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

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Nos. 06-969 & 06-070

IN THE

Supreme Court of the Anited States

FEDERAL ELECTION COMMISSION

Appellant,

Vv.

WISCONSIN RIGHT TO LIFE, INC.

Appellee.

SENATOR JOHN MCCAIN, ET AL.

Appellants.

Vv.

WISCONSIN RIGHT TO LIFE. INC.

Appellee.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF AMICUS CURIAE

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA IN SUPPORT OF APPELLEE

Of counsel: JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

CALEB P. BURNS

WitLEY REIN LLP

1776 K Street. N.W.

. Washington, D.C. 20006

(202) 719-7000

STEVEN JL LAW

CHILE LEGAL OFFICER AND

GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

Counsel for Amicus Curiae

(Additional counsel on inside cover)

Wu Son-EPes PRINTINGCO. INC -— (202) 789-0096 -— WASHINGTON.D C 20002

ROBIN S. CONRAD

SENIOR VICE PRESIDENT

NATIONAL CHAMBER

LIVIGATION CENTER, INC.

AMAR D. SARWAL

GENERAL. LITIGATION

COUNSEL

NATIONAL CHAMBER

11 MIGATION CENTER, INC.

JUDITEEK. RICHMOND

VICE PRESIDEN? AND

ASSOCIATE GENERAL COUNSEL

US. CHAMBER OF COMMERCE

1615 H Street. N.W.

Washington, D.C. 20062

(202) 463-5337

QUESTIONS PRESENTED’

The Federal Election Campaign Act (“FECA”), as

amended by the “electioneering communication” provision of

the Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81 (2002) (“BCRA”), bans corporate

speech on television or radio (transmitted by broadcast, cable,

or satellite) that, 60 days before a general election or 30 days

before a primary election, refers to a clearly identified federal

candidate and can be received by 50,000 or more persons in

the relevant district or state. 2 U.S.C. §§ 434(f)(3)(C),

441b(b)(2). McConnell v. FEC, 540 U.S. 93, 194, 205, 207

(2003), held that this provision (i) served the same

compelling interest in limiting corporate candidate advocacy

accepted by the Court in prior cases, (ii) provided a clear and

objective bright line standard that satisfied heightened First

Amendment vagueness concerns, and (iii) had not been proved

to reach enough speech that was not candidate advocacy to

render the definition of electioneering communication invalid

on its face. However, Wisconsin Right to Life, Inc. v. FEC,

126 S. Ct. 1016 (2006) (per curiam) (“WRTL I’), held that

McConnell’s facial ruling did not determine whether the

electioneering communication ban constitutionally could be

applied to particular types of speech, and remanded. The

questions presented on this appeal from a judgment that the

ban could not be applied to the grassroots lobbying ads at

issue here are:

1. Does the First Amendment permit the electioneering

communication ban to be applied to forbid corporate ads

asking Wisconsin residents to petition their incumbent Sena-

* All parties have consented to the filing of this brief amicus curiae as

indicated by letters of consent filed with the Court. This brief was not

authored, in whole or in part, by any counsel for any party. No person or

entity, other than the amicus, its members, or its counsel, has made a

monetary contribution to the preparation or submission of this brief.

(1)

tors, one of whom is seeking reelection, to oppose ongoing

Senate filibustering of federal judicial nominations?

2. How can the principles that restrict application of the

electioneering communication ban be formulated to provide

practical and meaningful protection in the future?

TABLE OF CONTENTS

QUESTIONS PRESENTED .........cccoscsscsoscessssessssssosens

TABS OF AUTH ie nccccccceccssessennsecesossosossenssonsee

STATEMENT OF THE CASE .....ccscccsoscosssorcsercssssseseee

SUMMARY OF ARGUMENT ........cccecceeeceeeeeeeeees

eT cnteihetnicicinientiianictiincnaineiinnsiinpaauinenetenmpsene

Il.

Ill.

IV.

CORPORATE SPEECH AND PETITIONING

ARE PROTECTED BY THE CORE OF THE

PERS! ARSENDIMEN TD .....cccccssssescssccsssssessosooses

McCONNELL RECOGNIZED THAT THE

ELECTIONEERING COMMUNICATION

STANDARD SWEEPS IN SPEECH THAT IS

NOT FUNCTIONALLY EQUIVALENT TO

EXPRESS ADVOCACY .........ccscccsssceserserssssesese

AS APPLIED HOLDINGS OFTEN DO, AND

~ IN THIS CASE SHOULD, ESTABLISH

CATEGORICAL STANDARDS THAT

MINIMIZE FUTURE LITIGATION ................

