Amicus Curiae Brief — McConnell v. Federal Election Commission

t Soul Ly >< Suprema Cau, U.S.

( Se Cs) TILED |

No. 02-1674 et al. |

AAS 200 XW

IN THE

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Supreme Court of the United States

ois

SENATOR MITCH MCCONNELL ET AL.,

Appellants/Cross-Appellees,

FEDERAL ELECTION COMMISSION ET AL.,

Appellees/Cross-Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAE,

FORMER LEADERS OF THE AMERICAN CIVIL LIBERTIES UNION,

IN SUPPORT OF APPELLEES/CROSS-APPELLANTS

FEDERAL ELECTION COMMISSION, ET AL.

ERIC M. LIEBERMAN NORMAN DORSEN

ROGER BEARDEN Counsel of Record

GREGORY SILBERT Stokes Professor of Law

Rabinowitz, Boudin, Standard, New York University School of Law

Krinsky & Lieberman, P.C. 40 Washington Square South

740 Broadway, 5th Floor New York, New York 10012

New York, New York 10003-9518 (212) 998-6233

(212) 254-1111

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....cccccccccscccceses

INTEREST OF AMICI CURIAE AND

STATEMENT OF POSITION ................

SUMMARY OF ARGUMENT ....................

STE sdacesddcccnccudecdcassidscctdscsicsues

I. Appellants’ Facial Challenge to BCRA

Must Be Rejected Because BCRA’s

Scope Is Precisely and Narrowly

Tailored and Cannot Be Deemed

“Substantially Overbroad” ...................

A. The Primary Definition of

Electioneering Communications

EY WE ccndttucshecdsieniewseces

B. The Fall-back Definition of

“Electioneering Communication”

Be EY TH cccsasdonceddcskcccsscone

Il. EXPRESS ADVOCACY IS NOTA

CONSTITUTIONAL CEILING ..............

III. DISCLOSURE REQUIREMENTS AND

PROHIBITIONS ON CORPORATE

AND LABOR UNION FUNDING

OF ELECTIONEERING COMMUNI-

CATIONS SERVE IMPORTANT

FIRST AMENDMENT INTERESTS ........

13

14

21

il

A. BCRA’s Disclosure Requirements

Are Constitutional...........-.+-+++++++++

B. BCRA’s Restriction of Corporation

and Labor Union Funding of

Electioneering Communications

Is Constitutional...........----+-+-e+eeeee:

C. The Exception for MCFL

Corporations Is Preserved

PAGE

ili

TABLE OF AUTHORITIES

Cases: PAGE

Austin v. Michigan Chamber of Commerce,

ED cn vnesccccscevescctesceses 20, 26

Board of Trustees, State Univ. of New York

v. Fox, 492 U.S. 469 (1989) ................. 10

Broadrick v. Oklahoma, 413 U.S. 601 (1973)... 6, 8,9

Brockett v. Spokane Arcades, Inc.,

EE SID osc ccuccasdéetscscececvece 6, 10

Brown v. Socialist Workers ‘74 Campaign

Comm. (Ohio), 459 U.S. 87 (1982) .......... 8, 25

Buckley v. Valeo, 424 US 1 (1976)

sipeeteteeosnes passim

City of Boerne v. Flores, 521 U.S. 507

AD t en etanannsceednnvsesesccecess 28

City of Chicago v. Morales, 527 U.S. 41

ieee nde bccwandesedscnscese 13, 14

Coates v. City of Cincinnati, 402 U.S. 611

EEE Ee 10, 13

Colorado Republican Federal Campaign

Committee v. FEC, 518 U.S. 604 (1996) .... 9

Communist Party v. Subversive Activities

Control Bd., 367 U.S. 1 (1961) .............. 22

Dombrowski v. Pfister, 380 U.S. 479 (1965)..... 10

FEC v. Beaumont, ____ U.S. ___,

ED oc cccccccccccccs 11, 20, 25, 26

iV

PAGE

FEC v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238 (1986) ...........-2 2 eee 8,27, 28

FEC v. National Conservative Political Action

Committee, 470 U.S. 480 (1985)............. 20

FEC v. National Right to Work Committee,

GOD UB. BGT CAG ie ood ciccdcccisescvccess 25, 26, 27

Gooding v. Wilson, 405 U.S. 518 (1972) ......... 10

Grayned v. City of Rockford, 408 U.S. 104

CUE cknscciccdcccnccvchstducdccdsdeceasistaces 17

Houston v. Hill, 482 U.S. 451 (1987)............. 8

Kolender v. Lawson, 461 U.S. 352 (1983) ....... 13

Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789

CIE cv cccnncccscncsscscesecccsesentconseneiees 8

NAACP v. Button, 371 U.S. 415 (1963) .......... 17

New York v. Ferber, 458 U.S. 747 (1982) ........ 8

Pipefitters Local Union No. 562 v. U.S.,

eR Rm Eh : errr rete 26

Regan v. Taxation With Representation,

OG UB. GED CAGED cc ccccccecccsccsvccssseses 11

Renne v. Geary, 501 U.S. 312 (1991)............ 10

Secretary of State of Md. v. Joseph H. Munson

Co., Inc., 467 U.S. 947 (1984) .............. 13, 14

Smith v. Goguen, 415 U.S. 566 (1974) ........ 7, 13,14

Spence v. Washington, 418 U.S. 405 (1974) ..... 14

ee ee ae ae - e e

ee r- =——

Vv

PAGE

Steffel v. Thompson, 415 U.S. 452 (1974)........ 7

Thomas v. Collins, 323 U.S. 516 (1945).......... 17

United States v. Raines, 362 U.S. 17

Peis cdctcnnmunediederebaneniicdeiduseie lc. 7

United States v. Salerno, 481 U.S. 739 (1987)... 8

United States v. United Auto Workers,

ek, 26, 27

Virginia v. Hicks, __ U.S. __, 123 S. Ct. 1291

SePPeUe ostAnetinecadhuccnvandedceicneudiendssedcce 6,9

Warth v. Seldin, 422 U.S. 490 (1975)............ 7

Yazoo & Mississippi Valley R.R. v. Jackson

Vinegar, 226 U.S. 217 (1912) ............... 7

Statutes and Regulations

Bipartisan Campaign Reform Act,

Pub. L. No. 107-155 (2002)............. ane passim

Electioneering Communications,

67 Fed. Reg. 65190, 65203-04

es 28

Federal Election Campaign Act,

Pub. L. No. 93-443 (1974) ................... passim

® U.S.C. § SSOCEMSMA). .......ccccccccccccccccecces AE

V1

PAGE

Other Authorities

L. Brandeis, Other People’s Money

(National Home Library Foundation

ed. 1933) ........+++- Leieaesaceanabensseasenens 23

Richard H. Fallon, Jr., Making Sense of

Overbreadth, 100 Yale L.J. 853

(1991) .....ccccccccccccccccccccceccccccnceseeens 12

——

INTEREST OF AMICI CURIAE!

