Jurisdictional Statement — Federal Election Commission v. McConnell United States Senator

Supreme Court brief2003

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Text

. 921676 * 1

No.

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In the Supreme Court of the United States

FEDERAL ELECTION COMMISSIUN, ET AL., APPELLANTS

SENATOR MITCH MCCONNELL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor Genera!

MALCOLM L. STEWART

LAWRENCE H. NORTON GREOORVY G.GARRE

General Counsel Assistants to the Solicitor

RICHARD B. BADER General

Associate General Counsel DOUGLAS N. LETTER

JAMES J. GILLIGAN

— apna K — MICHAELS. RAAB

Assistant General Counsels D 7 J. MARTIN

Federal Election orneys .

Commission Department of Justice

Washington, D.C. 20463 Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

In March 2002, the President signed into law the

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.

L. No. 107-155, 116 Stat. 81. BCRA is designed to

address various abuses associated with the financing of

federal election campaigns and thereby protect the in-

tegrity of the federal electoral process. The questions

presented are as follows:

1. Whether the limitations on political parties im-

posed by Section 101 of BCRA are constitutional.

2. Whether the funding limitations and disclosure

requirements imposed by Sections 201 and 203 of

BCRA with respect to “electioneering communications”

are constitutional.

3. Whether the limitations imposed by Section 213 of

BCRA on coordinated expenditures by a political party

committee are constitutional.

4. Whether the prohibition imposed by Section 318

of BCRA on contributions to federal candidates or po-

litical party committees made by minors is constitu-

tional.

5. Whether the reporting and record-keeping re-

quirements imposed on broadcast stations by Section

504 of BCRA are constitutional.

(I)

PARTIES TO THE PROCEEDINGS

This jurisdictional statement is filed on behalf of the

following appellants: the Federal Election Commission

(FEC) and David W. Mason, Ellen L. Weintraub,

Danny L. McDonald, Bradley A. Smith, Scott E.

Thomas, and Michael E. Toner, in their capacities as

Commissioners of the FEC; John D. Ashcroft, in his

capacity as Attorney General of the United States; the

United States Department of Justice; the Federal

Communications Commission; and the United States of

America. Those parties were defendants in the district

court (current FEC Commissioners Weintraub and

Toner replaced former Commissioners Karl J. Sand-

strom and Darryl R. Wold, who were originally named

as defendants).

The following parties were intervenor-defendants in

the district court: Senator John McCain; Senator

Russell Feingold; Representative Christopher Shays;

Representative Martin Meehan; Senator Olympia

Snowe; and Senator James Jeffords.

The following parties were plaintiffs in the district

court: Senator Mitch McConnell; Representative Bob

Barr; Representative Mike Pence; Alabama Attorney

General Bill Pryor; Libertarian National Committee,

Inc.; Alabama Republican Executive Committee, as

governing body for the Alabama Republican Party;

Libertarian Party of Illinois, Inc.; DuPage Political

Action Council, Inc.; Jefferson County Republican

Executive Committee; American Civil Liberties Union;

Associated Builders and Contractors, Inc.; Associated

Builders and Contractors Political Action Committee;

Center for Individual Freedom; Christian Coalition of

America, Inc.; Club for Growth, Inc.; Indiana Family

Institute, Inc.; National Right to Life Committee, Inc.;

III

National Right to Life Educational Trust Fund; Na-

tional Right to Life Political Action Committee; Na-

tional Right to Work Committee; 60 Plus Association,

Inc.; Southeastern Legal Foundation, Inc.; U.S. d/b/a

ProENGLISH; Martin Connors; Thomas E. McInerney;

Barret Austin O’Brock; Trevor M. Southerland; Na-

tional Rifle Association of America; National Rifle

Association Political Victory Fund; Emily Echols, a

minor child, by and through her next friends Tim and

Wendy Echols; Hannah McDow, a minor child, by and

through her next friends Tim and Donna McDow; Isaac

McDow, a minor child, by and through his next friends

Tim and Donna McDow; Jessica Mitchell, a minor child,

by and through her next friends Chuck and Pam

Mitchell; Daniel Solid, a minor child, by and through his

next friends Kevin and Bonnie Solid; Zachary C. White,

a minor child, by and through his next friends John and

Cynthia White; Republican National Committee

(RNC); Mike Duncan as member and Treasurer of the

RNC; Republican Party of Colorado; Republican Party

of Ohio; Republican Party of New Mexico; Dallas

County (Iowa) Republican County Central Committee;

California Democratic Party; Art Torres; Yolo County

Democratic Central Committee; California Republican

Party; Shawn Steel; Timothy J. Morgan; Barbara Alby;

Santa Cruz County Republican Central Committee;

Douglas R. Boyd, Sr.; Victoria Jackson Gray Adams;

Carrie Bolton; Cynthia Brown; Derek Cressman;

Victoria Fitzgerald; Anurada Joshi; Peter Kostmayer;

Nancy Russell; Kate Seely-Kirk; Rose Taylor; Stepha-

nie L. Wilson; California Public Interest Research

Group; Massachusetts Public Interest Research Group;

New Jersey Public Interest Research Group; United

States Public Interest Research Group; The Fannie

Lou Hamer Project; Association of Community Orga-

nizers for Reform Now; Chamber of Commerce of the

United States; National Association of Manufacturers;

National Association of Wholesaler-Distributors; U.S.

Chamber Political Action Committee; American Fed-

eration of Labor and Congress of Industrial Organiza-

tions; AFL-CIO Committee on Political Education

Political Contributions Committee; Representative Ron

Paul; Gun Owners of America, Inc.; Gun Owners of

America Political Victory Fund; Real Campaign

Reform.Org; Citizens United; Citizens United Political

Victory Fund; Michael Cloud; Carla Howell;

Representative Bennie G. Thompson; Representative

Earl F. Hilliard; and National Association of Broad-

casters.

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Constitutional and statutory provisions involved = 1

Statement 2

The questions presented are substantial 20

Conclusion 29

Appendix A la

Appendix B Ta

Appendix C 9a

Appendix D 10a

Appendix E l4a

TABLE OF AUTHORITIES

Cases:

Austin v. Michigan Chamber of Commerce, 494 US.

652 (1990) 24

Buckley v. Valeo, 424 U.S. 1 (1976) 2, 3, 7, 10

CBS v. FCC, 453 U.S. 367 (1981) . 28

Colorado Republician Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) 13, 14

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) 2, 14, 23

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.

(1986) 10, 14, 24

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

(1982) 2, 3, 5, 12, 20

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) 20

Miller v. FCC, 66 F.3d 1140 (11th Cir. 1995), cert.

denied, 517 U.S. 1155 (1996) 15

Pipefitters Local Union No. 562 v. United States,

407 U.S. 385 (1972) 2,5

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) .... 28

Cases—Continued: Page

United States v. Automobile Workers, 352 U.S. 567

(1957) 2-3, 4, 5, 20

United States v. CIO, 335 U.S. 106 (1948) 3

United States v. Lanier, 520 U.S. 259 (1997) 26

US. Const.: -

Art. I. §4,Cl.1 1

Amend. I 1, 14, 16, 20, 28

Amend. V 1, 16

Amend. X 2, 16

Amend. XXVI 28

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81 2

Tit. I, 116 Stat. 82 7,17

§ 101(a) 7, 22, 23

§ 101(b) 9, 17, 21, 22

§ 102 4

Tit. II, 116 Stat. 88 10, 11, 13, 18

§ 201 ... 26

§ 201(a) 11, 12, 26

§ 203 11, 26

§ 213 14, 17, 27

§ 214(a) 14

§ 214(b) 14

§ 214(c) 14

Tit. III, 116 Stat. 95:

§ 305 15

§ 305(a)(3) 15

§ 307 4

§ 307(d) 4

§ 318 15, 17, 19

§ 319 28

Tit. IV, 116 Stat. 112:

§ 403(a) 16

§ 403(a)(3) 2, 20

VII

Statutes and regulations Continued: Page

§ 403(a)(4) 20

Tit. V, 116 Stat. 114:

§ 504 15, 16, 17, 20, 28, 29

Communications Act of 1934, 47 U.S.C. 151 et seq.:

47 US.C. 315 15

47 US.C. 315(b)(1) 15

47 U.S.C. 315(b)(2)(A) 15

47 US.C. 315 C) 15

47 US.C. 3150) 15

47 US.C. 315(e\(1) 16

47 U.S.C. 315(e\(2) 16

Federal Corrupt Practices Act, 1925, ch. 368, 43 Stat.

1070:

§ 302, 43 Stat. 1071 4

§ 318, 43 Stat. 1074 4

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. 3

2 U.S.C. 431:

§ 301(20 Ai) 22

§ 301(20)AXi)-(iv) 9, 22

§ 301(20)(A (ii) 22

§ 301(20)A \(iii) 17

§ 301(20) Avi) 22

2 U.S.C. 431(4)(B) (2000) 12

2 U.S.C. 431(8)(A)(i) (2000) 6

2 U.S.C. 431(9)(A)(ii) (2000) 27

2 U.S.C. 431(9)(B)(iii) (2000) 12

2 U.S.C. 432-434 (2000) 5

2 U.S.C. 434:

§ 304(f)(1)-(2) 12

§ 304(f)(3) 11

§ 304(f(3)(A Mii) 11, 26

§ 304(f (5) 13, 26, 27

2 U.S.C. 434(c) (2000) 2 10

2 U.S.C. 437e(b)(1) (2000) 5

2 U.S.C. 437d(a) (2000) 5

VIII

Statutes and regulations Continued: Page

2 U.S.C. 437g (2000) 5

2 U.S.C. 441a(a) (2000) 14

2 U.S.C. 441a(a)(1) (2000) 4

2 U.S.C. 441a(a)(1)-(4) (2000) 4

2 U.S.C. 44la(a)(2)(A) (2000) 13

2 U.S.C. 44la(aX(7 Bi) (2000) 13

2 U.S.C. 441la(c) (2000) 13

2 U.S.C. 441a(d) (2000) 4, 13, 14, 27

2 U.S.C. < ila(d)(2)-(3) (2000) 13

2 U.S.C. 441b (2000) : 4, 10, 24

2 U.S.C. 441b(b)(2) (§ 316(b)(2)) 11,12

2 U.S.C. 441b(b)(2)(C) (2000) 12

2 U.S.C. 441(b)(4) (2000) 12

2 U.S.C. 44li:

§ 323(a) 21

§ 323(a)(1) 7,8

§ 323(b) 8, 21

§ 323(b)(1) 8, 22

§ 323(b)(2) 9

§ 323(d) 9, 23

§ 323(e)(1)A) y

§ 323(e)(1B) 4

§ 323(e)\(2)-(4) 10

§ 323(f) 10

Internal Revenue Code:

26 U.S.C. 501(c) 4

26 U.S.C. 527 — 95

Smith Connally Act, ch. 144, § 9, 57 Stat. 167-168 4

Taft-Hartley Act of 1947, f 304, ch. 120 61 Stat. 159 4

Tillman Act, ch. 420, 34 Stat. 864-865 4

11 C.F.R. (2002):

Section 104.11(b) (2003) 27

Section 106.5 6

Section 106.5(a\(2\i) 6

Section 106.50 2)(iv) 6

Section 106.5(b) 6

Regulations—Continued:

Section 106.5(c) : -

Section 106.5(d) : —

Section 110.7(b)(3) * 5

TK R . ———

BORIS nn1ł1łç„＋!Vu

47 C. F. R.:

Section 73.1212(e) 8

. — — —

. — —

Section 76.1701(d)

Miscellaneous:

147 Cong. Rec. 83251 (daily ed. Apr. 2, 2001)

67 Fed. Reg. 65,211 (2002) — —„

SERB 22 2 2 |

= w

In the Supreme Court of the United States

No.

FEDERAL ELECTION COMMISSION, ET AL., APPELLANTS

SENATOR MITCH MCCONNELL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinions of the district court are not yet

reported. See App., infra, ga.

JURISDICTION

The judgment of the district court was entered on

May 2, 2003. Notices of appeal (App., infra, la-6a, 7a-

8a) were filed by the Federal Election Commission on

May 2, 2003, and by the other appellants on May 5,

2003. The jurisdiction of this Court is invoked under

the Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, § 403(a)(3), 116 Stat. 113-114.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article I, Section 4, Clause 1 of the United States

Constitution is reproduced at App., infra, 10a.

2. The First Amendment to the United States Con-

stitution is reproduced at App., infra, IIa. }

3. The Fifth Amendment to the United States Con-

stitution is reproduced at App., infra, 12a.

(1)

4. The Tenth Amendment to the United States

Constitution is reproduced at App., infra, 13a.

5. The Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81, is reproduced at App.,

infra, 14a-49a.

STATEMENT

This case presents a facial challenge to the constitu-

tionality of the Bipartisan Campaign Reform Act of

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81. A

three-judge panel of the District Court for the District

of Columbia held that several provisions of BCRA

violate the First Amendment to the Constitution.

Congress has vested this Court with direct appellate

jurisdiction over the district court’s decision. See

BCRA § 403(a)(3).

1. “{Tjhe history of federal campaign finance regu-

lation, having its origins in the Administration of

President Theodore Roosevelt, is a long-standing and

recurring problem that has challenged our government

for nearly half of the life of our Republic.” Per Curiam

op. 16; see Kollar-Kotelly op. 6 (“over the course of the

last century, the political branches have endeavored to

protect the integrity of federal elections with carefully

tailored legislation addressing corruption or the appear-

ance of corruption inherent in a system of donor-fi-

nanced campaigns”). This Court has previously can-

vassed the history of such regulation and has repeat-

edly recognized Congress’s authority to protect the

integrity of federal elections and prevent corruption of

federal office-holders. See, e.g., FEC v. Colorado Re-

publican Fed. Campaign Comm., 533 U.S. 431 (2001)

(Colorado II); FEC v. National Right to Work Comm.,

459 U.S. 197 (1982) (NRWC); Buckley v. Valeo, 424 U.S.

1 (1976) (per curiam); Pipefitters Local Union No. 562

v. United States, 407 U.S. 385 (1972); United States v.

Automobile Workers, 352 U.S. 567 (1957); United States

v. CIO, 335 U.S. 106 (1948). In particular, Congress has

sought to eliminate the actual and apparent corruption

associated with unrestricted political fundraising and

spending, in order “to sustain the active, alert

responsibility of the individual citizen in a democracy

for the wise conduct of government.” Automobile

Workers, 352 U.S. at 575; see NRWC, 459 U.S. at 208-

209.

As the district court explained (Per Curiam op. 16-

42), the history of Congress’s efforts to ensure the

integrity of the federal electoral process has followed a

pattern of congressional action to respond to particular

electoral abuses; attempts by those in the regulated

community to circumvent the limitations established by

the applicable regulatory scheme; and congressional

action to “plug [an] existing loop-hole.” Automobile

Workers, 352 U.S. at 582. After years of deliberation

and debate, Congress enacted BCRA in response to

“burgeoning problems with federal campaign finance

laws.” Per Curiam op. 42. In crafting that legislation,

Members of Congress drew upon their own unique

experience and familiarity with the problems to which

BCRA is addressed as central participants in the fed-

eral campaign system.

2. a. BCRA amends the Federal Election Campaign

Act of 1971 (FECA), 2 U.S.C. 431 et seg., which regu-

lates the financing of federal election campaigns.

FECA was intended to reduce “the actuality and ap-

pearance of corruption” resulting from the “opportuni-

ties for abuse inherent in a regime of large individual

financial contributions.” Buckley, 424 U.S. at 26-27.

Before BCRA was enacted, FECA’s central features

included limitations on the amounts that individuals and

political committees could contribute to candidates for

federal office, political party committees, and indepen-

dent political committees. See 2 U.S.C. 441a(a)(1)-(4),

441a(d) (2000). FECA also continued in effect long-

standing prohibitions against the use of general trea-

sury funds by corporations and labor unions for the

purpose of influencing federal elections. See 2 U.S.C.

441b (2000).? In addition, FECA included a variety of

' Before BCRA was enacted, individuals were permitted to

contribute up to $20,000 to any national political party committee

and up to $5000 to any other political committee in any calendar

year, and up to $1000 per election to any candidate for federal

office, with an overall annual limit of $25,000 by any contributor. 2

U.S.C. 441a(a)(1) (2000). Under BCRA, those limits have been

increased to $25,000 per year to any national political party com-

mittee, $10,000 per year to any state party committee, and $2000

per election to any federal candidate. See BCRA §§ 102, 307. The

overall annual limit is now $37,500 per election cycle for contribu-

tions to candidates and $57,500 for other contributions (of which

not more than $37,500 may be attributable to contributions to

political committees that are not national party committees). See

BCRA § 307. BCRA also provides that most of the current contri-

bution limits are indexed for inflation. See BCRA § 307(d);

Henderson op. 339. One set of plaintiffs in this litigation chal-

lenged the constitutionality of the increased contrbution limits, but

the district court held that the plaintiffs lacked standing. See Per

Curiam op. 11, 15; Henderson op. 338-342.

2 In 1907, Congress first prohibited any corporation from mak-

ing a “money contribution” in connection with federal elections.

Tillman Act, ch. 420, 34 Stat. 864-865. Congress later extended the

prohibition on corporate contributions to “anything of value.”

Federal Corrupt Practices Act, 1925 (FCPA), ch. 368, §§ 302, 318,

43 Stat. 1071, 1074. The FCPA also made it a crime for a candidate

to accept corporate contributions. 43 Stat. 1074. In 1943, tem-

porary wartime legislation extended the proscription against cor-

porate campaign contributions to labor organizations. Smith-Con-

nally Act, ch. 144, § 9, 57 Stat. 167-168; see Automobile Workers,

352 U.S. at 578. The Taft-Hartley Act of 1947, ch. 120, § 304, 61

Stat. 159, again amended the FCPA “to proscribe any ‘expen-

diture’ as well as ‘any contribution’ [and] to make permanent [the

recordkeeping and disclosure requirements that were

intended to inform the electorate, deter corruption, and

facilitate detection of violations of the contribution and

expenditure limits. See 2 U.S.C. 432-434 (2000).