THE WRTL ADS ILLUSTRATE A CATE-

GORY OF CORPORATE SPEECH TO

WHICH THE ELECTIONEERING COMMU-

NICATION BAN CANNOT CONSTITU-

TIONALLY BE APPLIED ...........0.0.cccrcsecsceeees

A. That category consists of speech that

merely addresses a current legislative issue

and that refers to candidates only in their

capacity as incumbent elected officials

with responsibility for the issue being

Pi iscsi itcethcsiulonnscaieiisthashiesbsaiesinbnpegumesiionnnnties

sa Wwe <

TABLE OF CONTENTS—Continued

Page

B. The definition should not employ stan-

dards that deny clarity or invite delay and

IIIS DIR cccccsenacascosnisnmisnnntinnennenenisiiins 23

1. Subjective elements should be excluded.. 23

2. The PASO standard should be avoided

or objectively defined .................cccseeee 25

3. Analysis should occur within the four

OUUIGTD CE TRG GG enscccsecsstctincictecisntnsinentitinn 27

CN cscresssnccccnscnotinsinssenseatenensteppusianiiiiinaiinaman 29

PERT ITIIOID srcsnerscecerscstenssssensansviemmenaniiaiitamnianniaitin la

TABLE OF AUTHORITIES

FEDERAL CASES Page

Austin v. Michigan Chamber of Commerce, 494

TT ER 12

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

ES 18

Buckley v. Valeo, 424 U.S. 1 (1976)..........0.c.00000- passim

California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508 (1972) 0.0.0.0 11, 12, 25

Chamber of Commerce of the United States v.

FEC, 69 F.3d 600 (D.C. Cir. 1995)... 3

Chamber of Commerce of the United States v.

Moore, 288 F.3d 187 (Sth Cir. 2002) ................ 3

Center for Individual Freedom v. Carmouche,

449 F.3d 655 (Sth Cir. 2006), cert. denied, 127

EN 26

Colorado Right to Life Committee, Inc. v.

Davidson, 395 F. Supp. 2d 1001 (D. Colo.

TTI iain cserieetteneatienaiccemiinietsennntapenmneenese 17

Colorado Republican Federal Campaign Com-

mittee v. FEC, 518 U.S. 604 (1996) ...........00..... 18

Consolidated Edison Co. v. Public Service Com-

mission of New York, 447 U.S. 530 (1980) ....... 12,15

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961)......... ll

Edenfield v. Fane, 507 U.S. 761 (1993)................ 18

Eu v. San Francisco County Democratic Central

Committee, 489 U.S. 214 (1989)... 5

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

ET 3,4,9

First National Bank of Boston v. Bellotti, 435

a 12, 14, 15

Greater New Orleans Broadcasting Ass'n v.

United States, 527 U.S. 173 (1999)... 13

Kleindienst v. Mandel, 408 U.S. 753 (1972)......... 12, 13

TABLE OF AUTHORITIES—Continued

Page

Martin v. City of Struthers, 319 U.S. 141 (1943).. 12

McConnell v. FEC, 540 U.S. 93 (2003) ..........0000 passim

Mills v. Alabama, 384 U.S. 214 (1966)................. 13

Nixon v. Shrink Missouri Government PAC, 528

SR SEITE ctutsicnlsescneianeiienaeitentisameindiiiai 4

Pacific Gas & Electric Co. v. Public Utilities

Commission of California, 475 U.S. 1 (1986)... 12

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

TTT hnincencnictntsicienionseuneblasinnmaninnevedueedenninniietiene: 12

Republican Party of Minnesota v. White, 536

es Pe IED tnsencnecherscqunecenieniamniiesemannibistinemes 3,5

Sosa v. DirecTV, Inc., 437 F.3d 923 (9th Cir.

Fi iretinienmsencnnnsnininheeimnenmmmiiebmnnaensitiaiin 11

Thomas v. Collins, 323 U.S. 516 (1945) ............... 23

Thornhill v. Alabama, 310 U.S. 88 (1940)............ 12

United Mine Workers v. Pennington, 381 U.S.

EE TN 11

United States v. Cassel, 408 F.3d 622 (9th Cir.

Siri scacicienntsseshinnatiasaeantitigaaaaiamenisinaieadamenetehmemaniins 25

United States v. Edge Broadcasting Co., 509

es SEED eerennnredpiccienmnenennennsninanmnionnsinees 18

United States v. National Treasury Employees

Union, 513 U.S. 454 (1995) .0.......ccccceceeeeeeeeees 19

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748

ee otnunrensnenevenctesnsinntunnniiineatempitiiiidinapeseiiniveiiain 12

Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct.

a evincsisnnesncinreibeiecctenegusnandnsiinnniinniaianiniinesi passim

STATE CASES

Elections Board of Wisconsin v. Wisconsin

vil

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES, REGULATIONS Page

2 U.S.C. § S34( ES MB GV). 000000.ccceecescccsecccccssesesees 6

A i,4

ee Se iteinniccetinanstecanecianeecnenmmnenennie 6

Be Oe cicntecenennnresernmamnentinnnnsenngen i, 4

a BS ee ee 15

The Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81 (2002) ......... i

STATE STATUTES

La. Rev. Stat. Ann. § 18:1483(9)(a) ............000.0..... 26

OTHER

71 Fed. Reg. 52295 (Sept. 5, 2006)... 6

Andrew Mollison, Votes on Guns, Marriage

Slated; GOP Leaders in House Push Symbolic

Bills, Atlanta Journal-Const., Sept. 28, 2004..... 6

Brief of Respondents, Voters Education Commit-

tee v. Washington State Public Disclosure

Commission, No. 77724-1 (Wash. filed Feb.

