The Wisconsin Right to Life Committee (WRTL) appealed to the Supreme Court May 24 asking it to overturn a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) that prohibits the broadcast of ads that mention federal candidates within 60 days of a general election or 30 days of a primary. WRTL ran ads in the summer of 2004 asking Sens. Russ Feingold (D-WI) and Herb Kohl (D-WI) to support President Bush's judicial nominees. It had to discontinue the ads on Aug. 15, 2004 because Feingold was running for re-election. The group says the ads were grassroots lobbying communications that should be protected by the First Amendment, not partisan electioneering. In August 2004, WRTL filed a lawsuit challenging application of the electioneering communications rule prohibiting it from airing the ads about judicial nominees and similar ads it may want to run in the future. The suit asked a special three judge panel for the U.S. District Court for the District of Columbia for an injunction against application of the rule to these facts, even though the Supreme Court had upheld the general provisions of the law in McConnell v. FEC in December 2003. The District Court dismissed the suit, saying the language of the McConnell decision does not allow challenges to specific applications of the law, called "as applied" challenges. WRTL argued that the Supreme Court had rejected a broad challenge claiming the electioneering communications provision of BCRA is unconstitutional on its face, but had not precluded the "as applied" challenge. It called the lower court's position "unprecedented" and at odds with "reason, reality and justice." In its Jurisdictional Statement seeking Supreme Court review, WRTL emphasized factors that distinguish grassroots lobbying from partisan electioneering. These include:

• The ad refers to a specific pending legislative matter and not the election
• The federal candidate is mentioned as a federal officeholder, not as a candidate
• There is no reference to a political party, the officeholder's character or fitness for office or his or her record on an issue
• Contact information is provided so the public can make their views known to their elected representative
• The organization has a long-standing interest in the issue at hand, and
• The ads appeared both inside and outside the 30/60 day blackout period required by BCRA.

WRTL is a 501(c)(4) organization that has endorsed Republican candidates. The group could have used "hard" dollars, raised and spent subject to federal campaign finance regulations, to pay for the ads. However, they said this placed an unconstitutional burden on them.