Appellants Brief — Federal Election Com'n v. Wisconsin Right to Life, Inc.

OS'S

Nos. 06-969 and 06-970

Jn the Supreme Court of the Anited States

FEDERAL ELECTION COMMISSION, APPELLANT

Uv.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

Se

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

FEDERAL ELECTION COMMISSION

PAUL D. CLEMENT

THOMASENIA P. DUNCAN Solicitor General

Acting General Comusel Connsel of Record

RicHARD B. BADER ee ee

r . Deputy Solicitor Geueral

Associate General Conmusel pany s

: MALCOLM L. STEWART

) . 0 °9- , ‘ é ‘ ot 4. ‘ :

DAVID KOLKES Assistant to the Solicitor

General

Lh particut of Justice

Washingtow, DC) 0520-0007

(002) 915-2217

Assistant General Conmusel

HARRY J. SUMMERS

KEVIN DEELEY

Alforuecys

Fy deral Election Coniiissron

Washington, DC. 20462

QUESTIONS PRESENTED

1. Whether this case is moot.

2. Whether the three-judge district court erred in holding

that the federal statutory prohibition on a corporation’s use

of general treasury fund: fnrance “electioneering com-

munications” is unconstitutional as applied to three broadcast

advertisements that appellee proposed to run in 2004.

(1)

TABLE OF CONTENTS

Page

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a6 646 caues sngkenseneusesnishwdekudedacwes 2

EE pe id bd kaka wed vat ceaededesndetetadeeweeane 2

I EE EE CENT PO 17

Argument:

I. Appellee’s as-applied constitutional challenge With

respect to its 2004 advertisements is moot .......... 21

I]. BCRA § 208 is constitutional as applied to the three

advertisements at issue in this case ................ 25

A. Congress and this Court have recognized that

advertisements urging citizens to contact their

elected representatives are often intended to

influence federal elections and will frequently

ID 66k cudanecnndcacksenednveéhecces

B. Appellee bears the burden of establishing its

entitlement to a constitutional exemption from a

EE er ee eS ee

C. The district court erroneously refused to con-

sider highly relevant evidence confirming that

appellee’s advertisements were intended to

affect the Wisconsin Senate election and could be

expected to have that effect ...............006.

1. The district court’s stated reasons for dec-

lining to consider probative evidence outside

the “four corners” of the 2004 advertise-

ments are unpersuasive ...........-.4..---

(IIL)

36

IV

Table of Contents—Continued: Page

2. The contextual evidence that the district

court declined to consider confirms that the

advertisements at issue here were likely

intended to influence the Wisconsin Senate

election and could be expected to have that

SE Seb dvidevidddvecceudnedtcussiveeses 43

I hoe ilies paiecd deb eee de eNeedetnaweneeeeens 50

TABLE OF AUTHORITIES

Cases:

Austin v. Michigan Chamber of Commerce, 494

So Een pe ee eee 7

Brown v. Socialist Workers ‘74 Campaign Comm.,

PE cc icb bt vesswidsaussvebucwcss 34

Buckley v. Valeo, 424 U.S. 1 (1976)... ... 5, 30, 34, 38, 39

Christian Civic League of Maine, Inc. v. FEC, No.

06-ev-0614 (D.D.C. Sept. 27, 2006), juris.

statement pending, No. 06-589 (filed Oct. 26,

DE ctdteSANGheeNees eae eserbuweeset badness 22

City of L.A. v. Lyons, 461 U.S. 95 (1983) 2.2... 23

Cu itiss-Wright Corp. v. General Elec. Co., 446 U.S.

SE ioc eedh ne danesisbaee<eiesséeavesek Ee

FEC v. Beaumont, 539 U.S. 146 (2003) 2.2 .......3,4,7

FEC v. Massachusetts Citizens for Life, Inc., A79

EE og otcdiseeevandcadeces 4, 5, 26, 27

FEC v. National Right to Work Comm., 459 U.S.

PN <a iin sha wk aees Oho ndeeieneesea 1, 35

First Natl Bank vy. Bellotti, 435 U.S. 765 (978) 2... . 23

Friends of the Earth, Ine. v. Laidlaw Envtl. Seres.

(TOL) , Fme., TB US. WET CRIED occ cwccccscccces 21

Cases—Continued: Page

Lewis v. Continental Bank Corp., 494 U.S. 472

GEE os encdeesaresssé$idnnsecs eee 21, 23

McConnell v. FEC:

og Err passim

251 F. Supp. 2d 176 (D.D.C.), aff'd in part and

rev'd in part, 540 U.S. 93 (2008) ........ 31, 32, 49

Murphy v. Hunt, 455 U.S. 478 (1982) 0.0.6... ee ee. 23

North Carolina v. Rice, 404 U.S. 244 (1971) ......... 21

Pipefitters Local Union No. 562 v. United States,

Gee Ce DED oe p'05. 00 00s0s aussie 4

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427

GPE 080sus\covesenusseusessacs cee 22

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498

GUE k.o0d5s iccannns ndanteceteceeeeseeeeeeee 22

Spencer v. Kemna, 523 U.S. 1 (1998) ............ 23, 24

United States v. Munsingwear, Inc., 340 U.S. 36

NE 4 6winbiudecducesseskéceeseee 25

Wemstein v. Bradford, 423 U.S. 147 (1975) ......... 23

Constitution, statutes, regulation and rules:

U.S. Const.:

SR Bite EE ois 0604454s080500Keensene eee 21

REE. Dov 00s cendedeecacuaes eee 27, 41

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat 8s:

§ 201(a):

116 Stat. SY (2 U.S.C. 434013 AN (Supp.

FY SOP cc ouscncccnseesascuvabnakeeeeeen 6

Vi

Statutes, regulations and rules—Continued: Page

116 Stat. 89:

2 U.S.C. 434(1(3)(B)() (Supp. IV 2004) ..... 2

2 U.S.C. 434(f)(3)(B)(i)-(iv) (Supp. IV

BEEF Ad ebnedneunddeerscessessencecces 2,6

§ 203, 116 Stat. 91 (2 U.S.C. 441b(b)(2) (Supp. IV

DM scetCeeedeseeneevissdséandeeees passim

§ 403(a)(1), 116 Stat. 114 (2 U.S.C. 437h note

6 cee tedecbbiseenensseeeece 12

§ 403(a)(3), 116 Stat. 114 (2 U.S.C. 437h note

tc vticcheheencstanceoeeves 17, 22

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

Dh Se deehEbseseveos stad seurenecocoveses 3

td hs cect eer enenavecdses 5

deat buataddeesdendseteese 5

ee dd nek eceneenenees 3

bt ei chi ecenbedeoeeceee 3

EE Ne 3

ENN SO 3

ee i seaawedeeens 3

aR ee Wie tees 4,5, 35

Oe eee 4

ceive adv ened odes 12.6

2 U.S.C. 441 b(b)(2) (Supp. IV 2004) 2.2.2.2... 6

2 U.S.C. 441 b(b)(2C) (Supp. [TV 2004) ....... 4,7

2U S.C. 441DM4AMA) -(C) 2.0. 4

Internal Revenue Code of 1986, 26 U.S.C. 501(e4) 22.8

ERIS ER SS on 2?

Vil

Regulations and rules—Continued: Page

CR ES Ane OTe OD RRR eee 4,8

Fed. R. Civ. P.:

DD sccactdwdncnéddddiaededatwoiowed 17, 22

ED sicnacadedhedduteneeneloulvbanediuess 14

Miscellaneous:

Days in Session Calendars U.S. Senate-

108th Congress 2nd Session (2004)

<http://thomas.loc.gov/home/ds/s1082.html> ..... 11

In the Supreme Court of the Anited States

No. 06-969

FEDERAL ELECTION COMMISSION, APPELLANT

v.

WISCONSIN RIGHT TO LIFE, INC.

No. 06-970

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

° vw.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

FEDERAL ELECTION COMMISSION

OPINIONS BELOW

The opinion of the three-judge district court (J.S. App. la-

48a) is not yet reported.' Prior opinions of the district court

(J.S. App. 55a-56a, 57a-71la) are unreported.

' Unless otherwise noted, references to “J.S. App.” are to the appendix to

the jurisdictional statement in No. 06-969.

(1)

JURISDICTION

The decision of the three-judge district court was issued

on December 21, 2006. On December 28, 2006, the district

court issued an order stating that the December 21 order was

“a final appealable order as to those issues decided in the

opinion accompanying that order,” and that there was “no just

reason to delay an appeal.” J.S. App. 5la. Notices of appeal

were filed on December 29, 2006, by the Federal Election

Commission (J.S. App. 53a-54a) and by the intervenor defen-

dants (appellants in No. 06-970) (06-970 J.S. App. 42a-43a).

The jurisdictional statements were filed on January 12, 2007.

On January 19, 2007, this Court consolidated the two appeals

and set the case for briefing and argument, while postponing

further consideration of the question of jurisdiction to the

hearing of the case on the merits. The jurisdiction of this

Court is invoked under the Bipartisan Campaign Reform Act

of 2002 (BCRA), Pub. L. No. 107-155, § 403(a)(3), 116 Stat.

114. As discussed below, while this Court has statutory juris-

diction to entertain the instant appe.is, the district court

lacked Article I11 jurisdiction to adjudicate appellee’s claims

because the controversy giving rise to this action is moot.

STATEMENT

This case concerns the constitutionality of Section 203 of

the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.

L. No. 107-155, 116 Stat. 91 (2 U.S.C. 441b(b)(2) (Supp. IV

2004)), which prohibits corporations, labor unions, and na-

tional banks from using their general treasury funds to pay

for any “eclectioneering communication.” The term “election-

eering communication” is defined as a communication that

refers to a candidate for federal office and is broadcast within

the 30 days before a federal primary election or the 60 days

before a federal general election in the jurisdiction in which

that candidate is running. BCRA § 201(a), 116 Stat. 89 (2

3

U.S.C. 434(f)(3)(B)(i) (Supp. IV 2004). In McConnell v. FEC,

540 U.S. 93, 203-209 (2003), this Court sustained the constitu-

tionality of BCRA § 203 against a facial challenge. | |

Appellee filed suit in federal district court, arguing that

BCRA’s restrictions on the financing of “electionecring com-

munications” are unconstitutional as applied to three broad-

cast advertisements that appellee had proposed to run in

2004. The three-judge district court concluded that appellee’s

claim was foreclosed by McConnell and accordingly dismissed

the complaint. J.S. App. 55a-56a; see id. at 57a-7la. This

Court reversed, clarifying that BCRA § 203 is subject to as-

applied challenges. See Wisconsin Right to Life, Inc. v. FEC,

126 S. Ct. 1016, 1018 (2006) (WRTL J) (per curiam). On re-

mand, the district court held by a divided decision that BCRA

§ 203 is unconstitutional as applied to the 2004 advertisements

and granted summary judgment to appellee. J.S. App. la-48a.

1. The Federal Election Commission (Commission or

FEC) is vested with statutory authority over the administra-

tion, interpretation, and civil enforcement of the Federal

Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq.,

and other federal campaign-finance statutes. The Commis-

sion is empowered to “formulate policy” with respect to the

FECA, 2 U.S.C. 437¢(b)(1); “to make, amend, and repeal such

rules * * * as are necessary to carry out the provisions of

[the] Act,” 2 U.S.C. 487d(a)ts), 488(d); 2 U.S.C. 438(a)(&)

(Supp. IV 2004); and to issue written advisory opinions con-

cerning the application of the FECA and Commission regula-

tions to any specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 457f..

2. a. Federal law has long prohibited all corporations

from using their general treasury funds to finance contribu-

~ tions and expenditures in connection with federal elections.

