads during the 30- and 60-day periods leading up to the federal primary and general elections.

Defendants contend that all three ads are sham issue ads and are therefore regulable under the Supreme Court’s majority holding in McConnell. The keystone to the defendants’ analysis is their contention that the determination of whether an ad is a sham issue ad should not be limited to a facial evaluation of the ad’s language and images, but a contextual analysis of the “intent” behind the ad’s creation.and the “effect” that the ad is intended, and likely, to have on the voting public. Plaintiff disagrees strongly. It contends that the judicial assessment of the ads should be limited to a facial evaluation of the ads’ language and images. Determining intent and the likely effect of an ad on the viewing public is, to plaintiffs way of thinking, too conjectural and wholly impractical if future as-applied challenges are going to be evaluated on an emergency basis by three-judge panels prior to and during the BCRA blackout period leading up to federal primary and general elections. We agree.

The three ads in this case all deal with the public policy issue of filibustering the President’s judicial candidates in the Senate. On their face, they set forth WRTL’s position against this practice and conclude with the all-too-familiar “eall-to-action line” exhorting viewers/listeners, who presumably agree with WRTL’s position, to contact Wisconsin’s two United States Senators, Kohl and Feingold, and inform them of-their opposition. The ads do not comment on either Senator’s past or current position regarding this practice. Indeed, to the untutored viewer’s eye, the ads, on their face, neither reveal either Senator’s thinking on the issue, nor reference Senator Feingold’s upcoming election contest. Therefore, plaintiff contends that these ads are a textbook example of genuine issue ads that are neither express advocacy nor its functional equivalent.

Defendants nonetheless contend that it is legally insufficient to limit an analysis of the ads to the face of the ads themselves and their objectively discernable components. They fear that doing so would ultimately result in the airing of too many issue ads that were actually “intended” to affect an election. Of course, to discern whether the sponsoring organization of these issue ads had the primary, or even ancillary, subjective intention to affect the election of the named candidate, the FEC would, by necessity, have to depose, at a minimum, the “decision maker(s)” of the organization in advance of the advertisements’ airing. Moreover, to determine whether a particular ad that was intended to affect the election actually was likely to do so, would additionally require the retention of expert witnesses, on both sides, to speculate as to such. Common sense, if nothing else, dictates that requiring such prerequisites to assessing whether a given ad is a “sham ad” and therefore regulable under BCRA’s electioneering communications'definition is both practically and theoretically unacceptable.

It is practically unacceptable because as-applied challenges, to be effective, must be conducted during the expedited circumstances of the closing days of a campaign when litigating contextual framework issues and expert testimony analysis is simply not workable. More importantly, however, is the fact that it is theoretically unacceptable because it proceeds on the highly questionable assumptions that: (1) any subjective intent to affect the election, regardless of its degree of importance, should negate an otherwise genuine issue ad; and (2) the speculative conjecture of experts can actually project the “likely” impact of a given ad on the electoral process. Neither the Supreme Court, nor any other Court, has recognized the validity of either assumption, and we do not find sufficient evidence here to bless either.¹⁶ To .the contrary, as recognized by the Supreme Court, delving into a speaker’s subjective intent is both dangerous and undesirable when First Amendment freedoms are at stake. Indeed, in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court itself recognized that a test distinguishing between a discussion of issues and a discussion of candidates should not be based on a listener’s determination of the speaker’s subjective intent. The Buckley Court cited its prior decision in Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 89 L.Ed. 430 (1945), with approval:

[Wjhether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning-

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.

Id. at 43, 96 S.Ct. 612.¹⁷

The uncertainty originally identified in Thomas is magnified, or course, in the context of election-related speech where any reference to a candidate, who is an office holder, can be interpreted — or misinterpreted — as campaign-motivated, as opposed to public policy-motivated. Thus, a system such as that encouraged by defendants where federal judges would be charged with conjuring the subjective intent of the speaker to affect the election would fly in the face of decades of First Amendment jurisprudence and undoubtedly chill those exercising their free speech rights. Simply stated, it appears to this Court that the judiciary, in conducting First Amendment analysis, should not be in the business of trying to read any speaker’s mind. Such an inquiry is unprecedented and not properly a part of any First Amendment analysis.

