No. 06-589: Christian Civic League of Me., Inc. v. FEC -(Motion to Dismss or Affirm

No. 06-589

In the Supreme Court of the United States

CHRISTIAN CIVIC LEAGUE OF MAINE, INC., APPELLANT

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM
FOR THE FEDERAL ELECTION COMMISSION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GREGORY G. GARRE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE H. NORTON
General Counsel
RICHARD B. BADER
Associate General Counsel
DAVID KOLKER
Assistant General Counsel
HARRY J. SUMMERS
Attorney
Federal Election Commission
Washington, D.C. 20463

QUESTION PRESENTED

Whether the three-judge district court correctly held that appellant's as-applied constitutional challenge to the federal statutory prohibition on the use of corporate treasury funds to finance "electioneering communica tions" is not currently justiciable.

In the Supreme Court of the United States

No. 06-589

CHRISTIAN CIVIC LEAGUE OF MAINE, INC., APPELLANT

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM
FOR THE FEDERAL ELECTION COMMISSION

OPINIONS BELOW

The opinion of the three-judge district court (J.S. App. 1a-14a) is unreported. A prior opinion of the dis trict court is reported at 433 F. Supp. 2d 81.

JURISDICTION

The decision of the three-judge district court was issued on September 27, 2006. A notice of appeal was filed on October 6, 2006, and the jurisdictional statement was filed on October 26, 2006. The jurisdiction of this Court is invoked under the Bipartisan Campaign Re form Act of 2002, Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 114.

STATEMENT

This case concerns the "electioneering communica tion" provision contained in Section 203 of the Biparti san Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 91. The provision prohibits corpora tions from using their general treasury funds to pay for any "electioneering communication," defined as a com munication that refers to a candidate for federal office and is broadcast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running. BCRA § 203, 116 Stat. 91 (2 U.S.C. 441b(b)(2) (Supp. IV 2004)). This Court has sustained BCRA § 203 against a facial constitutional challenge, see McConnell v. FEC, 540 U.S. 93, 203-209 (2003), but has held that the provision is subject to as-applied challenges, see Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016, 1018 (2006) (WRTL I) (per curiam). Appellant filed suit in federal district court, arguing that BCRA's restrictions on the financing of "electioneering communications" are unconstitutional as applied to appellant's own proposed broadcast adver tisements. The three-judge district court ultimately dismissed appellant's claims. J.S. App. 1a-14a.

1. The Federal Election Commission (Commission or FEC) is vested with statutory authority over the admin istration, interpretation, and civil enforcement of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., and other federal campaign-finance statutes. The Commission is empowered to "formulate policy" with respect to the FECA, 2 U.S.C. 437c(b)(1); "to make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [the] Act," 2 U.S.C. 437d(a)(8), 438(a)(8) and (d) (Supp. IV 2004); and to issue written advisory opinions concerning the application of the Act and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f.

2. a. Federal law has long prohibited both for-profit and nonprofit corporations from using their general treasury funds to finance contributions and expendi tures in connection with federal elections. See FEC v. Beaumont, 539 U.S. 146, 152-154 (2003). The FECA makes it "unlawful * * * for any corporation whatever * * * to make a contribution or expenditure in connec tion with any election" for federal office. 2 U.S.C. 441b(a). However, the FECA permits a corporation to establish a "separate segregated fund," commonly called a political action committee or PAC, to finance those disbursements. 2 U.S.C. 441b(b)(2)(C) (2000 & Supp. IV 2004). The fund "may be completely controlled" by the corporation, and it is "separate" from the corporation "'only in the sense that there must be a strict segrega tion of its monies' from the corporation's other assets." FEC v. National Right to Work Comm., 459 U.S. 197, 200 n.4 (1982) (quoting Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 414 (1972)). The fund may solicit and accept donations voluntarily made for political purposes by the corporation's stockholders or members and its employees, and the families of those individuals. 2 U.S.C. 441b(b)(4)(A)-(C). The money in a corporation's separate segregated fund can be contrib uted directly to candidates for federal office, and it may be used to pay for independent expenditures to commu nicate to the general public the corporation's views on such candidates.

In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), this Court held that Sec tion 441b's prohibition on the use of corporate treasury funds to finance independent expenditures for cam paign-related speech could not constitutionally be ap plied to a corporation that (1) was "formed for the ex press purpose of promoting political ideas, and cannot engage in business activities"; (2) had "no shareholders or other persons affiliated so as to have a claim on its assets or earnings"; and (3) "was not established by a business corporation or a labor union, and [had a] policy not to accept contributions from such entities." Id. at 264; see McConnell, 540 U.S. at 210; 11 C.F.R. 114.10 (implementing the MCFL exception). Corporations pos sessing the characteristics identified in that case are commonly referred to as "MCFL organizations." See, e.g., McConnell, 540 U.S. at 210.

