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

IN THE

Supreme Court of the Hnited 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 AMICUS CURIAE

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA IN SUPPORT OF APPELLANT

Of counsel: JAN WITOLD BARAN

Counsel of Recotd

STEPHEN A. BOKAT THOMAS W. KIRBY

AMAR D. SARWAL CALEB P. BURNS

NATIONAL CHAMBER WILEY REIN & FIELDING LLP

LITIGATION CENTER, INC. 1776 K Street, N.W.

1615 H Street, N.W. Washington, DC 20006

Washington, DC 20062 (202) 719-7000

AR) ED-S097 Counsel for Amicus Curiae ©

nn

Wi_Son-Epes PRINTING COo., INC. — (202) 789-0006 -— WASHINGTON, D.C. 20001

QUESTIONS PRESENTED’

The Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat 81 (2002) (“BCRA”), bans “clectioneering

communications,” defined as television or radio (broadcast,

cable, or satellite) corporate speech that, 60 days before a

general election or 30 days before a primary election, refers

to a clearly identified federal candidate and can be received

by 50,000 or more persons in the relevant district or state.

2 U.S.C. § 434(f(3)(C). McConnell v. FEC, 540 U.S. 93

(2003), held that this provision (i) served the same compel-

ling interest in limiting corporate candidate advocacy ac-

cepted by the Court in prior cases, and (ii) would not reach

enough true issue advocacy to render the definition of elec-

tioneering communication invalid on its face. The questions

presented on this appeal are:

1. When compelling governmental necessity overrides

the First Amendment’s command that “Congress shall

make no law . . . abridging the freedom of speech,” and a

speech restriction is enacted that is precise and tailored

enough to escape facial invalidity, may that restriction be

applied to core speech that the government has no com-

pelling need to suppress?

2. Does McConnell’s holding that the government had a

compelling need to suppress so-called sham issue advocacy

that was clearly intended to influence elections and was

the functional equivalent of express electoral advocacy

authorize the government to suppress for up to 90 days

speech that addresses active legislative issues and petitions

for redress from incumbent elected officials who happen to

be seeking reelection?

* All parties have consented to the filing of this brief amicus curiae as

indicated by letters of consent filed with the Court. This brief was not

authored, in whole or in part, by any counsel for any party. No person or

entity, other than the amicus, its members, or its counsel, has made a

monetary contribution to the preparation or submission of this brief.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ccscssccsseessesseesseseees

TABLE OF AUTHORITIES .............cc:sccssceseessseseeseesseen iv

INTEREST OF AMICUS CURIAE ...0.....:.0.ce0-s00+e0000-0000 I

STATEMENT OF THE CASE .......:.ccssssscssesssessessessveare

SUMMARY OF ARGUMENT...........:ccccsscsssessesseesseenee 8

RR RTE PR RO OE eS aa eee 12

I. CORE FIRST AMENDMENT GUARAN-

TEES INCLUDE THE RIGHT OF CORPO-

RATIONS TO SPEAK ON PUBLIC ISSUES

AND THE RIGHT OF WILLING MEMBERS

OF THE PUBLIC TO RECEIVE SUCH

Der Ceinntedediscdusnostedsaqreneaienpacanatagpszensapecentptom 12

Il. McCONNELL’S RECOGNITION OF A

COMPELLING NEED TO LIMIT SHAM

ISSUE ADS THAT ARE THE FUNC-

TIONAL EQUIVALENT OF EXPRESS

CANDIDATE ADVOCACY BY CORPORA-

TIONS DOES NOT JUSTIFY SUPPRESS-

ING TRUE ISSUE ADDG........:0ccscescsscsersecsscesesess 14

Ili. THE “ELECTIONEERING COMMUNICA-

TION” PROVISIONS OF BCRA CANNOT

CONSTITUTIONALLY BE APPLIED TO

SUPPRESS FOR 90 DAYS CORPORATE

ADS THAT ADDRESS ACTIVE LEGISLA-

TIVE ISSUES AND SEEK REDRESS FROM

INCUMBENT REPRESENTATIVEG.............. 18

IT tavecstivhtesdainiinsenichijetnnannaiibigpieamsemeasetvensnes 21

NITE \eicascbesinitidcntdinendiniiichsndeneeneneiuinbitatoiaidasieiedne la

iv

TABLE OF AUTHORITIES

CASES Page

Austin v. Michigan Chamber of Commerce, 494

Sa Se CD wii sicinccocioveninnitciadiestitieiiatasibaiiaiadia 12

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

GEPIN ED xescsunsciscienipneetitiniipeiiiciaindetiaaammnaialide 18

Buckley v. Valeo, 424 U.S. 1 (1976)... passim

Chamber of Commerce of the United States v.

FEC, 69 F.3d 600 (D.C. Cir. 1995) 00... 3

Chamber of Commerce of the United States v.

Moore, 288 F.3d 187 (Sth Cir. 2002) ................ 3

Colorado Right to Life Committee, Inc. v. David-

son, No. 03-CV-1454, 2005 WL 2450157 (D.

