Reply Brief — Christian Civic Civic League of Maine, Inc., The v. Federal Election Commission (No. 06-589)

FILED

JAN 6 8 2007

OFFICE OF THE CLERK

SUPREME COURT, U.S.

D

te - 569

So BS-1447—

ones 7]

In The

Supreme Court of the United States

THE CHRISTIAN Civic LEAGUE OF MAINE, INC., Appellant,

Vv.

FEDERAL ELECTION COMMISSION, ET AL., Appellees

On Appeal from the United States District Court

for the District of Columbia

Brief Opposing

Appellee’s Motion to Dismiss or Affirm And

Intervenor-Appellees’ Motion to Affirm

James Bopp, Jr.

Counsel of Record

M. Miller Baker Richard E. Coleson

Michael S. Nadel 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 | South 6th Street

202/756-8087 (facsimile) Terre Haute, IN 47807-3510

Counsel for Appellant 812/232-2434

812/235-3685 (facsimile)

January 8, 2007 Lead Counsel for Appellant

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.

(1)

Table of Contents

Corporate Disclosure Statement .............-.2000- (i)

ee lacey eoeeeedvests (ii)

TIE oo ccs ne ecccecscesceseeces (iii)

CSCC Ui eed seeds ere ucecreevcveceavoceees !

I. The Holding Below Precludes Full Review of the

Legal Question This Case Presents. ............ 2

II. The Mootness Exception Applies Here. ......... 3

ee Les ies ew eee ceebececerenesess 9

(11)

Table of Authorities

Cases

Belitskus v. Pizzingrilli, 343 F.3d 632 (3d Cir. 2003)

Branch v. FCC, 824 F.2d 37 (D.C.Cir.1987)

Center for Individual Freedom v. Carmouche, 449 F.3d 655

(5th Cir. 2006)

Dunn v. Blumstein, 405 U.S. 330 (1972)

Honig v. Doe, 484 U.S. 305 (1988)

Lawrence v. Blackwell, 430 F.3d 368 (6th Cir. 2005)

Majors v. Abell, 317 F.3d 719 (7th Cir. 2003)

McConnell v. FEC, 251 F. Supp. 2d 176 (D. D.C. 2003) 1,10

McConnell v. FEC, 540 U.S. 93 (2003)

Pearlman v. Vigil-Giron, 71 Fed. Appx. 11 (10th Cir. 2003)

People for the Ethical Treatment of Animals, Inc. v. Gittens,

396 F.3d 416 (D.C. Cir.2009)

Rosario v. Rockefeller, 410 U.S. 752 (1973)

Storer v. Brown, 415 U.S. 724 (1974)

Teper v. Miller, 82 F.3d 989 (11th Cir. 1996)

Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016

a 0 Na conde nba bauebes coun en scan eouees 2

Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 2006

WL 3746669 (D. D.C. Dec. 21, 2006) ... 1,3, 4, 7,9, 10

(iv)

Argument! |

The district court erred in dismissing the Christian Civic

League’s claims as to the Crossroads Ad as moot because it is

not capable of repetition yet evading review. The court found

that this controversy, a classic example of a situation meriting

the exception, was neither capable of repetition nor would a

recurrence “necessarily” evade review. In doing so, the lower

court severely distorts the requirements for the exception,

leading another three-judge court in the district, “confronted

with essentially the same issue,” to “respectfully disagree” with

the holding on appeal here. Wisconsin Right to Life, Inc. v.

FEC, No. 04-1260, 2006 WL 3746669, at *4 (D. D.C. Dec. 21,

2006) (““WRTL IP’).

Any future challenge to the electioneering communication

prohibition will be as applied. By defining an as-applied

challenge as limited to all of its particular facts for purposes of

the capable of repetition prong of the exception to mootness,

the court has effectively ruled that the constitutionality of

applying the electioneering communication prohibition to

grassroots lobbying is never capable of repetition.

The scenario the court proposed as satisfactorily ensuring

complete judicial review of the controversy is “unreasonable, if

not fanciful.” WR7L IT, No. 04-1260, 2006 WL 3746669, at *4.

