Jurisdictional Statement — McConnell v. Federal Election Commission
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
(r) FILED
~“ | MAY 30 2093
No. 02-1747 gunernnmen
IN THE
Supreme Court of The United States
CONGRESSMAN RON PAUL, GUN OWNERS OF AMERICA, INC.,
GUN OWNERS OF AMERICA POLITICAL VICTORY FUND,
REALCAMPAIGNREFORM.ORG, CITIZENS UNITED,
CITIZENS UNITED POLITICAL VICTORY FUND,
MICHAEL CLOUD; AND CARLA HOWELL,
Appellants,
Vv.
FEDERAL ELECTION COMMISSION, E£T AL.,
Appellees.
On Appeal fron» the United States District Court
for the District of Columbia
JURISDICTIONAL STATEMENT
HERBERT W. TITUS WILLIAM J. OLSON*
Troy A. TITuS, P.C. JOHN S. MILES
5221 Indian River Road WILLIAM J. OLSON, P.C.
Virginia Beach, VA 23464 Suite 1070
(757) 467-0616 8180 Greensboro Drive
McLean, VA 22102
(703) 356-5070
Attorneys for Appellants
*Counsel of Record May 30, 2003
(Counsel continued on inside front cover)
RICHARD O. WOLF
Moore & LEE, LLP
1750 Tysons Boulevard
Suite 1450
McLean, VA 22102
(703) 506-2050
GARY G. KREEP
U.S. JUSTICE FOUNDATION
Suite 1-C
2091 East Valley Parkway
Escondido, CA 92027
(760) 741-8086
QUESTIONS PRESENTED FOR REVIEW
1. Whether the district court erred by dismissing appellants’
freedom of the press challenge to various provisions of BCRA,
and to provisions of FECA amended by BCRA, on the ground
that, in the area of campaign finance regulation, the freedom of
the press guarantee in the First Amendment to the United States
Constitution contains no greater rights than those protected by
the guarantees of free speech and association?
2. Whether the district court erred by upholding the statutory
exemptions in BCRA enjoyed by the “institutional press” and
other FEC-licensed press activities from the prohibitions
against, and regulations of, electioneering communications and
contribution limits governing appellants, on the ground that
Congress may, regardless of the freedom of the press
guarantee, grant greater rights to the “institutional press” than
to the “general press,” only the latter of which appellants are a
part?
3. Whether the district court erred by holding that, regardless
of the constitutional guarantee of the freedom of the press, the
fall-back definition of electioneering communication in Title I
of BCRA (as modified by the court) and the accompanying
prohibitions and regulations, are constitutional as applied to
appellants as members of the “general press” even though the
institutional press and other FEC-licensed press activities are
exempted?
4. Whether the district court erred by holding that, regardless
of the constitutional guarantee of the freedom of the press,
those appellants who are federal officeholders and/or
candidates for federal office must, as members of the “general
press,” submit to the Federal Election Commission’s licensing
power and editorial control as provided for in BCRA Section
il
101(a) (FECA Section 323(e)), including limiting their ability
to assist candidates and causes they support, whereas members
of the “institutional press” are exempt?
5. Whether the district court erred by holding that, regardless
of the freedom of the press, those appellants who are candidates
for election to state office, must, as members of the “general
press,” submit to the licensing power and editorial control of
the Federal Election Commission as provided for in BCRA
Section 101(a) (FECA Section 323(f)), if they refer to a
candidate for federal office and the Federal Election
Commission determines this to constitute promotion or
support, whereas members of the “institutional press” are
exempt?
6. Whether the district court erred by holding that, regardless
of the freedom of the press, appellant Congressman and
candidates for federal office, being members only of the
“general press,” had no standing to challenge the
constitutionality of FECA amended by BCRA Section 307(a)
limiting individual contributions to federal election campaigns,
and mandating disclosure of contributor identities and
donations, despite the impact of such limits upon the editorial
function of their campaigns for federal office, and by
dismissing appellant candidates’ press challenge to such statute
limits and requirements?
iil
PARTIES TO THE PROCEEDING
The appellants in this case, who were plaintiffs in Civil
Action No. 02-CV-781 below before the district court, are:
Congressman Ron Paul; Gun Owners of America, Inc.; Gun
Owners of America Political Victory Fund;
RealCampaignReform.org; Citizens United; Citizens United
Political Victory Fund; Michael Cloud; and Carla Howell.
The appellees in this case, who were defendants or
intervenor-defendants below, are: Federal Election
Commission; the United States of America; Senator John
McCain; Senator Russell Feingold; Representative Christopher
Shays; Representative Martin Meehan; Senator Olympia
Snowe; and Senator James Jeffords.
This case was consolidated below with ten other civil
actions challenging the constitutionality of certain BCRA
“—
The names of plaintiffs in each of the consolidated cases
are as follows:
National Rifle Ass’n v. FEC: National Rifle Association of
America (NRA) and NRA Political Victory Fund;
McConnell v. FEC: U.S. Senator Mitch McConnell, former
U.S. Representative Bob Barr, U.S. Representative Mike
Pence, Alabama Attorney General William H. Pryor, the
Libertarian National Committee, Inc., American Civil Liberties
Union, Associated Builders and Contractors, Inc., Associated
Builders and Contractors Political Action Committee, Center
for Individual Freedom, Club for Growth, Inc., Indiana Family
Institute, Inc., National Right to Li* Committee, Inc., National
Right to Life Educational Trust Fund, National Right to Life
Political Action Committee, National Right to Work
Committee, 60-Plus Association, Inc., Southeastern Legal
iv
Foundation, Inc., U.S. English d/b/a/ ProoENGLISH, Thomas
Mclnerney, Barret Austin O’Brock, Trevor M. Southerland;
Echols v. FEC: Emily Echols, Daniel Solid, Hannah McDow,
Isaac McDow, Jessica Mitchell, Daniel Solid and Zachary C.
White;
Chamber of Commerce v. FEC: Chamber of Commerce of ‘ae
United States, U.S. Chamber Political Action Committee, and
National Association of Manufacturers (Plaintiff National
Association of Wholesaler-Distributors withdrew);
National Ass'n of Broadcasters v. FEC: National Association
of Broadcasters;
AFL-CIO v. FEC: AFL-CIO and AFL-CIO Committee on
Political Education and Political Contributions;
Republican National Committee v. FEC: Republican National
Committee, (RNC), Mike Duncan, former Treasurer, current
General Counsel, and Member of the RNC, the Republican
Party of Colorado, the Republican Party of New Mexico, the
Republican Party of
Ohio, and the Dallas County (lowa) Republican County Central
Committee;
California Democratic Party v. FEC: 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, and Douglas R. Boyd, Jr.;
Adams v. FEC: Victoria Jackson Gray Adams, Carrie Bolton,
Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada
Joshi, Nancy Russell, Kate Seely-Kirk, Peter Kostmayer, Rose
Taylor, Stephanie L. Wilson, California Public Interest
Research Group (PIRG), Massachusetts Public Interest
Research Group, New Jersey Public Interest Research Group,
United States Public Interest Research Group, the Fannie Lou
Hamer Project, and Association of Community Organizers for
Reform Now; and
v
Thompson v. FEC: U.S. Representatives Bennie G. Thompson
and Earl F. Hilliard.
The names of other defendants in the consolidated cases
are as follows: Federal Communications Commission; John D.
Ashcroft; in his capacity as Attorney General of the United
States; United States Department of Justice; and David M.
Mason, Ellen L. Weintraub, Danny L. McDonald, Bradley A.
Smith, Scott E. Thomas, and Michael E. Toner, in their official
capacities as Commissioners of the Federal Election
C “me
STATEMENT PURSUANT TO RULE 29.6
Appellant Gun Owners of America Political Victory Fund,
a political committee, is a separate segregated fund of appellant
Gun Owners of America, Inc., a nonprofit, nonstock
Fund is a separate segregated fund of appellant Citizens United,
a nonprofit, nonstock corporation. Otherwise, none of the
appellants has a parent corporation. None of the appellants is
a stock company, and no publicly held company owns 10
percent or more of the stock of any of the appellants.
vi
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
PARTIES TO THE PROCEEDING ................. ili
STATEMENT PURSUANT TO RULE 29.6 ........... v
TABLE OF AUTHORITIES ..........cccccccceees viii
EEE So cctccccdccccesevecessoccescces |
OPINIONS BELOW... ccc ccc ccc ccccccccccccces 2
FSET so ccccccdccsocccccesosBecccccccces 3
PERTINENT CONSTITUTIONAL AND STATUTORY
PUPUEEEEEED ccccccdcveccccceccocecscccbeesoeces 3
STATEMENT OF THE CASE ...............22-045. 3
THE QUESTIONS PRESENTED ARE SUBSTANTIAL 14
A. Paul Plaintiffs’ Freedom of Press Claims Are
i ne i eee eee renseest 15
B. The Freedom of the Press Is Distinct from the
Freedoms of Speech and Association ............. 16
C. The Freedom of the Press Applies to Campaign
PED eGccncdesddedscccccesccoccecescccece 20
1. Title I BCRA Violations of Freedom of the
vii
2. Title 1 BCRA Violations of Freedom of the
DED cc cccececvecccdddevecéscecestosseses 28
3. Title I] BCRA Violation of Freedom of the
DED accdddcebduncececoscctcastnteeasekbe 29
GED ccvcccccccccesecccesseceésnecoses 30
GEES 06660066000 08606b0enceeseencenscnnsd la
RB, TRRIDGT AMIE 0 cc cccccccccccccccccccces la
DB, GI 6 cc ccvccccccccccscccccccess 4a
C. U.S. Constitution, Amendment!.............. Sa
D. Federal Election Campaign Act .............. 6a
viii
TABLE OF AUTHORITIES
Page
U.S. CONSTITUTION
SED Shee cecocesedesccsescedceenss 1, passim
STATUTES
NO on. ccceduvescecdecd 21, 22, 26
De dd. et ee ded ebbibasesues 3
TRS TE REY ee en 3
CASES
Albertson v. Subversive Activities Control Board,
SE os cudcnds cidbdeddséses does 24
Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.
TELE ETS ae nn Ae ae 20
Austin v. Michigan State Chamber of Commerce,
494 U.S. 652 (1990) 2.0... cece ccc cece ee eees 22
Buckley v. Valeo, 424 U.S. 1 (1976) ........... 4, passim
Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ....... 21
Burroughs v. United States, 290 U.S. 534 (1934) ........ 3
a Ves eee See oO 94 (1973) . 27
FEC v. 3
$33US 431 (2001) RUE ueLsueedccudabees 4, 25
FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) ..... 4
FEC v. Phillips Publishing, Inc., 517 F. Supp. 1308
PGE unease dadeteteuets cece: 21, 27
First National Bank of Boston v. Bellotti, 435 U.S.
edie csi aceaeicdveness 22
Grosjean v. American Press Co., Inc., 297 U.S. 233
TT eR Re 6, 20
Hurley v. Irish-American Gay, Lesbian and_
Bisexual Group of Boston, 515 U.S. 557 (1995) .
Lovell v. City of Griffin, 303 U.S. 444 (1938) ......... ~
Mcintyre v. Ohio Elections Commission, 514 U.S.
RAR RE 19, 30
ix
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
Ps pnuéestnencnecseese« .... 6, passim
Near v. Minnesota, 283 U.S. 697 (1931) .............. 21
New York Times v. United States, 403 U.S. 713
DE tidicdenn es penGdendeckinsineke seus tes 18
Nixon v. Shrink Missouri Gov’t. PAC, 528 U.S.
PS 6dbnks bese dechannebandtadeuscuace 4
Reader’s Digest Association v. FEC, 509 F.Supp.
is 6 coenconnctwideuctsesube 21
Talley v. California, 362 U.S. 60 (1960) ............ 7,19
Watchtower v. Village of Stratton, 536 U.S.150
SE hAREKAbU aren euiuside sebedbeeees 18, 19, 29
Wright v. United States, 302 U.S. 583 (1938) ....... 16, 17
BOOKS
IV W. Blackstone, Commentaries on the Laws of
England (Univ. Chi, facs. ed. 1769) ........... 19, 22
IV J. Eliot, ed., The Debates in the Several State
Constitutions (Phila: 1866) ..................04. 19
St. G. Tucker, View of the Constitution of the
United States with Selected Writings
SE SEE a 6 ON beh ide cbeeddevionds 17, 18
ARTICLES
“Bush Formally Starts 2004 Campaign,” May 16, 2003,
http://www.newsmax.com/archives/articles/
SD 6 Kv euBeovebedncckéstencé 23
OTHER
148 Cong. Rec. S2,114-16 (daily ed. March 20, 2002) .. . 26
IN THE
Supreme Court of The United States
CONGRESSMAN RON PAUL, GUN OWNERS OF AMERICA, INC.,
GUN OWNERS OF AMERICA POLITICAL VICTORY FUND,
REALCAMPAIGNREFORM.ORG, CITIZENS UNITED,
CITIZENS UNITED POLITICAL VICTORY FUND,
MICHAEL CLOUD, AND CARLA HOWELL,
Appellants,
v.
FEDERAL ELECTION COMMISSION, ET AL.,
Appellees.