CHR. TRUE, DE, Fee saccceecssvncssnteniveivabipdomadnciua 17

Colorado Republican Federal Campaign Com-

mittee v. FEC, 518 U.S. 604 (1996) .......... ccc 18

Consolidated Edison Co. v. Public Service Com-

mission of New York, 447 U.S. 530 (1980) ....... 12,15

Edenfield v. Fane, 507 U.S. 761 (1993) ...........0004 18

Elections Board of Wisconsin v. Wisconsin

Manufacturers and Commerce, 597 N.W.2d

FeEe OPERA: SIT concnsccencedsitnciresadninciniiniaitebsiendaimaden 3

FEC v. Massachusetts Citizens for Life, Inc., 479

CREE, FIP GE cccecscccesorseccnsssinmsenstabnaieseaniindas 3,4, 11

First National Bank of Boston v. Bellotti, 435

FE. FE CP TED ceccctctcsnhecsnninigpighiiiieinieniadiaiatiin 12, 14,15

Greater New Orleans Broadcasting Association,

Inc. v. United States, 527 U.S. 173 (1999)........ 13

Kleindienst v. Mandel, 408 U.S. 753 (1972)......... 13

Martin v. City of Struthers, 319 U.S. 141 (1943).. 12

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

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

Foe nccsevinecnsasicniniamianivitiitimuaiaiuimaniiaias 6

Vv

TABLE OF AUTHORITIES—Continued

Page

Pacific Gas & Electric Co. v. Public Utilities

Commission of California, 475 U.S. 1 (1986)... 12

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)..... 10

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

a iinet ak heeeatncscnatints 13

Republican Party of Minnesota v. White, 536

ES ee oe ae 3

Thornhill v. Alabama, 310 U.S. 88 (1940)............ 12

United States v. Edge Broadcasting Co., 509

ERE ERE AERO Eee 18

United States v. National Treasury Employees

Union, 513 U.S. 454 (1995) .....cccccccccccceeeeeecenees 18, 19

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748

EES Ee eS eae 12

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) ....0....cccceeees 10

STATUTES, REGULATIONS

kN See i, 4

The Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81 (2002) ......... passim

SE cn ee 15

OTHER

Andrew Mollison, Votes on Guns, Marriage

Slated; GOP Leaders in House Push Symbolic

Bills, Atlanta Journal-Const., Sept. 28, 2004..... 6

FEC Issues Semi-Annual Federal PAC Count

EL I 2

United States House of Representatives’ and

United States Senate Roll Call Votes, 108th

Congress---2d Session (2004) ...............:ccc0c0000- 6

IN THE

Supreme Court of the Anited 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 AMICUS CURIAE

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA IN SUPPORT OF APPELLANT

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of

America (“Chamber”), founded in 1912, is the world’s largest

not-for-profit business federation with an underlying mem-

bership of over 3,000,000 businesses and business asso-

ciations. The Chamber’s members include businesses of all

sizes and sectors—from large Fortune 500 companies to

home-based, one-person operations. Ninety-six percent of

the Chamber’s underlying membership are businesses with

fewer than one hundred employees. Collectively, the Cham-

ber’s members are central to our nation’s economy and

well-being.

Business corporations are profoundly affected by federal

legislation, policy, and executive action on a wide range of

2

issues, from tort reform to taxes, intellectual property to

import controls, and employment standards to environmental

protection. As a result, corporations are critically interested

in the formulation and implementation of federal legislation

and policy and in assuring that their knowledge and concerns

are fully and effectively communicated to the public, federal

legislators, and other government officials. At the same time,

all Americans, including American voters and government

officials, have a vital interest in hearing what corporations

have to say on the key issues of the day.

Some of the Chamber’s members, particularly large cor-

porations, maintain separate segregated funds, commonly

called PACs, that permit some direct advocacy for or against

candidates. But the vast majority do not. PACs are complex

and burdensome to initiate and maintain. As of January 1,

2005, there were only 1,622 PACs sponsored by corporations

registered with the FEC. See FEC Issues Semi-Annual Federal

PAC Count (Jan. 25, 2005), http://www.fec.gov/press/

press2005/200501 1 Scount.html. Only some of those PACs are

sponsored by Chamber members. When an issue arises

requiring comment by a corporation that does not maintain a

PAC, it often is not practical for a corporation to organize a

PAC, solicit contributions, and then speak out in a timely

fashion. Moreover, even corporations that have PACs often

will already have spent or committed PAC funds to campaigns

or other purposes that must receive PAC funding before the

need for issue speech is discerned. Thus, corporations have a

strong interest in being able to engage in issue advocacy

without the burdens and limitations of the PAC structure. And,

for most corporations, requiring them to speak through a PAC

is the equivalent to banning their timely speech.

Public policy largely is decided by elected officials. When

an active legislative issue is before incumbent officials for

action, interested persons have a compelling need to address

those issues and to receive speech concerning those issues.

For such speech to petition effectively for redress, it must

3

identify the government officials who will make the crit-

ical decisions.

A key function of the Chamber is to represent the interests

of its members in important matters before the courts,

legislatures, and executive branches of state and federal

governments. In that role, the Chamber was a party to the

McConnell litigation challenging the facial constitutionality

of the BCRA’s restrictions on corporate political speech that

are the subject of the instant as applied challenge. The

Chamber regularly files briefs amicus curiae where the busi-

ness community’s right to political speech is at stake. See

Republican Party of Minn. v. White, 536 U.S. 765 (2002);

Elections Bd. of Wis. v. Wis. Mfrs. and Commerce, 597

N.W.2d 721 (Wis. 1999); FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) (“MCFL”). And the Chamber, which is

incorporated, also has litigated to preserve its own First

Amendment nights of speech and association. See Chamber

of Commerce of the U.S. v. Moore, 288 F.3d 187 (Sth Cir.

2002); Chamber of Commerce of the U.S. v. FEC, 69 F.3d

600 (D.C. Cir. 1995).

This appeal affects the ability of the Chamber and its

members to exercise their core First Amendment right to

speak about active legislative issues when they are being

decided and to seek redress from incumbent elected officials

who will do the deciding. Thus, the Chamber's special

perspective and vital interests justify its submission of this

brief amicus curiae.

