# Jurisdictional Statement — McConnell v. Federal Election Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0674%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 2003 - **Citation:** 539 U.S. 938 ## 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0674%3A2. Public record. Not legal advice.