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

U.S.

FILED

No. Bu NOV 14 2005

|_ OFFICE OF THE CLERK

IN THE

Supreme Court of the nited States

2s

WISCONSIN RIGHT TO LIFE, INC.,

Appellant,

i

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL TO THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF AMICUS CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF APPELLANT

JOEL M. GORA STEVEN R. SHAPIRO

BROOKLYN LAW SCHOOL Counsel of Record

250 Joralemon Street MARK J. LOPEZ

Brooklyn, New York 11201 AMERICAN CIVIL LIBERTIES

(718) 780-7926 UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

Page

ee Cy Se ecncttasesnecnitcninrcsintntslcpinapinsinamiinnimiinbiains 1

or gg ees 2

SUMMARY OF ARGUMENT ........0:::.ssccccccsccssssssssscssosessnseceseees 4

ee ectieneicecsssictssemcinnibiisinininitinitaditusmstiiinadinieienaieinigel 8

L. Section 203 Of The BCRA Imposes A Direct,

Substantial, And Unjustifiable Burden

On The ACLU’s Core Political Speech. ..............000 8

Il. The BCRA’s Ban On “Electioneering

Communications” Must Remain Subject

To As-Applied Challenge When Its

Prophylactic Rule Results In The

Suppression Of Speech That Does Not Trigger

The Concerns That The Statute Was Meant

ee a ecterntinsiciennibnebianmsitiiaiiainninpiansanianiyenin 16

A. McConnell Did Not Resolve The Issue

Of Future As-Applied Challenges

ee CE ccieitncnintininensininnetnieen 17

B. As-Applied Challenges Are Necessary

To Ensure That The BCRA Does Not Abridge

Constitutionally Protected Speech ..................+. 20

C. An As-Applied Challenge To §203 Could Be

Framed In A Variety of Ways ................c:cc0ee00 25

ee ciiinnincinccsnieantiseuiciintensiiinintnintaitehitateciiacbieiiniistaitainds 30

TABLE OF AUTHORITIES

Cases

ACLU v. Jennings, 366 F. Supp. 1041 (D.D.C.1973).......... 24

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).....22

Austin v. Michigan State Chamber of Commerce,

ee ne ST Ee cicenicscnntinannincticaninnieneniasesiininteda 17, 25

Broadrick v. Oklahoma, 413 U.S. 601 (1973). ............:00000 17

Brown v. Socialist Workers '74 Campaign Committee

SIU, SNe SRI TED 0 FOEID cciteniccneensnnnecensiiceniinmsens 7,27, 28

Buckley v. Valeo, 424 US. SS icntcstinonniatndonaisiénilidnntl ]

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ..occcccccseeeeeeees 23

Clark v. Community for Creative Non-Violence,

GE Shel A ee cierttnnscannnetineninsinectinanomapameniiatinnesianinnas 21

Connick v. Meyers, 461 U.S. 138 (1983) .........ccccccseeseeeeenees 16

Consolidated Edison Co. of New York v. Public Service

Comm'n of New York, 447 U.S. 530 (1980) ...........0200000+ 16

DeJonge v. Oregon, 299 U.S. 353 (1937)......ccccccseceeeeeeeeeees 16

FEC v. Beaumont, 539 U.S. 146 (2003) .0........:ccceceeeeeeeeeees 24

FEC v. Massachusetts Citizens for Life, Inc.,

FP es I iinisnrnterninctiarenniiineamanignnseanil 6, 22, 24

FEC v. National Rifle Association of America,

Be oe Ee es STOR ctertctrcnnioritmatesenanenanein 25

FEC vy. National Right to Work Comm.,

a Se CE kerirenicinapinsatinndeditninciimeiniidasnnuanteiainentiio 24

First National Bank of Boston v. Bellotti, '

a a Fe ee iiebenisenensnicinnsicinpintinnitnaniinmeriniiivn 16

Garrison v. Louisiana, 379 U.S. 64 (1964)........ccccccceeeeeeees 16

Gonzaga University v. Doe, 536 U.S. 273 (2002) ............... 20

Grosjean v. American Press Co., 297 U.S. 233 (1936)......25

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2003) ...ccccrcsvccerssccsorescesserees 18

McConnell v. FEC, 540 U.S. 93 (2003).........:.ccccecceees ‘passim

McIntyre v. Ohio Elections Commission,

es Se iacieciasiiniidipsiciiehetiintidniatinsnicningunittimities 24

Mills v. State of Alabama, 384 U.S. 214 (1966) ............:00+ 16

Murdock v. Pennsylvania, 319 U.S. 105 (1943).............. a

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)........ 16

Randall v. Sorrell, 382 F. Supp. 91 (2d Cir. 2004), cert.

granted, 126 S.Ct. 35 (2005)(No. 04-1528)..........cccccceeeeeee l

Schneider v. State of New Jersey Town of Irvington,

Rs er cinrtiieunceresnisshingiinsecigassiiaantintnincuenbitiiaied 23

Speiser v. Randall, 357 U.S. 513 (1958).........cccccceeeeeee 16, 22

Steffel v. Thompson, 415 U.S. 452, 459 (1974)........cccccceeees 27

Thornhill v. Alabama, 310 U.S. 88 (1940)...........:ccccceeeeeeeees 27

United States v. Playboy Entertainment Group, Inc.,

SOP UE SEO Qe scivsinisesncanischiidicieiaiiucatintienibiciiianiiaiini 23

Virginia v. Hicks, 539 U.S. 113, 123 (2003)........ccceeeeseeees 20

Ward v. Rock Against Racism,

GER TAD Fa, FOS Ce eecccsctennssiintintnaithisibiniinaitas 21

Statutes, Bills, and Regulations

2 U.S.C. § 434 hescaghnoeteneniabis neiensiibveiitalediinesisiatbenniseeniiiiiaantiians passim

SUDA, BOD ceicsctinenieniminninninmenmanaggs passim

RTE. 00, OE” Chet SI vscccinstieodeiarniestettnciae 10

DERE, SUDG, BOG Caters: CHOI ceecscsccssvecsesivemesiitsaetctnncon 10

TARE, SGD: BOF” Catan: COON ceiciciscciviititicsneistiltietininasa 10

SER. SOIT; 2OEP Cntr, CIGD eesineaciscieriniesnrisiciiciaseisaanal 10

BERR. SORE, BOE” Catan, CIE ccceccsivecsincinnenenioioinniel 9

SER. SOGF, SOT” Corny CIIIOD cicsnossvitsncinrecittinioorscceaisi 10

H.R.J. Res. 106, 108 Cong. (2004) .....cccecsesssssessessesseseseenes 10

Fe RR ern nn 10

50 CUE REGED vaccccnncnstsinniictinsineniiniiiiaeniieeaee 25

iV

Other Authorities

Letter from Senator McCain, et al. to the FEC

(dated August 23, 2002), available at

http://www. fec.gov/pdf/nprm/electioneering

_comm/comments/us_cong_members.pdf

(last visited on November 5, 2005) .................0000000

INTEREST OF AMICUS'

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 500,000 members dedicated to the principles of liberty

and equality embodied in the Constitution and our nation’s

civil rights laws.

