CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/7/2023 1

Issue Ads During Election Season 

Christian Civic League of Maine v. FEC 

(Louis F. Oberdorfer, D.D.C. 1:06-cv-614) 

An issue-advocacy organization filed a declaratory action in the 

U.S. District Court for the District of Columbia to challenge a proscription on issue advertising that mentions a candidate close to an 

election. A three-judge district court denied a preliminary injunction against enforcement of the proscription. 

Subject: Campaign activities. Topics: Campaign materials; 

corporate electioneering; three-judge court; intervention; recusal; 

interlocutory appeal. 

On Monday, April 3, 2006, the Christian Civic League of Maine (CCL) filed 

an action against the Federal Election Commission in the U.S. District Court 

for the District of Columbia claiming that it was a violation of CCL’s First 

Amendment rights for the Bipartisan Campaign Reform Act of 2002 

(BCRA)1

 to proscribe CCL’s issue advertisement during the thirty days preceding Maine’s June 13, 2006, primary elections.2

 The radio ad that CCL 

wished to air extolled the sanctity of heterosexual marriage, criticized 

Maine’s Senators Olympia Snowe and Susan Collins for voting against a proposed Marriage Protection Amendment in 2004, and encouraged listeners to 

urge the senators to vote the other way in June.3 The statute forbade a corporation from using general corporate funds for a broadcast, cable, or satellite 

communication that clearly identifies a candidate for federal office during 

the thirty days preceding a primary election or the sixty days preceding a 

general election.4 Senator Snowe was up for reelection in 2006.5 CCL sought 

declaratory and injunctive relief in favor of (1) its intended ad and (2) similar 

communications, which CCL referred to as “grass-roots lobbying.”6 With its 

complaint, CCL filed a motion for a preliminary injunction,7 an application 

1. Pub. L. No. 107-155, 116 Stat. 81 (2002); see 52 U.S.C. § 30118 (regulating corporate 

electioneering). 

2. Complaint, Christian Civic League of Me., Inc. v. FEC, No. 1:06-cv-614 (D.D.C. Apr. 

3, 2006), D.E. 1; Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81, 84–85 

(D.D.C. 2006); see David Farmer, Christian Civic League Files Suit Over Election Law, Lewiston Sun J., Apr. 19, 2006, at A2; Bart Jansen, League Targets Snowe, Ad Limits, Portland 

Press Herald, Apr. 23, 2006, at C2. 

3. Ex. A, Complaint, supra note 2; Christian Civic League, 433 F. Supp. 2d at 84; see

Farmer, supra note 2; Jansen, supra note 2. 

4. Christian Civic League, 433 F. Supp. 2d at 84. 

5. Id.; see Farmer, supra note 2 (reporting also that Senator Snowe coauthored the antielectioneering legislation); Jansen, supra note 2 (same). 

6. Complaint, supra note 2, at 13. 

7. Preliminary-Injunction Motion, Christian Civic League, No. 1:06-cv-614 (D.D.C. Apr. 

3, 2006), D.E. 4. 
Issue Ads During Election Season 

2 Federal Judicial Center 10/7/2023 

pursuant to BCRA for a three-judge district court,8 and a motion to expedite 

the case.9

On Wednesday, Judge Louis F. Oberdorfer granted the application for a 

three-judge court and the motion to expedite the case, and he ordered briefing on the preliminary-injunction motion completed by Friday, April 21.10

The three-judge court was named on Friday, April 7, including District Judge 

Colleen Kollar-Kotelly, but on the following Monday, Circuit Judge Judith 

W. Rogers replaced Circuit Judge Karen LeCraft. Henderson.11

On April 17, five members of Congress—two senators and three representatives—moved to intervene to defend the statute.12 Judge Oberdorfer’s 

former law firm, which he left in 1977, represented the intervenors.13 He notified the parties of this fact and stated that he ordinarily disqualified himself 

from cases under such circumstances, but he stated that his recusal was not 

required and his recusal might be disruptive in this expedited case, and any 

party was free to make a confidential motion with the clerk for his recusal.14

The record did not reflect a recusal motion,15 and the court granted the intervention motion on April 20.16

The court heard oral argument on the preliminary-injunction motion on 

April 2417 and denied the motion on May 9,18 five days before the primaryelection blackout on corporate electioneering in Maine. 

On June 7, the Senate held a cloture vote on the Marriage Protection 

Amendment.19 The amendment failed to advance with a vote of forty-nine 

favoring cloture and forty-eight opposed.20 Senators Snowe and Collins op8. Application, id. (Apr. 3, 2006), D.E. 3; see Pub. L. No. 107-155, 116 Stat. 81 § 403 

(2002), 52 U.S.C. § 30110 note. 