The court ruled that the legal question presented will not escape

full judicial review, despite the experience here and in Wiscon-

sin Right to Life, Inc. v. FEC, and findings by the district court

in McConnell v. FEC, 251 F. Supp. 2d 176 (D. D.C. 2003),

supporting the commonsense conclusion that the question will

likely only arise when it cannot be fully reviewed.

The lower court’s analysis departs from well-established

standards, and if consistently applied to the controversy this

‘The FEC and Intervenors filed separate responses to the League's

Jurisdictional Statement. Since the relevant arguments presented in each

motion are largely the same, the League responds to both Motions in this

Opposition.

2

case presents, the important legal question of the constitutional-

ity of applying the electioneering communication prohibition to

grassroots lobbying could never be fully reviewed. This Court

should correct the lower court’s error and resolve the question

the League's suit presents.

I. The Holding Below Precludes Full Review of the

Legal Question This Case Presents.

The FEC argued in McConnell v. FEC, 540 U.S. 93 (2003),

that as-applied challenges could be considered later and the

Court in McConnell should simply consider the facial chal-

lenge. Then in Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct.

1016 (2006) (“WRTL I’), the FEC and Intervenors insisted that

as-applied challenges were precluded by McConnell. In oral

argument, the Chief Justice described this as a bait and switch.

Transcript of Oral Argument at 22, WRTL v. FEC, 126 S. Ct.

1017 (No. 04-1581). Just as Defendants argued in WRTL J, that

this Court’s decision in McConnell precluded all as-applied

challenges to the electioneering communication prohibition,

The FEC and Intervenors argued here that McConnell precludes

all preliminary injunctions in as-applied challenges to the

prohibition. The district court denied CCL preliminary injunc-

tive relief; this Court found that denial moot. Christian Civic

League of Maine, Inc. v. FEC, 127 S.Ct. 336 (2006). The

district court has now dismissed as moot the question of the

constitutionality of the electioneering communication prohibi-

tion with respect to the League’s Crossroads Ad and ruled that

the question of its application is not ripe with respect to any

future ads. If tolerated, this last maneuver puts citizen groups in

an endless loop of being mooted but never ripe in their efforts

to obtain this Court’s constitutional judgment on this important

public issue.

This situation epitomizes the purpose of the exception to

mootness, The exception provides the time courts need to

consider the merits of a challenge to the constitutionality of a

3

statute’s application when, as here, it is election-related and the

situation will, by its very nature, quickly become moot. Resolv-

ing the particular legal question presented then simplifies future

challenges, making adjudication on the eve of election simpler

or even unnecessary. “The construction of the statute, an

understanding of its operation, and possible constitutional limits

on its application, will have the effect of simplifying future

challenges, thus increasing the likelihood that timely filed cases

can be adjudicated before an election is held.” Storer v. Brown,

415 U.S. 724, 738 n.8 (1974).

Under the lower court’s holding, the only apparent way for

a court to hear an as-applied challenge to the electioneering

communication prohibition is to require a plaintiff to rack up a

string of failed preliminary injunction attempts to unequivocally

establish that the controversy is indeed capable of repetition and

then to file suit far enough in advance that the ruling can be

reached before the suit becomes moot. The first requirement

offends the First Amendment, the second is untenable.

II. The Mootness Exception Applies Here.

A. The controversy here is a classic example of a situation

justifying the well-established exception to the mootness

doctrine for cases that are “capable of repetition, yet evading

review.” In WRTL II, the three-judge court noted that “no less

than ten federal court decisions involving election-related

challenges in which this exception was applied well establishes

this point.” 2006 WL 3746669, at *3. See also id. (noting

Intervenors’ “grudging[] characteriz[ation] [of] the application

of this exception as a ‘close question’ notwithstanding our

Circuit Court’s holding in Branch v. FCC, 824 F.2d 37, 41 n. 2

(D.C.Cir.1987)”). As the court in WRTL J] correctly observed,

“{pjiaintiff's factual predicament is not novel. Indeed, it is a

classic example of the well-established exception to the

mootness doctrine for cases that are ‘capable of repetition, yet

evading review.’”” 2006 WL 3746669, at *3. This Court found

4

unremarkable the exception’s application to the same issue

when it heard Wisconsin Right to Life’s first appeal. See App.

