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

Supreme Court of the Anited States

S

WISCONSIN RIGHT TO LIFE, INC.,

Appellant,

Vv.

FEDERAL ELECTION COMMISSION,

Appellee.

+

On Appeal From

The United States District Court,

District Of Columbia

¢

BRIEF FOR AMICUS CURIAE

DOUGLAS L. BAILEY

IN SUPPORT OF APPELLEE

¢

RANDY L. DRYER

Counsel of Record

SETH P. HOBBY

STEFAN P. BRUTSCH

PARSONS BEHLE & LATIMER

201 South Main Street

Suite 1800

Salt Lake City, UT 84145-0898

(801) 532-1234

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .u.0.....ccccseseseseseeesesees 1

SUMMARY OF THE ARGUMENT ............:.::c00:000000000 3

PTS TR SATE eee aL aOR 5

I. “ISSUE” OR “GRASSROOTS LOBBYING”

II.

ADVERTISEMENTS AIRING IMMEDIATELY

PRIOR TO AN ELECTION WHICH IDEN-

TIFY A CANDIDATE WILL UNAVOIDABLY

INFLUENCE THAT CANDIDATE’S ELEC-

“GRASSROOTS LOBBYING ADS” AIRING

IMMEDIATELY PRIOR TO AN ELECTION

WHICH REFERENCE A CANDIDATE BY

NAME ARE, IN REALITY, “ELECTIONEER-

WRTL'S FILIBUSTER ISSUE ADS CLEARLY

WERE INTENDED TO INFLUENCE, AND

UNDENIABLY WOULD HAVE INFLUENCED,

THE ELECTION HAD THEY BEEN AIRED

AT THE INTENDED TIME ....0.........ccccsseesceeees

IF WRTLS TYPE OF “GRASSROOTS LOB-

BYING” ADS ARE ALLOWED TO BE AIRED

AS LEGITIMATE ISSUE ADS, THE EFFEC-

TIVENESS OF BCRA WILL BE SERIOUSLY

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IY corinnicapsreiincesnsrnianiesenapigemenintinntsiangnanie

10

is

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Buckley v. Valeo, 424 U.S. 1 (1976) ..........ccccccceeeeeeeeee 14, 20

McConnell v. FEC, 540 U.S. 90 (2003).................cceeeeees 3, 14

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

EI cisciceieiseieiniteinies ila iiabiahas Sica sndltihaaie 3, 8, 9, 14

FEDERAL STATUTES

INTEREST OF AMICIUS CURIAE

Douglas L. Bailey was a pioneer in the field of political

campaign consulting.’ In 1968, Mr. Bailey co-founded

Bailey, Deardourff & Associates, which was one of the first

national political consulting firms in the United States. As

a campaign consultant, Mr. Bailey has provided countless

candidates for elected office with a full array of campaign

services, including the development of overall strategies

and themes and the creation of both print and broadcast

advertisements to implement those strategies and themes.

His clients have included Gerald Ford’s 1976 Presidential

Campaign, and various Republican candidates for Gover-

nor, Congress, and the Senate. He has consulted on over

fifty successful campaigns for Governor and the United

States Senate in seventeen states.’ Mr. Bailey also has

extensive experience consulting on various citizens initia-

tives and other grassroots issue campaigns.’

Mr. Bailey was among the first eight recipients of the

American University-Campaign Management Institute’s

“Outstanding Contribution to Campaign Consulting”

* This brief is filed with the written consent of all parties. No

counsel for a party authored this brief in whole or in part, nor did any

person or entity, other than Mr. Bailey or his counsel, make a monetary

contribution to the preparation or submission of this brief.

* For example, Mr. Bailey has consulted on successful campaigns

for, among others, Governors Kean (NJ), Bond (MO), Bowen (IN), Orr

(IN), Thompson (IL), Milliken (MI), Rhodes (OH), Ray (1A), Snelling

(VT), Thornburgh (PA), Alexander (TN), Clement (TX), Ashcroft (MO),

Kean (NJ), Cahill (NJ), DuPont (DE), and Senators Brooke (MA),

Mathias (MD), Schweiker (PA), Baker (TN), Bond (MO), Danforth (MO),

Chafee (RI), Pressler (SD), Lugar (IN), Stafford (VT), Percy (IL).

* For example, Mr. Bailey has advised, among others, Handgun

Control, Incorporated, Floridians Against Casinos, and League of

Conservation Voters.

2

Award honoring political consultants who have best

represented the ideals of the profession and shown concern

for the consequences and impact of political campaigns on

public attitudes about the American democratic process.

