Appellees Brief — Wisconsin Right to Life, Inc. v. Federal Election Comm'n

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A FILED

DEC 19 2005

No. 04-1581 OEEIE OF THE CLERK

In the Supreme Court of the Anited States

WISCONSIN RIGHT TO LIFE, INC., APPELLANT

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

PAUL D. CLEMENT

LAWRENCE H. NORTON ay i General

General Counsel ounsel of Record

RICHARD B. BADER GREGORY G. GARRE

Associate General Counsel Deputy Solicitor General

DAVID KOLKER MALCOLM L. STEWART

Assistant General Counsel —— to the Solicitor

ene

_—~ J. UMMERS Department of Justice

orne : Washington, D.C. 20530-0001

Federal Election (202) 514-2217

Commission

Washington, D.C. 20463

QUESTION PRESENTED

Whether the three-judge district court correctly

rejected appellant’s as-applied constitutional challenge

to the federal prohibition on the use of corporate

treasury funds to finance “electioneering commu-

nications.”

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TABLE OF CONTENTS

Page

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Argument:

The district court correctly rejected appellant’s as-

applied constitutional challenge to BCRA’s restrictions

on the corporate financing of “electioneering

CI wo Sika edcorid beneesssadwaticheeead 17

A. Appellant’s as-applied constitutional challenge

is foreclosed by this Court’s decision in

PE ORS enbs hoatebhhdawks denis Gusabans 18

B. Acceptance of appellant’s as-applied challenge

to BCRA’s “electioneering communications”

provisions would substantially undermine

Congress’s effort to develop an objective bright-

line rule for identifying the election-related

advertisements that may not be financed with

corporate and union treasury funds.............. 26

C. Evenif appellant could demonstrate that the

advertisements at issue here were “grassroots

lobbying” advertisements, appellant would not

be entitled to a constitutional exemption from

BCRA’s ban on the use of corporate treasury

funds to finance “electioneering

RE, -nke Rancdscaedinediatisaaeess 35

D. Appellant’s offer to finance the advertisements

at issue here from a segregated bank account

does not alter the constitutioral analysis ......... 44

REE bn sb en oops Sek 6s Vind ban wERe hae cebas bees 49

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Austin v. Michigan Chamber of Commerce,

ie Rf) Eee rrr es Boer rier 9, 25

Brown v. Socialist Workers ’74 Campaign Comm.,

PAL CD cn dcndvnevevespebnddnehabienwad -.. 2

Buckley v. Valeo, 424 U.S. 1

fe eet By ere 5, 25, 27, 28, 30, 40, 41, 42

California Med. Ass'n v. FEC, 453 U.S. 182 ........... 47

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994),

cert. denied, 513 U.S. 1127 (1995) ..............008- 33

FEC v. Beaumont, 539 U.S. 146 (2008) ............ 3,9,46 —

FEC v. Massachusetts Citizens for Life, Inc.,

470 US. BEB CGSB) 2... cvcsccnssce 4, 5, 15, 26, 31, 33, 41

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) ............ 33

FEC v. National Right to Work Comm.,

GU BII GD os cscvecesttsshimeesnteeneres 3

FEC v. Survival Educ. Fund, Inc.,

fs f |. ie Sper rh yr ryr ee ae 33

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) ........ 41

Florida Bar v. Went For It, Inc., 515 U.S. 618

(1995) ...... 6bcaebdneséb50 ken k ee Gale 31

Goland v. United States, 903 F.2d 1247 (9th Cir.

SO Bedaie ieeerks tts eee ee 30

Heffron v. International Soc'y for Krishna

Consciousness, Inc., 452 U.S. 640(1981) ............ 31

Hill v. Colorado, 530 U.S. 703 (2600) ... 2... 6. ee eee nee 31

Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527 (1985)... ccc ce eee c eee ees 29

Cases—Continued: Page

McConnell v. FEC:

251 F. Supp. 2d 176 (D.D.C. 2003) ...... 11, 18, 21, 36, 39

ED... aac uenseebssucnesaceaees passina

Nevada Dep't of Human Res. v. Hibbs,

SE EE ves cachetcaccesdnentsosdescuces 23

North Carolina Right to Life, Inc. v. Bartlett,

168 F.3d 705 (4th Cir. 1999), cert. denied, 528 U.S. 1153

DED ndlintddinemedsetehbeane eos ceeseeeescicesn 33

Pipefitters v. United States, 407 U.S. 385 (1972) ........ 3

Thomas v. Collins, 323 U.S. 516 (1945) ................ 28

United States v. Salerno, 481 U.S. 739 (1987) .......... 22

Constitution, statutes and regulations:

U.S. Const.:

EERE ESS DREN Ce ny nes weer 14, 21, 31, 41, 44

ER SI BER Cony AO ae er 23

Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat.81 .............. passim

Pe ETL GEE Sn vdsvscacccrostsivers passim

§ 203:

ES aE CN pee ee passim

cb icch acc sanihevsneaeenadtans 2

in cess ac ctins en sbeseubukt 22, 46

a ae as oak dues 35

er n . custucceevecdcesseeuks 12

I IED iid. be 0 A ndeocee ed eeege decd 35

Federal Election Campaign Act of 1971,

2 U.S.C. 431-455 (2000 & Supp. IT 2002) ............. 2

IED Wikd cvs tacisscncidcvccovades 4

Statutes and regulations—Continued: Page

DEE. svncdcccvnevecvseveonsene 5

2 U.S.C. 431(17) (Supp. I] 2002) .............. 6, 47

es ian tenckeunteuein 45

ED vcccncdewbaduaensepecesceual 45

IEEE i ie docvdednecdseevansancewuas’ 45

MD 65 snes ccdduniscoscsccscunn 45

IETS. Ciccccddcncdddcscidvesesie 45

2 U.S.C. 434(f(3)(A)(i) (Supp. 11 2002) ............ 8

2 U.S.C. 434(f)(3)(A)Gi) (Supp. IT 2002) ........ 8,13

2 U.S.C. 434(f)(3)(B)(i)-(iv) (Supp. IT 2002) ......... 8

2 U.S.C. 434(f(3)(C) (Supp. IT 2002) ............. 36

I a nd cae capandanngbuee 3

NS os i ccicinukieveeiont 3

2 U.S.C. 437d(aX8) .......... eee eeees cdeeseiund 3

EE aid poecknaceieheen Gover cdeawadis 3

2 U.S.C. 438(a)(8) (Supp. II 2002) ................ 3

UE a vdcknvicdciuccveccdesecscseeen 3

IED ccc cup stccesdouesaacanaves 45

RN ees vidcbarnbiddsknaauheel 4,7

I is Lnceicuscdavucteses soannsGeeul 3

PR a anccnndasacbscupccnusstssvdnshl 7

2 U.S.C. 441b(b)(2) (Supp. IT 2002) ............. 2,7

2 U.S.C. 441b(b)(2)(C) (Supp. IIT 2002) .......... 3,9

OED nnvdn vasucdasepddeevacisecces 45

2 U.S.C. 441b(b4(A)(C) 2... cece eee eee eee 3

26 U.S.C. SOL(C)4) 0... cece e eee e cece eee eees 11, 44, 45

Vil

Statute and regulations—Continued: Page

Sa RSE SSRI Se Se ane a BN ee aS PN A 45

11 C.F.R.:

SET o. cucsedecvdbiancss susadandutivees 6

In the Supreme Court of the Gnited States

No. 04-1581

WISCONSIN RIGHT TO LIFE, INC., APPELLANT

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLEE

OPINIONS BELOW

The opinion and order of ite district court dismissing

appellant’s complaint (J.S. Aor. la-3a) is unreported. A

prior opinion of the district court denying appellant’s

request for preliminary injunctive relief (J.S. App. 4a-

12a) is unreported.

JURISDICTION

The judgment of the district court was entered on

May 10, 2005. A notice of appeal was filed on May 12,

2005, and was docketed on May 25, 2005. The jurisdic-

tional statement was filed on May 23, 2005. This Court

noted probable jurisdiction on September 27, 2005. The

jurisdiction of this Court rests on 28 U.S.C. 1253 and on

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

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

(1)

STATEMENT

This case concerns a provision of the Bipartisan

Campaign Reform Act of 2002 (BCRA or Act), Pub. L.

No. 107-155, § 203, 116 Stat. 81, 91-92, that prohibits

corporations from using their general treasury funds to

pay for any communication—an “electioneering commu-

nication” in the terminology of the Act—that refers to a

candidate for federal office and is broadcast within 30

days of a federal primary election or 60 days of a federal

general election in the jurisdiction in which that candi-

date is running. BCRA § 203, 2 U.S.C. 441b(b)(2) (Supp.

II 2002). Just two Terms ago, this Court sustained

BCRA § 203 against a facial challenge and held that the

primary definition of “electioneering communication”

set forth in BCRA § 201(a)—which, the Court recog-

nized, has a degree of prophylaxis—is constitutional in

“all applications.” McConnell v. FEC, 540 U.S. 93, 190

n.73, 203-209 (2003).

Appellant subsequently filed this action in federal

district court, arguing that BCRA’s restrictions on the

corporate financing of “electioneering communications”

are unconstitutional as applied to appellant’s own broad-

cast advertisements. The three-judge district court

unanimously denied appellant’s request for preliminary

injunctive relief, J.S. App. 4a-12a, and the court subse-

quently dismissed appellant’s complaint, id. at la-3a.

1. The Federal Election Commission (Commission or

FEC) is vested with statutory authority over the admin-

istration, interpretation, and civil enforcement of the

Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431-455 (2000 & Supp. II 2002), and other fed-

eral campaign-finance statutes. See J.S. App. 4a. The

Commission is empowered to “formulate policy” with

respect to the FECA, 2 U.S.C. 437¢(b)(1); “to make,

amend, and repeal such rules * * * as are necessary to

carry out the provisions of [the] Act,” 2 U.S.C.

437d(a)(8), 438(d); 2 U.S.C. 438(a)(8) (Supp. II 2002);

and to issue written advisory opinions concerning the

application of the Act and Commission regulations to

any specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 437f.

2. a. Federal law has long prohibited both for-profit

and nonprofit corporations from using their general

treasury funds to finance contributions and expendi-

tures in connection with federal elections. See FEC v.

Beaumont, 539 U.S. 146, 152-154 (2003). The FECA

makes it “unlawful * * * for any corporation

whatever * * * to make a contribution or expenditure

in connection with any election” for federal office.

