Appellants Brief — McConnell v. Federal Election Commission

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91> 1678 1 | | |

o. 02-1675 | St? 9003 |

In The or ae |

Supreme Court of the Gnited States

NATIONAL RIFLE ASSOCIATION, et al.,

Appellants,

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

On Appeal From The

United States District Court

For The District Of Columbia

BRIEF FOR APPELLANTS THE NATIONAL

RIFLE ASSOCIATION, ET AL.

CLETA MITCHELL CHARLES J. COOPER

FoLeYy & LARDNER Counsel of Record

3000 K Street, N.W. Suite 500 Davip H. THOMPSON

Washington, D.C. 20007 HaMISH P.M. HUME

(202) 295-4081 DEREK L. SHAFFER

Cooper & KIRK, PLLC

1500 K Street, N.W.

Suite 200

Washington, D.C. 20005

(202) 220-9600

BRIAN S. KOUKOUTCHOS

Cooper & KIRK, PLLC

28 Eagle Trace

Mandeville, LA 70471

July 8, 2003 (985) 626-5052

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether Congress restricted corporate and union

“electioneering communications” about candidates in

Title II of the Bipartisan Campaign Reform Act of 2002

(“BCRA”) in order to serve a compelling governmental

purpose, as required by the First Amendment to the

United States Constitution.

Whether Congress adopted the least restrictive means

of regulating political speech by flatly prohibiting “elec-

tioneering communications” by both nonprofit 501(c)(4)

corporations and for-profit corporations alike in Section

204 of BCRA, rather than permitting 501(c)(4) corpora-

tions to fund such communications exclusively with

individual contributions, as was initially contemplated

in Section 203(b).

Whether Congress adequately tailored the definitions

of “electioneering communications” i~ Section 201 of

BCRA to serve the anti-corruption purpose proffered in

support of those definitions.

Whether Congress violated the Equal Protection

guarantee of the Fifth Amendment by granting a spe-

cial exemption in Section 201 of BCRA for political

speech by corporations that own broadcast facilities, as

opposed to all other corporations whose identical

speech constitutes forbidden “electioneering communi-

cations.”

PARTIES TO THE PROCEEDINGS

Appellants in this case, No. 02-1675, plaintiffs in the

court below, are the National Rifle Association (“NRA”)

and the National Rifle Association Political Victory Fund

(“PVF”), a Political Action Committee (“PAC”) of the

NRA.*

Appellees, defendants or intervenor-defendants below,

are the Federal Election Commission and its Commission-

ers; the Federal Communications Commission; the United

States of America; Senator John McCain; Senator Russell

Feingold; Representative Christopher Shays; Representa-

tive Martin Meehan; Senator Olympia Snowe; and Senator

James Jeffords.

* As stated in appellants’ jurisdictional statement, neither

appellant has a parent corporation, and no publicly held company owns

10% or more of the stock of either appellant.

iil

TABLE OF CONTENTS

Page

a Vv

ETE NC 1

aaa rltt ct accinmsenatansetnase 1

PERTINENT CONSTITUTIONAL AND STATUTORY

LETS A 1

EEE nn 1

INTRODUCTION AND SUMMARY OF ARGUMENT... 3

iit eels dtecceidn mates iengabnenintenesoniaess 7

I. TITLE I?S PURPOSE IS TO STIFLE CORE

EES HEI cccctdsccccocsccccessesessoscnnsoense 7

Il. TITLE IS RESTRICTIONS ON “ELECTION-

EERING COMMUNICATIONS” CANNOT BE

JUSTIFIED AS PREVENTING CORRUPTION .. 15

A. Title Il Was Not Designed To Prevent Cor-

B. Gratitude For Political Support Is Not

TT isos dis ananaediininiatadinncnnannanbneseneiee 17

C. Title II Cannot Be Justified As Preventing

Austin-style Corruption.......................cceeeee 20

D. Title Il Carnot Be Justified As Protecting

Members Of Advocacy Groups From Mis-

Use Of Their Donation..........................::00 23

E. Requiring The NRA To Speak Through Its

PAC Will Artificially Deflate Its Voice ........ 24

TABLE OF CONTENTS - Continued

Page

Ill. THE WELLSTONE AMENDMENTS SUP-

PRESSION OF POLITICAL SPEECH FUNDED

EXCLUSIVELY WITH INDIVIDUAL CONTRI-

BUTIONS IS UNCONSTITUTIONAL................. 28

IV. TITLE II IS FATALLY OVERBROAD ............... 33

A. Title II Criminalizes The Speech Of Or-

ganizations That Pose No Threat Of Cor-

rupting The Political Process...................... 34

B. Title II Criminalizes Speech That Is Not

Intended To Influence Elections.................. 35

V. TITLE II UNCONSTITUTIONALLY DIS-

CRIMINATES IN FAVOR OF MEDIA COR-

Fee ncrsseensesnenesessesencennvensienniiiasneetenenenetes 44

IED cersesnsnccinmnescnennsenenctnntncasnneienesensossnianinen 50

LEGISLATIVE HISTORY APPENDIX ...................4. la

TABLE OF AUTHORITIES

Page

CASES

Arlington Heights v. Metro. Hous. Dev. Corp., 429

Sp ATE EIETTITTET a cienitaiinicihieiheeneninteeiictsiimieiuaiiiemniniiniitiabaddaciinties 11

Ashcroft v. Free Speech Coalition, 535 U.S. 234

ili htisniatidhicinteicespindinbdanedenaibiadeiniapiuaiiimndineitusiennmapeameeel 33

Austin v. Michigan State Chamber of Commerce,

a ee itiniscridniniinnnnianinsnmnneictinsvenasue passim

Buckley v. Valeo, 424 U.S. 1 (1976).................cccceeeeeee passim

California Med. Ass’n v. FEC, 453 U.S. 182 (1981)........... 31

City of Ladue v. Gilleo, 512 U.S. 43 (1994)... eee 9

Colorado Republican Fed. Campaign Comm. v.

ee 15, 24

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

NY ITE icsccuiesissinicuntsidiiiiinvedaevendienenpeinmenmunin 45

Edwards v. California, 314 U.S. 160 (1941)................0000 34

FCC v. League of Women Voters, 468 U.S. 364

aaa ea a aidicninniteinieinchdeiciensaleiasitinseiaicihdiiiapanndaeiininansiibabiiaiiedaasdtdnianeetaed 45

FEC v. Beaumont, No. 02-403, 123 S. Ct. 2200, slip

— Rr 15, 21, 22, 23, 31

FEC v. Colorado Republican Fed. Campaign

ia tee et SED TIED sictsictcincnncnccececnnscnncncciinenanannins 15

FEC v. MCFL, 479 U.S. 238 (1986) ..................ceeeeeeee passim

FEC v. NCPAC, 470 U.S. 480 (1985)......... 10, 24, 29, 32, 34

FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d

SEIIy Tarai icsishisinrapeseicieiuiosiniainicabiaieeiabindienneeieniiatnemaenentiainimnnenntetinn 35

First Nat'l Bank v. Bellotti, 435 U.S. 765

CP ccecccsencsenssensssenneesssssnsnecosccnsnnosssenneseoevees 20, 36, 45, 46

TABLE OF AUTHORITIES -— Continued

Page

Grutter v. Bollinger, No. 02-241, slip op. (U.S. June

Sa, SUITE Uchsnsscininntineitdeestnasinichesnienbenenadntaisnentienienianarimiiepasiidsil 46

MCCL v. FEC, 113 F.3d 129 (8th Cir. 1997)...................... 35

MCCL v. FEC, 936 F. Supp. 633 (D. Minn. 1996),

aff'd, 113 F.3d 129 (8th Cir. 1997) ..............ccccccsssssesseeees 35

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

Srv atTaletsciiinsisecoceciiiiiiiaianipaannincdiphpteibianieeaiadanauiitadiabinibabiidibsiiiesdabaamatanis 14

Mills v. Alabama, 384 U.S. 214 (1966)..................0.008. 14, 45

New York Times Co. v. Sullivan, 376 U.S. 254

St sisicdinaticcnanpecniemennssndenbimantidenemanasnni 3, 12, 13, 14

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

STITT cctscestaietceeeisihenicihdeea hailed dabinbaieeabelaaiinbiadiniaibig 10, 11, 26

Pennsylvania Dep’t of Corrections v. Yeskey, 524

Ts: SEIT st cehiceitininstncsnenedpnionentnmsnntnitadminanditedidenmniass 35

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)............. 45

Renne v. Geary, 501 U.S. 312 (1991)...............ccccceeeeeeeeeeeees 34

Republican Party of Minnesota v. White, 536 U.S.

Se iciinciiniinniendcetaslunatinddnaginnaincieaninianesiianteneieniceiiei 25

Reno v. ACLU, 521 U.S. 844 (1997)..............cccccesseeeeeeeeeeees 42

Thompson v. Western States Med. Ctr., 535 U.S. 357

rarer oisclelcisdacshbciiidecieeamsiisaebeeldiagatanneaecinaniibaneeinsiciiaieamanianiats 16

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180

STi isseheitesbiincaeitmnesdniedinetacaennnianinepeimnideisdinimeniiinies 16, 46

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

I ela al a al 16

Vii

TABLE OF AUTHORITIES — Continued

Page

United States v. Playboy Entm’t Group, Inc., 529

ee Be ee cncesccsnscnnstscicnsnnnsiencnmmensegnancncuentnenmmnasenent 46

United States v. Virginia, 518 U.S. 515 (1996).................. 16

STATUTES, RULES AND REGULATIONS

I, MID sic codnnsccdecentunesnieniinssinianninindenednieesniateia 1

Be are Oe I ertccccnsnccscsesescosccnnctesensssesasneusmnasemel 44

Gy ae i ienesictcincnetecsecsnsnecsrcesantesestacennimensmmenecnansennient 26

OE Ge Oe ED ctniitsiicsinsctninncscteninecsinciensiniininisnaionmeieita 32

BE Gare Ob SW cetenstatsenesccinnenencensseseneiivaneurnicnnnsonntasscesonmiids 26

Be ae Oe Be cseictesnccnssassestcncenscssscssensestsecsntactonmnaients 35

OTHER:

ANTHONY LEWIS, MAKE No Law 52 (Random House

Si icsionineiiisnctnimeniiovinidesiietnidteetaniasiinaianieaniiianiannnieneninaeimendneniiebie 11

OPINIONS BELOW

The opinions and order of the district court are re-

ported at 251 F. Supp. 2d 176 (D.D.C. May 1, 2003) and

are reprinted in the supplemental appendix to the juris-

dictional statements (“S.A.”) filed in the cases consolidated

with McConnell v. FEC, No. 02-1674. See S.A. 1-1382.

JURISDICTION

The District Court entered judgment on May 1, 2003.

Appellants the National Rifle Association (the “NRA”) and

the NRA Political Victory Fund (the “PVF”) filed their

timely notice of appeal on May 5, 2003. This Court has

appellate jurisdiction under § 403(a)(3) of BCRA.

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First and Fifth Amendments to the United States

Constitution, and relevant provisions of BCRA, are repro-

duced at App. 5a-6a and 20a-29a of the NRA’s jurisdic-

tional statement.

STATEMENT"

The NRA is a nonprofit, voluntary membership

corporation qualified as tax-exempt under 26 U.S.C.

§ 501(c)(4). Its four million members are individual Ameri-

cans bound together by a common desire to ensure the

preservation of the Second Amendment right to keep an”

bear arms. S.A. 219 92 (Henderson). “The NRA’s frequent

references to candidates for federal office and the pro-

gramming it broadcasts throughout the election cycle —

including the period immediately preceding primaries and

In order to avoid unnecessary duplication, this statement relies

upon the brief filed by appellants in McConnell v. FEC, No. 02-1674, for

a more detailed description of Title II of the Bipartisan Campaign

Reform Act (“BCRA”) and the procedural background of this litigation.

general elections — are essential to its political mission of

educating the public about Second Amendment and

related firearm issues.” S.A. 256 (Henderson). In 2000, it

paid for more speech on television — over 300,000 minutes

— than all other issue advocacy groups and unions com-

bined. See Joint Appendix (“J.A.”) 367.’

The NRA’s political speech furthers a variety of pur-

poses: the NRA educates and informs its members and the

public about specific legislative threats to Second Amend-

ment rights, as well as broader political and cultural

pressures on gun rights; the NRA also defends itself against

attacks on its positions and reputation made by the media

and by anti-NRA politicians; and the NRA recruits mem-

bers and raises funds throughout the year. In almost all! of

this speech, the NRA refers to federal officeholders and

candidates. S.A. 256 951 (Henderson). And yet the vast

bulk of its political speech that furthered these purposes in

2000 was not intended to influence a federal election. See

J.A. 368, 380, 384-85.° The PVF is a political committee

within the meaning of 2 U.S.C. § 431(4) and is a separate

segregated fund of the NRA. The PVF runs ads that ex-

pressly advocate the defeat or election of a candidate.

The NRA funds its speech almost exclusively with

dues and contributions from individual members. The

* The record in the District Court included two volumes of appendi-

ces and a supplemental appendix filed by the NRA, which are cited as

they appear in the Joint Appendix or, alternatively, in the record below;

various portions of the record below are cited as they can be found in

Plaintiffs’ Consolidated Submission (“PCS”) or Deposition Transcripts

Unified Filing. Attached hereto is an appendix of relevant legislative

history referred to as “LH App.”

* To be sure, in 2000 the NRA also aired approximately 30,000

minutes of speech designed to, among other things, inform the public of

the grave threat that Vice President Gore’s presidential candidacy

posed to Americans’ Second Amendment rights. See S.A. 234-35 942a

(Henderson); S.A. 695 92.6.4.3 (Kollar-Kotelly); J.A. 383.

a ~ ;

‘ .

ie ee

organization does not accept business corporations as

members and the contributions that it receives from such

corporations are negligible (approximately $385,000 in

2000), especially in relation to its income from the dues

and contributions of individual members (approximately

$140 million in 2000). See S.A. 258-59 951f (Henderson);

J.A. 1963; J.A. 386. The average individual contribution to

the NRA is $30. S.A. 89 941 (Per Curiam); S.A. 258 951f

(Henderson). In short, the NRA is an organization com-

prised of ordinary Americans of moderate means who join

their voices in a common effort to defend, promote, and

enjoy a constitutional freedom that is precious to them.

INTRODUCTION AND SUMMARY OF ARGUMENT

“(A] representative democracy ceases to exist the

moment that the public functionaries are by any

means absolved from their responsibility to their

constituents; and this happens whenever the

constituent can be restrained in any manner

from speaking, writing, or publishing his opin-

ions upon any public measure, or upon the con-

duct of those who may advise or execute it.”

New York Times Co. v. Sullivan, 376 U.S. 254, 297 (1964)

(Black, J., joined by Douglas, J., concurring) (quoting 1 ST.

GEORGE TUCKER, BLACKSTONE’S COMMENTARIES (1803), 297

(editor’s appendix)). If there is truth in this proposition,

and this Court has reiterated it in many cases, then Title

II of BCRA cannot stand, for it bans, on pain of criminal

sanction, independent expenditures for broadcasting

“opinions . . . upon the conduct of those who may advise or

execute” public measures. It is, after all, references to

candidates for federal office that the NRA and similar

issue advocacy organizations are restricted by Title II from

broadcasting during an election campaign.

Title I's purpose is to severely restrict the quantity

and content of core political speech, a purpose that is

“wholly foreign to the First Amendment.” Buckley v. Valeo,

424 U.S. 1, 49 (1976). This is irrefutably clear from the

plain words of the statute itself; from the floor statements

of legislators who supported the measure; from the sworn

testimony of BCRA’s main sponsors, who intervened in

this litigation; from the law’s clearly foreseeable effect of

suppressing political speech; and even from the Interve-

nors’ own brief below, which candidly blamed “the amount

of general treasury funds at the disposal” of “interest

groups” like the NRA for the “explosion” in recent years of

issue ads — or “negative attack ads,” in their vernacular.

Intervenors’ Opening Br. 104 (filed Nov. 6, 2002) (emphasis

added). Indeed, the Government and the Intervenors

(collectively “Defendants”) went to great lengths to estab-

lish that this explosion in political speech was the predi-

cate for, and specific target of, Title Il. BCRA bans speech

to precisely the extent that it succeeds in its goal of muf-

fling this explosion.

This Court’s decisions have consistently drawn an

outcome-determinative distinction between legislative

restrictions on independent political expenditures and on

direct campaign contributions. Because independent

expenditures, in contrast to campaign contributions,

produce “core First Amendment expression” and pose little

“danger[] of real or apparent corruption,” Buckley, 424

U.S. at 48, 46, this Court has, with one exception, consis-

tently struck down expenditure limits as failing to nar-

rowly serve the compelling government interest of

preventing corruption of the electoral process. Title II

fares no better. To be sure, Defendants introduced in the

District Court a mountain of evidence in support of their

claim that the current campaign finance system is widely

perceived to corrupt the political process. But that evi-

dence relates almost entirely to the corrupting influence of

unregulated “soft money” campaign contributions, which

are addressed by Title I. The record contains no substan-

tial evidence that the public regards political ads aired by

advocacy groups as corrupting or in any sad differentiates

them from ads funded by PACs.

