# Supplemental Appendix — McConnell v. Federal Election Commission

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0664%3A60

## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Appendix
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 938

## Text

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No. 02-1674 et al.

IN THE
Supreme Court of the United States

MITCH MCCONNELL et al.,
Appellants,
V.
FEDERAL ELECTION COMMISSION et ai.,

Appellees.

On Appeal From The United States
District Court For The District of Columbia

SUPPLEMENTAL APPENDIX
TO JURISDICTIONAL STATEMENTS
VOLUME III

FLOYD ABRAMS KENNETH W. STARR
SUSAN BUCKLEY Counsel of Record
BRIAN MARKLEY EDWARD W. WARREN
CAHILL GORDON & KANNON K. SHANMUGAM
REINDEL LLP KIRKLAND & ELLIS
80 Pine Street 655 Fifteenth Street, N.W.
New York, NY 10005 Washington, DC 20005
(212) 701-3000 (202) 879-5000

(additional counsel on inside cover)

June 2003
SS a a LS
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

KATHLEEN M. SULLIVAN
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-9875

JAN WITOLD BARAN

THOMAS W. KIRBY

LEE E. GOODMAN

WILEY, REIN & FIELDING LLP
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000

VALLE SIMMS DUTCHER
L. LYNN HOGUE

SOUTHEASTERN LEGAL FOUNDATION, INC.

3340 Peachtree Road, N.E.
Suite 3515

Atlanta, GA 30326

(404) 365-8500

G. HUNTER BATES
1215 Cliffwood Drive
Goshen, KY 40026
(502) 473-7557

Counsel in No. 02-1674

TABLE OF CONTENTS

Volume I

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Opinion of Judge Henderson..................ccccceceseseeseeeeeeee 160sa
Volume II

Opinion of Judge Kollar-Kotelly...............c.cccccccseseeeeee 479sa
Volume III

Opinion of Judge Kollar-Kotelly (continued) .............. 776sa
Volume IV

IT AT 1082sa
STITT ict iniasiininiciintictelibicneatenedteninanaisthidnniitacitjaines 1381sa

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Ill. CONCLUSIONS OF LAW

I find it most appropriate to discuss BCRA’s Title II first,
before turning to my discussion of Title I, and the other
remaining provisions of BCRA that are addressed in this
opinion.

I. Title Il: NONCANDIDATE CAMPAIGN
EXPENDITURES

Sections 201, 203 and 204: The Prohibition on Elec-
tioneering Communications

The McConnell, NRA, Chamber of Commerce, NAB, and
AFL-CIO Plaintiffs all challenge the prohibition on corporate
and labor disbursements for electioneering communications.
These Plaintiffs also challenge both definitions of
‘electioneering communication’ (the primary definition and
the fallback definition).

As discussed in the per curiam opinion, FECA Section
441b prohibits corporations and labor unions from using their
general treasury funds on contributions or expenditures in
connection with a federal election. 2 U.S.C. § 441b. Sections
203 and 204 of BCRA extend this prohibition to ‘elec-
tioneering communication.” BCRA provides for two
definitions of electioneering communication—a primary
definition and a backup definition to be substituted in the
event the main definition is held to be constitutionally infirm.
Given the uncontroverted record of abuse and circumvention
of the longstanding prohibition of Section 441b, I find the
primary definition of electioneering communication, and the
corresponding restrictions in sections 203 and 204,
constitutional. As a result, I find BCRA’s restriction on the
ability of corporations and labor unions to spend general

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treasury funds on electioneering eS to =
facially constitutional as a matter of _ oo a
application to section 5Ol(c)(4) and section 527(e
corporations that do not receive an MCFL exemption.

As my opinion on the constitutionality of the es
definition does not command a majority, I am cognizant at
the majority who have found the primary | ye
unconstitutional must tackle the constitutionality of , °
backup definition of electioneering communication. To t a
end, I concur in the judgment reached by Judge noon
opinion on this question. Accordingly, the final sg te
the three-judge District Court panel reflects my support of his
opinion as an alternative to my own finding that the —
definition of electioneering communication is constitutional.
Given my view of the constitutionality of the kage
definition, I have no further occasion to consider the
constitutionality of the backup definition.

A. Introduction

For close to one hundred years the political branches have
made the choice, consistent with the Constitution, that
individual voters have a right to select their federal officials
in elections that are free from the direct influence of
aggregated corporate treasury wealth and-for over fifty years-
free from the direct influence of aggregated labor union
treasury wealth. The rationale for the prohibition is simple,
persuasive, and longstanding. First, such a_ restriction
‘ensure[s] that substantial aggregations of wealth amassed "
the special advantages which go with the corporate form 0
organization should not be converted into political ‘war
chests’ which could be used to incur political debts —
legislators who are aided by the contributions.” FEC v. se
Right to Work Comm. (‘NRWC’), 459 US. 197, 207 (1982).
Second, such a prohibition ‘protect(s] the individuals[,] who
have paid money into a corporation or union for purposes
other than the support of candidates[,] from having that

oo ot ee

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money used to support political candidates to whom they may
be opposed.’ /d. at 208. In other words, when corporations
and labor unions spend their general treasury funds to
influence federal elections, our coordinate branches have
Stated that they must use segregated funds voluntarily and
deliberately committed by individual citizens for that
purpose.

Since 1996, this longstanding prohibition has become a
fiction, with abuse so overt as to openly mock the intent of
the law. The record persuasively demonstrates that
corporations and unions routinely seek to influence the
outcome of federal elections with general treasury funds by
running broadcast advertisements that skirt the prohibition
contained in section 441b by simply avoiding Buckley's
‘magic words’ of express advocacy. In enacting Title II,
Congress responded to this problem by tightly focusing on
the main abuse: broadcast advertisements aired in close
proximity to a federal election that clearly identify a federal
candidate and are targeted to that candidate’s electorate. In
devising Title II, Congress has returned to a regime where
corporations and labor unions must use federal money from a
separate segregated fund explicitly designated for federal

election purposes when seeking to influence federal
elections.'

'” In this manner, Title I neatly dovetails with the nonfederal funds
prohibitions contained in Title I. Whereas the political parties have
expressed their frustration that Title I will diminish their importance
relative to special interest groups, see, e.g., RNC Br. at 13, Title II ensures
that these special interest organizations, except those explicitly qualifying
for MCFL-status, will have to run broadcast advertisements that influence
a federal election with the same federal dollars that the political parties
will have to use to pay for their advertisements (except that BCRA
increases the amount of federal money that the parties can raise relative to
their special interest counterparts).

779sa

Indeed, the record conclusively establishes that the ‘magic
words’ of express advocacy identified in Buckley are rarely
used in any form of electioneering advertisements in the
modern political campaign. Findings § 2.3. The perverse
consequence of this situation is that advertisements that avoid
express advocacy are not only the type of advertisements that
political consultants generally employ for their candidate
clients, they are also precisely the advertisements that
corporations and labor unions, prior to BCRA, were permitted
to run. Accordingly, as the record demonstrates, corporations
and labor unions, with minimal effort, were able to influence
federal elections with their general treasury funds; a practice
long prohibited by Congress and contrary to that enforced by
the judiciary.

It is for these reasons, particularly given the overwhelming
record in this case, that I find facially constitutional the
prohibition in Title II on corporations and labor unions using
general treasury funds for electioneering communications.

B. Standard of Review

Plaintiffs first contend that both Buckley and MCFL
foreclose any Congressional regulation of speech that does
not constitute express advocacy, and as a result, Title II fails
as a matter of law because BCRA’s restrictions on
electioneering communication apply to broadcast adver-
tisements that do not contain express advocacy. McConnell
Br. at 51 (‘Buckley and MCFL condemn Congress’ regulation
of speech that does not constitute express advocacy.’). In
other words, Plaintiffs posit that the Court does not even need
to reach the question of whether BCRA is narrowly tailored
to serve a compelling governmental interest, because both
Buckley and MCFL announce a substantive rule of
constitutional law; namely, that Congress may not regulate
any speech that does not qualify as express advocacy as that
term has become known.

780sa

As a matter of law, and as discussed infra, | find Plaintiffs’
argument on this point unpersuasive. Neither Buckley nor
MCFL create a rule of substantive constitutional law whereby
Congress can only regulate political speech containing words
of express advocacy. Rather, Buckley and MCFL used the
express advocacy standard as a means of construing
otherwise unconstitutionally vague portions of FECA. As I do
not view Buckley and MCFL as _ prohibiting future
Congressional regulation of political speech, I reach the
question of whether BCRA is narrowly tailored to serve a
compelling governmental interest.

In turning to that question, it bears pointing out that the
parties argue in their briefing about who bears the ‘burden’ in
this litigation, with each side pointing the finger at the other.
Compare Gov't Br: at 131 (‘[Plaintiffs] efforts to shoulder
[their] burden all fail.’) with McConnell Reply at 32
(‘Defendants incorrectly argue throughout their briefs that
plaintiffs bear the burden of demonstrating that BCRA’s ban
on electioneering communications is overly broad.’)
(emphasis in original). Throughout this litigation, Defendants
argue that Plaintiffs bear a burden of demonstrating that the
law is substantially overbroad. Defendants contend that as
Plaintiffs bring a facial challenge to these sections of BCRA,
they must establish that the prohibition on corporate and labor
union spending of general treasury funds on electioneering
communications is substantially overbroad. See Ashcroft v.
ACLU, 122 S.Ct. 1700, 1713 (2002); Ashcroft v. The Free
Speech Coalition, 122 S.Ct. 1389, 1398-99 (2002). As the
Supreme Court instructed in Broadrick v. Oklahoma, ‘the
Court has altered its traditional rules of standing to permit-in
the First Amendment area-attacks on overly broad statutes
with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a
statute drawn with the requisite narrow specificity.’
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (internal
quotation marks and citation omitted).

781sa

Plaintiffs wait until their reply briefs to address
Defendants’ salient argument on this point. McConnell Reply
at 32, Chamber/NAM Reply at 4-5. Plaintiffs essentially
argue that there are two kinds of facial challenges under the
First Amendment. The first, involves statutes that injure ‘third
parties,” and involves the Broadrick line of cases. Chamber
Reply at 4. The second facial attack is where ‘a plaintiff
invokes its own First Amendment rights in a way that
subjects a statute to strict scrutiny.’ Chamber/NAM Reply at
5 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381 & n.3
(1992); Sec’y of State of Md. v. Joseph H. Munson, Co., 467
U.S. 947, 965-66 & n.13 (1984)). Plaintiffs argue that they
belong in this latter category.

The difficulty with Plaintiffs’ position, however, is that
none of their submissions describe in specific detail any
advertisements, referring to particular candidates in any races,
that Plaintiffs intend to produce or air at any time in the
future, and that would fall within BCRA’s. electioneering
communication provisions. As such, it is difficult to argue
that Plaintiffs have demonstrated affirmatively and
concretely, in any kind of detail, the scope of their claimed
First Amendment injuries.

Nevertheless, none of the parties dispute the fact that the
framework for reviewing the constitutionality of these
sections is strict scrutiny. Tr. at 252 (Waxman) (‘The
standard is strict scrutiny, there’s no doubt about it. This is
political speech. This is core political speech.’). Moreover, a
number of Plaintiffs do have a history of using corporate and
labor union general treasury funds to pay for electioneering
communications.

In practical terms, given the way Defendants have argued
this case, the debate over the ‘burden’ is largely academic.
Defendants present their Title II arguments by primarily
demonstrating that the law meets a strict scrutiny test. Indeed,
to some degree, Defendants have essentially conflated the

Ree eres er

782sa

strict scrutiny and substantial overbreadth inquiries. See Tr. at
251-52 (Waxman) (‘And that brings us to the real
constitutional issue, whether the burdens that Congress’ new
law imposes on speech are narrowly tailored to serve
compelling public interests; or, more precisely, again because
this is a_ facial challenge, whether plaintiffs have
demonstrated that the new provisions are substantially
overbroad in relation to their legitimate goals.’). Furthermore,
as I find that the provisions in Title II are constitutional under
this strict scrutiny review, the question of which party bears
the burden is also largely irrelevant. Consequently, although I
am convinced that Plaintiffs have not demonstrated that the
‘electioneering communication’ provisions in Title II are
substantially overbroad, I analyze the law under the
strictscrutiny framework consistent with Defendants’ presen-
tation in their briefing.

In undertaking this latter analysis, I will examine whether
BCRA’s restrictions on electioneering communications are
narrowly tailored to serve a compelling public interest. Under
this strict scrutiny review, I find that the restrictions on
corporate and labor union spending on _ electioneering
communications are constitutional at this facial challenge
stage, meaning that BCRA’s restrictions on political speech
are narrowly tailored to serve a corresponding compelling
governmental interest.

