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

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## Record

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

## Text

‘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. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0102%3A10. Public record. Not legal advice.