See FEC v. Beanmont, 589 U.S. 146, 152-154 (20038). The

FECA makes it “unlawful * * * for any corporation what-

4

ever * * * to make a contribution or expenditure in connec-

tion with any election” for federal office. 2 U.S.C. 441b(a).

However, the FECA permits a corporation to establish a

“separate segregated fund,” commonly called a political action

committee or PAC, to finance those disbursements. 2 U.S.C.

441b(b)(2)(C) (Supp. IV 2004). The fund “may be completely

controlled” by the corporation, and it is “separate” from the

corporation “‘only in the sense that there must be a strict

segregation of its monies’ from the corporation’s other as-

sets.” FEC v. National Right to Work Comm., 459 U.S. 197,

200 n.4 (1982) (quoting Pipefitters Local Union No. 562 v.

United States, 407 U.S. 385, 414 (1972)). The fund may solicit

and accept donations voluntarily made for political purposes

by the corporation’s stockholders or members and its employ-

ees, and the families of those individuals. 2 U.S.C.

441b(b)(4)(A)-(C). The money in a corporation’s separate

segregated fund can be contributed directly to candidates for

federal office, and it may be used without limitation to pay for

independent expenditures to communicate to the general pub-

lic the corporation’s views on such candidates.

In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.

238 (1986) (MCF'L), this Court held that Section 441b’s prohi-

bition on the use of corporate treasury funds to finance inde-

pendent expenditures for campaign-related speech could not

constitutionally be applied to a corporation that (1) was

“formed for the express purpose of promoting political ideas,

and cannot engage in business activities”; (2) had “no share-

holders or other persons affiliated so as to have a claim on its

assets or earnings”; and (3) “was not established by a busi-

ness corporation or a labor union, and [had a] policy not to

accept contributions from such entities.” /d. at 264; see

McConnell, 540 U.S. at 210-211; 11 C.F.R. 114.10 (implement-

ing the MCFL exception): see also Beanmont, 539 U.S. at 152-

162 (upholding ban on direct corporate contributions as ap-

5

plied to all corporations, including those meeting the three

MCFL criteria). Corporations possessing the Characteristics

identified in that case are commonly referred to as “MCFL

organizations.” See, e.g., McConnell, 540 U.S. at 210.

The Court in MCFL also adopted a narrowing construc-

tion of 2 U.S.C. 441b even as applied to corporate entities that

do not qualify as MCFL organizations. In interpreting Sec-

tion 441b’s prohibition of corporate “expenditure|s],” the

Court noted that the FECA definition of “expenditure” en-

compassed “the provision of anything of value made ‘for the

purpose of influencing any election for Federal office.’”

MCPFL, 479 U.S. at 245-246 (quoting 2 U.S.C. 431(9)(A)(i))

(emphasis omitted). To avoid vagueness and overbreadth, the

Court construed Section 441b’s prohibition of independent

expenditures from corporate treasuries to reach only the fi-

nancing of communications that expressly advocate the elec-

tion or defeat of a clearly identified candidate. /d. at 248-249;

see 2 U.S.C. 431(17) (pre-BCRA law). The Court had previ-

ously introduced the concept of express advocacy in Buckley

v. Valeo, 424 U.S. 1, 43-44, 77-80 (1976) (per curiam), when it

narrowly construed other FECA provisions regulating inde-

pendent campaign expenditures. Buckley provided examples

of words of express advocacy, such as “vote for,” “elect,”

“support,” “defeat,” and “reject.” /d. at 44 n.52.

b. Based on its assessment of evolving federal campaign

practices following numerous hearings, Congress subse-

quently determined that, “|wJhile the distinction between ‘is-

sue’ and express advocacy seemed neat in theory, the two

categories of advertisements proved functionally identical in

important respects.” McConnell, 540 U.S. at 126. In the

wake of Buckley, corporations and labor unions crafted politi-

cal communications that avoided the so-called magic words of

electoral advocacy and financed those communications with

“hundreds of millions of dollars” from their general treasur-

6

ies. /d. at 127. Indeed, even the advertisements aired by

federal candidates themselves, who had no regulatory incen-

tive to avoid the words of express advocacy, rarely included

express exhortations to vote for or against a particular candi-

date. See id. at 127 & n.18, 193 & n.77. “[T]he conclusion that

{corporate and union| ads were specifically intended to affect

election results was confirmed by the fact that almost all of

them aired in the 60 days immediately preceding a federal

election.” Jd. at 127.

ee enacted BCRA to correct the flaws it found in

cation” with money from its poe treasury. 2 U.S.C.

441b(b)(2) (Supp. IV 2004). The term “electioneering commu-

nication” is defined in pertinent part as a “broadcast, cable, or

satellite communication” that (1) refers to a clearly identified

candidate for federal office; (2) is made within 60 days before

a general election, or within 30 days before a primary election

for the office sought by the candidate; and (8) is “targeted to

the relevant electorate.” BCRA § 201(a), 116 Stat. 89

(2 U.S.C. 434(f)(3)(A)(i) (Supp. IV 2004)).” The prohibition on

the use of corporate funds for electioneering communications

does not apply to “MCF L organizations.” See McConnell, 540

= BCRA excludes from the definition of “electioneering communication” “(i)

a communication appearing in a news story, commentary, or editorial

distributed through” a breadeasting station; (ii) a communication that is an

expenditure or independent expenditure under the Federal Election Campaign

Act; (iii) a candidate debate or forum; and (iv) any other communications the

Commission exempts by regulation, consistent with certain requirements.

BCRA § 20114), 116 Stat. 89(2 U.S.C. 40C)0B1i)-Civ) (Supp. TV 2004)). The

definition also does not encompass print communications such as billboards,

newspaper and magazine advertisements, brochures, and handbills, and it does

not cover telephone or internet communications. See MeConnell, 40 US. at

207.

7

U.S. at 209-211. A corporation or union remains free, more-

over, to establish a separate segregated fund and to pay for

electioneering communications in unlimited amounts from

that fund. See 2 U.S.C. 441b(b)(2)(C) (Supp. IV 2004).

3. Three Terms ago, in McConnell, this Court upheld

against a facial constitutional challenge BCRA § 203’s ban on

the use of corporate or union treasury funds for electioneer-

ing communications. See 540 U.S. at 203-209. The Court ob-

served that, “[bJecause corporations can still fund electioneer-

ing communications with PAC money, it is ‘simply wrong’ to

view * * * |[BCRA § 203| as a ‘complete ban’ on expression

rather than a regulation.” /d. at 204 (quoting Beawmont,

539 U.S. at 162); see Austin v. Michigan Chamber of Com-

merce, 494 U.S. 652, 658 (1990). “The PAC option allows cor-

porate political participation without the temptation to use

corporate funds for political influence, quite possibly at odds

with the sentiments of some shareholders or members.”

McConnell, 540 U.S. at 204 (quoting Beaumont, 539 U.S. at

163). The Court also noted that its campaign-finance juris-

prudence reflects “respect for the legislative judgment that

the special characteristics of the corporate structure require

particularly careful regulation.” /d. at 205 (citation and inter-

nal quotation marks omitted).

The Court in McConnell further held that the compelling

governmental interests that support the requirement that

corporations finance express advocacy through a PAC apply

equally to corporate financing of electioneering communica-

tions. 540 U.S. at 206. Based on its examination of a volumi-

nous record, the Court concluded that the “vast majority” of

prior advertisements encompassed by BCRA’s definition of

the term “electioneering communications” were intended to

influence elections. Jbid. The Court further observed that,

“whatever the precise percentage may have been in the past,

in the future corporations and unions may finance genuine

8

issue ads during those timeframes by simply avoiding any

specific reference to federal candidates, or in doubtful cases

by paying for the ad from a segregated fund.” /bid.

4. a. Appellee Wisconsin Right To Life, Inc., is a non-

profit, nonstock Wisconsin corporation. J.S. App. 2a. Appel-

lee’s amended complaint in this case asserted that the corpo-

ration is tax-exempt under Section 501(c)(4) of the Internal

Revenue Code of 1986 (26 U.S.C.), and that it was organized

to protect “individual human life from the time of fertilization

until natural death.” Amended Compl. paras. 20, 22; see J.S.

App. 57a. Appellee asserted that it does not qualify for any

exception that would permit it to finance electioneering com-

munications with corporate funds, alleging in particular that

it is not a “qualified nonprofit corporation” under 11 C.F.R.

114.10, which implements the MCFL exception. See J.S. App.

3a n.2, 58a. In 2004, appellee raised more than $300,000—

approximately one-fourth of the annual revenues of its gen-

eral fund—from corporations, with the “vast majority” com-

ing from business corporations. FEC Exh. 3, at 147-151; see

J.A. 119-120. Appellee maintains a PAC for election-related

activity. J.S. App. 58a.

b. United States Senator Russell Feingold of Wisconsin,

a Democrat, ran for reelection in 2004. J.S. App. 58a. In both

1992 and 1998, appellee’s PAC had made independent expen-

ditures urging Senator Feingold’s defeat. See FEC Exhs. 11-

12. “In March 2004, [appellee’s] PAC endorsed three candi-

dates opposing Senator Feingold and announced that the de-

feat of Senator Feingold was a priority.” J.S. App. 58a. Later

that month, appellee itself issued a press release that empha-

sized the organization’s “resolve to do everything possible to

win Wisconsin for President Bush and to send Russ Feingold

packing!” J.A. 80. The lead story in the Spring 2004 issue of

appellee’s quarterly magazine was entitled “RADICALLY

PRO-ABORTION FEINGOLD MUST GO!” (J.A. 101) and

9

stated that “Russ Feingold is so extreme in his anti-life posi-

tion and the U.S. Senate is so important to the future of un-

born babies that the defeat of Feingold must be uppermost in

the minds of Wisconsin’s pro-life community in the 2004 elec-

tions!” (J.A. 103). In August or September of 2004, appellee’s

PAC paid for radio advertising that called explicitly for Sena-

tor Feingold’s defeat. See FEC Exh. 3, at 128-131; FEC Exh.

4, at 126-127.

Appellee, along with others acutely interested in the up-

coming election, identified Senator Feingold’s participation in

filibusters of judicial nominees as a principal reason for op-

posing his reelection. The lead story in the Spring 2004 issue

of appellee’s magazine stated that “a number of President

Bush’s federal judicial nominees have been blocked by Bush’s

opponents from receiving a vote by the full Senate,” and that

“Feingold has been active in his opposition to Bush’s judicial

nominees and is expected to be particularly active in opposi-

tion to U.S. Supreme Court nominees.” J.A. 101, 102. The

lead story in the next issue was entitled “Nothing More Im-

portant: Re-Electing Pro-Life President Bush and Defeating

Pro-Abortion Russ Feingold.” J.A. 106. With respect to the

Wisconsin Senate race, the story stated:

The U.S. Senate is responsible for voting to confirm or

reject the President's judicial nominees. One of Wiscon-

sin’s current U.S. Senators, pro-abortion Russ Feingold,

faces re-election in the 2004 elections. Feingold has done

everything he can to thwart a number of the President's

federal judicial nominees at lower court levels and this is

only a preview of what Feingold and others would do to

defeat President Bush’s nominees to the U.S. Supreme

Court. The right-to-life community in Wisconsin must do

all it can to defeat Feingold and replace him with an indi-

10

vidual! who will consider President Bush’s judicial nomi-

nees in a fair manner.

J.A. 107. The article further explained that appellee’s PAC

had “endorsed three pro-life Republican U.S. Senate candi-

dates,” and that “all three candidates pledged to allow a vote

by the full Senate on judicial nominees that have received

either a favorable or neutral rating by the Senate Judiciary

Committee.” J.A. 108-109. In addition, the Republican Party

of Wisconsin identified Senator Feingold’s “obstruction of

President Bush’s judicial nominees” as one of four reasons

“why Russ Feingold should be voted out of office.”. FEC Exh.