On Appeal from the United States District Court
for the District of Columbia
JURISDICTIONAL STATEMENT
INTRODUCTION
This case presents a freedom of the press challenge to
several of the most intrusive provisions of the growing body of
federal campaign finance law. The appellants, known in the
court below as the “Paul Plaintiffs” — Congressman Ron Paul,
Gun Owners of America, Inc., Gun Owners of America
Political Victory Fund, RealCampaignReform.org, Citizens
United, Citizens United Political Victory Fund, Michael Cloud,
and Carla Howell — allege that the Bipartisan Campaign
Reform Act of 2002 (“BCRA”), and many of the amendments
to the Federal Election Campaign Act of 1971 (“FECA”)
wrought by BCRA, violate their rights guaranteed by the
freedom of the press of the First Amendment of the United
States Constitution.
2
The district court rejected the Paul Plaintiffs’ discrete press
challenge, ruling, as a matter of law, that the Paul Plaintiffs’
rights unter the freedom of the press are governed by a
standard no higher than, and no different from, the compelling
interest test developed in First Amendment litigation involving
free speech and association. Supp. App. 99sa-105sa. Although
certain BCRA provisions were determined to be
unconstitutional as violative of other First Amendment
guarantees, many BCRA/FECA provisions were sustained,
including virtually all of those provisions challenged by the
Paul Plaintiffs.
The effect of the district court’s ruling is to retain and
enlarge unconstitutionally invasive federal campaign finance
laws, abridging freedom of the press as well as curtailing core
political speech throughout the country, and leaving the area of
campaign finance regulation in disarray. This is a vital First
Amendment case that demands this Court’s attention and
review.
Appellants request and urge this Court to note probable
jurisdiction on the questions presented herein, and to reverse
the district court on each of those questions.
OPINIONS BELOW
The three-judge district court issued its judgment, along
with four opinions which were filed on May 2, 2003: a per
curiam opinion joined by two of the judges, and individual
opinions by each of the three judges. None of the opinions is
reported. Pursuant to this Court’s Order of May 15, 2003, the
appellants are submitting jointly the district court’s opinions, in
the form of a Supplemental Appendix to Jurisdictional
Statements (“Supp. App.””). See Appendix hereto (“App.”) 4a.
3
JURISDICTION
The district court issued its opinions and judgment on May
2, 2003. Appellants timely filed their Notice of Appeal on May
7, 2003. This Court has appellate jurisdiction pursuant to
Section 403(a)(3) of the Bipartisan Campaign Reform Act of
2002, Pub. L. No. 107-155, 116 Stat. 81, 114. Appellants’
Notice of Appeal is reprinted at App. 1a.
PERTINENT CONSTITUTIONAL
AND STATUTORY PROVISIONS
The First Amnendment to the United States Constitution is
reprinted at App. Sa. |
Sections 434 and 441 of Title 2 of the United States Code
(FECA prior to BCRA’s amendments), are set forth at App. 6a.
The Bipartisan Campaign Reform Act of 2002, Pub. L. No.
107-155, 116 Stat. 81, is reprinted at App. 27a.
STATEMENT OF THE CASE
1. Federal campaign finance regulation, including laws
licensing entry into the marketplace of ideas generated by
campaigns for election to federal office, appears to have been
attempted by Congress, for the first time, only in the second
half of the twentieth century, with passage of the Federal
Election Campaign Act of 1971 (and its extensive 1974
Amendments). See 2 U.S.C. Section 431, et seg. Previously,
certain federal statutes had been enacted affecting certain nights
of certain “persons.” See, e.g., Burroughs v. United States, 290
U.S. 534 (1934). FECA was Congress’s first comprehensive
4
effort to take control of federal “electioneering,” including the
establishment of an administrative agency with power to
enforce a complete panorama of licensing restrictions,
contribution and expenditure limitations, reporting and
disclosure requirements, backed up by penalties both civil and
criminal, for infractions of the new rules.
In Buckley v. Valeo, 424 U.S. 1 (1976), this Court found
some of the original provisions of FECA unconstitutional
abridgments of free speech and association. For nearly a
generation, the Buckley decision has guided this Court, and the
lower federal courts, in the application of free speech and
association to the enforcement of FECA by the Federal Election
Commission (“FEC”), and the enforcement of similar rules
enacted by state legislatures to control the financing of election
campaigns. See, e.g., FEC v. Colo. Rep. Fed. Election
Campaign Comm. (Colo. Il), 533 U.S. 431 (2001); Nixon v.
Shrink Missouri Gov’t. PAC (Shrink PAC), 528 U.S. 377
(2000). Despite continued adherence to Buckley, three justices
on this Court have urged that Buckley be overruled, observing
most recently that the Court’s application of Buckley has
“offered only tepid protection to core speech and associational
rights that our Founders sought to defend.” Colo. J], 533 U.S.
at 466 (Thomas, J., dissenting).
Indeed, the “strict scrutiny” standard of Buckley has
proved to be a malleable tool, the application of which has
turned on how strictly the courts are predisposed to scrutinize
the application of a particular regulation to the facts of a case.
Compare Shrink PAC, supra, with FEC v. Mass. Citizens for
Life, 479 U.S. 238 (1986). Essentially, the application of
Buckley has proved ad hoc, rather than principled, opening the
door for Congress to extend the FEC’s power by the enactment
of the Bipartisan Campaign Reform Act which contains a
5
number of novel encroachments upon the marketplace of ideas
generated by campaigns for election to public office.
a. In an effort to sweep more and more contributions and
expenditures in the marketplace of ideas generated by federal
election campaigns within the licensing and regulatory power
of the FEC, Title I of BCRA has extended the reach of federal
campaign regulation in such a way as to place discriminatory
controls upon political parties, federal and state officeholders,
and candidates for federal and state office. For example,
BCRA Title I, Section 101(a) (FECA Section 323(e)) prohibits
a federal officeholder, or candidate for federal office, from
“solicit[ing], receiv[ing], direct[ing], transfer[ing], or
spend[ing] funds in connection with an election for Federal
office ... unless the funds” are raised under the licensing and
regulatory control of the FEC. In a similar manner, BCRA
Title I prohibits any state or local officeholder or candidate for
state or local office from “spend{ing] any funds...” (Section
101(a) (FECA Section 323(f))) for “a 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 (regardless of
whether the communication expressly advocates a vote for or
against a candidate)” (BCRA Section 101(b) (FECA Section
301(20)(A\iii))).
By these provisions, Congress has breached the wall that
Buckley had raised limiting the reach of the FEC only to those
communications that expressly advocate a vote for or against
a particular candidate. Buckley, 424 U.S. at 42-44, n.52. In so
doing, Congress has invited the FEC to exercise editorial
control over the “public communications” of federal, state, and
local officeholders, and candidates for election to federal, state,
and local office in ways that would be impermissible if applied
to a newspaper or magazine of general circulation for a news
6
story, editorial, or commentary “that promotes or supports a
candidate .... or attacks or opposes a candidate.” See Miami
Herald Publishing Co. v. Tomnillo, 418 U.S. 241 (1974).
b. In another effort to breach the Buckley wall between
“express advocacy” and “issue advocacy,” Title Il of BCRA
creates a whole new set of prohibitions and regulations
extending the FEC’s licensing power and editorial control over
“electioneering communications,” on the grounds that although
such broadcast, cable, or satellite communications do not
expressly advocate the election or defeat of a particular
candidate, they profoundly affect the outcome of federal
elections. In recognition that BCRA’s effort to exercise
editorial control over the discussion of issues in relation to a
campaign for federal election was on shaky constitutional
grounds, Congress not only offered a “fall-back” definition of
“electioneering communications,” but provided a number of
exceptions, keeping the FEC’s editorial hands off news stories,
commentaries, and editorials “distributed through the facilities
of any broadcasting station [not] owned or controlled by any
political party, political committee, or candidate” (BCRA
Section 201(a) (FECA Section 304(f)(3)(B)(i))) and affirming
the FEC’s editorial powers in relation to candidate debates
(BCRA Section 201(a) (FECA Section 304(f)(3)(B)(iii))). In
short, BCRA Title II, by means of the licensing power of the
FEC, treats differentially persons and entities, allowing some
to participate in the debate over the issues related to election
campaigns without having to comply with BCRA contribution
limits and prohibitions, disclosure requirements, and economic
burdens, but not others, a differentiation that would never be
constitutionally tolerated if applied to anewspaper or magazine
of general circulation. See Grosjean v. American Press Co.,
Inc., 297 U.S. 233 (1936).
7
c. In order to obtain the necessary support for BCRA Titles I
and II, Congress raised the FECA individual contribution limit
to individual candidate campaigns per election from $1,000 to
$2,000, indexing the limit to inflation. BCRA Title III, Section
307(a). Even with this increase, Congress continued to impose
significant editorial control upon individual candidate
campaigns, limiting both the quality and quantity of campaign
communications, as well as forcing disclosure of the identities
of contributors, consequences that would be constitutionally
intolerable under such rulings as Miami Herald, sypra, and
Talley v. California, 362 U.S. 60 (1960).
2. BCRA was enacted on March 27, 2002. Eleven
separate complaints were filed in the United States District
Court for the District of Columbia challenging its
constitutionality. The cases were consolidated by the three-
judge panel assigned to hear them, and the parties were ordered
to conduct discovery and submit their cases-in-chief,
supporting briefs and opposition and reply briefs on an
expedited basis over the course of approximately six months.
The fully-submitted cases were argued before the court below
on December 4-5, 2002. On May 2, 2003, the district court
issued four separate opinions — a per curiam opinion and an
opinion of each of the three judges on the panel — upholding
provisions, aod dismissing challenges to certain other BCRA
provisions for nonjusticiability and lack of standing.
3. Appellants, the Paul Plaintiffs, present unique
challenges to the constitutionality of BCRA/FECA, having
relied exclusively upon the freedom of the press, rather than
invoking the free speech and association standards relied on in
Buckley. Although they participated collectively with most of
permitted them to brief the issues separate and apart from the
othe; plaintiffs in the consolidated cases below. Supp. App.
52sa. Although the district court addressed the freedom of the
press legal claims of the Paul Plaintiffs by ruling them
irrelevant as a matter law, the opinions below carry sparse
mention of the evidentiary foundation for those claims.’ Such
, The Paul Plaintiffs’ case was mentioned or discussed in the district
courts’ opimons at the following pages. Per Curiam Opimon: Supp. App.
3sa (description of contents of opinion), Supp. App. 52sa (description of
briefing schedule), Supp. App. 76sa (description of parties), Supp. App.
82sa (findings re identities of plaintiffs Ron Paul and GOA), Supp. App.
82sa-83sa (findings re identities of plaintiffs GOAPVF,
RealCampaignReform.org (erroneously identified as
“RealCampaignF inance.org”), CU, and CUPVF), Supp. App. 83sa (findings
re identities of plaintiffs Cloud and Howell), Supp. App. 99sa-105sa
(findings of law with regard to Paul Plamtiffs’ free press claims), Supp.
App. 107sa (description of parties challenging BCRA section 201), Supp.
App. 158sa (conclusion); Judge Henderson's Opimon: Supp. App. 165sa-
166sa (description of parties), Supp. App. 192sa (identification of press
claims re corporate disbursements for “electioneering commumications”),
Supp. App. 207sa (identification of free press challenges to BCRA Section
101), Supp. App. 21 1sa (identification of free press challenges to $2,000
contribution limit), Supp. App. 259sa (citing declarations of Paul Plaintiffs
witnesses Boos and Pratt with respect to the limited ability of PACs to
finance electioneering communications), Supp. App. 370sa (not deciding
free press challenges to BCRA Sections 201, 203-204), Supp. App. 384sa
(not deciding free press challenges to BCRA Section 212), Supp. App.
460sa (rejecting free press challenge to BCRA Section 101(a) (FECA
Section 323(e)), Supp. App. 472sa-475sa (determining no Article [Il
standing with regard to indexing of contribution limit imcrease); ‘udge
Kollar-Kotelly’s Opinion: Supp. App. 668sa, 814sa (plamtiff Ron Paul
deposition to support opinion that outside issue ads in 2000 were intended
to influence elections), Supp. App. 760sa-761sa ( witness Pratt declaration
communications” not overbroad), Supp. App. 88 1sa (equal protection and
free press challenge to BCRA/FECA media exemption); and Judge Leon's
Opimon: Supp. App. 1302sa (plainnff Ron Paul deposition to support
opinion that outside issue advertisements in 2000 were intended to influe=:~”
elections), Supp. App. 1366sa (citing Pratt declaration regarding radio
9
expert testimony, as follows: (i) the reports and declarations of
three expert witnesses: James C. Miller Ill, Ph.D., former
Chairman of the Federal Trade Commission and Director of the
Office of Management and Budget; Perry Willis, former
Director, Libertarian Party and Campaign Manager, Harry
Browne, Libertarian for President 2000; and Walter J. Olson,
CPA, campaign finance practitioner; and (ii) 1 1 fact witnesses:
Congressman Ron Paul; Mark Elam, Campaign Manager of
Paul for Congress; Tom Lizardo, Chief of Staff, Congressman
Ron Paul; Lawrence D. Pratt, Executive Director, Gun
Owners of America, Inc.; James H. Babka, Jr., President,
RealCampaignReform.org; Michael Boos, Esquire, General
Counsel, Citizens United; David N. Bossie, President, Citizens
United; Michael Cloud, Libertarian Party candidate for U.S.