For the past three decades, the ACLU has been deeply

engaged in the effort to reconcile campaign finance

legislation and First Amendment principles, from Buckley v.

Valeo, 424 U.S. 1 (1976), where we represented our affiliate,

the New York Civil Liberties Union, to McConnell v. FEC,

540 U.S. 93 (2003), where the ACLU was both co-counsel

and plaintiff. In the intervening years, the ACLU has

participated in numerous campaign finance cases, both in

this Court and in the lower state and federal courts.

Currently, we are counsel in Randall v. Sorrell, 382 F. Supp.

91 (2d Cir. 2004), cert. granted, 126 S.Ct. 35 (2005)(No. 04-

1528), which will be argued later this Term.

Even in the context of that long history, the present case

raises issues of particular significance for the ACLU. With

increasing frequency in recent years, the ACLU has relied on

broadcast ads to promote its position on civil liberties issues.

Those issues, and the need to discuss them, arise throughout

the year. But those discussions are often most urgent, and

the public most engaged, in the period preceding elections

when crucial legislative votes are frequently scheduled.

Until passage of the Bipartisan Campaign Reform Act of

2002 (BCRA), the ACLU was free to determine the manner

and content of its political speech so long as it respected the

' Pursuant to Rule 37.3, letters of consent to the filing of this brief have

been lodged with the Clerk of the Court. Pursuant to Rule 37.6, counsel

for amicus curiae states that no counsel for a party authored this brief in

whole or in part and no person, other than amicus curiae, its members, or

its counsel made a monetary contribution to the preparation of this brief.

limits on partisan political activity imposed by its tax-exempt

status under the Internal Revenue Code and its own bylaws,

and so long as it did not expressly urge a vote for or against a

particular candidate. Under the BCRA, the ACLU now faces

criminal penalties if it broadcasts any ad during a defined

pre-election period that mentions the name of a federal

candidate, even if no reasonable person would construe the

ad as advocating that candidate’s election or defeat.

The question presented by this case is whether that

categorical ban can be enforced in circumstances where its

underlying rationale simply does not apply. Put in more

direct and immediate terms, can a prohibition against “sham”

issue ads be enforced in a manner that prohibits the ACLU

from broadcasting “genuine” issue ads that are not only

protected by the Constitution but involve speech that lies at

the very heart of the First Amendment?

This Court’s answer to that question will have a

substantial impact on the free speech rights of the ACLU and

its members.

STATEMENT OF THE CASE

In McConnell v. FEC, 540 U.S. 93 (2003), this Court

addressed a facial challenge to numerous provisions of the

BCRA, including § 203, which bars corporations and unions

from engaging in “electioneering communications” with

general treasury funds. 2 U.S.C. § 441b (b)(2). That

prohibition applies to non-profit corporations as well as for-

profit corporations.

An “electioneering communication” is defined by § 201

of the BCRA as any “broadcast, cable, or satellite

communication” that (1) refers to “a clearly identified

candidate” for federal office, (2) is made during a blackout

period that applies 60 days before a general election and 30

days before a primary election or party convention, and (3) is

2

targeted at the candidate’s constituency. 2 U.S.C. §

434(f)(3 (A).

The definition of an “electioneering communication” set

forth in the BCRA was intended to close what Congress

perceived as a loophole in prior law. Specifically, the pre-

existing bar on corporate or union expenditures “in

connection with a federal election,” 2 U.S.C. § 441b(a), had

been widely construed to reach only ads that met the so-

called “magic words” test — that is, ads that expressly urged

voters to cast their ballot either for or against a specific

candidate. Section 203 of the BCRA was designed to reach

further and to prohibit what many in Congress perceived to

be “sham” issue ads that omitted the “magic words” but were

nevertheless intended to deliver a partisan message and

influence electoral choices.

This Court accepted the legitimacy of that concern in

McConnell when it upheld the facial validity of the BCRA’s

ban on “electioneering communications.” At the same time,

the Court recognized that some ads that fit within the literal

definition of an “electioneering communication” do not in

fact have an “electioneering purpose.” McConnell, 540 U.S.

at 206. The Court described those ads as “genuine” issue

ads rather than “sham” issue ads. The Court further

acknowledged that both the parties and the members of the

three-judge district court in McConnell had disagreed on

how many ads fit within each category. No one, however,

doubted the existence of such ads, including the staunchest

proponents of the BCRA. In the end, this Court found it

unnecessary to resolve that dispute in the context of the

substantial overbreadth challenge that plaintiffs had

presented in McConnell. Based on its review of the record,

the Court was convinced that the “vast majority” of

“electioneering communications” had an “electioneering

purpose” and that was sufficient to defeat plaintiffs’

substantial overbreadth claim. /d at 206.

McConnell was decided in December 2003. Eight

months later, Wisconsin Right to Life (WRTL) filed this

action seeking a declaratory judgment that the BCRA’s ban

on “electioneering communications” was unconstitutional as

applied to three specific ads that it had been running on

Wisconsin radio. It also sought a preliminary injunction that

would allow it to continue broadcasting the ads specified in

its complaint during the BCRA’s blackout period, which

extended for 79 days from August 15 to November 2, 2004,

because of the state’s election calendar.’

WRTL’s motion for a preliminary injunction was denied

by the district court on the ground that this Court’s decision

in McConnell “leaves no room for the kind of ‘as applied’

challenge that WRTL propounds before us.” J.S. App 7a.

WRTL’s complaint was subsequently dismissed on the same

basis. This appeal followed.

SUMMARY OF ARGUMENT

The ACLU is a nonpartisan organization. It does not

engage in partisan political speech. It is, however, an active

participant in public debates about civil liberties issues. We

seek to educate the public about our views on those issues,

and to influence the decisions of lawmakers and

policymakers. The ability to broadcast radio and TV ads to

targeted audiences is an important part of the ACLU’s

advocacy strategy. Indeed, the sponsors of the BCRA chose

to target those ads — as opposed, for example, to newspaper

ads that were left unregulated — precisely because of their

communicative impact. The free speech rights of the ACLU

? The 2004 Democratic primary in Wisconsin took place on September

14", so the 30-day blackout period began on August 15". By the time

the primary was held, the 60-day blackout period preceding the general

election on November 2™ had already begun. J.S. App. Sa.

