Petition for Writ of Certiorari — Christian Civic Civic League of Maine, Inc., The v. Federal Election Commission (No. 06-589)
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Supreme Court, U.S.
FILED
06-589 0CT 26 2006
No. 06-__ 9 EFICE OF THE CLERK
In The
Supreme Court of the United States
THE CHRISTIAN CIVIC LEAGUE OF MAINE, INC., Appellant,
V.
FEDERAL ELECTION COMMISSION, Appellee,
and
JOHN MCCAIN, RUSSELL FEINGOLD, CHRISTOPHER SHAYS,
MARTIN MEEHAN, AND TOM ALLEN, /nteryening Appellees.
On Appeal from the United States District Court
for the District of Columbia
Jurisdictional Statement
James Bopp, Jr.
Counsel of Record
M. Miller Baker Richard E. Coleson
Michael S. Nade! Raeanna S. Moore
McDERMOTT WILL & EMERY Jeffrey P. Gallant
LLP Bopp. COLESON & BOSTROM
600 Thirteenth Street. NW THE JAMES MADISON CENTER
Washington, DC 20005-3096 FOR FREE SPEECH
202/756-8000 telephone | South 6th Street
2()2/756-8087 facsimile Terre Haute. IN 47807-3510
812/232-2434 telephone
October 26. 2006 812/235-3685 facsimile
cae —s
Questions Presented
The Christian Civic League of Maine, Inc. (“League”)
sought declaratory and injunctive relief to permit it to broadcast
a grass roots lobbying advertisement (and materially-similar
future ads) during the electioneering communication prohibition
period (“the prohibition”) imposed by the Bipartisan Campaign
Reform Act of 2002 (“BCRA”). 2 U.S.C. § 441b.
1. Whether the district court erred in dismissing this case as
moot, not ripe, and not within the exception to the mootness
doctrine for matters that are capable of repetition yet
evading review. =
2. Whether the prohibition is narrowly tailored to a compelling
governmental interest as applied to the League’s proposed
advertisement (and materially-similar futurc ads) or violates
the League’s constitutional rights to free expression,
association, and petition.
3. Whether the prohibition is narrowly tailored to a compelling
governmental interest as applied to genuine grassroots
lobbying, under an appropriate general rule, or violates the
constitutional rights to free expression, association, and
petition.
Parties to the Proceedings
The names of all parties to the proceeding in the court
below whose judgment is sought to be reviewed are contained
in the caption of this case. Rule 14.1(b).
Corporate Disclosure Statement
The Christian Civic League of Maine, Inc. has no parent
corporation, and no publicly held company owns ten percent or
more of its stock. Rule 29.6.
Notice of Statutory Expedition &
Advancement on the Docket
- Inthe Bipartisan Campaign Reform Act of 2002 (“BCRA”),
Congress specified that in reviewing constitutional challenges,
such as the present one, “[i]t shall be the duty of the United
States District Court for the District of Columbia and the
Supreme Court of the United States to advance on the docket
and to expedite to the greatest possible extent the disposition of
the action and appeal.” BCRA § 403(a)(4), 116 Stat. at 114,
App. 22a.
(il)
Table of Contents
INE ipo dcwwascinbeabaveseeanwends (i)
a rn rere rrr (ii)
Corporate Disclosure Statement ..............00.00. (il)
Notice of Statutory Expedition &
Advancement on the Docket .........ccccccccess (11)
I oop edi cb vee anetiwsdeeisies (ili)
po PRPC oer rr rr err errr rer re 6 (v)
NDI a on hss Wie wine down Veena shaeden weaves ]
EN PR erry ree re en er ry re ]
Constitutional & Statutory Provisions ................. 1
SNE OE PE aig vine on dec en ex bieabavexye 1
The Questions Presented Are Substantial ......... tees 8
I. This Case Fits the Mootness Exception. ........... 8
II. A Grassroots Lobbying Exception Is Required. ..... 24
ee I Ey Pa me 4
Appendix
(iii)
Table of Authorities
Cases
BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) ..... 19
Belitskus v. Pizzingrilli, 343 F.3d 632 (3rd Cir. 2003) ..
Buckley v. Valeo, 424 U.S. 1 (1976) ....... 20. ccc 18
California Pro-Life Council v. Getman, 328 F.3d 1088 (9th
45S SSG RE LETRA OR Oe Ka 13
‘First National Bank of Boston v. Bellotti, 435 U.S. 765
CON gas ho ts ns eRe Ke ee ee pees 13
Florida Right to Life v. Lamar, 273 F.3d 1318 (11th Cir.
SS re EC a ADR rae en LMC: 13
Kansans for Life v. Gaede, 38 F. Supp. 2d 928 (D. Kan
og 2, RAE RIOD Rr Were eer EPs ca ona ernie pie meni rok oe 13
LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998) .... 10
Los Angeles v. Lyons, 461 U.S. 95 (U.S. 1983) .......... 9
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003)....... 13, 20
McConnell v. FEC, 540 U.S. 93 (2003) . 12, 14-15, 22, 27-28
Meyer v. Grant, 486 U.S. 414 (1988) ................ 13
Mine Workers v. Pennington, 381 U.S. 657 (1965) ...... 19
Murphy v. Hunt, 455 U.S. 478 (1982) ............2.00. 9
(iv)
New Hampshire Right to Life v. Gardner, 99-F.3d 8 (ist
EE Een Aede db ined stan bs iekbenaneeeetes 13
Norman vy. Reed, 502 U.S. 279 (1992) .............0.4- i:
Pearlman y. Vigil-Giron, 71 Fed. Appx. 11 (10th Cir. 2003)
Peewee Wedd eek Cease vba Tokar OO EE 11
People for Ethical Treatment of Animals, Inc. v. Gittens,
ore CS OTe CC, CR. FG) cece vscesenseseces 19
Seek V, WR, SIO UT, TIS CTS) ooo evicenccceiwess 9,10
Stewart v. Taylor, 104 F.3d 965 (7th Cir.1997) ......... 13
Storer v. Brown, 415 U.S. 724 (1974) ............205- 10
Teper v. Miller, 82 F.3d 989 (11th Cir. 1996) .......... 11
Virginia Soc ’y for Human Life v. FEC, 263 F.3d 379 (4th
Eo oiccs oe ukk ohsuewiey cena esses ee 13
Weinstein v. Bradford, 423 U.S. 147 (1975) Veee! gas 9
Wisconsin Right to Life v. FEC, 126 S. Ct. 1016 (2006)
ee SC Ee PE eee 3, 8, 12-13, 20, 22-24, 26-28
Constitution, Statutes, Regulations & Rules
SEN are wie Pree Pe ar ee 2
ios oe 17
a A i es 7,17
5 on ee ee 17
Thos) oe 4 ee ReReeRR Mier Raab Aer 25
Note cee... 6
WORMS a 2
ORE AIM. oe ee 2
sec. talemtAM 2... 2
yk cod | Geometry Meu mice we Dima a te hy (i)
ite sie... 2
Siete ARE oo ee ee 2
SURC SONI) occ ees ee A) 2
Set CUNO oo eee 3
28 US.C.§ 1253 ...... Rae E es ee
USE 4 28
a ie oe 2
Wwiimee oe os (ii)
Bipartisan Campaign Reform Act of 2002 .. (i). (ii), 1-3, 8,
22, 24, 25
wuremen Count Rute $4,100) 2 oo os ks ce cee edcg dees (11)
FT PPO ROS Pet (ii)
Se SPOR OOELOE Ste Th) T passim
Other Authorities
FE Pe I: FREE kins 00 00s dcctaes adenine 26
ce 8 RS ee errr err 26
Black’s Law Dictionary (7th ed. 1999) ................ 9
Detailed Comments of BCRA Sponsors Senator John
McCain, Senator Russ Feingold, Representative Chris-
topher Shays, Representative Marty Meehan, Senator
Olympia Snowe, and Senator James Jeffords ....... 25
eT eee ry Pere re Pr rrr rere re ee Xf
http://www. fec.gov/agenda/2006/agenda20060829.shtml . 26
http://www. fec.gov/agenda/2006/mtgdoc06-57.pdf ..... 26
http://www.fec.gov/law/law_rulemakings.shtml#lobbying 26
http://www.fec.gov/law/RulemakingArchive.shtml akan a2
http://www.jamesmadisoncenter.org ...............4- 24
Letter from Sen. John McCain, Sen. Russell D. Feingold, et
al. to Ms. Mai T. Dinh of the FEC (Aug. 23, 2002)... 25
Marriage Protection Amendment, S.J. Res.1 ....... 4,5,7
Notice 2006-4, “Rulemaking Petition: Exception for
(vii)
Certain ‘Grassroots Lobbying’ Communications From
the Definition of ‘Electioneering Communication,” 71
pty i necsevaverescees 25
CG eS i sa yeceeccnverveeses 26
- (viii)
Opinions Below
The district court opinion dismissing this case is unreported
but available at 2006 WL 2792683 (D.D.C. 2006). The opinion
and order are reprinted in the Appendix. App. la, 15a.
Jurisdiction
This case was dismissed on September 27, 2006. The
League noticed appeal on October 6. This Court has appellate
jurisdiction over the final decision of the three-judge court
under both BCRA § 403 (App. 22a) and 28 U.S.C--§ 1253.
Constitutional & Statutory Provisions
Constitutional and statutory provisions are set out in the
Appendix, as listed in the table of contents preceding it.
Statement of the Case
On April 3, 2006, the League filed its verified complaint
seeking declaratory and injunctive relief allowing it to fund the
broadcast of genuine grassroots lobbying communications,
including its Crossroads Ad,’ asking the people of Maine to call
their Senators and urge them to support a constitutional
amendment protecting marriage. The vote on this constitutional
amendment was scheduled for June 5. The Ad would have been
'The Crossroads Ad follows, Verifiea Complaint (“VC”), Exh. A:
Our country stands at the crossroads—at the intersection of how
marriage will be defined for future generations. Marriage between a
man and a woman has been challenged across this country and could be
declared unconstitutional at any time by rogue judges. We must
safeguard the traditional definition of marriage by putting it beyond the
reach of all judges - by writing it into the U.S. Constitution. Unfortu-
nately, your senators voted against the Marriage Protection Amendment
two years ago. Please call Sens. Snowe and Collins immediately and
urge them to support the Marriage Protection Amendment when it
comes to a vote in early June. Call the Capitol switchboard at 202-224-
3121 and ask for your senators. Again, that’s 202-224-3121. Thank you
for making your voice heard. Paid for by the Christian Civic League of
Maine, which is responsible for the content of this advertising and not
authorized by any candidate or candidate’s committee.
2
an “electioneering communication” because it mentioned a
federal candidate, Sen. Snowe (who was unopposed in the June
13 primary), so the League was prohibited from paying for the
Ad with corporate funds for thirty days before that primary. See
2 U.S.C. § 441b(a) & (b)(2) (the “prohibition”).
The League sought a preliminary injunction permitting it to
broadcast the Ad. The three-judge court (BCRA § 403(a)(1))
denied the preliminary injunction. On September 27, the lower
court dismissed this case as moot (and unripe as to materially-
similar future ads) and not within the mootness exception for
cases capable of repetition yet evading review. App. la, 15a.
The League noticed appeal on October 6. App. 32a.
The League is a Maine nonprofit, nonstock, ideological’
*An “‘electioneering communication’ means any broadcast, cable, or
satellite communication which . . . refers to a clearly identified candidate for
Federal office [and] is made within . . . 60 days before a general . . -election
for the office sought by the candidate; or . . . 30 days before a primary
... election... for the office sought by the candidate; and. . . is targeted to
the relevant electorate.” 2 U.S.C. § 434(f)(3)(A)(i) (emphasis added); see
also 11 C.F.R. § 100.29. The prohibition provides that “[iJt is unlawful
... for any corporation whatever . . . to make a contribution or expenditure
in connection with any [Federal] election. . . . For purposes of this section
..., the term ‘contribution or expenditure’ includes . . . any applicable
electioneering communication... .” 2 U.S.C. § 441b(a)-(b); see also 11
C.F.R. §§ 114.2 and 114.14.
The League’s By-Laws set forth its ideological purpose:
The purpose of the Christian Civic League of Maine shall be to present
and maintain an effective, positive and faithful witness in the public life
of our state; to have an impact on the development of public policy in
Maine; to uphold a biblical standard of justice and righteousness; and
- to reflect a genuine Christina [sic] compassion and respect for all
people. The League shall endeavor to (1) promote good citizenship; (2)
elect honest and competent officials; (3) secure good laws and their
impartial execution; and (4) cooperate and assist the home, church and
schools in these efforts.
Heath Dep. Exh. 1, ¢ 2.
3
corporation recognized as tax exempt under § 501(c)(4) of the
Internal Revenue Code. VC § 20. It was formed in 1897. Heath
Dep. 14:12-14. Within the past two and a half years the League
has only produced voter guides to pursue its goal of electing
honest and competent officials. Heath Dep. 16:18-17:8. The
League intends to continue producing voter guides, but it has
not endorsed or opposed candidates for office, nor does it intend
to do so, even through its associated state political action
committee, the Christian Action League. Heath Dep. 17:2-4,
23:16-24:9; 25:2-12; 93:12-17.4
The Federal Election Commission is the government agency
charged with enforcing the relevant provisions of the Federal
Election Campaign Act, as amended by BCRA.°
Sometime in, or prior to, 2004 the League became aware
that Congress was considering a federal constitutional amend-
ment protecting marriage. Heath Dep. 33:16-25. The League
engaged in grassroots. lobbying for the federal Marriage
Protection Amendment in 2004 through phone calls, e-mail, the
Internet, printed and Internet versions of its newslett: -. The
Record (the League’s newsletter, now online at http://
www.cclmaine.org/), bulletin inserts, and a radio ad encourag-
ing people to contact Senators Snowe and Collins and ask them
“The League has been associated for approximately 15 years with Focus
on the Family, Heath Decl. § 3 (April 21, 2006), which often corresponds
with the League regarding policy issues of mutual interest, including the
federal Marriage Protection Amendment. Heath Decl. 7. The defense of
traditional marriage is a high priority for both organizations. Heath Decl. 4.
State court decisions requiring recognition of civil unions and homosexual
marriage have highlighted for the League the need for a federal Marriage
Protection Amendment. Heath Decl. 5.
As discussed below, infra at 24, the FEC refused to make a rule
excepting grassroots lobbying from the prohibition in its initial post-BCRA
rulemaking and has twice recently refused to do so when asked to do so after
this Court in Wisconsin Right to Life v. FEC, 126 S. Ct. 1016 (2006)
(“WRTL”), took note of the FEC’s authority to create such a rule.
4
to support traditional marriage. Heath Decl. § 8, Heath Dep.
34:8-11, 35:1-8.°
The Marriage Protection Amendment, S.J. Res. 1, was
introduced in January 2005. A cloture vote was likely to occur
in early June 2006.’ The decision regarding when to run ads like
the Crossroads Ad is necessarily tied to legislative decisions
about debate and votes on the federal Marriage Protection
Amendment. Heath Decl. § 12; see also Heath Dep. 47:1-9.
Because the timing of grassroots lobbying campaigns is
inherently dependent on legislative whims, it is difficult to plan
specific campaigns in advance, and they are often created and
executed within very short time frames. Heath Decl. 9 12. Such
is the case with the Crossroads Ad, which was developed
because the Senate had finally decided to hold a vote on the
“The 2004 Ad that the League broadcast by radio stated:
The Christian Civic League of Maine is organizing a campaign to let
Senators Snowe and Collins know that we support the Federal Marriage
Amendment. If you want homosexual marriages banned in our country,
we need you to contact your Senators and ask them to support tradi-
tional marriage. For more information on this amendment please see our
website at www.cclmaine.org or call us at our Augusta office at 622-
7634. Thank you for preserving the purity of life and protecting the
future of this nation.
Pl.’s Resp. to Def.’s Req. for Prod. #2, 3 and 4, “Radio Announcement, July
04.”
"VC 4 9; see also Def.’s Ex. J in Supp. of Its Opp’n to PI.’s Mot. for
Prelim. Inj., Republican Chief Outlines Strategy to Portray Democrats as
Weak, Bypass Mainstream Media, Feb. 11, 2006 (Frist “said he would push
for a vote on June 5 on ‘the marriage protection amendment.”). Previous
versions of a federal constitutional amendment to protect traditional
marriage had not garnered sufficient support in Congress. VC § 10.
Therefore, the progress of S.J. Res. 1 in the Senate was critical. VC 10.
Tim Russell, the League’s lobbyist, had participated in multiple conference
calls, e-mail exchanges, and discussions with legislators, grassroots activists,
media, and national level pro-family groups regarding the federal Marriage
Protection Amendment. Heath Decl. { 9.
5
federal Marriage Protection Amendment in early June. Heath
Decl. ¥ 12. The League had confirmed its plan to run the
Crossroads Ad 22 times per week at a cost of $998 per week.
Heath Decl. 4 15; Heath Decl. Ex. A. One long-time donor had
committed to paying the entire $3,992 cost of the radio buy so
that the ads could be run for four weeks as scheduled. Heath
Decl. 4 16.
The League has been critical of Sen. Snowe’s positions on
marriage and partial-birth abortion, Heath Dep. 83:14-21, and
would prefer a candidate whose views are closer to its own.
Heath Dep. 85: 14-18. But “CCL has not ‘opposed’ Senator
Olympia Snowe or ‘endorsed’ an opponent of hers in an
election for federal office.” Pl.’s Resp. to Dcf.’s Interrog. # 12;
Heath Dep. Ex. 10 4 12. Moreover, the Crossroads Ad should
not have had any constitutionally cognizable effect on Sen.
