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Posted May 2, 2006 by Gerry Hebert

CLC Addresses Mootness in WRTL v. FEC

On May 1, 2006, the Campaign Legal Center filed a Memorandum in the WRTL v. FEC and McCain case in response to a recent order from the three-judge court explaining whether the case continued to present an actual live case or controversy.  That memo can be read here. The Legal Center is serving as co-counsel for the defendant-intervenors in the case, United States Senator John McCain and Representatives Chris Shays, Marty Meehan, and Tammy Baldwin.  Other co-counsel for the defendant-intervenors include:  attorneys at the lawfirm of Wilmer Cutler Pickering Hale and Dorr; Donald Simon of Sonosky, Chambers, Sachse, Endreson and Perry; Scott Nelson of Public Citizen Litigation Group; and Fred Wertheimer of Democracy 21.

The FEC also filed a Memorandum in the case suggesting the case was moot, which can be read here.  And WRTL filed a memorandum, available here, in which it concluded that “there is a live controversy…with respect to (a) WRTL’s three specific ads and materially similar ads that it intended to run in 2004 and (b) genuine grassroots lobbying more generally, including (without limitation) the materially similar ads that WRTL intends to run in the future.”

In urging the three-judge court to dismiss the case as moot, the intervenors’ memorandum noted that this case involved an attempt by the plaintiff Wisconsin Right to Life, Inc. to run ads during the 2004 election cycle.  Intervenors noted that the relief sought by the plaintiff when the case was brought, i.e., a declaratory judgment and an injunction, would have no effect at this stage of the proceedings.  The election has been held and there is nothing left to enjoin.  Rendering a declaratory judgment makes no sense either because it would essentially put the three-judge court in the position of rendering an advisory opinion.  The memorandum also explained why this case does not fall within the narrow mootness exception of being a dispute “capable of repetition but evading review.”   The intervenors’ memorandum also explained why the issue of WRTL running some purely hypothetical future ads is not ripe for adjudication by the three-judge court. 

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