4

are thus directly and significantly impaired by § 203 of the

BCRA.

The First Amendment protects more than the speaker’s

right to choose what to say. It also protects the speaker’s

right to choose how to say it. For that reason, this Court has

long held that the government must satisfy strict scrutiny

whenever it regulates the content of speech. Additionally,

the government must satisfy strict scrutiny whenever it

deprives a speaker of access to an entire medium of

communication. Section 203 of the BCRA undeniably does

both.

Applying strict scrutiny, this Court nonetheless held in

McConnell that § 203 was facially valid because of the

government’s compelling interest in preventing corporations

and unions from using their general treasury funds — amassed

for a different purpose and with the benefit of government

conferred advantages — to influence the outcome of federal

elections. But that fact cannot and does not justify applying

§ 203 in circumstances where its underlying interests

manifestly do not apply. To rule otherwise, would be in

effect to hold that First Amendment rights can be abridged

even in the absence of any compelling justification.

At the very least, any such holding would be a dramatic

departure from this Court’s traditional First Amendment

jurisprudence. Prophylactic rules are always easier to

enforce but this Court has repeatedly rejected their

application in First Amendment cases precisely because the

burden they impose on constitutionally protected speech has

been deemed unacceptable. The three-judge court in this

case understandably focused on the language of McConnell.

And, to be sure, there is language in McConnell that could be

read as foreclosing future as-applied challenges to the

operation of § 203. Read in context, however, that language

is more ambiguous than the court below credited. It is,

moreover, plainly dicta since the Court in McConnell was

not considering an as-applied challenge. Nothing in

McConnell. therefore, prevents the Court from recognizing

the propriety of as-applied challenges to § 203 now that the

question has been squarely presented for the first time.

Of course, recognizing the possibility of an as-applied

challenge does not determine whether a particular as-applied

challenge will or will not succeed. As in every other First

Amendment context, a plaintiff must still establish that its

First Amendment rights have been burdened, and the

government must be given an opportunity to prove that the

burden is justified by a compelling state interest that has

been narrowly pursued. For the ACLU, the burden imposed

by § 203 is clear and is not ameliorated by the two possible

escape routes that this Court identified in McConnell: either

creating a PAC or seeking designation as an “MCFL”

corporation. See FEC v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238 (1986).

Requiring the ACLU to speak through a PAC is not the

equivalent of asking a group of demonstrators to re-route

their march down Sixth Avenue rather than Fifth Avenue.

PAC’s are associated in the public mind with partisan

political activity. The formation of a PAC would therefore

threaten one of the ACLU’s most valuable organizational

resources — its nonpartisan reputation as an impartial

advocate on behalf of civil liberties. Furthermore, the

detailed rules governing PAC contributions enhance the risk

of diverting funds that would otherwise be available as

general support for the ACLU’s overall program. These

burdens might have to be borne if the ACLU were in fact

broadcasting “sham” issue ads designed to influence federal

elections. It is not, and no one in the McConnell litigation,

where the ACLU was a plaintiff, ever claimed otherwise.

Under existing FEC rules, moreover, the ACLU simply does

not qualify for “MCFL” designation.

There are a variety of ways that an as-applied challenge

to § 203 of the BCRA could be framed and resolved. First,

as here, nonprofit advocacy groups could seek judicial

approval for particular ads that they wish to broadcast during

the pre-election blackout period. That approach, however,

has both practical and doctrinal disadvantages. It exacts a

heavy toll on the limited resources of both nonprofit speakers

and the judiciary although, over time, a common law set of

rules might develop that provide sufficient guidance for all

involved to reduce the need for repetitive litigation.

Second, nonprofit speakers can broadcast ads at their

own peril and then raise a First Amendment defense in any

administrative enforcement proceeding or criminal prosecu-

tion. The disadvantage of that approach is that its chilling

effect will inevitably lead to self-censorship by speakers

unwilling to run the risk of civil or criminal sanctions.

Third, the Court could adopt a speaker-based rather than

a speech-based approach. Just as organizations can seek an

exemption from disclosure rules by demonstrating that their

contributors will suffer retaliation-if their identities are

disclosed, see Brown v. Socialist Workers '74 Campaign

Committee (Ohio), 459 U.S. 87 (1982), nonprofit advocacy

organizations could seek an exemption from § 203 based on

their history and practice of avoiding partisan political

activity. Such an exception would not permanently

immunize organizations like the ACLU if they crossed the

line, but it would create a presumption in their favor that

would at least reduce the peril of otherwise speaking at their

own risk.

Fourth, this Court could rule that the interests asserted in

defense of § 203 simply do not apply to speech by nonprofit

corporations organized under 501(c)(4) of the Internal

Revenue Code that is entirely funded by individual

contributions, thus effectively reinstating the Snowe-Jeffords

Amendment to the BCRA as a constitutional rule and relying

on IRS to police any alleged transgressions of the tax laws.

We recognize that this final alternative would require the

Court to revisit some of its conclusions in McConnell. But,

it would also provide the greatest free speech protection

while still respecting the underlying values that led Congress

to pass the BCRA and this Court to uphold it against a facial

challenge.

Any of these alternatives, however, is preferable to a

legal regime in which § 203 can never be challenged even

when it silences speech that does not pose any of the

problems that § 203 was enacted to prevent.

ARGUMENT

I. SECTION 203 OF THE BCRA IMPOSES A DIRECT,

SUBSTANTIAL, AND UNJUSTIFIABLE BURDEN

ON THE ACLU’S CORE POLITICAL SPEECH

The ACLU was founded in 1920. In 85 years, it has

never endorsed or opposed a candidate for elective office.’

Nonetheless, because the ACLU is organized as a nonprofit

corporation under § 501(c)(4) of the Internal Revenue Code,

it is barred by the BCRA from broadcasting any ad that

mentions the name of a federal candidate in the period

preceding a primary or general election based on the statute’s

irrebuttable presumption that such ads are intended to

influence the outcome of a federal election even when they

manifestly are not.