STATEMENT OF THE CASE

This appeal picks up where McConnell left off. This Court

previously has found that the government has demonstrated a

sufficiently compelling need to limit candidate advocacy

by corporations. McConnell, 540 U.S. at 205 (collecting

authority). Relying on its seminal campaign finance decision

in Buckley v. Valeo, 424 U.S. 1 (1976), the Court crafted a

4

standard that would serve that interest while avoiding over-

breadth by construing the law banning corporate political

speech to apply only to speech that contained explicit words

expressly advocating the election or defeat of clearly iden-

tified candidates. MCFL, 479 U.S. at 248-49.

Over time, Congress perceived that Buckley's “express

advocacy” standard was too easily circumvented by so-called

sham issue ads that avoided “magic words” such as “vote for”

or “elect,” but functioned as corporate candidate advocacy.

Eventually, in the BCRA, Congress enacted a new ban on

“electioneering communications” —corporate speech broad-

cast during months prior to an election that referred to a

federal candidate and could be received by a minimum

number of possible voters. 2 U.S.C. § 434(f)(3)(C).

In McConnell, the Chamber and others contended that

BCRA’s electioneering communication standard was facially

unconstitutional because it was not narrowly tailored to the

government’s claimed interest in limiting candidate advocacy

by corporations. By a bare majority, McConnell rejected that

facial challenge. The majority ruled that, because speech

within the electioneering communication definition “will

often convey [a] message of support or opposition” to a

candidate, the standard avoided facial invalidity because it

was not substantially overbroad. 540 U.S. at 205-07, 239.'

This appeal asks what should occur when the facially valid

electioneering communication standard is applied to suppress

core speech that does not support or oppose a candidate.

McConnell flagged this issue, noting that the justification for

limiting corporate candidate advocacy left open the status of

true issue speech. /d. at 206 n.88. Moreover, McConnell

' McConnell erroneously applied a test of “substantial overbreadth,”

rather than the more rigorous “narrow tailoring” test required by settled

precedent. 540 U.S. at 207. McConnell also found that the electioneering

communication standard provided a precise and objective bright line test.

540 US. at 194.

5

repeatedly noted that a facially valid restriction remains

open to “as applied” constitutional challenges. /d. at 159,

173, 244.

The as applied issue here arises from ads that appellant

Wisconsin Right to Life, Inc. (“WRTL”’) began broadcasting

in Wisconsin in July, 2004. Those ads criticized Senate

filibusters of judicial nominees and urged Wisconsin viewers

to petition their two Senators, Feingold and Kohl, to oppose

such filibusters. The ads said nothing about the record of the

two Senators, merely identifying them as the persons

representing Wisconsin interests in the filibuster controversy.

Because WRTL was a corporation, its broadcast speech

was potentially subject to restriction as _ electioneering

communications. Because Senator Feingold had decided to

seek reelection, as incumbent federal legislators frequently

do, the ads unavoidably mentioned a candidate, though they

did not identify him as such. The filibuster issue was not

resolved during July.

In August, 30 days before the Wisconsin primary elec-

tion, BCRA’s electioneering communication blackout period

began. At that point, the threat of serious civil and criminal

sanctions forced WRTL to suppress its ads, even though the

filibuster issue was coming to a head in the Serate where

Senator Feingold still held office. Indeed, because the

blackout period also included the 60 days before the general

election, WRTL faced a nearly three-month ban on core

speech directed not to the election but to an active legislative

issue then being decided by incumbent office holders.

WRTL’s situation is not unique. Nothing prevents vital

legislative issues from coming to the fore during the three

months prior to a general election and, indeed, that often has

? WRTL reasonably could believe that the filibuster of judicial nomi-

nees threatened the organization's broader policy goals. WRTL explained

why its theoretical right to speak through a PAC was not viable.

6

occurred. In the McConnell record, the ACLU listed 29

instances of action by the }06th Congress on bills of interest

to the organization during the 60 days prior to the November,

2000, elections. See McConnell J.A. at 622-626 (attached at

Appendix). In the McConnell district court litigation, Judge

Leon listed various “important, and controversial, pieces of

legislation” that were considered by Congress during the

blackout period, concluding that they illustrate “BCRA’s

potential impact on genuine issue advocacy.” McConnell v.

FEC, 251 F. Supp. 2d 176, 793 n.98 (D.D.C. 2003) (“a

resolution authorizing the use of armed force against Iraq . . .;

an election reform bill . . .; legislation to establish the

Department of Homeland Security . . .; and various appro-

priations bills”). In addition, the 108th Congress held 157

roll call votes in the 60 days leading up to the November,

2004, elections. See United States House of Representatives

and United States Senate Roll Call Votes, 108th Congress —

2d Session (2004), at http://www.senate.gov/legislative/LIS/

roll_call_lists/vote_menu_108_2.htm,http://clerk.house.gov/evs/

2004/ROLL 400.asp, and _http://clerk.house.gov/evs/2004/

ROLL _500.asp (last visited Oct. 28, 2005). Lastly, it is not

unusual for legislators to maneuver to set sensitive votes in

the election period. See, e.g., Andrew Mollison, Votes on

Guns, Marriage Slated; GOP Leaders in House Push

Symbolic Bills, Atlanta Journal-Const., Sept. 28, 2004, at 3A.

Corporations who need to address those issues and urge the

public to call for redress by their elected representatives often

will find themselves facially barred by the electioneering

communication standard. Such situations may not be so

common as to justify holding the electioneering communi-

cation standard facially invalid--though the Chamber

disagrees with this point and litigated it in McConnell-—they

are important to those involved and to our core constitutional

values.