Nor can Title II find shelter in the only decision of this

Court upholding an expenditure limit, Austin v. Michigan

State Chamber of Commerce, 494 U.S. 652 (1990). Title II’s

purpose, according to the Government, is merely “to

ensure that [independent electioneering] spending ‘re-

flect{s) actual public support for the political ideas

espoused by corporations and unions, rather than their

success in the economic marketplace, Austin, 494 U.S. at

660.... ” Govt Opp’n Br. 56 (filed Nov. 20, 2002). But

Austin simply cannot be made to support a speech restric-

tion that extends any further than is necessary to ensure

that a nonprofit advocacy group’s independent political

spending bears a fair and reasonable “correlation to the

public’s support for the corporation’s political ideas,” 494

U.S. 660, as measured by the financial support of individ-

ual members rather than business corporations. The NRA,

in contrast to trade or business associations, derives only a

miniscule portion of its revenues from corporate contribu-

tions. It is funded almost exclusively by membership dues

of approximately four million individuals of ordinary

means, the vast bulk of whom cannot afford to make an

additional donation to the NRA’s PAC, the PVF, as is

required under Title II in order to fund an electioneering

communication. Thus, far from preventing the NRA’s

political voice from being unfairly inflated by funds de-

rived from the economic marketplace, Title II reduces the

NRA’s political voice to a whisper when compared to its

actual public support in the political marketplace. By

channeling the NRA’s political speech through its PAC,

Title II artificially impedes the ability of ordinary Ameri-

cans of modest means to participate effectively in our

democracy. And that is the measure’s avowed purpose; it

cannot be intelligibly understood except as a naked effort

to suppress political speech for its own sake.

But even if one looks past this dispositive refutation of

the claim that Title II was designed to prevent Austin-type

corruption of the electoral process, the measure nonethe-

less must fall, for there were less restrictive means avail-

able to Congress to ensure that the political voices of

grassroots issue advocacy groups like the NRA were not

unfairly inflated by contributions from business corpora-

tions. Indeed, Congress enacted a less restrictive alterna-

tive in Title II itself: the original “Snowe-Jeffords” version

of Title II would have exempted electioneering communica-

tions by 501(c\4) advocacy groups like the NRA, so long as

they were “paid for exclusively by funds provided directly

by individuals.” BCRA §203(b) (adding to U.S.C.

§ 441b(cX2)). The so-called “Wellstone Amendment,” how-

ever, negated the Snowe-Jeffords Provision, see § 204

(adding 2 U.S.C. § 441b(cX6)), for the specific purpose of

extending Title II to nonprofit issue advocacy organizations.

Senators McCain and Feingold and the other sponsors

of BCRA opposed the Wellstone Amendment, not because

they valued the political speech of the NRA and other

grassroots advocacy groups that the amendment would

stifle, but because they believed that the amendment

would likely be struck down by this Court as unconstitu-

tional. BCRA’s opponents overwhelmingly supported the

amendment, presumably for this very reason. BCRA’s

sponsors therefore insisted both that a severability clause

be enacted and that the original Snowe-Jeffords language

remain in the bill, so that invalidation of the Wellstone

Amendment would not threaten Title II as a whole. If the

Wellstone Amendment is upheld, it will mark the first

time in our Nation’s history that the Court has sanctioned

a content-based restriction on core political speech funded

by like-minded individuals.

Even if Title II did not suffer from the foregoing

constitutional flaws, it is fatally overbroad for two inde-

pendent reasons. First, BCRA regulates speakers that pose

no threat of corruption. Simply put, there is no threat of

corruption (or the appearance thereof) arising from like-

minded individuals pooling their resources in a grassroots

advocacy organization. Indeed, such collective action is the

only way that citizens of ordinary means can have their

voice heard in the mass media. Second, Title II sweeps

within its restriction entire categories of speech that are

wholly divorced from the measure’s alleged target of

speech intended to influence an election. An issue advo-

cacy organization typically names federal officeholders and

candidates for innumerable reasons, ranging from the

need to educate the public about threats to the groups’

beliefs, to defending itself against direct attacks launched

by the politicians themselves. One could not have decried

McCarthyism without mentioning McCarthy. And, as

Judge Henderson found, when the NRA’s speech is prop-

erly taken into account, more than a third of the broad-

casts that Title II would have criminalized in the 2000

cycle were genuine issue ads unrelated to a federal elec-

tion.

Finally, Title II carves out an exception for the elec-

tioneering communications of broadcast media companies.

This media exception to Title I] renders the measure

unconstitutional in its entirety. This Court has consis-

tently rejected the proposition that the institutional press

has special First Amendment rights, and thus any

speaker-based preference must be justified by a compelling

governmental interest. Here, there is no such rationale.

The factual predicates found in Austin to be sufficient to

justify such a media exception simply no longer exist. With

more Americans using the Internet than reading a daily

newspaper, the broadcast media no longer play a “unique”

role in “informing and educating” the public. 494 U.S. at

667. And with some of the world’s largest multinational

conglomerates now dominating the media industry, the

notion that “media corporations differ significantly from

other corporations” is plainly antiquated. Jd. If grassroots

advocacy organizations funded by their individual mem-

bers truly pose a meaningful threat of an appearance of

corruption, then surely so do the likes of Microsoft, Disney,

General Electric, and AOL TimeWarner, each of which

owns national television channels.

ARGUMENT

I. TITLE I’S PURPOSE IS TO STIFLE CORE

POLITICAL SPEECH.

These groups often run ads that the candidates

themselves disapprove of. Further, these ads are

almost always negative attack ads and do little to

further beneficial debate and a healthy political

dialog. To be honest, they simply drive up an

individual candidate’s negative polling numbers

and increase public cynicism for public service in

general.

— Senator John McCain (LH App. 1a).

Thus did Senator McCain urge enactment of Title II's

restriction on the rights of “these groups” to air advertise-

ments critical of him during an election campaign. Title II

creates a new crime and a new class of felons: corporations

and unions that engage in “electioneering communica-

tions,” which are defined as “[aJny broadcast, cable, or

satellite communication which ... refers to a clearly

identified candidate for federal office ... 60 days before a

general, special, or runoff election for the office sought by

the candidate; or ... 30 days before a primary or prefer-

ence election.... ” BCRA § 201l(a) (adding new FECA

§ 304(f)).. To be sure, Title II’s restrictions on electoral

speech are indifferent to whether the ads seek to bury

Caesar or to praise him; they criminalize positive ads as

well as negative. But the world has never seen, and never

will see, a law aimed at praise of the lawmakers. And, in

any event, sponsors and supporters of Title II in Congress

made no bones about their target. One supporter after

another openly echoed Senator McCain’s complaint

against “negative attack ads”:°

* Title II also includes a fallback definition of “electioneering

communication,” to take effect only if the primary definition is held

“constitutionally insufficient.” Jd. The NRA has already explained in an

emergency stay application to the Chief Justice that the truncated

version of that fallback definition, as revised by Judge Leon and upheld

by the District Court, is unconstitutional. The NRA therefore will not

belabor those arguments here but, instead, incorporates them by

reference. No matter its precise form, however, the fallback definition

suffers from the same constitutional defects outlined herein with

respect to the primary definition.

* Congress’s purpose to stifle disfavored speech is further inscribed

upon the statute itself, which grants “a free pass” to those electioneering

communications that travel through newspaper and direct mail ads or

are broadcast by media corporations, although such communications

pose the very same corruption concerns now invoked by Defendants. See

(Continued on following page)

a ee ee eee 8 Qa ann Eg Wee < -

¢ Sen. McCain: “I hope that we will not allow our

attention to be distracted from the real issues at hand -

how to raise the tenor of the debate in our elections and

give people real choices. No one benefits from negative

ads. They don’t aid our Nation’s political dialog.” (LH App.

3a).

¢ Senator Wellstone: “I think these issue advocacy

ads are a nightmare. I think all of us should hate

them.... We could get some of this poison politics off

television.” (LH App. 8a).

¢ Senator Jeffords: “[Issue ads] are obviously

pointed at positions that are taken by you saying how

horrible they are. .. . The opposition comes forth with this

barrage [of ads] and you are totally helpless.” (LH App.

5a).

e Senator Cantwell: “[Title II] is about slowing

political advertising and making sure the flow of negative

ads by outside interest groups does not continue to perme-

ate the airwaves.” (LH App. 9a).

e Senator Boxer: “We have an opportunity in the

McCain-Feingold bill to stop [negative ads] and basically

say, if you want to talk about an issue, that is fine, but you

can’t mention a candidate. ...” (LH App. 13a).

¢ Senator Daschle: “The ‘issue ads’ are more attack-

oriented and personal.” (LH App. 14a). “I believe that

negative advertising is the crack cocaine of politics.” (LH

App. 14a).°

S.A. 364-65 (Henderson). This underinclusiveness fatally “diminish[es]

the credibility of the government’s rationale for restricting speech in the

first place.” City of Ladue v. Gilleo, 512 U.S. 43, 45 (1994).

* This is a small but representative sample of the statements made

in the Senate and the House reflecting Congress’s overriding concern

with stifling negative advertising that it deemed offensive, and, indeed,

pernicious. A more complete list of such statements, including full

citations to the relevant pages of the congressional record, is assembled

in the legislative history appendix to this brief. See LH App. 1a-39a. It is

also apparent from the legislative record that Congress was intent upon

(Continued on following page)

And in defending the measure as an intervenor to this

case, Senator McCain confirmed that Congress specifically

targeted speech critical of candidates for federal office:

“The real world is that the overwhelming majority of ads

that we see running today are attack ads that are called

issue ads, which are direct, blatant attacks on the candi-

dates. .. . We don’t think that’s right.” J.A. 936.’

A. In targeting issue ads by corporations and unions,

Title II is of a piece with the rest of BCRA, the overarching

thrust of which is to “insulate[] legislators from effective

electoral challenge.” Nixon v. Shrink Mo. Gov't PAC, 528

U.S. 377, 404 (2000) (Breyer, J., concurring). All agree that

money plays a pivotal role in the American political

system given the necessity and enormous expense of

communicating political speech through the broadcast

media, especially television. See FEC v. NCPAC, 470 U.S.

480, 494 (1985). In a transparent effort to protect their

own incumbencies, BCRA’s proponents sought to dry up

every source of funds for such political speech except so-

called “hard money” funds raised from individuals and

PACs, the two sources of funds in which incumbents have

a gigantic advantage over challengers. See NRA App. 119.

And BCRA doubles the limits on individual contributions

to candidates. As an additional measure of protection,

Congress further leveraged the “media-related advantages

repelling what it viewed as intrusion by outside groups, with their

independent political ads, upon candidates’ ability to control their own

campaign agendas; according to Senator Boxer, for instance, the ads of

outside groups “bring{] in other issues that the two candidates them-

selves do not even want to talk about.” LH App. 40a; see also id. 40a-45a.

" The intervening defendants consistently echoed this theme in

their sworn testimony. See, e.g., J.A. 939-40; J.A. 914-15; J.A. 902; J.A.

906; J.A. 910; J.A. 972; J.A. 749.

i wee

of incumbency” by exempting media corporations from

Title II’s restrictions. Shrink, 528 U.S. at 404 (Breyer, J.,

concurring). See Appendix to Brief for Appellants Con-

gressman Ron Paul, et al., at 29a (filed July 8, 2003)

(media exception confers “considerable advantage” upon

incumbents by virtue of their access to “inside informa-

tion” about the legislative process).

With this sharply skewed playing field in place, only

two threats to incumbents remained. First, the threat of

“outside interest groups” airing “negative attack ads” was

quashed by Title II. Second, Congress responded to the

threat of challenges from wealthy, self-funded candidates by

raising the contribution limits for candidates who face such

a challenge. Given that all of BCRA’s provisions operate to

the advantage of incumbents, the political class’s age-old

instinct for self-preservation is readily apparent. See

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

266 (1977) (effects of a law are probative of statutory

intent). This Court should not defer to Congress’s (or more

accurately the Justice Department’s) asserted rationales

where, as here, “that deference ... risk[s] such constitu-

tional evils as, say, permitting incumbents to insulate

themselves against effective electoral challenge.” Shrink,

528 U.S. at 402 (Breyer, J., concurring).

B. When viewed against the long and largely doleful

history of governments among men, Title II’s restraint on

“electioneering communications” is entirely unremarkable

— just another example of the “standard practice” of the

governors “us[ing] the criminal law to insulate themselves

from disagreement” by the governed. ANTHONY LEWIS,

MAKE No Law 52 (Random House, 1991). Even in our open

democratic society, Title II’s restraint on electoral speech is

not without its chilling historical antecedents. The infa-

mous Sedition Act of 1798, like Title II, was specifically

aimed at stifling speech critical of the Government and its

elected members.*

Proponents of the Sedition Act in the 5th Congress,

like BCRA’s supporters in the 107th, decried “malicious

calumnies against Government,” speech designed to

“inflame ... constituents against the Government,”

publications “calculated to destroy . . . every ligament that

unites ... man to society and to Government,” and

“representations [that] are outrages on the national

authority, which ought not to be suffered.” 11 PCS/NRA

111-13. Opponents of the Sedition Act in Congress, like

opponents of BCRA, argued then, as we do now:

This bill and its supporters suppose, in fact, that

whoever dislikes the measures . . . of a temporary

majority in Congress, and shall ... express his

disapprobation and his want of confidence in the

men now in power, is seditious and is liable to

punishment... . If you thus deprive the people of

the means of obtaining information of their con-

duct, you in fact render their right of electing

nugatory; and this bill must be considered only

as a weapon used by a party now in power, in or-

der to perpetuate their authority and preserve

their present places.

11 PCS/NRA 114.’

The Sedition Act never reached this Court, but in

New York Times Co. v. Sullivan, 376 U.S. at 276, the Court

* See S.A. 259-60 951g (Henderson); 11 PCS/NRA 109-10. The Act

made it a crime, punishable by a $5000 fine and five years in prison, “if

any person shall write, print, utter or publish . . . any false, scandalous

and malicious writing or writings against the government of the United

States, or either house cf the Congress ... , or the President ... with

intent to defame ... or to bring them .. . into contempt or disrepute; or

to excite against them ... the hatred of the good people of the United

States.” 1 Stat. 596, quoted in New York Times Co. v. Sullivan, 376 U.S.

at 273-74.

* Opponents of BCRA in Congress arrestingly made the same

points. See LH App. 46a-51la.

unanimously acknowledged that the Act, “because of the

restraint it imposed upon criticism of government and

public officials,” had been universally condemned “in the

court of history” as a blatant infringement on the freedom

of speech. If history's judgment on the Sedition Act is

correct, then Title II’s modern version of it must fall.

C. Nor can Title II’s limitation on electoral speech be

reconciled with this Court’s holding in New York Times Co.

v. Sullivan. At the heart of that case was a political adver-

tisement run in the NEW YORK TIMES by an “interest

group” — the “Committee to Defend Martin Luther King

and the Struggle for Freedom in the South.” The ad was

found to refer to an elected official and to falsely criticize

his handling of civil rights protests in Montgomery, Ala-

bama. The issue was whether the First Amendment

“limit[s] a State’s power to award damages in a libel action

brought by a public official against critics of his official

conduct.” Jd. at 256. Emphasizing that “[iJt is as much [the

citizen’s] duty to criticize as it is the official’s duty to

administer,” id. at 283, the Court held that the First

Amendment prohibits such an action unless the public

official can show that the defamatory statement was made

with actual malice. The Sullivan Court’s reasoning is

equally dispositive of Title IT.

At the heart of the Court’s unanimous ruling was its

recognition that political speech is the lifeblood of our

representative democracy and that “debate on public

issues should be uninhibited, robust, and wide-open.” Jd.

at 270. That the political speech at issue was contained in

a paid advertisement was irrelevant; the First Amend-

ment protects “persons who do not themselves have access

to publishing facilities” no less than it protects the press.

Id. at 266. Nor did the advertisement’s false and defama-

tory nature suffice to deprive it of First Amendment

protection, for “erroneous statement is inevitable in free

debate, and ... it must be protected if the freedoms of

expression are to have the ‘breathing space’ that they

‘need ... to survive.’” Id. at 271-72 (quoting NAACP v.

Button, 371 U.S. 415, 433 (1963)). And the Sullivan Court

emphasized, over and over again, that speech concerning

14 °

the conduct of public officials and candidates for public

office is essential to the vitality of democracy itself. Quot-

ing Mr. Madison’s Report on the Virginia Resolutions

denouncing the Sedition Act, the Court said this: “The

value and efficacy of this right [to vote] depends on the

knowledge of the comparative merits and demerits of the

candidates for public trust, and on the equal freedom,

consequently, of examining and discussing these merits

and demerits of the candidates respectively.” Id. at 275

(citation omitted).

In the record before this Court are hundreds, perhaps

thousands, of the “negative attack ads” that Title II seeks

to rid from the airwaves. To dispose of this case, it is

enough to note simply that every single one of them wouid

be protected by the First Amendment from a libel action

brought by the attacked candidate. But Title II cuts even

deeper into the heart of the First Amendment than did the

defamation action invalidated in Sullivan. Title II goes

beyond just rendering speech actionable in tort; it crimi-

nalizes speech outright and punishes the speaker with

imprisonment. Title II goes beyond just reaching and

restraining false speech; it reaches and penalizes the

truth. Title II goes beyond just restraining political speech,

it targets electoral speech about candidates for public

office during the weeks before citizens go to the polls.

