The U.S. Supreme Court has agreed to hear Wisconsin Right to Life v. FEC, which challenges the federal prohibition on corporate electioneering communications, contained in the McCain-Feingold law, as applied to authentic grass-roots lobbying by a non-profit group. An electioneering communication is a targeted broadcast communication identifying a federal candidate during blackout periods before elections.

The three-judge district court held that the Supreme Court’s decision in McConnell v. FEC (upholding the electioneering communication prohibition against a facial constitutional challenge) precluded all as-applied challenges to the prohibition. It also held that, if facial challenges are permitted, the prohibition was constitutional as applied to Wisconsin Right to Life’s proposed grass-roots lobbying advertising. Thus, there are two issues in this case: (1) whether McConnell precluded all as-applied challenges to McCain-Feingold’s electioneering communication prohibition, and (2) whether an exception to the prohibition is constitutionally required for WRTL’s grass-roots lobbying ads.

WRTL’s grass-roots lobbying ads began in the summer of 2004 and urged Senators Kohl and Feingold not to support upcoming filibusters of President Bush’s judicial nominees. The ads were banned, however, beginning in mid-August, because Senator Feingold was a candidate in the 2004 September primary and general election. WRTL filed suit in D.C. District Court seeking injunctive relief to continue running them.

The ads were genuine grass-roots lobbying ads, urging both of Wisconsin’s U.S. Senators to oppose filibusters of President Bush’s judicial nominees. The filibusters were at the time reaching unprecedented frequency. The broadcast ads did not state either Senator’s position on the filibusters, nor their political affiliation, nor any words supporting or opposing either Senator and made no reference to the upcoming election. The ads did oppose the filibusters and urge constituents to call their Senators and ask them to oppose the filibusters.

James Bopp, Jr., lead counsel for WRTL, comments: “The Court’s decision to accept the case on both issues is very positive, indicating that the Court is willing to seriously consider whether campaign finance laws can be used to insulate federal candidates from genuine grass-roots lobbying about upcoming votes in Congress.”

Posted by Jennifer Lowe, 02:19:23 PM

Wednesday, September 07, 2005