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

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to finance advertisements expressly advocating the election

or defeat of candidates in federal elections has been firmly

embedded in our law.” McConnell, 540 U.S. at 203. Section

203 constitutes no more than a modification of pre-existing

law needed to “ ‘plug [an] existing loophole’ ” in the prohibi-

tion on corporate and union general treasury expenditures in

connection with federal elections. United States v. Interna-

tional Union United Auto., Aircraft & Agric. Implement

Workers of Am., 352 U.S. 567, 582, 585 (1957) (UAW)

(quoting S. Rep. No. 1, pt. 2, 80th Cong., Ist Sess. 38-39

(1947)).

1. This Court is mindful of the “historical prologue” of a

challenged provision of federal election law. Beaumont, 539

U.S. at 156; see UAW, 352 U.S. at 570 (“Appreciation of the

circumstances that begot this statute is necessary for its

understanding, and understanding of it is necessary for

adjudication of the legal problems before us.”). This Court

has recognized that the prohibition against corporate and

union general treasury expenditures in connection with

campaigns for federal elected office has long been a corner-

stone of federal election law. See Beaumont, 539 US. at

152-154; McConnell, 540 U.S. at 115-118. That restriction

reflects an abiding concern with the ability of corporations

and unions, if left unchecked, to use their state-sanctioned

privileges and ability to aggregate wealth to obtain unfair

political advantages. See Austin v. Michigan Chamber of

Commerce, 494 U.S. 652, 658-659 (1990); Federal Election

Comm'n v. National Right to Work Comm., 459 U.S. 197,

207-208 (1982) (NRWC); UAW, 352 U.S. at 585.

Congress made its initial foray into the arena of campaign

finance regulation in 1907. It responded to President Roose-

velt’s call for a ban on corporate political contributions “not

with half measures, but with the Tillman Act,” which

“banned any corporation whatever from making a money

contribution in connection with federal elections.” Beau-

mont, 539 U.S. at 153 (internal quotation marks & citation

omitted). After this first step, Congress took another one in

1925 by extending the Tillman Act’s prohibition on corpo-

rate contributions to encompass “anything of value” and by

criminalizing the giving and receiving of corporate contribu-

tions. See NRWC, 459 U.S. at 209 (citing Corrupt Practices

Act, 1925, §§ 301, 313, 43 Stat. 1070, 1074). Congress later

extended the coverage of this prohibition to include labor

unions. See NRWC, 459 U.S. at 209 (noting that “union

contributions in connection with federal elections were

prohibited altogether” by the War Labor Disputes Act of

1943). And, later still, Congress extended the scope of this

prohibition affecting corporate and union political activity to

include not just contributions but also “expenditures.” See

McConnell, 540 U.S. at 117.

In its “steady improvement of the national election laws,”

Congress enacted FECA in 1972. Jd. This statute, as this

Court has explained, “ratified the earlier prohibition on the

use of corporate and union general treasury funds for politi-

cal contributions and expenditures.” Jd. at 118. Specifically,

FECA Section 441b, which constituted “merely a refinement

of th{e] gradual development of the federal election statute,”

NRWC, 459 U.S. at 209, made it “unlawful * * * for any

corporation whatever * * * to make a contribution or expen-

diture in connection with any” federal election. 2 U.S.C.

§ 441b(a); see Federal Election Comm'n v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238, 241 (1986) (MCFL)

(Section 441b “prohibits corporations from using treasury

funds to make an expenditure in connection with any federal

election.”). The term expenditure, as defined by FECA,

included “anything of value * * * for the purpose of influenc-

ing any election for Federal office.” 2 U.S.C. § 431(9)(A)(i).

While barring expenditures of general treasury funds, how-

ever, FECA “expressly permitted corporations and unions to

establish and administer separate segregated funds (com-

moniy known as political action committees, or PACs) for

election-related contributions and expenditures.” McConnell,

540 U.S. at 118; see MCFL, 479 U.S. at 241 (Section 441b

“requires that any [corporate or union] expenditure for [a

federal election] purpose be financed by voluntary contribu-

tions to a segregated fund.”); Pipefitters Local Union No. 562

v. United States, 407 U.S. 385, 409-410 (1972).