Thus, Title II’s restrictions on electioneering communi-

cations violate the most fundamental postulates of the First

Amendment. The same conclusion flows from this Court’s

campaign finance cases, as we demonstrate in detail below.

” The Court has consistently held “that legislative restrictions on

advocacy of the election or defeat of political candidates are wholly at

odds with the guarantees of the First Amendment.” Buckley v. Valeo,

424 US. at 50 (citing Mills v. Alabama, 384 U.S. 214 (1966), and Miami

Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)).

II. TITLE Il’S RESTRICTIONS ON “ELECTION-

EERING COMMUNICATIONS” CANNOT BE

JUSTIFIED AS PREVENTING CORRUPTION.

A. Title II Was Not Designed To Prevent Cor-

ruption.

From Buckley in 1976 to FEC v. Beaumont earlier this

Term, this Court has consistently emphasized the “‘fun-

damental constitutional difference between money spent

to advertise one’s views independently of the candidate’s

campaign and money contributed to the candidate to be

spent on his campaign.’” Colorado Republican Fed. Cam-

paign Comm. v. FEC, 518 U.S. 604, 614-16 (1996) (“Colo-

rado Republican I”) (quoting NCPAC, 470 U.S. at 497-98);

see, e.g., FEC v. Beaumont, 123 S. Ct. 2200, slip op. at 8

(June 16, 2003). Because of differences in both their

expressive value and corrupting potential, “limits on

political expenditures deserve closer scrutiny than restric-

tions on political contributions.” FEC v. Colorado Republi-

can Fed. Campaign Comm., 533 U.S. 431, 440-41 (2001)

(“Colorado Republican IT”).

Emphasizing that political expenditures “produce

speech at the core of the First Amendment,” NCPAC, 470

U.S. at 493, and pose little threat of political corruption,

this Court has “routinely struck down limitations on

independent expenditures” under strict scrutiny. Colorado

Republican II, 533 U.S. at 441. In contrast, campaign

contribution limits have consistently been upheld under

“relatively complaisant review” because “contributions lie

closer to the edges than to the core of political expression,”

Beaumont, slip op. at 14, and they entail “a plain threat to

political integrity and a plain warrant to counter the

appearance and reality of corruption. ...” Jd. at 8.

Defendants are well aware that Title II is subject to

strict scrutiny, so they attempt to cast Title II as designed

to achieve the compelling government purpose of prevent-

ing actual or apparent political corruption. But the legisla- ~

tive record of Title II unequivocally establishes that

Congress did not limit electioneering communications to

protect officeholders from the corrupting influence of

“sham” issue ads. To the contrary, as demonstrated above,

supra at 7-11, Title II’s supporters made clear that it was

aimed at “negative attack ads” that have “demeaned and

degraded all of us” and “do little to further the official

debate.”

To fill this void in the legislative record, Defendants

attempted below to create a post-enactment litigation

record, comprising solicited testimony from political

consultants, lobbyists, and former politicians. But to

sustain a content-based restriction on political speech, the

Government must establish that the purpose that actually

animated enactment of the measure is compelling and is

narrowly served by the restriction. See United States v.

Virginia, 518 U.S. 515, 533 (1996) (“The justification must

be genuine, not hypothesized or invented post hoc in

response to litigation.”); Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180, 191 (1997).” Therefore, neither Defendants

nor this Court can go beyond Title II’s text and legislative

history in the effort to discern and evaluate “the disease

sought to be cured” by its limits on electioneering

communications. Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 664 (1994) (quotation and citation omitted). And

Congress’s avowed purpose —- to stifle the airing of

“negative attack ads” — is not even a legitimate, let alone a

compelling, governmental purpose.”

But even if Defendants’ anti-corruption rationales for

Title II were not foreclosed as a matter of law, they fail as

a matter of fact, as we demonstrate below.

" The Government may defer a statute based upon a “conceiv-

able” or “hypothetical” legislative purpose only when that statute is

being reviewed under mere “rational basis” scrutiny. See, e.g., Thomp-

son v. Western States Med. Ctr., 535 U.S. 357, 373 (2002).

“ If Defendants could extract any arguably legitimate purpose

from the actual legislative record, that purpose would extend only so far

as the disclosure requirements of Title II (as opposed to the prohibition

on corporate speech), which are “the least restrictive means of curbing

the evils of campaign ignorance and corruption.” Buckley, 424 U.S. at

68.

B. Gratitude For Political Support Is Not

Corruption.

Defendants’ concept of political corruption is far

removed from the record of “quid pro quo” arrangements

that concerned this Court in Buckley. See 424 U.S. at 26 &

n.28. To Defendants, a politician who is, as they put it,

“naturally grateful” to an organization that runs an issue

ad in his favor is a politician on the take. But this is not

“corruption” — this is the democratic process. Elected

officials are indeed grateful for any support for their

campaigns, whether it takes the form of the ballot of a

single constituent, or the endorsement of an organization

with millions of members, or the speech of supporters

extolling the candidate’s virtues or decrying the opponent’s

vices. And those who provide such support do indeed

expect that, if the campaign is successful, the official will

cast votes in a way that reflects the shared political ideals

that inspired the support in the first place. This is called

“democracy.”

Defendants, however, see corruption in the natural

functioning of our representative democracy, and if their

concept of political corruption is allowed to take root in

this Court’s First Amendment jurisprudence, then no

political activity is safe from congressional regulation.”

One need not think long to grasp that if a candidate’s

natural gratitude to the NRA for helpful “electioneering

communications” is corruption enough to justify silencing

“ Defendants’ novel and expansive theory of corruption qua

gratitude was adopted by Judge Kollar-Kotelly, who opined that

candidates are “as beholden to corporations ... that spend money to

help them through ad campaigns as they would be if the same entities

wrote a check directly to the campaign.” S.A. 838 (Kollar-Kotelly). That

notion, which is bereft of evidence to support it, would obliterate this

Court’s consistent distinction between contributions and expenditures,

leaving any independent expenditure — be it that of a PAC, an individ-

ual, or some other entity — fully subject to regulation because it can

simply be equated, in the words of Judge Kollar-Kotelly, with a “check

... to the campaign.”

such political speech, then what is to stop the Government

when it trains its sights on, say, the NRA’s speech endors-

ing a candidate and urging its membership to rally behind

him? This Court, therefore, has specifically rejected

Defendants’ notion of corruption. “The fact that candidates

and elected officials may alter or reaffirm their own

positions on issues in response to political messages paid

for by the PACs can hardly be called corruption, for one of

the essential features of democracy is the presentation to

the electorate of varying points of view.” NCPAC, 470 U.S.

at 498.

As previously noted, Defendants can offer nothing

from Title II’s legislative record demonstrating a link

between “electioneering communications” and political

corruption, so they attempted in the District Court to fill

that void with a litigution record. To be sure, Defendants

offered a massive evidentiary record in support of their

claim of political corruption, but it relates almost exclu-

sively to the corrupting influence of soft-money donations

banned by Title I (thus confirming the fundamental

distinction in the corrupting potential of contributions

versus expenditures). As Judge Henderson found: “None

“ The cavernous disparity in record evidence supporting Defen-

dants’ theory of corruption with respect to contributions regulated by

Title I, as opposed to expenditures regulated by Title II, is manifest

from the opinions below, particularly that of Judge Kollar-Kotelly.

Compare S.A. 589 41.75 (Kollar-Kotelly) (“The record is a treasure trove

of testimony from Members of Congress, individual and corporate

donors, and lobbyists, as well as documentary evidence, establishing

that contributions ... are given with the expectation they will provide

the donor with access to federal officials, that this expectation is

fostered by the national parties, and that this expectation is often

realized.”) (emphases added); S.A. 567 91.63; S.A. 582 41.73; S.A. 625

41.82; S.A. 574 491.70; S.A. 626 41.83; S.A. 633-34 91.83.5; S.A. 635-36

41.84; with S.A. 718-19 2.7.11 (Kollar-Kotelly) (finding no “direct

examples of votes being exchanged for candidate-centered issue

advocacy expenditures” but “that candidates and parties appreciate and

encourage corporations .. . to deploy their large aggregations of wealth

into the political process. If nothing else, I find that the record presents

(Continued on following page)

of the evidence the defendants have offered materially

supports the proposition that corporate and labor disburse-

ments for issue advocacy corrupt or appear to corrupt federal

candidates.” S.A. 274-75 954b (Henderson). Indeed Defen-

dants’ token evidence relating to issue ads actually under-

mines their anti-corruption rationale, even under their

“gratitude” theory of corruption. Media consultant Strother

agreed that there is “nothing in any way corrupt or undemo-

cratic about the enterprise ... of airing these political

broadcasts.” J.A. 1031. And Senator Simpson, when asked

whether advocacy groups should be entitled to run election-

eering communications, stated that “[a]s long as people know

who they are and what they're doing, yes, I think that’s all

right. Then you’re into the First Amendment.” J.A. 1013-14;

see also J.A. 1021, Deposition Transcripts Unified Filing at

Simpson Dep. 79. Indeed, he testified that it is “the essence

of politics” to try to influence legislators. J.A. 1016-19. None

of Defendants’ declarants could testify to a single instance in

which a candidate or office-holder had changed his or her

vote in exchange for an advocacy group’s speech,” nor could

any even provide an example of a politician showing “grati-

tude” to an advocacy group.”

an appearance of corruption stemming from the dependence of office-

holders and parties on advertisements run by these outside groups.”).

Similarly, Judge Leon found specific evidence of an appearance of

corruption to justify Title I but made no such findings regarding Title

II. See S.A. 1289 9250 (Leon) (“The defendants have offered substantial

evidence that the public believes there is a direct correlation between

the size of a donor’s contribution to a political party and the amount of

access to, and influence with, the officeholders ... the donor enjoys

thereafter.”); S.A. 1289-95 9251-70 (Leon).

* See J.A. 846, 848-50; J.A. 1032; J.A. 1011-12.

* See J.A. 841-44; J.A. 1032-34. Indeed, lobbyist Andrews could not

recall any instance of a politician expressing gratitude for issue ads that

supported the politician or attacked an opponent. See J.A. 849-50. In

the only concrete example of an issue group influencing a candidate,

Strother related how a candidate decided to return money to an anti-

gun group in order to avoid negative publicity from the NRA because

(Continued on following page)

C. Title II Cannot Be Justified As Preventing

Austin-style Corruption.

Core political speech is protected by the First Amend-

ment regardless whether a corporation is the speaker.

Buckley, 424 U.S. at 45, 50, 187; First Nat’ Bank v.

Bellotti, 435 U.S. 765, 777 (1978); FEC v. MCFL, 479 U.S.

238, 259 (1986). Indeed, MCFL upheld a _ nonprofit

voluntary membership corporation’s First Amendment

right to make unlimited independent expenditures to fund

its political speech, including express advocacy. Only once,

in Austin, has this Court upheld a restriction on independ-

ent expenditures for core political speech. The specific

danger identified in Austin, corruption of the political

process through the aggregation of wealth generated by

business corporations, has no application to speech by

nonprofit membership organizations that are devoted to

the advancement of specific rights and ideas and are

funded almost exclusively by the dues and donations of

individual members. Title II of BCRA must therefore be

struck down.

MCFL held that a voluntary membership organization

committed to a political purpose does not lose its First

Amendment rights simply by taking the corporate form:

The resources in the treasury of a business

corporation ... are not an indication of popular

support for the corporation’s political ideas. .. .

... Groups such as MCFL, however, do not pose

that danger of corruption. MCFL was formed to

disseminate political ideas, not amass capital.

the candidate was running in a pro-gun state and feared how “the voter

would react if it was disclosed where the check came from.” J.A. 1035-

36. Thus, the “influence” was based upon the power of the voter, which

is hardly improper in a democracy. See also J.A. 838, 850-51.

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The resources it has available are not a function

of its success in the economic marketplace, but

its popularity in the political marketplace.

479 U.S. at 258-59 (emphasis added). In contrast, Austin

upheld a law restricting expenditures on express advocacy

by the Chamber of Commerce because 75% of its funding

came from for-profit corporations; the Chamber therefore

could (and did) serve as a conduit for using “resources

amassed in the economic marketplace” “to provide an

unfair advantage in the political marketplace.” MCFL, 479

U.S. at 257. The Court specifically observed that the

Chamber’s corporate wealth had “little or no correlation to

the public’s support for the corporation’s political ideas.”

Austin, 494 U.S. at 660 (emphasis added).

MCFL and Austin thus draw a line between advocacy

organizations that fund their speech with individual dues

and trade associations that fund their speech largely with

contributions from business corporations. The former,

unlike the latter, pose no danger of corrupting the political

marketplace through wealth generated in the economic

marketplace.

This analysis of Austin and MCFL is confirmed by the

Court’s decision last month in FEC v. Beaumont, No. 02-

403, 123 S. Ct. 2200, slip op. (June 16, 2003), which held

that a restriction on corporate campaign contributions

could constitutionally be applied to nonprofit advocacy

organizations as well as business corporations. Slip op. at

10. Beaumont reaffirmed that the Austin rationale for

restricting expenditures was to prevent corporations from

“‘us[ing] resources amassed in the economic marketplace

to obtain an unfair advantage in the political market-

place.’”-Id. at 6 (quoting Austin, 494 U.S. at 658-59)

(internal citations omitted)). As demonstrated above, that

problem is simply not presented by the NRA or similar

nonprofit advocacy groups.

To be sure, Beaumont held that concerns about the

corporate form of organization, even for a nonprofit advo-

cacy organization funded by individual donations, were

sufficient to sustain restrictions on campaign contributions

by such a corporation. Jd. at 10-11. In other words, Con-

gress may ban corporate campaign contributions in order

to “bar{] corporate earnings from conversion into political

‘war chests.’” Jd. at 7. But, as the Court reaffirmed,

contributions barely count as speech at all: “Going back to

Buckley v. Valeo, restrictions on political contributions

have been treated as merely ‘marginal’ speech restrictions

subject to relatively complaisant review under the First

Amendment.” Jd. at 14 (citation omitted).

In contrast, independent political expenditures on

campaign speech by nonprofit advocacy groups constitute

“the core of political expression.” Jd. at 14. Independent

political expenditures “do not pose that danger of corrup-

tion,” and therefore the “potential for unfair deployment of

wealth for political purposes’ f[alls] short of justifying a ban

on expenditures” by such groups. Jd. at 11. The rationales

that sufficed to uphold restrictions on contributions in

Beaumont cannot survive the strict scrutiny applicable to

restrictions on expenditures for core political speech.”

Indeed, that is why the First Amendment foreclosed Con-

gress’s attempt to regulate the independent expenditures of

a corporate PAC in NCPAC. See 470 U.S. at 500-01.

The NRA is the archetypal issue advocacy group

protected by the First Amendment. It “was formed to

disseminate political ideas, not amass capital,” and its

members are “fully aware of its political purposes.” See

J.A. 1948-56; 11 PCS/NRA 137-56. The NRA’s resources

“are not a function of its success in the economic mar-

ketplace, but its popularity in the political market-

place.” MCFL, 479 U.S. at 259. The NRA and similar

grassroots advocacy organizations do not do business in

' Beaumont repeatedly reaffirmed this fundamental distinction

between restrictions on contributions and expenditures. Slip op. at 4 &

n.2, 8, 11, 14, 15. In particular, the Court distinguished the deference

accorded legislative judgments about corruption “when Congress

regulates campaign contributions” from the strict scrutiny applicable to

expenditure restrictions. Jd. at 8.

the “economic marketplace,” nor derive “market profits,”

nor receive more than a negligible portion of their revenues

from corporate contributions. In short, the NRA does not

use “‘resources amassed in the economic marketplace’ to

obtain ‘an unfair advantage in the political marketplace.’”

Austin, 494 U.S. at 659 (quoting MCFL, 479 U.S. at 259).”

Title II’s restriction on its independent electioneer expendi-

tures is, therefore, unconstitutional.

D. Title II Cannot Be Justified As Protecting

The Members Of Advocacy Groups From

Misuse Of Their Donations.

In Beaumont the Court noted that the federal ban on

campaign contributions by corporations also “protect({s]

‘the individuals who have paid money into a corporation or

union for purposes other than the support of candidates

from having that money used to support political candi-

dates to whom they may be opposed.’” Slip op. at 7 (quot-

“ing FEC v. National Right to Work Comm., 459 U.S. 197,

208 (1982)). Yet the Court assumed (correctly) that “advo-

cacy corporations are generally different from traditional

business corporations in the improbability that contribu-

tions they might make would end up supporting causes

that some of their members would not approve.” Jd. at 12.

Even if this legislative concern might carry some residual

weight in the area of contributions, see id. at 12 n.5, which

enjoy only marginal First Amendment protection, it is

plainly insufficient to intrude on advocacy group expendi-

tures, which are protected by strict scrutiny.

”“ The NRA's income from sources other than individual contribu-

tions is de minimis. Although the NRA derives substantial revenue from

advertising in its magazines and the sale of NRA memorabilia, it loses

money on these activities. See J.A. 386-87. Additionally, the NRA

generates rental income from leasing unused space in its building.

Finally, the NRA receives negligible contributions from for-profit

businesses. See J.A. 1963.

