rene ncrrarnien anette

Court’s deliberate declaration of its ruling as encompassing “all applications of the primary
definition” suggests little likelihood of success for an “as applied” challenge to some applications
of that definition, such as the one plaintiff brings before us.

Furthermore, the Court’s deliberate upholding of “all applications” stands in informative
contrast to its explicit acknowledgment that other parts of the statute which it upheld against
facial challenge might be subject to “as applied” challenges in the future. For example, the Court
upheld a Title I provision of BCRA restricting state parties from spending “soft money for
federal election activities.” 2 U.S.C. § 441i(b). But the Court stated that “as-applied challenges
remain available” if some future state party could show that the restriction had become “‘so
radical in effect as to . . . drive the sound of [the recipient’s] voice below the level of notice.”” Id.
at 677 (brackets in the original) (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 397
(2000)). Similarly, in upholding the ban on soft money fundraising by national party committees,
2US.C. § 441i(a), the Court noted that “‘a nascent or struggling minor party can bring an as-
applied challenge” should the ban prevent it from “amassing the resources necessary for effective
advocacy.”” Id. at 669 (quoting Buckley v. Valeo, 424 U.S. 1, 21 (1976)).

Again, in upholding the Title V recordkeeping requirement on broadcasters, the Court
noted that the regulated entities “remain free to challenge the provisions, as interpreted by the
FCC in regulations, or as otherwise applied.” Jd. at 717. And finally, the Court noted that its
ruling upholding against facial challenge the § 201 disclosure provisions of Title I “does not
foreclose possible future challenges to particular applications” of that statutory requirement. Id.

at 692.

While these dicta concerning the possible future facial challenges to other provisions do



Radio S cript

Client: Wisconsin Right to Life
Title: "Wedding" :60

Job# WRL-8136

Date: July 15,2004

AUDIO

We hear church bells up and under...

TALENT

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

BRIDE’S FATHER (rambling):

Well, as father of the bride, | certainly could. But
instead, i'd like to share a few tips on how to
properly install drywall. Now you put the drywall
up...

vo:
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 te
block federal judicial nominees from a simple
“yes” or “no” vote. So qualified candidates
don’t get a chance to serve.

Yes, it’s politics at work, causing gridlock and
backing up some of our courts to a state of +
emergency. 3

BRIDE'S FATHER (rambling): Then you get your
joint compound and your joint tape anc put the
tape up over...

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

Visit: BeFair.org. That's BeFair.org

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

Exhibit

AL



However, in adjudicating entitlement of a plaintiff to a preliminary injunction, we must apply the
whole four-part test, which requires us to determine whether the “balance of harms favor[s]
plaintiffs.” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1137 (D.C. Cir. 1988).
That said, the actual limitation on plaintiff's freedom of expression, as protected by the First
Amendment, is not nearly so great as plaintiff argues. At least for purposes of a preliminary
injunction, the present showing appears to be that plaintiff is not precluded from forwarding its
message, or even from exposing the public to the particular advertisements at issue. As we
understand it, the BCRA does not prohibit the sort of speech plaintiff would undertake, but only
requires that corporations and unions engaging in such speech must channel their spending
through political action committees (PACs).’ In McConnell, the Supreme Court noted that
though “corporations . . . may not use their general treasury funds to finance electioneering
communications, .. . they remain free to organize and administer segregated funds, or PACs, for
that purpose.” Jd. at 695. The Court went on to reason that “‘the PAC option allows corporate
political participation without the temptation to use corporate funds for political influence... .’”
Id. (quoting Federal Election Commission v. Beaumont, 123 S. Ct. 2200, 2211 (2003)).

The Beaumont decision quoted by the Supreme Court in McConnell, while not directly on
point as it did not deal with the current statute, is instructive. That case involved a challenge to
the regulation of a corporation’s political contributions while the present involves regulation of

electioneering communications. Nonetheless, the analogy is obvious. In Beaumont, the Supreme

'WRTL also has alternative methods available to communicate its message in addition to
using PAC funding for broadcast ads, namely, using print media, such as newspaper or magazine
advertisements, press releases, pamphlets, informational mailings, and billboards; using
electronic communications, such as e-mailing and internet posting; and placing telephone calls.

7



not preclude the possibility that the Supreme Court might uphold an as-applied challenge to the
provisions before us, in the face of the strength of the Court’s holding with specific reference to
these provisions, we cannot possibly conclude that plaintiff has made out a substantial likelihood
of success on the merits.

