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

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No. 04-1681 © PEC 19 2035

eee : ‘ |

;

IN THE

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 AMICI CURIAE SENATOR JOHN

MCCAIN, REPRESENTATIVE CHRISTOPHER

SHAYS, AND REPRESENTATIVE MARTIN MEEHAN

IN SUPPORT OF APPELLEE

SETH P. WAXMAN BRADLEY S. PHILLIPS

RANDOLPH D. Moss Counsel of Record

WILMER CUTLER PICKERING GRANT A. DAVIS-DENNY

HALE AND DORR LLP MUNGER, TOLLES

2445 M Street, N.W. & OLSON LLP

Washington, DC 20037 355 South Grand Avenue

(202) 663-6000 35th Floor

Los Angeles, CA 90071

(213) 683-9100

ROGER M. WITTEN

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

A TE a aE a Ea a eT TE,

FRED WERTHEIMER

DEMOCRACY 21

1875 I Street, N.W.,

Suite 500

Washington, DC 20006

(202) 429-2008

DONALD J. SIMON

SONOSKY, CHAMBERS,

SACHSE, ENDRESON &

PERRY, LLC

1425 K Street, N.W.

Suite 600

Washington, DC 20005

(202) 682-0240

ALAN MORRISON

STANFORD LAW SCHOOL’

Crown

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 725-9648

CHARLES G. CURTIS, JR.

DAVID L. ANSTAETT

HELLER EHRMAN LLP

One East Main Street, Suite 201

Madison, WI 53703

(608) 663-7460

TREVOR POTTER

PAUL RYAN

CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W.

Suite 650

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Scott L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

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DAVID BARRON

HARVARD LAW SCHOOL’

1653 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-8218

' Designations for affiliation purposes only.

QUESTION PRESENTED

Whether the three-judge district court correctly re-

jected Appellant’s as-applied constitutional challenge to

2 U.S.C. § 441b(b)(2)—the federal law requiring corporations

to finance electioneering communications with funds from a

separate segregated fund—on the ground that this Court’s

decision in McConnell v. FEC is dispositive.

(i)

TABLE OF CONTENTS

Page

ot B ),| | TT i

TABLE OF AUTHORITIEG.........ccsssssssssssseessnsesnsesenneennnessnnes v

INTEREST OF AMICI CURIAE...........sc0sscsesssssssssssessessneeeenes 1

STATEMENT OF THE CASE .............scccsssssssssosersseseorersceserees 2

B. FUR OIG cence 2

B. The Lower Court’s Rulings ..............csc-ssssesessseeseeseeee 4

SUMMARY OF ARGUMENT. ..............ccccscssssssssseseecesseescsrsneeees 4

PEON S cereristeininneapnnnancmttsuuabiasaiansiennnaanininmanitiii 7

I. CONGRESS AND THIS COURT HAVE LONG

RECOGNIZED THE CORRUPTING INFLUENCE

OF CORPORATE TREASURY EXPENDITURES

ae FRE, TRIE, cccctcncnovninctenenitdtabninticimnciiis 7

A. Congress’s Century-Long Effort To Com-

bat Corporate Corruption Warrants Con-

GUERSURD TRUEIDUNDE, cccnesnemnninetninimmnaneie 7

B. This Court Has Repeatedly Deferred To

Congress’s Judgment That Corporate

Electioneering Expenditures Require

CUS PRINTED, ccnnwictisttinininsinneteenisiatanini 10

C. McConnell Reaffirmed Congress’s Impor-

tant Interest In Regulating Corporate

Expenditures Designed To Influence Fed-

EEA ee sb ae ae ee eae ee eee 14

II. SECTION 441b CONSTITUTIONALLY APPLIES

a Pre I cctrciticeneinantitrtnnieinittellitniciinimainn 18

A. WRTL’s Ads Deserve The Same Degree

Of Constitutional Protection As Ads Ex-

pressly Advocating A Candidate’s Election

Be BRUNE, cansesnsremnssmnasatinieemnmnnaitaiain 18

(iii)

iv

TABLE OF CONTENTS—Continued

Page

B. WRTL’s Ads Had An Electioneering Pur-

SED, ccnssearensserensenimmnnesenesctemmasemenenesmememenssnensianasss 19

C. The Segregated-Fund Option Provides

WRTL With A Constitutionally Sufficient

Opportunity To Finance Its Ads Without

Banning Any Speech By The Corporation. ........... 22

D. WRTL And Other Non-Profit Advocacy

Corporations Can Avoid § 44lb’s Re-

quirements Altogether By Declining To

Accept Corporate Contributions. .............00ses0e 25

Ce eo Rec nrscsceneseccsasscscscsnensasscsesensssennssncssstintneeneneeneense. 26

Vv

TABLE OF AUTHORITIES

CASES

Page(s)

Austin v. Michigan Chamber of Commerce,

a ee eR ieretenenincinanititeiniionien 12, 13, 24

Buckley v. Valeo, 424 US. 1 (1976).. 22

Federal Election Commission v. Beaumont,

GBD US. 146 (BOOB) .....ccoccccsccccccscesscsseseee 10, 13, 14, 23, 24, 25

Federal Election Commission v. National Right to

Work Committee, 459 US. 197 (1982)....... 8, 10, 11, 20, 25

Federal Election Commission v. Massachusetts

Citizens for Life, 479 U.S. 238 (1986) ..........0c00-s000 9, 11, 25

McConneli v. Federal Election Commission,

gk SEN rena F passim

United States v. Automobile Workers, 352 U.S. 567

Gi ineiiicintecrmnenetensicasiiretidentdainasenaisarsiiititaiaeataiaitmaieusitiiaiaiiaas 7,8

United States v. Congress of Industrial Organiza-

eee 8

Wisconsin Right to Life, Inc. v. Federal Election

Commission, 542 U.S. 1305 (Rehnquist, C_J., in

I cersivcsstainceneanintibiteirciiitianatiiatiaiainliiiiiianisstmpaphinmsinases 4

STATUTES AND REGULATIONS

Tillman Act of 1907, ch. 420, 34 Stat. 864 .0.0.........cccccssessseseeeees 7

2 U.S.C. § 4B4(f)(3)( Ai) .......ccceccecseesceneeenseees misiieaiiians 3, 10

ff ee we 2 8

OTHER AUTHORTIES

67 Fed. Reg. 65,201 (Oct. 23, 2002) ..ccccccccccccccscsccsssssssssssssssseeee 21

INTEREST OF AMICI CURIAE'

Amici curiae, Senator John McCain, Representative

Christopher Shays, and Representative Martin Meehan, are

three of the four principal sponsors of the Bipartisan Cam-

paign Reform Act of 2002 (“BCRA”).’ These Members of

Congress have devoted enormous time and energy to ensur-

ing that our federal campaign finance laws are meaningful

and not subject to wholesale evasion. They worked for

seven years to enact BCRA to close glaring loopholes in the

then-existing system. They participated as intervening de-

fendants in McConnell v. FEC to defend the constitutional-

ity of those loophole-closing measures.

If the critical provisions contained in Title II of BCRA,

at stake in this case, are not applied to advertisements like

those that Wisconsin Right to Life, Inc. sought to air, then

amici’s efforts will be gravely undermined. Corporations

will once again obtain a roadmap to evading the long-

standing ban on corporate expenditures to influence federal

elections. Amici respectfully submit that the three-judge

court correctly concluded that this Court’s decision in

McConnell is dispositive and reaffirms that Congress pos-

sesses the authority necessary to ensure that the federal

campaign finance laws are meaningful and not routinely cir-

cumvented.

' Amici curiae certify that no counsel for a party authored this brief in

whole or in part and that no person or entity, other than amici, their

members, or their counsel, has made a monetary contribution to the

preparation or submission of this brief. The parties have filed letters con-

senting to the filing of this brief with the Clerk of the Court.

? Senator Russell Feingold, the fourth principal sponsor of BCRA, is not

participating as amicus in this case because the WRTL ads refer to Sena-

tor Feingold.

2

STATEMENT OF THE CASE

A. Factual Background

This case involves three television ads that Appellant,

Wisconsin Right to Life, Inc. (“WRTL”), sought to run

shortly before the 2004 federal election in Wisconsin with

funds from its corporate treasury. Although WRTL is a

non-profit corporation, it accepts contributions from corpo-

rations. Jurisdictional Statement Appendix (“J.S. App.”) 4a.

Because WRTL’s receipt of corporate contributions pre-

vents WRTL from using its corporate treasury to finance

expenditures on behalf of or opposed to candidates for fed-

eral office, 2 U.S.C. § 441b(b)(2), WRTL maintains a political

action committee, the Wisconsin Right to Life Political Ac-

tion Committee (“WRTL-PAC”), in order to make such ex-

penditures. J.S. App. 5a. WRTL also endorses and opposes

candidates for federal office. Jd.

