# Amicus Curiae Brief — Federal Election Com'n v. Wisconsin Right to Life, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 551 U.S. 449 ## Text Nos. 06-969 & 06-970 IN [ttt Supreme Court of the United States FEDERAL ELECTION COMMISSION, Appellant, We WISCONSIN RIGHT LO LIFELING.. ‘ Ippelle« SENATOR JOHN MCCAIN. ef al.. Appellants. £ WISCONSIN RIGHT 10 LIFE. INC... Appellee. On Appeal from the United States District Court for the District of Columbia BRIEF OF THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE IN SUPPORT OF APPELLEE JONATHAN PLOTTENE LV RENCE Eb. Grornp? VEE -C1O S15 loth Street, NOW. Washington. DC 20006 * Counsel ot Record (202) 657-5) 40 ® ai. , 60 TABLE OF CONTENTS BA Ge FT TERI OND veccccsccnccescceccnsscnssecensessseceee I Ce FI isi icsaisiniaicipiinsinbctimesenniianininnciiatii SUMMARY OF ARGUMENT................cccseceseceereeeeeees TE sicesisnicenibicsiiniteieienidceniiiniiniatunisnbiiimmiiiniietee I. A Meaningful As-Applied Exception to II. Ill. Section 203 Must Be Defined By Bright-Line and Readily Determinable Characteristics ........ The Appellants’ Analyses Effectively Preclude As-Applied Exceptions and Are Incoherent OT There Is No Governmental Interest in Sup- pressing Issue Advocacy Broadcast Messages.. The Appellants’ Arguments Concerning WRITL’s Separate Segregated Fund Should Be ITT sssssisetcnstecsnsienenesinstatasoniemenhhiioensenienmess The Court Should Not Foreclose the Possibil- ity That Labor Organizations as a Class of Speaker Are Exempt From Section 203 ............ CFCS cccoccscescnsecee we hintatananedbaintseiesciinnseniannseiiiins (i) Page il ] 4 6 11 21 24 29 30 i TABLE OF AUTHORITIES CASES Page Abood y. Detroit Bd. of Education, 431 U.S. 209 Peis vikisisdicctclciaiaceiiistalsinleiisiiheliiiaaciiaidpientiimatiabiii 29 Ashcroft v. Free Speech Coalition, 535 U.S. 234 iol ta cca 13 Austin v. Michigan Chamber of Commerce, 494 a NI IIIT stssticseiscitistanighMccnianiadinnieleibeietalidiasee 6, 30 BE&K Construction Co. v. NLRB, 536 U.S. 516 IIT ecsiscesieeeiteitaibiniidionecdiadhiciiaininbelisiaiiniieataeabaaniniients 22 Brown v. Hartlage, 456 U.S. 45 (1982).............0. 1] Brown v. Socialist Workers '74 Campaign Com- mittee (Ohio), 459 U.S. 87 (1982) .........cc cece 23-24 Buckley v. American Constitutional Law Foun- ian, SEO UE. FE CO cectccenecsenecesenstcterennes 27 Buckley v. Valeo, 424 U.S. 1 (1976)........:cccceeeeees passim Buckley v. Valeo, 519 F. 2d 817 (D.C. Cir. 1975)... 8 Christian Civic League of Maine vy. Federal Election Commission (No. 06-589) ..............0+-++ 3 Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980)......... ccc 23 Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)........... 29 Ellis v. Bhd. of Railway and Airline Clerks, 466 I es 29 Federal Election Commission v. Beaumont, 539 of GS) eee sadaneetebateanmeiiinds 25 Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)....... 11,12 First National Bank of Boston v. Bellotti, 435 I a aiaminaeaal 22, 23 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 II i cionscsianscelicieeisesinleaidetinitadadiasdanciitadiingabeiadandatonmadide 27 SNIPE ssissinasindniestsiinasstenpdoinnnsessinbacenmaeabntaninnesunnntin 29 ill TABLE OF AUTHORITIES—Continued Page Machinists v. Street, 367 U.S. 740 (1961)............. 29 McConnell v. Federal Election Commission, 540 as ITI scsi ctrcececeeiieidhdasibdiigahiaedesbanti passim McConnell vy. Federal Election Commission, 251 BF. Beam. BS TAG CDC, Fa) acncccccccesscvsevceseoees 10 Meyer v. Grant, 486 U.S. 414 (1988)... 27-28 New York Times Co. v. Sullivan, 376 U.S. 254 SET aalaisesisarecesblaansoceesaiaeitehsiesuiaipeciancindelibialaninabinhinadbaeiniedsiin 13, 23 Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .............. 13 Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986).............ececeesenees 27 Pipefitters Local Union No. 562 v. United States, I es Ee UII Scicvicensdiccnieeinsenesiutoninenannnmeniin 26, 29 Regan vy. Taxation With Representation of Washington, 461 U.S. 540 (1983) ........ eee 26 Riley v. National Federation of Blind of N.C., eg SE Teas. FEE IIE cctnsticnnsietenteensssconenscens 27 Thomas v. Collins, 323 U.S. 516 (1945) ...........00 9,12 Thornhill v. Alabama, 308 U.S. 88 (1940)............ 23 United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948)................. 27, 29 United States v. United Auto Workers, 352 U.S. UTEP ar TTI scoiahscisctenlieiaaetatinieihadesindeieiiinbenaueanaandieandita 29 Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. 410 (2006)............... 2-3, 21, 25 Wisconsin Right to Life, Inc. v. Federal Election Commission, 466 F. Supp. 2d 195 (D.D.C. Irae iesiehinsidieemensdnidatialeiicinluadeiienticiidiameaidiniandiseuneiiailies 9,21 STATUTES enc ae I eis cisciniiciiislbiiviisinnidhtiiciatinaes 3 Be es eI incshssseciiesaiviasdiciteneuiuicisiiinndiaiiadacaiaes 2, 21 re ED citninssictmictseninninaiinnioannn i) iV TABLE OF AUTHORITIES—Continued 2 U.S.C. § 434(£)(3)( ANE) cssccccccssecccssuecessseesessnseeee 2 U.S.C. § 434(£)(3)(A)(ii) sceccccscsescssseesssssececesseesee 2 U.S.C. § 434(£)(3)(B)IV)..ccccccsseccssseeecessecsssseeeeee ” AI BI so rccittctnsinsarerrercisrnrrerionionans 2 U.S.C. § 441b(a)...cccccccssccccsececcssessssuecssssecsssuccssee 2 U.S.C. § 44 1b(b)(2) ccsscccccsececcssseccsssevecsssseecesseeeee 2 U.S.C. § 441b(b)(2)(A).ccccseccscsseccssseesccsseessssneeeee 2 U.S.C. § 441 b(b)(2)(C) .ccccseescccsseesecessseesessneeesesen ORI I a iiictecesikeinixacntensssiiscoen en de | | nie 26 U.S.C. § 501(C)(3) ccccsvsccssseccsssecesssesesssecessuesessues DE TIL. © TOUTED ccc sneecsssicsinscorneerenseseivinenns 26 U.S.C. § 527(€)(2) ccsvecessssecssssseessssuessesseessssseceee REGULATIONS SC) If the Court determines that there is no constitutionally sufficient means to enable meaningful as-applied challenges to § 203, then it should reconsider its decision in McConnell that the § 203 prohibition is itself constitutional, either in deciding the case at bar on the current record, or following supplemental briefing on that question. * These characteristics track those that the AFL-CIO and others pro- posed that the FEC adopt in 2006. 