AND STATEMENT OF POSITION

Amici constitute persons who have served as ACLU

President, ACLU Executive Director, ACLU National

Legal Director, and ACLU National Legislative Director.

Norman Dorsen served as ACLU General Counsel from

1969-1976 and as President of the ACLU from 1976-

1991. John Pemberton served as Executive Director of

the ACLU from 1962-1970 and Aryeh Neier served as

Executive Director from 1970-1978. john powell served

as National Legal Director from 1987-1993. John Shat-

tuck served as National Legislative Director of the

ACLU from 1976-1984 and Morton Halperin as National

Legislative Director from 1984-1992.? Amici have

devoted much of their professional lives to the ACLU

and, in particular, to the protection of free speech. They

are proud of their ACLU service, and they continue to

support the ACLU’s matchless efforts to preserve the

Bill of Rights. They believe, however, that the opposi-

| This brief is filed with the written consent of all parties. No

counsel for a party authored this brief in whole or in part, nor did any

person or entity, other than amici or their counsel, make a monetary

contribution to the preparation or submission of this brief.

2 Burt Neuborne, who served as National Legal Director from

1982-1986 and who joined with amici in a statement supporting the

legislation, represents the intervenor-defendants/appellees Senator

John McCain et al. in defense of the constitutionality of the Biparti-

san Campaign Reform Act and is therefore ineligible to appear on this

brief. Charles Morgan, Jr., who served as National Legislative Direc-

tor from 1972-1976, signed a letter to Congress with the other amici

publicly supporting the constitutionality of the BCRA, but he is cur-

rently ill and unable to consent to appear on this brief. Bruce Ennis,

who preceded Burt Neuborne as National Legal Director and who

joined in the statement in support of the legislation, died prior to the

commencement of this litigation.

2

tion of the current leadership of the ACLU to campaign

finance reform in general, and the Bipartisan Campaign

Reform Act (“BCRA”), Pub. L. 107-155, 116 Stat. 81, in

particular, is misplaced. Amici submit this brief to elu-

cidate their publicly-stated view that the electioneering

provisions of BCRA, Sections 201-204, are facially con-

stitutional.*

SUMMARY OF ARGUMENT

The electioneering provisions of BCRA, Sections 201-

204, address the growing evasion of existing campaign

finance regulations through the use of broadcast adver-

tisements designed to influence federal elections, yet not

subject to the disclosure requirements or the funding

source prohibitions that for decades have been placed on

other forms of electioneering activity. These advertise-

ments avoid words expressly advocating the election or

defeat of a particular candidate, while leaving no doubt

to the listener that a particular candidate’s election or

defeat is preferred.

To bring these advertisements within the existing cam-

paign finance regulations, Congress adopted a definition

of electioneering communication, carefully limited to

broadcast, cable, or satellite communications referring to

a clearly identified candidate for federal office, made

within 60 days of a general election or 30 days of pri-

mary election, and targeted to the relevant electorate.

Congress then imposed the same funding and disclosure

requirements on these communications that for decades

have applied to other electioneering communications.

3 Amici support the constitutionality of the soft money provi-

sions of BCRA, Sections 101-103, which is fully and adequately

defended in other briefs before-the Court.

3

Appellants’ facial challenge, while conceding the

numerous constitutional applications of the election-

eering communications provisions, nevertheless asserts

that the definition of electioneering communication

adopted by Congress was overbroad in that it may reach,

in certain instances, issue advocacy unconnected with a

pending election. Further, appellants argue that the fall-

back definition of electioneering communication adopted

by Congress, limiting the term to broadcast, cable, or

satellite communications promoting, supporting, attack-

ing, Or opposing a candidate for office and suggestive of

no plausible meaning other than an exhortation to vote

for or against a specific candidate, is unconstitutionally

vague and therefore must be stricken on its face.

Appellants’ challenge fails for at least four reasons.

First, petitioners wrongly invoke the overbreadth doc-

trine to challenge the primary definition of election-

eering communication. The Court has held that it will

not invoke the “strong medicine” of overbreadth facial

invalidation unless a law is substantially overbroad and

only upon due consideration of the costs exacted by

facial invalidation. Given that the overwhelming major-

ity of the applications of BCRA are constitutional and

that appellants have multiple avenues available for as-

applied relief, appellants’ facial challenge cannot stand.

Second, appellants’ facial vagueness challenge to the

back-up definition fails for similar reasons. A law may

be stricken as facially vague only where it lacks an oper-

ative core of prohibited conduct. There can be no doubt

as to the core application of the fall-back definition of

electioneering communication. Whether the definition

may be vague in application to particular circumstances

must be reserved for an appropriate as-applied chal-

lenge.

4

Third, the application of existing funding and disclo-

sure requirements to electioneering communications as

defined by BCRA is clearly constitutional under the

Court’s precedents. The Court has long upheld restric-

tions on corporate and labor union funding of election-

eering communications, and has similarly held that

disclosure requirements serve important First Amend-

ment interests in informing the public about the sources

of support for candidates for public office. The extension

of these funding restrictions and disclosure requirements

to electioneering communications as defined by BCRA

is perfectly consistent with the Court’s campaign finance

jurisprudence.

Last, the contention that the Court’s limiting con-

struction in Buckley v. Valeo, 424 US 1 (1976), forever

constrains Congress to regulate only words expressly

advocating the election or defeat of a candidate misreads

the Court’s decision in Buckley. Moreover, given the

ease with which electoral communications may avoid

words of express advocacy, a holding that these magic

words form a constitutional ceiling beyond which no

campaign finance law may reach would leave Congress

unable to create any effective system of campaign

finance regulation. Nothing in the First Amendment or

the Court’s precedents requires such a result.

ARGUMENT

I. Appellants’ Facial Challenge to BCRA Must Be

Rejected Because BCRA’s Scope is Precisely and

Narrowly Tailored and Cannot Be Deemed “Sub-

stantially Overbroad”

Congress adopted alternative definitions of the term

“electioneering communication” in the BCRA. The pri-

mary definition provides that an electioneering com-

5

munication is a “broadcast, cable, or satellite commu-

nication” which— (1) “refers to a clearly identified can-

didate for Federal office;” (2) is made within 60 days of

a general election or 30 days of primary election; and (3)

in elections other than for president or vice-president,

“is targeted to the relevant electorate.” 2 U.S.C.

