dissenting.
The majority employs a plain facial analysis of the text in WRTL’s 2004 advertisements — ignoring the context in which the text was developed — to assess whether the ads are genuine issue ads which should escape BCRA’s reach, or are regulable electioneering communications. This approach is inconsistent with McConnell, is inconsistent with this panel’s own prior rulings, and finds little support in logic. Because a contextual analysis is warranted and discloses deep factual rifts between the parties concerning the purpose and intended effects of the ads, neither side is entitled to judgment as a matter of law, *211and I respectfully dissent from the majority’s decision granting summary judgment to WRTL.
DISCUSSION
WRTL, the FEC and the intervenors have moved for summary judgment. Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Shekoyan v. Sibley, 409 F.Sd 414, 422 (D.C.Cir.2005). Material facts are those “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (further holding that there is a genuine issue of material fact if the evidence is such that a reasonable jury could return a verdict for the non-moving party). “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ____” Id. at 255. In this case, in which parties have filed cross-motions for summary judgment, this panel must determine whether either party, as movant, has demonstrated that there is no dispute concerning the material facts that must be assessed to determine the constitutionality of § 203’s prohibition as applied to WRTL’s 2004 advertisements.
WRTL challenges § 203 as applied to its advertisements. “An as-applied challenge ... requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir.2006). WRTL argues that its ads are grassroots lobbying which should be exempt from BCRA’s regulations because it is not electioneering communication. (Mem. in Supp. of Pl.’s Mot. Summ. J. (“Pi’s Mot. Summ. J.”) at 38.) WRTL asserts that even if this panel does not recognize a grassroots lobbying exemption,1 its ads are genuine issue ads which are not the functional equivalents of regulable express advocacy. Because the Supreme Court acknowledged that “the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” McConnell, 540 U.S at 206 n. 88, 124 S.Ct. 619, WRTL maintains that as applied to its ads, § 203 is unconstitutional.2
*212The FEC and the intervenors argue that WRTL’s ads are electioneering communications that are properly regulable under BCRA, and that a grassroots lobbying exemption would threaten the Supreme Court’s ruling in McConnell. (Def.’s Mem. in Supp. of Mot. Summ. J. (“Def.’s Mot. Summ. J.”) at 1, 21, 26.) They claim that the ads were intended to influence the votes in the 2004 Senate election and fit the very type of activity that McConnell found Congress had a compelling interest in regulating. The defendants also assert that the ads were designed and timed to set up a legal challenge to the BCRA and thus were not genuine issue ads entitled to be funded by corporate funds.
I. McConnell
McConnell upheld the validity of the electioneering communication definition in § 203 of BCRA over a First Amendment challenge. Noting that “[government has a compelling interest in regulating advertisements that expressly advocate for the election or defeat of a candidate for federal office,” McConnell, 540 U.S. at 205, 124 S.Ct. 619, the McConnell Court cited numerous values relating to this interest, including “ ‘[preserving the integrity of the electoral process, preventing corruption, and sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government.’ ” Id. at 206 n. 88 (quoting First Nat’l Bank v. Bellotti, 435 U.S. at 788-89). Although the Court recognized the existence of genuine issue ads, it nevertheless held that some issue advertisements could fall within the category of electioneering communications to be regulated by BCRA.3 McConnell, 540 U.S. at 206, 124 S.Ct. 619. Using the Bill Yellowtail advertisement as an example, the Court explained that “although .... advertisements [may] not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.” Id. at 193, 124 S.Ct. 619.4 McConnell held that § 201’s electioneering communication was narrowly tailored to meet a compelling government interest. In its constitutional analysis of § 203, the Court described viable alternatives for organizations seeking to broadcast “genuine issue advertising” without running afoul of the electioneering communication provision: “corporations and unions may finance genuine issue ads ... [during prohibited periods] by simply *213avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.” Id. at 206, 124 S.Ct. 619.