In 2004, WRTL targeted U.S. Senator Russell Feingold

for defeat. J.S. App. 5a. The WRTL-PAC announced in the

title to a March 5, 2004 press release its “Top Election Pri-

orities: Re-elect President Bush ... Send Feingold Pack-

ing.”’ Warning that “the defeat of Feingold must be upper-

most in the minds of Wisconsin’s right to life community in

the 2004 elections,” WRTL-PAC’s Chair Bonnie Pfaff em-

phasized that “[wJe do not want Russ Feingold to continue

to have the ability to thwart President Bush’s judicial nomi-

nees.” FEC Ex. 4. The press release also noted that

WRTL’s three endorsed candidates for Feingold’s Senate

seat “all stated they would oppose a filibuster” if the Senate

Judiciary Committee returned a favorable or neutral rec-

ommendation on a judicial nominee. /d.

Three weeks later WRTL itself issued a similar release

subtitled, “Top Election Priorities for Right to Life Move-

ment in Wisconsin: Re-elect George W. Bush .. . Send Fein-

> Exhibit 4 to FEC’s Exhibits Submitted in Support of Its Opposition to

Plaintiff's Motion for a Preliminary Injunction (“FEC Ex.”).

3

gold Packing!” This release again clearly stated WRTL’s

“resolve to do everything possible . . . to send Russ Feingold

packing.” Amici Ex.C. WRTL continued to advocate Sena-

tor Feingold’s defeat during the summer of 2004, and, in a

July 14, 2004 news release, criticized Senator Feingold for

his position on the filibuster of judicial nominees. FEC Ex.

16.

On July 26, 2004, as the September primary election

neared, WRTL began using its corporate treasury funds to

finance the three ads at issue here. J.S. App. 6a. The lead-in

to each ad differs somewhat, but each criticizes a “group of

Senators” for filibustering judicial nominees and preventing

“a simple ‘yes’ or ‘no’ vote” and then requests the viewer to

“Contact Senators Feingold and Kohli and tell them to op-

pose the filibuster.” /d. at 13a-17a. The ads, however, did

not provide viewers with the phone number or address of

either senator. Jd. Because the three ads were broadcast on

television, referred to a clearly identified candidate for fed-

eral office, and targeted the electorate of that candidate, the

ads, if run during the statutorily prescribed period, would

constitute “electioneering communications.” 2 U.S.C.

§ 434(f)(3)(A\i); BCRA § 201. Accordingly, federal law re-

quired WRTL to begin using its PAC funds to finance these

advertisements starting on August 15, 2004, thirty days be-

fore the primary election. 2 U.S.C. § 441b(b)(2); BCRA

§ 203. Alleging that this statute could not constitutionally be

applied to its advertisements, WRTL filed suit on July 28,

2004, seeking an injunction prohibiting the Federal Election

Commission from enforcing the statute with regard to

WRTL’s advertisements.

“Exhibit C in Support of the Memorandum of Amici Senator John

McCain, Representative Christopher Shays, Representative Martin

Meehan, Democracy 21, The Campaign Legal Center, and the Center for

Responsive Politics in Opposition to Plaintiff's Motion for a Preliminary

Injunction (“Amici Ex.”).

4

B. The Lower Court's Rulings

The three-judge district court (Sentelle, R. Roberts,

Leon) denied WRTL’s motion for a preliminary injunction on

August 17, 2004. J.S. App. 4a-12a. In its unpublished

Memorandum Opinion and Order of August 17, 2004, the dis-

trict court held that WRTL was unlikely to prevail on the

merits for two reasons. First, the district court concluded

that this Court’s decision in McConnell “leaves no room for

the kind of ‘as applied’ challenge WRTL propounds before

us.” Jd. at 7a. Second, said the court, “(tJhe facts suggest

that WRTL’s advertisements may fit the very type of activ-

ity McConnel! found Congress had a compelling interest in

regulating.” Jd. at 8a. After further briefing, the district

court subsequently dismissed WRTL’s as-applied challenge

on May 9, 2005 “for the reasons set forth in its prior opin-

ion.” Id. at 2a-3a.

SUMMARY OF ARGUMENT

Amici urge this Court to hold that § 441b is constitu-

tional as applied to WRTL’s three ads. WRTL’s ads directly

implicate Congress’s well-established interest in preventing

corporate treasuries from being used to influence federal

elections. Furthermore, the rule that WRTL urges this

Court to adopt would functionally overrule this Court’s deci-

sion in McConnell v. Federal Election Commission, 540 U.S.

93 (2003), and would invite the wholesale evasion of the long-

standing ban on the use of corporate treasury funds to influ-

ence federal elections.

Two years ago this Court held that Congress has a com-

pelling interest in requiring corporations, including non-

profit corporations, to finance electioneering ads with funds

> On September 14, 2004, Chief Justice Rehnquist denied WRTL’s applica-

tion for an injunction pending appeal, noting that it would be an “extraor-

dinary remedy, particularly when this Court recently held the Act facially

constitutional, and when a unanimous three-judge District Court rejected

applicant’s request for a preliminary injuncticn.” 542 U.S. 1305, 1305-1306

(Rehnquist, C.J., in chambers) (citations omitted).

5

from a segregated PAC account. McConnell, 540 U.S. at

204-211. Just as Congress may legitimately prohibit corpo-

rate treasury expenditures on ads that expressly advocate a

candidate’s election or defeat, it may also constitutionally

require electioneering communications aired shortly before

election day to be financed with funds from the corporation’s

segregated PAC account. This is true for two reasons.

First, the vast majority of corporate-funded ads that are

aired shortly before an election and that refer by name to a

clearly identified candidate possess a readily apparent elec-

tioneering purpose and effect. Second, even in cases where

the purpose of the ad is less clear, the availability of the seg-

regated-PAC alternative provides corporations with a con-

stitutionally-sufficient avenue for financing genuine issue

ads. /d. at 206.

Under McConnell, WRTL cannot sustain an as-applied

challenge to § 441b for two reasons. First, the record estab-

lishes that WRTL aired the ads in an attempt to influence a

federal election. In the months leading up to WRTL’s deci-

sion to air these ads, WRTL publicly proclaimed that one of

its top two priorities was to defeat Senator Feingold, and it

cited the filibuster issue as the linchpin for its opposition to

his re-election. See FEC Exs. 4, 16; Amici Ex. C. Reflecting

WRTL’s electoral strategy, the three ads criticized a group

of Senators for filibustering judicial nominees and urged

voters to contact Senator Feingold without providing the

senator’s phone number or office address. J.S. App. 13a-17a.

WRTL clearly intended to influence a federal election with

corporate treasury funds. Accordingly, WRTL’s ads impli-

cated Congress’s compelling interest in preventing the use

of corporate funds to influence federal elections. See

McConnell, 540 U.S. at 205 (“The . . . question—whether the

state interest is compelling—is easily answered by our prior

decisions regarding campaign finance regulation, which ‘rep-

resent respect for the legislative judgment that the special

characteristics of the corporate siructure require particu-

larly careful regulation.””’).

6

As these facts vividly illustrate, ads that might appear

on their face to be so-called “grassroots lobbying ads” are

often in fact electioneering ads. Because WRTL’s as-applied

challenge rests on the nature of its ads, rather than WRTL’s

status as a non-profit corporation, sustaining this as-applied

challenge would permit all corporations, even Fortune 500

companies, to use their treasuries to finance ads that, like

WRTL’s ads, possess an unmistakable electioneering pur-

pose. Therefore, granting WRTL the exemption it seeks

would effectively overturn McConnell, eviscerate Title II of

BCRA, and open the floodgates for corporate (or union)

treasury spending on federal elections.

Second, even if the intent of WRTL’s ads were less than

clear, this Court’s decision in McConnell would still fore-

close this as-applied challenge. McConnell explicitly held

that the segregated-fund alternative represents a constitu-

tionally-sufficient safety valve for corporations “in doubtful

cases.” 540 U.S. at 206. As this Court explained, § 441b does

not constitute a “complete ban” on corporate electioneering

communication expenditures. Jd. at 204. Rather, the statute

represents a sensible regulation that merely requires corpo-

rations to fund such communications with voluntary contri-

butions from their members. /d.

WRTL presents no reason why this Court should cast

aside its established precedent other than the contention

that WRTL has not been able to raise sufficient funds from

individual supporters for purposes of running the ads—a fact

that hardly counsels in favor of using general treasury funds

to make up for that lack of support. WRTL and its amici

also raise two issues that are irrelevant to this as-applied

challenge. First, because WRTL is a 501(c)(4) corporation

with an established PAC, this challenge does not concern the

constitutionality of applying § 441b to a 501(c)(3) corporation

that may not, consistent with the tax code, directly create a

PAC. Second, the constitutionality of applying § 441b to a

corporation that segregates funds it receives from other

corporations from the funds it receives from individuals is

also not at issue because the record contains no suggestion

7

that WRTL ever had such a separate account. Rather,

WRTL chooses to accept corporate contributions, and depos-

its them with all its other revenue sources, thereby creating

the risk that WRTL will serve as a conduit for the unlawful

corporate funding of federal election activity. In short, §

441b constitutionally applies to WRTL and, in particular, to

the ads it sought to run here.