The remainder of my opinion on this question is divided
into four parts. The first section contains my reasons for
finding that express advocacy is not a constitutional
requirement. On this point, I am joined by Judge Leon and
therefore speak for the Court. The second portion provides
my dissenting view that the primary definition of
electioneering communication is narrowly tailored to serve a
compelling governmental interest. In the third and fourth
sections, I write for the Court and discuss my reasons for
concluding that Plaintiffs’ underbreadth argument and Plain-
tiffs’ challenge to the ‘media exemption’ both lack merit.

783sa

C. Express Electoral Advocacy is Not a Constitutional
Requirement

1. The Origins of the Express Advocacy Test

I conclude that in the context of regulating federal
elections, Congress may restrict corporate and union spending
on political speech which does not contain wc 1s of express
electoral advocacy, provided that such restrictions are
narrowly tailored to serve a compelling governmental
interest. In condemning Title II, Plaintiffs insist that Buckley
announced a substantive rule of constitutional law, such. that
Congress is forever prohibited from regulating any political
speech that does not contain explicit words of express
advocacy-even if the political speech being regulated is paid
for with corporate or labor union general treasury funds.
McConnell Opp’n at 38 (‘Buckley thus leaves no doubt that
its expressadvocacy test is a constitutional requirement.’).
Plaintiffs provide very little textual analysis of the Buckley
and MCFL decisions and instead overstate the extent of the
Buckley holding to satisfy their purpose.

In reviewing Title II, it should be noted that none of the
parties dispute the fact that the electioneering communication
restrictions in Title II regulate more political speech than just
express advocacy. Therefore, if I conclude that the express
advocacy standard is forever enshrined in the Constitution,
then the restrictions on electioneering communications in
Title II would be condemned as a matter of law before any
analysis of substantial overbreadth is even performed. In
taking a step back and analyzing Buckley and MCFL, it
becomes apparent, however, that the express advocacy
standard devised by the Supreme Court in Buckley is not a
substantive rule of constitutional law that operates as a per se
restriction on future Congressional action.

In Buckley, the Supreme Court considered a provision of
FECA that limited the amount of money individuals and

OOO Oe ee eee ee eee er

a ert Mtl Ai. er tae iid .

784sa

certain groups could independently expend ‘relative to’ a
clearly identified federal candidate.''? See Buckley, 424 U.S.
at 39-51 (ciscussing section 608(e)(1) of FECA). Section
608(e)(1) of FECA provided that ‘[n]o person may make any
expenditure . . . relative to a clearly identified candidate
during a calendar year which, when added to all other
expenditures made by such person during the year advocating
the election or defeat of such candidate, exceeds $1,000.’ Id.
at 39 (omission in original) (emphasis added). Prior to
directly considering the constitutionality of section 608(e)(1),
the Supreme Court stated that ‘[b]efore examining the
interests advanced in support of [the provision’s] expenditure
ceiling, consideration must be given to appellants’ contention
that the provision is unconstitutionally vague.’ Id. at 40
(emphasis added).

In undertaking the vagueness inquiry, the Supreme Court
was particularly troubled by the phrase ‘relative to’ as it
appeared in the provision under consideration. /d. at 40-44.
Observing that the law did not define the phrase, the Supreme
Court found that ‘[t}he use of so indefinite a phrase as
‘relative to’ a candidate fails to clearly mark the boundary
between permissible and impermissible speech unless other
portions of [the provision] make sufficiently explicit the
range of expenditures covered by the limitation.’ /d. at 41-42.
Interpreting the phrase in its context, the Supreme Court
stated that the ‘context clearly permits, if indeed it does not
require, the phrase ‘relative to’ a candidate to be read to mean
‘advocating the election or defeat of’ a candidate.’ /d. at 42.

'!° More specifically, this provision in FECA ‘prohibit{ed] all indi-
viduals, who are neither candidates nor owners of institutional press
facilities and all groups, exvept political parties and campaign organi-
zations, from voicing their views ‘relative to a clearly identified candi-
date’ through means that entail aggregate expenditures of more than
$1,000 during a calendar year.’ Buckley, 424 U.S. at 39-40.

785sa

Accordingly, the Supreme Court, used the context of the
provision to make a ‘first-cut’ at construing the vague phrase
‘relative to.”

Even with this clarification, however, the Supreme Court
found that the vagueness inquiry was merely ‘refocuse[d]’’
and, thus, not completely resolved. /d. at 42. Confronted with
the challenge of interpreting ‘advocating the election or
defeat of a candidate’ the Supreme Court was once again
concerned about an interpretation of the wording of the
statute that covered more speech than was actually necessary.
The Supreme Court remarked that:

the distinction 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 involving legislative proposals and
governmental actions. Not only do candidates campaign
on the basis of their positions on various issues, but
campaigns themselves generate issues of public interest.

Id. In other words, the Supreme Court found that even if it
was permissible to construe the phrase ‘relative to’ as the
equivalent of ‘advocating the election or defeat of a
candidate,’ the vagueness inquiry was not complete because
such a construction did not provide a bright line between
permissible speech and impermissible speech and had the
potential to cause speakers to self censor genuine issue
discussion in order to avoid violating the statute.''!

''' The McConnell Plaintiffs seize on this quotation as immutable
proof that express advocacy is somehow chiseled in stone as a
constitutional requirement. McConnell Opp’n at 34 (Buckley's adoption
of this bright line test ‘was not merely an exercise in statutory
construction.’). However, as is clear from the context in which this
quotation was made, the Supreme Court in making this statement was
observing that the phrase ‘relative to’ could not be remedied by a simple

Pe Pat Ane et et A ge Ae ABCA BAD pi wn Ne

786sa

In fact, to underscore its apprehension that its first
narrowing construction was not satisfactory, the Supreme
Court quoted a passage at length from Thomas v. Collins, 323
U.S. 516, 535 (1945):

[W]hether words iniended and designed to fall short of
invitation would miss that mark is a question both of
intent and of effect. No speaker, in such circumstances,
safely could assume that anything he might say upon the
general subject would not be understood by some as an
invitation. In short, the supposedly clear-cut distinction
between discussion, laudation, general advocacy, and
solicitation puts the speaker in these circumstances
wholly at the mercy of the varied understanding of his
hearers and consequently of whatever inference and be
drawn as to his intent and meaning.

Such a distinction offers no security for free dis-
cussion. In these conditions it blankets with uncertainty
whatever may be said. It compels the speaker to hedge
and trim.

Id. at 43 (quoting Thomas, 323 U.S. at 535). To satisfy its
concerns, therefore, the Supreme Court further construed
section 608(e)(1) to apply ‘only to expenditures for
communications that in express terms advocate the election or
defeat of a clearly identified candidate for federal office.’ /d.
at 44. In a footnote, the Supreme Court observed that ‘[t]his
construction would restrict the application of § 608(e)(1) to
communications containing express words of advocacy of
election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ “cast
your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’
‘reject.”’ Id. at 44 n. 52. These phrases have come to be
known as the ‘magic words,’ see Findings q 2.1.1, because
a communication that invokes one of these words

reference to the context of the provision, but rather, needed further
narrowing before the vagueness concerns would be ameliorated.

787sa

unquestionably qualifies as express advocacy and falls within
the ambit of FECA. Notably, even with this narrowing
construction, the Supreme Court struck down section
608(e)(1) as unconstitutional under the First Amendment. See

id. at 44-51.

The Supreme Court also imported the ‘express advocacy’
requirement into another provision of FECA that it found
unconstitutionally vague. Section 434(e) of FECA required
individuals and certain groups to disclose contributions and
expenditures. Contributions and expenditures were each
defined in terms of the use of money or other valuable assets
‘for the purpose of influencing’ the nomination or election of
candidates for federal office. /d. at 77. The Supreme Court
found that the phrase ‘for the purpose of influencing’ was
unconstitutionally vague. /d. (‘It is the ambiguity of this
phrase that poses constitutional problems.’). Finding no
legislative history to help guide the statutory analysis, the
Court turned to construing the disclosure provision in such a
manner so as ‘to avoid the shoals of vagueness.”’ Id. at 78
(emphasis added).

When attempting to construe the phrase in relation to
expenditures, the Court encountered ‘line-drawing problems.’
Id. To resolve this difficulty, the Supreme Court, again,
interpreted the phrase in the same manner in which it had
interpreted the vague portion of section 608(e)(1). Id. at 79
(‘Although the phrase, ‘for the purpose of . . . influencing’ an
election or nomination, differs from the language used in
§ 608(e)(1), it shares the same potential for encompassing
both issue discussion and advocacy of a political result.’). As
a result, the Supreme Court found that ‘[t]o insure that the
reach of § 434(e) is not impermissibly broad, we construe
‘expenditure’ for purposes of that section in the same way we
construed the terms of s 608(e) to reach only funds used for
communications that expressly advocate the election or defeat
of a clearly identified candidate.’ Jd. at 80. So construed, the

A ti cee vital Crem cute! By, ene AE Ne en a. santa oF ~ oa

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Supreme Court held that section 434(e) was narrowly tailored

to serve a sufficiently important governmental interest.
Id. at 80-82.

Ten years later in MCFL, the Supreme Court again invoked
the express advocacy test. MCFL, 479 U.S. at 248-49. In
doing so, the Supreme Court gave insight into the reasoning
behind the origins and purpose of the express advocacy test.
The MCFL Court wrote that in Buckley, ‘in order to avoid
problems of overbreadth, the Supreme Court held that the
term ‘expenditure’ encompassed ‘only funds used for
communications that expressly advocate the election or defeat
of a clearly identified candidate.’’ /d. (quoting Buckley, 424
U.S. at 80). With this in mind, the Supreme Court turned to
the question before it, which was whether the term
‘expenditure,’ as used in section 441b, was again vague.
Having found that Buckley had adopted the express advocacy
construction for the term ‘expenditure’ in the provision
requiring disclosure of independent expenditures, it is not
surprising that the Court found the term ‘expenditure’ for
purposes of section 441b to also require the express advocacy
construction. /d. at 249 (‘We agree with appellee that this
rationale requires a similar construction of the more intrusive
provision that directly regulates independent spending. We,
therefore, hold that an expenditure must constitute ‘express
advocacy’ in order to be subject to the prohibition of §
44 1b.’) (emphasis added).

2. The Express Advocacy Test is Not a Substantive Rule of
Constitutional Law

As is clear from the discussion above, both Buckley and
MCFL explicitly invoked the express advocacy test only as a
means of statutory construction. In Buckley, the Supreme
Court was confronted with two different provisions ef FECA
that both presented vagueness challenges for the Court. As a
result, the Supreme Court turned to the ‘‘cardinal principle’
of statutory interpretation ... that when an Act of Congress

789sa

raises ‘a serious doubt’ as to its constitutionality, ‘this Court
will first ascertain whether a construction of the statute is
fairly possible by which the question may be avoided.’’
Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quoting
Crowell v. Benson, 285 U.S. 22, 62 (1932)); see also Frisby
v. Schultz, 487 U.S. 474, 483 (1988) (observing the ‘‘well-
established principle that statutes will be interpreted to avoid
constitutional difficulties’). I do not believe that in devising
the express advocacy standard, the Supreme Court in Buckley
was announcing an unalterable principle of constitutional law
that would prohibit future congressional action directed
toward express and issue advocacy. See Wisconsin Realtors
Ass'n v. Ponto, 233 F. Supp. 2d 1078, 1085 (W.D. Wis. 2002)
(‘I am not convinced that Buckley was intended to work such
a significant inhibition on future legislative efforts to address
problems raised by the competing state interests and
constitutional imperatives inevitably associated with express
and issue advocacy.’); Nat'l Fed’n of Republican Assemblies
v. United States, 218 F. Supp. 2d 1300, 1325 (S.D. Ala. 2002)
(‘The plaintiffs’ second error is their insistence that Buckley
held that all political speech other than express electoral
advocacy lies beyond the reach of constitutional regulation,
including disclosure requirements.’); see also Va. Soc’y for
HumanLife, Inc. v. FEC, 263 F.3d 379,392 (4th Cir. 2001)
(‘(W]e are bound by Buckley and MCFL, which strictly limit
the meaning of ‘express advocacy.’ If change is to come, it
must come from an imaginative Congress or from further

review by the Supreme Court.’). Rather, the Buckley Court ~

was particularly concerned with construing vague provisions
of a statute in order to avoid reaching difficult questions of
constitutional law. In the case of section 608(e)(1), the
Supreme Court was unsuccessful-even after construing the
statute in an effort to avoid vagueness problems, the provision
still failed to satisfy exacting First Amendment scrutiny.
Buckley, 424 U.S. at 44-45. Whereas, in the case of section

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790sa

434(e), the statutory construction successfully salvaged the
statute which, as narrowed, bore ‘a sufficient relationship to a
substantial governmental interest.’ /d. at 80.