II. Facial Analysis
The landscape of campaign finance law has been changed by BCRA and McConnell. There is no longer a bright line rule for distinguishing between express advocacy and genuine issue advocacy to determine which may be constitutionally regulated. Courts can no longer rely on Buckley v. Valeo’s magic words test to determine whether the advertising at issue is electoral advocacy, namely whether certain election-related words are present or absent. Id., 424 U.S. at 43-44 & 44 n. 52, 96 S.Ct. 612. Before McConnell, some judicial sentiment disfavored examining the context rather than the literal text of election ads.5 For example, North Carolina Right to Life, Inc. v. Leake, 344 F.3d 418 (4th Cir.2003), held unconstitutional a provision of a North Carolina campaign reform statute that allowed a contextual examination of an advertisement to determine its status as express advocacy. “This circuit ... has consistently interpreted Buckley as allowing regulation ‘only if it [is] limited to expenditures for communications that literally include words ivhich in and of themselves advocate the election or defeat of a candidate.’ ” Id. at 425 (internal citations omitted). There is no doubt, though, that McConnell has unsettled those sentiments. Leake was vacated and remanded by the Supreme Court in light of its McConnell decision. Leake v. North Carolina Right to Life, Inc., 541 U.S. 1007, 124 S.Ct. 2065, 158 L.Ed.2d 617 (2004).
That Leake was vacated comes as no surprise. The McConnell Court assessed the subjective intention of the advertising before it in deciding that § 201 was not overly broad. The Court evaluated ads which their proponents claimed were genuine issue advertising with no electioneering purpose and nevertheless concluded that although an advertisement may not plainly promote or attack a candidate, it may still be “clearly intended to influence the election.” McConnell, 540 U.S. at 193, 124 S.Ct. 619 (emphasis added) (further stating that “[f]ar from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.”). In discussing the record, the McConnell Court specifically examined both the purpose of the ads before it as well as their impact on the relevant election. “The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief pre-election timespans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court .... Nevertheless, the vast majority of ads clearly had such a purpose.” Id. at 206, 124 S.Ct. 619 (emphasis added) (further stating that “justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.” (emphases added)).
The majority does not believe that this panel should engage in a contextual analysis, claiming that such an inquiry is fore*214closed by the Supreme Court’s holdings in Buckley and Thomas. My colleagues quote language in Thomas to suggest that an intent- and effect-based inquiry into whether or not an advertisement is express advocacy will create ambiguity and uncertainty on the part of the speaker. They suggest that a facial analysis of whether the advertisement, among other things, promotes or attacks the named candidate, is appropriate and that any other course of action is impractical and undesirable. However, the McConnell Court looked precisely to the purpose and effect of advertising in a facial challenge to the constitutionality of the electioneering communication provision, and there is no logical reason why this panel should not engage in such an analysis for an as-applied challenge. See Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 785-86 (9th Cir.2006) (citing McConnell for the proposition that an advertisement’s effect matters in both a facial and an as-applied challenge for overbreadth to an Alaska campaign finance law). A purpose- and effect-based inquiry seems necessary to determine if WRTL’s ads are genuine issue ads or are instead express or sham issue advocacy because the “presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.” McConnell, 540 U.S. at 193, 124 S.Ct. 619.
