On March 23, 2007, the Free Speech Coalition, Free Speech Defense and Education Fund, Inc. and 10 other nonprofit organizations called on the U.S. Supreme Court to affirm - based on the Freedom of the Press - a federal district court ruling that the electioneering communications provisions of the Bipartisan Campaign Reform Act (BCRA) are unconstitutional as applied to Wisconsin Right to Life. A copy of the brief may be found here.

The case, Federal Election Commission v. Wisconsin Right to Life (No. 06-969), is the first as-applied challenge to BCRA to be argued before the Supreme Court.

Importantly, the coalition also asked the Supreme Court to revisit its prior holdings in Buckley v. Valeo and McConnell v. FEC.

Last year, the Supreme Court ruled that McConnell did not foreclose WRTL from bring an as-applied challenge to BCRA. On remand, the district court ruled on December 21, 2006, by a vote of 2-1, that the electioneering communications provisions of BCRA were unconstitutional as applied to WRTL.

The brief presented arguments showing:

  • The government’s arguments in requesting the Supreme Court to overturn the district court’s ruling rest upon the erroneous premise that Congress enacted BCRA pursuant to an alleged power to regulate the federal “political process.” Instead, as the Supreme Court held in Buckley v. Valeo, and reaffirmed in McConnell v. FEC, Congress rests upon the claim that it may enact campaign finance laws as a means to ensure the integrity of the “electoral process.” Having failed to show that applying BCRA to WRTL’s legislative-issue ads is an appropriate means to secure the integrity of a federal election, the government’s arguments that BCRA applies even to genuine issue ads should be rejected.
  • The First Amendment petition, assembly, speech, and press guarantees prohibit applying BCRA Section 203 to WRTL’s genuine issue ads. Highlights of the arguments are as follows: – First, WRTL’s right to petition the government for redress of grievances are abridged because the ads at issue target the people of Wisconsin as constituents, not as electors, urging them to contact their two senators to obtain specific relief on a public policy matter before them. – Second, WRTL’s right of peaceable assembly are abridged because BCRA imposes upon WRTL an organizational and financial structure as a condition precedent to its sponsoring an assembly which is both peaceful and for a lawful purpose. – Third, WRTL’s freedom of speech are abridged by the failure of the FEC to provide adequate procedures whereby WRTL may obtain a timely and effective judicial determination that its ads are protected core political speech. – Fourth, WRTL’s freedom of press are abridged by the FEC’s intrusion upon the editorial freedom secured to all Americans, not limited to the institutional media, as discriminatorily provided in BCRA Section 201(a). The other nonprofit organizations which joined with us were: Citizens United, Citizens United Foundation, Gun Owners of America, Inc., Gun Owners Foundation, Joyce Meyer Ministries, Conservative Legal Defense and Education Fund, The Lincoln Institute for Research and Education, Public Advocate of the United States, DownsizeDC.org, and Downsize DC Foundation.

Oral argument took place on April 25, 2007, and a decision is expected in June 2007.