Snowe’s primary election because she was unopposed. Heath
Dep. 74:6-9.
The Crossroads Ad expressed an opinion on pending Senate
legislative activity, which was imminently up for a vote, and
urged listeners to contact their Senators and urge them to vote
a certain way, so the Ad constituted genuine grassroots lobby-
ing. The Ad dealt with concrete, imminent, legislative issues,
beyond the timing and control of the League, with which the
two incumbent Senators would have to deal. The Ad referred to
both a candidate and a non-candidate and dealt with them
equally. The Ad dealt exclusively with the legislative issue,
with-which the League had a clear and long-held interest, not on
any candidate, and did not refer to any political party or
election. The Ad did not expressly advocate the election or
defeat of a clearly identified candidate for federal office. The
Ad only commented on the League’s opinion of prior votes on
the marriage issue and did not comment on a candidate’s
character, qualifications, or fitness for office. The Ad was
broadcast independent of any candidate or political party, i.e.,
6
it was not “made in cooperation, consultation or concert with,
or at the request or suggestion of, a candidate, a candidate's
authorized committee, or their agents, or a political party
committee or its agents.” 1] C.F.R. § 109.20(a).
Broadcast ads were the most effective communication
medium for the League’s grassroots lobbying campaign, and
non-broadcast communications would not have provided the
League with sufficient ability to reach the people of Maine with
its message. VC ¥ 46; PI.’s Resp. to Def.’s Interrog. # 2, 3;
Heath Dep. Ex. 10 4 2,3.°
Creating a federal political action committee would be more
burdensome for the League than maintaining its affiliated State
PACs because there are no limits on contributions to those state
entities because they were formed to support or oppose refer-
enda. Heath Decl. § 20. Federal PACs are subject to contribu-
tion limits because they are presumed to be formed for the
purpose of supporting or opposing candidates. Heath Decl. 4 20.
Federal corporatePA€s are also limited to fundraising from the
corporation’s members, which necessarily limits the pool of
available contributors to the League’s approximately 300
members’ and would not encompass its nearly 2,500 supporters.
*While a non-broadcast communication has some effectiveness with
regard to those who receive it, such communication is necessarily limited by
the number of subscribers that the League has to receive those communica-
tions, and broadcast ads, particularly radio ads, are more effective because
they consistently reach more persons per dollar spent. Heath Decl. 4 17; Pl.’s
Resp. to Def.’s Interrog. # 2, 3; Heath Dep. Ex. 10 4 2, 3. The League has
found that renting phone lists and hiring a phone bank for a telephone
campaign is costly and not as effective as broadcast ads. Heath Decl. § 18.
People are more receptive to broadcast ads than the intrusive ring of
unsolicited telephone calls, which seem to come at inopportune moments.
Heath Decl. § 18.
*Membership in the League is limited to those who “sign[] a statement
that they agree with the [the League]’s mission, Statement, Purpose and
Statement of Faith . . . and who pay[] the annual membership fee.” (Heath
7
Heath Decl. 4 20; Heath Dep. 41:9-42:14. The limited pool of
donors would make it much more difficult to raise the funds
needed to engage in a broadcast advertising campaign suchi as _
the “Crossroads” campaign that the League planned to under-
take in support of the federal Marriage Protection Amendment.
Heath Decl. { 20.
In addition, some of the League’s members have theological
objections to contributing to political action committees, Heath
Decl. | 21; Heath Dep. 103:24-104:4, and some Christians are
reluctant to link the church and the state too closely. Heath
Decl. J 21. Because some of the League’s members subscribe
to this belief, it would increase its difficulties in raising money
for a federal political action committee. Heath Decl. § 21.
Finally, altering the League’s ads so as to not mention the
names of Maine’s two Senators would not have been as
effective, because the point of the grassroots lobbying effort
was to ask the citizens of Maine to call their Senators and tell
them how they would like them to vote on the federal Marriage
Protection Amendment. Heath Decl. §j 22. Naming the Senators
makes potential callers more comfortable in calling because
they can simply ask for him or her by name rather than dealing
with the awkwardness of saying, “I’m from Maine, I don’t
know the name of my Senator but can you connect me to him.”
Heath Decl. § 22. And saying “call your Senator” is not an
option, as the League’s executive director understands, Heath
Decl. § 22, because 11 C.F.R. § 100.29(b)(2) specifically says
that an electioneering communication “refers to a clearly
identified candidate” when it uses an “unambiguous reference”
such as “your Congressman.”
Dep. Exh. 1, § 4a, By-Laws). Further, “[{a]ll board members, officers,
committee members and employees of (the League] must be members of [the
League].” /d.
8
The Questions Presented Are Substantial
This appeal] presents two substantial questions. The first is
whether the familiar exception to the mootness doctrine—for
situations capable of repetition yet evading review—may be
redefined in such a way that no citizen group could ever
challenge the electioneering communication prohibition as
applied to genuine grassroots lobbying, even though this Court
said such challenges are permissible in Wisconsin Right to Life
v. FEC, 126 S. Ct. 1016 (2006) (‘WRTL”). Part I explains the
district court’s error in failing to apply the mootness exception,
and Part II.D explains how this latest dismissal is part of
“endless loop” arguments by the FEC and Intervenors to avoid
a decision on the merits, so that this Court needs to establish a
rule of general applicability to avoid the necessity of endless,
costly litigation by small citizen groups such as the League in
an effort to vindicate First Amendment rights. Part II deals with
the second substantial question, ‘whether an exception for
properly defined grassroots lobbying is required.'°
I. This Case Fits the Mootness Exception.
This case readily fits within the exception to the mootness
doctrine because there is a “‘reasonable expectation’ . . . that
‘The questions presented are substantially greater than the harm to only
the League’s First Amendment expression, association, and petition rights.
Grassroots lobbying is a time-honored way that citizens involve themselves
in the American system of participatory democracy. It is the essence of self-
government. Numerous citizen groups await a ruling on the merits. Congress
has recognized that constitutional challenges to BCRA are so substantial that
it provided a special jurisdictional statute channeling all challenges :o one
court, with a three-judge panel, with direct, expedited appeal to this Court.
BCRA § 403. There is no possibility of cases from other circuits percolating
up to provide circuit splits on the BCRA itself until sometime well after
January |, 2007, when challenges to BCRA may begin to be brought in other
federal courts (although challengers may yet choose the BCRA jurisdictional
route, if desired). Jd.
9
the same controversy will recur involving the same complaining
party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)
(emphasis added) (quoting Weinstein v. Bradford, 423 U.S. 147,
149 (1975) (per curiam)). The same “controversy” would mean
that the League will again be subject to the prohibition when it
needs to engage in grassroots lobbying. Los Angeles v. Lyons,
461 U.S. 95, 109 (U.S. 1983) (exception to mootness doctrine
available when “the named plaintiff can make a reasonable
showing that he will again be subjected to the alleged illegality”
(emphasis added)). And these cases clearly evade review, as this
one has. See infra at 1.B.
A. There is a reasonable expectation of repetition. The
district court applied an erroneous, “perfect storm” standard.
App. 12a. When considering this Court’s “same controversy”
standard, Murphy, 455 U.S. at 478, the lower court placed the
emphasis on same and interpreted this to mean the same facts
as those surrounding the Crossroads Ad, which the lower court
dubbed “this perfect storm.” App. 12a. Because “[t]he chances
of recurrence of this perfect storm is [sic] small,” said the lower
court, the mootness exception was “foreclos[ed].” App. 12a.
The proper question was whether there is a reasonable
expectation that the same controversy, i.e., legal conflict or
situation, may occur.'’ While “th{e] perfect storm” of the
'' Murphy used the term controversy in the ordinary legal sense of “[a]
disagreement or a dispute” or “[a] justiciable dispute.” Black's Law
Dictionary 331 (7th ed. 1999). The same specific facts are not required for
the same disagreement to recur. A classic example is Roe v. Wade, 410 U.S.
113 (1973), where Jane Roe’s specific 1970 pregnancy could no longer have
existed. in 1973, when this Court decided the case. Roe declared that it was
enough if a pregnancy might recur:
[W]hen, as here, pregnancy is a significant fact in the litigation, the
norma] 266-day human gestation period is so short that the pregnancy
will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive
much beyond the trial stage, and appellate review will be effectively
10
Crossroads Ad facts may not recur, there is a reasonable
expectation that a “storm” involving the League and the
prohibition will recur. The lower court has already acknowl-
edged, as it must, that “‘[c]hallenges to rules governing
elections are the archetypal cases for application of [the excep-
tion].”” App. 12 a (quoting LaRouche v. Fowler, 152 F.3d 974,
‘978 (D.C. Cir. 1998)). But it decided that since this is an as-
applied case there must be a “perfect storm” convergence of the
precise facts related to the Crossroads Ad. This is wrong."
denied. Our law should not be that rigid. Pregnancy often comes more
than once to the same woman, and in the general population, if man is
to survive, it will always be with us. Pregnancy provides a classic
justification for a conclusion of nonmootness. It truly could be ‘capable
of repetition, yet evading review.’
410 U.S. at 125 (citations omitted). This Court proceeded to make clear that
this chance of another pregnancy, not the same pregnancy, is what is
required by a “controversy” reasonably likely to recur: “We, therefore, agree
with the District Court that Jane Roe had standing to undertake this
litigation, that she presented a justiciable controversy, and that the termina-
tion of her 1970 pregnancy has not renderecher case moot.” /d. (emphasis
added). As in the present case, the question is whether there is a reasonable
likelihood that the same situation will recur, not the same facts.
"The lower court concedes that under Storer v. Brown, 415 U.S. 724,
737 n.8 (1974), as-applied challenges may be capable of repetition. Mem.
Op. at 12 (emphasis in original). But the court anchored its “perfect storm”
standard on the idea that an as-applied challenge is “fact specific.” /d. But
in fact, Storer was not so grudging in applying the capable of repetition
prong in an as-applied election Jaw case, holding that an as-applied election
law controversy was capable of repetition even if the same party would not
be injured again by the offending law. /d. (applying the exception where “no
effective relief can be provided to the candidates”). Nor have the supposed
idiosyncrasies of an as-applied challenge found by the lower court to be a
“perfect storm” been of concern to other courts. At least three Courts of
Appeals have held both prongs to be satisfied in an as-applied challenge. See
Belitskus v. Pizzingrilli, 343 F.3d 632, 649 (3rd Cir. 2003) (finding a “de-
monstrated probability” of a recurrence of the controversy because it was
“reasonable to assume,” in an as-applied challenge, that candidates would
11
This case is not just an as-applied challenge to the Cross-
roads Ad. It is an as-applied challenge to the electioneering
communication prohibition as applied to genuine grassroots
lobbying of the sort represented by the Crossroads Ad. The
League clearly declared that it not only wanted to run the
Crossroads Ad, but that it also wanted to run “materially similar
ads” during the prohibition period, VC 4 13, and it sought
“declaratory and injunctive relief permitting CCL [the League]
to run both the current grass-roots lobbying Advertisement
(Exhibit A) and materially similar ads in the future.” VC 4 15
(emphasis added). The League reiterated this broader as-applied
scope and demonstrated the “strong likelihood” that this same
situation was likely to recur, VC 4 16, so that if (as happened)
the lower court denied the preliminary injunction the League
could obtain declaratory and injunctive relief, under the
exception to the mootness doctrine, that would benefit it the
next time the need for broadcast grassroots lobbying arose
during a prohibition period.’ The League met its burden of
again seek a waiver of filing fees based on indigency); Pearlman v. Vigil-
Giron, 71 Fed. Appx. 11, 14 (10th Cir. 2003) (challenged ballots were
certified and distributed and the election had occurred); Teper v. Miller, 82
F.3d 989, 992 (11th Cir. 1996) (holding, in a challenge to contribution
limits, that the “capable of repetition yet avoiding review’ exception is
particularly appropriate in cases like Teper’s presenting ‘as-applied’
challenges to state law”).
‘Paragraph 16 (emphasis added) demonstrated more than a “reasonable
expectation”:
Regardless of the outcome of the expected Senate cloture vote on S.J.
Res. 1 in early June, CCL intends to run materially similar grass-roots
lobbying ads falling within the electioneering communication prohibi-
tion period before the general election and within the electioneering
communication prohibition periods before future primary and general
elections in Maine when there are pending matters in the legislative or
executive branch that similarly require referencing a clearly identified
candidate for federal office in broadcast communications to the citizens
12
proving the reasonable expectation prong, and neither the lower
court nor the FEC and Intervenors have countered these verified
facts. Rather, they relied on the flawed “perfect-storm” analysis.
The League’s challenge as applied to grassroots lobbying
(not just the Crossroads Ad) does not convert this case into a
facial challenge of the sort rejected in McConnell v. FEC, 540
U.S. 93, 207 (2003), as the lower court thought. App. 8a. In
WRTL, 126 S. Ct. 1016, this Court unanimously approved the
bringing of just such a challenge as applied to grassroots
lobbying, showing that there is no conflict between a challenge
on such a basis and the holding of McConnell. The League’s
allegation that it wants to do materially-similar future ads is
merely a statement of its future intent, which goes to the
question of whether there is a reasonable expectation that the
situation at issue here will recur. The lower court was wrong to
extract these declarations of intent from their context in the
exception to the mootness doctrine and hold them non-justicia-
ble because they were not ripe—as if the League had merely
of Maine. CCL is concerned about a range of issues in addition to laws
protecting traditional marriage — such as partial birth abortion, permis-
sive abortion, abortion clinic regulations, parental control of their
children’s education, regulation of sexual predators, legislation
normalizing same sex relations, gambling, limiting the government’s
power to raise taxes and the freedom to advance its issues in the public
forum — that regularly have and will become issues in the legislative
and executive branch. Because the legislative and executive branches
often deal with important legislative and executive branch issues in the
periods before elections, there is a strong likelihood that CCL ''s need to
broadcast grass-roots lobbying ads will again coincide with the
electioneering communications blackout periods. CCL does not have
a federal political committee (PAC), and would instead pay for such ads
with funds that do not comply with the source and amount limitations
that govern ‘PACs.
13
complained that it wanted to run some ads someday. App. 9a.'*
Although the “perfect storm” convergence of specific as-
applied facts is not required for the mootness exception, most
of the facts that the Court recites as needing to converge will
actually remain the same in the future or there is a reasonable
‘In WRTL, this Court specifically approved an as-applied challenge to
grassroots lobbying both as to WRTL’s 2004 ads and as to grassroots
lobbying generally, see Jurisdictional Statement (No. 04-1581) at i (setting
out both issues) after WRTL specifically called the Court’s attention to the
fact that the case was being appealed under the exception to the mootness
doctrine with the following statement:
While the 2004 election is past, this case is not moot because WRTL
intends to do similar grass-roots lobbying in the future, with a reason-
able likelihood that the need will recur during a prohibition period.
Amended Verified Complaint for Declaratory and Injunctive Relief
16. [FN 2] Further, election cases are classic examples of the excep-
tion to the mootness doctrine for cases that are capable of repetition yet
evading review. [FN 3]
[FN 2] In addition to ongoing judicial filibusters, WRTL has an interest
in grass-roots lobbying as to a broad range of currently hot social issues
that the legislative and executive branch often deal with in periods
before elections, including embryonic stem cel] research, cloning,
abortion (including partial-birth abortion), fetal pain legislation,
Medicare policy, foreign aid policy, nutrition/hydration withdrawal,
health-care rationing, assisted suicide, euthanasia, non-discrimination
in medical training and practice, and campaign finance reform. /d.
[FN 3] See Norman v. Reed, 502 U.S. 279, 287-88 (1992); Meyer v.
Grant, 486 U.S. 414, 417 n.2 (1988); First National Bank of Boston v.
Bellotti, 435 U.S. 765, 774 (1978); California Pro-Life Council v.
Getman, 328 F.3d 1088, 1095 n.4 (9th Cir. 2003); Majors v. Abell, 317
F.3d 719, 722 (7th Cir. 2003); Florida Right to Life v. Lamar, 273 F.3d
1318, 1324n.6 (11th Cir. 2001); Virginia Soc ’y for Human Life v. FEC,
263 F.3d 379, 390 n.3 (4th Cir. 2001); Stewart v. Taylor, 104 F.3d 965,
969-70 (7th Cir.1997); New Hampshire Right to Life v. Gardner, 99
F.3d 8, 18 (1st Cir.1996); Kansans for Life v. Gaede, 38 F. Supp. 2d
928, 932 (D. Kan. 1999).
Id. at 7 & nn. 2 and 3.
14 _
expectation that they will recur. Here is the court’s list, App.
]2a (emphasis added):
1. “a speaker that happened to be incorporated”;
2. “intent on using corporate funds”;
3. “intent on using broadcast media”; _
4. “intent on mentioning a candidate”;
5. “intent on... doing so within thirty days of that candidate’s
primary election”;
reference to Sen. Snowe’s action as “[u]nfortunate[]”; and
7. “previously sound[ing] an enthusiastic note in discussing a
potential electoral challenge to Senator Snowe.”
an
Preliminarily, three things should be noted. First, the lower
court leaves out important facts regarding a reasonable expecta-
tion that the League will be subject to the same prohibition: (a)
there will continue to be regularly recurring federal elections,
conventions, and caucuses that trigger prohibition periods; (b)
the prohibition periods will span at least ninety days every two
years (a fourth of a year), (c) Congress will be in session and an
executive will be in office during those prohibition periods, (d)
Congress and the executive branch will be making decisions
during those prohibition periods, (e) there will continue to be a
flurry of important legislative activity during these prohibition
periods, especially before the general election,'* (f) the League
'SIn McConnell, the ACLU provided a summary Chart of “Bills of
Interest to the ACLU n the 106th Congress During the 60 Days Prior to the
November General Election.” Joint Appendix at 622-26, ACLU v. FEC (No.