2. FECA Section 441b’s prohibition against corporate and

union expenditures of “anything of value” in connection with

federal elections was later modified by this Court in a way

that, as discussed below, carried untoward consequences

eventually prompting Congress to enact BCRA Section 203.

In MCFL, this Court accepted the argument that FECA

Section 441b “necessarily incorporates the requirement that a

communication ‘expressly advocate’ the election of candi-

dates” and held that “an expenditure must constitute ‘express

advocacy’ in order to be subject to the prohibition of

§ 441b.” MCFL, 479 US. at 248-249. This requirement, the

Court explained, stemmed from its own prior decision in

Buckley v. Valeo, supra, which—in order to avoid vagueness

and overbreadth concerns inhering in a different FECA

provision touching on independent campaign expenditures—

held that “expenditure encompassed ‘only funds used for

communications that expressly advocate the election or

defeat of a clearly identified candidate.’” MCFL, 479 U.S.

at 249 (quoting Buckley, 424 U.S. at 80). As the MCFL

Court explained, Buckley “adopted the ‘express advocacy’

requirement to distinguish discussion of issues and candi-

dates from more pointed exhortations to vote for particular

persons.” 479 U.S. at 249. The Buckley Court in fact

specifically identified eight such “more pointed exhorta-

tions”—namely, “vote for,” “elect,” “support,” “cast your

ballot for,” “Smith for Congress,” “vote against,” “defeat,”

and “reject.” 424 U.S. at 44 n.52. In the years since Buckley,

the “express advocacy” limitation has become “known as the

‘magic words’ requirement.” McConnell, 540 U.S. at 191.

“As a result of MCFL, corporations and labor unions were

permitted to use their general treasury funds on independent

expenditures in connection with a federal election, provided

that those independent expenditures did not contain words of

‘express advocacy.”” McConnell v. Federal Election

Comm'n, 251 F. Supp. 2d 176, 525-526 (D.D:C.) (Kollar-

Kotelly, J.) (footnote omitted), aff'd in part & rev'd in part,

540 U.S. 93 (2003). More to the point, “corporations and

labor unions could use their general treasury funds to pay for

an advertisement which influenced a federal election, pro-

vided that the corporation or labor union did not use any of

Buckley’s ‘magic words’ in the advertisement.” Jd. at 526

(emphasis added).

3. Those involved in the electioneering business have

historically pressed the federal campaign finance law enve-

lope. “[{E]xperience demonstrates,” this Court has said, “how

candidates, donors, and parties test the limits of the current

law.” Beaumont, 539 U.S. at 155 (internal quotation marks

& citation omitted). The prohibition contained in FECA

Section 441b (qualified by the magic words requirement)

proved no exception to this lesson of experience. In the years

following this Court’s decision in MCFL, corporations and

labor unions tested FECA Section 441b’s prohibition by

making expenditures on advertisements that eschewed

reliance on Buckley’s “magic words” but were no less

effective at influencing federal elections than communica-

tions containing “pointed exhortations” of support for or

opposition to candidates for federal office. “Approximately

ten years after MCFL, during the 1996 election cycle, corpo-

rations and labor unions began aggressively to use general

treasury funds to pay for ‘issue advocacy’ campaigns that

avoided express advocacy but were designed to influence

federal elections.” McConnell, 251 F. Supp. 2d at 526

(Kollar-Kotelly, J.); see also id. at 201 (per curiam) (“It does

not appear that prior to 1996, the practice of using issue

advertising to influence federal elections was a widespread

practice.”); id. at 800 (Leon, J.) (“[C]orporations, interest

groups, and unions began in 1996 to actively use treasury

funds to sponsor issue advertisements that looked and

sounded like campaign ads.”) (internal quotation marks &

citation omitted). Those advertisements “were attractive to

organizations and candidates precisely because they were

beyond FECA’s reach, enabling candidates and their parties

to work closely with friendly interest groups to sponsor so-

called issue ads when the candidates themselves were run-

ning out of money.” McConnell, 540 U.S. at 128.