§ 434(f)(3)(A)(i). The fall-back definition, applicable if

the primary definition “is held to be constitutionally

insufficient by final judicial decision,” defines “elec-

tioneering communication” as a “broadcast, cable, or

satellite communication which promotes or supports a

candidate for that office, or attacks or opposes a candi-

date for that office (regardless of whether the commu-

nication expressly advocates a vote for or against a

candidate) and which also is suggestive of no plausible

meaning other than an exhortation to vote for or against

a specific candidate.” 2 U.S.C. § 434(f)(3)(A)(ii).

Appellants assert a facial challenge to both the pri-

mary and fall-back definitions of “electioneering com-

munication.” Appellants argue, first, that the primary

definition, although precise and unambiguous, uncon-

stitutionally imposes funding and disclosure restrictions

on certain communications that may appear on the

broadcast media in an electoral district during the period

immediately preceding a federal election and use a can-

didate’s name or likeness, but that are, nevertheless,

unconnected with the forthcoming election. The possi-

bility that the fundir.g of such so-called “pure issue”

communications might be restricted by BCRA, appel-

lants argue, requires the invalidation of the primary def-

inition on its face, even as applied to the vast majority of

cases in which petitioners concede enforcement would

not violate the First Amendment.

Turning to the fall-back definition, appellants contend

that a definition of electioneering communication lim-

6

ited to speech that praises or criticizes a given candidate

and that may not be plausibly understood as anything

other than an exhortation to vote for or against the can-

didate, is unconstitutionally vague on its face. Appel-

lants argue that since speakers cannot know with

absolute certainty whether a given communication prais-

ing or criticizing a candidate for federal office can rea-

sonably be construed as anything but a request for

electoral support, speakers may self-censor and untrust-

worthy administrators will be vested with undue dis-

cretion to apply the statute in a viewpoint discriminatory

manner.

Appellants’ facial challenge to BCRA’s two defini-

tions of electioneering communications cannot stand.

This Court has recognized that despite its important role

as a protector of free expression, the First Amendment

facial overbreadth doctrine exacts societal costs by strik-

ing down otherwise valid laws based on a judicial pre-

diction that a law might be applied in an unconstitutional

manner. Accordingly, the Court has limited facial over-

breadth challenges to settings where plaintiffs can show

that the feared unconstitutional applications of the law

are “substantial” relative to those instances where it may

be constitutionally applied. Broadrick v. Oklahoma, 413

U.S. 601 (1973); Virginia v. Hicks, __U.S.___, 123 S.

Ct. 1291 (2003). Similarly, the Court has refused to

impose the costs of facial overbreadth review in settings

where affected speakers can effectively seek as-applied

protection of First Amendment rights. Brockett v.

Spokane Arcades, Inc., 472 U.S. 491 (1985). Since

Congress’s primary definition of electioneering com-

munication is clearly constitutional in the vast bulk of its

applications, and since appellants in this action, among

the most powerful speakers in this country, may effec-

tively seek as-applied relief from any allegedly uncon-

stitutional application, the Court should reject

7

appellants’ efforts to use facial review strategically in an

effort to bring down the entire edifice of campaign

finance regulation.

Appellants’ facial vagueness challenge to Congress’s

fall-back definition of electioneering communication

should likewise be rejected. Under settled law, a facial

vagueness challenge may be raised only when a statute

is sO vague that it lacks an “operative core.” Smith v.

Goguen, 415 U.S. 566 (1974). It is impossible to argue

persuasively that the back-up definition of electioneer-

ing communication lacks an “operative core.” Indeed, in

the vast majority of possible applications, the fall-back

definition is perfectly clear. A reasonable person can

understand whether a broadcast advertisement praises or

criticizes a given candidate and whether the advertise-

ment may plausibly be understood as anything other than

an exhortation to vote for or against the candidate. Any

purported vagueness in the fall-back definition at the

margins may effectively be dealt with through an as-

applied request for declaratory relief from the Federal

Election Commission, or, if necessary, an Article III

court. Steffel v. Thompson, 415 U.S. 452 (1974).

A. The Primary Definition of Electioneering

Communications Is Facially Valid

This Court has traditionally required that persons

seeking judicial review of the constitutionality of gov-

ernment action proceed on an “as-applied” basis, seek-

ing relief against a credible and otherwise ripe threat to

enforce a statute or regulation against the litigant’s

behavior. See Yazoo & Mississippi Valley R.R. v. Jackson

Vinegar, 226 U.S. 217 (1912); United States v. Raines,

362 U.S. 17 (1960); Warth v. Seldin, 422 U.S. 490

(1975). Although an important exception to this princi-

ple has been recognized in the First Amendment context,

ee

8

the Court has consistently required plaintiffs to demon-

strate “substantial overbreadth” before resorting to the

“strong medicine” of facial invalidation. Broadrick, 413

U.S. at 613; see Houston v. Hill, 482 U.S. 451, 458

(1987) (“Only a statute that is substantially overbroad

may be invalidated on its face”). The Court has, there-

fore, rejected efforts to posit hypothetical future harms

in limited circumstances as a basis for facial invalida-

tion. See, e.g., Members of City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)

(“[T]he mere fact that one can conceive of some imper-

missible applications of a statute is not sufficient to ren-

der it susceptible to an overbreadth challenge”); New

York v. Ferber, 458 U.S. 747, 771 (1982) (“[A] law

should not be invalidated for overbreadth unless it

reaches a substantial number of impermissible applica-

tions...”); United States v. Salerno, 481 U.S. 739, 745

(1987).4

In the campaign finance context, this Court has effec-

tively protected the First Amendment rights of partici-

pants in the electoral process through as-applied review

and narrow construction. See, e.g., FEC v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238 (1986) (as-applied

challenge holding that ban on corporate treasury expen-

ditures on behalf of a federal candidate could not con-

stitutionally be applied to a small, nonprofit advocacy

group that received no financial support from capital

corporations); Brown v. Socialist Workers ‘74 Campaign

Committee (Ohio), 459 U.S. 87 (1982) (creating as-

applied exception to Ohio campaign contribution dis-

closure rules for contributions to the Socialist Workers

4 Notably, plaintiffs-appellants Mitch McConnell, er al., in

their discussion of the purported overbreadth of the primary defini-

tion of electioneering communication, do not cite to a single one of

the Court’s overbreadth cases. See McConnell Br. at 49-57.

9

Party based upon evidence that disclosure would subject

party members to threats, harassment, and reprisals);

Colorado Republican Federal Campaign Committee v.