Accordingly, in evaluating whether WRTL’s 2004 anti-filibuster ads are express advocacy or its functional equivalent, this Court will limit its consideration to language within the four corners of the anti-filibuster ads that, at a minimum: (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. In addition, as to the televised ad, the Court will also look to the images displayed in concert with the language to evaluate whether they otherwise accomplish the prohibited result.¹⁸

In this case, the language in WRTL’s advertisements does not mention an election, a candidacy, or a political party, nor do they comment on a candidate’s character, actions, or fitness for office. Nevertheless, they do describe an issue that had been, and was likely to be, an ongoing issue of legislative concern in the Senate. Further, while the advertisements state that “[a] group of Senators” is filibustering federal judicial nominees, the ads do not state that either Senator Feingold or Senator Kohl are members of that group, and none of the images displayed in WRTL’s television advertisement suggest as much. In fact, the only reference to Senator Feingold is in the closing line of the advertisements, or “call-to-aetion line,” asking the listener to contact both Senator Feingold and Senator Kohl to ask them to oppose judicial filibusters.¹⁹ The ads do not promote, attack, support, or oppose either Senator, nor do they even reference in any way the Senators’ past voting records, current positions, or previous public statements on the judicial filibuster issue. Thus, on the face of these ads, there is simply no way of telling whether either Senator had previously supported or opposed the filibuster or whether the Senators had split on the issue. Finally, it is important to note that the advertisements treat Senators Feingold and Kohl equally, even though Senator Kohl was not a candidate for federal office in 2004. Oddly enough, had WRTL wished to run these ads mentioning only Senator Kohl, and ignoring Wisconsin’s other United States Senator, it could have done so without offending BCRA section 203.

Accordingly, for all of the above reasons, the Court finds that, on their face, WRTL’s three 2004 anti-filibuster advertisements were not “intended to influence the voters’ decisions,” and thus, the Court need not analyze whether the ads in fact would have — or potentially could have— affected Senator Feingold’s reelection. For even if the Court were to assume that WRTL’s anti-filibuster ads “were likely to have had an effect on the Senate Election had they run during the electioneering communications period”²⁰ (Def.’s Opp’n to Mot. Summ. J. at 9), reliance on effect, without the requisite intent, would be the equivalent of permitting listeners’ subjective impressions to justify the regulation of protected speech. This is precisely the type of analysis that Buckley and Thomas said should be avoided.

Thus, the Court concludes that WRTL’s 2004 anti-filibuster ads are not the functional equivalent of express advocacy, and the Court must now turn to an evaluation of whether the Government has demonstrated the compelling state interest necessary to justify the degree to which BCRA section 203 burdens WRTL’s First Amendment rights.

II. Strict Scrutiny Analysis

In McConnell, the Supreme Court “easily” concluded, based on its prior decisions regarding campaign finance regulation, that there are compelling state interests that justify the regulation of express advocacy and its functional equivalent during the 30- and 60-day periods leading up to federal primary and general elections, respectively. 540 U.S. at 205, 124 S.Ct. 619. In particular, the Court pointed to its prior decisions in Buckley and Bellotti, where it spelled out the “unusually important interests [that] underlie the regulation of corporations’ campaign-related speech,” id. at 206 n. 88, such as: preventing corruption, preserving the integrity of the electoral process, and preserving the public’s confidence in its government, id. (citing Bellotti, 435 U.S. at 788-89, 98 S.Ct. 1407).

The plaintiffs who prosecuted the facial challenge in McConnell, however, did not contest the Government’s “compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office.” Id. at 205, 124 S.Ct. 619. “Nor d[id] they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy.” Id. Instead, they limited their attack to over-breath, claiming that “the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications,” i.e., genuine issue ads that otherwise meet the requirements of BCRA section 203. Id. at 206, 124 S.Ct. 619.