The majority also appears to blur the Supreme Court’s prohibition on employing a test that involves the subjective intent of the listener and one that involves the subjective intent of the advertiser. See McConnell v. Fed. Election Comm’n, 251 F.Supp.2d at 568 (opinion of Kollar-Kotelly, J.) (“[T]he Supreme Court made clear that a test distinguishing between a discussion of the issues and a discussion of candidates that relied on the subjective intent of the listener was problematic.”). In Thomas, the Court criticized a test based upon an “understanding of the hearers,” but drew no conclusion about whether the speaker’s purpose could be used to examine the nature of the speech. The majority cites no precedent holding that there may be no inquiry into the subjective intent of the speaker in determining the type of speech made.6
In ignoring the context in which the advertisements were developed, the majority also takes a sharp turn from its own prior rulings. Two years ago, this panel unanimously found that WRTL had failed to establish a likelihood of success on the *215merits and denied its motion for injunctive relief, stating that “[t]he facts suggest that WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling interest in regulating.” Wis. Right to Life v. Fed. Election Comm’n, Civil Action No. 04-1260, 2004 WL 3622736, at *3 (D.D.C. Aug.17, 2004). We explicitly found and cited contextual facts as relevant to our conclusion discounting the likelihood of finding any constitutional infirmity in BCRA’s regulation of the WRTL advertisements.7
After the remand from the Supreme Court, this panel more than once took a clear position favoring contextual analysis when the parties voiced sharp disagreement over what if any discovery would be relevant to the merits of WRTL’s complaint. The FEC and the intervenors proposed a briefing schedule that contemplated conducting discovery into a variety of issues regarding the purpose and effect of WRTL’s 2004 advertisements. (Def-’s Opp’n to Pl.’s Mot. to Reinstate, Order Supp. Briefing, and Expedite Cross-Mots. Summ. J. at 3^4; Def.’s Mem. in Support of Rule 16 Proposal for Disc, and Summ. J. at 3; Intervenors’ Mem. in Support of Def.’s Rule 16 Proposal for Disc, and Summ. J. at 1-2.) WRTL urged that such discovery bearing on context was flatly irrelevant, and insisted that the constitutional question turns solely upon the content of the communication itself, making discovery unnecessary. (Pl.’s Reply Mem. in Supp. of Mot. to Reinstate, Order Supp. Briefing, and Expedite Cross-Mots, for Summ. J. (“Pi’s Reply Mem.”) at 4, 8.) This panel unanimously rejected WRTL’s position and ordered a period of discovery “into the purpose and effect of plaintiffs 2004 advertisements for the 2004 campaign[,]” among other topics. (Scheduling Order of Apr. 17, 2006 at 2.) And when WRTL later resisted discovery into to the purpose and effect of its 2004 advertisements (Def.’s and Intervenors’ Mot. To Compel Produc. of Docs., Reqs. to Admit, Resps. to Interrogs. (“Def.’s Mot. to Compel”) at 1-2) as irrelevant and arguing that the constitutionality of BCRA’s application to speech depends only upon the text rather than the context of the speech (Pl.’s Opp’n to Def.’s Mot. To Compel Produc. of Docs., Reqs. to Admit, Resps. to Interrogs. at 5, 8), this panel unanimously compelled WRTL to respond to all of the twenty-two discovery requests propounded either fully or with minor modifications. (Def.’s Mot. to Compel at 5-6, 9-19, 21-22; Order, Aug. 18, 2006.)
Our repeated decisions requiring inquiry into the context in which the advertisements were developed were right then, and they are right now. The majority now brushes them aside and adopts the very approach that it squarely and repeatedly rejected. It partly justifies using its facial analysis approach for reasons of judicial manageability, supra at 17-18, a basis for decision that even the plaintiff rejects. (Pl.’s Reply Mem. at 8 (stating that in selecting a proper analytical standard, “constitutional mandates clearly outweigh ... judicial manageability”).)
Any analysis of whether. WRTL’s ads are genuine issue ads should be achieved *216through assessing the ads’ context. and WRTL’s purpose or intent in broadcasting the ads.
CONTEXTUAL ANALYSIS
I. Express Advocacy
WRTL claims that its ads are not express advocacy because they do not “expressly advocate for the election or defeat of a candidate for federal office.” McConnell, 540 U.S. at 205, 124 S.Ct. 619. WRTL instead maintains that its ads are grassroots lobbying that discusses legislative concerns. Although WRTL acknowledges that its ads may have an impact on the outcome of federal elections, it claims that their primary purpose is to “focus on [a] legislative issue in question, not on any candidate” (Pl.’s Mot. Summ. J. at 10), and to “influencie] the votes of Senators Feingold and Kohl” before Congress adjourned. (Am.Ver.Compl.f 12.) However, a genuine issue of material fact exists as to whether WRTL intended its ads to expressly advocate for the defeat of Senator Feingold.