FEC, 518 U.S. 604 (1996) (recognizing as-applied

exception to efforts to limit the independent expendi-

tures of a political party). Indeed, in Buckley itself, the

Court recognized that the definition of “electioneering

communication” in FECA was too broad. Instead of

invalidating the entire scheme on its face, however, the

Buckley Court posited a narrowing construction designed

to avoid conflict with the First Amendment. Buckley,

424 U.S. at 42; Cf. Broadrick v. Oklahoma, 413 U.S. 601

(1973) (upholding Oklahoma’s “Little Hatch Act,” reg-

ulating political activities of government employees, in

facial challenge because the protected speech at risk was

not sufficiently “substantial” when compared with the

sweep of unprotected activity lawfully regulated by the

Statute).

As the Court recently noted in Virginia v. Hicks,

USS. , 123 S.Ct. 1291, 1296-97 (2003), before.

applying the “strong medicine” of facial overbreadth

invalidation, the Court has weighed the benefits of facial

invalidation of a statute against the societal costs of

blocking a statute in its numerous constitutional appli-

cations. “[T]Jhere are substantial social costs created by

the overbreadth doctrine when it blocks application «. a

law to constitutionally unprotected speech.” Jd. at 1297

(emphasis in original). Thus, “[t]o ensure that these costs

do not swallow the social benefits of declaring a law

‘overbroad,’” the Court has “insisted that a law’s appli-

cation to protected speech be ‘substantial,’ not only in

an absolute sense, but also relative to the scope of the

law’s plainly legitimate applications, before applying the

‘strong medicine’ of overbreadth invalidation.” Jd. (cit-

ing Broadrick, 413 U.S. at 613).

10

Due consideration of both the costs and benefits of

resorting to the “strong medicine” of facial invalidation

requires rejection of petitioners’ facial challenge to

BCRA’s primary definition of electioneering communi-

cations. In the first place, resort to facial review is not

necessary to protect a vulnerable speaker. Appellants in

this action are among the nation’s most powerful and

wealthy speakers who are more than able to protect their

First Amendment rights in as-applied challenges. See

Renne v. Geary, 501 U.S. 312, 323-324 (1991) (facial

challenge should generally not be entertained when an

“as-applied” challenge could resolve the case); Board of

Trustees, State Univ. of New York v. Fox, 492 U.S. 469,

484-85 (1989); Brockett, 472 U.S at 504.

The primary definition of electioneering communi-

cation is restricted to the funding of large-scale expen-

ditures for broadcast advertisements using the name or

likeness of a candidate in a period immediately preced-

ing a federal election. Since vulnerable speakers who

might be unable to raise as-applied challenges or to seek

administrative guidance are highly unlikely to be

affected by such a narrow law, BCRA simply does not

raise concerns that would be present in settings involv-

ing vulnerable speakers who are unlikely to be in a posi-

tion to preserve their First Amendment rights in more

traditional as-applied proceedings. See, e.g., Dom-

browski v. Pfister, 380 U.S. 479 (1965); Coates v. City of

Cincinnati, 402 U.S. 611 (1971); Gooding v. Wilson, 405

U.S. 518 (1972).

Moreover, the risk to protected speech posed by the

primary definition of electioneering communication is

minimal. Contrary to appellants’ hyperbole, Congress

has not banned any speech in adopting the primary def-

inition of electioneering communication. Rather,

Congress has prohibited the use of corporate and labor

-—————

11

union treasury money to fund broadcast advertisements

within 60 days of a general election and 30 days of a pri-

mary election in which the candidate’s name or likeness

is used and provided that other entities must disclose the

source of the funds for these advertisements. In the over-

whelming majority of settings, such a regulation aimed

at reinforcing long-standing restrictions on the use of

corporate and labor treasury funds in federal election

campaigns and assuring disclosure of the sources of fed-

eral campaign funding raises no significant First Amend-

ment issues. Buckley, 424 U.S. at 66-68 (upholding

disclosure); FEC v. Beaumont, ____ U.S. ___, 123 S.Ct.

2200, 2211 (2003) (upholding ban on corporate treasury

funds in federal elections).

Further, even in those relatively few instances in

which the application of the primary definition may

touch upon “pure issue advocacy,” arguably beyond the

scope of campaign finance regulation, appellants may

simply establish a separate segregated fund with which

to conduct such communications, funded in accordance

with the same rules that apply to other electioneering

communications. Such a minor administrative inconve-

nience hardly requires the strong medicine of facial

overbreadth review. See Regan v. Taxation With Repre-

sentation, 461 U.S. 540 (1983).

Finally, appellants wishing to avoid the administrative

inconvenience of establishing a PAC can avoid the

Statute’s reach entirely by simply omitting the candi-

date’s name or likeness in the period immediately pre-

ceding a federal election.

In the district court, considerable attention was dedi-

cated to calculating the percentage of “true issue advo-

cacy” communications that would be captured by the

primary definition of electioneering communications as

a means of ascertaining whether the primary definition

12

was substantially overbroad. For this purpose, defen-

dants submitted the Buying Time studies of advertise-

ments airing in the 1998 and 2000 elections to which

BCRA’s primary definition would apply and argued that

only a small percentage of these advertisements reflected

“true issue advocacy,” arguably beyond the purview of

campaign finance legislation. Plaintiffs, for their part,

submitted no independent evidence of the purported

overbreadth of the primary definition, but rather relied

upon their own analysis of defendants’ studies which,

they said, showed that approximately 50% of the adver-

tisements airing in 1998 that would fall within BCRA’s

coverage and 17% of the advertisements in the 2000

election were “true issue advocacy.” See Supp. App. at

244sa, 1349sa-1350sa; McConnell Br. at 56.

The three judges in the court below reached widely

divergent conclusions as to the sweep of the primary def-

inition. See Supp. App. at 1157sa (Judge Leon); id. at

857sa (Judge Kollar-Kotelly); id. at 244sa, 367sa n.149

(Judge Henderson). These widely differing analyses con-

firm the wisdom of an overbreadth analysis that looks to

the costs and benefits of facial review, rather than a

mechanical and unwieldy effort to estimate the per-

centage of communications that fall on one side or

another of a constitutional line. See Richard H. Fallon,

Ir., Making Sense of Overbreadth, 100 Yale L.J. 853, 894

(1991) (rejecting empirical approach to overbreadth doc-

trine as requiring “uncabined judicial speculation in

areas that are, at best, on the outer fringes of the courts’

practical competence”). In fact, while the Buying Time

studies contained the best available social science data

and were of great assistance to Congress in seeking to

predict the future, no study — especially a study that asks

college students to discern the purpose of a political

advertisement completely divorced from context - can

provide a court with a precise percentage of hypotheti-

13

cal future speech that will raise significant First Amend-

ment concerns. Only experience can provide that data

and only as-applied review can respond appropriately to

such data. Accordingly, appellants’ effort to invalidate

BCRA before any body of experience can develop

should be rejected.