Nor is there any basis in this Court’s jurisprudence for

licensing the government to peer into the minds of the

members of a grassroots issue advocacy group in order to

ensure a perfect correspondence between their views and

the group’s political activities. Indeed, in MCFL, this

Court recognized that a contribution to an advocacy group

“necessarily involves at least some degree of delegation of

authority to use such funds in a manner that best serves

the shared political purposes of the organization and

contributor,” and that a member “dissatisfied with how

funds are used can simply stop contributing.” 479 U.S. at

261. This Court offered the same reasoning with respect to

contributors to a PAC: “[C]Jontributors obviously like the

message they are hearing from these organizations and

want to add their voices to that message; otherwise they

would not part with their money.” NCPAC, 470 U.S. at

495. And the same may be said with respect to the widely

diverse membership of the political parties. See Colorado

Republican I, 518 U.S. 604 (1996).”

E. Requiring The NRA To Speak Through Its

PAC Will Artificially Deflate Its Voice.

Although Defendants have posited that electioneering

communications are regulated by Title II because they

beget the grievous public harm of official corruption, they

also paradoxically maintain that Title II bans no election-

eering communications at all because corporations and

unions remain free to speak through their PACs. As a

measure designed to prevent official corruption, of either

the quid pro quo or the “gratitude” variety, Title II therefore

” In any event, the record in this case confirms the strong support

among NRA members for its speech: over 78 percent of the cost of airing

its 30-minute broadcasts was paid for by viewers who signed up as new

members. J.A. 1964. Under the FEC’s regulations, the NRA’s PAC

would not be able to solicit funds in this manner from the general

public.

es aaa

makes no more sense than a bribery statute requiring

corporations to pay for their bribes using funds from PACs.

For that reason alone, “belief in the [statute’s proffered

anti-corruption] purpose [is] a challenge to the credulous.”

Republican Party of Minnesota v. White, 536 U.S. 765, 780

(2002) (quotation and citation omitted). Congress surely

did not intend Title II to result in nothing more than an

act of institutional ventriloquism, with organizations like

the NRA simply throwing from the mouths of their PACs

the very same “electioneering communications” that

allegedly threaten to corrupt federal officeholders. More-

over, Defendants do not contend that a candidate is any

less grateful for, and thus any less corrupted by, an issue

ad aired with PAC money than an identical ad aired with

an organization’s general funds. And Defendants’ own

witnesses concede that the public’s perception of ads is not

affected in the slightest by whether they are purchased

with general treasury funds or with PAC money.”

Title II’s congressional supporters well understood

that requiring the NRA to speak through its PAC will

necessarily reduce the collective voice of its four million

members to a whisper.” See S.A. 259 (Henderson) (“Politi-

cal action committees cannot finance more than a small

* As Senator Simpson stated, drawing a distinction between the

“appearance of corruption [depending upon] whether the ad is paid for

by the NRA or whether it is paid for by the NRA’s PAC” is like “dancing

on the head of a pin,” since “[tJhere’s no difference to the American

public of who that is.” J.A. 1022; see also J.A. 1023; J.A. 836; J.A. 1037.

* See LH App. 58a-62a (Sen. Wellstone) (referencing the NRA and

Sierra Club as prototypical organizations whose ads should be re-

stricted); LH App. 53a (Rep. Schakowsky) (“If my colleagues care about

gun control, then campaign finance is their issue so that the NRA does

not call the shots.”); LH App. 52a (Rep. Pickering) (quoting Scott

Harshberger, the President of Common Cause, who championed BCRA

by saying: “‘A vote for campaign finance reform is a vote against the

second amendment gun lobby.’ ”); see generally LH App. 52a-57a.

fraction of the electioneering communications that corpo-

rations and unions have been able to fund from their

treasury funds.”). A battery of regulatory and practical

hurdles precludes groups such as the NRA from using

their PACs to make independent expenditures commensu-

rate with public support for their political ideas.” The

NRA’s PAC, the PVF, is strictly barred from soliciting

beyond the NRA’s membership for contributions, and no

portion of an NRA member’s membership fees may be

allocated to PVF. See 11 C.F.R. § 114.7; 11 C.F.R. § 114.1.

As Judge Henderson explained, “While NRA PVF raised

$17.5 million during the 2000 election cycle, the NRA

received over $300 million in contributions from individu-

als during the same period. The disparity stems from the

inability of NRA members — most of whom are individuals

of modest means — to pay the NRA’s membership fee and

then contribute beyond that amount to NRA PVF.” S.A.

259 (Henderson) (internal citations omitted). Title II thus

effectively deprives millions of ordinary individuals of

their ability to join collectively in making “electioneering

communications” to support and preserve their freedoms

under the Second Amendment.

Although some would justify restricting independent

expenditures on political speech as necessary “to democra-

tize the influence that money itself may bring to bear upon

the electoral process,” Shrink, 528 U.S. at 401 (Breyer, J.,

concurring with Ginsburg, J.), Title II stands that reason-

ing on its head. By requiring a group’s political speech to

be channeled through its PAC, Title II ensures that the

voices of members of modest means will be silenced,

closing the marketplace of political expression to all but

the well-to-do.

For this reason, Title II works a similar inversion of

the Austin Court’s reasoning. Again, Austin upheld a limit

on corporate independent expenditures as justified to

™ See J.A. 377-78; J.A. 702; J.A. 112-13; J.A. 333; J.A. 1008-09.

Sa ee ida

Page EE

—

prevent wealth generated in the economic marketplace

from unfairly inflating the strength of the corporation’s

political voice beyond the “public’s support for the corpora-

tion’s political ideas.” Austin, 494 U.S. at 660. The NRA’s

wealth, like that of typical advocacy groups, is attributable

to its success in the political marketplace, not the eco-

nomic marketplace, and its general treasury “accurately

reflects members’ support for the organization’s political

views.” Id. at 666. By requiring the NRA’s political speech

to be channeled through the PVF, Title II deflates the

strength of the organization’s voice in the political mar-

ketplace vastly below its “contributors’ support for the

corporations’ political views.” Jd. at 660-61. Thus, far from

ensuring that “resources amassed in the economic mar-

ketplace [are not] used to provide an unfair advantage in

the politica] marketplace,” MCFL, 479 U.S. at 257, Title II

ensures that resources amassed in the political market-

place cannot be put to use in the very place from whence

they came.

Finally, most of the NRA’s “electioneering communica-

tions” have nothing to do with getting candidates elected;

instead, they serve to educate Americans about political

developments that bear upon the Second Amendment, to

defend the NRA against direct attacks by the media and

politicians, and to ge..erate membership and raise funds.

See supra at 2; infra at 35-41. The exclusive mission of

PVF, however, is “to influence the outcome of federal

elections. That is the sole purpose for which donors con-

tribute to the Political Victory Fund.” J.A. 377. Indeed,

PVF is the sole means through which NRA members can

engage in “express advocacy” speech exhorting the public

to “vote for” or “against” specific candidates - and PVF

devotes its precious resources to funding precisely such

speech. Forcing the PVF now to fund the NRA’s “election-

eering communications” would necessarily result in a

’ tradeoff with the express advocacy it currently funds,

further abridging core political speech at the heart of the

First Amendment.

Ill. THE WELLSTONE AMENDMENT’S SUPPRES-

SION OF POLITICAL SPEECH FUNDED

EXCLUSIVELY WITH INDIVIDUAL CONTRI-

BUTIONS IS UNCONSTITUTIONAL.

Even if one credits at face value Defendants’ claim

that the specter of Austin-type corruption extends to the

independent electioneering expenditures of nonprofit

advocacy groups, Title II must fall. Congress had before it

a less restrictive means to ensure that the political voices

of advocacy groups like the NRA were not unfairly inflated

by corporate wealth generated in the economic market-

place.

As originally proposed by Senators Snowe and Jef-

fords, Section 203(b) of Title II would have exempted

501(cX4) membership organizations from the ban on

funding electioneering communications, so long as the

organizations used funds that were derived solely from

individual contributions and were maintained in an

account segregated from any corporate contributions.

Thus, Section 203(b) of Snowe-Jeffords was designed to

ensure that such an advocacy organization’s political

message reflected its popular support in the political

marketplace. Conversely, by banning electioneering

expenditures of business corporations and their 501(c)(6)

trade associations, the original Snowe-Jeffords proposal

wholly eliminated the threat, identified in Austin, that

such corporations might use wealth generated in the

economic marketplace to unfairly distort the political

arena with electioneering communications having “little or

no correlation to the public’s support for the corporation’s

political ideas.” 494 U.S. at 660-61. Snowe Jeffords thus

sought to steer a safe course between this Court’s decisions

in MCFL, on the one hand, and Austin, on the other.

The Wellstone Amendment, Section 204, effectively

nullifies Section 203(b) of Snowe-Jeffords. Aimed specifi-

cally at the NRA, Sierra Club, and similar advocacy

groups, see LH App. 58a-62a (Sen. Wellstone), the

Wellstone Amendment was designed to prevent individu-

als from combining their voices with others of like mind

“s POORLY. v4

“in organizations which serve to ‘[amplify] the voice of

their adherents.” NCPAC, 470 U.S. at 494 (quoting

Buckley, 424 U.S. at 22 (alteration in original)).” The

Wellstone Amendment thus runs directly contrary to this

Court’s consistent First Amendment teaching: “To say that

{individuals’] collective action in pooling their resources to

amplify their voices is not entitled to full First Amend-

ment protection would subordinate the voices of those of

modest means as opposed to those sufficiently wealthy to

be able to buy expensive media ads with their own re-

sources.” Id. at 495.

Fully grasping that the Wellstone Amendment was

“susceptible to a constitutional challenge,” LH App. 58a

(Sen. Feingold), BCRA’s sponsors opposed the measure.

But opponents of BCRA rallied behind it (presumably for

the same reason), and it was passed. To ensure that it

would not doom Title II as a whole, however, BCRA’s

sponsors made sure that the Wellstone Amendment, in the

District Court’s words, could be “cleanly struck from the

law.“ As Senator Feingold explained:

I voted against adding th[e Wellstone] amend-

ment. I thought and still think that it makes

* See LH App. 65a (Sen. Wellstone) (“individuals with all of this

wealth” will “make their soft money contributions to these sham issue

ads run by all of these . . . organizations, which under this loophole can

operate with impunity” to run “poisonous ads”); LH App. 66a-67a

(noting that only .002% of Americans donate more than $10,°0 to

candidates, and explaining, “I have an amendment that tries to .aake

sure . . . this big money doesn’t get” through).

* “The Wellstone Amendment was codified in a separate section of

BCRA in order to preserve severability: hence, if the Court finds the

inclusion of section 501(c\4) organizations and section 527 within the

ban on electioneering communications to be unconstitutional, the

Wellstone Amendment can be cleanly struck from the law and the

original Snowe-Jeffords exception for these groups will be restored.”

S.A. 65-66 (Per Curiam).

Snowe-Jeffords more susceptible to a constitu-

tional challenge, but it passed when many Sena-

tors who oppose the bill and the Snowe-Jeffords

provision voted for it. In any event, the Wellstone

amendment was written to be severable from the

remainder of the Snowe-Jeffords provision. That

gives even more significance to the vote we will

have today on severability. But if we win that

vote, Snowe-Jeffords will survive even if the

Wellstone amendment is held to be unconstitu-

tional.

LH App. 58a (Sen. Feingold).” The Wellstone Amendment,

from its inception, was thus specifically designed to be a

disposable part of Title II, destined for extinction upon

completion of this Court’s review.”

In the District Court, the Government — while taking

pains to emphasize that the unconstitutionality of the

Wellstone Amendment “provides no basis for striking down

* See also LH App. 63a (Sen. Edwards) (“(TJhe reason Senator

Feingold and Senator McCain are opposing th[e Wellstone] amendment

is the same reason that I oppose this amendment: It raises very serious

constitutional problems”); LH App. 62a (Sen. Wellstone) (“I have drafted

this amendment to be fully severable. In other words, no one can

suggest that even if the court finds this amendment unconstitutional, it

would drag down the rest of this bill or even jeopardize the other

provisions of Snowe-~Jeffords.”); LH App. 58a-64a.

* Judge Henderson acknowledged the patent unconstitutionality of

the Wellstone Amendment. See S.A. 368-70 (Henderson). Judge Kollar-

Kotelly left the Wellstone Amendment undisturbed without purporting

to analyze whether Section 203(b) of Snowe-Jeffords constituted a less

restrictive alternative. See S.A. 869-71 (Kollar-Kotelly). Judge Leon

likewise upheld the Wellstone Amendment; he thought it justified by

the prospect that “for profit-corporations and unions [might] funnel

their general treasury funds through nonprofit corporations in order to

purchase electioneering communications.” In doing so, he thus over-

looked that this prospect is wholly foreclosed by Section 203(b) of

Snowe-Jeffords, which restricts electioneering funding to individual

contributions. S.A. 1168-69 (Leon).

BCRA’s electioneering communications provisions in toto”

— characterized the Amendment as intended to “prevent

large soft-money donations from individuals (i.e., those

exceeding the hard money contributions to political par-

ties) from being passed through nonprofit corporations to

purchase electioneering ads.” Gov't Reply Br. 58-59 (filed

Nov. 27, 2002) (emphasis added). That simply reformulates

the amendment’s impermissible intent: the First Amend-

ment flatly forbids Congress from regulating the political

expenditures, as opposed to the contributions, of individu-

als, Buckley 424 U.S. at 48-49, and Congress can claim no

valid interest in preventing circumvention of a nonexistent

expenditure limit that it lacks power to create.”

Even if Congress could regulate individual expendi-

tures in this fashion, the less restrictive (and thus consti-

tutionally required) means of doing so would be to prevent

501(c4) corporations from funding “electioneering com-

munications” with individual donations in excess of exist-

ing contribution limits — not to impose the Wellstone

Amendment’s flat prohibition. Had Congress taken this

less restrictive approach, organizations like the NRA,

whose average donation totals $30, could sustain their

political voices without reliance upon “large soft-money

donations from individuals” that supposedly justified the

amendment.

Nor can Defendants save the Wellstone Amendment

by recasting it as concerned with the “fungibility” of

money, i.e., the marginal prospect that nonprofit groups

might otherwise use corporate contributions to offset their

* Unlike PACs and political parties that may make contributions

to candidates, the 501(c)4) corporations regulated by the Wellstone

- Amendment are categorically prohibited from doing so. See, e.g., FEC v.

Beaumont, 123 S. Ct. 2200, slip op. at 9-10 (June 16, 2003). Accordingly,

the Government cannot defend the amendment as merely “a corollary of

the basic individual contribution limitation” upheld in Buckley. 424

U.S. at 38; see California Med. Ass’n v. FEC, 453 U.S. 182, 198-99

(1981). -

expenses, thereby freeing up individual contributions to

fund “electioneering communications.” That phenomenon

is an independent feature of existing campaign finance

law, as corporations remain free under BCRA to fund the

administrative and operating expenses of their PACs out

of general treasury funds. See 11 C.F.R. § 114.5(b). More-

over, this Court’s teaching is simply that Congress may

require a corporation’s expenditures to bear a meaningful

“correlation,” Austin, 494 U.S. at 660, or to constitute a

“rough barometer” of the public’s support for its political

views. MCFL, 479 U.S. at 258. Surely the original Snowe-

Jeffords approach, by confining electioneering expendi-

tures of nonprofit advocacy organizations to the amount of

their individual contributions, fully implements that

teaching. And the Wellstone Amendment, by preventing

such organizations from engaging in “electioneering

communications” for fear that a single corporate dollar

might otherwise lend indirect assistance, just as surely

flouts it.

Finally, the Intervenors attempted below to justify the

Wellstone Amendment on the ground that the “electioneer-

ing communications” of 501(c)4) corporations might

unduly diverge from the views of their individual donors.

But there is nothing in the legislative record of Title II

suggesting that Congress shared this concern. Nor is there

evidence in the legislative record, or even in the litigation

record developed in this case, that 501(c)(4) corporations

tend to make independent expenditures at odds with the

shared views of their donors. To the contrary, the realities

of the political marketplace ensure that a voluntary

membership organization dependent on member donations

will rarely, if ever, stray significantly from the common

ideals that bind the membership. See NCPAC, 470 U.S. at

495 (“(Cjontributors obviously like the message they are

hearing from these organizations and want to add their

voices to that message; otherwise they would not part with

. a

their money.”). Here, there is no doubt that the “election-

eering communications” of the NRA enjoy the widespread

support of its membership.”

In any event, as previously discussed, supra at 23-24,

this Court has never suggested that a perfect correspon-

dence between an advocacy organization’s electioneering

communications and the views of all of its members is a

necessary predicate for First Amendment protection

against regulation of the organization’s political speech.

See MCFL, 479 U.S. at 261 (“individuals contribute to a

political organization in part because they regard such a

contribution as a more effective means of advocacy than

spending the money under their own personal direction”

and “delegat[e] authority to use such funds in a manner

that best serves the shared political purposes of the

organization and contributor”).

IV. TITLE II IS FATALLY OVERBROAD.

Title II’s prohibition on electioneering communications

is fatally overbroad both because it silences speakers that

pose no threat of the harms allegedly sought to be pre-

vented and because it criminalizes categories of speech

that are wholly divorced from the statute’s purposes. “The

Government may not suppress lawful speech as the means

to suppress unlawful speech. Protected speech does not

become unprotected merely because it resembles the

latter. The Constitution requires the reverse.” Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 255 (2002).