Congress also established the Federal Election

Commission (FEC) to administer and enforce FECA.

See generally 2 U.S.C. 437¢(b)(1), 437d(a), 437g (2000).

b. “In the area of campaign finance regulation,

congressional action has been largely incremental and

responsive to the most prevalent abuses or evasions of

existing law at particular points in time.” Kollar-

Kotelly op. 6; see Per Curiam op. 16-42 (reviewing Con-

gress’s incremental approach to campaign-finance re-

gulation); NRWC, 459 U.S. at 209 (discussing Con-

gress’s “cautious,” “step by step” approach). In en-

acting BCRA, Congress sought principally to address

(1) the acceptance and use by political parties of “soft

money” (i. e., money raised outside the framework of

FECA’s disclosure requirements and source and

amount limits) for the purpose of influencing federal

elections; and (2) the growing use of corporate and

union general treasury funds for communications

designed to influence, and generally known to influence,

the outcome of federal elections. “Broadly speaking,

Title I [of BCRA] attempts to regulate political party

use of nonfederal funds, while Title II seeks to prohibit

FCPA's] application to labor organizations.” Automobile Workers,

352 U.S. at 582-583. FECA permitted corporations and unions to

establish and administer separate, segregated accounts for the

purpose of making political contributions and expenditures using

funds collected from stockholders, members, executive and admini-

strative personnel, and their families. See Pipefitters Local Union

No. 562 v. United States, 407 U.S. 385, 387, 409-410 (1972). Al-

though BCRA added new restrictions on certain “electioneering”

activities of corporations and labor unions, it left the basic pro-

hibitions on corporate and union treasury contributions unaffected.

labor union and corporate treasury funds from being

used to run issue advertisements that have an

ostensible federal electioneering purpose.” Per Curiam

op. 50.

i. Before BCRA was enacted, application of FECA’s

disclosure requirements and source and amount limita-

tions to funds received by a national or state political

party turned on whether the relevant funds were used

“for the purpose of influencing any election for Federal

office.” 2 U.S.C. 431(8)(A)(i) (2000). Political parties

were permitted to raise and spend soft money for ac-

tivities intended to influence the nomination or election

of candidates for state or local office. With respect to

various “party-building” activities (e.g., get-out-the-

vote drives, or generic party advertising), which could

be expected and presumably were intended to influence

the outcome of both federal and non-federal elections,

prior FEC regulations established allocation formulas

specifying the extent to which soft money could be

used. See generally 11 C.F.R. 106.5 (2002) (expired)

(providing for allocation of expenses between federal

and non-federal accounts).

From 1990 until the recent promulgation of new regulations

implementing BCRA, FEC rules required party committees that

chose to establish federal accounts to allocate a portion of their

“{ajdministrative expenses” (11 C.F.R. 106.5(a)(2)(i) (2002)) and

expenses for Iglenerie voter drives,” which included “voter identi-

fication, voter registration, and get-out-the-vote drives, or any

other activities that urge the general public to register, vote or

support candidates of a particular party or associated with a par-

ticular issue, without mentioning a specific candidate.” 11 C.F.R.

106.5(a)(2)(iv) (2002). National party committees were required to

allocate at least 65% of those expenses to federal accounts during

presidential election years, and at least 60% in non-presidential

election years. 11 C.F.R. 106.5(b) and (c) (2002). For state and

local parties, the allocation was determined by the proportion of

In recent years, however, soft money contributions to

political parties have increased dramatically. Soft

money has been used, inter alia, to purchase advertise-

ments that have featured federal candidates but have

not expressly advocated a particular electoral result.

See Per Curiam op. 38. The parties have paid for such

advertisements “with a mix of federal and nonfederal

funds as permitted by FEC allocation rules.” Ibid.

Under the pre-BCRA regime, national party funds

were often transferred to state parties for use in such

activities because FEC regulations established more

favorable allocation formulas (i.e., permitted greater

use of soft money) for state than for national party com-

mittees. See id. at 38-39. Congress ultimately con-

cluded that the effect of such practices was to enable

corporations, labor unions, and wealthy individuals to

make unlimited and unreported contributions to

political parties that were in turn used to benefit fed-

eral candidates, thus reintroducing the “opportunities

for abuse inherent in a regime of large * * * financial

contributions” that FECA was intended to foreclose.

Buckley, 424 U.S. at 27.

Congress enacted Title I of BCRA to address the

opportunities for real or apparent corruption presented

when donors make contributions to political parties in

amounts that exceed FECA’s contribution limits, and

the probleais caused by the growing use of soft money

for activities that are designed and generally known to

influence federal elections. BCRA § 101(a) adds a new

FECA § 323 (to be codified at 2 U.S.C. 441i). New

FECA § 323 consists of several interrelated provisions

that work together to ensure “that national parties,

federal officeholders and federal candidates use only

federal offices to all offices on the state’s general election ballot.

See 11 C. F. R. 106.5(d) (2002).

funds permitted in federal elections to influence federal

elections, and that state parties stop serving as vehicles

for channeling soft money into federal races to help

federal candidates.” 147 Cong. Rec. S3251 (daily ed.

Apr. 2, 2001) (Sen. Thompson).

New FECA S 323(a)(1) vrovides that Ja] national

committee of a politics party (including a national

congressional campaign committee of a political party)

may not solicit, receive, or direct to another person a

contribution, donation, or transfer of funds or any other

thing of value, or spend any funds, that are not subject

to the limitations, prohibitions, and reporting require-

ments of [the FECA].” Under new FECA § 323(a)(2),

that ban applies to the national committee itself and to

“any officer or agent acting on behalf of such a national

committee, and any entity that is directly or indirectly

established, financed, maintained, or controlled by such

a national committee.” “The clear import of [Section

323(a)] is that national party committees are banned

from any involvement with nonfederal money.” Per

Curiam op. 58. BCRA imposes no limits on how the

national party committees may spend their money; it

simply requires that all national party funds must be

raised in accordance with the longstanding disclosure

requirements and source and amount limitations im-

posed by FECA.

New FECA § 323(b) addresses the use of soft money

by state and local party committees. Section 323(b)(1)

provides as a general rule that any disbursements made

by a state, district, or local committee of a political

party for “Federal election activity” must “be made

from funds subject to the limitations, prohibitions, and

reporting requirements of FECA].“ The term “Federal

election activity” is defined to include (i) voter regis-

tration activity within the 120 days before a federal

election; (ii) get-out-the-vote and similar generic cam-

paign activities “conducted in connection with an

election in which a candidate for Federal office appears

on the ballot”; (iii) any “public communication that

refers to a clearly identified candidate for federal office

* * * and that promotes or supports a candidate for

that office, or attacks or opposes a candidate for that

office”; and (iv) all services provided by any employee

who devotes more than 25% of his compensated time to

activities in connection with federal elections. See

BCRA S 101(b) (adding FECA S 301(20)(A)(i)-(iv)).

New FECA § 323(b)(2)—known as the “Levin Amend-

ment”—establishes exceptions to that general rule,

authorizing state-level party committees to use soft

money in limited amounts, raised under certain restric-

tions, to fund an allocated portion of specified activities

that affect both federal and state elections. See Per

Curiam op. 58-59.

New FECA § 323(d) prohibits political party com-

mittees from soliciting any funds for, or making or di-

recting any donations to, certain organizations de-

scribed in Sections 501(c) and 527 of the Internal Reve-

nue Code (26 U.S.C.). See Per Curiam op. 60-61. New

FECA § 323(e)(1)(A) generally prohibits federal can-

didates and officeholders from soliciting, receiving,

directing, transferring, or spending any soft money in

connection with an election for federal office. Per

Curiam op. 61. New FECA § 323(e)(1)(B) permits

federal candidates to raise money in connection with

state and local elections, but only in amounts that do

not exceed federal contribution limits and only from

sources that are permitted to donate to federal cam-

paigns. Per Curiam op. 61-62. Federal candidates and

officeholders are permitted to attend fundraising

events for state, district, or local committees of a politi-

cal party and to make certain solicitations on behalf of

nonprofit organizations. See FECA § 323(e)(2)-(4); Per

Curiam op. 62. Finally, new FECA § 323(f) prohibits

any state or local officeholder, or any candidate for such

office, from spending soft money for a “public commu-

nication that ‘refers’ to a clearly identified candidate for

federal office * * and ‘promotes,’ ‘supports,’

‘attacks,’ or ‘opposes’ a candidate for that office.” Per

Curiam op. 63.

ii. Title II of BCRA addresses the escalating use of

union and corporate treasury funds for broadcast ad-

vertising that, while clearly intended to influence the

outcome of federal elections, escaped federal regulation

under the prior legal regime. Federal law has long

prohibited corporations and labor unions from spending

general treasury funds to influence federal elections.

See p. 4 & note 2, supra; 2 U.S.C. 441b (2000). This

Court, however, has interpreted both FECA’s prohibi-

tion of corporate and union spending on federal elec-

tions (see 2 U.S.C. 441b (2000)) and FECA’s require-

ments for disclosure of independent political expendi-

tures (see 2 U.S.C. 434(c) (2000)) to apply only to com-

munications that expressly advocate the election or

defeat of a candidate for federal office—i.e., those using

so-called “magic words” such as “vote for,” “elect,”

“defeat” or “reject.” See Buckley, 424 U.S. at 44 n.52;

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.

238, 249 (1986) (MCFL). In recent years, corporations

and unions have made increasing use of so-called “issue

advocacy” campaigns, disseminating advertisements

that praise or denounce a candidate for federal office

but do not in express terms urge his election or defeat.

See Per Curiam op. 41-42. Because those

advertisements do not include words of express

ad vocacy, the expenditures used to finance them

escaped regulation under FECA.

Subtitle A of Title II of BCRA reflects Congress’s

effort to identify more precisely those advertisements

that are intended to influence federal elections, by

defining a new category of “electioneering communica-

tions” in a manner that does not depend on the use of

“magic words” of express advocacy. New FECA

§ 304(f)(3)(A)(i) (added by BCRA § 201(a)) defines the

term “electioneering communication” to mean a tele-

vision or radio communication that “refers to a clearly

identified candidate for Federal office”; is made within

the 60 days before the federal general election, or the

30 days before the federal primary election, in which

the identified candidate is running; and is “targeted to

the relevant electorate” (i.e., it can be received by at

least 50,000 persons in the State or district where the

election is to be held). See Per Curiam op. 63-64.

BCRA also includes a backup definition of the term

“electioneering communication,” to be used in the event

that the primary definition is held to be uncon-

stitutional. Under the backup definition, “the term

‘electioneering communication’ means any broadcast,

cable, or satellite communication which promotes or

supports a candidate for [federal] office, or attacks or

opposes a candidate for that office (regardless of

whether the communication expressly advocates a vote

for or against a candidate) and which also is suggestive

of no plausible meaning other than an exhortation to

vote for or against a specific candidate.” BCRA §

201(a) (adding FECA § 304(f)(3)(A)(ii)); see Per Curiam

op. 64-65.

BCRA § 203(a) amends FECA § 316(b)(2) (2 U.S.C.

441b(b)(2)) to provide that corporate and labor union

general treasury funds may not be used to finance

“electioneering communications” as defined in BCRA.

See Per Curiam op. 65. “The prohibition on elec-

tioneering communications only applies to the general

treasury funds of national banks, corporations, and

labor unions, or any other person using funds donated

by these entities.” Ibid. Because BCRA does not alter

the pre-existing FECA provisions that allow

corporations and labor unions to use funds from sepa-

rate segregated accounts (or “PACs”) for the purpose

of influencing federal elections, such funds may lawfully

be used to sponsor electioneering communications. See

2 U.S.C. 441b(b)(2)(C) and (4) (2000); Per Curiam op. 65-

66; see also NRWC, 459 U.S. at 200 n.4 (a “separate

segregated fund may be completely controlled by the

sponsoring corporation or union“).

New FECA § 304(f)(1)-(2) (added by BCRA § 201(a))

requires that any person who spends more than $10,000

on electioneering communications in a calendar year

must file statements with the FEC that, inter alia,

identify the persons making the disbursements, those

* FECA permits unions and corporations to use treasury funds

to establish and administer “separate segregated fund[s] to be

utilized for political purposes.” 2 U.S.C. 441b(b)(2)(C) (2000); see

note 2, supra. Such a fund (commonly called a “PAC”) is a political

committee under FECA. See 2 U.S.C. 431(4)(B) (2000). The fund

can solicit and receive voluntary contributions (subject to the

source and amount limits imposed by FECA) from corporate em-

ployees and stockholders, from union members, from members of a

membership corporation, and from their families. 2 U.S.C.

441b(b)(4)(A)-(C) (2000). Those funds can be contributed to federal

candidates (subject again to FECA’s contribution limits) or used to

pay for independent expenditures or electioneering communica-

tions. Corporations and unions may also use treasury funds to

finance communications on any subject with their stockholders,

executive and administrative personnel, and their “members.” 2

U.S.C. 431(9)(B)(iii), 441b(b)(2) (2000); see Per Curiam op. 65-66.

to whom the disbursements were made, and the per-

sons who contributed $1000 or more to the persons

making the disbursement. New FECA § 304(f)(5)

(added by BCRA § 201(a)) provides that ¶flor purposes

of this subsection, a person shall be treated as having

made a disbursement if the person has executed a

contract to make the disbursement.”

iii. Title II of BCRA also addresses the treatment of

campaign expenditures that are coordinated between

candidates and their political parties. FECA has long

treated such expenditures as contributions, see 2

U.S.C. 441a(a)(7)(B)(i) (2000); see also Henderson op.

244, which are subject to the same source and amount

limitations that apply to any other contribution. Under

FECA, however, political party committees are per-

mitted to make coordinated expenditures in amounts

substantially greater than the limits that apply to other

donors. Thus, while other multi-candidate political

committees can contribute no more than $5000 per

election to a candidate, see 2 U.S.C. 441a(a)(2)(A)

(2000), party committees are permitted to make con-

tributions in the form of coordinated expenditures that

far exceed that limit, see 2 U.S.C. 44la(d) (2000);

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604, 610-611 (1996) (opinion of Breyer, J.)

(Colorado J). Under this Court’s decision in Colorado

National and state party committees are permitted to make

coordinated expenditures of up to two cents multiplied by the

voting age population of the United States for a Presidential

candidate; the greater of $20,000 or two cents multiplied by the

voting age population of a State for the State’s candidate for

Senato:, and $10,000 for a candidate for Representative. See 2

U.S.C. 441a(d)(2)-(3) (2000). Those limits are adjusted each year

for inflation. 2 U.S.C. 441la(c) (2000). In the year 2000, the limits

on those additional coordinated expenditures ranged from $33,780

to $67,560 for House of Representative races and, for Senate races,

I, political party committees have a First Amendment

right to make unlimited independent expenditures to

support their candidates. See id. at 608, 618 (opinion of

Breyer, J.); see also id. at 627-631 (opinion of Kennedy,

J.); id. at 644-648 (opinion of Thomas, J.).

BCRA § 213 alters the range of spending options

available to a party committee once the party has

nominated a candidate for a particular federal election.

Under Section 213, the party must choose, for the

remainder of the election cycle, either (1) to forgo

independent expenditures in support of that candidate,

while remaining subject to the increased coordinated-

expenditure limits applicable to political parties under 2

U.S.C. 441a(d) (2000); or (2) to make unlimited inde-

pendent expenditures in support of that candidate,

while abiding by the $5000 limit on contributions and

coordinated expenditures applicable to all other

multicandidate political committees.

BCRA § 214(a) provides that expenditures made in

coordination with political party committees will be

treated as contributions to the party. Section 214(a)

parallels pre-existing FECA provisions under which

expenditures made in coordination with candidates are

treated as contributions to the candidate. See Per

Curiam op. 74-75; p. 13, supra. BCRA § 214(b) repeals

pre-existing FEC regulations concerning coordinated

communications that are paid for by persons other than

candidates or parties, and BCRA § 214(c) directs the

from $67,560 to $1.6 million. See Colorado II, 533 U.S. at 439 n.3.

The FEC interprets Section 44la to permit national and state

political parties to make direct contributions to a candidate of up to

$5000 (the limit applicable to contributions by political committees

generally under Section 441a(a)) in addition to the coordinated ex-

penditures authorized by Section 44la(d). See, eg. 11 C.F.R.

110.7(b)(3) (2002).

FEC to promulgate new regulations on the subject that

“shall not require agreement or formal collaboration to

establish coordination.” See Per Curiam op. 75.

iv. BCRA § 318 prohibits individuals who are less

than 18 years old from making contributions to can-

didates or political party committees. See Per Curiam

op. 79. ;

v. BCRA §§ 305 and 504 amend Section 315 of the

Communications Act of 1934, 47 U.S.C. 315. The Com-

munications Act requires stations to sell broadcast time

to a candidate at the “lowest unit charge” during the 45-

day period before a federal primary election or the 60-

day period before a federal general election. 47 U.S.C.

315(b)(1).° Under BCRA § 305, a candidate is entitled

to obtain the “lowest unit charge” only if he satisfies

one of two requirements. First, the candidate may

certify in writing that neither he nor any authorized

committee will make any “direct reference to another

candidate for the same office” during the broadcast

advertisement. BCRA § 305(a)(3) (adding 47 U.S.C.