The ACLU’s sole mission is to preserve and protect

civil liberties. In furtherance of that mission, we seek to

influence the actions of federal officials on a regular and

ongoing basis. Since 9/11, for example, we have frequently

criticized the balance that federal officials have struck

> ACLU Board Policy 519 categorically states: “The ACLU does not

endorse or oppose candidates for elective or appointive office.”

between liberty and security. We have met with executive

branch officials to voice our concerns. And we have

attempted to persuade Congress to recalibrate that balance in

a variety of ways. As this brief is being written, Congress is

reconsidering various provisions of the USA Patriot Act.

The Senate has also recently passed a bill to bar torture that

we have strongly supported.

As the ACLU has grown in size and budget, broadcast

ads have become an increasingly important part of our

advocacy strategy. The goal of such ads is two-fold. The

first goal is to alert the public to important civil liberties

issues. The second goal is to persuade the public to contact

their elected representatives and urge those representatives to

take a position that supports civil liberties. The timing of

those issue ads is never determined by the electoral calendar.

But the electoral calendar often determines when issues are

brought up for a vote on the floor of Congress. That

phenomenon is both easy to explain and well understood.

For obvious reasons, elected officials like to build a record of

accomplishment just prior to elections. In addition,

politicians often perceive a political advantage in forcing

their opponents to cast a controversial vote just before

elections are held.

The 60 days preceding the 2004 election were typical in

this regard. Congress took action on the following issues of

longstanding concern to the ACLU.*

e On September 21st, the House voted on an

amendment to the Transportation-Treasury

Appropriations bill to prohibit the use of federal

funds to enforce travel restrictions to Cuba. H.R.

5025, 108 Cong. (2004).

* These congressional actions are recorded in weekly editions of the

Congressional Quarterly, as well as daily editions of the Congressional

Record. They are also available on-line at http://www.cq.com.

9

On September 23", the House voted on a billto strip

the federal courts, including this Court, of jurisdiction

to hear cases challenging the constitutionality of the

Pledge of Allegiance. H.R. 2028, 108" Cong. (2004).

On September 23", the Senate voted on an

amendment directing the Secretary of Homeland

Security to develop a plan to “integrate and

consolidate” airline “no fly lists.” $.2845, 108”

Cong. (2004).

On September 28", the House voted on an

amendment to the Defense Authorization bill to

expand federal hate crimes legislation. H.R. 4200,

108" Cong. (2004).

On~ September 30", Congress voted on a joint

resolution to propose a constitutional amendment

banning same-sex marriage. H. R. J. Res. 106, 108”

Cong. (2004).

On October 5", the House voted on a bill to require

software companies to obtain permission from

computer users before installing spyware programs

that collect and distribute personal information. H.R.

2929, 108” Cong. (2004).

On October 6", the House voted on an amendment to

fund grants to the states for DNA testing, includin

post-conviction testing for inmates. H.R. 5107, 108

Cong. (2004).

On October 8", the House voted on a series of

amendments to the Intelligence Overhaul bill that

authorized the death penalty for certain terrorist acts,

and that altered the rules for the detention and

removal of aliens from the country. H.R. 10, 108"

Cong. (2004).

10

It is, of course, more difficult to predict what bills will

be considered during the 60 days preceding the 2006

elections. | Based on congressional action this year,

reauthorization of the Voting Rights Act is a likely

candidate. If the past is prologue, other likely candidates

include: a constitutional amendment to ban flag desecration;

a constitutional amendment to ban same-sex marriage; bills

to restrict federal court jurisdiction; and bills to increase

federal criminal penalties. Whether this list proves accurate

or not, it is safe to predict that there will be numerous votes

on legislative proposals of interest to the ACLU and its

members as the 2006 midterm elections approach.

Members of Congress are influenced by the views of

their constituents when voting on legislation. Mobilizing

constituent support is therefore a principal lobbying tactic for

advocacy organizations like the ACLU. Broadcast ads are

an effective tool for accomplishing that end. To be effective,

however, the ads must be targeted to run in the districts of

pivotal legislators. Very few advocacy organizations can

afford to spend their limited resources running broadcast ads

in congressional] districts where they will have little impact

on the final legislative outcome. The ACLU certainly

cannot. In addition, broadcast ads are most effective when

they include a call to action: urging constituents to contact

their legislative representatives. Finally, there is little point

to running an ad unless the legislation discussed in the ad is

under active consideration by Congress.

Unfortunately, the same characteristics that make a

broadcast ad effective — namely, a targeted appeal for

constituents to contact a specifically identified legislator

prior to a scheduled vote — are precisely the characteristics

that render the ad unlawful under the BCRA if the legislator

is running for reelection and is mentioned in the ad by either

name or title (ie, “call your senator” or “call your

representative”).

In the last year, the ACLU has broadcast a series of

radio ads designed to further our legislative agenda. Under

slightly different circumstances, each of those ads would

have been a crime under the BCRA. For example, in

October 2004, right in the midst of the BCRA’s blackout

period, Congress was considering a bill to implement the

recommendations of the 9/11 Commission. The bill included

several anti-immigrant provisions that the Commission had

never sought and, indeed, opposed. In seeking to have those

amendments dropped from the bill, the ACLU broadcast an

ad in Spanish and English in five targeted states with

significant immigrant populations. The ad began by stating:

It doesn’t matter if you were the first

generation to arrive here.

Or if it was your parents or great-grandparents

who came here for a better life.

We all feel a great sense of pride to live in the

United States of America.

And when terrorists attacked us on September

11", we were one nation.

The ad then ended by urging listeners to call their senator

and “[a]sk him to protect our rights by opposing the anti-

immigration amendments in the 9/11 bill.”

The language of the ad was identical in all five states

except for the senators named in the tag line. Because none

of the senators was running for reelection, the ACLU’s ad

was protected by the First Amendment. Had any of the

senators been running for reelection, the ACLU’s ad would

have been a federal crime. Notably, the list of senators

includes both Democrats and Republicans.

In both June and August 2005, the ACLU broadcast

additional radio ads focused on the Patriot Act. The June

2005 ads ran in a total of twelve states and targeted four

senators and eight representatives, each of whom was

12

strategically selected as a potentially critical vote in the

Patriot Act reauthorization battle. The August 2005 ads ran

in ten states and targeted four senators and nine

representatives. One ad, a 60 second spot, was entitled

“Concerned Patriots.” The text of the ad focused on

provisions of the Patriot Act that the ACLU opposed on civil

liberties grounds and that public opinion polls had identified

as particularly troublesome to the American public. The text

of the ad stated:

How would you like it if someone were to

sneak into your home and search through your

possessions? What if someone secretly helped

themselves to your personal medical records of

financial statements — without your knowledge

or consent? You’d want to call the authorities,

right?