02-1734) (consolidated with McConnell) and made the following observa-
tions about pre-election legislative activity:
[E]lection years are often periods of intense legislative activity, as the
district court recognized. During the 2002 election cycle, for instance,
legislation creating anew federal Department of Homeland Security was
under consideration in the midst of the pre-election period. .. . During
the fall 2000elections, dozens of critical legislative issues were pending
in Congress during the 60 day general election blackout period. See
15
will still care about a wide range of issues (VC § 16) that
regularly come before the legislative and executive branches,
(g) the League will still be an ideological, issue-advocacy
corporation with a track record of wanting to engage in grass-
roots lobbying, and (h) broadcasting media will still offer
unique advantages for grassroots lobbying so that the League
will continue to want to use broadcasting for grassroots
lobbying. Based on these factors neglected by the lower court,
there is a reasonable expectation that the League will again
want to engage in grassroots lobbying with broadcast media
during prohibition periods.
Second, it should be noted preliminarily that the lower
court’s “perfect storm” facts #1-#5 are elements of the defini-
tion of electioneering communication and its prohibition. As
such, they are necessarily inherent in any challenge to the
electioneering communication prohibition and were clearly
present in the effort to gain recognition of constitutional
protection for the Crossroads Ad. All of these five facts, and the
League’s intent as to them, were encompassed in the League’s
declaration that it wants judicial relief to allow it to run
“materially-similar ads in the future,” VC § 15, and its declara-
tion that “CCL intends to run materially similar grass-roots
lobbying adds falling within the . . . electioneering communica-
tion prohibition periods before future primary and general
elections . .. when there are pending matters . . . that similarly
require [broadcast grassroots lobbying].” VC 4 16 (emphasis
[Chart]. Thus, it is not unusual for the ACLU’s legislative and issue
advocaty to be most intense during an election year, especially in the
days leading up to the election.
Brief of Appellant at 12-13, ACLU v. FEC (No. 02-1734) (consolidated with
McConnell). A longstanding practice in Congress is to attach riders to
appropriation bills, which are considered in the fall prohibition periods.
Movement of controversial legislation to prohibition periods may reasonably
be expected because less opposition can be generated at such times.
16
added). So there is no issue as to intent regarding these facts.
A third preliminary matter has to do with the lower court’s
facts #6 and #7. These have nothing to do with whether there is
a reasonable expectation that the League will again be subject
to the prohibition. Neither styling an incumbents’ vote unfortu-
nate nor enthusing over potential challengers is an element of
the prohibition.
Even assuming arguendo that the League must show a
reasonable likelihood that all seven parts of “this perfect storm”
will recur, the facts will remain constant in all material ways,
as shown next (dealing seriatim with the lower court’s facts).
#1 (incorporation). As to the first fact, the League did not
just “happen[] to be incorporated.” App. 12a. It has been
incorporated since 1905. VC Ex. B. The League brought this
challenge because it is a corporation and under the prohibition.
This will not change.
#2 (corporate funds). This fact will not change because the
League is “intent on using corporate funds,” App. 12a (empha-
sis added), for its grassroots lobbying. The League’s declaration
of intent to run materially-similar future ads, VC %§ 15, 16,
encompasses using corporate funds.'®
#3 (broadcast). This fact will not change because the
League is “intent on using broadcast media,” App. 12a (empha-
sis added), for grassroots lobbying communications. The
League’s declaration of intent to run materially-similar future
‘The League will always intend to use general funds instead of PAC
funds for genuine grassroots lobbying because the League does not have a
federal PAC, does not want one because of the compliance burdens it would
impose, does not plan to organize one, and believes the prohibition is
unconstitutional to require the League to have a PAC for grassrdots lobby-
ing, and because PAC funds are more difficult to obtain.
17
ads, VC 4§ 15, 16, encompasses using broadcast media."”
#4 (mention candidate). This fact will not change because
the League is “intent on mentioning a candidate,” App. 12a
(emphasis added), in its grassroots lobbying communications.
The League’s declaration of intent to run materially-similar
future ads, VC {J 15, 16, encompasses referencing a candi-
date.'*
#5 (within prohibition period). This fact will not change
because the League is “intent on . . . doing [grassroots lobbying
communications] within [any applicable prohibition period'’},”
"Where the need for grassroots lobbying arises on short notice, there is
no substitute for broadcasting, and broadcast media have an effectiveness
that 1s unsurpassed by other media (which is the obvious reason why the
prohibition targets broadcasting). The League has a track record of using
broadcast media for grassroots lobbying, as evidenced by the both the
Crossroads Ad and the 2004 Ad, see supra at n.4, 13, so while it may also
use other media it intends to run broadcast ads again.
"The League believes that naming a candidate is necessary to effective
grassroots lobbying and so has done so both in the Crossroads Ad and the
2004 Ad, see supra n.4, 13, and it will do so in the future. Moreover, the
prohibition requires only referencing a candidate somehow, not just the
narrower act of mentioning a candidate’s name, so even saying, “Call your
Senators” without naming them would trigger the prohibition. See 11 C.F.R.
§ 100.29(b)(2) (“refers to a clearly identified candidate” means “unambigu-
ous reference” such as “your Congressman’’). Thus, any sort of grassroots
lobbying will trigger the prohibition because grassroots lobbying, by
definition, includes asking people to contact government officials or
representatives, who must be identified in some manner.
'°The lower court employed too specific a level of generality here by
focusing on the primary election prohibition period. The League could be
subject to the prohibition again “within 60 days before a general election
. } or within 30 days before a primary or preference election, or a
convention or caucus of a politica] party that has authority to nominate a
candidate, for the office sought by the candidate, and the candidate
referenced is seeking the nomination of that political party,” 11 C.F.R.
§ 100.29(a)(2) (App. 23a), or during “[a] special election or a runoff
election.” /d. at § 100.29(b)(4) (App. 24a). There is no reason to limit the
18
App. 12a (emphasis added) as the need arises. VC § 16. The
League's declaration of intent to run materially-similar future
ads, VC 15, 16, encompasses running them during a prohibi-
tion period.””
#6 (stating League’s position). This fact will not change
because the League intends to state its position on the topic of
any grassroots lobbying in future broadcasts. The League’s
declaration of intent to run materially-similar future ads, VC
| 15, 16, encompasses stating the League’s position on the
issue at hand.
#7 (prior enthusing). This fact is even more problematic
than #6 because it is not evident from the Crossroads Ad itself.
This fact represents the lower court’s belief that reasonable
expectation of recurrence may be based on external facts having
some purported relevance to the League’s intent in running the
ads. However, the League's subjective intent is irrelevant under
the free expression right. See, e.g., Buckley v. Valeo, 424 US.
1, 43 (1976) (intent and effect test would violate free expression
analysis to primary elections. There is a reasonable expectation that the
League will want to broadcast grassroots lobbying ads during one of these
periods as it has declared its intention to do.
The problem with the court’s formulation of facts #5-#7 is that driving
the analysis to a highly specific level when the level of specificity is -
immatertal to the question at hand permits the erroneous conclusion that a
situation could never recur, when under a proper level of specificity there is
a reasonable expectation that it would. If permitted to stand, such a narrow-
specificity analysis would allow a court to decide that there is no reasonable
expectation that a legal controversy will recur simply by framing the facts
narrowly. Neutral criteria are required. The proper question is whether there
is a reasonable likelihood that storms will recur, not “perfect storms.”
Employing the proper standard for the exception to the mootness
doctrine, there is a “reasonable expectation” (even a substantial likelihood)
that the League will need to broadcast grassroots lobbying communications
during a prohibition period given the wide range of issues with which the
League is concerned and the fact that grassroots lobbying encompasses both
executive and legislative branch actions. VC § 16.
19
rights). And the right to petition is protected where there is “‘a
concerted effort to influence public officials regardless of intent
or purpose.” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525
(2002) (quoting Mine Workers v. Pennington, 381 U.S. 657,
670 (1965)) (emphasis added) (part of the Noerr-Pennington
line of cases recognizing a high level of protection for the right
to petition in a wide range of contexts).
This close look at the lower court’s “perfect storm” standard
for finding a “reasonable expectation” of repetition underscores
the error in fashioning it. Requiring a seven-point convergence
of facts for a First Amendment election law claim to be capable
of repetition is unprecedented. The cases the lower court cites
in support of its novel approach are inapposite. App. 1 la-12a.
In People for Ethical Treatment of Animals, Inc. v. Gittens, 396
F.3d 416 (D.C. Cir. 2005), for example (which did not involve
elections or campaigns), the court noted that what must be
capable of repetition is the alleged wrong and that the nature of
the alleged wrong is determined by examining the complaint.
The court held that PETA’s claim was not capable of repetition
because “the legal questions it presents for decision” were
essentially limited, by its complaint and arguments, to a claim
that its proffered art exhibits were wrongly rejected for display
because they satisfied the requirements for acceptance as
published and applied. Jd. at 422-23. As limited by the plain-
tiffs own pleadings and arguments, its claims were “highly
fact-specific.” Jd. at 424.?' No such limitations are found in the
League’s complaint, which challenged the electioneering
communication prohibition as applied to grassroots lobbying of
the sort represented by the Crossroads Ad. The lower court, not
2! The court found the controversy “highly fact specific” because “PETA
thinks the decision turns on . . . what design criteria . . . the Commission
actually employed, whether PETA’s [sponsorship] put it on a different track
than [the other] artists, and whether . . . the rejection of PETA’s designs
constituted content or viewpoint discrimination .. . .” /d. at 423.
20
the League, tried to make the claim “highly fact-specific.”
Moreover, if the lower court’s “perfect storm” of facts
accurately reflected the D.C. Circuit’s standard for determining
whether a First Amendment election claim was capable of
repetition (which it does not), that Circuit’s standard would be
squarely at odds with at least one other Circuit. In an as-applied
challenge” to an Indiana statute requiring “adequate notice” of
the identity of persons paying for express advocacy communica-
tions, the Seventh Circuit overturned the lower court’s holding
of mootness based on the plaintiff's failure to run for office
again or prosecute his case: “A candidate plaintiff no more has
a duty to run in every election in order to keep his suit alive
than an abortion plaintiff has a duty to become pregnant again
at the earliest possible opportunity in order to keep her suit
alive.” Majors v. Abell, 317 F.3d 719, 722 (7th Cir. 2003). The
present lower court would apparently require that, in addition
to running for office in the next election, there must also be a
reasonable expectation that several more specific details of the
candidate’s campaign would recur. Such additional specific
requirements are at odds with the more general requirements of
cases capable of repetition yet evading review.
B. These cases evade review. The lower court’s answer
to the problem of ever getting judicial review of the sort of as-
applied grassroots lobbying challenge to the prohibition that
this Court approved in WRTL, 126 S. Ct. 1016, is to “bring a
lawsuit more than a year in advance of an election if [the
corporation] had concrete plans to broadcast within sixty days
of the election a specific advertisement, paid for with corporate
funds, that mentioned a declared candidate.” App. 13a. A year
is a long time, when it comes to knowing what the future holds,
but an exceedingly short time for getting full judicial! review of
“No Court of Appeals employs anything approaching the “perfect
storm” standard in the facial challenges that are common in this area of law.
21
a legal challenge.
How is the League to know what the legislative or executive
branches will be doing a year from now? How may it know now
what might then touch on one of the League’s topics of interest
and cause the League to want to broadcast grassroots lobbying
ads? The court provides no answer. It is unlikely that the court
knows with any precision what it will be doing a year from
now, just as it is unlikely that this Court knows with much
specificity what cases it will be considering a year from now.
The executive branch may have goals for what it wants to be
doing a year from now, but there are too many known and
unknown variables to know a year in advance how initiatives
will actually fare. Legislative branch leaders also may have
agendas that they would like to advance, but likewise cannot
know how the vicissitudes of politics will affect their plans.
If executives and legislators don’t know what they will be
doing a year from now, how is the League to know what
_ grassroots lobbying it will want to do a year from now? Have
crystal balls become reliable? Has time travel been invented?
Even if the League thought that it knew that an event would
occur a year from now that would require grassroots lobbying,
why would it plan the text of a grassroots lobbying ad a year in
advance? Who would spend the money that far ahead for an ad
agency to create text when things might well change between
now and then so that the ad might not be needed or it might
require alteration and the money would have been wasted? And
wouldn’t it be unwise to do an ad this early, when it might be
a far better ad nine months from now when more is known
about the context of the grassroots lobbying effort, such as what
arguments others are making or what themes should be rein-
forced, what should be refuted? And given the opposition’s
endless-loop efforts to prevent the court from reaching the
merits of an as-applied challenge, see Part II.D, it is certain that
they would claim that a lawsuit filed a year in advance as the
22
lower court suggests would be challenged as lacking ripeness
for the same reasons that would make it unwise to write an ad
a year in advance—things change, things are unpredictable.
The lower court insists that the year-in-advance lawsuit
“would be ripe and stand a strong chance of gaining appellate
review in light of the Act’s [expedition requirement].” App.
13a.” The ripeness statement is plainly dictum, as no such case
was before the court, but it seems unlikely that if confronted
with an actual year-in-advance grassroots lobbying ad challenge
that it would hold that the case is ripe.
~ Be that as it may, the other grassroots lobbying challenge in
the same district court—subject to BCRA’s expedition
requirement—demonstrates conclusively that a year is not
enough time. In that case, WRTL, 126 S. Ct. 1016, this Court
unanimously decided that McConnell v. FEC, 540 U.S. 93
(2003), did not preclude a constitutional challenge to the
prohibition as applied to grassroots lobbying (both as to
WRTL’s 2004 ads and as to genuine grassroots lobbying
generally) and remanded the case to this district court on
January 23, 2006. As the case had already been in existence for
many months before going to this Court and was fully briefed
on cross-motions for summary judgment before the district
court dismissed that case, WRTL filed a motion, on January 24,
2006, to reinstate and expedite consideration of the existing
summary judgment motions, reminding the district court of the
statutory duty to expedite. No. 1:04-cv-01260, Doc. #53 (avail- —
able by PACER).
The district court took until April 17, 2006, to deny the
motion to reinstate, at which time it issued a discovery and
*It should be noted that BCRA’s “Judicial Review” provision, requiring
that cases be filed in the lower court, a three-judge panel, expedition and
advancement on the docket, expires at the end of 2006 unless a plaintiff
“elects” to bring its case under that provision. See BCRA § 403(d), 116 Stat.
at 114.
23
briefing schedule with oral argument on new cross-motions for
summary judgment on September 18. Doc. #69. At the time of
the present writing in late October there is no decision from the
district court on these cross-motions. Thus, even though the
WRTL case had a running headstart because it was filed on July
28, 2004, Doc. #1, from the time this Court issued its January
23 opinion to the present approximately nine months have
elapsed without a decision. Even if the district court issues its
ruling on summary judgment by the end of October, that leaves
only three months in this Court for briefing, oral argument,
consideration, and drafting of a ruling in order to get all done
within a year. Although the League lacks the prescience to
know what will happen a year from now, it can easily see that
the lower court’s one-year resolution time-line is not realistic.”
In the real world, the need for grassroots lobbying generally
arises rapidly, as it did in the present case.”” Even with man-
dated expedition, courts do not resolve such cases in a year
(even if that were a sufficiently short length of time, which it is
In fact, considering the full scope of the expedited WRTL case (from
July 2004 to present), it is fair to say that a case like the present can take
three years or more years to fully litigate, especially with all the “endless
loop” arguments made by Defendants, as discussed infra at Part II.D.
**The WRTL case also provides an excellent example of how quickly the
need for grassroots lobbying often arises. In that case, WRTL moved on
October 25, 2006, for a preliminary injunction to permit broadcasting a
genuine grassroots lobbying ad concerning the Child Custody Protection Act
(“CCPA”). Doc. #95. Injunctive relief was required because the CCPA Ad
would also be an electioneering communication. The motion was denied.
Doc. #113. For present purposes, the timing is important. According to the
unrebutted Fourth Affidavit of Barbara L. Lyons (Doc. #95, Attach. #1),
WRTL received an “Urgent Congressional Alert” from the National Right
to Life Committee on September 22, 2006, indicating that there was a
problem with finalizing the CCPA (which had passed both houses of
Congress by large margins in late July 2006) that would come to a vote on
invoking cloture in late September 2006. There is no one-year opportunity
for full litigation in such a situation—only a matter of days.
24
not). These cases evade review and fit the mootness exception,
but this Court should not simply reverse the lower court on that
issue and remand this case.
II. A Grassroots Lobbying Exception Is Required.
This Court should decide the underlying merits of this case,
with a rule of general applicability, for several reasons.”°
A. First, although this Court highlighted in WRTL the FEC’s
authority to provide by rule a grassroots lobbying exception,
126 S. Ct. 1016, the FEC refuses to do so. In 2002, it declined
to make a rule even though Sen. McCain and other BCRA
prime sponsors (present intervening defendants) proposed arule
allowing grassroots lobbying that they said was fully within the
FEC’s authority. 67 Fed. Reg. 65190, 65200-02.”’ On February
>°A fuller discussion of the merits issue is in the League’s Jurisdictional
Statement (No. 05-1447) for the appeal of the lower court’s denial of the
preliminary injunction in this matter and in the Jurisdictional Statement in
WRTL. 126 S. Ct. 1016 (No.04-1581). Both briefs are available at http://
www.jamesmadisoncenter.org. The WRTL merits briefs develop the
arguments further and are available on this Court’s own website.
