Wisconsin Right to Life, Inc. v. Federal Election Commission

(Slip Opinion) Cite as: 546 U. S. ____ (2006) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
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No. 04–1581
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WISCONSIN RIGHT TO LIFE, INC., APPELLANT v.
FEDERAL ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[January 23, 2006]

PER CURIAM.
The Bipartisan Campaign Reform Act of 2002 (BCRA),
§203, 116 Stat. 91, prohibits corporations from using their
general treasury funds to pay for any “electioneering
communications.” 2 U. S. C. §441b(b)(2) (2000 ed., Supp.
III). BCRA §201 defines “electioneering communications”
as any broadcast, cable, or satellite communication that
refers to a candidate for federal office and that is broad-
cast within 30 days of a federal primary election or 60
days of a federal general election in the jurisdiction in
which that candidate is running for office. 2 U. S. C.
§434(f)(3). Appellant Wisconsin Right to Life, Inc. (WRTL)
brought this action against the Federal Election Commis-
sion (FEC), seeking a judgment declaring BCRA unconsti-
tutional as applied to several broadcast advertisements
that it intended to run during the 2004 election. WRTL
also sought a preliminary injunction barring the FEC from
enforcing BCRA against those advertisements. WRTL does
not dispute that its advertisements are covered by BCRA’s
definition of prohibited electioneering communications.
Instead, it contends that BCRA cannot be constitutionally
2 WISCONSIN RIGHT TO LIFE, INC. v. FEDERAL ELECTION
COMM’N
Per Curiam

applied to its particular communications because they
constitute “grassroots lobbying advertisements.” Although
the FEC has statutory authority to exempt by regulation
certain communications from BCRA’s prohibition on elec-
tioneering communications, §434(f)(3)(B)(iv), at this point, it
has not done so for the types of advertisements at issue
here.
The three-judge District Court denied the motion for a
preliminary injunction and subsequently dismissed
WRTL’s complaint in an unpublished opinion. We noted
probable jurisdiction, 545 U. S. ___ (2005). Appellant asks
us to reverse the judgment of the District Court because
that court incorrectly read a footnote in our opinion in
McConnell v. Federal Election Comm’n, 540 U. S. 93, (2003),
as foreclosing any “as-applied” challenges to the prohibition
on electioneering communications. We agree with WRTL
that the District Court misinterpreted the relevance of our
“uphold[ing] all applications of the primary definition” of
electioneering communications. Id., at 190, n. 73. Contrary
to the understanding of the District Court, that footnote
merely notes that because we found BCRA’s primary defini-
tion of “electioneering communication” facially valid when
used with regard to BCRA’s disclosure and funding re-
quirements, it was unnecessary to consider the constitu-
tionality of the backup definition Congress provided. Ibid.
In upholding §203 against a facial challenge, we did not
purport to resolve future as-applied challenges.
The FEC argues that the District Court also rested its
decision on the alternative ground that the facts of this
case “suggest that WRTL’s advertisements may fit the
very type of activity McConnell found Congress had a
compelling interest in regulating.” No. 04–1260 (DC, Aug.
17, 2004), App. to Juris. Statement 8a. It is not clear to
us, however, that the District Court intended its opinion to
rest on this ground. For one thing, the court used the
word “may.” For another, its separate opinion dismissing
 Cite as: 546 U. S. ____ (2006) 3

Per Curiam

WRTL’s challenge with prejudice characterized its previ-
ous opinion as holding that “WRTL’s ‘as-applied’ challenge
to BCRA is foreclosed by the Supreme Court’s decision in
McConnell.” Id., at 3a. Given this ambiguity, we cannot
say with certainty that the District Court’s dismissal was
based on this alternative ground.
We therefore vacate the judgment and remand the case
for the District Court to consider the merits of WRTL’s as-
applied challenge in the first instance.
It is so ordered.