In 1987, Mr. Bailey co-founded The Hotline, a biparti-

san daily online briefing that covers the media coverage of

campaigns, candidates, and specific political issues raised

in over 2,500 media sources nationally, including televi-

sion, radio, and newspapers across the country. Its audi-

ence includes the White House, Congress, both political

parties, the political consultant industry, numerous special

interest groups, and a wide variety of national media

outlets. The Hotline was sold to the National Journal in

1996. Mr. Bailey continues as a Senior Advisor at The

Hotline.

From 2001 through the 2004 election, Mr. Bailey was

the president of Freedom’s Answer, a non-partisan voter

turnout program he co-founded with Mike McCurry,

former Press Secretary to President Clinton. Their pur-

pose in founding Freedom’s Answer was to counteract

declining voter turnout, particularly among young people,

which Mr. Bailey concludes has resulted in part from the

increase and importance of soft money in campaigns,

thereby divesting local citizens’ networks of their power. In

2002, the program helped create the largest voter turnout

ever in a non-presidential year (both nationally and in 27

different states). In 2004, it contributed to an astounding

increase of 17 million voters above the 2000 presidential

turnout.

The integrity of the election process is extremely

important to Mr. Bailey both professionally and as a

citizen. He has a deep and long standing interest in

3

restoring voter confidence in our electoral system and

lectures on the subject frequently. In McConnell v. FEC, he

submitted a sworn affidavit, which was cited by both the

District Court, 251 F. Supp. 2d 176, 305 (Henderson, J.),

528-31, 534, 560-61 (Kollar-Kotelly, J.) (D.D.C. 2003), and

by this Court, 540 U.S. 90, 193 n.77 (2003), in their deci-

sions upholding the bright-line prohibition against using

corporate or union treasury funds to pay for “electioneer-

ing communications” aired in specified time periods

immediately preceding general and primary elections.

S

SUMMARY OF THE ARGUMENT

Advertisements aired in the time frame immediately

preceding an election that mention a clearly identified

candidate by name will undoubtedly influence voting

decisions regardless of whether the advertisement makes

a direct appeal for voter support or opposition. Every

competent campaign consultant, issue advocacy group, or

other entity involved in the political process is cognizant of

this undeniable fact and design their advertising ap-

proaches accordingly.

The Bipartisan Campaign Reform Act (“BCRA”)

prohivits the use of soft money to finance advertisements

that clearly mention a candidate in the sixty days preced-

ing the general election (and thirty days preceding a

primary election) because, irrespective of the purpose of

the ad or the intent of the organization or individual

sponsoring the ad, such ads will unavoidably influence

voting decisions in the election. Of course, an organization

or individual may use soft money to broadcast electioneer-

ing advertisements outside the 30/60 day time periods

4

defined by BCRA, or to broadcast true issue advertise-

ments (that do not refer io a candidate) in the time imme-

diately preceding an election. The purpose of these BCRA

provisions is to eliminate the unlimited expenditures of

soft money on sham “issue ads” that are functionally

equivalent to ads expressly advocating for or against a

particular candidate’s election.

Wisconsin Right To Life (“WRTL”) is essentially

seeking to overrule a major tenet of this Court’s decision in

McConnell by creating an exception to BCRA’s bright-line

prohibition—an exception that would operate to subsume

the rule. WRTL claims that its ads are true issue ads that

are simply one part of its “grassroots efforts” to affect

pending legislative activities. According to WRTL, the

constitutionality of an advertisement would essentially

hinge on the purpose of the advertisement and the intent

of the party broadcasting it. Determining the purpose and

intent behind a particular ad will be a virtually impossible

task for district courts. It will lead to arbitrary and non-

uniform results regarding which advertisements are

permissible under BCRA based on the subjectivity of a

particular judge looking at the context of political ads and

attempting to divine the purpose and intent of the party in

running such an ad. Moreover, it is well known in the

political campaign world that clearly identifying a known

candidate in an ad aired right before an election will

impact the electorate in regard to that candidate, and that

a competent political consultant can design an effective

issue ad or grassroots lobbying effort without identifying a

candidate. Accordingly, it should be presumed that the

true purpose or intent (and unavoidable result) of any ad

aired right before an election that clearly identifies a

candidate for office is to influence the election.

o

5

ARGUMENT

I. “ISSUE” OR “GRASSROOTS LOBBYING”

ADVERTISEMENTS AIRING IMMEDIATELY

PRIOR TO AN ELECTION WHICH IDENTIFY

A CANDIDATE WILL UNAVOIDABLY INFLU-

ENCE THAT CANDIDATE’S ELECTION.