The McConnell Plaintiffs argue that it is ‘unfathomable’
that Defendants would suggest the express advocacy test was
not constitutionally ordained. McConnell Opp’n at 35-36
(quoting Buckley, 424 U.S. at 80) (“To insure the reach of §
434(e) is not impermissibly broad, we construe ‘expenditure’
for purposes of that section in the same way we construed the
terms of § 608(e) to reach only funds used for com-
munications that expressly advocate the election or defeat of
a clearly identified candidate.’) (emphasis removed).
However, as the quoted language explicitly indicates, the
Supreme Court construed the statutory language in an effort
to save the provision from unconstitutional overbreadth. By
adopting a narrowing construction to this vague provision, the \
Supreme Court easily found section 434(e) constitutional.
Buckley, 424 U.S. at 80-82. Further diminishing the
credibility of the McConnell Plaintiffs’ argument is the fact
that the Buckley phrase quoted by the McConnell Plaintiffs
appears in the midst of a section the Supreme Court entitled
‘Vagueness Problems.’ /d. at 76.''7

'!2 The McConnell Plaintiffs also offer the argument that because
Buckley invoked First Amendment caselaw during its initial discussion of
‘General Principles,’ it was clear that Buckley was creating a rule of
substantive constitutional law when it articulated the express advocacy
standard. McConnell Opp’n at 37, McConnell Reply at 27 (citing Buckley,
424 U.S. at 14) (noting that Buckley cited Mills v. Alabama, 384 U.S. 214
(1966) and New York Times v. Sullivan, 376 U.S. 254 (1964)). However,
Plaintiffs fail to point out that these citations appear in the section
‘General Principles’’ and were cited for the uncontroversial proposition
that the ‘First Amendment affords the broadest protection to . . . political
expression.’ Buckley, 424 U.S. at 14 (emphasis added). It defies logic to
argue that because the Supreme Court invoked First Amendment caselaw
for the proposition that FECA’s restrictions on contributions and expen-
ditures operate in the area of the most fundamental First Amendment

79\sa

Accordingly, Plaintiffs’ reasoning is faulty when they
argue that the ‘express advocacy doctrine reflects more than a
concern about vagueness.” ACLU Opp’n at 4; accord
McConnell Opp’n at 37 (‘[I]t is nonsensical to read the
opinion as merely addressing statutory vagueness.’). In
adopting the express advocacy doctrine, the Supreme Court
was engaging in statutory construction in order to avoid
unnecessarily declaring specific portions of FECA
unconstitutional. In fact, nowhere in Buckley or MCFL does
the Supreme Court explicitly state that the express advocacy
test is a constitutional requirement. Each time the Supreme
Court has invoked the express advocacy standard it has done
so in the context of construing a vague portion of FECA. I
would expect that if the Supreme Court were announcing a
substantive rule of constitutional law it would have stated it
explicitly in either of these two cases.

Plaintiff ACLU takes a snippet of the Buckley opinion, and
without offering any textual analysis of the case, argues that
Buckley’s clear ruling is that ‘the government’s regulation of
expenditures can only reach ‘communications that in express
terms advocate the election or defeat of a clearly identified
candidate. .. .”” ACLU Br. at 13 (quoting Buckley, 424 U.S.
at 44). However, the Supreme Court stated in full: ‘We agree
that in order to preserve the provision against invalidation on
vagueness grounds, § 608(e)(1) 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.’ Buckley, 424 U.S. at 44
(emphasis added). When the quoted portion appears in its full
context, it appears obvious the extent to which Plaintiff
ACLU has misconstrued Buckley’s words. The express

rights, that the Court was implicitly-thirty pages later-hewing express
advocacy into constitutional stone.

792sa

advocacy test in Buckley was merely an appropriate exercise
in statutory construction.''”

Plaintiffs are correct that the Buckley Court ‘did not posit a
bipolar world of issue advocacy and express advocacy.’
However, they err in concluding that the Supreme Court,
therefore, ‘permitted regulation only where it is unmistakably
clear that the speech at issue can only be characterized as
express advocacy.’ McConnell Br. at 49; see also ACLU Br.
at 15 (‘Only ‘express advocacy’ can be subject to regulation;
issue advocacy is free from permissible regulation.’). As
Judge Richard W. Vollmer recently observed:

The Supreme Court in Buckley employed no such
terminology and recognized no such dichotomy. Rather,
the Buckley Curt [sic] saw political speech as comprised
of ‘issue discussion’ and ‘advocacy of a political result.’
424 U.S. at 79. This would represent only a semantic
difference if ‘advocacy of a political result’ were
confined to express electoral advocacy, for then ‘issue
discussion’ would occupy the same territory that the

''3 Plaintiff ACLU also states that Title Il of BCRA applies to
advertisements ‘that merely ‘refer’ to a candidate’ and that, as a result,
Title II ‘should be struck down.’ ACLU Br. at 13. The ACLU’s argument
lacks merit because the primary definition of BCRA does not place a ‘ban
on communications that merely ‘refer’ to a candidate.’ ACLU Br. at 13.
Rather, BCRA prohibits corporations and labor unions from funding
broadcast advertisements with general treasury funds, which refer to a
federal candidate, run in close proximity to an election and are targeted to
the candidate's relevant electorate. Corporations and labor unions are, of
course, free to fund as many of these prohibited advertisements as they
desire from their separate segregated fund. I doubt anyone disputes the
proposition that had Congress enacted a law that had banned
communications that ‘merely ‘refer’ to a candidate’ that such a law would
be declared overbroad and unconstitutional. Jd. However, the restriction
related to electioneering communications in BCRA is much narrower than
Plaintiff ACLU describes in its briefing and is targeted to communications
that influence federal elections.

793sa

plaintiffs claim for ‘issue advocacy’—that is, all political
speech that is not express electoral advocacy.

The Buckley Court, however, recognized that
advocacy of a political result extends beyond express
electoral advocacy ... . The Buckley Court introduced
express electoral advocacy as a benchmark to provide
speakers the clear boundary that the statutory cap on
independent expenditures otherwise lacked. /d. at 43-44.
If express electoral advocacy were the only form of
electoral advocacy that exists, the Court would not have
been concerned that speakers could not tell the
difference between issue discussion and electoral
advocacy; the Court established the express electoral
advocacy standard precisely because other forms of
electoral advocacy exist but may prove difficult to
distinguish from issue discussion. . . .

Nat'l Fed’n of Republican Assemblies, 218 F. Supp. 2d at
1324 (emphasis added). Plaintiffs are mistaken in their
conclusion that in not establishing a ‘bipolar world,’ the
Supreme Court has necessarily decreed a rule of substantive
constitutional law. As Judge Vollmer points out:

Electoral advocacy is not automatically immune from
regulation but, to the extent it cannot easily be
distinguished from issue discussion, it may be necessary
to exclude electoral advocacy from regulation so as to
avoid self-censorship by uncertain speakers and the
resulting abridgement of issue discussion. The bright
line of express electoral advocacy was required under
Section 434(e), not because all speech falling short of
express electoral advocacy is immune from regulation,
but because no other means of readily distinguishing
electoral advocacy from issue discussion presented
itself.

Id. at 1328-29 (emphasis added). The point of Buckley and

MCFL was not that Congress can only regulate express

794sa

advocacy. Rather, the Supreme Court in these cases took a
vague Statute and construed it in such a manner so as to create
a bright line because the statute itself did not provide any
‘other means of readily distinguishing electoral advocacy
from issue discussion.’ /d. at 1329.

a. Other Cases Cited by Plaintiffs Are Not Relevant or Are
Distinguishable

Plaintiffs’ briefing, while heavy on hyperbole attacking
Defendants’ submissions, is incredibly light on textual
analysis of the Buckley and MCFL opinions. Perhaps
attempting to shift attention away from their lack of a robust
discussion of Buckley, Plaintiffs attempt to bolster their
position by citing to a series of lower court cases that
Plaintiffs claim uphold the express advocacy standard as a
rule of constitutional law. McConnell Br. 51-53. I
acknowledge that there is some dicta in these cases which
suggests that the express advocacy test is a constitutional
requirement. Nevertheless, the language in these cases is
dicta, is not binding precedent, and for the reasons discussed
in this section, is unpersuasive.

The cases cited by Plaintiffs fall mainly into two
categories. First, many of their cited cases involve courts
striking down FEC regulations attempting to broaden the
Supreme Court’s express advocacy standard. Not sur-
prisingly, courts rejected the FEC’s efforts because neither
they nor the Commission has the authority to redefine the
statutory test. These courts correctly observed that Congress
or the Supreme Court were the appropriate branches to
undertake such steps. BCRA is therefore consistent with this
strand of caselaw. The second grouping of cases involve
federal courts striking down state statutes and state
regulations that had a variety of constitutional defects. In
these cases, the state statutes at issue all captured too much
pure issue advocacy without fashioning an appropriate test
that predominantly regulated electoral advocacy. BCRA

795sa

differs from these state provisions in that with BCRA,
Congress, supported by a plethora of evidence and
experience, created a narrowly tailored definition of
electioneering communication that is specifically focused on
communications that influence federal elections.

With regard to the cases where courts struck down FEC
regulations, the Commission, and not Congress, had sought to
define express advocacy broader than the Supreme Court had
permitted in Buckley. See, e.g., Va. Soc’ y for Human Life, 263
F.3d at 385, 392 (striking down FEC regulation 11 C.F.R.
§ 100.22(b) that defined express advocacy in such a manner
so as to include communications that ‘could only be
interpreted by a reasonable person as containing advocacy of
the election or defeat of one or.more clearly identified
candidates’); Maine Right to Life Comm., Inc. v. FEC, 98
F.3d 1, 1 (1st Cir. 1996) (summarily affirming district court
decision to strike down same regulation); Right to Life of
Dutchess Cty., Inc. v. FEC, 6 F. Supp. 2d 248, 253 (S.D.N.Y.
1998) (striking down same regulation). In relation to this
broadly defined FEC regulation, these courts held that neither
they nor the FEC had the authority to change the express
advocacy test, concluding that to do so required further
congressional or Supreme Court action. In fact only one
decision concluded that the FEC could make such a
regulation, FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), a
case that has been largely discredited. See, e.g., Chamber of
Commerce of the United States of America v. Moore, 288
F.2d 187, 194 (Sth Cir. 2002) (citing cases disagreeing with
Furgatch). In attempting to create these regulations, the
FEC’s efforts produced provisions plagued with vague terms
that raised the same concerns that troubled the Buckley Court,
placing the speaker at the mercy of the subjective intent of the
listener to determine if a communication was covered by
FECA. See Buckley, 424 U.S. at 43 (‘‘In short, the sup-
posedly clear-cut distinction between discussion, laudation,
general advocacy, and solicitation puts the speaker in these

796sa

circumstances wholly at the mercy of the varied
understanding of his hearers and consequently of whatever
inference may be drawn as to his intent and meaning.’’)
(quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)).
Indeed, the consensus among the judiciary has been that
courts ‘are bound by Buckley and MCFL, which strictly limit
the meaning of ‘express advocacy.’ If change is to come, if
must come from an imaginative Congress or from further
review by the Supreme Court.’’ Va. Soc’y for Human Life,
263 F.3d at 392 (emphasis added).''* Unlike the present case,
the absence of further congressional action led these courts to
strike down the FEC’s regulation.

With regard to the second category of cases involving state
law provisions, Plaintiffs refer to these decisions solely in a
footnote. McConnell Br. at 53 n.20. These cited cases are
each distinguishable because the state laws and regulations
considered by the various courts each disregarded the
principles of vagueness and overbreadth articulated in
Buckley or reached too far in regulating issue advocacy. In
Chamber of Commerce, the Fifth Circuit pointed out that the
state statute at issue ‘essentially adopted the language of the
Supreme Court’s decisions in Buckley and MCFL (which
meant that the only decision that the court needed to reach
was] to determine whether the Chamber’s advertisements
constitute ‘express advocacy’ under the standard articulated
[in the state statute]." Chamber of Commerce, 288 F.3d at
196. Accordingly, for the court in Chamber of Commerce, the
only decision to reach was whether the communications at
issue in the case constituted express advocacy. There is some
unexplained dicta in the case which states that the ‘Supreme
Court has held that the First Amendment permits regulation
of political advertisements, but only if they expressly

''4 Other cases relied on by Plaintiffs concern other FEC regulations
relating to voter guides. Clifton v. FEC, 114 F.3d 1309, 1317 (Ist Cir.
1997); Faucher v. FEC, 928 F.2d 468, 472 (ist Cir. 1991).