Although the ads at issue do not explicitly encourage their listeners or viewers to oppose Senator Feingold, they do state that “[a] group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple ‘yes’ or ‘no’ .... Contact Senators Feingold and Kohl and tell them to oppose the filibuster.” (Ver.Compl., Ex. A.) The structure of the ads further suggests that Senator Feingold might be one of the “group of Senators ... causing gridlock and backing up some of our courts to the state of emergency.” (Id.) Notably, the ads provide the listeners or viewers with no direct contact information for the Senators; instead, the ads direct the listeners or viewers to a website created by WRTL, www.befair. org, which featured e-alerts that “excoriat[ed]” Senator Feingold on the filibuster issue. (Def.’s Mot. Summ. J. at 29; Ex. 2 ¶ 21.) Thus, even a textual approach could suggest that if the ads were broadcast during BCRA’s prohibited period, they might have implicitly discouraged Senator Feingold’s re-election.
WRTL’s role in the political environment that wrought the ad campaign in the first place could be probative of the intent of the ads. WRTL has opposed Senator Feingold since his election in 1992 and has used expenditures from its federal political action committee (“PAC”) to support his political opponents! (Id., Exs. 11, 12.) In 1998, WRTL spent more than $60,000 on independent expenditures to oppose Senator Feingold’s reelection to a second term. (Id., Ex. 11.) In 2004, Senator Feingold’s reelection campaign coincided with the presidential election, and WRTL declared its “resolve to do everything possible to win Wisconsin for President Bush and to send Russ Feingold packing!” (Id., Ex. 21.) WRTL made the defeat of Feingold “a priority.” Wis. Right to Life, Civil Action No. 04-1260, 2004 WL 3622736, at *1. WRTL endorsed through its PAC three of Senator Feingold’s main opponents. (Id., Ex. 54.) WRTL spent $7,500 on political literature that both supported Senator Feingold’s opponents and explicitly opposed Senator Feingold (Intervenors’s Opp’n to PL’s Mot. Summ. J. at 4-5), including a press release exhorting that “the defeat of Feingold must be uppermost in the minds of Wisconsin’s right to life community in the 2004 elections.” (Id., Ex. 54.) WRTL’s Executive Director Mary Lyons stated that the organization’s “greatest challenge for 2004” was “to finish strongly in the elections,” by “retiring] Senator Feingold.” (Id., Ex. 24 at 3.) The website referred to in the advertisements at issue, www.befair.org, explicitly attacked Feingold’s record and encouraged *217website readers to defeat him. (Id., Ex. 54.)
Senator Feingold’s participation in judicial filibustering was a particular focus of criticism by WRTL, which distributed a voter guide endorsing one of Feingold’s opponents who pledged to allow judicial nominees an up or down vote. (Def.’s Mot. Summ. J., Exs. 15 at 3, 24.) In the fall of 2004, WRTL’s federal legislative director, Douglas Johnson, acknowledged that “it would certainly help if a few of the pro-abortion, pro-filibuster Democratic senators were replaced by pro-life Republicans, and that could happen.” (Def.’s Mot. Summ. J., Ex. 24 at 5.) Senator Feingold’s opponents also saw the filibuster issue as a key campaign issue. (Id., Ex. 15 at 3-4.) One of Senator’s Feingold’s key opponents, Bob Welch, characterized Feingold’s support of filibustering as partisan, calling “[t]he gridlock caused by Russ Feingold’s partisanship ... appalling .... Because of his obstructionism the wheels of justice are grinding to a halt.” (Id., Ex. 13.)