Letter from Lawrence Norton, FEC General

Counsel to Cassandra Lentchner, Attorney for

Congressman Eliot Engel (Feb. 5, 2004)........... 6-7

Office Politics: the Growing Impact of Campaign

Finance and Election Law Regulations on

Corporations, Metropolitan Corp. Counsel

eee are 19

Press Release, FEC, FEC Issues Semi-Annual

Federal PAC Count (July 14, 2006) .................. l

Press Release, FEC, Sierra Club Agrees to Pay

Civil Penalty for Violation of Federal Cam-

paign Law (Nov. 15, 2006)............::-0-eceseseees 27

Vill

TABLE OF AUTHORITIES—Continued

Page

United States House of Representatives and

United States Senate Roll Call Votes, 108th

Congress—2d Session (2004) 00.......ccccceceeeeeees 6

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of

America (“Chamber”), founded in 1912, is the world’s largest

not-for-profit business federation with an underlying mem-

bership of over 3,000,000 businesses and business asso-

ciations. The Chamber’s members include businesses of all

sizes and sectors—from large Fortune 500 companies to

home-based, one-person operations. Ninety-six percent of

the Chamber’s underlying membership are businesses with

fewer than one hundred employees. Collectively, the

Chamber’s members are central to our nation’s economy and

well-being.

Business entities are profoundly affected by federal legis-

lation, policy, and executive action on a wide range of issues,

from tort reform to taxes, intellectual property to import

controls, and employment standards to environmental protec-

tion. As a result, businesses are critically interested in the

formulation and implementation of federal legislation and

policy and in assuring that their knowledge and concerns are

fully and effectively communicated to the public, federal

legislators, and other government officials. At the same time,

all Americans, including American voters and government

officials, have a vital interest in hearing what business

corporations have to say on the key issues of the day.

Some few of the Chamber’s members, particularly large

corporations, maintain separate segregated funds, commonly

called PACs, that permit limited direct advocacy for or

against candidates. But the vast majority do not. PACs are

complex and burdensome to initiate and maintain. As of

July 1, 2000, there were only 1,621 PACs sponsored by

corporations registered with the FEC. See Press Release,

FEC, FEC Issues Semi-Annual Federal PAC Count (July 14,

2006), http://www.fec.gov/press/press2006/200607 | 4paccou

nt.html. And, only some of those PACs are sponsored by

Chamber members. -

When an issue arises requiring comment by a corporation

that does not maintain a PAC, it often is not practical for the

business to organize a PAC, solicit contributions, and then

speak out in a timely fashion. Moreover, even business

corporations that have PACs often will already have spent or

committed their limited PAC funds to campaigns or other

purposes that must receive PAC funding before the need for ~

issue speech is discerned. Thus, business corporations have a

strong interest in being able to engage in issue advocacy

without the burdens and limitations of the PAC structure.

And, for most, requiring them to speak through a PAC is the

equivalent to banning their timely speech.

Moreover, Congress has determined that the limited sums

businesses can raise and spend through the PAC process may

properly be used for direct and explicit candidate advocacy.

And such advocacy is a core First Amendment nght. The

exercise of that core right should not be impaired by requiring

a corporation to divert its limited candidate advocacy funds to

pay for true issue ads and grassroots petitioning that are aot

the functional equivalent of candidate advocacy and that the

government has no compelling justification for restricting.

Public policy largely is decided by elected officials. When

an active legislative issue is before incumbent officials for

action, interested persons have a compelling need to address

those issues and to receive speech concerning those issues.

For such speech to petition effectively for redress, it must

identify the government officials who will make the cnitical

decisions. And that need does not mysteriously vanish during

the lengthy blackout periods imposed by the electioneering

communication ban. Yet, the electioneering communication

ban, on its face, precludes much such speech.

As is discussed infra at 6, the Chamber joined in petition-

ing the FEC to conduct a rulemaking on the issues raised

by this case. In addition to assisting American business thus

to petition the government, the Chamber plays a key role in

3 rod

advocating for the interests of its members in important

matters before the courts, legislatures, and executive branches

of state and federal governments. In that role, the Chamber

was a party to the McConnell litigation challenging the facial

constitutionality of the electioneering communication ban on

corporate political speech that is the subject of the instant as

applied challenge. The Chamber regularly files briefs amicus

curiae where the business community’s mght to political

speech is at stake. See WRTL I, Republican Party of Minn. v.