10 that in substantial measure belie electoral advocacy and are very far removed from the Court’s two exemplars—the Montana ad and the Jane Doe ad—of communications that are electoral in nature: 1. The “clearly identified federal candidate” is an in- cumbent public officeholder; 2. The communication discusses a particular current legislative or executive branch matter; 3. The communication either (a) calls upon the candi- date to take a particular position or action with respect to the matter in his or her incumbent capacity, or (b) calls upon the general public to contact the candidate in that capacity and urge him or her to do-se; 4. If the communication discusses the candidate’s posi- tion or record on the matter, it does so only by quoting the candidate’s own public statements or reciting the candidate’s official action, such as a vote, on the matter; 5. The communication does not refer to an election, the candidate’s candidacy or a political party; and 6. The communication does not refer to the candidate’s personal character, or qualifications or fitness for office.” We acknowledge that an ad that reflects all of these ele- ments nonetheless conceivably could exert some impact under some circumstances on an election, as Buckley, 424 U.S. at 42, generally observed. While it is possible to define the sort * The texts and circumstances of six exemplars of broadcast adver- tisements that also would satisfy this test are detailed in District Judge Leon’s opinion in McConnell v. FEC, 251 F. Supp. 2d 176, 488-96 (D.D.C. 2003), as “{rjepresentative [e]xamples of [g]enuine [i]ssue {a]dvertisements” that unconstitutionally would have been subject to § 203 had it been in effect; all are AFL-CIO ads from 1998 or 2000. Each ad discussed a current legislative issue and referred to a “candidate” (each an incumbent Member of Congress) only in calling on him or her to take particular action on the issue. See id. 1] of speech that necessarily will influence an election—express advocacy, which is “unambiguously related to [a] campaign,” id. at 80—it is not possible to devise a definition of speech that necessarily will not. We believe that the above character- istics, relevant to deciding the case at bar, carefully “identify[] cases far from the troublesome border,” Brown v. Hartlage, 456 U.S. 45, 56 (1982), and appropriately balance the com- peting constitutional considerations at hand, while not fore- closing consideration of other factual circumstances, many of which might not now be easily foreseeable. Il. The Appellants’ Analyses Effectively Preclude As- Applied Exceptions and Are Incoherent and Self- Contradictary 1. In sharp contrast to the district court and the proposed analysis above, the Government and the Intervenors treat the innate fluidity of electoral and non-electoral speech as justi- fication to subject virtually all of the latter to the prohibition that § 203 was intended to and constitutionally may impose only on the former. While the Government calls upon WRTL to supply “a legal test that avoids the pitfalls of undue complexity and susceptibility to evasion,” FEC Br. at 27 (emphasis in original), the Government proposes a standard for an as-applied challenge that simply cannot be met, if indeed it can be understood. Surprisingly, the Government rejects “functional equivalence” to express advocacy as a “workable or administrable” standard for as-applied chal- lenges, terming it a “useful concept” only for “upholding the bright-line limitations” of § 203. /d. at 29 n.7. Relying upon the Court's exemption of certain ideological corporations from FECA’s independent expenditure ban in FEC v. Massa- chusetts Citizens for Life, Inc., 479 U.S. 238, 263 (1986) (“MCFL”), the Government instead asserts that an ad 1s protected only if it “do[es} not pose the danger at which § 203 is directed,” FEC Br. at 40, “at all, rather than [presenting] differences of degree.” /d. at 27 (emphasis added). 12 The Government’s analysis does not acknowledge that, at some point, the § 203 “danger” is far too attenuated to justify application of the prohibition. Its analogy to MCFL fails because the Court there identified a precisely and objectively determinable class of speaker that would be exémpt from the ordinary strictures against corporate independent expendi- tures. See MCFL, 479 U.S. at 262-65. But in describing what should be exempted from the § 203 bright-line, the Government suggests no similar precision as to what circum- stances—cither textually or contextually-—do not “pose” the § 203 “danger” “at all.” This poses the problem that § 203 was supposedly drafted to solve: avoiding “the vagueness concerns that drove [the] analysis in Buckley.” McConnell, 540 U.S. at 194. Instead, the Government’s approach “blan- kets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” Buckley, 424 U.S. at 43, quoting Thomas v. Collins, 323 U.S. at 535. The Government does claim to agree with the district court that “requir[ing] examination of a// facts that are potentially relevant to the ascertainment of an advertisement’s purpose or effect” is infeasible, FEC Br. at 27 (emphasis in original), as is any “ad hoc, case by case basis” for doing so, id. at 30, and it disclaims on First Amendment grounds “close parsing of the nuances of an advertisement’s text.” /d. at 27. The Government also correctly recognizes that “potential speakers may be chilled if the legality of particular communications or financing arrangements turns on an unstructured post hoc inquiry into the speaker’s likely intent.” /d. at 42. But the Government then ignores its own wise counsel. First, the Government agrees with the dissenting judge below that WRTL’s advertisement that, on its face, com- plained about judicial filibusters would be “logically directed only at the legislators who have already supported or em- ployed the device,” so “‘even a textual approach could suggest that . . . [the advertisements] might have implicitly 13 discouraged Sen. Feingold’s election.