18, at 2; see J.A. 19.

c. “In a news release on July 14, 2004, [appellee} criticized

Senator Feingold’s record on Senate filibusters against judi-

cial nominees.” J.S. App. 58a; see J.A. 86-87. Less than two

weeks later, near the beginning of a long congressional re-

cess, appellee began to use its corporate treasury funds to

finance the airing of two radio advertisements and one televi-

sion advertisement that were critical of the filibusters. J.S.

App. 3a-6a, 60a; see id. at 66a-71la (text of advertisements).

Those advertisements characterized filibusters of judicial

nominees as “politics at work, causing gridlock and backing

up some of our courts to a state of emergency.” Jd. at 67a,

69a; see id. at 70a (television advertisement states that “[i]t’s

politics at work and it’s causing gridlock”). Each advertise-

ment stated: “Contact Senators Feingold and Kohl and tell

them to oppose the filibuster.” /d. at 67a, 69a, 70a-7la. Sena-

tor Kohl was not a candidate for reelection in 2004. Jd. at 24a.

None of the advertisements provided contact information

for Senator Feingold or Senator Kohl. Each advertisement,

however, explicitly urged listeners or viewers to visit

“BeFair.org,” a website that appellee had created for its 2004

advertising campaigns. See J.S. App. 67a, 69a, 7la. That

website contained links to appellee’s main website, and both ~

1]

sites contained numerous materials criticizing Senator

Feingold on the filibuster issue. See, e.g., J.A. 77-92, 100-109,

123-128. For example, one “e-alert” posted on “BeFair.org”

stated that “16 out of 16 times over the past two years,

Feingold and Kohl have voted to filibuster certain of the Presi-

dent’s nominees,” and that “Feingold and Kohl are putting

politics into the court system, creating gridlock, and costing

taxpayers money.” J.A. 86. Between five and ten business

corporations, some from outside Wisconsin, donated a total of

more than $50,000 specifically to finance the advertisements.

See FEC Exh. 3, at 143-145, 150.

The two radio advertisements first aired on July 26, 2004,

and the television advertisement first aired on August 2, 2004.

See FEC Exh. 3, at 65. The advertisements began to run a

few days after four judicial filibuster votes had occurred and

the Senate had departed for a six-week recess. See J.S. App.

43a (Roberts, J., dissenting); FEC Exh. 35, at 4; Days in Ses-

sion Calendars U.S. Senate—108th Congress 2nd Session

(2004) <http://thomas.loc.gov/home/ds/s1082. html >; J.A. 61.

No judicial filibuster votes occurred during the rest of 2004.

See FEC Exh. 35.’

5. On July 28, 2004, appellee filed suit against the FEC in

federal district court, alleging that BCRA’s prohibition on the

use of corporate treasury funds for “electioneering communi-

cations” as defined in the Act is unconstitutional as applied to

the three specific broadcast advertisements and to any “ma-

’ Evidence obtained through discovery in this case indieated that appellee

had entered into discussions with an advertising agency in early to mid-May

but had intended from the outset to air the advertisements during the BCRA

pre-election period, even though the agency Was generally capable of creating

a radio advertisement in a week and a television advertisement in two weeks.

See generally J.A. 24-31. That evidence also indicated that, in her initial

contacts with the agency, appellee's executive director had stated that the

~

advertising campaign would result in litigation. J.A. 26; FEC Exh. 5, at 41-43.

12

terially similar ads,” which appellee described as “grass-roots

lobbying,” that appellee might seek to run in the future. J.S.

App. 7a; Amended Compl. paras. 15-16. Appellee sought a

preliminary injunction barring enforcement of the statute

against it. J.S. App. 7a. Because Senator Feingold was a

candidate for reelection in 2004, appellee “anticipate|d] that

its ongoing advertisements | would] be considered electioneer-

ing communications for purposes of federal statutory and

regulatory definitions * * * during the period between Au-

gust 15, 2004 and November 2, 2004.” /d. at 59a. A three-

judge district court was convened pursuant to BCRA

§ 403(a)(1), 116 Stat. 114 (2 U.S.C. 437h note (Supp. I'V 2004)).

The district court denied appellee's request for a prelimi-

nary injunction. J.S. App. 57a-71a. In holding that appellee

had not established a substantial likelihood of suecess on the

merits, the district court construed this Court’s decision in

McConnell to foreclose as-applied challenges of the sort

brought by appellee in this case. /d. at 61a. The district court

further stated that the specific facts of this case “suggest that

|appellee’s| advertisements may fit the very type of activity

McConnell found Congress had a compelling interest in regu-

lating.” /d. at 62a. The court explained:

In McConnell, the Court voiced the suspicion of corporate

funding of broadcast advertisements just before an elec-

tion blackout season because such broadcast advertise-

ments “will ofter convey [a] message of support or opposi-

tion” regarding candidates. Here, [appellee] and [appel-

lee’s} PAC used other print and electronic media to publi-

cize its filibuster message—a campaign issue—during the

months prior to the electioneering blackout period, and

only as the blackout period approached did [appellee]

switch to broadcast media. This followed the PAC endors-

ing opponents secking to unseat a candidate whom |appel-

13

lee| names in its broadcast advertisement, and the PAC

announcing as a priority “sending Feingold packing.”

Id. at 62a-63a (citations omitted).

Senator Feingold was reelected in November 2004. Ap-

pellee “did not run any additional anti-filibustering ads after

the 2004 election in either 2004 or in 2005 during the height of

the controversy.” J.S. App. 43a (Roberts, J., dissenting) (cita-

tion omitted); see FEC Exh. 3, at 101-103; J.A. 32-34. In May

2005, the district court dismissed appellee’s complaint. J.S.

App. 55a-56a.

6. In WRTL I, this Court vacated the judgment of the

district court, stating that McConnell “did not purport to re-

solve future as-applied challenges” to BCRA § 203. 1268. Ct.

at 1018. The Court noted the district court’s statement, in its

opinion denying preliminary injunctive relief, that appellee’s

“advertisements may fit the very type of activity McConnell

found Congress had a compelling interest in regulating.”

lbid. The Court found it unclear, however, whether the dis-

trict court had intended that statement as an alternative

ground for its decision. /bid. The Court remanded the case

to the district court to consider the merits of appellee’s as-

applied challenge in the first instance. /bid.

7. On remand, four Members of Congress were granted

leave to intervene as defendants. J.S. App. 9a. By a divided

vote, the three-judge district court subsequently entered sum-

mary judgment for appellee, holding that BCRA § 203 is un-

constitutional as applied to the three advertisements that

appellee had proposed to run during the 2004 election cycle.

Id. at la-48a ”

~ ' InAngust 2006, appellee filed a motion fora preliminary injunction against

enforcement of BCRA 8 208 with respect to a new advertisement, unrelated to

those at issue here, that appellee planned to run within the 60-day period

hefore the 2006 general election. On September 7, 2006, the district court

dened that motion. Appellee subsequentiy moved for summary judgment with

14

a. The district court began by considering its jurisdiction

to address appellee's constitutional challenges. Specifically,

the court held that appellee’s as-applied challenge with re-

spect to the 2004 advertisements remained justiciable because

the challenge fell within the exception to r votness principles

for claims that are “capable of repetition, yet evading review.”

J.S. App. 12a; see id. at lla-15a. With regard to the “evading

review” prong of that exception, the district court found it

“entirely unreasonable, if not fanciful, to expect that [appel-

lee] could have obtained complete judicial review of its claims

in time for it to air its ads during the 30 and 60-day periods

leading up to federal primary and general elections * * * in

2004.” Jd. at 13a. With respect to the “capable of repetition”

prong, the district court concluded that, “|wJhile |appellee’s]

intention to run genuine issue advertisements during future

BCRA blackout periods is not enough to sustain its general-

ized claim regarding ‘grassroots lobbying advertisements,’ it

is enough to create a reasonable expectation that it will be

subject to the same action again.” Jd. at 14a-15a (internal

quotation marks omitted).

The district court held, however, that it lacked jurisdiction

to consider appellee’s “generalized lobbying claim” because

that claim was “unripe.” J.S. App. 16a. That claim

“feature|d]| a prophylactic challenge to what | appellee] antici-

pates to be the prohibition by the FEC of its broadcasting

‘materially similar’ ads in future election contests.” Jd. at 15a.

The court held that this challenge was “too speculative and

thus not sufficiently concrete to state a cognizable claim un-

der Article I11.” /d. at 16a; see id. at 15a-16a.

b. On the merits, the district court stated that resolution

of appellee's as-applied challenge required a “two-step analy-

respect to the 2006 advertisement, and the FEC filed a motion under Federal

Rule of Civil Procedure 56(f). Those motions remain pending in the district

court. See JS. App. 15a n.15.

15

sis of the ads in question.” J.S. App. 17a. In the first step,

the court sought to determine whether the 2004 advertise-

ments were “express advocacy or its functional equivalent.”

Ibid. The court explained that, if the advertisements fit that

characterization, “that would be the end of the challenge be-

cause [this] Court in McConnell upheld BCRA’s authority to

regulate {such advertisements].” /bid.

In conducting the first step of its inquiry, the district

court agreed with appellee that “the judicial assessment of

the ads should be limited to a facial evaluation of the ads’ lan-

guage and images.” J.S. App. 18a; see id. at 19a-22a. Accord-

ingly, the court stated that it would

limit its consideration to language within the four corners

of the anti-filibuster ads that, at a minimum: (1) describes

a legislative issue that is either currently the subject of

- legislative scrutiny or likely to be the subject of such scru-

tiny in the near future; (2) refers to the prior voting re-

cord or current position of the named candidate on the

issue described; (3) exhorts the listener to do anything

other than contact the candidate about the described is-

sue; (4) promotes, attacks, supports, or opposes the named

candidate; and (5) refers to the upcoming election, candi-

dacy, and/or political party of the candidate.

Id. at 22a. Based on its analysis of those factors, see id. at

23a-24a, the district court concluded that, “on their face, [ap-

pellee’s] 2004 anti-filibuster advertisements were not in-

tended to influence the voters’ decisions,” 7d. at 24a (internal

quotation marks omitted), and that the advertisements there-

fore were “not the functional equivalent of express advocacy,”

id. at 25a.

At the second step of its analysis, the district court consid-

ered whether the government had established a state interest

sufficient to justify regulation of appellee's advertisements.

16

J.S. App. 25a-29a. The court stated that, “[b]v permitting as-

applied challenges to section 203’s constitutionality, * * *

[this] Court has now put in play the question it left open in

McConnell as to whether the government interests that jus-

tify regulating express advocacy and its functional equivalent

also apply to the regulation of genuine issue ads.” /d. at 26a-

27a. The district court held that the interests supporting

restrictions on corporate financing of express electoral advo-

cacy are inapposite here. /d. at 27a-28a.

‘In explaining that conclusion, the district court stated

that,

while it may be theoretically possible to craft a genuine

issue ad so subtly that it subconsciously encourages (or

discourages) a potential voter to support a political candi-

date, there is no evidentiary or common sense basis to

believe that such facially neutral ads are necessarily in-

tended to affect an election, or will necessarily be viewed

as such.

