Order Code RS22687
July 5, 2007
The Constitutionality of Regulating Political
Advertisements: An Analysis of Federal
Election Commission v. Wisconsin Right to
Life, Inc.
L. Paige Whitaker
Legislative Attorney
American Law Division
Summary
On June 25, 2007, in a 5-4 decision, the Supreme Court in Wisconsin Right to Life,
Inc. v. FEC (WRTL II) affirmed a lower court ruling, finding that a provision of the
Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporate or labor union
treasury funds from being spent on advertisements broadcast within 30 days of a primary
or 60 days of a general election, was unconstitutional as applied to ads that Wisconsin
Right to Life, Inc. sought to run. While not expressly overruling its 2003 ruling in
McConnell v. FEC, which upheld the BCRA provision against a First Amendment facial
challenge, the Court limited the law’s application. Specifically, it ruled that
advertisements that may reasonably be interpreted as something other than as an appeal
to vote for or against a specific candidate are not the functional equivalent of express
advocacy and, therefore, cannot be regulated.
Background and Case History
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)1 prohibits
corporate or labor union treasury funds from being spent for “electioneering
communications.” BCRA defines “electioneering communication” as any broadcast,
cable, or satellite transmission made within 30 days of a primary or 60 days of a general
election (sometimes referred to as the “blackout periods”) that refers to a candidate for
federal office and is targeted to the relevant electorate.2 In a 2003 decision, McConnell
v. Federal Election Commission (FEC),3 the U.S. Supreme Court upheld Section 203 of
BCRA against a First Amendment facial challenge even though the provision regulates
1 P.L. 107-155. This law is also known as “McCain-Feingold,” referring to the principal Senate
sponsors of the legislation.
2 See 2 U.S.C. § 441b(b)(2).
3 540 U.S. 93 (2003).

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not only campaign speech or “express advocacy,” (speech that expressly advocates the
election or defeat of a clearly identified candidate), but also “issue advocacy,” (speech that
discusses public policy issues, while also mentioning a candidate). Specifically, the Court
determined that the speech regulated by Section 203 was the “functional equivalent” of
express advocacy.4
On July 26, 2004, Wisconsin Right to Life (WRTL), a corporation that accepts
contributions from other corporations, began broadcasting advertisements exhorting
viewers to contact Senators Feingold and Kohl to urge them to oppose a Senate filibuster
to delay and block consideration of federal judicial nominations. WRTL planned to run
the ads throughout August 2004 and to finance them with its general treasury funds,
thereby running afoul of Section 203, as such ads would have been broadcast within the
30-day period prior to the September 14, 2004, primary. Anticipating that the ads would
be illegal “electioneering communications,” but believing that they nevertheless had a
First Amendment right to broadcast them, WRTL filed suit against the FEC, seeking
declaratory and injunctive relief and alleging that Section 203’s prohibition was
unconstitutional as applied to the ads and any future ads that they might plan to run.
Just prior to the BCRA 30-day blackout period, a three-judge district court denied
a preliminary injunction, finding that McConnell v. FEC left no room for such an “as-
applied” challenge. Accordingly, WRTL did not broadcast its ads during the blackout
period, and the district court subsequently dismissed the complaint in an unpublished
opinion. On appeal, in Wisconsin Right to Life, Inc. v. FEC (WRTL I),5 the Supreme
Court vacated the lower court judgment, finding that by upholding Section 203 against
a facial challenge in McConnell, “we did not purport to resolve future as-applied
challenges.”6 On remand, after permitting four Members of Congress to intervene as
defendants, the three-judge district court granted WRTL summary judgment, determining
that Section 203 was unconstitutional as applied to WRTL’s ads.7 It concluded that the
ads were genuine issue ads, not express advocacy or its “functional equivalent” under
McConnell, and held that no compelling interest justified their regulation.8 The FEC
appealed.
