FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE
Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the Federal Election Commission (FEC), claiming that the BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as applied" challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In McConnell v. Federal Election Commission, the Court had upheld Congress's power to regulate "express advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads" rather than express advocacy. WRTL also argued that the government lacked a compelling interest sufficient to override the corporation's First Amendment free speech interest. The FEC countered that WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but are intended to affect an election.
A three-judge District Court agreed with WRTL's arguments and ruled the BCRA unconstitutional as applied to the ads. The court refused the FEC's request that it inquire into the intent and likely effect of the ads, because those determinations would be impractical and would have a chilling effect on protected speech. Analyzing only the explicit content of the ads, the court found them to be legitimate issue ads and not express advocacy or sham issue ads. The court also held that the government's justification for banning express advocacy ads by corporations - the need to reduce political corruption and public cynicism - did not apply to ads that do not endorse or oppose a candidate. Therefore, the court ruled that the government lacked a compelling interest to justify the burden on WRTL's First Amendment rights.
Is the Bipartisan Campaign Reform Act's ban on the use of corporate treasury funds for political advertisements in the 60 days before an election unconstitutional as applied to advertisements that do not explicitly endorse or oppose a candidate?
Legal provision: Federal Election Campaign
Yes. By a 5-4 vote the Court ruled that BCRA's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's. Chief Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.
Argument of Paul D. Clement
Chief Justice Roberts: We'll hear argument first this morning in Case 06-969, Federal Election Commission versus Wisconsin Right to Life, and Case 06-970, Senator McCain versus Wisconsin Right to Life.
Mr. Clement: Mr. Chief Justice, and may it please the Court:
In McConnell against FEC this Court upheld Title II's restrictions on electioneering communications by unions and corporations against facial attack.
In doing so, this Court reviewed a voluminous record and concluded that the vast majority of the ads that had been run in previous cycles and came within the statutory definition could constitutionally be regulated by Congress.
Accordingly, this Court rejected the overbreadth challenge and upheld the statute on it face.
To be sure, the last time this case was before the Court the Court made clear that nothing in McConnell foreclosed an opportunity for as-applied challenges to the statute and the Court remanded the case for that purpose.
But to be consistent with McConnell's overbreadth decision, any as-applied challenge cannot have the effect of calling into question a substantial percentage of the statute's applications.
Yet the district court's decision below has precisely that forbidden effect.
There is nothing atypical about the three ads that are before this Court.
Indeed, they closely resemble the Jane Doe hypothetical ads that this Court identified at page 127 as the prototype of ads that, although they took the form of issue ads, nonetheless were functionally equivalent to express advocacy.
Justice Scalia: Maybe we were wrong last time.
Mr. Clement: Well, Justice Scalia, I don't think you were wrong, and I suppose that obviously you thought the rest of the Court was wrong in McConnell, and if the Court wants to reconsider that decision... I mean, that's an option the Court can take in the appropriate case.
I would suggest that this is not the appropriate case for a number of reasons, not the least of which is that I think it was briefed in this case really as something of an afterthought, not as a principal focus of the briefing.
In the McConnell case this Court, as you well remember, had an unbelievably exhaustive record before it in making a judgment about the facial constitutionality of the law.
Justice Scalia: Well, we didn't have a concrete case such as this one, in which the assertions of the other side are very appealing as far as the rights of citizens to band together for an issue ad, even an issue ad that names somebody who's up for election within, within 90 days.
We didn't that have appealing case before us.
Now that we have it before us and now that you tell us that this is a typical case, maybe we were wrong about the overbreadth challenge before.
Mr. Clement: With respect, I don't think you were.
And although you didn't have this case before you, you had many, many concrete cases before you that are really indistinguishable from this case.
You had the--
Chief Justice Roberts: How are we supposed to decide whether this case... if you think it's important to our resolution, how are we supposed to decide whether this particular case is typical or not?
Mr. Clement: --Well, I guess it's hard for me to say how you would decide whether it's typical.
I'm not sure that's the question.
Chief Justice Roberts: I think it's very hard to determine.
Therefore, I think it's hard to determine in the abstract whether its inconsistent with the conclusion in McConnell that a vast majority of the cases would not be covered or if it's inconsistent with it.
Mr. Clement: Well, Mr. Chief Justice, let me try to come at it this way, which is to say I would have thought that if you're not going to overturn McConnell, you're just going to apply it and say, well, what kind of as-applied challenges are left, I would have thought that what you would have in mind is ads that had an identifiable characteristic that marked them as being outside of the mainstream and somehow different from most of the ads.
Chief Justice Roberts: That gets back to my same question: How do we know that this is or is not outside the mainstream.
We have just the three ads that are at issue here.
It's not as if we have a survey of all the ads that are run during the blackout periods in particular election cycles.
How do we tell whether this is within the mainstream or not?
Mr. Clement: --One strong indicator that these are in the mainstream is how close they are to the Jane Doe hypothetical that this Court identified as the prototype of the kind of ads that, although they took the form of issue ads, they looked like issue ads, they really were indistinguishable from and the functional equivalent of express advocacy.
Justice Ginsburg: General Clement, that Jane Doe ad was in the record last time.
They were others, weren't there, the issue ads?
Mr. Clement: There were hundreds.
I mean, as you well remember, there were hundreds of ads in the record.
And this Court was able to draw conclusions about them both by looking at some of the specifics, but also looking at the forest, if you will.
One of the things they recognized, for example, is that these ads weren't turning up uniformly wherever issues were being debated.
These ads turning up in the close elections, in the close races.
And there was--
Chief Justice Roberts: Counsel, the Court in McConnell used the term, as you've used it this morning, "vast majority".
What is that?
Is 70 percent a vast majority, so that 30 percent of the ads are going to be outside of that and would be candidates for this as-applied challenge?
Mr. Clement: --No, no, Mr. Chief Justice, because the Court used 70 percent, it could mean 80 percent, it could mean 90 percent.
Equally importantly, on page 207 of the opinion, when it was specifically addressing overbreadth, it made the argument, it made the conclusion, that both in absolute and relative terms this statute was not substantially overbroad.
And it seems to me then at a minimum for any as-applied challenge to be consistent with that overbreadth determination, it can't have the effect of opening up the statute wide open such that on a going forward basis the majority, certainly a substantial number, percentage, inconsistent with an overbreadth holding, of the ads that would be run by unions and corporations within the last 60 days of the election would qualify for the exception.
That just seems inconsistent with the overbreadth holding.
Justice Scalia: Well, did that statement refer only to issue ads, or did it refer to all ads?
Mr. Clement: It referred to all ads that would come within the statutory prohibition.
Justice Scalia: Right, and here we are dealing with a subset of all ads and that is issue ads.
So that statement doesn't necessarily speak to whether, you know, a vast majority of all issue ads have to be--
Mr. Clement: But with respect, Justice Scalia, there were so many issue ads in the record in McConnell that if issue ads were an appropriate category for as-applied challenges, it would have been impossible for this Court to reject the overbreadth burden.
Justice Scalia: --I don't know if that's so.
So long as that statement applied to the totality of ads, many of which were ads just directed at defeating particular candidates, I don't see how you can see that we're bound by that statement.
Mr. Clement: Well, Justice Scalia, the only other obvious candidate that we could carve out would be express advocacy.
And the Court was clear in footnote 18 of the opinion what percentage that was, 4 to 5 percent.
So as to the 95 percent of the ads that didn't engage in express advocacy, this Court still had no difficulty concluding that the vast majority of them were within Congress' conception of the purposes of the4 statute--
Justice Scalia: Everything that is not express advocacy is an issue ad?
The world is divided into express advocacy and issue ads?
Mr. Clement: --That's one way to divide it.
You're using the term "issue ad".
Justice Scalia: I wouldn't divide it that way.
I would think there are a lot of express advocacy ads.
I think there are a lot of non-express advocacy ads that are not issue ads.
Mr. Clement: Justice Scalia, you're use the term "issue ad" as if it's self-defining.