*” FEC Br. at 37, quot- ing 466 F. Supp. 2d at 216 (Judge Roberts, dissenting). This reading certainly “close|ly] pars[es] the nuances” of the ad, and if a circumlocution that “might have implicitly discour- aged” a candidate’s election “pose[s] the danger at which § 203 is directed” then the Government’s standard both “dis- serve|[s] First Amendment values,” id. at 27, and sets the as- applied bar unreachably high for a speaker to surmount. Second, despite its rhetorical rejection of a wide-ranging contextual inquiry, the Government urges the Court to con- sider and evaluate the significance of numerous contextual factors, including the timing of the WRTL ads, the content of WRTL’s website, WRTL’s conduct over the subsequent year, and both prior and contemporaneous speech and activities by WRITL and its federal PAC with respect to Sen. Feingold. /d. at 40-48. By effectively depriving corporations and unions of any opportunity to fund “genuine” broadcast issue advertising during the § 203 timeframes, the Government’s test does not comport with our constitutional jurisprudence. “[T]he argu- ment... that protected speech may be banned as a means to ban unprotected speech . . . turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2003).° * Similarly, precisely because “speech on matters of public concern needs ‘breathing space’ . . . in order to survive,” Nike, Inc. v. Kasky, 539 U.S. 654, 676 (2003) (Breyer J., dissenting), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964), where a corporation’s regulable “purely commercial” speech is “inextricably intertwined” with “non-com- mercial” (public issue-oriented) speech, it must not be subject to state ' “false advertising” and related “unfair competition” regulation because that would chill corporations from “issu[ing] significant communications 14 2. Nonetheless, the Government touts the § 203 “bright line” as justification in itself to resist recognizing WRTL’s, and likely any, as-applied challenge. See FEC Br. at 42-43. But in MCFL the Court squarely rejected the same argument, holding that where “the rationale for restricting core political speech is simply the desire for a bright-line rule[, t]his hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom.” 479 U.S. at 263 (first emphasis in original; second emphasis added). Bright-line rules are necessary in areas implicating First Amendment freedoms in order to protect speech from gov- ernmental interference, not to facilitate governmental restric- tions on speech. Thus, in Buckley, the Court fashioned the bright line of express advocacy in order to clarify and narrow a vague and overbroad statute that otherwise would have trammeled upon non-electoral issue speech and unduly inhib- ited speakers uncertain about how their speech might be perceived. See 424 U.S. at 42-44. And, having done so, the Court then invalidated FECA’s $1,000 expenditure limit, both because independent express advocacy did not “presently appear to pose dangers of real or apparent corruption,” id. at 46, and because a great deal of other speech could be devised that “skirted the restriction on express advocacy of election or defeat but nonetheless benefited the candidate’s campaign,” id. at 457—1ationales that McConnell explicitly reaffirmed. See 540 U.S. at 190-92. Moreover, Congress itself did not seek to maintain a “bright line” where the application of § 203 would have inappropriate consequences. Thus, BCRA authorizes the FEC by regula- tion to exempt from the definition of “electioneering com- munications” “any . . . communication . . . to ensure the ap- _— relevant to public debate” and “thereby limit the supply of relevant infor- mation available to those, such as journalists, who seek to keep the public informed about important issues.” /d. at 682-83 (interim quotation marks omitted). See also id. at 663-65 (Stevens J., concurring). 15 propriate implementation” of the law, so long as the commu- nication does not “promote[] or support[]” or “attack{] or oppose[]”’ a “clearly identified federal candidate.” See 2 U.S.C. § 434(f(3)(B)(iv), incorporating by reference 2 U.S.C. § 431(20)(A)(ili). The need for a “bright line” standard can hardly be regarded as compelling when Congress itself explicitly allowed the FEC to create exceptions that would breach one. 3. The Intervenors, who were the primary congressional sponsors of BCRA, describe numerous formulations of what § 203 constitutionally covers that are even vaguer and less workable than the Government’s: “[a]ny ad that is likely to influence voters’ decisions, based on an examination of the ad’s objective content and context, sufficiently evinces an electioneering purpose and implicates the legitimate goals of BCRA,” Int. Br. at 16; “whether Congress may regulate an ad’s financing turns not on whether it uses particular words, or whether it makes its election-related nature explicit, but whether it is likely to function as election advocacy by affecting voters’ decisions,” id at 23; “an as-applied challenge should succeed only if the plaintiff can show that the ad itself and the circumstances of its creation and airing ’ The quoted phrases (sometimes abbreviated as “PASO”) are unde- fined in the statute. In McConnell, the Court concluded that these terms, as used in § 431(20)A iii) with respect to political parties, were not unconstitutionally vague. See 540 U.S. at 170 n.64. But the same conclu- sion would not be appropriate if these terms are applied to the speech of entities, like corporations and unions, that are neither parties, candidates nor political committees. Accordingly, that phrase should not demarcate a constitutional line for an as-applied challenge. Neither the Government nor the Sponsors suggest otherwise, and various of their amici rightly caution against doing so. See Brief for Amicus Curiae The League of Women Voters of the United States et a/. (*LWV Br.”) at 10-13. See also McConnell, 540 U.S. at 337-38 (Kennedy, J., dissenting). The district court thus erred in recognizing PASO as an element in evaluating as a constitutional matter the merits of an as-applied challenge to § 203. 