*’The BCRA prime sponsors saw the difference between electioneering
and grassroots lobbying, proposing to the FEC the following exception to the
prohibition on electioneering communications:
The term “electioneering communication” does not include any
communication that:
* * HH
(x)(A) Meets all of the following criteria: (i) the communication
concerns only a legislative or executive branch matter; (ii) the communi-
cation’s only reference to the clearly identified federal candidate is a
statement urging the public to contact the candidate and ask that he or
she take a particular position on the legislative or executive branch
matter; and (iii) the communication refers to the candidate only by use
of the term “Your Congressman,” “Your Senator,” “Your Member of
Congress” or a similar reference and does not include the name or
likeness of the candidate in any form, including as part of an Internet
address; and (iv) the communication contains no reference to any
25
16, 2006, a Petition for Rulemaking was filed by counsel for the
Chamber of Commerce of the United States, OMB Watch, the
AFL-CIO, the National Education Association, and the Alliance
for Justice.” The FEC “decided not to initiate a rulemaking in
political party.
(B) The criteria in Paragraph (A) are not met if the communication
includes any reference to: (i) the candidate’s record or position on any
issue; (ii) the candidate’s character, qualifications or fitness for office;
or (iii) the candidate’s election or candidacy.
Detailed Comments of BCRA Sponsors Senator John McCain, Senator Russ
Feingold, Representative Christopher Shays, Representative Marty Meehan,
Senator Oiympia Snowe, and Senator James Jeffords at 10 (copy on file
with authors) ( attached to Letter from Sen. John McCain, Sen. Russell D.
Feingold, et al. to Ms. Mai T. Dinh of the FEC (Aug. 23, 2002) (copy on file
with authors). Both documents are available at the FEC’s website,
http://www. fec.gov/law/RulemakingArchive.shtml (select “Electioneering
Communications” then “Comments on This Rulemaking”).
**This broad-spectrum group offered a useful proposal for defining a
grassroots lobbying exception to the electioneering communications
prohibition. In response, the FEC published Notice 2006-4, entitled
“Rulemaking Petition: Exception for Certain ‘Grassroots Lobbying’
Communications From the Definition of ‘Electioneering Communication.”
71 Fed. Reg. 13557. The petition asked for an expedited rulemaking
to revise 1] C.F.R. 100.29(c) to exempt from the definition of
“electioneering communication” certain “grassroots lobbying” commu-
nications that reflect al] of the following principles: 1. The “clearly
identified federal candidate” is an incumbent public officeholder; 2. The
communication exclusively discusses a particular current legislative or
executive branch matter; 3. The communication either (a) calls upon the
candidate to take a particular position or action with respect to the
matter in his or her incumbent capacity, or (b) calls upon the general
public to contact the candidate and urge the candidate to do so; 4. If the
communication discusses the candidate’s position or record on the
matter, it does so only by quoting the candidate’s own public statements
or reciting the candidate’s official action, such as a vote, on the matter;
5. The communication does not refer to an election, the candidate’s
candidacy, or a political party; and 6. The communication does not refer
26
response to the Petition at this time.” 71 Fed. Reg. 52° 95. On
August 28, 2006, a FEC commissioner proposed adopting an
interim rule similar to the broad-coalition rule to govern the
period before the November 2006 election and beyond while a
rulemaking was pursued. On August 29, 2006, the FEC voted
not to adopt any interim rule,” in part because the lower court
and this Court might provide “guidance” for possible later FEC
action. Audio Recording (available at www.fec.gov). This
position was urged by the Office of General Counsel in its
proposed Notice of Disposition. See http://www.fec.gov/
agenda/2006/mtgdoc06-57.pdf (Agenda Doc. 06-57). At the
same time, the FEC Office of General Counsel has vigorously
sought to avoid any ruling on the merits here and in WRTL that
would provide such guidance.
B. In WRTL, this court provided the district court the
opportunity to consider the merits “in the first instance,” 126 S.
Ct. at 1017, but to date the district court has provided this Court
no assistance in framing a rule protecting First Amendment
rights in the grassroots lobbying context. Even though this
Court unanimously and expeditiously remanded WRT7L for a
decision on the merits, the district court in the present case has
to the candidate’s character, qualifications or fitness for office.
While the League does not believe that this rule goes as far as the Constitu-
tion extends protection to grassroots lobbying, it provides a useful definition
that balances the concerns of all sides and provides a workable test. Counsel
in the WRTL case even offered to settle that challenge if the FEC would
adopt this rule, which it refused to do.
**Audio Recording of FEC Open Meeting Agenda, Aug. 29, 2006,
available at http://www.fec.gov/agenda/2006/agenda20060829.shtml. The
FEC’s complete rule-making file is available at http://www.fec.gov/law/
law_rulemakings.shtmi#lobbying. The Interim Rule proposed by FEC Com-
missioner van Spakovsky was similar to the rule requested by a broad-
spectrum coalition of issue-advocacy groups. See “Rulemaking Petition:
Exception for Certain ‘Grassroots Lobbying’ Communications From the
Definition of ‘Electioneering Communication.”” 71 Fed. Reg. 13557.
27
again avoided the merits, this time based on a misapplication of
the mootness exception (even though the exception was
expressly identified to this Court in WRT7L as the jurisdictional
basis of the appeal, see supra at n.6, 14). Such evasion of the
merits provides this Court no assistance. Given that this district
court has twice dismissed a grassroots lobbying challenge, a
better course now would be to consider the merits of this case.
Perhaps the panel of the district court in the WRTL case will
provide some guidance in formulating a proper rule for a
grassroots lobbying exception, but that 1s uncertain because it
has been asked to dismiss that case based on the same flawed
mootness argument. The best course would be for this Court to
decide the merits of this case and if the WRTL panel provides a
timely decision consider the two cases together on appeal. That
would provide this Court with a broad, differing fact base for
its consideration of the merits.
C. These long-delayed grassroots lobbying challenges are
of great public importance as shown by the broad-spectrum
coalition representing unions and corporations that petitioned
for rulemaking, see supra at 25, and by the numerous amici
curiae that filed briefs in WRTL, 126 S. Ct. 1016. The people’s
public interest groups have argued for an exception for grass-
roots lobbying since the 2003 briefing in McConnell. 540 U.S.
93. Since then, two election cycles have come and gone without
a ruling on whether the government can prove narrow tailoring
to a compelling interest as applied to the sovereign people’s
rights to petition (not considered in McConnell), to associate in
incorporated and union advocacy groups, and to express them-
selves in the core functioning of a representative republic.
D. Further delay in deciding the merits of this case, or a too-
narrow decision, would be unjust to the small, nonprofit citizen
groups that have dared to step forward and bear the burden of
litigation in order to vindicate their rights. While the burden of
litigation is an ever-present reality of our legal system, where a
28
state actor violates constitutional rights Congress has provided
that a prevailing party may recover its attorneys fees. 42 U.S.C.
§ 1983. Congress has provided no such fee-shifting arrange-
ment for federal laws and regulations, while providing the FEC
Office of General Counsel and the Solicitor General with ample
funds for the numerous attorneys that they have assigned to
these grassroots lobbying challenges. The district court has
permitted intervention (over Article III objections), and the
Intervenors enjoy the full funding of the campaign finance
reform lobby, which has also deployed numerous counsel. The
numerous motions and extensive discovery imposed by
defendants have created a substantial litigation burden, which
fact counsels against a narrow merits decision.” A rule of
general applicability is required so that citizen groups will not
have to carve out, through multiple encounters with scorched-
earth litigation, the outlines of an exception for genuine
grassroots lobbying. Very few have been willing to step forward
and shoulder the financial and extensive discovery burdens of
While space limitations preclude a full discussion of the tactics em-
ployed by defendants to impose heavy litigation burdens and deprive these
citizen groups of their day in court, a scan of the dockets in both the present
case and WRTL (on PACER) provides a birds-eye view of their efforts
(although with only little detail on discovery). In what may be styled
“endless-loop” arguments, defendants in McConnell, 540 U.S. 93, insisted
that no as-applied situations (such as grassroots lobbying) be considered in
that facial challenge and then insisted that McConnell precluded as-applied
challenges, which argument was fully briefed in WRTL, 126 S. Ct. 1016,
wherein this Court unanimously rejected this too-soon-then-too-iate ploy. In
the present case (and in WRT7L), defendants have vigorously resisted a
preliminary injunction until the opportunity for grassroots lobbying is past,
and then they have insisted that the matter is moot and not within the
mootness exception. They have also insisted that the statement of plans to do
materially-similar future ads is not ripe (although these statements of future
plans were addressed only to the reasonable expectation of recurrence
requirement in the mootness exception). This endless loop of never reaching
the merits must also be rejected.
29
bringing a challenge. Nor should they be required to do so in
order to vindicate their rights under the First Amendment,
which are supposed to be guaranteed to them against Congres-
sional interference. U.S. Const. amend. I (“Congress shall make
no law... .”).
Conclusion
For the foregoing reasons, the Court should note probable
jurisdiction, expedite and advance this case on the calendar, and
hold (1) that this case is within the exception to the mootness
doctrine for matters capable of repetition yet evading review,
(2) that the prohibition is unconstitutional as applied to the
League’s proposed advertisement and materially-similar future
advertisements, and (3) establish an appropriate rule of general
applicability to protect genuine grassroots lobbying.
Respectfully submitted,
M. Miller Baker James Bopp, Jr.,
Michael S. Nadel Counsel of Record
McDERMOTT WILL& Emery Richard E. Coleson
LLP Raeanna S. Moore
600 Thirteenth Street, NW Jeffrey P. Gallant
Washington, DC 20005 Bopp, COLESON & BOSTROM
202/756-8000 telephone THE JAMES MADISON CENTER
202/756-8087 facsimile FOR FREE SPEECH
1 South 6th Street
Terre Haute, IN 47807-3510
812/232-2434 telephone
812/235-3685 facsimile
Appendix Table of Contents
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U.S. Constitution, First Amendment ............... 17a
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Notice of Appeal of Dismissal to U.S. Supreme Court .. 32a
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[Headers omitted: state “Document 52 Filed 09/27/2006”)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE CHRISTIAN CIVIC _)
LEAGUE-OF MAINE, INC., )
Plaintiff, ) Civil Action No. 06-0614 +
v. ) WR, LFO, CKK)
) (Three-Judge Court)
FEDERAL ELECTION
COMMISSION,
Defendant,
and
)
)
)
)
)
JOHN MCCAIN, RUSSELE ) —
FEINGOLD, CHRISTO- _+)
PHER SHAYS, MARTIN _ )
MEEHAN, AND TOM )
ALLEN, )
Intervenor-Defendants. __)
MEMORANDUM OPINION
Plaintiff Christian Civic League of Maine, Inc. (the
League”) seeks declaratory and injunctive relief in support of
its efforts to broadcast (1) a particular political advertisement
(the “Crossroads advertisement”) in advance of a June 2006
United States Senate vote and (2) “materially similar” advertise-
ments in the future. Verified Complaint 4 16, Prayer for Relief
(filed Apr. 3, 2006). Defendant Federal Election Commission
(the “Commission”), has moved to dismiss the League’s claims
a. “not ripe” and/or “too speculative and hypothetical to be
justiciable under Article II” insofar as they pertain to any
2a
circumstances other than those surrounding the efforts of the
League to broadcast the Crossroads advertisement. Commis-
sion’s Motion at 1 (filed June 12, 2006). The intervenor-
defendants, certain legislators (the [*2] “Legislators”), have
moved for partial judgment on the pleadings on the same
aspects of the League’s claims, for the same reasons. The
League opposes these motions.
Additionally, the court has suggested that the balance of the
case — i.e., the claims of the League insofar as they do pertain
to the circumstances surrounding its efforts to broadcast the
Crossroads advertisement — may be moot and not saved by the
“capable of repetition, yet evading review” exception to that
doctrine. See June 23, 2006 Order. The Legislators have agreed
that this aspect of the League’s claims “does . . . appear moot .
... [and] not capable of repetition,” Legislators’ Response at 2
(filed July 7, 2006); the Commission has stated that the court’s
suggestion raises a “close question,” Commission’s Response
at 1 (filed July 7, 2006); and the League has opposed the
suggestion.
We conclude that the League’s claims are (1) not ripe and/or
too speculative and hypothetical to be justiciable insofar as they
pertain to any circumstances other than those surrounding the
efforts of the League to broadcast the Crossroads advertisement
and (2) moot and not saved by the “capable of repetition, yet
evading review” exception to that doctrine insofar as they do
pertain to the circumstances surrounding the League’s efforts to
broadcast the Crossroads advertisement. Accordingly, an
accompanying order grants the pending partial motions to
dismiss and for judgment on the pleadings and otherwise
dismisses the League’s remaining claims as moot.
I. BACKGROUND
An earlier opinion in this case (in which we denied the
League’s motion for a preliminary injunction) provides the
factual and legal background to this dispute. See May 9, 2006
3a
Memorandum Opinion. Briefly, the League — a self-styled
“nonprofit, nonstock . . . ideological” [*3] corporation that
engages in some business activity, Verified Complaint ¥ 20, 22
— sought to use general corporate funds to broadcast the
Crossroads advertisement in advance of a June 2006 Senate
vote. The Crossroads advertisement identified Senator Olympia
Snowe by name; Senator Snowe was a candidate in a primary
election scheduled for June 13, 2006. The League brought suit
on First Amendment grounds in recognition of the fact that the
Federal Election Communications Act, as amended by the
Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-
155, and codified at 2 U.S.C. § 431 et seq. (the “Act”), ap-
peared to prohibit it from broadcasting the Crossroads adver-
tisement in the described circumstances. (The Act prohibits
corporations from using general corporate funds for “election-
eering communication[s],” 2 U.S.C. § 441 b(a), (b)(2), defined
as any “broadcast, cable, or satellite” communication, issued
within thirty days of a federal primary election or sixty days of
a general federal election (the “blackout period”), that “clearly
identifie[s]” a candidate in that election and “target[s]” the
relevant electorate, 2 U.S.C. § 434(f)(3)(A)(i)).
The Supreme Court has previously rejected a facial chal-
lenge to the relevant provision of the Act (the “electioneering
communications provision”). See McConnell v. Federal
Election Comm'n, 540 U.S. 93, 189-94, 203-11 (2003). In
McConnell, the Court recognized that the electioneering
communications provision extends to prohibit some “issue
advertis[ements].” 540 U.S. at 126-32, 189-94, 203-05. The
Court concluded, however, that that provision is tailored
sufficiently narrowly to meet a compelling governmental
interest and to survive constitutional scrutiny. See id. at 193,
204-06. As the Court noted: “[C]orporations and unions may
finance genuine issue ads during [the blackout periods] by
simply avoiding any specific reference to federal candidates, or
4a
in doubtful cases by paying for the ad from a segregated fund.”
Id. at 206. [*4]
Subsequently, in Wisconsin Right to Life, Inc. v. Federal
Election Commission, 126 S. Ct. 1016, 1018 (2006), the Court
clarified that its decision in McConnell did not pose an absolute
bar to as-applied challenges to the electioneering communica-
tions provision; i.e., the First Amendment might require the
exemption of particular advertisements, in particular circum-
stances, from the Act’s definition of an electioneering commu-
nication. The League argues that the Crossroads advertisement
(as well as “materially similar” future advertisements) requires
such an exemption.
On May 9, 2006, we denied the League’s motion for a
preliminary injunction. The League did not run the Crossroads
advertisement during the blackout period in advance of the June
13, 2006 primary. See League’s Response to Court’s Suggestion
of Mootness at 5 (filed June 30,2006). In early June 2006, the
Senate voted on the legislation to which the Crossroads
advertisement pertained. See Joint Report of the Parties at 1
(filed June 15, 2006).
I]. ANALYSIS
The League’s claims with respect to the Crossroads
advertisement are moot. Yet, the League argues that its lawsuit
should proceed nonetheless because (1) its claims reference not
only the Crossroads advertisement but also “materially similar”
advertisements that it might broadcast in the future, Verified
Complaint 4 16, and/or (2) the Crossroads advertisement
portion of the case qualifies for the “capable of repetition, yet
evading review” exception to the mootness doctrine. We
disagree on both issues.
A. The Non-Crossroads Claims.
Insofar as the League’s claims pertain to any circumstances
other than those surrounding its efforts to broadcast the
5a
Crossroads advertisement (the “non-Crossroads claims”), those
claims [*5] are not justiciable because they are not ripe and/or
are too speculative and hypothetical. The League bears the
burden of clearly alleging and ultimately proving that the non-
Crossroads claims are justiciable. See Renne v. Geary, 501 U.S.
312, 316 (1991) (“It is the responsibility of the complainant
clearly to allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute and the exercise of the
court’s remedial powers.”’) (quotation marks omitted). Here, far
from establishing such justiciability, the League has admitted
that it has no current plans to broadcast any advertisements
about any issue.' First, at deposition, its Executive Director
testified:
Q: ....Do you have any current plans to run ads on
radio or TV about the federal marriage amendment
other than the Crossroads ad?
A: No.