Now, what if I told you the people who did this

were the authorities? This is one example of

what’s wrong with the PATRIOT Act as it

currently stands.

Unfortunately, right now the federal

government is trying to make the PATRIOT

Act permanent and expand it — even though it

contains several provisions that violate our

fundamental freedoms.

These provisions give the courts the power to

let the federal government secretly search our

homes without letting us know for weeks,

months, or even longer.

Last time I checked, the Constitution was

supposed to stop that kind of thing. Luckily,

we still have the First Amendment so we can

make our voices heard to correct the PATRIOT

Act before it becomes permanent.

13

Depending on the venue, listeners were then asked to

call either their congressman or their named senator and

“{ljet him know [Congress] need{s] to make these crucial

changes before renewing the PATRIOT Act.” The ad was

narrated by Bob Barr, a well-known conservative and former

Republican congressman from Georgia. The American

Conservative Union and the Americans for Tax Reform

joined with the ACLU in paying for the ad, although both

organizations disagree with the ACLU on numerous other

policy issues.

The only thing that saved these ads from being a crime

is that they were not broadcast during the BCRA's blackout

period. Had the Patriot Act's sunset provisions been up for

reconsideration in the fall of 2006 rather than the fall of

2005, the ACLU would have been severely inhibited in its

ability to communicate with the American public on an issue

that has been a central concern of the organization, and the

country, since 2001.

At the same time that the ACLU was running its

broadcast ads, it was also running print ads. For example, in

October 2004, the ACLU placed ads in both the

Albuquerque Daily Journal Tribune and the Santa Fe New

Mexican concerning the proposed anti-immigrant

amendments then pending in Congress. The ad asked

readers to register their opposition by contacting President

Bush and Senator Domenici, whose office phone numbers

were listed.

Although the subject matter of the print ads paralleled the

subject matter of broadcast ads that were running

simultaneously, they were not interchangeable. Broadcast

ads and print ads reach different audiences and have different

impact. To the extent that budget permits, the ACLU

pursues a comprehensive and integrated communications

strategy to promote its civil liberties principles and influence

relevant legislative decisionmaking in Congress. Optimally,

14

that strategy includes both print ads and broadcast ads. It

also includes the Internet, direct mail, press releases, news

conferences, public appearances, and publications, among

other communications strategies.

For the ACLU, this combination of earned media and

paid media has nothing to do with electing or defeating

particular candidates. That is not our interest or intent, and

the organization has an 85-year history to substantiate that

claim. Any commentary on public issues could conceivably

affect the electoral choices of some voter. But to treat every

comment on public issues as an “electioneering

communication” — assuming it meets the definition set out in

the BCRA - is stand the First Amendment on its head.

To be sure, the ACLU could avoid the strictures of the

BCRA by altering its message, its medium, or its messenger.

Under the First Amendment, however, those choices should

be ours to make and not the government’s. If the

government seeks to override the ACLU’s fundamental right

to speak, it needs to provide a compelling justification that

actually applies to the ACLU. The government, of course, is

entitled to legislate on the basis of general propositions,

including the proposition that most “electioneering

communications” are merely disguised attempts to influence

election results. But, for reasons explained more fully

below, the ACLU is equally entitled to bring an as-applied

challenge arguing that those general propositions do not

apply in its case. Allowing exceptions to a rule undoubtedly

complicates its enforcement. But the government needs to

establish something more than administrative convenience to

justify the suppression of First Amendment rights.

15

ll. THE BCRA’S BAN ON “ELECTIONEERING

COMMUNICATIONS” MUST REMAIN SUBJECT TO

AS-APPLIED CHALLENGE WHEN ITS

PROPHYLACTIC RULE RESULTS IN THE

SUPPRESSION OF SPEECH THAT DOES NOT

TRIGGER THE CONCERNS THAT THE STATUE

WAS MEANT TO ADDRESS

The ACLU broadcast ads described in the preceding

section are clearly entitled to constitutional protection under

this Court’s traditional understanding of the First

Amendment. That understanding rests on a series of well-

established and fundamental principles.

First, “speech concerning public affairs is more than

self-expression, it is the essence of self-government.”

Connick v. Meyers, 461 U.S. 138, 145 (1983), quoting

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Second,

speech cannot be curtailed because of its proximity to an

election. Mills v. State of Alabama, 384 U.S. 214 (1966).

Third, freedom of speech necessarily “embrace{s] all issues

about which information is needed or appropriate to enable

the members of society to cope with the exigencies of their

period.” Thornhill v. Alabama, 310 U.S. 88, 101 (1940).

Fourth, neither the fact that the speech or criticism appears in

a paid advertisement, New York Times Co. v. Sullivan, 376

U.S. 254 (1964), nor the corporate status of the speaker,

First National Bank of Boston v. Bellotti, 435 U.S. 765

(1978); Consolidated Edison Co. of New York v. Public

Service Comm'n of New York, 447 U.S. 530 (1980), provides

a justification for suppressing speech on matters of public

concern. Fifth, the Constitution protects the right of

individuals to amplify their voice through group association.

DeJonge v. Oregon, 299 U.S. 353 (1937). The government

must utilize “sensitive tools,” Speiser v. Randall, 357 U.S.

513, 525 (1958), when it seeks to limit such associational

activity, even if the association chooses to incorporate, like

the ACLU, as a nonprofit entity.

16

None of these principles was called into question by the

decision in McConnell. To the contrary, McConnell was

written within the framework of these principles. The Court

began by recognizing a compelling state interest in

prohibiting corporations and unions from utilizing general

treasury funds to engage in partisan political activity. That

recognition reaffirmed prior holdings, it did not depart from

them. See, e.g. Austin v. Michigan State Chamber of

Commerce, 494 U.S. 652 (1990). The majority then credited

evidence in both the congressional and judicial record that

corporations and unions were in fact engaging in partisan

political activity by broadcasting so-called “sham” issue ads

paid for with general treasury funds, and that pre-BCRA law

was inadequate to deal with it. Finally, the Court concluded

that the bright lines rules adopted in § 203 of the BCRA

were a permissible response, in most cases, to the problem

that Congress had identified.

Fairly read, the McConnell opinion did not go any

further then, and this Court should not go any further now.