Senate from Massachusetts in 2002; Carla Howell, Libertarian
Party candidate Governor of Massachusetts in 2002;
Anonymous Witness No. 1, a donor who contributes less to
federal candidates than the reporting threshold to avoid
disclosure of his identity; and Anonymous Witness No. 2, a
donor who would contribute to federal candidates more than
$1,000 per election under current law, or $2,000 per election
under BCRA, if it were legal to do so.
Combined, these witnesses presented the facts, as follows:
a. Appellant Ron Paul is a Member of the United States
House of Representatives from the 14" Congressional District
of Texas. He is a member of the Republican Party, and was the
Republican nominee in 2002 for the congressional seat he now
holds. Congressman Paul, in addition to his own activities as
a voter and contributor to other organizations and candidates,
advertisement in 2002 within 30 days of primary mn New Hampshire).
10
conducts a number of “general press” activities as a candidate
for federal office. Congressman Paul testified, inter alia, how
FECA/BCRA operated as a prior restraint upon him and his
campaign committee, requiring them, prior to entering into the
marketplace of ideas related to his campaigns for election to
federal office, to secure a license from, and submit to the
editorial supervision and control of, the FEC. Congressman
Paul also testified that the continuing and increased
discriminatory burdens of such laws — including contribution
limitations, soft money limits, campaign coordination rules,
and “electioneering communications” — would substantially
and adversely impact his ability to engage in a variety of
communicative activities related to his campaigns for federal
office. But for BCRA/FECA, Congressman Paul would be able
to raise more money from individuals and organizations for
communicative activities, as well as expand the range of
and redirect resources now required to comply with FEC
Decl. Paras. 14-18. See also Elam Decl. Paras. 5-12; Lizardo
Decl. Paras. 3-5; Anonymous Witness No. 1 Decl. Paras. 2-9;
Anonymous Witness No. 2 Decl. Paras. 3-8; Olson Expert
Witness Decl. Paras. 7-11, 13; and Miller Expert Witness Decl.
at 16-19.
b. Appellants Cloud and Howell also engage in “general
press” activities similar to those engaged in by Congressman
Paul, both as citizens and voters, and as candidates for federal
and state office. Mr. Cloud and Ms. Howell , both members of
the Libertarian Party, as well as respective federal and state
candidates of the Libertarian Party in 2002, engage in press
activities that have been, are, and will continue to be
profoundly limited by the federal campaign laws embodied in
BCRA/FECA. For example, Mr. Cloud and Ms. Howell, and
their campaigns, promote (and seek to educate the public
1]
reduction of the size of government, abolition of the
Massachusetts income tax, and the restoration of personal
liberties, and both work with other Libertarian candidates for
state and federal office. In fact, as 2002 federal and state
Libertarian Party candidates, respectively, Mr. Cloud and Ms.
Howell coordinated certain campaign activities with one
another in the 2002 federal election cycle, which would be
prohibited by BCRA’s Title I “soft money” rules. The press
campaign activities of both Mr. Cloud and Ms. Howell in the
past have been restrained, economically burdened, and
adversely impacted by the laws limiting campaign contributions
be exacerbated under BCRA/FECA. Mr. Cloud’s and Ms.
Howell’s press activities are adversely impacted especially by
the discriminatory effects of the FECA with respect to the
party.” Cloud Decl. Paras. 1-2, 7-17, 19-20, 23-28; Howell
Decl. Paras. 7-20; Willis Expert Witness Decl. Paras. 6-10.
c. Appellants Gun Owners of America, Inc. (“GOA”),
RealCampaignReform.org (“RCR”), and Citizens United
(“CU”), are separate nonpartisan, nonprofit, nonstock
educational/advocacy organizations which, by their respective
undertakings, engage in “general press” activities. GOA and
CU spend significant funds for commurications on issues
related to federal election campaigns during periods, inter alia,
just prior to federal primary and federal general elections,
also communicate with the public by means of mailed and
telefaxed letters, messages and articles on their Internet web
broadcasts to the public. The press activities of both GOA and
CU include engaging in issue advocacy, by means of
communications which will constitute prohibited and/or highly
12
regulated “electioneering communications” as that term is
defined by both the primary and back-up definitions in BCRA
(BCRA Section 201(a) (FECA Section 304(f)(3)(A))). Bossie
Decl. Para. 5; Boos Decl. Paras. 8, 11-14; Pratt Decl. Paras. 10,
13, 16-19. RCR, which was formed in 2000, does not have the
many years of press activities that GOA and CU have, but it
regularly distributes educational communications by e-mail to
a contributor list of 15,000; it also has engaged in developing
communications to the public by radio broadcast which would
constitute “electioneering communications” as defined by
BCRA. Babka Decl. Para. 9. The communications to the
public of GOA, RCR, and CU-that are in evidence do not
constitute “express advocacy” within the meaning of federal
election law, but rather “issue advocacy.” Likewise, the types
of communications that GOA, RCR, and CU are prohibited by
BCRA/FECA from broadcasting do not constitute “express
advocacy.” Additionally, GOA, RCR, and CU are negatively
impacted by BCRA/FECA with respect to their working
relationships with federal officeholders. For example, both
GOA and CU solicit funds through direct mail endorsed by
Members of Congress who support the goals of those
organizations. RCR has not yet reached that stage of its
development, but would like to engage in such communications
in the future. BCRA/FECA would effectively prohibit such
communications, and thus would substantially interfere with
such press activities. Paul Plaintiffs Proposed Findings of Fact,
Paras. 3, 5, 6, 14, 15.
d. Appellants Gun Owners of America Political Victory
Fund (“GOAPVF”) and Citizens United Political Victory Fund
(“CUPVF”) are multicandidate “political committees,”
independent of any political party and are the federally-
registered, counected political committees of appellants GOA
and CU, respectively. Paul Plaintiffs Proposed Findings of
Fact, Paras. 4,7.
13
e. BCRA/FECA subjects appellants’ “general press”
activities to a system of federal licensure. Appellants Paul,
Cloud, and Howell, who have been federal candidates, have
been required to file a “statement of organization” with the
government before the individual, or any committee established
by the individual, can expend more than $5,000 on “campaign
activities,” including publishing communications that expressly
advocate the individual’s election to federal office.
Furthermore, BCRA/FECA imposes economically burdensome
regulations upon federal candidates and their “campaign”
committees. BCRA/FECA requires candidate committees to
file periodic reports with the government containing the name,
address, occupation, and employer of any contributor of more
than $200 in the aggregate during a calendar year. This
regulatory burden limits the funds available to federal
candidates. For example, plaintiff Cloud estimated that his
2002 campaign for Senate would have received between
$100,000 and $300,000 in additional contributions from at least
261 contributors who would have donated more, but did not do
so because any contributions over $200 in the aggregate in a
calendar year from an individual would have required that his
or her identity be disclosed in filed reports. There is other
interferes with plaintiffs’ press activities by restricting the
funds that would otherwise be available for their federal
candidacies. Paul Plaintiffs Proposed Findings of Fact, Paras.
17, 18. Additionally, BCRA/FECA limits individual
contributions to a candidate’s committee to $2,000 per election.
This regulatory burden limits the funds available to federal
candidates. Plaintiff Cloud estimates that the limitation of
$1,000 prior to BCRA cost his campaign committee between
$350,000 and $700,000 in net contributions from at least 46
donors. Such limits enhance the role and influence of
institutional media corporations in the electoral process. Paul
Plaintiffs Proposed Findings of Fact, Para. 19.
14
f. BCRA/FECA also imposes economically burdensome
regulations upon IL.R.C. Section 501(c)(4) organizations,
including appellants GOA, CU, and RCR, as well as separate
segregated funds (“SSFs”) GOAPVF and CUPVF, which had
to be formed solely because of discriminatory prohibitions on
corporate involvement in federal elections in order to conduct
“express advocacy.” GOAPVF and CUPVF have been
required to file “statements of organization” with the FEC in
order to register before they were permitted to provide any
financial support to federal candidates, including publishing
communications that expressly advocate the election or defeat
of any federal candidate. No multicandidate SSF, including
plaintiffs GOAPVF and CUPVF, may receive contributions in
excess of $5,000 per year from an individual. GOAPVF,
CUPVF, and other political committees supporting or opposing
federal candidates also are required to file periodic reports with
the FEC regarding their financial activities. GOAPVF,
CUPVF, and other political committees registered with the
FEC are further required to report the name, address, employer,
and occupation of each contributor donating more than $200 in
the aggregate in a calendar year. This burden on plaintiffs’
press activities is not imposed on other elements of the press,
such as the institutional media, and is discriminatory. The
reporting burden can be 20 percent or more of an SSF’s annual
receipts. Paul Plaintiffs Proposed Findings of Fact, Para. 20.
THE QUESTIONS PRESENTED ARE SUBSTANTIAL
The Paul Plaintiffs’ rights under the freedom of the press
are unconstitutionally abridged by government censorship and
patrimony under BCRA/FECA. Well aware of the First
Amendment encroachments with the passage of BCRA,
Congress predicted immediate constitutional challenges,
expressly providing for a direct appeal to this Court from the
decision of the three-judge district court opinion below. The
15
questions presented by appellants are both substantial and
discrete from the questions presented by all other plaintiffs in
the court below, and, if addressed on the merits, are dispositive
of the constitutionality of the provisions challenged by the Paul
Plaintiffs in this case.
A. Paul Plaintiffs’ Freedom of Press Claims Are Discrete.
In its per curiam opinion, the court below recognized that
the Paul Plaintiffs’ claims that BCRA violates the freedom of
the press were “discrete” from those of all of the other plaintiffs
in this case. Supp. App. 99sa. Indeed, no other plaintiff
challenged BCRA, or any of its provisions, on the ground that
it violated the plaintiffs’ rights guaranteed by the freedom of
the press. See Supp. App. 99sa-105sa. Not only did the court
below find the Paul Plaintiffs’ press claims discrete from the
other plaintiffs’ free speech and association, and equal
protection and due process claims, but it understood that, if the
Paul Plaintiffs prevailed on their press claims, it would be
dispositive of most of the constitutional challenges to BCRA.
Thus, the per curiam opinion opened its discussion of the
constitutionality of BCRA by addressing the “Paul Plaintiffs’
Press Clause Challenge.” Although the court rejected that
challenge, it did not summarily dismiss it. Rather, it disposed
of the Press Clause challenge by ruling, as a matter of law, that
“the Press Clause provides no greater rights” than the freedoms
of speech and association, and therefore, governed by no
standard other than “the general First Amendment compelling
interest test.” See Supp. App. 102sa, 105sa. In so ruling, the
court below erred.
16
B. The Freedom of the Press Is Distinct from the
Freedoms of Speech and Association.
In support of its claim that this Court “has not explicitly
stated whether the freedom of press affords greater protections
than that of speech or association,” the court below failed to
examine a single case in which this Court explicitly relied upon
the freedom of the press guarantee, as distinguished from the
other freedoms listed in the First Amendment. See Supp. App.
99sa-105sa. Instead, the court relied upon two contemporary
academic treatises for the remarkable proposition that “the
Press Clause has largely been subsumed into the Speech
Clause.” Supp. App. 102sa. By relying on the contemporary
opinions of “two leading First Amendment scholars” — rather
than examining the text and history of the freedom of the press
in relation to the freedoms of speech and association — the
court below departed from the first principle of constitutional
interpretation:
In expounding the Constitution of the United States ...
every word must have its due force, and appropriate
meaning; for it is evident from the whole instrument,
that no word was unnecessarily used, or needlessly
added. The many discussions which have taken place
upon the constructic a of the Constitution, have proved
the correctness of this proposition; and shown the
high talent, the caution, and the foresight of the
illustrious men who framed it. Every word appears
to have been weighed with the utmost deliberation,
and its force and effect to have been fully understood.
[Wright v. United States, 302 U.S. 583, 588 (1938)
(quoting from Holmes v. Jennison, 14 Pet. 540, 570,
571 (1840)) (emphasis added). ]
17
Indeed, by failing to adhere to this long-standing rule of
interpretation, the court below “disregard[ed] ... a deliberate
choice of words and their natural meaning” (id., 302 U.S. at
588), as evidenced by the first-hand witness of St. George
Tucker, author of “the first extended, systematic commentary
on the Constitution after it had been ratified by the people of
the several state and amended by the Bill of Rights” (St. G.
Tucker, View of the Constitution of the United States with
Selected Writings vii (Liberty Fund: 1999)):
[N]othing could more clearly evince the inestimable
value that the American people have set upon the
liberty of the press, than their uniting it in the same
sentence, and even in the same member of a sentence,
with ... the freedom of speech. And since congress are
equally prohibited from making any law abridging the
freedom of speech, or of the press, they boldly
challenged their adversaries to point out the
of the press, said they, be not guaranteed, by the
constitution, neither is that of speech. If, on the
contrary the unrestrained freedom of speech is
guaranteed, so also, is that of the press. If then the
genius of our federal constitution has vested the
people of the United States, not only with a censorial
power, but even with the sovereignty itself ... why,
said they, is the exercise of this censorial power, this
sovereign right ... to be confined to the freedom of
speech? ... Surely not.... The best speech... must be
altogether inadequate to the due exercise of the
censorial power, by the people. The only adequate
supplementary aid for these defects ... is the absolute
freedom of the press. [St. G. Tucker, “Of the Right
of Conscience; and of the Freedom of Speech and of
the Press,” in View of the Constitution of the United
18
States and Selected Writings, supra, at 382 (emphasis
added). ]
Not only did the court below ignore the constitutional text
and history, it failed to acknowledge a number of this Court’s
venerable precedents, cited by the Paul Plaintiffs in their briefs
below, establishing that the freedom of the press imposes
constitutional limits upon the exercise of government power,
distinct and independent of “the general First Amendment
compelling state interest test.” See Supp. App. 105sa.