Supreme Court Decision
Overview. In a 5 to 4 decision, Wisconsin Right to Life, Inc. v. FEC (WRTL II),9
the Supreme Court affirmed the lower court ruling, finding that Section 203 of BCRA was
unconstitutional as applied to the WRTL ads, and that they should have been permissible
to broadcast. In a plurality opinion, written by Chief Justice Roberts, joined by Justice
Alito — Justice Scalia wrote a separate concurrence, joined by Justices Kennedy and
4 Id. at 204-205, 206.
5 546 U.S. 410 (2006).
6 Id. at 412.
7 Wisconsin Right to Life, Inc. v. Federal Election Commission, 466 F. Supp. 2d 195 (D.D.C.
2006).
8 Id. at 210.
9 No. 06-969 (U.S. June 25, 2007).

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Thomas10 — the Court announced that “[b]ecause WRTL’s ads may reasonably be
interpreted as something other than as an appeal to vote for or against a specific candidate,
we hold they are not the functional equivalent of express advocacy, and therefore, fall
outside the scope of McConnell’s holding.”11 In determining the threshold question, as
required by McConnell, of whether the ads were the “functional equivalent” of speech
expressly advocating the election or defeat of a candidate for federal office or genuine
issue advocacy, the Court observed that it had long recognized that the practical
distinction between campaign advocacy and issue advocacy can often dissolve because
candidates, particularly incumbents, “are intimately tied to public issues involving
legislative proposals and governmental actions.”12 Nonetheless, the Court stated, its
jurisprudence in this area requires it to make such a distinction, and “[i]n drawing that
line, the First Amendment requires ... err[ing] on the side of protecting political speech
rather than suppressing it.”13
Analysis. In WRTL II, the FEC appealed the lower court ruling arguing that in
view of the fact that McConnell had already held that Section 203 was facially valid,
WRTL — and not the government — should bear the burden of demonstrating that BCRA
is unconstitutional as applied to its ads.14 Rejecting the FEC’s contention, the Court
pointed out that Section 203 burdens political speech and is therefore subject to strict
scrutiny.15 Under strict scrutiny, the Court determined that the FEC — not the regulated
community — had the burden of proving that the application of Section 203 to WRTL’s
ads furthered a compelling interest, and was narrowly tailored to achieve that interest.16
As it had already ruled in McConnell that Section 203 “survives strict scrutiny to the
extent it regulates express advocacy or its functional equivalent,” the Court found that in
order to prevail, the FEC needed to show that the WRTL ads it sought to regulate fell
within that category.17 On the other hand, if the speech that the FEC sought to regulate
is not express advocacy or its functional equivalent, the Court cautioned that the FEC’s
task is “more formidable” because it must demonstrate that banning such ads during the
10 In a concurrence, Justice Scalia found that the attempt in the Court’s ruling to distinguish
McConnell is “unpersuasive enough, and the change in the law it works is substantial enough,
that seven Justices ... having widely divergent views concerning the constitutionality of the
restrictions at issue, agree that the opinion effectively overrules McConnell without saying so.”
Id., slip op. at 17, n. 7 (Scalia, J. concurring in part and concurring in the judgment).
11 Id., slip op. at 22.
12 Id., slip op. at 2 (quoting Buckley v. Valeo, 424 U.S. 1, 42 (1976)).
13 Id., slip op. at 2-3.
14 Id., slip op. at 10.
15 Id., slip op. at 10 (citing McConnell v. FEC, 540 U.S. 93, 205 (2003); Austin v. Michigan
Chamber of Commerce, 494 U.S. 652, 658 (1990); FEC v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238, 252 (1986); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978);
Buckley v. Valeo, 424 U.S. 1, 44-45 (1976)).
16 Id., slip op. at 11 (finding “[e]specially where, as here, a prohibition is directed at speech itself,
and the speech is intimately related to the process of governing ... ‘the burden is on the
government to show the existence of [a compelling] interest.’”(quoting First Nat. Bank of Boston
v. Bellotti, 435 U.S. at 786)).
