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

‘LED ”

No. 04-1581 NOV 14 2005

IN THE OTR cen

Supreme Court of the United States

WISCONSIN RIGHT TO LIFE, INC.,

Appellant,

Vv.

FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF ALLIANCE FOR JUSTICE, AS

AMICUS CURIAE IN SUPPORT OF APPELLANT

RUTH EISENBERG *

JOHN POMERANZ

HARMON, CURRAN, SPIELBERG

& EISENBERG, LLP

1726 M Street, N.W.

Suite 600

Washington, D.C. 20036

(202) 328-3500

B. HOLLY SCHADLER

LICHTMAN, TRISTER & ROSS,

PLLC

1666 Connecticut Avenue, N.W.

Suite 500

Washington, D.C. 20009

(202) 328-1666

* Counsel of Record Counsel for Amicus Curiae

—

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WasHinGTON, D. C. 20001

® <> 60

TABLE OF CONTENTS

BALES Gr Fee a I eercenscnsscennencaneqnscnciinsincmniees

PE CI Da cencectntisisrnsinncininaiapediaiinsobennenan

SUMMARY OF ARGUMENT ......0.......:ccceccesseeeeesseeens

GRIT ccisicclctccceseibiinsnicittcninisiivasninsthaietipenihiiitanaiceteanions

II.

Election Laws That Restrict Speech Are

Permitted Only To The Degree That The

Threat Of Corruption To The Political Process

Is Found To Be A Compelling Governmental

Interest As Applied To The Communications

Bs SIS incectesissihsiisictuisitentipntiinnctibiinidakctipaibabbibaiies :

A. The Court has said that the threat of

corruption of the political process justifies

some restrictions on electoral speech by

some corporations and unions ...................5.

B. This court has narrowly construed or

partially invalidated statutes that are over-

broad for their failure to demonstrate a

compelling governmental interest in regu-

lating constitutionally protected speech ......

The Breadth Of BCRA’S Definition Of

Electioneering Communications Could Either

Chill Or Lead To Future Legal Challenges

In Support Of A Variety Of Broadcast

I in ciicvinticincnltbidedainitieaiiastntianiiies

A. Representative examples of potential elec-

tioneering communications abound.............

B. It is likely that organizations will desire or

seek to air similar broadcast advertise-

ments during the electioneering commu-

nications blackout periods ................0.ce00000+

(1)

il

TABLE OF CONTENTS—Continued

Page

Ill. BCRA’S Restrictions On Broadcast Commu-

nications Are Unconstitutional As Applied To

Communications Funded Solely By Individu-

als And Aired By Organizations Not Formed

Primarily For Commercial Or Economic

POT ssicicciisarininccccislbiinaiiapiceenmieaisainideiansitisiaiadtadianeib 16

A. Using individual funds prevents corporate

a icisineceihiseciitncnineninitidetiejnsacteiaiiadbian 17

B. Corporate money’s power to corrupt the

political process is largely absent when the

corporation is not formed for commercial

OF ECONOMIC PULPOSES .............cecceeeeeseeeeeneeees 18

C. Requiring appellant to create a new form

of entity is overly burdensome and thus not

“necessary” even if a compelling govern-

mental interest could be identified............... 20

IV. BCRA’S Restrictions On Broadcast Commu-

nications Are Also Unconstitutional As

Applied To Communications Aired By

Organizations Exempt From Federal Income

Tax Under IRC Section 501(c)(3) .............c:000 24

V. BCRA’S Restrictions On Broadcast Commu-

nications Are Also Unconstitutional As Applied

To Communications Funded Solely By

Individuals And Where The Content Of The

Communication Concerns A Specific Legis-

‘lative Or Administrative Policy Proposal............ 25

eS DUTNT piniecriicnenpnineinepnpiiinicigicntsiagiianedionisianisiag capidamnaniinen 29

*“**

TABLE OF AUTHORITIES

CASES Page

Austin v. Michigan State Chamber of Commerce,

IE Ge Ce wectrnchcitimrpnniiensitcnstitesia 6, 19-20, 27

Broadrick v. Oklahoma, 413 U.S. 601 (1973)....... 8

Buckley v. Valeo, 424 U.S. 1 (1976)............200- 5-6, 17

Clean Elections Institute, Inc. v. Brewer, 99 P.3d

IE, TITER sctcisviseteneditnientnccintsdecaaenenicsonsin 10

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

ID cc'ncisdicitiingabeciiteninspeasdniaidiicianaiubiaaiilinaionnn passim

First Nat'l Bank of Boston v. Bellotti, 435 U.S.

a iacithi:cecsscissiiltiy hadiihanidcbihpaisinsaiasiincsidaahin 26-27

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ... 27

Kusper v. Pontikes, 414 U.S. 51 (1973) .......... 26

Lorillard Tobacco Co. v. Reilly, 533 U.S. $25

SINTER ciccilghien abe bacco taeseihbaspdiescinincicel 5

McConnell v. FEC, 540 U.S. 93 (2003)............ 3, 7, 8, 26

Mcintyre v. Ohio Election Comm., 514 U.S. 334

TUT clicks srihisnicicsobiedihadiiihdlcilaciaalgapedasvasdinadaelytiaieiionibit 25

Mills v. Alabama, 384 U.S. 214, 218 (1966)......... 26

NAACP v. Alabama ex rel. Patterson, 357 U.S.

i ihctnictinteticivinsiidtuianiccepstaianes peitcinoetepeete 26

NAACP vy. Button, 371 U.S. 415 (1963) ........0....... 5

New York Times Co. v. Sullivan, 376 U.S. 254

CE ixinsnssisccbeencitenlasnciichdnsiepciannaonlbitinianabalaiesabinanbbdiabied : 26

Regan v. Taxation with Representation of

Washington, 461 U.S. 540 (1983) .........eeeeeee 21

Roth v. United States, 354 U.S. 476 (1957)........... 25

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004),

aff'd, 414 F.3d 76 (D.C. Cir. 2005)................... 13, 24

Williams v. Rhodes, 393 U.S. 23 (1968)................ 5

STATUTES, CONSTITUTIONAL PROVISIONS,

AND REGULATIONS

Ss is TI Bic eniraisitccteinnsemensmnimiiinieeententctiniin passim

iV

TABLE OF AUTHORITIES—Continued

Page

2 SATE, © Ge itceesitecectnivatichcniectinsriatiiieieiceeiaidaial 3,11

PUTAS GOI wieiscsctiocscitsininissivinindapieaihaniosvelosmiauiaaas 2, 18

Be PE lars BS Fee ivininscktontctietcinaitciaeiaimaialadinaal passim

26 U.S.C. § SO1(C)(4) ....ceceeceeeteceeeeeeeees 10, 11, 21, 22, 23

Bipartisan Campaign Reform Act of 2002, Pub.