A. McConnell Did Not Resolve The Issue of Future As-

Applied Challenges To § 203 of the BCRA

The plaintiffs in McConnell, including the ACLU,

challenged the BCRA’s ban on “electioneering communica-

tions” as facially unconstitutional. In the context of that

facial challenge, both the evidence and this Court’s opinion

focused on whether the strict rules on corporate and union

speech set forth in § 203 would impermissibly abridge a

substantial amount of constitutionally protected speech, and

thus violate the overbreadth doctrine. Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973). Neither the

government nor the intervenors in McConnell ever

questioned the fact that some ads barred by the literal

language of § 203 were “genuine” issue ads rather than

“sham” issue ads. That is, all parties in McConnell agreed,

and the evidence indisputably showed, that § 203 barred

17

some ads that were never intended to influence the outcome

of federal elections.

The dispute among the parties in McConnell was over

how many ads fit into each category. The lowest estimate

came from the Brennan Center, which was a strong

proponent of the BCRA. A study it commissioned in

anticipation of the litigation concluded that only 7% of

corporate and union ads naming a federal candidate and

broadcast during the blackout period in 1998 were “genuine”

issue ads. McConnell v. FEC, 251 F. Supp. 2d 176, 309

(D.D.C. 2003). The methodology supporting this study was

sharply contested, and other evidence in the record placed

the figure significantly higher. /d at 309-312. Ultimately,

this Court found it unnecessary to resolve the dispute

because it concluded that plaintiffs had not satisfied the

substantial overbreadth test. McConnell, 540 U.S. at 206

(“the vast majority of ads clearly had [an electioneering]

purpose”).

Even accepting the Brennan Center’s figure, the

question of how to handle those “genuine” issue ads that are

nonetheless barred by the BCRA - including the ACLU’s

own broadcast ads — was simply not before the Court. To the

extent that there is language in McConnell addressing that

question, it is ambiguous and contradictory. Both the

government and the district court place great weight on

footnote 73, id at 190, where the McConnell majority

announced that it was unnecessary to consider the backup

definition of “electioneering communications” in § 201 of

the BCRA because it was upholding “all applications of the

primary definition.” The government and the district court

construe this language as a total bar to the sort of as-applied

challenge that appellant has brought in this case, regardless

of its merits. Footnote 73, however, does not compel that

conclusion. Indeed, on its face, it does not even address the

ban on corporate and union “electioneering

communications” contained in § 203; rather, it addresses the

18

definition of “electioneering communications” set forth in §

201. Contrary to the view embraced by the government and

the district court, it is equally plausible to read the language

of footnote 73 in far a more limited way — namely, that the

primary definition of “electioneering communications”

applies whenever that phrase is used in the BCRA, including

§ 203. If that is the correct interpretation of footnote 73, it

certainly does not follow that § 203’s ban on “electioneering

communications,” including the nonpartisan speech of the

ACLU, is likewise valid in “all applications.”

Other language in McConnell is also inconsistent with

the district court’s refusal to entertain an as-applied

challenge. In rejecting the argument that only “express

advocacy” could be prohibited under the First Amendment,

the McConnell majority wrote:

This argument fails fo the extent that the issue

ads broadcast during the 30- and 60-day

periods preceding federal primary and general

elections are the functional equivalent of

express advocacy. The justifications for the

regulation of express advocacy apply equally to

ads aired during those periods if the ads are

intended to influence the voters’ decisions and

have that effect.

McConnell, 540 U.S. at 206 (emphasis added). While this

passage does not refer specifically to as-applied challenges,

an as-applied challenge is the conventional means for testing,

in a specific factual context, the Court’s own proposition that

the justifications for regulation of express advocacy do not

apply to ads that are not intended to influence the voters’

decisions and do not have that effect.

Similarly, the district court attached undue significance

to the fact that the majority in McConnell expressly

acknowledged the possibility of future as-applied challenges

when discussing other provisions of the BCRA but not when

19

discussing § 203. Inferences from silence are always

problematic, but they are especially problematic here given

the conflicting message that can be drawn just as easily from

the majority’s silence in response to Justice Kennedy’s

assertion, in dissent, “that corporations and unions may bring

as-applied challenges or. a case-by-case basis.” McConnell,

540 U.S. at 336. If the majority disagreed with that

statement, it presumably would and could have said so

explicitly.”

For decades, this Court has treated as-applied challenges

as the constitutional safety net when facial challenges are

denied. E.g. Virginia v. Hicks, 539 U.S. 113, 123 (2003).

Absent a clearer statement than McConnell provides, it

should not be assumed that this Court intended to depart

from that well-settled doctrine. To the contrary, the Court

has consistently rejected arguments suggesting that well-

settled principles of constitutional jurisprudence have been

overruled sub silentio. See Gonzaga University v. Doe, 536

U.S. 273, 300 n.8 (2002).

B. As-Applied Challenges Are Necessary To Ensure

That The BCRA Does Not Abridge Constitutionally

Protected Speech

There is no mystery about the purpose behind Section

203. As this Court recognized in McConnell, it was enacted

to prevent corporations and unions from using general

treasury funds for partisan political purposes by broadcasting

so-called “sham” issue ads on radio and television in the

critical period preceding a federal election. The defining

* In response to Justice Kennedy’s different point that § 203 should have

been struck down as facially invalid because it reaches constitutionally

protected speech, the McConnell majority rejected what it described as

Justice Kennedy’s “premise” that “sham” issue ads and “genuine” issue

are entitled to the same protection. McConnell, 540 U.S. at 206, n.88.

The function of an as-applied challenge is precisely to distinguish

between the two, a distinction that the majority cited as central to its

holding.

20

characteristic of a “sham” issue ad, described as an

“electioneering communication” in the BCRA, is that it

refers to “a clearly identified candidate” for federal office

during the statutory blackout periods.

That definition is clearly content-based. In order to

suppress a disfavored message of support or opposition for

particular candidates, it limits the words that a speaker can

use in its broadcast ads. See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989); Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 295 (1984). Content-based

restrictions on speech are subject to strict scrutiny and

McConnell properly proceeded on that assumption. But its

holding that the government had sufficiently established a

compelling state interest to justify the BCRA’s ban on

“electioneering communications” must be understood in

light of the facial challenge that the Court was considering.

As the Court explained: “Even if we assumed that [the]

BCRA will inhibit some constitutionally protected corporate

and union speech, that assumption would not justify

prohibiting a// enforcement of the law . . .” McConnell, 540

U.S. at 207 (internal quotations and _ citation

omitted)(emphasis added).

The opposite, however, is also true. The fact that § 203

of the BCRA is supported by a compelling state interest in

the “vast majority” of cases, to use the Court’s language in

McConnell, does not mean that its enforcement in a// cases is

therefore constitutionally valid. If state-bestowed corporate

advantages are not being used to engage in partisan political

activity, then the ban on broadcast ads not only deprives

speakers of their First Amendment rights without any

constitutionally adequate justification, it deprives the public

of information that can be useful in understanding the policy

decisions facing government. Without that information, it is

plainly more difficult for the public to participate

intelligently in the process of democratic decisionmaking.