797sa

advocate the election or defeat of a specific candidate.’ wn
190 (no citation provided). For the reasons articulated in :
section, I expressly disagree with such dicta, presente

without a thoroughgoing analysis of Buckley or any _
support. See Nat'l Fed’n of Republican Assembt"ies, ty
Supp. 2d at 1329-30 (citing Chamber of Commerce) ( -

some of these cases contain unexplained dicta argua y
suggesting that express electoral advocacy is a universal,
constitutional limitation on disclosure requirements, sap
holds and none offers any textual analysis of Buckley that

could support such a proposition..’). | |

In another case cited by Plaintiffs, North Carolina Right od
Life, Inc. v. Bartlett, the Fourth Circuit invalidated a —
Carolina statute requiring political committees to make
certain disclosures. North Carolina Right to Life, td v.
Bartlett, 168 F.3d 705, 712-713 (4th Cir. 1999). The Bart ett
court found ‘unconstitutionally vague and overbroad a state
statute that reached further than FECA in mn
disclosure requirements to (1) groups that only incidenta y
engage in express advocacy and (2) groups — in —
advocacy. Id. In the same breath as it struck ae
provision, the Fourth Circuit made clear that it would have
first endeavored to save the provision like the Supreme Court
did in Buckley. Id. at 712 (‘The question then is whether
may similarly construe North Carolina's definition bs
political committee to save it from being void oa
vagueness.”). The court in Bartlett, therefore, only found hat
the North Carolina statute was not subject to a narrowing
interpretation, not that the express advocacy test was Ba
permanent fixture of constitutional law. However, to Z
extent some language in Bartlett could arguably lead in that

798sa

direction, I find it to be dicta unaccompanied by a serious
textual analysis of Buckley,''®

Plaintiffs also cite Citizens for Responsible Government
State Political Action Committee v. Davidson, a case where
the Tenth Circuit severed unconstitutional portions of a
Colorado campaign finance law. The state law defined
independent expenditure to include not only express
advocacy, but also ‘expenditures for political messages which
unambiguously refer to any specific public office or candidate
for such office.’ Citizens for Responsible Gov't State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1187-88 (10th
Cir. 2000). The term ‘political message’ was in turn defined
as including messages delivered by telephone, by print or
electronic media, or by any other written material that applied
not only to express advocacy, but also to unambiguous
references to candidates. Jd. at 1188. The Davidson court
found that as applied to the plaintiffs, the law encroached on
legitimate issue advocacy, which ‘is a violation of the rule
enunciated in Buckley and its progeny.’ Jd. at 1194 (quoting
Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376,
387 (2d Cir. 2000)). From the plain text of the Colorado
statutes, the laws were aimed not just at electioneering, but
also at pure issue discussion. No effort was made to draw a

'"> Indeed in distinguishing Bartlett, the court in National Federation
of Republican Assemblies found:

Only a single case cited by the plaintiffs Clearly stands for the
Proposition asserted. In North Carolina Right to Life, Inc. vy.
Bartlett, 168 F.3d 705 (4th Cir. 1999), cert. denied, 528 U.S. 1153
(2000), the Court stated that Buckley ‘defined political committee
as including only those entities that have as a major purpose
engaging in express advocacy in support of a candidate.’ /d. at 712
(emphasis in original). The Court offered no authority for this

proposition, which is plainly contrary to Buckley and which is dicta
in any event.

Nat'l Fed’n of Republican Assemblies, 218 F. Supp. 2d at 1330 (footnotes
omitted).

_ 799sa

different line than had been drawn in Buckley, and as a result,
the Tenth Circuit severed those constitutionally —c
portions. Davidson also contains unexplained dicta ot t :
{Supreme Court in MCFL] clarified that express wor S z
advocacy were not simply a helpful way to identify hogy
advocacy,’ but that the inclusion of such words ye
constitutionally required.’ /d. at 1187. For the nan rena :
forth above, I disagree with this statement, and consider |

constitute unpersuasive dicta.

The other cases Plaintiffs cite are equally ig eee
lowa Right to Life Comm., Inc. v. Williams, 187 F.3 oe
968-970 (8th Cir. 1999) (striking down a state = a “es
defining express advocacy in a similar manner as l ze
§ 100.22(b) as unconstitutional because the mar 0 ha
regulation is on ‘what reasonable people or reasonable ."
would understand fy the communication ); ageing
Patrons Affecting Change v. Baldwin, 1999 USS. are ms
23325 at *5-*6 (7th Cir. 1999) (upholding Indiana ape 0
statute after Indiana Supreme Court certified e S oe
applied only to organizations engaging in express a a :
Indeed, the court in Jowa Right to Life grounded - ve
on the fact that the ‘State’s definition of express eer
creates uncertainty and potentially chills discussion of public
issues.’ Jowa Right to Life, 187 F.3d at 970.

After reviewing these cases, I am convinced that cone
the cases cited above offer a convincing ogy * -
express advocacy is a constitutional requirement. : be s ;
and subjective terms associated with the provisions ph
impelled the Buckley court to offer the — a ~ y
construction. In turning to BCRA, it is clear that the pri my
definition of electioneering communication does not prese

this problem.

800sa

3. The Primary Definition of Electioneering Communi-
cation is Not Vague

Unlike the vagueness concerns which motivated the
Supreme Court in Buckley and MCFL, the primary definition
of electioneering communication is not vague. Indeed, none
of the Plaintiffs argued in their briefing or at oral argument
that the primary definition presented any vagueness concerns.
See McConnell Br. at 57-69: Tr. at 264-65 (Waxman) (‘No
one is arguing—I don’t believethat any of the 82 plaintiffs in
this case argue that the principal definition that is the four-
part test, is vague in any respect. It’s hard to imagine how it
could be less vague.’) (none of the Plaintiffs ever objected to
this characterization). In other words, there is no vagueness
challenge to the primary definition presently before the Court.

Plaintiffs make a number of general arguments in
Opposition to the primary definition: first, they contend that
the primary definition fails because it regulates more speech
than express advocacy, McConnell Br. at 44-57: second, they
argue that even if express advocacy is not a constitutional
requirement, the primary definition is unconstitutionally
overbroad, McConnell Br. at 57-69; third, they argue that the
primary definition of electioneering communications is
‘woefully’ underinclusive, McConnell Br. at 75-77; and
fourth, they argue that the primary definition violates the
Fifth Amendment, McConnell Br. at 77-81. Nowhere,
however, do any of the Plaintiffs argue that the primary
definition is vague. Given that among all of the seasoned
political actors and organizations that comprise the remaining
77 Plaintiffs in this case, not one has argued that vagueness is
a problem plaguing the primary definition, I could decline to
engage in a vagueness inquiry. See, e.g., Tri-State Hosp.
Supply Corp. v. United States, 142 F. Supp. 2d 93, 101 n.6
(D.D.C. 2001) (‘The court makes no ruling on such acts,
however, because the United States has not briefed the
issue.’); Carter v. Cleland, 472 F. Supp. 985, 989 n.4 (D.D.C.

80lsa

1979) (‘This issue was not briefed by the parties. No —
will be rendered on it.”); cf. Kattan v. District of Colum a
995 F.2d 274, 276 (D.C. Cir. 1993) (‘[T]his Court
recognized that a losing party may not use a Rule 59 “me
to raise new issues that could have been raised =~ - :
United States v. Wade, 255 F.3d 833, 839 (D.C. Cir. -
(issues that are not briefed are considered ae a
(citing Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. ),
cert. denied, 520 U.S. 1264 (1997)).

However, since Judge Henderson discusses the as
question in her opinion, see Henderson Op. at Part IV.A,
note that even were I to entertain the vagueness question,
would conclude that the primary definition of oe
communication is free from any vagueness infirmities. so
primary definition of electioneering ease wang a
forth in section 201 of the Act, comprises four ~y
elements, each designed to be clear, objective, limited in
scope, and directly responsive to the evidence —
recent electioneering by corporations and labor — w :
their general treasury funds. An advertisement falls in .
definition, and therefore would have to be funded wit “ye y
from a labor union or corporation’s segregated one, if, an
only if, it satisfies each of the following four elements:

A. It is broadcast by television, radio, cable, or a
Newspaper advertisements, direct mail, oe S,
phone banks, Internet advertisements, door-to- oor
canvassing, or leaflets are not covered by the primary

definition.
B. It refers to a ‘clearly identified candidate’ for federal

office. Broadcast advertisements dealing with issues are
not electioneering communications, unless the advertiser

Ol

P 802sa

chooses to mention or show a_particular federal
candidate.''®

C. It runs in the 60 days before a general election, or the
30 days before a primary.

D. The advertisement is targeted to the identified
candidate’s electorate. Specifically, the advertisement

must reach at least 50,000 voters in a relevant state or
district.

BCRA § 201(a); FECA § 304(f)(3)(A); 2 U.S.C.
§ 434(f)(3)(A); see also Def.- Int. Br. atl10. In a case
construing a new Wisconsin statutory provision very similar
to the primary definition of ‘electioneering communication,’
Chief Judge Barbara B. Crabb makes the compelling point
that the Wisconsin statute at issue in that case actually posed

less of a vagueness problem than the express advocacy
standard identified in Buckley:

Whatever the potential constitutional flaws of
Wisconsin’s new reporting and disclosure scheme,
vagueness does not appear to be one of them. In fact, the
State legislature’s approach appears to draw a line even
brighter than the one established in Buckley. The law
makes clear that once a certain dollar threshold is

''® The language in the statute, ‘refers to a clearly identified candidate
for Federal office,” BCRA § 201(a); FECA § 304(f)(3)(A):; 2 U.S.C.
§ 434(f)(3)(A), does not suffer the same problems that the Buckley court
had with FECA’s ‘relative to’ language. Although, the definition of ‘refer’
Shares ‘relate’ as a synonym, ‘refer’ is a much moreprecise word.
Merriam- Webster's Collegiate Dictionary, Tenth Edition 1997 (defining
refer as ‘1 a: to have relation or connection: RELATE b: to direct
attention usu. by clear and specific mention.’’) (emphasis added). Given
that ‘refers to’ is a much more exacting word than ‘relative to,’ and given
that none of the Plaintiffs have complained that there is any ambiguity
with this wording, I find that this phrase does not suffer from the same

vagueness problems that plagued FECA when the Buckley court construed
the phrase ‘relative to.’

803sa

sed, the law’s disclosure requirements apply to
= mune referring to a clearly identified
candidate that appears within 60 days of an election. A
copy of a proposed advertisement and a calendar are all
that is necessary to make a _ conclusive advance
determination that the ad is subject to regulation. By
contrast, the Buckley approach to express advocacy still
leaves room for a degree of uncertainty because, as
plaintiffs concede, the list of words and phrases
identified in that opinion as constituting express
advocacy is illustrative, rather [than] exhaustive.
Therefore, in a later case involving the federal statute at
issue in Buckley, the Court noted that the definition of
express advocacy it adopted in Buckley would also cover
a communication whose message ‘is marginally less
direct than ‘Vote for Smith.” Federal Election
Commission v. Massachusetts Citizens for Life, Inc., 479
U.S. 238, 249 (1986). Just how ‘direct’ an exhortation
must be to qualify as express advocacy under Buckley is
not free of all uncertainty for would-be political

advertisers.

Wisconsin Realtors, 233 F. Supp. 2d at 1086 ne age
added). The same could be said of the primary definition oO
electioneering communication in BCRA. ee my
communication is more certain and more explicitly define
than Buckley’s and MCFL’s explanation of express ——-
in that it provides objective criteria for potential politic
communicators to follow. Although there is no exhaustive list
of words falling under the rubric of express advocacy, the
electioneering communication definition is precise as to cy
communications are encompassed by its terms. According y;
I find none of the vagueness concerns identified by =
Buckley Court present with regard to the primary definition o
electioneering communication.

ee eae

—_—_o

804sa
D. The Evisceration of Section 441b

1. Introduction

As discussed in the foregoing section, the Supreme Court
in Buckley and MCFL construed FECA’s restrictions on
independent expenditures to apply only to expenditures
containing words of ‘express advocacy.’ While the Supreme
Court was prescient in observing that such a construction
with regard to limits on an individual's independent
expenditures was bound to create loopholes in the regulatory
system, Buckley, 424 U.S. at 45 (‘It would naively
underestimate the ingenuity and resourcefulness of persons
and groups desiring to buy influence to delieve that they
would have much difficulty devising expenditures that skirted
the restriction on express advocacy of election or defeat but
nevertheless benefitted the candidate’s campaign.’), the
Supreme Court emphasized in Buckley that it was without a
record to uphold restrictions that went beyond express
advocacy, id. at 46 (‘[T]he provision does not presently
appear to pose dangers of real or apparent corruption
comparable to those identified with large campaign
contributions.’) (emphasis added). In keeping with our system
of constitutional checks and balances, the Supreme Court
effectively sent the issue back to the political branches for
further consideration. The Supreme Court, in my view, never
conclusively foreclosed reconsideration of a limitation on
independent expenditures, provided that such a restriction
was not vague and was supported by an adequate record.
Indeed, in the context of restricting corporate and labor union
independent expenditures, the Supreme Court, after Buckley,
explicitly left this door open. See First Nat'l. Bank of Boston
v. Bellotti, 435 U.S. 765, 788 n.26 (1978) (‘Congress might
well be able to demonstrate the existence of a danger of real
Or apparent corruption in independent expenditures by
corporations to influence candidate elections.”).

ooo

=)

805sa

The instant case presents such a record to the three-judge
District Court and also demonstrates the wisdom of then-
Justice Rehnquist’s observation that the ‘carefullegislative
adjustment of the federal electoral laws, in a cautious
advance, step by step, to account for the particular legal and
economic attributes of corporations and labor organizations
warrants considerable deference.” NRWC, 459 U.S. at 209
(internal citation and quotation marks omitted). Since 1996,
corporations and labor unions have used their general treasury
funds to influence federal elections in direct contravention of
the original intent of Section 441b and its statutory
predecessors. Congress responded to this problem by enacting
Sections 201, 203, and 204 of BCRA. Therefore, before
turning to a discussion of whether these sections of BCRA are
narrowly tailored, I shall briefly discuss the erosion of the
express advocacy test as a means of distinguishing between
electoral advocacy and issue discussion. The Findings of Fact
demonstrate that Congress correctly observed that Section
441b was no longer effective at preventing corporations and
labor unions from using their general treasury funds to
influence federal elections. Indeed, to quote a former NRA
official, the state of the Section 441b prohibition prior to
BCRA was ‘built of the same sturdy material as the
emperor’s clothing.’ Findings § 2.4.3 (Metaksa).

