UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

)

THE CHRISTIAN CIVIC LEAGUE OF )

MAINE, INC., )

)

Plaintiff, )

) Civil Action No. 06-0614 (JWR, LFO, CKK)

v. ) (Three-Judge Court)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant, )

)

and )

)

JOHN MCCAIN, RUSSELL FEINGOLD, )

CHRISTOPHER SHAYS, MARTIN )

MEEHAN, AND TOM ALLEN, )

)

Intervenor-Defendants. )

 )

MEMORANDUM OPINION

Plaintiff Christian Civic League of Maine, Inc. (the “League”) seeks declaratory and

injunctive relief in support of its efforts to broadcast (1) a particular political advertisement (the

“Crossroads advertisement”) in advance of a June 2006 United States Senate vote and (2)

“materially similar” advertisements in the future. Verified Complaint ¶ 16, Prayer for Relief

(filed Apr. 3, 2006). Defendant Federal Election Commission (the “Commission”), has moved

to dismiss the League’s claims as “not ripe” and/or “too speculative and hypothetical to be

justiciable under Article III” insofar as they pertain to any circumstances other than those

surrounding the efforts of the League to broadcast the Crossroads advertisement. Commission’s

Motion at 1 (filed June 12, 2006). The intervenor-defendants, certain legislators (the

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“Legislators”), have moved for partial judgment on the pleadings on the same aspects of the

League’s claims, for the same reasons. The League opposes these motions.

Additionally, the court has suggested that the balance of the case – i.e., the claims of the

League insofar as they do pertain to the circumstances surrounding its efforts to broadcast the

Crossroads advertisement – may be moot and not saved by the “capable of repetition, yet

evading review” exception to that doctrine. See June 23, 2006 Order. The Legislators have

agreed that this aspect of the League’s claims “does . . . appear moot . . . . [and] not capable of

repetition,” Legislators’ Response at 2 (filed July 7, 2006); the Commission has stated that the

court’s suggestion raises a “close question,” Commission’s Response at 1 (filed July 7, 2006);

and the League has opposed the suggestion.

We conclude that the League’s claims are (1) not ripe and/or too speculative and

hypothetical to be justiciable insofar as they pertain to any circumstances other than those

surrounding the efforts of the League to broadcast the Crossroads advertisement and (2) moot

and not saved by the “capable of repetition, yet evading review” exception to that doctrine

insofar as they do pertain to the circumstances surrounding the League’s efforts to broadcast the

Crossroads advertisement. Accordingly, an accompanying order grants the pending partial

motions to dismiss and for judgment on the pleadings and otherwise dismisses the League’s

remaining claims as moot.

I. BACKGROUND

An earlier opinion in this case (in which we denied the League’s motion for a preliminary

injunction) provides the factual and legal background to this dispute. See May 9, 2006

Memorandum Opinion. Briefly, the League – a self-styled “nonprofit, nonstock . . . ideological”

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corporation that engages in some business activity, Verified Complaint ¶¶ 20, 22 – sought to use

general corporate funds to broadcast the Crossroads advertisement in advance of a June 2006

Senate vote. The Crossroads advertisement identified Senator Olympia Snowe by name; Senator

Snowe was a candidate in a primary election scheduled for June 13, 2006. The League brought

suit on First Amendment grounds in recognition of the fact that the Federal Election

Communications Act, as amended by the Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, and codified at 2 U.S.C. § 431 et seq. (the “Act”), appeared to prohibit it from

broadcasting the Crossroads advertisement in the described circumstances. (The Act prohibits

corporations from using general corporate funds for “electioneering communication[s],” 2

U.S.C. § 441b(a), (b)(2), defined as any “broadcast, cable, or satellite” communication, issued

within thirty days of a federal primary election or sixty days of a general federal election (the

“blackout period”), that “clearly identifie[s]” a candidate in that election and “target[s]” the

relevant electorate, 2 U.S.C. § 434(f)(3)(A)(i)).