In contrast to commercial transactions for which

advertising is run, nearly all political “sales” take place on

a single day—election day. The context for voters’ decisions

is created by what happens leading up to election day.

Aggressive political campaigns always seek to create the

most favorable context in which voters are asked to make

their decisions, based on the goals of the group sponsoring

the advertisement.

The quintessential purpose of a political consultant’s

role in designing an advertising campaign for a specific

candidate is to create a cumulative, positive. general

impression of the candidate and provide a favorable

context in which the voters can make a decision about that

candidate. Broadcast advertisements about candidates are

short in duration and the image sought cannot be achieved

in only one or two ads. However, over time, a campaign

consultant will attempt to define a candidate through a

combination of style, image, and issues. Each advertise-

ment that airs in support of a candidate in the months

leading up to an election is intended to give voters a “feel”

for the candidate. Arguably the most important voters—

the “swing” voters that will ultimately decide the outcome

of the election—rarely vote for a candidate based solely or

even significantly on substantive positions that candidate

has on the issues. Rather, these voters will support a

candidate if they perceive that the candidate is likeable

and shares similar values to them. A campaign consultant

6

will often use a substantive issue simply as a vehicle to

help persuade targeted voters that the candidate shares

their values, and to make the voters comfortable with the

candidate. Thus, so-called issue ads that mention a candi-

date by name, whether in a positive or negative context,

will undoubtedly influence the election because such ads

are merely another method of providing voters with a feel

for the candidate.

Prior to BCRA, so-called issue ads financed by soft

money were an integral part of election campaigns, and

they were often part of a concerted joint effort and overall

plan between advocacy groups and the candidate. Compe-

tent political consultants know that true issue ads run in

the time period immediately preceding the election are

largely ineffective at actually raising voter awareness of,

or interest in, a particular issue. In the time period preced-

ing the election, true issue ads are likely to be drowned out

and overwhelmed by the large volume of various political

ads seeking to influence the election. Issue ads run during

this time that mention a candidate’s name become inexo-

rably intertwined with the campaign itself, augmenting

voters’ overall perception of candidates by providing

additional context in which to view the candidate.

A true issue ad campaign is most effective when it is

aired outside of the time period immediately before an

election, when its message will not be distorted or over-

whelmed by the prevalence of candidate campaign ads. By

contrast, an electioneering ad—even one purportedly

about an issue but that refers to a candidate—is designed

as part of a campaign package to subtly influence a voter

to reach certain conclusions about the candidate while

giving the voter the impression he came to that conclusion

entirely independent of political propaganda. An issue ad

7

that airs in the time immediately preceding an election

that implores a voter to “contact” or “tell” a candidate

about one’s opposition to a certain policy will unavoidably

affect that candidate’s election. During the election time

period, the implicit message to the voter is that one way to

change the policy would be to remove that candidate from

office on election day. Conversely, an issue ad which airs

during the pre-election period and implores a voter to

contact or tell a candidate about one’s support for a par-

ticular policy, implicitly suggests that one way to continue

that policy is to vote for the referenced candidate.

Il. “GRASSROOTS LOBBYING ADS” AIRING

IMMEDIATELY PRIOR TO AN ELECTION

WHICH REFERENCE A CANDIDATE BY NAME

ARE, IN REALITY, “ELECTIONEERING ADS.”

Context and timing will ordinarily determine whether

an ad is a true issue ad or an electioneering ad in dis-

guise.‘ While an ad that refers to a candidate may have an

effect as an issue ad a year away from an election, that

same ad will impact the viewer as an electioneering ad

when it is aired right before an election. In the midst of

swirling campaign activity, the primary impact of an ad that

mentions a candidate’s name will be as an electioneering ad.

* WRTL's argument that “Grassroots lobbying ads . . . have nothing

to do with elections” defies decades of actual campaign realities.

Similarly, its argument that the Court should distinguish a grassroots

lobbying ad from an electioneering ad based va an examination of “the

text of the ads themselves” and “not external factors” is a head-in-the-

sand approach that ignores the realities of sophisticated, modern-day

campaign techniques. (Br. of Appellant at 25.) The context and envi-

ronment in which an ad airs is an important consideration in designing

the ad and how the ad will be perceived by the viewer.

8

In short, the audience is simply unlikely to distinguish

between the issue in the ad as opposed to the more preva-

lent election activity when the so-called issue ad mentions

a specific candidate’s name.