7

WRTL brought an action seeking preliminary relief to

allow it to continue its ads. WRTL argued that simple

inspection of its ads showed that they did not advocate for or

against any candidate but, instead, addressed an active

legislative issue and mentioned the incumbent officials who

could provide redress. Thus, the need to restrict corporate

candidate advocacy that McConnell relied on to justify the

electioneering communication standard did not apply to the

WRTL ads or to similar speech. Because any suppression of

core speech is irreparable injury and the First Amendment

establishes a strong public interest in free speech, WRTL

argued that preliminary relief should be granted.

As required by section 403 of the BCRA, the action was

considered by a 3-judge panel of the U.S. District Court for

the District of Columbia. That court denied preliminary

relief, ruling inter alia that:

e Although McConnell only “was considering a facial

challenge,” it precluded all “‘as applied” challenges by

ruling that “we uphold all applications” of the

electioneering communication standard, thus barring

relief as a matter of law.

e Because WRTL’s ads were of a general type that

McConnell said “often” will communicate an elec-

tioneering message (e.g., broadcast by a corporation

near an election and referring to a candidate) and

WRTL’s PAC opposed Senator Feingold, WRTL

could not show that its ads did not implicate the

government interest in suppressing corporate can-

didate advocacy.

e WRITCL faced little injury because it retained the theo-

retical right to address the issue of filibusters in other

ways, including through its PAC.

8

e The “public interest [in suppressing the ads] is already

established by the Court’s holding {in McConnell] and

by Congress’ enactment.”

Shortly thereafter, the panel entered a final order of dismissal

“for the reasons set forth” in denying preliminary relief.

WRTL appealed to this Court, noting that, although the

occasion for its particular ads had passed, this was a situation

capable of repetition while avoiding review, that WRTL

intended to finance similar speech in the future, and that this

Court usefully could begin to mark the contours of as applied

challenges to the electioneering communication standard.

WRTL further observed that, because BCRA funnels all such

as applied challenges to the same district court, the precedents

set by that court were particularly important and could not be

shaped by the differing views of other courts.

The FEC moved to dismiss the appeal or summarily affirm

the judgment, asserting McConnell was dispositive. This

Court denied the motion and agreed to consider both whether

as applied challenges are viable in light of McConnell and

whether WRTL’s ads should have been protected.

SUMMARY OF ARGUMENT

The as applied relief sought here relieves a fundamental

tension between McConnell’s rationale and its holding.

McConnell reasoned that the substance of corporate speech, -

not its form, determined the government’s need to regulate.

So-called sham issue ads that were “the functional equivalent

of express advocacy” in substance clearly advocated for or

against candidates. McConnell, 540 U.S. at 206. The same

compelling interest the Court has found adequate to justify

suppressing corporate express advocacy also justified

suppression of functionally equivalent speech cast in the form

of issue ads.

However, having just held that substance trumped form,

McConnell then sustained a definition of forbidden speech—

9

the electioneering communication standard—based on form

rather than substance. The test looked to such formal matters

as where and when speech was broadcast and whether a

candidate was identified, giving no weight to whether the

speech functioned as candidate advocacy.

This tension between McConnell’s rationale and result had

a reason. To assure core speech is not deterred by un-

certainty, First Amendment facial analysis requires the gov-

ernment to provide a sufficiently tailored bright line defi-

nition of the speech that is regulated. Such a definition may

well employ formal elements that are objective, easily

identified, and reasonable markers for the speech the gov-

ernment may regulate. The resulting bright line plays a

valuable primary role in identifying speech that poses no risk

of regulation. Assuming it is sufficiently tailored, it defines a

substantial area in which speech is not needlessly chilled by

uncertainty and risk. But such a line inevitably will encom-

pass some speech that the government has no compelling

need to regulate.

At the same time, the First Amendment commands cate-

gorically “Congress shall make no law . . . abridging the

freedom of speech,” a command that applies with full force to

corporate as well as individual speech. Although compelling

necessity may override that command, that rationale sets its

own limits. If the government does not actually need to

suppress particular speech, the First Amendment commands

that the speech be freely allowed.”

* This consideration distinguishes ordinary economic and social leg-

islation. In that context, the due process and equal protection clauses

demand only minimal rationality. Thus, if formal markers have a rea-

sonable association with substance, the basic constitutional commands are

met and the legislation may be enforced categorically, unless it trenches

on some other constitutional guarantee. The unique aspect of legislation

regulating core speech is that it all transgresses a core constitutional

command, so that mere rationality of classification is not a sufficient

10

There is nothing novel about using as applied challenges to

assure that facially valid provisions do not suppress more

core First Amendment activity than is strictly necessary. To

the contrary, McConnell repeatedly observed that provisions

sustained against facial attack remained open to as applied —

challenge. Indeed, since most types of statutes typically are

presumed to be valid, the great majority of as applied chal-

lenges involve provisions that are presumed facially valid.“

Importantly, as applied challenges are no substitute for the

narrowly tailored and objective bright lines demanded by

First Amendment facial analysis. Such lines are critical. But

neither do as applied challenges conflict with a bright line

standard. Instead, they are an important backstop, making

sure that the unavoidable limits of legislative foresight and

precision do not convert into needless suppression of core

speech. Indeed, but for the as applied safety valve, the First

Amendment might demand a standard of legislative drafis-

manship that would be not just high but virtually impossible.”

The challenge for this Court is to establish standards for as

applied challenges that will permit them to serve a mean-

ingful speech-protecting role. This need not be done all at

once. A benefit of as applied analysis is the opportunity it

affords to assess specific circumstances in the light of ex-

justification. See W. Va State Bd of Educ. v. Barnette, 319 U.S. 624,

639 (1943).