The reason for WRTL’s shift to broadcast advertising and the import of its timing are in dispute. Through early 2004, WRTL used non-broadcast means to convey its criticism of Senate filibusters of President Bush’s judicial candidates. (Def.’s Mot. Summ. J., Ex. 3 at 62-63.) Although filibusters of judicial nominees had occurred before then, WRTL had not run any broadcast advertisements on the issue before then. (Id., Ex. 3 at 82.) However, around May of 2004, WRTL began planning a series of advertisements in opposition to filibustering. (Pl.’s Mot. Summ. J. at 6.) WRTL claims its shift to broadcast ads was because they were “the most effective form of communication for the present grass-roots lobbying campaign[.]” (Am.Ver.Compl^ 51.) WRTL began broadcasting its advertisements on July 26, 2004, but stopped running those advertisements on August 15, 2004 because it believed that on that date, its ads would become prohibited electioneering communications as to Senator Feingold. (Id. ¶¶ 12, 14, 52.) WRTL claims it expected that filibuster votes would occur during times in which electioneering communications were regulated under BCRA (id. ¶ 6), namely, after August 15, 2004. In fact, the advertisements began airing in July, days after the last of the judicial filibuster cloture votes had occurred during that session and the Senate had departed for a six-week recess. (Def. Mot. Summ. J., Defi’s Stmt. Mat. Facts (“Def.’s Stmt. Mat. Facts”) ¶ 69; Def.’s Mot. Summ. J., Ex. 35.) WRTL did not run any additional anti-filibustering ads after the 2004 election (Def.’s Mot. Summ. J., Ex. 48 at 8-10) in either 2004 or in 2005 during the height of the controversy. (Id. at 8.) The FEC insists that WRTL’s decision to begin an advertising campaign after the votes defeated the purpose of the campaign especially because “both WRTL’s employee in charge of grass roots lobbying and its advertising agency lead consultant believe that it is important to run grassroots lobbying advertising shortly before legislative votes are to occur.” (Id. at 8; Ex. 4 at 112; Ex. 5 at 30-31.)
The FEC argues that WRTL’s ads are neither grassroots lobbying nor genuine issue ads; instead, they are express advocacy meant to encourage constituents to oppose Senator Feingold. Because of the timing of the ads, the defendants assert that the ads were intended to have an effect on the election and would have had such an effect if WRTL had run them during BCRA’s prohibited electioneering communication period. The FEC maintains that “because the ads portray Senator Feingold in a negative light and clearly would influence the outcome of the election for which he was campaigning ... [they] would have been one of the many mes*218sages that created an impression about Senator Feingold in .the weeks before the election that would have informed voters’ decisions about the upcoming election.” (Id. at 10.)
The intent of the advertising campaign is a genuine issue of material fact, and neither side persuasively argues that no dispute about intent exists. WRTL claims that its 2004 broadcast advertising was generated by its opposition to judicial filibustering. The FEC counters that the advertising was meant to oppose Senator Feingold and was timed to affect the election, not any filibuster votes. WRTL insists that the timing of the campaign was geared toward a “Fall Showdown” in November 2004 which did not occur. (Pl.’s Mot. Summ. J. at 4.) The timing issue alone requires that this case not be disposed of on summary judgment.
II. Sham Issue Ads
The FEC argues that even if this panel does not find that WRTL’s advertising was express advocacy, the advertising campaign was intended to spark a lawsuit challenging the BCRA, making it sham issue advocacy. WRTL instead states that its advertising was “bona fide” grassroots lobbying that “expressed an opinion on pending Senate legislative activity, which was imminently up for a vote, and urged listeners to contact their Senators and to urge them to vote a certain way in the upcoming vote.” (Id. at 10.) A genuine issue of material fact exists as to whether the advertising was intended to challenge BCRA, which would make the advertising sham issue advocacy.
The FEC notes that although WRTL had previously engaged in a number of different issue campaigns in the past, the judicial filibustering campaign was “distinct from the other activities of e-mailing [WRTL’s] supporters.” (Def.’s Mot. Summ. J., Ex. 4 at 105.) The FEC contends that WRTL’s Executive Director was aware of the restrictions imposed by BCRA and was “hopeful that she would be able to get an exception [from the court] and continue running those ads.” (Id., Ex. 5 at 42.) The FEC’s evidence, uncontested by WRTL, could suggest that the potential for the lawsuit shaped how the advertising campaign was coordinated and conducted. Jason Vanderground, a brand consultant hired to work on the filibustering campaign testified in his deposition that the impending lawsuit was discussed among members of WRTL’s advertising team and he did research regarding the minimum number of households an ad would have to reach in order to trigger the BCRA ban. See 2 U.S.C. § 434(f)(3)(C). He also researched the legal parameters of BCRA because he knew that “we were going to be creating advertising that would fall within what some of those laws addressed.” (Id., Ex. 5 at 47.) The contingency plan if this panel did not allow the ads to go forward was to “draw attention to the fact that the campaign was not allowed back on the air” by attacking the BCRA. (Id., Ex. 5 at 84.) Vanderground also planned the advertising for a national market, which could make suspect WRTL’s claim that the focus of its advertising was to encourage Wisconsin voters to call their Senators. The FEC argues that the actual goal was to spur a lawsuit that would have a national impact.