The Supreme Court disagreed. It concluded that the justifications for the regulation of express advocacy (i.e., the compelling government interests) equally apply to issue ads aired during the proscribed statutory period “if the ads are intended to influence the voters’ decisions and have that effect.” Id. at 206, 124 S.Ct. 619 (emphasis added). Indeed, it characterized such issue ads as the “functional equivalent” of express advocacy. Id. Thus, even “assuming] that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” id. at 206 n. 88, 124 S.Ct. 619, the Supreme Court nonetheless held that BCRA section 203’s application to genuine issue ads was not substantial enough to strike down this section of the statute as facially unconstitutional.²¹ By permitting as applied challenges to section 203’s constitutionality, however, the Supreme Court has now put in play the question it left open in McConnell as to whether the government interests that justify regulating express advocacy and its functional equivalent also apply to the regulation of genuine issue ads. For the following reasons, this Court holds that they do not.

The common denominator between express advocacy and its functional equivalent, as the Supreme Court defined it in McConnell, is the link between the words and images used in the ad and the fitness, or lack thereof, of the candidate for public office.²² Indeed, it is that very link which evinces, on the face of the ad, the intent to influence the election that the McConnell Court imposed as a critical requirement to functional equivalency. Conversely, it is the absence of that link that enables an issue ad to be fairly regarded as a genuine issue ad. More importantly, it is the absence of that link which obviates the likelihood of political corruption and public cynicism in government where the ad, on its face, is devoid of any-language the purpose of which is advocacy either for or against a particular eandidaté for federal office. Thus, while it may be theoretically possible to craft a genuine issue ad so subtly that it subconsciously encourages (or discourages) a potential voter to support a political candidate, there is no evidentiary or common sense basis to believe that such facially neutral ads are necessarily intended to affect an election, or will necessarily be viewed as such. Accordingly, in the absence of the Government demonstrating some other compelling interest to regulate genuine issue ads during the 30- and 60-day periods leading up to the federal primary and general election, the Court holds that Section 201’s definition²³ as applied through section 203 to WRTL’s 2004 antifilibustering issue ads is unconstitutional.

Turning to the Government’s alternative bases for regulating genuine issue ads, the only other interest that the Government puts forward to justify BCRA section 203’s regulation of WRTL’s 2004 anti-filibuster advertisements is the interest in preserving section 201’s “bright-line” rule. Yet the virtues of the bright-line rule surely cannot alone justify regulating constitutionally protected speech. The Supreme Court itself has already held that the “desire for a bright-line rule ... hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom.” FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (emphasis in original). And its remand of our earlier decision to permit this as-applied challenge is a tacit acknowledgment that, notwithstanding the virtues of a bright-line test, there may nonetheless be some ads that are unconstitutionally captured by BCRA section 203. Thus, having concluded that WRTL’s three 2004 anti-filibuster ads are such advertisements, we are hard-pressed indeed to conclude that preserving section 201’s bright-line rule is a sufficiently compelling interest to warrant the ongoing regulation of these ads under BCRA.²⁴

CONCLUSION

For the foregoing reasons, the Court finds that (1) WRTL’s 2004 anti-filibuster ads are neither express advocacy nor its functional equivalent; and (2) the Government has not articulated a sufficiently compelling interest to justify the burden that BCRA section 203 places on WRTL’s First Amendment rights. Accordingly, the Court GRANTS plaintiffs Motion for Summary Judgment as it applies to the three broadcast advertisements WRTL intended to run in 2004 and DENIES defendants’ cross-motions. An appropriate Order will issue with this Memorandum Opinion.

1 . Codified at 2 U.S.C. § 441b(a), (b)(2).

2 . WRTL admits that it does not qualify for any exception permitting it to pay for the exception electioneering communications from corporate funds because (a) it is not a "qualified nonprofit corporation” within the definition of 11 C.F.R. § 114.10 so as to qualify for the exception found at 11 C.F.R. § 114.2(b)(2) to the electioneering communication prohibition and (b) its advertisements are "targeted” so that it does not fit the exception for § 501(c)(4) organizations as described in 2 U.S.C. § 441b(c)(2). (Am. Compl. ¶ 23 (citing 2 U.S.C. § 441b(c)(6)(A)).)