The Court in MCFL also adopted a narrowing con struction of 2 U.S.C. 441b even as applied to corporate entities that do not qualify as MCFL organizations. In interpreting Section 441b's prohibition of corporate "expenditure[s]," the Court noted that the FECA defini tion of "expenditure" encompassed "the provision of anything of value made 'for the purpose of influencing any election for Federal office.'" MCFL, 479 U.S. at 245-246 (quoting 2 U.S.C. 431(9)(A)(i)) (emphasis omit ted). To avoid problems of vagueness and overbreadth, the Court construed Section 441b's prohibition of inde pendent expenditures from corporate treasuries to reach only the financing of communications that ex pressly advocate the election or defeat of a clearly iden tified candidate. Id. at 248-249; see 2 U.S.C. 431(17) (pre-BCRA law). The Court had previously introduced the concept of express advocacy in Buckley v. Valeo, 424 U.S. 1, 43-44, 77-80 (1976), when it narrowly con strued other FECA provisions regulating independent campaign expenditures. Buckley provided examples of words of express advocacy, such as "vote for," "elect," "support," "defeat," and "reject." Id. at 44 n.52.

b. Based on its assessment of evolving federal cam paign practices, Congress subsequently determined that, "[w]hile the distinction between 'issue' and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in impor tant respects." McConnell, 540 U.S. at 126. In the wake of Buckley, corporations and labor unions crafted politi cal communications that avoided the so-called magic words of electoral advocacy and financed those commu nications with "hundreds of millions of dollars" from their general treasuries. Id. at 127. Indeed, even the advertisements aired by federal candidates themselves rarely included express exhortations to vote for or against a particular candidate. See id. at 127 & n.18, 193 & n.77. "[T]he conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immedi ately preceding a federal election." Id. at 127.

"Congress enacted BCRA to correct the flaws it found in the existing system." McConnell, 540 U.S. at 194. BCRA § 203 amended 2 U.S.C. 441b(b) to bar any corporation or union from paying for an "electioneering communication" with money from its general treasury. 2 U.S.C. 441b(b)(2) (Supp. IV 2004). The term "elec tioneering communication" is defined in pertinent part as a "broadcast, cable, or satellite communication" that (1) refers to a clearly identified candidate for federal office; (2) is made within 60 days before a general elec tion, or within 30 days before a primary election for the office sought by the candidate; and (3) is "targeted to the relevant electorate." BCRA § 201(a), 116 Stat. 88 (2 U.S.C. 434(f)(3)(A)(i) (Supp. IV 2004)).1 The prohibi tion on the use of corporate funds for electioneering communications does not apply to "MCFL organiza tions." See McConnell, 540 U.S. at 209-211. A corpora tion or union remains free, moreover, to establish a sep arate segregated fund and to pay for electioneering com munications from that fund. See 2 U.S.C. 441b(b)(2)(C) (2000 & Supp. IV 2004).

3. In McConnell, this Court upheld against a facial constitutional challenge BCRA § 203's ban on the use of corporate or union treasury funds for electioneering communications. See 540 U.S. at 203-209. The Court observed that, "[b]ecause corporations can still fund electioneering communications with PAC money, it is 'simply wrong' to view * * * [BCRA § 203] as a 'com plete ban' on expression rather than a regulation." Id. at 204 (quoting Beaumont, 539 U.S. at 162; see Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990)). "The PAC option allows corporate political par ticipation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members." McConnell, 540 U.S. at 204 (quoting Beaumont, 539 U.S. at 163). The Court also noted that its campaign-finance jurisprudence reflects "respect for the legislative judg ment that the special characteristics of the corporate structure require particularly careful regulation." Id. at 205 (citations and internal quotation marks omitted).

The Court in McConnell further held that the com pelling governmental interests that support the require ment that corporations finance express advocacy through a PAC apply equally to corporate financing of electioneering communications. 540 U.S. at 206. Based on its examination of the record before the district court, the Court concluded that the "vast majority" of prior advertisements encompassed by BCRA's definition of the term "electioneering communications" were in tended to influence electoral outcomes. Ibid. The Court further observed that, "whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those timeframes by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund." Ibid.

4. In WRTL I, this Court considered an as-applied constitutional challenge to BCRA § 203's prohibition on the use of corporate treasury funds to finance election eering communications. The three-judge district court in that case had construed this Court's decision in McConnell as foreclosing all such as-applied challenges. 126 S. Ct. at 1017-1018. This Court vacated the judg ment of the district court, stating that McConnell "did not purport to resolve future as-applied challenges" to BCRA § 203. Id. at 1018. The Court remanded the case to the district court to consider the merits of the plain tiff corporation's as-applied challenge in the first in stance. Ibid. On December 21, 2006, the three-judge district court in that case held that BCRA § 203 is un constitutional as applied to the advertisements in ques tion. See p. 27, infra.