315(b)(2)(A)). Alternatively, “[t]he candidate can be ex-

empted from this provision, and thus be eligible for the

lowest unit charge without such a promise, if the

candidate clearly identifies himself at the end of the

broadcast and states that he approves of the broad-

cast.” Per Curiam op. 77; see BCRA § 305(a)(3) (adding

47 U.S.C. 315(b)(2)(C) and (D).

BCRA § 504 requires a broadcast station to maintain

and make publicly available a complete record of re-

quests to purchase broadcast time “made by or on

behalf of a legally qualified candidate for public office”

The “lowest unit charge” provision was added to the Com-

munications Act, 47 U.S.C. 315, in 1972 as part of FECA. See

Miller v. FCC, 66 F.3d 1140, 1142 (11th Cir. 1995), cert. denied, 517

U.S. 1155 (1996).

—

or to broadcast a “message relating to any political

matter of national importance,” including “a legally

qualified candidate,” “any election to Federal office,” or

“a national legislative issue of public importance.”

BCRA § 504 (adding 47 U.S.C. 315(e)(1)). The record

created by the licensee must include “the name of the

person purchasing the time, the name, address, and

phone number of a contact person for such person, and

a list of the chief executive officers or members of the

executive committee or of the board of directors of such

person.” BCRA § 504 (adding 47 U.S.C. 315(e)(2)). ~

3. Pursuant to BCRA § 403(a), a variety of indivi-

duals, party committees, interest groups, and others

filed 11 separate lawsuits, alleging that BCRA on its

face violates the First, Fifth, and Tenth Amendments

to the Constitution. The FEC, the individual FEC

Commissioners, the Federal Communications Com-

mission, the Department of Justice, and the Attorney

General were named as defendants. The United States

intervened as a defendant to defend the constitu-

tionality of BCRA. The principal sponsors of BCRA

also were granted leave to intervene as defendants.

After extensive discovery was completed, the three-

judge district court upheld some provisions of the

statute; found that some of the constitutional challenges

were nonjusticiable, and invalidated other BCRA

provisions and enjoined their enforcement and appli-

cation. The district court issued a per curiam opinion

that summarized the court’s disposition of the various

constitutional challenges (see Per Curiam op. 5-15);

discussed the history of federal campaign finance regu-

lation (id. at 16-42); described the provisions of the

BCRA (id. at 42-80); set forth findings of fact (id. at 80-

106) and announced conclusions of law with respect to

some of the constitutional claims, chiefly those in-

volving BRCA’s disclosure provisions (id. at 106-170).

In addition, each member of the panel (Circuit Judge

Henderson and District Judges Kollar-Kotelly and

Leon) filed a separate opinion.’

a. With respect to the principal provisions of Title I,

the district court invalidated in significant respects

BCRA’s restrictions on the solicitation and use of soft

money by national and state political parties. Judge

Kollar-Kotelly would have upheld those provisions;

Judge Henderson would have struck them down in

their entirety. See Per Curiam op. 5-6, 12; Henderson

op. 258-305; Kollar-Kotelly op. 478-609.

Judge Leon, whose vote was controlling (Per Curiam

op. 6; cf. note 7, supra), concluded that those restric-

tions were unconstitutional except as applied to “Sec-

tion 301(20)(A)(iii) activities“ i. e., to any “public com-

munication that refers to a clearly identified candidate

for federal office * * * and that promotes or supports

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

didate for that office.” BCRA § 101(b) (adding FECA

§ 301(20) (A) (iii). Judge Leon found that state and

national parties could permissibly be barred from using

soft money to pay for such communications because

“Section 301(20)(A)(@ii) * * * describes conduct which

is targeted exclusively at federal elections and which

directly affects federal elections.” Leon op. 44; see id.

at 44-45, 50-68. Judge Leon concluded, however, that

7 Judge Kollar-Kotelly found only three of the challenged pro-

visions (BCRA §§ 213, 318, 504), which she described as “not cen-

tral to [BCRA’s] core mission,” to be unconstitutional. See Kollar-

Kotelly op. 11. Judge Henderson, by contrast, expressed the view

that BCRA “is unconstitutional in virtually all of its particulars.”

Henderson op. 5. Thus, with respect to the disposition of most of

the constitutional claims before the district court, Judge Leon’s

opinion proved to be controlling.

BCRA’s restrictions on the acceptance and use of soft

money by national and state parties were otherwise

invalid, on the ground that Congress lacks constitu-

tional authority “to regulate nonfederal funds used for

nonfederal and mixed purposes.” Id. at 26; see id. at 45-

50.

b. With respect to Title II's prohibition on the use of

corporate and union general treasury funds to finance

“electioneering communications,” the district court

again adopted an intermediate position, and Judge

Leon’s views were again controlling. Judge Kollar-

Kotelly and Judge Leon agreed that “the record before

the Court clearly demonstrates that * * * the

evolving present use of issue advertisements, specifi-

cally the use of ‘issues’ to cloak supportive or negative

advertisements clearly identifying a candidate for

federal office, threaten[s] the purity of elections.” Per

Curiam op. 135 (internal quotation marks omitted).

Judge Kollar-Kotelly would have sustained the expen-

diture prohibition under either the primary or the

backup definition of the term “electioneering communi-

cation.” See id. at 8-9, 12-13; Kollar-Kotelly op. 356-455.

Judge Henderson would have found the expenditure

ban invalid under either definition. See Per Curiam op.

8-9, 12-13; Henderson op. 201-228.

Judge Leon found the primary definition of “elec-

tioneering communication,” and the attendant ban on

the use of corporate and union general treasury funds

to finance “electioneering communications” as so de-

fined, to be unconstitutionally overbroad. Judge Leon

based that conclusion on his view that the commu-

nications covered by the primary definition include a

significant number of “genuine issue advertisements”

that are not aimed at influencing electoral results.

Leon op. 75; see id. at 73-87. At the same time, how-

ever, Judge Leon concluded that the backup definition

of “electioneering communication” is for the most part

constitutional because it “requires as a link between the

identified federal candidate and his election to that

office, certain language the purpose of which is

advocacy either for, or against, the candidate.” Id. at

88. He explained that large expenditures for communi-

cations falling within that definition can be expected to

“give rise to a public perception that the candidate is

being directly benefitted and will naturally recipro-

cate.” Id. at 90.

Judge Leon determined, however, “that the backup

definition’s final clause, which requires the message to

be ‘suggestive of no plausible meaning other than an

exhortation to vote,’ is unconstitutionally vague.” Leon

op. 93. Finding that the final clause “can be excised

without rewriting the entire definition” (id. at 94),

Judge Leon upheld the backup definition as so modified.

Judge Kollar-Kotelly “concur[red] in that conclusion

solely as an alternative to [the district court’s] finding

that the primary definition is unconstitutional.” Per

Curiam op. 8. Thus, the effect of the district court’s

- decision was to sustain BCRA’s prohibition on the use

of corporate and union general treasury funds for “elec-

tioneering communications,” with that term defined to

mean “any broadcast, cable, or satellite communication

which promotes or supports a candidate for that office,

or attacks or opposes a candidate for that office (re-

gardless of whether the communication expressly

advocates a vote for or against a candidate).”

c. The district court held that BCRA § 318, which

prohibits persons less than 18 years old from making

contributions to federal candidates or to political

parties, is unconstitutional. See Per Curiam op. 11, 15.

Each of the panel members found that minors have a

presumptive First Amendment right to engage in

political expression, and that the government had failed

to produce sufficient evidence that minors would

otherwise be used to circumvent statutory limits on

adult contributors. See Henderson op. 326-333; Kollar-

Kotelly op. 610-613; Leon op. 106-111. The district

court also struck down the record-keeping and dis-

closure requirements imposed upon broadcast stations

by BCRA § 504. See Per Curiam op. 11-12, 15. The

panel members found that the government had failed to

demonstrate a public interest sufficient to justify the

burdens that Section 504 places upon broadcasters and

on those who purchase political advertisements. See

Henderson op. 234-238; Kollar-Kotelly op. 614; Leon op.

111-115.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Congress vested this Court with appellate juris-

diction to review district court decisions in suits chal-

lenging the constitutionality of BCRA. See BCRA

§ 403(a)(3). This case falls squarely within the Court’s

appellate jurisdiction under Section 403(a)(3). Congress

further directed this Court to “expedite to the greatest

possible extent the disposition of” any appeal taken

under the statute. BCRA § 403(a)(4).

This Court “has never * * * doubted” the

importance of the government interest in protecting

federal elections from the threat of “real or apparent

corruption” stemming from the creation or suggestion

of political debts. First Nat'l Bank v. Bellotti, 435 U.S.

765, 788 n.26 (1978); see FEC v. National Right to Work

Comm., 459 U.S. 197, 207, 209-210 (1982) (NRWC);

Automobile Workers, 352 U.S. at 570, 575. In invalidat-

ing key provisions of BCRA, the district court sub-

stituted its own judgment for that of Congress, which

has first-hand experience with the electoral process and

a unique understanding of the concerns to which

campaign finance laws are addressed. Those holdings

plainly warrant this Court’s review.

I. a. The district court held that the soft money re-

strictions imposed on national political party com-

mittees by new FECA § 323(a), and on state and local

party committees by new FECA § 323(b), are valid only

insofar as they require the use of federally-regulated

funds to finance any “public communication that refers

to a clearly identified candidate for Federal office * * *

and that promotes or supports a candidate for that

office, or attacks or opposes a candidate for that office.”

See BCRA § 101(b) (adding FECA § 301(20)(A)(iii)).

Judge Leon, whose vote and analysis were controlling

(see pp. 17-18, supra), found that narrowing of the

statute to be constitutionally required on the ground

that Congress’s authority in this area is limited to party

expenditures that directly and exclusively affect

federal elections. In Judge Leon’s view, Congress lacks

power to regulate a party committee’s acquisition of

funds “used for nonfederal and mixed purposes.” Leon

op. 26.

That holding is both novel and erroneous. With

respect to national party committees, Congress rea-

sonably concluded that, given the pervasive connections

between party organizations and federal office-holders,

large unregulated contributions to the national parties

would have the inherent tendency to cause actual or

apparent corruption within the federal government,

regardless of the manner in which the relevant funds

were ultimately spent. See Kollar-Kotelly op. 512-513

(“federal officeholders and candidates control the

national party committees and are so deeply involved in

raising non-federal funds for the national party com-

mittees that there is no meaningful separation between

the national committees and the federal candidates and

officeholders that control them.”); id. at 524 (evidence in

this case demonstrates that major donors of soft money

to national political parties “are provided access to

federal officeholders and candidates in exchange for

their large contributions”). Congress also had ample

basis for concluding that funds raised by national

parties are predominantly used for activities that affect

federal elections, even though occasional national party

expenditures might be directed to state elections only.

See id. at 550-551.

With respect to state party committees, Congress

prohibited the use of soft money only for “Federal

election activity,” see FECA § 323(b)(1) (added by

BCRA S 101(a)), and it carefully limited the definition of

that term to specified categories of party activities that

can reasonably be expected to influence the outcome of

federal elections, see FECA § 301(20)(A)(i)-(iv) (added

by BCRA § 101(b)). It is doubtless true that the

activities described in new FECA § 301(20)(A)(i), (ii),

and (iv) can be expected to influence the outcome of

state elections as well. But nothing in this Court’s

precedents supports Judge Leon’s novel conclusion that

Congress lacks constitutional authority to regulate the

collection of funds used for those state party activities,

such as voter registration or get-out-the-vote drives,

that can be expected to influence both federal and state

elections. Indeed, the FEC has long required that

various “generic” party activities must be funded in

part by money raised in accordance with FECA limita-

tions, precisely because such activities can be expected

to influence the outcome of federal elections. See note

3, supra. Although the FEC has allowed party com-

mittees to use soft money to pay a portion of those

costs, this Court’s decisions do not suggest that the

FEC’s allocation regime is constitutionally compelled.

b. The district court also erred in invalidating new

FECA § 323(d) (added by BCRA S 101(a)), which

prohibits party committees from making solicitations

for, and donations to, certain tax-exempt organizations.

See Henderson op. 306-315; Leon op. 68-71. Those

restrictions on efforts to channel funds to tax-exempt

organizations are an appropriate means of combating

circumvention of BCRA’s soft money restrictions and

FECA’s contribution limitations and disclosure

requirements. As Judge Kollar-Kotelly explained in

dissenting on this issue, “[iJt is clear that political

parties and candidates have used tax-exempt organiza-

tions to assist them in their efforts to win federal

elections. Given this fact, and the fact that BCRA

prohibits state and national political parties from using

nonfederal funds to affect federal elections, the attrac-

tiveness of using these tax-exempt proxies would

become even more attractive to the political parties if

nothing had been done by Congress to address this

obvious circumvention route.” Kollar-Kotelly op. 561

(citation omitted). Congress properly acted to prevent

such circumvention, and this Court has repeatedly

honored similar anti- eireumvention rationales. See, e.g.,

Colorado II, 533 U.S. at 457 n.19.

2. a. The district court erred in invalidating BCRA

§ 201’s primary definition of the term “electioneering

communication,” as well as BCRA § 203’s ban on the

use of union and corporate general treasury funds for

“electioneering communications” as so defined. See pp.

18-19, supra. Under established constitutional princi-

ples, corporations and unions may be prohibited from

using general treasury funds to make independent

expenditures for the purpose of influencing electoral

results, at least so long as they retain the option of

establishing separate segregated funds to finance such

communications. See, e.g., Austin v. Michigan Cham-

ber of Commerce, 494 U.S. 652, 657-661 (1990).“ Such

restrictions on corporate and union spending serve both

to prevent the creation of political “debts” and the re-

sulting actual or apparent corruption of office-holders,

and to protect individuals who have paid money to the

corporation or union for reasons unrelated to support of

political candidates. See Kollar-Kotelly op. 357-358;

Austin, 494 U.S. at 658-660.

Insofar as it prohibits the use of corporate and union

general treasury funds for communications intended to

influence federal elections, BCRA breaks no new

8 This Court has held that 2 U.S.C. 441b’s longstanding ban on

federal campaign expenditures from corporate treasuries cannot

constitutionally be applied to a so-called “MCFL corporation” (or

“qualified nonprofit corporation,” see 11 C.F.R. 114.10(c) (2002))—

i.e., a corporation that (1) “was formed for the express purpose of

promoting political ideas, and cannot engage in business activities”;

(2) “has no shareholders or other persons affiliated so as to have a

claim on its assets or earnings”; and (3) “was not established by a

business corporation or labor union, and [has a] policy not to accept

contributions from such entities.” MCFL, 479 U.S. at 264. In

extending Section 441b’s prohibition to payments made for “elec-

tioneering communications,” Congress evinced no intent to over-

ride this Court’s decision in MCFL, see Kollar-Kotelly op. 459

(discussing legislative history), and the usual presumption is that

Congress intends to stay within the constitutional boundaries

drawn by this Court. In promulgating regulations to implement

BCRA, the FEC has made clear that Ja] qualified nonprofit cor-

poration may make electioneering communications * * * without

violating the prohibitions against corporate expenditures.” 67 Fed.

Reg. 65,211 (2002) (to be codified at 11 C.F.R. 114.10(d)(2)). We

therefore do not challenge the district court’s holding (see Per

Curiam op. 9, 14; Kollar-Kotelly op. 461) that BCRA’s prohibition

on the use of corporate treasury funds to finance electioneering

communications cannot properly be applied to MCFL corporations.

“ 25

ground. See Kollar-Kotelly op. 357 (“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—from the direct influence of aggregated

labor union treasury wealth.”). Rather, BCRA’s inno-

vation is in the articulation of new criteria for identify-

ing those corporate and union expenditures that are in

fact intended to affect federal electoral results. Con-

gress had ample basis for concluding that, under the

pre-BCRA regime, “corporations and unions routinely

[sought] to influence the outcome of federal elections

with general treasury funds by running broadcast

advertisements that skirt the prohibition contained in

[2 U.S. C.] 441b by simply avoiding Buckley’s ‘magic

words’ of express advocacy.” Id. at 358; see Per Curiam

op. 135 (“record * * * clearly demonstrates” that so-

called “issue advertisements” financed by corporate and

union general treasury funds “threaten the purity of

elections”). Drawing upon its Members’ extensive cam-

paign experience, 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.” Kollar-Kotelly

op. 358.

BCRA’s primary definition of “electioneering com-

munication” is clear and objective. Congress’s choice of

that definition reflects its informed judgment that

advertisements having the specified characteristics are

typically intended to influence electoral outcomes and

are likely to have that effect. That legislative judg-

ment, which was based in large measure on Members’

direct observations of the use of such communications

to circumvent pre-BCRA restrictions on corporate and

union campaign spending, is entitled to considerable

judicial respect. To the extent that the primary defini-

tion could extend to oecasional union or corporate com-

munications that are not intended to affect federal

elections, the burden that would be imposed by BCRA

§§ 201 and 208 is limited. The union or corporation that

wishes to distribute such advertisements may finance

them from a separate segregated fund; it may dissemi-

nate them outside the narrow window of time imme-

diately preceding the relevant federal election or

through alternative media; or it may modify the content

of such advertisements by deleting express references

to a particular federal candidate.”

b. The district court largely sustained the disclosure

requirements concerning electioneering communi-

cations imposed by BCRA § 201. See Per Curiam op.

113-115. The court held, however, that BCRA § 201 is

invalid insofar as it requires disclosure of executed

contracts for future electioneering communications that

9 Although it invalidated BCRA’s primary definition of “elec-

tioneering communication,” the district court held that the backup

definition is constitutional, while severing the final clause of that

definition on vagueness grounds. See pp. 18-19, supra. That final

clause requires the message to be “suggestive of no plausible

meaning other than an exhortation to vote.” BCRA § 201(a) (add-

ing FECA § 304(f)(3)(A)(ii)). Contrary to Judge Leon’s determina-

tion, that clause is not “so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its appli-

cation.” United States v. Lanier, 520 U.S. 259, 266 (1997). In any

event, the final clause of the backup definition is plainly intended

to protect corporate and union speakers, and to narrow the reach of

BCRA’s restrictions on corporate and union expenditures, by

reducing BCRA § 203’s potential applicability to communications

that are not in fact intended to affect federal elections.

have not yet been publicly distributed. Jd. at 115-123;

see FECA § 304(f)(5) (added by BCRA § 201(a)) (“For

purposes of this subsection, a person shall be treated as

having made the disbursement if the person has exe-

cuted a contract to make the disbursement.”). That

holding is erroneous. Even assuming that new FECA

§ 304(f)(5) might sometimes have the effect of requiring

that contracts be disclosed before the public distri-

bution of an electioneering communication, that re-

quirement would neither prevent any person from

speaking nor require disclosure of the specific content

of any advertisement. Indeed, under the pre-BCRA

regime the definition of “expenditure” included a “writ-

ten contract, promise, or agreement to make an expen-

diture,” 2 U.S.C. 431(9)(A)(ii) (2000); see 11 C. F. R.