2 U.S.C. 441b(a). However, the FECA permits a corpo-

ration to establish a “separate segregated fund,” com-

monly called a political action committee or PAC, to fi-

nance those disbursements. 2 U.S.C. 441b(b)(2)(C)

(Supp. II 2002). The fund “may be completely con-

trolled” by the corporation, and it is “separate” from the

corporation “‘only in the sense that there must be a

strict segregation of its monies’ from the corporation’s

other assets.” FEC v. National Right to Work Comm..,

459 U.S. 197, 200 n.4 (1982) (quoting Pipefitters v.

United States, 407 U.S. 385, 414 (1972)). The fund may

solicit and accept donations voluntarily made for politi-

cal purposes by the corporation’s stockholders or mem-

bers and its employees, and by the families of those indi-

viduals. 2 U.S.C. 441b(b)(4)(A)-(C). The money in a cor-

poration’s separate segregated fund can be contributed

directly to candidates for federal office, and it may be

used to pay for independent expenditures to communi-

cate to the general public the corporation’s views on

such candidates.

In FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) (MCFL), this Court held that Sec-

tion 441b’s prohibition on the use of corporate treasury

funds to finance independent expenditures for

campaign-related speech could not constitutionally be

applied to a corporation that (1) was “formed for the

express purpose of promoting political ideas, and can-

not engage in business activities”; (2) had “no share-

holders or other persons affiliated so as to have a claim

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

by a business corporation or a labor union, and [had a)

policy not to accept contributions from such entities.”

Id. at 264; see McConnell, 540 U.S. at 210 (“Our deci-

sion in MCFL related to a carefully defined category of

entities.”); 11 C.F.R. 114.10 (implementing the MCFL

exception). Corporations possessing the characteristics

identified in that case are commonly referred to as

“MCFL organizations.” See, e.g., McConnell, 540 U.S.

at 210.

The Court in MCFL also adopted a narrowing con-

struction of 2 U.S.C. 441b even as applied to corporate

entities that do not qualify as MCFL organizations. In

interpreting Section 441b’s prohibition of corporate

“expenditure[s],” the Court noted that the FECA defini-

tion of “expenditure” encompassed “the provision of

anything of value made ‘for the purpose of influencing

any election for Federal office.’” MCFL, 479 U.S. at

245-246 (quoting 2 U.S.C. 431(9)(A)(i)) (emphasis omit-

ted). To avoid problems of vagueness and overbreadth,

the Court construed Section 441b’s prohibition of inde-

pendent expenditures from corporate treasuries to

reach only the financing of communications that ex-

pressly edvocate the election or defeat of a clearly iden-

tified candidate. Jd. at 248-249; see 2 U.S.C. 431(17)

(2000) (pre-BCRA version).

The Court had previously introduced the concept of

express advocacy in Buckley v. Valeo, 424 U.S. 1, 43-44,

77-80 (1976), when it narrowly construed other FECA

provisions regulating independent campaign expendi-

tures. Buckley provided examples of words of express

advocacy, such as “vote for,” “elect,” “support,” “de-

feat,” and “reject.” Jd. at 44 n.52. “[T]hose examples

eventually gave rise to what [became] known as the

‘magic words’ reauirement,” McConnell, 540 U.S. at 191,

under which communications not using such terms were

frequently held not to be covered by federal restrictions

on corporate election-related expenditures. The Court

in Buckley “adopted the ‘express advocacy’ requirement

to distinguish discussion of issues and candidates from

more pointed exhortations to vote for particular per-

sons,” MCFL, 479 U.S. at 249, thereby providing clear

guidance to potential advertisers and avoiding undue

inhibition of issue-related speech that is not intended to

infiuence federal elections. See McConnell, 540 U.S. at

190-192; Buckley, 424 U.S. at 78-80.

b. Based on its assessment of evolving federal cam-

paign practices, Congress subsequently determined

that the “express advocacy” test had failed to provide

an effective standard for distinguishing broadcast ad-

vertisements that are intended to influence federal elec-

tions from those that are not, at least during the

periods immediately preceding federal elections. See

McConnell, 540 U.S. at 126-129, 193-194.' That was so

for two basic reasons.

First, modern-day advertising professionals gener-

ally agree that the use of explicit words of electoral ad-

vocacy is rarely an effective means of persuasion. As

the Court in McConnell explained, “campaign profes-

sionals testified [in that case] that the most effective

campaign ads, like the most effective commercials for

products such as Coca-Cola, should, and did, avoid the

use of the magic words.” 540 U.S. at 127; see id. at 127

n.18 (noting that only 4-5% of candidate advertisements

in recent election cycles used magic words despite the

absence of any regulatory incentive to avoid such lan-

guage); id. at 193 & n.77. Indeed, as the Court in

McConnell noted, one consultant in the field dismissed

such appeals as “vote for” and “vote against” as “clumsy

words,” best to be avoided. /bid. Advertisers who seek

to influence federal elections therefore would rarely

employ such explicit appeals even if the decision to do so

carried no legal consequences, and a regulation focusing

on such words would miss its target.

Second, the very existence of the “express advo-

cacy” test—i.e., the fact that communications contain-

’, Congress's concern about the inadequacy of the “express advocacy”

test focused on broadcast electioneering advertisements aired during

brief pre-election periods. See McConnell, 540 U.S. at 127 (“{Tthe

conclusion that [purported issue] ads were specifically intended to

affect election results was confirmed by the fact that almost all of them

aired in the 60 days immediately preceding a federal election.”). BCRA

did not alter the application of the “express advocacy” standard to

corporate and union disbursements for non-broadcast communications

during those pre-eiection periods, or to any communication made

outside the temporal and geographic limits incorporated into the

definition of “electioneering communication.” See 2 U.S.C. 431(17)

(Supp. II 2002); 11 C.F.R. 100.22.

ing express advocacy of a federal candidate’s election or

defeat were subject to distinct legal restrictions, includ-

ing Section 441b’s prohibition on the use of corporate

and union treasury funds to finance election-related

“expenditures”—created an additional incentive for cor-

porations and labor unions to craft advertisements

that were broadcast shortly before federal elections and

were designed to affect electoral outcomes, but that did

not use explicit words of electoral advocacy. Corpora-

tions and labor unions therefore devised political com-

munications that avoided such advocacy and financed

those communications with “huncreds of millions of dol-

lars” from their general treasuries. McConnell, 540

U.S. at 127. Those advertisements “were attractive to

organizations and candidates precisely because they

were beyond FECA’s reach, enabling candidates and

their parties to work closely with friendly interest

groups to sponsor so-called issue ads when the candi-

dates themselves were running out of money.” /d. at

128. “[AJlthough the resulting advertisements [did] not

urge the viewer to vote for or against a candidate in so

many words, they [were] no less clearly intended to in-

fluence the election.” Jd. at 193. “(T]he conclusion that

such ads were specifically intended to affect election

results was confirmed by the fact that almost all of them

aired in the 60 days immediately preceding a federal

election.” /d. at 127.

After years of debate and extensive hearings, “Con-

gress enacted BCRA to correct the flaws it found in the

existing system.” McConnell, 540 U.S. at 194. BCRA

§ 203 amended 2 U.S.C. 441b(b) to bar any corporation

or union from paying for an “electioneering communica-

tion” with money from its general treasury. 2 U.S.C.

441b(b)(2) (Supp. II 2002). The term “electioneering

communication” is defined in pertinent part as a “broad-

cast, cable, or satellite communication” that (1) “refers

to a clearly identified candidate for Federal office”; (2)

is made within 60 days before a general election, or

within 30 days before a primary election, for the office

sought by the candidate; and (3) is “targeted to the rele-

vant electorate.” BCRA § 201(a), 116 Stat. 88, 2 U.S.C.

434(f)(3)(A)(i) (Supp. II 2002).°

BCRA also contains a “backup” definition of the

term “electioneering communication” that takes effect

if the primary definition “is held to be constitutionally

insufficient by final judicial decision to support the regu-

lation provided [in BCRAJ].” 2 U.S.C. 434(f)(3)(A)(ii)

(Supp. II 2002); see McConnell, 540 U.S. at 190 n.73.

Under the backup definition, “the term ‘electioneering

communication’ means any broadcast, cable, or satellite

communication which promotes or supports a candidate

for |a federal] office, or attacks or opposes a candidate

for that office (regardless of whether the communica-

tion expressly advocates a vote for or against a candi-

date) and which also is suggestive of no plausible mean-

ing other than an exhortation to vote for or against: a

specific candidate.” 2 U.S.C. 434(f)(3)(A)(ii) (Supp. II

* BCRA excludes from that definition (i) a communication appearing

in a news story, commentary, or editorial by a broadcasting station; (ii)

a communication that is an expenditure or independent expenditure

under the FECA; (iii) a candidate debate or forum; and (iv) any other

communications the Commission exempts by regulation, consistent with

certain requirements. BCRA § 201(a), 2 U.S.C. 434(f)(3)(B)(i)-(iv)

(Supp. [1 2002). The definition of “electioneering communication” also

does not encompass print communications such as billboards, news-

paper and magazine advertisements, brochures, and handbills, and it

does not cover telephone or Internet communications. See McConnell,

540 U.S. at 207. Those modes of communication remain subject to the

“express advocacy” test. See note 1, supra.

2002). Unlike the primary definition, the applicability of

the backup definition is not limited to broadcast adver-

tisements that are aired during the brief periods before

federal elections or that are targeted to a particular au-

dience.

BCRA’s prohibition on the use of corporate and un-

ion treasury funds to finance “electioneering communica-

tions” applies to nonprofit as well as for-profit corpora-

tions. See McConnell, 540 U.S. at 209-210. That financ-

ing restriction is not subject to any express statutory

exception for MCF organizations. See id. at 211. “(T]o

avoid constitutional concerns,” however, the Court in

McConnell construed the statutury ban on the use of

corporate treasury funds for “electioneering communica-

tions” to be inapplicable to MCF'L organizations. See

ibid. Any corporation or union remains free, moreover,

to establish a separate segregated fund and to pay for

“electioneering communications” from that fund.

2 U.S.C. 441b(b)(2)(C) (Supp. II 2002).

3. In McConnell, this Court upheld against constitu-

tional challenge BCRA § 203’s ban on the use of corpo-

rate or union treasury funds for “electioneering commu-

nications.” See 540 U.S. at 203-209. The Court observed

that, “[bjecause corporations can still fund electioneer-

ing communications with PAC money, it is ‘simply

wrong’ to view * * * [BCRA § 203] as a ‘complete ban’

on expression rather than a regulation.” Jd. at 204

(quoting Beaumont, 539 U.S. at 162, and Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 658

(1990)). “The PAC option allows corporate political par-

ticipation without the temptation to use corporate funds

for political influence, quite possibly at odds with the

sentiments of some shareholders or members.” J/bid.

(quoting Beaumont, 539 U.S. at 163). The Court also

noted that its campaign-finance jurisprudence manifests

“respect for the legislative judgment that the special

characteristics of the corporate structure require partic-

ularly careful regulation.” /d. at 205 (citations and in-

ternal quotation marks omitted).