9. Motion, Christian Civic League, No. 1:06-cv-614 (D.D.C. Apr. 3, 2006), D.E. 5. 

10. Order, id. (Apr. 5, 2006), D.E. 8. 

Judge Oberdorfer died on February 21, 2013. Federal Judicial Center Biographical Directory of Article III Federal Judges [hereinafter FJC Biographical Directory], www.fjc.gov/ 

history/judges. 

11. Docket Sheet, Christian Civic League, No. 1:06-cv-614 (D.D.C. Apr. 3, 2006). 

12. Intervention Motion, id. (Apr. 17, 2006), D.E. 18. 

13. Notice to Counsel, id. (Apr. 19, 2006), D.E. 21; Christian Civic League Intervention 

Motion, supra note 12; FJC Biographical Directory, supra note 10. 

14. Christian Civic League Intervention Motion, supra note 12. 

15. Christian Civic League Docket Sheet, supra note 11. 

16. Order, Christian Civic League, No. 1:06-cv-614 (D.D.C. Apr. 20, 2006), D.E. 25; see

Christian Civic League of Me., Inc. v. FEC, 433 F. Supp. 2d 81, 85 (D.D.C. 2006). 

17. Transcript, Christian Civic League, No. 1:06-cv-614 (D.D.C. Apr. 24, 2006, filed Apr. 

26, 2006), D.E. 28. 

18. Christian Civic League, 433 F. Supp. 2d 81; see Bart Jansen, Christian Group to Appeal 

for Right to Air Political Ad, Portland Press Herald, May 11, 2006, at B1. 

19. Status Report at 1, Christian Civic League, No. 1:06-cv-614 (D.D.C. June 25, 2006), 

D.E. 40. 

20. See Chris Casteel, Marriage Amendment Falls Short in Senate, Oklahoman, June 8, 

2006, at 1A; Carolyn Lochhead, Same-Sex Marriage Ban Rejected by Senate, S.F. Chron., June 

8, 2006, at A1. 
Issue Ads During Election Season 

Federal Judicial Center 10/7/2023 3

posed cloture.21

On September 27, the three-judge court determined that claims pertaining to the proposed radio ad were moot and claims pertaining to grass-roots 

lobbying were too speculative to be justiciable.22

CCL’s May 12 interlocutory appeal to the Supreme Court on denial of its 

preliminary-injunction motion was dismissed as moot on October 2.23 CCL’s 

October 26 appeal from dismissal of its complaint resulted in a June 29, 2007, 

remand for reconsideration24 in light of an intervening Supreme Court case, 

Federal Election Commission v. Wisconsin Right to Life,

25 which was decided 

on June 25, 2007. 

In Wisconsin Right to Life, Chief Justice Roberts and Justice Alito determined that BCRA could proscribe “campaign advocacy,” but it could not 

proscribe “issue advocacy,” absent narrow tailoring to serve a compelling interest.26 Justices Scalia, Kennedy, and Thomas would have struck down the 

proscription on corporate electioneering altogether.27 All five of these justices 

agreed that cases similar to CCL’s “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.”28

CCL’s case came to a close on August 21, 2007.29 The three-judge court 

determined that BCRA could not proscribe CCL’s proposed 2006 radio ad, 

but CCL’s other claims were still too speculative for relief.30

21. Roll Call Vote, www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm? 

congress=109&session=2&vote=00163. 

22. Opinion, Christian Civic League, No. 1:06-cv-614 (D.D.C. Sept. 27, 2006), D.E. 52, 

2006 WL 2792683. 

23. Christian Civic League of Me., Inc. v. FEC, 549 U.S. 801 (2006). 

24. Christian Civic League of Me., Inc. v. FEC, 551 U.S. 1160 (2007). 

25. 551 U.S. 449 (2007). 

26. Id. at 456–57, 464–76 (opinion by Chief Justice Roberts, joined by Justice Alito); see

Robert Barnes, 5–4 Supreme Court Weakens Curbs on Pre-Election TV Ads, Wash. Post, June 

26, 2007, at A1. 

27. Wisconsin Right to Life, 551 U.S. at 483–504 (opinion by Justice Scalia concurring in 

part and concurring in the judgment, joined by Justices Kennedy and Thomas); see Barnes, 

supra note 26; Linda Greenhouse & David D. Kirkpatrick, Justices Loosen Ad Restrictions in 

Campaign Law, N.Y. Times, June 26, 2007, at A1. 

28. Wisconsin Right to Life, 551 U.S. at 462 (opinion by Chief Justice Roberts, joined by 

Justices Scalia, Kennedy, Thomas, and Alito). 

29. Christian Civic League Docket Sheet, supra note 11. 

30. Order, Christian Civic League of Me., Inc. v. FEC, No. 1:06-cv-614 (D.D.C. Aug. 21, 

2007), D.E. 61.