White, 536 U.S. 765 (2002); Elections Bd. of Wis. v. Wis.

Mjrs. & Commerce, 597 N.W.2d 721 (Wis. 1999); FEC v.

Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”).

And the Chamber, which is incorporated, also has litigated to

preserve its own First Amendment rights of speech and

association. See Chamber of Commerce of the United States

v. Moore, 288 F.3d 187 (Sth Cir. 2002); Chamber of

Commerce of the United States v. FEC, 69 F.3d 600 (D.C.

Cir. 1995).

This appeal affects the ability of the Chamber and its

members to exercise their core First Amendment rights to

speak to the public about active legislative issues when they

are being decided and to petition for redress from incumbent

elected officials who will do the deciding. Thus, the

Chamber’s special perspective and vital isiterests justify its

submission of this brief amicus curiae.

STATEMENT OF THE CASE

The First Amendment flatly says “Congress shall make no

law .. . abridging the freedom of speech . . . or the right to

petition the Government for a redress of grievances.” This

prohibition has its fullest and most urgent application to

public speech about how we govern ourselves. Buckley v.

Valeo, 424 U.S. 1, 14-15 (1976). When Congress makes a

law abridging such core First Amendinent rights, the courts

apply strict judiciai review to assure that s cuingent standards

are met, including these:

e First, the legislation must be narrowly tailored to

restrict no more core activity than is truly necessary to

achieve a compelling governmental purpose. /d. at

41 n.48. See also Nixon v. Shrink Mo. Gov't PAC,

528 U.S. 377, 387 (2000) (distinguishing between

the compelling interest Buckley required for limiting

expenditures and the “important interest” it accepted

vis-a-vis contributions).

e Second, the legislation must provide an objective

bright line that permits speakers to make confident

judgments in real time as to what is permitted and to

avoid chilling through uncertainty speech that the

government has no compelling need to bar. Buckley,

424 US. at 43-44; McConnell, 540 U.S. at 126, 194

(noting that Buckley “marked a bright statutory line

separating ‘express advocacy’ from ‘issue advocacy’”

and that Buckley’s vagueness problem did not arise

where the statutory “components are both easily

understood and objectively determinable.”).

Buckley and its progeny preserved several speech-restricting

provisions of FECA by construing them to apply only to

speech that used explicit words such as “vote for” or “defeat”

to expressly advocate the election or defeat of a clearly

identified federal candidate. 424 U.S. at 44 n.52; MCFL, 479

U.S. at 249-50 (1986). Congress concluded, however, that

the law was being circumvented by speech that lacked

explicit language but still was functionally equivalent to

express advocacy. So, it created a new category of restricted

speech called “electioneering communications,” to which it

gave a detailed objective definition, i.e., corporate speech

broadcast via specified media to at least 50,000 voters within

30 days before a primary or 60 days before a general election.

2 U.S.C. §§ 434(f)(3)(C), 441 b(b)(2).

In McConnell, a bare majority of this Court declined to

strike the new standard down on its face. 540 U.S. at 194,

205, 207. Vagueness was not at issue since the statute’s

objective criteria provided as much bright line guidance as

the express advocacy test. /d. at 194. But because the bright

line criteria easily could characterize speech that was not

candidate advocacy, narrow tailoring was disputed. The

McConnell majority found that (i) the bulk of electioneering

communications would be functionally equivalent to express

advocacy, and (ii) the plaintiffs had not proved the new

standard would encompass enough true grassroots or issue

advocacy to render it facially invalid. Jd. at 193-94, 206-07.

The Court did not explain why it required the plaintiffs to

prove overbreadth rather than following settled law requiring

the government to prove narrow tailoring. '

Following McConnell, Congress has continued to deal with

important issues during the 90 or so days that the elec-

tioneering communication standard bans most corporate

broadcasts that mention any incumbent seeking reelection.

For example, during the 60 days before the 2006 general

election, bills involving trademark dilution (H.R. 683), voter

fraud (H.R. 4844), immigration reform (H.R. 6095), port

security (H.R. 4954), and a constitutional amendment to

' See Republican Party of Minnesota v. White, 536 U.S. 765, 774-75

(2002) (government has “the burden to prove that the [speech restriction]

is (1) narrowly tailored, to serve (2) a compelling state interest . . . [by

demonstrating] it does not ‘unnecessarily circumscrib[e] protected expres

sion’”) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)); Eu v. San

Francisco County Democratic Central Committee, 489 U.S. 214, 222

(1989) (challenged law could “survive constitutional scrutiny only if the

State shows that it . . . is narrowly tailored.”).