First, this Court has held thet the freedom of the press
prohibits all “prior restraints” imposed by government officials
upon the communication of ideas, except for “a single,
extremely narrow class of cases ... [which] may arise only when
the Nation ‘is at war.”” New York Times v. United States, 403
U.S. 713, 725-26 (1971) (Brennan, J., concurring), (citing
Schenck v. United States, 249 U.S. 47, 52 (1919)). Thus,
whenever a government imposes an unconstitutional prior
restraint upon the communication of ideas, it is “unnecessary”
for a court to apply the general First Amendment standard of
strict scrutiny. See Watchtower v. Village of Stratton, 536 U.S.
150, 161-64 (2002).
Second, this Court has found, as an unconstitutional
abridgment of the freedom of the press, any statute requiring a
“license” from the government for the privilege of
communicating ideas. Lovell v. City of Griffin, 303 U.S. 444,
451 (1938). This “no licensing” principle applies regardless of
the claimed government interest, because, as this Court has
recently observed, “[i]t is offensive — ... to the very notion of
a free society — that ... a citizen must first inform the
government of her desire to speak ... and then obtain a permit
to do so, [e]ven if the issuance of permits ... is a ministerial task
19
that is performed promptly...” Watchtower v. Village of
Stratton, 536 U.S. at 165-66.
Third, this Court has ruled that the freedom of the press
prohibits the forced disclosure of the identities of authors,
publishers, disseminators, and other communicators, not as a
measure to protect the privacy of such persons, but to maintain
inviolate the absolute right of the author or publisher to decide
whether to disclose his or her name. See Talley v. California,
362 U.S. 60, 64-65 (1960); accord, McIntyre v. Ohio Elections
Commission, 514 U.S. 334, 342-43 (1995). This principle of
anonymity is designed to protect the people from the power of
government censorship, reflecting the Press Clause’s
foundational principle that the people have power to censor
their government, not vice versa. See J. Madison, “Report on
the Virginia Resolutions,” reprinted in IV J. Eliot, ed., The
Debates in the Several State Constitutions 569-70 (Phila:
1866).
Fourth, this Court has held that the government may not
exercise any editorial control over the content of a
communication, the freedom of the press having absolutely
reserved the “editorial function” to the author, publisher,
disseminator or other private communicator. Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, 247-54, 256, 258
(1974). As Sir William Blackstone put it in his Commentaries
on the Laws of England, “[e]very freeman has an undoubted
right to lay what sentiments he pleases before the public: to
forbid this is to destroy the freedom of the press....” ITV W.
Blackstone, Commentaries on the Laws of England 151-52
(Univ. Chi., facs. ed. 1769).
Fifth, this Court has determined that the freedom of the
press forbids government from placing discriminatory
economic burdens upon communicative activity, thereby
20
imposing, in effect, a tax on “the acquisition of knowledge by
the people in respect to their governmental affairs.” Grosjean
v. American Press Co., Inc., 297 U.S. 233, 247 (1936). Such
an economic burden is considered by the freedom of the press
to be an unconstitutional “penalty” (see Miami Herald, 418
U.S. at 256), and unconstitutional per se when imposed upon
particular “subject matter, or ... content.” Arkansas Writers’
Project, Inc. v. Ragland, 481 US. 221, 229-30 (1987) (internal
citation omitted).
C. The Freedom of the Press Applies to Campaign
Finance.
Despite the Paul Plaintiffs having called the district court’s
attention to these specific press principles and precedents, and
demonstrated their applicability to their challenge to BCRA,
the court below declined to apply them. First, they declined
because they found the Paul Plaintiffs’ challenge “novel ... —
a tack that has not beer used in the campaign finance realm.”
Supp. App. 99sa. Second, the court observed that, if the Paul
Plaintiffs’ press claims applied to BCRA, then “litigants could
besiege the courts with a host of challenges to laws previously
upheld by the Supreme Court on First Amendment grounds,
merely by characterizing themselves in their complaints as
members of the ‘press’ because their purpose is to disseminate
information to the public.” Jd. 104sa. The court below is
wrong on both counts.
As an initial matter, the court’s claim that the Paul
Plaintiffs can cite no case applying freedom of press to
campaign finance reform laws is inaccurate, depending upon
the definition one applies to “campaign finance reform.” The
Paul Plaintiffs did cite Miami Herald, a case in which this
Court applied freedom of press and struck a state law regulating
21
campaigns by forcing newspapers to expend resources in ways
contrary to the editorial policy of the paper.
Additionally, two district courts, relying in part upon the
freedom of the press, limited the investigative powers of the
FEC in its effort to enforce the “news activity” exemption
provided in 2 U.S.C. Section 431(9)(B)(i). FEC v. Phillips
Publishing, Inc., 517 F. Supp. 1308, 1312-14 (D.D.C. 1981);
Reader’s Digest Association v. FEC, 509 F. Supp. 1210
(S.D.N.Y. 1981). Indeed, in the Phillips case, the district court
noted that Congress based the FECA exemption enjoyed by a
“press entity,” in part, upon the freedom of the press. Phillips,
517 F. Supp. at 1312. However, the court below was correct
that, until the Paul Plaintiffs filed their complaint in this case,
no one had waged a direct challenge to the constitutional
legitimacy of comprehensive federal campaign finance
regulations (FECA/BCRA) on freedom of the press grounds.’
Supp. App. 104sa.
As the Paul Plaintiffs pointed out, and as the court below
acknowledged, the freedom of the press is not, however, a
special privilege of the institutional media, but extends to
“every freeman,” citing this Court’s opinion in Near v.
Minnesota, 283 U.S. 697, 713-14 (1931). Supp. App. 100sa.
By providing the special exemptions to the institutional media
under FECA’ and BCRA,* Congress has breached this first
? It is true that one of the plaintiffs, Human Events, in Buckley v. Valeo,
included a freedom of the press claim in its complaint. But neither the
United States Court of Appeals for the District of Columbia nor this Court
addressed that claim in their opinions. Buckley v. Valeo, 519 F.2d 821
(D.C. Cir. 1975); Buckley v. Valeo, 424 U.S. 1 (1976).
* FECA provides the institutional media (with respect to the definition of
“expenditure”) an exemption for: “any news story, commentary, or editorial
distributed through the facilities of any broadcasting station, newspaper,
22
principle of the freedom of the press, conferring upon a
“definable category of persons or entities,” special First
Amendment privileges, and thereby, instituting a system of
inclusion and exclusion “reminiscent of the abhorred licensing
system” that the liberty of the press was designed to prohibit.
See First National Bank of Boston v. Bellotti, 435 U.S. 765,
801, 802 (1978) (Burger, C.J., concurring); accord IV W.
Blackstone’s Commentaries at 152, n.a.”
As the Paul Plaintiffs demonstrated below, through the
testimony of several witnesses, the federal campaign finance
system functions as licensing system, requiring candidates and
their supporters to obtain permission from the government
magazine, or other periodical publication, unless such facilities are
owned or controlled by any political party, political committee, or
candidate.” 2 U.S.C. Section 431(9)(B)(i) (emphasis added).
‘ Additionally, BCRA provides the institutional media (with respect to an
“electioneering communication”) an exemption for: “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.” BCRA
Section 201(a) (FECA Section 304(f)(3)(B)(i)) (emphasis added). See also
subsections (iii) and (iv) exempting candidate debates and other FEC-
i 1 press activities.
5 To escape this application of free press principles, the court below read
this Court’s decisions in Bellotti and Austin v. Michigan State Chamber of
Commerce, 494 U.S. 652 (1990) to have established that the government
may discriminate between the “general press” and the “institutional press”
on the ground that the government has a “compelling interest ... to exempt
media corporations from the scope of political expenditure limitations.”
Supp. App. 103sa, 0.64. To read Bellotti and Austin as having, de facto,
conferred upon the “institutional media” greater rights than the “general
press” (Supp. App. 104sa, n.65) smacks of the very kind of special privilege
that Chief Justice Burger claimed, in Bellotti, the First Amendment
condemned.
23
before taking their message to the people. As White House
Press Secretary Ari Fleischer put it, upon the occasion of
President Bush’s formal announcement that his re-election
campaign had begun:
Today ... the legal structure for a re-election campaign
was put in place as a result of the filing of what’s
called FEC Form 1 and FEC Form 2... This is the
legal structure that is required, so that grass-roots
is the required legal step that must be taken for other
events to follow on. [“Bush Formally Starts 2004
Campaign,” May 16, 2003, http://www.newsmax.
com/archives/articles/2003/5/16/151352.shtml. }
And, as the Paul Plaintiffs’ testimony demonstrated below,
once the FEC Forms | and 2 are filed, the candidates and their
supporters enter into a marketplace of ideas in which they lose
substantial editorial control over their campaigns and in which
challengers and third party candidates are placed at significant
* The operation of FECA/BCRA as a licensing scheme was explained by
Paul Expert Witness Walter J. Olson, CPA. Mr. Olson, a certified public
accountant and expert in FEC compliance matters, submitted a report
containing detailed testimony about the burdensome, intricate, labor-
intensive, time-consuming, and costly recordkeeping and reporting
requirements imposed by FECA, and further increased by BCRA. His report
demonstrates that FECA/BCRA exposes individuals and organizations
engaged in federal election activities to serious penalties for violation of an
requirements so complex that the FEC’s own information and software
specialists are sometimes unable to provide answers.
24
disadvantage in relation to incumbent office holders and the
institutional media.’
According to the court below, however, 27 years after
Buckley, it is too late for the Paul Plaintiffs to challenge BCRA
on freedom of the press grounds. See Supp. App. 104sa. But
the per curiam opinion has cited no case supporting the
proposition that a party is precluded, other than by collateral
estoppel, from raising a new constitutional claim just because
it might undercut judicial precedents applying other
constitutional guarantees. See, e.g., Albertson v. Subversive
Activities Control Board, 382 U.S. 70 (1965).
Had Buckley been litigated and decided based on freedom
of press principles, it is submitted that a very different result
would have obtained. A classic press analysis openly reveals
the impropriety of Congress establishing a burdensome
licensing scheme, regulating both issue advocacy and
” Paul Expert Witness James C. Miller III, Ph.D., former Chairman of the
Federal Trade Commission and Director of the Office of Management and
Budget and author of the book, Monopoly Politics, submitted a report
testifying to the actual operation and effect of the federal election laws, as
well as the rules promulgated and enforced by the FEC. Dr. Miller’s report
documents how FECA/BCRA operates to the disadvantage of challengers,
and to the advantage of incumbents, and how campaign finance regulations
generally impair the quantity and quality of public debate by candidates on
the issues.
Paul Expert Witness Perry Willis, an experienced federal campaign
manager and Libertarian Party organizer, submitted a report in which he
testified at great length as to how FECA/BCRA serves to protect the
Democratic and Republican parties’ domination of American politics by
artificial enhancement of media influence on elections through a special
reporting requirements on minor parties and their candidates, who are
oftentimes ignored by the exempt institutional media.
25
campaigns for office, threatening to fine or send to jail those
who criticize Congressmen in a manner those Congressmen
find impermissible, chilling the activities of those Americans
who seek to participate politically and electorally in our
constitutional republic. Unlike Buckley, which was based
solely on congressional findings to which this court deferred,
the challenge by the Paul Plaintiffs to BCRA/FECA has
demonstrated the actual anti-competitive, anti-minor party,
anti-challenger scheme which Members of Congress have
devised to protect their own selfish political interests under the
ruse of preventing an undefined and vague threat —
“corruption and the appearance of corruption.” The Paul
Plaintiffs fully agree with the three justices on this Court who
have stated in previous opinions that Buckley should be
overruled,® and would ask the Court to overrule Buckley.
Nonetheless, since the Paul Plaintiffs are contending that the
freedom of the press, overlooked by the parties in Buckley,
dictates a different approach to the constitutionality of
campaign finance regulation than the one based upon free
speech and association, it may be possible that Buckley can
merely be set aside rather than overruled.
1. Title I! BCRA Violations of Freedom of the Press.
Claiming that the Buckley distifction between “express
candidate advocacy” and “issue advocacy” is too easily evaded,
Congress enacted Title Il of BCRA to subject certain “sham
issue ads” broadcast over the air waves to the same prohibitions
and regulations as ads expressly advocating the election or
defeat of a clearly identified candidate for federal office. Such
“qssue ads,” Congress maintained, are, in reality, camouflaged
express candidate advocacy, and therefore, ought to be
* See FEC v. Colo. Rep. Fed. Election Campaign Comm., 533 U.S. 431,
465 (2001) (Thomas, J., dissenting).
26
prohibited and regulated in hke manner as express advocacy
ads in order to protect the federal government from corruption
and the appearance of corruption. See, e.g., 148 Cong. Rec.
S2,114-16 (daily ed. March 20, 2002) (statement of Sen. Carl
Levin).