B. The Fall-back Definition of “Electioneering

Communication” Is Facially Valid

Appellants’ facial vagueness challenge to Congress’s

back up definition is equally unavailing. Appellants

argue that the fall-back definition of “electioneering

communication” limiting coverage to those communi-

cations that (1) praise or criticize a candidate for federal

office and (2) cannot be plausibly construed as anything

other than an exhortation to vote for or against the can-

didate, introduces an element of subjective uncertainty

into the statutory scheme and therefore must be stricken

on its face.

The Court will strike a statute for facial vagueness

only in extremely narrow circumstances where the statute

lacks an “operative core” of prohibited behavior. See

Smith v. Goguen, 415 U.S. 566 (1974); Secretary of State

of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 965-

966 (1984) City of Chicago v. Morales, 527 U.S. 41, 56-

57 (1999). In such a situation, the statute is vague “‘not

in the sense that it requires a person to conform his con-

duct to an imprecise but comprehensible normative stan-

dard, but rather in the sense that no standard of conduct

is specified at all.’” Smith, 415 U.S. at 578 (quoting

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971));

see Kolender v. Lawson, 461 U.S. 352, 358 (1983) (Cal-

ifornia statute requiring persons who loiter or wander on

the streets to provide “credible and reliable” identifica-

tion “contains no standard for determining what a suspect

14

has to do in order to satisfy the requirement to provide a

‘credible and reliable’ identification”); Smith, 415 U.S.

at 578 (Massachusetts statute prohibiting “publicly

treat{ing] contemptuously the flag of the United States”

specifies “no standard of conduct” and therefore facially

vague); City of Chicago, 527 U.S. at 59-60 (striking on

facial vagueness grounds Chicago anti-loitering ordi-

nance prohibiting individuals from “remain[ing] in any

one place with no apparent purpose”); Cf. Spence v.

Washington, 418 U.S. 405, 414 n.9 (1974).

The fall-back definition of electioneering communi-

cations is not facially vague under such a test. In the vast

majority of cases, application of the fall-back definition

raises no difficult issues of statutory construction and

neither prospective speakers nor regulators can have any

doubt as to the statute’s applicability. The statute thus

has a “core of easily identifiable and constitutionally

proscribable conduct,” Munson, 467 U.S. at 965-966. If,

as appellants allege, certain circumstances may arise in

which the scope of the prohibition is unclear, an appro-

priate as applied challenge may be brought before both

the FEC and an Article III Court to determine the appli-

cability of the statute.

Il. EXPRESS ADVOCACY IS NOT A CONSTITU-

TIONAL CEILING

Appellants contend that BCRA’s primary and fall-back

definitions of “electioneering communication” violate a

putative constitutional requirement that campaign

finance restrictions be limited to speech that expressly

advocates the election or defeat of a candidate by using

magic words such as “vote for” or “vote against” the

candidate. The magic words version of an express advo-

5 The contention that the Court’s limiting construction in Buck-

ley creates a constitutional ceiling beyond which no permissible reg-

ee ee ae

15

cacy limitation is not an irreducible constitutional ceil-

ing, restricting any conceivable regulation of indepen-

dent expenditures. Rather, the Court resorted to a magic

words approach to express advocacy as a narrowing con-

struction to avoid constitutional issues raised by certain

provisions of FECA, namely that the provisions did not

clearly demarcate what conduct was prohibited and

might have regulated speech too far afield from the elec-

tion campaign of a specific candidate for federal office.

Neither of these vulnerabilities is present in the elec-

tioneering communication provisions of BCRA.

The Court in Buckley twice construed a provision of

FECA to apply only to expenditures used to fund com-

munications that use magic words to expressly advocate

the election or defeat of a candidate. Each time, the

Court used magic word/express advocacy as a Saving

construction of statutory language that would otherwise

be unconstitutionally vague or reach communications not

clearly related to the campaign of a particular federal

candidate. Neither in Buckley nor thereafter has the

Court suggested that a campaign finance regulation with-

out these infirmities must be limited to a magic word

version of express advocacy.

The Buckley Court first discussed express advocacy in

the context of FECA’s $1,000 ceiling on expenditures

“relative to a clearly identified candidate.” “The use of

ulation of electioneering communications may regulate is the sole

issue properly before the Court in facial challenge to the election-

eering provisions of BCRA. If, as appellants contend, Buckley's

magic words of express advocacy forever constrain Congress from

fixing a definition of electioneering communicatfons beyond these

magic words, then BCRA’s regulation of electioneering communi--

cations beyond express advocacy would be unconstitutional in all its

applications and therefore be subject to facial challenge. However,

as shown below, nothing in the Court’s precedents sustains appellants’

contention.

16

so indefinite a phrase as ‘relative to’ a candidate,” the

Court explained, “fails to clearly mark the boundary

between permissible and impermissible speech. . . .”

Buckley, 424 U.S. at 41. In the Court’s view, the vague-

ness problem was not overcome by the court of appeals’

reading of the statutory term “relative toa. . . candi-

date” to mean “advocating a candidate’s election or

defeat.” The problem with that interpretation, the Court

explained, is that a speaker could never be certain

whether any particular political communication would be

deemed electoral advocacy—and thus within the

statute’s reach—or mere “issue advocacy.” “For the dis-

tinction between discussion of issues and candidates and

advocacy of election or defeat of candidates may often

dissolve in practical application. Candidates, especially

incumbents, are intimately tied to public issues involv-

ing legislative proposals and governmental actions.” Jd.

at 42. The Court therefore adopted a more precise inter-

pretation of the statutory language than the one put for-

ward by the Court of Appeals: “[I]n order to preserve the

provision against invalidation on vagueness grounds,

[the expenditure ceiling] must be construed to apply only

to expenditures for communications that in express terms

advocate the election or defeat of a clearly identified

candidate for federal office.” Jd. at 43 (emphasis added).

In contrast, BCRA leaves no doubt whether any par-

ticular expenditure will be deemed to have been made

for an “electioneering communication.” Four criteria

must be satisfied to come within the statute’s reach:

There must be (1) a broadcast, cable or satellite com-

munication; (2) which refers to a clearly identified can-

didate for federal office; (3) is made within 60 days

before the election for the office sought by the candidate

(or 30 days before the primary or caucus); and (4) is

targeted to the relevant electorate, unless the office

——o

17

sought is President or Vice-President. 2 U.S.C.

§ 434(f)(3)(A)(i).