The Supreme Court has previously rejected a facial challenge to the relevant provision of

the Act (the “electioneering communications provision”). See McConnell v. Federal Election

Comm’n, 540 U.S. 93, 189-94, 203-11 (2003). In McConnell, the Court recognized that the

electioneering communications provision extends to prohibit some “issue advertis[ements].” 540

U.S. at 126-32, 189-94, 203-05. The Court concluded, however, that that provision is tailored

sufficiently narrowly to meet a compelling governmental interest and to survive constitutional

scrutiny. See id. at 193, 204-06. As the Court noted: “[C]orporations and unions may finance

genuine issue ads during [the blackout periods] by simply avoiding any specific reference to

federal candidates, or in doubtful cases by paying for the ad from a segregated fund.” Id. at 206.

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Subsequently, in Wisconsin Right to Life, Inc. v. Federal Election Commission, 126 S. Ct.

1016, 1018 (2006), the Court clarified that its decision in McConnell did not pose an absolute bar

to as-applied challenges to the electioneering communications provision; i.e., the First

Amendment might require the exemption of particular advertisements, in particular

circumstances, from the Act’s definition of an electioneering communication. The League

argues that the Crossroads advertisement (as well as “materially similar” future advertisements)

requires such an exemption.

On May 9, 2006, we denied the League’s motion for a preliminary injunction. The

League did not run the Crossroads advertisement during the blackout period in advance of the

June 13, 2006 primary. See League’s Response to Court’s Suggestion of Mootness at 5 (filed

June 30, 2006). In early June 2006, the Senate voted on the legislation to which the Crossroads

advertisement pertained. See Joint Report of the Parties at 1 (filed June 15, 2006).

II. ANALYSIS

The League’s claims with respect to the Crossroads advertisement are moot. Yet, the

League argues that its lawsuit should proceed nonetheless because (1) its claims reference not

only the Crossroads advertisement but also “materially similar” advertisements that it might

broadcast in the future, Verified Complaint ¶ 16, and/or (2) the Crossroads advertisement portion

of the case qualifies for the “capable of repetition, yet evading review” exception to the

mootness doctrine. We disagree on both issues.

A. The Non-Crossroads Claims.

Insofar as the League’s claims pertain to any circumstances other than those surrounding

its efforts to broadcast the Crossroads advertisement (the “non-Crossroads claims”), those claims

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In resolving a jurisdictional issue on a motion to dismiss or motion for judgment on the 1

pleadings, “where necessary, the court may consider the complaint supplemented by undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” See Herbert v. National Academy of Sciences, 974 F.2d 192 (D.C.

Cir. 1992).

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are not justiciable because they are not ripe and/or are too speculative and hypothetical. 

The League bears the burden of clearly alleging and ultimately proving that the nonCrossroads claims are justiciable. See Renne v. Geary, 501 U.S. 312, 316 (1991) (“It is the

responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to

invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”)

(quotation marks omitted). Here, far from establishing such justiciability, the League has

admitted that it has no current plans to broadcast any advertisements about any issue. First, at

1

deposition, its Executive Director testified:

Q: . . . . Do you have any current plans to run ads on radio or TV

about the federal marriage amendment other than the

Crossroads ad?

A: No.

Q: Do you have any plans to run ads on radio or TV about

anything other than the Crossroads ad?

A: No.

. . . .

Q: Paragraph 16 [of the League’s Verified Complaint] says that

[the League] plans to run materially similar ads after mid

June on a range of other issues; correct?

A: Uh-huh. Uh-huh.

Q: Is that a correct statement of [the League]’s plans today?

A: Yes.

Q: Can you describe those plans?

A: No.

Q: Why not?

A: Because it’s not beyond a simple plan or intention to do that.

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. . . .

Q: Is there any specific issue you can tell me that [the League]

plans to run a radio or TV ad on in the future other than the

Crossroads ad?

A: No. We have no other script written. We have no other

issues selected for future campaigns.

Commission’s P.I. Opp. (filed Apr. 17, 2006), Ex. A (Apr. 2006 Deposition of Michael Heath at

74-75, 82-83). The League’s attorney forthrightly confirmed this lack of plans in a May 22,

2006 report to the court and at a June 5, 2006 status conference. See Joint Report at 8 (filed May

22, 2006) (“no concrete plans to run ads”); June 5, 2006 Status Conference Transcript at 14

(“We have no current plans to do an ad . . . .”).