* Statutes that substantially burden core First Amendment speech are

presumed invalid. See RAV. v. City of St. Paul, 505 U.S. 377, 382

(1992). But that does not mean that a finding of facial validity immunizes

them from as applied attack. To the contrary, because they operate in a

field where the First Amendment forbids Congress to legislate, they must

be scrutinized with particular care. :

* The real risk is that the availability of as applied challenges may lead

to acceptance of needlessly low drafting standards. The front line

protection of First Amendment values is rigorous facial scrutiny that

insists on precise and objective standards that are carefully tailored to the

necessity for regulation.

perience. But this Court should not rule so narrowly that

every proposed ad must be litigated. Instead, this Court

repeatedly has employed as applied litigation to identify

categories to which a facially valid standard cannot lawfully

apply. See infra Section III.

The facts presented by WRTL identify one common cir-

cumstance to which the electioneering communication stan-

dard does not properly apply. From time to time, elected

representatives will be dealing with an active legislative issue

in the 90 days prior to an election. For example, a list of such

active legislative issues that were pending during the blackout

period in 2000 is attached.

Affected corporations must be free to address such issues

freely and to urge citizens who agree to petition their in-

cumbent elected officials for redress, even if they happen to

be seeking reelection (as incumbents often do). Foreclosing

such speech for 90 days—an eternity in public debate—is

truly Draconian.° Yet permitting such true issue speech

would not threaten the interest in limiting corporate electoral

advocacy relied on by McConnell. Accordingly, this Court

should hold that:

e The electioneering communication standard is open to

as applied challenges; and

e The electioneering communication standard cannot

constitutionally be applied to speech that addresses an

active legislative issue and refers to a candidate only

in his or her role as an elected official.

® The Chamber expects that WRTL and other participants will discuss

why organizing and operating a PAC is a serious burden and often is

entirely impractical. For corporations that do not have a PAC in place or

whose PAC resources have been committed elsewhere, the electioneering

communication provision will operate as a ban. In any event, this Court

has held that subjecting core speech to substantial burden is a prohibited

abridgment that must be justified by compelling necessity. See MCFL,

479 US. at 263.

12

ARGUMENT

I. CORE FIRST AMENDMENT GUARANTEES

INCLUDE THE RIGHT OF CORPORATIONS

TO SPEAK ON PUBLIC ISSUES AND THE

RIGHT OF WILLING MEMBERS OF THE

PUBLIC TO RECEIVE SUCH SPEECH

This Court has been clear that corporate speech on public

issues is “indispensable to the effective and intelligent use of

the processes of popular government to shape the destiny of

modern industrial society,” Thornhill v. Alabama, 310 U.S.

88, 103 (1940), and is part of “the free flow of informa-

tion” the First Amendment protects, Virginia State Board of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 765 (1976). Thus, in case after case this Court has

held that corporate speech merits the same high level of First

Amendment protection afforded to speech by individuals.

See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786

(1978); Consol. Edison Co. v. Pub. Serv. Comm'n of N_Y.,

447 U.S. 530, 540 (1980); Pac. Gas & Elec. Co. v. Pub. Utils.

Comm'n of Cal., 475 U.S. 1, 19 (1986); Austin v. Mich.

Chamber of Commerce, 494 U.S. 652, 657, 699-701 (1990)

(unanimous as to “strict scrutiny” standard of review);

McConnell, 540 U.S. at 330 (Kennedy, J., dissenting) (“All

parties agree strict scrutiny applies. . . .”’).

The First Amendment protects “speech” rather than merely

speakers, and the process of meaningful speech also involves

listening. Thus, the right of free speech protected by the First

Amendment includes the right to receive information from

willing speakers, including corporations. See Bellotti, 435

U.S. at 783 (“the First Amendment goes beyond protection of

the press and the self-expression of individuals to prohibit

government from limiting the stock of information from

which members of the public may draw”); Martin v. City

of Struthers, 319 U.S. 141, 143 (1943) (“This freedom [of

speech and press] . . . necessarily protects the right to receive

13

it.”) (internal citation omitted). In particular, the First

Amendment protects the right to receive political, social, and

other information related to the functioning of government,

see Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (citing

Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)),

including information about “candidates, structures and forms

of government, the manner in which government is operated

or should be operated, and all such matters relating to

political processes.” Mills v. Alabama, 384 U.S. 214, 218-19

(1966). Without such a mght, the First Amendment’s

universally recognized purpose of assuring free discussion of

public affairs so that truth will ultimately prevail cannot be

achieved. See id.; Kleindienst, 408 U.S. at 763 (1972) (citing

Red Lion Broad. Co., 395 U.S. at 390).’

In short, corporate speech on public issues receives the

same high degree of First Amendment protection as speech

by individuals. Although McConnell sustained the corporate

prohibition on engaging in electioneering communications, it

did so because “the Government has a compelling interest in

regulating advertisements that expressly advocate the election

or defeat of a candidate for federal office” and electioneering

communications “are the functional equivalent of express

advocacy.” 540 U.S. at 205-06. But that rationale implies its

own limit—suppression of core speech must be no broader

than is strictly necessary. :

’ As this discussion demonstrates, corporate discussion of issues is en-

titled to the highest level of protection, not the lesser protection some-

times afforded to “commercial speech.” But even commercial speech is

highly protected. See Greater New Orleans Broad. Ass'n, Inc. v. United

States, 527 U.S. 173 (1999).