16 demonstrate that there is no reasonable prospect the ad is likely to influence the election,” id at 39; “any ad whose objective characteristics and context indicate that it is likely to have a material effect on voters’ choices—and thus to function as the equivalent of express advocacy ...” /d. at 41. And, the Intervenors urge, there should be no restriction on contextual considerations. /d. at 31-42. It is the Intervenors, then, who have drawn “a line in the sand... ona windy day.” /d. at 35. And, not surprisingly, under their analysis “electioneering’—and only “election- eering”—-lurks everywhere in the WRTL ads. First, the Inter- venors emphasize regarding the ads’ content: 1. Because the ads call on listeners to lobby Sen. Feingold to oppose filibusters, he must be one of the “group of Senators” referred to in the ads who sup- ports them; otherwise, the plea would be “gratuitous.” Id. at 23. (But this interpretation, like the Govern- ment’s textual approach, excessively “parsfes] . . . nuances” to discern suspect intent.) 2. Asking listeners also to contact non-candidate Sen. Kohli is simply a “tactic . . . [to] shield . . . otherwise obvious electioneering.” /d. at 23. (But if objectively non-electoral characteristics of issue advocacy are simply tricks, no message could pass muster.) 3. The ads provide “no contact information” for Sens. Feingold or Kohl. /d. at 27. (But in the Internet age, - such information may be unnecessary.) Second, they emphasize regarding the ads” context: 1. The website to which the ads directed listeners did contain contact information for the two Senators but also material “criticizing [Sens.| Feinguld and Kohl for their role in the filibusters.” /d. at 27. (But even if that website excerpt were relevant to the ad itself, a 17 website is too dynamic and dense with material to attribute everything on it to a message that simply refers to its URL.) . Because Sen. Feingold had “publicly defended the filibusters,” listeners would associate him with the “group of Senators” mentioned in the ad. /d. at 23. (But this opens the door to speculative and unpredict- able considerations of context and general listener awareness. ) . The ads were broadcast immediately after four Senate cloture votes on judicial nominations and then contin- ued for one week during a Senate recess, and they did not resume later, including the next year when “the filibuster controversy peaked.” /d. at 28. (But a variety of legitimate tactical considerations influence the timing of advertising, and the determination as to whether a particular broadcast message is consti- tutionally protected must be made immediately, not in light of what transpires in the future.) . WRTL and its PAC previously criticized Sen. Feingold on the filibuster issue. /d. at 24. (But see pp. 25-27, infra.) . WRTL and its PAC opposed Sen. Feingold’s 2004 reelection. /d. at 24. (But see pp. 25-27, infra.) . WRTL and its PAC had opposed Sen. Feingold’s election in 1992 and reelection in 1998. /d. at 24 n.8. But see pp. 25-27, infra.) . Others, including the Wisconsin Republican Party and Republican Senate primary candidates, “invoked [Sen.] Feingold’s participation in the filibuster as a central reason he should be defeated,” as shown in a newspaper article “a year before the election.” /d. at 26. (But a group’s right to speak cannot be condi- 18 tioned on the distant actions of others over which the group has no control.) The Intervenors then contrast the WRTL ads with ads that, they say, would be “truly different in kind” and “might well be deemed to have no realistic connection with the election or the candidate’s fitness for public office.” /d. at 40 n.27. But, in fact, applying the Intervenors’ own analysis, those exam- ples cannot be distinguished from the WRTL ads, and they only underscore that the Intervenors offer no workable standard at all. First, they posit an ordinary commercial ad by an automo- bile dealership whose founder and namesake is a candidate. /d. But it seems plain that, by the Intervenors’ logic, such an ad would promote that candidate’s name and inherently remind voters of his business acumen and success; indeed, these could be qualifications that his campaign emphasizes. Second, they posit a consulting firm that is in the business of ensuring compliance with the Sarbanes-Oxley law running an ad mentioning that statute where Rep. Oxley is a candi- date. /d. But again, under the Intervenors’ approach, such an ad surely would remind voters of Rep. Oxley’s signature legislative achievement, which his campaign and others likely are emphasizing as a reason to reelect him. Third, they posit “a candidate’s business enterprise, named after him or her, sponsor[ing] a fall charity event every year and want[ing] to publicize it during an election year.” /d. But, again, that public reminder of the candidate’s business success, coupled here with a charitable good work, could be said to be highly influential to a prospective voter.* * Appellants’ amici posit a similar ad that they deem to be acceptable under their equally vague proposed standard, namely, whether or not “[a] communication is unlikely to have any appreciable effect on voters’ choices in an election.” Brief Amicus Curiae of Richard Briffault and Richard L. Hasen in Support of Appellant and Intervenor-Appellants at 24 19 4. The Intervenors’ approach is not only self-contradictory and incoherent, but also marks a notable and unexplained reversal. In the case at bar, the [ntervenors acerbically characterize the district court’s principal reliance on the text of the WRTL ads as a “‘see-no-evil’ approach” that “threatens to open the floodgates to renewed evasion of BCRA’s regula- tions.” /d. at 32. But in the FEC’s rulemaking to implement § 203, the Intervenors urged the agency to adopt the follow- ing virtually content-only exemption from that prohibition: The term “electioneering communication” does not include any communication that: (x)(A) Meets all of the following