The Court in McConnell squarely rejected the plain-

tiffs’ argument that Congress’s authority to regulate the

campaign-related speech of corporations and unions is

limited, as a constitutional matter, to speech that con-

tains “express advocacy” of particular electoral results.

See 540 U.S. at 190-194. The Court explained that “the

concept of express advocacy” was “not a first principle

of constitutional law,” but rather a matter of statutory

construction “born of an effort to avoid constitutional

infirmities” by placing a limiting construction on other-

wise ambiguous statutory language. /d. at 192. The

Court further observed that BCRA’s “definition of ‘elec-

tioneering communication’ raises none of the vagueness

concerns that drove (the Court’s] analysis in Buckley”

because the criteria used to define that term “are both

easily understood and objectively determinable.” Jd. at

194.

The Couic in McConnell also rejected the plaintiffs’

contention that “the justifications that adequately sup-

port the regulation of express advocacy do not apply to

significant quantities of speech encompassed by the defi-

nition of electioneering communications.” 540 U.S. at

206. Based on its examination of the record before

ui? ulstrict court, the Court concluded that the “vast

majority” of prior advertisements encompassed by

BCRA’s definition of the term “electioneering communi-

cation” were intended to influence electoral outcomes.

Ibid. The Court further observed that, “whatever the

precise percentage may have been in the past, in the

future corporations and unions may finance genuine is-

sue ads during those timeframes by simply avoiding any

specific reference to federal candidates, or in doubtful

cases by paying for the ad from a segregated fund.”

Ibid. This Court also noted that, in light of its decision

to “uphold all applications of the primary definition” of

the term “electioneering communication,” the Court

“ha[d] no occasion to discuss the backup definition,” id.

at 190 n.73, which had been addressed and upheld in the

district court decision under review, see McConnell v.

FEC, 251 F. Supp. 2d 176, 184-185 (D.D.C. 2003) (per

curiam).

4. Appellant Wisconsin Right To Life, Inc., is a non-

profit, nonstock Wisconsin corporation. Appellant’s

amended complaint asserted tha: the corporation is tax-

exempt under Section 501(c)(4) of the Internal Revenue

Code, and that it was organized to protect “individual

human life from the time of fertilization until natural

death.” Amended Compl. 11 20, 22; see J.S. App. 4a.

Appellant asserted that it does not qualify for any ex-

ception that would permit it to finance electioneering

communications with corporate funds, alleging in partic-

ular that it is not a “qualified nonprofit corporation”

under 11 C.F.R. 114.10—1.e., the regulation that imple-

ments the MCFL exception. See J.S. App. 4a; p. 4, su-

pra. Appellant administers its own separate segregated

fund for campaign-related activity. See J.S. App. 5a.

During the 1992 and 1998 election cycles, appellant’s

PAC made independent expenditures that, inter alia,

opposed the candidacy of Unitec States Senator Russell

Feingold. See FEC Exhs. 8, 9.

Beginning in late 2003, candidates who opposed Sen-

ator Feingold’s reelection efforts “made Senator

Feingold’s support of Senate filibusters against judicial

nominees a campaign issue.” J.S. App. 5a. “In March

2004, [appellant’s} PAC endorsed three candidates op-

posing Senator Feingold and announced that the defeat

of Senator Feingold was a priority.” Jbid. During

early 2004, appellant “used a variety of non-broadcast

communications” to express opposition to the filibuster-

ing of judicial nominees, and on July 14, 2004, it issued

a news release criticizing Senator Feingold’s record on

that issue. /bid. On July 26, 2004, appellant began us-

ing its corporate treasury funds to finance the airing of

three broadcast advertisements that criticized the fili-

busters and identified Senator Feingold by name. /d. at

5a, 6a, 13a-17a.

5. On July 28, 2004, appellant filed suit against the

FEC in federal district court, alleging that BCRA’s pro-

hibition on the use of corporate treasury funds for “elec-

tioneering communications” as defined in the Act is un-

constitutional as applied to appellant’s advertising dis-

bursements. J.S. App. 6a. Appellant sought a prelimi-

nary injunction barring enforcement of the statute in

these circumstances. /bid. Appellant “anticipate[d] that

its ongoing advertisements [would] be considered elec-

tioneering communications for purposes of federal statu-

tory and regulatory definitions * * * during the period

between August 15, 2004 and November 2, 2004.” /d. at

5a. Pursuant to BCRA § 403(a)(1), 116 Stat. 114, a

three-judge district court was convened to entertain the

action.

The three-judge district court unanimously denied

appellant’s request for a preliminary injunction. J.S.

App. 4a-12a. In addressing appellant’s likelihood of suc-

cess on the merits, the district court explained that “the

reasoning of the McConnell Court leaves no room for

the kind of ‘as applied’ challenge [appellant] propounds

before us.” Jd. at 7a. The district court observed that

this Court in McConnell had expressly declined to ad-

dress the “backup definition” of “electioneering commu-

nication” set forth in 2 U.S.C. 434(f)(3)(A)(ii) (Supp. II

2002) because the Court had upheld “all applications

of the primary definition.” J.S. App. 7a (quoting

McConnell, 540 U.S. at 190 n.73). The district court also

noted that, in contrast to McConnell’s discussion of

BCRA § 203, this Court had explicitly acknowledged

that other challenged parts of BCRA might be subject

to future as-applied challenges. /d. at 7a-8a.

The district court further explained that its “reading

of McConnell that as-applied challenges to [2 U.S.C.]

§ 441b are foreclosed is but one reason [the court]

flou}nd little likelihood of success on the merits.” J.S.

App. 8a. In addition, the court found that the specific

facts of this case “suggest that |[appellant’s] advertise-

ments may fit the very type of activity McConnell found

Congress had a compelling interest in regulating.” /bid.

The district court explained:

In McConnell, the Court voiced the suspicion of cor-

porate funding of broadcast advertisements just be-

fore an election blackout season because such broad-

cast advertisements “will often convey [a] message of

support or opposition” regarding candidates. Here,

[appellant] and [appellant’s} PAC used other print

and electronic media to publicize its filibuster mes-

sage—a campaign issue—during the months prior to

the electioneering blackout period, and only as the

blackout period approached cid [appellant] switch to

broadcast media. This followed the PAC endorsing

opponents seeking to unseat a candidate whom |[ap-

pellant] names in its broadcast advertisements, and

the PAC announcing as a priority “sending Feingold

packing.”

‘Id. at 8a-9a (citations omitted).

The district court subsequently dismissed appellant’s

complaint in an unpublished memorandum opinion and

order. J.S. App. la-3a. The court held, “for the reasons

set forth in [the preliminary-injunction] opinion,” that

appellant’s as-applied challenge was “foreclosed by

[this] Court’s decision in McConnell.” Id. at 2a-3a.

SUMMARY OF ARGUMENT

A. Just two Terms ago in an extraordinary sitting,

this Court considered and rejected a facial challenge to

BCRA’s restrictions on the corporate financing of “elec-

tioneering communications” as defined in the Act.

McConnell v. FEC, 540 U.S. 93 (2003). The Court’s deci-

sion in McConnell effectively forecloses appellant’s as-

applied constitutional challenge to those restrictions.

The Court recognized that the term “electioneering com-

munication,” as defined in BCRA § 201(a), would encom-

pass some advertisements that were not intended to

influence federal elections. Indeed, much of the dispute

among the parties concerning the restrictions centered

on the degree of prophylaxis in BCRA’s primary defini-

tion and on whether any prophylaxis was permissible

under the First Amendment.

The Court in McConnell nevertheless sustained

BCRA’s bright-line approach and held that the chal-

lenged BCRA provisions were valid in all their applica-

tions, explaining that constitutionally sufficient alterna-

tives remain available to advertisers who do not intend

to affect voting behavior. The Court’s analysis therefore

precludes the type of as-applied challenges that other-

wise might be brought following an unsuccessful facial

challenge to a statute. Principles of stare decisis

strongly counsel in favor of strict adherence to the

Court’s decision in McConnell.

B. Acceptance of appellant’s own as-applied consti-

tutional challenge not only would be inconsistent with

the Court’s decision in McConnell, but would be espe-

cially disruptive of the statutory scheme upheld in that

case. The statutory definition of “electioneering commu-

nication” is intended to provide a clear bright-line rule

that correlates closely, though admittedly not precisely,

with intent to influence federal elections. The bright-

line nature of the rule—both its practical advantages

and its alleged constitutional deficiencies—was a focal

point of the constitutional challenge in McConnell.

In its as-applied challenge, by contrast, appellant has

made no effort to articulate an objective and determi-

nate standard for identifying those advertisers or adver-

tisements as to which the BCRA financing restrictions

are unconstitutional. Indeed, in its jurisdictional state-

ment appellant proposed a 16-factor test. In contrast to

the objective and clearly-defined constitutional exemp-

tion adopted by this Court in FEC v. Massachusetts Cit-

izens for Life, Inc., 479 U.S. 238 (1986), appellant’s ad

hoc approach would require the sort of formless and

unpredictable inquiry into a corporate advertiser’s sub-

jective purpose that Congress and this Court have

sought to avoid. In addition, it would invite fact-inten-

sive litigation and would require federal courts to parse

the content of political advertisements and assess the

likely intent of political advertisers in preliminary-in-

junction or temporary-restraining-order hearings con-

ducted on the eve of federal elections.

C. There is no merit to appellant’s claim that “grass-

roots lobbying”—by which appellant appears to mean

efforts to persuade members of the public to contact

elected officials regarding particular policy issues—is

constitutionally exempt from BCRA’s restrictions on

corporate financing of “electioneering communications.”

A particular advertisement may be intended to induce

citizens both to contact their elected representatives and

to vote in a particular manner. Indeed, as Congress

found, a group that feels strongly enough about an issue

to air an advertisement on it in the months before an

election—particularly a group, such as appellant, that

has publicly opposed a candidate mentioned in its adver-

tisements, see pp. 11-12, supra—will invariably have a

view as to which candidates may be more favorably dis-

posed to the group’s view of the issue. Congress’s au-

thority to superintend federal elections includes the

power to regulate corporate financing of such dual-pur-

pose communications. Even if the Court were to con-

clude that Congress lacks a substantial independent

interest in regulating corporate issue advocacy or

“grassroots lobbying” as such, the incidental impact on

such communications of measures reasonably designed

to safeguard the electoral process neither renders the

challenged BCRA provisions unconstitutional nor opens

them to attack on an ad hoc, as-applied basis.