Ashcroft struck down the Child Pornography Preven-

tion Act as overbroad on the basis of hypothesized applica-

tions of the law. See id. at 258; id. at 273 (Rehnquist, C.J.,

dissenting). Here, by contrast, there is compelling evidence

* Conversely, there is no indication that the independent political

expenditures of either PACs or political parties, which remain free to

fund “electioneering communications,” accord with their donors’ wishes

any more consistently than do those of advocacy groups like the NRA.

that the NRA is a speaker whose conduct does not impli-

cate the statute’s purpose and whose speech falls outside

the ambit of the restriction’s purported rationale.

A. Title II Criminalizes the Speech of Or-

ganizations that Pose No Threat of Cor-

rupting the Political Process.

By restricting the electioneering speech of grassroots

advocacy organizations, Title II frustrates the central

purpose of such entities: to allow “large numbers of indi-

viduals of modest means [to] join together in organizations

which serve to ‘(amplify] the voice of their adherents.’”

NCPAC, 470 U.S. at 494 (quoting Buckley, 424 U.S. at 22)

(alteration in original). The aggregated contributions of

the members of such an organization correspond with the

members’ support for its political ideas. The NRA’s voice

can be heard in the halls of Congress and state legisla-

tures precisely because it is the collective voice of millions

of Americans speaking in unison. That “is not a corruption

of the democratic political process; it is the democratic

political process.” Renne v. Geary, 501 U.S. 312, 349 (1991)

(Marshall, J., dissenting) (emphases in original). And if a

group of individuals organized in the corporate form and

united by their common devotion to the protection of their

Second Amendment rights can be prosecuted for speaking

the names of political candidates who pose a threat to

those rights, then the First Amendment has become a

“promise to the ear to be broken to the hope, a teasing

illusion like a munificent bequest in a pauper’s will.”

Edwards v. California, 314 U.S. 160, 186 (1941). :

Title II contains no exception for any nonmedia

corporate entities. Indeed, even MCFL itself is barred from

making electioneering expenditures.” This failure alone

* Judge Kollar-Kotelly elided this defect by effectively reading an

MCFL exemption into the statute, although no such exemption was

“expressly provided for.” S.A. 870 (Kollar-Kotelly). Judge Leon, in

(Continued on following page)

— =

SS ee

dooms the statute because there are numerous MCFL

entities that engage in speech that will be criminalized.

See S.A. 251 945b (Henderson); 11 PCS/NRA 157-95; 11

PCS/NRA 196; J.A. 1957-58; J.A. 1959-61.”

B. Title II Criminalizes Speech That Is Not

Intended To Influence Elections.

Title II’s restriction on electioneering communications -

also fails the narrow tailoring standard because it unfairly

criminalizes numerous categories of speech that are not

intended to, and will not have the effect of, influencing

federal elections. The NRA’s extensive independent expen-

ditures on television and radio broadcasting are designed

to serve three principal purposes: (1) to educate the public

contrast, held Title II “unconstitutional only in its application to MCFL,

nonprofit corporations.” S.A. 1169 (Leon). Both thereby erred in failing to

analyze the statute, on its face, in accordance with its dispositive terms:

The Wellstone Amendment specifically seeks to regulate nonprofit

corporations’ use of individual donations and to do so without qualifica-

tion; and that express, unambiguous prescription by Congress is insus-

ceptible to judicial modification short of outright invalidation. See, e.g.,

Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 220 (1998).

* Although the FEC’s regulations provide relief for a limited

subset of “qualified nonprofit corporations,” its procrustean criteria

create an exception so narrow that it conflicts with the Court’s decisions

in MCFL and Austin and, in any event, does not cure the overbreadth

that infects this statute. 11 C.F.R. § 114.10(c). “The rigidity with which

the FEC [implements] MCFL would impoverish political debate.” FEC

v. Survival Education Fund, Inc., 65 F.3d 285, 292 (2d Cir. 1995); see

Minnesota Citizens Concerned for Life (“MCCL”) v. FEC, 113 F.3d 129,

130-31 (8th Cir. 1997) (affirming that relevant FEC regulations “are

constitutionally infirm ... because they deny the MCFL exemption to a

voluntary political association that conducts minor business activities

or accepts insignificant corporate donations”); MCCL v. FEC, 936

F. Supp. 633, 643 (D. Minn. 1996), aff'd, 113 F.3d 129 (8th Cir. 1997)

(further suggesting unconstitutionality of FEC requirements that

organization’s “only” purpose be promotion of political ideas and that

members not obtain “any” benefit that might discourage disassociation).

about Second Amendment and related firearm issues,

including pending legislative initiatives; (2) to defend itself

against attacks aired by the broadcast media, including

attacks by politicians opposed to the NRA’s views on the

Second Amendment and related issues; and (3) to recruit

members and raise funds. When engaging in such speech,

the NRA often makes references to public officials and

candidates for federal office. See S.A. 256 751 (Henderson).

The vast majority of this speech is not intended to influ-

ence elections, see S.A. 858-59 (Kollar-Kotelly), and

BCRA’s criminalization of this speech demonstrates the

statute’s dramatic overbreadth.

1. Broadcasts that urge viewers and listeners to

oppose or support pending legislation do not implicate the

concerns that allegedly animate Title II. Just as this Court

has recognized that speech pertaining to referenda does

not raise a substantial concern about corruption, so too

speech urging the passage or defeat of pending legislation

does not carry any threat of corrupting the political proc-

ess. See Bellotti, 435 U.S. at 790 (“The risk of corruption

perceived in cases involving candidate elections simply is

not present in a popular vote on a public issue.”) (internal

citation omitted). Even BCRA’s sponsors proposed to the

FEC a regulatory exception to allow “entities concerned

about legislation to run true issue ads with a legislative

objective and a request to contact an elected official during

the 30 or 60 day windows.” See J.A. 1967-68. Senator

Jeffords has acknowledged that “there’s nothing wrong

with” a membership organization running an ad urging

Senators to vote on legislation affecting its members. See

11 PCS/NRA 88. But, of course, the Wellstone Amendment

and the FEC regulations now criminalize such speech.

For example, the NRA ran a series of TV ads criticiz-

ing the so-called Brady Bill and urging viewers to call

their congressional representatives in support of an

alternative legislative proposal. See J.A. 2005; 12

PCS/NRA A (video). These ads fall within even the Inter-

venors’ conception of a “true issue ad,” though BCRA now

Pre ww

criminalizes them. Likewise, in 1994 the NRA ran a series

of broadcast ads in opposition to President Clinton’s Crime

Bill. The broadcasts urged viewers to “Call your congress-

man” to oppose passage of the bill. See J.A. 2006-09; 12

PCS/NRA A (video). All of these messages were quintes-

sential political speech that was not intended to influence

an election, regardless of when the ads might have been

broadcast. The references to federal officeholders were

necessary to urge Second Amendment supporters to

pressure their representatives to defend this freedom.

The NRA also airs general educational programming

to offset the mainstream media’s biased coverage of news

relating to Second Amendment rights. In response to a

virtual blackout on coverage of issues important to the

NRA and its members, the NRA in 2000 ran a series of in-

depth, half-hour broadcasts modeled on TV news maga-

zines such as 60 Minutes. See J.A. 366-67; S.A. 256-58 951

(Henderson). The topics included: gun registration and

confiscation in England, Australia, and Canada; the

impact of the Clinton administration’s failure to pursue

vigorous prosecution of existing gun laws; the identities

and hypocrisy of the sponsors of the “Million Mom March”;

and an analysis of Vice President Gore’s position on the

Second Amendment. See J.A. 367-70; J.A. 379-83; S.A.

751-52 42.11.4.4 & n.103 (Kollar-Kotelly). These broad-

casts ran over 11,000 \imes at an expense of more than

$13 million, and were aired both on national cable chan-

nels and in targeted markets in virtually every state in the

Union. See J.A. 367; J.A. 1965.

One such NRA broadcast covered the mounting efforts

to restrict private ownership of firearms in California. See

J.A. 2010-33; 12 PCS/NRA D (video). During the 30-

minute program, a poster bearing a likeness of President

Clinton and the words “TWO YEARS LEFT TO GET

YOUR GUNS” appeared while the reporter stated that

California’s legislation banning semi-automatic weapons

was “[t]he first in the country and the model use[d for] the

1994 Clinton-Gore assault weapons ban.” J.A. 2011. This

single reference t Mr. Gore would have sufficed to trigger

BCRA’s criminal penalties for each of the more than 800

airings that occurred in California alone between August

29, 2000 and November 5, 2000. See J.A. 1966. None of

these airings was intended to influence a federal election.

J.A. 368. Indeed, in California the o1tcome of the 2000

presidential election was never in serious doubt, and the

NRA would not have wasted its scarce resources on such a

contest if influencing the election had been its objective.”

2. As Judge Henderson found, “the NRA’s frequent

references to candidates for federal office in the program-

ming it broadcasts throughout the election cycle . . . enable

the NRA to respond directly and effectively to frequent

criticism by politicians and the media.” S.A. 256-57 451

(Henderson). For example, on March 2, 2000, President

Clinton appeared on NBC’s Today Show. During the 15-

minute interview, he pointedly criticized the NRA and

made several erroneous statements, including that the

NRA is “against anything that requires anybody to do

anything as a member of society that helps to make it

safer.” See J.A. 2034-45; 12 PCS/NRA C (video), S.A. 258

(Henderson).

In order to get its side of the story out, the NRA

developed and aired a series of thirteen 30- and 60-second

ads featuring the organization’s President, Charlton

Heston. See 12 PCS/NRA 914-16; 12 PCS/NRA B (video).

Critical to framing an effective response was the NRA’s

" The NRA also aired a broadcast in 2000 entitled “It Can't

Happen Here.” See J.A. 2046-69; 12 PCS/NRA E (video). This program

was substantially similar to the “California” program and was run

throughout the United States from August through October of 2000. See

11 PCS/NRA 217-20. Although Vice President Gore’s image on the cover

of the NRA’s magazine appeared three times on the screen during this

30-minute broadcast and a single reference was made to the Clinton-

Gore administration, this program was not Mmtended to influence a

federal election in any way. See J.A. 2047, 2052-53, 2060, 2068; J.A.

368; S.A. 257 951b (Henderson).

ability to refute specific statements made by President

Clinton and to refer to him by name. See S.A. 258 (Hen-

derson). The NRA designed the ad campaign to elevate the

controversy to such a degree that NRA representatives

would be invited onto national media outlets and would

thus gain a forum to defend the NRA before a national

audience. J.A. 417-19; S.A. 258-59 (Henderson). The media

strategy succeeded, and NRA representatives were invited

to appear on several nationwide news shows. Without

access to paid media and without the ability to refer to

President Clinton by name, the NRA would not have been

able to gain access to the national television audience that

had heard President Clinton’s statements. See S.A. 258-59

(Henderson); J.A. 416-21. Although the NRA’s ads would

not have been prohibited by Title II because President

Clinton was not running for reelection, they illustrate the

critical role that paid programming plays in allowing the

NRA to defend itself.

Some politicians also use their campaign ads to attack

the NRA by name. There are dozens of recent examples of

such ads. See Storyboards of Ads Attacking NRA (Supple-

mental Submission on CD); 11 PCS/NRA 223-25, J.A.

1961-81, 11 PCS/NRA 233-44.” But BCRA would limit the

NRA’s ability to defend itself by responding directly to its

attackers through the same medium.

" Just this past election cycle, for example, Mark Shriver, a

candidate in the Democratic primary for the 8th congressional district

in Maryland, and his opponent, Chris Van Hollen, attacked the NRA in

a series of TV ads. See J.A. 1969-76. The most egregious attack was run

by Mr. Shriver:

I... defeated a piece of legislation backed by the NRA that

would have allowed convicted felons to own handguns.

That’s bad public policy. We shouldn’t allow people who are

convicted of domestic violence to own a handgun... . I wel-

come the fight from the NRA. Nothing would give me more

pleasure than defeating the NRA.

J.A. 1969-70.

The NRA’s paid broadcasts also allow it to defend

against and rebut biased media reporting. See J.A. 378-79.

The media’s coverage of the Million Mom March is illustra-

tive. In the spring of 2000, the sponsors of that event

worked closely with the Clinton White House and were able

to gain enormous exposure (through free national media

coverage) for their attacks on the NRA. See J.A. 379-80. In

response, the NRA aired a 30-minute paid program that

examined the forces and influences behind the Million Mom

March. See id.; see also J.A. 2070-85; 12 PCS/NRA F (video).

The program criticized celebrities and politicians (such as

Senator Feinstein) for advocating confiscation of handguns

from ordinary citizens while ensuring that they (or their

personal bodyguards) retain their guns. See J.A. 2071-73.

The program also included a short statement from Senator

Orrin Hatch criticizing anti-gun celebrities. See J.A. 2072-

73, 12 PCS/NRA 939; S.A. 257 951c (Henderson). Addition-

ally, during a solicitation for new members, the program

showed a cover of the NRA’s magazine FIRST FREEDOM

reading “Clinton to the Gore” and depicting President

Clinton morphing into Vice President Gore. J.A. 2077, 2084,

12 PCS/NRA 942. The program also stated that “President

Clinton, Hillary (Clinton, then a candidate for the Senate],

[and] Schumer” were at the Million Mom March “for their

own political gain,” J.A. 2076; and another segment chas-

tised the “Clinton-Gore White House” for having “turned its

back on real justice” by allowing the number of federal

firearm prosecutions to drop by 44 percent between 1992

and 1998. J.A. 2083.

This news magazine was broadcast throughout the

country from July to November 2000. For two months

prior to the 2000 election, all of the airings nationwide

would have been prohibited under BCRA because of two

references to the “Clinton/Gore” administration’s record on

prosecution of federal firearms laws and the depiction of a

magazine cover. The program aired dozens of times in

California in the 60 days prior to Senator Feinstein’s

reelection. See S.A. 257 951c (Henderson); 11 PCS/NRA

245-48. It also aired in New York in the 30 days prior

to Senator Clinton’s primary race for the Democratic

.” | ye

nomination for Senate, 11 PCS/NRA 249, 251, and in Utah

in the 60 days prior to Senator Hatch’s reelection. Supp.

App./NRA 973. But in defending itself against the attacks

launched at the Million Mom March, the NRA had no

intention of influencing a federal election. See J.A. 380.

Indeed, Senator Clinton’s primary election and Senators

Hatch’s and Feinstein’s general elections were not com-

petitive, and the ad ran heavily in states that Mr. Gore

had no chance of winning.

3. The NRA also broadcasts programs that are

designed to increase its membership and to raise funds. An

integral part of such speech is identifying the threats posed

to Second Amendment rights by anti-gun politicians. In

making fundraising appeals, the NRA has repeatedly

referred to Senators Schumer, Feinstein, and Clinton, as

well as to President Clinton and Vice President Gore, and

criticized their positions on Second Amendment rights. See,

e.g., J.A. 1950-56, 11 PCS/NRA 137-56. These fundraising

activities are not designed to influence federal elections.

Rather, they are targeted at communities that the NRA

believes are concerned about preserving the Second

Amendment and already have very negative impressions of

the federal officeholders named in the fundraising appeals.”

* For example, the NRA aired a “Tribute” to Charlton Heston

throughout the country from June through September 2000. J.A. 384.

The program contained several references to then-Vice President Gore.

J.A. 2088, 2095; see S.A. 752 n.104 (Kollar-Kotelly). Despite these

limited references, the program was not intended to influence the

outcome of a federal election. J.A. 384-85. Indeed, when the ad was run

within the 60 days prior to the election, it aired in markets such as

Dallas, Texas, and Los Angeles, California, where the outcome of the

presidential election was not in doubt. 11 PCS/NRA 252, 253. Addition-

ally, during the appeals for new members, Senator Feinstein’s name

was briefly mentioned in text at the bottom of the screen in a ticker

format. J.A. 2091 (“National gun registration plan from Sen. Dianne

Feinstein - Campaign Centers on Gun Photo ID’s.”). Again, although -

this program ran in September of 2000 in California, it was not

intended to influence Senator Feinstein’s reelection contest, which was

not competitive. See J.A. 384-85. Similarly, the NRA in 1999 aired

(Continued on following page)

4. As the foregoing reflects, in the year 2000 alone,

the NRA aired issue advocacy on hundreds, if not thou-

sands, of occasions when it had no intent to influence a

federal election but nonetheless would face criminal

penalties under BCRA. Title II, accordingly, must fall, for

the criminalization of “a large amount of speech” that is

protected under the First Amendment demonstrates that

the statute is fatally overbroad. Reno v. ACLU, 521 U.S.

844, 874 (1997). And even if the Court rests its over-

breadth analysis on the percentage of “innocent” political

speech that is prohibited by Title II, the NRA’s ‘speech

alone demonstrates the palpable flaws in the Buying Time

2000 study relied upon by Congress and Defendants to

justify the speech restriction.

