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

5

sin corporation, ran a series of advertisements urging Wis-

consin residents to lobby United States Senators Feingold and

Kohl to oppose filibusters of judicial nominees. See Jurisdic-

tional Statement (“J.S.”) at 4-5. As is the case today, the fili-

buster issue was then receiving significant national attention,

and there was a vigorous public debate about the judicial con-

firmation process.

WRTL’s lobbying campaign did not reference the Sena-

tors’ party affiliations, their voting records, or their personal

lives. See Jurisdictional Statement Appendix (“J.S.A.”) at

13a-17a. In fact, the ads mentioned the Senators’ names only

once, concluding with the suggestion that listeners “[c]ontact

Senators Feingold and Kohi and tell them to oppose the fili-

buster.” See id. at 13a, 15a, 17a (wording of three filibuster

ads). It is undisputed that, because the ads made reference to

Senator Feingold, who was then seeking re-election, they fell

within the plain terms of BCRA’s eleciioneering communica-

tions provisions for approximately a two-and-a-half-month

period, beginning August 15, 2004. J.S. at 4.4

3. On July 28, 2004, WRTL filed suit in the United

States District Court for the District of Columbia and sought

a preliminary injunction allowing it to continue running the

filibuster ads with general treasury funds during the statuto-

rily imposed black-out period. J.S. at 4. A three-judge panel

was convened pursuant to BCRA § 403(a)(1). The court de-

nied WRTL’s preliminary injunction request on August 12

and subsequently dismissed WRTL’s complaint with preju-

dice. J.S.A. at 2a-4a.

The three-judge panel’s opinion denying WRTL’s re-

quest for injunctive relief interpreted McConnell as preclud-

ing all as-applied challenges to BCRA’s electioneering com-

4 Because Senator Feingold was a candidate in the September 14 primary

and the November 2 general election, WRTL was prohibited from running

the filibuster ads from August 15 to November 2, 2004.

6

munications provisions. J.S.A. at 8a. The court also opined

that WRTL had not established its entitlement to a prelimi-

nary injunction on the merits. Jd. In reaching this conclu-

sion, the court suggested that WRTL’s ads were the very type

of activity that McConnell found Congress had a compelling

interest in regulating. Jd. at 8a-9a. Specifically, the court ex-

pressed concern that grass-roots issue ads focused on filibus-

tering—arguably an issue in Senator Feingold’s re-election

campaign—could “convey a message of support or opposi-

tion regarding candidates.” Jd. at 9a (internal quotation

marks omitted).

The court opined that because WRTL could conceivably

finance its filibuster ads with PAC funds, it would not suffer

irreparable harm if a preliminary injunction were denied.

J.S.A. at 10a-1la. The court also found that the Federal Elec-

tion Commission would suffer a “substantial injury” if it were

not able to comply with its statutorily imposed duty to en-

force BCRA. Jd. at 1la. Finally, the court rejected WRTL’s

contention that an injunction would further the public interest,

because this Court had already determined that BCRA fa-

cially serves a compelling governmental interest. Jd.

WRTL filed a notice of appeal and a jurisdictional state-

ment, and this Court noted probable jurisdiction.

SUMMARY OF ARGUMENT

This case presents the exceptionally important question

whether BCRA § 203’s restrictions on electioneering com-

munications can be constitutionally applied to all grass-roots

lobbying. This Court’s resolution of the issue must give due

regard to the essential freedoms embodied in the First

Amendment.

In holding that § 203 is facially constitutional, the

McConnell Court preserved the availability of as-applied

challenges to the statute. Indeed, the Court explicitly ac-

knowledged the serious constitutional concerns that would be

raised by the application of BCRA’s electioneering commu-

7

nications provisions to genuine issue advocacy. See McCon-

nell, 540 U.S. at 206 n.88 (“interests that justify the regula-

tion of campaign speech might not apply to the regulation

of . . . issue ads” that do not serve an electioneering purpose);

see also Presidential Signing Statement (expressing “reserva-

tions about the constitutionality of the broad ban on issue ad-

vertising”). Because the ability of citizens to express their

views is the essence of self-government, BCRA § 203’s limi-

tations on grass-roots lobbying are unconstitutional.

The district court erred in denying WRTL’s request for

an injunction permitting it to run its grass-roots lobbying ads

during the statutorily imposed black-out period. Specifically,

the district court failed to give adequate weight to the signifi-

cant First Amendment interests implicated by a grass-roots

lobbying campaign. A generalized concern about protecting

the integrity of the election process does not justify imposing

restrictions upon grass-roots issue advertisements because

such restrictions do not further the government’s asserted an-

ticorruption interest.

Political speech is obviously “[a]t the core of the First

Amendment.” Brown v. Hartlage, 456 U.S. 45, 52 (1982).

Grass-roots lobbying, a traditional means of influencing gov-

ernmental action through citizen participation, fits squarely

within the scope of core political speech and is also a mani-

festation of the people’s constitutionally protected right to

petition the government. To restrict this class of favored

speech, the government must therefore establish that the re-

striction is narrowly tailored to serve a compelling govern-

mental interest.

This demanding level of scrutiny is warranted because

political speech underlies every facet of the American system

of government. Without robust political debate, the people

cannot govern themselves effectively. Grass-roots lobbying

facilitates self-governance by encouraging citizen participa-

tion, the exchange of ideas, and—through these mecha-

8

nisms—citizen education. Open discourse thus serves a con-

sensus-building function, which ensures that “the best” ideas

win out in the political marketplace.

The government has not identified a compelling interest

sufficient to justify the imposition of BCRA’s restrictions on

grass-roots lobbying advertisements during the weeks imme-

diately preceding an election, when constituents are most re-

ceptive to political ads and Congress is often at the height of

its legislative activity. A desire to insulate incumbents from

public scrutiny is not a compelling interest that warrants re-

stricting debate on issues of political import.

Grass-roots issue advertisements are not functionally

equivalent to electioneering issue advertisements because

grass-roots issue ads do not urge a candidate’s election or de-

feat, either in appearance or actuality. Indeed, the only link

between grass-roots issue ads and elections is the fact that

such ads are run during the time frame immediately preceding

an election, and that they exhort citizens to contact named

elected officials with respect to pending legislative or execu-

tive matters.

This Court should consider this case against the backdrop

of our “profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and

wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270

(1964). Restricting grass-roots lobbying efforts would si-

lence core political speech that is integral to the functioning

of our form of government.

ARGUMENT

I. GRASS-ROOTS LOBBYING IS CORE

POLITICAL SPEECH.

The First /aznendment embodies this Court’s “profound

national commitment to the free exchange of ideas.’”

Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Harte-

Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 686

vi 9

(1989)). Grass-roots lobbying, which encompasses any com-

munication devoted exclusively to urging support or opposi-

tion for pending legislative or executive matters, enables this

free exchange of ideas. Cf Electioneering Communications,

67 Fed. Reg. 65,190, 65,201-02 (proposed Oct. 23, 2002)

(discussing the wording of the FEC’s proposed lobbying ex-

ceptions). Such lobbying efforts constitute core political

speech essential to our system of government.