3 . The radio script for "Wedding,” attached as Exhibit A to plaintiffs Complaint, reads as follows:

PASTOR: And who gives this woman to be married to this man?

BRIDE’S FATHER: Well, as father of the bride, I certainly could. But instead, I’d like to share a few tips on how to properly install diywall. Now you put the drywall up ...

VOICE-OVER: Sometimes it’s just not fair to delay an important decision.

But in Washington it’s happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple "yes” or "no” vote. So qualified candidates don't get a chance to serve.

It's politics at work, causing gridlock and backing up some of our courts to a state of emergency.

Contact Senators Feingold and Kohl and tell them to oppose the filibuster.

Visit: BeFair.org

Paid for by Wisconsin Right to Life (be-fair.org), which is responsible for the content of this advertising and not authorized by any candidate or candidate’s committee.

4 . The radio script for "Loan,” attached as Exhibit B to plaintiff's Complaint, reads as follows:

LOAN OFFICER: Welcome Mr. and Mrs. Shulman. We’ve reviewed your loan application, along with your credit report, the appraisal on the house, the inspections, and well ...

COUPLE: Yes, yes ... we’re listening.

OFFICER: Well, it all reminds me of a time I went fishing with my father. We were on the Wolf River Waupaca ...

VOICE-OVER: Sometimes it's just not fair to delay an important decision.

But in Washington it’s happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple "yes” or "no” vote. So qualified candidates aren’t getting a chance to serve.

It’s politics at work, causing gridlock and backing up some of our courts to a state of emergency.

Contact Senators Feingold and Kohl and tell them to oppose the filibuster.

Visit: BeFair.org

Paid for by Wisconsin Right to Life (be-fair.org), which is responsible for the content of this advertising and not authorized by any candidate or candidate’s committee.

5 .The television script for "Waiting,” attached as Exhibit C to plaintiff's Complaint, reads as follows:

VOICE-OVER: There are a lot of judicial nominees out there who can't go to work. Their careers are put on hold because a group of Senators is filibustering — blocking qualified nominees from a simple "yes” or "no” vote.

It's politics at work and it's causing gridlock.

Contact Senators Feingold and Kohl and tell them to oppose the filibuster.

Visit: BeFair.org

WRTL REPRESENTATIVE VOICE-OVER: Wisconsin Right to Life is responsible for the content of this advertising.

The script describes the visual aspect of the advertisement is described as follows:

We see vignettes of a middle-aged man being as productive as possible while his professional life is in limbo:

He reads the morning paper

He polishes his shoes

He checks for mail, which hasn’t arrived

He scans through his Rolodex

He reads his Palm Pilot manual

He pays bills.

At the end of the ad, the website “www.Be Fair.org” is displayed, and a four-second disclaimer reads “Paid for by Wisconsin Right to Life (befair.org), which is responsible for the content of this advertisement, not authorized by any candidate or candidate's committee.”

6 . Elsewhere in WRTL's Complaint, the Corporation alleges that intended to run its ads "throughout August [2004].” (Am. Compl-¶ 12.)

7 . BCRA section 203 prohibits corporations from financing "electioneering communications" through their general treasuries. See 2 U.S.C. § 441b(a), (b)(2). BCRA section 201, in turn, defines "electioneering communications” as:

any broadcast, cable, or satellite communication which-

(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 the 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

(cc) 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.

2 U.S.C. § 434(f)(3)(A).

According to the Act, "a communication which refers to a clearly identified candidate for Federal office is 'targeted to the relevant electorate' if the communication can be received by 50,000 or more persons(i) in the district the candidate seeks to represent, in the case of a candidate for Representative in, or Delegate or Resident Commissioner to, the Congress; or (ii) in the State the candidate seeks to represent, in the case of a candidate for Senator.” 2 U.S.C. § 434(f)(3)(C).