By design, the study excluded all of the 330,000

minutes of the NRA’s speech that took the form of half-

hour news magazines, for the study considered only ads

that lasted less than two minutes on television. Indeed,

the amount of NRA speech neglected by the study is, in

terms of total airtime, more than twice that which its

authors considered. See J.A. 1171-73 (interest groups ran

133,335 political ads in 2000). As explained above, most of

the NRA’s infomercials, including those that referenced

candidates, were devoted solely to issue advocacy and were

not intended to influence an election. When the docu-

mented airings of the NRA’s broadcast are added to the

proper numerator and denominators identified in the

McConnell Plaintiffs’ brief, Title II is shown to be at least

34 percent overbroad and thus plainly constitutionally

invalid. See S.A. 257-58 951d (Henderson).™

“Banned In Canada,” which warned viewers that “powerful people like

Senator Charles Schumer, the most anti-gun politician in history, have

a very different future in mind for you”; no election was looming at the

time, and Senator Schumer himself was not up for election until 2004.

See Supp. App./NRA 987, 999.

* Both Judges Kollar-Kotelly and Leon inexplicably stated that the

NRA had not established how its news magazines would have affected

(Continued on following page)

a eee - eke erg ee meg

Title II will also have a chilling effect because it

creates a practical nightmare for national issue advocacy

groups that wish to continue to engage in political dis-

course without running afoul of the statute’s criminal

sanctions. In 2004, such groups will have to censor their

broadcasts in no fewer than 1,505 markets at varying

times.” And there will be thousands of candidates whose

names must be cleansed from broadcasts reaching the

relevant markets. See 11 PCS/NRA 118-19 (indicating that

there were 2,100 candidates for the House and Senate in

1998). In attempting to comply with Title II, the NRA

must first identify the precise time that each primary

occurs for all political parties in each state, and the names

of each and every candidate for federal office. The result-

ing database will have to be constantly updated to reflect

candidates dropping in and out of all the races. The NRA

will then have to cross-check its speech for any reference

to any candidate within the proscribed markets and times.

Even the Defendants’ own experts concede that “[tJhe

hodgepodge of different primary dates makes it difficult”

to identify speech that is covered by Title Ii. See J.A.

1343.”

the results of Buying Time. S.A. 1072-73 (Kollar-Kotelly); S.A. 1355-56

(Leon). But the details of the calculation upon which Judge Henderson

relied were set forth in the NRA’s Reply Br. below at 24-25 & n.21

(citing J.A. 1966, Supp. App./NRA 1005-49).

” in $004, these will bo 0 manny a0 O70 peimesien Sv Ge mee

Representatives (a Republican and Democratic primary for use

race), 66 primaries for Senate races, 100 primaries for the Republican

and Democratic nominations for the presidency, 435 general elections

for the House, 33 Senate general elections, and one general presidential

election. These calculations exclude, of course, the primaries for third

party candidates and thus represent a conservative estimate of the

number of races that will trigger BCRA’s requirements.

* It will be especially onerous for the NRA to purge references to

candidates for federal office from its 30-minute news magazines. Much

of this programming is devoted to unscripted interviews with ordinary

citizens. The NRA will have to transcribe these interviews so that it can

compile the names of all those who are referenced during the program.

(Continued on following page)

V. TITLE If UNCONSTITUTIONALLY DISCRIMI-

NATES IN FAVOR OF MEDIA CORPORATIONS.

Title II’s restriction of “electioneering communica-

tions” does not extend to any “communication appearing in

a news story, commentary, or editorial distributed through

the facilities of any broadcast station.” BCRA §201(a).

During the period when all other corporations are muz-

zled, media companies may air as many of their own

electioneering communications as they wish. Unlike other

corporations, they can endorse candidates for election and

name candidates while editorializing on particular issues.

But Title II’s media exception does more than give the

broadcast companies a special license to discuss candi-

dates for federal office.

By banning advocacy groups from buying their own

advertising time, Title II puts those broadcasters in the

position of being able to grant (or deny) speech licenses to

advocacy groups whose only remaining hope for air time is

to be chosen by a broadcaster for inclusion on one of its

programs. This reinforces the station owners’ “unfettered

power ... to communicate only their own views on public

issues, ... and to permit on the air only those with whom

Additionally, some of the interviews contain references to officeholders,

such as the attorney general of a particular state, without including his

name. See, e.g., J.A. 2050 (“And when gun owners call ATF directly or

the California Attorney General’s Office, they can’t get a straight

answer from them either.”). The NRA will have to identify each

unnamed officeholder given that Title II covers references to specific

offices. See 11 C.F.R. § 100.29(b)\(2). Many of the NRA’s programs

include footage of protests against anti-gun measures, so the NRA will

have to scan and transcribe the text of all the placards carried by the

protesters to ensure that none contains the name of a candidate or

references a specific office. And the NRA will face the task of making

sure that the candidates themselves do not appear in these protests or

any of its news footage. Once all of these names have been compiled,

then the NRA must then match them against the database of candi-

dates for federal office. The complexity of this process will severely chill

the NRA’s speech.

ee eee ee

_ ee

they agree[ ].” Red Lion Broad. Co. v. FCC, 395 U.S. 367,

392 (1969); see also FCC v. League of Women Voters, 468

U.S. 364, 398 (1984). An eighteenth century British

colonial censor armed only with the Stamp Act would

salivate at the prospect of wielding the speech-licensing

power that Title II confers on the broadcast media.

- The public debate in the weeks preceding an election

will now be heavily skewed by Title II to those viewpoints

that the broadcast media, as super-gatekeepers, judge to

be worthy of consideration. During future elections, the

NRA will be limited to its PAC funds in broadcasting any

communication that even refers to a candidate; by con-

trast, General Electric, for example, will be free to broad-

cast criticism or praise of candidates at will. Indeed, a

multinational conglomerate that happens to own a TV

network and cable channels, Rupert Murdoch’s News

Corporation, can use its general treasury funds to produce

a weekly hour-long program (“American Candidate”) that

effectively launches its very own political candidate, see

J.A. 1982-86, 11 PCS/NRA 346-47, while the NRA — funded

by millions of regular Americans with annual dues of $30

each — would commit a federal crime if it purchased a 30-

second commercial spot during that program that so much

as referred to that candidate.

This is unconstitutional. This Court has rejected the

proposition that “communication by corporate members of

the institutional press is entitled to greater protection

than the same communication by [non-media companies].”

Bellotti, 435 U.S. at 783 n.18; see also Dun & Bradstreet,

Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985).

The First Amendment does not enshrine the press, for its

own sake, as a favored institution apart from the public.

There is no favored Fourth Estate here, any more than

there is a First Estate (the clergy) or a Second Estate (the

aristocracy). The rights of the media are derivative of the

rights of the people. The press is protected only because it

“serves ... as a constitutionally chosen means for keeping

officials elected by the people responsible to all the people

whom they were selected to serve.” Mills v. Alabama, 384

U.S. 214, 219 (1966).

The Equal Protection Clause prohibits the Govern-

ment from discriminating between classes of speakers

without a compelling governmental purpose. See Austin,

494 U.S. at 667. In Austin, this Court confirmed that a law

exempting media companies from a regulation of political

speech triggers strict scrutiny, but concluded that there

was a compelling governmental purpose for this discrimi-

nation: the “unique role that the press plays in ‘informing

and educating the public, offering criticism, and providing

a forum for discussion and debate.’” Jd. at 667 (quoting

Bellotti, 435 U.S. at 781). The Court found that “media

corporations differ significantly from other corporations in

that their resources are devoted to the collection of infor-

mation and its dissemination to the public.” Id.

Austin cannot save Title II’s media exception because

the uncontested evidence in the record demonstrates that

Austin’s factual predicates no longer exist. The creation

and proliferation of the Internet has permanently trans-

formed “the collection of information and its dissemination

to the public,” and the absorption of media companies into

multinational conglomerates negates any notion that

media companies are either “unique” or immune from the

corruption-related concerns that are claimed to be the

driving force behind BCRA.

Under strict scrutiny, the Government may not simply

“posit” the existence of a compelling governmental inter-

est, but must “demonstrate” that interest through the

presentation of substantial evidence. Turner, 520 U.S. at

191; see United States v. Playboy Entm’t Group, Inc., 529

U.S. 803, 816-19 (2000). And this Court has recently

recognized that the existence of the extraordinary facts

needed to satisfy strict scrutiny at one time does not

necessarily mean that those facts will continue to exist to

justify a similar law in the future. See generally Grutter v.

Bollinger, No. 02-241, slip op. at 31 (U.S. June 23, 2003).

Given that 13 years have passed since the Austin Court

upheld a state law favoring the political speech of media

companies over that of nonmedia companies, the NRA’s

challenge to Title II’s media exemption obligated the

Re I Ea i SE SA, Bias

Government to present evidence demonstrating why that

discrimination satisfies strict scrutiny.

Despite this burden, the Government presented no

evidence to the trial court that might justify Title II's

discrimination in favor of media companies, choosing

instead to rely solely upon Austin. The majority below

followed suit. See S.A. 883-84 (Kollar-Kotelly). But while it

rejected the NRA’s argument, the District Court did not

(and could not) reject the uncontested facts that persuaded

Judge Henderson that “[t]he media industry is no longer

‘unique’ in the way that it was 10 or 15 years ago.” S.A.

_ 273 954(a)(5) (Henderson). Neither Judge Kollar-Kotelly

nor Judge Leon found any facts that contradict Judge

Henderson’s core factual finding.”

When the factual record in Austin closed in 1986, the

internet was essentially nonexistent. Now, as Judge

Henderson found, “[mJore than 168 million Americans, or

60 percent of the general public, use the internet,” mean-

ing that “[mJore Americans use the internet than read a

daily newspaper.” S.A. 272-73 954(a)(3)A) (Henderson).

Judge Henderson also found that as “a source of news and

information, the internet rivals and is displacing the

broadcast media,” that the “rapid growth in internet usage

* Judge Kollar-Kotelly rejected the contention that Internet

advertisements are “comparable to those broadcast over TV and radio

in terms of their public reach and impact,” S.A. 739-41 492.10.3, 2.10.4

(Kollar-Kotelly), because Internet viewers “make a choice to go to the

website and download or watch the program, while advertisements on

television and radio are aired throughout programming without any

viewer choice.” S.A. 739-40 42.10.3.1 (Kollar-Kotelly). Judge Henderson

certainly did not find this distinction relevant, see S.A. 272-73 954a(3)

(Henderson), nor did Judge Leon endorse it. More importantly, neither

Judge Kollar-Kotelly nor Judge Leon rejected any of the specific facts

related to the proliferation of Internet usage found by Judge Hender-

son, and therefore did not (and could not) reject the proposition that the

Internet has dramatically changed the “collection of information and its

dissemination” since the time Austin was decided.

is one of the reasons for the dramatic decline in broadcast

news program viewing,” and that “[nJumerous websites

provide an alternative source of daily news and challenge

the market dominance previously enjoyed by the tradi-

tional media.” S.A. 274 954(a)(3)(B) (Henderson). In

particular, “[t]he internet has also become an increasingly

popular source of political news during election periods.”

Id.

Based upon the undisputed evidence, Judge Hender-

son concluded that “[o]ver the past decade the role of the

traditional media in informing and educating the public

has been profoundly altered by the emergence of the

internet,” to the point of negating the factual premise of

Austin that traditional broadcast companies play a

“unique role” in disseminating information and offering a

forum for debate. S.A. 272-73 954(a)(5)(A) (Henderson).

Neither Judge Leon nor Judge Kollar-Kotelly rejected

these critical facts.

Judge Henderson also found a second changed cir-

cumstance. While Austin relied on the assumption that

media corporations were different because “their resources

are devoted to the collection of information and its dis-

semination to the public,” 494 U.S. at 667, Judge Hender-

son found that ;‘many media entities have been subsumed

within larger corporate conglomerates and have devoted

their resources to bottom-line profits."” Why should the

speech rights of such corporate behemoths as General

Electric and Disney be greater than the rights of nonprofit,

* As Judge Henderson noted, “CBS has been acquired twice in the

past decade, first by Westinghouse and then by Viacom, and is now a

subsidiary of a conglomerate that runs oil companies, farms, theme

parks, and mining companies.” Likewise, ABC is now part of the Walt

Disney Corporation, NBC is owned by General Electric, and Fox

Television is part of Rupert Murdoch’s global News Corporation empire,

which owns transportation companies and sports teams.” S.A. 274

754a(5\(B) (Henderson). Additionally, AOL TimeWarner owns CNN, and

Microsoft is a co-owner of MSNBC.

Ny fi]

a ee ge ae a

ere rs

grassroots advocacy organizations like the NRA? Surely a

multi-billion dollar multinational conglomerate is not

vaulted into a “unique role” in our society the moment it

decides to absorb a television station into its panoply of

diverse business assets. Title II thus stands for the per-

verse proposition that it is wrong to use corporate money

to pay for a discrete amount of broadcast time to air

electioneering communications, unless the amount of

money used is so enormously large that it purchases an

entire station’s worth of broadcast time.

Neither the Government nor the majority below

explain why nonmedia companies that can afford to

purchase broadcast facilities should be entitled to greater

speech rights than other nonmedia companies. Instead,

Judge Kollar-Kotelly tried to finesse “the NRA’s entire line

of argument” with the assertion that “the media exception

only applies to the ‘facilities of any broadcasting station,’

... not the facilities of any broadcasting company.” S.A.

883 (Kollar-Kotelly). Yes, it is true that Title II exempts

news stories, commentaries, and editorials distributed

through the facilities of any “broadcast station,” but that

obviously means that Title II exempts news stories,

commentaries, and editorials broadcast by the company

that owns that broadcast station.

Judge Henderson specifically found, on the basis of the

NRA’s substantial, uncontested, and uncontradicted evi-

dence, that “[mJedia subsidiaries in some circumstances

have been pressured by their non-media parent corpora-

tions to advance the interests of the parent or of the affili-

ated non-media businesses.” Not surprisingly, therefore,

“[sjome media companies have refused to cover stories that

might compromise the interests of the parent or of the

affiliated entities.” S.A. 274 954a(5)(C) (Henderson).”

* Indeed, BCRA’s supporters, including the late Senator Wellstone,

have argued that one can no longer rely on the media to fulfill their

traditional function of “hold{ing] concentrated power — whether public

or private power — accountable to the people.” 12 PCS/NRA 628.

In sum, the uncontested evidence before the trial

court confirms that “Big Media” has become part of “Big

Business.” There is no longer any qualitative distinction

between the two that can justify (1) immunizing broadcast

corporations from the same corruption concerns that Title

II ostensibly attributes to all other corporations, or (2)

giving, say, General Electric a special license to comment

on federal elections, while muzzling advocacy groups

whose defining corporate purpose is not profit but the

dissemination of ideas.

CONCLUSION

For the foregoing reasons, this Court should enjoin

Title II’s prohibition on electioneering communications or,

alternatively, the Wellstone Amendment.

Respectfully submitted,

CLETA MITCHELL CHARLES J. COOPER

FOLEY & LARDNER Counsel of Record

3000 K Street, N.W. Suite 500

Washington, D.C. 20007

(202) 295-4081

DavID H. THOMPSON

HAMISH P.M. HUME

DEREK L. SHAFFER

COooPER & KIRK, PLLC

1500 K Street, N.W.

Suite 200

Washington, D.C. 20005

(202) 220-9600

BRIAN S. KOUKOUTCHOS

CooPER & KIRK, PLLC

28 Eagle Trace

Mandeville, LA 70471

July 8, 2003 (985) 626-5052

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APPENDIX

TABLE OF CONTENTS

Page

Congressional Statements Concerning Con-

trolling The Quantity And Quality Of Political

Speech ..........sccsesrcsssscssssvssssccsecsessccsessssecsssssoscsssesseesees la

A. Senate Statements.............cccrcccccccccccccccccceecessees la

B. House Statements...............:ccccccceeeeeeeeeeeeeeeeeeees 33a

Congressional Statements Concerning Pre-

serving Candidates’ Control Over Campaigns....... 40a

A. Senate Statements .............cccccccccsseeeeeeeeeeeeeeeeees 40a

B. House Statements.................++- ai netenemenad 43a

Congressional Statements Concerning Oppo-

BERR Ty TI Ei cccesoccccccccceccssccccccccccsccccccccccccesvesvscees 46a

Congressional Statements Concerning The

Need To Restrict NRA’s Speech...........::::sceececeeseeeees 52a

Congressional Statements Concerning Sever-

ability Of Wellstone Amendment In Light Of

Constitutional Concerns ................:scecceeeeeeeeeeeeeeneees 58a

Congressional Statements Concerning The

Design Of Wellstone Amendment To Curb

Individual Expenditures. ...........::csecccceesesereeeeeneeeees 65a

I. CONGRESSIONAL STATEMENTS CON-

CERNING CONTROLLING THE QUANTITY

AND QUALITY OF POLITICAL SPEECH

A. SENATE STATEMENTS

Statement of Sen. McCAIN:

“What the modified bill seeks to do is establish a so

called bright line test 60 days out from an election. Any

independent expenditures that fall within that 60-day

window could not use a candidate’s name or his or her

likeness. During this 60-day period, ads could run that

advocate any number of issues. Pro-life ads, pro-choice

ads, anti-labor ads, pro-wilderness ads, pro-Republican

party or Democratic party ads all could be aired without

restriction. However, ads mentioning candidates them-

selves could not be aired.