“Article III . . . confines . . . [the courts] to resolving real and substantive controvers[ies]

admitting of specific relief through a decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical state of facts.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990) (quotation marks omitted); see also International

Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)

(“Determination of the . . . constitutionality of legislation in advance of its immediate adverse

effect in the context of a concrete case involves too remote and abstract an inquiry for the proper

exercise of the judicial function.”). This is no less true in cases involving First Amendment

arguments: “The constitutional question, First Amendment or otherwise, must be presented in

the context of a specific live grievance.” Golden v. Zwickler, 394 U.S. 103, 110 (1969). “Even

the ‘chilling’ of the most protected First Amendment rights of free speech does not create a case

or controversy without a ‘specific present objective harm or a threat of specific harm.’” National

Conference of Catholic Bishops v. Smith, 653 F.2d 535, 539-40 (D.C. Cir. 1981) (quoting Laird

v. Tatum, 408 U.S. 1, 13-14 (1972)).

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Accordingly, to be justiciable, the League’s challenge to the constitutionality of the Act’s

electioneering communications provision must arise from a dispute that is “credible and

immediate, and not merely abstract or speculative.” Navegar, Inc. v. United States, 103 F.3d

994, 998 (D.C. Cir. 1997); see also id. (courts must avoid “entangle[ment] in abstract

disagreements”) (quotation marks omitted). The dispute must be of “‘sufficient immediacy and

reality,’” Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1137 n.3 (D.C. Cir. 1989) (quoting

Golden, 394 U.S. at 108-09), and not based on a “‘hypothetical state of facts,’” Federal Express

Corp. v. Air Line Pilots Ass’n, 67 F.3d 961, 963-64 (D.C. Cir. 1995) (quoting Aetna Life Ins. Co.

of Hartford, Conn. v. Haworth, 300 U.S. 227, 241 (1937)).

In Renne v. Geary, 501 U.S. 312 (1991), the Supreme Court held non-justiciable (as unripe) a First Amendment challenge to a California constitutional provision that barred political

parties from endorsing candidates for non-partisan offices. In so ruling, the Court relied on the

plaintiffs’ failure to allege a present intention to endorse any particular candidate or that any

particular candidate desired to publicize such an endorsement. See Renne, 501 U.S. at 321. The

Court further relied on the lack of an adequate factual record regarding “the nature of the

endorsement, how it would be publicized, or the precise language [of the endorsement].” Id. at

321-22. So too here. The League has admitted that it lacks a present intention to broadcast any

particular advertisement; nor has it alleged the interest of any group in having it broadcast such

an advertisement. And nor has the League, necessarily, developed any factual record regarding,

for example, the text of any such future advertisement; where, when, and how the advertisement

would be broadcast; and/or the alternative funding opportunities that might be available to the

League in the given, hypothetical situation.

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The League offers three counter-arguments in support of the justiciability of the nonCrossroads claims. First, it argues that it has alleged a sufficiently concrete dispute by asserting

that any future advertisement would be “materially similar” to the Crossroads advertisement. 

See League’s Opp. at 5-9 (filed June 30, 2006) (quoting Verified Complaint ¶ 16). The League

explains that “materially similar, by definition, means that the ads’ text, placement[,] and timing

would put them in contravention of the electioneering communication prohibition, just as the

text, placement, and timing of the Crossroads ad put it in contravention of the electioneering

communication prohibition.” Id. at 6-7. Under this logic, however, the non-Crossroads portion

of the League’s claims would simply devolve into a facial challenge to the relevant statutory

provision – a challenge that the Supreme Court has already rejected. See McConnell v. Federal

Election Comm’n, 540 U.S. 93, 189-94, 203-11 (2003).

The League next relies on the decision of the United States Court of Appeals for the

District of Columbia in Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997). See

League’s Opp. at 2-4 (filed June 30, 2006). As the League notes, that decision found adequately

justiciable a pre-enforcement challenge to the constitutionality of a particular statute. 

See Navegar, 103 F.3d at 999-1001. In Navegar, however, the disputed statute, which was

newly enacted, prohibited the manufacture of certain weapons of which the plaintiff was the only

manufacturer. See id. at 1000. Additionally, federal agents had visited the plaintiffmanufacturer on the very day of the statute’s enactment to inventory the plaintiff’s alreadymanufactured weapons, which were grandfathered under the statute. See id. Here, the relevant

provision of the Act does not specifically target the League, and federal agents (e.g.,

Commission staff) have not taken special notice of League activities. As such, the present case

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 The Commission has recently considered a grassroots lobbying exemption to the Act’s 2

electioneering communications provision. See Audio Recordings Attached to Agenda Items

3&4 at www.fec.gov/agenda/2006/agenda20060829.shtml (visited Sept. 7, 2006). Noting it

judicially, we deem it of no consequence here.