The Findings of Fact with regard to the evisceration of
Section 441b resemble a mosaic with each piece of evidence
building on the next, and when viewed as a whole, present a
damaging portrait of corporations and labor unions using their
general treasury funds to directly influence federal elections.
It is to this picture that I now turn.

2. The Rise of Spending on Issue Advocacy in Close
Proximity to Federal Elections

As discussed supra, in MCFL, the Supreme Court
construed the prohibition on expenditures in section “Alb as
only applying to expenditures containing words of ‘express

806sa

advocacy.’ MCFL, 479 U.S. at 249 (‘We therefore hold that
an expenditure must constitute ‘express advocacy’ in order to
be subject to the prohibition of § 441b.’). As a result of
MCFL, corporations and labor unions were permitted to use
their general treasury funds on independent expenditures in
connection with a federal election, provided that those
independent expenditures did not contain words of “express
advocacy.’ In other words, so long as corporations and labor
unions did not use any of Buckley’s ‘magic words’ in their
advertisement, they could use their general treasury funds to
pay for advertisements that influenced a federal election. Of
course, if the corporation or labor union chose to use the
magic words in an advertisement, it could still do SO,
provided it paid for such a communication from a segregated

fund, thereby ensuring that there was political support for the
advertisement.

As a consequence of the Supreme Court’s decision in
MCFL, candidate-centered issue advertisements,''” funded
with corporate and labor union general treasury funds, has
dramatically increased in recent election cycles. Findings
{ 2.2. “By the early 1990s and especially by 1996, interest
groups had developed a strategy to effectively communicate
an electioneering message for or against a particular
candidate without using the magic words and thus avoid
disclosure requirements, contribution limits and source
limits.’ Id. § 2.2.7 (Magleby).'"* The 2001 Annenberg

'” As the Findings demonstrate, issue advertisements generally fall

into three categories: candidate-centered, legislation-centered, and general
image-centered. Findings § 2.2.2. Candidate-centered advertisements
make a case for or against a candidate but do so without using ‘magic
words.” /d. These are the advertisements that BCRA seeks to distinguish
from other forms of issue advocacy.

"’ The reason why it was not until 1996 that this explosion in
candidate-centered issue advocacy occurred, as political consultant Bailey
explains, was that in post-Watergate campaigns, it was important for
candidates to be seen as attempting to clean up the political process.

807sa

Report, relied on by Defendants, Plaintiffs, and Congress,
establishes that during the 1996 election cycle, an estimated
$135 million to $150 million was spent on multiple
broadcasts of about 100 distinct advertisements, in the LU 997-
1998 election cycle, 77 organizations aired 423 distinct
advertisements at a cost of between $250 million and $340
million,''? and in the 1999-2000 election cycle, 130 groups
spent over an estimated $500 million on 1,100 distinct
advertisements. /d. § 2.2.4.'*” Plaintiffs’ own expert readily
concedes that the number of organizations sponsoring issue
advertisements has “exploded” over the last three election
cycles. Id. § 2.2.6 (La Raja).'?! From their studies, the

“adi ‘ k of enforcement and a
Findings § 2.2.7 (observing that ‘due to a lac adhe
aia on the part of some to win at s advocacy into constitutional

stone.

9 The report the Annenberg Study produced following the 1997- 1998
election cycle placed this estimate at between $275 million to $340
million. See supra note 78.

20 As a representative sample, the Annenberg Report 2001 found that
in the 2000 election cycle, the Republican and Democratic parties
accounted for almost $162 million (31%) of this spending on issue
advocacy, Citizens for Better Medicare, $65 million (13%), Coalition °
Protect America’s Health Care, $30 million (6%), US. Chamber oO
Commerce, $25.5 million (5%), AFL-CIO, $21.1 million (4%), National
Rifle Association, $20 million (4%), U.S. Term Limits, $20 million (4%).
Findings § 2.2.4. | |

21 Interestingly, the huge rise in issue advocacy spending aap
federal campaigns far outpaces spending on the amount of PA -
‘sponsored advertising. Under the original intent of FECA, corporations
and labor unions that wished to sponsor electioncering advertisements
would have had to do so with segregated funds (e.g. PAC money”).
2 U.S.C. § 441b(b)(2)(C). During the 2000 election cycle, non-PAC
interest groups ran 74,024 political advertisements referring to a federal
candidate, while PAC interest groups ran only ; 3,663 advertisements.
Findings § 2.2.5.2. Although none of the parties discuss this discrepancy,
and although there are likely a number of factors to explain it, it does
take much imagination to conclude that one of the primary reasons
PAC advertising is so low in comparison, is that if a corporation or labor

808sa

Annenberg Public Policy Center concludes that the amount of
money spent on “issue advocacy” is increasing rapidly, that
this development permits the political parties, corporations,
and labor unions to gain a “louder” voice, and that
consequently, the “distinction between issue advocacy and
express advocacy is a fiction.” /d. Indeed, even the political
parties recognize the value which these outside corporations

and labor unions bring to the election with their issue
advocacy. /d. § 2.7.10.

3. “Magic Words” Are Rarely Used in Political
Advertisements

As issue advocacy by corporations and labor unions has
grown as a means of influencing federal elections, the trend
of all forms of political advertisements has been to move
away from words of express advocacy-whether they are
advertisements produced by candidates, political parties, or
corporations and labor unions. Findings § 2.3. The unrebutted
expert testimony demonstrates that only 11.4 percent of
advertisements purchased by federal candidates that aired
during the 2000 election cycle would qualify as
electioneering under the “magic words” test. /d. q 2.3.1
(Goldstein); see also id. § 2.3.2 (Strother) (observing that
90% of candidate advertisements he has put together in his
career have not used express advocacy). Moreover, the
uncontroverted testimony of political consultants establishes
that express advocacy is no longer considered an effective
tool of political advertising. /d. (Strother) (“Good media
consultants never tell people to vote for Senator X; rather,
you make your case and let the voters come to their own
conclusions. In my experience, it actually proves less

union can fund the most effective form of electioneering with general
treasury funds, there is no need to try and raise PAC money or comply
with PACs’ disclosure provisions simply to run_ electioneering
advertisements that use words of “express advocacy.”

809sa

effective to instruct viewevs what you want them to do.”);
(Bailey) (“In the modern world of 30 second political
advertisements, it is rarely advisable to use such clumsy
words as ‘vote for’ or ‘vote against.”*). When Buckley was
handed down, express advocacy in political advertising was
more common. /d. (Bailey). Since the mid-1980s, political
advertising has shifted and today the practices of political
advertisers-with only a znere 30 seconds to convey their
messages-parallel commercial advertisers where a “product is
presented in various desirable tableaus vee present[ing}
viewers with a variety of reasons to choose their product.” /d.
q 2.3.3 (Krasno and Sorauf) (“Political ads seem to follow the
same strategy, hoping that citizens will grow to prefer a
candidate without being told to troop to the polls.”).

4. Other Advantages of Using Issue Advocacy to
Influence Federal Elections

Aside from the fact that candidate-centered issue advocacy
is a much more powerful means to convey an electioneering
message, it is uncontroverted there are other strong incentives
for using “issue advocacy” to influence federal elections. Id. q
2.5. First, by running “issue advertisements” in the immediate
run-up to a federal election, corporations and unions are able
to avoid any of the disclosure requirements that ordinarily
‘attach when these groups use general treasury funds to
influence federal elections. /d.; id. | 2.5.1. Plaintiffs’ Experts
Milkis and La Raja equally concur that the rise of issue
advocacy has permitted issue organizations to hide their true
identities while running these advertisements. /d. { 2.5.1
(Milkis); § 2.2.6 (La Raja) (“Over the last three election
cycles, the number of groups sponsoring ads has exploded,
and consumers often don’t know who these groups are, who
funds them, and whom they represent.”). As Plaintiffs’ expert
_ Milkis candidly observes, “For example, The Citizens for
Better Medicare, which spent $65 million on television ads
[during the 2000 election cycle], is funded primarily by the

810sa

pharmaceutical industry.” Jd. | 2.5.1: see also id. (citing
example of AFL-CIO running advertisements in
congressional race under the name “Coalition to Make Our
Voices Heard”); id. (“Frankly we’ve taken a page out of their
book [other interest groups] because in some places it’s much
more effective to run an ad by the ‘Coalition to Make Our
Voices Heard’ than it is to say paid for by ‘the men and
women of the AFL-CIO.”’) (Magleby) (citing comments of
AFL-CIO representative at a lunchtime discussion panel at
the Pew Press Conference). As a result, not only are
corporations and unions able to fund the most effective form
of political advertising with their general treasury funds, but
they are able to create corporations which have euphemistic
names and which, in many instances, serve as fronts for
injecting corporate general treasury funds into federal
elections. /d. In addition to avoiding FECA’s disclosure
requirements, it is uncontroverted that another advantage of
running election advertisements as “issue advocacy” is that
corporations and labor unions can use their general treasury
funds to influence federal elections which, as Defense Expert
Magleby observes, “makes a sham of these longstanding
federal laws.” Jd. 4 2.5.2. The uncontroverted testimony of
Defense Expert Magleby also makes clear that by avoiding
PACs, these organizations can raise larger amounts of funds
more quickly than if they had to raise money to pay for their
advertisements using PACs. /d. § 2.5.3.

5. The Impact of These Developments

Accordingly, when the Supreme Court’s construction of
Section 441b in MCFL is combined with the fact that very
few political advertisements use words of express advocacy,
the result is obvious: corporations and labor unions, long
prohibited from using their general treasury funds to
influence federal elections, are able to run the most effective
form of political advertising and the most widely used form
of political advertising from their general coffers. At the same

8lisa

time, the law constitutionally prohibits corporations and labor
unions from using general treasury funds to influence federal
elections with advertisements that use express words of
advocacy-a style of advertising rarely used and described 7
political consultants as ineffective. The unintended result :
this development is that the longstar:ting prohibition on the
use of corporate and labor union general treasuries to
influence federal elections is undermined. Indeed, the role of
corporations and labor unions in federal elections 1s actually
enhanced because these corporations and labor unions are
able to fund the most potent form of political advertising

using treasury funds.

The testimony from political consultants, experts, and
officeholders and candidates convincingly bears this point
out. The record demonstrates that the express advocacy test Is
not a useful benchmark for distinguishing between campaign
advertising and issue advertising, that no particular words oa
necessary to create electioneering advertisements, and that
corporations and labor unions produce advertisements that
directly influence federal elections under the guise of “issue
advocacy.” Id. 2.4. Despite the fact that MCFL interpreted
Section 441b as reaching more advocacy than the examples in
Buckley's footnote 52, MCFL, 479 U.S. at 249, the test has
proven ineffective at distinguishing between genuine issue
advocacy and electioneering paid for with corporate and labor
union general treasury funds. Indeed, as the testimony
presented in this case convincingly demonstrates, no
particular words of advocacy are Necessary for effective
campaign advertisements; it is easier for corporations and
labor unions to skirt the prohibition contained in Section
441b. In sum, Congress found that the express advocacy test,
grafted onto Section 441b by the MCFL Court, was no longer
preventing corporations and ‘abor unions from spending
general treasury funds on fede ‘al elections. Findings { 2.4.4.

812sa

6. Corporations and Labor Unions Routinely Spend
General Treasury Funds on Advertisements Designed to
Influence Federal Elections

a. Political Consultants Testify that Candidate-Centered
Issue Advertisements are Electioneering

Advertisements designed to influence a federal election
under the guise of issue advocacy usually end by telling the
viewer to call, ask, or tell a candidate to do something.
Findings § 2.4.3 (Pennington). From the perspective of
political consultants, who provide testimony in this case,
there is no practical difference between these “issue
advertisements” and those advertisements where express
advocacy is used. /d. (Strother) (“From the point of view of a
media consultant, there is no real difference between ending
an advertisement with ‘Vote for Senator X’ versus ending an
advertisement with ‘Tell Senator X to continue working hard
for America’s families.””’); (Beckett) (“However, in fact no
particular words of advocacy are needed in order for an ad to
influence the outcome of an election. No list of such words
could be complete . . . .”); (Lamson) (“When political parties
and interest groups run ‘issue ads’ just before an election that
Say ‘call’ a candidate and tell her to do something, their real
Purpose is typically not to enlighten the voters about some
issue, but to influence the result of the election, and these ads
often do have that effect.”). Plaintiffs have provided no
contrary political consultant testimony to discredit the
testimony of these political consultants. I find the
uncontroverted testimony of the political consultants
particularly compelling because it comes from well-known
and respected professionals who are engaged in the business
of making political advertisements. See id.