104.11(b), so a requirement that contracts be disclosed

at the time of execution would not represent a signi-

ficant departure from prior law.

3. The district court erred in invalidating BCRA

§ 213. See Per Curiam op. 10, 14; Henderson op. 256-

257; Kollar-Kotelly op. 477; Leon op. 99-106. Once a

political party has nominated a candidate for a par-

ticular federal election, Section 213 permits the party

either (1) to forgo independent expenditures in support

of that candidate (in which case it may invoke the

increased coordinated-expenditure limits applicable to

political parties under 2 U.S.C. 441a(d) (2000)); or (2) to

make unlimited independent expenditures in support of

that candidate, while abiding by the $5000 limit on

contributions and coordinated expenditures applicable

to political committees generally. Consistent with the

Constitution, Congress might have limited party com-

mittees to the second alternative, thereby treating

them exactly the same as every other multicandiate po-

litical committee. Congress’s decision to provide party

committees an additional spending option cannot

render the BCRA regime unconstitutional.

4. The district court erred in invalidating BCRA

§ 318, which prohibits persons less than 18 years old

from making contributions to federal candidates or to

political parties. See Per Curiam op. 11, 15; Henderson

op. 326-333; Kollar-Kotelly op. 610-613; Leon op. 106-

111. Section 318 is a valid means of preventing adults

from circumventing FECA’s contribution limits by

making surrogate contributions through minors under

their control, and it is consistent with longstanding

restrictions on minors’ ability to control and dispose of

property. In addition, any First Amendment interests

that minors may have in participating in the financing

of federal elections is substantially limited by the fact

that minors have no constitutional right to vote in such

elections. See U.S. Const. Amend. XXVI.

5. The district court erred in striking down BCRA §

504, which requires broadcast stations to maintain and

make publicly available specified categories of requests

to purchase broadcast time. See Per Curiam op. 11-12,

15; Henderson op. 234-238; Kollar-Kotelly op. 614; Leon

op. 111-115. Section 504 applies only to television and

radio broadcast stations and cable television systems,

and this Court has upheld more intrusive regulation of

those media than of any other form of communication.

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

637 (1994); CBS v. FCC, 453 U.S. 367 (1981). Long-

standing Federal Communications Commission regula-

tions have required broadcast stations to disclose can-

didate “requests” to purchase broadcast time, see 47

C.F.R. 73.1943 (broadcast stations); 47 C.F.R. 76.1701

(cable television systems), and have required disclosure

of the sponsors of broadcasts concerning “controversial

issue[s] of public importance,” see 47 C. F. R. 73.1212(e);

see also 47 C.F.R. 76.1701(d) (cable television). The

similar disclosure mandated by BCRA § 504 provides

the public with access to information concerning the

amounts that individuals and groups are prepared to

spend to broadcast messages on political matters of

national importance, as well as the sums actually spent

on such broadcasts. Requiring disclosure of the identi-

ties of those who make requests, and the broadcasters’

dispositions of the requests, also enables the public to

evaluate whether broadcasters are processing requests

in an evenhanded fashion.

CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

- ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MALCOLM L. STEWART

GREGORY G. GARRE

LAWRENCE H. NORTON Assistants to the Solicitor

General Counsel General

RICHARD B. BADER DOUGLAS N. LETTER

Associate General Counsel JAMESJ. GILLIGAN

MICHAELS. RAAB

STEPHEN E. HERSHKOWITZ

DAVID KOLKER DANAJ. MARTIN

Assistant General Counsels Attorneys

Federal Election

Commission

MAY 2003

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 02-582

(CKK, KLH, RJL)

SENATOR MITCH MCCONNELL, ET AL., PLAINTIFFS

Vv.

FEDERAL ELECTION COMMISSION, ST AL., DEFENDANTS

Civil Action No. 02-581

(CKK, KLH, RJL)

NATIONAL RIFLE ASSOCIATION OF AMERICA, ET AL.,

PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-633

(CKK, KLH, RJL)

EMILY ECHOLS, A MINOR CHILD, BY AND THROUGH HER

NEXT FRIENDS, TIM AND WINDY ECHOLS, ET AL.,

PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

(la)

Civil Action No. 02-751

(CKK, KLH, RJL)

CHAMBER OF COMMERCE OF THE UNITED STATES,

ET AL., PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-753

(CKK, KLH, RJL)

NATIONAL ASSOCIATION OF BROADCASTERS, PLAINTIFF

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-754

(CKK, KLH, RJL)

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS, ET AL., PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-781

(CKK, KLH, RJL)

CONGRESSMAN RON P. UL, ET AL., PLAINTIFFS

Vv.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-874

(CKK, KLH, RJL)

—

REPUBLICAN NATIONAL COMMITTEE, Er AL.,

PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-875

(CKK, KLH, RJL)

CALIFORNIA DEMOCRATIC PARTY, ET AL., PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-877

(CKK, KLH, RJL)

VICTORIA JACKSON GRAY ADAMS, ET AL., PLAINTIFFS

vz.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-881

(CKK, KLH, RJL)

REPRESENTATIVE BENNIE G. THOMPSON, ET AL.,

PLAINTIFFS

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: May 5, 2003]

NOTICE OF APPEAL TO THE UNITED STATES

SUPREME COURT

Notice is hereby given that defendants the United

States of America, Attorney General John Ashcroft, the

United States Department of Justice, and the Federal

Communications Commission, hereby appeal to the

United States Supreme Court from the Final Judgment

entered in these consolidated actions on the 2nd day of

May, 2003. A direct appeal to the United States

Supreme Court is authorized by section 403(a)(3) of the

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81, 114.

Respectfully submitted,

ROBERT D. MCCALLLUM, JP.

Assistant Attorney General

Civil Division

ROSCOE C. HOWARD, JR.

United States Attorney

SHANNEN W. COFFIN

Deputy Assistant Attorney General

Federal Programs Branch, Civil Division

/s) RUPABHATTACHARYYA

JOSEPH H. HUNT

THEODORE G. HIRT

JAMES J. GILLIGAN

TERRY M. HENRY

RUPA BHATTACHARYYA

ANDREA GACKI

MARC L. KESSELMAN

SERRIN TURNER

Attorneys

U.S. Department of Justice, Civil Division

Federal Programs Branch

P.O. Box 883, 20 Massachusetts Ave.,

N.W.

Washington, D.C. 20044

Tel: (202) 514-3358

Fax: (202) 616-8470

Counsel for Defendants United States of

America, John Ashcroft, Attorney

General of the United States, the U.S.

Department of Justice, and the Federal

Communications Commission

Dated: May 3, 2003

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. Civil Action No. 02-0582

(CKK) (KLH) (RJL)

Consolidated Actions

SENATOR MITCH MCCONNELL, ET AL., PLAINTIFF

Vv.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: May 2, 2003

NOTICE OF APPEAL

Notice is hereby given that the Federal Election

Commission, defendant in the above named cases,

appeals to the Supreme Court of the United States

from the final judgment entered in these actions on

May 2, 2003.

Respectfully submitted

/s/ Lawrence H. Norton

General Counsel

May 2, 2003

Richard B. Bader

Associate General Counsel

Stephen E. Hershkowitz

Assistant General Counsel

David Kolker

Assistant General Counsel

For the Appellant

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

APPENDIX C

OPINIONS OF THE DISTRICT COURT

Due to the length of the opinions below, appellants

are not including the district court’s opinions in

the appendix to their jurisdictional statement. The

opinions can be found on the Internet at http://lsmns2o.

gtwy.uscourts.gov/ded/meconnell-2002-ruling.html. Ap-

pellants have filed a motion to dispense with filing the

district court opinions in the appendix to the juris-

dictional statement.

10a

AFPENDIX D

Article I, Section 4, Clause 1 of the United States

Constitution provides as follows:

The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof; but the Con-

gress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Sena-

tors.

lla

The First Amendment to the United States Consti-

tution provides as follows:

Congress shall make no law-respecting an establish-

ment of religion, or prohibiting the free exercise there-

of; or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

12a

The Fifth Amendment to the United States Consti-

tution provides as follows:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb, nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use without just compensation.

13a

The Tenth Amendment to the United States Consti-

tution provides as follows:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

l4a

APPENDIX E

TITLE I—REDUCTION OF SPECIAL

INTEREST INFLUENCE

SEC. 101. SOFT MONEY OF POLITICAL PARTIES.

(a) IN GENERAL.—Title III of the Federal Election

Campaign Act of 1971 (2 U.S.C. 431 et seq.) is amended

by adding at the end the following:

“SEC.323. SOFT MONEY OF POLITICAL PARTIES.

“(a) NATIONAL COMMITTEES.—

“(1) IN GENERAL.—A national committee of a

political party (including a national congressional

campaign committee of a political party) may not

solicit, receive, or direct to another person a con-

tribution, donation, or transfer of funds or any other

thing of value, or spend any funds, that are not

subject to the limitations, prohibitions, and reporting

requirements of this Act.

“(2) APPLICABILITY.—The prohibition estab-

lished by paragraph (1) applies to any such national

committee, any officer or agent acting on behalf of

such a national committee, and any entity that is

directly or indirectly established, financed, main-

tained, or controlled by such a national committee.

b) STATE, DISTRICT, AND LOCAL COMMIT-

TEES.—

“(1) IN GENERAL.—Except as provided in para-

graph (2), an amount that is expended or disbursed

for Federal election activity by a State, district, or

local committee of a political party (including an

entity that is directly or indirectly established, fi-

15a

nanced, maintained, or controlled by a State, distriet,

or local committee of a political party and an officer

or agent acting on behalf of such committee or

entity), or by an association or similar group of

candidates for State or local office or of individuals

holding State or local office, shall be made from funds

subject to the limitations, prohibitions, and reporting

requirements of this Act.

(2) APPLICABILITY.—

“(A) IN GENERAL.—Notwithstanding clause

(i) or (ii) of section 301(20)(A), and subject to

subparagraph (B), paragraph (1) shall not apply

to any amount expended or disbursed by a State,

district, or local committee of a political party for

an activity described in either such clause to the

extent the amounts expended or disbursed for

such activity are allocated (under regulations pre-

scribed by the Commission) among amounts

) which consist solely of contributions

subject to the limitations, prohibitions, and

reporting requirements of this Act (other than

amounts described in subparagraph (B)(iii));

and

“(ii) other amounts which are not subject

to the limitations, prohibitions, and reporting

requirements of this Act (other than any

requirements of this subsection).

“(B) CONDITIONS.—Subparagraph (A) shall

only apply if—

) the activity does not refer to a

clearly identified candidate for Federal office;

16a

„i) the amounts expended or disbursed

are not for the costs of any broadcasting,

cable, or satellite communication, other than a

communication which refers solely to a clearly

identified candidate for State or local office;

“(jii) the amounts expended or disbursed

which are described in subparagraph (A) (ii)

are paid from amounts which are donated in

accordance with State law and which meet the

requirements of subparagraph (C), except

that no person (including any person estab-

lished, financed, maintained, or controlled by

such person) may donate more than $10,000 to

a State, district, or local committee of a

political party in a calendar year for such

expenditures or disbursements; and

“(iv) the amounts expended or disbursed

are made solely from funds raised by the

State, local, or district committee which

makes such expenditure or disbursement, and

do not include any funds provided to such

committee from—

J) any other State, local, or dis-

trict committee of any State party,

„i) the national committee of a

political party (including a national con-

(II) any officer or agent acting on

behalf of any committee described in sub-

clause (I) or (II), or

V) any entity directly or indirectly

established, financed, maintained, or con-

17a

trolled by any committee described in

subclause (I) or (II).

“(C) PROHIBITING INVOLVEMENT OF NA-

TIONAL PARTIES, FEDERAL CANDIDATES AND

OFFICEHOLDERS, AND STATE PARTIES ACTING

JOINTLY.—Notwithstanding subsection (e) (other

than subsection (e)(3)), amounts specifically

authorized to be spent under subparagraph

(B)(iii) meet the requirements of this subpara-

graph only if the amounts—

) are not solicited, received, directed,

transferred, or spent by or in the name of any

person described in subsection (a) or (e); and

ü) are not solicited, received, or di-

rected through fundraising activities con-

ducted jointly by 2 or more State, local, or

district committees of any political party or

their agents, or by a State, local, or district

committee of a political party on behalf of the

State, local, or district committee of a political

party or its agent in one or more other States.

e) FUNDRAISING CosTs.—An amount spent by a

person described in subsection (a) or (b) to raise funds

that are used, in whole or in part, for expenditures and

disbursements for a Fede al election activity shall be

made from funds subject to the limitations, prohibi-

tions, and reporting requirements of this Act.

“(d) TAX-EXEMPT ORGANIZATIONS.—A national,

State, district, or local committee of a political party

(including a national congressional campaign committee

of a political party), an entity that is directly or in-

directly established, financed, maintained, or controlled

by any such national, State, district, or local committee

18a

or its agent, and an officer or agent acting on behalf of

any such party committee or entity, shall not solicit any

funds for, or make or direct any donations to—

“(1) an organization that is described in section

501(c) of the Internal Revenue Code of 1986 and

exempt from taxation under section 501(a) of such

Code (or has submitted an application for deter-

mination of tax exempt status under such section)

and that makes expenditures or disbursements in

connection with an election for Federal office (in-

cluding expenditures or disbursements for Federal

election activity); or

“(2) an organization described in section 527 of

such Code (other than a political committee, a State,

district, or local committee of a political party, or the

authorized campaign committee of a candidate for

State or local office).

“(e) FEDERAL CANDIDATES.—

“(1) INGENERAL.—A candidate, individual hold-

ing Federal office, agent of a candidate or an indivi-

dual holding Federal office, or an entity directly or

indirectly established, financed, maintained or con-

trolled by or acting on behalf of 1 or more candidates

or individuals holding Federal office, shall not

“(A) solicit, receive, direct, transfer, or spend

funds in connection with an election for Federal

office, including funds for any Federal election

activity, unless the funds are subject to the

limitations, prohibitions, and reporting require-

ments of this Act; or

“(B) solicit, receive, direct, transfer, or spend

funds in connection with any election other than

an election for Federal office or disburse funds in

19a

connection with such an election unless the

funds—

“(i) are not in excess of the amounts

permitted with respect to contributions to

candidates and political committees under

paragraphs (1), (2), and (3) of section 315(a);

and

) are not from sources prohibited by

this Act from making contributions in connec-

tion with an election for Federal office.

“(2) STATE LAW.—Paragraph (1) does not apply

to the solicitation, receipt, or spending of funds by an

individual described in such paragraph who is or was

also a candidate for a State or local office solely in

connection with such election for State or local office

if the solicitation, receipt, or spending of funds is

permitted under State law and refers only to such

State or local candidate, or to any other candidate for

the State or local office sought by such candidate, or

both.

; “(3) FUNDRAISING EVENTS.—Notwithstanding

paragraph (1) or subsection (b)(2)(C), a candidate or

an individual holding Federal office may attend,

speak, or be a featured guest at a fundraising event

for a State, district, or local committee of a political

party.

“(4) PERMITTING CERTAIN SOLICITATIONS.—

‘“(A) GENERAL _ SOLICITATIONS.—Notwith-

standing any other provision of this subsection,

an individual described in paragraph (1) may

make a general solicitation of funds on behalf of

any organization that is described in section

501(c) of the Internal Revenue Code of 1986 and

20a

exempt from taxation under section 501(a) of such

Code (or has submitted an application for deter-

mination of tax exempt status under such section)

(other than an entity whose principal purpose is

to conduct activities described in clauses (i) and

(ii) of section 301(20)(A)) where such solicitation

does not specify how the funds will or should be

spent.

“(B) CERTAIN SPECIFIC SOLICITATIONS.—In

addition to the general solicitations permitted

under subparagraph (A), an individual described

in paragraph (1) may make a solicitation explicitly

to obtain funds for carrying out the activities de-

scribed in clauses (i) and (ii) of section 301(20)(A),

or for an entity whose principal purpose is to

conduct such activities, if—

“(j) the solicitation is made only to

individuals; and

„(ü) the amount solicited from any

individual during any calendar year does not

exceed $20,000.

“(f) STATE CANDIDATES.—

) INGENERAL.—A candidate for State or local

office, individual holding State or local office, or an

agent of such a candidate or individual may not spend

any funds for a communication described in section

301(20)(A)(iii) unless the funds are subject to the

limitations, prohibitions, and reporting requirements of

this Act.

“(2) EXCEPTION FOR CERTAIN COMMUNICA-

TIONS.—Paragraph (1) shall not apply to an individual

described in such paragraph if the communication

involved is in connection with an election for such State

2la

or local office and refers only to such individual or to

any other candidate for the State or local office held or

sought by such individual, or both.”.