8 . In 2004, the Wisconsin primary was held on September 14, and the general election was held on November 2. (Am.ComplA 12.) Consequently, WRTL's advertisements would be considered "electioneering communications” from August 15 to September 14 (30 days before the primary) and from September 3 to November 2 (60 days before the general election). (Id. at 14.)

9 . The FEC is the government agency charged with enforcing the relevant provisions of the Federal Election Campaign Act, as amended by the BCRA. (Mem. & Op., Findings of Fact ¶ 2, Sept. 14, 2006).

10 . WRTL did not and does not challenge the reporting and disclaimer requirements for electioneering communications, only the prohibition on using its corporate funds to finance the challenged advertisements. (Am. Compl.KV 34-37.)

11 . The Court pointed specifically to the Supreme Court’s discussion of the BCRA's “backup” definition of “electioneering communications,” 2 U.S.C. § 434(f)(3)(A)(ii), which would take effect only if the primary definition — cited above — were held to be "constitutionally insufficient.” The Supreme Court declined review of the backup definition, stating: "[W]e uphold all application of the primary definition and accordingly have no occasion to discuss the backup definition.” McConnell, 540 U.S. at 190 n. 73, 124 S.Ct. 619 (emphasis added).

On August 13, 2006, plaintiff filed a Motion for Injunction Pending Appeal. This Court's denial of that Motion was upheld by the Supreme Court on September 14, 2004. WRTL v. FEC, 542 U.S. 1305, 125 S.Ct. 2, 159 L.Ed.2d 805 (2004) (Rehnquist, Circuit Justice).

12 . Our colleague, in his dissenting opinion, suggests that our earlier unanimous decision to allow discovery in this case is somehow inconsistent with our decision today to limit our constitutional evaluation of the ads to their four corners, as opposed to the context in which they would have been aired. We disagree. At the time our discovery decision was made, we had not yet focused on, let alone decided, the ultimate substantive issues we would have to resolve in order to decide this case. Simply stated, permitting discovery by the parties was necessary to ensure that both this Court and the Supreme Court would have the option of relying upon the facts developed, if doing so would be necessary to reaching the ultimate constitutional issues in this case.

13 . Briefing was originally scheduled to be completed by September 1, 2006; however, ín the course of discovery, the FEC filed a Motion to Compel that was not ruled on until August 18, 2006. The Court permitted the parties to supplement their Summary Judgment briefing in response to the discovery permitted by the Court in response to the FEC's Motion.

14 . To the extent the District Court in Christian Civic League of Maine, Inc. ("CCLM”) v. FEC, No. 06cv0614, 2006 WL 2792683 (D.D.C. Sept.27, 2006) — confronted with essentially the same issue — held that "the League’s claims are ... moot and not saved by the ‘capable of repetition, yet evading review’ exception to the doctrine insofar as they do pertain to the circumstances surrounding the League's efforts to broadcast the Crossroads advertisement," CCLM, 2006 WL 2792683, at *1, we respectfully disagree.

15 . In fact, WRTL attempted to run a different ad during the BCRA blackout period in 2006. While the ad was not the textual equivalent of the ads in this case — and while this Court does not speak to merits of WRTL’s claim as to that ad — the attempt nevertheless lends credence to WRTL’s contention that there is a "reasonable expectation” that it "will be subject to the same action again.”

16 . While, as our colleague’s dissent recognizes, the Supreme Court's McConnell opinion may have alluded to the purpose and effect for which ads were run in analyzing whether section 203's definition of "electioneering communication” was facially constitutional, the Court's reasoning was not based upon an analysis of the subjective intent of either the parties airing the advertisements or the listeners hearing them. Rather, it was based largely upon an assessment of the generic past practices of certain media experts in designing sham issue ads that would affect elections, but not include the so-called “magic words” prohibited by Buckley. See McConnell, 540 U.S. at 193, 124 S.Ct. 619. Even those experts had to concede, however, that there are such things as genuine issue ads that the definition in section 203 would capture some of the time. See, e.g., McConnell, 251 F.Supp.2d at 794-95 (Leon, L). The as-applied challenge here, by contrast, puts squarely before a court for the first time the issue of whether three particular ads are genuine issue ads, thereby forcing this Court to decide whether to limit its assessment of the purpose and effect of those ads to the information contained within the ads' four corners. Thus, since the McConnell Court was spared such a choice in dealing with the facial challenge-it confronted, its references to purpose and effect are of limited significance in this matter today.