This Court has recognized that the First Amendment’s

protection is “at its zenith” where core political speech is im-

plicated. Meyer v. Grant, 486 U.S. 414, 425 (1988). Indeed,

at the time of the Founding, “Americans generally believed

that freedom of thought, belief, and expression were among

the natural rights of individuals. These freedoms were also

regarded as inherent in republican citizenship, allowing the

people to express their views on public affairs and to guard

their liberties against governmental encroachment.” Steven J.

Heyman, Righting the Balance: An Inquiry into the Founda-

tions and Limits of Freedom of Expression, 78 B.U. L. REV.

1275, 1296 (1998). Thus, “[w]hatever differences may exist

about interpretations of the First Amendment, there is practi-

cally universal agreement that a major purpose of that

Amendment was te protect the free discussion of governmen-

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

Grass-roots lobbying is a fundamental element of the po-

litical discourse that the First Amendment was designed to

promote. See Roth v. United States, 354 U.S. 476, 484 (1957)

(“The protection given speech and press was fashioned to as-

sure unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.”). Adver-

tisements run as part of a grass-roots lobbying campaign, or

“grass-roots issue ads,” seek to influence governmental action

by energizing a broad base of support for a particular issue or

idea. Regardless of the particular issue involved, all grass-

roots lobbying advertisements exhort constituents to contact

the very representatives they voted to elect regarding pressing

10

political issues. WRTL’s ads, for example, urged Wisconsin

residents to lobby their Senators to oppose the filibustering of

judicial nominees. In this way, grass-roots issue ads serve

both an education function—informing the public about

pending issues—and an accountability function—fostering

constituent awareness of governmental action.

When citizens organize to engage in grass-roots lobby-

ing, they are informing, energizing, and persuading one an-

other as well as the persons whom they elected to represent

them in Congress. Such “interactive communication con-

ceming political change” rests within the heart of the First

Amendment’s protections, and the government’s efforts to

restrict this political discourse are therefore subject to the

most searching judicial scrutiny. Meyer, 486 U.S. at 422; see

also id. at 428 (striking down Colorado’s prohibition on

payment for the circulation of ballot-initiative petitions).

This exacting scrutiny is triggered whenever political speech

is curtailed, even if alternate means of expression exist. See

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 255

(1986) (although expenditure limitations did not restrict all

_avenues of speech, “[tjhe fact that the statute’s practical ef-

fect [was] to discourage protected speech [was] sufficient to

characterize [the statute] as an infringement upon First

Amendment activities”).

Moreover, the misguided argument—telied upon by the

court below—that corporations can use PAC funds to finance

a lobbying effort, is a constitutional red herring. This “alter-

native” in practical reality suppresses constitutionally pro-

tected speech. The use of PAC funds to finance lobbying ef-

forts is not a constitutionally adequate alternative to corpo-

rate-funded advertisements because funneling pre-election

grass-roots lobbying through a PAC significantly burdens

constitutionally protected speech. Establishing a PAC is an

extremely complex endeavor—as illustrated by the volumi-

nous guides and regulations that address the topic—and small

nonprofit corporations often lack the financial resources and

ll

manpower necessary to satisfy these onerous requirements.

fndeed, the FEC’s “Campaign Guide for Corporations and

Labor Unions” is over 115 pages long,> and the federal regu-

lations governing PACs are equally extensive. See 11 C.F.R.

pt. 102. The difficulty of complying with these requirements

is compounded by the fact that corporations seeking to run a

grass-roots lobbying campaign with PAC funds must also

consult more than thirty years of precedent embodied in advi-

sory opinions and enforcement actions.

In light of the complex regulatory environment, a corpo-

ration attempting to establish a PAC must likely consult both

an attorney and an accountant. A corporation must also pur-

chase the necessary software to comply with electronic re-

porting requirements. The PAC start-up costs can thus total

hundreds of thousands of dollars. These costs are imposed

regardless of whether the corporation is a multibillion dollar

operation or a small, unsophisticated nonprofit struggling to

promote a particular agenda. See Mass. Citizens for Life, 479

U.S. at 254 (expressing concern that small entities may be

unable to bear the administrative costs of running a PAC).

Moreover, even if a nonprofit corporation overcomes the fi-

nancial and procedural obstacles to establishing a PAC, fund-

ing restrictions still inhibit a nonprofit’s ability to finance a

grass-roots lobbying campaign with PAC money. Indeed,

such financial constraints forced WRTL to discontinue its

grass-roots lobbying initiative during BCRA’s statutorily im-

posed black-out period. See J.S. at 6-7.

The black-out period restricts a nonprofit corporation’s

ability to run issue advocacy campaigns in the days immedi-

ately preceding an election, which is the period when the pub-

lic is most receptive to political advertisements and when ads

urging constituents to contact their elected officials are most

5 FEC, Campaign Guide for Corporations and Labor Unions, available at

http://www.fec.gov/pdf/colagui.pdf.

12

effective. This is also the time frame when Congress is most

likely to be addressing major issues affecting United States

citizens. See Presidential Signing Statement (highlighting the

“serious constitutional concerns” raised by BCRA’s restric-

tions on speech about “issues of public import in the months

closest to an election”). Because core First Amendment

speech is restricted, the government must demonstrate that

BCRA’s electioneering communications provisions are nar-

rowly tailored to further a compelling interest. See Austin v.

Mich. State Chamber of Commerce, 494 U.S. 652, 657

(1990). In light of the critical First Amendment values asso-

ciated with grass-roots lobbying, the qovuument cannot meet

this heavy burden.

A. Grass-Roots Lobbying Is Protected Under

The Petition Clause Of The First

Amendment.

The First Amendment protects the exchange of ideas be-

tween citizens and their elected officials. The Petition Clause

promotes popular sovereignty by ensuring that the people can

make their opinions known to their elected representatives.

See Jason Mazzone, Freedom’s Associations, 77 WASH. L.

REV. 639, 730 (2002). The right of the people to assemble

peaceably and to petition the government for a redress of

grievances is but one aspect of the broader right of the people

to “communicate their will to their government.” Carol Rice

Andrews, Motive Restrictions on Court Access: A First

Amendment Challenge, 61 OHIO ST. L.J. 665, 673-74 (2000).

James Madison discussed the manner in which the Peti-

tion Clause interrelates with the Speech and Press Clauses to

protect the people’s night to communicate with the govern-

ment:

The right of freedom of speech is secured; the

liberty of the press is expressly declared to be

beyond the reach of this government; the peo-

ple may therefore publicly address their repre-

13

sentatives, may privately advise them, or de- -

clare their sentiment by petition to the whole

body; in all these ways they may communicate

their will.

House Debates (Aug. 15, 1789) (emphasis added), reprinted

in Andrews, supra, at 800 n.32.

The right to petition at any time is a fundamental feature

of American government. See generally Andrew P. Thomas,

Easing the Pressure on Pressure Groups: Toward a Consti-

tutional Right to Lobby, 16 HARV. J.L. & PuB. POL’y 149,

180 (1993) (surveying the history of the Petition Clause).

Historically, the right to petition traces its roots to the Magna

Carta, which formally recognized the concept that “‘the king

was the source of justice and that in providing this justice he

and his government must be accessible to all.’”” /d. at 181-82

(quoting RAYMOND C. BAILEY, POPULAR INFLUENCE UPON

PUBLIC POLICY: PETITIONING IN EIGHTEENTH-CENTURY

VIRGINIA 9 (1979)). Early Americans regarded the right as

“implied in the very nature of republican government and as a

birthright worthy of constitutional protection both at the fed-

eral and state level.” Jd. at 182 (internal quotation marks

omitted).