ARGUMENT

I. CONGRESS AND THIS COURT HAVE LONG RECOGNIZED

THE CORRUPTING INFLUENCE OF CORPORATE TREASURY

EXPENDITURES ON FEDERAL ELECTIONS.

A. Congress’s Century-Long Effort To Combat Cor-

porate Corruption Warrants Considerable Defer-

ence

Section 441b, the statute at issue, traces its roots to the

Tillman Act of 1907, ch. 420, 34 Stat. 864. The Tillman Act

represented Congress’s sensible response to a national con-

cern over the corrosive effect of corporate spending on elec-

tions, which received widespread attention during the elec-

tion of 1904. United States v. Automobile Workers, 352 U.S.

567, 571-572 (1957). The defeated candidate for the presi-

dency captured this popular concern when he said that “[{tJhe

greatest moral question which now confronts us is, Shall the

trusts and corporations be prevented from contributing

money to control or aid in controlling elections?” Jd. at 572

(quoting Hearings before House Committee on Elections,

59th Cong., Ist Sess. 12). President Theodore Roosevelt

himself recommended in his 1905 message to Congress that

“{ajll contributions by corporations to any political commit-

tee or for any political purpose should be forbidden by law.”

Id. (quoting 40 Cong. Rec. 96). Congress, heeding this call,

enacted the Tillman Act and thereby prohibited “any corpo-

ration . . . [from] mak[ing] a money contribution in connec-

tion with any election to any political office.” Jd. (quoting 34

Stat. 864).

Congress moved in 1925 to strengthen the Tillman Act

through the adoption of the Federal Corrupt Practices Act,

8

which, in part, extended the prohibition on corporate contri-

butions to cover “anything of value” and made the giving or

receiving of corporate contributions a federal crime. Fed-

eral Election Comm'n v. National Right to Work Comm.,

459 U.S. 197, 209 (1982) (citing Federal Corrupt Practices

Act of 1925, §§ 301, 313, 43 Stat. 1070, 1074). The Smith-

Connally Act of 1943 temporarily applied the Corrupt Prac-

tices Act to labor unions. Automobile Workers, 352 U.S. at

578 (citing 57 Stat. 163, 167). Despite this statute, “Congress

was advised of enormous financial outlays said to have been

made by some unions in connection with the national elec-

tions of 1944.” Jd. at 579. After concluding that Congress

intended the prohibition on contributions from corporate and

(Union treasuries to cover expenditures, the House Special

Committee to Investigate Campaign Expenditures recom-

mended legislation clarifying that the Corrupt Practices Act

covered “expenditures by the prohibited organizations in

connection with elections.” /d. at 582 (quoting H.R. Rep. No.

2739, 79th Cong., 2d Sess. 46). As the Court acknowledged,

“it was obvious that the statute as [previously] construed

could easily be circumvented through indirect contribu-

tions.” United States v. Congress of Indus. Orgs., 335 U.S.

106, 115 (1948). Shortly thereafter, Congress passed the

Taft-Hartley Act, which implemented the Committee’s rec-

ommendation in order to, as Senator Taft explained, “plug

up a loophole which obviously developed, and which, ... as a

matter of fact, would absolutely have destroyed the prohibi-

tion against political advertising by corporations.” Automo-

bile Workers, 352 U.S. at 583 (quoting 93 Cong. Rec. 6439).

“In early 1972 Congress continued its steady improve-

ment of national election laws by enacting [the Federal Elec-

tion Campaign Act].” McConnell, 540 U.S. at 117. As this

Court recounted in McConnell, “[t]he law ratified the earlier

prohibition on the use of corporate and union general treas-

ury funds for political contributions and expenditures, but

expressly permitted corporations and unions to establish

and administer separate segregated funds (commonly known

as political action committees, or PACs) for election-related

contributions and expenditures.” Jd. at 118.

9

Despite Congress’s longstanding efforts to prevent cor-

porate corruption of federal elections, corporations during

the 1990s began using their general treasury funds to fi-

nance sham “issue” ads that in reality were designed and run

with a clear electioneering purpose. This avenue for corpo-

rate circumvention arose out of this Court’s decision in Fed-

eral Election Commission v. Massachusetts Citizens for

Life (“MCFL”) where, in order to avoid constitutional

vagueness problems with the former version of § 441b, this

Court interpreted the statute to apply only to expenditures

that expressly advocated a candidate’s election or defeat.

479 U.S. 238, 249 (1986). On that interpretation, corpora-

tions quickly learned that simply by avoiding the magic

words of express advocacy, corporations could freely spend

money from their corporate treasuries to influence federal

elections. As this Court later acknowledged, “the unmistak-

able lesson from the record” in McConnell was that the ex-

press advocacy “requirement is functionally meaningless”

because the “absence of magic words cannot meaningfully

distinguish electioneering speech from a true issue ad.” 540

US. at 193. :

Congress responded to this pattern of evasion by enact-

ing BCRA § 203, which amended § 441b to require corpora-

tions to finance all “electioneering communications” with

funds from a separate PAC account. To alleviate the vague-

ness problem that plagued the “in connection with” require-

ment of the 1972 Act, while plugging the loophole opened by

the express advocacy test, the statute objectively defined

“electioneering communications” to include any “broadcast,

cable, or satellite communication” that:

(I) refers to a clearly identified candidate for Fed-

eral office;

(II) is made within--

(aa) 60 days before a general, special, or runoff

election for the office sought by the candidate;

or

(bb) 30 days before a primary or preference

election, or a convention or caucus of a political

10

party that has authority to nominate a candi-

date, for the office sought by the candidate;

and

(IIT) in the case of a communication which refers to

a candidate for an office other than President or

Vice President, is targeted to the relevant elector-

ate.

2 U.S.C. § 434(f)(3)(AXi); BCRA § 201. In short, BCRA’s

amendment of § 441b reflected Congress’s judgment, dating

back a century, that “the special characteristics of the corpo-

rate structure require particularly careful regulation.” Na-

tional Right to Work, 459 U.S. at 210.

B. This Court Has Repeatedly Deferred To Con-

gress’s Judgment That Corporate Electioneering

Expenditures Require Careful Regulation.

This Court has never questioned Congress’s decision to

require corporations to finance electioneering expenditures

with segregated PAC funds. To the contrary, the Court has

repeatedly said that Congress’s “careful legislative adjust-

ment of the federal electoral laws, in a ‘cautions advance,

step by step,’ to account for the particular legal and eco-

nomic attributes of corporations and labor organizations

warrants considerable deference . . . [and] reflects a permis-

sible assessment of the dangers posed by those entities to

the electoral process.” National Right to Work, 459 U.S. at

209 (internal citation omitted); see also McConnell, 540 U.S.

at 117; Federal Election Comm'n v. Beaumont, 539 U.S. 146,

162 n.9 (2003) (“Judicial deference is particularly warranted

where, as here, we deal with a congressional judgment that

has remained essentially unchanged throughout a century of

‘careful legislative adjustment.”’).

This Court first considered the constitutionality of

§ 441b in National Right to Work, 459 U.S. at 209-10. In

holding that § 441b could constitutionally be interpreted to

limit PAC solicitations to members with “some relatively

enduring and independently significant financial or organiza-

tional attachment,” id. at 204, this Court explained that two

11

important interests underlie § 441b: (1) “ensur[ing] that sub-

stantial aggregations of wealth amassed by the special ad-

vantages which go with the corporate form of organization

should not be converted into political ‘war chests’ which

could be used to incur political debts from legislators who

are aided by the contributions,” and (2) “protect{ing] the in-

dividuals who have paid money into a corporation or union

for purposes other than the support of candidates from hav-

ing that money used to support political candidates to whom

they may be opposed.” /d. at 207-208. Finding that these

interests supported application of § 441b to membership cor-

porations as well as traditional stock corporations, this

Court stated that “[w]hile § 441b restricts the solicitation of

corporations and labor unions without great financial re-

sources, as well as those more fortunately situated, we ac-

cept Congress’s judgment that it is the potential for such

influence that demands regulation.” Jd. at 209-210.

This Court reaffirmed the important interests underly-

ing § 441b in MCFL, 479 U.S. at 238. As the Court ex-

plained there, “[d]irect corporate spending on political activ-

ity raises the prospect that resources amassed in the eco-

nomic marketplace may be used to provide an unfair advan-

tage in the political marketplace.” Jd. at 257. The MCFL

decision correctly recognized that § 441b represents an at-

tempt to alleviate this threat to the political marketplace

“(bly requiring that corporate independent expenditures be

financed through a political committee expressly established

to engage in campaign spending.” /d. at 258.

This Court concluded, however, that these compelling

interests did not justify application of § 441b to MCFL, a

non-profit corporation that did not accept corporate contri-

butions. As the Court emphasized, “it is [MCFL’s] policy

not to accept contributions from [business corporations or

labor unions].” 479 U.S. at 264. This fact was critical to the

Court’s holding because a no-corporate-contributions policy

“prevents such [non-profit] corporations from serving as

conduits for the type of direct spending that creates a threat

to the political marketplace.” Jd.