14

Il. McCONNELL’S RECOGNITION OF A COMPEL-

LING NEED TO LIMIT SHAM ISSUE ADS

THAT WERE THE FUNCTIONAL EQUIVA-

LENT OF EXPRESS CANDIDATE ADVOCACY

DOES NOT JUSTIFY SUPPRESSING TRUE

ISSUE ADVOCACY BY CORPORATIONS

Where the First Amendment’s core provision is set aside to

serve compelling necessity, that need must be precisely

defined to mark out the limits of permissible suppression of

speech. McConnell simply applied prior rulings accepting a

compelling governmental interest in protecting candidate

elections from corruption that threatens the link between the

popular will and those who govern. 540 U.S. at 206 n.88

(“unusually important interests [in] ‘[p]reserving the integrity

of the electoral process’”’) (citing and quoting Bellotti, 435

U.S. at 788-89). Moreover, this Court has held that corporate

advocacy for or against candidates poses such a threat and

justifies a-departure from the First Amendment’s categorical

command that Congress “make no law” abridging free

speech. /d. at 205 (collecting authority).*

But the Court has never found a compelling need to

regulate corporate issue speech that does not advocate for or

against candidates. To the contrary, it repeatedly has pro-

tected true corporate issue advocacy. For example, Bellotti

flatly rejected any notion that “speech that otherwise would

be within the protection of the First Amendment loses that

protection simply because its source is a corporation.” 435

U.S. at 784. Emphasizing that First Amendment rights have

“particular significance with respect to government,” id. at

* The empirical and theoretical grounds for this conclusion are weak,

and the Chamber hopes the Court eventually will revisit the issue. For

present purposes, however, the Chamber assumes that a compelling inter-

est justifies excluding most corporations (but not “MCFL” or media

corporations) from electoral advocacy.

15

777 n.11, Bellotti held that the state had no compelling need

to forbid corporate issue advocacy.

Similarly, Consolidated Edison Co. found no justification

for preventing even a regulated corporate monopoly from

addressing “controversial issues of public policy.” 447 U.S.

at 537. Stressing that the corporate nature of a speaker does

not undermine “the inherent worth of the speech in terms of

its capacity for informing the public,” it forbade the state to

interfere with the corporation’s use of space in its billing

envelopes for issue advocacy. /d. at 530 (quoting Bellotti,

435 U.S. at 777).”

Buckley clearly understood the government's legitimate

concem to be limited to restricting candidate advocacy rather

than true issue speech. Thus, in crafting a narrowing

construction intended to cure vagueness and overbreadth,

Buckley focused on speech using explicit words that expressly

advocated the election or defeat of clearly identified

candidates. 424 U.S. at 43-44.

When Congress concluded that the express advocacy

standard proved ineffective to restricting corporate candidate

advocacy, Congress created and McConnell approved the

electioneering communication standard. McConnell said that

corporate issue speech was not so rigidly protected that

merely adopting the form of issue speech precluded all regul-

ation. 540 U.S. at 193. Instead, the issue was one of sub-

stance: the government was equally entitled to reach

so-called sham issue ads that “do not urge the viewer to vote

for or against a candidate in so many words [but] are no less

* The corporate form of certain nonprofit organizations is disregarded

for purposes of the restrictions at issue in this case. See 11 C.F.R.

§ 114.10 (exempting MCFL corporations from electioneering commu-

nication ban). Like the vast majority of corporations, WRTL is not such

an Organization. This case, like Bellotti and Consolidated Edison Co.,

concerns restrictions on the speech of true corporations.

16

clearly intended to influence the election.” Id. (emphasis

added).

Thus, McConnell held that the new electioneering com-

munication standard served the same compelling interest in

restricting corporate candidate advocacy that had justified

applying Buckley's express advocacy standard to corporate

speech. In response to arguments that “the justifications that

adequately support the regulation of express advocacy do not

apply to significant quantities of speech encompassed by the

definition of electioneering communications,” McConnell

responded:

This argument fails to the extent that the issue ads

broadcast during the 30- and 60-day periods preceding

federal primary and general elections are the functional

equivalent of express advocacy. The justifications for

the regulation of express advocacy apply equally to ads

aired during those periods if the ads are intended to

influence the voter’s decisions and have that effect.

Id. at 206 (emphasis added). In short, the need to regulate

depended on whether the ads, in fact, functioned as express

advocacy, not on their form.

Ironically, having held that the government’s need to

suppress speech was determined by its substance—func-

tioning as candidate advocacy—McConnell sustained an

electioneering communication standard that, like the express

advocacy standard, turned on issues of form. /d. Although

McConnell concluded that the formal incidents specified by

the electioneering communication standard often are markers

for candidate advocacy, the Court recognized this need not

always be so. Jd. at 206-07.

McConnell acknowledged that “the interests that justify the

regulation of campaign speech might not apply to the

regulation of genuine issue ads.” Id. at 206 n.88 (emphasis

17

added).'° In fact, the record in McConnell included evidence

of such genuine issue speech by corporations. See, e.g.,

McConnell J.A. at 328 (the Chamber supported ads “that

urged Senator Daschle to schedule a Senate vote on Eugene

Scalia’s nomination as Solicitor of Labor’), 286 (the National

Association of Manufactures ran ads supporting the Presi-

dent’s tax proposal and “referred to the proposal as being that

of the President’). Nonetheless, the Court held the elec-

tioneering communication standard to be sufficiently tailored

because “the vast majority” of ads within its language were

the “functional equivalent” of express advocacy and “clearly

had [the same] purpose.” /d. at 206; see also Colo. Right to

Life Comm., Inc. v. Davidson, No. 03-CV-1454, 2005 WL

2450157, at *13 (D. Colo. Sept. 30, 2005) (“if the govern-

ment wishes to justify a regulation of corporate political

activity under [McConnell], it must demonstrate that the

regulated activity is ‘the functional equivalent of express

advocacy.””’)