L. No. 107-155, 166 Stat. 81 2.0.0... cece eeeeeee passim

BE CP RR, © SD Be ctvcntinincssiheiscisinitceiinileiaeiii 24-25

11 C.F.R. § 114.100.000.000... psec 22

OTHER AUTHORITIES

James Bopp, Jr. & Richard E. Coleson, The First

Amendment is Still Not a Loophole: Examining

McConnell’s Exception to Buckley's General

Rule Protecting Issue Advocacy, 3\ N. Ky. L.

ROY: Bele CAD inintiansniniccinsnstinensibaianionsiienia 22-23

Comments of the American Cancer Society to

the FEC on the Proposed Rules Regarding

Electioneering Communications (Notice 2005-

20) (September 30, 2005) ............ccceceeeeeeeeeeeeeees 15

Congressional Record, Daily Edition, February

Fi, SET scviscivininintiiinesnnttiienidilgnesinaiiinianniadiatansitiis 14

Congressional Record, Daily Edition, May 6,

FIT sic. nseecciiiniysintlaiiieiabisiiialediaatebiniatammiiuitenianmh 14

FEC Advisory Opinion 2004-14............ccececeeeeeees 13

Electioneering Communications (Notice 2005-

20), 70 Fed. Reg. 49,508 (Aug. 24, 2005)......... 24-25

http://clerk.house.gov/evs/2004/ROLL_500.asp... 14

http://www.azclean.org/documents/PR-McCain

PA i iinirsssncsrsassenssincisesioninisinipadatsiiiliiniiemebanialadal 10

http://www. focusaction.org/activities/a0000069.c

alii. <xssccniinesinyededsiontnianttligeeintnipasabmnibudndiimmniiadunmunsaaiiel 11

http://www.aaiusa.org/PDF/Fall_01 .pdf................ 12

http://ad.council.org/about/news_100101 ............. 12

Vv

TABLE OF AUTHORITIES—Continued

Page

http://www.alzoc.org/home.asp?seltopic |=10&se

TTT sistciicindduniisitnpisbavapebedidianiddnceonbeeneencees 13

http://www. familypride.org/site/apps/nl/content2.a

sp?c=bhK PI7PFImE&b=55 1 485&ct=704195.... 12

http://www.savearcticrefuge.org/ads.html............. 11-12

http://www.senate.gov/legislative/LIS/roll_call_

lists/vote_menu_108_2.htm.........0.000000000000000eeee. 14

http://www.teenpregnancy.org/resources/reading/

I dni cenitsienierttbociiaineebinbigniinnesenion 13

http://wwwe.house.gov/timbishop/issues | .htm..... 12

IN THE

Supreme Court of the United States

No. 04-1581

WISCONSIN RIGHT TO LIFE, INC.,

Appellant,

Vv.

FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF ALLIANCE FOR JUSTICE, AS

AMICUS CURIAE IN SUPPORT OF APPELLANT

INTEREST OF AMICUS

Amicus Alliance for Justice is a national association of

environmental, civil nights, mental health, women’s, children’s,

and consumer advocacy organizations.' These organizations

and their members support legislative and regulatory meas-

ures that promote political participation, judicial independ-

ence, and greater access to the public policymaking process.

Alliance for Justice and most of its members are charitable

organizations that are exempt from federal income tax under

' Counsel for each party has consented to the filing of this brief. No

counsel for a party authored this brief, in whole or in part. No person or

entity other than Amicus made a monetary contribution to the preparation

or submission of this brief.

2

Section 501(c)(3) of the Internal Revenue Code (“IRC”). A

significant number of these members also work with or are

affiliated with other types of nonprofit organizations that

promote their views not only through public education and

advocacy on public policy issues but also in the electoral

process.

On matters of public policy, Alliance for Justice consis-

tently takes positions that sharply contrast with Appellant

in this case, and Alliance for Justice has itself produced

broadcast advertisements supporting the important role of the

Senate in considering the President’s nominees to the federal

bench. Despite differences on public policy issues, Alliance

for Justice shares with Appellant the position that each or-

ganization has a First Amendment right to vigorously put its

views on public policy matters before the public.

That belief in the intrinsic value of unfettered public debate

in the public policy arena is central to Alliance for Justice’s

mission. Alliance for Justice works to increase the involve-

ment of all types of tax-exempt organizations in the policy-

making process by helping them understand and comply with

sometimes complex federal tax and election laws governing

these activities. Alliance for Justice supports nonprofit advo-

cacy through plain language guides to the laws governing

nonprofit advocacy, workshops for nonprofit organizations,

and individualized technical assistance. Alliance for Justice

also monitors legislative and regulatory activity, providing

information to the nonprofit community and lobbying on

proposed policy issues related to nonprofit advocacy.

During the congressional debate on the Bipartisan Cam-

paign Reform Act of 2002, Pub. L. No. 107-155, 166 Stat. 81

(“BCRA”), Alliance for Justice expressed its concerns to

BCRA’s congressional sponsors and other members of Con-

gress that the law’s broadly drafted restrictions on “election-

eering communications,” BCRA § 203, 2 U.S.C. § 441 b(b)(2),

3

would sweep in constitutionally protected speech.? However,

Alliance for Justice did not seek to participate in the facial

challenge to these provisions of BCRA, McConnell v. FEC,

540 U.S. 93 (2003), in part because the communications Alli-

ance for Justice sought to protect were not squarely before the

Court. Alliance for Justice submits this brief because the

Court is now presented with speech that BCRA may not

regulate consistent with the First Amendment because there is

no compelling governmental interest that justifies the regula-

tion. Amicus urges the Court to rule that such speech may not

be restricted under the Constitution and to set out clear

standards to protect the speech of independent organizations.

SUMMARY OF ARGUMENT

Under the strict scrutiny with which this Court examines

restrictions on speech, this Court may only uphold a law as

applied to particular communications to the degree that the

government can demonstrate the restriction is necessary to

achieve a compelling governmental interest. This Court has

found that the threat of corruption to the political process

justifies such restrictions as applied to some speakers and

some communications, but the Court has also exercised its

authority to construe narrowly statutes to protect speakers or

speech that does not pose that risk.

In examining the broadcast communications that might fall

within BCRA’s technical definitions of electioneering com-

munications and are similar to the ads challenged in this case,

? Specifically, this section of BCRA prohibited corporations or unions

from using general treasury funds to pay for “electioneering communi-

cations,” which were defined at Section 201 as certain broadcast com-

munications identifying a candidate for federal office aired within 30 days

of a primary election or nominating convention or 60 days of a general

election. BCRA § 201, 2 U.S.C. § 434(f)(3). Amicus does not challenge

as unconstitutional the application of the disclosure provisions imposed

on electioneering communications at Section 201. BCRA § 201, 2 U.S.C.

§ 434(1)-(2).

4

it is clear that many organizations apparently subject to the

law’s limits on electioneering communications have a legiti-

mate First Amendment desire and need to air those communi-

cations. However there is no showing that the government’s

compelling interest in preventing corruption justifies the

application of BCRA’s restrictions to those communications.

