WRTL moves quickly to exploit victory
on Jul 13, 2007 at 10:51 pm
Less than three weeks after winning a significant victory in the Supreme Court over its right to broadcast ads during election seasons, a Wisconsin advocacy group has asked a three-judge U.S. District Court to rule quickly on the legality of an ad it had wanted to run in 2006. And, in a separate plea that seeks to keep campaign reform advocates from opposing its request or from prolonging the court fight, the group urged the District Court to bar four members of Congress from any role in the continuing case even though they have been involved up to now. The two filings can be found here and here.
The Wisconsin Right to Life maneuvers in U.S. District Court in Washington indicated how energetically advocacy groups will seek to exploit the Justices’ 5-4 decision on June 25 in Federal Election Commission v. Wisconsin Right to Life (06-969). (The case back in District Court is docketed as 04-1260, before a three-judge District Court.)
But the maneuvers by the group, an abortion opponent, also appeared designed to set up a new test case that might persuade the Supreme Court to go further, and strike down altogether the part of the Bipartisan Campaign Finance Reform Act that bars election-season radio, TV or cable ads that mention the name of a federal candidate. The Court did not go that far in the WRTL decision last month, although three Justices in the majority argued that it should have. The decision in that case found only that the three WRTL ads planned for airing in 2004 dealing with Senate filibusters of judgeships could not constitutionally be banned under the Act. That limited the decision to an as-applied challenge of the federal ban on so-called “electioneering communications,” confined technically to the specifics of that particular case although providing a new and more generous definition of ads that would be protected by the First Amendment. The case is shortly to be sent back to District Court for review of the ad that WRTL had planned to air in 2006, not yet ruled upon. (That ad involved a plea to lobby members of Congress about a proposed new federal legislation on parental notice about a teenage daughter’s abortion.)
In WRTL”s motion to bar four members of Congress from remaining in the case as it moves on to the 2006 ad, it made the following argument: “If WRTL and similar advocacy groups are forced to deal with the campaign finance reform lobby as parties in this and every as-applied challenge to the electioneering communications prohibition — bearing the burden of responding to double briefing, extra discovery, and the sort of novel and complex arguments asserted and rejected in this case — then the as-applied remedy will be inadequate and it will be necessary to reconsider” the constitutionality of the “electioneering communcations” ban (which the Court upheld as written in McConnell v. FEC in 2003).
The four members of Congress are Republicans Sen. John McCain or Arizona and Rep. Christopher Shays of Connecticut and Democratic Reps. Tammy Baldwin of Wisconsin and Martin Meehan of Massachusetts. When the District Court was considering WRTL’s plan for the 2004 ads, it allowed those four lawmakers to join in as intervenors. In the motion filed Thursday, WRTL asked the three-judge District Court to reconsider that, and deny further intervention.
When WRTL wanted the District Court also to rule at that time on the ad it had prepared for airing in 2006, the members of Congress, joined by the FEC, said they would need an opportunity to conduct new discovery before they could respond to that separate broadcast item. They told the District Court that, in order to oppose WRTL’s plea for a decision upholding that ad’s legality, the other side would “need discovery regarding the purpose and likely effect of WRTL’s 2006 ad and other future ads…” The District Court at that time put off any ruling on the 2006 ad, and it was specifically not at issue before the Supreme Court this past Term.
WRTL’s new motion noted that it had asked the Supreme Court last Term to strike down the ad ban unless the Court laid down a new and more tolerant test on what kinds of ads are protected by the First Amendment and gave assurances that as-applied challenges would be “an adequate remedy” by limiting the burdens of litigation.
The group contended that the lead opinion in the Supreme Court’s ruling, by Chief Justice John G. Roberts, Jr., provided both parts of that remedy. And, it noted, Justice Samuel A. Alito, Jr., said specifically in a separate opinion that, if it turned out that an as-applied remedy would not sufficiently protect political speech, the Court would be asked in the future to reconsider the 2003 holding that the ad ban, as written, was constitutional.
Allowing the four lawmakers to remain in the case, WRTL’s motion said, would be “too burdensome and chilling.” It added: “If small, nonprofit ideological advocacy groups are compelled to go up against the vast resources of the campaign finance reform lobby” in addition to the FEC, “they will without question be burdened and chilled.”
Thus, WRTL urged the District Court to set up a rapid briefing schedule, and rule on the legality of the proposed 2006 ad without any discovery. Only that, it argued, would satisfy the Chief Justice’s opinion in the past Term.
It recommended that WRTL file a legal memorandum and statement of undisputed facts within 30 days after the Court issued a scheduling order, with the FEC responding 30 days after that, and WRTL replying 15 days later. It said the FEC’s lawyers had said they have not had time to study the question, and that the four members of Congress would not oppose a briefing schedule but would provide additional views later.
In a related development on Friday, the FEC and the campaign reform advocates joined with another conservative advocacy group (also represented by WRTL”s lawyer), the Christian Civic League of Maine, in urging the District Court to find that the Supreme Court’s WRTL decision also meant that a 2006 ad prepared by the Maine group was protected by the First Amendment. That dispute, too, had gone separately to the Supreme Court, and the Justices sent it back to the District Court for a new look in the wake of the WRTL decision.
The District Court in the Christian Civic League case on July 3 ordered the parties to file suggestions on how to handle that case following the WRTL ruling by the Justices. Their response was the joint motion. (That case is docketed as 06-614, Christian Civic League v. FEC.) The joint motion can be found here; a proposed order is here
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