J.S. App. 27a-28a. The court also dismissed Congress’s inter-

est in establishing a “bright-line rule” for determining what

qualifies as an “electioneering communication” subject to

regulation under BCRA. /d. at 28a. Because the district

court found no compelling government interest in regulating

appellee's 2004 advertisements, the court declined to “address

whether [appellee] could/ should have pursued other options

for the financing of its advertisements or altered the content

of its ads so as to avoid BCRA section 203’s regulation alto-

gether.” /d. at 29a n.24.

c. Judge Roberts dissented from the district court's grant

of partial summary judgment to appellee. J.S. App. 30a-48a.

He found the court's refusal to look beyond the four corners

of the 2004 advertisements to be inconsistent with this Court's

decision in McConnell and with the district court’s own rul-

17

ings at earlier stages of this case. See id. ut 30a, 34a-40a. He

explained that “[a] purpose and effect-based inquiry seems

necessary to determine if [appellee’s| ads are genuine issue

ads or are instead express or sham issue advocacy because the

‘presence or absence of magic words cannot meaningfully

distinguish electioneering speech from a true issue ad.’” /d.

at 36a-37a (quoting McConnell, 540 U.S. at 193). Judge Rob-

erts concluded that, “|bJecause a contextual analysis is war-

ranted and discloses deep factual rifts between the parties

concerning the purpose and intended effects of the ads, nei-

ther side is entitled to judgment as a matter of law.” /d. at

30a. In particular, Judge Roberts stated that “[a| genuine

issue of material fact exists as to whether [appellee’s| 2004

advertisements were intended to influence a Senate election,

or to spark litigation, or to be genuine issue ads.” /d. at 47a.

d. On December 28, 2006, on the FEC’s motion, the dis-

trict court clarified that its December 21 order was “a final

appealable order as to those issues decided in the [accompa-

nying] opinion,” and that the court found “no just reason to

delay an appeal.” J.S. App. 5la; see Fed. R. Civ. P. 54(b);

BCRA § 403(a)(3), 116 Stat. 114 (2 U.S.C. 437h note (Supp. 1V

2094)).

SUMMARY OF ARGUMENT -

The district court erred in holding BCRA § 203 unconsti-

tutional as applied to the three advertisements at issue here.

1. Appellee’s as-applied constitutional challenge, which

involves advertisements that it has no continuing intent to

broadcast, is moot. Appellee has failec. to establish or even

allege that it will again seek to finance, during one of the pre-

election periods covered by BCRA § 203, either the specific

advertisements at issue in this case or other advertisements

having the same combination of features that the district

court found decisive. The “capable of repetition, yet evading

18

review” exception does not render this “moot” controversy

justiciable because appellee has failed to show that the “same

controversy” is likely to recur. In particular, appellee has

failed to show that it is likely to run future advertisements

having the five characteristics that the district court found

dispositive in disposing of appellee’s as-applied claim.

Il. BCRA § 203 is constitutional as applied to the three

advertisements at issue in this case. Whatever the ultimate

scope of as-applied challenges permitted to Congress’s bright-

line rule in BCRA § 203, the advertisements at issue in this

case fall comfortably within the heartland of “electioneering

communications” that Congress may permissibly regulate

under this Court’s precedents. Particularly when viewed in

context, the advertisements are the functional eauivalent of

the sort of express advocacy that this Court has lung recog-

nized may be constitutionally regulated under FECA and its

separate-segregated-fund provision.

A. The district court erred by positing the existence of a

sharp distinction between issue advocacy and electioneering

in the immediate runup to an election. This Court has repeat-

edly recognized that no such clear divide exists, and that dis-

cussion of issues of public importance is often intertwined

with advocacy of electoral outcomes, especially as the election

approaches. The fact that appellee’s advertisements took the

form of appeals to listeners and viewers to contact their

elected representatives (and to visit a website attacking a

federal candidate) provides no basis for sustaining appellee's

as-applied challenge. To the contrary, advertisements taking

that form were the principal abuse at which BCRA’s “elee-

tioneering communications” provisions were directed.

B. In holding BCRA § 2058 unconstitutional as applied to

appellee's advertisements, the district court relied in part on

its perception that the advertisements did not “necessarily”

have an electoral purpose or effect. This Court has already

“19

held, however, that BCRA § 203 is constitutional on its face,

and it was appellee's responsibility to demonstrate that the

generalization on which that provision is based does not hold

true here. That allocation of burdens is consistent with this

Court’s prior decisions adjudicating as-applied challenges to

facially valid provisions of the campaign-finance laws. Placing

the burden of proof on appellee is especially appropriate in

the present context because BCRA § 203 leaves ample alter-

natives open to corporate advertisers who do not in fact seek

to influence federal elections.

C. The district court erred in purporting to limit its in-

quiry to the “four corners” of the 2004 advertisements and in

refusing to consider important extrinsic evidence that rein-

forced the inference of electioneering intent. The court stated

that consideration of such evidence would render the constitu-

tional inquiry unworkable and would deprive regulated par-

ties of clear guidance concerning the applicable law. As

BCRA’s definition of “electioneering communication” itself

demonstrates, however, the district court’s analysis is flawed

because i. assumes a false dichotomy between an exclusive

focus on an advertisement’s text and an entirely unstructured

examination of all potentially relevant circumstances. The

court’s stated objectives of improving administrability and

providing clear guidance to advertisers are understandable,

but thev are appropriately served by adhering as closely as

possible to the bright-line rule drawn by Congress and by

minimizing the circumstances in which as-applied challenges

require the courts to depart from that rule.

The district court’s refusal to consider certain communica-

tions critical of Senator Feingold that were posted on appel-

lee’s “BeFair.org” website was especially misguided, since the

broadcast advertisements at issue here explicitly exhorted

listeners and viewers to visit that website. Even if it were

appropriate to limit the as-applied inquiry to textual indicia,

20

a corporation surely cannot claim a constitutional right to

engage in “issue” advocacy when its advertisements expressly

reference a website that presents overt attacks on a candidate

who is named in the advertisements and is facing reelection

in the same window of time that the advertisements run.

BCRA’s definition of “electioneering communication,”

which is restricted to broadcast advertisements aired within

the 30- and 60-day periods preceding federal primary and

general elections, reflects Congress’s understanding that the

timing of an advertisement that mentions a federal candidate

is important evidence of electoral purpose and effect. The

Court in McConnell recognized the accuracy of that general-

ization. The timing of appellee’s broadeast advertisements

strongly reinforced the inference that those advertisements

were intended to influence the Wisconsin Senate election and

would likely have that effect. Appellee commenced its adver-

tising campaign at a time when Congress was out of session,

and it abandoned its efforts after the election occurred, even

though public controversy over the “issue” on which appellee

claimed to be advocating—filibustering of judicial nomi-

nees—reached its height during the spring of 2005.

The district court also erred in refusing to consider evi-

dence of other, contemporaneous communications in which

appellee opposed Senator Feingold’s reelection and specifi-

cally criticized his record on the issue of judicial filibusters.

Although those communications were not themselves subject

to BCRA’s “electioneering communications” provisions, the’

reinforced the inference that the broadcast advertisements

had an electioneering purpose. Adoption of the district

court’s view that such communications are irrelevant to the

constitutional inquiry would create an artificial analysis in

which directly relevant evidence is disregarded, not to men-

tion substantial opportunities for circumvention of BCRA’s

financing restrictions on corporate electioneering.

21

ARGUMENT

I. APPELLEE’S AS-APPLIED CONSTITUTIONAL CHAL-

LENGE WITH RESPECT TO ITS 2004 ADVERTISE-

MENTS IS MOOT

A. “The Constitution’s case-or-controversy limitation on

federal judicial authority, Art. 11], $2, underpins * * * [this

Court’s] mootness jurisprudence.” Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).

“Article III denies federal courts the power ‘to decide ques-

tions that cannot affect the rights of litigants in the ease be-

fore them.’” Lewis v. Continental Bank Corp., 494 U.S. 472,

477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971)). “This case-or-controversy requirement subsists

through ali stages of federal judicial proceedings, trial and

appellate. To sustain [this Court’s] jurisdiction * * * itis

not enough that a dispute was very much alive when suit was

filed.” Jd. at 477-478.

Even after the 2004 Wisconsin Senate election, when ap-

pellee could lawfully have spent its treasury funds to air the

three advertisements at issue here, appellee declined to do so.

Appellee does not assert any continuing interest in running

those advertisements, nor does it identify any reason to be-

lieve that a significant dispute over Senate filibusters of judi-

cial nominees will oceur in the foreseeable future. And be-

cause appellee chose not to run its advertisements during the

electioneering communications periods preceding the 2004

Wisconsin Senate election, it cannot be subject to any future

Commission enforcement action whose validity might turn on

whether BCRA’s financing restrictions are constitutional as

applied to those advertisements. Because no live controversy

exists with respect to the three advertisements appellee pro-

posed to broadeast during 2004, appellee’s claims with respect

to those advertisements are moot and no longer suitable for

22

judicial resolution. Compare Christian Civic League of

Maine, Inc. v. FEC, No. 06-ev-0614 (D.D.C. Sept. 27, 2006),

juris. statement pending, No. 06-589 (filed Oct. 26, 2006).°

B. This Court has recognized an exception to mootness

principles for situations that are “capable of repetition, yet

evading review.” See Southern Pac. Terminal Co. v. ICC,

* This Court has statutory jurisdiction over the instant appeals. The three-

judge district court granted appellee’s motion for summary judgment with

respect to the three specific advertisements that appellee had proposed to run

in 2004, see J.S. App. 16a-29a, while holding that appellee’s claim for relief with

respect tounspecified “materially similar grass-roots lobbying ads” was unripe

because it was “too speculative and thus not sufficiently concrete to state a

cognizable claim under Article IIT” of the Constitution, id. at 164. The district

court has not yet resolved appellee’s as-applied challenge with respect to a new

advertisement that appellee planned to run within the 60-day period before the

2006 general election. See note 4, supra. The court has clarified, however, that

its December 21 order was a “final appealable order as to those issues decided

in the [accompanying] opinion,” and that the court found “no just reason to

delay an appeal.” J.S. App. 5la.

BCRA § 403(a)(3) states that a “final decision” of a three-judge district court

in a suit challenging the constitutionality of any BCRA provision “shall be

reviewable only by appeal directly to” this Court. 116 Stat. 114 (2 U.S.C. 487h

note (Supp. iV 2004)). Because BCRA does not define the term “final decision,”

the term should be given the same meaning that it has in 28 U.S.C. 1291, which

defines the jurisdiction of the courts of appeals. Although compliance with the

“final decision” requirement of Section 1291 usually requires entry of an order

that terminates the entire case, the district court in a suit involving multiple

claims or multiple parties “may direct the entry of a final judgment as to one

or more but fewer than all of the claims or parties only upon an express

determination that there is no just reason for delay and upon an express

direction for entry of judgment.” Fed. R. Civ. P.54(b); see, e.g., Curtiss-Wright

Corp. v. General Elec. Co., 446 US. 1, 7-8 (1980); Sears, Roebuck & Co. v.

Meckey, 351 U.S. 427, 438 (1956) (explaining that Rule 54(b) “scrupulously

recognizes the statutory requirement of a ‘final decision’ under § 1291” and

“administers that requirement in a practical manner in multiple claims

actions”); id. at 432-438. Because the district court certified its summary-

judgment ruling as final in accordance with Rule 51(b), this Court is vested with

exclusive appellate jurisdiction over the instant appeals.

23

219 U.S. 498, 515 (1911). “(T]he capable-of-repetition doctrine

applies only in exceptional situations,” City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983), “where the following two cir-

cumstances [are] simultaneously present: (1) the challenged

action [is] in its duration too short to be fully litigated prior to

cessation or expiration, and (2) there [is] a reasonable expec-

tation that the same complaining party [will] be subject to the

same action again,” Spencer v. Kemna, 523 U.S. 1, 17 (1998)

(citations and internal quotation marks omitted) (quoting

Lewis, 494 U.S. at 481). For an alleged wrong to be consid-

ered “capable of repetition,” “there must be a ‘reasonable ex-

pectation’ or a ‘demonstrated probability’ that the same con-

troversy will recur involving the same complaining party.”