Whether an expenditure satisfies each of these crite-

ria may easily be determined, and a speaker need only

negative any one of them to avoid application of the

Statute. Consequently, no one could plausibly claim to

have been deprived of “‘fair warning’” as to what con-

duct the statute regulates. Buckley, 424 U.S. at 41 n.48

(quoting Grayned v. City of Rockford, 408 U.S. 104,

108-109 (1972)). Nor is any speaker compelled to

““hedge and trim,’” or refrain even from unregulated

speech because the boundaries of the statute’s coverage

are not clearly marked. Buckley, 424 U.S. at 43 (quoting

Thomas v. Collins, 323 U.S. 516, 535 (1945)). In short,

BCRA regulates with “narrow specificity,” just as the

First Amendment requires. NAACP v. Button, 371 U.S.

415, 433 (1963).

The Buckley Court returned to express advocacy when

construing FECA’s disclosure requirements for expen-

ditures made by persons other than candidates and

groups other than political committees. “To insure that

the reach of [the disclosure provision] is not impermis-

sibly broad, we construe ‘expenditure’ for purposes of

that section. . . to reach only funds used for commu-

nications that expressly advocate the election or defeat

of a clearly identified candidate. This reading is directed

precisely to that spending that is unambiguously related

to the campaign of a particular federal candidate.” Jd. at

80 (internal footnote omitted).

Unlike FECA, in the vast majority of applications,

BCRA is directed at “spending that is unambiguously

related to the campaign of a particular federal candi-

date.” As noted, the primary definition requires that a

subject communication must refer to a clearly identified

candidate, must be made within a short period preceding

18

an election or vote for nomination, and must be targeted

to the relevant electorate. Taken together, these require-

ments ensure that the overwhelming majority of com-

munications subject to BCRA are communications

intended to be and received as messages in support or

opposition to a candidate.

Notably, two of these three requirements in the pri-

mary definition of electioneering communications were

lacking in FECA’s provisions regulating expenditures.

Although FECA limited its reach to expenditures that

were “relative to a clearly identified candidate,” or “for

the purpose of influencing” an election, it did not restrict

its coverage to a narrow time frame preceding an elec-

tion or vote for nomination. Nor did FECA limit its

scope to communications that, where appropriate, are

targeted to the relevant electorate. These additional

statutory criteria sharpen the focus of the BCRA’s elec-

tioneering communication provisions as compared with

FECA’s regulation of expenditures. Virtually any infor-

mation about a candidate worth sharing and distributed

to the relevant electorate soon before an election will be

received by listeners as potentially pertinent to voting

decisions. BCRA thus restricts its reach to communica-

tions that will inevitably be understood as supporting or

opposing a candidate’s election. Consequently, under the

plain language of BCRA—bui not under the plain lan-

guage of FECA—only communications unambiguously

related to a particular candidate’s campaign will be cov-

ered by the statute.° Applying the Court’s analysis in

Buckley, then, no magic words/express advocacy limi-

6 As noted in Point I, above, to the degree to which BCRA

applies to broadcast advertisements referring to clearly identified fed-

eral candidates and appearing shortly before an election, but which

nevertheless are unrelated to the upcoming election, an appropriate as-

applied challenge may be raised.

- «

ee

19

tation nor any other narrowing construction is needed to

make the BCRA’s “electioneering communication” pro-

vision consistent with the First Amendment.

Appellants’ argument that the First Amendment

requires all regulations of campaign finance expendi-

tures to be limited to a magic words approach to express

advocacy rests on a misreading of Buckley. Appellants

contend that the use of magic words as a form of express

advocacy demarcates the boundary between “electoral

advocacy,” which may permissibly be regulated, and

“issue advocacy,” which, on appellants’ theory, may not

be. As the Buckley Court plainly recognized, however,

the very distinction between electoral advocacy and

issue advocacy is frequently a false dichotomy. See id. at

42 (“[T]he distinction between discussion of issues and

candidates and advocacy of election or defeat of candi-

dates may often dissolve in practical application”).

Moreover, as the Court observed when invalidating

FECA’s expenditure ceiling: “[I]t would naively under-

estimate the ingenuity and resourcefulness of persons

and groups desiring to buy influence to believe that they

would have much difficulty devising expenditures that

skirted the restriction on express advocacy of election or

defeat but nevertheless benefited the candidate’s cam-

paign.” Buckley, 424 U.S. at 45.

In this light, the net result of the magic words/express

advocacy limitation urged by appellants is not the draw-

ing of a line between regulable and non-regulable

speech. Rather, appellants ask the Court to hold that the

Constitution prohibits effective regulation of expendi-

tures for any form of advocacy, whether for issues or

elections. For any campaign finance regulation limited

by a magic words approach to express advocacy will, in

practice, function as a purely voluntary regime. As the

record below amply demonstrates, it is a simple matter

20

to express support or opposition for a candidate’s elec-

tion without invoking talismanic phrases such as “vote

for” or “vote against” which, on petitioners’ view, are

the only suitable means of identifying communications

subject to regulation.

Consequently, the elevation of a magic words

approach express advocacy from a narrowing construc-

tion of a poorly drafted statute into an irreducible con-

stitutional ceiling, as petitioners propose, would forever

prevent Congress from advancing the substantial inter-

ests served by disclosure requirements for independent

expenditures—interests which, according to this Court,

themselves “furthe[r] First Amendment values by open-

ing the basic processes of our federal election system to

public view.” Buckley, 424 U.S. at 82.

Likewise, the transformation of a magic words

approach to express advocacy into a constitutional ceil-

ing would forever free corporations to use corporate

treasury funds for independent expenditures to support

or oppose candidates for Federal office—notwithstand-

ing the Court’s holding that “the compelling govern-

mental interest in preventing corruption support[s] the

restriction of the influence of political war chests fun-

neled through the corporate form.” Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 659 (1990) (quot-

ing FEC v. National Conservative Political Action Com-

mittee, 470 U.S. 480, 500-01 (1985)). If appellants’

theory of express advocacy is correct, the Constitution

leaves Congress no practicable means of remedying “the

corrosive and distorting effects of immense aggregations

of wealth that are accumulated with the help of the cor-

porate form and that have little or no correlation to the

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

Austin, 494 U.S. at 660; see Beaumont, 123 S.Ct. at

— +

mee —tle

21

2206-07. Nothing in Buckley or the Court’s campaign

finance jurisprudence dictates that result.

III. DISCLOSURE REQUIREMENTS AND PROHI-

BITIONS ON CORPORATE AND LABOR

UNION FUNDING OF ELECTIONEERING

COMMUNICATIONS SERVE IMPORTANT

- FIRST AMENDMENT INTERESTS

As argued in Point I, above, this Court should not

entertain appellants’ facial overbreadth and vagueness

challenges to either the primary or fall-back definitions

of “electioneering communication.” Assuming the Court

chooses to address the merits of these arguments, the

eo uphold the electioneering provisions of

The Court has long held that fundamental First

Amendment principles support reasonable disclosure and

funding requirements for electoral communications.