21

The First Amendment disfavors prophylactic rules, see,

e.g., Speiser v. Randall, 357 U.S. 513 (1958), and statutes

restricting free speech must be narrowly tailored both on

their face and as applied. In McConnell, this Court held that

the ratio of “sham” issue ads to “genuine” issue ads was

sufficient to sustain § 203 against facial attack, but there is

no constitutionally compelling justification to uphold the

statute in circumstances where its asserted justifications do

not apply.

Only two possible explanations have been offered for

this anomalous result. The first explanation is that it is too

difficult to distinguish between “genuine” issue ads and

“sham” issue ads and thus the former must be sacrificed in

order to ensure that the latter are prohibited. However, as the

Court said in Ashcroft v. Free Speech Coalition, 535 U.S.

234, 255 (2002), that notion turns the First Amendment

“upside down.” Constitutionally protected speech cannot be

criminalized merely because it resembles constitutionally

unprotected speech. /d. If that is true for sexually explicit

speech, it certainly should be true for political speech that

lies at the core of the First Amendment.

The second explanation is that § 203 imposes only a

minor burden on speech because corporations and unions can

speak through PAC’s, and nonprofit corporations that qualify

for MCFL status are not bound by the BCRA’s ban on

“electioneering communications.” | There are several

problems with this approach.

° If anything, the decision in FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986), underscores the propriety of as-applied challenges

in this sensitive First Amendment area. The Court in MCFL did not

question the facial validity of the federal ban on the use of corporate

funds for express advocacy. 2 U.S.C. § 441b. It nonetheless held that

the general ban could not be applied to nonprofit corporations that satisfy

three criteria: (1) they are formed to promote ideological goals; (2) they

have no shareholders; and (3) they are not established by a for-profit

corporation or union, and do not accept contributions from either.

22

Although a de minimis burden on speech will not trigger

strict scrutiny, the government cannot avoid the rigors of

strict scrutiny by characterizing § 203 as a regulation rather

than a ban. ““The distinction between laws burdening and

laws banning speech is but a matter of degree. The

government’s content-based burdens must satisfy the same

rigorous scrutiny as its content-based bans.” United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 812

(2000).

Furthermore, the existence of alternative avenues of

communication is not normally enough to satisfy strict

scrutiny. The adequacy of communication alternatives is a

relevant factor when analyzing content-neutral laws. In a

strict scrutiny context, however, the Court has long held that

“one is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be

exercised in some other place.” Schneider v. State of New

Jersey Town of Irvington, 308 U.S. 147, 151-52 (1939).

Shutting down an entire medium of communication

triggers strict scrutiny in any event. City of Ladue v. Gilleo,

512 U.S. 43, 55 (1994)“Our prior decisions have voiced

particular concern with laws that foreclose an entire medium

of expression.”). It is no answer to say that the broadcast

medium remains open to corporations or unions that are

willing to alter their message because that was equally true

in Ladue. There, the challenged ordinance allowed

homeowners to display “for sale” signs on their property but

prohibited them from displaying political signs. The Court

properly viewed that discrepancy as enhancing rather than

diminishing the constitutional violation. Here, it might be

argued, the content-based discrimination is less stark because

all that must be omitted from the proposed political

broadcast is any reference by the speaker to a “clearly

identified candidate.” It is not a change of subject, just a

change of script. Under the First Amendment, however, it is

the speaker who gets to determine the political script and not

23

the government, absent a compelling justification. See

McIntyre v. Ohio Elections Commission, 514 U.S. 334, 348

(1995).

In short, the government cannot escape the demands of

strict scrutiny or the judicial inquiry it demands. As this

Court explained in McConnell, “we must examine the degree

to which [the] BCRA burdens First Amendment expression

and evaluate whether a compelling interest justifies that

burden.” McConnell, 540 U.S. at 205.

For the ACLU, the burden is high and the compelling

justification is non-existent for the very same reason. The

ACLU is a nonpartisan organization. The government has

no legitimate interest, let alone a compelling one, in

regulating our nonpartisan political speech. See ACLU v.

Jennings, 366 F. Supp. 1041 (D.D.C.1973) (holding that the

ACLU could not be regulated as a “political committee”

because it does not engage in speech designed to influence

elections). And, the government has no right to jeopardize

our nonpartisan reputation by forcing the ACLU to create a

PAC that the public is likely to perceive as a symbol of

partisanship, however we name it. Nor does the government

have any right to demand that the ACLU adopt new

fundraising strategies that the organization believes will

operate to its detriment, simply to satisfy a law that has

nothing to do with the manner in which the ACLU actually

advocates on behalf of civil liberties.’ This Court cannot and

should not resolve those issues in this litigation. But the

ACLU should not be foreclosed from raising them before an

appropriate court in an as-applied challenge to § 203, if it

chooses to do so.

? This Court has, on occasion, minimized the regulatory burdens

associated with PAC’s, see FEC v. Beaumont, 539 U.S. 146, 163 (2003);

FEC v. National Right to Work Comm., 459 U.S. 197, 201-02 (1982), but

always in the context of contribution limits. MCFL, 479 U.S. at 259-60.

Like MCFL, this case does not involve political contributions, it involves

political speech.

24

Likewise, the MCFL exception has been so narrowly

construed by the FEC that it is unavailable to many non-

profits, including the ACLU, that do not present any of the

dangers of corporate speech articulated in Austin, supra, and

relied on by Congress in crafting § 203 of the BCRA.® The

First Amendment rights of the ACLU ought not to be

sacrificed based on categorical assumptions about the

burdens imposed by § 203 that might well be disproved in an

as-applied challenge.

That is especially so because the MCFL criteria were

developed for nonprofit organizations that want to engage in

“express advocacy” by taking positions in partisan political

races. This Court’s embrace of the MCFL option in

McConnell rested on the premise that “electioneering

communications” were the functional equivalent of “express

advocacy.” When that premise does not apply, as it does not

for “genuine” issue ads, the MCFL analogy becomes less

relevant in assessing the burden on organizations like the

ACLU.

C. An As-Applied Challenge To § 203 Could Be Framed

In A Variety Of Ways

Appellant has presented this Court with a traditional as-

applied challenge. It concedes that the ads at issue fall

within the literal language of § 203 but argues that the statute

unconstitutionally limits its speech in this instance because

the ads in fact are “genuine” issue ads rather than “sham”

* Under existing law in the District of Columbia Circuit, see FEC v.