5. Appellant Christian Civic League of Maine, Inc., is a nonprofit, nonstock Maine corporation. J.S. App. 3a. Appellant's complaint asserts that it is tax-exempt under Section 501(c)(4) of the Internal Revenue Code (26 U.S.C.), and that it is interested in "laws protecting traditional marriage" and other public issues. Compl. paras. 16, 20. Appellant asserts that it does not qualify for any exception that would permit it to finance elec tioneering communications with corporate funds, alleg ing in particular that it is not a "qualified nonprofit cor poration" under 11 C.F.R. 114.10, which implements the MCFL exception. Compl. para. 22.

Appellant's complaint in the instant case was filed on April 3, 2006. Appellant alleged that it planned to run a particular radio advertisement "between May 10 and early June." Compl. paras. 11, 13. The text of the ad vertisement (known as the "Crossroads" advertisement) is as follows:

Our country stands at the crossroads-at the inter section 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. Unfortunately, your senators voted against the Mar riage Protection Amendment two years ago. Please call Sens. Snowe and Collins immediately and urge them to support the Marriage Protection Amend ment 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.

J.S. 1 n.1. Because Senator Snowe was a candidate in a primary election that took place June 13, 2006, the ef fect of specifically mentioning Senator Snowe under BCRA's electioneering-communications provisions was that the advertisement in question could not have been financed with appellant's treasury funds if it was broad cast in Maine between May 14, 2006, and June 13, 2006.

The complaint in this case further alleged that appel lant "intends to run materially similar grass-roots lob bying ads * * * 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 of Maine." Compl. para. 16. Appellant alleged that it "is concerned about a range of issues * * * that regularly have and will become issues in the legislative and execu tive branch." Ibid. Appellant alleged that, "[b]ecause 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 [appellant's] need to broadcast grass-roots lobbying ads will again coincide with the electioneering communica tions blackout periods." Ibid. Appellant sought prelimi nary and permanent injunctive relief against enforce ment of BCRA § 203 with respect to both the specific advertisement referenced in the complaint and any other "electioneering communications by [appellant] that constitute grass-roots lobbying." Compl. 13. A three-judge district court was convened pursuant to BCRA § 403(a)(1), 116 Stat. 114.

6. On May 9, 2006, the district court denied appel lant's request for a preliminary injunction against en forcement of BCRA's restrictions on the financing of the "Crossroads" advertisement. See Christian Civic League of Maine, Inc. v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006) (CCL I).2 The court concluded that "each of the four preliminary injunction factors counsels against the grant of the requested injunction." Id. at 87.

In holding that appellant had failed to establish a likelihood of success on the merits, the district court observed that BCRA "does not bar the proposed adver tisement; it only requires that [appellant] fund it through a political action committee." CCL I, 433 F. Supp. 2d at 88. The court found that the "ability to form and administer separate segregated funds . . . has provided corporations . . . with a constitutionally suffi cient opportunity to engage in express advocacy." Ibid. (quoting McConnell, 540 U.S. at 203). The court further explained that appellant could have financed the adver tisement with corporate treasury funds if it had used a non-broadcast medium or had refrained from clearly identifying Senator Snowe. See ibid.

The district court also noted that appellant's adver tisement appears to be functionally equivalent to the sham issue advertisements identified in McConnell. * * * [T]he advertisement might have the effect of encour aging a new candidate to oppose Senator Snowe, re ducing the number of votes cast for her in the pri mary, weakening her support in the general election, or otherwise undermining her efforts to gather such support, including by raising funds for her reelection.

CCL I, 433 F. Supp. 2d at 88-89 (citation omitted). The court observed that a newsletter published by appellant had "already sounded an enthusiastic note regarding a potential challenger to Senator Snowe." Id. at 89. In addition, the court concluded that appellant's proposed "grassroots lobbying" exception to the coverage of BCRA § 203 "would seriously impair the government's compelling interest in protecting the integrity of the electoral process" because "candidates or their allies could easily schedule an issue for 'legislative consider ation' during the run-up to an election as a pretext for broadcasting a particular subliminal electoral advocacy advertisement." Ibid.

The district court also held that appellant had failed to demonstrate that it would suffer irreparable harm absent a preliminary injunction because, notwithstand ing BCRA's restrictions on "electioneering communica tions," the various alternative means the court had de scribed were available for communicating appellant's views concerning the Marriage Protection Amendment. CCL I, 433 F. Supp. 2d at 89. The court further con cluded that issuance of the requested preliminary in junction would substantially injure the Commission and would disserve the compelling public interest in the en forcement of BCRA. Id. at 90.

7. On May 12, 2006, appellant filed its jurisdictional statement and moved for expedited disposition of its appeal. In its Motion to Expedite and Consolidate Briefing (Mot. to Expedite) (at 2) appellant stated that a Senate vote on the Marriage Protection Amendment was expected to occur "on or about June 5, 2006." The motion further stated that appellant "only wants to run the ['Crossroads'] ad until the vote occurs and not thereafter." Ibid. The FEC opposed that motion, argu ing that expedited consideration was unwarranted even though "the question whether the district court should have issued a preliminary injunction is likely to become moot before the Court can resolve the merits of [appellant's] current appeal." FEC Opp. to Mot. to Ex pedite 5.