13 n.14 (noting that the question of the mootness exception was

squarely before this Court there). The weight of applicable

authority holding that election-related disputes are archetypical

situations qualifying for the exception justifies presumption of

its application here. Cf FEC Mot. Dismiss or Aff. at 22.

B. As-applied challenges do not constitute a perfect storm

that must be capable of repetition to escape mootness. The

district court anchors its unprecedented standard to the fact that

this is an as-applied challenge. The court conceded that as-

applied challenges to a statute “may be ‘capable of repetition’

for purposes of the [mootness] exception,” but then reads into

“as-applied” a “perfect storm” of conditions so specific as to

make the legal questions the League’s suit presents incapable of

repetition. App. 12a.”

*In support of its “precise” standard for as-applied challenges, the lower

court cites People for the Ethical Treatment of Animals, Inc. v. Gittens, 396

F.3d 416, 422-23 (D.C. Cir. 2005) (“PETA”). The controversy at issue in

PETA was notelection-related, so it says nothing about election-related suits.

Nor does the PETA court’s analysis support the conclusion that a “perfect

storm” of factual circumstances must be repeatable for as-applied challenges

to survive mootness. The PETA court observed that, as the lower court

recited, what must be shown as likely to be repeated “must be defined in

terms of the precise controversy it spawns.” Jd. at 422. First, this familiar

proposition, by itself, hardly justifies the conclusion that here, at least seven

purely factual circumstances must be shown to be reasonably expected to

recur. Moreover, PETA's holding is that what must be shown to be capable

of repetition to save a claim from mootmess is based on the facts as they

relate to the legal questions the complaint raises. Id. at 423 (“the alleged

‘wrong’ [must be] put in terms of the legal questions it presents for deci-

sion.”). So what must be capable of repetition is a) what the plaintiff wanted

to do, and b) the purportedly unconstitutional action taken by the govern-

ment, including constitutionally permissible reasons for the action. This

reflects the constitutional analysis required to resolve the controversy.

The PETA court looked to the complaint to discover the nature of the

If this analysis is correct (that as-applied challenges are

unique and incapable of repetition), the question of the constitu-

tionality of the electioneering communication prohibition as

applied to grassroots lobbying will never be adjudicated on its

merits because all challenges to the electioneering communica-

tion prohibition will be as-applied. The lower court’s analysis

of the exception to mootness to as-applied challenges is

unprecedented.

If correct, it would follow that some prior cases were

wrongly heard. One example would be Storer, where an as-

applied election law controversy was found capable of repeti-

tion, perhaps with different p/aintiffs. “(T]he issues properly

presented, and their effects on independent candidacies, will

persist as the California statutes are applied in future elections.”

legal question presented, 396 F.3d at 423, and found that PETA's claim was

not capable of repetition because “the legal questions it presents for

decision,” as defined above, were that its proffered expression was wrongly

rejected for display because it satisfied the requirements for acceptance as

published and applied. /d. at 422-23. Accordingly, the controversy was

“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.

Here, the League claims that applying the electioneering communication

prohibition to the Crossroads Ad is unconstitutional because it is not

narrowly tailored to a compelling government interest. Resolving the legal

issue presented requires that a court determine whether the electionecring

communication prohibition can be constitutionally applied to grassroots

lobbying ads such as the Crossroads Ads. In short, the question is whether

ads such as the Crossroads ad are the functional equivalent of express

advocacy. What the League must show a reasonable expectation of recurring

is what it has alleged in its Complaint: that the electioneering communication

prohibition can reasonably be expected to be applied to an ad like the

Crossroads Ad. The circumstances urged as unrepeatable by the FEC and

Intervenors and the court below are not relevant to the legal issue presented,

and it is error to require the League to show that they will recur

6

415 U.S. at 738 n.8.’ See also Pearlman v. Vigil-Giron, 7\ Fed.

Appx. 11 (10" Cir.2003) (as-applied challenge was not moot

even though challenged ballots were certified and distributed;

Belitskus v. Pizzingrilli, 343 F.3d 632, 649 (3d Cir. 2003) (as-

applied derivative voter claims not mooted after election had

*Relaxing the “same plaintiff’ requirement in election-related cases may

be an artifact of the exception’s application to election- and pregnancy-

related cases. At least three federal Circuit courts have found support for the

proposition that the capable of repetition prong of the exception is satisfied

when it is reasonably expected that some plaintiff will find itself in the same

controversy in Storer, Honig v. Doe, 484 U.S. 305 (1988) (dissenting

opinion); Dunn v. Blumstein, 405 U.S. 330 (1972); and Rosario v.