criteria: (i) the communication concerns only a legislative or executive branch matter; (ii) the com- munication’s only reference to the clearly identified federal candidate is a statement urging the public to contact the candidate and ask that he or she take a par- ticular position on the legislative or executive branch matter; and (iii) the communication refers to the candi- date only by use of the term “Your Congressman,” “Your Senator,” “Your Member of Congress” or a simi- lar reference and does not include the name or likeness of the candidate in any form, including as part of an Internet address; and (iv) the communication contains no reference to any political party. (B) The criteria in Para- (emphasis deleted) (“Hasen/Briffault Br.”). See also id. at 27 (“it is quite plausible the [WRTL] ads could affect voters’ choices”). These amici describe a baseball card corporation advertising its product by using “the name and likeness of a former baseball star who also happens to be the incumbent Senator running for reelection.” /d. at 26. They say “it is highly unlikely that voters would use an ad so far removed from anything relevant to the candidate or his or her performance in assessing the candidate.” /d at 25-26. But celebrity in non-political fields is a demon- strably potent aspect of many successful candidacies _ for example, Sen. Jim Bunning (baseball), Rep. Heath Shuler (football), and, of course, Gov. and President Ronald Reagan and Gov. Arnold Schwarzenegger (acting). Accordingly, these amici offer no objective and administrable mode of analysis either. 20 graph (A) are not met if the communication includes any reference to: (i) the candidate’s record or position on any issue; (ii) the candidate’s character, qualifications or fit- ness for office; or (iii) the candidate’s election or candidacy. Detailed Comments of BCRA Sponsors Senator John McCain, Senator Russ Feingold, Representative Christopher Shays, Representative Marty Meehan, Senator Olympia Snowe, and Senator James Jeffords at 10 (Aug. 23, 2002), www.fec. gov/ pdf/nprm/electioneering_comm/comments/us_cong_members. pdf). As the Intervenors then explained, “[t}his formulation allows individuals and entities concerned about legislation to run true issue ads with a legislative objective and a request to contact an elected official during the 30 or 60 day windows,” because it “assure/s] that the communication plainly and unquestionably is ‘wholly unrelated’ to any election.” Id. at 11 (emphasis added). The Intervenors also urged the FEC to “preserve the ‘bright line’ quality” of the electioneering communication definition with respect to “entities other than parties or candidates” because it must “give clear guidance,” and “[a]n exemption that creates uncertainty about whether a communication will be covered by the law undermines that crucial aspect of the definition . . .” /d. at 6.” All of the WRTL ads at issue here satisfy the Intervenors’ 2002 proposed exemption, save. for their utterances of Sen. Feingold’s actual name.'” Nothing has changed since these ” Appellants’ current amicus curiae Common Cause also supported this exemption because it “protect{s} against the possibility that sham communications that are in fact campaign ads continue to escape [§ 203’s] coverage.” See Letter from Donald J. Simon to Mai T. Dinh at 12 (Aug. 22, 2002), www.fec.gov/pdf/nprm/electioneering comm/comments/comm on cause and democracy_21.pdf. Now, however, Common Cause exco- riates the district court’s similar analysis as a “magic features test” that would “eviscerate” § 203. LWV Br. at 6-8 and n.2. In their 2002 comments to the FEC, the Intervenors asserted that “prohibit{ing] use of a candidate’s name makes it less likely that the ex- 21 2002 comments to require or warrant a different analysis— certainly not this Court’s decision in McConriell, which essentially embraced the analysis that the Intervenors, as intervenors in that litigation as well, urged the Court to adopt. To be sure, while one’s support of a discretionary regulatory exemption does not necessarily mean that one believes that it is constitutionally mandated, as noted above the Inter- venors contended in 2002 that the exemption they supported ‘““plainly and unquestionably’ is wholly unrelated to an election”—so, surely, it must neither have any “reasonable prospect . . . to be likely to influence the election,” Int. Br. at 39, nor be “likely to have a material effect on voters’ choices.” /d. at 41. The Intervenors, who assured this Court in McConnell that as-applied challenges to § 203 would be justiciable, see Brief for Intervenor—Defendant Senator John McCain, et al. at 64, 74-75, McConnell, Nos. 02-1674, et al., and then vigorously argued the opposite in WRTL J, have reversed field again in order to render the as-applied option that this Court recognized in WRTL / effectively a null set. III. There Is No Governmental Interest in Suppressing Issue Advocacy Broadcast Messages The Intervenors also contend that in McConnell the Court determined that issue advocacy “is entitled to no greater pro- emption will be used to accomplish an electoral objective.” /d. at 11. Surely, that one circumstance has no legal salience. Since well before BCRA, a “clearly identified candidate” has been defined in part to include one who is referred to, without name or image, as “your Congressman” or “the incumbent.” 