Q: Do you have any plans to run ads on radio or TV
about anything other than the Crossroads ad?
A: No.
Q: Paragraph 16 [of the League’s Verified Complaint}
says that [the League] plans to run materially similar
ads after mid June on a range of other issues; cor-
rect?
Uh-huh. Uh-huh.
Is that a correct statement of [the League]’s plans
today?
Q>
'In resolving a jurisdictional issue on a motion to dismiss or motion for
judgment on the pleadings, “where necessary, the court may consider the
complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” See Herbert v. National Academy of Sciences, 974 F.2d 192
(D.C. Cir. 1992).
6a
Yes.
Can you describe those plans?
No.
Why not?
Because it’s not beyond a simple plan or intention
to do that. [*6]
rOPOP
Q: Is there any specific issue you.can tell me that [the
League] plans to run a radio or TV ad on in the
future other than the Crossroads ad?
A: No. We have no other script written. We have no
other issues selected for future campaigns.
Commission’s P.I. Opp. (filed Apr. 17,2006), Ex. A (Apr. 2006
Deposition of Michael Heath at 74-75, 82-83). The League’s
attorney forthrightly confirmed this lack of plans in a May 22,
2006 report to the court and at a June 5, 2006 status conference.
See Joint Report at 8 (filed May 22, 2006) (“no concrete plans
to run ads”); June 5, 2006 Status Conference Transcript at 14
(“We have no current plans to do an ad... .”).
“Article III... confines . . . [the courts] to resolving real
and substantive controvers[ies] admitting of specific relief
through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a
hypothetical state of facts.” Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990) (quotation marks omitted); see also
International Longshoremen's and Warehousemen's Union,
Local 37 v. Boyd, 347 U.S. 222, 224 (1954) (“Determination of
the . .. constitutionality of legislation in advance of its immedi-
ate adverse effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of the
judicial function.”). This is no less true in cases involving First
Amendment arguments: “The constitutional question, First
Amendment or otherwise, must be presented in the context of
a specific live grievance.” Golden v. Zwickler, 394 U.S. 103,
7a
110 (1969). “Even the ‘chilling’ of the most protected First
Amendment rights of free speech does not create a case or
controversy without a ‘specific present objective harm or a
threat of specific harm.’” National Conference of Catholic
Bishops v. Smith, 653 F.2d 535, 539-40 (D.C. Cir. 1981)
(quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). [*7]
Accordingly, to be justiciable, the League’s challenge to the
constitutionality of the Act’s electioneering communications
provision must arise from a dispute that is “credible and
immediate, and not merely abstract or speculative.” Navegar,
Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997); see
also id. (courts must avoid “entangle[ment] in abstract disagree-
ments”) (quotation marks omitted). The dispute must be of
“sufficient immediacy and reality,’” Davis v. Liberty Mut. Ins.
Co., 871 F.2d 1134, 1137n.3 (D.C. Cir. 1989) (quoting Golden,
394 U.S. at 108-09), and not based on a ““hypothetical state of
facts,” Federal Express Corp. v. Air Line Pilots Ass’n, 67 F.3d
961, 963-64 (D.C. Cir. 1995) (quoting Aetna Life Ins. Co. of
Hartford, Conn. v. Haworth, 300 U.S. 227, 241 (1937)).
In Renne v. Geary, 501 U.S. 312 (1991), the Supreme Court
held non-justiciable (as unripe) a First Amendment challenge to
a California constitutional provision that barred political parties
from endorsing candidates for non-partisan offices. In so ruling,
the Court relied on the plaintiffs’ failure to allege a present
intention to endorse any particular candidate or that any
particular candidate desired to publicize such an endorsement.
See Renne, 501 U.S. at 321. The Court further relied on the lack
of an adequate factual record regarding “the nature of the
endorsement, how it would be publicized, or the precise
language [of the endorsement].” Jd. at 321-22. So too here. The
League has admitted that it lacks a present intention to broad-
cast any particular advertisement; nor has it alleged the interest
of any group in having it broadcast such an advertisement. And
nor has the League, necessarily, developed any factual record
8a
regarding, for example, the text of any such future advertise-
ment; where, when, and how the advertisement would be
broadcast; and/or the alternative funding opportunities that
might be available to the League in the given, hypothetical
situation. [*8]
The League offers three counter-arguments in support of the
justiciability of the non-Crossroads claims. First, it argues that
it has alleged a sufficiently concrete dispute by asserting that
any future advertisement would be “materially similar” to the
Crossroads advertisement. See League’s Opp. at 5-9 (filed June
30, 2006) (quoting Verified Complaint | 16). The League
explains that “materially similar, by definition, means that the
ads’ text, placement[,] and timing would put them in contraven-
tion of the electioneering communication prohibition, just as the
text, placement, and timing of the Crossroads ad put it in
contravention of the electioneering communication prohibi-
tion.” Jd. at 6-7. Under this logic, however, the non-Crossroads
portion of the League’s claims would simply devolve into a
facial challenge to the relevant statutory provision — a challenge
that the Supreme Court has already rejected. See McConnell v.
Federal Election Comm'n, 540 U.S. 93, 189-94, 203-11 (2003).
The League next relies on the decision of the United States
Court of Appeals for the District of Columbia in Navegar, Inc.
v. United States, 103 F.3d 994 (D.C. Cir. 1997). See League’s
Opp. at 2-4 (filed June 30, 2006). As the League notes, that
decision found adequately justiciable a pre-enforcement
challenge to the constitutionality of a particular statute. See
Navegar, 103 F.3d at 999-1001. In Navegar, however, the
disputed statute, which was newly enacted, prohibited the
manufacture of certain weapons of which the plaintiff was the
only manufacturer. See id. at 1000. Additionally, federal agents
had visited the plaintiff-manufacturer on the very day of the
statute’s enactment to inventory the plaintiffs already-manufac-
tured weapons, which were grandfathered under the statute. See
9a _
id. Here, the relevant provision of the Act does not specifically
target the League, and federal agents (e.g., Commission staff)
have not taken special notice of League activities. As such, the
present case [*9] is more analogous to the balance of the
Navegar decision — which part of the decision finds
nonjusticiable challenges by the plaintiff-manufacturer to
certain other, more generally applicable statutory provisions.
See id. at 1001-02.
Finally, the League argues that it faces a non-speculative
threat of prosecution because it has alleged a desire to broadcast
advertisements that, by definition, would violate the relevant
provision of the Act. See League’s Opp. at 9-12 (filed June 30,
2006). The League’s claims are speculative, however, in that it
has no current plans to run any particular advertisement in any
particular circumstances. This leaves the threat of enforcement
speculative, for many of the reasons discussed above. See, e.g.,
National Conference, 653 F.2d at 539-40.
What the League really seeks via its non-Crossroads claims
is for the court to promulgate a rule exempting all “grass roots
lobbying” — a phrase the League never defines — from the Act’s
electioneering communications provision.’ This court, however,
decides present disputes based on particular facts — and espe-
cially so where faced with an as-applied challenge, as here.
Absent a concrete dispute, this court lacks jurisdiction.’
?The Commission has recently considered a grassroots lobbying
exemption to the Act’s electioneering communications provision. See Audio
Recordings Attached to Agenda Items 3&4 at www.fec.gov/agenda/
2006/agenda20060829.shtml (visited Sept. 7, 2006). Noting it judicially, we
deem it of no consequence here.
>The Commission offers an advisory opinion process by which it will
offer parties, within sixty days, a ruling on whether it considers that the
broadcast of a particular advertisement, in the context of particularly
described circumstances, would run afoul of the Act’s electioneering
communications provision. See 2 U.S.C. § 437f; see also www.fec.gov/
10a
B. The Crossroads Claims.
Insofar as the League’s claims do pertain to the circum-
stances surrounding its efforts to [* 10] broadcast the Crossroads
advertisement ¢the “Crossroads claims”), those claims are moot
and not saved by the capable of repetition yet evading review
exception to that doctrine. Those claims are moot in that the
court could not order any effectual relief with regards to the
Crossroads advertisement: because the Senate vote referenced
in that advertisement has come and gone, injunctive or declara-
tory relief regarding the advertisement is no longer of use to the
League. Nor are the Crossroads claims capable of repetition in
that those claims were tied to the specific circumstances of the
- Crossroads advertisement. And, to any extent to which those
circumstances reasonably may repeat (e.g., by defining those
circumstances in the most general of terms), they do not
necessarily evade review.
1. The Crossroads Claims Are Moot.
The Crossroads claims are moot. A claim is moot where a
court, on that claim, “cannot grant ‘any effectual relief what-
ever.”” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per
curiam) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)); see
also Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631
(D.C. Cir. 2002) (“A case is moot if events have so transpired
that [a court] decision will neither presently affect the parties’
rights nor have a more-than-speculative chance of affecting
them in the future.”) (quotation marks omitted). Here, the
occurrence of the June 2006 Senate vote on the relevant
legislation leaves the court without power to provide effectual
relief with regard to the Crossroads advertisement; the window
of time in which the League could run that advertisement has
expired. “A federal court has no ‘power to render advisory
pages/brochures/ao.shtml (visited Sept. 7, 2006).
lla
opinions [or] . . . decide questions that cannot affect the rights
of the litigants in the case before them.”” Alliance for Democ-
racy v. Federal Election Comm’n, 335 F. Supp. 2d 39, 42
(D.D.C. 2004) (quoting National Black Police Ass'n v. District
of Columbia, [*11] 108 F.3d 346, 349 (D.C. Cir. 1997)).
2. The Crossroads Claims Do Not Qualify for the
“Capable of Repetition, Yet Evading Review”
Exception to the Mootness Doctrine.
Nor do the Crossroads claims qualify for the ‘ ee of
repetition, yet evading review” exception to the mootness
doctrine; those claims are neither “capable of repetition” nor
“evad[e] review.” The Supreme Court has recognized the
“capable of repetition, yet evading review” exception at least
since its decision in Southern Pacific Terminal Co. v. Interstate
Commerce Commission, 219 U.S. 498, 515 (1911). The
exception remains applicable, however, “only in exceptional
situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983), and only upon the satisfaction of “both [of its] prongs,”
Pharmachemie, 276 F.3d at 633. “To invoke this exception,
petitioners have the burden to demonstrate that [its require-
ments are met].” Public Utils. Comm'n of the State of Calif. v.
Federal Energy Regulatory Comm'n, 236 F.3d 708, 714 (D.C.
Cir. 2001); accord Southern Co. Servs., Inc. v. Federal Energy
Regulatory Comm'n, 416 F.3d 39, 43 (D.C. Cir. 2005).
In order for the League to demonstrate the applicability of
the “capable of repetition” prong, it must establish a “reason-
able expectation or a demonstrated probability that the same
controversy will] recur involving the same complaining party.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)
(quotation marks omitted) (emphasis added). The Supreme
Court has not held that a “mere physical or theoretical possibil-
ity” of repetition is sufficient to establish the exception’s
applicability because, if it were, “virtually any matter of short
duration would be reviewable.” /d. The alleged wrong at issue
12a
“must be defined in terms of the precise controversy it spawns.”
People for the Ethical Treatment of Animals, Inc. v. Gittens,
396 F.3d 416, 422-23 (D.C. Cir. 2005). Even so defined,.an as-
applied challenge to a statute may be [*12] “capable of repeti-
tion” for purposes of the exception. See Storer v. Brown, 415
U.S. 724, 737 n.8 (1974). “Challenges to rules governing
elections are the archetypal cases for application of [the capable
of repetition, yet evading review] exception.” LaRouche vy.
Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998). The exception,
however, does not automatically apply in such a circumstance.
See, e.g., Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 187-88 (1979) (dismissing as moot
challenge to authority of Chicago Board of Election Commis-
sioners to enter settlement agreement regarding ballot access
signature requirement). Here, the Crossroads claims are not
- “capable of repetition.” The Crossroads claims constitute an as-
applied, i.e., fact-specific, challenge to the relevant provision of
the Act. As such, those claims depended on the confluence of
specifics, including: a speaker that happened to be incorporated,
a speaker intent on using corporate funds (rather than political
action committee funds) to fund its proposed speech, a speaker
intent on using broadcast media to publish its speech, and a
speaker intent on mentioning a candidate for federal office in its
proposed speech and doing so within thirty days of that candi-
date’s primary election. In our opinion denying the League’s
preliminary injunction motion, we noted the relevance of
additional, “as-applied” facts, including the League’s reference
in its proposed speech to a past legislative action of Senator
Snowe as “‘[u]nfortunate[]” and the fact that the League had
previously sounded an enthusiastic note in discussing a poten-
tial electoral challenge to Senator Snowe. See May 9, 2006
Memorandum Opinion at 10. The chances of recurrence of this
perfect storm is small, thereby foreclosing application of the
“capable of repetition, yet evading review” exception. See _
13a
Public Utils. Comm’n, 236 F.3d at 714 (“The Supreme Court
has . . . required not [*13] merely a physical or theoretical
possibility of recurrence but a reasonable expectation if not a
demonstrated probability that petitioners will be subject to the
same action.”) (quotation marks and citation omitted); People
for the Ethical Treatment of Animals, 396 F.3d at 424 (“To
conclude that a dispute like this would arise in the future
requires us to imagine a sequence of coincidences toc long to
credit.”).
The League counters that a ruling that its Crossroads claims
are not capable of repetition would prevent similar claims from
ever gaining meaningful review: the claims routinely will be
mooted before full appellate review. This is not necessarily truc
— to any extent to which the League’s claims are capable of
repetition, they will not necessarily evade review. A plaintiff
could bring its lawsuit much earlier than did the League. A
corporate plaintiff, for example, might bring a lawsuit more
than a year in advance of an election if it had concrete plans to
broadcast within sixty days of the election a specific advertise-
ment, paid for with corporate funds, that mentioned a declared
candidate. Such a lawsuit would be ripe and stand a strong
chance of gaining full appellate review in light of the Act’s
requirement that the judiciary expedite consideration of such
challenges. See Act, § 403(a)(4) (“It shall be the duty of the
United States District Court for the District of Columbia and
the Supreme Court of the United States to advance on the
docket and to expedite to the greatest possible extent the
disposition of [any action challenging the constitutionality of
any provision of the Act].”); cf First Nat'l Bank of Boston v.
Bellotti, 435 U.S. 765, 774 (1978) (eighteen months an inade-
quate period of time for complete judicial review, in context of
a statute that did not require expedition).
l4a
Il. CONCLUSION
For the foregoing reasons, an accompanying order grants the
pending motions and [*14] otherwise dismisses the League’s
claims as moot.
/s/
Judith W. Rogers
UNITED STATES CIRCUIT JUDGE
/s/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
/s/
Colleen Kollar-Kotelly
UNITED STATES DISTRICT JUDGE
DATED: September 27, 2006
15a
[Headers omitted: state “Document 51 Filed 09/27/2006”
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE CHRISTIAN CIVIC _ )
LEAGUE OF MAINE, INC., )
Plaintiff, ) Civil Action No. 06-0614
V. ) (IWR, LFO, CKK)
) (Three-Judge Court)
FEDERAL ELECTION
COMMISSION,
Defendant,
and
FEINGOLD, CHRISTO-
PHER SHAYS, MARTIN
MEEHAN, AND TOM
ALLEN,
Intervenor-Defendants.
)
)
)
)
JOHN MCCAIN, RUSSELL )
)
)
)
)
)
ORDER
For the reasons explained in an accompanying memoran-
dum opinion, it is this 27th day of September, 2006 hereby:
ORDERED: that Intervenor-Defendants’ motion for partial
judgment on the pleadings [docket number 39] is GRANTED;
and it is further
ORDERED: that Defendant’s motion to dismiss in part
[docket number 37] is GRANTED; and it is further
ORDERED: that, Plaintiff having failed to show cause why
the balance of its claims [*2] should not be dismissed as moot,
all remaining claims are DISMISSED as moot.
16a
/s/
Judith W. Rogers
UNITED STATES CIRCUIT JUDGE
/s/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
/s/
Colleen Kollar-Kotelly
UNITED STATES DISTRICT JUDGE
17a
U.S. Constitution, First Amendment
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
2 U.S.C. § 434(f)(1)-(3)
§ 434. Reports
* * *
(f) Disclosure of electioneering communications.
(1) Statement required. Every person who makes a disburse-
ment for the direct costs of producing and airing electioneering
communications in an aggregate amount in excess of $ 10,000
during any calendar year shall, within 24 hours of each disclo-
sure date, file with the Commission a statement containing the
information described in paragraph (2).
(2) Contents of statement. Each statement required to be
filed under this subsection shall be made under penalty of
perjury and shall contain the following information:
(A) The identification of the person making the dis-
bursement, of any person sharing or exercising direction or
control over the activities of such person, and of the
custodian of the books and accounts of the person making
the disbursement.
(B) The principal place of business of the person
making the disbursement, if not an individual.
(C) The amount of each disbursement of more than
$200 during the period covered by the statement and the
identification of the person to whom the disbursement was
made.
(D) The elections to which the electioneering communi-
cations pertain and the names (if known) of the candidates
identified or to be identified.
18a
(E) If the disbursements were paid out of a segregated
bank account which consists of funds contributed solely by
individuals who are United States citizens or nationals or
lawfully admitted for permanent residence (as defined in
section 101(a)(20) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(20))) directly to this account for election-
eering communications, the names and addresses of all
contributors who contributed an aggregate amount of $
1,000 or more to that account during the period beginning
on the first day of the preceding calendar year and ending
on the disclosure date. Nothing in this subparagraph is to be
construed as a prohibition on the use of funds in such a
segregated account for a purpose other than electioneering
communications.