4. During the issue advocacy boom of the late 1990s,

“{cjorporations and unions spent hundreds of millions of

dollars of their general funds to pay for these ads.” Jd. at

127. The Annenberg Center for Public Policy, which has

studied “issue advocacy” since the early 1990s, concluded

that “the numbers of ads, groups, and dollars spent on issue

advocacy * * * climbed” markedly from the 1996 to the 2000

election cycle. McConnell, 251 F. Supp. 2d at 879 (Leon,

J.). It found that the 1995-96 election cycle saw about “$135

million to $150 million * * * spent on multiple broadcasts of

about 100 ads.” Jd. Those numbers grew during the next

election cycle: “[TJhe Annenberg Center found that 77

organizations aired 423 advertisements at a cost of between

$250 million and $340 million.” Jd. And during the “1999-

2000 election cycle, the Annenberg Center found that 130

groups spent over an estimated $500 million on 1,100

distinct advertisements.” /d. In passing BCRA, the Annen-

berg Center’s tracking of the rise of organizations’ reliance

on issue advocacy did not escape Congress’s attention. See

147 Cong. Rec. $2455 (daily ed. Mar. 19, 2001) (statement

of Sen. Snowe) (“Let there be no mistake. The record I

intend to outline will show these advertisements constitute

campaigning every bit as much as any advertisements run by

candidates themselves or any ad currently considered to be

express advocacy and therefore subject to Federal election

laws.”); id. at 2456 (statement of Sen. Snowe) (referencing

2001 Annenberg report).

5. The rise in issue advertisements was not a coincidence

but a strategy adopted by organizations intent on influencing

campaigns for federal offices in light of the express advocacy

limit read into Section 441b’s expenditure prohibition. Two

judges on the three-judge District Court convened to review

the pre-enforcement challenge to BCRA specifically found

that these organizations used issue advertisements with the

hope of influencing federal elections. Based on her review of

the evidence, Judge Kollar-Kotelly concluded that “{iJt is

therefore uncontroverted that by the early 1990s and espe-

cially by 1996, interest groups had developed a strategy to

effectively communicate an electioneering message for or

against a particular candidate without using the magic words

and thus avoid disclosure requirements, contribution limits

and source limits.” McConnell, 251 F. Supp. 2d at 528

(internal quotation marks, alteration and citation omitted);

see also id. at 529 (fincing that “the uncontroverted record

demonstrates that since the 1996 election cycle, candidate-

centered issue advertisements have been used by corpora-

tions and labor unions to influence federal elections with

general treasury funds.”).

Judge Leon similarly concluded that “the record more than

adequately demonstrates[ ] that in the twenty-eight years

since Buckley, corporations, unions, and interest groups have

increasingly affected federal elections by funding out of their

general treasuries uncoordinated ‘issue ads’ that either they,

or a political party, ran in the months leading up to an

election.” Jd. at 799. He further explained that, “[i]n order to

avoid regulation as express advocacy, those so-called ‘issue

advertisements’ did not contain certain ‘magic words’

designed to support or oppose a specific candidate’s election

or re-election.” Jd. at 800.

The ads, however, were constructed in such a way

that they simultaneously presented their sponsors’

stand on an issue, identified a specific candidate’s po-

sitions or track record thereon, and under the guise of

admonishing the viewer to inform the candidate of his

view, suggested that a candidate who takes (or has

taken) the candidate’s position should (or should not)

be elected to that office. [/d.]

He concluded that the “factual record unequivocally estab-

lishes that [issue advertisements] have not only been crafted

for the specific purpose of directly affecting federal elections,

but have been very successful in doing just that.” Jd.

6. The line that Buckley drew between express advocacy

and issue advocacy, which was later imported into FECA

Section 441b in MCFL, was not only easily and frequently

circumvented but largely illusory from the start. Buckley

itself signaled as much: —

[T]he distinction between discussion of issues and

candidates and advocacy of election or defeat of can-

didates may often dissolve in practical application.

Candidates, especially incumbents, are intimately tied

to public issues involving legislative proposals and

government actions. Not only do candidates cam-

paign on the basis of their positions on various issues,

but campaigns themselves generate issues of public

interest. [424 U.S. at 42.]

Indeed, this Court in McConnell confirmed that the express

advocacy test is a “functionally meaningless” one, 540 U.S.

at 193, 217: “While the distinction between ‘issue’ and

express advocacy seemed neat in theory, the two categories

of advertisements proved functionally identical in important

respects.” McConnell, 540 U.S. at 126.

