Posted May 3, 2007 by Frances R. Hill

Is Wisconsin Right to Life Expanding Again?

Steroid use does not appear to be limited to professional sports, unless one counts litigation as a professional sport.  Much like certain baseball players who seemed to become larger as they grew older—larger biceps, larger batting averages, larger home run totals—so, too, Wisconsin Right to Life (“WRTL”) v. FEC continues to grow unnaturally.  At the eleventh hour, counsel for WRTL was granted permission file a larger, longer brief adding a new argument that BCRA’s “electioneering communication” provision is facially unconstitutional.  Suddenly, a case about a particular as-applied challenge morphed into a facial challenge—with WRTL asking the Supreme Court to overturn its landmark 2003 decision in McConnell, where the Court upheld BCRA’s “electioneering communication” provision as constitutional.

But the surprising growth of WRTL did not stop with its enlarged brief and new argument.  An even more unlikely potential expansion of the case occurred during oral argument when the Solicitor General stated that a section 501(c)(3) organization would present a “much better as-applied challenge” because 501(c)(3) organizations cannot form political action committees (PACs) to engage in politics.  This is a distinctly odd development with potentially alarming implications.  How did we get to this position?

Why was the Solicitor General talking about section 501(c)(3) organizations at all in a case involving a section 501(c)(4) organization?  The Solicitor General was arguing that WRTL’s as-applied challenge lacked merit.  WRTL had argued in its longer, larger brief that the “electioneering communication” provision must be declared facially unconstitutional because as-applied challenges cannot adequately protect the constitutionally protected speech.  Chief Justice Roberts and Justice Scalia directed several questions to the Solicitor General regarding the kind of as-applied challenges he might regard as likely to succeed.  Chief Justice Roberts asked: “So tell me what one, an ad that would succeed in an as-applied challenge looks like, or what the standard would be that we would apply in a way that you think would not call into question the decision in McConnell about Section 203.”  The Solicitor General responded: “Well, let me give you couple of as—I mean, look, my job is to defend the constitutionality of the statute on its face and as applied.  So, I’m not suggesting that any of these as-applied challenges would necessarily success [sic] or I wouldn’t be up here trying to make some argument in defense of the statute.”  Justice Scalia advised the Solicitor General that taking the position that no as-applied challenges could succeed did not advance his case.

Justice Scalia observed: “that doesn’t inspire me with confidence in what you’re telling us.”  The Solicitor General responded: “Let me give you some inspirational as-applied challenges that would be better as-applied challenges than this one.  A challenge by a 501(c)(3) corporation that has difficulty separating up a separate segregated fund.  Much better as-applied challenge.”

Chief Justice Roberts asked if the Solicitor General meant to suggest that the Court should draw a distinction in as-applied challenges between section 501(c)(3) corporations and other corporations.  The Solicitor General replied that “I think a 501(c) corporation has a much better as-applied challenge if they can bring it.  And that’s the as-applied challenge that’s sort of been discussed in some of the amicus briefs.”  The Solicitor General then noted that the appellee could not bring such an as-applied challenge because Wisconsin Right to Life is a section 501(c)(4) corporation.

What is going on here?  At one level, the Solicitor General was trying to avoid a trap.  If he had no examples of an as-applied challenge that could possibly succeed, then Wisconsin Right to Life’s argument that as-applied challenges offered no meaningful protection of constitutionally protected speech becomes more compelling.  It is clear that the Solicitor General needed to provide an example to avoid this trap.  It is far from clear why he chose an example based on the entity involved rather than an example based on the ad involved.  An example based on the ad involved would have permitted him to draw a sharp contrast with the ads at issue in this particular case (e.g., an auto dealership’s ads bearing the name of its founder, who is also a candidate; ads by a law firm specializing in compliance with legislation named after a Congressman—such as the Sarbanes-Oxley Act—who is also a candidate).  Or, the Solicitor General could have focused on the timing of the broadcast ad in this case and developed an example with better facts supporting an as-applied challenge.

Indeed, this is the approach the Solicitor General took in his rebuttal argument when he discussed the issue raised by a series of ads, one of which falls into the pre-election period defining an electioneering communication.  The Solicitor General perceptively observed that “I think the reason that the series of ads hypothetical is beguiling is because it suggests that because they run the same issue ad all the time, they must be interested in the issue, not the election, and the opposite is true here.”  The Solicitor General pointed out a crucial difference in this case.  Here, Wisconsin Right to Life had been interested in the filibuster issue since 2003, but had not run any broadcast ads on the topic for “some 500 days after the first filibuster vote.”  Until then Wisconsin Right to Life had relied on “e-alerts.”  As the Solicitor General noted: “They rely on e-alerts when it’s not during the election cycle.  But when it’s during the election cycle, all of a sudden they start running broadcast ads.  And I think it shows what the timing suggests.  The timing here suggests an intent to influence the election, not an intent to engage on the issue.”

The Solicitor General made two important observations on the “virtue of as-applied challenges.”  One is that there is a “concrete record” providing the basis of the determination and another is that as-applied challenges “are not all created equal.”

The Solicitor General’s concluding argument is in tension with his use of the example of a strong as-applied challenge as one based section 501(c)(3) status.  Challenges based on an entity’s tax status are “all created equal” and there is no “concrete record” beyond the existence of a determination letter from the Internal Revenue Service.  These kinds of challenges would be a kind of group as-applied challenge based solely on the characteristics of an entity.  Alternatively, it suggests a kind of facial challenge applicable to a type of entity defined by its tax status.  In any case, it suggests that the activities of an entity can be predicted from its tax status.  This is a fallacy as a legal matter and folly as a policy matter–a fallacy and folly recognized by a federal court that struck down an FEC-created blanket exemption for 501(c)(3) organizations in the Shays I lawsuit.  The reasons for this conclusion and the potential consequences of accepting the Solicitor General’s example at face value will be discussed in the next entry in this series on the tax issues in Wisconsin Right to Life.