Competent interest and advocacy groups are fully

cognizant of this dynamic and would only run a so-called

issue ad or grassroots lobbying ad with full knowledge that

it is the functional equivalent of electioneering. As Judge

Kollar-Kotelly found and detailed extensively in her

findings of fact in McConnell, advocacy and interest

groups aired many more purported issue ads in the time

period immediately preceding an election, and those

ostensible issue ads were much more likely to mention a

candidate by name. See Mem. Op. of Kollar-Kotelly, J., 251

F. Supp. 2d at 561-63.

A particularly compelling example is the Citizens for

Better Medicare (“CBM”) campaign of “issue ads” aired in

the year preceding the 2000 election:

During the final three weeks before the 2000 fed-

eral election, CBM aired 6,010 spots that men-

tioned a candidate and only eight spots that did

not mention a candidate.... From January 1

through September 4, 2000, CBM ran 23,867

television spots, none of which mentioned a can-

didate.

Id. (citing Expert Report of Kenneth M. Goldstein) (em-

phasis in original). This evidence confirms what every

competent campaign consultant already knows: ads that

mention a candidate by name in the time period immedi-

ately preceding an election are intended to influence, and

unavoidably will influence, that election. It does not

9

matter that they are labeled as issue ads or grassroots

lobbying ads.

Judge Koller-Kotelly’s opinion also provides an excel-

lent illustration of a facially innocuous issue ad that is

undeniably an electioneering ad when placed in the

context of an election timeframe using a candidate’s name.

In her opinion, Judge Kollar-Kotelly quoted at length from

a speech given by Tanya K. Metaska, former chair of the

National Rifle Association Political Victory fund. Ms.

Metaska said:

We engaged in issue advocacy in many locations

around the country. Take Bloomington, Indiana

for example. Billboards in that city read,

‘Congressman Hostettler is right.’

‘Gun laws don’t take criminals off Blooming-

ton’s streets.’

‘Call 334-1111 and thank him for fighting

crime by getting tough on criminals.’

Guess what? We really hoped people would vote

for the Congressman, not just thank him. And

people did. When we’re three months away from

an election, there’s not a dime’s worth of differ-

ence between “thanking” elected officials and

“electing” them.

Id. at 537 (emphasis added). Ms. Metaska’s view was

entirely correct and reflects a sophisticated and effective,

albeit subtle and indirect, approach to campaigning.

Moreover, her statements also apply to apparent grass-

roots lobbying ads.

10

Regarding the WRTL ads at issue in this litigation,

there is no practical difference, in the context of an elec-

tion, between asking the audience to “contact” Senator

Feingold regarding a “negative” issue about which his

position is widely known, or to “vote against” him, at least

in part because of it. It is actually more effective in many

cases to use indirect words such as “contact” instead of

direct appeals such as “vote for” or “vote against” because

often voters will respond more favorably to a political

message employing subtlety.

Ill. WRTL’S FILIBUSTER ISSUE ADS CLEARLY

WERE INTENDED TO INFLUENCE, AND

UNDENIABLY WOULD HAVE INFLUENCED,

THE ELECTION HAD THEY BEEN AIRED AT

THE INTENDED TIME.

WRTLs ads, viewed in the context of the timeframe

they were intended to air, appear to have been designed to

portray Senator Feingold in a negative light for the pur-

pose of influencing the outcome of the election for which he

was campaigning. The ads disparage a “group of senators”

for blocking qualified candidates from serving as judges,

and using politics to cause “gridlock and back up some of

our courts to a state of emergency.” The ads then specifi-

cally urge voters to contact Senators Feingold and Kohl

and tell them to oppose the filibuster. The logical and

unavoidable implication of the ads is that Senator Fein-

gold (the only Senator mentioned who was up for re-

election) supports the filibuster, and thinks that “politics”

are more important than saving courts from a “state of

emergency” or allowing qualified candidates to serve in the

federal judiciary. Indeed, there would be no reason to tell

11

voters to contact Feingold and Kohl urging them to oppose

the filibuster if they were already opposed to it.”