Ms. Tanya Metaksa, former Chair of the NRA PVF, stated
in her opening remarks at the American Association of Politi-
cal Consultants’ Fifth General Session on “Issue Advocacy”
that “[i}t is foolish to believe there is any practical difference

813sa

between issue advocacy and advocacy of a political
candidate. What separates issue advocacy and _ political
advocacy is a line in the sand drawn on a windy day.” /d.
(Metaksa); see also id. (Strother) (“When we design, produce,
and run ‘issue ads’ that mention specific candidates for
federal office and that are aired in proximity to an election,
these ads are for only one purpose: to effect [sic] the outcome
of an election.”’). In concrete terms, perhaps the most striking
example of this “line in the sand drawn on a windy day,” is
the two camera shoot, where consultants bring two cameras to
shoot an advertisement. /d. (Strother). The film in Camera A
is used by the candidate, while the nearly identical film in
Camera B is sold for a nominal fee to a third party who then
“gets direct control over the images of the candidate used in
the issue groups ads.” /d. In my judgment, the testimony of
political consultants provides overwhelming evidence that
corporations and labor unions spend general treasury funds on
advertisements that, while not using words of express
advocacy, are designed to influence federal elections.

b. Current and Former Officeholders and Candidates
Testify that Corporations and Labor Unions Use General
Treasury Funds to Pay for Advertisements Designed to
Influence Federal Elections

In addition to political consultants, current and former
officeholders and candidates testify thatthe express advocacy
test has becorne meaningless, that no particular words of
advocacy are necessary to convey an electioneering message,
and that corporations and labor unions were using their
general treasury funds to influence federal elections. Id.
q 2.4.2. This testimony is particularly compelling given that
the political actors supporting BCRA, to borrow words from
Justice Byron White, “included many seasoned professionals
who have been deeply involved-in elective processes and who
have viewed them at close range over many years.” Buckley,
424 U.S. at 261 (White, J., concurring in part, dissenting in

814sa

part); see also Colorado I, 518 U.S. at 650 (Stevens, J.,
dissenting) (“Congress surely has both wisdom and
experience in these matters that is far superior to ours.”).
Even Plaintiff Congressman Ron Paul conceded during his
deposition that outside group issue advertisements run during
his 2000 congressional campaign were intended to influence
the election. Findings 4 2.4.2.1 (Paul). Politicians from both
political parties provide convincing testimony in this case,
and also provide important guidance through floor statements
made during the debate over campaign finance legislation,
that in their considered judgment the express advocacy test
was not preventing corporations and labor unions from
influencing federal elections using general treasury funds, and
that no particular words are necessary to convey an
electioneering message. /d. ¥ 2.4.2 (including statements and
testimony from Feingold, McCain, Levin, Bloom, Bumpers,
Chapin, and Shays).

c. Examples of Corporations and Labor Unions
Demonstrate That These Organizations Use Their General

Treasury Funds to Pay for Advertisements Designed to
Influence Federal Elections

The record, however, goes beyond the testimony of
experts, political consultants, and present and _ past
officeholders and candidates. The documented behavior of
corporations and labor unions also clearly demonstrates that
issue advocacy is used as a tool of electioneering by
corporations and labor unions. /d. J 2.6. The Findings, which
culled the most salient examples from the substantial record
submitted by the parties, demonstrate that, for example, the
AFL-CIO, the Coalition, Citizens for Better Medicare, the
NRA, and The Club for Growth all used corporate general
treasury funds to influence recent federal elections. /d.
{ 9 2.6.1-2.6.5. Plaintiffs dismiss this evidence as merely
“anecdotal,” McConnell Opp’n at 32, which is a
characterization of the weight of the evidence and not a

815sa

comment on whether it is rebutted. To the contrary, the
examples of corporations and labor unions using general
treasury funds to influence federal elections are not
“anecdotal,” but powerful illustrations of a regulatory regime
in paralysis. Indeed, like a mosaic, these “anecdotal
examples when combined with the other evidence in the
record relating to the general ineffectiveness of Section 44 1b,
and the failure of the express advocacy test, make a
compelling case for the restrictions Congress arrived at in
enacting Sections 201, 203, and 204 of BCRA.

1) The NRA

The Findings relating to the activities of Plaintiff NRA,
however, really drive home the point that the express
advocacy test has become meaningless and that corporations
spend general treasury funds on candidate-centered issue
advertisements to influence federal elections. /d. | 2.6.4.
Aside from the NRA’s media consultant who stated that the
first objective of the NRA was to influence the outcome of
the presidential election and other key congressional races, id.
at 2.6.4.1, the NRA ran two nearly identical radio
advertisements in the 2000 election: one paid for with PAC
money which used express advocacy and one paid for with
corporate general treasury funds which did not use express
advocacy. Id. | 2.6.4.4. The only real difference between the
advertisements was that the one paid for with PAC money
said “Vote George W. Bush for President” at the end of the
advertisement. /d. In my view, this advertisement is a perfect
example-the poster child-of how pointless the express
advocacy test is at distinguishing between genuine issue
advocacy and electioneering advertisements. In addition to
this evidence, the Findings, particularly those resting on the
internal documents of the NRA, id. 4 2.6.4.1, also
demonstrate just how driven the NRA was to use general
treasury funds, which fell outside the source and amount

81l6sa

limitations of FECA, to directly influence the 2000 federal
election. /d. 4 2.6.4.

2) Citizens for Better Medicare and The Club for Growth

Another glaring example from the Findings includes the
pharmaceutical industry’s uncontroverted efforts to. influence
the 2000 elections, id. | 2.6.3, by admittedly spending over
sixty-five million dollars on television advertising which,
according to Plaintiffs’ expert Dr. La Raja, was almost as
much as either of the two political parties spent on issue
advocacy, /d. | 2.6.3.4. The pharmaceutical industry’s efforts
were cloaked behind the name “Citizens for Better
Medicare.” I have concluded from the testimony and
documents submitted in this case that this issue advocacy
campaign mounted during the 2000 election cycle. was
designed to influence the federal election with corporate
general treasury funds in direct contravention of the historic
prohibition on such activity. See id. § 2.6.3; see also id.
{ 2.6.3.4 (“Much of CBM’s ad strategy leading up to the 2000

election was aimed at supporting candidates attacked in AFL-
CIO advertising.”’).

In addition to CBM’s activities, I have also found that
Plaintiff The Club for Growth influenced the 2000 federal
elections with corporate general treasury funds. /d. q 2.6.5.
The Club for Growth openly acknowledges in their
solicitation materials that “these issue advocacy campaigns
can make all the difference in tight races.” Jd. 9 2.6.5.4.
Moreover, the activity of The Club for Growth in Florida in a
2000 Congressional race demonstrates in an uncontroverted
manner the power of a corporation when it uses general

treasury funds to influence federal primary elections. /d.
q 2.6.5.5.

3) AFL-CIO

With regard to the AFL-CIO’s issue advocacy campaign
during the 1996 federal election, I have found that the AFL-

817sa

CIO used issue advocacy to influence the 1996 general
election. Findings § 2.6.1. The internal documents
surrounding the AFL-CIO’s efforts are particularly revealing
and directly contradict the AFL-CIO’s self-serving declara-
tion submitted in this case, which attempts te downplay the
electoral considerations behind their advertisements. Id.
2.6.1.1 (observing that the indirect effect on election out-
comes has “never been the point of [the AFL-CIO’s broadcast
advertising program”). The documents demonstrate that
media consultants were hired by the AFL-CIO to test how
their advertising would resonate with the electorate, how to
create advertisements that “manage the political message In a
volatile environment,” and even how to place a media buy in
Illinois to help a Senate candidate when the candidate did not
have the resources to fund advertising on his own. /d.
Moreover, other independent evidence, including expert
testimony, establishes that the AFL-CIO's 1996 issue
advocacy campaign was designed to influence the federal
election. /d. 94 2.6.1.2-2.6.1.5. The AFL-CIO does not refute
or explain the discrepancy between its general denial about its
issue advocacy and thesé contrary evidentiary documents.
The Findings elaborate on these points and others in more
detail, but I conclude from this evidence that during the 1996
election campaign the AFL-CIO used general treasury funds
to influence a federal election, and therefore was able to
circumvent FECA’s requirement that their efforts be paid for
with federal funds from a segregated account. See id.
4 2.6.1.6 (observing that twelve of the thirty-two House
Republican freshman targeted by the AFL-CIO were

defeated). |
4) The Coalition-Americans Working For Real Change

In response to the AFL-CIO, Plaintiffs Chamber of
Commerce, National Association of Manufacturers, and
National Association of Wholesaler-Distributors, and other
business entities, formed a corporation entitled the

818sa

“Coalition-Americans Working for Real Change” also to
influence directly the 1996 federal election. /d. q 2.6.2. I have
found that The Coalition’s issue advocacy campaign around
the 1996 election was designed to influence the federal
election. /d. Like the AFL-CIO, the internal documents of the
Coalition demonstrate that electoral strategies, and not “issue
advocacy,” were at the heart of the Coalition’s efforts in
1996. Id. 2.6.2.2. Indeed, the Coalition sought advice from
consultants and polling firms on how to maximize their
ability to influence federal elections. Jd. These internal
documents, combined with independent expert testimony and
the FEC General Counsel's report, see id. 4 § 2.6.2.3-2.6.2.4,
strongly contradict the Coalition’s self-serving efforts in this
litigation to portray their 1996 advertising campaign as
something less than electioneering advertisements in disguise.
The Coalition used corporate general treasury funds to
directly influence the 1996 election and, therefore, was able
to circumvent FECA’s policy of compelling corporations to
use federal money from a segregated account. See generally
id. | 2.6.2; see also id. | 2.6.2.2 (post-election analysis done
by Coalition’s polling firm).

The AFL-CIO and The Coalition presented no
uncontroverted evidence that they did not try to influence the
1996 federal election with issue advertisements. Moreover,
these organizations do not contest that they paid for these
advertisements with general treasury funds. The effort by the
AFL-CIO and The Coalition to portray themselves as
engaging in issue advocacy, as opposed to electioneering, is
belied by their own internal documents.

d. Other Examples of Advertisements Demonstrate That
Corporations and Labor Unions Use Their General Treasury

Funds to Pay for Advertisements Designed to Influence
Federal Elections ,

Aside from the examples above of corporations and labor
unions directly using general treasury funds to influence

819sa

federal elections, the attributes of so-called “issue
advertisements” in the Findings demonstrate the
electioneering purpose behind these commercials.

1) Organizations Run Issue Advertisements About Which
They Have No Particular Organizational Interest

First, the Findings compellingly demonstrate that many
candidate-centered issue advertisements are run about issues
in which the organization sponsoring the advertisement has
no interest. Jd. § 2.6.6. On this basis, it is clear that these
advertisements were designed to influence a federal election.
For example, EMILY’s List, an organization dedicated to
pro-choice female candidates, ran advertisements on gun-
control for federal candidate Linda Chapin. /d. § 2.6.6.1.
Other examples from the Findings include the Associated
Builders and Contractors running an advertisement about a
federal candidate that dealt with penalties for child molesters.
Id. 4 2.6.6.2 (admitting that such an advertisement is not of a
particular concern of contractors). In another situation, the
Club for Growth funneled $20,000 to the American
Conservative Union to fund an issue advertisement relating to
Hillary Clinton’s candidacy which the Club candidly
admitted at deposition had nothing to do with the Club’s
interest in pro-growth conservative Republicans. /d. | 2.6.6.3.
Another example is an advertisement run by the trucking
industry, urder the pseudonym “The Foundation for
Responsible Government,” praising the record of an opponent
of a Senator on health care and taxes. /d. { 2.6.6.4 (observing
that the Senator was a target of the group because he
supported legislation banning triple trailer trucks). Finally,
the group Citizens for Life, a New Hampshire Pro-Life
Organization, ran advertisements in 2000 against John
McCain criticizing jokes allegedly made by McCain about
Alzheimer’s and a home for senior citizens. /d. | 2.6.6.5. The
New Hampshire group claimed the advertisement was timely
because the New Hampshire State Senate was close to voting

820sa

on a bill to legalize assisted suicide. Jd. I am not persuaded
that any of these advertisements were anything other than
electioneering advertisements. Rather, these examples
demonstrate that corporations spend general treasury funds on
candidate-centered issue advertisements to influence federal
elections. /d. | 2.6.6.6.