D. In light of Congress’s requirement that corporate

“electioneering communications” be financed through a

PAC, appellant has no constitutional right to pay for the

advertisements at issue here from a “segregated bank

account” instead. Although appellant has expressed

some willingness to finance its “grassroots lobbying”

with funds donated solely by individuals, a corporate

PAC is subject to significant fundraising restrictions

and disclosure obligations that would not apply under

appellant’s “segregated bank account” proposal. Con-

gress considered and rejected the financing alternative

that appellant suggests, and the Court in McConnell

sustained the application of the relevant BCRA provi-

sions to nonprofit corporations, like appellant, that do

not fall within the MCFL exemption. And because appel-

lant’s “segregated bank account” proposal turns both on

the content of the relevant communications and on the

perceived relative importance of various BCRA provi-

sions, it is likely incapable of workable administration.

ARGUMENT

THE DISTRICT COURT CORRECTLY REJECTED APPEL-

LANT’S AS-APPLIED CONSTITUTIONAL CHALLENGE TO

BCRA’S RESTRICTIONS ON THE CORPORATE FINANCING

OF “ELECTIONEERING COMMUNICATIONS”

Just two Terms ago, this Court rejected a facial con-

stitutional challenge to BCRA § 203’s ban on the use of

corporate treasury funds to finance “electioneering com-

munications.” McConnell v. FEC, 540 U.S. 93, 203-209

(2003). In doing so, the Court specifically held that

BCRA § 201(a)’s primary definition of that term—

which, the Court recognized, contained a degree of

prophylaxis—is constitutional in “all applications.” /d.

at 190 n.73. Appellant now contends (Br. i) that BCRA

§ 203 is unconstitutional as applied to the advertise-

ments aired by appellant in July 2004, and to “grass-

roots lobbying communications generally.” As the dis-

trict court correctly held, appellant’s as-applied chal-

lenge is squarely foreclosed by McConnell, and princi-

ples of stare decisis counsel strongly against deviating

from McConnell here. In any event, appellant offers no

sound basis for doubting that its own communications

were intended at least in part to influence electoral out-

comes, nor does it articulate a workable standard for

identifying those “electioneering communications” as to

which a constitutional exemption should apply. The

judgment of the district court therefore should be af-

firmed.

A. Appellant’s As-Applied Constitutional Challenge Is Fore-

closed By This Court’s Decision In McConnell

The Court need go no further than McConnell to

dispose of this case. As the district court explained in

denying appellant’s request for preliminary injunctive

relief, although McConnell involved a facial challenge,

the “reasoning of the McConnell Court leaves no room

for the kind of ‘as applied’ challenge [appellant] pro-

pounds” here. J.S. App. 7a. The record in McConnell

contained numerous advertisements that fell within

BCRA’s definition of “electioneering communication,”

but that the plaintiffs characterized as “pure issue ad-

vertisements.” McConnell v. FEC, 251 F. Sup. 2d 176,

574 (D.D.C. 2003) (Kollar-Kotelly, J.); sec id. at 574-579.

This Court in McConnell was thus directly confronted

with the contention that BCRA § 203 is unconstitutional

because of its potential to burden communicative activity

that qualifies as an “electioneering communication” un-

der BCRA but is not intended to influence federal! elec-

tions. Indeed, the fact that the statute could apply to

such advertisements was the focus of the plaintiffs’ con-

stitutional challenge to BCRA § 203 in McConnell.

While acknowledging that BCRA § 201(a)’s primary

definition of “electioneering communication” might en-

compass some such advertisements, the Court squarely

held that the definition is constitutional in all its applica-

tions. In reaching that conclusion—which was necessary

to the Court’s rejection of the plaintiffs’ challenge to

BCRA § 203 and to its decision not to address the consti-

tutionality of the backup definition—the Court recog-

nized that BCRA §§ 201(a) and 203 impose only a mod-

est burden on speakers who wish to discuss issues of

public concern but do not intend to influence federal

elections, and that the establishment of an objective

bright-line rule was essential to the achievement of Con-

gress’s objectives. As a result, although the rejection of

a facial challenge to the constitutionality of a statute

typically will have no impact on a plaintiffs ability to

bring a subsequent as-applied challenge, in this case the

prophylactic nature of the provision at issue, the pointed

constitutional challenge to such prophylaxis, and the

reasoning of the Court in McConnell in rejecting that

challenge necessarily preclude subsequent as-applied

attacks.

1. The parties in McConnell recognized that

BCRA’s primary definition of “electioneering communi-

cation” encompasses at least some advertisements that

are not intended to influence federal elections, while

disagreeing about the constitutional significance of that

fact. The plaintiffs contended that such advertisements

comprise a sufficiently large percentage of the total

communications covered by BCRA § 203 as to render

the provision unconstitutional on its face. See, e.g., Br.

for Senator Mitch McConnell, et al. at 49-57, McConnell

v. FEC, supra (Nos. 02-1674, et al.). The statute’s de-

fenders, by contrast, argued that the plaintiffs’ over-

breadth challenge should be rejected because “BCRA’s

primary definition of ‘electione2zring communications’ is

narrowly tailored to advance several different compel-

ling government interests,” Br. for FEC, et al. at 105,

McConnell v. FEC, supra (Nos. 02-1674, et al.), and be-

cause the “electioneering communication” provisions

impose only minimal burdens on the corporate and union

advertisers to which those provisions apply, id. at 106.

This Court’s categorical rejection of the plaintiffs’

overbreadth challenge, unaccompanied by any sugges-

tion that the acknowledged prophylactic scope of

BCRA’s “electioneering communication” provisions

could furnish the basis for a subsequent as-applied con-

stitutional attack, effectively forecloses appellant’s cur-

rent claim that its advertisements are immune from fed-

eral regulation because they purportedly fall outside

the heartland of Congress’s concern. That is particu-

larly true given that Congress quite intentionally

adopted a bright-line, prophylactic rule for identifying

“electioneering communications” by establishing statu-

tory criteria that indisputably cover the advertisements

at issue in this case. This Court approved that bright-

line approach over the objection of dissenting Justices

that such prophylactic rules were incompatible with the

First Amendment. See McConnell, 540 U.S. at 281-282

(Thomas, J., dissenting); id. at 334 (Kennedy, J., dis-

senting).”

* The government's brief in McConnell argued that, “[t]o the extent

that the definition [of ‘electioneering communication’) is not perfectly

tailored, the marginal applications that form the basis of plaintiffs’

challenge arguably could be addressed on an as-applied basis.” Br. for

FEC, et al. at 105-106, McConnell v. FEC, supra (Nos. 02-1674, et al.).

The principal thrust of the government’s defense of the “electioneering

communication” provisions, however, was that BCRA’s primary

definition of that term is valid because of the importance of the

government interests served by those provisions and the minimal

nature of the burdens they impose. See generally id. at 103-112. The

Court in McConnell agreed with the latter contention and did not

identify future as-applied challenges as a possible means of addressing

the acknowledged (and unavoidable) imprecision in the statutory

definition. Accordingly, the statement in the government's brief

Indeed, far from suggesting that BCRA § 203’s re-

strictions on the funding of “electioneering communica-

tions” would be subject to future as-applied First

Amendment challenges, the Court in McConnell made

clear that those restrictions are constitutional in “all

applications.” 540 U.S. at 190 n.73 (emphasis added).

After noting that BCRA contairs both a primary and a

“backup” definition of the term “electioneering commu-

nication” (see p. 7-9, supra), the Court stated that, be-

cause it had upheld “all applications of the primary defi-

nition” against the plaintiffs’ constitutional challenge,

the Court had “no occasion to discuss the backup defini-

tion.” 540 U.S. at 190 n.73. The Court’s declination was

particularly significant because the district court deci-

sion under review had rejected the primary definition

and had addressed and upheld the backup definition.

See McConnell v. FEC, 251 F. Supp. 2d 176, 184-185

(D.D.C. 2003) (per curiam). In this Court, moreover, the

principal dissent on Title II of BCRA disagreed with the

Court’s decision to uphold the primary definition and

therefore addressed the constitutionality of the backup

definition. See McConnell, 540 U.S. at 337-338 (Ken-

nedy, J., dissenting).*

provides no basis for limiting the scope of the Court's holding in

McConnell.

* The fact that Congress included < more fact-dependent backup

definition of “electioneering commurication” indicates Congress's

awareness that the prophylactic nature of its primary definition could

subject BCRA §§ 201(a) and 203 to a constitutional overbreadth

challenge. Inclusion of the backup definition further suggests a con-

gressional expectation that the primary definition would be either

sustained or invalidated in toto. In light of the McConnell Court’s

rejection of the plaintiffs’ overbreadth challenge to the primary defini-

tion, and to BCRA’s attendant restrictions on corporate financing of

“electioneering communications,” it would subvert both Congress's

- Later in its opinion, the Court summarized its hold-

ing with respect to BCRA § 203. The Court specifically

described its analysis of that provision as “upholding

stringent restrictions on all election-time advertising

that refers to a candidate because such advertising will

often convey [a] message of support or opposition.”

McConnell, 540 U.S. at 239. Accordingly, the Court’s

decision in McConnell effectively forecloses the type of

follow-on, as-applied constitutional attack on the statute

attempted by appellant here.”

2. To be sure, in a typical case, a determination that

a statute is facially valid will simply mean that the stat-

ute is capable of constitutional application and will not

compel the conclusion that the law is constitutional in all

its applications. Cf. United States v. Salerno, 481 U.S.

739, 745 (1987). A judicial decision rejecting a facial

challenge to a statute therefore will not ordinarily fore-

close subsequent as-applied attacks. In this case, how-

ever, appellant’s as-applied constitutional challenge to

BCRA § 203 is inconsistent both with the prophylactic

nature of the BCRA provisions at issue and with this

Court’s rationale for rejecting the McConnell plaintiffs’

facial challenge.°

intent and this Court’s decision to permit appellant’s current as-applied

challenge to go forward.

” Appellant suggests (Br. 15) that the Court in McConnell held

BCRA's restrictions on corporate financing of electioneering communi-

cations to be unconstitutional as applied to MCFL organizations. That

is incorrect. Rather, “to avoid constitutional concerns,” the Court inter-

preted those restrictions to be inapplicable to MCF'L organizations, and

it sustained the validity of BCRA § 204 (116 Stat. 92) as so construed.

See 540 U.S. at 211.