(b) DEFINITIONS.—Section 301 of the Federal Elec-

tion Campaign Act of 1971 (2 U.S.C. 431) is amended by

adding at the end thereof the following:

“(20) FEDERAL ELECTION ACTIVITY.—

“(A) IN GENERAL.—The term ‘Federal elec-

tion activity’ means—

“(i) voter registration activity during

the period that begins on the date that is 120

days before the date a regularly scheduled

Federal election is held and ends on the date

of the election;

u) voter identification, get-out-the-

vote activity, or generic campaign activity

conducted in connection with an election in

which a candidate for Federal office appears

on the ballot (regardless of whether a can-

didate for State or local office also appears on

the ballot);

ii) a public communication that refers

to a clearly identified candidate for Federal

office (regardless of whether a candidate for

State or local office is also mentioned or iden-

tified) and that promotes or supports a

candidate for that office, or attacks or opposes

a candidate for that office (regardless of

whether the communication expressly ad-

vocates a vote for or against a candidate); or

“(iv) services provided during any month

by an employee of a State, district, or local

22a

committee of a political party who spends

more than 25 percent of that individual’s com-

pensated time during that month on activities

in connection with a Federal election.

B) EXCLUDED ACTIVITY.—The term

‘Federal election activity’ does not include an

amount expended or disbursed by a State, district,

or local committee of a political party for—

„(i) a public communication that refers solely

to a clearly identified candidate for State or local

office, if the communication is not a Federal

election activity described in subparagraph (A) (i)

or (ii);

ei) a contribution to a candidate for State

or local office, provided the contribution is not

designated to pay for a Federal election activity

described in subparagraph (A);

“(iii) the costs of a State, district, or local

political convention; and

iv) the costs of grassroots campaign

materials, including buttons, bumper stickers, and

yard signs, that name or depict only a candidate

for State or local office.

“(21) GENERIC CAMPAIGN ACTIVITY.—The term

‘generic campaign activity’ means a campaign activity

that promotes a political party and does not promote a

candidate or non-Federal candidate.

“(22) PUBLIC COMMUNICATION.—The term ‘public

communication’ means a communication by means of

any broadcast, cable, or satellite communication, news-

paper, magazine, outdoor advertising facility, mass

23a

mailing, or telephone bank to the general public, or any

other form of general public political advertising.

“(23) MASS MAILING.—The term ‘mass mailing’

means a mailing by United States mail or facsimile of

more than 500 pieces of mail matter of an identical or

substantially similar nature within any 30-day period.

24) TELEPHONE BANK.—The term ‘telephone

bank’ means more than 500 telephone calls of an

identical or substantially similar nature within any 30-

day period.“.

SEC. 102. INCREASED CONTRIBUTION LIMIT FOR

STATE COMMITTEES OF POLITICAL

PARTIES.

Section 315(a)(1) of the Federal Election Campaign

Act of 1971 (2 U.S.C. 441a(a)(1)) is amended—

(1) in subparagraph (B), by striking “or” at the end;

(2) in subparagraph (C)—

(A) by inserting “(other than a committee de-

scribed in subparagraph (D))” after “committee”; and

(B) by striking the period at the end and in-

serting “; or”; and

(3) by adding at the end the following:

D) to a political committee established and main-

tained by a State committee of a political party in any

calendar year which, in the aggregate, exceed $10,000.”.

SEC. 103. REPORTING REQUIREMENTS.

(a) REPORTING REQUIREMENTS.—Section 304 of

the Federal Election Campaign Act of 1971 (2 U.S.C.

434) is amended by adding at the end the following:

24a

de) POLITICAL COMMITTEES.—

“(1) NATIONAL AND CONGRESSIONAL POLITICAL

COMMITTEES.—The national committee of a political

party, any national congressional campaign com-

mittee of a political party, and any subordinate com-

mittee of either, shall report all receipts and dis-

bursements during the reporting period.

) OTHER POLITICAL COMMITTEES TO WHICH

SECTION 323 APPLIES.—

„ IN GENERAL.—In addition to any other

reporting requirements applicable under this Act,

a political committee (not described in paragraph

(1)) to which section 323(b)(1) applies shall report

all receipts and disbursements made for activities

described in section 301(20)(A), unless the aggre-

gate amount of such receipts and disbursements

during the calendar year is less than $5,000.

“(B) SPECIFIC DISCLOSURE BY STATE AND

LOCAL PARTIES OF CERTAIN NON-FEDERAL

AMOUNTS PERMITTED TO BE SPENT ON FEDERAL

ELECTION ACTIVITY.—Each report by a political

committee under subparagraph (A) of receipts and

disbursements made for activities described in

section 301(20)(A) shall include a disclosure of all

receipts and disbursements described in section

323(b)(2)(A) and (B).

“(3) ITEMIZATION.—If a political committee has

receipts or disbursements to which this subsection

applies from or to any person aggregating in excess

of $200 for any calendar year, the political committee

shall separately itemize its reporting for such person

in the same manner as required in paragraphs (3)(A),

(5), and (6) of subsection (b).

25a

“(4) REPORTING PERIODS.—Reports required to

be filed under this subsection shall be filed for the

same time periods required for political committees

under subsection (a)(4)(B).”.

(b) BUILDING FUND EXCEPTION TO THE DEFINITION

OF CONTRIBUTION.—

(1) IN GENERAL.—Section 301(8)(B) of the Fed-

eral Election Campaign Act of 1971 (2 U.S.C.

431(8)(B)) is amended—

(A) by striking clause (viii); and

(B) by redesignating clauses (ix) through (xv)

as clauses (viii) through (xiv), respectively.

(2) NONPREEMPTION OF STATE LAW.—Section

403 of such Act (2 U.S.C. 453) is amended—

(A) by striking “The provisions of this Act”

and inserting “(a) IN GENERAL.—Subject to sub-

section (b), the provisions of this Act”; and

(B) by adding at the end the following:

“(b) STATE AND LOCAL COMMITTEES OF POLITICAL

PARTIES.—Notwithstanding any other provision of this

Act, a State or local committee of a political party may,

subject to State law, use exclusively funds that are not

subject to the prohibitions, limitations, and reporting

requirements of the Act for the purchase or con-

struction of an office building for such State or local

committee.”,

TITLE II—NONCANDIDATE CAMPAIGN

EXPENDITURES

Subtitle A—Electioneering Communications

26a

SEC. 201. DISCLOSURE OF ELECTIONEERING

COMMUNICATIONS.

(a) IN GENERAL.—Section 304 of the Federal Elec-

tion Campaign Act of 1971 (2 U.S.C. 434), as amended

by section 103, is amended by adding at the end the

following new subsection:

“(f) DISCLOSURE OF ELECTIONEERING COMMUNI-

CATIONS.—

(1) STATEMENT REQUIRED.—Every person

who makes a disbursement for the direct costs of

producing and airing electioneering communications

in an aggregate amount in excess of $10,000 during

any calendar year shall, within 24 hours of each

disclosure date, file with the Commission a statement

containing the information described in paragraph

(2).

“(2) CONTENTS OF STATEMENT.—Each state-

ment required to be filed under this subsection shall

be made under penalty of perjury and shall contain

the following information:

“(A) The identification of the person making

the disbursement, of any person sharing or

exercising direction or control over the activities

of such person, and of the custodian of the books

and accounts of the person making the dis-

bursement.

“(B) The principal place of business of the

person making the disbursement, if not an indivi-

dual.

27a

“(C) The amount of each disbursement of

more than $200 during the period covered by the

statement and the identification of the person to

whom the disbursement was made.

D) The elections to which the electioneer-

ing communications pertain and the names (if

known) of the candidates identified or to be

identified.

E) If the disbursements were paid out of a

segregated bank account which consists of funds

contributed solely by individuals who are United

States citizens or nationals or lawfully admitted

for permanent residence (as defined in section

101(a)(20) of the Immigration and Nationality Act

(8 U.S.C. 1101(a)(20))) directly to this account for

electioneering communications, the names and

addresses of all contributors who contributed an

aggregate amount of $1,000 or more to that

account during the period beginning on the first

day of the preceding calendar year and ending on

the disclosure date. Nothing in this subparagraph

is to be construed as a prohibition on the use of

funds in such a segregated account for a purpose

other than electioneering communications.

F) If the disbursements were paid out of

funds not described in subparagraph (E), the

names and addresses of all contributors who con-

tributed an aggregate amount of $1,000 or more

to the person making the disbursement during

the period beginning on the first day of the

preceding calendar year and ending on the

disclosure date.

28a

“(3) ELECTIONEERING COMMUNICATION.—For pur-

poses of this subsection—

“(A) IN GENERAL.—{i) The term ‘electioneering

communication’ means any broadcast, cable, or

satellite communication which—

refers to a clearly identified candidate

for Federal office;

) is made within—

“(aa) 60 days before a general, special,

or runoff election for the office sought by the

candidate; or

“(bb) 30 days before a primary or

preference election, or a convention or caucus of a

political party that has authority to nominate a

candidate, for the office sought by the candidate;

and

“(III) in the case of a communication which

refers to a candidate for an office other than

President or Vice President, is targeted to the

relevant electorate.

(ü) If clause (i) is held to be constitutionally

insufficient by final judicial decision to support the

regulation provided herein, then the term ‘elec-

tioneering communication’ means any broadcast,

cable, or satellite communication which promotes or

supports a candidate for that office, or attacks or

opposes a candidate for that office (regardless of

whether the communication expressly advocates a

vote for or against a candidate) and which also is

suggestive of no plausible meaning other than an

exhortation to vote for or against a specific can-

didate. Nothing in this subparagraph shall be con-

29a

strued to affect the interpretation or application of

section 100.22(b) of title 11, Code of Federal Regu-

lations.

B) EXCEPTIONS.—The term ‘electioneering

communication’ does not include—

) a communication appearing in a news

story, commentary, or editorial distributed

through the facilities of any broadcasting station,

unless such facilities are owned or controlled by

any political party, political committee, or

candidate;

(ü) a communication which constitutes an

expenditure or an independent expenditure under

this Act;

(ii) a communication which constitutes a

candidate debate or forum conducted pursuant to

regulations adopted by the Commission, or which

solely promotes such a debate or forum and is

made by or on behalf of the person sponsoring the

debate or forum; or

“(iv) any other communication exempted

under such regulations as the Commission may

promulgate (consistent with the requirements of

this paragraph) to ensure the appropriate imple-

mentation of this paragraph, except that under

any such regulation a communication may not be

exempted if it meets the requirements of this

paragraph and is described in section

301(20)(A)(iii).

“(C) TARGETING TO RELEVANT ELECTORATE.—

For purposes of this paragraph, a communication

which refers to a clearly identified candidate for

Federal office is ‘targeted to the relevant electorate’

30a

if the communication can be received by 50,000 or

more persons—

“(j) in the district the candidate seeks to

represent, in the case of a candidate for Repre-

sentative in, or Delegate or Resident Com-

missioner to, the Congress; or

ü) in the State the candidate seeks to

represent, in the case of a candidate for Senator.

“(4) DISCLOSURE DATE.—For purposes of this sub-

section, the term ‘disclosure date’ means—

“(A) the first date during any calendar year by

which a person has made disbursements for the

direct costs of preducing or airing electioneering

communications aggregating in excess of $10,000;

and

(B) any other date during such calendar year

by which a person has made disbursements for the

direct costs of producing or airing electioneering

communications aggregating in excess of $10,000

since the most recent disclosure date for such

calendar year.

“(5) CONTRACTS TO DISBURSE.—For purposes of this

subsection, a person shall be treated as having made a

disbursement if the person has executed a contract to

make the disbursement.

“(6) COORDINATION WITH OTHER REQUIREMENTS.

Any requirement to report under this subsection

shall be in addition to any other reporting requirement

under this Act.

“(7) COORDINATION WITH INTERNAL REVENUE

CoDE.—Nothing in this subsection may be construed to

establish, modify, or otherwise affect the definition of

3la

political activities or electioneering activities (including

the definition of participating in, intervening in, or

influencing or attempting to influence a political cam-

paign on behalf of or in opposition to any candidate for

public office) for purposes of the Internal Revenue

Code of 1986.”.

(b) RESPONSIBILITIES OF FEDERAL COMMUNI-

CATIONS COMMISSION.—The Federal Communications

Commission shall compile and maintain any information

the Federal Election Commission may require to carry

out section 304(f) of the Federal Election Campaign Act

of 1971 (as added by subsection (a)), and shall make

such information available to the public on the Federal

Communication Commission’s website.

SEC. 202. COORDINATED COMMUNICATIONS AS

CONTRIBUTIONS. '

Section 315(a)(7) of the Federal Election Campaign

Act of 1971 (2 U.S.C. 441a(a)(7)) is amended—

(1) by redesignating subparagraph (C) as subpara-

graph (D); and

(2) by inserting after subparagraph (B) the follow-

ing:

“(C) =

) any person makes, or contracts to make,

any disbursement for any electioneering communica-

tion (within the meaning of section 304(f)(3)); and

Kü) such disbursement is coordinated with a

candidate or an authorized committee of such can-

didate, a Federal, State, or local political party or

committee thereof, or an agent or official of any such

candidate, party, or committee;

32a

such disbursement or contracting shall be treated as a

contribution to the candidate supported by the elec-

tioneering communication or that candidate’s party

and as an expenditure by that candidate or that can-

didate’s party; and”.

SEC. 203. PROHIBITION OF CORPORATE AND

LABOR DISBURSEMENTS FOR ELEC-

TIONEERING COMMUNICATIONS.

(a) IN GENERAL.—Section 316(b)(2) of the Federal

Election Campaign Act of 1971 (2 U.S.C. 441b(b)(2)) is

amended by inserting “or for any applicable

electioneering communication” before “, but shall not

include”.

(b) APPLICABLE ELECTIONEERING COMMUNICA-

TION.—Section 316 of such Act is amended by adding at

the end the following:

„e) RULES RELATING TO ELECTIONEERING COM-

MUNICATIONS.—

“(1) APPLICABLE ELECTIONEERING COMMUNI-

CATION.—For purposes of this section, the term

‘applicable electioneering communication’ means an

electioneering communication (within the meaning of

section 304(f)(3)) which is made by any entity de-

scribed in subsection (a) of this section or by any

other person using funds donated by an entity

described in subsection (a) of this section.

“(2) EXCEPTION.—Notwithstanding paragraph

(1), the term ‘applicable electioneering communica-

tion’ does not include a communication by a section

501(c)(4) organization or a political organization (as

defined in section 527(e)(1) of the Internal Revenue

Code of 1986) made under section 304(f)(2)(E) or (F)

33a

of this Act if the communication is paid for

exclusively by funds provided directly by individuals

who are United States citizens or nationals or

lawfully admitted for permanent residence (as

defined in section 101(a)(20) of the Immigration and

Nationality Act (8 U.S.C. 1101(a)(20))). For purposes

of the preceding sentence, the term ‘provided

directly by individuals’ does not include funds the

source of which is an entity described in subsection

(a) of this section.

“(3) SPECIAL OPERATING RULES.—

“(A) DEFINITION UNDER PARAGRAPH (1).—

An electioneering communication shall be treat-

ed as made by an entity described in subsection

(a) if an entity described in subsection (a) di-

rectly or indirectly disburses any amount for any

of the costs of the communication.

B) EXCEPTION UNDER PARAGRAPH (2).—A

section 501(c)(4) organization that derives

amounts from business activities or receives

funds from any entity described in subsection (a)

shall be considered to have paid for any com-

munication out of such amounts unless such

organization paid for the communication out of a

Segregated account to which only individuals can

contribute, as described in section 304(f)(2)(E).

“(4) DEFINITIONS AND RULES.—For purposes

of this subsection—

) the term ‘section 501(c)(4) organization’

means—

) an organization described in section

501(c)(4) of the Internal Revenue Code of

34a

1986 and exempt from taxation under section

501(a) of such Code; or

(ü) an organization which has submitted

an application to the Internal Revenue Ser-

vice for determination of its status as an

organization described in clause (i); and

“(B) a person shall be treated as having

made a disbursement if the person has executed

a contract to make the disbursement.

“(5) COORDINATION WITH INTERNAL REVENUE

CODE.—Nothing in this subsection shall be construed

to authorize an organization exempt from taxation

under section 501(a) of the Internal Revenue Code of

1986 to carry out any activity which is prohibited

under such Code.”.

SEC. 204. RULES RELATING TO CERTAIN TAR-

GETED ELECTIONEERING COMMUNI-

CATIONS.

Section 316(c) of the Federal Election Campaign Act

of 1971 (2 U.S.C. 441b), as added by section 203, is

amended by adding at the end the following:

6) SPECIAL RULES FOR TARGETED

COMMUNICATIONS.—

“(A) EXCEPTION DOES NOT APPLY.—Para-

graph (2) shall not apply in the case of a targeted

communication that is made by an organization

described in such paragraph.

(B) TARGETED COMMUNICATION.—For

purposes of subparagraph (A), the term ‘tar-

geted communication’ means an electioneering

communication (as defined in section 304(f)(3))

35a

that is distributed from a television or radio

broadcast station or provider of cable or satellite

television service and, in the case of a com-

munication which refers to a candidate for an

office other than President or Vice President, is

targeted to the relevant electorate.

C) DEFINITION.—For purposes of this

paragraph, a communication is ‘targeted to the

relevant electorate’ if it meets the requirements

described in section 304(f)(3)( C).“.

Subtitle B—Independent and Coordinated

Expenditures

SEC. 211. DEFINITION OF INDEPENDENT EXPEN-

DITURE.

Section 301 of the Federal Election Campaign Act (2

U.S.C. 431) is amended by striking paragraph (17) and

inserting the following:

“(17) INDEPENDENT EXPENDITURE.—The term

‘independent expenditure’ means an expenditure by

a person—

expressly advocating the election or

defeat of a clearly identified candidate; and

B) that is not made in concert or

cooperation with or at the request or suggestion

of such candidate, the candidate’s authorized

political committee, or their agents, or a political

party committee or its agents.“

SEC. 212. REPORTING REQUIREMENTS FOR CER-

TAIN INDEPENDENT EXPENDITURES.