Our reading of McConnell that as-applied challenges to § 441b are foreclosed is but one
reason we find little likelihood of success on the merits. The facts suggest that WRTL’s
advertisements may fit the very type of activity McConnell found Congress had a compelling
interest in regulating. Id. at 695. In McConnell, the Court voiced the suspicion of corporate
funding of broadcast advertisements just before an election blackout season because such
broadcast advertisements “will often convey [a] message of support or opposition” regarding
candidates. Id. at 651, 697, 715. Here, WRTL and WRTL’s PAC used other print and electronic
media to publicize its filibuster message — a campaign issue — during the months prior to the
electioneering blackout period, and only as the blackout period approached did WRTL switch to
broadcast media. (See Def.’s Opp. Exh. 4, 16, 18.) This. followed the PAC endorsing opponents
seeking to unseat a candidate whom WRTL names in its broadcast advertisement (Def.’s Opp.
Exh. 10-14), and the PAC announcing as a priority “sending Feingold packing.” (Def.’s Opp’n
Exh. 4.)

As to the second part of the preliminary injunction standard, we hold that plaintiff has not
demonstrated that it will suffer irreparable harm in the absence of a preliminary injunction.
Plaintiff relies on the general statement that “the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373 (1976). Unquestionably, as a general proposition of law, that statement is true.



the injunction of the proposed application of those provisions interferes with the execution of the
statute upheld by the Supreme Court in McConnell, the public interest is already established by
the Court’s holding and by Congress’s enactment, and the interference therewith is inherent in
the injunction.

In short, plaintiff's case falls far short of the four-part test for the grant of a preliminary
injunction. Therefore, we have denied plaintiff's motion. In light of this disposition, we further
order that the parties hereto file supplemental memoranda within ten days of the date of this
memorandum and order addressing the question whether this matter should be dismissed.

lh.
This the 19 day of August, 2004.



c
UNITED STATES DISTRICT COURT FILED

FOR THE DISTRICT OF COLUMBIA Aus 17 2008
. jgiat Court
Clerk, US Golub

)
WISCONSIN RIGHT TO LIFE, INC., )
)

Plaintiff, ) Civil No. 04-1260 (DBS, RWR, RJL)
)

v. ) THREE-JUDGE COURT

)
)
FEDERAL ELECTION COMMISSION, )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

This matter coming before the court on plaintiff’s motion for a preliminary injunction,
and the court having considered the affidavits and representations of counsel, solely for the
purposes of the motion for a preliminary injunction, the court makes the following findings of
fact:

1. Plaintiff Wisconsin Right to Life, Inc. (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. Defendant Federal Election Commission (FEC) is the government agency charged
with enforcing the relevant provisions of the Federal Election Campaign Act, as amended by the
Bipartisan Campaign Reform Act of 2002 (BCRA).

3. WRTL admits that it does not qualify for any exception permitting it to pay for



TV Script

Client: Wisconsin Right to Life
Title: "Waiting" :30

Job#; WRL-8136

Date: July 14, 2004

VIDEO

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

SUPER:
www.BeFair.org

4-SECOND DISCLAIMER (4% or 20 scan lines):
Paid for by Wisconsin Right to Life (befair.org), which is
responsible for the content of this advertising, not
authorized by any candidate or candidate's committee.

AUDIO

vo:
There are a jot of judicial nominees out there
who can‘t go to work.

Their careers are put on hold because a group
of U.S. 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 Kohli and tell
them to oppose the filibuster.

Visit: BeFair.org .
WRL REPRESENTATIVE VO:

Wisconsin Right to Life is responsible for the
content of this advertising.

Exhibit Z



Radio Script

Client: Wisconsin Right to Life
Title: “Loan* :60

Job# WRL-8136

Date: July 14, 2004

AUDIO

TALENT

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 | went
fishing with my father. We were on the Wolf
River in Waupaca...

VO: 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. e

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

Visit: BeFair.org
Paid for by Wisconsin Right to Life (befair.org),
which is responsible for the content of this

advertising and not authorized by any
candidate or candidate's committee.

Exhibit

B



Court endorsed the constitutional adequacy of “the PAC option.” That holding by the Supreme
Court not only weighs against the likelihood of success on the merits, but it also suggests that
plaintiff has not advanced a strong case of irreparable harm in the absence of a prelirainary
injunction. Certainly, it suggests that the harm established by plaintiff will not weigh much in
the balance against potential harm to others under the third step of the test or against the public
interest under the fourth. Therefore, WRTL has failed the second as well as the first step of the
four-part test.

Given the absence of merit in plaintiff’s case on the first element of the preliminary
injunction test and the near-total absence of irreparable harm to the plaintiff under the second, we
need not linger long over the third and fourth elements. The harm to the opposing party, the
Federal Election Commission, is evident. Everyone agrees that it is the statutory duty of the
defendant to enforce the BCRA. If we enter the preliminary injunction, then, to the extent of that
injunction, the Commission cannot perform its duty. We hold that an injunction against the
performance of its statutory duty constitutes a substantial injury to the Commission, although
given plaintiff's failure on the first two elements, we do not consider that showing essential to
our denial of the preliminary injunction.