* In other contexts as well, the doctrinal test the Court employs in

resolving a facial challenge may have the effect of foreclosing sub-

In arguing that this Court’s opinion in McConnell

should not be construed to foreclose as-applied chal-

lenges to BCRA § 203’s restrictions on the financing of

“electioneering communications,” appellant observes

(Br. 15) that “no court can foresee all possible future

fact situations that might arise and require the consid-

ered constitutional analysis of the federal courts.” This

Court in McConnell recognized, however, that BCRA’s

definition of “electioneering communication” could en-

compass some advertisements that were not actually

intended to influence electoral outcomes. As noted

. above, that fact was the subject of briefing by the par-

ties and formed the basis for the plaintiffs’ overbreadth

challenge. See pp. 10-11, supra; see, e.g., Br. for Na-

tional Right to Life Committee, Inc., at 15-35 (No. 02-

1733). In holding that the prospect of such applications

did not render the statute unccnstitutionally overbroad,

the Court explained:

The precise percentage of issue ads that clearly iden-

tified a candidate and were aired during those rela-

tively brief [7.e., 30- and 60-day] preelection

timespans but had no electioneering purpose is a

matter of dispute between the parties and among the

judges on the District Court. Nevertheless, the vast

sequent as-applied attacks. For example, this Court’s determination

that a federal statute enacted pursuant to Section 5 of the Fourteenth

Amendment is “congruent and proportional” to the constitutional

violations sought to be remedied, see, ¢.g., Nevada Dep't of Human

Res. v. Hibbs, 588 U.S. 721, 727-728, 737-740 (2003), should be —

understood to foreclose a subsequent contention that the law is un-

constitutional as applied to a particular defendant whose conduct falls

within the statute’s prophylactic scope—at least if the as-applied

challenge is premised on the fact that the conduct falls within the

prophylaxis.

majority of ads clearly had such a purpose. More-

over, whatever the precise percentage may have been

in the past, in the future corporations and unions

may finance genuine issue ads during those

timeframes by simply avoiding any specific refer-

ence to federal candidates, or in doubtful cases by

paying for the ad from a segregated fund.

540 U.S. at 206 (emphasis added; citations omitted).

The Court in McConnell thus recognized that at least

some advertisements falling within BCRA § 201(a)’s

definition of “electioneering communication” are not

actually intended to influence federal elections. Far

from suggesting that BCRA’s financing restrictions

would be subject to constitutional challenge as applied

to such advertisements, however, the Court stated that

corporations and unions could comply with the law by

(1) “simply avoiding any specific reference to federal

candidates” or (2) “paying for the ad from a segregated

fund.” 540 U.S. at 206. The Court’s description of the

legal alternatives open to future corporate advertisers

whose communications might fall within BCRA §

201(a)’s carefully crafted definition of “electioneering

communication” is wholly inconsistent with appellant’s

contention that, so long as an advertiser does not intend

to influence federal elections, it is constitutionally enti-

tled to use general treasury funds to finance advertise-

ments encompassed by BCRA’s definition of “election-

eering communication.” It is also wholly improbable

that the Court in McConnell would have gone to such

lengths to explain the alternatives available to corpora-

tions and unions and why BCRA § 201(a) is constitu-

tional in “all applications” if it intended to leave the door

open to as-applied constitutional challenges by any cor-

porate or union advertiser willing to argue that it did not

intend an advertisement falling within the definition of

“electioneering communication” to influence a federal

election. '

In this regard, the McConnell Court’s rejection of

the constitutional attack on the prophylactic nature of

BCRA’s treatment of “electioneering communications,”

and the effect of that rejection on subsequent as-applied

challenges, are no different from previous campaign-

finance precedents. In upholding contribution limits,

the Court has recognized that many who would contrib-

ute above the limit do so without any intent to distort

the system, but the Court has nonetheless upheld such

limits without opening the door to subsequent as-applied

attacks by large-dollar donors with pure motives. See

p. 30, infra. Likewise, in Austin v. Michigan Chamber

of Commerce, 494 U.S. 652 (1990), when the Court re-

jected the contention that a corporate expenditure ban

was overbroad because the ban encompassed closed cor-

porations without great wealth, see id. at 661, the Court

effective!y foreclosed any subsequent claim that the

statute was unconstitutional as applied to a closed corpo-

ration.

7 In contrast to its discussion of the definition of “electioneering

communication,” the Court explicitly referred to the availability of as-

applied challenges in at least three distinct contexts in upholding

portions of Title I of BCRA against facial attack, in at least one context

in upholdirg part of BCRA Title V, and once regarding the disclosure

requirements of Title II]. See 540 U.S. at 157 n.52, 159, 178, 199, 244.

Similarly in Buckley v. Valeo, 424 U.S. 1 (1976), the Court provided

specific guidance as to what evidence would be required in later as-

applied challenges by minor parties claiming exemption from the

FECA's disclosure requirements, see id. at 70-71—guidance that the

Court later followed in Brown v. Socialist Workers '74 Campaign

Committee, 459 U.S. 87, 92-102 (1982).

B. Acceptance Of Appellant’s As-Applied Challenge To

BCRA’s “Electioneering Communications” Provisions

Would Substantially Undermine Congress’s Effort To

Develop An Objective Bright-Line Rule For Identifying

The Election-Related Advertisements That May Not Be

Financed With Corporate And Union Treasury Funds

As explained above, this Court’s analysis in

McConnell forecloses as-applied constitutional chal-

lenges to BCRA’s “electioneering communications” pro-

visions, at least where, as here, the gravamen of the

claim is that specific advertisements indisputably en-

compassed by the statutory definition and with some

effect on a federal election nonetheless are not actually

intended to influence federal elections. Accepting a sin-

gle as-applied challenge of that type would significantly

erode if not defeat the primary definition adopted by

Congress by permitting any political advertiser to argue

that an advertisement that meets the statutory criteria

for an “electioneering communication” nonetheless can-

not be regulated as such because it was not actually in-

tended to influence a federal election.

Acceptance of appellant’s own constitutional chal-

lenge, moreover, would be especially disruptive of the

statutory scheme upheld in McConnell. Appellant has

made no effort to identify, through objective and deter-

minate criteria, a clearly-defined class of advertisers (cf.

FEC v. Massachusetts Citizens for Life, 479 U.S. 238

(1986); pp. 31-33, infra) or advertisements as to which

the BCRA restrictions are alleged to be unconstitu-

tional. Rather, appellant appears to contemplate that

the resolution of each as-applied challenge will turn on

an amorphous, case-specific inquiry into the actual in-

tent of a particular speaker. That approach would sub-

vert Congress’s effort to devise clear and workable stan-

dards for distinguishing political speech for which corpo-

rate and union treasury funds may be used from elec-

tioneering advertisements that must be financed

through a PAC, and it would invite fact-intensive litiga-

tion that would enmesh courts in political debates on the

eve of federal elections.

1. This Court in Buckley introduced the “express

advocacy” test in order to ensure that earlier FECA

provisions—including a provision that limited disburse-

ments “for the purpose of . . . influencing” a federal

election—were not intolerably vague. See Buckley v.

Valeo, 424 U.S. 1, 43-44, 77-80 (1976); McConnell, 540

U.S. at 190-192. Based on subsequent experience under

the campaign-finance laws, however, Congress con-

cluded, and the evidentiary record in McConnell amply

demonstrated, that the “express advocacy” test did not

adequately identify electioneering activity during the

crucial pre-election periods. See id. at 127 & n.18, 198

n.77; pp. 6-7, supra.

After extensive investigation and debate, see, e.g.,

McConnell, 540 U.S. at 129-132, “Congress enacted

BCRA to correct the flaws it found in the existing sys-

tem,” id. at 194. The criteria specified in BCRA

§ 201(a)’s definition of “electioneering communication”

correlate closely, though not precisely, with intent to

influence federal elections. See id. at 206 (Court finds

that the “vast majority” of prior advertisements encom-

passed by the definition “clearly” had an “electioneering

purpose”). Congress took particular care, moreover, to

provide clear warning to regulated parties by crafting a

legal standard that

raises none of the vagueness concerns that drove

[the Court’s] analysis in Buckley. The term “elec-

tioneering communication” applies only (1) to a

broadcast (2) clearly identifying a candidate for fed-

eral office, (3) aired within a specific time period,

and (4) targeted to an identified audience of at least

50,000 viewers or listeners. These components are

both easily understood and objectively determinable.

Id. at 194.

Congress thus sought to prevent the wholesale eva-

sion of restrictions on corporate and union campaign

spending duriug the pre-election period that had existed

under the pre-BCRA legal regime, while providing clear

notice to corporate and union speakers of the legal re-

strictions that govern their communications. The defini-

tion of “electioneering communication,” moreover, de-

termines not what corporations may say, but whether

particular advertisements may be financed with general

treasury funds or must instead be financed through a

PAC. And, on that issue, clear notice is particularly im-

portant.

2. Appellant’s approach would reintroduce the inde-

terminacy that Congress and this Court have specifically

sought to dispel in this important context. See, e.g.,

Buckley, 424 U.S. at 43 (intent-based standard for iden-

tifying electioneering activity “offers no security for free

discussion,” “blankets with uncertainty whatever may be

said,” and “compels the speaker to hedge and trim”)

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

In its jurisdictional statement, appellant identified no

less than 16 separate factors that purportedly “indi-

cate|d] that [its] broadcast ads are authentic grass-roots

lobbying and not electioneering.” J.S. 5; see J.S. 5-6.

Appellant’s brief on the merits neither disavows those

factors nor articulates any determinate legal test for

resolving appellant’s as-applied constitutional challenge.

Instead, appellant points to (Br. 4 n.4 (italics omitted))

four “details” of the pertinent advertisements (pertain-

ing to the “topic,” “timing,” “candidate reference,” and

“tone” of the advertisements) that purportedly reveal

appellant’s intent to engage in “authentic grassroots

lobbying and not electioneering.””

Appellant does not make clear whether it views all of

the factors it identifies as necessary to establish entitle-

ment to a constitutional exemption, whether a smaller

subset of those factors would suffice, or when resort to

the additional factors identified in its jurisdictional

statement would be appropriate. Nor does appellant

identify any principled reason that another litigant

would be precluded from relying on additional factors

suggesting that a particular advertisement was not in-

tended to influence federal elections or would not have

that effect. If appellant’s approach were adopted, the

permissibility of corporate and union disbursements

would turn on the same sort of unstructured inquiry that

the Court in Buckley found constitutionally problematic,

and that Congress in enacting BCRA carefully sought to

avoid.

* In other contexts, this Court has recognized the drawbacks of the

type of indeterminate inquiry proposed by appellant here, including the

potential for such a multi-factor, fact-dependent test to precipitate

excessive litigation. See, e.g., Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 547 (1995) (“[T lhe proposed four- or

seven-factor test would be hard to apply, jettisoning relative predict-

ability for the open-ended rough-and-tumble of factors, inviting com-

plex argument in a trial court and a virtually inevitable appeal.”).