The three WRTL ads,° viewed in context with WRTL’s

explicit advocacy against Senator Feingold, and in light of

their timing, seem obviously intended to influence the

election. WRTL, Senator Feingold’s Republican opponents,

and the Wisconsin Republican Party had criticized Fein-

gold for his support of the judicial filibusters and had

made it a significant campaign issue. See generally R. at

26:1-2’ (Dist. Ct. Mem. Op. & Order); R. at 18, Exs. 15-16,

18, 20-25 (Def. FEC’s Mem. in Opp’n to Pl.’s Mot. for

Preliminary Injunction, Exs. 15-16, 18, 20-25.); R. at 41,

Attachment 1:3-9 (Br. of Senator John McCain et al. as

amici curiae at 3-9.). Specifically, WRTL had released

press statements critical of Senators Feingold and Kohl on

July 14, and July 21, 2004. R. at 18, Exs. 24-25.

In its July 21 press release, WRTL stated that “the

Senate, with the assistance of Senators Kohl and Feingold,

has voted to continue its unprecedented filibuster of

judicial nominees.” In its July 14 press release, WRTL

noted that it had “grave concerns” that Senators Feingold

and Kohl had “voted 16 out of 16 times to filibuster judi-

cial candidates.” That same press release also noted that

* The fact that the proposed ads deal with both a candidate

(Feingold) and a non-candidate (Kohl) equally and did not single out the

candidate is of no consequence in terms of the implicit message

communicated to voters, i.e., express your displeasure and disregard by

complaining to Kohl and by voting against Feingold.

* Transcript copies of the WRTL ads are attached hereto in the

Appendix.

” References to the Record are to the docket number assigned to

each document, followed by the internal attachment number, exhibit

number, or page number as appropriate.

12

Miguel Estrada had to withdraw his nomination after two

years of having it filibustered. When WRTL’s proposed ads

are viewed in the context of WRTL’s plan to air them right

before Senator Feingold’s election, along with WRTL’s own

press releases, website, and negative comments, and

campaigning by the Republican Party and Senator Fein-

gold’s opponents, the only logical conclusion is that WRTL

intended to influence the election with its proposed ads,

not merely to conduct grassroots lobbying.

Though WRTL criticized Senators Feingold and Kohl

for two years of filibusters, and lamented that one “well-

qualified” judge had already had to withdraw his nomina-

tion, it did not start to run its so-called grassroots lobbying

ads until right before the upcoming election. Pre-BRCA,

this pre-election period was consistently the time when

most “issue ads” financed with soft money were aired in a

thinly disguised attempt to influence the election. By

WRTL’s own admission, the filibuster issue was a long-

standing one. (Br. of Appellant at 34). If WRTL had truly

wanted to run effective issue ads, it would have been best,

as every competent campaign consultant knows, to run

them long before the election—or even after the election,

when the clamor of competing campaign messages would

have died down. Tellingly, WRTL followed the historical

pattern of attempting to run so-called issue ads that

(7 tmention-a candidate’s name just prior to the election. As

Judge Kollar-Kotelly explained in great detail in her

findings of fact in McConnell, advocacy groups adopt this

approach primarily to influence the election, not to actu-

ally raise awareness of a particular issue.

Interestingly, WRTL’s ads provided no phone number,

URL, address, or other contact information allowing

listeners or viewers to actually contact Senators Feingold

13

and Kohl, as WRTL encourages. Instead, the ad directs

listeners to WRTL’s own website where, it says, contact

information for Feingold could be found. But no informa-

tion necessary to contact Feingold is provided by the ad

itself. It is a further indication that the purpose of WRTL

was not to incite such contacts at all, but rather to impact

voting in the upcoming election. Indeed, the ad directed

viewers and listeners to WRTL’s website, which, through

its e-alerts, was explicitly critical of Senator Feingold’s

position on filibusters. From a campaign consultant’s point

of view, WRTL's ads (airing in the heat of an election

campaign) telling voters to contact Senators Feingold and

Kohl would have been ineffective for the purpose of influ-

encing the filibuster fight in Congress.” The ads, however,

would undoubtedly have been effective as electioneering

ads, implicitly portraying Senator Feingold as “unfair,”

and providing a negative general context in which voters

would view him when they cast their ballots.

* WRTL incorrectly claims that it was necessary that it run ads in

the time period prohibited by BCRA because “an unprecedented issue of

vital national importance” was “coming to a head” at the end of the

Congressional Session. (Br. of Appellant at 34.) WRTL did not air its

“Wedding” ad until July 26, 2004, which was days after several judicial

filibusters had already happened, Jd. at 3. Most importantly, the Senate

had already commenced its summer recess on July 22, 2004, and did

not return until September 7, staying in session until October 11.

