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      FEC Record: Litigation
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      Wisconsin Right to Life v. FEC

FEC Record: Litigation*Wisconsin Right to Life v. FEC*October 1, 2006 On September 13, 2006, a three-judge panel of the U.S. District Court for the District of Columbia denied Wisconsin Right to Life, Inc.'s (WRTL) motion for a temporary restraining order and preliminary injunction that would have prevented the Commission from enforcing the corporate financing restrictions applicable to electioneering communications (EC) with regard to certain WRTL broadcast ads to be run before the 2006 primary and general elections. Background Under the Federal Election Campaign Act (the Act) and Commission regulations, an EC is defined, with some exceptions, as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate and is publicly distributed within 60 days before the general election or 30 days before a primary election or a nominating convention for the office sought by the candidate. 2 U.S.C. §434(f)(3) and 11 CFR 100.29. Corporations may not make ECs using their general treasury funds.(1) 2 U.S.C. 441b(a)-(b) and 11 CFR 114.2 and 114.14. WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the prohibition on the use of corporate funds to pay for ECs unconstitutional as applied to what it calls "grassroots lobbying" communications planned for the period before the 2004 elections. After the district court both denied WRTL's motion for a preliminary injunction and dismissed WRTL's complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL's "as applied" challenge. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL's 2004 ads. The Plaintiff's current proposed efforts involve paying for broadcast advertisements that would air before the 2006 primary and general elections asking Wisconsin listeners to contact U.S. Senators Kohl and Feingold to urge them to stop what WRTL says are efforts by the Senate Democratic Leadership to hold up further action on the proposed Child Custody Protection Act. Senator Kohl is up for re-election in 2006 and the planned ads would run during the EC periods for Wisconsin's primary and general elections. According to WRTL, the ads would constitute bona fide grassroots lobbying because they express an opinion on pending Senate legislative activity, urge listeners to contact their Senators and do not refer to any political party or support or attack any candidate. WRTL argued that the ads were not the "functional equivalent of express advocacy;" thus, there was no constitutional justification for the prohibition on corporate payments for these ads or for requiring the ads to be paid for through WRTL's political action committee (PAC). WRTL asserted that, in this instance, the EC financing restrictions unconstitutionally burdened its First Amendment rights of free speech, free association and petitioning the government. Court Decision The three-judge court rejected WRTL's August 25, 2006, motion for a temporary restraining order and preliminary injunction regarding its planned 2006 ads, finding that WRTL had not demonstrated that it was entitled to relief under the four applicable factors: (1) whether WRTL had a substantial likelihood of success on the merits; (2) whether WRTL would suffer irreparable harm in the absence of an injunction; (3) whether an injunction would cause substantial injury to the other party; and (4) whether the public interest would be furthered by the injunction. Substantial likelihood of success on the merits. The court found that WRTL's constitutional claim failed to "tip the scale in favor of" an injunction. The court stated that the restrictions on corporate financing of ECs are presumed constitutional. In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court discussed the fact that a corporation has alternative methods of communicating its messages when the Court concluded that the EC restrictions are facially constitutional. In this case, the Defendants argued that the prohibition is consistent with the First Amendment because, among other things, WRTL retains these alternative methods of communication. Although the district court is currently considering whether these alternatives are in fact constitutionally adequate, the three-judge court found that it could not now conclude that WRTL would succeed on the merits based on an incomplete record. Whether plaintiff would suffer irreparable harm if an injunction was not granted. The court concluded that the actual limitation on WRTL's freedom of speech is not nearly as great as WRTL had argued. While the court agreed that, absent a preliminary injunction, WRTL has forever lost the opportunity to use its general treasury funds to run the planned ads, it noted that WRTL is not precluded from forwarding its message in other ways. The EC provisions do not prohibit the speech in question; they only require that corporations and labor organizations engaging in such speech channel their spending through PACs. WRTL can also communicate its message though non-broadcast media, such as newspapers and the Internet. Moreover, the court noted that WRTL could spend unlimited corporate funds to lobby via broadcast ads for the enactment of the Child Custody Protection Act so long as the ads omit any clear references to Senator Kohl. Whether an injunction would cause substantial injury to other parties. It is the statutory duty of the FEC to enforce the campaign finance law. The court found that enjoining the FEC from performing its statutory duty would constitute a substantial injury to the agency that would be far greater than "WRTL's harm from an FEC administrative investigation which carries little threat of imminent or certain sanction." Whether the public interest would be furthered by the injunction. Finally, the court found that granting the injunction would not further the public interest. The Supreme Court has determined that the EC prohibition serves compelling governmental interests. McConnell, 540 U.S. at 205. The three-judge court noted that the Supreme Court has made it clear that "as applied challenges," such as WRTL's, are permitted and has commanded the district court to consider WRTL's case on the merits with regard to its planned 2004 ads. However, the three-judge court did not find that these actions, without more, eliminated the presumption of the prohibition's constitutionality or that the balance of hardships favored WRTL in this case. U.S. District Court for the District of Columbia, CV04-1260 (DBS, RWR, RJL).  (1) Commission regulations provide an exception allowing "qualified nonprofit corporations" to pay for electioneering communications. 11 CFR 114.2(b)(2). However, WRTL alleges that it does not meet the definition of a qualified nonprofit corporation. 11 CFR 114.10.
 Author
          Carrie Hoback


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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