On May 15, 2006, this Court denied appellant's mo tion to expedite the appeal. 126 S. Ct. 2062. On June 7, 2006, a vote to invoke cloture on the proposed Marriage Protection Amendment failed in the United States Sen ate, effectively terminating Senate consideration of the measure. See 152 Cong. Rec. S5554 (daily ed.). On Oc tober 2, 2006, this Court dismissed as moot appellant's appeal from the denial of its request for a preliminary injunction. 127 S. Ct. 336.

8. On September 27, 2006, the district court dis missed appellant's complaint in its entirety. J.S. App. 1a-16a.

a. Insofar as appellant challenged the constitutional ity of BCRA § 203 as applied to communications other than the "Crossroads" advertisement, the district court held that appellant's claims were "not ripe and/or too speculative and hypothetical to be justiciable." J.S. App. 2a; see id. at 4a-9a. The court explained that ap pellant "bears the burden of clearly alleging and ulti mately proving that the non-Crossroads claims are justi ciable." Id. at 5a. The court observed, however, that appellant "has admitted that it has no current plans to broadcast any advertisements about any issue." Ibid.

The district court further explained that, under Arti cle III of the Constitution, federal courts are precluded from issuing "opinion[s] advising what the law would be upon a hypothetical state of facts," J.S. App. 6a (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)), and may resolve constitutional questions only "in the context of a specific live grievance," ibid. (quot ing Golden v. Zwickler, 394 U.S. 103, 110 (1969)). The district court also relied (see id. at 7a) on Renne v. Geary, 501 U.S. 312 (1991), in which this Court held that a First Amendment challenge to a state ban on political- party endorsements of candidates for non-partisan of fices was unripe because the plaintiffs had failed to al lege a present intention to endorse any specific candi date and had not compiled an adequate factual record as to any such endorsement. The district court found that appellant similarly lacks any present intention to broad cast any particular advertisement, and that appellant had not developed any factual record about what such an advertisement might say, how it might be created, or how it might be financed or broadcast. See J.S. App. 7a- 8a. The court concluded:

What [appellant] really seeks via its non-Crossroads claims is for the court to promulgate a rule exempt ing all "grass roots lobbying"-a phrase [appellant] never defines-from the Act's electioneering com munications provision. This court, however, decides present disputes based on particular facts-and es pecially so where faced with an as-applied challenge, as here. Absent a concrete dispute, this court lacks jurisdiction.

Id. at 9a (footnote omitted).

b. With respect to the "Crossroads" advertisement, the district court held that appellant's claims were "moot and not saved by the 'capable of repetition, yet evading review' exception to that doctrine." J.S. App. 2a; see id. at 10a-13a. The court found that the "Cross roads" claims were moot because "the occurrence of the June 2006 Senate vote on the relevant legislation leaves the court without power to provide effectual relief." Id. at 10a.

The district court noted that the "capable of repeti tion, yet evading review" exception to mootness princi ples applies "only in exceptional situations," J.S. App. 11a (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)), and it concluded that appellant had failed to satisfy either prong of the applicable test, id. at 11a-13a. With regard to the "capable of repetition" prong, the court noted that appellant was required to establish a "reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party." Id. at 11a (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)) (quotation marks omit ted and emphasis added by district court). The court explained that adjudication of appellant's constitutional claim would require it to assess the legal significance of an unusual combination of circumstances, and it found that this "confluence of specifics" was unlikely to recur. Id. at 12a. The court also held that any such future claims would not necessarily evade review because a challenge filed substantially in advance of the relevant election would "stand a strong chance of gaining full appellate review in light of the Act's requirement that the judiciary expedite consideration of such challenges." Id. at 13a (citing BCRA § 403(a)(4), 116 Stat. 113).

ARGUMENT

Appellant contends (J.S. 8-24) that its as-applied constitutional challenge to BCRA § 203 is "capable of repetition yet evading review," and that its suit there fore remains justiciable, notwithstanding the fact that the Senate vote on the Marriage Protection Amendment took place in June 2006. The three-judge district court rejected that argument, holding that no substantially similar dispute involving appellant is likely to recur, and that any such dispute that might arise could potentially receive full appellate consideration if suit were filed sufficiently in advance of the relevant election. Those holdings are correct. This Court therefore should dis miss the appeal as moot or affirm the judgment of the district court. In the alternative, the Court may wish to hold the jurisdictional statement pending the possible filing and disposition of any jurisdictional statements in Wisconsin Right to Life, Inc. v. FEC, No. 04-1260 (D.D.C. Dec. 21, 2006) (WRTL II).

1. a. When it sought expedited consideration of its appeal of the district court's denial of a preliminary in junction, appellant represented to this Court that a Sen ate vote on the Marriage Protection Amendment was expected in early June and that appellant "only wants to run the ['Crossroads'] ad until the vote occurs and not thereafter." 05-1447 Mot. to Expedite 2. The Senate terminated its consideration of the Marriage Protection Amendment in June 2006, and appellant has identified no reason to believe that any subsequent Senate vote on that measure will occur in the foreseeable future. More over, because appellant chose not to run the "Cross roads" advertisement during the 30-day period before the June Senate primary election in Maine, it cannot be subject to any potential future Commission enforcement action whose validity might turn on the determination whether BCRA's financing restrictions are constitu tional as applied to that advertisement.