* Some of appellant’s amici offer their own definitions of “grass-

roots lobbying” and suggest that the approach outlined in appel!ant’s

jurisdictional statement would provide insufficient protection for cor-

porate and union political advertising. See Br. of Chamber of Com-

merce 19, 20 n.12 (arguing that “most of [appellant’s proposed] factors

In addressing constitutional challenges to other

FECA provisions, this Court has recognized the value of

bright-line rules in preventing evasion of the statute’s

anti-corruption purposes and in furnishing clear guid-

ance to regulated entities. In Buckley, for example, the

Court “assumed” that “most large contributors do not

seek improper influence over a candidate’s position or

an officeholder’s action.” 424 U.S. at 29. The Court

held, however, that the difficulty of isolating suspect

contributions and Congress’s interest in guarding

against the inherent appearance of abuse justified uni-

form application of the $1000 individual contribution

limit. /d. at 29-30. The Court’s analysis clearly fore-

closed future as-applied challenges to the contribution

limits brought by well-intentioned donors who might

seek to prove that their own contributions, though in

excess of the statutory caps, would be made without any

intent to receive special influence in return.'* Where, as

simply are not necessary” and suggesting instead an exemption for

advertisements that address an “active legislative issue” and refer to

candidates “only in their capacity” as incumbents with “responsibility”

for the issue); Br. of McConnell 9 (“[g|rass-roots lobbying * * * encom-

passes any communication devoted exclusively to urging support or

opposition for pending legislative or executive matters”); Br. of AF L-

CIO 19, 22 (asserting that the “presence or absence of most” of the “16

features” in appeliant’s jurisdictional statement “should not be pre-

requisites to status as a ‘genuine issue ad,’” and proposing a standard

under which a broadcast must, inter alia, have a “substantial legislative

or other non-electoral purpose”); Br. of Alliance for Justice 27 (arguing

that appellant's “test” is “too narrow” and insisting that “referencing

a targeted candidate’s position on the issue in question is often

necessary to the effectiveness of lobbying communications”).

' Cf. Goland v. United States, 903 F.2d 1247, 1258-1259 (9th Cir.

1990) (contributions are subject to FECA limits even if a contributor

keeps his identity a secret by using straw donors, thereby allegedly

precluding the opportunity to exert undue influence).

here, recognition of a particular class of as-applied chal-

lenges to a bright-line rule would undermine Congress’s

substantial interest in clarity and predictability, there is

nothing anomalous or unprecedented about foreclosing

such challenges."

3. The Court’s decision in MCFL, supra, which ex-

empted certain organizations from the FECA ban on

corporate electioneering (see p. 4, swpra), furnishes an

"In upholding other restrictions on communicative activity against

First Amendment challenges, the Court has similarly stressed the value

of clear bright-line rules. In Florida Bar v. Went For It, Inc.,515 U.S.

618 (1995), for example, the Court upheld Florida Bar rules prohibiting

lawyers from sending targeted direct-mail solicitations to victims and

their relatives for 30 days following an accident or disaster. /d. at 620.

The Court did not question the claims of those challenging the rules

that the injuries or grief of some victims are “relatively minor,” but

stressed instead that making case-specific judgments would entail

“drawing difficult lines” as to the severity of different kinds of “grief,

anger, or emotion.” /d. at 633. The Court concluded that the Florida

Bar’s bright-line, 30-day rule was “reasonably well tailored to its stated

objective of eliminating targeted mailings” that had caused many

Floridians “to lose respect for the legal profession.” /bid. In Hill v.

Colorado, 530 U.S. 703 (2000), the Court upheld a state law (see id. at

707) that prohibited demonstrators from coming closer than eigh: feet

to unconsenting persons entering health-care facilities. The Court

acknowledged that the law would “sometimes inhibit a demonstrator

whose approach in fact would have proved harmless.” /d. at 729. In

light of the “great difficulty” of determining on an individualized basis

whether particular approaches were “harassing,” however, the Court

concluded that “{a] bright-line prophylactic rule may be the best way to

provide protection, and, at the same time, by offering clear guidance

and avoiding subjectivity, to protect speech itself.” /bid.; see Heffron

v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640,

654 (1981) (“any such exemption [from a rule limiting certain solicitation

activities to specified physical locations] cannot be meaningfully limited

to [the plaintiff}, and as applied to similarly situated groups would

prevent the State from furthering its important concern”).

instructive contrast. The Court in MCFL explained that

the rationale for prohibiting corporate independent ex-

penditures in support of federal candidates “does not

extend uniformly to all corporations,” and that “[s]ome

corporations have features more akin to voluntary politi-

cal associations than business firms, and therefore

should not have to bear burdens on independent spend-

ing solely because of their incorporated status.” /d. at

263. The Court concluded that

MCFL has three features essential to [the Court’s]

holding that it may not constitutionally be bound by

§ 441b’s restriction on independent spending. First,

it was formed for the express purpose of promoting

political ideas, and cannot engage in business activi-

ties. * * * Second, it has no shareholders or other

persons affiliated so as to have a claim on its assets

or earnings. * * * Third, MCFL was not estab-

lished by a business corporation or a labor union, and

it is its policy not to accept contributions from such

entities.

Id. at 263-264.

The Court in MCFL thus identified a discrete and

clearly-defined class of corporations as to which the jus-

tifications for FECA’s restrictions on corporate election-

eering were found not to apply. See McConnell, 540

U.S. at 210 (This Court’s “decision in MCFL related to

a carefully defined category of entities.”). The exemp-

tion recognized in MCFL turns on an objective and

readily administrable assessment of the organization’s

structure and overall activities, and can be understood

as a means of identifying a subset of corporations for

which a separate segregated fund for campaign-related

expenditures would entail unnecessary burdens. Nei-

ther MCFL nor any subsequent decision of this Court,

however, suggests that a corporation lacking the “three

features essential to” the holding in that case (479 U.S.

at 263) is entitled to bring an as-applied challenge seek-

ing an individualized judicial determination whether, in

light of the corporation’s unique combination of attrib-

utes, its use of general treasury funds to finance

campaign-related speech would actually create the dan-

gers that the FECA/BCRA restrictions are intended to

prevent.”

In two distinct respects, appellant’s proposed mode

of as-applied constitutional analysis would thus create

difficulties of administration far greater than those en-

tailed by the existing constitutional exemption for

MCFL organizations. First, because appellant’s as-ap-

plied challenge rests on the content of specific advertise-

ments, rather than on the organization’s structure and

activities taken as a whole, acceptance of appellant’s

2 Before this Court’s decision in McConnell, some courts of appeals

had concluded that even a nonprofit corporation that did not satisfy the

MCFL criteria could seek a constitutional exemption from the FECA

financing restrictions by arguing that, because it purportedly received

only minimal donations from business corporations, its election-related

disbursements of general treasury funds would not entail the dangers

generally associated with corporate electoral advocacy. See FEC v.

NRA, 254 F.3d 173, 191-193 (D.C. Cir. 2001); North Carolina Right to

Life, Inc. v. Bartlett, 168 F 3d 705, 714 (4th Cir. 1999), cert. denied, 528

U.S. 1153 (2000); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 292

(2d Cir. 1995); Day v. Holahan, 34 F.3d 1356, 1365 (8th Cir. 1994), cert.

denied, 513 U.S. 1127 (1995). That understanding of MCF L, however,

appears to have been effectively repudiated in McConnell. The Court

in McConnell confirmed that its “decision in MCFL related to a care-

fully defined category of entities,” 540 U.S. at 210, and it held without

qualification that nonprofit corporations other than MCF organiza-

tions could constitutionally be barred from using general treasury funds

to finance “electioneering communications,” see id. at 209-211.

approach would focus on the particular speech at issue,

rather than on the entity in general, and thus every ad-

vertisement would provide a new opportunity for litiga-

tion. Indeed, even the same advertisements might pro-

vide the basis for new litigation in the case of a different

speaker who alleged that he did not intend for the adver-

tisements to influence an election.

Second, because appellant has made no effort to ar-

ticulate an objective and determinate standard for iden- -

tifying those corporate broadcast advertisements to

which the BCRA financing restrictions cannot constitu-

tionally be applied, the resolution of each such challenge

would involve a complex and fact-bound inquiry rather

than the application of a clear categorical rule. Accep-

tance of appellant’s proposed constitutional methodology

would thus multiply litigation over federal campaign-

finance regulation, substantially complicate the adminis-

tration of federal restrictions on corporate and union

electioneering by blurring the bright lines drawn by

Congress, and markedly subvert Congress’s effort to

avoid “the vagueness concerns that drove [this Court’s]

analysis in Buckley.” McConnell, 540 U.S. at 194.

Moreover, all of this factbound litigation would occur

in the context of preliminary-injunction or temporary-

restraining-order hearings on the eve of elections and

would enmesh the federal courts in political debate,

since BCRA § 201(a)’s definition of “electioneering com-

munication” is limited to advertisements that, inter alia,

are aired in the 30- or 60-day window before a federal

election and identify a federal candidate by name. The

fact that as-applied challenges would likely arise shortly

before federal elections would also require the courts to

attempt to process the suits on an expedited basis, mul-

tiplying the complexity and costs of the litigation for all

involved. And under BCRA § 403(a) and (d), 116 Stat.

113-114, the plaintiff in any such suit would be entitled

to have the action heard by a three-judge district court,

with a right of appeal directly to this Court.

At a minimum, even if some type of as-applied consti-

tutional challenge to BCRA’s primary definition can be

successfully brought in the wake of McConnell, the

‘ Court should require the plaintiff in such a suit to point

to an objective, readily discernible basis for identifying

an allegedly unconstitutional application. Appellant has

demonstrably failed to identify such a basis for invali-

dating BCRA § 203 as applied to the advertisements at

issue here.

C. Even If Appellant Could Demonstrate That The Adver-

tisements At Issue Here Were “Grassroots Lobbying”

Advertisements, Appellant Would Not Be Entitled To A

Constitutional Exemption From BCRA's Ban On The

Use Of Corporate Treasury Funds To Finance “Elec-

tioneering Communications”

The thrust of appellant’s argument in this case is

that Congress lacks constitutional authority to forbid

the use of corporate treasury funds to broadcast “grass-

roots lobbying” advertisements. Although appe_lant

does not unequivocally endorse any particular definition

of the term “grassroots lobbying,” appellant appears

(see, e.g., Br. 21) to use the term to refer to efforts to

influence government policy indirectly by urging other

members of the public to contact their elected represen-

tatives regarding particular policy issues.» Appellant’s

constitutional claim is misconceived.