36a

(a) IN GENERAL.—Section 304 of the Federal Elec-

tion Campaign Act of 1971 (2 U.S.C. 434) (as amended

by section 201) is amended—

(1) in subsection (c)(2), by striking the undesig-

nated matter after subparagraph (C); and

(2) by adding at the end the following:

“(g) TIME FOR REPORTING CERTAIN EXPENDI-

TURES.—

(ö) EXPENDITURES AGGREGATING $1,000.—

(A) INITIAL REPORT.—A person (including

a political committee) that makes or contracts to

make independent expenditures aggregating

$1,000 or more after the 20th day, but more than

24 hours, before the date of an election shall file a

report describing the expenditures within 24

hours.

“(B) ADDITIONAL REPORTS.—After a person

files a report under subparagraph (A), the person

shall file an additional report within 24 hours after

each time the person makes or contracts to make

independent expenditures aggregating an addi-

tional $1,000 with respect to the same election as

that to which the initial report relates.

“(2) EXPENDITURES AGGREGATING $10,000.—

“(A) INITIAL REPORT.—A person (including

a political committee) that makes or contracts to

make independent expenditures aggregating

$10,000 or more at any time up to and including

the 20th day before the date of an election shall file

a report describing the expenditures within 48

hours.

37a

B) ADDITIONAL REPORTS.—After a person

files a report under subparagraph (A), the person

shall file an additional report within 48 hours after

each time the person makes or contracts to make

independent expenditures aggregating an addi-

tional 810,000 with respeet to the same election as

that to which the initial report relates.

3) PLACE OF FILING; CONTENTS.—A report

under this subsection—

“(A) shall be filed with the Commission; and

“(B) shall contain the information required

by subsection (b)(6)(B)(iii), including the name of

each candidate whom an expenditure is intended

to support or oppose.”.

(b) TIME OF FILING OF CERTAIN STATEMENTS.—

(1) IN GENERAL.—Section 304(g) of such Act, as

added by subsection (a), is amended by adding at the

end the following:

“(4) TIME OF FILING FOR EXPENDITURES AGGRE-

GATING $1,000.—Notwithstanding subsection (a)(5),

the time at which the statement under paragraph (1)

is received by the Commission or any other recipient

to whom the notification is required to be sent shall be

considered the time of filing of the statement with the

recipient.“

(2) CONFORMING AMENDMENTS.—(A) Section

304(a)(5) of such Act (2 U.S.C. 434(a)(5)) is amended

by striking “the second sentence of subsection (c)(2)”

and inserting “subsection (g)(1)”.

(B) Section 304(d)(1) of such Act (2 U.S.C.

434(d)(1)) is amended by inserting “or (g)” after

“subsection (e)“.

38a

SEC. 213. INDEPENDENT VERSUS COORDINATED

EXPENDITURES BY PARTY.

Section 315(d) of the Federal Election Campaign Act

of 1971 (2 U.S.C. 441a(d)) is amended—

(1) in paragraph (1), by striking “and (3)” and

inserting “, (3), and (4)”;

(2) by adding at the end the following:

“(4) INDEPENDENT VERSUS COORDINATED EX-

PENDITURES BY PARTY.—

“(A) IN GENERAL.—On or after the date on

which a political party nominates a candidate, no

committee of the political party may make—

%) any coordinated expenditure under

this subsection with respect to the candidate

during the election cycle at any time after it

makes any independent expenditure (as de-

fined in section 301(17)) with respect to the

candidate during the election cycle; or

(ü) any independent expenditure (as

defined in section 301(17)) with respect to the

candidate during the election cycle at any

time after it makes any coordinated expendi-

ture under this subsection with respect to the

candidate during the election cycle.

“(B) APPLICATION.—For purposes of this

paragraph, all political committees established and

maintained by a national political party (including

all congressional campaign committees) and all

political committees established and maintained by

a State political party (including any subordinate

committee of a State committee) shall be con-

sidered to be a single political committee.

39a

“(C) TRANSFERS.—A committee of a politi-

cal party that makes coordinated expenditures

under this subsection with respect to a candidate

shall not, during an election cycle, transfer any

funds to, assign authority to make coordinated ex-

penditures under this subsection to, or receive a

transfer of funds from, a committee of the political

party that has made or intends to make an inde-

pendent expenditure with respect to the candi-

date.“.

SEC. 214. | COORDINATION WITH CANDIDATES OR

POLITICAL PARTIES.

(a) IN GENERAL.—Section 315(a)(7)(B) of the Fed-

eral Election Campaign Act of 1971 (2 U.S.C.

441a(a)(7)(B)) is amended—

(1) by redesignating clause (ii) as clause (iii);

and

(2) by inserting after clause (i) the following

new clause:

(ii) expenditures made by any person (other

than a candidate or candidate’s authorized com-

mittee) in cooperation, consultation, or concert with,

or at the request or suggestion of, a national, State,

or local committee of a political party, shall be

considered to be contributions made to such party

committee; and“.

(b) REPEAL OF CURRENT REGULATIONS.—The re-

gulations on coordinated communications paid for by

persons other than candidates, authorized committees

of candidates, and party committees adopted by the

Federal Election Commission and published in the

Federal Register at page 76138 of volume 65, Federal

40a

date by which the Commission is required to pro-

mulgate new regulations under subsection (c) (as

described in section 402(c)(1)).

(e) REGULATIONS BY THE FEDERAL ELECTION

COMMISSION.—The Federal Election Commission shall

promulgate new regulations on coordinated communi-

cations paid for by persons other than éandidates,

authorized committees of candidates, and party com-

mittees. The regulations shall not require agreement

or formal collaboration to establish coordination. In

addition to any subject determined by the Commission,

the regulations shall address—

(1) payments for the republication of campaign

materials;

(2) payments for the use of a common vendor;

(3) payments for communications directed or

made by persons who previously served as an

employee of a candidate or a political party; and

(4) payments for communications made by a

person after substantial discussion about the com-

munication with a candidate or a political party.

(d) MEANING OF CONTRIBUTION OR EXPENDITURE

FOR THE PURPOSES OF SECTION 316.—Section 316(b)(2)

of the Federal Election Campaign Act of 1971 (2 U.S.C.

441b(b)(2)) is amended by striking “shall include” and

inserting “includes a contribution or expenditure, as

those terms are defined in section 301, and also

includes”.

TITLE III—MISCELLANEOUS

4la

SEC. 301. USE OF CONTRIBUTED AMOUNTS FOR

CERTAIN PURPOSES.

Title III of the Federal Election Campaign Act of

1971 (2 U.S.C. 431 et seq.) is amended by striking

section 313 and inserting the following:

“(a) PERMITTED USES.—A contribution accepted by

a candidate, and any other donation received by an

individual as support for activities of the individual as a

holder of Federal office, may be used by the candidate

or individual—

“(1) for otherwise authorized expenditures in

connection with the campaign for Federal office of

the candidate or individual;

“(2) for ordinary and necessary expenses in-

curred in connection with duties of the individual as a

holder of Federal office;

“(3) for contributions to an organization de-

scribed in section 170(c) of the Internal Revenue

Code of 1986; or

“(4) for transfers, without limitation, to a

national, State, or local committee of a political party.

“(b) PROHIBITED USE.—

“(1) IN GENERAL.—A contribution or donation

described in subsection (a) shall not be converted by

any person to personal use.

“(2) CONVERSION.—For the purposes of para-

graph (1), a contribution or donation shall be con-

sidered to be converted to personal use if the con-

tribution or amount is used to fulfill any commitment,

obligation, or expense of a person that would exist

irrespective of the candidate’s election campaign or

42a

individual’s duties as a holder of Federal office,

including—

“(A) a home mortgage, rent, or utility pay-

ment;

“(B) aclothing purchase;

„(C) a noncampaign-related automobile

expense;

„D) a country club membership;

(E) a vacation or other noneampaign- related

trip;

“(F) a household food item;

G) a tuition payment;

“(H) admission to a sporting event, concert,

theater, or other form of entertainment not

associated with an election campaign; and

„J) dues, fees, and other payments to a

health club or recreational facility.”.

SEC. 302. PROHIBITION OF FUNDRAISING ON

FEDERAL PROPERTY.

Section 607 of title 18, United States Code, is

amended—

(1) by striking subsection (a) and inserting the

following:

“(a) PROHIBITION.—

“(1) IN GENERAL.—It shall be unlawful for any

person to solicit or receive a donation of money or

other thing of value in connection with a Federal,

State, or local election from a person who is located

in a room or building occupied in the discharge of

43a

official duties by an officer or employee of the United

States. It shall be unlawful for an individual who is

an officer or employee of the Federal Government,

including the President, Vice President, and Mem-

bers of Congress, to solicit or receive a donation of

money or other thing of value in connection with a

Federal, State, or local election, while in any room or

building occupied in the discharge of official duties by

an officer or employee of the United States, from any

person.

“(2) PENALTY.—A person who violates this sec-

tion shall be fined not more than $5,000, imprisoned

not more than 3 years, or both.”; and

(2) in subsection (b), by inserting “or Executive

Office of the President” after “Congress”.

SEC. 303. STRENGTHENING FOREIGN MONEY

BAN.

Section 319 of the Federal Election Campaign Act of

1971 (2 U.S.C. 44le) is amended—

(1) by striking the heading and inserting the

following: “CONTRIBUTIONS AND DONATIONS BY

FOREIGN NATIONALS”; and

(2) by striking subsection (a) and inserting the

following:

(a) PROHIBITION.—It shall be unlawful for

) a foreign national, directly or indirectly, to

make—

a contribution or donation of money or

other thing of value, or to make an express or

implied promise to make a contribution or

44a

donation, in connection with a Federal, State, or

local election;

“(B) a contribution or donation to a com-

mittee of a political party; or

“(C) an expenditure, independent expendi-

ture, or disbursement for an electioneering com-

munication (within the meaning of section

304(f)(3)); or

“(2) a person to solicit, accept, or receive a

contribution or donation described in subparagraph

(A) or (B) of paragraph (1) from a foreign national.”.

SEC. 304. MODIFICATION OF INDIVIDUAL CON-

TRIBUTION LIMITS IN RESPONSE TO

EXPENDITURES FROM PERSONAL

FUNDS.

(a) INCREASED LIMITS FOR INDIVIDUALS.—Section

315 of the Federal Election Campaign Act of 1971 (2

U.S.C. 441a) is amended—

(1) in subsection (a)(1), by striking “No person”

and inserting “Except as provided in subsection (i),

no person”; and

(2) by adding at the end the following:

(i) INCREASED LIMIT TO ALLOW RESPONSE TO

EXPENDITURES FROM PERSONAL FUNDS.—

“(1) INCREASE.—

“(A) IN GENERAL.—Subject to paragraph

(2), if the opposition personal funds amount with

respect to a candidate for election to the office of

Senator exceeds the threshold amount, the limit

under subsection (a)(1)(A) (in this subsection

45a

referred to as the ‘applicable limit’) with respect

to that candidate shall be the increased limit.

“(B) THRESHOLD AMOUNT.—

“(i) STATE-BY-STATE COMPETITIVE AND

FAIR CAMPAIGN FoRMULA. -In this subsec-

tion, the threshold amount with respect to an

election cycle of a candidate described in

subparagraph (A) is an amount equal to the

sum of—

) $150,000; and

“(II) $0.04 multiplied by the voting

age population.

„(ü) VOTING AGE POPULATION.—In this

subparagraph, the term ‘voting age popu-

lation’ means in the case of a candidate for the

office of Senator, the voting age population of

the State of the candidate (as certified under

section 315(e)).

C) INCREASED LIMIT.—Except as pro-

vided in clause (ii), for purposes of subparagraph

(A), if the opposition personal funds amount is

over—

“(i) 2 times the threshold amount, but

not over 4 times that amount—

) the increased limit shall be 3

times the applicable limit; and

“(II) the limit under subsection (a)(3)

shall not apply with respect to any con-

tribution made with respect to a candidate

if such contribution is made under the in-

creased limit of subparagraph (A) during

46a

a period in which the candidate may

accept such a contribution;

“(ii) 4 times the threshold amount, but

not over 10 times that amount—

(J) the increased limit shall be 6

times the applicable limit; and

“(II) the limit under subsection (a)(3)

shall not apply with respect to any contri-

bution made with respect to a candidate if

such contribution is made under the in-

creased limit of subparagraph (A) during

a period in which the candidate may

accept such a contribution; and

„(iii) 10 times the threshold amount

s)) the increased limit shall be 6

times the applicable limit;

“(II) the limit under subsection (a)(3)

shall not apply with respect to any contri-

bution made with respect to a candidate if

such contribution is made under the in-

creased limit of subparagraph (A) during

a period in which the candidate may

accept such a contribution; and

(III) the limits under subsection (d)

with respect to any expenditure by a

State or national committee of a political

party shall not apply.

(D) OPPOSITION PERSONAL FUNDS AMOUNT.

—The opposition personal funds amount is an

amount equal to the excess (if any) of

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i) the greatest aggregate amount of

expenditures from personal funds (as defined

in section 304(a)(6)(B)) that an opposing can-

didate in the same election makes; over

ü) the aggregate amount of expendi-

tures from personal funds made by the can-

didate with respect to the election.

“(2) TIME TO ACCEPT CONTRIBUTIONS UNDER

INCREASED LIMIT.—

“(A) IN GENERAL.—Subject to subpara-

graph (B), a candidate and the candidate’s author-

ized committee shall not accept any contribution,

and a party committee shall not make any expen-

diture, under the increased limit under paragraph

(1)—

“(i) until the candidate has received

notification of the opposition personal funds

amount under section 304(a)(6)(B); and

(u) to the extent that such contribution,

when added to the aggregate amount of con-

tributions previously accepted and party ex-

penditures previously made under the

increased limits under this subsection for the

election cycle, exceeds 110 percent of the

opposition personal funds amount.

“(B) EFFECT OF WITHDRAWAL OF AN

OPPOSING CANDIDATE.—A candidate and a can-

didate’s authorized committee shall not accept

any contribution and a party shall not make any

expenditure under the increased limit after the

date on which an opposing candidate ceases to be

a candidate to the extent that the amount of such

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increased limit is attributable to such an opposing

candidate.

“(3) DISPOSAL OF EXCESS CONTRIBUTIONS.—

“(A) IN GENERAL.—The aggregate amount

of contributions accepted by a candidate or a

candidate’s authorized committee under the

increased limit under paragraph (1) and not

otherwise expended in connection with the

election with respect to which such contributions

relate shall, not later than 50 days after the date

of such election, be used in the manner described

in subparagraph (B).

“(B) RETURN TO CONTRIBUTORS.—A candi-

date or a candidate’s authorized committee shall

return the excess contribution to the person who

made the contribution.

“(j) LIMITATION ON REPAYMENT OF PERSONAL

LOANS.—Any candidate who incurs personal loans

made after the effective date of the Bipartisan Cam-

paign Reform Act of 2002 in connection with the can-

didate’s campaign for election shall not repay (directly

or indirectly), to the extent such loans exceed $250,000,

such loans from any contributions made to such

candidate or any authorized committee of such

candidate after the date of such election.”.

(b) NOTIFICATION OF EXPENDITURES FROM PER-

SONAL FUNDS.—Section 304(a)(6) of the Federal Elec-

tion Campaign Act of 1971 (2 U.S.C. 434(a)(6)) is

amended—

(1) by redesignating subparagraph (B) as

subparagraph (E); and

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(2) by inserting after subparagraph (A) the

following:

“(B) NOTIFICATION OF EXPENDITURE FROM PER-

SONAL FUNDS.—

“G) DEFINITION OF EXPENDITURE FROM PER-

SONAL FUNDS.—In this subparagraph, the term

‘expenditure from personal funds’ means—

an expenditure made by a candidate

using personal funds; and

a contribution or loan made by a can-

didate using personal funds or a loan secured

using such funds to the candidate’s authorized

committee.

Kü) DECLARATION OF INTENT.—Not later

than the date that is 15 days after the date on which

an individual becomes a candidate for the office of

Senator, the candidate shall “le a declaration stating

the total amount of expenditures from personal funds

that the candidate intends to make, or to obligate to

make, with respect to the election that will exceed

the State-by-State competitive and fair campaign

formula with—

the Commission; and

“(II) each candidate in the same election.

(ui) INITIAL NOTIFICATION.—Not later than

24 hours after a candidate described in clause (ii)

makes or obligates to make an aggregate amount of

expenditures from personal funds in excess of 2

times the threshold amount in connection with any

election, the candidate shall file a notification with—

the Commission; and

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II) each candidate in the same election.

„(iv) ADDITIONAL NOTIFICATION.—After a

candidate files an initial notification under clause (iii),

the candidate shall file an additional notification each

time expenditures from personal funds are made or

obligated to be made in an aggregate amount that

exceed $10,000 with—

J the Commission; and

“(II) each candidate in the same election.

Such notification shall be filed not later than 24 hours

after the expenditure is made.

% | CONTENTS.—A notification under clause

(iii) or (iv) shall include—

J) the name of the candidate and the

office sought by the candidate;

“(II) the date and amount of each expen-

diture; and

“(III) the total amount of expenditures from

personal funds that the candidate has made, or

obligated to make, with respect to an election as

of the date of the expenditure that is the subject

of the notification.

“(C) NOTIFICATION OF DISPOSAL OF EXCESS CON-

TRIBUTIONS.—In the next regularly scheduled report

after the date of the election for which a candidate

seeks nomination for election to, or election to, Federal

office, the candidate or the candidate’s authorized com-

mittee shall submit to the Commission a report indicat-

ing the source and amount of any excess contributions

(as determined under paragraph (1) of section 315(i))

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and the manner in which the candidate or the

candidate’s authorized committee used such funds.

