1. Whether all as-applied challenges to the disclosure requirements (reporting and disclaimers) imposed on "electioneering communications" by the Bipartisan Campaign Reform Act of 2002 ("BCRA") were resolved by McConnell's statement that it was upholding the disclosure requirements against facial challenge "for the entire range of electioneering communications' set forth in the statute." Mem. Op. I, App. 15a (quoting McConnell v. FEC, 540 U.S. 93, 196 (200)). 2. Whether BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering communications protected from prohibition by the appeal-tovote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) ("WRTL II"), because such communications are protected "political speech," not regulable "campaign speech," id. at 2659, in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when so applied.3. Whether WRTL II's appeal-to-vote test requires a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b. 4. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication.Question:
1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional? 2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"? 3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA? 4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?Note:
FOR REARGUMENT. THE PARTIES ARE DIRECTED TO FILE SUPPLEMENTAL BRIEFS ADDRESSING THE FOLLOWING QUESTION: FOR THE PROPER DISPOSITION OF THIS CASE, SHOULD THE COURT OVERRULE EITHER OR BOTH AUSTIN V. MICHIGAN CHAMBER OF COMMERCE, 494 U.S. 652 (1990), AND THE PART OF MCCONNELL V. FEDERAL ELECTION COMM'N, 540 U.S. 93 (2003), WHICH ADDRESSES THE FACIAL VALIDITY OF SECTION 203 OF THE BIPARTISAN CAMPAIGN REFORM ACT OF 2002, 2 U.S.C. §441b? EXPEDITED BRIEFING SCHEDULE THE CASE IS SET FOR ORAL ARGUMENT AT 10 A.M., WEDNESDAY, SEPTEMBER 9, 2009.