2) Organizations Run Issue Advertisements About Past
Votes or About Issues No Longer Before Congress

Second, Organizations run candidate-centered issue
advertisements praising or criticizing candidates for past
votes or discussing a Member’s position of an issue not
pending before Congress. These candidate-centered issue
advertisements are clearly designed to influence federal
elections. Id. | 2.6.7. For example, the AFL-CIO has run a
series of advertisements on past votes of particular Members
of Congress. Id. ¥ 2.6.7.1. As discussed in my Findings, these
advertisements are nothing more than campaign
advertisements. /d. Another example of this practice is the
Chamber’s advertisements attacking various Members of
Congress over the prescription drug issue that was not
pending before Congress when the advertisements were aired.
Id. ¥ 2.6.7.2. Many of these advertisements did not include a
phone number to contact the Member, and some of the
advertisements were aired against candidates who were not
even Members of Congress. Jd. The Chamber’s advertising in
this regard was plainly designed to influence the federal
election. Jd. These examples from the AFL-CIO and the
Chamber also demonstrate that corporations and labor unions
used general treasury funds to pay for candidate-centered

issue advertisements designed to influence a federal electi
Id. 4 2.6.7.3. eral election.

3) Organizations Air Advertisements When A Candidate
Lacks Funds to Run Advertisements and So a Candidate Can
Avoid Running Advertisements Attacking an Opponent

821sa

Corporations and labor unions also use general treasury

funds to pay for candidate-centered issue advertisements (a)
when candidates lack funds to put their own advertisements
on the air and (b) to attack a candidate’s opponent so that the
candidate can run only “positive” advertisements. /d. ¥ 2.6.8.
These indicators provide yet another powerful indication that
these “issue advertisements” are nothing short of campaign
advertisements designed to affect elections, paid for with the
general treasury funds of corporations and labor unions. /d.
q 2.6.8.4. The uncontroverted testimony of political consult-
ants is that negative character advertisements are often run by
a third party because they shield the candidate from the
political repercussions that are likely to result if the candidate
actually ran the negative advertisement him or herself. /d. {
2.6.8.1. In addition to allowing the candidate to refrain from
running negative advertisements, organizations often run such
advertisements praising a candidate or criticizing the
candidate’s opponent when the candidate’s campaign does
not have resources to run advertising on its own. /d. { 2.6.8.2
(former Representative discussing how his opponent did not
buy media in a media market that covered 40% of his district,
but that other groups filled the void attacking the
Representative); id. § 2.6.8.3 (beneficial advertisements by
EMILY’s List ran when the Chapin campaign was not on the
air to save resources); id. ¥ 2.6.1.1 (internal memorandum of
the AFL-CIO discussing advertising buy by the union to help
Illinois Senate candidate in markets where the candidate
lacked resources to air advertising). I conclude that these
advertisements were also clearly designed to influence a
federal election and paid for with the general treasury funds
of corporations and labor unions.

7. Conclusion

In sum, it again bears emphasizing that FECA has always
permitted corporations and labor unions to run electioneering
advertisements, provided that those advertisements were paid

822sa

for with money that came from a segregated fund dedicated
specifically for federal electioneering. As the examples above
illustrate, the utility of Section 441b as a tool to prevent
corporate and labor union general treasury funds from
influencing elections has been effectively blunted. See id.
q 2.6.9. While the primary purpose of these advertisements
ultimately may be difficult to determine with precision, given
the reticence of these organizations to admit they are
campaign advertisements, the effect of these advertisements
on federal elections is legion. Consequently, as I state in my
Findings, “Congress found that FECA, as construed by the
Courts, to only limit independent expenditures containing
express advocacy, was no longer relevant to modern political
advertisements.” Jd. 9 2.4.4; see also id. q 2.4.3 (unrebutted
testimony of political consultant Bailey) (“The notion that ads
intended to influence an election can easily be separated from
those that are not based upon the mere presence or absence of
particular words or phrases such as ‘vote for’ is at best a
historical anachronism.”). Congress appropriately concluded
that corporations and labor unions were openly violating the
intent of its longstanding (and long-upheld) prohibition on the
use of corporate and labor union general treasury funds to
influence elections.

In crafting the primary definition of electioneering
communication, Congress recognized just how difficult the
task of discerning a speaker’s true intent can be for a court or
regulatory agency. Taking heed from Buckley’s stringent
admonition that a distinction between the discussion of issues
and advocacy for the election or defeat of candidates “may
often dissolve in practical application” and that a law must be
construed in a manner that avoids “‘put [ting] the speaker in
these circumstances wholly at the mercy of the varied
understanding of his hearers,”* Buckley, 424 U.S. at 42, 43,
Congress crafted an objective, impartial, and thoroughly
simple test for distinguishing between electioneering and
issue advocacy. Congress recognized, as the record in this

823sa

case indicates, that candidate-centered issue advertisements
influence federal elections. Congress thereafter drew an
incredibly clear bright-line test that focuses on the key
empirical determinants that distinguish pure issue
advertisements from candidate-centered issue advertisements.
The result is that broadcast advertisements paid for by
corporations or labor unions, aired in close proximity to an
election that clearly identify a federal candidate, and are
targeted to that candidate’s electorate, need to be paid for
with federal funds from a segregated account. Congress,
therefore, is not prohibiting speech by any corporation or
labor union; it is merely requiring these organizations to pay
for speech that ostensibly influences federal elections with
segregated funds that are regulated under FECA.

The question remaining is whether this bright line that
Congress has drawn is narrowly tailored to serve compelling
governmental interests. I shall first turn to the compelling
governmentai interests behind Title II and then shall move to
a discussion of whether Title II of BCRA is narrowly tailored
to serve those compelling governmental interests.

E. Title Il of BCRA is Narrowly Tailored to Serve a
Compelling Governmental Interest

1. _ BCRA’s Prohibition on Electioneering Communi-
cations; the Primary Definition Serves Compelling
Governmental Interests

As discussed supra, Section 203 extends the longstanding
prohibition on corporations and labor unions making
contributions or expenditures from sont treasuries in

nection with federal elections to electioneering commu-
canis as defined in the primary definition. BCRA § 203;
FECA § 316(b)(2); 2 U.S.C. § 441b(b)(2). Ce porations and
labor unions are now prohibited from spending general
treasury funds on electioneering communications, but are
permitted to spend unlimited federal money from separate

824sa

Segregated funds on electioneering communications. Even
though a corporation or labor union “remains free to establish
a separate segregated fund, composed of contributions
earmarked for that purpose by the donors . . . the corporation
[or labor union] is not free to use its general funds for
campaign advocacy purposes [and while that is not an
absolute restriction on speech, it is a substantial one.” MCFL,
479 U.S. at 253 (emphasis in original) (plurality opinion). As
a result, even though the Act permits corporations and labor
unions to make electioneering communications with their
segregated funds, the prohibition in section 203 must be
“justified by a compelling state interest.” /d.

In discussing the compelling governmental interests in
enacting sections 203 and 204, Defendants rely on long-
standing precedent of the Supreme Court that has already
extensively discussed the compelling interests related to
government regulation of corporate and labor union general
treasury funds in the context of federal elections. Gov’t Br. at
133-134. The Supreme Court’s prior discussions of the
compelling interests needed to sustain restrictions on
corporate and labor union general treasury funds are equally
applicable in the context of Sections 203 and 204 of BCRA.
Plaintiffs, with the exception of the NRA, do not seriously
question this position, but rather focus their energies on
the fact that these provisions are not narrowly tailored to
serve these compelling governmental interests. As discussed
infra, 1 find Plaintiffs’ argumentation on that point to be
rebutted by the extraordinary record in this case. Before
turning to these arguments, however, I shall briefly discuss

the compelling governmental interests behind sect »ns 203
and 204 in Title IL.

In defending the constitutionality of Title II, Defendants
rely on the compelling governmental interest described in
Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990), and supported by a rich history of Supreme Court

825sa

cases discussing Section 441b.'” Defendants also contend
that the compelling governmental interest supporting the
prohibition on electioneering communications relates to the
potential for the appearance of corruption that occurs when
corporations and labor unions pay for electioneering
communications with their general treasury funds. Tr. at 252
(Waxman) (“[{T]he record in this case of the kind of Austin
corruption, and even potential quid pro quo cor uption,
absolutely dwarfs the evidentiary record that the Supreme
Court has considered. in any of the cases it has decided,
including Buckley.’’). As a corollary to this latter theory,
Defendants also advance an anti-circumvention rationale to
justify these provisions, observing that “BCRA’s regulation
of electioneering communications furthers the compelling
governmental interest in preventing corruption of elected
officials, not only on its own terms, but also by helping to
ensure that the new limits on soft money will not be easily
evaded.” Gov’t Br. at 146. I conclude that the first two
theories of corruption are sufficient to uphold the challenged
provisions and therefore do not reach the third.

a. Corruption Related to Corporations and Labor
Unions

The Supreme Court has long indicated that the government
has a compelling interest in placing restrictions on corporate
and labor union involvement in federal elections SO as to
prevent “the corrosive and distorting effects of immense
aggregations of wealth,” facilitated by either the corporate or
union forms, on federal elections. Austin, 494 U.S. at 660. As
discussed supra, corporations and labor unions routinely seek

” ies to the litigation have dubbed this compelling
PO Bt theory “Austin corruption.” Even though the statute
in Austin only applied to corporations, Austin, 494 U.S. at 655, the
Supreme Court has long upheld a similar corruption rationale in the case
of labor unions. See Pipefitters, 407 U.S. at 415-16, UAW, 352 U.S. at
585, NRWC, 459 U.S. at 207-08.

826sa

to influence federal elections with broadcast advertising
campaigns, paid for with general treasury funds. Sections 203
and 204 of BCRA, which are plainly designed to combat this

development, fulfill the same purposes that the government

identified as supporting Section 441b in NRWC and that the
Supreme Court upheld:

The first purpose of § 441b, the government states, is to
ensure that substantial aggregations of wealth amassed
by the special advantages 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 who are aided by the
contributions. See United States v. United Automobile
Workers, 352 U.S. 567, 579 (1957). The, second purpose
of the provisions, the government argues, is to protect
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 candidates to whom they may be opposed. See
United States v. CIO, 335 U.S. 106, 113 (1948).

We agree with the government that these purposes are
sufficient to justify the regulation at issue.

NRWC, 459 U.S. at 207-08. In a nutshell, NRWC
encapsulates the compelling governmental interests behind
Section 441b, which also plainly serve as a basis for
upholding BRCA Sections 203 and 204.

The Supreme Court’s most recent discussion of these
justifications was in Austin, where the Supreme Court
considered a Michigan state statute which was patterned after
section 441b, prohibiting corporations from making
independent expenditures in connection with state candidate
elections. Austin, 494 U.S. at 655 n.1. The issue before the
Court was the constitutionality of the state’s ban on
independent expenditures made by corporations, which the
Court held to be “constitutional because the provision is

827sa

narrowly tailored to serve a compelling state interest.” Id. at
655. In finding the compelling interest justifying Michigan's
statute, the Court recognized a “different type of corruption in
the political arena” than the appearance of corruption that had
been used to justify Buckley's restrictions on individuals
making independent expenditures. /d. at 660.

As a baseline, the Austin Court reiterated that “‘[p]revent-
ing corruption or the appearance of corruption are the only
legitimate and compelling government interests thus far
identified for restricting campaign finances.”* /d. at 658
(quoting FEC v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 496-97 (1985) (“NCPAC’’)) (alteration in
original). The plaintiff in Austin had argued that because the
restriction at issue focused on independent expenditures, as
opposed to contributions, the danger of corruption or the
appearance of corruption was not present. See Buckley, 424
U.S. at 47 (“Unlike contributions, such independent expendi-
tures may well provide little assistance to the candidate's
campaign and indeed may prove counter-productive. The
absence of prearrangement and coordination of an expendi-
ture with the candidate or his agent not only undermines the
value of the expenditure to the candidate, but also alleviates
the danger that expenditures will be given as a quid pro quo
for improper commitments from the candidate.”).

The Austin Court responded by distinguishing this
language on the basis that it applied to independent
expenditures made by individuals as opposed to those made
by corporations. Austin, 494 U.S. at 659. Indeed, Austin
pointed out that the Court had left open the possibility in
Bellotti, that “a legislature might demonstrate a danger of real
or apparent corruption posed by such expenditures when
made by corporations to influence candidate elections.” /d.
(emphasis added) (citing Bellotti, 435 U.S. at 788 n.26) (“The
importance of the governmental interest in preventing
(corruption of elected representatives through the creation of

828sa

political debts] has never been doubted. The case before us
presents no comparable problem, and our consideration of a
corporation’s right to speak on issues of general public
interest implies no comparable right in the quite different
context of participation in a political campaign for election to
public office. Congress might well be able to demonstrate the
existence of a danger of real or apparent corruption in
independent expenditures by corporations to influence
candidate elections.’’) (emphasis added).