2 U.S.C. § 431(18); 11 C.F.R. § 100.17. As Judge Leon stated below, the record in McConnell, including testimony by the AFL- CIO’s communications director, demonstrated that actually naming an official was crucial to motivating constituents to contact him or her in re- sponse to an ad. Wisconsin Right to Life, Inc. v. FEC, 466 F. Supp. 2d at 207 n.19. That evidence was uncontested in McCennell. Moreover, if, as the Intervenors now say, the constitutionally significant context includes the fact that listeners may be assumed to know that Sen. Feingold sup- ported judicial filibusters, see Int. Br. at 23, then surely they can be assumed to know the more elementary fact of his name. 22 tection under the First Amendment” than express advocacy, so § 203 may be applied where it is “impossible to disentan- gle” them. See Int. Br. at 42 n.28; see also id at 19-20. Again, however, that inverts the teaching of Buckley that in such circumstances the First Amendment requires the censor to desist. And, while the Court has recognized a compelling governmental interest in regulating express advocacy and its “functional equivalent,” it has never recognized any govern- mental interest at all in prohibiting corporate or union funding of other advocacy; and, the Government does not suggest any such interest now. Indeed, in McConnell 540 U.S. at 206 n. 88, the Court stated that, “[a]s Justice Kennedy emphasizes in dissent, post, at 326-328, we assume that the interests that justify the regulation of campaign speech might not apply to the regula- tion of issue ads,” for “unusually important interests underlie the regulation of corporations’ campaign-related speech,” and “BCRA’s fidelity to these imperatives sets it apart from the statute in /First National Bank of Boston v.] Bellotti |,435 U.S. 765 (1978)] . . . .” namely, a state criminal provision that barred corporations from making contributions or expendi- tures in connection with ballot measures other than those that materially affected themselves. In striking down that prohi- bition, the Bellotti Court reasoned that “[t]he risk of corrup- tion perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue,” id. at 790, and corporate advocacy “affords the public access to discussion, debate, and the dissemination of information and ideas.” /d. at 783 (footnote omitted). That kind of advocacy exercises the right to petition the government, which is “one of the most precious of the liber- ties safeguarded by the Bill of Rights, ... and. . . implied by the very idea of a government, republican in form,” BE&K Construction Co. v. NLRB, 536 U.S. 516, 524-25 (2002) (interior quotation marks, citations and brackets omitted), and 23 is entitled to “a wide measure of ‘breathing space’ protec- tion,” id. at 531, quoting New York Times Co. v. Sullivan, 376 U.S. at 279. “At the heart of the First Amendment’s protec- tion” is speech on ““issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” First National Bank of Boston v. Bellotti, 435 U.S. at 776, quoting Thornhill v. Alabama, 308 U.S. 88, 102 (1940). See also Consolidated Edison Co. v. Public Service Comm., 447 U.S. 530 (1980) (state cannot preclude corporation from including with cus- tomer bills its own newsletter that discusses public policy matters). And, where a speaker on non-electoral matters of public concern is a labor union, a corporation or some other organ- ized group, no lesser or different First Amendment protection is at stake than it would be for a different speaker. “[T]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individ- ual.” First National Bank of Boston y. Bellotti, 435 U.S. at 777. It bears emphasis on this point that absent a meaningful as- applied exception, § 203 proscribdes a// union- and corporate- financed broadcast references to a// Members of Congress who are also candidates, even if they are literally unopposed for reelection or, as is the cas? for so many of them due to partisan gerrymandering, the “functional equivalent” of being so. Notably, the application of § 203 against WRTL that is at issue here concerns a primary election in which Sen. Feingold was unopposed. Under no formulation of an election-influ- encing standard could the “dangers” that inspired § 203 be considered to arise under that circumstance, as even some of the appellants’ amici acknowledge. See Hasen/Briffault Br. at 25 and n.9. In Brown v. Socialist Workers ‘74 Campaign Committee (Ohio), 459 U.S. 87, 95 (1982), the Court stated 24 that “because minor party candidates are unlikely to win elections, the government’s general interest in ‘deterring the “buying” of elections’ is ‘reduced’ in the case of minor parties,” quoting Buckley, 424 U.S. at 70; and, that fact, coupled with evidence of past harassment, warranted under the First Amendment an exemption for a minor party from the State of Ohio’s campaign contribution and expenditure dis- closure requirements. Brown, 459 U.S. at 420-25. By a similar token, because a candidate who is unopposed in a primary election is certain to win, the governmental interest in regulating election-"influencing” speech is not just “reduced,” but entirely absent. The § 203 prohibition also applies to broadcast references to the incumbent elected leaders of the Executive Branch, the President and the Vice President, whenever either is a candidate for reelection or the Vice President is a candidate for the presidency, as was the case in every election from 1932 to 2004 (and in only 1952 was the incumbent President or Vice President not one of the eventual major-party presi- dential nominees). As both history and contemporary cir- cumstances make clear, the official conduct of the President and the Vice President is a matter of the most acute public concern irrespective of their electoral ambitions and pros- pects. Yet § 203 uniquely insulates them from broadcast issue commentary.'' There is no governmental interest, let '' During the 2003-04 election cycle, the first to which BCRA applied, it was a federal crime for union- or corporate-financed broadcast advertis- ing to refer in any manner to President Bush during substantial periods of time and locations while he was an unupposed candidate in primaries and caucuses for the Republican Party nomination; that prohibition continued throughout the 50 states with respect to both President Bush and Vice President Cheney during the 30-day period prior to the August 30 — September 2, 2004, Republican National Convention, even though their nominations were likewise uncontested; and, it then continued without pause during the 60 days remaining before the November 2 general election. Notably, in 2008 the two major-party conventions will be held 25 alone a compelling one, in barring genuine issue communica- tions referring to the President, the Vice President or Members of Congress during those periods. IV. The Appellants’ Arguments Concerning WRTL’s - Separate Segregated Fund Should Be Rejected There is also no constitutional basis for compelling unions and corporations to finance their genuine issue advocacy through a separate segregated fund.’ The Government's and the Intervenors’ arguments regarding the significance of WRTL’s connected federal political committee should be rejected for three principal reasons. First, accepting their arguments would impose a substan- tially disruptive burden on long-established and widespread organizational structures developed in reliance upon both FECA and the Internal Revenue Code. Appellants contend that the WRTL ads are tainted in purpose and effect by the distinct electoral activities of WRTL’s PAC. However, that separate segregated fund is a distinct legal entity from its just before the 60-day pre-November 4 Election Day “blackout” period begins on September 4 — during August 25-28 (Democratic Party) and September 1-4 (Republican Party). Although it appears that no incumbent President or Vice President will then be a candidate, if this timing becomes the norm then in future elections then the 2004 experience is sure to be repeated. '? Although the Court has rejected the characterization of the segregated- fund requirement as a “complete ban” on corporate or union political activity, see FEC v. Beaumont, 539 U.S. 146, 194 (2003), it is most cer- tainly fair to characterize § 203’s proscription of union- and corporate- paid independent speech as a “prohibition,” as this Court has done on both occasions that it has considered it. See WRTL /, 546 U.S. at__, 126S. Ct. at 1017; McConnell, 543 U.S. at 203. Section 203 itself was entitled “Prohibition of Corporate and Labor Disbursements for Electioneering Communications,” 116 Stat. 81, 91, and, as codified, 2 U.S.C. § 441b(a), provides that unions and corporations are “prohibited” from making any “contribution or expenditure,” including an “applicable electioneering communication.” 2 U.S.C. § 441 b(b)(2). 26 corporate sponsor, and the sponsor’s control over it does not render the sponsor or its officers subject to the enforcement of laws barring the sponsor from making political contributions or expenditures. See Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 401-32 (1972). FECA incorpo- rates these principles. 2 U.S.C. § 441 b(b)(2)(C). Similarly, while the Internal Revenue Code precludes a § 501(c)(3) charitable organization from engaging in any par- tisan political activity, see 26 U.S. C. § 501(c)(3), it is well- established that a charity does not violate that prohibition simply because it is affiliated with a § 501(c)(4) entity that sponsors and administratively supports a federal political committee. See Internal Revenue Service (“IRS”), “Election Year Issues” 365-69, 473-80 (2003). Indeed, the Court has recognized the utility of the “dual structure” of § 501(c)(3) and § 501(c)(4) arms to enable an organization to pursue distinct objectives. See Regan v. Taxation With Representa- tion of Washington, 461 U.S. 540, 544 (1983). For these reasons, innumerable organizations maintain multi-affiliate structures. But appellants’ “taint” argument would render these various affiliation arrangements traps for the unwary. - Adoption of appellants’ position would unconstitutionally burden WRTL and its PAC, for the PAC would no longer be available to provide “a constitutionally sufficient opportunity [for WRTL] to engage in express advocacy.” McConnell, 540 U.S. at 203-05.'° In McConnell, the Court invalidated BCRA’s requirement that a political party forgo its First Amendment right to undertake express-advocacy independent expenditures if it (or an affiliated party committee) previously made coordinated expenditures with a party’s nominee for ' The Court’s comment in McConnell that in “doubtful cases” such a fund may be used to pay for “genuine issue ads,” 540 U.S. at 206, cannot be construed as a command that such a fund be used to finance an ad that merits an as-applied exception; if it were, there could be no such exception. 27 federal office, because this forced choice placed an “uncon- stitutional burden” on that right. /d. at 213-14. The invalid choice there was between “a constitutional right and a statu- tory benefit,” 540 U.S. at 28; here, the invalid de facto forced choice is between two constitutional rights: a PAC’s right to make independent expenditures and an affiliated § 501(c) organization’s right to finance issue-oriented broadcast speech.'* Section 203 cannot constitutionally force a speaker to make that choice. Second, requiring a non-electoral entity like a union or a corporation to employ an electoral entity as the sponsor of its non-electoral message violates the First Amendment “princi- ple of autonomy to control one’s own speech.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995). See generally Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 197- 200 (1999); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 797-98 (1988); Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1, 11 (1986). For, whenever a federal political committee makes a communica- tion, it must both identify itself and either affirm or disclaim “candidate” authorization of its speech. 2 U.S.C. § 441d(a). This deprives the organization and its members of the “right . . . to advocate their cause” by “what they believe to be the '* Although it is unclear whether or not any of WRTL’s other com- munications about Sen. Feingold were confined to WRTL’s members, insofar as they were the appellants presumably would consider them to be pertinent and discoverable “context.” Yet the First Amendment precludes incursions by federal campaign finance laws on a union’s or other mem- bership organization’s partisan internal communications, see United States v. Congress of Industrial Organizations, 335 U.S. 106, 121 (1948), and FECA explicitly provides that union and corporate internal communica- tions “on any subject” are exempt from treatment as cither “contributions” or “expenditures.” 