I don't view it that way.
And I mean, even Appellee has tried to narrow it to grassroots lobbying.
Now, of course there's a problem with the grassroots lobbying argument and that is it was made to this Court in McConnell, and at that time the nature of the argument wasn't, oh, grassroots lobbying, that's a sort of idiosyncratic or atypical application that would give rise to a narrow as-applied exception.
No, the argument there, and a great illustration is Appellee's national affiliate, National Right to Life.
At pages 6 and 7 of the reply brief in McConnell, they argued about grassroots lobbying and said, boy, this statute applies to grassroots lobbying, therefore it's substantially overbroad.
Chief Justice Roberts: You're suggesting the district court decision is not consistent with McConnell.
But it seems that your approach today is inconsistent with our decision last year that you can have as-applied challenges.
You're suggesting that if we allow this as-applied challenge to go forward that we have to facially strike down the section.
Mr. Clement: Oh, Mr. Chief Justice, I'm not saying that.
My point is that not all as-applied challenges are created equal.
Chief Justice Roberts: So tell me what one, an ad that would succeed in an as-applied challenge looks like, or what the standard would be that we would apply in a way that you think would not call into question the decision in McConnell about Section 203?
Mr. Clement: Well, let me give you a couple of as... I mean, look, my job is to defend the constitutionality of the statute on its face and as applied.
So I'm not suggesting that any of these as-applied challenges would necessarily success or I wouldn't be up here trying to make some argument in defense of the statute.
But let me give you--
Chief Justice Roberts: What you're saying, though, is if this as-applied challenge succeeds you're saying the only way we can do that is if we think that the statute is facially unconstitutional.
I'm just trying to see if there's a way of--
Mr. Clement: --Sure.
Chief Justice Roberts: --approaching this as-applied challenge in a way that doesn't require us to revisit that prior--
Mr. Clement: Absolutely.
Justice Scalia: It doesn't your case, with me at least, for you to tell us that it is your job to say that no as-applied challenge will suffice.
Mr. Clement: Well then, let me give you an--
Justice Scalia: I mean, that doesn't--
inspire me with confidence in what you're telling us.
Mr. Clement: --Let me give you some inspirational as-applied challenges that would be better as-applied challenges than this one.
A challenge by a 501(c)(3) corporation that has difficulty separating up a separate segregated fund.
Much better as-applied challenge.
The challenge that was brought in the Maine case that you have before you in another... in another petition or another appeal, that was a challenge to an ad that was run in an unopposed primary.
That starts to sound like a pretty good as-applied challenge.
Justice Scalia: No.
There is... there is a claim here that there... that there was difficulty in setting, setting up a fund in time to do what had to be done with respect to this issue, which was a distinctive issue that had come up and they said we didn't have time to set up a... a... a... a separate PAC that, that would effectively meet the problem.
Why isn't that distinctive enough?
Mr. Clement: With respect,--
Justice Scalia, it would be a better case if that were the claim.
There's no doubt that appellee has a, a PAC, a separate segregated fund.
To their claim isn't that they didn't have one.
Their claim is it was underfunded vis a vis what it would cost to fund these ads.
But that itself is clearly a conscious decision, because if you look at how much money they had in their PAC in 2000, they had 155,000 or something like that in their PAC.
Plenty to pay for this ad.
This time around they had 13,000.
Now why is that?
It's pretty clear from the record that they shifted their emphasis not to getting money for their PAC, but to get money in their general corporate treasury to fund these ads.
And so they raised 300 million dollars in corporate funds.
But that's not hat doesn't make this a good as-applied challenge.
Chief Justice Roberts: --Can I, can I understand you to suggest we ought to draw a distinction in as-applied challenges between a 501(c)(3) organization and a corporation?
Mr. Clement: I think--
Chief Justice Roberts: That is not a 501(3)(3) corporation?
Mr. Clement: --I think, I think a 501(c)(3) corporation has a much better as-applied challenge if they can bring it.
And that's the as-applied challenge that's sort of been discussed in some of the amicus briefs.
The problem is Appellee is not in a position to do that, because they are a 501(c)(4) corporation.
Another example of a better challenge would be the Chief Justice's hypothetical from the earlier argument which would be a corporation that runs a series of ads and then wants to continue to run them during the election cycle.
Well, that's not guilty this case, but it well could be.
The filibuster issue isn't something that came like a bolt out of the blue on the eve of the election.
Throughout 2003, there were filibusters in the Senate on a pretty regular basis.
Justice Kennedy: We all... we all know... maybe... I think, I think it's accepted, that the public only tunes in to the political dialogue shortly before the election.
That's the time in which you... in which you reach the public.
So the fact that the filibuster has been going on for a long time is... I don't think answers the question as to how speech can be the most effective.
Mr. Clement: Well, Justice Kennedy, I don't see... you may be right that certainly people do tend to focus on issues in the context of an election.
But I think the record in this case does not bear out the conclusion that people only care about them at those times or that groups don't bother running ads at other times.
I mean if you look at the 2005 time frame, the record reflects that a number of groups, not Appellee, but a number of groups had issue ads addressing the filibuster issue.
And what's interesting about that to me is if you look at joint appendix 45 and 46 for the examples they were able to do it in terms of tag line, "Earth, call the Senate".
And if, if Appellee had run those same ads which would capture the issue, then they wouldn't even have come within the statute.
So it does illustrate both that this is an issue that drew enough public interest to generate ads at different time periods, not just in the reelection context, and even when did it that, it was possible to engage on the issue without coming within the confines of the statute.
So it just seems like--
Justice Kennedy: Are, are there frequent issues... instances in the political process, do you think, in which the public runs an ad against a, a candidate knowing the candidate is probably going to win anyway, he or she is from a safe district, or it's very difficult.
But they want to run the ad anyway in order to affect his conduct or her conduct once they're reelected, so that they'll take a different position, a second look.
Mr. Clement: --Justice Kennedy--
Justice Kennedy: It... it seems to me logically that's possible.
I just don't know if that, if that happens very often.
Mr. Clement: --Justice Kennedy, it's certainly possible.
I don't think it's common, though.
And the reason I say that is just to go back to the record in McConnell, the one thing the record there made pretty clear is when you got to the period 60 days before the election, these ads were not being ran in a way that would have some random distribution that you might expect if they were just interested in the issues or just interested uniformly in all reelections.
These ads were really concentrated in the close districts.
I mean one of the lines that stick out in my mind from the record is in trying to fund money for these so-called issue ads, the Club for Growth executives said
"we need money for these issue ads because they make all the difference in close elections. "
Justice Scalia: Well now... but... yes, it may make the difference in a close election but it is also, it is also likely to be more effective with regard to the Senator that you... whose vote you want on the issue.
Are you, are you going to waste your, waste your money in, in those districts where the Senator is not going to vote the way you want no matter what?
The situation you pose is precisely the one where you would want your issue ad to run.
Mr. Clement: Well, Justice Scalia, if your point is that there may be an interest in trying to leverage the upcoming election to get somebody's attention--
Justice Scalia: Of course.
Mr. Clement: --I think--
Justice Scalia: To get the Senator's attention.
Mr. Clement: --Sure.
Justice Scalia: The Senator who is, who is at risk is likely, is likely to listen.
The Senator who has a safe seat is not.
Mr. Clement: No doubt that's true.
But I think it also implicates the, the interests of Congress in the statute that this Court recognized and upheld on its face.
When, when the whole point is, we're not just interested in this issue in the abstract, and we're not running this issue just because there's a pending vote in Congress; we're interested in running this ad because it's a pretty effective vehicle both to defeat this candidate's reelection chances, but if we don't succeed on that maybe we'll convince him to change his mind.
Justice Scalia: You can't tell which of the two they had in mind.
Whether they wanted the Senator defeated or they wanted to put enough pressure on the Senator that he would change his vote with regard to the filibuster.
I would think that the latter is more likely the motive than the former.
And why do you assume the worst?