Having set forth this analysis, the Supreme Court found
that regardless of whether the danger of “financial quid pro
quo corruption,” id. at 659 (internal citations and quotation
marks omitted), identified in Buckley as insufficient to uphold
the limitation on independent expenditures made by
individual donors, was present in the case of a corporation (a
question clearly left open in Bellotti), the Court found that a
“different type” of corruption rationale was sufficient to serve
as Michigan’s compelling interest. Jd. at 659, 659-60. The
Austin Court stated this rationale as “the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have
little or no correlation to the public’s support for the
corporation’s political ideas.” /d. at 660. The Supreme Court
was keen to point out that “the mere fact that corporations
may accumulate large amounts of wealth is not the
justification for [Michigan’s restriction on independent
expenditures]; rather, the unique state-conferred corporate
structure that facilitates the amassing of large treasuries
warrants the limit on independent expenditures.” /d.

This “different” theory of corruption was not new as the
Austin Court observed. /d. at 659 (“We therefore have
recognized that ‘the compelling governmental interest in
preventing corruption support[s] the restriction of the
influence of political war chests funneled through the
corporate form.”’) (quoting FEC y. Nat'l. Conservative

829sa

Political Action Committee, 470 U.S. 480, 500-01 (1985)
(“NCPAC’’)) (also citing MCFL, 479 U.S. at 257). In fact, in
MCEL the Court pointed out:

We have described that rationale in recent opinions as
the need to restrict “the influence of political war chests
funneled through the corporate form,” NCPAC, 470 U.S.
at 501; to “eliminate the effect of aggregated wealth on
federal elections,” Pipefitters, 407 U.S. at 416; to curb
the political influence of “those who exercise control
over large aggregations of capital,” [UAW], 352 US. at
585; and to regulate the “substantial aggregations of
wealth amassed by the special advantages which go with
the corporate form of organization,” National Right to
Work Committee, 459 U.S. at 207. This concern over the
corrosive influence of concentrated corporate wealth
reflects the conviction that it is important to protect the
integrity of the marketplace of political ideas.

MCEL, 479 U.S. at 257.

Outside the context of corporations, the Supreme Court has
been generally solicitous of a similar rationale for upholding
Section 441b as applied to labor unions. In Pipefitters and
UAW, as the MCFL Court observed, the Supreme Court
found that the compelling governmental interest behind the
regulation of corporations was applicable to labor unions.
Pipefitters, 407 U.S. at 415-16 (“When Congress prohibited
labor organizations from making contributions or expendi-
tures in connection with federal elections, it was, of course,
concerned not only to protect minority interests within the
union but to eliminate the effect of aggregated wealth on
federal elections.”); UAW, 352 U.S. at 585 (“To deny that
[using union dues to sponsor commercial television
broadcasts designed to influence the electorate to select
certain candidates for Congress in connection with the 1954
elections] constituted an ‘expenditure in connection with any
[federal] election’ is to deny the long series of congressional
efforts calculated to avoid the deleterious influences on

830sa

federal elections resulting from the use of money by those
who exercise control over large aggregations of capital.”). As
noted in NRWC, the government’s interest in enacting such a
provision relates to the fact that labor union members pay
money into a union’s general treasury and that money may be
used to support candidates for office opposed by the
individual union member, NRWC, 459 U.S. at 208, a
justification that applies with equal force to corporate
shareholders. /d. at 207.

Except for the NRA, none of the Plaintiffs who challenge
Title Il explicitly contest the asserted compelling governmen-
tal interests relating to preventing corruption or the
appearance of corruption that emanates from the particular
legal and economic attributes of corporations and labor
unions. Given the longstanding history behind section 441b,
this is not unexpected. Despite this fact, the NRA Plaintiffs
spend significant time in their pleadings asserting that the
compelling interest cannot support sections 203 and 204.
NRA Br. at 9-14; NRA Opp’n at 6-17, NRA Reply at 12-14.
As clarified by their reply brief, the NRA basically argues
that this type of corruption only applies to those corporations
that “use resources amassed in the economic marketplace, to
obtain an unfair advantage in the political marketplace.” NRA
Reply at 12 (quoting Austin, 494 U.S. at 659 (in turn quoting
MCFL, 479 U.S. at 257)). In Austin, the Michigan Chamber
of Commerce, relying on MCFL, contended that the Michigan
statute could not be applied to it because it was a “nonprofit
ideological corporation.” Austin, 494 U.S. at 661. The
Supreme Court flatly rejected this as-applied challenge. Id. at
662-65. In this case, the NRA asserts a similar argument: that
it is unlike the Michigan Chamber of Commerce in Austin,
and therefore, broadly speaking, Title II cannot be justified as
preventing Austin corruption. NRA Reply at 12 (stating that
the NRA does not do business in the economic marketplace,
nor derive market profits, nor derive more than a negligible
portion of its revenues from corporate contributions).

83lsa

Basically, however, the NRA is using Austin as a means of
making an as-applied challenge to BCRA.

To begin with, in MCFL, the Supreme Court stressed that
the rationale for regulating corporations and labor unions was
“longstanding” and used to restrict “the corrosive influence of
concentrated corporate wealth” on federal elections. MCFL,
479 U.S. at 257. The Supreme Court went on to explain that
“(bly requiring that corporate independent expenditures be
financed through a political committee expressly established
to engage in campaign spending, § 441b seeks to prevent this
threat to the political marketplace.” /d. at 258. The resources
available to the segregated fund, the Court reasoned, reflected
“popular support for the political positions of the committee.”
Id. As a result, the Court observed that “[rjegulation of
corporate political activity thus has reflected concern not
about use of the corporate form per se, but about the potential
for unfair deployment of wealth for political purposes.” /d.

Nevertheless, the Supreme Court concluded that the
government could not uphold Section 441b as applied to the
plaintiff in MCFL based on this admittedly “longstanding’
rationale. /d. (“Groups such as MCFL, however, do not pose
that danger of corruption. MCFL was formed to disseminate
political ideas, not to amass capital. The resources it has
available are not a function of its success in the economic
marketplace, but its popularity in the political marketplace.
While MCFL may derive some advantages from its corporate
form, those are advantages that redound to its benefit as a
political organization, not as a profit-making enterprise.”).
Therefore, the Supreme Court never questioned the
government’s asserted compelling interest in regulating
corporations of all types—it merely held that as applied to
MCEL, the rationale was insufficient to support Section
441b’s restrictions.

The NRA would have us believe that this form of
corruption is only available to uphold Section 441b

832sa

restrictions when the corporations being regulated are of the
for-profit variety. NRA Reply at 12. In Austin, and for that
matter in MCFL, the Supreme Court made no distinctions
among different types of corporations when analyzing the
compelling governmental interest. The Austin Court thus
broadly recognized that all corporations benefit from the
“state- conferred corporate structure that facilitates the
amassing of large treasuries.” Austin, 494 U.S. at 660; see
also MCFL, 479 U.S. at 268 (Rehnquist, C.J., concurring in
part, dissenting in part) (“I do not dispute that the threat from
corporate political activity will vary depending on the
particular characteristics of a given corporation; it is obvious
that large and successful corporations with resources to fund
a political war chest constitute a more potent threat to the
political process than less successful business corporations or
nonprofit corporations . . . . These distinctions among corpo-
rations, however are distinctions in degree that do not amount
to differences in kind.”) (emphasis added) (internal citation
and quotation marks omitted). The Court in MCFL merely
held that as applied to the plaintiff in MCFL, Section 441b
could not be upheld by the longstanding compelling
governmental interest present in avoiding the corrosive
effects of large treasuries of corporations accumulated with
the assistance of the corporate form. In Austin, the Court held
that the state statute could be applied to the plaintiff because
the Michigan Chamber of Commerce did not qualify for an
MCFL exemption.

The NRA never directly disputes this proposition; rather,
the organization essenjially contends that like the plaintiff in
MCFL, and unlike the plaintiff in Austin, sections 203 and
204 of BCRA cannot be upheld when applied to the NRA
because as an organization it does not use resources amassed
in the economic marketplace to obtain an unfair advantage in
the political marketplace. NRA Br. at 12; see also NRA
Reply Br. at 12. The NRA implicitly presents the Court with
an as-applied challenge couched in Austin-terms instead of

833sa

those of MCFL. NRA Br. at 14 (“In any event, the NRA
satisfies every criterion identified by the Austin Court for
extending the First Amendment’s protection to the
independent political expenditures of a nonprofit political
advocacy corporation . . . .”’). Of course, in making its
decision that the Michigan Chamber of Commerce did not
qualify for an MCFL as-applied exemption, the Austin Court
was explicitly relying on MCFL. Austin, 494 U.S. at 661-62.

On July 31, 2002, the NRA filed a ioint motion to stay,
inter alia, discovery in this case and agreed that they would
also stay any as-applied challenge they had against BCRA
under MCFL until the Supreme Court resolved the merits of
Plaintiffs’ challenge to BCRA. NRA Joint Mot. to Stay (Jul.
31, 2002) at 1-2. On August 13, 2002, the three-judge District
Court entered an order granting this motion. NRA v. FEC,
02cv581 (D.D.C. Aug. 13, 2002) (order on joint motion to
stay) (“ORDERED that there will be a stay of discovery and
briefing of Plaintiffs’ contention that BCRA’s restrictions on
‘electioneering communications’ are unconstitutional as
applied to them.”). As is clear from their briefing on this
point, with the MCFL avenue closed to them, Plaintiff NRA
uses Austin to argue that BCRA, as applied to them, fails to
satisfy any compelling governmental interest. NRA Reply at
12 (observing that Title II cannot be justified as designed to
present Austin-type corruption because it does not amass
resources in the economic marketplace.).

The NRA should not be able to litigate an as-applied
challenge to Title II in direct violation of the three-judge
panel’s order, requested by the NRA, by merely cloaking
such a challenge under Austin as opposed to MCFL.
Defendants point out that they did not conduct discovery into
the NRA’s business practices on the basis of this order and
therefore are in no position to discuss whether the NRA
deserves an MCFL-type exemption. Gov’t Opp’n at 107
n.109 (“Defendants have, thus, had no opportunity to

834sa

discover facts that might refute, inter alia, NRA’s contention
about its profits derived from business activities.”); Def.-Int.
Opp’n at 67 n.208 (“Indeed, the NRA specifically stipulated
with defendants in this case that its as-applied challenge to
coverage based on MCFL would be stayed pending the
outcome of the general facial challenge. See Joint Motion to

Stay (filed on July 26, 2002), at 2 (granted by the Court on
Aug. 13, 2002).”).

Any | corporation that believes it deserves an MCFL-
exemption may seek an exemption under the FEC’s
regulations-and any arguments relating to the strictness of
those regulations-are open to a challenge at that time, by
making that claim, or by resisting enforcement, just as the
plaintiffs did in Austin and MCFL. Accordingly, the NRA’s
claim has no merit in this litigation, NRA v. FEC, 02cv581
(D.D.C. Aug. 13, 2002) (order on joint motion to stay),'° and

123

In addition to the NRA, the ACLU also hints in its briefing that it
fits within the class of corporations deserving of MCF L-type protection.
See ACLU Br. at 16. I am extraordinarily skeptical that the NRA or the
ACLU fit within the MCFL paradigm, which Justice Brennan, the author
of MCFL described as a “small” class of exempt organizations. Austin
494 U.S. at 672 (Brennan, J., concurring). First, each organization accepts
corporate “oy ACLU Br. at 2 n.2, NRA Br. at 2. In MCFL, the
corporation an explicit policy against acceptin orpora'

contributions. MCFL, 479 U.S. at 264. The NRA sates 4 pe
contributions are “negligible,” NRA Br. at 2, while the ACLU argues that
their corporate donations are “extremely modest,” ACLU Br. at 17. These
statements, themselves, indicate that both organizations would be
minimally burdened if they were to forgo corporate funding so as to
qualify for MCFL status. Nevertheless, the absolute amounts involved-
$85,000 for the ACLU, ACLU Br. at 2 n.2, and $385,000 for the NRA,

NRA Br. at 2-are not petty cash, particularl ompared wi
RA . yc with what
Circuit has found to be de minimis. arin

The D.C. Circuit has held, in a case involving the NRA itself, that an
organization may qualify for an MCFL exemption as long as it is not “a

- potential conduit for corporate funding of political activity.” FEC v. NRA,

254 F.3d 173, 192 (D.C.Cir.2001). In NRA, the court stated that ‘the

835sa
I conclude that the longstanding compelling governmental

interests behind Section 441b are equally applicable to -

Sections 203 and 204 of BCRA.
b. Appearance of Corruption

Moreover, I find that congressional action in this case
could be justified under the rationale that electioneering
communications made with general treasury funds of
corporations and labor unions create an appearance of
corruption. The record powerfully demonstrates that
electioneering communications paid for with the general
treasury funds of labor unions and corporations endears those
entities to elected officials in a way that could be perceived
by the public as corrupting.

In my judgment, the record in this case with regard to
interest group issue advocacy substantially demonstrates the

appro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0664%3A60. Public record. Not legal advice.