Rockefeller, 410 U.S. 752 (1973). According to the Seventh Circuit,

while canonical statements of the exception to mootness for cases

capable of repetition but evading review require that the dispute

giving rise to the case be capable of repetition by the same

plaintiff... the courts, perhaps to avoid complicating lawsuits

with incessant interruptions to assure the continued existence of a

live controversy, do not interpret the requirement literally, at least

in abortion and election cases.

Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003); see also Center for

Individual Freedom v. Carmouche, 449 F.3d 655, 661-662 (Sth Cir. 2006)

(“despite the Supreme Court's reminder that there must be a ‘reasonable

expectation that the same complaining party would be subject to the same

action again,’ Weinstein, 423 U.S. at 149, the Court does not always focus

on whether a particular plaintiff is likely to incur the same injury.”);

Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005) (“Courts have

applied the capable of repetition yet evading review exception to hear

challenges to election laws even when the nature of the law made it clear that

the plaintiff would not suffer the same harm in the future.”).

In any event, as the court in Majors concluded, regardless of whether an

election law controversy must be capable of repetition with the same

plaintiff, a court does not require that a plaintiff explain why it has not found

itself in the same circumstances to satisfy the capable of repetition prong of

the exception. Just as the court does not conduct a hearing on the fertility or

plans of a plaintiff attacking an abortion statute after her pregnancy has

terminated to determine whether the controversy is capable of repetition, “in

an clection case the court will not keep interrogating the plaintiff to assess

the likely trajectory of his political career.” Majors, 317 F.3d at 723.

>

passed); Teper v. Miller, 82 F.3d 989, 992 (11th Cir. 1996) (as-

applied challenge to campaign contribution regulations during

legislative session not moot when General Assembly ad-

journed). Surely as-applied challenges addressing the particular

idiosyncrasies of ballots or by particular candidates are at least

as “fact-specific” as the League’s challenge of the application

of the electioneering communication prohibition to its broad-

cast, yet these cases were found to satisfy the exception to

mootness.

C. The lower court lists seven specific facts as insuffi-

ciently likely to again converge to save the League’s claim from

mootness and allow adjudication of its merits. In its Jurisdic-

tional Statement, the League pointed out the defects of consid-

ering these seven and ignoring other important facts regarding

a reasonable expectation that the League will be subject to the

same prohibition, and will not repeat them here. See JS 14-18.

The FEC attempts to rehabilitate the lower court’s “perfect

storm” analysis by referring to “the thrust of the court’s analy-

sis” and ignoring the details of that analysis. FEC Mot. Dismiss

or Affirm at 18 n.3, 18-22. The Intervenors argue that a loose

subset of four “perfect storm” factors sufficiently demonstrate

that the legal question in the League’s case is not capable of

repetition. Inter’s’ Mot. to Aff. at 15. In addition to making the

standard the court announced less restrictive than it actually is,

Intervenors ignore that the three-judge court in WRTL II

explicitly rejected consideration of three of those same factors

in its analysis of whether the mootness exception applied: the

context of the Ad’s creation, the availability of other means of

conveying the desired message, and the circumstances of the

campaign. 2006 WL 3746669, at *3; see also id. at *4n.14

(rejecting contextual factors generally). The fourth factor, the

content of the Ad, was not even considered by the lower court

here in its mootness analysis and instead is relevant to the

merits of the League’s claims.