First, the Court has repeatedly held that disclosure

requirements enhance, rather than retard, First Amend-

ment interests. As the Court has recognized, the mar-

ketplace of ideas that the First Amendment guarantees is

ill-served by a regime of shadowy, untraceable expen-

ditures for electioneering communications by groups that

disguise their true sources of support. Second, the Court

has repeatedly recognized that the marketplace of ideas

suffers when corporations and labor unions are able to

monopolize electoral communications through the state-

conferred advantages that permit them to amass large

quantities of capital unrelated to the support for their

political positions.

The electioneering provisions of BCRA, Sections 201-

204, build directly upon these long-standing pillars of

the Court’s campaign finance jurisprudence. First, in line

with long-upheld restrictions on corporate and labor

22

union electioneering activities, BCRA prohibits corpo-

rate and labor union funding of broadcast communica-

tions which clearly identify a candidate within 60 days

of a general election or 30 days of a primary election

and are targeted to the candidate’s electorate. Second,

BCRA requires entities or individuals who spend more

than $10,000 in a calendar year on such broadcast com-

munications to disclose the sources of funding for these

communications. These provisions are fully consistent

with the First Amendment principles long recognized by

this Court.

A. BCRA’s Disclosure Requirements Are Con-

stitutional

Section 201 of BCRA requires every person who

makes disbursements in excess of $10,000 per year for

electioneering communications to file with the FEC a

statement containing the person’s identity and principal

place of business; the amount of each disbursement over

$200 and the identity of the recipient of the disburse-

ment; the elections and candidates to which the elec-

tioneering communications pertain; and the names and

addresses of contributors who contributed $10,000 or

more to the person or separate segregated fund making

the disbursement. 2 U.S.C. § 434 (f)(1), (2).

The Court has previously recognized that the gov-

ernmental interests advanced by disclosure requirements

are especially likely to outweigh any potential inhibition

of First Amendment activity where, as here, “the ‘free

functioning of our national institutions’ is involved.”

Buckley, 424 U.S. at 66 (quoting Communist Party v.

Subversive Activities Control Bd., 367 U.S. 1, 97

(1961)). The Court has further noted that “disclosure

requirements. . . in most applications appear to be the

least restrictive means of curbing the evils of campaign

23

ignorance and corruption that Congress found to exist.”

Buckley, 424 U.S. at 68. “‘Publicity is justly commended

as a remedy for social and industrial diseases. Sunlight

is said to be the best of disinfectants; electric light the

most efficient policeman.’” Jd. at 67 (quoting L. Bran-

deis, Other People’s Money at 62 (National Home

Library Foundation ed. 1933)).

| Applying these principles in Buckley, the Court upheld

disclosure requirements substantially similar to those at

issue here. As in Buckley, the disclosures mandated by

BCRA advance at least three governmental interests.

First, BCRA’s disclosure provisions assist voters by pub-

licizing a candidate’s sources of financial support,

thereby identifying the interests to which the candidate

is likely to be responsive if elected. See Buckley, 424

U.S. at 66-67. “Second, disclosure requirements deter

actual corruption and avoid the appearance of corruption

by exposing large contributions and expenditures to the

light of publicity.” Jd. at 67. “Third, and not least sig-

nificant,” disclosure facilitates enforcement of contri-

bution limitations. Jd. at 67-68.

BCRA’s disclosure requirements raise none of the

vagueness concerns that prompted the Buckley Court to

adopt a narrowing construction of FECA’s disclosure

provision for expenditures by parties other than candi-

dates or political committees. FECA defined “expendi-

ture” to mean the use of money or valuable assets “for

the purpose of. . . influencing” a federal nomination or

election. Jd. at 77; FECA §§ 431(e), (f). “It [wa]s the

ambiguity of this phrase that pose[d] constitutional prob-

lems.” Buckley, 424 U.S. at 77. To avoid those problems,

the Court interpreted “for the purpose of . . . influenc-

ing” an election to mean using magic words for the pur-

pose of expressly advocating a candidate’s election or

defeat, for purposes of section 434(e)’s disclosure

24

requirements for persons other than candidates or polit-

ical committees. Jd. at 80.

As discussed above, section 201’s definition of “elec-

tioneering communication” is not similarly ambiguous in

its reach. The statute leaves virtually no doubt whether

particular conduct will trigger disclosure obligations.

The precision of the legislation not only provides ade-

quate notice to persons contemplating future expendi-

tures, it also defines a safe harbor for pure issue

advocacy. Those wishing to engage in issue advocacy

free from regulation may do so easily by avoiding any

one of the statutory criteria.

Section 201 likewise does not require disclosure of

information too remote from the government's objectives

to sustain the legislation. Cf. Buckley, 424 U.S. at 80-81.

Virtually any “electioneering communication” within the

meaning of section 201 will relate to the campaign of a

specific candidate and will therefore properly be the tar-

get of the government’s anti-corruption and informa-

tional interests advanced by disclosure.

The weighty First Amendment values served by dis-

closure would forever be compromised if the Court were

to treat the magic words approach to express advocacy

as a constitutional ceiling on the regulation of indepen-

dent expenditures. As with section 434(e) of FECA, sec-

tion 201 “is responsive to the legitimate fear that efforts

would be made, as they had been in the past, to avoid the

disclosure requirements by routing financial support of

candidates through avenues not explicitly covered by the

general provisions of the Act.” Jd. at 76 (internal foot-

note omitted). As the Court predicted when discussing

express advocacy in the context of FECA’s expenditure

caps, see id. at 45, the express advocacy limitation made

it a simple matter to circumvent pre-BCRA regulation of

expenditures while engaging in full-blown electoral

25

advocacy. Section 201 is well-drawn because it provides

ample breathing room for discussion of issues while tar-

geting communications overwhelmingly likely to be

understood as supporting or opposing a particular can-

didate’s election.

To the extent BCRA’s disclosure requirements may

unduly burden any particular group, adequate protection

is available through as-applied challenges. The Buckley

Court spelled out clearly the evidentiary requirement

necessary to prevail in such a challenge, and called for

“flexibility in the proof of injury” from disclosure. See

Buckley, 424 U.S. at 74. Applying those standards, the

Court subsequently found Ohio’s disclosure requirement

unconstitutional as applied to the Socialist Workers Party

of Ohio. See Brown v. Socialist Workers ‘74 Campaign

Comm. (Ohio), 459 U.S. 87, 102 (1982). As the Court

observed in Buckley, it “cannot assume that courts will

be insensitive to similar showings when made in future

cases.” Buckley, 424 U.S. at 74.