17 . It is this language that led the Supreme Court to develop a “saving construction”— later termed the "magic-words test” — for old FECA § 608(e)(1), which provided that "[n]o person may make any expenditure ... relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.” Noting that FECA contained no definition clarifying what expenditures are “relative to” a candidate, the Supreme Court found that it was unconstitutionally vague. Buckley, 424 U.S. at 41-42, 96 S.Ct. 612.

18 . Our colleague notes in his dissent a particular website reference that is included in the credits at the end of all three of the advertisements at issue. According to defendants, the website itself contained language that either opposed or attacked Senator Feingold and is therefore cited as proof that WRTL's intention in running the radio and television advertisements was to negatively influence Senator Feingold’s electoral chances. Considering that BCRA regulates neither references to, nor the content of, advocacy-based websites, this Court believes that, unless and until Congress decides to amend BCRA to include such a regulation, WRTL’s references to its website have no bearing on this Court's constitutional analysis.

19 . As a member of the three-judge District Court in McConnell, Judge Leon concluded that "[t]he mere fact that these issue advertisements mention the name of a candidate (i.e., the elected representative in whose district the advertisement ran) does not necessarily indicate, let alone prove, that the advertisement is designed for electioneering purposes.” 251 F.Supp.2d at 794. In support of this conclusion, he cited to several of the plaintiffs' witnesses in that case. For example, Paul Huard of the National Association of Manufacturers ("NAM”) testified that the name of a particular Member of Congress generally must be mentioned “if the purpose of the ad may be to induce viewers to contact the Member and communicate a policy position.” Id. (citation omitted). Similarly, Denise Mitchell, Special Assistant for Public Affairs to the AFL-CIO, concurred, explaining that it is often necessary to refer to a federal candidate by name because "[t]he express or implied urging of viewers or listeners to contact the policymaker regarding [an] issue is ... especially effective by showing them how they can personally impact the issue debate in question." Id. (citations omitted; alterations in original).

20 . See our Circuit Court’s discussion in its underlying opinion in Buckley v. Valeo, 519 F.2d 821, 875 (D.C.Cir.1975), which recognized that: "Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussion of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections."

21 . In performing its substantial overbreadth analysis, the Supreme Court was willing to "assume[] that BCRA will inhibit some constitutionally protected corporate and union speech,” but nevertheless concluded that "[such an] assumption would not justify prohibiting all enforcement' of the law unless its application to protected speech is substantial, 'not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.' " McConnell, 540 U.S. at 207, 124 S.Ct. 619 (quoting Virginia v. Hicks, 539 U.S. 113, 120, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)). Without determining the “precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection timespans but had no electioneering purpose,” Id. at 206, 124 S.Ct. 619, the Supreme Court concluded that “the vast majority of ads clearly had such a purpose,” Id. In the final analysis, the Supreme Court held that plaintiffs failed to "carry their heavy burden of proving that amended FECA § 316(b)(2) is overbroad” because “[f|ar from establishing that BCRA's application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.” Id. at 207, 124 S.Ct. 619.

22 . See McConnell, 251 F.Supp.2d at 796 (Leon, J.) ("It is the absence of a link between the advocacy of an issue and a candidate’s fitness, or lack thereof, for election that renders congressional intervention with respect to genuine issue ads ... unconstitutional.”).

23 . See supra note 7.

24 . Because we conclude that the Government has failed to demonstrate a compelling state interest in regulating WRTL’s 2004 anti-filibuster ads, we need not address whether WRTL could/should have pursued other options for the financing of its advertisements or altered the content of its ads so as to avoid BCRA section 203's regulation altogether.