Conspicuously exempted from the new Title I] BCRA
prohibitions and regulations, however, is any “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.” (BCRA Section 20l(a) (FECA Section
304(f)(3)(B)i)).) Thus, any television or radio station fitting
the statutory exemption is completely free to spend money to
communicate its position on the issues, without having to
comply with the Title II prohibitions, or licensing, disclosure,
and editorial control requirements, and economic burdens.
The BCRA exemption for television and radio is not based
upon a congressional finding that such entities do not engage in
“sham issue” communications, expressing camoflauged support
for the election or defeat of candidates for federal office.
Rather, the BCRA exemption is based upon a previously-
enacted FECA provision exempting the express advocacy of
the election or defeat of a federal candidate contained in any
“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.” (2 U.S.C. Section 431(9)(B)i).)
Neither exemption for such television and radio news,
editorial or commentary broadcasts is based upon a finding by
Congress that generally such media do not corrupt, or create the
appearance of corruption, of the electoral process. Rather, the
original FECA exemption is, in part, based explicitly upon the
27
freedom of the press. See Phillips, 517 F. Supp. at 1312. The
BCRA exemption, in turn, is calculated to preserve editorial
control over the discussion of public issues, even when related
to an election campaign, as dictated by the freedom of the press
in favor of the print media. See Miami Herald Publishing Co.
v. Tornillo, 418 U.S. at 247-54, 256, 258, supra.
Indeed, if Congress subjected the institutional press to the
prior restraint, registration (licensing), contribution and
disclosure requirements (editorial controls), and economic
burdens that the non-exempt press is subjected to under Title II
of BCRA, they would be the first to invoke their rights under
the freedom of the press as the Miami Herald Publishing Co.
did in response to a Florida state campaign finance regulation
imposing upon any newspaper that attacked a candidate for
office to provide space in its publication for a “right to reply.”
And they would expect to prevail on that press claim,
notwithstanding any countervailing government interest,
compelling or otherwise, on the ground that, under the freedom
of the press, the “editorial function,” including. the right to
decide how to spend limited financial resources, is an inviolate
right. See CBS v. Democratic National Comm., 412 U.S. 94,
145 (1973) (Stewart, J., concurring) (“For that guarantee (the
freedom of the press) gives every newspaper the liberty to print
what it chooses and reject what it chooses, free from the
intrusive editorial thumb of Government.” (emphasis added)).
The adverse impact of BCRA Title II on the Paul
Plaintiffs’ press right is aggravated by additional exemptions
conferred upon FEC-licensed candidate debates and other press
activities as determined by the FEC. The grant of such
discretionary editorial control to a government agency strikes
at the very heart of the freedom of the press which guarantees
that the editorial function belongs to the people not to the
government. See Miami Herald Publishing Co. v. Tomnillo.
28
2. Title I BCRA Violations of Freedom of the Press.
BCRA Section 101(a) (FECA Section 323(e)(1)) subjects
a federal officeholder or candidate for election to federal office
to the “limitations, prohibitions, and reporting requirements of
this Act,” if he or she engages in activity to “solicit, receive,
direct, transfer, or spend funds in connection with an election
for Federal office, including funds for any Federal election
activity...” While the court below struck down three statutory
definitions of “federal election activity,” it left intact the one
specifying 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 (regardless of whether the
communication expressly advocates a vote for or against a
candidate).” BCRA Section 101(b) (FECA Section
301(20)(A)(ii1)).
Likewise, the court upheld BCRA Section 101(a) (FECA
Section 323(f)), subjecting a state or local officeholder or
candidate for election to state or local office to the “limitations,
prohibitions, and reporting requirements of this Act,” if he or
she “spend{s] any funds” for any “public communication that
refers to a clearly identified candidate for Federal office ... and
that promotes or supports that 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).”
Had the district court applied the freedom of press
protections to BCRA Section 101(a) (FECA Sections 323(e)
and 323(f)), it should have found them unconstitutional in their
entirety as an impermissible prior restraint, a forbidden
licensing and disclosure requirement, overreaching editorial
control, and a discriminatory economic burden. To single out
29
individuals who hold government office, or who are candidates
for such office, and impose upon them speciai licensing,
disclosure requirements, editorial control, and economic
burdens strikes at the very heart of the freedom of the press
which guarantees to every man liberty to communicate on
matters of state without first having to obtain government
permission. See Watchtower v. Village of Stratton, 536 U.S.
at 165-66.
3. Title 11] BCRA Violation of Freedom of the Press.
The Paul Plaintiffs challenged the constitutionality of
BCRA Section 307(a) modifying the individual contribution
limits to federal election campaigns by FECA as a violation of
the freedom of the press. At the heart of this challenge was the
claim that contribution limits, in whatever amount,
unconstitutionally abridge a candidate’s editorial authority by
abridging his or her right to determine the quality and quantity
of his or her communications and his or her right to determine
whether or not to disclose to the public the identities of his or
her co-publishers.
In his sworn declaration, Congressman Paul attested that
the individual contribution limitation adversely impacted his
campaign by reducing the quality and quantity of his
communications during his election campaign. His campaign
manager and a campaign consultant confirmed this testimony,
adding that they were aware of several individuals who would
have given more to the Paul campaigns had there been no limit.
Additionally, two anonymous witnesses furnished declarations
that they would have given more but for the contribution
limitations and/or the disclosure requirements.
This evidence of the impact on the Paul campaign’s
editorial function was ignored by the court below, having ruled
30
as a matter of law that Paul Plaintiffs’ press claim was
indistinguishable from the free speech and association claims
of the other plaintiffs. This erroneous ruling led the court to
conclude that none of the Paul Plaintiffs had standing to contest
the constitutionality of the individual contribution limits.
Had the court below addressed the Paul Plaintiffs’ freedom
of the press claims on the merits, not only should the court
below have found standing, but also a violation of the freedom
of the press guarantees of editorial autonomy as embraced by
this Court in Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557, 569-70, 573-74
(1995) and anonymity as embraced by this Court in McIntyre
v. Ohio Elections Commission, supra.
CONCLUSION
For the reasons stated, this Court should note probable
jurisdiction of the Paul Plaintiffs’ appeal
Respectfully submitted,
HERBERT W. TITUS WILLIAM J. OLSON*
Troy A. Titus, P.C. JOHN S. MILES
5221 Indian River Road WILLIAM J. OLSON, P.C.
Virginia Beach, VA 23464 Suite 1070
(757) 467-0616 8180 Greensboro Drive
McLean, VA 22102
(703) 356-5070
RICHARD WOLF GARY G. KREEP
Moore & LEE, LLP U.S.JUSTICE FOUNDATION
1750 Tysons Boulevard Suite 1-C
Suite 1450 2091 E. Valley Parkway
McLean, VA 22102 Escondido, CA 92027
(703) 506-2050 (760) 741-8086
Attorneys for Appellants
* Counsel of Record
May 30, 2003
ue en
ie de ee
7 i
pe
.
APPENDICES
la
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL ACTION NO. 02-CV-582
(CKK, KLH, RJL)
SENATOR MITCH MCCONNELL, et ai.,
Plaintiffs,
Vv.
FEDERAL ELECTION COMMISSION, et ai.,
Defendants.
Consolidated with:
CIVIL ACTION NOS.
02-CV-581 (CKK, KLH, RJL)
02-CV-633 (CKK, KLH, RJL)
02-CV-751 (CKK, KLH, RJL)
02-CV-753 (CKK, KLH, RJL)
02-CV-754 (CKK, KLH, RJL)
02-CV-874 (CKK, KLH, RJL)
02-CV-875 (CKK, KLH, RJL)
02-CV-877 (CKK, KLH, RJL)
02-CV-881 (CKK, KLH, RJL)
and
CIVIL ACTION NO. 02-CV-781
(CKK, KLH, RJL)
2a
CONGRESSMAN RON PAUL, et al.,
Plaintiffs,
Vv.
FEDERAL ELECTION COMMISSION, et ai.,
| Defendants.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that plaintiffs in Civil Action
No. 02-CV-781, Congressman Ron Paul, Gun Owners of
America, Inc., Gun Owners of America Political Victory
Fund, RealCampaignReform.org, Citizens United, Citizens
United Political Victory Fund, Michael Cloud, and Carla
Howell, hereby appeal to the Supreme Court of the United
States from the final judgment entered in these consolidated
actions by the three-judge district court on May 2, 2003.
This appeal is taken pursuant to section 403(a)(3) of the
Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-
155, 116 Stat. 81, 114.
Respectfully submitted,
_/s/_
William J. Olson (D.C. Bar No. 233833)
John S. Miles (D.C. Bar No. 166751)
WILLIAM J. OLSON, P.C.
8180 Greensboro Drive, Suite 1070
McLean, Virginia 22102-3860
(703) 356-5070; Fax: (703) 356-5085
May 7, 2003
3a
Herbert W. Titus
Troy A. Titus, P.C.
5221 Indian River Road
Virginia Beach, Virginia 23464
(757) 467-0616; Fax: (757) 467-0834
Richard O. Wolf (D.C. Bar No. 413373)
Moore & LEE,LLP -
1750 Tysons Boulevard, Suite 1450
McLean, Virginia 22102-4225
(703) 506-2050; Fax: (703) 506-2051
Attorneys. for Plaintiffs Ron Paul, Gun
Owners of America, Inc., Gun Owners of
America Political Victory Fund,
RealCampaignReform.org, Citizens United,
Citizens United Political Victory Fund,
Michael Cloud, and Carla Howell
4a
APPENDIX B
Pursuant to this Court’s Order of May 15, 2003, the
appellants are submitting jointly the district court’s opinions,
in the form of a Supplemental Appendix to Jurisdictional
Statements.
Sa
APPENDIX C
U.S. Constitution, Amendment I
Congress shall make no law respecting an .
establishment of religion, or prohibiting the free exercise
thereof; 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.
6a
APPENDIX D
2 U.S.C. Sec. 434. Reporting Requirements
(a) Receipts and disbursements by treasurers of political
committees; filing requirements
(1) Each treasurer of a political committee shall file
reports of receipts and disbursements in accordance with the
provisions of this subsection. The treasurer shall sign each
such report.
(2) If the political committee is the principal campaign
committee of a candidate for the House of Representatives or
for the Senate —
(A) in any calendar year during which there is regularly
scheduled election for which such candidate is seeking
election, or nomination for election, the treasurer shall file
the following reports:
(i) a pre-election report, which shall be filed no later
than the 12th day before (or posted by registered or certified
mail no later than the 15th day before) any election in which
such candidate is seeking election, or nomination for
election, and which shall be complete as of the 20th day
before such election;
(ii) a post-general election report, which shall be filed
no later than the 30th day after any general election in which
such candidate has sought election, and which shall be
complete as of the 20th day after such general election; and
(iii) additional quarterly reports, which shall be filed
no later than the 15th day after the last day of each calendar
quarter, and which shall be complete as of the last day of
each calendar quarter: except that the report for the quarter
ending December 31 shall be filed no later than January 31
of the following calendar year; and
(B) in any other calendar year the following reports
shall be filed:
7a
(i) a report covering the period beginning January |
and ending June 30, which shall be filed no later than July
31; and
(il) a report covering the period beginning July 1 and
ending December 31, which shall be filed no later than
January 31 of the following calendar year.
(3) If the committee is the principal campaign committee
of a candidate for the office of President —
(A) in any calendar year during which a general election
is held to fill such office —
(i) the treasurer shall file monthly reports if such
committee has on January | of such year, received
contributions aggregating $100,000 or made expenditures
aggregating $100,000 or anticipates receiving contributions
aggregating $100,000 or more or making expenditures
aggregating $100,000 or more during such year: such
monthly reports shall be filed no later than the 20th day after
the last day of each month and shall be complete as of the
last day of the month, except that, in lieu of filing the report
otherwise due in November and December, a pre-general
election report shall be filed in accordance with paragraph
(2)(A)(i), a post-general election report shall be filed in
accordance with paragraph (2)(A)(ii), and a year end report
shall be filed no later than January 31 of the following
calendar year;
(ii) the treasurer of the other principal campaign
committees of a candidate for the office of President shall
file a pre-election report or reports in accordance with
paragraph (2)(A)(i), a post-general election report in
accordance with paragraph (2)(A)(ii), and quarterly reports in
accordance with paragraph (2)(A)(iii); and
(iii) if at any time during the election year a
committee filing under paragraph (3)(A)(ii) receives
contributions in excess of $100,000 or makes expenditures in
excess of $100,000, the treasurer shall begin filing monthly
8a
reports under paragraph (3)(A)(i) at the next reporting
period; and
(B) in any other calendar year, the treasurer shall file
either —
(i) monthly reports, which shall be filed no later than
the 20th day after the last day of each month and shall be
complete as of the last day of the month; or
(ii) quarterly reports, which shall be filed no later
than the 15th day after the last day of each calendar quarter
and which shall be complete as of the last day of each
calendar quarter.