“(D) ENFORCEMENT.—For provisions providing for

the enforcement of the reporting requirements under

this paragraph, see section 309.”.

tion Campaign Act of 1971 (2 U.S.C. 431), as amended

by section 101(b), is further amended by adding at the

end the following:

“(25) ELECTION CYCLE.—For purposes of

sections 315(i) and 315A and paragraph (26), the term

‘election cycle’ means the period beginning on the

day after the date of the most recent election for the

specific office or seat that a candidate is seeking and

ending on the date of the next election for that office

or seat. For purposes of the preceding sentence, a

primary election and a general election shall be

considered to be separate elections.

“(26) PERSONAL FUNDS.—The term ‘personal

funds’ means an amount that is derived from—

“(A) any asset that, under applicable State

law, at the time the individual became a can-

didate, the candidate had legal right of access to

or control over, and with respect to which the

candidate had

) legal and rightful title; or

ü) an equitable interest;

“(B) income received during the current

election cycle of the candidate, including—

i) a salary and other earned income

from bona fide employment;

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ü) dividends and proceeds from the

sale of the candidate’s stocks or other

investments;

ii) bequests to the candidate;

“(ivy) income from trusts established be-

fore the beginning of the election cycle;

“(y) income from trusts established by

bequest after the beginning of the election

cycle of which the candidate is the bene-

ficiary;

“(vi) gifts of a personal nature that had

been customarily received by the candidate

prior to the beginning of the election cycle;

and

vi) proceeds from lotteries and similar

legal games of chance; and

“(C) a portion of assets that are jointly

owned by the candidate and the candidate’s

spouse equal to the candidate’s share of the asset

under the instrument of conveyance or owner-

ship, but if no specific share is indicated by an

instrument of conveyance or ownership, the

value of 1/2 of the property.”.

53a

SEC. 305. LIMITATION ON AVAILABILITY OF

LOWEST UNIT CHARGE FOR FEDERAL

CANDIDATES ATTACKING OPPOSI-

TION.

(a) IN GENERAL.—Section 315(b) of the Com-

munications Act of 1934 (47 U.S. C. 315(b)) is

amended—

(1) by striking b) The charges” and inserting

the following:

“(b) CHARGES.—

“(1) IN GENERAL.—The charges”;

(2) by redesignating paragraphs (1) and (2) as

subparagraphs (A) and (B), respectively; and

(3) by adding at the end the following:

(2) CONTENT OF BROADCASTS.—

“(A) IN GENERAL.—In the case of a can-

didate for Federal office, such candidate shall not

be entitled to receive the rate under paragraph

(1)(A) for the use of any broadcasting station

unless the candidate provides written certifica-

tion to the broadcast station that the candidate

(and any authorized committee of the candidate)

shall not make any direct reference to another

candidate for the same office, in any broadcast

using the rights and conditions of access under

this Act, unless such reference meets the re-

quirements of subparagraph (C) or (D).

“(B) LIMITATION ON CHARGES.—If a can-

didate for Federal office (or any authorized

committee of such candidate) makes a reference

described in subparagraph (A) in any broadcast

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that does not meet the requirements of sub-

paragraph (C) or (D), such candidate shall not be

entitled to receive the rate under paragraph

(1)(A) for such broadcast or any other broadcast

during any portion of the 45-day and 60-day

periods described in paragraph (1)(A), that occur

on or after the date of such broadcast, for

election to such office.

“(C) TELEVISION BROADCASTS.—A candi-

date meets the requirements of this subpara-

graph if, in the case of a television broadcast, at

the end of such broadcast there appears simul-

taneously, for a period no less than 4 seconds—

ei) a clearly identifiable photographic

or similar image of the candidate; and

i) a clearly readable printed state-

ment, identifying the candidate and stating

that the candidate has approved the broad-

cast and that the candidate’s authorized

committee paid for the broadcast.

“(D) RADIO BROADCASTS.—A candidate

meets the requirements of this subparagraph if,

in the case of a radio broadcast, the broadcast

includes a personal audio statement by the can-

didate that identifies the candidate, the office the

candidate is seeking, and indicates that the

candidate has approved the broadcast.

(E) CERTIFICATION.—Certifications under

this section shall be provided and certified as

accurate by the candidate (or any authorized

committee of the candidate) at the time of

purchase.

55a

“(F) DEFINITIONS.—For purposes of this

paragraph, the terms ‘authorized committee’ and

‘Federal office’ have the meanings given such

terms by section 301 of the Federal Election

Campaign Act of 1971 (2 U.S.C. 431).“.

(b) CONFORMING AMENDMENT.—Section 315(b)(1)(A)

of the Communications Act of 1934 (47 U.S.C.

315(b)(1)(A)), as amended by this Act, is amended by

inserting “subject to paragraph (2),” before “during the

forty-five days”.

this section shall apply to broadcasts made after the

effective date of this Act.

SEC. 306. SOFTWARE FOR FILING REPORTS AND

PROMPT DISCLOSURE OF CONTRI-

BUTIONS.

Section 304(a) of the Federal Election Campaign Act

of 1971 (2 U.S.C. 434(a)) is amended by adding at the

end the following:

“(12) SOFTWARE FOR FILING OF REPORTS.—

“(A) IN GENERAL.—The Commission shall

) promulgate standards to be used by

vendors to develop software that—

“(I) permits candidates to easily re-

cord information concerning receipts and

disbursements required to be reported

under this Act at the time of the receipt

or disbursement;

56a

(II) allows the information recorded

under subclause (I) to be transmitted im-

mediately to the Commission; and

“(III) allows the Commission to post

the information on the Internet immedi-

ately upon receipt; and

ii) make a copy of software that meets

the standards promulgated under clause (i) avail-

able to each person required to file a designation,

statement, or report in electronic form under

this Act.

“(B) ADDITIONAL INFORMATION.—To the

extent feasible, the Commission shall require

vendors to include in the software developed

under the standards under subparagraph (A) the

ability for any person to file any designation,

statement, or report required under this Act in

electronic form.

„(C) REQUIRED USE.—Notwithstanding

any provision of this Act relating to times for

filing reports, each candidate for Federal office

(or that candidate’s authorized committee) shall

use software that meets the standards pro-

mulgated under this paragraph once such

software is made available to such candidate.

„(D) REQUIRED POSTING.—The Commis-

sion shall, as soon as practicable, post on the

Internet any information received under this

paragraph.”.

SEC. 307. MODIFICATION OF CONTRIBUTION

LIMITS.

57a

(a) INCREASE IN INDIVIDUAL LIMITS FOR CERTAIN

CONTRIBUTIONS.—Section 315(a)(1) of the Federal

Election Campaign Act of 1971 (2 U.S.C. 441a(a)(1)) is

amended—

(1) in subparagraph (A), by striking “$1,000”

and inserting “$2,000”; and

(2) in subparagraph (B), by striking “$20,000”

and inserting “$25,000”.

(b) INCREASE IN ANNUAL AGGREGATE LIMIT ON

INDIVIDUAL CONTRIBUTIONS.—Section 315(a)(3) of the

Federal Election Campaign Act of 1971 (2 U.S.C.

441a(a)(3)) is amended to read as follows:

“(3) During the period which begins on January 1 of

an odd-numbered year and ends on December 31 of the

next even-numbered year, no individual may make

contributions aggregating more than—

“(A) $37,500, in the case of contributions to

candidates and the authorized committees of

candidates;

“(B) $57,500, in the case of any other con-

tributions, of which not more than $37,500 may

be attributable to contributions to political

committees which are not political committees of

national political parties.“

MITTEE LIMIT.—Section 315(h) of the Federal Election

Campaign Act of 1971 (2 U.S.C. 441a(h)) is amended by

striking “$17,500” and inserting “$35,000”.

(d) INDEXING OF CONTRIBUTION LIMITS.—Section

315(c) of the Federal Election Campaign Act of 1971 (2

U.S.C. 441a(c)) is amended—

58a

(1) in paragraph (1)—

(A) by striking the second and third sentences;

(B) by inserting “(A)” before “At the

beginning”; and

“(B) Except as provided in subparagraph (C), in any

calendar year after 2002—

) a limitation established by subsections

(a)(1)(A), (a)(1)(B), (a)(3), (b), (d), or ch) shall be

increased by the percent difference determined

under subparagraph (A);

„(ü) each amount so increased shall remain in

effect for the calendar year; and

(ü) if any amount after adjustment under

clause (i) is not a multiple of $100, such amount shall

be rounded to the nearest multiple of $100.

“(C) In the case of limitations under subsections

(a)(1)(A), (a)(1)(B), (a)(3), and (h), increases shall only be

made in odd-numbered years and such increases shall

remain in effect for the 2-year period beginning on the

first day following the date of the last general election

in the year preceding the year in which the amount is

increased and ending on the date of the next general

election.”; and

(2) in paragraph (2)(B), by striking “means the

calendar year 1974” and inserting means

i) for purposes of subsections (b) and (d),

calendar year 1974; and

() for purposes of subsections (a)(1)(A),

(a)(1)(B), (a)(3), and (h), calendar year 2001”.

59a

(e) EFFECTIVE DATE.—The amendments made by

this section shall apply with respect to contributions

made on or after January 1, 2003.

SEC. 308. DONATIONS TO PRESIDENTIAL IN-

AUGURAL COMMITTEE.

(a) IN GENERAL.—Chapter 5 of title 36, United

States Code, is amended by—

(1) redesignating section 510 as section 511; and

(2) inserting after section 509 the following:

“$510. Disclosure of and prohibition on certain

donations

“(a) IN GENERAL.—A committee shall not be con-

sidered to be the Inaugural Committee for purposes of

this chapter unless the committee agrees to, and meets,

the requirements of subsections (b) and (c).

“(b) DISCLOSURE.—

“(1) IN GENERAL.—Not later than the date that

is 90 days after the date of the Presidential inaugural

ceremony, the committee shall file a report with the

Federal Election Commission disclosing any donation

of money or anything of value made to the committee

in an aggregate amount equal to or greater than

“(2) CONTENTS OF REPORT.—A report filed

under paragraph (1) shall contain—

“(A) the amount of the donation;

“(B) the date the donation is received; and

“(C) the name and address of the person

making the donation.

60a

de) LIMITATION.—The committee shall not accept

any donation from a foreign national (as defined in

section 319(b) of the Federal Election Campaign Act of

1971 (2 U.S.C. 441e(b))).”.

(b) REPORTS MADE AVAILABLE BY FEC.—Section

304 of the Federal Election Campaign Act of 1971 (2

U.S.C. 434), as amended by sections 103, 201, and 212 is

amended by adding at the end the following:

“(h) REPORTS FROM INAUGURAL COMMITTEES.—The

Federal Election Commission shall make any report

filed by an Inaugural Committee under section 510 of

title 36, United States Code, accessible to the public at

the offices of the Commission and on the Internet not

later than 48 hours after the report is received by the

Commission.“.

SEC. 309. PROHIBITION ON FRAUDULENT SO-

LICITATION OF FUNDS.

Section 322 of the Federal Election Campaign Act of

1971 (2 U.S.C. 441h) is amended—

(i) by inserting (a) INGENERAL.—” before “No

person”; and

(2) by adding at the end the following:

„b) FRAUDULENT SOLICITATION OF FUNDS.—No

person shall—

“(1) fraudulently misrepresent the person as

speaking, writing, or otherwise acting for or on

behalf of any candidate or political party or employee

or agent thereof for the purpose of soliciting

contributions or donations; or

6la

“(2) willfully and knowingly participate in or

conspire to participate in any plan, scheme, or design

to violate paragraph (1).”.

SEC. 310. STUDY AND REPORT ON CLEAN MONEY

CLEAN ELECTIONS LAWS.

(a) CLEAN MONEY CLEAN ELECTIONS DEFINED.—

In this section, the term “clean money clean elections”

means funds received under State laws that provide in

whole or in part for the public financing of election

campaigns.

(b) Stupy.—

(1) IN GENERAL.—The Comptroller General

shall conduct a study of the clean money clean

elections of Arizona and Maine.

(2) MATTERS STUDIED.—

(A) STATISTICS ON CLEAN MONEY CLEAN

ELECTIONS CANDIDATES.—The Comptroller Gen-

eral shall determine—

(i) the number of candidates who have

chosen to run for public office with clean

money clean elections including—

(I) the office for which they were

candidates;

(II) whether the candidate was an

incumbent or a challenger; and

(III) whether the candidate was suc-

cessful in the candidate’s bid for public

office; and

62a

(ii) the number of races in which at least

one candidate ran an election with clean

money clean elections.

(B) EFFECTS OF CLEAN MONEY CLEAN

ELECTIONS.—The Comptroller General of the

United States shall describe the effects uf public

financing under the clean money clean elections

laws on the 2000 elections in Arizona and Maine.

of enactment of this Act, the Comptroller General of the

United States shall submit a report to the Congress

detailing the results of the study conducted under

subsection (b).

SEC.311. CLARITY STANDARDS FOR IDENTIFI-

CATION OF SPONSORS OF ELECTION-

RELATED ADVERTISING.

Section 318 of the Federal Election Campaign Act of

1971 (2 U.S.C. 441d) is amended—

(1) in subsection (a)

(A) in the matter preceding paragraph (1)—

(i) by striking “Whenever” and inserting

“Whenever a political committee makes a

disbursement for the purpose of financing any

communication through any broadcasting

station, newspaper, magazine, outdoor adver-

tising facility, mailing, or any other type of

general public political advertising, or when-

ever”;

(ii) by striking “an expenditure” and

inserting “a disbursement”;

63a

(iii) by striking “direct”; and

(iv) by inserting “or makes a disbursement

for an electioneering communication (as defined

in section 304(f)(3))” after “public political

advertising”; and

(B) in paragraph (3), by inserting “and per-

manent street address, telephone number, or World

Wide Web address” after “name”; and

(2) by adding at the end the following:

“(c) SPECIFICATION.—Any printed communication

described in subsection (a) shall—

“(1) be of sufficient type size to be clearly

readable by the recipient of the communication;

“(2) be contained in a printed box set apart from

the other contents of the communication; and

) de printed with a reasonable degree of color

contrast between the background and the printed

statement.

d) ADDITIONAL REQUIREMENTS.—

) COMMUNICATIONS BY CANDIDATES OR

AUTHORIZED PERSONS.—

“(A) BY RADIO.—Any communication de-

scribed in paragraph (1) or (2) of subsection (a)

which is transmitted through radio shall include, in

addition to the requirements of that paragraph, an

audio statement by the candidate that identifies

the candidate and states that the candidate has

approved the communication.

“(B) BY TELEVISION.—Any communication

described in paragraph (1) or (2) of subsection (a)

which is transmitted through television shall in-

64a

clude, in addition to the requirements of that para-

graph, a statement that identifies the candidate

and states that the candidate has approved the

communication. Such statement—

“(j) shall be conveyed by—

J) an unobscured, full-screen view of

the candidate making the statement, or

“(II) the candidate in voice-over, ac-

companied by a clearly identifiable photo-

graphic or similar image of the candidate;

and

Kü) shall also appear in writing at the

end of the communication in a clearly read-

able manner with a reasonable degree of

color contrast between the background and

the printed statement, for a period of at least

4 seconds.

“(2) COMMUNICATIONS BY OThers.—Any commu-

nication described in paragraph (3) of subsection (a)

which is transmitted through radio or television shall

include, in addition to the requirements of that

paragraph, in a clearly spoken manner, the following

audio statement: is responsible for the

content of this advertising.’ (with the blank to be

filled in with the name of the political committee or

other person paying for the communication and the

name of any connected organization of the payor). If

transmitted through television, the statement shall

be conveyed by an unobscured, full-screen view of a

representative of the political committee or other

person making the statement, or by a representative

of such political committee or other person in voice-

over, and shall also appear in a clearly readable

65a

manner with a reasonable degree of color contrast

between the background and the printed statement,

for a period of at least 4 seconds.”.

SEC.312. INCREASE IN PENALTIES.

(a) IN GENERAL.—Subparagraph (A) of section

309(d)(1) of the Federal Election Campaign Act of 1971

(2 U.S.C. 437g(d)(1)(A)) is amended to read as follows:

“(A) Any person who knowingly and willfully com-

mits a violation of any provision of this Act which

involves the making, receiving, or reporting of any

contribution, donation, or expenditure—

% aggregating $25,000 or more during a

calendar year shall be fined under title 18, United

States Code, or imprisoned for not more than 5 years,

or both; or '

ü) aggregating $2,000 or more (but less than

$25,000) during a calendar year shall be fined under

such title, or imprisoned for not more than 1 year, or

both.”.

(b) EFFECTIVE DATE.—The amendment made by

this section shall apply to violations occurring on or

after the effective date of this Act.

SEC. 313. STATUTE OF LIMITATIONS.

(a) IN GENERAL.—Section 406(a) of the Federal

Election Campaign Act of 1971 (2 U.S.C. 455(a)) is

amended by striking “3” and inserting “5”.

(b) EFFECTIVE DATE.—The amendment made by

this section shall apply to violations occurring on or

after the effective date of this Act.

SEC. 314. SENTENCING GUIDELINES.

(a) IN GENERAL.—The United States Sentencing

Commission shal]—

66a

(1) promulgate a guideline, or amend an exist-

ing guideline under section 994 of title 28, United

States Code, in accordance with paragraph (2), for

penalties for violations of the Federal Election

Campaign Act of 1971 and related election laws; and

(2) submit to Congress an explanation of any

guidelines promulgated under paragraph (1) and any

legislative or administrative recommendations re-

garding enforcement of the Federal Election Cam-

pa gn Act of 1971 and related election laws.

(b) CONSIDERATIONS.—The Commission shall pro-

vide guidelines under subsection (a) taking into account

the following considerations:

(1) Ensure that the sentencing guidelines and

policy statements reflect the serious nature of

such violations and the need for aggressive and

appropriate law enforcement action to prevent

such violations.