The parties also agree that language regarding the BCRA figured prominently, at least initially, in the judicial filibustering campaign. Vanderground proposed putting information on WRTL’s befair website about both the judicial filibuster issue and “campaign finance reform.” (Id., Ex. 5 at 58.) Initial draft press releases primarily addressed the impact of the BCRA; Executive Director Lyons noted that one draft “is more about the BCRA than the filibus*219ter.” (Id., Ex. 33 at 2.) This evidence fairly raises factual questions concerning the genesis of the ads as genuine issue ads.
The FEC asserts that WRTL chose to raise money for its general fund rather than its PAC. It argues that WRTL made a conscious decision not to possess in its PAC the requisite amount of funds needed for the advertising campaign. (Def.’s Stmt. Mat. Facts ¶¶ 112-21.) WRTL raised over $315,000 from corporations for its general fund in 2004. (Def.’s Mot. Summ. J. at 10.) Although WRTL’s PAC raised approximately $155,000 in the 1999-2000 election cycle, it had $13,766.90 in its coffers in 2004. WRTL claims that raising PAC money is difficult being “subject to source, amount, disclosure requirements, and donor resistance to such contributions.” (Pl.’s Mot. Summ. J. at 12.) It also asserts that it could not have raised the requisite PAC funds to pay for the advertising campaign (id., Ex. 1 ¶¶ 8, 11) even if it did not spend PAC money on other independent expenditures and contributions. However, the FEC retorts that PAC receipts nationally increased approximately 50% during the period between the 1999 and 2004 election cycles and “WRTL has provided no reason why fundraising was harder for its PAC than everybody else.” (Def.’s Mot. Summ. J. at 11; Def.’s Stmt. Mat. Facts ¶ 117.) A permissible inference is that WRTL was unwilling to raise funds for its PAC so it would be forced to fund electioneering communications through its general fund and could create a challenge to the BCRA.
This evidence reveals a genuine dispute as to whether WRTL intended to use its advertisements as a test case, rendering them “sham” issue advocacy.
CONCLUSION
A genuine issue of material fact exists as to whether WRTL’s 2004 advertisements were intended to influence a Senate election, or to spark litigation, or to be genuine issue ads. Because a resolution of that dispute is necessary — rather than a mere facial assessment of the ads’ text — to determine whether BCRA may properly regulate the ads, this case cannot be resolved on cross-motions for summary judgment. Therefore, I respectfully dissent from the majority’s grant of summary judgment to WRTL.
. Because one of the "cardinal rules governing federal courts ... [is] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985), there is no need to address the issue of whether a grassroots lobbying exemption should be carved out. In 2006, the Supreme Court remanded this case to this three-judge panel with the instruction that this panel "consider the merits of WRTL's as-applied challenge in the first instance.” Wis. Right to Life v. Fed. Election Comm’n, 546 U.S. 410, 126 S.Ct. 1016, 1018, 163 L.Ed.2d 990 (2006). The remand did not order this panel to adopt a definition of advertising that could be considered grassroots lobbying or genuine issue advocacy, definitions never offered by the Supreme Court. Instead, this panel was expected to use McConnell's holding that § 203 was not facially unconstitutional and determine if WRTL's ads should, nonetheless, not be regulated by BCRA. The responsibility of this panel is to determine if WRTL's 2004 ads, which do not purport to be express advocacy, can still be constitutionally regulated, not to identify the contours of advertising that is grassroots lobbying or genuine issue advocacy. See Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 665 (5th Cir.2006) (“McConnell states only that a campaign finance regulation can cover issue advocacy and nevertheless be constitutional so long as the regulation is 'closely drawn’ to match a ‘sufficiently important' government interest ... and is not vague.” (internal citations omitted)).