(4) All political committees other than authorized
committees of a candidate shall file either —
(A)(i) quarterly reports, in a calendar year in which a
regularly scheduled general election is held, which shall be
filed no later than the 15th day after the last day of each
calendar quarter: except that the report for the quarter ending
on December 31 of such calendar year shall be filed no later
than January 31 of the following calendar year;
(ii) a pre-election report, which shall be filed no later
than the 12th day before (or posted by registered or certified
mail no later than the 15th day before) any election in which
the committee makes a contribution to or expenditure on
behalf of a candidate in such election, and which shall be
complete as of the 20th day before the election,
(iii) a post-general election report, which shall be filed
no later than the 30th day after the general election and
which shall be complete as of the 20th day after such general
election; and
(iv) in any other calendar year, a report covering the
period beginning January | and ending June 30, which shall
be filed no later than July 31 and a report covering the period
beginning July 1 and ending December 31, which shall be
filed no later than January 31 of the following calendar year;
or
9a
(B) monthly reports in all calendar years which shall be
filed no later than the 20th day after the last day of the month
and shall be complete as of the last day of the month, except
that, in lieu of filing the reports otherwise due in November
and December of any year in which a regularly scheduled
general election is held, a pre-general election report shall be
filed in accordance with paragraph (2)(A)(i), a post-general
election report shall be filed in accordance with paragraph
(2)(A)(ii), and a year end report shall be filed no later than
January 31 of the following calendar year.
(5) If a designation, report, or statement filed pursuant to
this Act (other than under paragraph (2)(A)(i) or (4)(A)(ii),
or the second sentence of subsection (c)(2) of this section) is
sent by registered or certified mail, the United States
postmark shall be considered the date of filing of the
designation, report, or statement.
(6)(A) The principal campaign committee of a candidate
shall notify the Secretary or the Commission, and the
Secretary of State, as appropriate, in writing, of any
contribution of $1,000 or more received by any authorized
committee of such candidate after the 20th day, but more
than 48 hours before, any election. ‘his notification shall be
made within 48 hours after the receipt of such contribution
and shall include the name of the candidate and the office
sought by the candidate, the identification of the contributor,
and the date of receipt and amount of the contribution.
(B) The notification required under this paragraph shall be
in addition to all other reporting requirements under this Act.
(7) The reports required to be filed by this subsection shall
be cumulative during the calendar year to which they relate,
but where there has been no change in an item reported in a
previous report during such year, only the amount need be
carried forward.
(8) The requirement for a political committee to file a
quarterly report under paragraph (2)(A)(iii) or paragraph
10a
(4)(A)(i) shall be waived if such committee is required to file
a pre-election report under paragraph (2)(A)(i), or paragraph
(4)(A)(ii) during the period beginning on the Sth day after the
close of the calendar quarter and ending on the 15th day after
the close of the calendar quarter.
(9) The Commission shall set filing dates for reports to be
filed by principal campaign committees of candidates
seeking election, or nomination for election, in special
elections and political committees filing under paragraph
(4)(A) which make contributions to or expenditures on
behalf of a candidate or candidates in special elections. The
Commission shall require no more than one pre-election
report for each election and one post-election report for the
election which fills the vacancy. The Commission may waive
any reporting obligation of committees required to file for
special elections if any report required by paragraph (2) or
(4) is required to be filed within 10 days of a report required
under this subsection. The Commission shall establish the
reporting dates within 5 days of the setting of such election
and shall publish such dates and notify the principal
campaign committees of all candidates in such election of the
reporting dates.
(10) The treasurer of a committee supporting a candidate
for the office of Vice President (other than the nominee of a
political party) shall file reports in accordance with
paragraph (3).
(11)(A) The Commission shall promulgate a regulation
under which a person required to file a designation,
statement, or report under this Act —
(i) is required to maintain and file a designation,
statement, or report for any calendar year in electronic form
accessible by computers if the person has, or has reason to
expect to have, aggregate contributions or expenditures in
excess of a threshold amount determined by the
Commission; and
lla
(ii) may maintain and file a designation, statement, or
report in electronic form or an alternative form if not
required to do so under the regulation promulgated under
clause (i).
(B) The Commission shall make a designation, statement,
report, or notification that is filed electronically with the
Commission accessible to the public on the Internet not later
than 24 hours after the designation, statement, report, or
notification is received by the Commission.
(C) In promulgating a regulation under this paragraph, the
Commission shall provide methods (other than requiring a
signature on the document being filed) for verifying
designations, statements, and reports covered by the
regulation. Any document verified under any of the methods
shall be treated for all purposes (including penalties for
perjury) in the same manner as a document verified by
signature.
(D) As used in this paragraph, the term “report” means,
with respect to the Commission, a report, designation, or
Statement required by this Act to be filed with the
Commission.
(b) Contents of reports
Each report under this section shall disclose —
(1) the amount of cash on hand at the beginning of the
reporting period;
(2) for the reporting period and the calendar year (or
election cycle, in the case of an authorized committee of a
candidate for Federal office), the total amount of all receipts,
and the total amount of all receipts in the following
Categories:
(A) contributions from persons other than political
committees;
(B) for an authorized committee, contributions from
the candidate;
12a
(C) contributions from political party committees,
(D) contributions from other political committees;
(E) for an authorized committee, transfers from other
authorized committees of the same candidate;
(F) transfers from affiliated committees and, where
the reporting committee is a political party committee,
transfers from other political party committees, regardless of
whether such committees are affiliated;
(G) for an authorized committee, loans made by or
guaranteed by the candidate;
(H) all other loans;
(I) rebates, refunds, and other offsets to operating
expenditures;
(J) dividends, interest, and other forms of receipts;
and
(K) for an authorized committee of a candidate for
the office of President, Federal funds received under chapter
95 and chapter 96 of title 26;
(3) the identification of each —
(A) person (other than a political committee) who
makes a contribution to the reporting committee during the
reporting period, whose contribution or contributions have an
aggregate amount or value in excess of $200 within the
calendar year (or election cycle, in the case of an authorized
committee of a candidate for Federal office), or in any lesser
amount if the reporting committee should so elect, together
with the date and amount of any such contribution;
(B) political committee which makes a contribution
to the reporting committee during the reporting period,
together with the date and amount of any such contribution;
(C) authorized committee which makes a transfer to
the reporting committee;
(D) affiliated committee which makes a transfer to
the reporting committee during the reporting period and,
where the reporting committee is a political party committee,
en eee ee a ee
13a
each transfer of funds to the reporting committee from
another political party committee, regardless of whether such
committees are affiliated, together with the date and amount
of such transfer;
(E) person who makes a loan to the reporting
committee during the reporting period, together with the
identification of any endorser or guarantor of such loan, and
the date and amount or value of such loan;
(F) person who provides a rebate, refund, or other
offset to operating expenditures to the reporting committee in
an aggregate amount or value in excess of $200 within the
calendar year (or election cycle, in the case of an authorized
committee of a candidate for Federal office), together with
the date and amount of such receipt; and
(G) person who provides any dividend, interest, or
other receipt to the reporting committee in an aggregate value
or amount in excess of $200 within the calendar year (or
election cycle, in the case of an_authorized committee of a
candidate for Federal office), together with the date and
amount of any such receipt;
(4) for the reporting period and the calendar year (or
election cycle, in the case of an authorized committee of a
candidate for Federal office), the total amount of all
disbursements, and all disbursements in the following
categories:
(A) expenditures made to meet candidate or
committee operating expenses;
(B) for authorized committees, transfers to other
committees authorized by the same candidate;
(C) transfers to affiliated committees and, where the
reporting committee is a political party committee, transfers
to other political party committees, regardless of whether
they are affiliated;
(D) for an authorized committee, repayment of loans
made by or guaranteed by the candidate;
l4a
(E) repayment of all other loans;
(F) contribution refunds and other offsets to
contributions;
(G) for an authorized committee, any other
disbursements;
(H) for any political committee other than an
authorized committee —
(i) contributions made to other political
committees;
(ii) loans made by the reporting committees,
(iii) independent expenditures;
(iv) expenditures made under section 441a(d) of
this title; and
(v) any other disbursements; and
(I) for an authorized committee of a candidate for the
office of President, disbursements not subject to the
limitation of section 441a(b) of this title;
(5) the name and address of each —
(A) person to whom an expenditure in an aggregate
~
.
amount or value in excess of $200 within the calendar year is
made by the reporting committee to meet a candidate or
committee operating expense, together with the date,
amount, and purpose of such operating expenditure;
(B) authorized committee to which a transfer is made
by the reporting committee;
(C) affiliated committee to which a transfer is made
by the reporting committee during the reporting period and,
where the reporting committee is a political party committee,
each transfer of funds by the reporting committee to another
political party committee, regardless of whether such
committees are affiliated, together with the date and amount
of such transfers;
(D) person who receives a loan repayment from the
reporting committee during the reporting period, together
with the date and amount of such loan repayment; and
1Sa
(E) person who receives a contribution refund or
other offset to contributions from the reporting committee
where such contribution was reported under paragraph (3)(A)
of this subsection, together with the date and amount of such
disbursement;
(6)(A) for an authorized committee, the name and
address of each person who has received any disbursement
not disclosed under paragraph (5) in an aggregate amount or
value in excess of $200 within the calendar year (or election
cycle, in the case of an authorized committee of a candidate
for Federal office), together with the date and amount of any
such disbursement;
(B) for any other political committee, the name and
address of each —
(i) political committee which has received a
contribution from the reporting committee during the
reporting period, together with the date and amount of any
such contribution;
(ii) person who has received a loan from the reporting
committee during the reporting period, together with the date
and amount of such loan;
(ili) person who receives any disbursement during the
reporting period in an aggregate amount or value in excess of
$200 within the calendar year (or election cycle, in the case
of an authorized committee of a candidate for Federal office),
in connection with an independent expenditure by the
reporting committee, together with the date, amount, and
purpose of any such independent expenditure and a statement
which indicates whether such independent expenditure is in
support of, or in opposition to, a candidate, as well as the
name and office sought by such candidate, and a
certification, under penalty of perjury, whether such
independent expenditure is made in cooperation,
consultation, or concert, with, or at the request or suggestion
16a
of, any candidate or any authorized committee or agent of
such committee;
(iv) person who receives any expenditure from the
reporting committee during the reporting period in
connection with an expenditure under section 441a(d) of this
title, together with the date, amount, and purpose of any such
expenditure as well as the name of, and office sought by, the
candidate on whose behalf the expenditure is made; and
(v) person who has received any disbursement not
otherwise disclosed in this paragraph or paragraph (5) in an
aggregate amount or value in excess of $200 within the
calendar year (or election cycle, in the case of an authorized
committee of a candidate for Federal office), from the
- reporting committee within the reporting period, together
with the date, amount, and purpose of any such
disbursement; .
(7) the total sum of all contributions to such political
committee, together with the total contributions less offsets
to contributions and the total sum of all operating
expenditures made by such political committee, together
with total operating expenditures less offsets to operating
expenditures, for both the reporting period and the calendar
year (or election cycle, in the case of an authorized
committee of a candidate for Federal office);
and
(8) the amount and nature of outstanding debts and
obligations owed by or to such political committee; and
where such debts and obligations are settled for less than
their reported amount or value, a statement as to the
circumstances and conditions under which such debts or
obligations were extinguished and the consideration therefor.
(c) Statements by other than political committees; filing;
contents; indices of expenditures
17a
(1) Every person (other than a political committee) who
makes independent expenditures in an aggregate amount or
value in excess of $250 during a calendar year shall file a
subsection (b)(3)(A) of this section for all contributions
received by such person.
(2) Statements required to be filed by this subsection shall
be filed in accordance with subsection (a)(2) of this section,
and shall include —
(A) the information required by subsection (b)(6)(B)(iii)
of this section, indicating whether the independent
expenditure is in support of, or in opposition to, the
candidate involved; |
(B) under penalty of perjury, a certification whether or
not such independent expenditure is made in cooperation,
consultation, or concert, with, or at the request or suggestion
of, any candidate or any authorized committee or agent of
such candidate; and
(C) the identification of each person who madea ~-
contribution in excess of $200 to the person filing such
statement which was made for the purpose of furthering an
independent expenditure.
Any independent expenditure (including those described in
subsection (b)(6)(B (iii) of this section) aggregating $1,000
or more made after the 20th day, but more than 24 hours,
before any election shall be filed within 24 hours after such
independent expenditure is mate. Such statement shall be
filed with the Secretary or the Commission and the Secretary
of State and shall contain the information required by
subsection (b)(6)(B)(iii) of this section indicating whether
the independent expenditure is in support of, or in opposition
to, the candidate involved. Notwithstanding subsection (a)(5)
of this section, the time at which the statement under this
subsection is received by the Secretary, the Commission, or
18a
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.
(3) The Commission shall be responsible for expeditiously
preparing indices which set forth, on a
candidate-by-candidate basis, all independent expenditures
separately, including those reported under subsection
(b)(6)(B)(iii) of this section, made by or for each candidate,
as reported under this subsection, and for periodically
publishing such indices on a timely pre-election basis.
(d) Filing by facsimile device or electronic mail
(1) Any person who is required to file a statement under
subsection (c) of this section, except statements required to
be filed electronically pursuant to subsection (a)(11)(A){i) of
this section may file the statement by facsimile device or
electronic mail, in accordance with such regulations as the
Commission may promulgate.
(2) The Commission shall make a document which is filed
electronically with the Commission pursuant to this
paragraph accessible to the public on the Internet not later
than 24 hours after the document is received by the
Commission.
(3) In promulgating a regulation under this paragraph, the
Commission shall provide methods (other than requiring a
signature on the document being filed) for verifying the
documents covered by the regulation. Any document verified
under any of the methods shall be treated for all purposes
(including penalties for perjury) in the same manner as a
document verified by signature.