Amicus offers and discusses three independent classes of

broadcast communications that BCRA may not constitution-

ally regulate because there is no compelling governmental

interest to justify such regulation:

BCRA’s restrictions on broadcast communications

may not be applied to broadcast communications

funded solely by individuals and aired by organiza-

tions not formed primarily for commercial or eco-

nomic purposes because the government may not

constitutionally restrict individual expressive expen-

ditures and the nature of the organizations demon-

strates that the use of these funds accords with its

donor’s views.

BCRA’s restrictions on broadcast communications

may not be applied to communications aired by

organizations exempt from federal income tax under

IRC Section 501(c)(3) because these organizations

do not engage in the types of activities that might

justify governmental restrictions on speech.

BCRA’s restrictions on broadcast communications

may not be applied to communications funded solely

by individuals and concerning a specific legislative

or administrative policy proposal because of the spe-

cial constitutional protections afforded both individ-

ual expression and speech concerning matters of

public policy.

The narrow test proposed by Appellant, although sufficient

to provide Appellant with relief, fails to adequately protect

these types of broadcast communications. Instead, Amicus

5

respectfully urges the Court to provide a ruling that clearly

permits protected speech that might otherwise be chilled and

thus reduces the necessity for future as-applied challenges.

ARGUMENT

I. Election Laws That Restrict Speech Are Permitted

Only To The Degree That The Threat Of Corrup-

tion To The Political Process Is Found To Be A

Compelling Governmental Interest As Applied To

The Communications In Question.

In considering attempts by the government to restrict

speech through federal election laws, this Court exercises

strict scrutiny, and any restrictions must be necessary to

achieve a compelling governmental interest. Lorillard To-

bacco Co. v. Reilly, 533 U.S. 525, 582 (2001); Williams v.

Rhodes, 393 U.S. 23, 31 (1968); NAACP v. Button, 371 U.S.

415, 438 (1963). Although the Court has found that some

election laws survive strict scrutiny under the First Amend-

ment, the Court has limited statutes that would have restricted

speech that does not threaten to corrupt the political process.

A. The Court had said that the threat of corrup-

tion of the political process justifies some re-

strictions on electoral speech by some corpora-

tions and unions.

This Court has focused on the risk of corruption of the

political process as the justification for campaign finance

laws restricting speech.

In Buckley, this Court upheld the statute’s limit on political

contributions based on the compelling interest of the need to

“limit the actuality and appearance of corruption.” Buckley v.

Valeo, 424 U.S. 1, 26 (1976). The Court used the corruption

rationale to uphold the statute’s restrictions on campaign

contributions but found that rationale insufficient to uphold

the statute’s expenditure limits where there was less “danger

6

that expenditures will be given as a quid pro quo for improper

commitments from the candidate.” Buckley, 424 U.S at 26-

29; 39-52 (1976).°

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

(1986) (“MCFL”), this Court described its rationale for hold-

ing that restrictions on corporate political spending were

generally justified by the possibility of corruption through the

legal advantages that permit business corporations to amass

funds. Such restrictions were permitted, it stated, because of

the need:

to restrict “the influence of political war chests funneled

through the corporate form”; to “eliminate the effect of

aggregated wealth on federal elections”; to curb the

political influence of “those who exercise control over

large aggregations of capital”; and to regulate the “sub-

stantial aggregations of wealth amassed by the special

advantages which go with the corporate form of

organization.”

It further noted that:

Direct corporate spending on political activity raises the

prospect that resources amassed in the economic market-

place may be used to provide an unfair advantage in the

political marketplace. Political “free trade” does not

necessarily require that all who participate in the politi-

cal marketplace do so with exactly equal resources.

Relative availability of funds is after all a rough barome-

ter of public support. The resources in the treasury of

> Justice Stevens has been fess persuaded by the Court’s distinction

between contributions and expenditures, finding that the danger of quid

pro quo exists in both circumstances. See, Austin v. Mich. State Chamber

of Commerce, 494 U.S. 652, 678 (1990) (Stevens, J., concurring). Justice

Stevens would, however, draw the line between restricting lobbying on

matters of public policy and attempts to influence elections for public

office. /d. Under this approach as well, Appellant's communications

should be spared from BCRA’s electioneering communications restric-

tions, as discussed infra in Section V of this brief.

7

a business corporation, however, are not an indication

of popular support for the corporation’s political ideas.

They reflect instead the economically motivated deci-

sions of investors and customers. The availability of

these resources may make a corporation a formidable

political presence, even though the power of the corpora-

tion may be no reflection of the power of its ideas.

4/9 US. at 257-58 (citations omitted).

In upholding BCRA’s electioneering restrictions against a

facial challenge, the Court in McConnell relied on this same

concern for avoiding corruption of the system. The McConnell

Court cited its previous election-law decisions to uphold the

“legislation aimed at ‘the corrosive and distorting effects of

immense aggregations of wealth that are accumulated with

the help of the corporate form and that have little or no cor-

relation to the public’s support for the corporation’s political

ideas.”” McConnell, 540 U.S. 93, 205 (quoting Austin, 494

U.S. at 660). *

B. This court has narrowly construed or partially

invalidated statutes that are overbroad for

their failure to demonstrate a compelling

governmental interest in regulating consti-

tutionally protected speech.

As reflected above, the Court’s most extensive discussion

of the threat that amassed corporate wealth poses to the

political system was in its decision in MCFL. Yet MCFL

ultimately found that the Constitution required the Court to

limit the reach of the statute in question because it was

overbroad as applied to Massachusetts Citizens for Life.

Because of the nature of the organization, there was no threat

that wealth amassed for commercial purposes would be

“Even Appellee FEC acknowledges “the statute’s anti-corruption pur-

poses” and the “federal interest in preventing actual or apparent electoral

corruption.” Motion to Dismiss at 16, 18.

8

perverted to skew the political system. The Court was

explicit:

Groups such as MCFL, however, do not pose that danger

of corruption. MCFL was formed to disseminate politi-

cal ideas, not to amass capital. The resources it has avail-

able are not a function of its success in the economic

market-place, but its popularity in the political market-

place. While MCFL may derive some advantages from

its corporate form, those are advantages that redound to

its benefit as a political organization, not as a profit-

making enterprise. In short, MCFL is not the type of

“traditional corporatio[n] organized for economic gain”

that has been the focus of regulation of corporate

political activity. MCFL, 479 U.S. at 259 (quoting FEC

v. Nat’l Conservative Political Action Comm., 470 U.S.

480, 500 (1985)).

For these reasons, the Court in MCFL exercised its judicial

authority to create “a limiting construction or partial invalida-

tion [to narrow the law and] remove the seeming threat

or deterrence to constitutionally protected expression.” Broad-

rick v. Oklahoma, 413 U.S. 601, 613 (1973). Similarly, in

McConnell, the Court limited the construction of BCRA’s

electioneering communications restrictions by exempting

“MCFL organizations.” McConnell, 540 U.S. at 211.°

As a result, the BCRA limitations on the broadcast commu-

nications featuring federal candidates that are at issue in this

case can only survive if the government can show that these

restrictions are necessary to prevent corruption of the political

system.