12

This Court’s decision in Austin v. Michigan Chamber of

Commerce, 494 U.S. 652, 658 (1990), confirmed that a non-

profit corporation could avoid § 441b’s modest requirements

only by eschewing corporate contributions. Austin rejected

an as-applied challenge to a Michigan statute forbidding cor-

porate political expenditures, brought by a nonprofit corpo-

ration that, unlike MCFL but like WRTL here, accepted

contributions from for-profit corporations. In distinguishing

the facts of Austin from those in MCFL, this Court ex-

plained that an exemption for a nonprofit corporation that

received contributions from for-profit corporations would

permit “(business corporations [to] circumvent the Act’s

restriction by funneling money through the [nonprofit cor-

poration’s}] general treasury.” Jd. at 664. Thus, “[bjecause

. the {nonprofit corporation] accepted money from for-profit

corporations, it could, absent application of [the Michigan

statute], serve as a conduit for corporate political spending.”

Id.

Following the precedent laid down in National Right to

Work and MCFL, the Austin Court also upheld the constitu-

tionality of the Michigan statute’s requirement that corpora-

tions finance independent expenditures with funds from a

segregated account. 494 U.S. at 658. Recognizing the estab-

lished principle that “the compelling governmental interest

in preventing corruption support{s] the restriction of the

influence of political war chests funneled through the corpo-

rate form,” id. at 659 (quoting Federal Election Comm’n v.

National Conservative Political Action Comm., 470 U.S.

480, 500-501 (1985)), this Court concluded that the Michigan

statute appropriately aimed at the “the corrosive and dis-

torting effects of immense aggregations of wealth that are

accumulated with the help of the corporate form and that

have little or no correlation to the public’s support for the

corporation’s political ideas.” Jd. at 660. Thus, Austin elimi-

nated any doubt that the compelling government interest in

preventing corporate corruption of the electoral process ex-

tended to expenditures as well as direct candidate contribu-

tions, for “[cJorporate wealth can unfairly influence elections

when it is deployed in the form of independent expenditures,

13

just as it can when it assumes the guise of political contribu-

tions.” Jd.

This Court also recognized in Austin that the Michigan

analogue to § 441b represented a narrowly-tailored strategy

for addressing corporate corruption of candidate elections

because it permitted corporations to participate in the elec-

toral arena through the establishment of segregated PAC

funds. Jd. As this Court explained:

We find that the Act is precisely targeted to elimi-

nate the distortion caused by corporate spending

while also allowing corporations to express their po-

litical views. ... [T}he Act does not impose an abso-

lute ban on all forms of corporate political spending

but permits corporations to make independent po-

litical expenditures through separate segregated

funds. Because persons contributing to such funds

understand that their money will be used solely for

political purposes, the speech generated accurately

reflects contributors’ support for the corporation’s

political views.

Id. at 660-661 (emphasis in original). And just as this Court

had done in National Right to Work, the Austin decision re-

fused to find the Michigan statute overbroad on account of

its application to all corporations, including those without

substantial wealth. After all, the “potential for distortion

justifie[d] [the Michigan statute’s] general applicability to all

corporations.” /d. at 661.

This Court has continued to adhere to the principle that

Congress’s regulation of corporate involvement in the elec-

toral process warrants considerable deference. See Beau-

mont, 539 U.S. at 156-163. In Beaumont, a non-profit advo-

cacy corporation unsuccessfully brought an as-applied chal-

lenge to § 441b. In rejecting the notion that nonprofit corpo-

rations do not pose a threat to the political marketplace, this

Court reaffirmed that the potential for abuse justified Con-

gress’s decision to apply § 441b to nonprofit corporations.

This Court reasoned that nonprofit corporations, “like their

for-profit counterparts, benefit from significant ‘state-

14

created advantages,’ and may well be able to amass substan-

tial political ‘war chests.” Jd. at 160 (citations omitted). Be-

cause “[{njot all corporations that qualify for favorable tax

treatment under § 501(c)(4) of the Internal Revenue Code

lack substantial resources, and the category covers some of

the Nation’s most politically powerful organizations, includ-

ing the AARP, the National Rifle Association, and the Si-

erra Club,” this Court recognized that Congress could con-

stitutionally require nonprofit 501(c)(4) corporations to fi-

nance direct candidate contributions through segregated

PAC funds. Jd. This was particularly true because, as the

Court had said before, § 441b does not represent a “ban” on

corporate political activity, but rather “allows corporate po-

litical participation without the temptation to use corporate

funds for political influence, quite possibly at odds with the

sentiments of some shareholders or members.” /d. at 163.

In short, even before this Court considered the constitu-

tionality of BCRA’s amendments to § 441b, the Court had

repeatedly recognized Congress’s legitimate interest in

regulating corporate treasury expenditures. Moreover, the

constitutionality of applying § 441b to non-profit corpora-

tions like WRTL that accept corporate contributions was

well established. Finally, this Court’s decisions had found

that the segregated-PAC option represented a constitution-

ally sufficient method for corporations (with the sole excep-

tion of direct expenditures by nonprofit advocacy groups

that accept no corporate funding) and unions to participate

in the electoral process.

C. McConnell Reaffirmed Congress's Important In-

terest In Regulating Corporate Expenditures De-

signed To Influence Federal Elections.

Because BCRA’s amendment of § 441b effectively fur-

thered Congress’s compelling interest in preventing corpo-

rate treasuries from influencing federal elections (and

avoided constitutional vagueness issues), this Court upheld

that provision against a facial challenge in McConnell. 540

U.S. at 204-207. The McConnell decision recognized that the

issue whether Congress had a compelling interest in regulat-

15

ing corporate expenditures on electioneering communica-

tions was “easily answered by our prior decisions . . . , which

represent respect for the legislative judgment that the spe-

cial characteristics of the corporate structure require par-

ticularly careful regulation.” Jd. at 205 (internal citations

and quotations omitted).

In an attempt to distinguish these prior cases, the

McConnell “plaintiffs argue{d] 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.” 540 U.S. at

205-206. Just as Wisconsin Right to Life argues here, the

National Right to Life Committee asserted there that

BCRA’s “electioneering communication’ restrictions would

eliminate . . . [a] whole category of speech, [which] is grass

roots lobbying, in which Citizens Associated for Amplified

Free Expression, Inc. . . . buys broadcast ads in the district

of the legislator with an important vote needed to pass legis-

lation protecting the nation from ruin by encouraging citi-

zens to ‘Call Representative Swine-Vote and ask for her to

vote for the bill sponsored by Re». -entatives Commonweal

and Controversy.”” The National Rifle Association

(“NRA”) and other BCRA challengers likewise argued that

§ 441b would improperly prohibit corporations from financ-

ing ads that urged voters to contact Members of Congress to

support or oppose legislation.’

° Reply Brief for Plaintiffs-Appellants/Cross-Appellees The National

Right to Life Committee 6, National Right to Life Comm. v. Federal

Election Comm'n, 540 U.S. 93 (2003) (No. 02-1733).

’ Brief for Appellants The National Rifle Association 36-37, National Rifle

Ass'n v. Federal Election Comm'n, 540 U.S. 93 (2003) (No. 02-1675); see

also Brief of AFL-CIO Appellants/Cross-Appellees 19, AFL-CIO v. Fed-

eral Election Comm'n, 540 U.S. 98 (2003) (No. 02-1755) (arguing that

Ҥ 203 precludes . . . communications that . . . [cjall upon a Member of Con-

gress to support or oppose imminent legislation, or ask viewers or listen-

ers to urge the Member to do so”); Opening Brief of the “Business Plain-

tiffs” 18, Chamber of Commerce v. Federal Election Comm'n, 540 U.S. 93

(2003) (No. 02-1756) (asserting that “many issue ads conclude by asking

16

In support of his unsuccessful contention that BCRA

unconstitutionally banned grassroots lobbying, Senator

McConnell attached two ads to his brief that cannot be

meaningfully distinguished from the ads WRTL sought to

run. Both of the featured ads commented on actual legisla-

tive issues, and neither commented on the candidate’s fit-

ness for office, expressly criticized the candidate, or urged

voters to support or oppose the candidate. The first ad read:

Behind this label is a shameful story of political

prisoners and forced labor camps, of wages as low

as 13 cents an hour, of a country that routinely vio-

lates trade rules flooding our markets, draining

American jobs. Now Congress is set to scrap its

annual review of China’s record and reward China

with a permanent trade deal. Tell Congressman

Paul to vote ‘No’ and keep China on probation until

this label stands for fairness. Paid for by the AF'L-

clo.

Senator McConnell’s brief also included the following ad,

which urged voters to contact a candidate without expressly

criticizing the candidate’s position:

It’s almost too much to swallow. Year after year

the federal government takes a bigger piece of the

pie. In fact in 1998 we’ll pay more in federal taxes

than at any time in American history except for

World War II. And now with the budget surplus, in

thirty years all the Washington politicians can talk

about is getting their hands on more of your dough.

Call Harry Reid and John Ensign tell them no mat-

ter who goes to Washington you want them to cut

viewers to contact candidates and express support for or opposition to

] i | ti or li iti ”).