1. Appellant’s contention (Br. 4 n.4) that the adver-

tisements at issue here “were authentic grassroots lob-

bying and not electioneering” assumes a clean divide

between lobbying and electioneering communications

that simply does not exist in the real world. In the first

place, it is not clear that appellant’s effort to distinguish

“grassroots lobbying” from electioneering is materially

different from the distinction between issue advocacy

and political advocacy rejected by Congress in BCRA

and by this Court (both the majority and the dissenters)

in McConnell. See, e.g., McConnell, 540 U.S. at 126 n.16

(“What separates issue advocacy and political advocacy

is a line in the sand drawn on a windy day.”) (quoting

district court opinions, in turn quoting National Rifle

Association official); id. at 327 (Kennedy, J., dissenting).

In the district court proceedings in McConnell,

Judge Leon cast the deciding vote with respect to BCRA

§ 201(a), voting to strike down the primary definition of

“electioneering communication,” see McConnell v. FEC,

251 F. Supp. 2d 176, 792-799 (D.D.C. 2003), but to up-

hold the backup definition, see id. at 799-803; see also id.

at 187 (summary of the district court’s holdings in

McConnell with respect to the various challenged BCRA

provisions). Judge Leon concluded that the primary

'S Although petitioner invokes “the inherent right of the people to

participate in self-government and the express First Amendment right

to petition” (Br. 17), BCRA does not restrict the efforts of corporations

or others to contact elected officials directly. The term “electivaeering

communication” is limited to broadcast, cable, or satellite communi-

cations that, inter alia, “can be received by 50,000 or more persons”

within the State or district that the candidate identified in the com-

munication seeks to represent. 2 U.S.C. 434(f)(3)C) (Supp. II 2002).

definition was invalid because of its potential impact on

“genuine issue advertisements in the periods immedi-

ately preceding general and primary elections, the sole

purpose of which is educating the viewers about an up-

coming vote on pending legislation, and e»couraging

them to inform their elected representative to vote for

or against the bill.” /d. at 793. In this Court, various

plaintiffs similarly contended that BCRA’s “electioneer-

ing communications” provisions are unconstitutional

because the primary definition of that term would en-

compass advertisements urging citizens to contact their

elected representatives regarding pending legislative

issues. See, e.g., Br. of AFL-CIO at 19 (No. 02-1755)

(definition encompasses communications that “{clall

upon a Member of Congress to support or oppose immi-

nent legislation, or ask viewers or listeners to urge the

Member to do so”); Br. of Senator Mitchell et al. at 50-52

(No. 02-1674 et al.). Appellant’s current contention that

the challenged BCRA financing restrictions are uncon-

stitutional as applied to “grassroots lobbying” therefore

adds nothing of substance to what was before the Court

in McConnell.

In any event, appellant’s proposed lobby-

ing/electioneering distinction dissolves in practical ap-

plication. As abundant evidence before Congress and

the McConnell Court made clear, advertisements ex-

horting interested citizens to contact their elected rep-

resentatives may also have the purpose of influencing

those citizens’ votes. As Congress recognized, common

sense suggests that an individual or organization that

funds advertisements exhorting citizens to contact their

elected representatives on an issue will generally prefer

that voters cast their ballots for candidates who favor

the advertiser’s view. And in any event, a broadcast

advertisement that is aired shortly before a federal elec-

tion, refers to a clearly identified federal candidate, and

is targeted to the relevant electorate is likely to have a

significant effect on voting behavior. Congress may act

to prevent the use of corporate and union treasury funds

for communications having such electoral impacts, re-

gardless of the subjective intent of the advertiser.

On the eve of a federal election, the most effective

strategy for precipitating a change in government policy

on a particular issue may well be to work to alter the

composition of Congress rather than to lobby existing

legislators to change their minds. When the objective

characteristics of a particular communication indicate

that it is intended at least in significant part to influence

federal elections and is likely to have that effect, even

clear proof of an additional “lobbying” purpose would

' not negate Congress’s power to forbid the use of corpo-

rate and union treasury funds to finance that communi-

cation."

2. In discussing the sorts of pre-BCRA advertise-

ments that were intended to influence federal elections

but avoided words of express advocacy, the Court in

McConnell observed that “[ljittle difference

existed * * * between an ad that urged viewers to

4 As appellant explains (Br. 10-11, 24 n.19), some of BCRA’s

sponsors proposed, but the FEC ultimately declined to adopt, a

regulatory exemption for certain communications urging members of

the public to contact their elected representatives. The fact that the

sponsors urged adoption of such an exemption, however, does not mean

that it is constitutionally required, much less that the sponsors intended

to open BCRA to as-applied challenges of the type at issue here. In any

event, because the proposed regulatory exemption would have

specifically excluded any communication that identified a federal

candidate by name (see Appellant’s Br. 24-25 n.19), it would not have

encompassed the advertisements involved in this case.

‘vote against Jane Doe’ and one that condemned Jane

Doe’s record on a particular issue before exhorting view-

ers to ‘call Jane Doe and tell her what you think.’” 540

U.S. at 126-127. The Court thus treated an appeal to

citizens to contact an identified elected representative,

when targeted to the relevant electorate and issued dur-

ing the 30- and 60-day periods preceding federal pri-

mary and general elections, as a paradigmatic example

of the advertisements that BCRA’s “electioneering com-

munication” provisions were intended to address. The

record before the district court in McConnell likewise

reflected the understanding of current and former Mem-

bers of Congress that such advertisements were rou-

tinely used to influence electoral outcomes. See, e.g.,

McConnell v. FEC, 251 F. Supp. 2d 176, 582-533 (D.D.C.

2003) (Kollar-Kotelly, J.).

Appellant takes pains to argue (see, e.g., Br. 4 n.4,

29) that its own lobbying message was not a

“sham”—+1.e., that appellant’s opposition to the filibus-

tering of judicial nominees is sincere. That is beside the

point. A constitutional standard that turned on the sub-

jective sincerity of a speaker’s message would likely be

incapable of workable application; at a minimum, it

would invite costly, fact-dependent litigation. In any

event, appellant’s representations as to the sincerity of

its views, even if taken as true, do not demonstrate the

absence of a significant intent to prevent the re-election

of a Senator who had engaged in the legislative conduct

that appellant sincerely opposed.

Insofar as its advocacy program as a whole was con-

cerned, appellant evidently regarded exhortations to

citizens to lobby Senator Feingold as complementing the

organization’s effort to unseat him at the polls, since

appellant aired the advertisements at issue in this case

after its own PAC had “endorsed three candidates op-

posing Senator Feingold and announced that the defeat

of Senator Feingold was a priority.” J.S. App. 5a. Just

as appellant’s overall advocacy program was designed to

accomplish dual objectives, individual advertisements

could be intended both to encourage citizens to contact

Senator Feingold directly and to induce voters to cast

their ballots for his opponent. Thus, when the objective

characteristics of particular broadcast advertisements

(i.e., their reference to a clearly-identified candidate,

targeting to the relevant electorate, and airing during a

30- or 60-day pre-election period) indicate an intent to

influence a federal election, even strong evidence of a

sincere lobbying purpose would not rebut that inference.

And even if appellant could somehow demonstrate that

its sole subjective motivation for airing a particular ad-

vertisement was to induce citizens to lobby their repre-

sentatives, the prospect that the advertisement will nev-

ertheless have a significant electoral effect is an appro-

priate subject of congressional concern. See p. 37-38,

supra.

3. Appellant offers no basis for questioning Con-

gress’s authority to bar the use of corporate and union

treasury funds to finance advertisements that are in-

tended or that have the effect both of influencing elec-

toral outcomes and of inducing citizens to lobby their

elected representatives. Most electoral advertisements

discuss issues of public importance, and “the distinction

between discussion of issues and candidates and advo-

cacy of election or defeat of candidates may often dis-

solve in practical application. Candidates, especially

incumbents, are intimately tied to public issues involving

legislative proposals and governmental actions.”

Buckley, 424 U.S. at 42. This Court’s decisions applying

the “express advocacy” standard, for example, do not

suggest that corporate disbursements for communica-

tions that explicitly urge the election or defeat of candi-

dates can be immunized from federal regulation through

the inclusion of an additional lobbying message.”

4. Lobbying has no higher First Amendment status

than electoral advocacy. The FECA/BCRA restrictions

on the use of corporate funds to influence federal elec-

tions are not premised on any notion that “[a]ldvocacy of

the election or defeat of candidates * * * is * * * less

entitled to protection under the First Amendment taan

the discussion of political policy generally or advocacy of

the passage or defeat of legislation.” McConnell, 540

U.S. at 205 (quoting Buckley, 424 U.S. at 48). Rather,

those provisions reflect Congress’s determination that

corporate “electioneering,” as defined by statute, poses

distinct dangers to the integrity of the electoral process

that other forms of corporate advocacy do not present.

See, e.g., ibid.; First Nat'l Bank v. Bellotti, 435 U.S. 765,

790 (1978). Application of BCRA’s financing restrictions

'° MCFL involved a newsletter whose most explicit exhortation was

to “VOTE PRO-LIFE.” 479 U.S. at 243. That message underscores

the inherent connection between issues and candidate elections where

many voters view candidates as means to an end (viz., the imple-

mentation of preferred government policies on issues the voter cares

about). Nonetheless, because that issue-based message was tied

directly to particular candidates and their positions on the issue of

abortion, the Court found that the newsletter went “beyond issue

discussion to express electoral advocacy” that “falls squarely within

§ 441b,” id. at 249-250. The Court thus confirmed that the presence of

“issue discussion” does not immunize an election-influencing communi-

cation from regulation. Cf. McConnell, 540 U.S. at 123, 166 (FECA

definition of “contribution” properly includes activities that simultan-

eously influence both federal and state elections because the influence

on federal elections is an appropriate subject of congressional concern).

to corporate advertisements that have both electoral and

non-electoral purposes is a necessary and appropriate

means of addressing those dangers. And because com-

munications urging citizens to contact their representa-

tives on matters of public concern have no higher consti-

tutional] status than does pure electioneering, the “com-

pelling” governmental interests that support regulation

of corporate electoral advocacy (see McConnell, 540

U.S. at 205) are sufficient to justify BCRA’s incidental

impact on “grassroots lobbying.” “

5. Appellant contends (Br. 20-29) that the district

court’s rejection of its as-applied challenge to BCRA

§ 203 is inconsistent with this Court’s recognition, in

McConnell and prior decisions, of a constitutional dis-

tinction between regulation of “lobbying” and regulation

of “electioneering.” That argument reflects a misunder-

appellant’s original complaint can now be broadcast in Wisconsin with-

out regard to BCRA § 203 until the next Senate election is imminent,

appellant has provided no evidence that it has run such advertisements

after last November’s elections or that it has specific plans to do so,

even though the issue discussed in the advertisements (Senate fili-

busters of judicial nominees) was a focus of particularly intense public

interest during the spring of 2005 and remains a topic of widespread

public concern. Before this Court, appellant states only that it “intends

to do similar grass-roots lobbying in the future, with a reasonable

likelihood that the need will recur during a prohibition period.” J.S. 7;

see Br. 9n.8. That election-centered pattern of advertising is similar

to the pattern that preceded and prompted Congress’s passage of

BCRA, see McConnell, 540 U.S. at 127 (“{T]he conclusion that [pur-

ported issue] ads were specifically intended to affect election results

was confirmed by the fact that almost all of them aired in the 60 days

immediately preceding a federal election.”), and it reinforces the

inference that appellant’s advertisements were in the heartland of

Congress's concern.

standing of the rationale for Congress’s adoption of an

objective bright-line rule.