* This is not the only evidence that McConnell did not foreclose as-

applied challenges to BCRA. Alliance for Justice concurs with Appel-

lant’s arguments that such as-applied challenges to BCRA are permitted

and constitutionally necessary. Alliance for Justice understands that future

as-applied challenges will arise, and Amicus encourages this Court to

define other areas of constitutionally protected speech as organizations

with concerns differeat than those of Appellant seek relief.

9

II. The Breadth Of BCRA’s Definition Of Electioneer-

ing Communications Could Either Chill Or Lead

To Future Legal Challenges In Support Of A

Variety Of Broadcast Communications.

Appellant’s challenge asks the degree to which Congress

may constitutionally forbid corporations and unions from

using their funds to broadcast at certain times messages

featuring individuals who are federal candidates. This issue

potentially arises in countless broadcast communications

made by groups across the political spectrum to contribute to

the public debate on social and policy issues. Absent a ruling

from this Court setting forth the Constitutional parameters of

acceptable regulation of these communications, numerous

organizations will be faced with the choice of mounting their

own as-applied challenges to BCRA or of foregoing protected

speech because of the burdensome expense involved in

t bringing such challenges.

A. Representative examples of potential election-

eering communications abound.

As set forth below, a variety of organizations have pro-

duced numerous examples of broadcast communications in

which federal elected officials have been identified in some

manner. None of these broadcasts violated BCRA’s restric-

tions on electioneering communications because they appear

aired either prior to the effective date of BCRA or

outside of BCRA’s blackout period for electioneering com-

munications.° Each of these examples is an illustration of a

broadcast communication that is not one of the so-called

“sham issue ads” that BCRA sought to regulate, but BCRA

*It has not been possible for Amicus to determine when or even

whether every one of these broadcast messages actually aired, particularly

the public service announcement (“PSAs”) (see discussion below), al-

though Amicus has no reason to doubt that most of them were broadcast

and that they aired outside of BCRA-restricted blackout periods.

10

would nonetheless prohibit a corporation or union from

running the communications during a blackout period.

Lobbying and Similar Public Policy Advocacy

In 2002, Senator John McCain of Arizona, a chief

sponsor of BCRA at the federal level, appeared in

television advertisements produced by Arizona’s

Clean Elections Institute, a 501(c)(3) organization

supporting Arizona’s public financing system

for state elections. See http://www.azclean.org/

documents/PR-McCainPSA.pdf (press release de-

scribing the adj (last visited November 8, 2005).’

Arizona’s public financing system had been adopted

through a state referendum in 1998, and the McCain

ads were designed to encourage Arizonans to support

the program with voluntary contributions. Senator

McCain was not up for reelection in 2002; however,

he was facing the voters in 2004 when opponents of

the Arizona public financing system tried to put a

measure repealing the system on the ballot. A court

decision prevented the measure from appearing on

the ballot, Clean Elections Institute, Inc. v. Brewer,

99 P.3d 570 (Ariz. 2004), making unnecessary

possible advertisements by Senator McCain in fur-

ther support of the public financing system during

the electioneering communications blackout period.

In 2005, the organizations Focus on the Family

Action and FRC Action (1.R.C. Section 501(c)(4)

affiliates of the 501(c)(3) organizations Focus on the

Family and the Family Research Council) ran radio

advertisements in states represented by more than

’ For the convenience of the Court and the parties, Amicus has created

and will maintain a web page offering hyperlinks to all URLs referenced

in this brief at www.harmoncurran.com/WIRTL. An electronic copy of

this brief will also be available on this website. Only information that has

been filed with this Court and served on the parties to this case will appear

on this page.

11

twenty moderate Republican and Democratic sena-

tors in an effort to stop the use of the filibuster as

part of the Senate’s consideration of a handful of

nominees to the federal bench. See http://www.focus

action.org/activities/a0000069.cfm (describing and

providing links to the radio ads as well as a coordi-

nated print ad campaign) (last visited November 8,

2005). The Senators named in the ads were per-

ceived by organizations on both sides of the issue as

key votes in determining whether an effort to end

such filibusters would succeed.

e In the spring of 2005, Alliance for Justice Action

Campaign (the 501(c)(4) affiliate of Amicus) aired a

television advertisement featuring Senator Harry

Reid of Nevada decrying stated plans by some Sena-

tors to change Senate rules and prevent filibusters

during consideration of judicial nominees.

e In 2005, as the House of Representatives considered

legislation to permit drilling for oil in the Arctic

Wildlife Refuge, Defenders of Wildlife, the Alaska

Coalition of New Jersey, and the New Jersey Chapter

of the Sierra Club ran television ads that were capable

of being received by more than 50,000 people in the

districts of each of the five specific members of

Congress from New Jersey. * See http://www.save

* BCRA’s definition of electioneering communications requires that

they be “targeted to the relevant electorate” which means, in turn, that

they are capable of being “received by 50,000 or more persons” in the

district or state the candidate seeks to represent. BCRA § 201, 2 U.S.C.

§ 434(f}(3)(C). There is no way to be certain whether all of the examples

featured in this brief met this requiremert. However, organizations pro-

ducing such ads will almost certainly choose to distribute them where the

spokesperson has greater recognition among viewers or listeners. Simi-

larly, individual broadcasters deciding whether to air such ads may like-

wise be more motivated to run ads featuring the local member of Con-

gress. Thus, it is likely that advertisements produced for a national audi-

ence will be heard or viewed by the requisite 50,000 people in the

jurisdiction represented by the officeholder.

12

arcticrefuge.org/ads.html (links to the ads and coor-

dinated print ads) (last visited November 8, 2005).

The members of Congress featured were perceived as

likely swing votes on the issue.

e Congressman Barney Frank of Massachusetts re-

corded a broadcast advertisement for the 501(c)(3)

Family Pride Coalition in the Spring of 2005 that

criticized U.S. Department of Education Secretary

Margaret Spellings for threatening to cut funding for

a PBS children’s television show that featured the

child of a lesbian couple. See http://www.family

pride.org/site/apps/nl/content2.asp?c=bhK PI7PFImE

&b=551485&ct=704195 (press release describing

the ad) (last visited November 8, 2005).

