# Appellants Brief — McConnell v. Federal Election Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0664%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 938 ## Text Supret 91> 1678 1 | | | o. 02-1675 | St? 9003 | In The or ae | Supreme Court of the Gnited States SJ NATIONAL RIFLE ASSOCIATION, et al., Appellants, v. 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 ae 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.” ii 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 iv 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 Vv 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 vi 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 1 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. 2 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 3 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 4 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 5 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 6 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 7 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 8 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 < - 9 ¢ 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) 10 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 11 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 12 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. 13 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)). 15 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 16 “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. co a 17 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.” 18 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) 19 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) 20 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. io Ps Be, say Ms ca bs : ee ee Ie ha 2 ee | < — = \¥ ree = “ee a 21 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 22 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. 23 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. 24 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 25 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. 26 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 ae Page EE — wr 27 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. 28 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 29 “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). 30 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). 31 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). - 32 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 33 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. 34 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 35 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). 36 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 37 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 38 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). LN 39 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. 40 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 41 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) 42 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 43 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) a4 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 45 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). 46 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 47 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. 48 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 49 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. 50 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 ogee SEE Da ee DL ELISE PIKE PTF OOP es eh ae ee oo oe eeayre IT. Il. 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 la 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. 2a 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+ 3a _ 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, 4a 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 wa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0664%3A18. Public record. Not legal advice.