In sum, the electioneering communication standard was

held facially valid because it met the government’s com-

pelling need to restrict corporate speech that was the func-

tional equivalent of express candidate advocacy. McConnell

did not find any compelling need to suppress genuine

corporate issue speech. It merely predicted that such genuine

issue ads would not be affected frequently enough to justify

holding the standard facially invalid. McConnell clearly left

the door open to restrict application of the electioneering

communication standard to speech that does not function as

express candidate advocacy.

'° Context makes clear that McConnell uses “genuine issue ads” to

distinguish speech that is the “functional equivalent” of express advocacy.

To illustrate the “so-called issue advocacy” targeted by the electioneering

communication standard, McConnell quoted an ad that accused a

candidate of beating his wife and failing to support his children. 540 US.

at 193 n.78.

18

Ill. THE “ELECTIONEERING COMMUNICATION”

PROVISIONS OF BCRA CANNOT CONSTITU-

TIONALLY BE APPLIED TO SUPPRESS

CORPORATE ADS THAT ADDRESS ACTIVE

LEGISLATIVE ISSUES AND SEEK REDRESS

FROM INCUMBENT REPRESENTATIVES

Although as applied challenges typically are supported by

one or more concrete examples, the Court often describes a

category of speech that is protected from the primary

standard. For example, Edenfield v. Fane, 507 U.S. 761

(1993), entertained a challenge to promotional activities by

Certified Public Accountants. The Court accepted that there

could be a need to protect individuals from such activities.

But because businesses tend to be more sophisticated and less

vulnerable, the Court held that “as applied to CPA solicitation

in the business context,” the statute violated the First

Amendment. 507 U.S. at 763; see also United States v. Edge

Broad. Co., 509 U.S. 418, 431 (1993) (Fane sustained an “as

applied challenge to a broad category of commercial

solicitation”); Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 504 (1985) (holding an obscenity statute invalid as

applied to some definitions of “lust” but not others). Simi-

larly, Colorado Republican Federal Campaign Committee v.

FEC, 518 U.S. 604, 620-22 (1996), held that general

spending restrictions could not be applied to “independent

expenditures” by political committees. And United States v.

National Treasury Employees Union, 513 US. 454, 478

(1995), held that a restriction on honoraria violated the First

Amendment as applied to federal employees in lower pay

grades. There, although Justice O’Connor’s partial dissent

preferred to describe a different category of protected speech,

she accepted the basic approach, saying:

There is a commonsense appeal to the Government’s

argument that, having deemed a particular application of

a statute unconstitional, a court should not then throw up

19

its hands and despair of delineating the area of un-

constitutionality.

513 U.S. at 486.

Similarly here, the specific circumstances presented by

WRTL illustrate a category of corporate speech to which the

electioneering communication standard cannot constitution-

ally be applied.'' In addition to protecting that particular

speech, this Court can best advance First Amendment goals

by delineating that category. The Chamber suggests that

category of speech has two defining characteristics: (i) it

addresses an active legislative issue, and (ii) it refers to

candidates only in their capacity as incumbent elected

officials with responsibility for the issue being discussed.

A legislative issue is active when it is pending for action in

Congress during the electioneering communication blackout

period. For example, the judicial filibuster issue addressed by

the WRTL ads was active because filibustered nominations

were pending in the Senate, the Senate remained in session,

and Senators were actively considering potential solutions.

Such an active legislative issue urgently and logically justifies

discussion during the blackout period and is not mere “past

history” dredged up as a pretext for candidate advocacy.

Similarly, incumbent legislators who have responsibility

for acting on such an active issue are logical and necessary

persons to be named in such issue discussions. In the case of

the WRTL ads, whom else should viewers in Wisconsin

petition to end judicial filibusters than their own elected

'' Of course, there is no need for the Court to identify all categories to

which a standard may not be applied. The Court may proceed incre-

mentally as particular challenges illuminate particular categories that

should be protected from the general rule. However, given the First

Amendment imperative to suppress no speech unnecessarily, the Court

should not be unduly restrained in identifying the categories or principles

that justify as applied protection.

20

Senators? Referring to elected representatives only in that

role, and not as candidates or the subject of electoral ex-

hortation, allows effective petitioning without inviting can-

didate campaigning.

An exception to the definition of electioneering commu-

nication that these two elements mark as true issue advocacy

would be clear and objectively determinable.'? It would not

replace that essential bright line that this Court has required is

necessary before regulating core speech, Buckley 424 U.S. at

42-44, but will provide fallback protection for speech this

Court has never empowered Congress to regulate.

Such an exception would restore the core First Amendment

right of the Chamber and other business organizations to

speak out on active legislative issues of importance to the

business community whenever they arise. See supra at 17

regarding ads urging Senate votes on federal nominees and

ads supporting the President’s proposed tax plans. The

exception would also avoid incentivising incumbent federal

office holders to avoid public criticism for their official acts

by scheduling them during the electioneering communication

blackout period.

'2 WRTL offers a list of further criteria confirming that its proposed

speech would not justify suppression. The Chamber submits that most of

these factors simply are not necessary and would pointlessly circumscribe

this Court’s delineation of the protected category.

21

CONCLUSION

For the foregoing reasons, the judgment of the lower court

should be reversed.

Respectfully submitted,

Of counsel: JAN WITOLD BARAN

Counsel of Record

STEPHEN A. BOKAT THOMAS W. KIRBY

AMAR D. SARWAL CALEB P. BURNS

NATIONAL CHAMBER WILEY REIN & FIELDING LLP

LITIGATION CENTER, INC. 1776 K Street, N.W.