Public Service Announcements

e Immediately after the attacks of September 11, 2001,

Senator John McCain of Arizona recorded a PSA for

the Arab American Institute (a 501(c)(4) organiza-

tion) to encourage all Americans not to discriminate

against Arab and Muslim Americans in response to

the attacks. See http://www.aaiusa.org/PDF/Fall_

Ol.pdf at 2 (newsletter article about the PSAs) and

http://www.adcouncil.org/about/news_100101 (press

release about the PSAs) (last visited November 8,

2005).

e Congressman Tim Bishop of New York recorded a

PSA for the American Cancer Society (a 501(c)(3)

organization) highlighting October as Breast Can-

cer Awareness Month. See http://wwwc.house.gov/

timbishop/issues1.htm (Congressman Bishop’s web-

site featuring a link to the ad under the entry for

October 27, 2005) (last visited November 10, 2005).

Although it appears that the PSA was recorded to air

in 2005, the ad is not scripted for a particular year

and could well be aired in Congressman Bishop’s

district during October of 2006, a month before the

2006 congressional elections.

13

e Congressman Christopher Cox of California ap-

peared in a PSA for the Alzheimer’ Association

of Orange County (a 501(c)(3) organization). See

http://www.alzoc.org/home.asp?seltopic 1 =10&selcate

gory|=64 (Congressman Cox’s website featuring a

link to the ad) (last visited November 8, 2005).

e Senator Harry Reid of Nevada recorded a PSA for

the National Campaign to Prevent Teen Pregnancy

(a 501(c)(3) organization) to promote May 2002

as National Teen Pregnancy Prevention Month. See

http://www.teenpregnancy.org/resources/reading/audio

visual.asp (Campaign website featuring link to Reid

ad in listings for 2002) (last visited November 8,

2005).

Fundraising Efforts

e In 2004, the National Kidney Foundation (a 501(c)(3)

organization) aired radio ads featuring Congressman

Tom Davis promoting a charity golf tournament to

raise funds for the Foundation. Congressman Davis

sought and received an advisory opinion from the

FEC permitting him to appear in these ads. FEC

Advisory Op. 2004-14. The FEC relied on a regula-

tion exempting unpaid advertising from the defini-

tion of “electioneering communications,” a regula-

tion that was subsequently struck down in Shays v.

FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff'd, 414

F.3d 76 (D.C. Cir. 2005). The FEC opinion had

noted that ad would also have been exempt because

it ran a week outside of the statutory time window.

B. It is likely that organizations will desire or seek

to air similar broadcast advertisements during

the electioneering communications blackout

periods.

There is compelling evidence that organizations, including

Appellant in this case, would wish and need to broadcast

communications on matters of public or social policy that

14

identify a federal candidate, such as those in the examples

above, within the statutory 30- and 60-day timeframes pro-

vided under BCRA. ‘

It is particularly likely that broadcast communications for

purposes of lobbying on legislative and administrative actions

must air during the blackout periods in order to be effective.

The blackout periods are frequently periods of intense legisla-

tive activity. Between September 4 and Election Day, 2004,

over 100 roll call votes were taken in the United States House

of Representatives. See http://clerk.house.gov/evs/2004/

ROLL_500.asp (last visited November 7, 2005). The Senate

took nearly 50 roll call votes. See http://www.senate.gov/

legislative/LIS/roll_call_lists/vote_menu_108_2.htm (last vis-

ited November 7, 2005). All of these votes were taken during

the 60-day period prior to the election when electioneering

communications were prohibited. The issues addressed in the

legislation, including welfare reform, a constitutional amend-

ment on marriage, tort reform, and Department of Defense

and other agency appropriations, profoundly affect domestic

public policy. At the critical point of passage, BCRA de-

prives organizations of an essential tool—-broadcast media to

urge members of the public to contact particular wavering

legislators.”

* The disproportionate legislative activity that occurs during the black-

out periods imposed by BCRA is also evident from the numbers of bills

enacted into law by the United States House of Representatives and

Senate during election and non-election years: 300 in 2004 versus 198 in

2003; 241 in 2002 versus 136 in 2001. 149 Cong. Rec. D456 (daily ed.

May 6, 2003) (Résumé of Congressional Activity—First Session of the

One Hundred Seventh Congress); 149 Cong. Rec. D457 (daily ed. May 6,

2003) (Résumé of Congressional Activity—Second Session of the One

Hundred Seventh Congress); 151 Cong. Rec. D96 (daily ed. February 15,

2005) (Résumé of Congressional Activity-—First Session of the One

Hundred Eighth Congress; 151 Cong. Rec. D97 (daily ed. February 15,

2005) (Résumé of Congressional Activity—Second Session of the One

Hundred Eighth Congress).

15

In the context of PSAs, the decision of when to air the

PSA—-and avoid a BCRA violation—may not even be in the

hands of the organizations producing the ads: PSAs are usu-

ally produced and distributed by charitable and other organi-

zations, but when they are aired is typically at the discretion

of individual broadcasters. Many PSAs have no set “shelf

life,” and could be broadcast many months or years after they

are distributed, without the control or even knowledge of the

nonprofit that created and disseminated the ad. See, e.g.,

Comments of the American Cancer Society to the FEC on the

Proposed Rules Regarding Electioneering Communications

(Notice 2005-20) (September 30, 2005) at 2, at http://www.

fec.gov/pdf/nprm/electioneering_comm/comments/comm_9.

pdf (“ACS creates a PSA, and sends it to media outlets. ACS

does not retain control over whether and if a PSA is then used

or discarded.” (emphasis in original)).

Thus, as noted above, the American Cancer Society PSA

recorded by Congressman Tim Bishop highlighting October

as National Breast Cancer month could very well air in Octo-

ber 2006 as Congressman Bishop again goes before the vot-

ers. If so, the ad would violate BCRA’s mechanical defini-

tion of electioneering communications. Without resolution of

the constitutional issues presented in this case, the American

Cancer Society and other nonprofit organizations may be well

advised to forego constitutionality protected speech by no

longer asking federal officeholders to appear in PSAs. '°

'’ Even ceasing to use federal officeholders in PSAs does not com-

pletely eliminate the risk of a BCRA violation. As prominent people from

other spheres of life enter politics, an organization could run a risk asking

celebrities or community leaders who are not currently officeholders to

appear in their PSAs lest these individuals later decide to seek federal

office. The American Cancer Society comments discuss a print advertise-

ment in which then First Lady Hillary Clinton appeared urging individuals

to get colorectal cancer screening, an advertisement that was then un-

earthed and reprinted by the New York Post during Mrs. Clinton’s cam-

16

Absent relief from this Court, the likelihood is that most

organizations will simply decide not to produce or air these

broadcast communications during the blackout periods, de-

spite the desire and need to do so. Few organizations are like

Appellant in having both the doggedness and the resources

necessary to sustain an as-applied challenge to the statute.

Some will, but prudence would urge other groups to remain

silent. Their speech would be effectively cut off and their

ability to make broadcast communications restricted by

BCRA’s blunt tool.''

