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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0102%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 410

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0102%3A09. Public record. Not legal advice.