(F) If the disbursements were paid out of funds not
described in subparagraph (E), the names and addresses of
all contributors who contributed an aggregate amount of $
1,000 or more to the person making the disbursement
during the period beginning on the first day of the preceding
calendar year and ending on the disclosure date.
(3) Electioneering communication. For purposes of this
subsection —
(A) Jn general.
(i) The term “electioneering communication” means
any broadcast, cable, or satellite communication which
(I) refers to a clearly identified candidate for
Federal office;
(IT) is made within —
(aa) 60 days before a general, special, or
runoff election for the office sought by the
candidate; or
(bb) 30 days before a primary or preference
election, or a convention or caucus of a political
19a
party that has authority to nominate a candidate,
for the office sought by the candidate; and
(III) in the case of acommunication which refers
to a candidate for an office other than President or
Vice President, is targeted to the relevant electorate.
(ii) If clause (i) is held to be constitutionally insuffi-
cient by final judicial decision to support the regulation
provided herein, then the term “electioneering communi-
cation” means any broadcast, cable, or satellite commu-
nication which promotes or supports a candidate for that
office, or attacks or opposes a candidate for that office
(regardless of whether the communication expressly
advocates a vote for or against a candidate) and which
also is suggestive of no plausible meaning other than an
exhortation to vote for or against a specific candidate.
Nothing in this subparagraph shall be construed to
affect the interpretation or application of section
100.22(b) of title 11, Code of Federal Regulations.
(B) Exceptions. The term “electioneering communication”
does not include —
(i) a communication appearing in a news story,
commentary, or editorial distributed through the facili-
ties of any broadcasting station, unless such facilities
are owned or controlled by any political party, political
committee, or candidate;
(11) a communication which constitutes an expendi-
ture or an independent expenditure under this Act;
(iii) acommunication which constitutes a candidate
| debate or forum conducted pursuant to regulations
adopted by the Commission, or which solely promotes
such a debate or forum and is made by or on behalf of
the person sponsoring the debate or forum; or
(iv) any other communication exempted under such
regulations as the Commission may promulgate (consis-
20a
tent with the requirements of this paragraph) to ensure
the appropriate implementation of this paragraph,
except that under any such regulation a communication
may not be exempted if it meets the requirements of this
paragraph and is described in section 301(20){A)(ii1) (2
U.S.C. § 431(20)(A)(iii)).
(C) Targeting to relevant electorate. For purposes of
this paragraph, a communication which refers to a clearly
identified candidate for Federal office is “targeted to the
relevant electorate” if the communication can be received
by 50,000 or more persons —
(i) in the district the candidate seeks to represent, in
the case of a candidate for Representative in, or Dele-
gate or Resident Commissioner to, the Congress; or
(ii) in the State the candidate secks to represent, in
the case of a candidate for Senator.
2 U.S.C. § 441b(a)-(b)(2)
§ 441b. Contributions or expenditures by national banks,
corporations, or labor organizations
(a) It is unlawful for any national bank, or any corporation
organized by authority of any law of Congress, to make a
contribution or expenditure in connection with any election to
any political office, or in connection with any primary election
or political convention or caucus held to select candidates for
any political office, or for any corporation whatever, or any
labor organization, to make a contribution or expenditure in
connection with any election at which presidential and vice
presidential electors or a Senator or Representative in, or a
Delegate or Resident Commissioner to, Congress are to be
voted for, or in connection with any primary election or
political convention or caucus held to select candidates for any
of the foregoing offices, or for any candidate, political commit-
tee, or other person knowingly to accept or receive any contri-
21a
bution prohibited by this section, or any officer or any director
of any corporation or any national bank or any officer of any
labor organization to consent to any contribution or expenditure
by the corporation, national bank, or labor organization, as the
case may be, prohibited by this section.
(b) (1) For the purposes of this section the term “labor
organization” means any organization of any kind, or any
agency or employee representation committee or plan, in
which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
(2) For purposes of this section and section 12(h) of the
Public Utility Holding Company Act (15 U.S.C. 791(h)), the
term “contribution or expenditure” includes a contribution
or expenditure, as those terms are defined in section 301 (2
U.S.C. § 431), and also includes any direct or indirect
payment, distribution, loan, advance, deposit, or gift of
money, or any services, or anything of value (except a loan
of money by a national or State bank made in accordance
with the applicable banking laws and regulations and in the
ordinary course of business) to any candidate, campaign
committee, or political party or organization, in connection
with any election to any of the offices referred to in this
section or for any applicable electioneering communication,
but shall not include
(A) communications by a corporation to its stock-
holders and executive or administrative personnel and
their families or by a labor organization to its members
and their families on any subject;
(B) nonpartisan registration and get-out-the-vote
campaigns by a corporation aimed at its stockholders
and executive or administrative personnel and their
families, or by a labor organization aimed at its mem-
22a
bers and their families; and
(C) the establishment, administration, and solicita-
tion of contributions to a separate segregated fund to be
utilized for political purposes by a corporation, labor
organization, membership organization, cooperative, or
corporation without capital stock.
BCRA § 403(a), 116 Stat. at 113-14
Sec. 403. Judicial Review
(a) Special Rules for Actions Brought en Constitutional
Grounds. — If any action is brought for declaratory or injunctive
relief to challenge the constitutionality of any provision of this
Act or any amendment made by this Act, the following rules
shall apply:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard by 3-
judge court convened pursuant to section 2284 of title 28,
United States Code.
(2) A copy of the complaint shall be delivered promptly
to the Clerk of the House of Representatives and to the
Secretary of the Senate.
(3) A final decision in the action shall be reviewable
only by appeal directly to the Supreme Court of the United
States. Such appeal shall be taken by filing a notice of
appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, of the entry of the final decision.
(4) It shall be duty of the United States District Court
for the District of Columbia and the Supreme Court of the
United States to advance on the docket and to expedite to
the greatest possible extent the disposition of the action and
appeal.
23a
11 C.F.R. § 100.29
§ 100.29 Electioneering communication (2 U.S.C.
434(f)(3)).
(a) Electioneering communication means any broadcast,
cable, or satellite communication that:
(1) Refers to a clearly identified candidate for Federal
office;
(2) Is publicly distributed within 60 days before a general
election for the office sought by the candidate; or within 30
days before a primary or preference election, or a convention or
caucus of a political party that has authority to nominate a
candidate, for the office sought by the candidate, and the
candidate referenced is seeking the nomination of that political
party; and |
(3) Is targeted to the relevant electorate, in the case of a
candidate for Senate or the House of Representatives.
(b) For purposes of this section —
(1) Broadcast, cable, or satellite communication means a
communication that is publicly distributed by a television
station, radio station, cable television system, or satellite
system.
(2) Refers to a clearly identified candidate means that the
candidate’s name, nickname, photograph, or drawing appears,
or the identity of the candidate is otherwise apparent through an
unambipweus reference such as “the President,” “your Congress-
man,” or “the incumbent,” or through an unambiguous refer-
ence to his or her status as a candidate such as “the Democratic
presidential nominee” or “the Republican candidate for Senate
in the State of Georgia.”
(3)(i) Publicly distributed means aired, broadcast, cablecast
or otherwise disseminated for a fee through the facilities of a
television station, radio station, cable television system, or
satellite system.
(ii) In the case of a candidate for nomination for President
24a
or Vice President, publicly distributed means the requirements
of paragraph (b)(3)(i) of this section are met and the communi-
cation:
(A) Can be received by 50,000 or more persons in a State
where a primary election, as defined in 11 CFR 9032.7, is being
held within 30 days; or
(B) Can be received by 50,000 or more persons anywhere in
the United States within the period between 30 days before the
first day of the national nominating convention and the conclu-
sion of the convention.
(4) A special election or a runoff election is a primary
election if held to nominate a candidate. A special election or a
runoff election is a general election if held to elect a candidate.
(5) Targeted to the relevant electorate means the communi-
cation can be received by 50,000 or more persons —
(i) In the district the candidate seeks to represent, in the case
of a candidate for Representative in or Delegate or Resident
Commissioner to, the Congress; or
(ii) In the State the candidate seeks to represent, in the case
of a candidate for Senator.
(6)(i) Information on the number of persons in a Congres-
sional district or State that can receive a communication
publicly distributed by a television station, radio station, a cable
television system, or satellite system, shall be available on the
Federal Communications Commission’s Web site,
http://www.fcec.gov. A link to that site is available on the
Federal Election Commission's Web site, http://www. fec.gov.
If the Federal Communications Commission’s Web site
indicates that acommunication cannot be received by 50,000 or
more persons in the specified Congressional district or State,
then such information shall be a complete defense against any
charge that such communication constitutes an electioneering
communication, so long as such information is posted on the
Federal Communications Commission’s Web site on or before
25a
the date the communication is publicly distributed.
(ii) If the Federal Communications Commission’s Web site
does not indicate whether a communication can be received by
50,000 or more persons in the specified Congressional district
or State, it shall be a complete defense against any charge that
a communication reached 50,000 or more persons when the
maker of a communication:
(A) Reasonably relies on written documentation obtained
from the broadcast station, radio station, cable system, or
satellite system that states that the communication cannot be
received by 50,000 or more persons in the specified Congressio-
nal district (for U.S. House of Representatives candidates) or
State (for U.S. Senate candidates or presidential primary
candidates);
(B) Does not publicly distribute the communication on a
broadcast station, radio station, or cable system, located in any
Metropolitan Area in the specified Congressional district (for
U.S. House of Representatives candidates) or State (for U.S.
Senate candidates or presidential primary candidates); or
(C) Reasonably believes that the communication cannot be
received by 50,000 or more persons in the specified Congressio-
nal district (for U.S. House of Representatives candidates) or
State (for U.S. Senate candidates or presidential primary
candidates).
(7)(i) Can be received by 50,000 or more persons means —
(A) In the case of a communication transmitted by an FM
radio broadcast station or network, where the Congressional
district or State lies entirely within the station’s or network’s
protected or primary service contour, that the population of the
Congressional district or State is 50,000 or more; or
(B) In the case of a communication transmitted by an FM
radio broadcast station or network, where a portion of the
Congressional district or State lies outside of the protected or
primary service contour, that the population of the part of the
26a
Congressional district or State lying within the station’s or
network’s protected or primary service contour is 50,000 or
more; or
(C) In the case of a communication transmitted by an AM
radio broadcast station or network, where the Congressional
district or State lies entirely within the station’s or network’s
most outward service area, that the population of the Congres-
sional district or State is 50,000 or more; or
(D) In the case of a communication transmitted by an AM
radio broadcast station or network, where a portion of the
Congressional district or State lies outside of the station’s or
network’s most outward service area, that the population of the
part of the Congressional district or State lying within the
station’s or network’s most outward service area is 50,000 or
more; or
(E) In the case of a communication appearing on a televi-
sion broadcast station or network, where the Congressional
district or State lies entirely within the station’s or network’s
Grade B broadcast contour, that the population of the Congres-
sional district or State is 50,000 or more; or
(F) In the case of a communication appearing on a television
broadcast station or network, where a portion of the Congres-
sional district or State lies outside of the Grade B broadcast
contour ~
(1) That the population of the part of the Congressional
district or State lying within the station’s or network’s Grade B
broadcast contour is 50,000 or more; or
(2) That the population of the part of the Congressional
district or State lying within the station’s or network’s broadcast
contour, when combined with the viewership of that television
station or network by cable and satellite subscribers within the
Congressional district or State lying outside the broadcast
contour, is 50,000 or more; or
(G) In the-case of a communication appearing exclusively
27a
on a cable or satellite television system, but not on a broadcast
station or network, that the viewership of the cable system or
satellite system lying within a Congressional district or State is
50,000 or more; or
(H) In the case of a communication appearing on a cable
television network, that the total cable and satellite viewership
within a Congressional district or State is 50,000 cr more.
(ii) Cable or satellite television viewership is determined by
multiplying the number of subscribers within a Congressional
district or State, or a part thereof, as appropriate, by the current
national average household size, as determined by the Bureau
of the Census.
(iii) A determination that a communication can be received
by 50,000 or more persons based on the application of the
formula at paragraph (b)(7)(i)(G) or (H) of this section shall
create a rebuttable presumption that may be overcome by
demonstrating that —
(A) One or more cable or satellite systems did not carry the
network on which the communication was publicly distributed
at the time the communication was publicly distributed; and
(B) Applying the formula to the remaining cable and
satellite systems results in a determination that the cable
network or systems upon which the communication was
publicly distributed could not be received by 50,000 persons or
more.
(c) Electioneering communication does not include any
communication that:
(1) Is publicly disseminated through a means of communi-
cation other than a broadcast, cable, or satellite television or
radio station. For example, electioneering communication does
not include communications appearing in print media, including
a newspaper or magazine, handbill, brochure, bumper sticker,
yard sign, poster, billboard, and other written materials,
including mailings; communications over the Internet, including
28a
electronic mail; or telephone communications;
(2) Appears in a news story, commentary, or editorial
distributed through the facilities of any broadcast, cable, or
satellite television or radio station, unless such facilities are
owned or controlled by any political party, political committee,
or candidate. A news story distributed through a broadcast,
cable, or satellite television or radio station owned or controlled
by any political party, political committee, or candidate is
nevertheless exempt if the news story meets the requirements
described in 11 CFR 100.132(a) and (b);
(3) Constitutes an expenditure or independent expenditure
provided that the expenditure or independent expenditure is
required to be reported under the Act or Commission regula-
tions;
(4) Constitutes a candidate debate or forum conducted
pursuant to 11 CFR 110.13, or that solely promotes such a
debate or forum and is made by or on behalf of the person
sponsoring the debate or forum;
(5) Is not described in 2 U.S.C. 431(20)(A)(itt) and is paid
for by a candidate for State or local office in connection with an
election to State or local office; or
(6) Is paid for by any organization operating under section
501(c)(3) of the Internal Revenue Code of 1986. Nothing in this
section shall be deemed to supersede the requirements of the
Internal Revenue Code for securing or maintaining 501(c)(3)
Status.
11 C.F.R. § 114.2(a)-(b)
§ 114.2 Prohibitions on contributions and expenditures.
(a) National banks and corporations organized by authority
of any law of Congress are prohibited from making a contribu-
tion, as defined in 11 CFR 114.1(a), in connection with any
election to any political office, including local, State and
Federal offices, or in connection with any primary election or
29a
political convention or caucus held to select candidates for any
political office, including any local, State or Federal office.
National banks and corporations organized by authority of any
law of Congress are prohibited form making expenditures as
defined in 11 FR 114.1(a) for communications to those outside
the restricted class expressly advocating the election or defeat
of one or more clearly identified candidate(s) or the candidates
ofa clearly identified political party, with respect to an election
to any political office, including any local, State or Federal
office.
(1) Such national banks and corporations may engage in the
activities permitted by 11 CFR part 114, except to the extent
that such activity is foreclosed by provisions of law other than
the Act.
(2) The provisions of 11 CFR part 1 14 apply to the activities
of a national bank, or a corporation organized by any law of
Congress, in connection with local, State and Federal elections.
(b)(1) Any corporation whatever or any labor organization
is prohibited from making a contribution as defined in 11 CFR
part 100, subpart B. Any corporation whatever or any labor
organization is prohibited from making a contribution as
defined in 11 CFR 114.1(a) in connection with any Federal
election.
(2) Except as provided at 11 CFR 114.10, corporations and
labor organizations are prohibited from:
(i) Making expenditures as defined in 11 CFR part 100,
subpart D;
(ii) Making expenditures with respect to a Federal election
(as defined in 11 CFR 114.1(a)), for communications to those
outside the restricted class that expressly advocate the election
or defeat of one or more clearly identified candidate(s) or the
candidates of a clearly identified political party; or —
(iii) Making payments for an electioneering communication
to those outside the restricted class. However, this paragraph
Genet
30a
(b)(2)(iii) shall not apply to State party committees and State
candidate committees that incorporate under 26 U.S.C.
527(e)(1), provided that:
(A) The committee is not a political committee as defined
in 11 CFR 100.5;
(B) The committee incorporated for liability purposes only;
(C) The committee does not use any funds donated by
corporations or labor organizations to make clectioneering
communications; and
(D) The committee complies with the reporting require-
ments for electioneering communications at |! CFR part 104.
11 C.F.R. § 114.14
§ 114.14 Further restrictions on the use of corporate and
labor organization funds for electioneering communi-
cations.
(a)(1) Corporations and labor organizations shall not give,
disburse, donate or otherwise provide funds, the purpose of
which is to pay for an electioneering communication, to any
other person.
(2) A corporation or labor organization shall be deemed to
have given, disbursed, donated, or otherwise provided funds
under paragraph (a)(1) of this section if the corporation or labor
organization knows, has reason to know, or willfully blinds
itself to the fact, that the person to whom the funds are given,
disbursed, donated, or otherwise provided, intended to use them
to pay for an electioneering communication.
(b) Persons who accept funds given, disbursed, donated or
otherwise provided by a corporation or labor organization shall
not:
(1) Use those funds to pay for any clectioneering communi-
cation; or
(2) Provide any portion of those funds to any person, for the
purpose of defraying any of the costs of an electioneering
3la
communication.
(c) The prohibitions at paragraphs (a) and (b) of this section
shall not apply to funds disbursed by a corporation or labor
organization, or received by a person, that constitute --
(1) Salary, royalties, or other income earned from bona fide
employment or other contractual arrangements, including
pension or other retirement income;
(2) Interest earnings, stock or other dividends, or proceeds
from the sale of the person’s stocks or other investments; or
(3) Receipt of payments representing fair market value for
goods provided or services rendered to a corporation or labor
organization.