Both to prevent this possible chilling of protected speech

and to avoid burdening the courts with unnecessary as-

applied challenges, Amicus urges the Court in this case to

hold that BCRA’s definition of electioneering communica-

tions is unconstitutionally overbroad as applied to commu-

nications such as those presented by Appellant and those in

the examples presented here. Resolution of the issues raised

by the as-applied challenge in this case will provide guidance

to organizations communicating in the public arena about the

scope of their constitutionally protected speech

Ill. BCRA’s Restrictions On Broadcast Communica-

tions Are Unconstitutional As Applied To Commu-

nications Funded Solely By Individuals And Aired

By Organizations Not Formed Primarily For

Commercial Or Economic Purposes.

Appellant has indicated that it is a “nonprofit, nonstock,

ideological” corporation, and it indicates that it was willing to

paign for the U.S. Senate. The same issue could easily arise in the context

of the broadcast communications that BCRA regulates.

'' Appellee will argue that the restrictions on electioneering commu-

nications are not a ban but rather a requirement that such communications

not be made with funds from corporations or unions. The burdens dis-

cussed in more detail below make this an effective ban on such speech by

many organizations.

17

run the ads in question here “with money from a ‘segregated

bank account’ [containing] only donations from qualified

individuals.” Jurisdictional Statement at 6. The law’s com-

pelling governmental interest in preventing the corruption or

possibility of corruption created by the amassed power of

corporate wealth cannot be linked to a prohibition on elec-

tioneering communications to such an organization airing

broadcasts using only such funds. Accordingly, this Court

should find that BCRA’s restrictions on electioneering com-

munications are unconstitutionally broad as applied to these

communications.

A. Using individual funds prevents corporate

corruption.

Historically, the mghts of individuals have been favored

over the nights of corporations and unions because the Court

has held that individual expenditures pose less risk of corrupt-

ing the political system. For example, in Buckley, the Court

found that Congress may not constitutionally limit independ-

ent expenditures by individuals, even for communications

that constitute “express advocacy” for or against a candidate.

424 U.S. at 45-51. The Court found a strong constitutional

interest in protecting such speech and held that it did not

create a sufficient threat of corruption to justify the attempted

statutory restriction.

It is not clear why this preference for electoral spending by

individuals should be any less powerful in groups of individ-

uals. Yet, extending BCRA’s restriction on electioneering

communications to accounts comprised of funds solely from

individuals would prohibit a group of individuals from join-

ing together to say what one wealthy individual could say

alone.

Furthermore, the restrictions on aggregating individual

funds through corporations and unions, as opposed to other

forms, seems a victory of form over substance. BCRA per-

18

mits a partnership, a trust, or other unincorporated entity to

use funds derived solely from individuals to pay for elec-

tioneering communications. See BCRA § 203, 2 U.S.C.

§ 44 1b.

If, as discussed below, the Court believes that the political

expenditures of corporations and unions pose a greater threat

of corruption to the political system than those of individuals,

then requiring that the funds used to pay for electioneering

communications derive from individuals will address this

concern. Amicus is not suggesting that the organization

eschew all corporate and union funds but only that it pay for

electioneering communications from a segregated account

comprised solely of funds from individuals. No corporation

(even a non-commercial organization such as Appellant)

would be able to act as a conduit to spend otherwise prohibited

corporate or union funds for electioneering communications.

See MCFL, 479 U.S. at 262 (noting this issue and ruling that

disclosure requirements were sufficient to address it; here

Appellant offers to meet a higher standard of protection).

B. Corporate money’s power to corrupt the

political process is largely absent when the

corporation is not formed for commercial or

economic purposes.

Not all corporations are the same in their potential to skew

the political process through the exercise of corporate wealth

amassed for business purposes. As noted above, the Court

distinguished Massachusetts Citizens for Life because it “was

formed to disseminate political ideas, not to amass capital.”

MCFL, 479 U.S. at 259. In MCFL, the Court noted that

“fijndividuals who contribute to [an organization such as

Massachusetts Citizens for Life] are fully aware of its

political purposes, and in fact contribute precisely because

they support those purposes.” /d. at 260-61. The Court

rejected outright the idea that the concerns that justified

19

restrictions on other corporate speech were at all present for

such an organization:

It is not the case, however, that MCFL merely poses less

of a threat of the danger that has prompted regulation.

Rather, it does not pose such a threat at all. Voluntary

political associations do not suddenly present the specter

of corruption merely by assuming the corporate form.

Id. at 263.

This same rationale applies to any organization not formed

primarily for commercial or economic purposes. The indi-

viduals providing the organization with funds are not misled

about the organization’s purposes. The donor to the volun-

tary, nonprofit organization gives with a full understanding of

and support for the organization’s mission. '?

'? Amicus notes that there may be a similar distinction to be drawn

between the unions and for-profit corporations. In its consideration of the

constitutionality of election laws, this Court has followed the statutory

scheme set forth by Congress in treating unions and business corporations

in a similar manner. However Congress may have made that choice based

on politics rather than constitutional imperatives, seeking passage of

legislation by balancing the competing interests of management and labor.

Seen through the constitutional lens, there are cognizable differences

between business corporations and unions that justify greater protection

for union political activity. In many respects, unions-are more like the

voluntary associations discussed in MCFL than they are like business

corporations. As this Court noted in Austin:

{L]abor unions differ from corporations in that union members who

disagree with a union’s political activities need not give up full

membership in the organization to avoid supporting its political

activities. Although a union and an employer may require that all

bargaining unit employees become union members, a union may

not compel those employees to support financially “union activities

beyond those germane to collective bargaining, contract administra-

tion, and grievance adjustment.” An employee who objects to a

union’s political activities thus can decline to contribute to those

activities, while continuing to enjoy the benefits derived from the

union’s performance of its duties as the exclusive representative of

the bargaining unit on labor-management issues. As a result, the

20

Despite the Court’s guidance that voluntary nonprofit or-

ganizations are due more constitutional deference, Appellee

asserts that the bright-line nature of the electioneering com-

munications definition is a sufficient purpose standing alone

to uphold the statute against all as-applied challenges, even in

the absence of any possibility for systemic corruption. Motion

to Dismiss at 17. However, this Court in MCFL instructed

the FEC that when “the rationale for restricting core political

speech . . . is simply the desire for a bright-line rule[, it]

hardly constitutes the compelling state interest necessary

to justify any infringement on First Amendment freedom.”

MCFL, 479 U.S. at 263. The FEC’s already rejected argu-

ment falls especially flat when, as here, equally bright-line

tests that are not unconstitutionally overbroad are available.

C. Requiring Appellant to create a new form of

entity is overly burdensome and thus not

“necessary” even if a compelling governmental

interest could be identified.

Appellee has argued that Appellant could create a political

committee in order to air communications such as those at

issue in this case, and Appellee will no doubt also argue that

Appellant is free to become or create an MCFL organization

to broadcast these messages. As the discussion above shows,

because the government cannot show a threat of corruption

for non-commercial/non-economic organizations that use

funds derived from individuals, there is no constitutional

basis for the government to restrict speech in this way. In

addition, the requirement is more burdensome than neces-

sary to achieve any compelling governmental interest that

may exist.

funds available for a union’s political activities more accurately

reflects members’ support for the organization’s political views than

does a corporation's general treasury. Austin, 494 U.S. at 665-66

(citations omitted).