1615 H Street, N.W. Washington, DC 20006

Washington, DC 20062 (202) 719-7000

5S) <OP-S007 Counsel for Amicus Curiae

la

APPENDIX

106th Congress

Congressional Action During the 60 Days Prior to

November Election on Bills of interest to the ACLU

Capital Punishment:

e “Sense of Congress” regarding the obligation of

grantee states to ensure access to post-conviction

DNA testing and competent counsel in capital cases

(Amdt. 4345 to S. 3045): Introduced in the Senate on

10/26/2000.

Chruch-State:

e Bill to protect religious groups in land-use disputes

(S 2869) signed by the President on 9/22/2000; P.L.

106-274.

e Allows faith-based organizations to receive federal

support for programs to help low income fathers get

more involved in their families’ lives (HR 4678):

Passed House 9/7/2000.

Criminal Justice:

e Provide grants to states to process backlog of DNA

evidence (HR 4640): Passed House 10/2/2000.

e Pressure states into requiring HIV testing of rape

' suspects who have been formally charged, by threat-

ening to withhold federal crime-fighting block grant

money (HR 3088): Passed House 10/2/2000.

e Aimee’s Law: cuts federal crime fighting money to

states if convicted murderers & rapists did not serve

stiff sentences and went on to commit offense in

another state (part of HR 3244): Passed Senate

10A1 1/2000.

2a

Gay and Lesbian Issues:

e Repeal federal charter of Boy Scouts, in reaction to

Supreme Court: decision that allows Boy Scouts to

discriminate against homosexuals (HR 4892): De-

feated in House 9/13/2000.

e Prohibit using local or federal funds for needle

exchange (amendment to HR 4942): Passed House

9/27/2000.

e Prohibit the use of Federal funds for the conduct or

support of programs of HIV testing that fail to make

every reasonable effort to inform the individuals of

the results of the testing (HR 5615): Introduced in the

House on 10/11/2000.

Hate Crimes:

e Expansion of federal hate crimes law (amendment to

S 2549): House voted to instruct conferees to accept

amendment 9/13/2000; conferees dropped language

from bill 10/5/2000.

Immigration:

e Allow some immigrants who committed minor crimes

long ago to apply to stay in US and not be deported;

part of “Fix °96” (HR 5062); Passed House 9/19/2000.

Internet Filtering

e Force schools and libraries to use technology protec-

tion measures to block access by children to web

pornography (amendment to HR 4577): Conferees

added this provision to the bill 10/23/2000.

Media & Violence

e Require violent TV programming be limited to hours

when children are not likely to be a substantial part of

audience (S 876): Approved by Senate Commerce

committee 9/20/2000.

3a

Physician-Assisted Suicide:

Overturns Oregon’s law that permits physician-

assisted suicide (amendment to HR 2614): Passed

House 10/26/2000; Filibustered in Senate 10/27/2000.

Privacy:

Restrictions on law enforcement use of electronic

surveillance (HR 5018): Approved by House Judiciary

subcommittee 9/14/2000; Mark-up by House Judi-

ciary committee 9/20/2000.

Creation of commission to study issue of privacy on

the internet (HR 4049): Defeated in House 10/2/2000:

failed to get 2/3’s majority needed for passage under

suspension of rules.

Prohibit the appearance of Social Security account

numbers on or through unopened mailings of checks

(HR 3218): Passed House 10/18/2000; Passed Senate

10/25/2000.

Enhance privacy protections for individuals, and to

prevent fraudulent misuse of Social Security account

numbers (HR 4857): House full committee mark up

on 9/28/2000.

Reproductive Rights:

Funding prohibition in DC Approp. (HR 4942; HR

$633): Passed both House and Senate on | 1/14/2000.

“Conscience clause” to employee-sponsored health

plans coverage of contraceptives (amendment to HR

4942): Passed House 9/14/2000.

Abortion restrictions on international family plan-

ning aid (HR 4811): Conference Committee ap-

pointed 10/19/2000; House debates conference report

10/25/2000;

4a

e Define “human being;” seeks to protect humans born

alive at any stage of pregnancy (HR 4292): Passed

House 9/26/2000.

e Prevent abortion protestors convicted of violent

crimes from seeking bankruptcy protection to avoid

paying hefty legal penalties (amendment to S 3046):

Senate voted to proceed with debate on 10/19/2000.

e Prohibit use of funds to distribute postcoital emer-

gency contraception “morning after pill on elemen-

tary or secondary school premises (HR 4577, Labor/

HHS Approp.): Pre. Coburn announces intention to

offer motion to instruct House conferees on this

amendment on 9/18/2000.

Secret Evidence

e Makes it harder for INS to use secret evidence to

deport immigrants or to deny tem [sic] asylum (HR

2121): Approved by House Judiciary Committee

9/26/2000.

Terrorism

e Provide clearer coverage over threats against former

Presidents and members of their families (HR 3048):

House disagreed with certain Senate amendments on

10/25/2000.

Trafficking Victims:

e Combat trafficking of persons, especially into the sex

trade, slavery, and slavery-like conditions (HR 3244):

Passed Senate 10/11/2000.

Violence Against Women:

e - Reauthorization of VAWA (HR 1248): Passed House

9/26/2000; Passed Senate as par [sic] of HR 3244

0/11/2000 [sic].

Sa

Voting Reform

Proposing a constitutional amendment to abolish the

electoral college and to provide for the direct popular

election (SJRes 56): Introduced in the Senate on

11/01/2000. Proposing a constitutional amendment to

abolish the electoral college (HJRes 113): Introduced

in the House on 10/12/2000.