Mr. Clement: Well... I don't know, the fact that by the time they ran these ads Senator Feingold voted 20 times out of 20 to filibuster suggests to me that they probably concluded that the best to get a Wisconsin Senator who wouldn't filibuster was to change senators not to change to change Senator Feingold's mind.
Justice Ginsburg: The relevance of this same group having a poll strongly opposed Feingold every time he ran for election.
It's no secret that they were opposed to his candidacy.
Mr. Clement: No.
That's absolutely right, Justice Ginsburg.
And obviously the statute itself in its bright line test doesn't make you get into those kind of inquiries.
But if their claim, if they come into court and say well, we had a pure heart; we didn't have an intent to affect the election--
Justice Scalia: But this is... this is the First Amendment.
We don't make people guess whether their speech is going to be allowed by Big Brother or not.
If you are going to cut off the speech, there ought to be a clear line.
Not whether... whether I, I had ads against Feingold in the past or whether Feingold voted 20 times against this or, or half of the time against this.
It seems to me you need a clear First Amendment line.
And you're not giving us any.
Mr. Clement: --Sure I am, Justice Scalia.
I'm giving you the statute, on its face, which couldn't be clearer.
If you want to have as-applied exceptions, if you want to go down the road, to quote the Chief Justice in dissent in MCFL, of creating "barely adumbrated exceptions", you may inject some vagueness.
Now that may be necessary.
And there may be as-applied challenges out there that do the trick without creating vagueness.
But I don't think this is the one.
And just because the first as-applied challenge you see is a problematic one doesn't mean this aren't better as-applied challenges out there.
If I could reserve the balance of my time.
Argument of Seth P. Waxman
Chief Justice Roberts: Thank you, General Clement.
Mr. Waxman: Mr. Chief Justice, and may it please the Court.
I'd like to... I'd like to address three points that came up at the earlier part of the argument.
First of all, I'd like to, I think just with respect correct a premise of one of Justice Scalia's questions.
Then I would like to address the two questions that I think I heard the Chief Justice ask, which is how do we know that the this is an atypical ad, and what would the standard... what standard would a court apply in adjudicating as-applied challenges?
And then finally, assuming there's time permitting I'd like to address the question of why we shouldn't revisit McConnell which I think was posed both by the Chief Justice and by Justice Scalia.
First, as to the premise, Justice Scalia, and it relates to what the predicate was of the now famous vast majority reference.
I'm quoting from... it's entirely clear from this Court's opinion and I believe it's on page 207 that the referent was issue ads.
In fact, what this Court said was the precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief pre-election time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the district court.
Nevertheless, the "vast majority" of ads clearly had such a purpose.
Chief Justice Roberts: Is that, is that your test, if it has any electioneering purpose?
Mr. Waxman: We think the test is whether or not it is as this Court indicated, I think, whether it's the functional equivalent of express advocacy.
It doesn't use the magic words but does it have the same effect, that is, the test that this Court should... not this Court, a district court adjudicating an as-applied challenge that is based on the content of the ad not the sort of as-applied challenge brought in MCFL or Brown versus the Socialist Workers Parties that relate to the nature of the speaker, but one that's based on the content requires the challenger to show okay, in a context of a statute that is facially valid and can constitutionally be applied to the vast majority of ads that are covered by the definition of electioneering communications, he needs to come in and show that with respect to this ad, it has characteristics such that no reasonable voter could view it as promoting, attacking, supporting or opposing a candidate.
Chief Justice Roberts: Do we, do we usually place the burden when we're applying strict scrutiny under the First Amendment on the challenger to prove that they're allowed to speak, as opposed to the Government to prove... to carry the burden that they can censor the speech?
Mr. Waxman: Well, you... I think the rule is quite clear that you never do that.
This strict scrutiny clearly applies here.
But in the context of a... the application of a statute that has already been upheld as facially constitutional in the vast majority of applications, the Government doesn't have the burden of reconvincing the district court the... what the... the very things that the Supreme Court has already decided.
Justice Scalia: That vast majority thing, is that a... was that the holding of the case?
Mr. Waxman: It--
Justice Scalia: --Every... every... every word that we it uttered in that prior case is law?
I mean, what if... am I free to think... is the lower court free to think that maybe it is really not the vast majority?
But just because we said vast majority, it is like writing it into the statute?
Mr. Waxman: --It's... well, we would have an awful lot of laws if everything you wrote constituted law and a holding.
Justice Scalia: Yeah.
Mr. Waxman: But that statement and a statement that follows shortly after it on the following page were essential to this Court's decision that applying the strictest possible scrutiny, this law was very narrowly tailored.
Justice Alito: But the test as to any ad is whether any reasonable person could view the ad as... as an electioneering ad?
Mr. Waxman: I think... well, an electioneering ad, Justice Alito, I think puts too much of a burden on it.
Justice Alito: Any reasonable person could view it as what?
Mr. Waxman: I think that what a district court would say is could a reasonable voter in the targeted electorate have understood that this ad was in part promoting, attacking, supporting, or opposing?
The, The acronym is PASO.
Justice Alito: The same group has long had ads on a particular issue, and let's say a particular candidate's position on the issue is very well known to people who pay attention to public affairs.
And let's say we're in the black out period and now important vote is coming up on Congress on that very issue.
If the group continues to run the ad on that issue, that... a reasonable person could view that as, as saying something about the election, couldn't it?
Couldn't that person?
Mr. Waxman: I, I would think so.
Justice Alito: That would be prohibited?
Mr. Waxman: --Well, it would depend, as your question suggests, on the context in which the ad is run.
Now I want to make two points with respect to your inquiry.
Number one, as this Court has reiterated, we're not talking about a ban here.
Any one of these ads can be run so long as it is funded the same way that the election law requires them all to be funded.
That is, with money that--
Justice Alito: What do you... what do you make... what do you make of the fact that there are so many advocacy groups that say this is really impractical?
Mr. Waxman: --I... I love it.
And I'm going to give you the ACLU as an example because many... their brief is quite powerful.
They and the other amici who provide a growing table of amicus briefs every time this issue comes up, have never, ever, brought their own as-applied challenge, although those these groups are not shy to litigate when they think important rights are in effect.
They have been in the three years since this Court decided McConnell, and in the year since this Court made clear what I think we had assumed, which is this statute is... it is open season on as-applied challenges.
There have been precisely two as as-applied challenges brought, both brought by the counsel in this case.
The ACLU's brief which is as representative as any other says look at these ads that we've been running about really important issues: The war in Iraq, Guantanamo, etcetera, etcetera, here is the text of the ad.
If we had put onto a tag line of that ad, please call Senator so and so and tell him no, we wouldn't be allowed to do it.
Well, you know what?
With one exception that I'll explain in a minute, in its 90-year history, the ACLU has never... way before Bickler was passed, even outside the 60-day period, they never put that line on.
And you know why?
It's because they have pledged to their members and to the public that they will not engage in electioneering of any sort.
They are completely nonpartisan and they don't ever want to be understood to the contrary, and so they never utter those words.
Chief Justice Roberts: I think it's an important part of their exercise of First Amendment rights to petition their senators and congressmen, and to urge others to... as in these ads... contact your senators, contact your congressmen.
Just because the ACLU doesn't do that doesn't seem particularly pertinent to me.
Mr. Waxman: Well, though, I mean, I think it does demonstrate a few things.
First of all, it is entirely possible, as this Court reiterated in McConnell, for the exact same message or an equally effective message to be given at any particular time.
If the ACLU or the National Rifle Association or any of the other groups that never wants to actually bring an as-applied challenge but always wants to say oh no, no, no, this is horrible, wants to run an ad, as this Court has... they can establish a separate segregated fund.
And if they come in and convince a court that that's impractical or impossible, maybe they get an as-applied challenge.
Justice Scalia: Is this true of the NRA also?
Is it the case that they have never targeted, so to speak, a particular legislator?
Mr. Waxman: I don't think anybody would claim that.
Justice Scalia: I don't think they would either.
Why pick on the ACLU?