(d)(1) Persons who receive funds from a corporation or a
labor organization that do not meet the exceptions of paragraph
(c) of this section must be able to demonstrate through a
reasonable accounting method that no such funds were used to
pay any portion of an electioneering communication.
(2) Any person who wishes to pay for electioneering
communications may, but is not required to, establish a
segregated bank account into which it deposits only funds
donated or otherwise provided by individuals, as described in
11 CFR part 104. Use of funds exclusively from such an
account to pay for an electioneering communications shall
satisfy paragraph (d)(1) of this section. Persons who use funds
exclusively from such a segregated bank account to pay for an
electioneering communication shal! be required to only report
the names and addresses of these individuals who donated or
otherwise provided an amourii aggregating $1,000 or more to
the segregated bank account, aggregating since the first day of
the preceding calendar year.
32a
[Headers omitted: state “Document 53 Filed 10/06/2006”
United States District Court
District of Columbia
The Christian Civic
League of Maine, Inc.,
Plaintiff,
v. Cause No. 1:06CV00614
Federal Election Commis- | (JWR, LFO, CKK)
sion,
Defendant, THREE-JUDGE COURT
and
John McCain et al.,
Intervenor-Defendants. as
Notice of Appeal of Dismissal to U.S. Supreme Court
Plaintiff the Christian Civic League of Maine, Inc. (“the
League”) hereby gives notice that it appeals to the United States
Supreme Court from this Court’s Order (Docket #51, dated and
filed September 27, 2006) granting Intervenor-Defendants’
motion for partial judgment on the pleadings and Defendant’s
motion to dismiss in part and dismissing the League’s remain-
ing claims as moot.
Appeal is taken pursuant to 28 U.S.C. § 1253 (providing for
direct appeal to the Supreme Court from decisions of three-
judge courts denying a permanent injunction) and Section
403(a)(3) of the Bipartisan Campaign Reform Act of 2002, 116
Stat. 114 (Public Law 107-155) (providing for direct appeal to
the Supreme Court of the “final decision” of this District
Court). [*2]
33a
Respectfully submitted,
/s/ James Bopp, Jr.
M. Miller Baker, James Bopp, Jr.,
D.C. Bar # 444736 D.C. Bar # CO0041
Michael S. Nadel, - Bopp, Coleson & Bostrom
D.C. Bar # 470144 1 South 6th Street
MCDERMOTT WILL & EMERY Terre Haute, IN 47807-3510
LLP 812/232-2434 telephone
600 Thirteenth Street, NW 812/234-3685 facsimile
Washington, D.C. 20005- Lead Counsel for Plaintiff
3096
202/756-8000 telephone
202/765-8087 facsimile
Local Counsel for Plaintiff
MOTION
No. 06-589
IN THE
Supreme Court of the United States
THE CHRISTIAN CIVIC LEAGUE OF MAINE, INC.,
Appellant,
v.
FEDERAL ELECTION COMMISSION,
Appellee,
and
JOHN MCCAIN, RUSSELL FEINGOLD, CHRISTOPHER SHAYS,
MARTIN MEEHAN, AND TOM ALLEN,
Intervenor-Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MOTION TO AFFIRM
OF INTERVENOR-APPELLEES SENATOR JOHN
MCCAIN, SENATOR RUSSELL FEINGOLD,
REPRESENTATIVE CHRISTOPHER SHAYS,
REPRESENTATIVE MARTIN MEEHAN, AND
REPRESENTATIVE TOM ALLEN
RoGER M. WITTEN SETH P. WAXMAN
WILMER CUTLER PICKERING Counsel of Record
HALE AND DORR LLP RANDOLPH D. Moss
309 Park Avenue WILMER CUTLER PICKERING
New York, NY 10022 HALE AND DORR LLP
(212) 2330-8800 1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
Additional Couwwsel Listed On Tnside Corer
TREVOR POTTER
J. GERALD HEBERT
PAULS. RYAN
CAMPAIGN LEGAL CENTER
1640 Rhode Island Ave., NW
Suite 650
Washington, DC 20036
(202) 736-2200
DONALD J. SIMON
SONOSKY, CHAMBERS,
SACHSE, ENDRESON &
PERRY, LLC
1425 K Street, NW
Suite 600
Washington, DC 20005
(202) 682-0240
CHARLES G. CURTIS, JR.
DAVID ANSTAETT
HELLER EHRMAN LLP
One East Main Street
Suite 201
Madison, WI 53703
(608) 663-7460
DANIEL R. ORTIZ
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
DSO Massie Road
Charlottesville, VA 22903
(454) 924-5127
FRED WERTHEIMER
DEMOCRACY 21
1875 I Street, NW
Suite 500
Washington, DC 20006
(202) 429-2008
ALAN B. MORRISON
CROWN QUADRANGLE
559 Nathan Abbott Way
Stanford, CA 94305-8610
(650) 725-9648
BRADLEY S. PHILLIPS
GRANT A. DAVIS-DENNY
MUNGER, TOLLES &
OLSON LLP
355 South Grand Avenue
35th Floor
Los Angeles, CA 90071
(215) 683-9100
- Designation for affiliation purposes only.
QUESTIONS PRESENTED
1. Whether the three-judge district court correctly
concluded that plaintiffs claim that Title II of the Bipartisan
Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155,
116 Stat. 81, is moot and not “capable of repetition, yet evad-
ing review” in the particular circumstances present here.
2. Whether the three-judge district court correctly
concluded that plaintiff's unspecified claim that Title II of
BCRA is unconstitutional as applied to advertisements that
it might someday decide to run is not ripe.
(i)
TABLE OF CONTENTS
Page
GF ee eB PRR E ES TGR? cesccsscnincrcescacesentinconcsicapuiimaniinecnientaiions i
BAe FEE Te artinenttcenctasiceesceintaicectavatinsiviatininoenan iv
og 8 1 ty SERRE eNO eee ame ORM TEN 1
2g 68 > SRSA SIREN Cromer ie SALON EIT OAC RIDE 3
pO og PTR ee eee eee OE Ne Oo SERRATE Ne Oe OE aD 10
I. PLENARY REVIEW IS UNWARRANTED AND
THE UNANIMOUS DECISION OF THE THREE-
JUDGE COURT SHOULD BE SUMMARILY AF-
ERS SSI Es Nc nat ty Sie ey EN RSS PINE CRO Marten 10
Il. IF THIS COURT FINDS THE CLAIMS TO BE
JUSTICIABLE, IT SHOULD REMAND TO THE
THREE-JUDGE COURT IN THE FIRST _ IN-
STANCE FOR A DECISION ON THE MERITS...............0000 17
Ra RII wre i ren IIa NM ESO IONS 19
(ili)
iv
TABLE OF AUTHORITIES
CASES
Page(s)
Calderon v. Moore, 518 U.S. 149 (1996) .........cccccccssssrssssssceres 14
Christian Civic League of Maine, Inc. v. FEC, 433
FF 5 RE. Ue ek CAEP A: GN srccsnincseeensaininassccnnicttnnnrteipuy 6,7
DeFunis v. Odegaard, 416 U.S. 312 (1974) 2.2... eeseeseeeeeeeeees 14
Honig v. Students of California School for the
BIO, AFR TE TE, BO LD essssew cv enctivssientonesaasicntiapetaiacn 2,13
Lewis v. Continental Bank Corp., 494 U.S. 472
CRIPUEED sasticinsivsienstechstcnlilitc lahat depicegbaaninaaialaeikeeolaniand 11,15
McConnell v. FEC, 540 U.S. 93 (2008)..........ccececcereeee 2,3, 4, 12
Murphy v. Hunt, 455 U.S. 478 (1982) .....scsccsssereeseeee 10, 14, 15
National Collegiate Athletic Ass’n v. Smith, 525
Be Se iiciniesocipiiaiicccascassitsteainigs nbllcilbaiininlieatisadaibadeiea 17
Public Utilities Commission of California v.
FERC, 100 F.3d 1451 (9th Cir. 1996).............scccceccesseesees 15
Renne v. Geary, 501 U.S. 312 (1991)...........ccccscrsscsoscsccessess 1, 32
Roberts v. Galen of Virginia, Inc., 525 U.S. 249
IT Wicdicesieiendcledstiapelcniaiiphancisasadeidonaibasiiaiasetetdanaiinesdiia 17
Sanks v. Georgia, 401 US. 144 (1971) .......c.scsccscceccsssceeseerseceee 17
Spencer v. Kemma, 523 U.S. 1 (1998) ....scssccsssssesssssessssesseres 14, 16
United States v. Bestfoods, 524 U.S. 51 (1998)... esceseeeeees 17
Weinstein v. Bradford, 423 U.S. 147 (1975)... .eeeeseseeceeeeeees 14
Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct.
TN icici hatin slinibiteg hice eassliiiaisiietaniiassinabia 4,17, 18
Wisconsin Right to Life, Inc. v. FEC, No. 04-1260,
2006 WL 3746669 (D.D.C. Dec. 21, 2006)......... 3, 12, 15, 16
STATUTES AND REGULATIONS
BTS eR Fs) ERP RARER mine aN ER EMS ROE OR MCT NEN 6
te I ieiviicicstnenicsinsiesacitisicicineibaaacnebichichidiaahietttasnsiitlabiobenaia 3
ee Oe is isdiectaciiccietisashissianbibitodchaiinciteniapscasadinliacupitiaiebd 3
Br ee a Witinntvigsigurtidin ania dniteasianantiiniartmasieiiniia 3
ee wiinsccesinccanehl in keene eueinchosiinisipiiestctonilaniais 6
G7 Fed. Reg. 66,190 (Oct. 23, 2O0G2Z).......cercceceoceorecssvervoreeesorseoseoss 18
Vv
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES
Stern & Gressman, Supreme Court Practice (8th
0 Bee cestensastinenarvecnesditchntshicnicnadbiaisangaenetiitemebininniaastinins 10
17 Wright & Miller, Federal Practice and Proce-
UTS Ge OE, Gee it ecestctntcniviterninttnitiitinminninnt 17
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INTRODUCTION
In this appeal, plaintiff Christian Civic League of Maine,
Inc. (CCL) challenges the unanimous decision of a three-
judge district court dismissing its complaint for declaratory
and injunctive relief for lack of a justiciable case or contro-
versy within the meaning of Article III of the Constitution.
CCL brought an as-applied constitutional challenge to
the electioneering communications provisions of the Federal
Election Campaign Act (FECA or Act), as amended by the
Bipartisan Campaign Reform Act of 2002 (BCRA). It al-
leged that the Act unconstitutionally prohibited CCL from
using its general treasury funds to broadcast, within 30 days
of Maine’s June 13, 2006 Republican primary election, a radio
advertisement that referred to a clearly identified candidate
in that election and criticized her position on a controversial
issue (the “Crossroads” advertisement). CCL further al-
leged that the Act unconstitutionally restricted its ability to
run, at some unspecified time in the future, unspecified
“grassroots lobbying” ads that are “materially similar” to
the “Crossroads” advertisement and relate potentially to a
“range of issues.”
CCL initially sought a preliminary injunction permit-
ting it to finance broadcasts of the “Crossroads” advertise-
ment with unrestricted funds from May 14, 2006, when the
ad became an “electioneering communication” under FECA,
until June 5, 2006, the scheduled date of a Senate vote on the
federal Marriage Protection Amendment, which CCL’s ad-
vertisement discussed. The three-judge district court de-
clined to grant the preliminary injunction, and this Court, on
May 15, 2006, denied CCL’s request to expedite its appeal of
that order. On June 7, 2006, the Senate considered and de-
feated the Marriage Protection Amendment. CCL never
ran the proposed advertisement, and it has expressly dis-
avowed any concrete plan to do so in the future. Nonethe-
less, it sought immediate review in this Court, which dis-
missed CCL’s initial appeal as moot on October 2, 2006.
Meanwhile, CCL continued to seek declaratory and
permanent injunctive relief before the three-judge district
2
court. After briefing and argument, the three-judge court
concluded that CCL’s claims with respect to the “Cross-
roads” advertisement were moot, and that they were not
saved by the “capable of repetition, yet evading review” ex-.
ception. As to CCL’s claim relating to hypothetical non-
“Crossroads” advertisements that CCL might seek to run at
some unspecified date in the future, the three-judge court
concluded that CCL’s claim was not ripe.
These conclusions were correct. The purported injury
that CCL sought to avoid—losing the opportunity to broad-
cast its “Crossroads” advertisement using the corporation’s
general treasury funds prior to the Senate vote—has passed.
This Court cannot turn back the clock, nor can it somehow
undo the alleged “irreparable injury” that CCL sought to
avoid through emergency relief. Because “[n]o order of this
Court could affect the parties’ rights with respect to the in-
junction [it is] called upon to review,” Honig v. Students of
Cal. Sch. for the Blind, 471 U.S. 148, 149 (1985) (per curiam),
there is no justiciable case or controversy under Article ILI.
Nor is there any basis for applying the “capable of repeti-
tion, yet evading review” exception to CCL’s request. CCL
has failed to establish that the same controversy involving
the same parties is likely to recur in the foreseeable future.
To the extent CCL seeks relief to run yet-to-be-defined
“non-Crossroads” ads at some unspecified date in the future,
that claim is too speculative and hypothetical to satisfy the
ripeness requirement. CCL has admitted that it has no con-
crete plans to run any future ads, and CCL’s allegation that
it might run ads “materially similar” to the “Crossroads” ad-
vertisement does not make CCL’s claim sufficiently con-
crete. As the district court recognized, CCL’s claim as to
future ads is so broad and amorphous that it amounts to
nothing more than a facial challenge to BCRA—a challenge
that this Court rejected in McConnell v. FEC, 540 U.S. 93
(2003).
Because plenary review of the three-judge court’s dis-
missal would not resolve any substantial federal question,
this Court should summarily affirm the decision below. CCL
3
identifies no basis for this Court to revisit the well-settled
mootness and ripeness rules that the three-judge district
court applied in this case. The three-judge court correctly
applied those rules in concluding that CCL’s claim relating
to the “Crossroads” advertisement was moot and not “capa-
ble of repetition,” and that its claim relating to future adver-
tisements was not ripe for adjudication.
Finally, even were this Court to conclude that some
portion of CCL’s claims were justiciable, it should resist
CCL’s invitation to reach the merits of those claims in the
absence of a developed factual record, lower court briefing of
the issue, or a lower court opinion addressing the merits of
CCL’s claims. CCL’s request that this Court reach the mer-
its of its as-applied challenge—notwithstanding the absence
of lower court consideration—is particularly unnecessary
given that a different three-judge district court recently ad-
dressed the merits of a similar challenge. Wisconsin Right
to Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669 (D.D.C.
Dec. 21, 2006). As a result, this Court will likely have the
opportunity to entertain plenary review of an as-applied
challenge to Title II of BCRA and to do so in a case with a
factual record and lower court consideration of the merits of
the dispute. This Court should summarily affirm the lower
court’s decision.
STATEMENT
1. The “electioneering communication” provisions con-
tained in FECA prohibit corporations and labor unions from
using their general treasury funds to pay for any “broadcast,
cable, or satellite communication” that “refers to a clearly
identified candidate for Federal office” and that is broadcast
within either 30 days of a federal primary election or 60 days
of a general election in the jurisdiction in which the named
candidate is running. 2 U.S.C. §§ 441b(2), 434(f)(3); see also
11 C.F.R. § 100.29 (defining “electioneering communica-
tion”). This Court upheld the constitutionality of those pro-
visions against a facial challenge in McConnell v. FEC, 540
U.S. 93 (2003). Noting its longstanding “respect for the leg-
islative judgment that the special characteristics of the cor-
4
porate structure require particularly careful regulation,” the
Court “easily” concluded that compelling governmental in-
terests support the prohibition on electioneering communi-
cations financed with general corporate funds. Jd. at 205 (in-
ternal quotation marks omitted).
In Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016
(2006) (per curiam), this Court clarified that its decision in
McConnell upholding the electioneering communications
provisions against facial attack “did not purport to resolve
future as-applied challenges.” /d. at 1018. The Court there-
fore left open the possibility that constitutional issues might
arise from application of those provisions to “particular
communications.” Jd. at 1017.
2. a. CCL commenced this action on April 3, 2006. Ac-
cording to the complaint, CCL intended to broadcast in early
June 2006 a radio advertisement that referred to Senator
Olympia Snowe, a candidate in Maine’s June 13, 2006 Repub-
lican primary. The advertisement, entitled “Crossroads,”
began by warning listeners that “[mJarriage between a man
and a woman has been challenged across this country and
could be declared unconstitutional at any time by rogue
judges.” J.S. 1 n.1 (quoting Compl. Ex. A). The advertise-
ment then condemned Senator Snowe’s position on that is-
sue by stating that she “{uJjnfortunately” “voted against the
Marriage Protection Amendment two years ago.” /d. The
advertisement continued by urging listeners to “call Sens.
Snowe and Collins immediately and urge them to support
the Marriage Protection Amendment when it comes to a
vote in early June.” Jd.
The complaint conceded that this advertisement consti-
tuted an “electioneering communication” within the meaning
of FECA, and therefore that the law prohibited CCL from
using general treasury funds to finance the advertisement’s
broadcast within 30 days of the primary election. Compl.
114. CCL, however, sought a judgment declaring those
provisions unconstitutional as applied to the advertisement.
