WRTL v. FEC

Tuesday I had the privilege to observe the U.S. Supreme Court in Wisconsin Right to Life (WRTL) v. FEC. Following is my summary and observations about the case.

In 2003, the Supreme Court upheld the right of the federal government to prohibit organizations like Wisconsin Right to Life from airing issue advocacy ads 30 days before a primary and 60 days before the general election. Congress determined that the majority of these ads were “sham” issue ads, intended to advocate the election or defeat of a candidate, rather than to encourage government officials to act on legislation. The Court said while many of the issue ads were “sham” ads, it also recognized that some ads were genuine grassroots lobbying tools. The question now is whether the prior ruling allows for “as applied” challenges to the ban on issue ads.

In WRTL v. FEC, Attorney James Bopp, Jr, maintained that the ads run by WRTL in the summer of 2004, urging people to call Senators Kohl and Feingold to oppose Senate filibusters of judicial nominees, fell into the category of genuine issue ads.

Solicitor General Paul Clement said it was too difficult for the FEC to develop criteria that distinguishes “sham” ads from legitimate ones, and therefore it is necessary to ban all ads referencing candidates by name.

Justice Scalia countered, saying we can not shut down all issue ads simply because they are hard to judge. He said the right to petition government is an important constitutional guarantee and ads that do not mention lawmakers by name are not effective in applying the kind of pressure necessary to make them take action.

Chief Justice Roberts and Justices Scalia and Kennedy determined the standard used by the FEC to prohibit ads was too vague, and agreed that it was inappropriate to close down all applied challenges on a case involving free speech.

Justice Kennedy wondered if the overly vague standard could also be applied to websites and chat rooms which often serve the dual purpose of petitioning government and affecting elections.

Mr. Bopp argued, “The effect of issue ads on elections is speculative, but these people are engaging in law making now. The most important thing they do is to make laws and they can not immunize themselves with an election.”

Sadly Justice O’Connor did not seem persuaded and suggested that groups like WRTL could simply use political action committee (PAC) funds to finance their grassroots lobbying during the black out period. Clearly Justice O’Connor has not tried to raise political money in Wisconsin lately, or faced the wrath of an incumbent politician with whom she disagreed.

Mr. Bopp did an outstanding job representing WRTL and received praise from attorneys representing the many diverse organizations who filed amicus briefs in the case.

Single-party amicus curiae briefs were filed by the ACLU, the AFL-CIO, the Chamber of Commerce, U.S. Sen. Mitch McConnell, and the Alliance for Justice, which is, as it describes itself, "a national association of environmental, civil rights, mental health, women's children's, and consumer advocacy organizations" -- most of its members are nonprofits under IRC § 501(c)(3).

The multi-party brief of the "Coalition of Public Charities" was filed on behalf of thirty-five § 501(c)(3) nonprofits. OMB Watch lead the formation of the Coalition, which included (in addition to OMB Watch) Independent Sector; Independence Institute; Alliance for Justice; American Conservative Union Foundation; Center for Lobbying in the Public Interest; NARAL Pro-Choice America Foundation (along with some NARAL state-level organizations); National Counsel of Jewish Women; National Legal and Policy Center; National Council of Nonprofit Associations (along with some state- and city-level nonprofit associations); National Low Income Housing Coalition; Violence Policy Center; Association of American Physicians & Surgeons Educational Foundation; Eden Housing, Inc.; Clients Council of the Legal Aid Society; Massachusetts Council of Human Service Providers; Michigan League for Human Services; Montana Conservation Voters Education Fund; Bronx AIDS Services, Inc.; The Urban League of Greater Cleveland; Housing Alliance of Pennsylvania; New Morning; and Liberty Legal Institute.

Another multi-party brief was filed by The Center for Competitive Politics, The Cato Institute, The Goldwater Institute, The Institute for Justice, The Reason Foundation, and the Claremont Institute.