(Congress’ schedule is a matter of public record, and is available at

http://thomas.loc.gov/home/ds/s1082.html.) The only logical conclusion

that can be drawn from these facts is that WRTL intended to use

Senator Feingold’s past filibusters of judicial nominees to create a

negative context for voters interested in his candidacy. WRTL’s adver-

tising strategy is inconsistent with an advocacy group that truly wished

to engage in “grassroots lobbying.” If that was WRTL’s actual intent,

any competent consultant would have run issue ads in the time leading

up to the July filibusters, when the message would not have been

obfuscated by the overabundance of campaign and electioneering ads.

14

IV. IF WRTL’S TYPE OF “GRASSROOTS LOBBY-

ING” ADS ARE ALLOWED TO BE AIRED AS

LEGITIMATE ISSUE ADS, THE EFFECTIVE-

NESS OF BCRA WILL BE SERIOUSLY UN-

DERMINED.

BCRA was designed to avoid the sham of electioneer-

ing ads masquerading as issue advertisements. In McCon-

nell, the Court concluded:

Indeed, the unmistakable lesson from the re-

cord in this litigation, as all three judges on the

District Court agreed, is that Buckley’s magic-

words requirement is functionally meaningless.

Not only can advertisers easily evade the line by

eschewing the use of magic words, but they

would seldom choose to use such words even if

permitted.

540 U.S. at 193 (referencing Decl. of Douglas L. Bailey,

quoted in 251 F. Supp. 2d at 305 (Henderson, J.)) (internal

citations omitted). The so-called grassroots lobbying

advertising exception that WRTL seeks in this case would

be the functional equivalent of the “magic words” express

advocacy/issue advocacy distinction drawn by the Court in

Buckley v. Valeo, 424 U.S. 1, 43 (1976). In other words,

WRTL's proposed exception would seriously undermine

BCRA’s prohibition on the use of soft money to finance

electioneering ads immediately preceding an election.

Competent and creative political and media consul-

tancy professionals could and would readily use WRTL’s

proposed grassroots lobbying issue ads exception to design

ostensible issue ads that will have a profound and direct

15

impact on candidate elections. There are and always will

be hot-button political issues before Congress right before

any election that could be used as a pretext for airing

supposed issue ads within the immediate pre-election time

frame of BCRA. If the Court adopts WRTL’s proposed

grassroots lobbying issue ads exception, political consult-

ants can and will design ads to influence voter behavior by

portraying an issue (and/or politicians supporting that

issue) in a positive or negative light, and then asking the

audience to contact the incumbent politician to oppose or

support that legislation, initiative or measure.

Examine, for example, the pertinent text of WRTL’s

proposed “Loan” ad, one of the radio ads at issue in this

case.

Sometimes it’s just not fair to delay an important

decision.

But in Washington it’s happening. A group of Senators

is using the filibuster delay tactic to block federal judicial

nominees from a simple “yes” or “no” vote. So qualified

candidates are not getting the chance to serve.

It’s politics at work, causing gridlock and backing up

some of our courts to a state of emergency.

Contact Senators Feingold and Kohl and tell them to

oppose the filibuster.

Visit: BeFair.org.

Paid for by Wisconsin Right to Life (befair.org), which

is responsible for the content of this advertising and not

authorized by any candidate or candidate’s committee.

16

While WRTL claims that its “Loan” ad is a legitimate

attempt to conduct grassroots lobbying on the issue of

filibustering, it is important to note that there is no

contact information for Feingold (who was up for re-

election) or for Senator Kohl (who was not). Under WRTL’s

proposed exception to BCRA, campaign consultants will be

able to easily design grassroots lobbying ads that are

much more vitriolic, insidious, and emotive than the ads at

issue in this case. While the ads will be grassroots lobby-

ing ads in name, they will be electioneering ads in reality

and effect. Political consultants, advocacy groups, and

others parties designing ads will develop ads that will

render the grassroots lobbying ads/sham issue ads distinc-

tion as meaningless as the former issue advocacy/express

advocacy distinction. For example, under WRTL’s notion of

issue advertising nothing would stop it from modifying the

above ad to read as follows:

Sometimes it’s just not fair to delay an im-

portant decision.

But in Washington it’s happening. A group of

Senators tied to a radical pro-abortion philoso-

phy’ is using the filibuster delay tactic to block

federal judicial nominees from a simple “yes” or

“no” vote. So qualified candidates are not getting

the chance to serve, because the Senators do not

have a modicum of respect for human life.

The Senators are putting politics ahead of de-

mocracy and fairness, causing gridlock and backing

up some of our courts to a state of emergency.