Mr. Waxman: --I'm not... I wasn't... I don't mean to pick on the ACLU.
I think highly of both organizations and many of the amici that are arrayed against me.
The point is that I use the ACLU as an example because the reason they never put, they never name a congressman is because they don't want their ads to be perceived as breaking faith with what they tell the public.
As for the NRA, the NRA actually did bring a challenge against the FEC in the D.C. Circuit and said,
"we don't really qualify under MCFL because we take some corporate funds, but it's de minimis and we think that's what the Supreme Court had in mind. "
"You know what? "
"They won. "
"But they can't take yes for an answer. "
"They want to establish that this law is facially unconstitutional. "
"And that does go to the point I think, if I may, as to why... well, it... why you shouldn't reexamine McConnell for first principles. "
But let me just say in response to your very first question, Mr. Chief Justice, that the reason that we know that this ad is typical is, as this Court created, articulated the paradigm of an electioneering communication, the test in the Jane Doe example, and this case is materially indistinguishable from the Jane Doe ad.
That is one that, quote,
"condemns Jane Doe's record on a particular issue before exhorting viewers to call Jane Doe. "
Here we've got an ad that denounced the, quote,
"group of Senators who had filibustered judicial nominees. "
--may I finish my sentence?
Chief Justice Roberts: Please.
Mr. Waxman: The only thing that distinguishes that statement from Jane Doe is knowing that Senator Feingold was part of that group, and reasonable listeners in the context of the ad itself and the web site would certainly have known that.
Argument of James Bopp, Jr.
Chief Justice Roberts: Thank you, Mr. Waxman.
Mr. Bopp: Thank you, Mr. Chief Justice, and may it please the Court: I think the Government's problem here is that they are repudiating the very studies and expert witness testimony that this Court relied upon in recognizing a distinction between sham issue ads and genuine issue ads.
That was a methodology that the Government created and this Court relied upon.
Now they are converting genuine issue ads which they identified in the record through their expert testimony and their studies.
These ads are contained in the joint appendix on pages 159 to 167.
Their expert based upon their studies testified that these were genuine issue ads.
Now they refused to state, as they do here, refused to state a test to determine what's a genuine ad.
So we are left trying to comply with this law and mount the as-applied challenges that this Court said is available to us to look at these ads and determine what essential features there are of these ads.
And as I will explain further later, these are grassroots lobbying ads of the type not like Jane Doe or yellow tail, but as... but exactly the type of the PBA ad, for instance, which we have focused on, which is on page 166 of the joint appendix.
So in these studies, and these experts, they only looked at the text of these ads to determine whether they were genuine or sham.
There was no testimony about the subjective intent of the speaker.
There was no testimony about the particular groups who ran these ads on whether or not their PAC was supporting a particular candidate.
No expert in McConnell speculated about the possible effect of any particular ad to determine whether it was genuine or sham.
Justice Breyer: How could you tell?
I rather liked the one--
Mr. Bopp: I'm sorry?
Justice Breyer: --I rather liked the one we had before about Senator Faircloth, and his ad was, Senator Faircloth is against the trial lawyers and their efforts to increase liability laws, so write him.
Now, testimony all over the place.
That is the advocacy candidate ad of the century.
And you couldn't possibly know that without having known that one of the parties had spent millions trying to paint Faircloth's opponent, Senator Edwards, as the creature of the trial lawyers, that anyone... that anyone in North Carolina knew it.
So they read those words and they understand precisely what's at stake.
They're saying vote against Edwards, vote for Faircloth.
You just tell me how anyone could know such a thing without looking at the context.
Mr. Bopp: There was no testimony in McConnell that that ad, it... for those that determined whether or not it was sham or genuine, that ad was sham or genuine, there was no testimony, no reference--
Justice Breyer: I thought people offered to bring in such facts as... there was a web site address here.
It says, indeed oddly, don't phone the Senator.
Go look at the web site.
And if you look at that web site, it says defeat him, defeat him, defeat him.
I mean, that sounds as if they have defeat in mind.
So certainly, there are about four or five things which they said to look at outside the four corners.
So I'm not certain what it is in the law that says that you only look to the four corners.
I mean, I read the opinion below.
Did you read it, by the way, the 1,000-page opinion?
I bet you did, the 1,000-page opinion of the district court?
Mr. Bopp: --I did indeed.
Justice Breyer: Good.
Then you know like I know, and it took me a week, and it probably took you less, but you know what that record was like in the case, don't you?
Mr. Bopp: Yes.
Justice Breyer: Thousands and thousands of pages that as I read it, I drew one conclusion.
The one conclusion was if there's a law, and it's a good law under the Constitution, if it is, that corporations and labor unions cannot give money to political campaigns.
And if it is true, as it is true, that what political campaigns are about now is television.
And if it is true, as it is true, that these are the single lion's share, the single best way to get somebody defeated or elected, then if you open the gates and say corporations and rich givers or whatever can contribute by writing these ads and paying for them, forget the first two premises.
Forget the rule that says corporations can't contribute.
Now, I put all that in front of you.
It seems to me what you're asking for is for us to overturn McConnell and to say either in practice or in theory, McCain-Feingold campaign finance law is unconstitutional.
Justice Scalia: You are asking for that among other things, aren't you?
Mr. Bopp: Well, if there's no workable test--
Justice Breyer: And you are asking for nothing else.
Mr. Bopp: --If there is no workable test that is reasonably ascertainable by small grassroots organizations that separates genuine issue ads from sham issue ads... this Court in Ashcroft said you cannot throw out the protected speech in order to target unprotected speech.
And the line of argumentation that the Government is presenting simply ignores the fact that at least we have a dilemma, we have Congress in session during the blackout periods, voting on items.
And we have in the First Amendment one of the four indispensable freedoms, your right to petition the Government.
Justice Breyer: I agree with you it's exactly as Justice Scalia said.
If we agree with you in this case, good-bye McCain-Feingold.
Maybe we should do it up front.
That's what you advocate.
Would you address that?
Why should this Court only a year or two after it upholds McCain-Feingold, accept a position that either in fact or in theory overturns that case?
Mr. Bopp: Because facial upholdings can only be sustained constitutionally if as-applied challenges are adequate to protect the protected speech.
And this case demonstrates that that is probably impossible.
It is certainly demonstrating that when the Government has changed its criteria, it is using criteria that it rejected previously now to say genuine issue ads which we asked this Court to rely upon in their testimony and studies as genuine issue ads, that they are repudiating those.
Justice Scalia: Why do you say that those issue ads are inconsistent with the Government's position here?
Mr. Bopp: Well, because they--
Justice Scalia: You haven't explained that.
Mr. Bopp: --Yes.
The Wisconsin Right to Life ads are in every material respect indistinguishable from these six grassroots lobbying ads.
Justice Souter: You're taking this because, in effect on a four corners facial criterion.
Mr. Bopp: Yes.
Justice Souter: But one of the issues in this case is whether that is an appropriate methodology, so will you address that?
Mr. Bopp: Well, this Court has consistently rejected the idea of looking to, you know, outside the message of the speaker such as subjective intent or--
Justice Souter: We're not talking about subjective intent here.
We're talking about what Justice Breyer raised a moment ago.
That is, we are looking for the public political context in which the ad is run.
He gave the example of the Faircloth Edwards ads.
Anyone in North Carolina knew what they meant.
Someone in Idaho or New Hampshire probably did not, because they did not know the context.
Your argument, seems to me is, ignore the context.
And my question is, why should we ignore... why should we do that?
Mr. Bopp: --Well, that test that has been articulated by the Government would invite ads to be prohibited based upon the varied understandings of the listener, and that--
Justice Souter: But doesn't any communication depend upon the understanding of the listener?
Can we even sensibly talk about what a statement means or an advertisement means without understanding the context in terms of the listener's understanding?
Mr. Bopp: --You do that all the time based upon the... the test is, what do the words say?
What does the ad say?
What does the speech say?
Justice Souter: No.