2 U.S.C. § 441b(b)(2)(A). If the exercise of such pro- tected internal speech and association effectively forfeits a group’s ability to undertake external issue speech, then that is also an unconstitutional condition on the exercise of those nights. 28 most effective means for so doing.” Meyer v. Grant, 486 U.S. 414, 424 (1988). Moreover, under a longstanding IRS rule, if the separate segregated fund of a § SO0l(c) organization “expends more than an insubstantial amount . . . for activities that are not for an exempt function [that is, election-influencing activity, see 26 U.S.C. § 527(e)(2)], during a taxable year, [then] the fund will not be treated as a segregated fund for such year,” and all of its receipts will be taxed to its § 501(c) sponsor. 26 C.F.R. § 1.527-2(b)(1). Thus, compelling WRTL’s separate segre- gated funa io pay for non-electoral advertising subjects it to a. substantial risk of loss of its tax exemption. Third, as applied to “genuine” issue speech, the segregated- fund requirement entails unduly complicated and burdensome administrative and other requirements. In MCFL the Court held that those burdens made it a “severely demanding task” for a nonprofit ideological corporation to engage in express- advocacy independent expenditures. 479 U.S. at 256. That burden is at least as severe for organizations that wish to broadcast speech that poses no greater threat of corruption or its appearance than does an MCFL organization itself. And, for unions and corporations that operate in a hierarchical, affiliated structure, typically only the national affiliate spon- sors and controls a federal PAC, because FECA treats all affiliates of a national organization as comprising a single entity for purposes of political committee sponsorship, fund- raising and spending. '° See 2 U.S.C. § 441a(a)(5); 11 C.F.R. 1S So, for example, there are over 30,000 labor organizations in the private sector alone, most of which are small organizations with modest treasuries, see “Record-Keeping Under the Labor Management Reporting and Disclosure Act (LMRDA): Do DOL Reporting Systems Benefit the Rank and File?”, Joint Hearing Before the Subcommittee on Workforce Protections and the Subcommittee on Employer-Employee Relations of the House Committee on Education and the Workforce, 107th Cong., 2d Sess. 115-16 (2002), but there are only 283 union-spensored federal politi- cal committees. www.fec.gov/press/press2006/200607 | 4paccount. html. 29 §§ 110.3(aX2)ii) and (iii). Absent meaningful as-applied recourse, a typical organization coping with an immediate and unforeseen legislative problem would have to either create its own PAC to fund “electioneering communications” or try to persuade its national parent affiliate, perhaps on very short notice, to spend its PAC money—which it raised for contributions and express-advocacy spending—for that affiliate’s non-electoral issue message. That consequence is constitutionally unacceptable. V. The Court Should Not Foreclose the Possibility That Labor Organizations as a Class of Speaker Are Exempt From Section 203 The Court has long recognized and afforded protection to the vital role of labor organizations in the non-electoral public arena as advocates for legislation and public policies in the interests of both their members and all workers. See generally Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 516 (1991); Ellis v. Bhd. of Railway and Airline Clerks, 466 U.S. 435, 446 (1984): Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978); Abood v. Detroit Bd. of Education, 431 U.S. 209, 227-32 (1977); Pipefitters Local Union No. 562 v. United States, supra; Machinists v. Street, 367 U.S. 740, 767 (1961); id. at 798, 800-03, 812-816 (Frankfurter, J., dissenting); U'nited States v. United Auto Workers, 352 U.S. 567, 578-86 (1957); United States v. Congress of Industrial Organizations, 335 U.S. at 115-21; id. at 143-46 (Rutledge, J., concurring). The case at bar provides no occasion to foreclose the question as to whether § 203 itself is constitutional with respect to labor organizations as a distinct class of speaker. With the sole exception of MCFL corporations, McConnell did not distinguish among the various entities regulated by § 203 im analyzing the record of their broadcast advertising practices. And, in upholding the prohibition, the Court recited only its “prior decisions regarding campaign finance regu- 30 lation, which represent respect for the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” See 540 U.S. at 205 (emphasis added) (interior quotation marks and citations omitted). See also Hasen/Briffault Br. at 9 n.5. The Court did not explain why § 203 is constitutional as applied to unions. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 665-66 (1990), the Court rejected the claim by a busi- ness trade association that the State of Michigan’s proscrip- tion of corporate-financed electoral independent expenditures was fatally under-inclusive because it did not also apply to unincorporated labor organizations, explaining that unions have “crucial differences” from corporations: although unions too “may be able to amass large treasuries, they do so without the significant state-conferred advantages of the corporate structure,” and “the funds available for a union’s political activities more accurately reflect members’ support for the organization’s political views than does a corporation’s general treasury.” In deciding the case at bar, the Court should not foreclose the ability of unions, or other entities regulated by § 203 whose claims are not now before the Court either, to make out a broader as-applied challenge on some future occasion. CONCLUSION For the reasons stated above, the Court should affirm the judgment below. Respectfully submitted, JONATHAN P. HIATT LAURENCE E. GOLD * AFL-CIO 815 16th Street, N.W. Washington, DC 20006 * Counsel of Record (202) 637-5130 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A13. Public record. Not legal advice.