The Petition Clause has been interpreted to protect a va-

riety of activities, including the right of access to the courts,

the right to engage in nonviolent political boycotts, and—

most importantly—the right of the people to lobby their

elected representatives. See McDonald v. Smith, 472 U.S.

479, 484 (1985) (lawsuits); NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 914 (1982) (nonviolent political boycotts);

E. R.R. Presidents Conference v. Noerr Motor Freight, Inc.,

365 U.S. 127, 137-38 (1961) (lobbying legislators).

The right to petition would be illusory, however, without

the companion rights of association and assembly. “The very

idea of a government, republican in form, implies a nght on

the part of its citizens to meet peaceably for consultation in

14

respect to public affairs and to petition for a redress of griev-

ances.” United States v. Cruikshank, 92 U.S. 542, 552

(1876). The rights of assembly and association are, to a large

extent, interrelated. See, e.g., David Cole, Hanging with the

Wrong Crowd: Of Gangs, Terrorists, and the Right of Asso-

ciation, 1999 Sup. CT. REV. 203, 226 (1999).© These rights

are so vital that “it is impossible to imagine a democratic so-

ciety—much less the First Amendment rights of speech, as-

sembly, religion, and petition—without a corresponding night

of association.” Jd. at 203. Specifically, both the right to as-

semble and the right of association give meaning to the right

to petition. They work together to ensure that the people’s

voice is heard by their elected officials. “Effective advocacy

of both public and private points of view, particularly contro-

versial ones, is undeniably enhanced by group association.”

NAACP vy. Alabama, 357 U.S. 449, 460 (1958). Here, asso-

ciation and assembly amplify the viewpoints of individuals

by coordinating their message to the government. Indeed, the

“freedom of expression protected by the First Amendment

embraces not only the freedom to communicate particular

ideas, but also the right to communicate them effectively.”

United States v. Eichman, 496 U.S. 310, 322 (1990) (Ste-

vens, J., dissenting). BCRA’s electioneering communications

provisions, however, impede nonprofit corporations’ ability

to amplify the voices of their members and like-minded citi-

zens on issues of political import.

6 “(While the right of association is not literally mentioned in the Consti-

tution, it nevertheless finds solid textual support in the First Amendment

as the modern-day manifestation of the right of assembly.” Cole, supra, at

226. Indeed, this Court has declared that “freedom to engage in associa-

tion for the advancement of beliefs and ideas is an inseparable aspect of

the ‘liberty’ assured by the Due Process Clause of the Fourteenth

Amendment, which embraces freedom of speech.” NAACP y. Alabama,

357 US. 449, 460 (1958).

15

The ability to influence the government through lobbying

is central to the American system. Although this Court has

never expressly defined the scope of protection afforded lob-

bying activity under the Petition Clause, it has explicitly rec-

ognized that lobbying is protected. Specifically, this Court

concluded in Noerr that First Amendment considerations pro-

tected advertising activity undertaken by a paid, professional

lobbying organization. In Noerr, truck operators and their

trade associations asserted that an association of railroads

violated the Sherman Antitrust Act when it engaged a public

relations firm to orchestrate a publicity campaign designed to

influence legislation adverse to the trucking industry: 365

U.S. at 129. This Court concluded that the Sherman Act’s

history did not evidence an intent to regulate political action,

and it therefore found no antitrust violation. The Court reit-

erated that “[t]he right of petition is one of the freedoms pro-

tected by the Bill of Rights, and we cannot, of course, lightly

impute to Congress an intent to invade these freedoms.” Jd.

at 138; see also Regan v. Taxation with Representation of

Wash., 461 U.S. 540, 552 (1983) (Blackmun, J., concurring)

(“lobbying is protected by the First Amendment”). This

Court further explained that “[ijn a representative democracy

such as this, the[] branches of government act on behalf of

the people and, to a very large extent, the whole concept of

representation depends upon the ability of the people to make

their wishes known to their representatives.” Noerr, 365 U.S.

at 137.7 This principle holds true during the entire year, not

just the 75% of the year that falls outside of the statutory

black-out period.

7 Noerr’s holding was grounded in an interpretation of the Sherman Act.

It is clear, however, that First Amendment considerations greatly influ-

enced this Court’s analysis. See, e.g., FTC v. Superior Court Trial Law-

yers Ass'n, 493 U.S. 411, 424 (1990) (noting that the Noerr Court inter-

preted the Sherman Act “in the light of the First Amendment”).

16

Noerr recognizes the rights of a for-hire lobbying organi-

zation to petition the government; a fortiori, a grass-roots

lobbying campaign run by a corporation dedicated to promot-

ing an identified social cause is also entitled to protection.

B. Grass-Roots Lobbying Is Integral To Self-

Governance.

Political speech must be safeguarded year-round because

it is a necessary component of representative government.

Because the people, rather than their elected representatives,

are sovereign, political speech is accorded the highest level of

First Amendment protection. “The First Amendment bars the

state from imposing upon its citizens an authoritative vision

of truth. It prohibits the state from interfering with the com-

municative processes through which its citizens exercise and

prepare to exercise their rights of self-government.” Herbert

v. Lando, 441 U.S. 153, 184-85 (1979) (footnote omitted).

All other precepts logically follow from the recognition that

“we the people” are sovereign. The First Amendment’s pro-

tection of political speech is essential precisely because it fa-

cilitates the ability of the people to self-govern. See Garrison

v. Louisiana, 379 U.S. 64, 74-75 (1964) (“speech concerning

public affairs is more than self-expression; it is the essence of

self-government”). Political speech, including grass-roots

lobbying, serves two complementary yet distinct functions:

an accountability function and an education function.

Free speech is a necessary component of a government

of the people, in which “it should be possible to trace without

much difficulty a line of authority for the making of govern-

mental decisions back to the people themselves.” STEPHEN

BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC

CONSTITUTION 15 (2005). The sovereignty of the people is

threatened, however, when “law restricts speech directly re-

lated to the shaping of public opinion, for example, speech

that takes place in areas related to politics and policy-making

by elected officials.” Jd. at 42. WRTL’s filibuster campaign

17

falls squarely within this category of speech and should there-

~—-fore be accorded the highest protection. BCRA’s electioneer-

ing communications provisions not only restricted WRTL’s

ability to inform public opinion, but also significantly im-

peded WRTL’s efforts to engage in public discourse on an

important political issue. Unrestrained political speech on

subjects such as the propriety of judicial filibusters is neces-

sary to protect the people’s sovereignty against encroachment

by elected officials.

Thomas Jefferson acknowledged that if the people “be-

come inattentive to the public affairs, you and I, and Con-

gress, and Assemblies, judges and governors shall all become

wolves ... experience declares that man is the only animal

which devours his own kind, for I can apply no milder term to

the governments of Europe.” Letter from Thomas Jefferson,

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

FOUNDERS’ CONSTITUTION 122 (Philip B. Kurland & Ralph

Lerner eds., 1987). By encouraging public debate, grass-

roots lobbying brings a transparency to governmental affairs

that is critical to the political system’s survival. The trans-

parency that grass-roots lobbying fosters should not be re-

stricted during the critical period preceding an election. “In a

republic where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for of-

fice is essential, for the identities of those who are elected

will inevitably shape the course that we follow as a nation.”

Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). Because grass-

roots lobbying fosters an awareness of what the people’s rep-

resentatives are doing, it enables the people to hold their

elected representatives accountable for their political choices.

Self-governance presupposes that the electorate is informed

about the positions of their elected officials, pending legisla-

tion, and potential social policy. As James Madison ex-

plained, “A popular Government, without popular informa-

tion, or the means of acquiring it, is but a Prologue to a Farce

or a Tragedy; or perhaps both. Knowledge will forever gov-

18

erm ignorance: And a people who mean to be their own Gov-

emors, must arm themselves with the power which know]-

edge gives.” THE WRITINGS OF JAMES MADISON 103 (Gail- -

lard Hunt ed., 1910).

Free speech’s accountability function is thus closely re-

lated to its education function. Only through debate and the

free exchange of ideas can citizens share the knowledge with

each other that is necessary for the people to govern effec-

tively. Grass-roots lobbying is a powerful form of political

' speech that fulfills this education function by informing and

energizing the people about pending political issues. These

issues—which may or may not be campaign issues—are im-

portant social questions that affect the fabric of American so-

ciety and that warrant free and open debate. Public discus-

sion about such core political issues is not merely a privilege:

“public discussion is a political duty.” Whitney v. California,

274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

The fact that a nonprofit corporation, rather than an indi-

vidual, initiates a debate does not lessen the speech’s value.

As this Court has recognized, protection of speech is predi-

cated upon the intrinsic value of the speech itself, rather than

upon the identity of the speaker. “The inherent worth of the

speech in terms of its capacity for informing the public does

not depend upon the identity of its source, whether corpora-

tion, association, union, or individual.” First Nat'l Bank v.

Bellotti, 435 U.S. 765, 777 (1978).

C. Grass-Roots Lobbying Is Integral To The

Marketplace Of Ideas.

The value of free speech as a means of educating the

public is closely tied to the notion that the First Amendment

promotes and protects the “marketplace of ideas.” Indeed,

Justice Holmes argued that “the best test of truth is the power

of the thought to get itself accepted in the competition of the

market.” Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting). Speech should be protected because,

19

“fi]f the opinion is right, [the people are] deprived of the op-

portunity of exchanging error for truth; if wrong, they lose,

what is almost as great a benefit, the clearer perception and

livelier impression of truth, produced by its collision with er-

ror.” JOHN STEWART MILL, ON LIBERTY 20 (Stefani Collini

ed., Cambridge Univ. Press 1989) (1859).

The marketplace of ideas envisioned by the Framers is

founded upon open, confrontational, and pointed discourse.

“Free trade in ideas means free trade in the opportunity to

persuade to action, not merely to describe facts.” Thomas v.

Collins, 323 U.S. 516, 537 (1945) (internal quotation marks

omitted). First Amendment protection of participation in the

political marketplace also necessarily encompasses a pro-

tected right to hear, and it is up to the individual to choose

whether to listen. “[I]t would be a barren marketplace of

ideas that had only sellers and no buyers.” Lamont v. Post-

master Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concur-

ring). Grass-roots lobbying, as core political speech, is essen-

tial to this marketplace.

The marketplace is valued, not because it necessarily

leads to a determination of “absolute truth,” but rather for the

integrity of its process. Justice Holmes opined that “{s}Juch

matters really are battle grounds where the means do not exist

for determinations that shall be good for all time, and where

the decision can do no more than embody the preference of a

given body in a given time and place.” Oliver Wendell

Holmes, The Path of the Law, 10 HARV. L. REV. 457, 466

(1897).8 Grass-roots lobbying serves a vital purpose because

8 Alexander Meiklejohn recognized that “[iJt is a deduction from the ba-

sic American agreement that public issues shall be decided by universal

suffrage.” ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO

SELF-GOVERNMENT 27 (1948). Universal suffrage is of little value, how-

ever, without the open political discourse that fosters voters’ awareness of

pertinent arguments and information. If the best test of truth is the power

of an idea to gain acceptance in the marketplace, then in the long run the

20

it ensures that ideas enter the marketplace. Once in the mar-

ketplace, the ideas are vigorously debated, thereby building

consensus among the people as to policy and legislation.

D. Grass-Roots Lobbying Enables All Seg-

ments Of The Population To Engage In

The Political Process.

To the extent that citizens are denied access to informa-

tion regarding issues pending before Congress, BCRA § 203

effectively undermines the goal of an informed electorate and

thus weakens the political process. By targeting radio and

television ads, the statute silences the most effective means of

communicating with a large audience. Indeed,

[t]elevision is now one of the most powerful

media for getting information to the public,

particularly persons of low and moderate in-

come; prohibiting television advertising, there-

fore, would impede the flow of information .. .

to many sectors of the public. Limiting the in-

formation that may be advertised has a similar

effect and assumes that the [entity imposing

these restrictions] can accurately forecast the

kind of information that the public would re-

gard as relevant.

MODEL RULES OF PROF’L CONDUCT R. 7.2 cmt. 3 (discussing

restrictions upon attorney advertising). Although the elector-

ate may receive information on pending legislation from other

sources, they will be denied full access to the marketplace of

ideas if issue advertisements are restricted.2 BCRA’s restric-

[Footnote continued from previous page]

best test of intelligent political policy is its power to gain acceptance at the

ballot box. See RODNEY A. SMOLLA & MELVILLE B. NIMMER, SMOLLA &

NIMMER ON FREEDOM OF SPEECH § 2.34 (2005).

9 The news media are no substitute for grass-roots lobbying efforts be-

cause journalists and the corporations for which they work are themselves

21

tions are especially pernicious because they prohibit the

broadcast of corporate-funded issue ads during the weeks

immediately preceding an election, when the public is most

likely to pay attention to political advertisements and mem-

bers of Congress are most likely to pay attention to lobbying

efforts.

Il. GRASS-ROOTS LOBBYING EFFORTS DO

NOT PRESENT THE SAME CONCERNS

THAT LED THIS COURT TO REJECT

A FACIAL CHALLENGE TO BCRA’S

ELECTIONEERING COMMUNICATIONS

PROVISIONS.

Grass-roots lobbying is core political speech that plays a

critical role in maintaining our system of government. Only a

compelling interest can justify restricting this class of speech.

The government cannot meet this burden when applying

BCRA § 203 to grass-roots lobbying.

BCRA’s electioneering communications provisions were

designed to combat the proliferation of corporate-funded

electioneering issue advertisements, which praise or de-

nounce a candidate for public office without expressly urging

the candidate’s election or defeat. McConnell, 540 U.S. at

205-06. Because advertisements run during a grass-roots

[Footnote continued from previous page}

special interest groups that wield tremendous political influence. See

Mitch McConnell, Speech Limits Are Not Reform, USA TODAY, Feb. 26,

2002, at A13; Mitch McConnell, Why Are Media Exempt?, USA TODAY,

Mar. 19, 2002, at Al4. Although the average American’s speech is sub-

ject to BCRA’s restrictions, corporations that control the news media are

free to engage in “political proselytizing.” /d.; see also id. (noting that

General Electric owns NBC); 2 U.S.C. § 431(9)(B)(i) (excluding from

BCRA’s restrictions “any news story, commentary or editorial distributed

through the facilities of any broadcasting station, newspaper, magazine or

other periodical publication, unless such facilities are owned or controlled

by any political party, political committee or candidate”’).