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (quot-

ing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Accord,

e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978).

As the district court recognized, see J.S. App. 14a-15a, the

mootness inquiry cannot be conducted wholly in isolation from

a court’s understanding of the legal regime that would govern

its disposition of the lawsuit on the merits. In order to dem-

onstrate a probability that it will again become involved in the

“same controversy,” Murphy, 455 U.S. at 482, a plaintiff need

not establish that the precise facts of the case before the court

are likely to be replicated, but it must demonstrate that its

future plans will generate essentially the same controversy.

In the present context, appellee must show that (1) it is likely

to run future advertisements during BCRA pre-election peri-

ods, (2) those advertisements will fall within the BCRA defini-

tion of “electioneering communication,” and (3) those adver-

tisements will share the characteristics that the district court

deemed legally relevant to the disposition of appellee’s as-

applied challenge. Cf. Lewis, 494 U.S. at 4&1.

The district court found that appellee's generalized state-

ment of intent to finance “genuine issue advertisements dur-

24

ing future BCRA blackout periods” was “enough to create a

‘reasonable expectation’ that [appellee] ‘will be subject to the

same action again.” J.S. App. 15a. But an intent to run ad-

vertisements that involved express advocacy, or advertise-

ments that even appellee conceded would amount to its func-

tional equivalent, would not generate the “same controversy”

as this case. And, as particularly relevant in light of the dis-

trict court’s merits ruling, the district court did not find, and

appellee has identified no basis for concluding, that appellee

will again seek to finance pre-election advertisements sharing

the five characteristics, see id. at 22a, that the district court

found dispositive in sustaining appellee’s as-applied challenge. ©

Absent such a finding, appellee cannot show that it will likely

be a party to the “same controversy” in the future, and the

instant suit is not “capable of repetition” within the meaning

of this Court’s precedents. Cf. McConnell v. FEC, 540 U.S.

93, 225-226 ¢2003).°

C. The district court also cited a number of cases in which

various “election-related challenges” were held to be “capable

of repetition, yet evading review.” J.S. App. 12a. The court’s

reliance on those decisions was misplaced. When a plaintiff

demonstrates an intent to participate in electoral processes on

an ongoing basis, a court may have reasonable grounds for

6

Even if a substantially similar controversy were to recur in the future,

appellee's as-applied challenge would not necessarily evade review. Even the

massive litigation in McConnel/ took less than 21 months from the time

complaints were filed antil a final decision by this Court. There is no reason to

assume that the time betwe © ¢he > 99 ofa far simpler suit like this one and

the occurrence of an elect » always so short as to evade review.”

Spencer, 523 U.S. at 18. Pi ctpios ov @apeness would presumably allow a suit

to be brought well in advance of the BCRA pre-election time periods, and even

if such pre-enforcement, as-applied challenges cannot be fully litigated, the

same issues can be fully litigated in the more traditional as-applied context,

rez., enforcement actions. There is consequently no structural impediment in

this setting to full judicial review of the relevant issues.

25

concluding that any injury the plaintiff suffers during one

election will be repeated during later, electoral cycles. The

gravamen of appellee's as-applied challenge, by contrast, is

that the temporal overlap between its lobbying plans and the

2004 Wisconsin Senate campaign was simply fortuitous, and

that its purported issue advocacy has been unconstitutionally

restricted even though it /acks the intent to influence federal

elections. Appellee’s claim that it will again be involved in the

“same controversy” thus rests not on a continuing interest in

electoral participation, but on a prediction that similar coinci-

dences will arise in the future. In light of appellee’s disavowal

of any intent to engage in electoral advocacy, there is no

sound reason to conclude on the record before this Court that

appellee will again wish to finance, during the relatively brief

pre-election periods covered by BCRA § 203, advertisements

having the particular characteristics that the district court

found legally dispositive.

Because appellee’s claims are moot, this Court should

order that the district court’s judgment and decision on the

claims at issue be vacated and appellee’s suit dismissed. See

United States v. Munsingwear, Ine., 340 U.S. 36, 39 (1950).

Il. BCRA § 203 IS CONSTITUTIONAL AS APPLIED TO THE

THREE ADVERTISEMENTS AT ISSUE IN THIS CASE

In addressing appellee’s as-applied challenge in this case,

the district court stated that it would

limit its consideration to language within the four corners

of the anti-filibuster ads that, ata minimum: (1) describes

a legislative issue that is either currently the subject of

legislative scrutiny or-likely to be the subject of legislative

scrutiny in the near future; (2) refers to the prior voting

record or current position of the named candidate on the

issue described; (3) exhorts the listener to do anything

other than contact the candidate about the described is-

, 26

sue; (4) promotes, attacks, supports, or opposes the named

candidate; and (5) refers to the upcoming election, candi-

dacy, and/or political party of the candidate.

J.S. App. 22a. Although the district court did not specify pre-

cisely how those factors should be balanced, the court evi-

dently concluded that, at least if each of the five enumerated

considerations suggests a lack of electioneering intent—i.c.,

if a particular advertisement possesses characteristic (1) and

does not possess characteristics (2)-(5)—then BCRA § 2038's

financing restrictions are unconstitutional as applied to that

advertisement. See id. at 23a-24a.

The district court construed this Court’s remand order in

WRTL I as a “tacit acknowledgment that, notwithstanding

the virtues of a bright-line test, there may nonetheless be

some ads that are unconstitutionally captured by BCRA sec-

tion 203.” J.S. App. 28a. The court cited (ibid.) this Court’s

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

U.S. 238 (1986) (MCF L), which held FECA’s ban on corporate

electoral spending unconstitutional as applied to a defined

class of corporate entities. See p. 4, supra. The decision in

MCFL is indeed instructive with respect to the proper mode

of analyzing as-applied challenges to BCRA § 203, but it does

not support the approach taken by the district court.

The Court in MCFL explained that the rationale for pro-

hibiting corporate independent expenditures in support of

federal candidates “does not extend uniformly to all corpora-

tions,” and that “[s]ome corporations have features more akin

to voluntary political associations than business firms, and

therefore should not have to bear burdens on independent

spending solely because of their incorporated status.” 47%

US. at 263. The Court stated that “MCFL has three features

essential to [the Court's] holding that it may not constitution-

ally be bound by § 441b’s restriction on independent spend-

ing.” Jd. at 263-264; see id. at 264 (describing three essential

27

characteristics); p. 4, supra. Based on the presence of those

factors, the court specifically rejected the hypothesis that

“MCFL merely poses less of a threat of the danger that has

prompted regulation,” in which case the Court noted that it

would “not second-guess a decision to sweep within a broad

prohibition activities that differ in degree, but-not in kind.”

479 U.S. at 263. The Court concluded instead that MCFL

“does not pose such a threat at all.” /bid.; see id. at 264 (stat-

ing that the identified characteristics “ensure[d]” that

MCF L’s electoral spending would not implicate the concerns

at which the general ban is directed). The constitutional ex-

emption recognized in MCFL is thus easily administrable

(since it focuses on the nature of the corporation rather than

on an examination of the text or content of particular adver-

tisements, and corporations having the essential characteris-

tics can readily be identified), and it applies only to corpora-

tions that asswredly do not pose the danger at which the gen-

eral statutory ban is directed at all, rather than trying to dis-

cern differences of degree. y

In order to succeed in its as-applied constitutional chal-

lenge, appellee should similarly. be required _to articulate a

legal test that satisfies the same criteria—or, to put it another

way, a test that avoids the pitfalls of both undue complexity

and susceptibility to evasion. The district court’s five-factor

test does not satisfy those criteria. The district court cor-

rectly recognized that an approach that required examination

of all facts that are potentially relevant to the ascertainment

of an advertisement’s purpose or effect could not feasibly be

administered, especially under the time constraints of expe-

dited pre-election litigation. Moreover, to the extent that

such an approach involved close parsing of the nuances of an

advertisement’s text, it would disserve First Amendment val-

ues. However, in attempting to minimize those problems, the

district court confined its inquiry to an artificially truncated

28

set of facts, articulated a test that identifies only those adver-

tisements that are most obviously election-related, and effec-

tively held BCRA § 203 unconstitutional as applied to all other

“electioneering communications.” Acceptance of that ap-

proach would be inconsistent with this Court’s holding in

McConnell that BCRA § 208 is fecially constitutional, would

facilitate easy circumvention of BCRA § 203, and would rein-

troduce the difficulties of enforcement that formerly existed

under the “express advocacy” test.

The district court’s analysis reflects at least three critical

errors. First, the court posited the existence of an unrealisti-

cally sharp distinction between issue advocacy and election-

eering, notwithstanding the recognition of both Congress and

this Court that the two substantially overlap. Second, the

court improperly placed upon the government the burden of

establishing that the three advertisements implicate the con-

cerns that BCRA § 203 is intended to address, rather than

requiring appellee to demonstrate its constitutional entitle-

ment to an exemption-from a facially valid law. Third, the

court erroneously refused to consider highly probative con-

textual evidence, which substantially reinforced the inference

that appellee’s advertisements were intended to influence the

2004 Wisconsin Senate election and were likely to have that

effect. As a consequence of those errors, the district court

held BCRA § 203 unconstitutional as applied to advertise-

ments that, when fairly considered, are in the heartland of the

advertisements that Congress intended to and did reach in

BCRA § 203, and indeed are the functional equivalent of the

express advocacy that the Court has long held can be regu-

lated by FECA and its separate-segregated-fund provision.‘

* In McConnell, this Court stated that, “to the extent that the issue ads

broadeast during the 30- and 60-day periods preceding federal primary and

general elections are the functional equivalent of express advocacy,” the

governmental interests that supported financing restrictions on express

29

A. Congress And This Court Have Recognized | nat Adver-

tisements Urging Citizens To Contact Their Elected

Representatives Are Often Intended To Influence Fed-

eral Elections And Will Frequently Have That Effect

The district court’s analysis assumes the existence of a

clear divide between electoral advocacy and “genuine issue-

advertisements.” See J.S. App. l6a-17a, 26a-28a. Confining

its inquiry to the four corners of appellee’s 2004 advertise-

ments, the district court observed that “the language in | appel-

lee’s| advertisements does not mention an election, a candi-

dacy, or a political party, nor do they comment on a candi-

date’s character, actions, or fitness for office.” /d. at 23a. The

court concluded that, “on their face, [appellee’s] three 2004

anti-filibuster advertisements were not intended to influence

the voters’ decisions.” /d. at 24a (internal quotation marks

omitted).

That analysis cannot be squared with this Court’s prece-

dents and essentially ignores the fundamental dynamic that

Congress recognized in BCRA and the Court acknowledged

advocacy apply equally to “electioneering communications.” 540 U.S. at 206;

see 1d. at 205-206. In the instant case, the district court framed the relevant

question as “whether | appellee’s| 2004 anti-filibuster ads are expreSs advocacy

or its functional equivalent,” J.S. App. 22a, and concluded that they are not, see

id. at 22a 25a. In the context of the McConnell opinion as a whole, however,

the Court appears to have used the phrase “functional equivalent” to encom-

pass all advertisements naming a federal candidate that are intended to

influence elections or are likely to have that effect. To the extent the district

court construed that phrase as limited to a subset of advertisements that are

most obviously clecuion-related, the court erred in concluding that BCRA § 208

may constitutionally be applied only to such advertisements. More broadly,

while functional equivalence may have been a useful concept in upholding the

bright-line limitations of BCRA § 203, the Court in no way suggested that

functional equivalence or its absence was itself a workable or administrable

standard to iden ify advertisements that would give rise to a viable as-applied

challenge.