Similarly, since plaintiff has not established any entitlement to a preliminary injunction, it
is not essential that we determine that the grant of such an injunction would fail to further the
public interest, but for the sake of completion of record for the purposes of any review that might
be sought, we do hold that plaintiff has not established that the public interest would be furthered
by the injunction. The Supreme Court has already determined that the provisions of the BCRA

serve compelling government interests. See McConnell, 124 S.Ct. at 695-96. To the extent that



declaring 2 U.S.C. § 441b unconstitutional as applied to “electioneering communications . . . that
constitute grass-roots lobbying,” and specifically as applied to the three advertisements
incorporated in its complaint. Complaint 13. However, the motion before us today concerns
only its motion for a preliminary injunction. The standards for the granting of a preliminary
injunction are familiar. To prevail, a plaintiff seeking such relief must demonstrate: (1) a
substantial likelihood of success on the merits; (2) that it would suffer irreparable harm if an
injunction is not granted; (3) that an injunction would not cause substantial injury to other
parties; and (4) that the public interest would be furthered by the injunction. See, e.g., CityFed
Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). Plaintiff's showing
in the present litigation cannot survive this standard.

First, WRTL has not established that it has a substantial likelihood of success on the
merits. Just last year, in McConnell v. Federal Election Commission, 124 S. Ct. 619 (2003), the
Supreme Court upheld the electioneering communication provisions of the BCRA in their
entirety. Id. at 686-700. WRTL is correct that in McConnell the Court was considering a facial
challenge while the current challenge subjects the statute to constitutional analysis in the context
of its specific application, but the reasoning of the McConnell Court leaves no room for the kind
of “as applied” challenge WRTL propounds before us. More specifically, the Court noted that
the statute included a “back up” definition of electioneering communications, 2 U.S.C. §
434(£)(3)(A)(, to take effect only if the primary definition were held to be “constitutionally
insufficient.” The Court expressly stated that it need not rule on the constitutionality of that back
up provision because “we uphold all applications of the primary definition and accordingly have

no occasion to discuss the backup definition.” 124 S.Ct. at 687 n.73 (emphasis added). The



12. WRTL anticipates that its ongoing advertisements will be considered electioneering
communications for purposes of federal statutory and regulatory definitions under 2 U.S.C. §
434(f)(3) and 11 C.F.R. § 100.29 during the period between August 15, 2004, and November 2,

2004.

LEGAL CONCLUSIONS AND ANALYSIS

Plaintiff Wisconsin Right to Life seeks a judgment declaring portions of the BCRA
unconstitutional as applied to it under the facts set forth in its complaint, and it seeks preliminary
injunctive relief preventing FEC enforcement of those portions of BCRA against it.

The focus of the litigation is 2 U.S.C. § 441b, which regulates the extent to which such
corporations as WRTL may finance and produce “applicable electioncering communications,”
which are defined at 2 U.S.C. § 434(f)(3) as being “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 . . . election . . .; or (bb) 30 days before a primary...
election; and (IID) . . . is targeted to the relevant electorate.”

In this case, WRTL cites three specific ads, first aired July 26, which contain references
to Sen. Russell Feingold, currently the sole Democrat contender for the Senate seat. Complaint
5. As the primary election occurs on September 14 and the general election occurs on November
2, BCRA’s (in this case, overlapping) “blackout” periods prohibit the airing of the
advertisements from August 15 until November 2. Id. at 6.

WRIL/’s prayer for relief is sweeping, seeking both declaratory and injunctive relief



electioneering communications from corporate funds because (a) it is not a “qualified nonprofit
corporation” (QNC) 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). 2 U.S.C. § 441b(c)(6)(A).

4. U.S. Senator Russell Feingold of Wisconsin is running for reelection this year.

5. As carly as September, 2003, candidates opposing Senator Feingold made Senator
Feingold’s support of Senate filibusters against judicial nominees a campaign issue. Def.’s Opp’n
to Pl.’s Mot. for Prelim. Inj. (Def.’s Opp’n) Exh. 10-14.

6. WRTL maintains a political action committee (PAC).

7. In March 2004, WRTL’s PAC endorsed three candidates opposing Senator Feingold
and announced that the defeat of Senator Feingold was a priority. Def.’s Opp’n Ex. 4, 5, 6, 7.

8. In a news release on July 14, 2004, WRTL criticized Senator Feingold’s record on
Senate filibusters against judicial nominees. Def.’s Opp’n Exh. 16.

9. WRTL had used a variety of non-broadcast communications to convey its criticism of
Senate filibusters against judicial nominees in the months leading up to August 2004.

10. WRTL is now paying to broadcast on television arid radio a series of advertisements
inclusive of those depicted in Exhibits A, B, and C to the complaint and attached as Exhibits A,
B, and C hereto, all of which refer to and will continue to refer to and clearly identify Senator
Russell Feingold.

11. The Wisconsin primary for the office for which Senator Feingold is a candidate will

occur thirty days after August 15, 2004. The general election will occur November 2, 2004.