The Court in McConnell reaffirmed the proposition,

previously established in such cases as Bellotti, that

“unusually important interests underlie the regulation

of corporations’ campaign-related speech.” 540 U.S. at

206 n.88. Appellant is therefore correct that any federal

interest in regulating corporate issue advocacy as such

is of considerably less magnitude than is the interest in

regulating corporate campaign spending in candidate

elections. But neither Congress’s adoption of a bright-

line rule, nor the district court’s rejection of appellant’s

as-applied constitutional challenge, reflects the view

that regulation of corporate issue advocacy or “grass-

roots lobbying” is subject to reduced constitutional scru-

tiny or is desirable for its own sake. Rather, any restric-

tions that BCRA imposes on the financing of advertise-

ments that in fact have no electioneering purpose are

simply the incidental byproduct of Congress’s needa to

employ a bright-line rule to prevent corporate treasury

funds from being used to influence federal elections.

Strict scrutiny under the First Amendment requires

narrow tailoring, not perfect tailoring. And, especially

in light of the alternative avenues for corporations and

unions to finance “electioneering comniunications,” once

this Court has upheld a bright-line rule as narrowly tai-

lored, as it did in McConnell, that should resolve the

matter.

Recognizing the strength of the federal interest in

preventing actual or apparent electoral corruption, the

need for clarity as to the range of communications sub-

ject to the financing restrictions, the futility of prior

efforts to identify all relevant election-related communi-

cations through the “express advocacy” test, and the

minor burden that BCRA § 203 places upon corporate

and union speakers that wish to engage in issue advo-

cacy but do not seek to influence electoral outcomes, the

Court in McConnell sustained that provision against

constitutional attack. Thus, even if the Court were to

conclude that Congress lacks a substantial independent

interest in regulating corporate issue advocacy, the mar-

ginal impact of BCRA § 203 on such communications

would not render the provision unconstitutional, either

on its face or as applied.

D. Appellant’s Offer To Finance The Advertisements At

Issue Here From A Segregated Bank Account Does Not

Alter The Constitutional Analysis

Appellant asserts (Br. 28-29) that it does “not chal-

lenge the disclaimer and disclosure requirements” for

“electioneering communications.” As an alternative to

its request for a complete constitutional exemption from

-BCRA’s restrictions on the financing of corporate “elec-

tioneering communications,” appellant states (Br. 4 n.4,

30-32; see Amended Compl. 19 64-69) that it is “willing”

if necessary to finance “electioneering communications”

from a “segregated bank account” containing only funds

raised from individuals. After careful deliberation, how-

ever, Congress chose to require corporations to finance

“electioneering communications” through a PAC, and it

specifically rejected the segregated-bank-account alter-

native that appellant proposes. Because the Court in

McConnell sustained the PAC requirement as 2;plied to

nonprofit corporations, appellant has no constitutional

right to utilize a “segregated bank account” instead.

1. As the Court explained in McConnell, the

“Snowe-Jeffords” provisions of BCRA § 203 appear on

their face to exempt corporations encompassed by 26

U.S.C. 501(c)(4) or 527 from BCRA’s requirement that

corporate “electioneering communications” be financed

through a PAC. In place of the restrictions imposed by

BCRA on corporate “electioneering communications”

generally, the Snowe-Jeffords provisions would have

substituted the requirement that Section 501(c)(4) and

527 corporations pay for such communications with

funds collected solely from individuals. See McConnell,

540 U.S. at 209 n.90. Because a corporate PAC is sub-

ject to significant fundraising restrictions and disclosure

obligations that would not have applied to Section

501(c)(4) and 527 corporations under the Snowe-Jeffords

provisions, those provisions would have increased the

range of financing options available to any such non-

profit corporations that wished to make “electioneering

communications.”

‘7 Unlike appellant’s PAC, the “segregated bank account” that

appellant offers to utilize for “electioneering communications” could

solicit funds from individuals who are not its members, see 2 U.S.C.

441b(b)(4), and it could accept contributions in amounts exceeding the

$5000 annual contribution limit of 2 U.S.C. 441a(a)(1)(C). In addition,

appellant’s assurances that it will disclose its receipts and disburse-

ments for the advertisements “at the level at which Congress asserted

a disclosure interest” (Amended Compl. 1 66), and that “any donors

contributing in excess of $1,000 to the [segregated] account would be

disclosed to the public” (Br. 32 (quoting Amended Compl. 4 67)), are

insufficient to achieve compliance with the disclosure requirements that

the FECA/BCRA regime imposes on political committées. Under

BCRA, an advertiser that is not a political committee must disclose

“electioneering communications” for which it spends $10,000 or more,

and it must disclose the identity of donors who contribute $1000 or

more. See 2 U.S.C. 434(f)(1), 434(f(2)(E) and (F). Political com-

mittees like appellant’s PAC, however, are required to disclose all

receipts and disbursements of $200 or more. See 2 U.S.C. 434(b)(3) and

(6).

BCRA § 204, however, known as the “Wellstone

Amendment,” states that the Snowe-Jeffords provisions

are inapplicable to “targeted communications,” a term

defined to include “electioneering communications.” See

McConnell, 540 U.S. at 209-210 n.90. The practical ef-

fect of the Wellstone Amendment is to render the

Snowe-Jeffords provisions a nullity. See id. at 210 n.90.

After considering the interplay between the Snowe-

Jeffords provisions and the Wellstone Amendment, see

id. at 209-210 n.90, the Court in McConnell held that

BCRA § 204’s ban on the use of a nonprofit corporation’s

treasury funds to finance “electioneering communica-

tions” is “plainly valid” so long as that provision is con-

strued to exempt MCFL organizations. /d. at 211; see

id, at 210-211.

The Wellstone Amendment thus reflects an explicit

and considered congressional determination, sustained

by this Court in McConnell, that appellant’s proposed

“segregated bank account” alternative affords insuffi-

cient protection against corporate electoral abuse. Ap-

pellant has chosen to reap the advantages that the cor-

porate form entails (see, e.g., FEC v. Beaumont, 539

U.S. 146, 153-154, 159-160 (2003)), and it has elected to

accept money from business corporations and/or to en-

gage in other activities that bring it outside the “care-

fully defined category of entities” (McConnell, 540 U.S.

at 210) that are eligible for the MCFL exemption. See

pp. 4, 31-33, supra. Under this Court’s precedents, ap-

pellant therefore may validly be required to finance its

“electioneering communications” through a PAC rather

than through the “segregated bank account” that it

would prefer to utilize.

2. By allowing appellant to finance “electioneering

communications” with money raised outside the restric-

tions applicable to political committees, appellant’s

“segregated bank account” proposal would increase the

funds available to appellant for indisputably regulable

activities such as direct contributions to federal candi-

dates and express advocacy of electoral results. Com-

pare California Med. Ass’n v. FEC, 453 U.S. 182, 198-

199 n.19 (1981) (plurality opinion) (donations “ear-

marked for administrative support” can be regulated as

“contributions” because they free up other money to be

used for more direct electoral activity). Indeed, appel-

lant acknowledges that it objects to the requirement

that the advertisements at issue here be financed

through its PAC because it wishes to reserve its PAC

funds for “contributions and independent expenditures.”

Br. 6; see 2 U.S.C. 431(17) (Supp. II 2002) defining “in-

dependent expenditure” to mean “an expenditure by a

person expressly advocating the election or defeat of a

clearly identified candidate which is made without coop-

eration or consultation with any candidate”). Appel-

lant’s proposal, however, ignores the carefully balanced

set of benefits and burdens that the Act applies to politi-

cal committees. See McConnell, 540 U.S. at 152 n.48

(limits on contributions to political committees restrict

“not only the source and amount of funds available to

parties and political committees to make candidate con-

tributions, but also the source and amount of funds

available to engage in express advocacy and numerous

other noncoordinated expenditures”).

3. Appellant acknowledges (Br. 32) that the “segre-

gated bank account” it proposes would not be subject to

all the restrictions applicable to PACs. Appellant never-

theless contends (ibid.) that this disparity does not mat-

ter “in the context of grass-roots lobbying because there

is no potential for corruption.” In other words, appel-

lant appears to contend that, even if corporate “grass-

roots lobbying” is not wholly immune from federal regu-

lation, use of a “segregated bank account” is adequate to

achieve BCRA’s anti-corruption objectives. Appellant

apparently envisions a mode of as-applied constitutional

analysis in which the reviewing court will consider the

content of specific corporate communications, together

with the corporation’s stated willingness to comply with

some but not all requirements of the applicable legal

regime, in order to determine whether the relevant cor-

porate activity will actually create the dangers that

BCRA is intended to prevent.

Appellant’s “segregated bank account” argument

represents a narrower attack on the statutory regime

than does its primary theory that corporate “grassroots

lobbying” is constitutionally exempt from federal regu-

lation. As a practical matter, however, the constitutional

methodology that appellant’s fallback argument would

entail is even less workable than a mode of review that

turns on the content of the relevant advertisements

standing alone. In addition to the practical difficulties

created by appellant’s failure to articulate a clear, objec-

tive standard for distinguishing “grassroots lobbying”

from corporate electioneering (see pp. 26-35, supra), ap-

pellant’s fallback argument would require a reviewing

court to assess the relative importance to the

FECA/BCRA regime of the statutory provisions that a

particular corporate advertiser does and does not ex-

press a willingness to obey. It would essentially allow

any corporation or union to litigate the validity of a

nearly infinite range of hypothetical campaign-finance

and disclosure regimes that Congress could have, but

has not, enacted. Such an approach is almost certain to

prove incapable of workable administration, and it would

dismantle the careful legislative balancing of interests

that culminated in BCRA.

CONCLUSION

The judgment of the district court should be af-

firmed.

Respectfully submitted.

PAUL D. CLEMENT

LAWRENCE H. NORTON Solicitor General

General Counsel GREGORY G. GARRE

RICHARD B. BADER Deputy Solicitor General

Associate General Counsel MALCOLM L. STEWART

DAVID KOLKER Assistant to the Solicitor

Assistant General Counsel General

HARRY J. SUMMERS

Attorney

Federal Election

Commission

DECEMBER 2005

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