22

lobbying campaign, or “grass-roots issue ads,” are not func-

tionally equivalent to electioneering issue ads, the anticorrup-

tion considerations motivating this Court to uphold BCRA

§ 203 on its face are inapplicable here.

Prior to BCRA’s enactment, FECA’s expenditure limita-

tions and disclosure and reporting requirements applied only

to communications that expressly advocated the election or

defeat of a clearly identified candidate. See McConnell, 540

U.S. at 126. Unlike such “express advocacy” communica-

tions, “issue advocacy” was not regulated by federal election

laws. Under this system, an advocate-could run an election-

eering issue ad condemning an incumbent’s record “before

exhorting viewers to call Jane Doe and tell her what you

think.” Jd. at 127 (internal quotation marks omitted).

The McConnell Court’s analysis of BCRA’s electioneer-

ing communications provisions was informed by this history

and thus was focused upon electioneering issue ads, or issue

ads that were “functionally identical” to express advocacy.

540 U.S. at 126. “Both were used to advocate the election or

defeat of clearly identified candidates, even though the so-

called issue ads eschewed the use of magic words.” Jd. This

Court assumed that the “vast majority” of issue ads run dur-

ing the black-out period had an electioneering purpose, and

rejected a facial challenge to BCRA § 203’s prohibition on

the use of corporate funds to finance electioneering commu-

nications. See id. at 206. The Court also upheld § 204’s re-

striction on not-for-profit corporations’ use of general treas-

ury funds to pay for electioneering communications. See id.

at 211. In so doing, however, the Court acknowledged that

the rationale for restricting electioneering issue ads is inappli-

cable to grass-roots issue ads that are not designed to serve an

electioneering purpose. See id. at 206 (“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” (emphases added)).

23

Indeed, unlike electioneering issue ads, grass-roots issue

advocacy by a nonprofit, issue-oriented citizens’ group like

WRTL does not raise the two broad concerns that troubled

the McConnell Court: the distorting effect of corporate

wealth on the political marketplace and the use of issue ads

intended to serve an electioneering purpose to circumvent

funding restrictions imposed on express advocacy ads. See

540 U.S. at 206 n.88 (“interests that justify the regulation of

campaign speech might not apply to the regulation

of. . . issue ads” that do not serve an electioneering purpose).

This Court has observed that the regulation of corporate

political activity is permissible to combat the “unfair deploy-

ment” of wealth for political purposes. See, e.g., Mass. Citi-

zens for Life, 479 U.S. at 259; cf: Austin, 494 U.S. at 460 (ex-

pressing concern about the “use of immense aggregations of

wealth that are accumulated with the help of the corporate

form and that may bear no relation to the corporation’s

speech activity”). But any concerns that this Court may have

about the perceived distorting impact of corporate wealth on

the political process are inapplicable when the speaker is—

like WRTL—a nonprofit organization. Indeed, WRTL was

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

The resources that it has available are not a function of its

success in the economic marketplace, but its popularity in the

political marketplace.” Mass. Citizens for Life, 479 U.S. at

259. Individuals who contribute financial support to WRTL

are fully aware of the public policy issues about which

WRTL is concerned.

Moreover, the McConnell Court’s observation that elec-

tioneering issue ads were being used to evade the restrictions

imposed upon express advocacy communications is also in-

applicable to WRTL’s grass-roots initiative. Asking con-

stituents to contact a named politician—even when the politi-

cian’s name is tied to a controversial campaign issue—is not

functionally equivalent to electioneering advocacy and thus

does not present the same concerns that motivated the

24

McConnell Court to reject a facial challenge to BCRA’s elec-

tioneering communications provisions. The fact that a non-

profit organization’s commercial mentions the name of an

incumbent does not inextricably lead to the conclusion that

the ad advocates a candidate’s election or defeat. This is es-

pecially true given the changing face of political discourse.

Political television advertisements, which were once run only

in the weeks preceding elections, are now run year-round and

focus on a variety of issues. Editorial, Year-Round Political

Ads?; The Campaign to Persuade Is Never Ending, Alas,

PITTSBURG POST-GAZETTE, Aug. 2, 2005, at B-6. “These

days, conservatives and liberals have taken to the airwaves

with a near-constant barrage of ads aimed at persuading vot-

ers and politicians to support their views.” Jd.

Judge Leon’s opinion in the McConnell district court

proceedings identified several instances where it would be

“helpful, if not necessary, to mention a candidate’s name in

... advertisements” during the black-out period for non-

electioneering purposes. 251 F. Supp. 2d at 794. One exam-

ple to which Judge Leon referred was an issue ad urging con-

stituents to contact an elected official and to communicate a

specific policy position on pending legislation. He also refer-

enced a statement by Denise Mitchell, Special Assistant for

Public Affairs to the AFL-CIO, “explaining that it is often

necessary to refer to a federal candidate by name because the

express or implied urging of viewers or listeners to contact

the policymaker regarding [an] issue is . . . especially effec-

tive by showing them how they can personally impact the is-

sue debate in question.” Jd. (citations omitted). The effec-

tiveness of a grass-roots initiative is irreparably undermined

if viewers are not told whom they should contact with their

positions. BCRA’s electioneering communications provi-

sions do just that by prohibiting the ads from offering even

generic instructions to contact “your Senator” or “your Con-

gressman.”

25

BCRA stipulates that a federal candidate is “clearly iden-

tified” for the purpose of triggering the electioneering com-

munications provisions if the name, or a photograph or draw-

ing, of the candidate appears in the advertisement, or if the

identity of the candidate is otherwise apparent by unambigu-

ous reference. 2 U.S.C. § 431(18). The statute does not de-

fine the term “unambiguous reference,” but, in order to give

independent meaning to this clause, it must denote something

other than the mere mention of the candidate’s name or the

depiction of her likeness, otherwise the term is merely redun-

~ dant. See United States v. Nordic Vill., Inc., 503 U.S. 30, 36

(1992) (declining to adopt a construction that would violate

the “settled rule that a statute must, if possible, be construed

in such fashion that every word has some operative effect”).

A current FEC regulation, 11 C.F.R. § 100.29(b)(2), pro-

vides concrete guidance, indicating that unambiguous refer-

ences to “‘the President’ or ‘your Congressman’” would trig-

ger BCRA.!0 Jd. As a result, any grass-roots issue adver-

tisement urging constituents to contact an elected official

must be immediately discontinued during the statutorily im-

posed black-out period unless the corporation can secure suf-

ficient alternate funding through its PAC. In many cases

where the corporation’s PAC funds are inadequate, BCRA’s

electioneering restrictions will preclude a corporation from

running its ads at all. See J.S. at 6-7. This is true whether or

not the advertising initiative focuses on a “campaign issue”

10 The full text of 11 C.F.R. § 100.29(b)(2) provides that “‘[rJefers to a

clearly identified candidate’ means that the candidate’s name, nickname,

photograph, or drawing appears, or the identity of the candidate is other-

wise apparent through an unambiguous reference such as ‘the President,’

‘your Congressman,’ or ‘the incumbent,’ or through an unambiguous ref-

erence to his or her status as a candidate such as ‘the Democratic presiden-

tial nominee’ or ‘the Republican candidate for Senate in the State of Geor-

gia.””

