WASHINGTON, D.C. (February 2, 2006) — On January 23, 2006, the United States Supreme Court ruled unanimously in favor of McDermott Will & Emery client, Wisconsin Right to Life, Inc., (WRTL) in a First Amendment challenge to the Federal Election Commission's enforcement of a provision of the Bipartisan Campaign Reform Act of 2001 (BCRA), known as the McCain-Feingold Law. The provision of the McCain-Feingold Law in question bars corporations and labor unions from running television and radio ads mentioning any candidate running for office within 60 days of the federal general election.
Amici briefs were filed with the U.S. Supreme Court in support of WRTL from groups across the political spectrum, including the American Civil Liberties Union (ACLU), the Alliance for Justice, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the U.S. Chamber of Commerce. The common interest of WRTL and all of its supporters in this case is the right to run broadcasts urging members of the public to lobby Congress members on pending legislation, which is forbidden under the McCain-Feingold within the 60-day period before an election if a candidate for federal office is mentioned in the advertisement.
In this case, WRTL v. Federal Election Commission (FEC), WRTL wanted to run radio ads urging Wisconsin citizens to call Senators Feingold and Kohl to vote against the filibuster of judicial nominees but could not do so because Senator Feingold was on the general election ballot. WRTL brought suit and asserted an "as applied" challenge to the law on the basis that its ads were not designed to influence the election but rather to address the live judicial filibuster occurring in Congress. A three-judge panel of the U.S. District Court for the District of Columbia ruled in 2005 that the Supreme Court's 2003 decision in McConnell v. Federal Election Commission, which upheld the relevant provision of BCRA against a facial challenge, foreclosed "as applied" challenges as well. In McConnell, however, the FEC had argued to the Supreme Court that the facial challenge should be rejected on the basis that "as applied" challenges could be brought in individual cases. When WRTL brought its own "as applied" challenge in this case, however, the FEC switched positions and argued that McConnell barred even "as applied" challenges, which prompted Chief Justice Roberts during oral argument to chastise the Solicitor General for the FEC's "bait and switch" argument.
In the unanimous per curiam opinion, the Supreme Court agreed with WRTL's argument and held that the McConnell decision did not foreclose "as applied" challenges to BRCA's electioneering prohibition. The Supreme Court remanded the case to the three-judge panel to hear the merits of WRTL's "as applied" First Amendment claim.
McDermott Will & Emery served as co-counsel on this representation with James Bopp, Jr. and Richard Coleson of Bopp, Coleson & Bostrom. The McDermott team included trial partners Miller Baker and Michael Nadel.
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