 The Commission offers an advisory opinion process by which it will offer parties,

3

within sixty days, a ruling on whether it considers that the broadcast of a particular

advertisement, in the context of particularly described circumstances, would run afoul of the

Act’s electioneering communications provision. See 2 U.S.C. § 437f; see also 

www.fec.gov/pages/brochures/ao.shtml (visited Sept. 7, 2006).

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is more analogous to the balance of the Navegar decision – which part of the decision finds nonjusticiable challenges by the plaintiff-manufacturer to certain other, more generally applicable

statutory provisions. See id. at 1001-02.

Finally, the League argues that it faces a non-speculative threat of prosecution because it

has alleged a desire to broadcast advertisements that, by definition, would violate the relevant

provision of the Act. See League’s Opp. at 9-12 (filed June 30, 2006). The League’s claims are

speculative, however, in that it has no current plans to run any particular advertisement in any

particular circumstances. This leaves the threat of enforcement speculative, for many of the

reasons discussed above. See, e.g., National Conference, 653 F.2d at 539-40.

What the League really seeks via its non-Crossroads claims is for the court to promulgate

a rule exempting all “grass roots lobbying” – a phrase the League never defines – from the Act’s

electioneering communications provision. This court, however, decides present disputes based

2

on particular facts – and especially so where faced with an as-applied challenge, as here. Absent

a concrete dispute, this court lacks jurisdiction.3

B. The Crossroads Claims.

Insofar as the League’s claims do pertain to the circumstances surrounding its efforts to

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broadcast the Crossroads advertisement (the “Crossroads claims”), those claims are moot and not

saved by the capable of repetition yet evading review exception to that doctrine. Those claims

are moot in that the court could not order any effectual relief with regards to the Crossroads

advertisement: because the Senate vote referenced in that advertisement has come and gone,

injunctive or declaratory relief regarding the advertisement is no longer of use to the League. 

Nor are the Crossroads claims capable of repetition in that those claims were tied to the specific

circumstances of the Crossroads advertisement. And, to any extent to which those circumstances

reasonably may repeat (e.g., by defining those circumstances in the most general of terms), they

do not necessarily evade review.

1. The Crossroads Claims Are Moot.

The Crossroads claims are moot. A claim is moot where a court, on that claim, “cannot

grant ‘any effectual relief whatever.’” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per

curiam) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)); see also Pharmachemie B.V. v. Barr

Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (“A case is moot if events have so transpired that

[a court] decision will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.”) (quotation marks omitted). Here, the

occurrence of the June 2006 Senate vote on the relevant legislation leaves the court without

power to provide effectual relief with regard to the Crossroads advertisement; the window of

time in which the League could run that advertisement has expired. “A federal court has no

‘power to render advisory opinions [or] . . . decide questions that cannot affect the rights of the

litigants in the case before them.’” Alliance for Democracy v. Federal Election Comm’n, 335 F.

Supp. 2d 39, 42 (D.D.C. 2004) (quoting National Black Police Ass’n v. District of Columbia,

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108 F.3d 346, 349 (D.C. Cir. 1997)).

2. The Crossroads Claims Do Not Qualify for the “Capable of Repetition, Yet

Evading Review” Exception to the Mootness Doctrine.

Nor do the Crossroads claims qualify for the “capable of repetition, yet evading review”

exception to the mootness doctrine; those claims are neither “capable of repetition” nor “evad[e]

review.” The Supreme Court has recognized the “capable of repetition, yet evading review”

exception at least since its decision in Southern Pacific Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498, 515 (1911). The exception remains applicable, however, “only in

exceptional situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and only upon the

satisfaction of “both [of its] prongs,” Pharmachemie, 276 F.3d at 633. “To invoke this

exception, petitioners have the burden to demonstrate that [its requirements are met].” Public

Utils. Comm’n of the State of Calif. v. Federal Energy Regulatory Comm’n, 236 F.3d 708, 714

(D.C. Cir. 2001); accord Southern Co. Servs., Inc. v. Federal Energy Regulatory Comm’n, 416

F.3d 39, 43 (D.C. Cir. 2005).