26

and is true whether the elected official supports or opposes

the initiative.

Ultimately, then, the concerns that motivated this Court

to uphold BCRA § 203 on its face are not implicated when a

corporation organizes a grass-roots lobbying campaign. The

potential for corruption that this Court perceived in connec-

tion with electioneering advertisements is minimized even

further when, as here, WRTL intends to comply with all ap-

plicable disclosure and disclaimer requirements.

Finally, there are significant countervailing First

Amendment considerations that weigh strongly in favor of

exempting this class of core political speech from BCRA’s

electioneering communications provisions.

Although BCRA may impact only a small number of

grass-roots issue advertisements, this Court has cautioned that

it is necessary to be as

vigilant against the modest diminution of

speech as we are against its sweeping restric-

tion. Where at all possible, government must

curtail speech only to the degree necessary to

meet the particular problem at hand, and must

avoid infringing on speech that does not pose

the danger that has prompted regulation.

Mass. Citizens for Life, Inc., 479 U.S. at 264-65. As applied

to nonprofit corporations’ grass-roots lobbying generally,

BCRA § 203 sweeps more broadly than is necessary to ac-

complish the government’s anticorruption objective, and its

application in this setting is therefore unconstitutional.

***

A nonprofit organization’s grass-roots lobbying cam-

paign does not pose the threat of corruption that prompted

Congress to enact BCRA’s electioneering commurications

provisions. It is therefore appropriate for this Court to con-

duct a searching review of the as-applied constitutionality of

27

these provisions. Indeed, President Bush entreated this Court

to do just that when signing BCRA into law, noting that he

had “reservations about the constitutionality of the broad ban

on issue advertising, which restrains the speech of a wide va-

riety of groups on issues of public import in the months clos-

est to an election.” Presidential Signing Statement. Because

courts “properly look to presidential signing statements to

assist in the interpretation of statutes,” 14 Op. Off. Legal

Counsel 84, 91 n.9 (1990), this Court should accord substan-

tial weight to the President’s concerns about the constitution-

ality of BCRA’s issue advertising restrictions.

This Court has cautioned that its “pursuit of other gov-

ernmental ends ... may tempt [it] to accept in small incre-

ments a loss that would be unthinkable if inflicted all at

once.” Mass. Citizens for Life, Inc., 479 U.S. at 264-65. This

case calls upon the Court to act as a bulwark against the

gradual erosion of the fundamental freedoms embodied in the

First Amendment. Indeed, freedom of speech is the “indis-

pensable condition{] of nearly every other form of freedom.”

Palko v. Connecticut, 302 U.S. 319, 327 (1937). Political

speech, in particular, is the “essence of self-government,”

Garrison, 379 U.S. at 75, and must therefore be vigilantly

protected against legislative and judicial encroachment.

28

CONCLUSION

For the foregoing reasons, the judgment of the district

court should be reversed.

Respectfully submitted.

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

November 14, 2005

IN THE

Supreme Court of the Auited 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 AMICI CURIAE OF NORMAN ORNSTEIN,

THOMAS MANN AND ANTHONY CORRADO

IN SUPPORT OF APPELLEE

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

PAUL A. WERNER

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5810

Counsel for Amici Curiae

a a EN

Wicson-Epes Printina Co., Inc. — (202) 789-0096 -— WasHinaTon, D. C. 20001

Il.

TABLE OF CONTENTS

BCRA SECTION 203 CLOSED A LOOPHOLE

IN THE FEDERAL CAMPAIGN FINANCE

REGIME THAT CORPORATIONS AND

UNIONS HAD EXPLOITED IN PREVIOUS

SRE CEED cecrsetesiqnnmnmenntenieianibdmniepennnannneniin

McCONNELL FORECLOSED WRTL’S AS-

APPLIED CHALLENGE TO BCRA SECTION

203 IN REJECTING A FACIAL CHALLENGE

Fe ee ee cciictnianiseuinnintintinsinnciaiaiee

WRTL’S BROADCASTS ARE NOT GRASS

ROOTS LOBBYING IN ANY EVENT ....................

TOD icvntcsnisstiitinntiiiionsnciniaiiiniiininicinnininiianonimsienn

(i)

29

30

TABLE OF AUTHORITIES

Page

Cases:

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

ee iets tbictncicinserienitsintiinjinavnsiniininsianitinscnn 8

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

Colorado Republican Fed. Campaign Comm. v.

Federal Election Comm'n, 518 U.S. 604 (1996)........ 15

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

Ce iwsicitnecitnicninisnnstignedibiniaasinasiteiiniqetausineninminetin 7, 8, 11, 29

Federal Election Comm'n v. Colorado Republican

Fed. Campaign Comm., 533 U.S. 431 (2001)............ 2

Federal Election Comm'n v. Massachusetts Citizens

for Life, Inc., 479 U.S. 238 (1986) .........scscesceresseseees passim

Federal Election Comm'n v. National Right to Work

EB 8,9

McConnell v. Federal Election Comm'n, 540 U.S. 93

Se vrncastupresnitecubasunatianesiminnneniinmecnedeaneinstearenuidannnees passim

McConnell vy. Federal Election Comm'n, 251

F. Supp. 2d 176 (D.D.C.), aff'd in part & rev'd in

BRE, FOO Ea, FO GID wintticinenscmininseinmensinienin passim

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)......... 27

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

I soni ciestcsecsininsibaaichnisidclainsitidtinbinuhatiddeidibianibiaeapinitinia 2

Pipefitters Local Union No. 562 v. United States,

Ee ile PE ieietacistiiinhinciveiciptitiietteinpciatipiniinenie 9

United States v. International Union United Auto.,

Aircraft & Agric. Implement Workers of Am., 352

a Se ieciieeniintaticicntdinicinscindbtiiacicnintatiisitnpene 8

Vieth v. Jubelirer, 541 U.S. 267 (2004).......cccccccssseseeeee 2

Walters v. National Ass'n of Radiation Survivors,

Fa a ee cre tnninitintitieinncincniniatinieieiinsitiebininins 25

iii

TABLE OF AUTHORITIES—Continued

Page

Statutory and Regulatory Provisions and Rules:

Bipartisan Campaign Finance Reform Act of 2002,

Pub. L. No. 107-155, § 203, 116 Stat. 91-92.............. passim

Federal Election Campaign Act of 1971, 2 U.S.C.