The question is, what do the words mean.
Mr. Bopp: Yes, what do they mean.
Justice Souter: And it is impossible to know what the words mean without knowing the context in which they are spoken.
Justice Scalia: --When they put these exhibits, were those exhibits complete with context?
Mr. Bopp: No.
Justice Scalia: I didn't think so.
They just... just like the ads were.
Mr. Bopp: There were two huge big studies on... two in '98 and 2000, and there was absolutely no testimony about the--
Justice Souter: My question is, why should we ignore the context?
How can we tell what something means without the context?
Mr. Bopp: --Well, there is relevant context, such as the person named, the incumbent is a candidate.
That would be a relevant context.
It is broadcast within 60 days of a general election, in which he is a candidate as well as a voting member of the Senate.
That would be context.
Justice Souter: But that... those don't go to meaning in the sense of, for example, the Faircloth Edwards example does.
Why should we ignore the aspects of context which determine meaning, i.e., the understanding that a listener would have?
Mr. Bopp: Because it simply... it would prohibit all speech because no one would know in advance whether or not there would be--
Justice Souter: You mean the people in North Carolina were unaware of the Edwards position, they were unaware of the distinction between Faircloth and Edwards?
Mr. Bopp: --I have no idea.
Justice Souter: Of course they knew that.
Mr. Bopp: I have no idea.
Justice Souter: Of course they knew that.
And just as presumably, you knew the position of Senator Feingold in these advertisements, and the people in the state knew because of your other... because of your other public statements.
Mr. Bopp: Because of one or two press releases?
Justice Souter: Why should those things be ignored?
Mr. Bopp: There's absolutely no evidence that anyone in Wisconsin knew his position on the filibuster.
Justice Souter: You think they're dumb?
Mr. Bopp: No.
Justice Souter: You have a web site.
You have a web site that calls their attention, and you think nobody's going to it?
Mr. Bopp: But we can't run the ads, we can't--
Justice Souter: Nobody's paying attention to what the Senator is doing?
Mr. Bopp: --If we can't run the ads, we can't draw peoples attention to the web site.
Justice Souter: You think the only source of information about Senator Feingold is your advertisement?
Mr. Bopp: No, but I don't--
Justice Souter: Then if your advertisement is not the sole source of information, then why do you assume that no one in Wisconsin knows what the senator has been doing when he votes.
Mr. Bopp: --Look, polls show that a majority of the people don't even know who the Vice President of the United States is.
So to suggest that they know a particular position--
Justice Souter: So your position is that we ignore context because no one... because the voters aren't smart enough to have a context?
Mr. Bopp: --No, that we be allowed to speak so we can give that information to the voters.
Justice Breyer: But that's, that's the point, because where I get into my chain.
You have an argument.
I'm not denying that.
I understand it.
But it's sort for me deja vu all over again.
Mr. Bopp: Yes, but you said--
Justice Breyer: And what happened before... either you can distinguish this, which I don't see how frankly, or you're back into the chain, and if you want to say one more thing about the chain, I didn't draw it to the final ending there, if I take most of the ads... and that's what that Kollar-Kotelly opinion is about.
That's what that 1,000-page record is about.
That's what the 10,000 pages of testimony were about.
That's what McCain-Feingold was about, and all those witnesses.
They said in today's world these are the kinds of ads people run just to defeat people.
And then they said, moreover, most of the campaign money goes on them.
And then they said, moreover, if you let corporations and labor unions contribute to these, well, then they can contribute to the campaign.
And the only thing I left out before was, if you're prepared to say the Constitution requires us to let corporations and unions buy these kinds of ads, well, how could it be constitutional to have a statute that forbids them to contribute directly to the candidate, something that's been in existence only since I guess 1904?
But how could that be constitutional if they can just give this money directly?
Why can't they give this same money to the candidate?
Mr. Bopp: --Well, because of your decision in Beaumont, which creates a distinction between contributions and independent speech, and this is independent speech.
Justice Scalia: It's pretty easy to tell whether you're giving money to the money to the candidate or not, isn't it?
Mr. Bopp: Very readily.
Justice Scalia: That's a fairly bright line that you don't have to worry about stepping over the wrong side of it.
Mr. Bopp: That's right.
Justice Scalia: Whereas this one, especially if you adopt a context determination that requires a 1,000-page district court opinion, who knows.
Justice Breyer: Is that right?
I mean, 1,000 is what we have here, is we happen to have three criteria, absolutely clear: Does it mention the candidate?
Does it run within 30 or 60 days before the election?
And is it targeted to an electorate?
Now, that's clear.
Now, if you're prepared to say that's unclear, I don't understand it, you don't need a 1,000-page record about that.
All you need is a record where you have your organization to come in and show how yours is significant different from the mine run of cases.
What's the problem?
Mr. Bopp: The problem is you're not giving force to the other conclusion of all three district court judges that there were genuine issue ads.
Justice Breyer: Oh, yes.
Yes, I see you could distinguish.
Mr. Bopp: And that these ads, you know, fall under a different line of cases.
First National Bank versus Bellotti has held that corporate efforts to influence Legislative and Executive Branch officials--
Justice Stevens: Are you trying to convince us the purpose of these ads was to convince Senator Feingold to change his position on filibusters?
Mr. Bopp: --It was indeed.
It was to lobby him about the upcoming vote.
Justice Stevens: Do you think they had much chance?
Do you think that was a realistic goal?
Mr. Bopp: Yes, as it turns out, because in 2006 we ran the same sort of anti-filibuster ads and Senator Kohl, now up for reelection, changed his position on the filibuster.
So these things happen.
In other words, people... people's positions are affected by grassroots lobbying, and at least people should have--
the opportunity to engage in grassroots lobbying.
Justice Kennedy: Is that called democracy?
Mr. Bopp: We are hopeful, Your Honor.
And that our part... our system of self government is based upon the self-government of the people and their ability to influence the actions of governmental officials.
Chief Justice Roberts: Mr. Bopp, your argument that McConnell's facial holding should be overturned appears on page 62 of your brief.
I take it you have at least 61 page arguing that your as-applied challenge can succeed without overturning McConnell's position?
Mr. Bopp: Yes.
Yes, we have, which would require the adoption of a reasonably ascertainable test, one that people would not be subject to three years of litigation, scorched earth litigation tactics, intrusive discovery into every aspect of their organization for decades.
It would have to be clear, simple, and objective and be able to be implemented on short notice, because things pop up, like the filibuster of a Supreme Court nominee in January of 2006.
Justice Scalia: What's your test?
Their test is fuzzy, I agree with you.
Do you have a clear one that does not invalidate the whole statute?
Mr. Bopp: Well, based on their evidence in McConnell and these grassroots, and these genuine issue ads, I think there are three key or essential features of those ads that we are satisfied would protect grassroots lobbying and genuine issue ads.
The first is based upon the content of the communication, they focus on a current legislative matter, take a position on it, urge people to contact them, their congressmen and senators, to take a particular action or position.
Justice Scalia: That says what's good.
What is your test for what's bad?
Mr. Bopp: --Second, the ads do not mention an election, candidacy, political party, challenger, or the official character, qualifications, or fitness for office.
That was the key link the district court found, that these ads not, as Buckley said... and of course McConnell was litigated under Buckley... is that they were not unambiguously candidate-related.
Justice Souter: That's... give us the third one.
I want to go back to--
Mr. Bopp: The third one is, as long as the ad meets this pattern, that the fact that the ad... ours does not... but the fact that the ad mentions the name, the position of a public official on an issue and praises or criticizes him or her for that does not affect its genuineness.
Justice Souter: --Okay.
May I go back to your second criterion?
It seems to me your second criterion is simply the injection of magic words back again.
You're saying if we don't use certain magic words it's okay.
That's a magic words test.
You're not looking for any particular word.
You're looking for the meaning and breadth of the, of the item.
Well, but you said if we don't mention the election and the candidacy of this person for this election, that is one of the sufficient... one of the conditions with the other three which would be sufficient to justify the, on First Amendment grounds, justify running the ad.