This accomplishes much. First, if soft money is

banned to the political parties, such money will inevitably

flow to independent campaign organizations. These

groups often run ads that the candidates themselves

disapprove of. Further, these ads are almost always

negative attack ads and do little to further benefi-

cial debate and a healthy political dialog. To be

honest, they simply drive up an individual candidate’s

negative polling numbers and increase public cynicism for

public service in general.”

143 ConG. REc. $10,105 (Sept. 29, 1997).*

* All emphases throughout this appendix have been added.

Statement of Sen. McCAIN:

“I am sure we can make a judgment on a lot of ads we

have seen and the same ads the Senator and I find disgusting

and distasteful and should be rejected. But at the same time, I

don’t know how we can say, OK, if this station doesn’t run my

ads, I am going to go to a judge and have the judge make them

run my ads. It just is something that would be very difficult.

I would love to work with the Senator from New Mexico.

He has been a steadfast stalwart for campaign finance reform.

I would love to work with him to try to achieve this goal.

Frankly, after going around and around on this issue, identify-

ing who paid for the ad, full disclosure and, frankly, net

allowing corporations and unions to contribute to paying for

these things in the last 60, 90 days, which is part of our

legislation, is about the only constitutional way that we

thought we could address the issue.

I thank the Senator from New Mexico. He is addressing an

issue that has demeaned and degraded all of us because people

don‘ think very much of you when they see the kinds of

attack ads that are broadcast on a routine basis.

As the Senator pointed out, they are dramatically on

the increase. I will tell you what. You cut off the soft

money, you are going to see a lot less of that. Prohibit

unions and corporations, and you will see a lot less of

that. If you demand full disclosure for those who pay for those

ads, you are going to see a lot less of that because people who

can remain anonymous or organizations that can remain

anonymous are obviously much more likely to be a lot looser

with the facts than those whose names and identity have to be

fully disclosed to the people once a certain level of investment

is made.”

147 Conc. REc. S3116 (Mar. 29, 2001).

——

. eS a e+

_ Statement of Sen. McCAIN:

“I hope that we will not allow our attention to be

distracted from the real issues at hand how to raise

the tenor of the debate in our elections and give

people real choices. No one benefits from negative

ads. They don’t aid our Nation’s political dialog.

Again, if someone chooses to run negative ads, this bill will

not restrict their right to do so. But we should not just

throw up our hands and say, ‘Who cares?’ We should seek,

within the protections of the Constitution, to encourage a

healthy political debate.”

143 ConG. REC. $10,106 (Sept. 29, 1997).

Statement of Sen. McCAIN:

“That is, so we are changing both. I say to my friend, I

am changing both the definition of ‘independent expendi-

ture’ and the definition of ‘express advocacy.’ We are doing

so because there is clearly a huge problem in American

politics today, which I am sure the Senator from Kentucky

appreciates. There are no longer independent campaigns.

There is nowhere in any dictionary in the world the word

‘independent’ that would fit these campaigns. They are

part of campaigns. To my dismay, and I am sure to

every Member of this body, they are negative. And

they are negative to the degree where all of our

approval ratings sink to an all time low.

If the Senator from Kentucky believes that these are

truly independent campaigns, set up and run and funded

by individuals who just want to see their particular issues,

whether it be pro-life or pro-choice or workers’ right to

strike or any of the others, then fine.

But it is beyond me to believe that the Senator from

Kentucky could have, having seen these ads he is very

deeply involved in the political process that they are

independent. They are not. They are appendices of the

political campaigns. The tragedy of it is, 98 percent of

them are attack ads, as the Senator well knows.”

143 ConG. REc. $10,132 (Sept. 29, 1997).

Statement of Sen. JEFFORDS:

“Mr. President, I understand what my good friend

from Kentucky is saying, but I remind everyone what the

real issue is, and that is elections. We are talking about a

system which has developed over the past couple of years

which has seriously imposed upon us unfairness as far as

candidates are concerned who find themselves faced

with ads, and other areas of expression, to change

the election. Why would they spend $135 million to $200

million unless it was successful?

Let us get a real-life situation of what we are talking

about. I have been in the election process for many, many

years, and I know from my own analysis — and I think it

probably is carried forward everywhere -— that the critical

time in an election to make a change in people’s minds is

the last couple of weeks.

Basically, I find that probably of the electorate, only

about 50 percent care enough about elections to even go.

That is the average across the country. Of that 50 percent,

— emer © <

probably half of them will make up their minds during the

last 2 weeks.

So you are out and have a well-planned campaign and

everything is coming down to the end. You can go and find

out what your opponent has to spend, and you can try to be

ready to match that. And then whammo, out of the blue

comes all these ads that are supposedly issue ads,

but they are obviously pointed at positions that are

taken by you saying how horrible they are. So these

are within the Snowe-Jeffords amendment.

What can you do about it? You cannot do anything.

You cannot even find out who is running them, unless you

are lucky and have an inside source in the TV and radio

stations to tell you who it is. You cannot find out. There is

no disclosure.

The most important part of our amendment is just

plain disclosure. If it is far enough in advance, 30 days

before a primary and 60 days before a general election, at

least you have time to get ready for it. If you know you are

going to get all these ads coming, then you can reorder

your priorities of spending. You can say, “Oh, my God, we

have all this coming,” and you never know until it is all

over. You are gone. You lose the election and you didn’t

know. The opposition comes forth with this barrage

and you are totally helpless.”

144 ConG. REc. S917 (Feb. 24, 1998).

Statement of Sen. JEFFORDS:

“Mr. President, I am disturbed at the DeWine attempt

to solve a problem that is not there. I was one of those back

in my last election — not the last but the one before that —

who was exposed to this kind of advertising, who has had

to face seeing ads on television which totally distort

the facts and say terrible things. You watch a 20-

percent lead keep going down and you do not know who is

putting them on. You know what they are saying is totally

inaccurate, but you have no way to refute it, other than to

try to get people convinced that nobody knows who put it

there, who is behind it.

The constitutionality of our provisions is common

sense. How can you say that something which merely asks

the person who put out the ad to let everybody know who

they are is unconstitutional? How in the world can you say

that it is unconstitutional to require somebody to disclose

who they are and what they are?

That is all we are doing in Snowe-Jeffords.

The Wellstone amendment does make things a

little more confusing in that regard.”

147 ConG. REc. S3071 (Mar. 29, 2001).

Statement of Sen. SNOWE:

“That is correct —- our amendment is not intended to

convey any criticism of the FEC. The Buckley magic words

test is a very narrow one, and has proven completely

ineffective in stopping phony issue ads that attack can-

didates. My amendment offers a new approach to this

problem, by creating a new category of ‘electronic ads’ that

name candidates in broadcasts close in time to an election.”

144 ConG. REc. S979 (Feb. 25, 1998).

Statement of Sen. SNOWE:

“Any successful campaign finance reform bill must

address the realities of elections as we approach the new

millennium. One of those realities is the so called issue

advocacy or voter education ads. We have all seen these

ads: threatening music over provocative images blatantly

designed to influence voters to vote against a candidate.

But because these ads don’t specifically say “vote against

candidate X” there is currently no limit on how much can

be spent on them, and no accountability.

It is obvious to anyone the purpose of these ads; to

skirt current campaign finance laws that require that ads

designed to influence Federal elections be paid for with

hard money, and disclosed to, and regulated by, the Fed-

eral Election Commission. Under my bill, the law would be

changed in such a way to include these types of ads under

hard money limits and disclosure requirements. This

would help limit the attack ads and give the public the

information they need about who is paying for these ads

and how much they are spending. An informed electorate

is the key to any democratic system of government, and

my bill will give people the information they need to make

up their own minds.”

143 ConG. REC. S8581 (July 31, 1997).

Statement of Sen. WELLSTONE:

“The last criterion is political equality. Everybody

ought to have an equal opportunity to participate in the

process. That means the values and preferences of citizens,

not just those who get our attention through the large

contributions, should be considered in the debate. One

person, one vote; no more, no less; one person, same

influence. Each person counts as one, no more than one.

That is the standard. That is what it is all about. That

precious principle, that precious standard of representative

democracy, is being violated.

Finally, I have to say this because I forgot to mention

this earlier. This is the part of the McCain-Feingold

legislation that I think is perhaps most important. I

remember the 1996 election. I think these issue

advocacy ads are a nightmare. I think all of us

should hate them. I very much would like to apply this to

independent expenditures as well. I want to be clear about

it. But in Minnesota, it was a barrage of these phony issue

advocacy ads, where they do not tell you to vote for or

against; they just bash you and then they say: Call

Senator So-and-so.

They are soft money contributions with no limits on how

much money is raised, no limits on how the money is raised.

It could be in $100,000 contributions, $200,000 contributions,

and make no mistake about it, this is in both parties. These

big soft money contributors have a tremendous amount of

access and way too much influence in both parties.

So with one stroke, it would be a wonderful

marriage. We could get some of this poison politics

off television. We could get some of these phony ads

off television. We could build more accountability, and we

would make both political parties, I think, more account-

able to the public.”

145 ConG. REc. S12,606-07 (Oct. 14, 1999).

it~ AE ia ka

SN a TE BE RE LP

Statement of Sen. WELLSTONE:

“The point is, if you are concerned about poison

politics, leave this loophole open, let these interest

groups run these sham ads. Overwhelmingly they are

negative, they can be vicious, they are poison poli-

tics.”

147 ConG. REc. $2846 (Mar. 26, 2001).

Statement of Sen. WELLSTONE:

“If you want to try to get as much of the big money out

of politics as possible, you have to support this amendment.

If you hate bitter, personal, poison politics, you have

to support this amendment. Because, before the Presid-

ing Officer came in, I was saying that the Brennan Center

said that 70 percent of the money spent by these sham ads

by these groups and organizations is personal, negative,

and going after people’s character. I am glad to say that

only about 20 percent of the candidates’ ads do that.”

147 ConG. REc. $2849 (Mar. 26, 2001).

Statement of Sen. CANTWELL:

“This bill is about slowing the ad war. It is about

calling sham issue ads what they really are. It is about

slowing political advertising and making sure the

flow of negative ads by outside interest groups does

not continue to permeate the airwaves. Ninety-eight

million dollars worth of these ads ran in the 2000 election

by narrowly focused special interest groups based out of

Washington, DC. This legislation will change that and

10a

again focus these debates more on the public agenda. This

bill also stops the unlimited flow of corporate contribu-

tions, or soft money, that contributed to the volume of ad

wars in the 2000 election.”

148 Conca. REC. $2117 (Mar. 20, 2002).

Statement of Sen. CANTWELL:

“The Seattle Post Intelligencer noted earlier this week

that campaign ads ‘rained down on — or bludgeoned,

according to some — viewers throughout the late summer

and fall. And this wasn’t an intermittent, drip torture kind

of rain that Seattle residents know so well. Jt was a

deluge, a constant unavoidable torrent, stretching across

three solid months.’

With this constant torrent of negative advertis-

ing, it is no wonder that voting among 18 to 24 year

olds has dropped from 50% to only 32% - a much

steeper decline than overall turnout.

Part of the reason for this disaffection with

voting and with politics is undoubtedly due to nega-

tive attack advertising.”

147 Conc. REc. S2698 (Mar. 22, 2001).

Statement of Sen. BOXER:

“Another good thing about McCain-Feingold:

Those vicious attacks that have come from large soft

money contributions will not be able to come 60 days

before your election. That is a big plus because that is what

lla

we find — that candidates at the end simply cannot

respond to this barrage of activity.

So I feel personally grateful, going into an election

cycle, that in 2004 candidates will not have this burden to

raise hundreds of thousands of dollars from one source in

soft money. That will not be allowed. I think that is good

for the candidate. I think that is good for the country, it is

good for the legislative process. We will not be hit by

these last-minute ads with unregulated soft money at

the end, to which we will be unable to respond.”

148 ConG. REc. $2101 (Mar. 20, 2002).

Statement of Sen. BOXER:

“I have to tell you, when I think about speech, I think

about both sides of it. Jf you have an independently

wealthy billionaire running against you in a State like

California, and he writes checks every day and bashes you

on television every day and bashes the other opponents that

he is running against every day, I believe we should ask,

what about the free speech rights of the opponents? What

about the speech of the other people that are drowned out

because of money? If you equate money and speech, it

seems to me you are saying someone who is wealthy

has more speech rights than someone who is not.

This is not the American way. We are all created equal.

That is the basis of who we are as a nation. I really hope

that we can get past this notion that money is speech and

that we will move forward with a comprehensive bill.

12a

My one disappointment with the substitute pending

before the Senate, is that it is not as comprehensive as the

first version of the McCain-Feingold bill. However, I

respect the judgment of the Senators that it would be best

at this time to zero in on two horrible abuses of the sys-

tem.

One abuse is the soft money abuse, which means

unregulated dollars of any amount that flow into political

parties. We have seen the hearings that are going on by

this U.S. Senate and over in the House. If anything, we

come away with this: Let’s put an end to soft money. We

could point fingers all day this politician, that politician,

where the calls were made, who made them but I guaran-

tee that gets us nowhere. The issue is the system. There

will be enough examples around from both parties. This is

not the problem.

So if we get exercised about these hearings and I have

seen colleagues here who are very exercised about them

they should go over to John McCain and Russ Feingold

and tell them they are on their side. There ought to be

some controls on the soft money contribution, and those

controls are now pending before the Senate. The second

area of abuse tackled by the McCain-Feingold bill is the so

called issues advocacy advertisements. This is where you

take an organization with endless sums of money to put

into an attack ad against the candidate they don’t like.

Under current law, individuals can only give $1,000 in

the primary and $1,000 in the general to the candidate,

but issues advocacy has grown into huge loophole. These so

called issues ads are not regulated at all and mention

candidates by name. They directly attack candidates

13a

without any accountability. It is brutal. I have seen

them. I have seen them from both sides.

I can tell you, it is totally unfair and totally unregu-

lated and vicious. It is vicious. We have an opportunity

in the McCain-Feingold bill to stop that and basi-

cally say, if you want to talk about an issue, that is

fine, but you can’t mention a candidate. If this is truly

issue advocacy, you can’t mention a candidate a few weeks

before the election.

If you want to talk about an issue day and night, talk

about the issue, whether it is choice, the environment,

health care, gun control talk about it. But once you

attack a candidate, that is not an issue ad. This is

what the Feingold McCain will go after.”

143 ConG. REc. S10,208-09 (Sept. 30, 1997).

Statement of Sen. BOXER:

“Second, the McCain-Feingold amendment bans

attack advertising disguised as ‘issue ads’ by corpora-

tions and unions within 60 days of an election.”

144 ConG. REc. S10,168 (Sept. 10, 1998).

Statement of Sen. DASCHLE:

“We also have a serious problem with regard to the

ads themselves and all that comes from spending this

money. It is the amount of money, the perception of to

whom we are indebted, but now we also have a problem

l4a

with the virulent advertising that comes from it. I

believe that negative advertising is the crack cocaine

of politics. We are hooked on it because it works. We are

hooked on it because we win elections using it. There is no

accountability, no reporting; it is publicly not tied to any

candidates. And I expect that in 1998 we are going to see a

meltdown of the process, because we are going to see more

virulent ads than we have ever seen in our lifetimes. The

crack cocaine of politics will be at work again.

Negative ads from anonymous sources push candi-

dates to the margins. Candidates become bit players in

their own races. How many times have I heard candi-

dates actually say, ‘I couldn’t keep track of who was on my

side. I'd watch television and I’d hear my name used pro

and con, and I didn’t have anything to do with those ads. I

am sitting like a man at a tennis match, watching both

sides play it out.’ And the debate now is defined by who

has the most money; that is how it is defined.”

144 ConG. REC. 868 (Feb. 24, 1998).

Statement of Sen. DASCHLE:

“A 1997 study by the respected Annenberg Public

Policy Center at the University of Pennsylvania found that

phony ‘issue ads’ are nearly identical to campaign ads —

with two exceptions. The ‘issue ads’ are more attack-

oriented and personal. And, it is harder to identify the

sponsor. These ads epitomize the negative campaign-

ing — without any accountability — the public so dislikes.”

145 Cona. REc. $12,660 (Oct. 15, 1999).

eee eee ee i

15a

Statement of Sen. KENNEDY:

“In recent years, the amount of money spent in

Presidential campaigns has doubled every 4 years. Senate

and House races now cost millions of dollars. Election

campaigns have become more and more negative,

with misleading TV spots that traffic in halftruths

or outright falsehoods. And corrupting and corroding it

all are the massive abusers of the current loophole ridden

campaign financing laws.”

143 ConG. REc. $10,271 (Oct. 1, 1997).

Statement of Sen. LIEBERMAN:

“The Annenberg study further found that more than

40 percent of the 1996 ads plainly attacked candidates,

not issues. One of the witnesses before our committee said

last week that by his review of the ads, the issue ads were

actually more negative to candidates than the candi-

date ads were. Some ads don’t bother with issues at all.”

143 ConG. REc. $10,141 (Sept. 9, 1997).

Statement of Sen. DURBIN:

“On the Saturday night before the election last No-

vember, bone weary, I pulled into my apartment in Chi-

cago, and I was going to relax a little bit. It was in the

closing days of the campaign. So I slumped down in a

chair, grabbed the remote control to listen to Saturday

night Live. Somewhere between the news and Saturday

Night Live, up pops four television commercials, one

16a

after the other, and every one of them blasting me.