21

The burdens of creating a federal political committee are

significant. Chief among these is the contribution limit of

$5,000 per donor, an amount that has remained unchanged

since it was first imposed in 1976, resulting in a substantial

reduction in the real buying power of those funds due to

inflation. In addition, there are the detailed recordkeeping

and reporting requirements acknowledged by this Court as

burdensome in MCFL. MCFL, 479 U:S. at 253-56.'"° Finally

there are some organizations that perceive political commit-

tees as somehow too much a part of the “sordid” political

process, and many organizations would rather forego the op-

portunity to air broadcast advertisements rather than create an

affiliated political committee.

Unlike requiring a 501(c)(3) organization to form a

501(c)(4) lobbying affiliate, as suggested in the Court’s hold-

ing in Regan v. Taxation with Representation of Washington,

establ'shing a federal political committee presents a consider-

able burden. 461 U.S. 540 (1983). The court emphasized

in Regan that a 501(c)(3) organization was not denied the

right to engage in lobbying activities because establishing a

501(c)(4) affiliate “requires only that the two groups are

separately incorporated and keep records adequate to show

that tax-deductible contributions are not used to pay for

lobbying.” /d. at 544 n. 6 (emphasis added). A corporation,

whether organized under I.R.C. Section 501(c)(3) or 501(c)(4),

requires substantially the same recordkeeping and reporting,

and the Court did not find that dual structure overly burden-

some. However, the process of registering and operating in

compliance with registration, recordkeeping and reporting

requirements of the Federal Election Campaign Act is vastly

more complicated. Making this burden a requirement for

'? The district court in this case suggested that Appellant could create a

political committee despite the explicit warning from this Court in MCFL

against requiring the creation of a political committee to engage in

constitutionally protected speech. Mem. Op. 7.

22

running broadcast lobbying communications presents an

undue hardship.

Indeed some organizations—those operating under Section

50i(c)(3) of the tax code—may be reluctant to create an

affiliated political committee to avoid a perceived risk to the

organization’s tax-exempt status. Many 501(c)(3)s may be

justifiably concerned that creating a political committee regis-

tered with the FEC suggests impermissible campaign inter-

vention that would jeopardize their tax-exempt status.

Amicus takes the position that it would be permissible

under the federal tax code, for a 501(c)(3) public charity to

create a political committee if that committee was used solely

for 501(c)(3)-permissible purposes, such as airing the broad-

cast ads featuring federal candidates described above. Even if

they were willing to undertake the burdens discussed above,

however, many 501(c)(3)s would likely choose to avoid the

perceived risk of this uncharted legal territory and not create a

political committee. If a political committee is the vehicle

required to air these broadcast ads, most 501(c)(3)s would

simply not air them.

The burdens of operating as an MCFL organization are

likewise significant. In the wake of this Court’s ruling in

MCFL, Appellee FEC promulgated a regulation, 11 C.F.R.

§ 114.10, that sets out the standards the FEC will apply in

determining whether an organization qualifies as a so-called

“qualified nonprofit corporation.”'* The regulation requires

'* Alliance for Justice notes that the FEC’s requirements under Section

114.10 are more restrictive than this Court’s ruling in MCFL and subse-

quent cases in significant ways. For example, the regulation requires that

the organization qualify as exempt from federal income tax under IRC

Section 501(c)(4), a requirement nowhere stated in MCFL; and the regula-

tion forbids the “qualified nonprofit” from receiving even an insignificant

amount of funding from a business corporation, a position rejected by all

of the Circuit Courts that have addressed the issue. James Bopp, Jr. &

Richard E. Coleson, The First Amendment is Still Not a Loophole: Exam-

23

that the organization refrain from even incidental business

activities, such as sales of advertising in publications or

licensing the use of its name. The organization must not offer

its members any benefits such as insurance or group purchas-

ing programs that might serve as a disincentive from leaving

the organization. The organization must eschew all (or per-

haps all but a de minimis amount of—see note 14, supra)

corporate or union funding.

Amicus created a sister 501(c)(4) organization—Alliance

for Justice Action Campaign—several years ago. At the time

the organization gave serious discussion to operating as an

MCFL organization. Ultimately the burdens of complying

with the restrictions led Alliance for Justice Action Campaign

to operate as a more traditional 501(c)(4). Other organiza-

tions have made the same choice for the same reasons.

The standard Amicus proposes above—permitting non-

commercial organizations to broadcast electioneering com-

munications using individual funds—is both effective and

substantially less burdensome than BCRA’s restrictions on

the funds that may be used to pay for these communications.

Thus, even if this Court were to find a compelling govern-

mental interest in applying BCRA’s electioneering commu-

nications restrictions to Appellant, the statute would still be

overbroad under a strict scrutiny analysis for its failure to

narrow its restriction on speech to the constitutionally

required minimum.

For the failure to state a compelling governmental interest

and the failure to limit the restriction to only that which is

necessary, this Court should find that BCRA’s electioneering

communications provisions are unconstitutionally overbroad

as applied to broadcast communications funded solely by

ining McConnell’s Exception to Buckley's General Rule Protecting Issue

Advocacy, 31 N. Ky. L. Rev. 289, 322 n.174 (2004) (citations omitted).

24

individuals and aired by organizations not formed primarily

for commercial or economic purposes.

IV.BCRA’s Restrictions On Broadcast Commu-

nications Are Also Unconstitutional As Applied To

Communications Aired By Organizations Exempt

From Federal Income Tax Under IRC Section

501(c)(3).

Because of the unique requirement imposed by their tax-

exempt status, as discussed in more detail in Brief of OMB

Watch, et al., as Amici Curiae in Support of Appellant, there

is no rational governmental interest in restricting the use of

501(c)(3) treasury funds for broadcast ads that identify a

federal candidate. Alliance for Justice supports these Amici.

Whether or not this Court issues a ruling to protect the com-

munications described in Section III of this brief, any ruling

by this Court should not encumber the constitutional night of

501(c)(3) organizations to be free of BCRA’s restrictions on

electioneering communications.

Alliance for Justice does feel obliged to comment on fears

of the threat posed by those who would exploit a 501(c)(3)

exemption to engage in partisan activities forbidden to other

corporations under BCRA. It is worth noting that there has

been no evidence of such problems, despite the fact that there

currently is a regulatory 501(c)(3) exemption from BCRA’s

electioneering communications restrictions in effect (an

exemption that now, unfortunately, is in serious jeopardy).'°

'? The regulation, which Amici Alliance for Justice and OMB Watch,

among others, had sought in the rulemaking process, was successfully

challenged in court on procedural grounds, but the court allowed the

regulation to stand while the FEC conducted a new rulemaking. Shays v.

FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), affd 414 F.3d 76 (D.C. Cir.