In order for the League to demonstrate the applicability of the “capable of repetition”

prong, it must establish a “reasonable expectation or a demonstrated probability that the same

controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478,

482 (1982) (per curiam) (quotation marks omitted) (emphasis added). The Supreme Court has

not held that a “mere physical or theoretical possibility” of repetition is sufficient to establish the

exception’s applicability because, if it were, “virtually any matter of short duration would be

reviewable.” Id. The alleged wrong at issue “must be defined in terms of the precise

controversy it spawns.” People for the Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d

416, 422-23 (D.C. Cir. 2005). Even so defined, an as-applied challenge to a statute may be

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“capable of repetition” for purposes of the exception. See Storer v. Brown, 415 U.S. 724, 737

n.8 (1974).

“Challenges to rules governing elections are the archetypal cases for application of [the

capable of repetition, yet evading review] exception.” LaRouche v. Fowler, 152 F.3d 974, 978

(D.C. Cir. 1998). The exception, however, does not automatically apply in such a circumstance. 

See, e.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187-88 (1979)

(dismissing as moot challenge to authority of Chicago Board of Election Commissioners to enter

settlement agreement regarding ballot access signature requirement).

Here, the Crossroads claims are not “capable of repetition.” The Crossroads claims

constitute an as-applied, i.e., fact-specific, challenge to the relevant provision of the Act. As

such, those claims depended on the confluence of specifics, including: a speaker that happened

to be incorporated, a speaker intent on using corporate funds (rather than political action

committee funds) to fund its proposed speech, a speaker intent on using broadcast media to

publish its speech, and a speaker intent on mentioning a candidate for federal office in its

proposed speech and doing so within thirty days of that candidate’s primary election. In our

opinion denying the League’s preliminary injunction motion, we noted the relevance of

additional, “as-applied” facts, including the League’s reference in its proposed speech to a past

legislative action of Senator Snowe as “[u]nfortunate[]” and the fact that the League had

previously sounded an enthusiastic note in discussing a potential electoral challenge to Senator

Snowe. See May 9, 2006 Memorandum Opinion at 10. The chances of recurrence of this perfect

storm is small, thereby foreclosing application of the “capable of repetition, yet evading review”

exception. See Public Utils. Comm’n, 236 F.3d at 714 (“The Supreme Court has . . . required not

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merely a physical or theoretical possibility of recurrence but a reasonable expectation if not a

demonstrated probability that petitioners will be subject to the same action.”) (quotation marks

and citation omitted); People for the Ethical Treatment of Animals, 396 F.3d at 424 (“To

conclude that a dispute like this would arise in the future requires us to imagine a sequence of

coincidences too long to credit.”).

The League counters that a ruling that its Crossroads claims are not capable of repetition

would prevent similar claims from ever gaining meaningful review: the claims routinely will be

mooted before full appellate review. This is not necessarily true – to any extent to which the

League’s claims are capable of repetition, they will not necessarily evade review. A plaintiff

could bring its lawsuit much earlier than did the League. A corporate plaintiff, for example,

might bring a lawsuit more than a year in advance of an election if it had concrete plans to

broadcast within sixty days of the election a specific advertisement, paid for with corporate

funds, that mentioned a declared candidate. Such a lawsuit would be ripe and stand a strong

chance of gaining full appellate review in light of the Act’s requirement that the judiciary

expedite consideration of such challenges. See Act, § 403(a)(4) (“It shall be the duty of the

United States District Court for the District of Columbia and the Supreme Court of the United

States to advance on the docket and to expedite to the greatest possible extent the disposition of

[any action challenging the constitutionality of any provision of the Act].”); cf. First Nat’l Bank

of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (eighteen months an inadequate period of time for

complete judicial review, in context of a statute that did not require expedition).

III. CONCLUSION

For the foregoing reasons, an accompanying order grants the pending motions and

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otherwise dismisses the League’s claims as moot.

/s/

Judith W. Rogers

UNITED STATES CIRCUIT JUDGE

/s/

Louis F. Oberdorfer

UNITED STATES DISTRICT JUDGE

/s/

Colleen Kollar-Kotelly

UNITED STATES DISTRICT JUDGE

DATED: September 27, 2006

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