* Brief for Appellants/Cross-Appellees Senator Mitch McConnell 51,

McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003) (No. 02-1674).

17

your taxes. Otherwise they’ll be nothing left but

the crumbs.’

Responding to the challengers’ argument that such election-

eering communications did not implicate Congress’s compel-

ling interest, this Court explained that “[t)he justifications

for the regulation of express advocacy apply equally to ads

aired during [the 30- and 60-day periods preceding federal

primary and general elections] if the ads are intended to in-

fluence the voters’ decisions and have that effect.” 540 U.S.

at 206. Reviewing the record, this Court concluded that the

“the vast majority of ads clearly had such a purpose.” /d.

Moreover, the record established that political parties and

candidates appreciated the “issue advocacy” run by non-

profit corporations and directed donors to support such ac-

tivities. Jd. at 129. Indeed, the testimony of campaign pro-

fessionals demonstrated that these so-called “issue ads” rep-

resented the most effective type of campaign advertising.

Id. at 126-127. In short, having considered arguments and

exemplary ads indistinguishable from those presented here,

this Court both concluded that electioneering communica-

tions implicate Congress’s compelling interest in preventing

corporations from influencing federal elections and rejected

the contention that BCRA’s definition of “electioneering

communications” is too broad because it encompasses such

ads.

In any event, the Court found that corporations’ ability

to finance such ads with funds from segregated PAC funds

undermined the contention that § 441b impermissibly bur-

dened corporate speech. /d. at 204-206. Acknowledging the

possibility that the definition of “electioneering communica-

tions” might cover some unidentified genuine issue ads, this

Court concluded that this possibility did not cast doubt on §

44lb’s constitutionality because “corporations and unions

may finance genuine issue ads during those time frames by

* Appendix to Brief for Appellants/Cross-Appellees Senator Mitch

McConnell 4A, McConnell v. Federal Election Comm'n, 540 U.S. 98 (2003)

(No. 02-1674).

18

simply avoiding any specific reference to federal candidates,

or in doubtful cases by paying for the ad from a segregated

fund.” Jd. at 206. In sum, McConnell upheld § 441b for two

reasons: First, the overwhelming majority of ads covered

by the electioneering communications test—like the ads at

issue here—are designed to, and in fact do, influence a fed-

eral election. Second, in close cases where the intent or ef-

fect of the ad is less clear, corporations may continue to run

such ads by financing them with funds from a segregated

PAC fund—as WRTL was free to do.

Il. SECTION 441b CONSTITUTIONALLY APPLIES TO WRTL’'S

THREE ADS.

This Court’s decision in McConnell effectively fore-

closes this as-applied challenge. McConnell precludes a cor-

poration from arguing that its speech is entitled to more pro-

tection than express advocacy or other types of electioneer-

ing communications that Congress clearly may regulate

within the bounds of the First Amendment. See 540 U.S. at

205. Moreover, McConnell conclusively establishes that

Congress has a compelling interest in applying § 441b’s

source restrictions to any ads that are intended to influence

a federal election and would almost certainly have that ef-

fect. See id. at 206. As with the ads this Court considered in

_ McConnell, there can be no doubt that the advertisements

at issue here had the purpose and likely effect of influencing

a federal election. And, as in McConnell, any doubt that

might have existed regarding the nature of these ads could

easily have been avoided “by paying for the ad from a segre-

gated fund.” 540 U.S. at 206.

A. WRTL’s Ads Deserve The Same Degree Of Con-

stitutional Protection As Ads Expressly Advocat-

ing A Candidate’s Zlection Or Defeat.

Although WRTL and its amici spill considerable ink ar-

guing the First Amendment value of WRTL’s ads, the issue

in this case is not whether WRTL’s ads constitute speech

that is worthy of constitutional protection. This Court’s de-

termination that Congress may constitutionally regulate

19

both express advocacy and electioneering communications

did not rest on any notion that such speech lacked constitu-

tional value. See McConnell, 540 U.S. at 205. Unlike the

challengers here, the McConnell plaintiffs did not even at-

tempt to “contend that the speech involved in so-called issue

advocacy is any more core political speech than are words of

express advocacy.” Jd. Indeed, this Court confirmed that

ads expressly advocating a candidate’s election o1 defeat fall

within the core of the First Amendment for “the constitu-

tional guarantee has its fullest and most urgent application

precisely to the conduct of campaigns for political office,’ and

‘[aldvocacy of the election or defeat of candidates for federal

office is no less entitled to protection under the First

Amendment than the discussion of political policy generally

or advocacy of the passage or defeat of legislation.” Jd. (in-

ternal citations omitted). WRTL’s ads deserve the same

level of constitutional protection—no more, no less—that

this Court has afforded express advocacy.

Accordingly, WRTL’s as-applied challenge must rest

not on the ground that its speech is uniquely valuable vis-a-

vis express advocacy or other forms of electioneering com-

munications, but on the ground that (1) its ads do not impli-

cate the same compelling interest that led this Court to up-

hold the corporate source requirements in the context of ex-

press advocacy and electioneering communications, and (2)

that the segregated-PAC option does not represent a consti-

tutionally sufficient opportunity for WRTL to disseminate

its message. Because WRTL’s ads had an electioneering

purpose and WRTL has an established PAC, this as-applied

challenge fails.

B. WRTL’s Ads Had An Electioneering Purpose.

It is settled that Congress may require corporations to

use segregated PAC funds to finance ads that have an elec-

tioneering purpose. See McConnell, 540 U.S. at 205-206. In

rejecting the notion that Congress’s compelling interest in

regulating corporate express advocacy did not extend to

corporate electioneering communications, this Court stated

that “(t]he justifications for the regulation of express advo-

20

cacy apply equally to ads aired during those periods if the

ads are intended to influence the voters’ decisions and have

that effect.” Jd. at 206. This holding comported with this

Court’s long-standing recognition that Congress’s purpose in

§ 441b “is to prohibit contributions or expenditures by cor-

porations . . . in connection with federal elections.” National

Right to Work, 459 U.S. at 201. McConnell merely reaf-

firmed that “unusually important interests underlie the

regulation of corporations’ campaign-related speech.”

McConnell, 540 U.S. at 206 n.88. Corporate electioneering

ads fall within the scope of Congress’s well-established com-

pelling interest in (1) regulating “the corrosive and distort-

ing effects of immense aggregations of wealth that are ac-

cumulated with the help of the corporate form and that have

. little or no correlation to the public's support for the corpo-

ration’s political ideas,” and (2) preventing circumvention of

valid campaign finance regulations. Jd. at 205 (quoting Aus-

tin, 494 U.S. at 660).

WRTL unsuccessfully attempts to characterize the pur-

pose of its ads as “genuine grassroots lobbying,” not elec-

tioneering. It asserts that its ads only urged voters to call

Senator Feingold (a candidate WRTL openly opposed) on

the judicial filibuster issue (an issue WRTL used to advocate

for Senator Feingold’s defeat). Thus, concludes WRTL,

“Grassroots lobbying ads . . . have nothing to do with elec-

tions.” Br. for Appellant 25.

That assertion—which turns on the false premise that

any given ad is exclusively either a form of lobbying or elec-

tioneering—is not accurate as a general matter and certainly

is not credible on the facts of this case. Leading up to the

airing of the WRTL ads, WRTL publicized its intention to

defeat Senator Feingold in the 2004 election, a clear elec-

tioneering purpose. Amici Ex. C. Both WRTL and its

WRTL-PAC proclaimed that the defeat of Senator Feingold

represented one of WRTL’s top priorities in the 2004 elec-

tion. /Jd.; see also FEC Ex. 4. In connection with its strat-

egy to defeat Feingold, WRTL openly endorsed all three of

Feingold’s Republican opponents. FEC Ex. 4. WRTL’s

21

public statements of opposition to Feingold, and its support

for Feingold’s opponents, emphasized Feingold’s position on

judicial filibusters as a key justification for opposing Fein-

gold in the 2004 election. Jd.; see also Amici Ex. C; FEC Ex.

16. Moreover, “candidates opposing Senator Feingold made

Senator Feingold’s support of Senate filibusters against ju-

dicial nominees a campaign issue.” J.S. App. 5a (Three-

Judge Court’s Findings of Fact). Having joined with Fein-

gold’s opponents in calling for the senator’s defeat because

of his support for filibusters, WRTL in its ads pointedly re-

minded voters that a “group of Senators” was unjustifiably

blocking qualified nominees from a confirmation vote and

specifically named Senator Feingold as one of two senators

voters should contact. Jd. at 13a-17a. WRTL’s so-called

“grassroots lobbying” ads failed to include, however, Sena-

tor Feingold’s phone number or office address. Jd.

This record establishes that WRTL intended to defeat

Feingold, and that it intended to do so on the basis of Fein-

gold’s filibuster position when it ran the three ads at issue

here. WRTL’s ads implemented the organization’s electoral

strategy by focusing voters’ attention on judicial filibusters

and tying the need for action on that issue to Senator Fein-

gold, a candidate whose re-election WRTL had repeatedly

opposed because of his position on judicial filibusters. In

short, WRTL’s ads had an electioneering purpose.

