Facts
- Wisconsin Right to Life, Inc. (WRTL), a nonprofit advocacy corporation, produced radio and television advertisements criticizing Senate filibusters of federal judicial nominees and urging the public to contact Wisconsin Senators Feingold and Kohl.
- WRTL planned to fund the ads with corporate treasury funds and run them near Wisconsin’s 2004 federal primary election.
- Because Senator Feingold was a candidate for re-election, the ads would air within BCRA’s 30-day pre-primary period and thus qualified as “electioneering communications” under BCRA § 203.
- BCRA § 203 criminalized corporate treasury funding of “electioneering communications,” defined as certain candidate-referencing broadcasts distributed shortly before federal elections.
- WRTL asserted the ads were issue-focused grassroots lobbying, did not mention an election or voting, and were not the functional equivalent of express advocacy.
Issues
- Whether BCRA § 203’s prohibition on corporate treasury funding of electioneering communications is unconstitutional as applied to issue-oriented lobbying advertisements that do not expressly advocate the election or defeat of a candidate.
- What standard determines when an advertisement is the “functional equivalent of express advocacy” such that it may be regulated under BCRA § 203.
- Whether courts assessing such ads may rely on the speaker’s intent or the ad’s likely electoral effect, rather than the ad’s content.
Decision
- The Supreme Court affirmed relief for WRTL in a 5–4 decision, holding BCRA § 203 unconstitutional as applied to WRTL’s ads.
- The controlling opinion held that an ad is the functional equivalent of express advocacy only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
- The Court adopted an objective, content-based review focused on the “four corners” of the advertisement, rejecting intent- and effect-based tests as administratively burdensome and speech-chilling.
- Applying the test, the Court held WRTL’s ads could reasonably be understood as lobbying about a legislative dispute because they urged contacting legislators and did not refer to elections, parties, or voting.
- The Court concluded the government lacked a sufficiently compelling interest to justify restricting these ads where they were not the functional equivalent of express advocacy.
Legal Principles
- A ban on corporate-funded electioneering communications cannot constitutionally be applied to an advertisement unless the ad is susceptible of no reasonable interpretation other than urging a vote for or against a specific candidate.
- The “functional equivalent of express advocacy” inquiry is objective and centered on the ad’s text and images, not on the speaker’s subjective intent or predicted electoral impact.
- When an ad can reasonably be interpreted as issue advocacy, heightened First Amendment protection bars applying BCRA § 203 to prohibit its broadcast funding by corporate treasury funds.
- McConnell’s facial approval of BCRA § 203 did not foreclose later as-applied challenges to specific applications of the statute.
Conclusion
The Court held that BCRA § 203 could not be applied to WRTL’s election-season grassroots lobbying ads because they were reasonably interpreted as issue advocacy and were not the functional equivalent of express advocacy under an objective, content-focused standard.