8

D. Questions about the League’s role as a plaintiffin future

controversies are unwarranted. The FEC and Intervenors are

selective in their citations to the record in arguing that the

League will not again find itself facing the same legal contro-

versy. It alleged in its Verified Complaint that it “intends to run

materially similar grass-roots lobbying ads falling within the

electioneering communication prohibition period before the

[2006] general election and. . . before future. . . elections in

Maine when there are pending matters in the legislative or

executive branch that... require referencing a clearly identified

candidate for federal office,” and listed nine other issues of

interest that regularly become issues for the legislative and

executive branches, VC 4 16. In 2004, the League engaged in

grassroots lobbying for a previous permutation of the Federal

Marriage Amendment (“FMA”). CCLM, No.06-0614, Heath

Dep. 34:3-35:16 (Doc. # 26-4) (listing methods of communica-

tion used in 2004 grassroots lobbying in favor of the FMA). The

League mounted a radio campaign in support of the 2004 FMA

in July 2004 encouraging people to contact Senators Snowe and

Collins and ask them to support traditional marriage. /d., Heath

Decl. 4] 6, 8 (Doc. # 26-2); Pl.’s Resp. to Def.’s Req. Prod. 2,

3 and 4 (Doc. # 26-7, 26-8, 26-9, 26-10, 26-11, 26-12). In 2006,

the lobbyist for the League participated in multiple conference

calls, e-mail exchanges and discussions with legislators, grass

roots activists, media, and national level pro-family groups

regarding the FMA. /d., Heath Decl. 4] 9 (Doc. # 26-2). There is

ample evidence that the League will again find itself in the

same legal controversy as presented by its desire to run the

Crossroads Ad.*

‘Remarks about plans for other broadcasts, Inter’s’ Mot. Aff. at 16; App.

5a-6a, were responses to questions about then-current plans. They cannot be

construed t¢. mean that the League never again intends to run grassroots

lobbyrmg 9% chat will collide with electioneering communication prohibi-

tion. Hew could dhe League accurately respond about future plans when it

9

E. In an attempt to show that this controversy will not

evade full review, the FEC and Intervenors (and the lower

court) propose hypothetical schedules allowing review. The

court below surmised that

[a] plaintiff could bring its lawsuit much earlier than did

the League. A... plaintiff... 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 advertisement, paid for with corpo-

rate funds, that mentioned a declared candidate. Such a

lawsuit would be ripe and stand a strong chance of

gaining full appellate review . . . .

App. 13a.° This litigation and that in WRTL have proved this

to be “unreasonable, if not fanciful.” WRTL IJ, 2006 WL

3746669, at *3.

Conclusion

The motions to dismiss or affirm should be denied. Prob-

able jurisdiction should be noted and briefing ordered as

requested in the Jurisdictional Statement.

In the alternative, the case should be held for disposition

could not know at the time of the responses what and when legislative

matters touching on its areas of interest will again arise?

‘Despite the expedition afforded this case, including expedited

discovery, fully eight months have passed without a federal court adjudicat-

ing the merits of the League's case, let alone reviewing it on appeal. As the

three-judge court noted in WRTL IJ, 2006 WL 3746669, at *4, the district

court in McConnell recognized that legislation giving rise to the need to

broadcast grassroots lobbying ads such as the League’s, “typically arise[]} in

the 30- and 60-day periods before a federal primary or general election”

(citing McConnell v. FEC, 251 F.Supp. 2d at 793 (Leon, J.)). The WRTL I

court also noted that “as-applied challenges, to be effective, must be

conducted during the expedited circumstances of the closing days of a

campaign.” Jd. at *7.

10

after this Court decides WRTL II, for consideration of issues

possibly not dealt with in WRT7 JI (such as the addition of

government officials’ position on the matter that is the sub-

ject of the grassroots lobbying).

M. Miller Baker

Michael S. Nadel

MCDERMOTT WILL &

EMERY LLP

600 Thirteenth Street, NW

Washington, DC 20005

202/756-8000

202/756-8087 (facsimile)

Counsel for Appellant

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Raeanna S. Moore

Jeffrey P. Gallant

Bopp, COLESON & BOSTROM

THE JAMES MADISON CENTER

FOR FREE SPEECH

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

812/235-3685 (facsimile)

Lead Counsel for Appellant