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Christian Civic League of Maine, Inc. v. Federal Election Commission

September 27, 2006

THE CHRISTIAN CIVIC LEAGUE OF MAINE, INC., PLAINTIFF,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT, AND JOHN MCCAIN, RUSSELL FEINGOLD, CHRISTOPHER SHAYS, MARTIN MEEHAN, AND TOM ALLEN, INTERVENOR-DEFENDANTS.



The opinion of the court was delivered by: Judith W. Rogers United States Circuit Judge

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" advertisements in the future. Verified Complaint ¶ 16, Prayer for Relief (filed Apr. 3, 2006). Defendant Federal Election Commission (the "Commission"), has moved to dismiss the League's claims as "not ripe" and/or "too speculative and hypothetical to be justiciable under Article III" insofar as they pertain to any circumstances other than those surrounding the efforts of the League to broadcast the Crossroads advertisement. Commission's Motion at 1 (filed June 12, 2006). The intervenor-defendants, certain legislators (the "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 Memorandum Opinion. Briefly, the League -- a self-styled "nonprofit, nonstock . . . ideological" 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"), appeared to prohibit it from broadcasting the Crossroads advertisement in the described circumstances. (The Act prohibits corporations from using general corporate funds for "electioneering communication[s]," 2 U.S.C. § 441b(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 challenge 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 in doubtful cases by paying for the ad from a segregated fund." Id. at 206.

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 communications provision; i.e., the First Amendment might require the exemption of particular advertisements, in particular circumstances, from the Act's definition of an electioneering communication. 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).

II. 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 ¶ 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 Crossroads advertisement (the "non-Crossroads claims"), those claims 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 nonCrossroads 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.*fn1 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 ...


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