Because no live controversy exists concerning the constitutionality of BCRA § 203 as applied to the "Crossroads" advertisement, appellant's claim with re spect to that advertisement is moot and no longer suit able for judicial resolution. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (explaining that the "Constitution's case-or-con troversy limitation on federal judicial authority, Art. III, § 2, underpins * * * [this Court's] mootness jurisprudence"). "Article III denies federal courts the power 'to decide questions that cannot affect the rights of litigants in the case before them.'" Lewis, 494 U.S. at 477 (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). "This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain [this Court's] jurisdiction * * * it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals." Id. at 477-478.

b. This Court has recognized an exception to moot ness principles for situations that are "capable of repeti tion, yet evading review." See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). "[T]he capable-of- repetition doctrine applies only in exceptional situa tions," Lyons, 461 U.S. at 109, "where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again," Spencer v. Kemna, 523 U.S. 1, 17-18 (1998) (citations and internal quotation marks omitted) (brackets in orig inal) (quoting Lewis, 494 U.S. at 481). For an alleged wrong to be considered "capable of repetition," "there must be a 'reasonable expectation' or 'demonstrated probability' that the same controversy will recur involv ing the same complaining party." Murphy, 455 U.S. at 482 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Accord, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978). This Court "has never held that a mere physical or theoretical possibility was sufficient" to satisfy this test; if that were enough, "virtually any matter of short duration would be reviewable." Murphy, 455 U.S. at 482.

As the district court correctly held (J.S. App. 11a- 13a), appellant's constitutional claim with respect to the "Crossroads" advertisement is not "capable of repeti tion" within the meaning of this Court's decisions, since appellant has failed to demonstrate "a reasonable expec tation or demonstrated probability that the same con troversy will recur involving the same complaining party." Murphy, 455 U.S. at 482 (citation and internal quotation marks omitted). Because the instant suit in volves an as-applied rather than a facial challenge to BCRA § 203, a broad range of idiosyncratic circum stances would potentially bear on the correct disposition of appellant's claim. Those circumstances include appel lant's decision to run a broadcast advertisement about the Marriage Protection Act just before a federal pri mary election in Maine; the group's determination to finance the advertisement with corporate funds, even though it could use a separate segregated fund; and the group's decision to identify a Senate candidate in the advertisement, even though it could encourage grass- roots action without doing so. Although appellant need not show that "the precise facts related to the Cross roads Ad" (J.S. 10) are likely to be replicated, any fu ture dispute must at least involve a substantially similar factual setting in order for the two cases to present the "same controversy."3

Whatever the precise nature of the showing that may be required in this context, appellant cannot satisfy the applicable standard on the record in this case. At his deposition, appellant's longtime executive director testi fied that he could not recall any prior occasion on which appellant had run a broadcast advertisement that had identified a federal office holder. See FEC Opp. to Mot. for Prelim. Inj. 11-12. Appellant later introduced evi dence (see J.S. 3-4) that in July 2004 it had run a radio advertisement identifying Senators Snowe and Collins. There was no Senate election that year in Maine, how ever, and the primary election for other federal offices was held on June 8, 2004. See Bureau of Corporations, Elections & Commissions, State of Maine, Election Re sults (visited Dec. 28, 2006) <http://www.maine.gov/ sos/cec/elec/prior1st.htm>. Thus, the only broadcast advertisement mentioning a federal office holder that appellant has been shown to have financed did not fall within BCRA's definition of an "electioneering communi cation."

Nor has appellant demonstrated any likelihood that its advertising practices will change in the future. In its complaint, appellant alleged in general terms that it "intends to run materially similar grass-roots lobbying ads falling within the electioneering communication pro hibition period[s] before" other federal primary and general elections. Compl. para. 16. In his deposition, however, appellant's executive director testified that appellant had no plans to run any advertisements other than the "Crossroads" advertisement, and that the group had "no other issues selected for future cam paigns." J.S. App. 6a. Appellant's counsel likewise rep resented that the group had "no concrete plans to do an ad" other than the "Crossroads" advertisement. Ibid. Absent any demonstrated likelihood that appellant will again seek to finance substantially similar advertise ments during the periods covered by BCRA § 203, appel lant's "bare statement of intention is insufficient to es cape mootness." Fox v. Board of Trs. of SUNY, 42 F.3d 135, 143 (2d Cir. 1994); cf. Lujan v. Defenders of Wild life, 504 U.S. 555, 564 (1992) (holding that "'some day' intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the 'actual or immi nent' injury" required for Article III standing).