? The blackout always will be at least for the 60 days before the general

election. If the relevant primary or convention is 30 days or more before

the general election, the total will be at least 90 days. If there is a runoff,

or if a broadcast signal reaches several relevant states, the total blackout"

period may be considerably longer.

balance the budget (H.J. Res. 98) all were pending before or

had been voted on by at least one house of Congress. Sim-

ilarly, during the 60 days before the 2004 general election, the

Senate and House of Representatives held a combined 157

roll call votes.’ Indeed, it-is-not tmusual for legislators to

maneuver to set sensitive votes in the election period. See,

e.g., Andrew Mollison, Votes on Guns, Marriage Slated;

GOP Leaders in House Push Symbolic Bills, Atlanta Journal-

Const., Sept. 28, 2004, at 3A.*

In WRTL I, the Court noted the FEC’: rulemaking power

under 2 U.S.C. § 434(f)(3)(B)(iv). WRTL J, 126 S. Ct. at

1017. On February 16, 2006, the Chamber joined with the

AFL-CIO, the Nationa] Education Association, the Alliance

for Justice, and OMB Watch in petitioning the FEC to initiate

a rulemaking to promulgate an exemption from the elec-

tioneering communication ban for at least some forms of

grassroots lobbying. On September 5, 2006, the FEC

published its decision “not to initiate a rulemaking.” 71 Fed.

Reg. 52295. The FEC said it preferred to await “judicial

guidance,” noting that the courts would have the last say

on what the First Amendment demands in any event. /d.

at 52296.”

* See United States Senate and United States House of Representatives

Roll Call Votes, 108th Cong.—2d Sess. (2004), http://www.senate.gov/

legislative/LIS/roll_call_lists/vote_menu_108 2.htm; _http://clerk.house.gov/

evs/2004/ROLL 400.asp; and http://clerk.house.gov/evs/2004/ROLL_500.

asp (last visited Man-12, 2007).

* Thus, the systematic data collected on pages 622-26 of the Joint

Appendix in McConnell v. FEC, 540 U.S. 93 (reproduced in the Appendix

to this brief), from the 2000 election was no fluke.

* The Federal Election Commission’s (“FEC”) advisory opinion proc-

ess is not a practical solution and the denial of rulemaking did not suggest

it was. The Federal Election Campaign Act (“FECA”) allows the agency

60 days to respond to a non-candidate inquiry. 2 U.S.C. § 437f{a). And

experience shows the agency often deadlocks in close questions. See, e.g.,

Letter from Lawrence Norton, FEC General Counsel to Cassandra

The ads of petitioner WRTL—discussed in detail in its

brief and in the district court opinion—illustrate a category of

core speech that the government has shown no compelling

reason to suppress. This case now calls on this Court

to provide a practical and effective remedy for genuine

grassroots and issue advocacy that is suppressed by the lack

of narrow tailoring in the electioneering communication

standard.

SUMMARY OF ARGUMENT

The First Amendment squarely protects the right of cor-

porations to petition the government for redress of grievances

and otherwise to speak out on public issues. That right is

vital to corporations and to members of the public who

benefit from business speech and petitioning. Although this

Court has accepted Congress’s claim that it has a compelling

need to limit some candidate advocacy by corporations, the

Court has insisted that such restrictions must survive the same

strict judicial scrutiny applicable to other limits on core First

Amendment speech.

McConnell’s surprising decision to treat the electioneering

communication ban as facially valid—without requiring the

government to prove it is narrowly tailored—gives height-

ened importance to as applied First Amendment challenges.

Unless efficient and practical as applied standards are

established, the electioneering communication provisions will

impose a de facto ban on core petitioning and speech the

government has no compelling need to suppress. Public

discourse and policy making moves rapidly. As a practical

matter, even a brief delay is as good as a ban for most

Lentchner, Attorney for Congressman Eliot Engel (Feb. 5, 2004) http://

saos.nictusa.com/aodocs/468090. pdf (noting that a 3-3 deadlock ended

the FEC’s consideration of the advisory opinion request). Administrative

agencies, of course, are not the stitutions with primary authority to

construe the Constitution, which is what an as applied challenge requires.

petitioning and speech. Efforts to limit, complicate, and

delay as applied review seek to eliminate as applied relief

through the back door.

This Court repeatedly has employed as applied litigation to

identify categories to which a facially valid standard cannot

lawfully apply. See infra Section III. It should do so here

as well.

Indeed, to provide practical benefits, this Court’s as applied

holding must provide a standard that is clear enough for

speakers to apply for themselves in real time. If any part of a

standard invites second guessing or differing opinions, the

resulting uncertainty and risk will create a de facto lack of

tailoring. To steer clear of possible civil and criminal

penalties, businesses will avoid core First Amendment

petitioning or issue advocacy that the government has no

compelling need to suppress.