That seems to me simply to be reinjecting magic words in a negative form.
Mr. Bopp: Well, in a much more expansive and comprehensive test which looks to three features of the ad.
But in any event, you look at the words all the time.
Is it fighting words?
You look at what are the words, what are they saying?
Justice Kennedy: We look at fighting words in a context.
Mr. Bopp: And I think we have a relatively--
Justice Kennedy: It's one thing to say something in a bikers bar and another thing in the--
Mr. Bopp: --And I think we have a relevant context.
Justice Kennedy: --Are there many cases where we look just at the words?
Mr. Bopp: Well, you certainly have in--
Justice Kennedy: You can't shout "Fire" in a crowded theater; it has to be a crowded theater.
Mr. Bopp: --Well, relevant context, that there is an election upcoming, so it's within 60 days.
The person's a candidate.
These are relevant... and for that matter, whether the is a current Legislative Branch matter or likely to arise in the near future.
Justice Scalia: Mr. Bopp, you do not have to establish, do you, that the test you propose will get at every bad ad, that it will be sure to get at every ad that is not a genuine issue ad?
Is that the burden on you?
Mr. Bopp: I don't believe so, Your Honor.
Justice Scalia: I thought when we're dealing with the first amendment we give wide scope to the principle that it is, it is better to allow, you know, some bad speech than it is, in the effort to get rid of that bad speech, to eliminate any good speech that is justified.
So even if there is something that might sneak through that does achieve what Congress didn't want to achieve, the answer in the First Amendment is that's too bad.
There's some stuff you just can't get at.
There's a lot of bad speech that is allowed all the time because you can't get at it without suppressing the good speech.
Mr. Bopp: I think that's the standard.
Justice Breyer: In fact this isn't the First Amendment totally on one side.
Isn't this, isn't this a case where the courts held that there are very significant constitutional interests on both sides of the equation, which is what makes this kind of thing difficult.
Isn't that so?
Mr. Bopp: And so giving meaning to one side was upholding it facially.
Now your job is to give meaning to the other side, which is genuine issue ads that are to be protected as applied.
Justice Breyer: I'm just suggesting why a pure First Amendment test doesn't necessarily answer the question and why we've upheld McCain-Feingold.
Mr. Bopp: But even if you use balancing, you've already used it.
You upheld it on its face, because you said the vast majority were shams.
At the same time, you said there were genuine issue ads.
You reserved the question of whether or not the interest is sufficient, the governmental interest is sufficient, to prohibit genuine issue ads in footnote 88.
You know, they refuse to give the test.
They refuse to tell us what is the standard.
Justice Souter: But your test, as I understand it, is the test to determine whether you fall within this sort of heartland of the statute which we upheld on facial challenge.
Yours is a test where exclusion from the facial rule; isn't that correct?
That's... that was why you were giving the answer to Justice Scalia that you gave?
Mr. Bopp: I did--
Justice Souter: What you're saying: I have three criteria and if I satisfy those criteria, then the, then the facial validity of the statute is not an answer to my claim.
That's basically what you're saying.
Mr. Bopp: --Yes.
Justice Souter: And of course, if you success in that you're saying, okay, the Government then has the burden of satisfying strict scrutiny.
That's the reason for your test, isn't it, to get you out of McCain-Feingold... I mean, to get you out of the holding in McConnell?
Mr. Bopp: We're not trying to get out of the holding in McConnell.
Justice Souter: Sure.
You're saying this is an applied challenge which is different in some relevant respects, so that the facial holding in McConnell shouldn't apply to us, it shouldn't bar, shouldn't justify the Government barring our ad.
Isn't that your logic?
Justice Scalia: You could say yes to that, I think.
Mr. Bopp: Thank you.
But the... we're trying to... actually--
Justice Souter: You want to go further than that, I know.
But that's your first step.
Mr. Bopp: --No, our first--
Justice Souter: That's what you were getting at.
Mr. Bopp: --Our first step is we want to give meaning to the promise of McConnell that there were genuine issue ads that could be protected by as-applied challenge.
Justice Souter: The way to do that is say, there's something different about my case from the case which was taken as typical in upholding statute against facial challenge.
Justice Scalia: He fears the Greeks even when they bear gifts.
Mr. Bopp: Yes, we have.
We have demonstrated how these ads are materially identical to the genuine issue ads this Government presented to this Court and you relied upon that representation.
We have demonstrated why and their experts have agreed that the Yellowtail ad, the Jane Doe ad, is completely different than our ad.
Their experts say that our ads are grassroots lobbying ads.
Now, we are faced with a change in position of the Government.
I mean, in McConnell the Government said naming a candidate is critical.
Now their experts say it doesn't matter if you name a candidate or not, any genuine issue, any ad, can influence an election if you mention an issue.
Justice Souter: But your, your principle concern at this point is getting yourself out from the holding of McConnell, in other words, by saying we have a case which was not the typical case in McConnell, that's why it's an as-applied challenge and that's why this is a new ball game.
And I take it your principle argument for that in criticizing the Government's position is that the Government didn't use to say that there's something significant or something insignificant about naming the candidate, and now they do.
That it seems to me... if I understand your argument... goes back to this context argument or not.
Because the argument that's being made is, in context we know perfectly well what's going on.
Mr. Bopp: I just think that misrepresents--
Justice Souter: You're saying you shouldn't look at the context.
Mr. Bopp: --I think that simply misstates the effect of this ad.
If anybody wanted to influence an election with this ad, this was the most remote, attenuated, speculative way.
Justice Souter: Then why did you refer them to the web site?
There's nothing remote or speculative about what happens when they look at the web site.
Mr. Bopp: And that has been also misstated in the briefing here.
There was absolutely nothing on the web site about anything other than the filibuster issue.
There was nothing about the PAC or what the PAC was doing.
It was all about the filibuster.
Justice Souter: Anything about Senator Feingold?
Mr. Bopp: Well, of course.
It was about Senator Feingold's position.
It was, the one change--
Justice Souter: Did the web site indicate the... the Wisconsin Right to Life's position on Senator Feingold?
Mr. Bopp: --Only on the filibuster, yes.
It identified... the ads don't, the website does... identified the position of Senator Feingold on the filibuster and criticizes him for that.
Now, if that is to be... you know, number one, the whole First Amendment was adopted to allow--
Justice Souter: That's part of the context, isn't it?
In other words, you're supplying some--
Mr. Bopp: --No.
Justice Souter: --context for the ad.
You're saying, if you want to know the context in which we're saying this, look at the website.
Mr. Bopp: No.
We don't believe that that's part of the context.
Justice Souter: You don't believe that's what you are doing.
Mr. Bopp: But see, the FEC doesn't even regulate what's on the Internet.
You can do anything you want on the Internet--
Justice Souter: The FEC doesn't regulate anything else in the broader political context except what the statute allows.
My point is, it seems to me you are referring to context.
Why therefore is it illegitimate for a court to look to context?
Mr. Bopp: --We have not referred to context.
Justice Souter: Okay.
Mr. Bopp: We are not importing in our analysis--
Justice Stevens: May I ask a rather basic question?
Do you agree that the Constitution permits Congress to pass a statute that prohibits your using electioneering ads that use magic words?
Mr. Bopp: --Yes.
Justice Stevens: Would it also prohibit you from using... urging everyone to look to a web site that used the same magic words?
Mr. Bopp: Would it?
Justice Stevens: Yes.
Mr. Bopp: Perhaps, yes.
Justice Stevens: So that if your web site used the magic words, then your ads would be... could be regulated.
Mr. Bopp: You're talking about the constitutionality of the Federal statute that incorporates the cited to website.
You know, perhaps.
But that's much different than a constitutional standard on what this Court is going to look to.
We have no notice of this.
Justice Stevens: No, but you would agree the statute could be validly applied to an ad that says look at this website, and the web site then uses the magic words?
Mr. Bopp: Perhaps.
I'm not certain of that.