The anomalous circumstances under which this case arose reinforce the conclusion that the current contro versy is unlikely to recur. Record evidence indicates that appellant's expressed intent to finance the "Cross roads" advertisement reflected a hastily arranged effort to facilitate a constitutional challenge to BCRA § 203. Appellant filed this lawsuit ten days after an official of the Colorado group Focus on the Family sent an e-mail to leaders of a number of organizations, including appel lant's executive director. That e-mail forwarded a mes sage from counsel offering to seek a federal court in junction at no charge on behalf of "any group" that planned a "grass roots lobbying" advertisement during the electioneering-communication period in its State, adding that "[t]his may even involve an appeal to the U.S. Supreme Court (which would result in a landmark ruling)." FEC Opp. to Mot. for Prelim. Inj. Exh. B. The e-mail explained that the recipients had been selected "because [they were] in [States] that could be affected by McCain-Feingold restrictions on Marriage Amend ment lobbying ads that target U.S. Senators who are on the ballot." Before receiving that communication, appel lant had given no consideration to financing broadcast advertising during 2006. See id. at 7. About one hour after receiving the e-mail, however, appellant's execu tive director agreed to "run an ad in that period of time mentioning Olympia Snowe." Id. Exh. C. Focus on the Family subsequently provided appellant with the text of the "Crossroads" advertisement that is at issue in this case. Id. at 8.

The funding mechanism chosen by appellant rein forces the inference that the planned advertising cam paign was primarily a means to engender litigation. When the complaint was filed, appellant lacked the $3992 needed to air the "Crossroads" advertisement on local radio. See FEC Opp. to Motion for Prelim. Inj. 9- 10; CCL I, 433 F. Supp. 2d at 86. Appellant subse quently represented that a single donor had agreed to provide the necessary funds. See ibid. That donation would have been within the $5000 limit on individual contributions to a separate segregated fund if appellant had chosen to establish one, see 2 U.S.C. 441a(a)(1)(C) (Supp. IV 2004), and the individual donor could simply have financed the advertisement himself without the need for appellant to act as a conduit. Because the availability of those alternatives would be directly rele vant to the resolution of appellant's as-applied constitu tional challenge, the absence of any reason to believe that comparable circumstances will recur in the future further undermines appellant's contention that it will likely confront the "same controversy" again.

c. Appellant appears to contend (J.S. 11-13) that it has satisfied the "same controversy" requirement by avowing an intent to finance future advertisements that (i) constitute "grassroots lobbying" and (ii) fall within BCRA § 203's definition of "electioneering communica tion." Because appellant refuses to advocate any spe cific definition of the term "grassroots lobbying," its contention that the "Crossroads" advertisement quali fies (and that appellant intends to finance other "grass roots lobbying" communications in the future) provides no cogent basis for concluding that the "same contro versy" is likely to recur.4 And if every dispute about the constitutionality of BCRA § 203's restrictions on the financing of "electioneering communication[s]" were deemed to present the "same controversy," the distinc tion between facial and as-applied challenges that this Court recognized in WRTL I would effectively be elimi nated. See J.S. App. 8a.

d. Appellant suggests (J.S. 10, 13 n.14) that election- related disputes necessarily or at least presumptively satisfy the "capable of repetition yet evading review" exception to the rule that moot cases are non-justiciable. This suit, however, differs in a fundamental way from the cases on which appellant relies. When a plaintiff demonstrates an intent to participate in electoral pro cesses on an ongoing basis, a court may have reasonable grounds for concluding that any injury the plaintiff suf fers during one election will be repeated during later electoral cycles. The gravamen of appellant's as-applied challenge, by contrast, is that it lacks the intent to influ ence federal elections, but that its purported issue advo cacy was impeded by the fortuity that the Senate vote on which it sought to comment coincided with a Maine Senate primary. In light of appellant's disavowal of any intent to engage in electoral advocacy, there is no sound reason to conclude on the record before this Court that appellant will again wish to finance advertisements mentioning candidates for federal office during the brief pre-election periods covered by BCRA § 203.

e. Even if a substantially similar controversy were to recur in the future, appellant's as-applied challenge would not necessarily evade review. See J.S. App. 13a. This suit was filed in April 2006, just six weeks before the start of the applicable electioneering-communication period. The district court noted that a suit brought sub stantially in advance of the relevant election would "stand a strong chance of gaining full appellate review in light of [BCRA's] requirement that the judiciary ex pedite consideration of such challenges." Ibid.; see BCRA § 403(a)(4), 116 Stat. 114. Indeed, even the mas sive McConnell litigation took less than 21 months from the time complaints were filed until the final decision of this Court. There is no reason to suppose that the time between the filing of a far simpler suit like this one and the occurrence of an election would be "always so short as to evade review." Spencer, 523 U.S. at 18.