SO icescpnaratindintnincveiisictisoeuteiniensiniamadonionenasibes 2-3

es i itietccsccnssiinenecescipenenees Raenranvwne we 9

es ee ctenihsicsitectseniviniccntapicuinticenetats 22

Be I cissstnspeisiansetpenesnertnsinsnuiignnnenniescneneatia 9

I iihiainsjiciedinninicinscincuiintieicicnetdnsanle 3, 22

ee eae Thcdassisichacistincitisinnpncaheriabitinabsenaiiionsonieseiies 3

Se RPI iicescctdnoeciebiiianiianaiinneiuininapeeansinnintbinastions 2

SN i Rabiinindehencinnndibasintetiiniitatsonibiniinciipiantinticenpbinesion l

Other Authorities:

143 Cong. Rec. $10125 (daily ed. Sept. 29, 1997)........ 16

144 Cong. Rec.

p. H6802 (daily ed. July 30, 1998)............cccesseseeevees 16

pp. $1038-39 (daily ed. Feb. 26, 1998) ............cccceeee 16

pp. $1048-49 (daily ed. Feb. 26, 1998).............sccesee0 21

147 Cong. Rec:

p. S2455 (daily ed. Mar. 19, 2001).............sceserserseees 12

p. S2636 (daily ed. Mar. 21, 2001)............cccccseeseeseeeee 16

p. $3036 (daily ed. Mar. 28, 2001).............csscecsseeseeee 16

p. $3072 (daily ed. Mar. 29, 2001 }...........scsssssessereeees 15

p. S3138 (daily ed. Mar. 29, 2001)............cceceseseeeseees 21

148 Cong. Rec.

p. H387 (daily ed. Feb. 14, 2002)..............cccesssssseseeees 16

p. H410 (daily ed. Feb. 14, 2002)..............csscssesseeeeees 16

iv

TABLE OF AUTHORITIES—Continued

p. S2104 (daily ed. Mar. 20, 2002)...csccsssssccsssssssssseees

p. S214] (daily ed. Mar. 20, 2002)........ssscsssssssssesesee

Investigation of Illegal or Improper Activities in

Connection with 1996 Federal Election Cam-

paigns, S. Rep. No. 105-167 (1998)........ssesssesseeeres

S. Rep. No. 1, pt. 2, 80th Cong., 1st Sess. (1947)..........

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 AMICI CURIAE OF NORMAN ORNSTEIN,

THOMAS MANN AND ANTHONY CORRADO

IN SUPPORT OF APPELLEE

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are three political scientists who have dedi-

cated much of their careers to studying and analyzing Con-

gress, federal elections, campaign finance, and American

politics, and who have written extensively, both individually

and jointly, on those subjects. !

' Pursuant to this Court’s Rule 37.6, we note that no part of this

brief * ‘as authored by counsel for any party. We further note that

no person or entity other than amici curiae made a monetary

contribution to the preparation or submission of the brief, except

for the Carnegie Corporation of New York, which provided a grant

to Dr. Ornstein to support the filing of the brief.

2

Anthony J. Corrado, Jr., is a Professor of Government at

Colby College and Co-Chair of the Board of Trustees of the

Campaign Finance Institute. He served as an expert witness

in Federal Election Comm'n v. Colorado Republican Fed.

Campaign Comm., 533 U.S. 431 (2001), and this Court cited

and quoted his expert statement in its opinion in that case.

Thomas E. Mann is a Senior Fellow in Governance Studies

at the Brookings Institution. He served as an expert witness

in McConnell v. Federal Election Comm'n, 251 F. Supp. 24

176 (D.D.C.), aff'd in part & rev'd in part, 540 U.S. 93

(2003), and this Court cited and quoted his expert report in

its opinion in that case. See 540 U.S. at 124 nn.8, 9, 11 & 12;

id. at 148; id. at 155.

Norman J. Ornstein is a Resident Scholar at the American

Enterprise Institute for Public Policy Research. He is the

founder and director of the Campaign Finance Working

Group, a group of scholars and practitioners who helped craft

the McCain-Feingold legislation.

Stemming from their expertise and interest in federal elec-

tions and campaign finance reform, Dr. Omstein and Dr.

Mann have joined in the filing of briefs amici curiae in

previous cases before this Court involving election law

issues.? The instant brief is filed with the written consent of

all parties pursuant to this Court’s Rule 37.3(a); the requisite

consent letters have been filed with the Clerk.

INTRODUCTION

This case involves an as-applied challenge to Section 203

of the Bipartisan Campaign Finance Reform Act of 2002

(BCRA), Pub. L. No. 107-155, 116 Stat. 91-92. That Act

overhauled our federal election laws by amending, inter alia,

the Federal Election Campaign Act of 1971, 2 U.S.C. § 431

2 See Vieth v. Jubelirer, 541 U.S. 267 (2004) (Mann & Orn-

stein); McConnell v. Federal Election Comm'n, 540 U.S. 93

(2003) (Ornstein); Federal Election Comm'n v. Colorado Republi-

can Fed. Campaign Comm., supra (Mann); Nixon v. Shrink Mo.

Gov't PAC, 528 U.S. 377 (2000) (Mann).

3

et seq. See McConnell, 540 U.S. at 114. Among BCRA’s

amendments to FECA is a provision prohibiting corporations

and unions from financing, with general treasury funds,

“electioneering communication{s]”—i.e., those communica-

tions referring to a federal office candidate and broadcast

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

in the candidate’s jurisdiction. See 2 U.S.C. § 441b(b)(2).

Two years ago, in McConnell, this Court sustained most of

BCRA’s various provisions against constitutional challenge,

including Section 203. See 540 U.S. at 203-209. The Court

specifically rejected a First Amendment facial challenge to

Section 203, holding that the provision was neither fatally

overbroad nor fatally underinclusive. /d. at 207-208. The

impact of that holding lies at the crux of the present appeal.

Appellant Wisconsin Right to Life (WRTL) alleges that it

is a non-profit, non-stock ideological advocacy corporation

organized under the laws of Wisconsin that the Internal

Revenue Service recognizes as tax-exempt under Section

501(c)(4) of the Internal Revenue Code. See J.S. App. 4a.

WRTL admitted below that it fails to qualify for any recog-

nized exemption that would allow it to fund electioneering

communications from its general treasury account because it

neither meets the definition of a “qualified nonprofit corpora-

tion” under 11 C.F.R. § 114.10 nor fits the exception for

501(c\4) corporations provided by 2 U.S.C. § 441b(c)(2).

See J.S. App. 4a-Sa. WRTL administers a segregated ac-

count for campaign-related activity in the form of a political

action committee (PAC). /d. at Sa.

In 2004, United States Senator Russell Feingold of Wis-

consin ran for reelection. See id. Senator Feingold’s chal-

lengers raised his support for “filibusters” of the President’s

nominees for federal judgeships as a campaign issue. /d. In

March 2004, WRTL’s PAC endorsed three candidates

opposing Senator Feingold and “announced that the defeat of

Senator Feingold was a priority.” /d On July 14, 2004,

WRTL issued a news release criticizing Senator Feingold’s

“record on Senate filibusters against judicial nominees.” /d.

4

WRTL used a variety of non-broadcast communications to

criticize Senate filibusters of judicial nominees. See id.

On July 26, 2004, WRTL began using its general treasury

funds—rather than its PAC funds—to air three broadcast

advertisements criticizing Senators’ reliance on the judicial

filibuster tactic and naming Senator Feingold. See id. at 5a-

6a. In the “Wedding” advertisement, the listener hears a

father interrupting his daughter’s wedding ceremony to

“share a few tips on how to properly install drywall.” Jd. at

13a. This set up is followed by the narrator opining that

“[s]ometimes it’s just not fair to delay an important decision”

but, in Washington, “a group of Senators is using the filius

ter delay tactic to block federal judicial nominees from a

simple ‘yes’ or ‘no’ vote.” /d. The narrator then urges the

listener to “[cjontact Senators Feingold and Kohl and tell

them to oppose the filibuster.” Jd WRTL’s broadcast

advertisements feature different plots but all three play on the

same needless-delay theme and essentially convey the same

message. See id. at 15a (“Loan”); id. at 17a (“Waiting”).