17 Id. (quoting McConnell v. FEC, 540 U.S. at 206).

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blackout periods is narrowly tailored to serve a compelling governmental interest, a
conclusion that no precedent has reached.18
In response to the FEC’s and the dissent’s19 argument that McConnell established a
test for determining whether an ad is the functional equivalent of express advocacy, that
is, “whether the ad is intended to influence elections or has that effect,” the Court
disagreed, finding that it had not adopted any type of test as the standard for future as-
applied challenges.20 Instead, the Court found that its analysis in McConnell was
grounded in the evidentiary record, particularly studies showing that the BCRA definition
of “Electioneering Communications accurately captures ads having the purpose or effect
of supporting candidates for election to office.”21 Hence, when the McConnell Court
made its assessment that the plaintiffs in that case had not sufficiently proven that Section
203 was overbroad and could not be enforced in any circumstance, it did not adopt a
particular test for determining what constituted the “functional equivalent” of express
advocacy. Indeed, the Court held, the fact that in McConnell it looked to such intent and
effect “neither compels nor warrants accepting that same standard as the constitutional
test for separating, in an as-applied challenge, political speech protected under the First
Amendment from that which may be banned.”22
Accordingly, the Court turned to establishing the proper standard for an as-applied
challenge to Section 203 of BCRA, finding that such a standard “must be objective,
focusing on the substance of the communication rather than amorphous considerations of
intent and effect,” involving “minimal if any discovery” so that parties can resolve
disputes “quickly without chilling speech through the threat of burdensome litigation,”
and eschewing “‘the open-ended rough-and-tumble of factors,’ which ‘invit[es] complex
argument in a trial court and a virtually inevitable appeal.’”23 In summation, the Court
18 Id.
19 The dissenting opinion maintained that the principal opinion establishes a “new test to identify
a severely limited class of ads that may constitutionally be regulated as electioneering
communications, a test that is flatly contrary to ... [and] simply inverts” the Court’s holding in
McConnell. Id., slip op. at 24 (Souter, J., dissenting)(quoting McConnell v. FEC, 540 U.S. at
206-207, n. 88). While the Court in McConnell had “left open the possibility” of a “‘genuine’
or ‘pure’ issue ad that might not be open to regulation under §203,” the dissent argued that the
Court meant that an issue ad that did not contain campaign advocacy could escape the regulation,
not that “if an ad is susceptible to any ‘reasonable interpretation other than as an appeal to vote
for or against a specific candidate,’ then it must be a ‘pure’ or ‘genuine’ issue ad.” Id., slip op.
at 24-25 (Souter, J., dissenting)(quoting WRTL II, slip. op. at 16.)
20 Id., slip op. at 12.
21 Id.
22 Id., slip op. at 13. The Court further noted that in its seminal 1976 campaign finance decision,
Buckley v. Valeo, it had expressly “rejected an intent-and-effect test for distinguishing between
discussions of issues and candidates,” finding that such an analysis would afford “‘no security
for free discussion.’” Id. at 13-14 (quoting Buckley v. Valeo, 424 U.S. 1, 43-44 (1976), quoting
Thomas v. Collins, 323 U.S. 516 (1945)).
23 Id., slip op. at 16 (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 547 (1995)).

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announced that the standard “must give the benefit of any doubt to protecting rather than
stifling speech.”24 Taking such considerations into account, the Court held that
[A] Court should find 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. Under this test, WRTL’s three ads are plainly not
the functional equivalent of express advocacy. First, their content is consistent with
that of a genuine issue ad: 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 the matter. Second, their content lacks indicia of express
advocacy: 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.25
Moreover, the Court cautioned, contextual factors “should seldom play a significant role
in the inquiry.” Although courts are not required to ignore basic background information
that provides relevant contextual information about an advertisement — such as whether
the ad describes a legislative issue that is under legislative consideration — the Court
found that such background information “should not become an excuse for discovery.”26
In applying the standard it developed for as-applied challenges to the ads that WRTL
sought to broadcast, the Court determined that the FEC had failed to demonstrate that
such ads constituted the functional equivalent of express advocacy because they could
reasonably be interpreted as something other than a vote for or against a candidate. The
Court’s established jurisprudence has recognized the governmental interest in preventing
corruption and the appearance of corruption in elections, which has been invoked in order
to justify contribution limits and, in certain circumstances, spending limits on
electioneering expenditures that pose the risk of quid pro quo corruption. In McConnell,
the Court noted, it had applied this interest in justifying the regulation of express
advocacy and its functional equivalent, but in order to justify regulating WRTL’s ads,
“this interest must be stretched yet another step to ads that are not the functional
equivalent of express advocacy.”27 In strongly worded opposition to extending the
application of this governmental interested yet again, the Court announced, “[e]nough is
enough.” The WRTL ads are not equivalent to contributions — they are political speech
— and the governmental interest in avoiding quid pro quo corruption cannot be used to
justify their regulation.28 The Court also announced that the discussion of issues cannot
be suppressed simply because the issues may also be relevant to an election: “Where the
First Amendment is implicated, the tie goes to the speaker, not the censor.”29
In an equally strongly worded dissent, Justice Souter — with whom Justices Stevens,
Ginsburg, and Breyer joined — argued that WRTL II overruled that portion of McConnell