* The italicized portions of this modified ad quote language from a

WRTL press release characterizing Senator Feingold after he voted

against Unborn Victims of Violence Act. R. at 18, Ex. 20.

17

Contact Senators Feingold and Kohl and tell

them to make sure that these un-American tac-

tics stop and to vote to end the filibuster.

Visit: BeFair.org.

Paid for by Wisconsin Right to Life

(befair.org), which is responsible for the content

of this advertising and not authorized by any

candidate or candidate’s committee.

Similarly, a pro-choice group such as Planned Parent-

hood could design an inflammatory and diametrically

opposed ad that would fit WRTL’s grassroots lobbying

exception. For example:

Right now, the Senate is trying to push

through a group of radically right-wing judges to

serve on the Federal Courts of Appeal. These

judges want to invade your right to decide if and

when you will have a family, and insert them-

selves into women’s reproductive choices and

control what choices women make affecting their

bodies. These judges have made it clear that they

will take away a woman’s right to choose.

The only thing standing between you and

your right to choose is a brave group of Senators

who refuse to confirm these judges who will not

respect your existing rights.

But the political pressure is mounting. Call

Senators Feingold and Kohl and tell them to op-

pose these radical judicial confirmations.

Paid for by Planned Parenthood of Wiscon-

sin, which is responsible for the content of this

advertising and not authorized by any candidate

or candidate’s committee.

18

These two hypothetical, yet conceivably allowable, ads

have a clear political message that will influence the

electorate if they are aired immediately before an election

(even with the required disclaimer that the ads are not

authorized by any candidate). The unavoidable result is

that the ads would necessarily become a part of the elec-

tion campaign milieu, and would serve to persuade voters

how to cast their ballots. In reality and effect, grassroots

lobbying ads specifically mentioning candidates and aired

within the pre-election time period are exactly what pre-

BCRA issue ads—like the National Rifle Association

billboards example, supra—are; they are the functional

equivalent of electioneering ads.

WRTL's claim that “grassroots lobbying ads” do not

raise the same concerns as sham issue ads simply rings

hollow. In fact, the standard WRTL proposes in order to

determine if ads should be considered grassroots lobbying

ads is as open to abuse and subversion as the Court’s

“express advocacy” interpretation of the Federal Election

Campaign Act of 1971. WRTL proposes that the Internal

Revenue Code definition of grassroots lobbying communi-

cation should be applied. (Br. of Appellant at 21.) That

section sets forth three required elements. A “grass roots

lobbying communication” must (1) refer to specific legisla-

tion, (2) reflect a view on such legislation, and (3) encour-

age the recipient to take some action with respect to such

legislation. 26 U.S.C. § 56.4911-2(b)(2)i)-(ii).

It is important to note that reference to an identified

candidate is not necessary to satisfy the three require-

ments for a grassroots lobbying ad under the IRS defini-

tion.

19

Moreover, this definition of “grass roots lobbying

communication” is extremely broad and, if adopted, will

allow political consultants to easily create electioneering

ads masquerading as grassroots lobbying ads. Not only

would the above hypothetical ads meet this definition,

but ads with much more inflammatory language on topics

such as the war on terror, military appropriations, and

immigration would also qualify as grassroots lobbying

ads. If the Court were to create the exemption WRTL

seeks in this case, a new species of sham grassroots

lobbying ads would simply replace the sham issue ads

that created the soft money loophole that Congress closed

by enacting BCRA, the provisions of which were upheld

by this Court. At any given time, there is a vast amount

of legislation under consideration by each House of

Congress and significantly more being considered by

various committees. Should WRTL’s position be allowed

to stand, political consultants will be able to use soft

money to conduct sham grassroots lobbying on a virtually

unlimited range of issues contemporaneously under

consideration at some point in the legislative process. It

will not matter how contentious a piece of legislation is,

or how likely or unlikely it is for a given measure to pass,

to fail, or even to come up for consideration.

The only alternative to opening the political advertising

arena and BCRA itself up to widespread abuse is to ask the

Federal Election Commission and District Courts to try to

divine on an individual basis for every single ad the true

purpose of the ad or the true intent behind a given ad’s

sponsors. Unfortunately, as detailed in Section II, supra, this

is an impossible and inherently unreliable task. What is.

reliable, however, is the conclusion that any ad will unavoid-

ably have an effect on an election when it is (1) aired in the

20

immediately pre-election period and (2) refers to a clearly

identified candidate who is running in that election. Conse-

quently, the only logical conclusion is that grassroots lobby-

ing ads that air in the time period immediately preceding an

election and that specifically mention a candidate by name

are deemed to be intended to influence the election, are the

functional equivalent of electioneering ads, and therefore are

and should appropriately be subject to the BCRA rules that

apply to electioneering communications.