Experience in fact powerfully demonstrated that the ex-

press advocacy test and the focus on “magic words” failed to

identify accurately communications designed to influence

elections for federal office. In McConnell, all three of the

judges of the District Court agreed that few advertisements

run by candidates, parties or interest groups rely on words of

express advocacy. See 251 F. Supp. 2d at 303 (Henderson,

J.); id. at 529 (Kollar-Kotelly, J.); id. at 874 (Leon, J.). A

mere 4% of candidate advertisements during the 1998

election cycle contained “magic words,” while only 5% did

so during the 2000 election cycle. McConnell, 540 U.S. at

128 n.18. Judge Kollar-Kotelly concluded that “[t]he uncon-

troverted testimony of political consultants demonstrates that

it is neither common nor effective to use the ‘magic words’

of express advocacy in campaign advertisements.” 251 F.

Supp. 2d at 529. Indeed, “[t]he unrebutted expert testimony”

in the District Court “demonstrate[d] that only 11.4 percent

of advertisements purchased by federal candidates that aired

during the 2000 election cycle would qualify as electioneer-

ing under the ‘magic words’ test.” /d. at 608; see also id. at

529 (citing “[e)mpirical study demonstrat[ing] that modern

campaign advertisements do not use words of express

advocacy” and that “88.6 percent of candidate advertisements

in 2000 were technically undetected by the Buckley magic

words test”) (internal quotation marks & citation omitted).

The record before the District Court demonstrated that

media professionals actually disfavored such heavy-handed

tactics. One political consultant explained that it “is rarely

advisable” given “the modern world of 30 second political

advertisements” to use “such clumsy words as ‘vote for’ or

‘vote against.’ ” Jd. at 529-530 (Kollar-Kotelly, J.); see also

id. at 305 (Henderson, J.); id. at 874-875 (Leon, J.). The

“most effective” course, as “[a}ll advertising professionals

understand,” is to “lead{ ] the viewer to his or her own

conclusion without forcing it down their throat.” /d. at 529-

530 (Kollar-Kote'ly, J.); id. at 875 (Leon, J.); see also

McConnell, 540 U.S. at 193 n.77 (noting that “political

professionals and academics confirm that the use of magic

words has become an anachronism”). “This is especially true

of political advertising, because people are generally very

skeptical of claims made by or about politicians.” McCon-

nell, 251 F. Supp. 2d at 530 (Kollar-Kotelly, J.). The express

advocacy limitation of course proved no substantia! obstacle

for this “modern” electioneering approach.

Members of Congress themselves—some of them “sea-

soned professionals who have been deeply involved in

elective processes and who have viewed them at close range

over many years”>—confirmed that the “magic words” of

express advocacy “do not distinguish pure issue advertise-

ments from candidate-centered issue advertisements.” /d. at

532 (Kollar-Kotelly, J.). Senator Russ Feingold, for exam-

ple, opined that “[pjedple didn’t need to hear the so-called

magic words to know what these ads were really all about.”

147 Cong. Rec. $3072 (daily ed. Mar. 29, 2001), while

Senator John McCain explained that “th[is} Court’s defini-

tion of ‘express advocacy’—magic words—has no real

3 Buckley, 424 U.S. at 261 (White, J., concurring in part & dis-

senting in ); see also Colorado Republican Fed. Campaign

_— v. — me CC Comm 'n, +- anpe + 650 =

Stevens, J., dissenting) “Congress sure wisdom

experience in these matters that is far superior to ours.”’).

bearing in today’s world of campaign ads.” 147 Cong. Rec.

$3036 (daily ed. Mar. 28, 2001); see also 148 Cong. Rec.