Appellant contends (J.S. 20-22) that the communica tive activities in which it wishes to engage cannot feasibly be planned well in advance of the proposed com munications. The proposed constitutional amendment discussed in the "Crossroads" advertisement was intro duced in early 2005, however, and appellant appears to have been aware at that time of Senator Snowe's likely candidacy in the 2006 election and her position on the amendment. See FEC Opp. to Mot. for Prelim. Inj. 13- 14; Plaintiff Reply in Support of Mot. for Prelim. Inj. 2. Appellant's contention that it must react quickly to emerging legislative events is further belied by the sub stantial indications that the proposed "Crossroads" ad vertisement was conceived as a device to generate litiga tion. See pp. 19-21, supra.

2. As the district court correctly held, appellant's claims with regard to advertisements other than the "Crossroads" advertisement are "not ripe and/or too speculative and hypothetical to be justiciable." J.S. App. 2a. Appellant's continuing failure to articulate a clear and administrable definition of the term "grass roots lobbying" underscores the absence of any focused dispute between the parties and the impropriety of any injunctive or declarative relief incorporating that term. See Fed. R. Civ. P. 65(d) ("Every order granting an in junction * * * shall be specific in terms * * * [and] shall describe in reasonable detail * * * the act or acts sought to be restrained."). And even if appellant had articulated a clear proposed legal standard, its failure to describe with any precision the sort of advertisements it intends to finance means that there is not even a hy pothetical set of facts to which the standard can be ap plied.

In Renne, this Court relied on comparable factors in holding unripe the plaintiffs' constitutional challenge to restrictions on political speech. The plaintiffs in that case had challenged a state-law provision barring politi cal parties from endorsing candidates for nonpartisan office. This Court stated:

We also discern no ripe controversy in the allega tions that respondents desire to endorse candidates in future elections * * * . [Plaintiffs] do not allege an intention to endorse any particular candidate, nor that a candidate wants to include a party's or com mittee member's endorsement in a candidate state ment. We possess no factual record of an actual or imminent application of [the state-law restriction] sufficient to present the constitutional issues in clean-cut and concrete form. We do not know the nature of the endorsement, how it would be publi cized, or the precise language [state officials] might delete from the voter pamphlet. To the extent [plaintiffs] allege that a committee or a committee member wishes to "support" or "oppose" a candidate other than through endorsements, they do not spec ify what form that support or opposition would take.

501 U.S. at 321-322 (citations and internal quotation marks omitted).

Similarly here, appellant has not identified the candi date(s) it may wish to identify in future communications, the legislative issues those communications might dis cuss, the timing or location of the advertisements, the nature of the electoral environment in which the adver tisements might air, or the impediments to using financ ing methods (e.g., a separate segregated fund) that would not trigger BCRA § 203's restrictions. In the absence of such information, appellant's challenge to possible future applications of BCRA § 203 does not "present the constitutional issues in 'clean-cut and con crete form.'" 501 U.S. at 322 (quoting Rescue Army v. Municipal Ct., 331 U.S. 549, 584 (1947)).

3. Appellant requests (see J.S. i, 24-29) that this Court consider the merits of its contention that BCRA § 203 is unconstitutional as applied to its "Crossroads" advertisement in particular and to "genuine grassroots lobbying" in general. That course would be inappropri ate even if this Court were to conclude that appellant's claims are currently justiciable. Because the district court did not resolve the merits of appellant's constitu tional claims, there is no pertinent ruling for this Court to review. And because only minimal discovery oc curred before the district court denied preliminary in junctive relief in May, the existing evidentiary record is inadequate for this Court to adjudicate appellant's as- applied challenge. For those reasons, the second and third questions presented in the jurisdictional statement are not properly before this Court, which "ordinarily 'do[es] not decide in the first instance issues not decided below.'" Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 109 (2001) (quoting National Collegiate Ath letic Ass'n v. Smith, 525 U.S. 459, 470 (1999)).

To the extent that the evidentiary record has been developed, that record does not support appellant's claim for a constitutional exemption from BCRA § 203's generally applicable restrictions on the financing of electioneering communications. See CCL I, 433 F. Supp. 2d at 87-89 (holding, in connection with the denial of preliminary injunctive relief, that appellant had failed to establish a substantial likelihood of success on the merits of its as-applied constitutional challenge). Evi dence obtained in connection with the motion for a pre liminary injunction indicates that the Crossroads adver tisement was prompted by the then-imminent Senate primary election and had the potential to affect electoral outcomes. See pp. 11, 19-21, supra. The evidence fur ther indicates that appellant easily could have publicized its message through other lawful means and could have financed it through a separate segregated fund. See pp. 20-21, supra.

The Court in McConnell recognized that BCRA's electioneering-communication restrictions can be ap plied constitutionally to communications that, like the "Crossroads" advertisement, discuss legislative con cerns but can also be expected to influence federal elec tions. The Court concluded that BCRA's minimal im pact on such advertising was constitutionally acceptable because corporations and unions could "finance genuine issue ads during those timeframes by simply avoiding any specific reference to federal candidates, or in doubt ful cases by paying for the ad from a segregated fund." McConnell, 540 U.S. at 206. Appellant seeks a quasi- legislative carve-out that both Congress and the Court in McConnell have considered and rejected, and that ignores the carefully balanced set of benefits and bur dens that the Act applies to corporations and unions and their separate segregated funds. In any event, because the underlying as-applied claims in this case are non- justiciable and therefore were not addressed by the dis trict court on the merits, this case does not provide an occasion for the Court to address the validity of such a carve-out.