19a
2 U.S.C. Sec. 441a. Limitations on Contributions and
Expenditures
(a) Dollar limits on contributions
(1) No person shall make contributions —
(A) to any candidate and his authorized political
committees with respect to any election for Federal office
which, in the aggregate, exceed $1,000;
(B) to the political committees established and
maintained by a national political party, which are not the
authorized political committees of any candidate, in any
calendar year which, in the aggregate, exceed $20,000; or
(C) to any other political committee in any calendar year
which, in the aggregate, exceed $5,000.
(2) No multicandidate political committee shall make
contributions —
(A) to any candidate and his authorized political
committees with respect to any election for Federal office
which, in the aggregate, exceed $5,000;
(B) to the political committees established and
maintained by a national political party, which are not the
authorized political committees of any candidate, in any
calendar year, which, in the aggregate, exceed $15,000; or
(C) to any other political committee in any calendar year
which, in the aggregate, exceed $5,000.
(3) No individual shall make contributions aggregating
more than $25,000 in any calendar year. For purposes of this
paragraph, any contribution made to a candidate in a year
other than the calendar year in which the election is held with
respect to which such contribution is made, is considered to
be made during the calendar year in which such election is
held.
(4) The limitations on contributions contained in
paragraphs (1) and (2) do not apply to transfers between and
among political committees which are national, State,
20a
district, or local committees (including any subordinate
committee thereof) of the same political party. For purposes
of paragraph (2), the term *‘multicandidate political
committee" means a political committee which has been
registered under section 433 of this title for a period of not
less than 6 months, which has received contributions from
more than 50 persons, and, except for any State political
party organization, has made contributions to 5 or more
candidates for Federal office.
(5) For purposes of the limitations provided by paragraph
(1) and paragraph (2), all contributions made by political
committees established or financed or maintained or
controlled by any corporation, labor organization, or any
other person, including any parent, subsidiary, branch,
division, department, or local unit of such corporation, labor
organization, or any other person, or by any group of such
persons, shall be considered to have been made by a single
political committee, except that (A) nothing in this sentence
shall limit transfers between political committees of funds
raised through joint fund raising efforts; (B) for purposes of
the limitations provided by paragraph (1) and paragraph (2)
all contributions made by a single political committee
established or financed or maintained or controlled by a
national committee of a political party and by a single
political committee established or financed or maintained or
controlled by the State committee of a political party shall
not be considered to have been made by a single political
committee; and (C) nothing in this section shall limit the
transfer of funds between the principal campaign committee
of a candidate seeking nomination or election to a Federal
office and the principal campaign committee of that
candidate for nomination or election to another Federal office
if (i) such transfer is not made when the candidate is actively
seeking nomination or election to both such offices; (ii) the
limitations contained in this Act on contributions by persons
2la
are not exceeded by such transfer; and (iii) the candidate has
not elected to receive any funds under chapter 95 or chapter
96 of title 26. In any case in which a corporation and any of
its subsidiaries, branches, divisions, departments, or local
units, or a labor organization and any of its subsidiaries,
branches, divisions, departments, or local units establish or
finance or maintain or control more than one separate
segregated fund, all such separate segregated funds shall be
treated as a single separate segregated fund for purposes of
the limitations provided by paragraph (1) and paragraph (2).
(6) The limitations on contributions to a candidate
imposed by paragraphs (1) and (2) of this subsection shall
apply separately with respect to each election, except that all
elections held in any calendar year for the office of President
of the United States (except a general election for such
office) shall be considered to be one election.
(7) For purposes of this subsection —
(A) contributions to a named candidate made to any
political committee authorized by such candidate to accept
contributions on his behalf shall be considered to be
contributions made to such candidate;
(B)(i) expenditures made by any person in cooperation,
consultation, or concert, with, or at the request or suggestion
of, a candidate, his authorized political committees, or their
agents, shall be considered to be a contribution to such
candidate;
(ii) the financing by any person of the dissemination,
distribution, or republication, in whole or in part, of any
broadcast or any written, graphic, or other form of campaign
materials prepared by the candidate, his campaign
committees, or their authorized agents shall be considered to
be an expenditure for purposes of this paragraph; and
(C) contributions made to or for the benefit of any
candidate nominated by a political party for election to the
office of Vice President of the United States shall be
22a
considered to be contributions made to or for the benefit of
the candidate of such party for election to the office of
President of the United States.
(8) For purposes of the limitations imposed by this section,
all contributions made by a person, either directly or
indirectly, on behalf of a particular candidate, including
contributions which are in any way earmarked or otherwise
directed through an intermediary or conduit to such
candidate, shall be treated as contributions from such person
to such candidate. The intermediary or conduit shall report
the original source and the intended recipient of such
contribution to the Commission and to the intended recipient.
(b) Dollar limits on expenditures by candidates for office of
President of United States
(1) No candidate for the office of President of the United
States who is eligible under section 9003 of title 26 (relating
to condition for eligibility for payments) or under section
9033 of title 26 (relating to eligibility for payments) to
receive payments from the Secretary of the Treasury may
make expenditures in excess of —
(A) $10,000,000, in the case of a campaign for
nomination for election to such office, except the aggregate
of expenditures under this subparagraph in any one State
shall not exceed the greater of 16 cents multiplied by the
voting age population of the State (as certified under
subsection (e) of this section), or $200,000; or
(B) $20,000,000 in the case of a campaign for election
to such office.
(2) For purposes of this subsection —
(A) expenditures made by or on behalf of any candidate
nominated by a political party for election to the office of
Vice President of the United States shall be considered to be
expenditures made by or on behalf of the candidate of such
23a
party for election to the office of President of the United
States; and
(B) an expenditure is made on behalf of a candidate,
including a vice presidential candidate, if it is made by —
(i) an authorized committee or any other agent of the
candidate for purposes of making any expenditure; or
(ii) any person authorized or requested by the
candidate, an authorized committee of the candidate, or an
agent of the candidate, to make the expenditure.
(c) Increases on limits based on increases in price index
(1) At the beginning of each calendar year (commencing in
1976), as there become available necessary data from the
Bureau of Labor Statistics of the Department of Labor, the
Secretary of Labor shall certify to the Commission and
publish in the Federal Register the percent difference
between the price index for the 12 months preceding the
beginning of such calendar year and the price index for the
base period. Each limitation established by subsection (b) of
this section and subsection (d) of this section shall be
increased by such percent difference. Each amount so
increased shall be the amount in effect for such calendar
year.
(2) For purposes of paragraph (1) —
(A) the term *’price index" means the average over a
calendar year of the Consumer Price Index (all items —
United States city average) published monthly by the Bureau
of Labor Statistics; and
(B) the term “base period” means the calendar year
1974.
(d) Expenditures by national committee, State committee, or
subordinate committee of State committee in connection
with general election campaign of candidates for Federal
office
24a
(1) Notwithstanding any other provision of law with
respect to limitations on expenditures or limitations on
contributions, the national committee of a political party and
a State committee of a political party, including any
subordinate committee of a State committee, may make
exnenditures in connection with the general election
campaign of candidates for Federal office, subject to the
limitations contained in paragraphs (2) and (3) of this
subsection.
(2) The national committee of a political party may not
make any expenditure in connection with the general election
campaign of any candidate for President of the United States
who is affiliated with such party which exceeds an amount
equal to 2 cents multiplied by the voting age population of
the United States (as certified under subsection (e) of this
section). Any expenditure under this paragraph shall be in
addition to any expenditure by a national committee of a
political party serving as the principal campaign committee
of a candidate for the office of President of the United States.
(3) The national committee of a political party, or a State
committee of a political party, including any subordinate
committee of a State committee, may not make any
expenditure in connection with the general election campaign
of a candidate for Federal office in a State who is affiliated
with such party which exceeds —
(A) in the case of a candidate for election to the office
of Senator, or of Representative from a State which is
entitled to only one Representative, the greater of —
(i) 2 cents multiplied by the voting age population of
the State (as certified under subsection (¢) of this section); or
(ii) $20,000; and
(B) in the case of a candidate for election to the office of
Representative, Delegate, or Resident Commissioner in any
other State, $10,000.
Fie
adrenal cea de ea dee aS SE
25a
(e) Certification and publication of estimated voting age
population
During the first week of January 1975, and every
subsequent year, the Secretary of Commerce shall certify to
the Commission and publish in the Federal Register an
estimate of the voting age population of the United States, of
each State, and of each congressional district as of the first
day of July next preceding the date of certification. The term
“voting age population” means resident population, 18 years
of age or older.
(f) Prohibited contributions and expenditures
No candidate or political committee shall knowingly
accept any contribution or make any expenditure in violation
of the provisions of this section. No officer or employee of a
political committee shall knowingly accept a contribution
made for the benefit or use of a candidate, or knowingly
make any expenditure on behalf of a candidate, in violation
of any limitation imposed on contributions and expenditures
under this section.
(g) Attribution of multi-State expenditures to candidate’s
expenditure limitation in each State
The Commission shall prescribe rules under which any
expenditure by a candidate for presidential nominations for
use in 2 or more States shall be attributed to such candidate’s
expenditure limitation in each such State, based on the voting
age population in such State which can reasonably be
expected to be influenced by such expenditure.
(h) Senatorial candidates
Notwithstanding any other provision of this Act, amounts
totaliig not more than $17,500 may be contributed to a
candidate for nomination for election, or for election, to the
United States Senate during the year in which an electiez: is
26a
held in which he is such a candidate, by the Republican or
Democratic Senatorial Campaign Committee, or the national
com mittee of a political party, or any combination of such
com iiittees.
27a
APPENDIX E
TITLE I— REDUCTION OF SPECIAL INTEREST
INFLUENCE
SEC. 101. SOFT MONEY OF POLITICAL PARTIES.
(a) INGENERAL- 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 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
requirements of this Act.
“(2) APPLICABILITY- The prohibition established 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, maintained, or controlled by such a
national committee.
“(b) STATE, DISTRICT, AND LOCAL COMMITTEES-
“(1) IN GENERAL - Except as provided in paragraph
(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, financed, maintained, or controlled by
a State, district, 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,
28a
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 prescribed by the
Commission) among amounts —
“(i) 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 —
“(i) the activity does not refer to a clearly
identified candidate for Federal office;
“(ii) 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;
“(iii) 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 established, financed,
maintained, or controlled by such person) may donate more
than $10,000 to a State, district, or local committee of a
LOLA ALE LOL! NR LO ae ie Ny ong > >
A re Ot 6 Oe me
NR MAT NL LO LR LEI LOE LL PL AEN Oe "”
29a
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 —
“(D) any other State, local, or district
committee of any State party,
“(ID the national committee of a political
party (including a national congressional campaign
committee of a political party),
“(II]) any officer or agent acting on behalf of
any committee described in subclause (I) or (II), or
“(IV) any entity directly or indirectly
established, financed, maintained, or controlled by any
committee described in subclause (I) or (II).
“(C) PROHIBITING INVOLVEMENT OF
NATIONAL 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 subparagraph only if the amounts —
“(i) are not solicited, received, directed,
transferred, or spent by or in the name of any person
described in subsection (a) or (e); and
“(ii) are not solicited, received, or directed
through fundraising activities conducted 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.
30a
“(c) FUNDRAISING COSTS- An amount spent bya
person described in subsection (a) or (b) to raise funds that
are used, in whole or in part, for expenditures and
disbursements for a Federal election activity shall be made
from funds subject to the limitations, prohibitions, 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 indirectly
established, financed, maintained, or controlled by any such
national, State, district, or local committee 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 determination of tax exempt status under
such section) and that makes expenditures or disbursements
in connection with an election for Federal office (including
itures 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) IN GENERAL- A candidate, individual holding
Federal office, agent of a candidate or an individual holding
Federal office, or an entity directly or indirectly established,
financed, maintained or controlled by or acting on behalf of 1
3la
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
requirements 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 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
“(ii) are not from sources prohibited by this Act
from making contributions in connection 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 -
Notwithstanding any other provision of this subsection, an
32a
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 exempt from taxation under section 501(a) of such
Code (or has submitted an application for determination 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 SOLICIT ATIONS - 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 described 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
“(ij) the amount solicited from any individual
during any calendar year does not exceed $20,000.
“(f) STATE CANDIDATES -—
“(1) IN GENERAL - 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
COMMUNICATIONS - 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 or
local office and refers only to such individual or to any other
: a te te ee
33a
candidate for the State or local office held or sought by such
individual, or both.”
(b) DEFINITIONS -— Section 301 of the Federal Election
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 election
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;
“(ii) 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
candidate for State or local office also appears on the ballot);
“(ili) 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 identified) 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 advocates a vote for or against a candidate); or
“(iv) services provided during any month by an
employee of a State, district, or local committee of a political
party who spends more than 25 percent of that individual’s
compensated 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 —
34a
“(j) 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);
“(ij) 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 candiJate.
“(22) PUBLIC COMMUNICATION ~ The term
‘public communication’ means a communication by means
of any broadcast, cable, or satellite communication,
newspaper, magazine, outdoor advertising facility, mass
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.”.
ee
35a
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 described
in subparagraph (D))” after “committee”; and
(B) by striking the period at the end and inserting “;
or”; and
(3) by adding at the end the following:
“(D) to a political committee established and
maintained 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:
“(e) POLITICAL COMMITTEES -
“(1) NATIONAL AND CONGRESSIONAL
POLITICAL COMMITTEES - The national committee of a
political party, any national congressional campaign
committee of a political party, and any subordinate
committee of either, shall report all receipts and
disbursements during the reporting period.
