WISCONSIN RIGHT TO LIFE, INC. v. FEDERAL ELECTION COMMISSION

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410 OCTOBER TERM, 2005
Syllabus
WISCONSIN RIGHT TO LIFE, INC. v. FEDERAL
ELECTION COMMISSION
appeal from the united states district court for the
district of columbia
No. 04–1581. Argued January 17, 2006—Decided January 23, 2006
Appellant Wisconsin Right to Life, Inc. (WRTL), sought a judgment declar
ing § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) uncon
stitutional as applied to broadcast advertisements that it intended to run
during the 2004 election, arguing that BCRA cannot be constitutionally
applied to its particular electioneering communications. In dismissing
WRTL’s complaint, the District Court read a footnote in McConnell v.
Federal Election Comm’n, 540 U. S. 93, 190, n. 73, as foreclosing any “as
applied” challenges to the prohibition on electioneering communications.
Held: WRTL’s as-applied challenge is not foreclosed by McConnell. The
District Court misinterpreted the McConnell footnote, which merely
notes that because this Court found BCRA’s primary definition of “elec
tioneering communication” facially valid when used with regard to
BCRA’s disclosure and funding requirements, it was unnecessary to con
sider the constitutionality of the backup definition Congress provided.
The Court did not purport to resolve future as-applied challenges.
Contrary to the Federal Election Commission’s argument, it is not clear
that the District Court’s dismissal also rested on an alternative ground.
Vacated and remanded.
James Bopp, Jr., argued the cause for appellant. With him
on the briefs were Richard E. Coleson and M. Miller Baker.
Solicitor General Clement argued the cause for appellee.
With him on the brief were Deputy Solicitor General Garre,
Malcolm L. Stewart, Lawrence H. Norton, Richard B.
Bader, David Kolker, and Harry J. Summers.*
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union by Steven R. Shapiro, Mark J. Lopez, and Joel M.
Gora; for the American Federation of Labor and Congress of Industrial
Organizations by Jonathan P. Hiatt, Laurence E. Gold, and Michael B.
Trister; for the Center for Competitive Politics et al. by Erik S. Jaffe; for
the Chamber of Commerce of the United States of America by Jan Witold
Baran, Thomas W. Kirby, Caleb P. Burns, Stephen A. Bokat, and Amar
D. Sarwal; for Citizens United et al. by Herbert W. Titus, William J.
Olson, and John S. Miles; and for Senator Mitch McConnell by Theodore
B. Olson and Douglas R. Cox.

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411 Cite as: 546 U. S. 410 (2006)
Per Curiam
Per Curiam.
The Bipartisan Campaign Reform Act of 2002 (BCRA),
§ 203, as amended, 116 Stat. 91, prohibits corporations from
using their general treasury funds to pay for any “election
eering communications.” 2 U. S. C. § 441b(b)(2) (2000 ed.,
Supp. III). BCRA § 201 defines “electioneering communica
tions” 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) (2000
ed., Supp. III). Appellant Wisconsin Right to Life, Inc.
(WRTL), brought this action against the Federal Election
Commission (FEC), seeking a judgment declaring BCRA un
constitutional 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 en
forcing BCRA against those advertisements. WRTL does
not dispute that its advertisements are covered by BCRA’s
definition of prohibited electioneering communications. In
stead, it contends that BCRA cannot be constitutionally
applied to its particular communications because they consti
tute “grassroots lobbying advertisements.” Brief for Ap
pellee 35 (internal quotation marks omitted). Although the
FEC has statutory authority to exempt by regulation cer
tain communications from BCRA’s prohibition on election
eering 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
Briefs of amici curiae urging affirmance were filed for AARP et al. by
Daniel R. Ortiz; for Douglas L. Bailey by Randy L. Dryer; for Frances
R. Hill by J. Gerald Hebert; for Senator John McCain et al. by Bradley S.
Phillips, Seth P. Waxman, Randolph D. Moss, Roger M. Witten, Fred
Wertheimer, Donald J. Simon, Alan Morrison, Charles G. Curtis, Jr.,
Trevor Potter, Paul Ryan, and Scott L. Nelson; and for Norman Ornstein
et al. by H. Christopher Bartolomucci.
Briefs of amici curiae were filed for the Alliance for Justice by Ruth
Eisenberg; and for the Coalition of Public Charities by Robert F. Bauer.

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412 WISCONSIN RIGHT TO LIFE, INC. v. FEDERAL
ELECTION COMM’N
Per Curiam
complaint in an unpublished opinion. We noted probable
jurisdiction, 545 U. S. 1164 (2005). Appellant asks us to re
verse 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 electioneer
ing communications. We agree with WRTL that the Dis
trict Court misinterpreted the relevance of our “uphold[ing]
all applications of the primary definition” of election
eering 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 definition of
“electioneering communication” facially valid when used
with regard to BCRA’s disclosure and funding require
ments, it was unnecessary to consider the constitutionality
of the backup definition Congress provided. Ibid. In up
holding § 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 in
terest 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 WRTL’s challenge with prej
udice characterized its previous 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 Dis
trict 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.