In particular, the Court should avoid formulations such as

the “promote, attack, support, or oppose” standard, which

invite highly subjective second-guessing. McConnell did not

approve that formulation except as applied to political parties,

whose activities presumptively are electoral, 540 U.S. at 170

n.6, and this Court should not expand that holding to ordinary

corporations.

If, for some reason, the Court cannot adopt an objective

bright line, it should be explicit that its as applied standard is

not a substitute for the objective bright line required to

survive facial analysis under Buckley, but operates within the

primary bright line boundary drawn by the electionecring

communication standard. Clarity on this point is vital be-

cause many regulators of core speech, including the FEC,

resist bright lines and seize on any language of this Court that

they can construe to authorize a primary standard that turns

on impressionistic views of subjective factors.

The Court also should adopt a legal standard that can be

applied within the four corners of the proposed ad. The brief

time frame in which petitioning and issue advocacy must

occur cannot be accommodated by standards that call for

discovery. And the inherently imprecise and highly dis-

cretionary standards that govern preliminary injunctions

should not become the norm in a regime of judicial licensing

of core speech and petitioning. Instead, the controlling

standards themselves should be precise, objective, and easily

applied without discovery.

The facts presented by WRTL identify one common

circumstance to which the electioneering communication

standard does not properly apply. From time to time, elected

representatives will be dealing with an active legislative issue

in the 90 days prior to an election. Affected businesses must

be free to address such issues freely and to urge citizens who

agree to petition their incumbent elected officials for redress,

even if they happen to be seeking reelection (as incumbents

often do). Foreclosing such speech for 60 to 90 days or

more—an eternity in public debate—is truly Draconian.°

And permitting such true issue speech would not threaten the

interest in limiting corporate electoral advocacy relied on by

McConnell.

The Court doubtless will receive several suggestions as to

how to define a category of true grassroots petitioning and

issue advocacy that the government has not established a

compelling need to regulate. The district court’s description

° The Chamber expects that WRTL and other participants will discuss

why organizing and operating a PAC is a serious burden and often is

entirely impractical. For corporations that do not have a PAC in place or

whose PAC resources have been committed elsewhere, the e'ectioneering

communication provision will operate as a ban. In any event, this Court

has held that subjecting core speech to substantial burden is a prohibited

abridgment that must be justified by compelling necessity. See FEC v.

Mass. Citizens for Life, Inc., 479 U.S. 238, 263 (1986).

of the factors it considered is a useful start. Drawing on the

FEC rulemaking petition that the Chamber and other groups

joined in filing, the Chamber suggests this Court should

protect corporate speech where:

(i) the “clearly identified federal candidate” is an in-

cumbent public officeholder;

(ii) the communication exclusively discusses a partic-

ular current legislative or executive branch matter;

(iii) the communication either (a) calls upon the can-

didate 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

and urge the candidate to do so;

(iv) if the communication discusses the candidate’s

position or record on the matter, it does so only by

quoting the candidate’s own public statement or reciting

the candidate’s official action, such as a vote, on the

matter; |

(v) the communication does not refer to an election, the

candidate’s candidacy, or a political party; and

(vi) the communication does not refer to the candidate’s

character, qualifications or fitness for office.’

ARGUMENT

CORPORATE SPEECH AND PETITIONING .-

ARE PROTECTED BY THE CORE OF THE

FIRST AMENDMENT

This Court’s rulings that Congress has a compelling need

to regulate certain corporate speech do not suggest that

’ This final criterion may not be essential, but it was part of the group

proposal. If the Court employs it, the Court should explain that this factor

has to do with explicit and conclusive discussion and not with inferences

that may be drawn from speech permitted by the preceding factors.

corporations lack ful! First Amendment protection.* To the

contrary, this Court has been clear that the First Amendment

fully and strongly protects petitioning and speech by business

corporations. Thus, every restriction on such activity must be

strictly scrutinized in light of the compelling interests alleged

to make the restriction necessary.

The First Amendment right of business entities to petition

is so firmly established it has its own name—the Noerr-

Pennington doctrine. That doctrine was first formulated in

cases giving the antitrust laws a narrow construction to avoid

constitutional invalidity. See Eastern R.R. Presidents Con-

ference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);

United Mine Workers v. Pennington, 38\ U.S. 657 (1965);

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,

509-11 (1972). But it applies more broadly to prevent a wide

range of statutes from impairing the night of corporations to

seek redress from the government.

The right of petition includes the right to involve others in

the process and collectively to address government officials.

See supra at n.9. Thus, a business’s right of petition shades

into its fully protected First Amendment rights of association,

* Some day the Court doubtless will wish to revisit the supposedly

compelling reasons it has accepted for restricting corporate speech. The

notion that using the corporate form equates to great wealth is refuted by

the broad membership of the Chamber, which includes many small

business corporations that work hard to achieve modest success. And the

notion that federal campaign finance law should be used to protect

hypothetical shareholder expectations is both highly speculative and con-

trary to principles of federalism. In this brief, however, the Chamber

assumes the existing legal landscape.