National Rifle Association of America, 254 F.3d 173 (D.C.Cir. 2001),

and governing FEC regulations, 11 CFR § 114.10, the ACLU appears not

to qualify for an MCFL exemption because it has not returned the

exceedingly modest funds that have been contributed to the organization

in recent years from sources other than individuals. Regulating the

ACLU to relinquish these minimum funds without justification converts

the MCFL criteria into an unconstitutional tax on speech. See Murdock

v. Pennsylvania, 319 U.S. 105 (1943); Grosjean v. American Press Co.,

297 U.S. 233 (1936)

25

issue ads, and were intended to influence policy decisions

rather than electoral outcomes. If this Court agrees,

appellant is entitled to a remand or an outright reversal. To

affirm under these circumstances would be to sanction the

suppression of constitutionally protected speech without any

compelling justification. This Court should not endorse a

result that so plainly offends the First Amendment.

We suspect, although we do not know, that one

explanation for the district court’s opinion was a reluctance

to be placed in the position of reviewing the numerous as-

applied challenges to § 203 that it could probably anticipate.

That concern is understandable, and it applies to litigants as

well as the judiciary. The time and expense of judicial

proceedings is a problem for everyone. In particular, smaller

nonprofits that are least likely to engage in electoral

advocacy are also least likely to be able to afford the cost of

seeking declaratory and injunctive relief, especially on an

emergency basis. Having to seek judicial approval prior to

speaking is not a solution that anyone favors, but it is

preferable to the total denial of any opportunity to challenge

the government’s regulation of speech in a particular factual

setting.”

® In response to a Notice of Proposed Rulemaking from the FEC, the

BCRA’s sponsors submitted comments that set forth their version of

what speech could be allowed notwithstanding the categorical ban on

“electioneering communications” in § 203. Even the sponsors would

allow broadcast ads that (1) only concern a legislative or executive

branch matter; (2) only refer to a clearly identified candidate as part of a

statement urging the public to contact their representative about the

pending matter; (3) only refer to the candidate by title - eg., “your

congressman” or “your senator.” But to qualify for this exception, the

broadcast ads could not mention party affiliation, contain the name of

likeness of the federal official, or mention the candidate’s position on any

issue, including the issue that is the subject of the ad. See Letter from

Senator ae, et al. to the FEC a August 23, 2002), venga at

26

If speakers are denied the opportunity to bring an as-

applied challenge, they can always speak at their peril and

then raise a First Amendment defense to any enforcement

proceeding. Under those circumstances, however, many

organizations will choose not to speak. The FEC could

dissipate that chilling effect by clarifying its enforcement

policy. But, in the absence of clarification, this Court has

routinely allowed pre-enforcement challenges to discourage

self-censorship and preserve First Amendment rights. E.g.

Steffel v. Thompson, 415 U.S. 452, 459 (1974). It should do

so here, as well.

An as-applied challenge that focused on the speaker

rather than the speech is another alternative. In all

likelihood, it would reduce the number of potential

challenges and perhaps lead to more predictable results.

That is the approach this Court followed in MCFL, and it is

also the approach this Court followed in Brown v. Socialist

It is hard to believe that the ACLU’s First Amendment right to speak can

or should hinge on whether its broadcast ad says “Contact your Senator”

or “Contact Senator McCain.” Similarly, it is hard to believe that the

First Amendment permits the government to tell the ACLU that it can

broadcast an ad saying “Ask your congressman to vote against the Flag

Amendment,” but that the ACLU is subject to criminal prosecution if its

ad copy says “Ask you congressman to switch his vote from yes to no on

the Flag Amendment.”

For present purposes, however, it is sufficient to note that the

government can have no possible justification for barring ads that even

the BCRA’s sponsors admit would not imperil the underlying purposes

of § 203. On the other hand, it is unfair to ask potential speakers to rely

on a three year old letter from members of Congress who are not

ultimately responsible for enforcing the BCRA’s provisions. Given

McConnell, the only way to resolve this conundrum is through an as-

applied challenge.

27

Workers °74 Campaign Committee (Ohio), 459 U.S. 87

(1982)(recognizing an organizational exception to campaign

disclosure rule based on a reasonable fear of retaliation).

The ACLU, as noted previously, has never endorsed a

candidate for elective office in its 85-year history. It should

not have to go to court merely to continue doing what it has

always done — namely, engage the public in a discussion

about civil liberties, whether that discussion is provoked by

events occurring before, during, or after an election.

However, if the ACLU does go to court with an as-applied

challenge to obtain the protection of a judicial order its

history should entitle it to a presumption that its broadcast

ads are “genuine” issue ads and thus not subject to § 203.

Conversely, if the government initiates its own enforcement

proceeding, it should have to shoulder the burden of proving

that the ACLU has suddenly departed from its long and

consistent nonpartisan past.

Finally, this Court can and should take the opportunity

to reconsider its holding on the Snowe-Jeffords Amendment.

The Snowe-Jeffords Amendment was adopted as § 203(b) of

the BCRA. Contrary to the seemingly absolute language of

§ 203(a), it permitted nonprofit corporations organized under

§ 501(c)(4) of the Internal Revenue Code, like the ACLU, to

engage in “electioneering communications” if those

com. iunications were funded by individuals and governed

by certain disclosure rules. Section 204 of the BCRA,

known as the Wellstone Amendment, then negated what the

Snowe-Jeffords Amendment had seemingly allowed by

reinstating the prohibitions of § 203(a) for § S01(c)(4)

corporations.

In McConnell, this Court ruled that the Wellstone

Amendment was controlling as a matter of legislative intent,

subject to the judicially-imposed caveat that it could not

apply to MCFL corporations. That decision may well have

been correct as a matter of legislative construction. But, as a

matter of First Amendment law, the Snowe-Jeffords

28

Amendment provides a more narrowly tailored response to

the asserted congressional interests by leaving IRS in charge,

as it has always been, of policing the line between

permissible and impermissible partisan activity by nonprofit

entities. Congress got it right when it first drafted the

Snowe-Jeffords Amendment and the Court is now in ¢

position to say so. As applied to § 501(c)(4) nonprofit

corporations, the BCRA’s ban on “electioneering

communications” goes farther than it needs to go.

29

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

Mark J. Lopez

AMERICAN CIVIL

LIBERTIES UNION

125 Broad Street

New York, NY 10004

212- 549-2500

Joel M. Gora

Brooklyn Law School

250 Joralemon Street

Brooklyn, NY 11201

718-780-7926

30