“(2) OTHER POLITICAL COMMITTEES TO
WHICH SECTION 323 APPLIES -
“(A) 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 aggregate amount of such receipts and disbursements
during the calendar year is less than $5,000.
36a
“(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).
“(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 Federal
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) INGENERAL — Subject to subsection (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
37a
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 construction of
an office building for such State or local committee.”
TITLE I! - NONCANDIDATE CAMPAIGN
EXPENDITURES
Subtitle A — Electioneering Communications
SEC. 201. DISCLOSURE OF ELECTIONEERING
COMMUNICATIONS. .
(a) IN GENERAL -— Section 304 of the Federal Election
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
COMMUNICATIONS —
“(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 statement
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 disbursement.
38a
“(B) The principal place of business of the person
making the disbursement, if not an individual.
“(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 electioneering
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 contributed 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.
“(3) ELECTIONEERING COMMUNICATION -— For
purposes of this subsection —
“(A) IN GENERAL - (i) The term ‘electioneering
communication’ means any broadcast, cable, or satellite
communication which —
39a
“(I) refers to a clearly identified candidate for
Federal office;
“(ID) 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 authoricy to nominate a candidate, for the office sought
by the candidate; and
“(II]) 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.
“(ii) If clause (i) is held to be constitutionally
insufficient by final judicial decision to support the
regulation provided herein, then the term electioneering
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 candidate. Nothing in this
subparagraph shall be construed to affect the interpretation or
application of section 100.22(b) of title 11, Code of Federal
Regulations.
“(B) EXCEPTIONS- The term ‘electioneering
communication’ does not include —
“(i) 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;
“(ii) a communication which constitutes an
expenditure or an independent expenditure under this Act:
40a
“(iii) 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 implementation 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 cleariy identified candidate
for Federal office is ‘targeted to the relevant electorate’ if the
communication can be received by 50,000 or more persons —
“(i) in the district the candidate seeks to
represent, in the case of a candidate for Representative in, or
Delegate or Resident Commissioner to, the Congress; or
“(ii) in the State the candidate seeks to represent,
in the case of a candidate for Senator.
“(4) DISCLOSURE DATE - For purposes of this
subsection, 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 producing 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
4la
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 Acct.
“(7) COORDINATION WITH INTERNAL
REVENUE CODE - Nothing in this subsection may be
construed to establish, modify, or otherwise affect the
definition of political activities or electioneering activities
(including the definition of participating in, intervening in, or
influencing or attempting to influence a political campaign
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
COMMUNICATIONS COMMISSION - The F ederal
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 subparagraph
(D); and
(2) by inserting after subparagraph (B) the following:
“(C) if -
“(i) any person makes, or contracts to make, any
disbursement for any electioneering communication (within
the meaning of section 304(f)(3)); and
42a
“(ii) such disbursement is coordinated with a
candidate or an authorized committee of such candidate, a
Federal, State, or local political party or committee thereof,
or an agent or official of any such candidate, party, or
committee;
such disbursement or contracting shall be treated as a
contribution to the candidate supported by the electioneering
communication or that candidate’s party and as an
expenditure by that candidate or that candidate’s party; and”.
SEC. 203. PROHIBITION OF CORPORATE AND LABOR
DISBURSEMENTS FOR ELECTIONEERING
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
COMMUNICATION - Section 316 of such Act is amended
by adding at the end the following:
“(c) RULES RELATING TO ELECTIONEERING
COMMUNICATIONS -
“(1) APPLICABLE ELECTIONEERING
COMMUNICATION - 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 described 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 communication’ does not
include a communication by a section 501(c)(4) organization
or a political organization (as defined in section 527(e)(1) of
43a
the Internal Revenue Code of 1986) made under section
304(f)(2)(E) or (F) 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(aX(20) of
the Immigration and Nationality Act (8 U.S.C. 1 101(aX(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 treated as made by
an entity described in subsection (a) if an entity described in
subsection (a) directly 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 communication 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 —
“(A) the term ‘section 501(c)(4) organization’
means —
“(i) an organization described in section
501(c)(4) of the Internal Revenue Code of 1986 and exempt
from taxation under section 501(a) of such Code; or
“(i1) an organization which has submitted an
application to the Internal Revenue Service for determination
of its status as an organization described in clause (i); and
44a
“(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 TARGETED
ELECTIONEERING COMMUNICATIONS.
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 -
Paragraph (2) shall not apply in the case of a targeted
communication that is made by an orgamization descnbed in
such
“(B) TARGETED COMMUNICATION - For
purposes of subparagraph (A), the term ‘targeted
communication’ means an electioneering communication | 4s
defined in section 304(f)(3)) that is distnbuted from a
television or radio broadcast station or provider of cable or
satellite television service and, 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.
“(C) DEFINITION -— For purposes of this
paragraph, a communication is ‘targeted to the relevant
electorate’ if it meets the requirements descnbed in section
304(f(3(C).”.
45a
Subtitle B — Independent and Coordinated Expenditures
SEC. 211. DEFINITION OF INDEPENDENT
EXPENDITURE.
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
; expenditure’ means an expenditure by a
person -—
“(A) 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 authonzed political committee, or their agents, or
4 political party committee or its agents.”
SEC. 212. REPORTING REQUIREMENTS FOR
CERTAIN INDEPENDENT EXPENDITURES.
(a) IN GENERAL - Section 304 of the Federa! Election
Campaign Act of 1971 (2 U.S.C 434) (as amended by
section 201) 1s amended —
(|) in subsection (c\2), by striking the undesignated
matter after subparagraph (C); and
(2) by adding at the end the following:
“(g) TIME FOR REPORTING CERTAIN
EXPENDITURES -
“(1) EXPENDITURES AGGREGATING $1,000 —
“(A) INITLAL REPORT -— A person (including a
poliucal commuttee) 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 shail file a report descnbing 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 additional $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. |
“(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 additional $10,000 with respect 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
AGGREGATING $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
47a
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 (c)”.
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)”; and
(2) by adding at the end the following:
“(4) INDEPENDENT VERSUS COORDINATED
EXPENDITURES 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 —
“(il) 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
expenditure 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
ee
48a
committees established and maintained by a State political
party (including any subordinate committee of a State
committee) shall be considered to be a single political
committee.
“(C) TRANSFERS -— A committee of a political
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 expenditures 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 independent expenditure
with respect to the candidate.”.
SEC. 214. COORDINATION WITH CANDIDATES OR
POLITICAL PARTIES.
(a) IN GENERAL - Section 315(a\(7)\(B) of the Federal
Election Campaign Act of 1971 (2 U.S.C. 44la(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 committee) 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
regulations 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 Register, on December
6, 2000, are repealed as of the date by which the Commission
a
49a
is required to promulgate new regulations under subsection
(c) (as described in section 402(c)(1)).
(c) REGULATIONS BY THE FEDERAL ELECTION
COMMISSION - The Federal Election Commission shall
promulgate new regulations on coordinated communications
paid for by persons othei than candidates, authorized
committees of candidates, and party committees. 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 communication 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
50a
TITLE Ill — MISCELLANEOUS
SEC. 301. USE OF CONTRIBUTED AMOUNTS FOR
CERTAIN PURPOSES.
Title Il 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:
“SEC. 313. USE OF CONTRIBUTED AMOUNTS FOR
CERTAIN PURPOSES.
“(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 incurred in
connection with duties of the individual as a holder of
Federal office;
“(3) for contributions to an organization described 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 paragraph
(1), a contribution or donation shall be considered to be
converted to personal use if the contribution 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 individual’s duties as a holder of
Federal office, including —
S5la
“(A) a home mortgage, rent, or utility payment;
“(B) a clothing purchase;
“(C) a noncampaign-related automobile expense;
“(D) a country club membership;
“(E) a vacation or other noncampaign-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
~ “(1) 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 io 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 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
Members 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 section
shall be fined not more than $5,000, imprisoned not more
than 3 years, or both.”; and
52a
(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. 441e) 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 —
“(1) a foreign national, directly or indirectly, to make —
“(A) a contribution or donation of money or other
thing of value, or to make an express or implied promise to
make a contribution or donation, in connection with a
Federal, State, or local election;
“(B) a contribution or donation to a committee of a
political party; or
“(C) an expenditure, independent expenditure, or
disbursement for an electioneering communication (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
CONTRIBUTION 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
—————————
53a
(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 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 subsection, the
threshold amount with respect to an election cycle of a
candidate described in subparagraph (A) is an amount equal
to the sum of —
“(1) $150,000; and
“(I) $0.04 saultiplied by the voting age
population.
“(ii) VOTING AGE POPULATION - In this
subparagraph, the term ‘voting age population’ 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 provided 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 —
“(I) the increased limit shall be 3 times the
applicable limit; and
“(ID) the limit under subsection (a)(3) shall
not apply with respect to any contribution made with respect
to a candidate if such contribution is made under the
54a
increased limit of subparagraph (A) during a period in which
the candidate may accept such a contribution;
“(ii) 4 times the threshold amount, but not over
10 times that amount —
“(1) 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 contribution made with respect
to a candidate if such contribution is made under the
increased limit of subparagraph (A) during a period in which
the candidate may accept such a contribution; and
“(iii) 10 times the threshold amount —
“(I) the increased limit shall be 6 times the
applicable limit;
“(II) the limit under subsection (a)(3) shall
not apply with respect to any contribution made with respect
to a candidate if such contribution is made under the
increased 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 —
“(i) the greatest aggregate amount of
expenditures from personal funds (as defined in section
304(a)(6)(B)) that an opposing candidate in the same election
makes; over
“(ij) the aggregate amount of expenditures from
personal funds made by the candidate with respect to the
election.
“(2) TIME TO ACCEPT CONTRIBUTIONS UNDER
INCREASED LIMIT -
55a
“(A) IN GENERAL — Subject to subparagraph (B),
a candidate and the candidate’s authorized committee shall
not accept any contribution, and a party committee shall not
make any expenditure, 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
“(ii) to the extent that such contribution, when
added to the aggregate amount of contributions previously
accepted and party expenditures 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 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.
“(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
candidate or a candidate’s authorized committee shall return
the excess contribution to the person who made the
contribution.
“G) LIMITATION ON REPAYMENT OF PERSONAL
LOANS - Any candidate who incurs personal loans made
56a
after the effective date of the Bipartisan Campaign Reform
Act of 2002 in connection with the candidate’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
PERSONAL FUNDS - Section 304(a)(6) of the Federal
Election Campaign Act of 1971 (2 U.S.C. 434(a)(6)) is
amended —
on % by redesignating subparagraph (B) as subparagraph
; an
(2) by inserting after subparagraph (A) the following:
“(B) NOTIFICATION OF EXPENDITURE FROM
PERSONAL FUNDS -
“(j) DEFINITION OF EXPENDITURE FROM
PERSONAL FUNDS - In this subparagraph, the term
‘expenditure from personal funds’ means —
“(T) an expenditure made by a candidate using
personal funds; and
“(I]) a contribution or loan made by a candidate
using personal funds or a loan secured using such funds to
the candidate’s authorized committee.
“(ii) 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 file 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 —
“(I) the Commission; and
“(II) each candidate in the same election.
S7a
“(ii) 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 —
“(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 tine
expenditures from personal funds are made or obligated to be
made in an aggregate amount that exceed $10,000 with —
“(II) each candidate in the same election.
Such notification shall be filed not later than 24 hours
after the expenditure is made.
“(v) CONTENTS ~ A notification under clause (iii) or
(iv) shall include —
“(D) the name of the candidate and the office sought
by the candidate;
“(II) the date and amount of each expenditure; and
“(II1) 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
CONTRIBUTIONS ~ 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 committee shall
submit to the Commission a report indicating the source and
amount of any excess contributions (as determined under
paragraph (1) of section 315(i)) and tie manner in which the
58a
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.”
(c) DEFINITIONS — Section 301 of the Federal Election
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 candidate, the candidate had
legal right of access to or control over, and with respect to
which the candidate had —
“(i) legal and rightful title; or
“(ii) 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, :
“(ii) dividends and proceeds from the sale of the
candidate’s stocks or other investments;
“(iii) bequests to the candidate;
59a
“(iv) income from trusts established before the
beginning of the election cycle;
“(v) income from trusts established by bequest
after the beginning of the election cycle of which the
candidate is the beneficiary,
“(vi) gifts of a personal nature that had been
customarily received by the candidate prior to the beginning
of the election cycle; and
“(vii) 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 ownership, but if no specific share is indicated
by an instrument of conveyance or ownership, the value of
1/2 of the property.”.
SEC. 305. LIMITATION ON AVAILABILITY OF
LOWEST UNIT CHARGE FOR FEDERAL CANDIDATES
ATTACKING OPPOSITION.
(a) IN GENERAL - Section 315(b) of the
Communications 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 candidate for
Federal office, such candidate shall not be entitled to receive
the rate under paragraph (1)(A) for the use of any
60a
certification 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 nights and conditions of access
under this Act, unless such reference meets the requirements
of subparagraph (C) or (D).
“(B) LIMITATION ON CHARGES - If a candidate
for Federal office (or any authorized committee of such
candidate) makes a reference described in subparagraph (A)
in any broadcast that does not meet the requirements of
subparagraph (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 B
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.