30

in McConnell. More than 30 years ago, the Court observed

that “the distinction between discussion of issues and candi-

dates and advocacy of election or defeat of candidates may

often dissolve in practical application. Candidates, especially

incumbents, are intimately tied to public issues involving leg-

islative proposals and governmental actions.” Buckley v.

Valeo, 424 U.S. 1, 42 (1976) (per curiam). In McConnell, the

Court quoted, as an accurate (and colorful) description of this

reality, the statement of a National Rifle Association (NRA)

official that “[w)Jhat separates issue advocacy and political

advocacy is a line in the sand drawn on a windy day.” 540 U.S.

at 126 n.16; see id. at 327 (Kennedy, J., dissenting).

This Court has also long recognized the infeasibility of

determining, on an ad hoc, case-by-case basis, whether partic-

ular advertisements discussing issues of public concern are

actually intended to influence federal elections. The Court

initially sought to obviate the need for such difficult inquiries

by construing federal restrictions on electioneering to apply

only to communications that expressly advocated an electoral

result. See Buckley, 424 U.S. at 43, 80; MCFL, 479 U.S. at

248-249. When the inadequacy of that test became apparent

to all, Congress crafted the BCRA definition of “electioneer-

ing communication” and prohibited the use of corporate trea-

sury funds to finance “electioneering communication|s]” as so

defined. See McConnell, 540 U.S. at 126-129, 193-194; pp. 5-6,

supra. That definition represents Congress’s considered ef-

fort, based on the substantial experience of its Members as

participants in the political process and on evidence obtained

through numerous hearings on the matter, to identify through

clear, objective, and easily applied criteria—criteria that do

not require courts to make judgment calls based on fine pars-

ing of the nuances of an advertisement’s text—a class of com-

munications that are generally intended to influence electoral

outcomes and are likely to have that effect.

31

BCRA’s definition of “electioneering communication” en-

compasses advertisements that urge viewers or listeners to

contact an identified Member of Congress concerning an issue

of public importance, provided that the advertisement is tar-

geted to the relevant electorate and is aired during the 30- or

60-day period before a primary or general election in which

that legislator is a candidate. That clear and administrable

test was deemed necessary to target the principal means by

which the pre-BCRA restrictions on corporate electoral advo-

cacy were evaded. The record in McConnell made that clear.

See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 304 (D.D.C.

2003) (Henderson, J.); id. at 532-536 (Kollar-Kotelly, J.); id.

at 875-879 (Leon, J.). In discussing the sorts of pre-BCRA

advertisements that were intended to influence federal elec-

tions but avoided words of express advocacy, the Court in

McConnell observed that “|l|ittle difference existed * * *

between an ad that urged viewers to ‘vote against Jane Doe’

and one that condemned Jane Doe’s record on a particular

issue before exhorting viewers to ‘call Jane Doe and tell her

what you think.’” 540 U.S. at 126-127. The Court thus

treated an appeal to citizens to contact their elected represen-

tative, when targeted to the relevant electorate and issued

during the 30- and 60-day periods preceding federal primary

and general elections, as a paradigmatic example of the ad-

vertisements that BCRA’s “electioneering communication”

provisions were intended to address.

Expert testimony introduced by the FEC in this case is to

the same effect. The declaration of veteran political consul-

tant Douglas L. Bailey stated:

A purported issue ad that airs in the time immediately

preceding an election that implores a voter to “contact” or

“tell” a candidate about one’s opposition to a certain policy

will unavoidably affect that candidate's election. During

the election time period, the implicit message to the voter

32

is that one way to change the policy would be to remove

that candidate from office on election day. Conversely, an

issue ad which airs during the pre-election period and

implores a voter to contact or tell a candidate about one’s

support for a particular policy, implicitly suggests that

one way to continue that policy is to vote for the

reference|d] candidate.

J.A. 57." The declarant also explained that “[a] true isswe ad

campaign is most effective when it is aired outside of the time

period immediately before an election, when its mes-

sage—even if the message refers to an officeholder—will not

be received as another variety of candidate campaign ad.”

J.A. 56 (emphasis added).

In McConnell, this Court found that, of the pre-BCRA

“issue ads that clearly identified a candidate and were aired

during (the 30- and 60-day] preelection timespans,” the “vast

majority of ads clearly had |an electioneering] purpose.” 540

U.S. at 206. The fact that appellee’s advertisements took the

form of appeals to citizens to contact their elected representa-

tives on an issue of public importance provides no basis for

regarding those advertisements as exceptions to the general

rule. To the contrary, advertisements taking that form were

the principal focus of Congress’s concern when it crafted

BCRA’s “electioneering communication” provisions.

B. Appellee Bears The Burden Of Establishing Its Entitle-

ment To A Constitutional Exemption From A Facially

Valid Law \

Appellee’s 2004 advertisements differed in one respect

from such pre-BCRA advertisements as the “Jane Doe” hypo-

* In McConnell, Mr. Bailey's testimony was cited with apparent approval by

this Court, see 540 U.S. at 193 n.77, and by each of the three members of the

district court, see 251 F. Supp. 2d at 305 ( Henderson, J.); id. at 528-529 ( Kollar-

Kotelly, J.): ad. at 874, S80 (Leon, J.)

33

thetical described in McConnell. That hypothetical advertise-

ment “condemned Jane Doe’s record on a particular issue

before exhorting viewers to ‘call Jane Doe and tell her what

you think.’” 540 U.S. at 127. Appellee’s advertisements, by

contrast, contained no direct criticism of Senator Feingold’s

record on the issue of judicial filibusters (although, as ex-

plained below, they specifically exhorted listeners to visit a

website that did criticize Senator Feingold’s record on the

filibusters). See J.S. App. 18a.

The district court did not assert, however, let alone iden-

tify any evidentiary basis for concluding, that the absence of

any direct references to Senator Feingold’s voting record in

the 2004 advertisements dispelled any possible inference of

electioneering purpose or effect. To the cont» ary, the court

acknowledged that “it may be theoretically pussible to craft”

such an advertisement “so subtly that it subconsciously en-

courages (or discourages) a potential voter to support a politi-

cal candidate.” J.S. App. 27a. (Qne easy way to craft such

advertisements without the need for subtlety is to urge listen-

ers or viewers to visit a website that directly attacks the can-

didate.) The court found, however, that “there is no eviden-

tiary or common sense basis to believe that such facially neu-

tral ads are necessarily intended to affect an election, or will

necessarily be viewed as such.” /d. at 27a-28a. The court

concluded on that basis that BCRA § 203 is unconstitutional

as applied to those advertisements.

Contrary to the district court’s suggestion, it was not the

government's burden to prove, in this as-applied challenge,

that the generalization on which BCRA’s “electioneering com-

munication” provisions are based “necessarily” holds true in

this case. The Court in McConnell upheld BCRA § 203

against a facial constitutional challenge, see 540 U.S. at 203-

209, and it recognized that the “vast majority” of pre-BCRA

advertisements “that clearly identified a candidate and were

34

aired during [the 30- and 60-day] preelection timespans” had

an electioneering purpose, id. at 206. The Court also recog-

nized that the ease with which corporations could avoid

BCRA’s limitations prospectively, by addressing the issue of

concern without explicitly linking the issue to a candidate,

meant that going forward even fewer instances in which the

corporation insisted on linking a candidate to an issue would

not involve an electioneering purpose. See zbid. In claiming

a constitutional entitlement to an exemption from BCRA

§ 203’s financing restrictions, appellee assumed the burden of

demonstrating (at least) that the generalization reflected in

BCRA’s definition of “electioneering communication” does not

hold true here.

That allocation of burdens is consistent not only with the

customary presumption that Acts of Congress are constitu-

tional (which applies with particular force to statutes already

upheld on their face by this Court), but also with prior deci-

sions of this Court that have sustained as-applied challenges

to other provisions of the campaign-finance laws. In Buckley,

for example, the Court held that the FECA’s disclosure provi-

sions are constitutional on their face and as applied to minor

parties generally. See 424 U.S. at 64-74. The Court noted,

however, that a particular minor party could establish a meri-

torious as-applied constitutional challenge by demonstrating

“a reasonable probability that the compelled disclosure of a

party’s contributors’ names will subject them to threats, ha-

rassment, or reprisals.” /d. at 74. When the Court later ad-

dressed such an as-applied challenge in Brown v. Socialist

Workers ‘74 Campaign Comm. (Ohio), 459 U.S. 87 (1982), it

followed Buckley and based its decision on the party’s “proof

of specific incidents of private and government hostility to-

ward the [minor party] and its members.” /d. at 99.

The Court in MCFL employed a similar mode of analysis.

The defendant corporation in that case argued that the

35

FECA’s prohibition on the use of corporate treasury funds to

finance express electoral advocacy, 2 U.S.C. 441b, was uncon-

stitutional as applied to the defendant’s own campaign-related

expenditures. Although the Court ruled in the corporation’s

favor, the Court did not suggest that the government bore the

burden of proving that MCFL’s campaign spending would

actually cause the problems at which the statutory ban is di-

rected. To the contrary, the Court stated that it would “not

second-guess a decision to sweep within a broad prohibition

activities that differ in degree, but not in kind.” 479 U.S. at

263. The Court held the statute unconstitutional as applied

only after concluding that the corporation’s expenditures

would not cause those problems—.e., that “the concerns un-

derlying the regulation of corporate political activity are sim-

ply absent with regard to MCFL.” /bid. The Court explained

that “[ijt is not the case * * * that MCFL merely poses less

of a threat of the danger that has prompted regulation.

Rather, it does not pose such a threat at all.” Jbid.; see id. at

264 (identifying specific attributes of MCF L that “ensure[d]”

that the organization’s election-related spending would not

implicate the policy rationales underlying the FECA ban on

corporate campaign expenditures); FEC v. National Right to

Work Comm., 459 U.S. 197, 210 (1982) ; pp. 26-27, supra.

Placing the burden of proof on the party seeking a consti-

tutional exemption from a tacially valid law is especially ap-

propriate in the present context because BCRA § 203 imposes

relatively minor burdens on corporate speakers who do not

seek to influence federal elections. As the Court in

McConnell observed, “corporations and unions may finance

genuine issue ads during | pre-election] timeframes by simply

avoiding any specific reference to federal candidates, or in

doubtful cases by paying for the ad from ‘a segregated fund.”

540 U.S. at 206. Thus, even if a particular corporation actu-

ally lacks the intent to influence federal elections, it will suf-

36

fer no substantial impairment of its ability to engage in issue

advocacy—it will simply be required to use a separate segre-

gated fund to pay for the advertisements.” Alternatively, ap-

pellee could have financed the advertisements with general

treasury funds if it had omitted any reference to Senator

Feingold. And of course other media remain unaffected by

BCRA § 203. The district court erred in refusing to take

those alternatives into account in conducting its constitutional

analysis. See J.S. App. 29a n.24.