24 Id. (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
25 Id.
26 Id., slip op. at 20.
27 Id., slip op. at 26 (emphasis included).
28 Id.
29 Id., slip op. at 21.

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v. FEC upholding Section 203 of BCRA against a facial constitutional challenge. Among
other points in opposition to the Court’s ruling, the dissent observed that Section 203 was
less restrictive than the Court’s opinion would indicate in that it did not effect a complete
ban on corporate and labor union funds being spent on electioneering communications.
Indeed, the dissent remarked, quoting McConnell, “‘corporations and unions may finance
genuine issue ads [in the runup period] by simply avoiding any specific reference to
federal candidates, or in doubtful cases by paying for the ad from a segregated [PAC]
fund.’”30 Moreover, the dissent added, a nonprofit corporation, regardless of its source
of funding, may communicate its criticism or support of a particular candidate within days
of an election by speaking via a newspaper ad or on a website and, in accordance with
earlier Court precedent, may use its general treasury funds to pay for electioneering
communications so long as it does not finance such ads with funding from business
corporations and unions.31 Of particular significance, the dissent cautioned that it is
possible, based on the reasoning of the Court’s ruling, that even advertisements containing
express words of advocacy — known as “magic words” — could now escape regulation
under Section 203.32
Conclusion
While the ultimate impact and aftermath of the Supreme Court’s decision in WRTL
II remains to be seen,33 application of the federal law prohibiting corporate and labor
union treasury funds from being spent on ads that are broadcast 30 days before a primary
and 60 days before a general election has been limited. As a result of this ruling, only ads
that are susceptible of no reasonable interpretation other than an exhortation to vote for
or against a candidate can be regulated. While the Court’s ruling was careful not to
overrule explicitly its earlier upholding of this portion of the Bipartisan Campaign Reform
Act (BCRA) in its 2003 decision, McConnell v. FEC, WRTL II seems to indicate that the
FEC’s ability to regulate the “electioneering communication” ban has nonetheless been
circumscribed.34
30 Id., slip op. at 18 (Souter, J., dissenting)(quoting McConnell v. FEC, 540 U.S. 93, 206 (2003)).
31 Id., slip op. at 18-19 (Souter, J., dissenting)(referencing the Court’s holding in FEC v.
Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)(establishing a three-part test
exempting certain ideological corporations from campaign finance regulation)).
32 Id., slip op. at 23, 25 (Souter, J., dissenting).
33 On June 28, 2007, Federal Election Commission (FEC) Chairman Robert Lenhard indicated
that the FEC is considering how to respond to this Supreme Court ruling, but that it has not yet
made any decisions. “FEC Still Pondering Next Step After Ruling on Grassroots Lobbying,”
MONEY AND POLITICS, June 29, 2007.
34 For example, commentator Lyle Denniston, on SCOTUSBLOG, observed that what remains
of the McConnell v. FEC decision upholding the BCRA prohibition on electioneering
communications “deeply divided the Court” and “the end result is that, if it is hanging on, it is
just by a thread.” “Commentary: The assault on ‘faux judicial restraint,’”
[http://www.scotusblog.com/movabletype/archives/2007/06/commentary_the_4.html] last visited
June 28, 2007.

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