$2141 (daily ed. Mar. 20, 2002) (statement of Sen. McCain)

(“[E}ven a casual observer would concede that ‘magic words’

is a dramatically underinclusive test for determining what

constitutes a campaign ad.”). Many other federal lawmakers

expressed similar views on so-called issue advocacy.‘

7. The widespread practice of using soft money to fund

issue advertisements designed to influence campaigns for

federal office was further documented in the six-volume

4 See, e.g., 148 Rec. H387 (daily ed. Feb. 14, 2002) (state-

ment of . Cardin) (“C , these [issue] ads which are

c aimed at influencing an ion can be worded in a way

that are decmed issue advocacy and are not subject to cam-

hem Sein con dindinenen : is.”); 148 C

Ree H4 0 (daily ed Feb. 14, 2002) (statement of 7 & Kleczka)

(“An equally troubling aspect of today’s campaign system is the

number of issue advertisements broadcast on the te and

radio. Although these ads technically adhere to federal campaign

ions, violate the spirit of the law.”); 147 Rec.

$2636 (daily ed. Mar. 21, 2001) (statement of Sen. ) (“In

fact, [issue advertisements] are more than a masquerade, they are a

sham, they are a fraud on the American people, and they are

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report—spanning nearly 10,000 pages—that the Senate

Governmental Affairs Committee (Committee), chaired by

Senator Fred Thompson and led also by Ranking Member

John Glenn, produced following its investigation into cam-

paign finance law abuses during the course of campaigns for

the presidency in 1996. See Investigation of Illegal or

Improper Activities in Connection with 1996 Federal Elec-

tion Campaigns, S. Rep. No. 105-167 (1998) (Thompson

Report). This Court in McConnell characterized the Com-

mittee’s findings as “disturbing.” 540 U.S. at 122.

The Committee concluded that issue advertisements consti-

tuted “the second most significant loophole” in the pre-

existing campaign finance regime. Thompson Report at

5968 (minority views). The Committee “found such ads

highly problematic for two reasons.” McConnell, 540 U.S. at

131. First, because issue advertisements “accomplished the

same purpose as express advocacy (which could lawfully be

funded only with hard money), the ads enabled unions,

corporations, and wealthy contributors to circumvent protec-

tions that FECA was intended to provide.” /d Second,

while the advertisements were “ostensibly independent of the

candidates,” they were “often actually coordinated with, and

controlled by, the campaigns.” /d. “The ads thus provided a

means for evading FECA’s candidate contribution limits.”

Id. The Committee’s findings bear out these conclusions.

Looking broadly at the problem posed by issue advocacy,

the Thompson Report found that both national parties used

soft money to fund issue advertisements intended to influ-

ence the 1996 presidential election. The Democratic Na-

tional Committee (DNC) spent $44 million on issue adver-

tisements during the 1996 presidential election, while the

Republican National Committee (RNC) spent $24 million.

See Thompson Report at 4482; id. at 8294 (minority views).

When Harold Ickes, President Clinton’s Deputy Chief of

Staff, was asked during the Committee hearings whether the

average person would comprehend the DNC and RNC’s

issue advertisements as encouraging a vote for one of the

presidential candidates, he responded that “I would certainly

hope so. If not, we ought to fire the ad agencies.” /d. at

8286 (minority views).

The 1996 presidential candidates themselves tended to

share this view toward issue advertisements funded by soft

money. That President Clinton fully appreciated the impact

of issue advertisements on his campaign for a second presi-

dential term is apparent in his telling major contributors to

the DNC that their contributions, which funded advertise-

ments “run * * * through the Democratic party,” rather than

his campaign, “have made a huge difference.” Jd. at 62.

Senator Dole’s campaign deployed this strategy as well. The

Report concluded that “there can be little doubt that the

RNC’s issue ads were intended to influence the outcome of a

federal election.” Jd. at 4014. One of those advertisements,

entitled “The Story,” the Thompson Report concluded, “was

nothing more than a biography of Bob Dole.” Jd. Senator

Dole’s campaign manager, Scott Reed, acknowledged that

“w]e went out in April and May and raised $25 million for

the party, of which about $17, $18 or $19 million was put

into party building ads, which were Bob Dole in nature.” /d.

at 8301 (minority views). In an interview with Ted Koppel

of ABC News, Senator Dole explained that, while his cam-

paign could not afford to fund advertisements lauding his

candidacy, the RNC ran “generic” ads on his behalf. /d at

4153-54. Questioned whether “Bob Dole for President”

constitutes “generic spending,” Senator Dole explained that

such generic advertisements “never say[ ] that I’m running

for president, though I hope that it’s fairly obvious, since I’m

the only one in the picture!” /d. at 4154.