C. The District Court Erroneously Refused To Consider

Highly Relevant Evidence Confirming That Appellee’s

Advertisements Were Intended To Affect The Wisconsin

Senate Election And Could Be Expected To Have That

Effect

As Judge Roberts explained in dissent, see J.S. App. 41a-

45a, a substantial body of evidence outside the text of the 2004

advertisements—-including materials directly referenced in

those advertisements—suggests that the advertisements were

intended at least in part to affect the Senate election and

could be expected to have that effect. Indeed, when it denied

appellee’s request for a preliminary injunction, the district

court had previously relied on that evidence in concluding that

appellee’s 2004 advertisements “may fit the very type of activ-

ity McConnell found Congress had a compelling interest in

regulating.” Jd. at 62a; see id. at 38a-39a & n.7 (Roberts, J.,

" Appellee could also have chosen to structure itself as an MCF L organiza-

tion, see p. 4, supra, which would have allowed it to finance electioneering

communications with general treasury funds, see McConnell, 340 US. at

209-211. Appellee chose instead (1) to aecept substantial contributions from

business corporations, both in general and to finance the specific advertise

ments at issue here, see pp. &, 11, swpra; and (2) to fund the advertisements at

issue through general treasury funds rather than through a PAC. Asa result,

it placed itself squarely within the heartland of the concerns that BCRA § 205

is intended to address.

37

dissenting). In granting appellee’s later motion for summary

judgment, however, the court stated that it would “limit its

consideration to language within the four corners of the anti-

filibuster ads.” Jd. at 22a; see id. at 19a-22a."" The court re-

lied in part on the practical concern that “as-applied chal-

lenges, to be effective, must be conducted during the expe-

dited circumstances of the closing days of a campaign when

litigating contextual framework issues and expert testimony

analysis is simply not workable.” /d. at 19a. The court also

stated that “delving into a speaker’s subjective intent is both

dangerous and undesirable when First Amendment freedoms

are at stake.” /d. at 20a.

The district court’s concern about the administrability of

an “as-applied” standard that was not limited to the text of

the advertisements is understandable in light of Congress’s

effort to establish a bright-line rule to avoid inquiries into

10

Although the district court stated that it would limit its inquiry to the “four

corners” of the advertisements, it did not actually do so. One of the factors that

the court specifically identified as relevant to its constitutional analysis was

whether appellee's advertisements “describe| d| a legislative issue that is either

currently the subject of legislative scrutiny or likely to be the subject of such

serutiny in the near future.” J.S. App. 22a. Determining whether Senate

filibusters of judicial nominees were the subject of current or imminent

“legislative scrutiny” at the time appellee sought to rurits advertisements

necessarily required examination of facts outside the “four corners” of the

advertisements. See pp. 45-47, ‘fra. In addition, as Judge Roberts explained

in dissent, the structure of the advertisements strongly suggests that “Senator

Feingold might be one of the ‘group of Senators . . . causing gridlock and

backing up some of our courts to the state of emergency.” IS. App. 4la.

Unlike a discrete legislative issue that comes up tor a vote once, as to which an

advertisement could be carefully directed at a legislator with or without a

stated position, a complaint about a recurring procedural device that has

already caused “gridlock” is logically directed only at the legislators who have

already supported or employed the device. Accordingly, “even a textual

approach could suggest that * * * [the advertisements] might have implicitly

discouraged Senator Feingold’s election.” hed.

38

electoral intent on an advertisement-by-advertisement basis.

But to the extent that as-applied challenges to Congress's

bright-line rule are permissible, the proper means of ensuring

administrability is not by excluding potentially relevant evi-

dence of the speaker’s electoral intent by artificially limiting

the inquiry to the “four corners” of the advertisement, much

less barring consideration of materials (such as websites) that

are expressly incorporated by reference in the advertisement.

As Congress appreciated, there are great virtues in establish-

ing a bright-line rule in this area, but the answer to avoiding

uncertainty in the as-applied context cannot be to artificially

narrow the inquiry to the “four corners” of the advertisement.

That approach effectively reintroduces an easily circumvented

test that foewses on the presence or absence of certain magic

words of the sort that Congress found inadequate and re-

placed with a broader, but still bright-line rule that this Court

has already upheld on its face.

The errors of the district court are multiple, but not dis-

crete. The court’s refusal to consider highly probative evi-

dence outside the “four corners” of the 2004 advertisements,

coupled with its inquiry into whether those advertisements

were “necessarily” intended to influence an election (see pp.

32-36, supra), essentially framed the relevant question as

whether the advertisements were on their face incapable of

being valid issue advertisements. That approach seems func-

tionally indistinguishable from the “express advocacy” stan-

dard, which was designed to identify “spending that is unam-

biguously related to the campaign of a particular federal can-

didate.” Buckley, 424 U.S. at 80. BCRA’s “electioneering

communications” provisions, however, reflect Congress’s re-

sponse to the demonstrated inadequacy of the “express advo-

cacy” test. See McConnell, 540 U.S. at 126-129, 193-194. In

sustaining those provisions against a facial challenge, this

Court in McConnell squarely held that the “express advo-

39

cacy” standard is not constitutionally mandated. See id. at

190-194. Adoption of the district court’s approach to as-ap-

plied challenges would be tantamount to overruling that hold-

ing."

Taken in combination, moreover, the district court’s “four

corners” requirement and its focus on whether particular

advertisements “necessarily” reflect electioneering intent

suggest that BCRA § 203 cannot constitutionally be applied

to an advertisement whose text alone suggests that it is likely

but not certainly the functional equivalent of express advo-

cacy, even if other evidence would make absolutely clear that

the advertisement was the functional equivalent of express

advocacy. Net only is that approach inconsistent with this

Court’s prece..ents, but the combined effect of the district

court’s errors would almost certainly render a significant

percentage of advertisements during the last days of an elec-

toral campaign immune from regulation under BCRA § 203.

That prospect cannot be squared with this Court’s holding in

McConneli that BCRA § 203 is not substantially overbroad.

For the reasons that follow, the district court’s rationales

for purporting to limit its inquiry to the “four corners” of the

2004 advertisements are unpersuasive. In particular, the

court erred in declining to consider the government's evi-

dence concerning (a) the content of the website expressly

referenced in the 2004 advertisements, (b) the timing of those

advertisements, and (c) appellee’s contemporaneous advocacy

concerning the Wisconsin Senate race. That evidence sub-

stantially reinforces the inference that the advertisements at

'' Indeed, rather than faithfully implementing this Court's holding in

McConvell, the district court’s approach essentially incorporates the view

taken in Justice Thomas's dissent that any power Congress may possess un this

area is limited to regulation of corporate speech that is “unambiguously

campaign related.” McConnell, 540 U.S. at 281, 283 (opinion of Thomas, J.)

‘quoting Buckley, 424 US. at SD).

40

issue in this case were intended to influence the election and

would likely have that effect.

1. The district court’s stated reasons for declining to

consider probative evidence outside the “four cor-

ners” of the 2004 advertisements are unpersuasive

a. In refusing to consider contextual evidence outside the

“four corners” of the 2004 advertisements, the district court

relied in part on concerns of practical administrability. The

court suggested that, if the inquiry in an as-applied challenge

extended beyond the text of the relevant advertisements, it

would necessarily entail the deposition of the organization's

officials and the submission of expert testimony. See J.S.

App. 19a. The court found that such an approach would be

“practically unacceptable because as-applied challenges, to be

effective, must be conducted during the expedited circum-

stances of the closing days of a campaign when litigating con-

textual framework issues and expert testimony analysis is

simply not workable.” /bid.

The district court’s practical concerns are unfounded,

since they presume a false dichotomy between an analysis

confined to an advertisement’s text and an unstructured in-

quiry involving all potentially relevant evidence of subjective

intent. The plaintiff in an as-applied challenge should indeed

be required to articulate an administrable standard for identi-

fying a class of advertisements that, while falling within

BCRA’s definition of “electioneering communications,” do not

pose the danger at which BCRA § 205 is directed. See p. 27,

supra. There is no basis, however, for the district court's

view that any consideration of facts outside the “four corners”

of the advertisement will necessarily render the inquiry un-

workable.

Indeed, BCRA’s definition of “electioneering communica-

tion” exposes the error in the district court's analysis. That

41

definition correlates strongly (though admittedly not per-

fectly) with actual intent to influence federal elections. See

McConnell, 540 U.S. at 206 (stating that the “vast majority”

of pre-BCRA advertisements falling within the definition had

an electioneering purpose). Applying the definition to a par-

ticular advertisement requires both a narrow and focused

consideration of the advertisement’s text (specifically,

whether it refers to a clearly identified candidate for federal

office), and equally cabined consideration of external factors

(whether it was aired during one of the specified pre-election

periods and was targeted to the relevant electorate). The

definition demonstrates that the consideration of relevant

atextual factors does not require an unstructured or open-

ended inquiry. A principal virtue of the statutory definition

is that it “raises none of the vagueness concerns that drove

[the Court’s] analysis in Buckley” and does not enmesh the

courts in subjective parsing of the nuances of an advertise-

ment’s text, but rather provides a bright-line rule whose

“components are both easily understood and objectively deter-

minable.” /d. at 194. Just as the BCRA definition provides a

clear bright-line rule even though it requires examination of

facts outside an advertisement’s text, the constitutional stan-

dard governing as-applied challenges need not be confined to

an advertisement’s “four corners” in order to be workable.

b. The district court also stated that a legal regime in

which “federal judges would be charged with conjuring the

subjective intent of the speaker to affect the election would fly

in the face of decades of First Amendment jurisprudence and

undoubtedly chill those exercising their free speech rights.”

J.S. App. 2la-22a. Appellee had no constitutional right, how-

ever, to use treasury funds to finance advertisements that

were intended to influence the 2004 Wisconsin Senate race.

By alleging that BCRA § 208 is unconstitutional as applied to

its 2004 advertisements, appellee necessarily placed at issue

42

the question whether those advertisements had an election-

eering purpose. Indeed, appellee’s principal submission was

that it lacked such a purpose even though its advertisements

fell within a statutory definition that the Court not only had

already upheld on its face, but also had already determined

did a good (and constitutionally adequate) job of identifying

advertisements with that purpose. The purported

infeasibility or impropriety of deciding whether appellee has

carried its burden on that point cannot plausibly be regarded

as a reason to sustain appellee’s as-applied challenge.”

c. As the district court recognized, potential speakers may

indeed be chilled if the legality of particular communications

or financing arrangements turns on an unstructured post hoc

inquiry into the speaker’s likely intent. J.S. App. 20a-21a; see

Buckley 424 U.S. at 42-43. The articulation of clear, objective

rules defining the circumstances under which the forbidden

intent will be inferred therefore furthers First Amendment

values. An inquiry limited to the “four corners” of an adver-

tisement, however, is not inherently more objective or precise

than an inquiry that includes consideration of facts external

to the advertisement’s text.

In any event, BCRA’s definition of “electioneering commu-

nication” itself eliminates the indeterminacy that concerned

the district court. Any uncertainty that appellee may face

results not from lack of clarity in the law that Congress en-

" The district court's analysis is especially misguided because the court also

declined to assess whether the 2004 advertisements would likely have had an

electoral effect, stating that “reliance on effect, without the requisite intent,

would be the equivalent of permitting listeners’ subjective impressions to

justify the regulation of protected speech.” J.S. App. 24a-25a. This Court in

McConnell, however, considered both the purpose and the effect of prior

advertisements falling within BCRA’s definition of “electioneering communica-

tion” in upholding BCRA § 208 against a facial constitutional challenge. See,

e4., AOU LS. at 126-128, 198, 206.

43

acted, but from appellee’s insistence that a less clearly de-

fined constitutional rule effectively supersedes the statutory

standard. The district court’s stated objectives of improving

administrability and providing clear guidance to corporate

advertisers would be furthered by adhering as strictly as pos-

sible to the bright-line definition drawn by Congress and up-

held on its face by this Court, and by reserving as-applied

challenges for circumstances that are demonstrably removed

from the core conduct at which BCRA’s “electioneering com-

munications” provisions are directed and could be defined

without reference to the text or content of the advertisement,

as with the MCFL exception. The district court, however,

erroneously treated those objectives as grounds for broadly

defining the range of circumstances under which as-applied

challenges will be sustained.