WRTL suggests that so-called “lobbying ads” that refer

to a candidate for federal office can be easily distinguished

from electioneering."° That position, however, conflicts not

'°WRTL purports to find support for this contention in comments that

the principal sponsors of BCRA, including amici, submitted to the FEC in

the rulemaking implementing Title II of BCRA. Br. for Appellant 24-25

n.19. WRTL fails to note, however, the FEC rejected the proposal, as

well as other similar proposals, because it found that they would have

exempted communications that “could well be understood to promote,

support, attack, or oppose a federal candidate.” 67 Fed. Reg. 65,201 (Oct.

23, 2002). Moreover, WRTL erroneously equates a proposed (and re-

jected) regulatory standard with a constitutional standard. And, in mak-

ing its argument, WRTL incorrectly equates ads that refer to a specific

22

just with the facts of this case, but also with this Court’s

longstanding recognition that electioneering and lobbying

often overlap. See Buckley v. Valeo, 424 U.S. 1, 42 (1976).

As this Court said in Buckley, “the distinction between dis-

cussion of issues and candidates and advocacy of election or

defeat of candidates may often dissolve in practical applica-

tion.” Id.; see also McConnell, 540 U.S. at 126 & n.16.

WRTL asserts that the content of its ads, viewed in a

vacuum, reveals no electioneering purpose. But the lesson

of this nation’s experiment with the express-advocacy test is

that corporate ads that identify a candidate and that are run

shortly before an election almost always are intended to in-

fluence electoral outcomes and do affect elections, even if the

ads stop short of explicitly advocating a candidate’s election

or defeat. See McConnell, 540 U.S. at 206. Just as “Con-

gress is not required to ignore historical evidence regarding

a particular practice or to view conduct in isolation from its

context,” id. at 153, this Court need not and should not arti-

ficially confine its analysis in the manner WRTL suggests,

particularly when the surrounding circumstances reveal

such an obvious intent to influence a federal election. This

Nation’s recent experience with the abuse of the “magic

words” test leaves no doubt that, if WRTL’s proposed ex-

ception to § 441b were adopted, it would create a new blue-

print for the widespread evasion of the federal campaign fi-

nance laws.

C. The Segregated-Fund Option Provides WRTL

With A Constitutionally Sufficient Opportunity

To Finance Its Ads Without Banning Any Speech

By The Corporation.

Section 441b does not prohibit corporations from speak-

ing. Congress has only sought to regulate “the temptation

to use corporate funds for political influence” by requiring

corporations to finance electioneering communications with

candidate for office by name—as WRTL sought to do here—with ads that

refer generically to “your Congressman” or “your Senator.”

23

funds from a segregated PAC fund. Beaumont, 539 U.S. at

163. Accordingly, WRTL and its amici are “simply wrong in

characterizing § 441b as a complete ban.” Jd. at 162.

This Court has already concluded that the segregated-

fund option provides corporations with a constitutionally

sufficient opportunity to finance ads, even when the nature

of the corporation’s ad is unclear. McConnell, 540 U.S. at

206. As McConnell reaffirmed, the “Court’s unanimous

view” has been that “(t)he ability to form and administer

separate segregated funds . . . has provided corporations and

unions with a constitutionally sufficient opportunity to en-

gage in express advocacy.” Jd. at 203. Extending this view

to electioneering communications, this Court reasoned that,

regardless of what percentage of electioneering communica-

tions constituted non-electioneering ads in the past, “in the

future corporations and unions may finance genuine issue

ads during those time frames by simply avoiding any specific

reference to federal candidates, or in doubtful cases by pay-

ing for the ad from a segregated fund.” Id. at 206 (emphasis

added). Thus, even if WRTL’s electoral intent in running

the three ads were less than clear, § 441b could constitution-

ally require WRTL to finance its ads with funds from its

segregated PAC.

Although WRTL does not dispute that, as a general

matter, the segregated fund option represents a constitu-

tionally sufficient alternative, it argues that its own PAC

contained insufficient funds to finance these three adver-

tisements. WRTL blames its PAC’s fundraising failure on

“inadequate time to raise sufficient funds” to finance the

three ads at issue here. Br. for Appellant 41. Yet, WRTL

knew no later than March 5, 2004, when it announced its

plans to defeat Senator Feingold, that it might have a need

for PAC expenditures six months in the future. See FEC

Ex. 4.

This lack of support for WRTL’s electoral positions, or

WRTL’s poor fiscal planning, hardly undermines the ade-

quacy of the PAC alternative or justifies using general

treasury funds in place of PAC funds. This Court has never

24

accepted the notion that the applicability of § 441b can turn

on the size of a particular PAC’s checkbook. See Beaumont,

539 U.S. at 157 (“specifically reject[ing] the argument ...

that deference to congressional judgments about proper lim-

its on corporate contributions turns on details of corporate

form or the affluence of particular corporations”); see also

Austin, 494 U.S. at 661 (upholding application of state stat-

ute similar to § 441b to all corporations including ones that

“may not have accumulated significant amounts of wealth”);

McConnell, 540 U.S. at 227 (“[pJolitical “free trade” does not

necessarily require that all who participate in the political

marketplace do so with exactly the same resources”) (cita-

tion omitted). Nor should the Court embrace the idea that

the constitutionality of applying § 441b to a particular corpo-

_ ration turns on the corporation’s effectiveness at fundraising

or its failure to plan ahead. If WRTL’s position became law,

corporations and labor unions would have the perverse in-

centive to circumvent § 441b by simply declining to solicit

contributions for their PACs.

Aside from the PAC alternative, § 441b also provides

corporations with numerous other avenues for disseminating

their messages. WRTL could have run the ads at issue if it

merely refrained from referring to Senator Feingold. It

could have run its ads, and could have used its corporate

treasury funds to finance those ads, if it simply used news-

papers, billboards, direct mail or any other type of non-

broadcast communication medium. And, it could have—and

did—use corporate treasury funds to broadcast its ads out-

side the 60-day period before the general election and the 30-

day before the primary election. Rather than avail itself of

these alternatives, WRTL sought to use its corporate treas-

ury funds to run broadcast ads that were intended to influ-

ence a federal election and, if aired, would almost certainly

have done so. Under these circumstances, and this Court’s

clear holding in McConnell, § 441b’s segregated fund re-

quirement constitutionally applies to WRTL’s advertise-

ments.

25

D. WRTL And Other Non-Profit Advocacy Corpora-

tions Can Avoid § 44lb’s Requirements Alto-

gether By Declining To Accept Corporate Contri-

butions.

WRTL is subject to § 441b’s segregated-fund require-

ment only because it chooses to accept contributions from

corporate treasuries. Under the MCFL exemption, non-

profit advocacy corporations, like WRTL, may generally use

their own corporate treasuries to finance electioneering

communications. See McConnell, 540 U.S. at 209-211. This

exemption does not apply, however, when the non-profit or-

ganization receives corporate treasury contributions, for

then the non-profit corporation has the potential to “servie]

as [a] conduit(] for the type of direct spending that creates a

threat to the political marketplace.” MCFL, 479 U.S. at

264."

Repeating an argument unsuccessfully raised by the

NRA in McConnell,"" WRTL suggests that this Court

should rewrite § 441b to permit WRTL to finance its elec-

tioneering communications with funds received from non-

corporate contributors without establishing a segregated

'' Senator McConnell argues, as an amicus curiae, that “small nonprofit

corporations often lack the financial resources and manpower necessary to

satisfy” the requirements for establishing a PAC. See Brief of United

States Senator Mitch McConnell as Amicus Curiae in Support of Appel-

lant 10-11. Putting aside the fact that WRTL had a PAC—and thus that

issue is not before the Court—this Court has repeatedly recognized that

the “regulatory burden” of operating a PAC does not give rise to a consti-

tutional problem, except in the limited case of direct expenditures by so-

called MCFL corporations. McConnell, 540 U.S. at 210-211 & n.91; Beau-

mont, 539 U.S. at 163; National Right to Work, 459 U.S. at 201-202. The

argument also ignores the fact that a non-profit organization that is

“formed for the express purpose of promoting political ideas” can avoid

the relatively minimal burden of creating a PAC by declining to accept

corporate contributions, and thus avoiding the risk that it will be used as a

conduit for unlawful electioneering. MCF L, 479 US. at 264.

'? Brief for Appellants The National Rifle Association at 28-33, National

Rifle Association v. Federal Election Comm’n, 540 U.S. 93 (2003) (No. 02-

1675).

26

PAC fund. Because WRTL did not pay for or seek to pay for

its ads with non-corporate dollars, WRTL’s proposal

amounts to a request for an advisory opinion. Indeed, the

record contains no suggestion that WRTL ever. segregated

its corporate from its non-corporate funds. In any event,

money under these circumstances is fungible, and segregat-

ing non-corporate funds will not prevent WRTL from indi-

rectly using corporate funds to finance electioneering com-

munications. In short, there is no factual basis here for any

as-applied challenge based upon the type of funds used to

finance WRTL’s ads.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted,

SETH P. WAXMAN BRADLEY S. PHILLIPS

RANDOLPH D. Moss Counsel of Record

WILMER CUTLER PICKERING GRANT A. DAVIS-DENNY

HALE AND DORR LLP MUNGER, TOLLES

2445 M Street, N.W. & OLSON LLP

Washington, DC 20037 355 South Grand Avenue

(202) 663-6000 35th Floor

ROGER M. WITTEN rca pe 90071

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

DECEMBER 2005

US.