2005). The FEC is now questioning whether it may promulgate a new

rule to retain the exception. Electioneering Communications (Notice

2005-20), 70 Fed. Reg. 49,508 (Aug. 24, 2005).

25

11 C.F.R. § 100.29(c)(6). Furthermore, any restriction that

sought to regulate the speech of all 501(c)(3)s in an attempt to

control a small minority of scofflaws would surely be a prime

candidate for a constitutional challenge based on overbreadth.

V. BCRA’s Restrictions On Broadcast Commu-

nications Are Also Unconstitutional As Applied To

Communications Funded Solely By Individuals

And Where The Content Of The Communication

Concerns A Specific Legislative Or Administrative

Policy Proposal.

As discussed above, paying for electioneering communica-

tions solely with funds from individuals largely eliminates the

threat of corruption that this Court has found to justify

government restrictions on speech under BCRA and federal

election law more generally. When a broadcast communica-

tion concerns a matter of public policy, the willingness of any

union or corporation to rely solely on funds from individuals

should prevent the application of BCRA’s electioneering

communications restrictions.

Mcintyre v. Ohio Election Comm., 514 U.S. 334, 346

(1995), was indicative of this Court’s vigilance in protecting

communications concerning matters of public policy when it

said that speech on public policy “occupies the core of

the protection afforded by the First Amendment.” Nor is

McIntyre alone:

“The protection given speech and press was fashioned to

assure unfettered interchange of ideas for the bringing

about of political and social changes desired by the

people.” Roth v. United States, 354 U.S. 476, 484

(1957).

“Whatever differences may exist about interpretations

of the First Amendment, there is practically universal

agreement that a major purpose of that Amendment was

26

to protect the free discussion of governmental affairs.”

Mills v. Alabama, 384 U.S. 214, 218 (1966).

There is “a profound national commitment to the prin-

ciple that debate on public issues should be uninhibited,

robust, and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (cita-

tions omitted).

Not only the First Amendment right to speak but also the

right to associate is tied to matters of public policy:

“Effective advocacy of both public and private points of

view, particularly controversial ones, is undeniably

enhanced by group association.” NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449, 460 (1958).

“[F]reedom to associate with others for the common

advancement of political beliefs and ideas is a[n] activity

protected by the First and Fourteenth Amendments.”

Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973) (citations

omitted).

As recently as McConnell, this court upheld BCRA’s elec-

tioneering communications restrictions against a facial chal-

lenge but acknowledged that “the interests that justify the

regulation of campaign speech might not apply to the regula-

tion of genuine issue ads.” McConnell, 540 U.S. at 208 n. 88.

So close to the heart of the First Amendment is speech on

public policy issues that this Court has been willing to protect

the speech of corporations and unions on these issues to a

greater degree than it has in the context of communications

about candidates for office. Compare First Nat'l Bank of

Boston v. Bellotti, 435 U.S. 765 (1978), in which the Court

struck down as unconstitutional a Massachusetts law prohibit-

ing corporate expenditures to influence a ballot measure, with

Austin v. Michigan State Chamber of Commerce, 494 U.S.

652 (1990), in which the Court upheld a statute preventing

27

corporations (other than M CFL organizations) from making

independent expenditures in state candidate elections. See,

Austin, 494 U.S. at 675-76 (Brennan, J., concurring) (distin-

guishing Bellotti on this point) and /d. at 678 (Stevens, J.,

concurring) (also distinguishing Bellotti: “there is a vast dif-

ference between lobbying and debating public issues on the

one hand, and political campaigns for election to public office

on the other’).

The test that Appellant proposes to protect its broadcast

communications on public policy issues (Jurisdictional State-

ment at 28) is too narrow. Although the proposed test would

permit Appellant to air the ads in this case, the test’s general

application would unnecessarily chill protected speech by

other organizations. In particular, Amicus objects to the test’s

requirement that “the communication’s only reference to the

clearly identified federal candidate is a statement urging the

public to contact the candidate and ask that he or she take a

particular position on the legislative or executive branch

matter” and the prohibition on mentioning “the candidate’s

record or position on any issue.” There is no justification for

restricting independent lobbying communications, yet refer-

encing a targeted candidate’s position on the issue in question

is often necessary to the effectiveness of lobbying com-

munications. '°

'© Any test this Court may craft in ruling on this case must be careful to

avoid unconstitutional vagueness or overbreadth. Government efforts to

regulate speech must be based on clearly defined standards. See Hynes v.

Mayor of Oradell, 425 U.S. 610, 620 (1976). A test that requires those

seeking to speak on public policy issues to comply with numerous,

sometimes subjective, criteria would necessarily be unconstitutionally

overbroad and vague. For example, a requirement that communications

concern an issue on which an organization has a longstanding interest

would effectively ban such communications by organizations newly

formed in response to the policy matter at issue. A requirement that the

communications run outside BCRA’s blackout periods ignores both the

limited resources of organizations and the reality, discussed above, that

28

In light of this recognition of the importance of speech on

public policy issues, no restriction on such speech can with-

stand strict scrutiny under the First Amendment. This Court

has not found sufficient justification for allowing restrictions

of corporate or union communications on policy issues, and

as discussed in detail above, the use of individual funds is a

further safeguard for the system. As a result, there is no com-

pelling governmental interest in restricting broadcast commu-

nications on legislative or administrative policy proposals and

supported solely with individual funds, and this Court should

declare BCRA unconstitutional y overbroad as applied to

such broadcast communications. |

some public policy issues are only under consideration during those

periods. A requirement that communications subject to heightened con-

stitutional protection not “promote, support, attack, or oppose” a candi-

date offers no guidance to an organization as to whether it may air a

broadcast message during a lobbying effort that criticizes the stance taken

on the policy issue by an incumbent legislator.

'’ There are compelling arguments that First Amendment protections

for communications on public policy issues afe so great that BCRA is

unconstitutionally overbroad with regard :o all such communications and

that corporations and unions should be allowed to spend general! treasury

funds for such broadcast messages. However, Appellant's willingness to

use only funds from individuals to pay for its ads would allow this Court

to rule for Appellant even absent such a determination.

29

CONCLUSION

For the reasons discussed above, Amicus urges the Court to

find in favor of Appellant’s as-applied challenge to BCRA’s

restrictions on broadcast communications and to craft a rule

that guides other organizations that might likewise be un-

constitutionally burdened with application of this statute.

Respectfully submitted,

RUTH EISENBERG *

JOHN POMERANZ

HARMON, CURRAN, SPIELBERG

& EISENBERG, LLP

1726 M Street, N.W.

Suite 600

Washington, D.C. 20036

(202) 328-3500

B. HOLLY SCHADLER

LICHTMAN, TRISTER & ROSS,

PLLC

1666 Connecticut Avenue, N.W.

Suite 500

Washington, D.C. 20009

(202) 328-1666

* Counsel of Record Counsel for Amicus Curiae