. WRTL suggests that the remand in this case makes clear that the Supreme Court has per*212mitted as-applied challenges "regarding communications that necessarily fall within the prohibition periods or there would [be] no as-applied challenges at all.” (PL's Opp'n to Def.’s Mot. to Compel at 5.) The Supreme Court did not state that there had to exist an as-applied challenge that would succeed; it merely held that "in upholding § 203 against a facial challenge, [it] did not purport to resolve future as-applied challenges.” Wis. Right to Life, 126 S.Ct. at 1018.
. The Court found little difference "between an ad that urged viewers to 'vote against Jane Doe' and one that condemned Jane Doe's record on a particular issue before exhorting viewers to 'call Jane Doe and tell her what you think.’ " McConnell, 540 U.S. at 126-27, 124 S.Ct. 619.
. A group called "Citizens for Reform” sponsored an advertisement during the 1996 Montana congressional race in which Bill Yellowtail was a candidate. The advertisement stated: " 'Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But her "nose was not broken.” He talks law and order ... but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments — then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.' ” McConnell, 540 U.S. at 194 n. 78, 124 S.Ct. 619 (internal citation omitted). The Court said that "[t]he notion that this advertisement was designed purely to discuss the issue of family values strains credulity.” Id.
. That sentiment was not unanimous. See Federal Election Comm’n v. Furgatch, 807 F.2d 857, 863-64 (9th Cir.1987) (holding that in the realm of express advocacy, although context is a limited concern especially when assessing the impact of the speech itself, it nonetheless "is relevant to a determination of express advocacy. A consideration of the context in which speech is uttered may ... supply necessary premises that are unexpressed but widely understood by readers or viewers.”).
. Indeed, criminal statutes enacted by Congress punish conduct or speech based upon a prohibited intent or purpose of the speaker. See, e.g., 18 U.S.C. §§ 245(b)(1),(4), 248(a)(1), 42 U.S.C. § 3631(b),(c) (threat with the purpose of intimidating someone from engaging in protected activities); 18 U.S.C. § 288 (false statement for purpose of obtaining payment on false postal indemnity claim); 18 U.S.C. §§ 875(b),(d), 876(b),(d), 877 (threat to injure with intent to extort); 18 U.S.C. § 1033(a)(1) (false statement with intent to deceive insurance regulator); 18 U.S.C. § 1583 (persuading another to go to another place with intent to make him a slave); 18 U.S.C. § 1860 (verbal intimidation for the purpose of hindering land purchase). Among them are statutes that have survived First Amendment challenges. See, e.g., United States v. Dinwiddie, 76 F.3d 913, 922, 925 (8th Cir.1996) (18 U.S.C. § 248, stating that a court “must analyze an alleged threat in light of its entire factual context” (internal citation omitted)); accord Terry v. Reno, 101 F.3d 1412, 1418 (D.C.Cir.1996); United States v. Gregg, 226 F.3d 253, 267 (3d Cir.2000) (collecting cases upholding 18 U.S.C. § 248 against a First Amendment challenge); United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir.1988)(18 U.S.C. § 876); United States v. Cassel, 408 F.3d 622, 634-35 (9th Cir.2005) (18 U.S.C. § 1860). Cf. Virginia v. Black, 538 U.S. 343, 363, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (noting that “[t]he First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation”).
. We found that Senator Feingold's opponents used as a campaign issue over a year before the election his support of filibusters against judicial nominees; that WRTL’s PAC endorsed in March 2004 three candidates opposing Senator Feingold and announced his defeat as a priority; and that WRTL criticized in a July 2004 news release Senator Feingold’s record on Senate filibusters against judicial nominees. Wis. Right to Life v. Fed. Election Comm’n, Civil Action No. 04-1260, 2004 WL 3622736, at *1 (D.D.C. Aug.17, 2004). We did not depart from those findings on May 10, 2005, when we unanimously dismissed WRTL’s case.