Anticipating that airing these three advertisements consti-

tuted “clectioneering communication{s]” under BCRA during

the period between August 15, 2004, and November 2, 2004,

WRTL filed suit against the Federal Election Commission in

federal district court. Jd. at 5a. WRTL alleged that BCRA’s

prohibition on the use of general treasury funds to finance

electioneering communications is unconstitutional as applied

to the funding of its broadcast advertisements and moved for

a preliminary injunction. /d. at 6a.

The District Court denied WRTL’s motion for preliminary

injunction, concluding that WRTL’s “showing” failed to

meet the standard for granting such relief. /d. at 7a; see also

id. at 1la (“[P]laintiff’s case falls far short of the four-part

test for the grant of a preliminary injunction.”). As to

WRTL’s likelihood of success of the merits of its suit, the

District Court concluded that this Court’s rejection of a facial

constitutional challenge to BCRA Section 203 “[jJust last

year” in McConnell “leaves no room for the kind of ‘as

applied’ challenge that WRTL propounds.” Jd. at 7a. The

5

District Court drew this inference from the fact that the

McConnell Court declined to consider the “back up” defini-

tion of “electioneering communication” that BCRA provided

(in the event the primary definition of that term were deemed

“constitutionally insufficient”) once it “ ‘uph{e]ld all appli-

cations of the primary definition.’ ” Id. (quoting McConnell,

540 U.S. at 190 n.73) (emphasis and brackets by the District

Court). “The Court’s deliberate declaration of its ruling as

encompassing ‘all applications of the primary definition,’ ”

the District Court reasoned, “suggests little likelihood of

success for an ‘as applied’ challenge to some applications of

that definition, such as the one plaintiff brings before us.”

J.S. App. 7a (quoting McConnell, 540 U.S. at 190 n.73)

(emphasis and brackets by the District Court).

The District Court found that the stock it put in the Court’s

declaration was buttressed by the fact that Section 203 was

not among the four BCRA sections that the Court identified

as possibly subject to future as-applied constitutional chal-

lenges. See id. at 7a-8a. According to the District Court,

“the Court’s deliberate upholding of ‘all applications’ stands

in informative contrast to its explicit acknowledgement that

other parts of the statute which it upheld against facial

challenge might be subject to ‘as applied challenges’ in the

future.” Jd. at 7a. While it recognized that the Court’s

omission did not “preclude the possibility” of an as-applied

challenge to Section 203, the District Court concluded that,

“in the face of the strength of the Court’s holding with

specific reference to these [other] provisions, we cannot

possibly conclude that the plaintiff has made out a substantial

likelihood of success on the merits.” Jd. at 8a.

The District Court’s reading of this Court’s decision in

McConnell, however, was “but one reason” that it declined to

find that WRTL’s suit had any likelihood of success on the

merits. /d. The District Court went on to observe that the

facts involved in WRTL’s as-applied challenge “may fit the

very type of activity McConnell found Congress had a

compelling interest in regulating.” Jd The District Court

explained that WRTL’s advertisements seemed to confirm

6

the McConnell Court’s suspicion that corporate funding of

pre-election broadcast advertisements “ ‘will offen convey [a]

message of support or opposition’ regarding candidates.” Jd.

at 8a-9a (quoting McConnell, 540 U.S. at 239) (emphasis in

McConnell) (brackets by the District Court). “Here, WRTL

and WRTL’s PAC used other print media and electronic

media to publicize its filibuster message—a campaign

issue—during the months prior to the electioneering blackout

period, and only as the blackout period approached did

WRTL switch to broadcast media.” J.S. App. 9a. WRTL’s

tack, the District Court further noted, “followed the PAC

endorsing opponents seeking to unseat a candidate whom

WRTL names in its broadcast advertisement, and the PAC

announcing as a priority ‘sending Feingold packing.’ ” /d. at

9a (citation omitted). The District Court also concluded that

WRTL, in addition to having failed to establish a substantial

likelihood of success on the merits, failed to meet the remain-

ing elements of the standard for obtaining a preliminary

injunction. See id. at 9a-1 la.

Following its denial of WRTL’s motion for preliminary

injunction, the District Court dismissed WRTL’s lawsuit

with prejudice. /d. at la. The District Court held that, “for

the reasons set forth in its prior opinion,” this Court’s deci-

sion in McConnell “foreclosed” WRTL’s as-applied chal-

lenge to BCRA Section 203. /d. at 2a-3a.

SUMMARY OF ARGUMENT

For nearly a century, Congress has sought to prevent cor-

porations and unions from using general treasury funds to

influence federal elections. BCRA indeed represents only

“the most recent federal enactment designed to purge na-

tional politics of what was conceived to be the pernicious

influence of ‘big money’ campaign contributions.” McCon-

nell, 540 U.S. at 115 (internal quotation marks & citation

omitted). For its part, BCRA Section 203 only extends a

longstanding prohibition against the use of corporate and

union treasury funds for advertisements that expressly

advocate the election or defeat of a federal candidate to cover

a newly-defined form of communication—i.e., electioneering

7

communications. Congress concluded, and record evidence

demonstrates, this measure was needed to prevent corpora-

tions and unions from circumventing the pre-existing prohi-

bition by funding advertisements with treasury revenues that,

while falling short of express advocacy, were no less calcu-

lated to influence federal elections and likely had that effect.

And in upholding BCRA Section 203 against a facial consti-

tutional attack in McConnell, this Court foreclosed WRTL’s

present as-applied challenge to it. It upheld the prohibition

on all advertisements meeting the statutory definition of

electioneering communication, including so-called “grass-

roots lobbying,” because those advertisements will often

communicate a message of support for or opposition to a

federal candidate. In any event, the three “grassroots lobby-

ing” advertisements that WRTL sought to air during BCRA’s

pre-election blackout period constitute the very kind of

communications that Congress sought to regulate with

BCRA Section 203. They were likely designed to influence

Senator Feingold’s bid for reelection to the Senate and, if

permitted to air, would likely have had precisely that effect.

ARGUMENT

I. BCRA SECTION 203 CLOSED A LOOPHOLE IN

THE FEDERAL CAMPAIGN FINANCE REGIME

THAT HAD BEEN EXPLOITED BY CORPORA-

Lt AND UNIONS IN PREVIOUS ELEC-

“Since 1907, there has been continual congressional atten-

tion to corporate political activity, sometimes resulting in

refinement of the law, sometimes in overhaul.” Federal

Election Comm’n v. Beaumont, 539 U.S. 146, 153 (2003).

BCRA Section 203 and the definition of “electioneering

communication” fall into the former category. Although

BCRA Section 203 extends the prohibition on the spending

of corporate and union general treasury funds in connection

with federal elections to encompass a newly-defined form of

communication, since the Court’s seminal ruling in Buckley

v. Valeo, 424 U.S. 1 (1976), “Congress’ power to prohibit

corporations and unions from using funds in their treasuries