SB33 FEC v. Wisconsin Right to Life

Memo From Attorney Brent Ferguson, Brennan Center for Justice, [email protected]

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL”), narrowed the federal ban on corporate campaign spending; the case did not affect (or even address) federal disclosure law, which was later upheld by an 8-1 vote in Citizens United v. FEC,  558 U.S. 310 (2010).

  • In WRTL, the Court addressed only Section 203 of the Bipartisan Campaign Reform Act, which “ma[de] it a federal crime for any corporation to broadcast, shortly before an election, any communication that names a federal candidate for elected office and is targeted to the electorate.” 551 U.S. at 455-56. It held that because the ban infringed on the freedom of speech, it could only be applied to ads that contained “express advocacy or its functional equivalent.” Id. at 481.

  • WRTL narrowed only the corporate spending ban; it did not address the separate law requiring disclosure of the funding behind ads aired shortly before the election. The word “disclosure” does not appear in either of the two opinions that formed the Court’s majority.

  • Three years after WRTL was decided, Citizens United (1) upheld the federal disclosure and disclaimer laws that require transparency of funding sources for ads that mention a candidate shortly before elections, and (2) specifically rejected the plaintiff’s attempts to use WRTL to support its disclosure argument. From Citizens United (by a vote of 8-1):

    • “For these reasons, we reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.” 558 U.S. at 369.

    • After noting that WRTL limited federal “restrictions on independent expenditures to express advocacy and its functional equivalent,” the Court explained that “Citizens United seeks to import a similar distinction into BCRA’s disclosure requirements. We reject this contention.” Id. at 368-69.

  • The Court of Appeals for the First Circuit*, other courts, and scholars have recognized that it is improper to use WRTL as the basis for arguing that disclosure requirements are unconstitutional, and that Citizens United upheld disclosure requirements:

    • Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 54 (1st Cir. 2011) (“[T]he Supreme Court has explicitly rejected an attempt to ‘import [the] distinction’ between issue and express advocacy into the consideration of disclosure requirements.”).

    • Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012)

(“In Citizens United, which came after Wisconsin Right to Life, the Court explicitly rejected the plaintiff’s attempt to graft the express advocacy/issue discussion dichotomy onto the constitutional law of campaign finance disclosure.”).

  • Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minn. L. Rev. 1064, 1107 (2008)

(“In the WRTL case, the plaintiff did not challenge section 201, and agreed to file the requisite disclosure reports with the FEC and include disclaimers on its advertising.”).

  • Ciara Torres-Spelliscy, Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed, 27 Ga. St. U. L. Rev. 1057 (2011) (“[N]othing in WRTL II undermines [the] unequivocal holding that reporting requirements for [electioneering communications] are fully constitutional.”).

*NH is on the First Circuit

  • WRTL was completely superseded by Citizens United. Citizens United invalidated the corporate spending ban entirely; consequently, WRTL’s decision to narrow that ban is now meaningless.

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