¢

CONCLUSION

BCRA’s reforms were designed principally to restore the

integrity of the Federal Election Campaign Act, to address

the fundamental concerns expressed by this Court in Buckley

v. Valeo regarding corruption and the appearance of corrup-

tion, and to stop the massive use of soft money to circumvent

the constitutionally consistent and legislatively approved

limitations on campaign contributions. BCRA adopted a

“bright-line” test to determine the class of communications

subject to campaign finance rules. This Court in McConnell

v. FEC, upheld this test and should do so again by affirming

the decision of the Court below.

Respectfully submitted,

RANDY L. DRYER

Counsel of Record

SETH P. HOBBY

STEFFAN P. BRUTSCH

PARSONS BEHLE & LATIMER

201 South Main Street

Suite 1800

Salt Lake City, UT 84145-0898

(801) 532-1234

App. 1

APPENDIX

TV Script

Client: Wisconsin Right to Life

Title: “Waiting” -:30

Job#: WRL-8136

Date: July 14, 2004

VIDEO

We see vignettes of a middle-aged man being as productive

as possible while his professional life is in limbo:

He reads the morning paper

He polishes his shoes

He checks for mail, which hasn’t arrived

He scans through his Rolodex

He reads his Palm Pilot manual

He pays bills

SUPER:

www.BeFair.org

4-SECOND DISCLAIMER (4% or 20 scan lines):

Paid for by Wisconsin Right to Life (befair.org), which is

responsible for the content of this advertising, not author-

ized by any candidate or candidate’s committee.

AUDIO

VO:

There are a lot of judicial nominees out there who can’t go

to work.

Their careers are put on hold because a group of U'S.

Senators is filibustering — blocking qualified nominees

from a simple “yes” or “no” vote.

App. 2

It’s politics at work and it’s causing gridlock.

Contact Senators Feingold and Koh] and tell them to

oppose the filibuster.

Visit: BeFair.org

WRL REPRESENTATIVE VO:

Wisconsin Right to Life is responsible for the content of

this advertising.

Radio Script

Client: Wisconsin Right to Life

Title: “Wedding” -:60

Job#: WRL-8136

Date: July 15, 2004

AUDIO

We hear church bells up and under...

TALENT

PASTOR: And who gives this woman to be married to

this man?

BRIDE’S FATHER (rambling):

Well, as father of the bride, I certainly could. But instead,

I'd like to share a few tips on how to properly install

drywall. Now you put the drywall up...

Vo:

Sometimes it’s just not fair to delay an important decision.

But in Washington it’s happening. A group of Senators is

using the filibuster delay tactic to block federal judicial

App. 3

nominees from a simple “yes” or “no” vote. So qualified

candidates don’t get a chance to serve.

Yes, it’s politics at work, causing gridlock and backing up

some of our courts to a state of emergency.

BRIDE’S FATHER (rambling): Then you get your joint

compound and your joint tape and put the tape up over...

Contact Senators Feingold and Kohl and tell them to

oppose the filibuster.

Visit: BeFair.org. That’s BeFair.org

Paid for by Wisconsin Right to Life (befair.org), which is

responsible for the content of this advertising and not

authorized by any candidate or candidate’s committee.

Radio Script

Client: Wisconsin Right to Life

Title: “Loan” :60

Job#: WRL-8136

Date: July 14, 2004

AUDIO

TALENT

LOAN OFFICER: Welcome Mr. and Mrs. Shulman.

We’ve reviewed your loan application, along with your

credit report, the appraisal on the house, the inspections,

and, well...

COUPLE: Yes, yes... we're listening.

App. 4

OFFICER: Well, it all reminds me of a time I went

fishing with my father. We were on the Wolf River in

Waupaca...

VO: Sometimes it’s just not fair to delay an important

decision.

But in Washington it’s happening. A group of Senators is

using the filibuster delay tactic to block federal judicial

nominees from a simple “yes” or “no” vote. So qualified

candidates aren’t getting a chance to serve.

It’s politics at work, causing gridlock and backing up some

of our courts to a state of emergency.

Contact Senators Feingold and Kohl and tell them to

oppose the filibuster.

Visit: BeFair.org

Paid for by Wisconsin Right to Life (befair.org), which is

responsible for the content of this advertising and not

authorized by any candidate or candidate’s committee.