The Thompson Report further detailed the extent to which

the national parties coordinated their issue advertisements

with the campaigns of their presidential candidates. As for

the DNC, the report concluded that the White House essen-

tially “operated the [DNC] party apparatus as a slush-fund

for the President’s re-election campaign.” Jd at 23. The

Clinton/Gore campaign and the DNC used the same consult-

ants, pollsters and media producers, id. at 34, and even

coordinated the day on which their respective advertisements

would run, id. at 118. Indeed, Dick Morris, a campaign

advisor to President Clinton, stated that the President himself

was so involved in the creation of all of the DNC and Clin-

ton/Gore campaign advertisements that they essentially

“*became * * * the work of the President himself.’” Jd. at

122. This “unprecedented” level of coordination, the

Thompson Report concluded, led to the “oblitera[tion]” of

any “distinctions remaining between the White House, the

DNC, and [the] Clinton/Gore (campaign].” /d. at,107.

Similar findings were made in regard to the RNC and

Senator Dole’s campaign. The RNC’s media campaign was

controlled by Senator Dole’s “campaign manager, chief

fundraiser, media consultant, and pollster.” Jd at 8297

(minority views). And “the criterion used by the RNC and

the Dole campaign for deciding where to run issue ads was

whether the ads would help Senator Dole win electoral

votes.” Jd. at 8299 (minority views).

The Thompson Report further concluded that, just as the

national parties exploited the issue-advocacy loophole, so,

too, did corporations and unions. It found that such organi-

zations spent “roughly one-seventh of the 400 million dollars

expended on political advertising during the 1996 elections

by parties, candidates and others.” /d. at 3993. These

advertisements—like the ones produced by the parties—were

likewise intended to influence federal elections. See id. at

3997. They were indeed often coordinated with the cam-

paigns of the 1996 presidential candidates or the national

parties with which they were associated. Jd The Thompson

Report found, for example, that “[e]vidence * * * indicates

{that AFL-CIO] programs were conceived, designed and

implemented to defeat Republican Members of Congress

during the 1996 elections.” Jd; see also id. at 49 (“White

House aides and the AFL-CIO carefully reviewed each

other’s advertisements and coordinated their timing and

placement.”). Dick Morris additionally testified during the

Committee hearings that an August 1995 meeting between

representatives of the Clinton/Gore campaign, the DNC and

seven labor organizations consti “ ‘a full briefing of us

by them on their media plans.’” Jd. at 128.

Groups backing Republican candidates similarly used issue

advertisements in an attempt to influence federal elections.

For instance, The Coalition: Americans Working for Real

Change, a group formed to counter issue advertisements

aired by the AFL-CIO, produced issue advertisements nearly

identical to advertisements run by the National Republican

Congressional Committee (NRCC), a division of the RNC,

aired them at the same time as the NRCC’s advertisements

and “in districts where the Republican incumbent’s seat was

vulnerable.” Jd. at 8944 (minority views). Another group,

Triad Management Services, “channeled millions of dollars

from its backers to two tax-exempt groups it had established

for the sole purpose of running attack ads against Democratic

candidates under the guise of ‘issue advocacy.’” Jd. at 4569

_ (minority views). “By operating this way, Triad and its

financial backers avoided the disclosure and campaign

contribution limits of the federal election laws.” Jd. They

became “surrogates” by which the RNC “was able to cir-

cumvent federal campaign finance laws.” Jd. at 5979 (minor-

ity views). This was so because whereas “a political party

[that] broadcasts issue ads * * * is required to pay for them

with a combination of hard dollars and soft dollars,” when

“an outside group runs such ads, there are no such restric-

tions—even if the funding comes from the RNC.” Jd.

The Thompson Report concluded that repairs to the cam-

paign finance laws must involve restrictions on issue advo-

cacy. “The majority expressed the view that a ban on the

raising of soft money by national party committees would

effectively address the use of union and corporate general

treasury funds in the federal political process only if it

required that candidate-specific ads be funded with hard

money.” McConnell, 540 U.S. at 132; see also Thompson

Report at 4492. The minority similarly recommended

“reforms addressing candidate advertisements masquerading

as issue ads.” Thompson Report at 9394 (minority views);