FILED

(8) NOV 14 2005

No. 04-1581 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

WISCONSIN RIGHT TO LIFE, INC.,

Appellant,

V.

FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal From

The United States District Court

For The District Of Columbia

BRIEF OF

UNITED STATES SENATOR MITCH McCONNELL

AS AMICUS CURIAE

IN SUPPORT OF APPELLANT

THEODORE B. OLSON

Counsel of Record

DOUGLAS R. Cox

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the prohibition on corporate disbursements for

“electioneering communications” during a statutorily im-

posed black-out period, codified at 2 U.S.C. § 441b, is un-

constitutional as applied to television advertisements that are

devoted exclusively to urging constituents to contact named

elected officials regarding pending governmental matters.

ii

TABLE OF CONTENTS

Page

Se A Se cv ciccinitnincncinniincagtenasinniianbines ili

INTEREST OF AMICUS CURIAE .........scccccssseceseseceseeees 1

NRE TTITTIIS sisnvessterptitiinitichihiindinbnniieiieniatadensetaaiiapinciniiatuibiigeii 2

SUMMARY OF ARGUMENT ..............c.ccccccccesseeeeeseeeeees 6

TE citnlitiiccictiiciaitidintcinicntcieiisiaimisiicliiai banish adi 8

I. GRASS-ROOTS LOBBYING IS CORE

als GH IE cectietenisdntininiccrnninniadginnendiaiiniann 8

A. Grass-Roots Lobbying Is Protected Under

The Petition Clause Of The First Amend-

i aiticiasecnisitccststitininindaaitaaabapaaintiitinisiabtibdacindipiibaitaiens 12

B. Grass-Roots Lobbying Is Integral To Self-

NNN cectnpesiesntnchashpeepncinindnceinsiteiabianmeieneuibinimindie 16

C. Grass-Roots Lobbying Is Integral To The

Marketplace Of 10as........cccccccoscesrcsescsescesecessees 18

D. Grass-Roots Lobbying Enables All Seg-

ments Of The Population To Engage In

TRO PORIORE PUBBBGB ..ccccccccccesccccsscscossescstssonsees 20

II. GRASS-ROOTS LOBBYING EFFORTS DO

NOT PRESENT THE SAME CONCERNS

THAT LED THIS COURT TO REJECT

A FACIAL CHALLENGE TO BCRA’S

ELECTIONEERING COMMUNICATIONS

FF TED cnsetcsascanseinidennivatsnpantateianiiiibesnbninuniatnnint 21

ee hc cerictresrnmncnsintavstinnsviinmennmeimnimeatiteomndtainiens 28

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Abrams v. United States, 250 U.S. 616 (1919)..........ccccseceees 18

Ashcroft v. ACLU, 535 U.S. 564 (2002).........ccccesceereeeeeeeeeees 8

Austin v. Mich. State Chamber of Commerce,

re es ee ED cdeeintieieaienscbinenbdithcietntiartticienindiniciiggt 12, 23

Brown v. Hartlage, 456 U.S. 45 (1982) ........:cccscssseeseeeeeeresees 7

Buckley v. Valeo, 424 U.S. 1 (1976) ......ccccccccscseseesseeeeeeseeeee 17

Colo. Republican Fed. Campaign Comm. v.

es ee es re ee itcietatitaliddiitintavinipeiniemnniennenne 2

E. R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127 (1961).................00.. 13, 15, 16

FEC v. Mass. Citizens for Life, Inc., 479 U.S.

TIT viiieiscenpceestitesbdisinisicatatebtieeniaimetinnaanite 10, 11, 23, 26, 27

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) .............06 18

FTC v. Superior Court Trial Lawyers Ass'n, 493

Be Saree Se nchecetcntiientbiniicubiaisbidiianbicithaciiaeinniajpataisamsininaiti 15

Garrison v. Louisiana, 379 U.S. 64 (1964).........ccccccceeee 16, 27

Harte-Hanks Commc’ns, Inc. v. Connaughton,

a ee re itched niitinntinnraitainininiitctncaicitinaneniii 8

Herbert v. Lando, 441 U.S. 153 (1979)..........cccceceseceseeeeeeees 16

Lamont v. Postmaster Gen., 381 U.S. 301

STUTUET ich ebiiieiieiaiineedaeh tisha abatement i 19

McConnell v. FEC, 251 F. Supp. 2d 176

ED.D... 2003) ..2.0-0000--vercocevereecsseresnesssevevenesvscssececoceonererees 24

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

McDonald v. Smith, 472 U.S. 479 (1985) ....ccccccccscsesseseeseeees 13

iV

Page(s)

CASES (cont’d)

Meyer v. Grant, 486 U.S. 414 (1988)...........ccccceeccsceeeeeees 9,10

Mills v. Alabama, 384 U.S. 214 (1966)..........ccccccccesseeeseeeeeees 9

NAACP v. Alabama, 357 U.S. 449 (1958) ......ccceceseseseseseeeees 14

NAACP y. Claiborne Hardware Co., 458 U.S.

IIIT scocievuistinrstecshierinreseinntiattetintshiadinenjiiagpiibaiadadauiiatiiniaatins 13

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

TIE ininiccsscenicninbiileibeaiibesibecibcacaiariiiadaatsapimiehiaiadaiinanildeli calcd 2

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ...........0..0. 8

Palko v. Connecticut, 302 U.S. 319 (1937) ........ccccccceeeeseeees 27

Regan v. Taxation with Representation of

Wash., 461 U.S. 540 (1983) ...........:cccssesseceseeesseceeseceeenes 15

Roth v, United States, 354 U.S. 476 (1957) ....esseecsesseseeeenen 9

Thomas v. Collins, 323 U.S. 516 (1945) .........cccccecceeeeeeeeeeees 19

United States v. Auto. Workers, 352 U.S. 567

CRIP OD vervssncvnssninnitsanecaniapenianiniiaiiiaiteiinintaiidiaienaadiaiasdai 2

United States v. Cruikshank, 92 U.S. 542 (1876)........... 13, 14

United States v. Eichman, 496 U.S. 310 (1990) ...........0000 14

United States v. Nordic Vill., Inc., 503 U.S. 30

CT eccsscviscitatpsncansiniiteasisaiteciiaciaipaliasimiuaitiniaiialiatatiiinaiaa dial’ 25

Whitney v. California, 274 U.S. 357 (1927) ....cccccccsecsseeseeees 18

STATUTES

FE. B i ceenccncssnvticssninirecvsiniitccinmitstiinsiambiadaaniin 25

SUB L. BD scccesectsesnsninsosevcinninnianteniametnanianiaain 3

DUO BO i iets i, 1, 3,4

Page(s)

RULES

a etre ceinrcppenenennnmianemtencesesssnenenseceane 3, 25

Eee eT 11

Electioneering Communications, 67 Fed. Reg. 65,190

I i: STII csussncnresescnennsussnsesececessessesvecssoneesens 9

OTHER AUTHORITIES

Carol Rice Andrews, Motive Restrictions on

Court Access: A First Amendment

Challenge, 61 OHIO ST. L.J. 665 (2000) ...........000000 12, 13

RAYMOND C. BAILEY, POPULAR INFLUENCE

UPON PUBLIC POLICY: PETITIONING IN

EIGHTEENTH-CENTURY VIRGINIA (1979) .........cccccccceeeees 13

STEPHEN BREYER, ACTIVE LIBERTY:

INTERPRETING OUR DEMOCRATIC

acai nrrrrteetesmnstnconan 16

David Cole, Hanging with the Wrong Crowd:

Of Gangs, Terrorists, and the Right of

Association, 1999 Sup. CT. REV. 203

Editorial, Year-Round Political Ads?; The

Campaign to Persuade Is Never Ending,

Alas, PITTSBURG POST-GAZETTE,

ENE AEE a ae 24

FEC, Campaign Guide for Corporations and

EE SL SES EET 11

Steven J. Heyman, Righting the Balance: An

Inquiry into the Foundations and Limits of

Freedom of Expression, 78 B.U. L. REV.

Ee 9

Page(s)

OTHER AUTHORITIES (cont’d)

Oliver Wendell Holmes, The Path of the Law,

eee 19

Letter from Thomas Jefferson, to Edward

Carrington (Jan. 16, 1787), reprinted in THE

FOUNDERS’ CONSTITUTION 122 (Philip B.