” Sosa v. DirecTV, Inc., 437 F.3d 923, 934-35 (9th Cir. 2006), collects

authority from this Court and the courts of appeals establishing that (i) the

principle protects a broad range of corporate petitioning activity from all

sorts of restraining laws, and (1) the protection extends to speech to third

parties that is reasonably ancillary to the petitioning process.

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. at

510-11, and of free speech.

Business entities’ speech on public issues is “indispensable

to the effective and intelligent use of the processes of popular

government to shape the destiny of modern industrial soci-

ety,” Thornhill v. Alabama, 310 U.S. 88, 103 (1940), and is

part of “the free flow of information” the First Amendment

protects, Virginia State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748, 765 (1976). In

case after case, this Court has held that corporate speech -

merits the same high level of First Amendment protection

afforded to speech by individuals. See First Nat'l Bank of

Boston v. Bellotti, 435 U.S. 765, 786 (1978); Consol. Edison

Co. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 540 (1980);

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S.

1, 19 (1986); Austin v. Mich. Chamber of Commerce, 494

U.S. 652, 657, 699-701 (1990) (unanimous as to “strict

scrutiny” standard of review); McConnell, 540 U.S. at 330

(Kennedy, J., dissenting) (“All parties agree strict scrutiny

applies... .”).

The First Amendment protects “speech” rather than merely

speakers, and the process of meaningful speech also involves

listening. Thus, the right of free speech includes the right of

willing listeners to receive information from willing speakers,

including business corporations. See Bellotti, 435 U.S. at 783

(“the First Amendment goes beyond protection of the press

and the self-expression of individuals to prohibit government

from limiting the stock of information from which members

of the public may draw”); Martin v. City of Struthers, 319

U.S. 141, 143 (1943) (“This freedom [of speech and press]. . .

necessarily protects the right to receive it.”) (internal citation

omitted). In particular, the First Amendment protects the

right to receive political, social, and other information related

to the functioning of government, see Kleindienst v. Mandel,

408 U.S. 753, 763 (1972) (citing Red Lion Broadcasting Co.

v. FCC, 395 U.S. 367, 390 (1969)), including information

about “candidates, structures and forms of government, the

manner in which pZovernment is operated or should be

operated, and all such matters relating to political processes.”

Mills v. Alabama, 384 U.S. 214, 218-19 (1966). Without

such a right, the First Amendment’s universally recognized

purpose of assuring free discussion of public affairs so that

truth will ultimately prevail cannot be achieved. See id.;

Kleindienst, 408 U.S. at 763 (citing Red Lion Broad. Co., 395

U.S. at 390)."°

In short, corporate speech on public issues receives the

same high degree of First Amendment protection as speech

by individuals. Although McConnell sustained the pro-

hibition on corporate electioneering communications, it did

so because Buckley had recognized “the Government has a

compelling interest in regulating [corporate] advertisements

that expressly advocate the election or defeat of a candidate

for federal office” and electioneering communications “are

the functional equivalent of express advocacy.” 540 U.S. at

205-06. But that rationale implies its own limit—suppression

of core speech and petitioning by business corporations must

be no broader than is strictly necessary to serve the com-

pelling interests recognized in Buckley and McConnell.

Applying the electioneering communication ban to corporate

petitioning and speech that is not functionally equivalent to

express advocacy is unconstitutional."

'° As this discussion demonstrates, business discussion of issues is -

entitled to the highest level of protection, not the lesser protection

sometimes afforded to “commercial speech.” But even commercial

speech is highly protected. See Greater New Orleans Broad. Ass'n y.

United States, 527 U.S. 173, 187-88 (1999).

'' As noted supra at 1-2, the fact that Congress allows limited direct

candidate advocacy via corporate PACs does not provide a rationale for

limiting other core corporate speech or petitioning. First, PACs are

burdensome and not established by the great majonty of corporations.

Il. McCONNELL RECOGNIZED THAT THE ELEC-

TIONEERING COMMUNICATION Si ANDARD

SWEEPS IN SPEECH THAT IS NOT FUNC-

TIONALLY EQUIVALENT TO EXPRESS

ADVOCACY

Where the First Amendment’s core provision is set aside to

serve compelling necessity, that need must be precisely

defined to mark out the limits of permissible suppression of

speech. McConnell simply applied prior rulings finding the

government had established a compelling governmental

interest in limiting candidate advocacy by business corpora-

tions to protect candidate elections from corruption that

threatens the link between the popular will and those who

govern. 540 U.S. at 205-06 & n.88 (“unusually important

interests [in] ‘[p]reserving the integrity of the electoral

process’”’) (citing and quoting Bellotti, 435 U.S. at 788-89).