B. BCRA’s Restriction of Corporation and

Labor Union Funding of Electioneering

Communications Is Constitutional

Federal law has long prohibited the use of corporate

and labor treasury funds for federal election activities

and required that any corporate or labor expenditures on

these activities be made from separate, segregated funds.

Congress first prohibited corporate contributions to can-

didates for election to federal offices in the Tillman Act

of 1907, 34 Stat. 864 (1907). Congress extended the pro-

hibition on corporate contributions to labor unions and

prohibited corporate and union expenditures in connec-

tion with federal elections in the Taft-Hartley Act, 61

Stat. 136 (1947); Beaumont, 123 S.Ct. at 2205-06; FEC

v. National Right to Work Committee, 459 U.S. 197, 208

26

(1982); Pipefitters Local Union No. 562 v. U.S., 407

U.S. 385, 402 (1972); United States v. United Auto

Workers (“UAW”), 352 U.S. 567, 585 (1957). These

long-standing prohibitions were incorporated into FECA,

adopted following Watergate, and have long been

upheld.

In Austin v. Michigan Chamber of Commerce, 494

U.S. 652 (1990), the Court examined provisions of

Michigan’s campaign finance law, which, like FECA,

prohibited corporate contributions or expenditures in

connection with an election. The Court reasoned that,

given the special advantages conferred on corporations

under state law, they can accumulate large quantities of

capital which “have little or no correlation to the pub-

lic’s support for the corporation’s political ideas.” Jd. at

660. Austin upheld the prohibition on corporate contri-

butions and expenditures to guard against “the corrosive

and distorting effects of immense aggregations of wealth

that are accumulated with the help of the corporate

form” and to “ensure[] that expenditures reflect actual

public support for the political ideas espoused by cor-

porations.” Id.; see FEC v. National Right to Work Com-

mittee, 459 U.S. 197, 207 (1982) (“[S]Jubstantial

aggregations of wealth amassed by the special advan-

tages which go with the corporate form of organization

should not be converted into political ‘war chests’ which

could be used to incur political debts from legislators”).

The reasoning of Austin was reaffirmed in the Court’s

recent decision in FEC v. Beaumont, ___ U.S. ___,123

S.Ct. 2200 (2003). In upholding the prohibition on cor-

porate contributions as applied to nonprofit advocacy

groups, the Court noted that “as in 1907, the law focuses

on the ‘special characteristics of the corporate structure’

that threaten the integrity of the political process.” Beau-

mont, 123 S.Ct. at 2207 (quoting National Right to Work,

27

459 U.S. at 209). The Court reaffirmed “the public inter-

est in ‘restrict[ing] the influence of political war chests

funneled through the corporate form.’” Jd. (quoting

National Conservative Political Action Comm., 470 U.S.

at 496-497); see UAW, 352 U.S. at 585 (examining

extensive history of prohibition of labor union contri-

butions and expenditures in federal elections).

Building upon the long-standing prohibition on cor-

porate and labor union expenditures for electioneering

activities, BCRA expands the definition of electioneer-

ing activities to include broadcast advertisements made

within 60 days of a general election or 30 days of a pri-

mary election, referring specifically to an identified can-

didate for federal office within the jurisdiction in which

the candidate seeks office. Congress reasonably could

conclude that these communications present the same

distortive effects as those expressly advocating the elec-

tion or defeat of a candidate. Moreover, such commu-

nications may still be funded through a corporation or

labor union’s separately segregated fund.

C. The Exception for MCFL Corporations Is

Preserved by BCRA

In Federal Election Comm'n v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”),

the Court held unconstitutional the application of

FECA’s independent expenditure limitations to nonprofit

advocacy corporations which receive no corporate or

labor union funding. As set forth in the Court’s opinion,

three “essential” characteristics of Massachusetts Citi-

zens for Life made it constitutionally impermissible to

apply FECA to it. First, MCFL was “formed for the

express purpose of promoting political ideas, and cannot

engage in business activities.” MCFL, 479 U.S. at 264.

Second, it had “no shareholders or other persons affili-

28

ated so as to have a claim on its assets or earnings.” Jd.

Third, MCFL “was not established by a business cor-

poration or a labor union” and had a “policy not to

accept contributions from such entities.” Jd. This policy

of refusing business corporation or labor union contri-

butions “prevent[ed] such corporations from serving as

conduits for the type of direct spending that creates a

threat to the political marketplace.” Jd; see also Austin,

supra, at 664 (noting that a nonprofit corporation is

capable of “serv[ing] as a conduit for corporate political

spending”).

Amici acknowledge that Section 204, known as the

Wellstone Amendment, would appear to make BCRA

applicable to MCFL-type corporations. As a constitutional

rule, however, MCFL cannot be repealed by legislative

enactment. See City of Boerne v. Flores, 521 U.S. 507, 519

(1997). The FEC’s implementing regulations confirm this

understanding of BCRA. See Electioneering Com-muni-

cations, 67 Fed. Reg. 65190, 65203-04 (October 24,

2002), <available at http://www.fec.gov/pdf/nprm/

electioncering_comm/fr67n205p65189.pdf>. Thus, under

BCRA, corporations that meet the three requirements set

forth in MCFL continue to be exempt from the disclosure

requirements and expenditure limitations of FECA.

Nonprofit advocacy corporations that continue to

receive corporate and/or labor union contributions are

therefore faced with a choice under BCRA. They can

either refuse to accept such contributions, thereby

exempting themselves from BCRA’s disclosure rules and

expenditure limitations, or accept such contributions,

subjecting themselves to BCRA with its requirement that

electioneering communications be funded through a seg-

regated fund. Given the compelling interest in prevent-

ing nonprofit corporations from being used as conduits

for prohibited corporate and labor union electioneering

— = ~

‘ 29

activities, the application of BCRA to nonprofit corpo-

rations that choose to receive corporate and labor union

contributions is clearly constitutional, especially since

the option of establishing a PAC leaves open a full range

of communicative options.

30

CONCLUSION

For the foregoing reasons, amici curiae respectfully

submit that the electioneering provisions of BCRA, Sec-

tions 201-204, are constitutional.

Dated: New York, New York

August 5, 2003

Respectfully submitted,

Norman Dorsen

Eric M. Lieberman Counsel of Record

Roger Bearden Stokes Professor of Law

Gregory Silbert New York University

Rabinowitz, Boudin, School of Law

Standard, Krinsky & 40 Washington Square

Lieberman, P.C. South

740 Broadway, 5th Floor New York, NY 10012

New York, NY 10003-9518 (212) 998-6233

(212) 254-1111

Attorneys for Amici Curiae

Former Leaders of the American Civil Liberties Union