2. The contextual evidence that the district court de-

clined to consider confirms that the advertisements

at issue here were likely intended to influence the

Wisconsin Senate election and could be expected to

have that effect

a. The most extreme example of the district court’s un-

willingness to consider probative contextual evidence beyond

the “four corners” of the 2004 advertisements was its refusal

to consider the content of the website “BeFair,org,” which

appellee established in conjunction with its anti-filibuster

campaign, and which was explicitly referenced in the adver-

tisements. See J.S. App. 22a-23a n.18. Each of the advertise-

ments at issue here urged listeners and viewers to visit that

website, see id. at 67a, 69a, 7la, which featured “e-alerts”

excoriating Senator Feingold on the judicial-filibuster issue.

See id. at dla (Roberts, J., dissenting): J.A. 86-90. The dis-

trict court concluded that, because internet communications

are not themselves subject to regulation under BCRA’s “elec-

44

tioneering communications” provisions, the content of appel-

lee’s website was irrelevant to the disposition of its as-applied

challenge. FS. App. 22a-23a n.18.

That is a non sequitur. A court could not iiealie assess

the likely purpose and effect of a broadcast advertisement

urging viewers to “look at the billboard on Main and First

Streets” without examining the billboard’s message. The

same principle applies here. The content of a website that the

2004 advertisements urged listeners and viewers to visit is

manifestly relevant to an assessment of the advertisements’

intended purpose and effect, even though the website itself is

not subject to BCRA’s “electioneering communications” pro-

visions. The district court’s refusal to consider this evidence

is particularly striking because one of the five aspects of the

advertisements that the court specifically identified as rele-

vant to the constitutional analysis was whether the advertise-

ments “exhort[ed] the listener to do anything other than con-

tact the candidate about the described issue.” J.S. App. 22a.

Appellee’s advertisements did exhort their audience to do

something else. The advertisements urged listeners and

viewers not only to contact Senators Feingold and Kohl di-

rectly, but also to visit a website that criticized those Senators

for participating in prior judicial filibusters. Only by ignoring

that exhortation could the district court conclude that the

advertisements aid not “reference in any way the Senators’

past voting records, current positions, or previous public

statemei.ts on the judicial filibuster issue.” /d. at 24a.

Furthermore, the district court’s stated concerns about

the administrability of a test requiring the deposition of par-

ties (see J.S. App. 18a-19a) are not implicated by judicial con-

sideration of-an advertisement’s express reference to a

website (or related forum). To ascertain the import of the

reference, the court—like the listeners or viewers of the

advertisement—need only visit the website and review its

45

contents. Here, a visit to “BeFair.org” would have confirmed

that the advertisements were intended to influence a candi-

date election. .

As a core example of the sorts of abuses that BCRA’s

“electioneering communications” provisions were intended to

prevent, the Court in McConnell described a hypothetical

advertisement that “condemned Jane Doe’s record on a par-

ticular issue before exhorting viewers to ‘call Jane Doe and

tell her what you think.’” 540 U.S. at 127; see p. 31, supra. If

the advertisements at issue here had included the statement

that “Feingold and Kohl are putting politics into the court

system, creating gridlock, and costing taxpayers money,” J.A.

86, they would have been indistinguishable in principle from

the “Jane Doe” hypothetical. Although that statement did not

appear in the text of appellee’s broadcast advertisements, it

did appear in an e-alert posted on the “BeFair.org” website

that the advertisements specifically urged listeners and view-

ers to visit. Jbid. A corporation should not be permitted to

circumvent BCRA’s financing restrictions through the simple

device of incorporating by reference statements that could not

be made in the text of an advertisement financed with corpo-

rate treasury funds.

b. The timing of the advertisements also confirms that

they were aimed at influencing the election. Appellee began

to run its anti-filibuster broadcast advertisements in July

2004, “day- after the last of the judicial filibuster cloture

votes had occurred during that session and the Senate had

departed for a six-week recess.” J.S. App. 43a (Roberts, J.,

dissenting). Appellee “did not run any additional anti-filibus-

tering ads after the 2004 election in either 2004 or 2005 during

the height of the [filibuster] controversy.” \Jbid. Appellee’s

effort to finance the advertisements was thus limited to the

2001 campaign season, even though public controversy over

the filibustering of judicial nominees continued (and indeed

46

gained greater prominence) during the months following the

election. See pp. 11, 13, supra.

BCRA’s definition of the term “electioneering communica-

tion,” which is limited to advertisements broadcast during the

30- and 60-day periods before fed»*,.' primary and general

elections, reflects Congress’s judgment that the timing of

advertisements that mention a federal candidate is an impor-

tant indicator of the speaker’s intent. In discussing the use of

purported “issue” advertisements during the pre-BCRA pe-

riod, this Court in McConnell likewise recognized that “the

conclusion that such ads were specifically intended to affect

election results was confirmed by the fact that almost all of

them aired in the 60 days immediately preceding a federal

election.” 540 U.S. at 127. The district court nevertheless

refused to consider what inferences might be drawn from the

timing of appellee’s advertisements.

In order to rebut the inference of electioneering intent

that exists when an advertisement identifying a federal candi-

date is aired during the 30- or 60-day pre-election window, a

corporate advertiser should be required to demonstrate, at

the very least, that the timing of its advertisements logically

serves a non-electoral purpose. Appellee, however, com-

menced its advertising campaign at a time when Congress

was out of session, and it abandoned its efforts after the elec-

tion occurred; even though public controversy over the filibus-

tering of judicial nominees reached its height during the

spring of 2005. Those facts reinforce, rather than dispel, the

conclusion that appellee’s advertising campaign was intended

to coincide with the electoral schedule, and that the pre-elec-

tion timing was not simply fortuitous."*

* Veteran political consultant Douglas L. Bailey (see pp. 31-32 & note 8.

supra) explained:

|Appellee’s| advertising strategy ts inconsistent with an advocacy group

47

The district court’s refusal to consider the relevant “tim-

ing” evidence was especially misguided because the court

stated that it would consider whether the 2004 advertise-

ments “describe|]| a legislative issue that is either currently

the subject of legislative scrutiny or is likely to be the subject

of such serutiny in the near future.” J.S. App. 22a. The court

thus recognized that the presence or absence of a temporal

link between appellee’s advertisements and Senate consider-

ation of the judicial-filibuster issue was relevant to the dispo-

sition of appellee’s as-applied constitutional claim. In deter-

mining whether such a link existed, however, the court of-

fered only the conclusory statement that the advertisements

“describe an issue that had been, and was likely to be, an on-

going issue of legislative concern in the Senate.” /d. at 23a.

The court made no focused effort to determine whether appel-

lee’s advertisements were sensibly timed to achieve their pur-

ported objective of influencing legislative debates.

c. The district court also erroneously refused to consider

the fact that appellee had frequently and explicitly opposed

Senator Feingold’s 2004 reelection effort through other com-

that wished to engage in “grassroots lobbying.” | Appellee] did not begin

to air its advertisements until a few days after several judicial filibusters

had happened. Any competent consultant who truly wished to engage in

“grassroots lobbying” would have run issue ads in the time leading up to

the July filibusters, when the message would not have been obfuscated by

the abundance of electioneering ads. Nor would any competent campaign

consultant run ads after July 22, 2004, when the Senate left for summer

recess.

J.A. 61. Indeed, the employee who generally oversaw appellee's lobbying

activities acknowledged that running grassroots lobbying advertisements after

the relevant votes have occurred would be “a waste of time.” JA. 24; FEC

Exh. 4, at 112. The outside consultant hired for the advertising campaign at

issue in this case similarly agreed that such advertisements, to be effective,

should run shortly before the legislative vole that is sought to be influenced.

FEC Exh. 5, at 80-41; see DAL 29.

48

munications. See J.S. App. 41a-42a (Roberts, J., dissenting);

pp. 8-11, supra. “Senator Feingold’s participation in judicial

filbustering was a particular focus of criticism by |appellee].”

J.S. App. 42a (Roberts, J., dissenting). The district court

concluded that, unless a particular communication was itself

subject to regulation under BCRA, the existence of the com-

munication would have “no bearing” on the resolution of appel-

lee’s as-applied constitutional challenge. /d. at 23a n.18. Ap-

pellee’s pattern of electorai advocacy during the 2004 cam-

paign, however, is directly relevant to the question whether

the generalization on which BCRA § 203 is based—.e., Con-

gress’s determination that advertisements falling within the

BCRA definition of “electioneering communication” will typi-

cally reflect an intent to affect electoral outeomes—has been

proved to be inaccurate in this case.

Adoption of the district court’s approach, moreover, would

create substantial opportunities for circumvention of BCRA’s

financing restrictions on corporate electioneering. A corpora-

tion could “prime the pump” by using PAC funds to finance

an advertisement that discusses an issue of public concern,

denounces a candidate’s record on that issue, and calls for the

election of his opponent. The corporation could then use trea-

sury funds, perhaps obtained through large donations from

business entities, to air an advertisement that is substantially

similar but that omits express criticism of the candidate and

urges viewers to “contact” rather than “defeat” him. Al-

though viewers’ reactions to the second advertisement would

predictably be colored by their prior exposure to the first, the

district court’s approach would treat that prospect as irrele-

vant to the constitutional analysis.”

14 wp 7 ‘ . *,* °

lestifving in McConnell, one veteran political consultant described a

“common trick” that had been used to create “sham issue ads”:

Sometimes, the media consultant for the candidate will shoot the film and

49

Undoubtedly some corporations are engaged in legitimate

issue advocacy designed to urge changes in the law rather

than to affect federal elections. And while BCRA’s bright-

line definition of “electioneering communication” identifies

election-related advertising with a high degree of aecuracy

(particularly given the alternatives available to corporations

that do not seek to influence elections), that definition may

occasionally capture advertisements that demonstrably lack

any electoral purpose or effect. The advertisements at issue

in this case, however, clearly do not fit that description. Ap-

pellee’s as-applied challenge therefore should be rejected,

and the Court should leave for another day the difficult task

of attempting to define the circumstances, if any, under which

corporations can prove a constitutional entitlement to an ex-

emption from BCRA § 203.

sell it to the media for a reasonable rate. They simply take 2 cameras on

a shoot when they are filming the eandidate’s ad. Camera A shoots the

footage for the candidate’s ad, and Camera 6 takes nearly identical

footage that is then sold to other media consultants for a nominal fee. The

media consultant for the third party just has to buy the film from Camera

B and put on a clever tag line at the end.

251 F. Supp. 2d at 535 (Kollar-Kotelly, J... The record in McConnell also

included two NRA radio advertisements, one financed with PAC funds and the

other with corporate treasury funds. The two were substantively identical

except that the PAC advertisement concluded with an electioneering tag line

(“Please vote freedom first. Vote George W. Bush for President.”), and the

other advertisement omitted any magic words of express electoral advocacy.

See id. at SAS-540. Acceptance of the district court's approach would allow

similar manipulation on a systematic basis.

50

CONCLUSION

The judgment of the three-judge district court as to the

claims at issue in these appeals should be vacated on the

ground of mootness, and the case should be remanded with

instructions to dismiss as to those claims. [n the alternative,

the judgment should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

THOMASENIA P. DUNCAN Solicitor General

Acting General Counsel GREGORY G. GARRE

RICHARD B. BADER Deputy Solicitor General

Associate General Counsel MALCOLM L. STEWART

DAVID KOLKER Assistant to the Solicitor

Assistant General Counsel General

\

HARRY J. SUMMERS

KEVIN DEELEY

Attorneys

FEBRUARY 2007