And I'm sorry that I don't have a considered response to that question.
But that is much different than what we are faced with.
We are faced with ad hoc criteria that is being used by the Government.
They reject examining subjective intent because it's unworkable.
Now they want to examine subjective intent.
They disclaim to this Court and Justice Scalia's question about, well, anything that might influence an election, can we regulate it?
They said no.
Well now they are claiming that, that anything that might influence an election--
Justice Stevens: Well, do you believe that the First Amendment would not be violated by an ad that was the functional equivalent of one that contained magic words?
Mr. Bopp: --Well, I disagree with that holding of--
Justice Stevens: There might be an upholdable constitutional difference between two ads that convey the same message.
Mr. Bopp: --Well, I don't believe they have the same functional--
Justice Stevens: If they're the functional equivalent, by hypothesis, they convey the same message.
Mr. Bopp: --Well, Your Honor, I lost that argument in this Court.
So you know, I'm not trying to relitigate McConnell.
I'm trying to give meaning to McConnell.
I mean, you talked about genuine issue, as this Court did.
Their experts identified genuine issue ads.
They said, as this Court said in Wisconsin Right to Life I, as-applied challenges can be brought.
And so we're trying to give meaning to that, that there--
Justice Breyer: The theory is that the ad itself on the web site, in your opinion, would have been okay?
You turn to the web site three months before the election.
It says 16 times out of 16 in the past two years, Feingold and Kohl have voted to filibuster certain of the President's nominees.
Feingold and Kohl are putting politics into the court system, creating gridlock and costing taxpayers money.
Now three months before the election you put... write that in your ad.
Now, is that in your opinion constitutionally protected, gets it out of McCain-Feingold?
Mr. Bopp: --In the... as a broadcast ad?
Justice Breyer: Yes.
What you did, suppose instead of what you ran, you know, in a broadcast ad.
Mr. Bopp: Yes.
Justice Breyer: You think that is protected?
Mr. Bopp: Yes.
Because whether you praise or criticize a Government official's action in office has nothing to do with whether it falls under the First Amendment's protection of petitioning.
In fact that's what, you know, the kind of information... we didn't do that.
But that's the kind of information that's very relevant to the constituent's effort to petition.
Rebuttal of Paul D. Clement
Chief Justice Roberts: Thank you, Mr. Bopp.
General Clement, you have two minutes remaining.
Mr. Clement: Thank you, Mr. Chief Justice.
Just a few points in rebuttal.
First, I would like to stress the virtue of as-applied challenges.
You might wonder in the abstract, wasn't there a problem with the statute that applies to a group running a series of ads and then one of them falls in the period.
But then you look at an as-applied challenge and you see that didn't happen here.
In fact, the opposite did.
This issue was percolating since March of 2003.
These ads were run some 500 days after the first filibuster vote.
Both before and after Senator Feingold's reelection cycle, they addressed this--
Justice Scalia: Does that go to their meaning or to the intent of... is that what governs?
It's the intent of the person who puts it on?
I thought... I thought you were focusing on the meaning of it, what it conveys to the public.
Mr. Clement: --Justice Scalia, if you're looking for an as-applied challenge that's going to identify a genuine issue ad, I would think that it would go somewhat to intent.
And I would think the reason that--
Justice Scalia: That's new to me.
I thought you were asking us to look at the meaning.
What does it mean to the--
Mr. Clement: --No.
Our position is slightly different than intervenors on that point.
And I think the reason that the series of ads hypothetical is beguiling is because it suggests that because they run the same issue ad all the time, they must be interested in the issue, not the election, and the opposite is true here.
They run ads about this issue, they run... they have communications about this issue outside of the period of Senator Feingold's reelection.
They don't rely on broadcast ads.
They rely on e-alerts when it's not during the election cycle.
But when it's during the election cycle, all of a sudden they start running broadcast ads.
And I think it shows what the timing suggests.
The timing here suggests an intent to influence the election, not an intent to engage on the issue.
Justice Alito: How long will the blackout period be during the upcoming year for the presidential candidates?
Rebuttal of James Bopp, Jr.
Mr. Bopp: Well, I think that in various places it will be 30 days before the primary and then obviously 60 days before the general.
Justice Scalia: --It could be as long as 200 days; isn't that correct.
Mr. Bopp: Not in any one place.
And if there's an argument, though, that because of the way the various broadcast media affect Manchester, New Hampshire, that's a great as-applied challenge.
The virtue of as-applied challenges are that you get a concrete record and you don't have to speculate, wow, you know, is it possible to address the filibuster--
Justice Scalia: You have to speculate before you try to put the ad on.
Rebuttal of Paul D. Clement
Mr. Clement: No, you don't.
Justice Scalia: You have to speculate whether the Court is going to say well, since you're in the zone of three different radio stations or television stations, a different rule applies.
Doesn't the person who wants to speak have to speculate, roll the dice?
Mr. Clement: No, they don't, Justice Scalia, and one of the arguments that's made to try to suggest that there should be a reconsideration of McConnell is, as-applied checks don't work.
How can you say that?
In the two cases that have been brought, there were preliminary injunction proceedings that were completed before the blackout period began.
So in that case, bring your preliminary injunction if you have a question.
But the virtue of as-applied challenges, and the last thing I'll say, is the virtue of as-applied challenges, they're not all created equal.
Just because this as-applied challenge fails doesn't mean the statute isn't open to them.
Chief Justice Roberts: Thank you, General.
The case is submitted.
Argument of Chief Justice Roberts
Mr. Roberts: I also have the announcement this morning and then opinion in case No. 06-969, Federal Election Commission versus Wisconsin Right to Life and the consolidated case number 06-970 McCain versus Wisconsin Right to Life.
Unlike the case we just finished announcing, these cases concern core political speech not in the school environment.
They involve Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA).
Abbreviation makes it a felony for union or corporation to broadcast shortly before an election any communication that names a candidate for elected federal office and is targeted to the electorate.
Three terms ago in a case known as McConnell versus Federal Election Commission we considered the claim that Section 203 violated the First Amendment because of it was overbroad on its face.
The objection was that it covered not only expressed campaign advocacy an ad saying “vote for Jones” but also genuine issue advocacy an ad saying “here is an issue we feel strongly about contact representative Jones and tell him to do something about it."
BCRA was concerned about election speech but Section 203 by it terms covers both types of ads because both mention the federal candidate by name.
In the McConnell case, this court held that Section 203 was not so overbroad on its face that all enforcement of it should be banned.
In July 2004, a nonprofit corporation called Wisconsin Right to Life (WRTL) began broadcasting radio ads that refer to a group of senators that was using a filibuster tactic to block federal judicial nominees from a simple yes or no vote.
The ads ended buying urging listeners to contact senators Feingold and Kohl the two Wisconsin senators and tell them to oppose the filibuster because the ads mention senator Feingold by name and he was up to reelection BCRA Section 203 made their broadcast illegal as of 30-days prior to the Wisconsin primary.
Believing it had a First Amendment right to continue running these ads WRTL filed a suit against the Federal Election Commission.
The District Court initially denied relief concluding that our McConnell decision essentially held that BCRA Section 203 was constitutional in every application but last term we vacated that judgment explaining that McConnell held only that Section 203 was not unconstitutional on its face.
McConnell did not purport to resolve future as applied challenges.
On remand the District Court held Section 203 unconstitutional as applied to WRTL’s ads.
The court ruled that these ads were not election advocacy or its functional equivalent but instead were genuine issue ads and no compelling interest justified their suppression.
The Federal Election Commission and a group of legislators who had intervene appealed the case.
We began by holding that we have jurisdiction to hear the case the government argues that the case is moot because the 2004 election is coming on and WRTL no longer desires to run the particular three advertisements that are the subject of this suit.
We hold however that these cases get comfortably within the established exception to mootness for disputes that are capable of repetition yet evading review.
It would be unreasonable to expect that WRTL could have obtain complete judicial review of its claims in time to air its ads during the BCRA blackout periods and WRTL credibly that a plans to run materially similar are targeted broadcast ads during future blackout periods.