4. For the foregoing reasons, the decision of the three-judge district court is correct and does not war rant plenary appellate review in this Court. On Decem ber 21, 2006, however, a different three-judge panel of the District Court for the District of Columbia issued its decision in WRTL II, on remand from this Court's deci sion in WRTL I. The court in WRTL II considered a constitutional challenge to the application of BCRA § 203 to three broadcast advertisements that the plain tiff had proposed to air in 2004. See slip op. 2-6. The district court held that the plaintiff's challenge was "ca pable of repetition, yet evading review," and was there fore justiciable, see id. at 9-13, and that BCRA § 203's financing restrictions are unconstitutional as applied to the advertisements in question, see id. at 14-26. With respect to the mootness issue, the court in WRTL II expressed disagreement with the holding of the three- judge district court in the instant case. See slip op. 13 n.14. On December 29, 2006, the FEC and intervenor- defendants filed notices of appeal to this Court of the district court's ruling in WRTL II.

Thus, if a jurisdictional statement is filed in WRTL II and this Court notes probable jurisdiction, the Court will be required to determine whether the plaintiff's suit is "capable of repetition, yet evading review." Because of the unique circumstances presented by each case -including the fact that the plaintiff in WRTL II has engaged in much more extensive broadcast issue adver tising in the past than has appellant-the Court's reso lution of the mootness issue in that case will not neces sarily control the outcome here. Nevertheless, the Court may wish to hold the jurisdictional statement in the instant case pending the possible filing and disposi tion of any jurisdictional statements in WRTL II.

CONCLUSION

The appeal should be dismissed for lack of jurisdic tion, or the judgment of the district court should be af firmed. In the alternative, the jurisdictional statement should be held pending the filing and disposition of any jurisdictional statements in Wisconsin Right to Life, Inc. v. FEC, No. 04-1260 (D.D.C. Dec. 21, 2006), and then disposed of as appropriate.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GREGORY G. GARRE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General

LAWRENCE H. NORTON
General Counsel
RICHARD B. BADER
Associate General Counsel
DAVID KOLKER
Assistant General Counsel
HARRY J. SUMMERS
Attorney
Federal Election Commission

DECEMBER 2006

1 BCRA excludes from the definition of "electioneering communica tion" "(i) a communication appearing in a news story, commentary, or editorial distributed through" a broadcasting station; (ii) a communica tion that is an expenditure or independent expenditure under the Federal Election Campaign Act; (iii) a candidate debate or forum; and (iv) any other communications the Commission exempts by regulation, consistent with certain requirements. BCRA § 201(a), 116 Stat. 88 (2 U.S.C. 434(f)(3)(B)(i)-(iv) (Supp. IV 2004)). The definition also does not encompass print communications such as billboards, newspaper and magazine advertisements, brochures, and handbills, and it does not cover telephone or Internet communications. See McConnell, 540 U.S. at 207.

2 In a footnote, the district court observed that appellant's request for a preliminary injunction extended beyond the "Crossroads" adver tisement to "encompass 'any electioneering communications by [ap pellant] that constitute grass-roots lobbying.'" CCL I, 433 F. Supp. 2d at 84 n. 1. The court observed, however, that appellant had "fail[ed] to define 'grassroots lobbying' (other than as including its proposed advertisement) or to identify any necessity for the application of such a broader injunction." Ibid. The court concluded on that basis that appellant's "request for the broader preliminary injunction [was] un warranted." Ibid. The remainder of the court's opinion therefore addressed appellant's request for preliminary injunctive relief only insofar as that request pertained to the "Crossroads" advertisement. See ibid.

3 Contrary to appellant's contention (J.S. 10), the district court did not hold that a dispute is capable of repetition only if the "precise facts" of the case are likely to recur. Rather, the thrust of the court's analysis was that the combination of circumstances involved in this case was sufficiently unusual that a materially similar controversy is unlikely to arise again. That conclusion is correct for the reasons stated at pp. 18- 22, infra.

4 Appellant identifies two possible definitions of the term "grassroots lobbying," see J.S. 24-26 nn.27-28, but carefully refrains from endorsing either one. The statement in the "Crossroads" advertisement that, "[u]nfortunately, your senators voted against the Marriage Protection Amendment two years ago," J.S. 1 n.1 (emphasis added), would take that advertisement outside the two proposed "grassroots lobbying" exceptions that appellant identifies. See J.S. 25 n.27 (stating that the criteria for the first exception "are not met if the communication includes any reference to * * * the candidate's record or position on any issue"); J.S. 25 n.28 (providing, as one condition for the second exception, that, "[i]f the communication discusses the candidate's position or record on the matter, it does so only by quoting the candi date's own public statements or reciting the candidate's official action, such as a vote, on the matter").