Law School Case Brief
FEC v. Wis. Right to Life, Inc. - 551 U.S. 449, 127 S. Ct. 2652 (2007)
The established exception to mootness for disputes capable of repetition, yet evading review, applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.
Upon remand from the U.S. Supreme Court, appellee nonprofit political advocacy corporation brought an action against appellant Federal Election Commission (FEC), asserting that the organization's advertisements were not barred by the Bipartisan Campaign Reform Act of 2002 (BCRA). The FEC appealed the judgment of the U.S. District Court for the District of Columbia which found the BCRA unconstitutional as applied to the ads. The organization's ads, which were intended for publication shortly before a primary election, asserted that a filibuster to block voting on federal judicial nominees was a political delaying tactic, and the ads requested citizens to contact certain elected officials whom the ads identified by name. The organization conceded that the ads violated the BCRA but contended that the BCRA was overbroad in proscribing the ads which were directed to political issues rather than the election of specific candidates. Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) makes it a federal crime for a corporation to use its general treasury funds to pay for any "electioneering communication," 2 U.S.C. § 441b(b)(2), which BCRA defines as any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running, § 434(f)(3)(A).
Was BCRA’s ban for political advertisements 60 days before an election unconstitutional?
The U.S. Supreme Court first held that the case was not moot even though the election already occurred, since the organization could not expect prompt judicial review of subsequent ads related to time-sensitive issues and it was reasonable to expect the FEC to raise the same objections to the subsequent ads. Further, the Court found that the BCRA unconstitutionally precluded the ads, but there was no majority consensus concerning the basis for the unconstitutionality. Certain Justices found that the specific ads at issue were not the functional equivalent of express campaign speech, while other Justices deemed the specific statutory prohibition to be facially unconstitutional. In McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491, the Court upheld § 203 against a First Amendment facial challenge even though the section encompassed not only campaign speech, or "express advocacy" promoting a candidate's election or defeat, but also "issue advocacy," or speech about public issues more generally, that also mentions such a candidate. The Court concluded there was no overbreadth concern to the extent the speech in question was the "functional equivalent" of express advocacy.
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