On the merits a majority of the court affirms the judgment of the District Court.
In an opinion joined by Justice Alito, I find Section 203 unconstitutional as applied to WRTL’s ads.
In McConnell the court held that Section 203 properly regulates ads that are expressed election advocacy or its functional equivalent.
These ads are not expressed election advocacy, they don’t say, “vote for” or “against Feingold” but how to tell whether they are the so called functional equivalent of such advocacy.
In answering that question we have to remember that we are talking about core political speech, public discussion and debate about policy matters and the ability of speakers to mention public officials in the course of that discussion and we need to remember that we are applying the First Amendment which provides “congress shall make no law abridging the freedom of speech.”
Now, this court has not adopted an absolutist interpretation of that Amendment but it is important in considering a law that makes it a crime to mention an elected official by name to recall the scope of the words that the Framers use.
In light of this the test for deciding whether these ads are the functional equivalent of expressed campaign speech cannot turn on amorphous factors like the speaker intent or the possible effect of the ads on voters.
The test cannot turn on multiple contextual factors it would surely chill political speech if people could not know in advance whether they could speak or would be committing a felony.
Given these considerations a court should find that an ad is the functional equivalent of express advocacy and maybe barred under Section 203 only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.
Under this test WRTL’s three ads are plainly not the functional equivalent of express election advocacy the ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position and urge the public to contact public officials with respect to that matter.
The ads do not mention an election candidacy, political party or challenger and they do not take a position on a candidate’s character, qualifications or fitness for office.
At best the appellants have shown that the distinction between discussion of issues on the one hand and candidates on the other may not be that clear in practice but under our test that is not enough to establish that the ads can reasonably be viewed as advocating or opposing a candidate in a federal election.
Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.
Where the First Amendment is implicated the tie goes to the speaker not to censor.
So these ads cannot be suppressed because they are light express election advocacy.
We also reject other asserted grounds for censoring the speech it is suggested that the regulation is supported by the interest in preventing corruption and the appearance of corruption in election campaigns, and the interest in addressing the distorting effects of corporate wealth.
Neither interest however has been extend into ads like WRTL’s that are not the functional equivalent of express election advocacy.
We conclude that extending them this extra strap would be to stretch that too far and would call into question our well established holding that the corporate identity of a speaker does not strip corporations of all free speech rights because WRTL’s ads are not express election advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL’s speech, BCRA §203 is unconstitutional as applied to WRTL’s ads.
Justice Alito and I do not believe these cases present an appropriate occasion to revisit McConnell’s holding that express candidate advocacy or its functional equivalent maybe regulated.
But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban the question that us before the court, we give the benefit of the doubt to speech not censorship.
Justice Alito has also filed a concurring opinion.
Justice Scalia has filed an opinion concurring in part and concurring in the judgment in which Justice Kennedy and Thomas have joined.
In Justice Scalia’s view the test for as applied challenges under Section 203, I have just articulated another similar test are impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights at issue.
Justice Scalia believes this conclusion compelled by our decision in Buckley versus Valeo which rejected advocacy of the election or defeat of a candidate as a statutory test because it was too vague.
At the same time he reasons any clear rule that would protect all genuine issue ads would cover such a substantial number of ads prohibited by Section 203 that Section 203 would be rendered substantial overbroad.
Thus, our decision in McConnell which presuppose the availability of as applied challenges was mistaken in its approval of Section 203.
Justice Scalia would therefore overrule that part of the court’s decision in McConnell upholding Section 203(a) of BCRA.
While he agrees with the principle opinion of that the court has jurisdiction he otherwise concurs only in judgment.
Justice Souter has filed a dissenting opinion which Justices Stevens, Ginsburg and Breyer have joined.
Argument of Justice Souter
Mr. Souter: As the Chief Justice said less than four years ago on a case called McConnell against Federal Election Commission this court reviewed to claim that Section 203 of the Bipartisan Campaign Reform Act of 2002 commonly called McCain–Feingold was unconstitutional on its face.
We rejected that challenge and held that provision facially constitutional.
That same provision is challenged today as applied specifically is applied to particular broadcast advertisements run by the Appellee Corporation Wisconsin Right to Life incorporated.
Today a majority of the court holds that Section 203 cannot be applied constitutionally to regulate the corporation’s advertisements.
The courts reasoning is directly at odds with the reasoning in McConnell and a portion of McConnell that upheld Section 203 on its face is therefore effectively overruled.
Justice Stevens, Justice Ginsberg, Justice Breyer and I respectfully dissent.
In conjunction with the other provisions of the Bipartisan Campaign Reform Act of 2002 Section 203 limits a corporation or union from broadcasting a political advertisement within 60-days on election or 30-days of primary.
When the ad refers to a clearly identified candidate for federal office and is targeted to the candidate’s electoral district.
The corporation of union may maintain a separate political action committee that can run such an ad but the corporation or union cannot do so directly by using its general funds.
Section 203 was enacted to deal with the problem that had been brewing for over a century.
In the year 1907 corporations were forbidden to make contributions from corporate funds directly to federal candidates in the 1940s the same limitation was imposed on unions.
In each case the reason was obvious corporations and unions can assemble a lot of money, money given to a political candidates has string attached, people understand this and the consequence understanding a cynicism about the democratic process.
Both the reality of the strings attached and cynicism about democracy are serious threats to the integrity of representative government.
Encountering those threats to governmntal integrity is an interest of compelling importance.
Bans on contributions however became increasingly ineffective as time went by because independent corporate and union expenditures aimed at supporting or defeating a candidate had the same effects impose the same threat as direct contributions to the candidate.
Congress consequently perceive the need to limit expenditures as well as contributions.
In the most recent effort, results of its efforts, was the enactment of Section 203.
Back in 2003 in the McConnell case the main attack on Section 203 was that it not only limited advertisements directly urging the election or defeat of identified candidate but would also limits so called issue ads.
Advertisements calling attention to some public issue and urging a listener to get in touch with a senator or representative to express views on the subject.
In McConnell this court held that the objection was not strong enough to show that Section 203 was unconstitutional on its face as a restriction on corporate or union speech.
One reason for that conclusion was that the great majority issue ads that would be limited would in fact be the functional equivalent of direct election hearing urging the election or the defeat of a candidate.
We gave a simple example an advertisement describes a problem it tells you that Senator or Representative Jane Doe has been taking the wrong position on the problem and urges you to call Jane Doe.
If Jane Doe is also out for election at the time anybody will get the message that Jane Doe should be defeated.
McConnell said the Section 203 was constitutional as to that kind of advertisement.
The advertisement that led to the case now before as were like the Jane Doe ads.
They flag filibusters against judicial nominees as an abusive power they directed their listeners to the website that identified Senator Feingold of Wisconsin as a Senator who engaged in such filibustering.
The ads told the listeners to call Senator Feingold who express their feelings and this at the very time that senator Feingold was up for a reelection.
The clear message was defeat senator Feingold.
If the Jane Doe ad can be regulated so can the Appellee’s ad and senator Feingold and filibusters.
If the filibuster ad cannot be regulated constitutionally neither can the Jane Doe ad.
The court says that the filibuster ad cannot constitutionally be regulated and the unmistakable consequence of that is the McConnell’s holding that Section 203 is facially constitutional is overruled.
Section 203 then is a dead letter and the 100 year ban on corporate and union contributions can now be awaited so easily as to be rendered academic.
It is high to know right this moment the exact effect today’s decision will have on future efforts in campaign finance reform.
It does seem fair to say though all that the structure of constitutional analysis employed by today’s majority leaves congress powerless to deal straightforwardly with the serious threats to the integrity of government and it seems fair to say that in these circumstances they will necessarily be a call for fresh thinking about how to resolve the tension between corporate rights of free speech on the one hand and what President Theodore Roosevelt described a 100 years ago is the authority to protect the integrity of the election of its own officials that is inherent in the government of the United States.