Kurland & Ralph Lerner eds., 1987) ..............cssesseeseees 17

Jason Mazzone, Freedom’s Associations, 77

es le le a ccietectinerisinnintnntnscpcinnimenesseninnenii 12

Mitch McConnell, /n Defense of Soft Money,

me RR 8 l

Mitch McConnell, “Reform” Hurts Freedoms,

USA TODAY, Mar. 23, 2001, at A16.............:ccccccccseceeeeees l

Mitch McConnell, Speech Limits Are Not

Reform, USA Topay, Feb. 26, 2002, at A13............000+ 21

Mitch McConnell, Why Are Media Exempt?,

USA Topay, Mar. 19, 2002, at A14...... ee eeeeeees 21

ALEXANDER MEIKLEJOHN, FREE SPEECH AND

ITS RELATION TO SELF-GOVERNMENT .......-.:00000cccceeeeeeees 19

JOHN STEWART MILL, ON LIBERTY 20 (Stefani

Collini ed., Cambridge Univ. Press 1989)

STII iinet iain ita ceeiaeesinaiiciatattanitil 19

MODEL RULES OF PROF’ L CONDUCT..............0cccccccceeeeeceeeeeeees 20

14 Op. Off. Legal Counsel 84 (1990) ...........c.ccccsecceseeseneeeees 27

Press Release, Office of the Press Secretary,

President Signs Campaign Finance Reform

Pe es SD citiscenicnielinsittiniapianniis 2, 3, 7, 12, 27

RODNEY A. SMOLLA & MELVILLE B. NIMMER,

SMOLLA & NIMMER ON FREEDOM OF SPEECH

re I cicicnniessshcininedinniinnabinnsieniesnidntiieeaseiieniiinniimataiatin 20

vii

Page(s)

OTHER AUTHORITIES (cont’d)

Andrew P. Thomas, Easing the Pressure on

Pressure Groups: Toward a Constitutional

Right to Lobby, 16 HARV. J.L. & PuB. POL’ y

Ue cictincistedstainimnicieanstiiatabenntiitiinmsniiieimannneat 13

THE WRITINGS OF JAMES MADISON 103 (Gaillard Hunt ed.,

BRIEF OF

UNITED STATES SENATOR MITCH McCONNELL

AS AMICUS CURIAE IN SUPPORT OF APPELLANT

INTEREST OF AMICUS CURIAE!

The question presented in this case is whether the prohi-

bition on “electioneering communications,” codified at

2 U.S.C. § 441b, is unconstitutional as applied to grass-roots

lobbying. The First Amendment is essential to the vitality

and legitimacy of our political process. Amicus—a long-time

advocate of First Amendment protection for political speech,

and an elected official with a vital personal stake in the health

of our political system—has a significant interest in the reso-

lution of this question.

United States Senator Mitch McConnell is the senior

United States Senator from the Commonwealth of Kentucky

and the Senate Majority Whip. He also is the former chair-

man and a current member of the Senate Rules and Admini-

stration Committee, which is the committee responsible for

reviewing all proposed legislation related to federal elections.

During his four terms in the Senate, Senator McConnell has

been one of the Senate’s foremost champions of vigorous po-

litical debate and has consistently argued that restrictions

upon free speech are constitutionally doubtful and will un-

dermine popular participation in government. See, e.g.,

Mitch McConnell, Jn Defense of Soft Money, N.Y. TIMES,

Apr. 1, 2001, § 4, at 17; Mitch McConnell, “Reform” Hurts

Freedoms, USA TODAY, Mar. 23, 2001, at A16.

1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties

to the filing of this brief have been submitted to the Clerk. Pursuant to this

Court’s Rule 37.6, amicus states that this brief was not authored in whole

or in part by counse) for any party, and that no person or entity other than

amicus or his counse] made a monetary contribution to the preparation or

submission of this brief.

2

Senator McConnell’s strongly held beliefs about the

meaning of the First Amendment and the importance of ro-

bust political debate led him to challenge the constitutionality

of the Bipartisan Campaign Reform Act of 2002 shortly after

its enactment. See McConnell v. FEC, 540 U.S. 93 (2003).

He also has participated as amicus curiae in several other

cases contesting the validity of restrictions on political

speech.2 Senator McConnell’s position as a United States

Senator and his extensive experience with campaign finance

legislation give him unique insight into the constitutional in-

firmities presented by the Bipartisan Campaign Reform Act’s

application to the grass-roots lobbying efforts at issue here.

STATEMENT

1. In 2002, Congress passed—and the President

signed—the Bipartisan Campaign Reform Act (“BCRA”),

which amended the Federal Election Campaign Act of 1971

(“FECA”) to curb corruption or the appearance of corruption

in federal elections. See McConnell, 540 U.S. at 115 (calling

BCRA the most recent federal enactment designed to “purge

national politics of what was conceived to be the pernicious

influence of ‘big money’ campaign contributions” (citing

United States v. Auto. Workers, 352 U.S. 567, 572 (1957))).

When signing BCRA into law, President Bush cautioned that

several of its provisions “present serious constitutional con-

cerns.” Press Release, Office of the Press Secretary, Presi-

2 See Brief of Senator Mitch McConnell, Missouri Republican Party, Re-

publican National Committee, and Nationa] Republican Senatorial Com-

mittee, as Amici Curiae in Support of Respondents, Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377 (2000) (No. 98-963); Brief of Washington Legal

Foundation, Fair Government Foundation, Allied Educational Foundation;

U.S. Senators Alfonse M. D’Amato, Mitch McConnell; U.S. Representa-

tives Henry J. Hyde, Bob Livingston, Joe Barton, Bob Walker; Bill

Frenxel and Eugene McCarty, as Amici Curiae in Support of Petitioners,

Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 614 (1996)

(No. 95-489).

3

dent Signs Campaign Finance Reform Act (Mar. 27, 2002),

available at http://www.whitehouse.gov/news/releases/2002/

03/20020327.html [hereinafter Presidential Signing State-

ment}. The President expressed specific “reservations about

the constitutionality of [BCRA § 203’s] broad ban on issue

advertising, which restrains the speech of a wide variety of

groups on issues of public import in the months closest to an

election.” Jd.

A year later, this Court upheld most of BCRA’s provi-

sions, and considered—and rejected—a facial challenge to

BCRA § 203’s restrictions on issue advertising. McConnell,

540 U.S. at 207. That provision prohibits any corporation

from “mak[ing] a contribution or expenditure in connection

with any election to any political office, or in connection with

any primary election .. . for any political office.” 2 U.S.C.

§ 441b(a). The terms “contribution” and “expenditure” are

defined to include “electioneering communications.” /d.

§ 441b(b)(2).

An “electioneering communication,” in turn, is defined

as any broadcast, cable, or satellite communication that (i)

refers to any clearly identified federal candidate; (ii) is made

within 30 days of a primary or 60 days of a general election;

and (iii) is targeted to the electorate of the identified candi-

date. 2 U.S.C. § 434(f)(3)A)(i); see also 11 C.F.R.

§ 100.29(b)(2) (explaining that “[rJefers to a clearly identified

candidate means that the candidate’s name, nickname, photo-

graph, or drawing appears”). Once these provisions are trig-

gered, a corporation “may not use [its] general treasury funds

to finance electioneering communications”; if it intends to

run advertisements referring to particular federal officehold-

ers during this black-out period, it must first create a distinct

organization—a separate segregated fund (or PAC)—in order

to speak. McConnell, 540 U.S. at 204; see also 2 U.S.C.

4

§ 441b(b)(2)(A)-(C).3 BCRA § 203 thus extended FECA’s

existing restrictions on “express advocacy,” which applied to

corporate-funded advertisements that explicitly advocated a

candidate’s election or defeat, to electioneering issue adver-

tisements, which did not expressly advocate a vote for or

against a candidate. McConnell, 540 U.S. at 193-94.

In McConnell, the parties challenging BCRA’s constitu-

tionality argued that § 203’s restriction on electioneering

communications was substantially overbroad and thus fa-

cially unconstitutional. 540 U.S. at 204. The Court rejected

this facial challenge because it believed that “the vast major-

ity” of issue ads aired during the weeks immediately preced-

ing an election served an electioneering purpose (id. at 206)

and that restrictions on such ads were necessary to combat the

potentially distorting impact of corporate wealth on elections.

Id. at 205. The Court explained that the “justifications for the

regulation of express advocacy apply equally to [issue] ads

aired during those periods if the ads are intended to influence

the voters’ decisions and have that effect.” Jd. at 206 (em-

phases added). The Court recognized that restrictions on is-

sue ads that are not intended to serve an electioneering pur-

pose are constitutionally suspect and are thus amenable to an

as-applied challenge. See id. at 206 n.88 (“interests that jus-

tify the regulation of campaign speech might not apply to the

regulation of... issue ads” that do not serve an electioneer-

ing function). This Court is now squarely confronted with the

as-applied constitutional challenge that McConnell invited for

another day.

2. During the summer of 2004, Wisconsin Right To

Life, Inc. (““WRTL”), a nonprofit, 501(c) tax-exempt Wiscon-

3 Section 441b(b)(2)(C) provides that “the term ‘contribution or expendi-

ture’... shal) not include the establishment, administration, and solicita-

tion of contributions to a separate segregated fund to be utilized for politi-

cal purposes by a corporation, labor organization, membership organiza-

tion, cooperative, or corporation without capital stock.”