What a treat that was fo sit in the chair and get

pummeled by four different commercials.

The most unique thing was that not a single one was

paid for by my opponent, the Republican Party in Illinois,

or the National Republican Party. They were paid for by

committees and organizations that most people never heard

of. These are organizations which mushroom up during

campaigns, take some high sounding name, collect mil-

lions of dollars, undisclosed and unreported, and run ads,

the most negative ads on television, against politicians.

That is an outrage. It is an outrage that I have to account

for every dollar I raise and spend and I have to identify

the television commercials that I put on, either comparing

my record with my opponent or speaking about something

I believe in, and these groups can literally run roughshod

over the system, spending millions of dollars without any

accountability.

McCain-Feingold addresses that. Thank God it does. If

we dont put an end to this outrage, most of these other

reforms are meaningless. To eliminate soft money and to

allow special interest groups, whether on the business or

labor side, to continue to spend money unfettered in issue

advocacy and the like is outrageous. The McCain-Feingold

legislation is an idea whose time has come.”

143 ConG. REc. $10,124 (Sept. 29, 1997).

Statement of Sen. DURBIN:

“People are sick of our advertising. It is too negative.

It is too nasty. These drive-by shooting ads that we

have, 30-second ads by issue groups you never heard

- OEE

17a

of, at the last minute of a campaign, and candidates,

myself included, spending a lot of time groveling and

begging for money, that does not help the process. It does

not help our image. It does not encourage people to get

involved.

What McCain-Feingold is about is not just changing

the law but changing the attitude of the public toward the

political campaigns. And unless and until that happens,

we face a very serious problem in this country. What

McCain-Feingold goes after in eliminating soft money is

something that has to happen. Soft money is what is left

after all of the restrictions on hard money have been

applied.

For those who are not well versed in the language of

politics and campaigns, ‘soft money can be corporate

money, it can be money that is given by a person that

exceeds any kind of limitation. It can be money that is

used indirectly to help a campaign. And that sort of

expenditure has just mushroomed.

I am glad that the legislation of Senator Feingold and

Senator McCain is going to ban soft money. J also think it

is critically important they do something about these issues

ads.”

144 ConG. REc. S879 (Feb. 24, 1998).

Statement of Sen. DURBIN:

“There is not only something wrong with the advertis-

ing, it has become so negutive, so nasty, so dirty, that

people are disgusted with it. There is something wrong

with the products. Candidates for the House and Senate

18a

are losing their reputation or seeing their integrity ma-

ligned because we spend so much time grubbing for money.

People believe that we are captives of special interest

groups. And because they are sick of the style of campaign

and because they have little or no confidence in those of us

who wage the campaigns, they stay home.”

143 ConG. REC. $10,123 (Sept. 29, 1997).

Statement of Sen. DURBIN:

“There is another element, too — the advertising that we

put on television during the course of the campaign. A lot of

people are turned off by it. Most campaigns hire sophisticated

people to make those ads. They hire pollsters who go out

and take legitimate samples of American opinion — sam-

ples within a given State — and convert those samples into

messages; 30-second messages that go up on television.

Some of the messages are positive. Some are negative. It is

the negative ones that unfortunately give us the bad

name and lead a lot of people to say that this process

itself is so fundamentally flawed.”

144 ConG. REc. $10,060 (Sept. 9, 1998).

Statement of Sen. DORGAN:

“And guess what? What kind of advertising was this?

Eighty-one percent of it was negative advertising; 81

percent negative advertising. That is the air pollution in

19a

this country that we ought to worry about. We ought

to do something about it.”

143 Conc. REc. $10,097 (Sept. 26, 1997).

Statement of Sen. DORGAN:

“Finally, campaign finance reform is also part of what

our caucus is committed to doing. There are a lot of discus-

sions about what pieces will work and what pieces will not

work with respect to campaign finance reform. I want to

describe one little piece that I think is important. The

most significant kind of air pollution in America

today is the 30-second political ad that does nothing

but tear down someone’s opponent. It is a 30-second

slash and burn, cut and run ad that contributes

nothing to our country. The first amendment gives

everybody the right to do that. We won’t change that. But

there is a little thing we can change. We can, by Federal

law, say that every television station is required to offer

the lowest rates on the rate card during political advertis-

ing during a certain period. I propose that we change that

law to say that low rate is only available to candidates

who run advertisements that are at least 1 minute in

length. Let’s require people to say something significant in

one in which the candidate himself or herself is in the

advertisement 75 percent of that 1 minute.”

144 ConG. REc. S702 (Feb. 12, 1998).

Statement of Sen. DORGAN:

“This overly narrow definition of what constitutes

express advocacy has created a giant loophole for attack

20a

ads. Simply by avoiding the magic words I mentioned

above, corporations, unions, and other special interest

groups can pay for brutal attack ads. Anyone who has seen

some of these ads can tell they’re intended to influence the

outcome of Federal elections. And because they can be paid

for with soft money, groups can raise money for them

without limits, buy them in the millions of dollars, and

never have to disclose what they’re doing to the FEC.”

143 ConG. REc. S8933 (Sept. 8, 1997).

Statement of Sen. DORGAN:

“And what about the issue ads which Senator Durbin

mentioned as well? These issue ads — are they ads that

contribute to this political process? Eighty-one percent of

them are negative. They represent the slash, burn and tear

faction of the political system. Get money, get it in large

chunks from secret sources and put some issue ads on

someplace and try to tear somebody down.”

144 ConG. REc. S880 (Feb. 24, 1998).

Statement of Sen. DORGAN:

“I would like to just mention two additional items

before I close. One of the concerns I have about our

political system is so much of the advertising is

negative. There is nothing you can do about that; I

understand that. We cannot prohibit this kind of adver-

tisement. We can say, if you are going to put this kind of

advertisement on the air, you have to play by the rules and

get hard money and disclose the donors. There is nothing

2la

wrong with that. But we cannot prohibit any advertise-

ment. So much of it now is negative and so much of it is a

30-second little political explosion that goes on across our

country where candidates are not even hardly named, at

least with respect to the person’s campaign, in financing

the 30-second ad. It is a nameless, faceless, little bomb

directed to destroy, tar or feather some other candidate.”

143 ConG. REc. $10,138 (Sept. 29, 1997).

Statement of Sen. DORGAN:

“Mr. President, I rise today to discuss legislation I am

introducing to address a significant air pollution problem

we have in this country.

No, I’m not talking about smog, or acid rain, or the

ozone layer, I’m talking about broadcast air pollution.

And by that I mean the 30- second, slash-and-burn,

hit-and-run political ad that does nothing but cut

down an opponent.

Can you think of any other business in this country

that sells its wares only by tearing down the opposition?

Do airlines ask you to consider their services because their

competitors’ mechanics are unreliable, and try to conjure

up images of plane crashes to get you to switch carriers?

Do car manufacturers sell their products by raising dark,

misleading doubts about the safety of their competitors’

autos? Does McDonald’s run ads raising the threat of E-

coli bacteria in Burger King’s hamburgers?

Of course not, but that’s precisely the way we compete

in politics against each other.

22a

It is a pretty sad state of affairs when the American

people get a more informative and dignified discussion about

the soda they drink or the fast food restaurant they prefer

than they do in the debate about what choices to make for our

country’s future. It is time to do something about it.

We cannot and should not attempt to limit speech. But

there is something we can do to provide the right incen-

tives. Under current law, television stations are required

to offer the lowest unit rate to political candidates for

television advertising within 45 days of a primary election,

and within 60 days of a general election.”

The legislation I am proposing today would change

that law to provide that the low rate must be made avail-

able only to candidates who run ads that are at least one

minute in length, in which the candidate appears at least

75 percent of the time.”

144 ConG. REc. $1076 (Feb. 26, 1998).

Statement of Sen. COLLINS:

“The situation with bogus issue ads is not better. That

practice undermines the two major objectives of our

election laws, namely, placing limits on contributions and

disclosing the identity of those making the contributions.

Without such disclosure, we lose accountability. A recent

study found that as accountability in political communica-

tions declines, levels of misinformation and deceit rise.

Thus, it is no surprise that bogus issue ads almost

always carry a negative message, something which

23a

all in this body purport to decry. The question is — are

we willing to do something about it?”

144 Conc. REc. S875 (Feb. 24, 1998).

Statement of Sen. COLLINS:

“I want to respond, also, to the comments made by the

Senator from Connecticut and the Senator from Michigan

and thank them for their support of the Wyden-Collins

proposal. Senator Dodd and Senator Feingold also raised a

very important point, and that is, the deluge of negative

attack ads discourages people from voting and really

turns off the American public. This is exacerbated by

the fact that a lot of times it is not evident who is sponsor-

ing these ads, who is behind these charges and allegations

that are hurled particularly in the final days of the cam-

paign.

I believe the Snowe-Jeffords amendment will help in

that regard and that the amendment Senator Wyden and I

are sponsoring today will make very clear that when a

candidate launches a negative ad attacking his opponent,

that candidate will have to take responsibility for that ad.”

147 ConG. REc. $2695 (Mar. 22, 2001).

Statement of Sen. CLELAND:

“I look back at the 1976 decision by the Supreme

Court which, in effect, equated the ability to spend money

with free speech. In the campaign finance hearings a

couple of years ago, I asked the simple question: If you do

not have any money in this country, does that mean you do

not. have any speech? Of course not. The problem is we

24a

have equated money with speech and the ability to

get on the air with 30- and 60-second spots which

make us want to throw up.

I share the concern of the distinguished Senator from

Alabama, Mr. Sessions, about these negative attack ads

that come from out of State and seem to originate from

God knows where. They come in and assassinate some-

one’s character. That is not the country for which Senator

McCain and I fought. That is not the kind of democracy we

intend to serve. That is one reason why I have bonded with

him in such a close way: to support cleaning up this in-

credible process.”

145 ConG. REc. $12,612 (Oct. 14, 1999).

Statement of Sen. REED:

“This would curtail what has become an explosion

throughout our American political system. Phony issue

advertisements are unconstrained, cropping up suddenly,

without attribution, to strike at candidates.”

144 ConG. REc. S884 (Feb. 24, 1998).

Statement of Sen. DODD:

“If you look at campaign advertising, the attacks we

wage against each other, the personal degradation we

attach to and associate with our political competitors, what

has happened is, we have so devalued public service

and the public life of elected office that the public

has become understandably disgusted with the

condition of politics in America. We have no one to

25a

blame for that but ourselves. Jn no small measure that has

occurred because of the rising amount of dollars that are

spent being convinced by political consultants that the best

way to win office is not to convince anyone of the merits of

your argument but if you can convince people that your

opponent is somehow unworthy of even consideration for

the office, let alone that his ideas or her ideas may lack

substance, then you can win a seat in the Congress of the

United States.

Thus we see, as we did last year, where, of the 200

million eligible voters in America, only 50 percent voted;

100 million Americans cast their ballots for the Presidency

of the United States, a decision that was made by a hand-

ful of votes in one State, and 100 million of our fellow

citizens did not even show up on election day, where a tiny

fraction, had they shown up in one State, would have

resulted in a different outcome than what occurred as a

result of the recounts and so forth that occurred in the

State of Florida.

I suspect that a good portion of that 100 million didn’t

show up because they forgot or because they had some-

thing better to do that day.

I suspect a substantial portion didn’t show up because

they are disgusted with the process; they are sick and tired of

coming into September and October after an election year and

you can't turn on a single bit of programming without

some mudslinging going on, attacking of one another,

blistering one another. Whether it is through our own ads,

or the ads of outside groups just trying to destroy the

reputations of people seeking public life, I-suspect that

26a

has more to do with the declining numbers of people check-

ing off on the 1040 forms, the resource to support Presiden-

tial public financing.

One of the reasons why McCain-Feingold de-

serves support, in my view, is because there is some

hope that this will put the brakes on, slow this down

enough so we don’t have an unending exponential growth

of dollars pouring into the coffers of candidates and groups

out there year in and year out, destroying not only the

candidates, but the public’s confidence in a political system

that has contributed greatly to this great Nation over 200

years.”

147 Conc. REc. $2943 (Mar. 27, 2001).

Statement of Sen. DODD:

“Mr. President, let me thank our colleague from New

Mexico for proposing this amendment. All of us here, and

those who pay any attention at all to politics in this

country and are confronted with this, as most Americans

are, if you look at this chart by the Senator from New

Mexico, particularly in that August, September,

October period of an election year, it is hard not to be

confronted with the assault — that is the only way to

describe this — of ads on television from one end of the

country to the next, on every imaginable radio station

television station, now cable stations — this Sembardiment

that occurs.

What the Senator from New Mexico has graphically

demonstrated with his chart is that the overwhelming

majority of these ads are the so-called attack ads.

Usually, they are very vicious, designed to not promote

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27a

one’s ideas nor one’s vision, one’s agenda — if they are

elected to Congress or the Senate or the Presidency or

some other office — but merely to try to convince the rest of

us why you ought to be against someone; not why you

ought to be for me but why you ought to be against my

opponent.

The least enlightening part of a campaign is the

proliferation of these ads. They do nothing, in my view, to

contribute to the education, the awareness of the American

people. We have seen an explosion of them over the

past few years. I suspect this has probably been in the

last 6 or 7 years, with the explosion of soft money that the

McCain-Feingold bill seeks to shut down.”

147 Conc. REc. $3113 (Mar. 29, 2001).

Statement of Sen. MURRAY:

“Given the problems in the system, I developed a set

of principles for reform that have guided my decisions

throughout this debate. My principles for reform are:

First, there should be less money in politics. Second, I

want to make sure that average voters aren't

drowned-out by special interests or the wealthy.

Third, we must demand far more disclosure from those

who work to influence elections. When voters see an ad on

TV or get a flyer in the mail, they should know who paid

for it. There must be disclosure for telephone calls and

voter guides. Citizens have a right to know who’s trying to

influence them. We’ve seen a disturbing increase in the

number of issue ads, which are often negative attack

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ads. Too often, voters have no idea who’s bankrolling

these ads.”

147 ConG. REC. S3236 (Apr. 2, 2001).

Statement of Sen. BINGAMIN:

“It should come as no surprise to any of us that more

and more Americans are repulsed by these anonymous

assaults and the sheer volume of money pouring into our

election system. As a consequence, they are distancing

themselves from the political process. That is the greatest

tragedy of all. Americans are so turned off by our political

system that they don’t even vote on election day. When

they do vote, often it is not the sense of voting for the

better of two candidates; it is a perception that they are

voting for the lesser of two evils on the ballot.

With a tidal wave of campaign cash flowing into our

political system, the torrent of negative advertising on

the airways, and the lack of meaningful disclosure or

accountability, it is becoming increasingly difficult,

almost impossible, for the American people to feel

good about any candidate, or their participation in the

democratic process.”

144 ConG. REc. $10,081 (Sept. 9, 1998).

Statement of Sen. WYDEN:

“Mr. President, I come to the floor this morning with

Senator Collins of Maine to offer a bipartisan amendment

29a

that we believe will help slow the explosive growth of

negative political commercials that are corroding the faith

of individuals in the political process. I also thank my

colleague from New Mexico, Senator Bingaman, and

Congressman Greg Walden of Oregon on the House side,

who has also been extremely interested in this issue over

the years.

Negative commercials are clearly fueling citi-

zens’ cynicism about politics. Those negative com-

mercials are depressing voter participation and, in

my view, they are demeaning all who are involved in

the political process.”

147 ConG. REC. $2692 (Mar. 22, 2001).

Statement of Sen. BAUCUS:

“The problem we're really facing is how grey the cam-

paign finance laws have become. McCain-Feingold, as

amended, would make them black and white. Just take issue

advocacy advertising as an example. In the last couple cam-

paigns, the lines have been blurred between express advocacy,

which requires federal disclosures, and issue advocacy.

We can all recall advertisements in our own state that

just barely skirted the lines. In Montana, the unregulated soft

money ads started early. Close to a year before the election,

groups started attacking candidates with mud-slinging

ads. Groups with benign sounding names that hid their

partisan bent. Ads that attacked candidates, and even told

people where to call, but somehow fell under the ‘issue

30a

advocacy’ definition, and were exempt from campaign finance

laws.”

147 ConG. REC. S3239 (Apr. 2, 2001).

Statement of Sen. JOHNSON:

“I personally have just been through one of the longest

and, frankly, one of the most expensive per voter Senate

campaigns in the history of America. My opponent and I

spent a total of $24 for every vote cast. And, if one were to

include the money spent by the national party organiza-

tions and the various independent groups, total spending

would rise to around $29 per vote. All of this money

produced one of the longest political campaigns the Nation

has ever seen. My opponent began running campaign

commercials 17 months from the election, then 13 months

before the election an attack ad campaign, one that I had to

respond to, although I was not yet even formally an

announced candidate in the race.

That is the kind of campaign negative vitriolic,

longwinded, longstanding that did nothing to im-

prove the confidence of the American public in our

political process, and did nothing to restore confidence

that in fact the system reflects their values and their

ideals and their values. Jt was simply a system awash in

too much money.” :

143 ConG. REC. $10,395 (Oct. 6, 1997).

3la

Statement of Sen. LEVIN:

“If we do not do it, if we

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