(2) Provide a sentencing enhancement for any

person convicted of such violation if such violation

involves—

(A) a contribution, donation, or expenditure

from a foreign source;

(B) a large number of illegal transactions;

contributions, donations, or expenditures;

(D) the receipt or disbursement of

governmental funds; and

(E) an intent to achieve a benefit from the

Federal Government.

67a

(3) Assure reasonable consistency with other

relevant directives and guidelines of the Com-

mission.

(4) Account for aggravating or mitigating cir-

cumstances that might justify exceptions, include-

ing circumstances for which the sentencing guide-

lines currently provide sentencing enhancements.

(5) Assure the guidelines adequately meet the

purposes of sentencing under section 3553(a)(2) of

title 18, United States Code.

(e) EFFECTIVE DATE; EMERGENCY AUTHORITY TO

PROMULGATE GUIDELINES.—

(1) EFFECTIVE DATE.—Notwithstanding section

402, the United States Sentencing Commission shall

promulgate guidelines under this section not later

than the later of —

(A) 90 days after the effective date of this

Act; or

(B) 90 days after the date on which at least

a majority of the members of the Commission

are appointed and holding office.

(2) EMERGENCY AUTHORITY TO PROMULGATE

GUIDELINES.—The Commission shall promulgate

guidelines under this section in accordance with the

procedures set forth in section 21(a) of the Sentenc-

ing Reform Act of 1987, as though the authority

under such Act has not expired.

68a

SEC. 315. INCREASE IN PENALTIES IMPOSED FOR

VIOLATIONS OF CONDUIT CONTRIBU-

TION BAN.

(a) INCREASE IN CIVIL MONEY PENALTY FOR

KNOWING AND WILLFUL VIOLATIONS.— Section 309(a)

of the Federal Election Campaign Act of 1971 (2 U.S.C.

437¢(a)) is amended—

(1) in paragraph (5)(B), by inserting before the

period at the end the following: “(or, in the case of a

violation of section 320, which is not less than 300

percent of the amount involved in the violation and is

not more than the greater of $50,000 or 1,000 percent

of the amount involved in the violation)”; and

(2) in paragraph (6)(C), by inserting before the

period at the end the following: “(or, in the case of a

violation of section 320, which is not less than 300

percent of the amount involved in the violation and is

not more than the greater of $50,000 or 1,000 percent

of the amount involved in the violation)”.

(b) INCREASE IN CRIMINAL PENALTY.—Section

309(d)(1) of such Act (2 U.S.C. 437g(d)(1)) is amended

by adding at the end the following new subparagraph:

“(D) Any person who knowingly and willfully

commits a violation of section 320 involving an amount

aggregating more than $10,000 during a calendar year

shall be

“(j) imprisoned for not more than 2 years if the

amount is less than 825,000 (and subjeet to imprison-

ment under subparagraph (A) if the amount is

825,000 or more);

69a

ii) fined not less than 300 percent of the

amount involved in the violation and not more than

the greater of—

J) $50,000; or

ID 1,000 percent of the amount involved in

the violation; or

ii) both imprisoned under clause (i) and fined

under clause (ii).”.

this section shall apply with respect to violations

occurring on or after the effective date of this Act.

SEC. 316. RESTRICTION ON INCREASED CON.

TRIBUTION LIMITS BY TAKING INTO

ACCOUNT CANDIDATE’S AVAILABLE

FUNDS.

Section 315(i)(1) of the Federal Election Campaign

Act of 1971 (2 U.S.C. 441a(i)(1)), as added by this Act, is

amended by adding at the end the following:

“(E) SPECIAL RULE FOR CANDIDATE’S

CAMPAIGN FUNDS.—

“(i) IN GENERAL.—For purposes of de-

termining the aggregate amount of expen-

ditures from personal funds under subpara-

graph (D)(ii), such amount shall include the

gross receipts advantage of the candidate’s

authorized committee.

(ü) GROSS RECEIPTS ADVANTAGE.—For

purposes of clause (i), the term ‘gross receipts

advantage’ means the excess, if any, of

SEC. 317.

70a

(J) the aggregate amount of 50

percent of gross receipts of a candidate’s

authorized committee during any election

cycle (not including contributions from

personal funds of the candidate that may

be expended in connection with the elec-

tion, as determined on June 30 and

December 31 of the year preceding the

year in which a general election is held,

over

“(II) the aggregate amount of 50

percent of gross receipts of the opposing

candidate’s authorized committee during

any election cycle (not including contri-

butions from personal funds of the can-

didate) that may be expended in connec-

tion with the election, as determined on

June 30 and December 31 of the year

preceding the year in which a general

election is held.”.

CLARIFICATION OF RIGHT OF NATION-

ALS OF THE UNITED STATES TO MAKE

POLITICAL CONTRIBUTIONS.

Section 319(b)(2) of the Federal Election Campaign

Act of 1971 (2 U.S.C. 441e(b)(2)) is amended by in-

serting after “United States” the following: “or a

national of the United States (as defined in section

101(a)(22) of the Immigration and Nationality Act)”.

SEC. 318.

PROHIBITION OF CONTRIBUTIONS BY

MINORS.

Title III of the Federal Election Campaign Act of

1971 (2 U.S.C. 431 et seq.), as amended by section 101,

71a

is further amended by adding at the end the following

new section:

“PROHIBITION OF CONTRIBUTIONS BY MINORS

“SEC. 324. An individual who is 17 years old or

younger shall not make a contribution to a candidate or

a contribution or donation to a committee of a political

party.”.

SEC. 319. MODIFICATION OF INDIVIDUAL CON-

TRIBUTION LIMITS FOR HOUSE CAN-

DIDATES IN RESPONSE TO EXPENDI-

TURES FROM PERSONAL FUNDS

(a) INCREASED LIMITS.—Title III of the Federal

Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) is

amended by inserting after section 315 the following

new section:

“MODIFICATION OF CERTAIN LIMITS FOR

HOUSE CANDIDATES IN RESPONSE TO PER-

SONAL FUND EXPENDITURES OF OPPO-

NENTS

“SEC. 315A. (a) AVAILABILITY OF INCREASED

LIMIT.—

“(1) IN GENERAL.—Subject to paragraph (3),

if the opposition personal funds amount with

respect to a candidate for eleetion to the office of

Representative in, or Delegate or Resident Com-

missioner to, the Congress exceeds $350,000—

“(A) the limit under subsection (a)(1)(A)

with respect to the candidate shall be tripled;

“(B) the limit under subsection (a)(3)

shall not apply with respect to any contri-

72a

bution made with respect to the candidate if

the contribution is made under the increased

limit allowed under subparagraph (A) during

a period in which the candidate may accept

such a contribution; and

“(C) the limits under subsection (d) with

respect to any expenditure by a State or

national committee of a political party on

behalf of the candidate shall not apply.

“(2) DETERMINATION OF OPPOSITION PER-

SONAL FUNDS AMOUNT.— .

“(A) IN GENERAL.—The opposition

personal funds amount is an amount equal to

the excess (if any) of—

%) the greatest aggregate

amount of expenditures from personal

funds (as defined in subsection (b)(1))

that an opposing candidate in the same

election makes; over

„(ii) the aggregate amount of

expenditures from personal funds made

by the candidate with respect to the

election.

“(B) SPECIAL RULE FOR CANDIDATE’S

CAMPAIGN FUNDS.—

“(j) IN GENERAL.—For purposes

of determining the aggregate amount of

expenditures from personal funds under

subparagraph (A), such amount shall

include the gross receipts advantage of

the candidate’s authorized committee.

73a

ui) GROSS RECEIPTS ADVANT-

AGE.—For purposes of clause (i), the

term ‘gross receipts advantage’ means

the excess, if any, of—

) the aggregate amount

of 50 percent of gross receipts of a

candidate’s authorized committee

during any election cycle (not in-

cluding contributions from per-

sonal funds of the candidate) that

may be expended in connection

with the election, as determined

on June 30 and December 31 of the

year preceding the year in which a

general election is held, over

I) the aggregate amount

of 50 percent of gross receipts of

the opposing candidate’s author-

ized committee during any elec-

tion cycle (not including contribu-

tions from personal funds of the

candidate) that may be expended

in connection with the election,

as determined on June 30 and

December 31 of the year pre-

ceding the year in which a general

election is held.

“(3) TIME TO ACCEPT CONTRIBUTIONS UNDER

INCREASED LIMIT.—

“(A) IN GENERAL.—Subject to sub-

paragraph (B), a candidate and the can-

didate’s authorized committee shall not

accept any contribution, and a party com-

74a

mittee shall not make any expenditure, under

the increased limit under paragraph (1)—

) until the candidate has re-

ceived notification of the opposition per-

sonal funds amount under subsection

(b)(1); and

ei) to the extent that such con-

tribution, when added to the aggregate

amount of contributions previously

accepted and party expenditures pre-

viously made under the increased limits

under this subsection for the election

cycle, exceeds 100 percent of the opposi-

tion personal funds amount.

“(B) EFFECT OF WITHDRAWAL OF AN

OPPOSING CANDIDATE.—A candidate and a

candidate’s authorized committee shall not

accept any contribution and a party shall not

make any expenditure under the increased

limit after the date on which an opposing

candidate ceases to be a candidate to the

extent that the amount of such increased

limit is attributable to such an opposing

candidate.

“(4) DISPOSAL OF EXCESS CONTRIBUTIONS.—

“(A) IN GENERAL.—The aggregate

amount of contributions accepted by a can-

didate or a candidate’s authorized committee

under the increased limit under paragraph (1)

and not otherwise expended in connection

with the election with respect to which such

contributions relate shall, not later than 50

75a

days after the date of such election, be used

in the manner deseribed in subparagraph (B).

B) RETURN TO CONTRIBUTORS.—A

candidate or a candidate’s authorized com-

mittee shall return the excess contribution to

the person who made the contribution.

“(b) NOTIFICATION OF EXPENDITURES FROM PER-

SONAL FUNDS.—

I) INGENERAL.—

“(A) DEFINITION OF EXPENDITURE

FROM PERSONAL FUNDS.—In this paragraph,

the term ‘expenditure from personal funds’

means—

%) an expenditure made by a

candidate using personal funds; and

u) a contribution or loan made

by a candidate using personal funds or a

loan secured using such funds to the

candidate’s authorized committee.

“(B) DECLARATION OF INTENT.—Not

later than the date that is 15 days after the

date on which an individual becomes a

candidate for the office of Representative in,

or Delegate or Resident Commissioner to,

the Congress, the candidate shall file a dec-

laration stating the total amount of expendi-

tures from personal funds that the candidate

intends to make, or to obligate to make, with

respect to the election that will exceed

$350,000.

“(C) INITIAL NOTIFICATION.—Not later

than 24 hours after a candidate described in

76a

— (B) makes or obligates to make

amount of expenditures from

— funds in excess of $350,000 in

connection with any election, the candidate

shall file a notification.

D) AT. “IONAL NOTIFICATION.—Af-

ter a candida < files an initial notification

under subparagraph (C), the candidate shall

file an additional notification each time ex-

penditures from personal funds are made or

obligated to be made in an aggregate amount

that exceeds $10,000. Such notification shall

be filed not later than 24 hours after the

expenditure is made.

“(E) CONTENTS.—A notification under

subparagraph (C) or (D) shall include—

“(j) the name of the candidate

and the office sought by the candidate;

ü) the date and amount of each

expenditure; and

(ii) the total amount of expendi-

tures from personal funds that the can-

didate has made, or obligated to make,

with respect to an election as of the date

of the expenditure that is the subject of

the notification.

“(F) PLACE OF FILING.—Each declara-

tion or notification required to be filed by a

candidate under subparagraph (C), (D), or (E)

shall be filed with—

s) the Commission; and

(ü) each candidate in the same

eleetion and the national party of each

such candidate.

2) NOTIFICATION OF DISPOSAL OF EXCESS

CONTRIBUTIONS.—In the next regularly sched-

uled report after the date of the election for which

a candidate seeks nomination for election to, or

election to, Federal office, the candidate or the

candidate’s authorized committee shall submit to

the Commission a report indicating the source

and amount of any excess contributions (as deter-

mined under subsection (a)) and the manner in

which the candidate or the candidate’s authorized

committee used such funds.

“(3) ENFORCEMENT.—For provisions provid-

ing for the enforcement of the reporting require-

ments under this subsection, see section 309.”

(b) CONFORMING AMENDMENT.—Section 315(a)

(1) of the Federal Election Campaign Act of 1971 (2

U.S.C. Ala), as amended by section 304(a), is amended

by striking “subsection (i),” and inserting “subsection (i)

and section 315A,”.

TITLE IV—SEVERABILITY; EFFECTIVE DATE

SEC. 401. SEVERABILITY.

If any provision of this Act or amendment made

by this Act, or the application of a provision or amend-

ment to any person or circumstance, is held to be

unconstitutional, the remainder of this Act and amend-

ments made by this Act, and the application of the

provisions and amendment to any person or circum-

stance, shall not be affected by the holding.

78a

SEC. 402. EFFECTIVE DATES AND REGULATIONS.

(a) GENERAL EFFECTIVE DATE.—

(1) IN GENERAL.—Except as provided in

the succeeding provisions of this section, the

effective date of this Act, and the amendments

made by this Act, is November 6, 2002.

(2) MODIFICATION OF CONTRIBUTION

LIMITS.—The amendments made by—

(A) section 102 shall apply with respect

to contributions made on or after January 1,

2003; and

(B) section 307 shall take effect as

provided in subsection (e) of such section.

(3) SEVERABILITY; EFFECTIVE DATES AND

REGULATIONS; JUDICIAL REVIEW.—Title IV shall

take effect on the date of enactment of this Act.

(4) PROVISIONS NOT TO APPLY TO RUNOFF

ELECTIONS.—Section 323(b) of the Federal Elec-

tion Campaign Act of 1971 (as added by section

101(a)), section 103(a), title II, sections 304

(including section 315(j) of Federal Election

Campaign Act of 1971, as added by section

304(a)(2)), 305 (notwithstanding subsection (e) of

such section), 311, 316, 318, and 319, and title V

(and the amendments made by such sections and

titles) shall take effect on November 6, 2002, but

shall not apply with respect to runoff elections,

recounts, or election contests resulting from

elections held prior to such date.

(b) SOFT MONEY OF NATIONAL POLITICAL

PARTIES.—

79a

(1) IN GENERAL.—Except for subsection

(b) of such section, section 323 of the Federal

Election Campaign Act of 1971 (as added by

section 101(a)) shall take effect on November 6,

2002.

(2) TRANSITIONAL RULES FOR THE SPEND-

ING OF SOFT MONEY OF NATIONAL POLITICAL

PARTIES.—

(A) IN GENERAL.—Notwithstanding

section 323(a) of the Federal Election

Campaign Act of 1971 (as added by section

101(a)), if a national committee of a political

party described in such section (including

any person who is subject to such section

under paragraph (2) of such section), has

received funds described in such Section

prior to November 6, 2002, the rules de-

scribed in subparagraph (B) shall apply

with respect to the spending of the amount

of such funds in the possession of such

committee as of such date.

(B) USE OF EXCESS SOFT MONEY

FUNDS.—

(i) IN GENERAL.—Subject to

clauses (ii) and (iii), the national com-

mittee of a political party may use the

amount described in subparagraph (A)

prior to January 1, 2003, solely for the

purpose of—

(I) retiring outstanding

debts or obligations that were

incurred solely in connection

80a

with an election held prior to

November 6, 2002; or

(ID paying expenses or

retiring outstanding debts or

paying for obligations that

were incurred solely in connec-

tion with any runoff election,

recount, or election contest

resulting from an election held

prior to November 6, 2002.

(ii) PROHIBITION ON USING

SOFT MONEY FOR HARD MONEY EX-

PENSES, DEBTS, AND OBLIGATIONS.—A

national committee of a political party

may not use the amount described in

subparagraph (A) for any expenditure

(as defined in section 301(9) of the

Federal Election Campaign Act of 1971

(2 U.S.C. 431(9))) or for retiring out-

standing debts or obligations that were

incurred for such an expenditure.

(iii) PROHIBITION OF BUILD-

ING FUND USES.—A national committee

of a political party may not use the

amount described in subparagraph (A)

for activities to defray the costs of the

construction or purchase of any office

building or facility.

(e) REGULATIONS.—

(1) IN GENERAL.—Except as provided in

paragraph (2), the Federal Election Commission

shall promulgate regulations to carry out this Act

and the amendments made by this Act that are

8la

under the Commission’s jurisdiction not later

than 270 days after the date of enactment of this

Act.

(2) SOFT MONEY OF POLITICAL PARTIES.—

Not later than 90 days after the date of enact-

ment of this Act, the Federal Election Commis-

sion shall promulgate regulations to carry out

title I of this Act and the amendments made by

such title.

SEC. 403. JUDICIAL REVIEW.

(a) SPECIAL RULES FOR ACTIONS BROUGHT ON

CONSTITUTIONAL GROUNDS.—If any action is brought

for declaratory or injunctive relief to challenge the

constitutionality of any provision of this Act or any

amendment made by this Act, the following rules shall

apply:

(1) The action shall be filed in the United

States District Court for the District of Columbia

and shall be heard by a 3-judge court convened

pursuant to section 2284 of title 28, United States

Code.

(2) A copy of the complaint shall be delivered

promptly to the Clerk of the House of Repre-

sentatives and the Secretary of the Senate.

(3) A final decision in the action shall be

reviewable only by appeal directly to the Supreme

Court of the United States. Such appeal shall be

taken by the filing of a notice of appeal within 10

days, and the filing of a jurisdictional statement

within 30 days, of the entry of the final decision.

(4) It shall be the duty of the United States

District Court for the District of Columbia and the

82a

Supreme Court of the United States to advance on

the docket and to expedite to the greatest possible

extent the disposition of the action and appeal.

(b) INTERVENTION BY MEMBERS OF CONGRESS.—

In any action in which the constitutionality of any

provision of this Act or any amendment made by this

Act is raised (including but

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