CCL also sought preliminary and permanent injunctive re-
lief permitting it to broadcast the “Crossroads” ad to Maine
5
voters until.the Senate’s June 2006 vote on the Marriage
Protection Amendment. Id. at 13.
The complaint also alleged that CCL intends to run ad-
vertisements “materially similar” to the “Crossroads” ad-
vertisement “before future primary and general elections in
Maine” (Compl. 4 16) and sought declaratory and injunctive
relief with respect to such hypothetical “electioneering
communications by CCL that constitute grass-roots lobby-
ing” (id. at 13). Neither the complaint nor the record con-
tains any indication of the content of any such future ads or
the circumstances in which CCL might wish to broadcast
them.
b. With respect to the request for preliminary relief,
the three-judge court permitted abbreviated discovery, last-
ing approximately one week and including one deposition.
The few facts that emerged in that period revealed that
CCL’s interest in sponsoring the “Crossroads” ad arose only
after it was contacted by another group, Focus on the Fam-
ily. On March 24, 2006, that organization sent to a broad list
of groups nationwide an email solicitation entitled “Possible
legal action needed.” FEC Opp. to Mot. for Prelim. Inj. Ex.
B. The email stated that it was sent to certain groups “be-
cause [they were] in [states] that could be affected by the
McCain-Feingold restrictions on Marriage Amendment lob-
bying ads that target U.S. senators who are on the ballot.”
Id. Attached to the email was a message from counsel, who
offered to seek a federal court injunction at no charge on be-
half of “any- group” that would “step up” by running a “grass
roots lobbying” ad during the electioneering communications
neriod. Jd. Counsel further noted that “(t]his may even in-
-volve an appeal to the U.S. Supreme Court (which would
result in a landmark ruling.)” Jd. The email directed any
recipient “willing to assist in this matter” to contact counsel
directly. Id.
Within an hour of receiving that email, CCL’s executive
director responded to counsel, stating, “I will run an ad in
that period of time mentioning Olympia Snowe.” FEC Opp.
to Mot. for Prelim. Inj. Ex. C. Focus on the Family then
6
sent CCL “hypothetical” information on advertising rates in
Maine radio markets and also supplied CCL with the text of
the “Crossroads” ad that was attached to the complaint CCL
filed several days later in the court below. Heath Dep., FEC
Opp. to Mot. for Prelim. Inj. Ex. A 46, 51, 59; Ex. D (“Heath
Dep.”).
On April 13, 2006—ten days after this suit com-
menced—Mr. Heath testified that CCL lacked the approxi-
mately $4,000 it estimated would be required to broadcast
the “Crossroads” advertisement, had done nothing to record
or produce it, had not contacted a single radio station about
buying time to broadcast the ad, and did not know where or
how often the ad would run. Heath Dep. 50-52, 54, 65-68, 70.
Kight days later, CCL filed a supplemental declaration of
Mr. Heath stating that CCL had located a single donor will-
ing to contribute approximately $3,900 to finance the ad’s
broadcast. Heath Decl., Attachment to Pl.’s Reply in Supp.
of Mot. for Prelim. Inj. 5. Federal law permits a separate
segregated fund to accept contributions of up to $5,000 from
a single member, and CCL identified no law that would have
precluded it from establishing a separate segregated fund to
accept the $3,900 contribution.’ Had it done so, that affili-
ated entity could have paid for the advertisements at issue.
3. On May 9, 2006, following expedited briefing, the
three-judge district court unanimously denied CCL’s motion
for a preliminary injunction. The court concluded, as to the
“Crossroads” advertisement, that CCL had not demon-
strated a likelihood of success on the merits because,
“{pjarticularly after McConnell, there can be no question
that the governmental interest in maintaining the integrity
of the electoral process is compelling” and FECA is “nar-
rowly tailored” to serve that interest “with respect to
{CCL’s] proposal to pay for the broadcast of its advertise-
ment from its corporate funds.” Christian Civic League of
Me., Inc. v. FEC, 433 F. Supp. 2d 81, 88 (D.D.C. 2006). The
* See 2 U.S.C. § 441a(a iC); LL CLF.R. § 110.1(b).
7
court further found that CCL failed to establish irreparable
injury because CCL could easily comply with FECA (by,
among other things, directing the single donation for the
- “Crossroads” advertisement through a separate segregated
fund or choosing a different medium for its advertisement)
and granting preliminary relief would disserve the public
interest by injuring the Commission in its efforts to enforce
federal law. Jd. at 89. As to future non-”Crossroads” adver-
tisements to be run at some unspecified time in the future,
the court found an injunction unwarranted because CCL had
failed to identify the content of such future communications
or to establish any necessity for preliminary relief. Id. at 84
n.1.
4. a. CCL noticed an interlocutory appeal on May 11,
2006, and the following day filed both a jurisdictional state-
ment and a request that this Court review the decision be-
low on a highly expedited schedule. Such expedition was
necessary, CCL argued, because if the appeal were heard in
the usual course, “the League will lose its opportunity to
speak before the anticipated June 5 Senate vote [on the
Federal Marriage Protection Amendment] forever.” 05-1447
J.S. 12. Asserting that it hoped to run the advertisement
prior to the vote, CCL contended that it would be irrepara-
bly injured if it could not obtain a final decision before that
date. /d. at 28. This Court denied the motion to expedite on
May 15, 2006.
b. On May 22, 2006, pursuant to an order issued in con-
junction with the denial of preliminary injunctive relief, the
parties jointly submitted a statement containing their re-
spective positions on further administration of the case.
Both the FEC and Intervenor-Defendants urged the court
to “use the time now available to build a [full factual] record
so that this case is ready for a final decision at the earliest
feasible time.” Joint Report Pursuant to May 9, 2006 Order
5. CCL sought a stay of the three-judge court proceedings,
asserting that because “CCL presently has no concrete plans
to run ads” in the future, “there is no longer any pressing
need” for “resolution by this Court of the questions pre-
8
sented.” Jd. at 8 The three-judge district court denied
CCL’s request for a stay and, following a status conference
on June 5, 2006, ordered the parties to file discovery plans.
c. Before the court acted on the resulting proposals,’ it
sua sponte issued an order expressing its view that “the
‘Crossroads’ portion of the case . . . appears moot unless the
‘capable of repetition{,| yet evading review’ exception ap-
plies.” June 23, 2006 Order 1. “That exception may not ap-
ply,” the court further suggested, “because the ‘Crossroads’
advertisement portion of the case—particularly in this fact-
centered, as-applied challenge—may not be ‘capable of repe-
tition.”” Jd. The court therefore ordered CCL to “show
cause ... why the ‘Crossroads’ portion of the case should not
be dismissed as moot” and directed the FEC and Interve-
nor-Defendants to file papers addressing the same issue. /d.
at 2.
CCL argued in response that the “Crossroads” claim
was not moot because it fell within the “capable of repeti-
tion, yet evading review” exception, contending that it in-
tended in the future to run what it called “materially simi-
lar” ads. Pl.’s Resp. to June 23, 2006 Order 1. CCL could
specify nothing about those hypothetical advertisements,
however, and acknowledged that it had no concrete plans to
develop or broadcast them. Instead, CCL stated that by
“materially similar” ads, it “means that the ads’ text, place-
ment and timing would put them in contravention of the
electioneering communication prohibition, just as the text,
placement, and timing of the Crossroads ad put it in contra-
vention of the electioneering communication prohibition.”
Pl.’s Opp. to FEC Mot. to Dismiss 6-7.
> The FEC and Intervenor Defendants proposed two alternative
schedules: either six or nine weeks of discovery commencing on June 26,
2006, followed by summary judgment briefing on an expedited basis.
Joint Report Pursuant to June 5, 2006 Order 3-5. CCL reiterated that
because it “currently has no specific plans to run [any ‘grassroots lobby-
ing’| ads between now and election day” (id. at 2), “radical expedition is no
longer warranted in this case” (id. at 7).
9
In their response to the district court’s directive to ad-
dress the mootness issue, Intervenor-Defendants observed
that CCL had not made a sufficient showing that the contro-
versy was “capable of repetition.”’ As a threshold matter,
CCL had conceded on more than one occasion that it had no
concrete plans to run any advertisements beyond the “Cross-
roads” advertisement about any policy issue. Intervenor-
Defs.’ Resp. to June 23, 2006 Order 4-5. Intervenor-
Defendants did not rule out the possibility that the present
controversy would be capable of repetition if CCL demon-
strated the existence of a real prospect that it would run the
“Crossroads” advertisement or a sufficiently similar adver-
tisement in “materially similar circumstances” sometime in the
foreseeable future. Jd. at 6. What plainly did not suffice, how-
ever, was CCL’s general allegation of an intent to run adver-
tisements that are “materially similar” to the “Crossroads” ad-
vertisement only in the sense that they meet FECA’s defini-
tion of an “electioneering communication”: such allegations
would support only the facial challenge that this Court already
resolved in McConnell and therefore could not establish that
the as-applied challenge presented by the “Crossroads” claim
was “capable of repetition.” Jd. at 6-7 & n.1; Aug. 8, 2006 Tr.
18-20. And, where CCL only sought to run its advertisement
after receiving a solicitation from a third party, and where it
conceded that it had no concrete plans for the future, CCL
could not show that the present dispute would recur. Interve-
nor-Defs.’ Resp. to June 23, 2006 Order 7-8.
On September 27, 2006, the three-judge court granted
the Partial Motion to Dismiss of Defendants and the Partial
Motion for Judgment on the Pleadings of Intervenor-
Defendants. The court concluded that with respect to the
non-’Crossroads” advertisement, CCL’s claims were “not
ripe and/or too speculative and hypothetical to be justicia-
* The FEC likewise indicated in its submission that, although it was
a difficult and “close question” whether the “capable of repetition, yet
evading review” exception applied to the “Crossroads” claims (FEC Resp.
to June 23, 2006 Order 3; Aug. &, 2006 Tr. 11), the exception did not apply.
10
ble.” J.S. App. 2a. And, as to the “Crossroads” advertise-
ment, the court explained that that claim was “moot and not
saved by the ‘capable of repetition, yet evading review’-ex-
ception to that doctrine.” Jd. Applying established Supreme
Court precedent, the three-judge court found that CCL had
not established a “reasonable expectation or a demonstrated
probability that the same controversy will recur involving
the same complaining party.” Jd. at lla (quoting Murphy v.
Hunt, 455 U.S. 478, 482 (1982) (per curiam) (internal quota-
tion marks omitted)). The three-judge court further ex-
plained that even if CCL had satisfied the “same contro-
versy” prong of the analysis, it had not demonstrated that
the type of controversy would evade review. Accordingly, it
concluded that CCL’s claims with respect to the “Cross-
roads” advertisement were moot. /d. at 13a.
ARGUMENT
PLENARY REVIEW IS UNWARRANTED AND THE UNANTI-
MOUS DECISION OF THE THREE-JUDGE COURT SHOULD
BE SUMMARILY AFFIRMED
Plenary review of the three-judge court’s dismissal
would not resolve any substantial question as to the consti-
tutionality of Title II] of BCRA, but instead would turn on
settled principles under the ripeness and mootness doc-
trines. Indeed, the decision below was based solely on the
ground that the case is not justiciable, and the three-judge
district court reached each of its conclusions by properly ap-
plying firmly established Supreme Court precedent to the
unique facts of this case. This Court should not revisit these
settled doctrines but instead should summarily affirm the
three-judge district court’s dismissal of both CCL’s claim
regarding hypothetical future advertisements and CCL’s
claim regarding the advertisement it sought to run in the
Spring of 2006."
CCL’s right to appeal to this Court does not immunize it from the
requirement of demonstrating a substantial constitutional question wor-
thy of this Court’s-plenary review. See Stern & Gressman, Supreme
11
A. As to its conclusion that CCL’s claims concerning
hypothetical future advertisements were not ripe, the three-
judge district court pointed to this Court’s admonition that
“Article III... confines ... [the courts] to resolving real and
substantive controvers[ies] admitting of specific relief
through a decree of a conclusive character, as distinguished
from an opinion advising what the law wovld be upon a hy-
pothetical state of facts.” J.S. App. 6a (alterations in origi-
nal) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472,
477 (1990) (internal quotation marks omitted)); see also
Renne v. Geary, 501 U.S. 312 (1991) (holding non-justiciable
a First Amendment challenge to a California election law
provision on the basis of plaintiffs’ failure to allege a present
intention to endorse a particular candidate).
The three-judge court was correct in concluding that
CCL was unable to identify any concrete controversy requir-
ing judicial intervention. Indeed, in the face of the allegation
in CCL’s complaint that it intended to run “materially similar
grass-roots lobbying ads... on a range of issues in addition to
laws protecting traditional marriage,” CCL’s own executive
director testified that CCL had no specific plans to run any
such broadcast advertisements. See Heath Dep. 74-75, 82-83.
Even CCL’s counsel “forthrightly confirmed this lack of plans
in a May 22, 2006 report to the court and at a June 5, 2006
status conference.” J.S. App. 6a, (citing Joint Report pursu-
ant to May 9, 2006 Order 8 (‘no concrete plans to run ads”)
and June 5, 2006 Status Conference Tr. 14 (“We have no cur-
rent plan to do anad....”)).
This complete absence of concrete plans to run any fu-
ture advertisements is unsurprising: prior to this lawsvu't,
CCL had apparently run only one broadcast advertiseme iit
about the federal marriage amendment or any other policy
Court Practice 473, 483 (&th ed. 2002) (observing that, aside from the no
tice of appeal, “the procedure in appeals and certiorari cases is virtually
identical” and the appellant should demonstrate a question ““‘so substantial
us to require plenary consideration, with briefs on the merits and oral
argument” (quoting former S. Ct. R. 15.1(h))).
12
issue in its 110-year history. Yet, despite this history and
the admissions of its Executive Director and counsel, CCL
continued to argue that it intended to run “materially simi-
lar” advertisements in the future. By “materially similar,”
however, CCL made clear that it simply meant that “the
ads’ text, placement and timing would put them in contra-
vention of the electioneering communication prohibition, just
as the text, placement, and timing of the Crossroads adver-
tisement put it in contravention of the electioneering com-
munication prohibition.” Pl.’s Opp. to FEC Mot. to Dismiss
6-7. Finding that CCL’s hypothetical advertisements were
not ripe for review, the three-judge court correctly recog-
nized that CCL’s attempt to define “material similarity” so
broadly “would simply devolve into a facial challenge to the
relevant statutory provision—a challenge that the Supreme
Court has already rejected.” J.S. App. 8a, (citing McConnell
v. FEC, 540 U.S. 93, 189-194, 203-211 (2003)). Given the op-
portunity to identify any more specific “similarity” between
the “Crossroads” advertisements and some advertisement
that it might decide to run at some future date, CCL repeat-
edly declined to do so.
Taking those facts into account, the three-judge district
court looked to this Court’s decision in Renne, 501 U.S. at
321-322 (concluding that plaintiffs’ First Amendment chal-
lenge was not ripe given plaintiffs’ failure to assert a present
intention to endorse a candidate), and found that CCL simi-
larly lacked any sufficiently imminent or concrete injury to
invoke Article III jurisdiction.’ The lower court’s conclusion
that the claim concerning the hypothetical future advertise-
° Instructively, in a recent decision by a separate three-judge court,
Wisconsin Right to Life brought an as-applied challenge not only with
respect to specific advertisements run prior to the 2004 elections, but also
with respect to future hypothetical “grassroots lobbying” advertisements.
Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669
(D.D.C. Dee. 21, 2006) (WRTL). The court, citing the decision by the
three-judge court in this case, found WRTL’s intent to run such adver-
tisements “too speculative and thus not sufficiently concrete to state a
cognizable claim.” Jd. at *5.
13
ments was not ripe is correct and should be affirmed by this
Court.
B. As to the “Crossroads” advertisement, CCL’s re-
quest for injunctive and declaratory relief no longer presents
a live controversy. The proposed injunction and request for
declaratory relief concerned a specific communication and a
specific time period: CCL sought an order permitting it to
broadcast the “Crossroads” advertisement from May 14,
2006, when that advertisement became an “electioneering
communication” under Title [1 of BCRA, until June 5, 2006,
when the Senate had scheduled a vote on the federal Mar-
riage Protection Amendment. That time period expired, and
CCL explicitly disavowed any plans to broadcast the
“Crossroads” advertisement in the future. The Senate de-
feated the Marriage Protection Amendment on June 7, 2006,
and no additional vote on that legislation is currently con-
templated. Following that vote, CCL informed the three-
judge court that it “presently has no concrete plans to run
ads beyond what it began on May 10.” Joint Report Pursu-
ant to May 9, 2006 Order 8; Joint Report Pursuant to June 5,
2006 Order 2 (stating that CCL “currently has no specific
plans to run [any ‘grass-roots lobbying’] advertisements be-
tween now and election day (November 7)” that would be
considered electioneering communications under the Fed-
eral Election Campaign Act).
The alleged “harm” that CCL sought to avoid through
injunctive relief—losing the opportunity to broadcast its
“Crossroads” advertisement prior to the Senate vote—has
thus occurred and is irrevocable. See Joint Report Pursuant
to June 5, 2006 Order 7 (noting that “f{b]ecause the FEC was
not enjoined from enforcing the electioneering communica-
tion prohibition against the broadcast of [Crossroads], the
opportunity for the exercise of the commensurate First
Amendment rights of speech and petition were irreparably
lost”). A forward-looking injunction cannot address histori-
cal events; accordingly, “[nJo order of thi
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