But the Court has never found a compelling need to regu-

late corporate petitioning or issue speech that does not

advocate for or against candidates. To the contrary, it

repeatedly has protected issue advocacy by business corpora-

tions. For example, Bellotti flatly rejected any notion that

“speech that otherwise would be within the protection of the

First Amendment loses that protection simply because its

source is a corporation.” 435 U.S. at 784. Emphasizing that

First Amendment rights have “particular significance with

respect to government,” id. at 777 n.11, Bellotti held that the

state had no compelling need to forbid corporate issue

advocacy.

Similarly, Consolidated Edison Co. found no justification

for preventing even a regulated corporate monopoly from

Second, PACs are the only way corporations may exercise, to a limited

extent, the core right of candidate advocacy. Forcing corporations to

divert PAC funds to grassroots petitioning or true issue advocacy would

impair core speech without any compelling necessity.

addressing “controversial issues of public policy.” 447 U.S.

at 537. Stressing that the corporate nature of a speaker does

not undermine the “inherent worth of the speech in terms of

its capacity for informing the public,” it forbade the state to

interfere with the corporation’s use of space in its billing

envelopes for issue advocacy. /d. at 533 (quoting Bellotti,

435 U.S. at 777).

Similarly, the Noerr-Pennington line of cases protect the

petitioning rights of business corporations. That night has

been protected against restriction by general statutes forbid-

ding antitrust conspiracies, unfair labor practices, and a range

of other purposes. See supra at 11.

Buckley understood that the government’s legitimate con-

cern was limited to candidate advocacy rather than true issue

speech. Thus, in crafting a narrowing construction intended

to cure vagueness and overbreadth, Buckley focused on

speech using explicit words that expressly advocated the

election or defeat of clearly identified candidates. 424 US. at

43-44.

When Congress concluded that the express advocacy

standard proved ineffective in restricting corporate candidate

advocacy, Congress created and McConnell approved the

electioneering communication standard. McConnell con-

cluded that issue speech was not so rigidly protected that

merely adopting the form of issue speech precluded all

regulation. 540 U.S. at 193. Instead, the question was one of

substance: the government was equally entitled to reach so-

'? The corporate form of certain nonprofit organizations is disregarded

for purposes of the restrictions at issue in this case. See 11 C.F.R.

§ 114.10 (exempting MCFL corporations from electioneering communi-

cation ban). Like the vast majority of corporations, WRTL is not an

MCFL organization. This case, like First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978), and Consolidated Edison Co. v. Public

Service Commission of New York, 447 U.S. 530 (1980), concerns

restrictions on the speech of all corporations.

called sham issue ads that had the same function as express

corporate advocacy. /d.

McConnell recognized the limits of its holding. In re-

sponse to arguments that “the justifications that adequately

support the regulation of express advocacy do not apply to

significant quantities of speech encompassed by the definition

of electioneering communications,” McConnell responded:

This argument fails to the extent. that the issue ads

broadcast during the 30- and 60-day periods preceding

federal primary and general elections are the functional

equivalent of express advocacy. The justifications for

the regulation of express advocacy apply equally to ads

aired during those periods if the ads are intended to

influence the voters’ decisions and have that effect.

Id. at 206 (emphasis added). Thus, McConnell did not hold

that the Government had justified suppressing all election-

eering communications. Instead, the need to regulate de-

pended on whether the ads, in fact, functioned as express

advocacy.

Ironically, having held that the government’s reed to

suppress speech was determined by its substance—func-

tioning as candidate advocacy—McConnell sustained an

electioneering communication standard that, unlike the ex-

press advocacy standard, turned on issues of form. /d.

Although McConnell concluded that the formal incidents

specified by the electioneering communication standard often

are markers for candidate advocacy, the Court recognized this

is not always so. /d. at 206-07. In this significant respect the

electioneering communication standard differed from the

express advocacy standard—speech that uses explicit lan-

guage to expressly advocate the election or defeat of a clearly

identified candidate inherently will be candidate advocacy.

McConnell acknowledged that “the interests that justify the

regulation of campaign speech might not apply to the regu-

lation of genuine issue ads.” Id. at 206 n.88 (emphasis

added).'? In fact, the record in McConnell included evidence

of such genuine issue speech by corporations. See, e.g.,

McConnell J.A. at 328 (the Chamber supported ads “that

urged Senator Daschle to schedule a Senate vote on Eugene

Scalia’s nomination as Solicitor of Labor”), 286 (the National

Association of Manufactures ran ads supporting the Presi-

dent’s tax proposal and “referred to the proposal as being that

of the President”).

Nonetheless, the Court held the electioneering commu-

nication standard was not facially void because “the vast

majority” of ads within its language were the “functional

equivalent” of express advocacy. McConnell, 540 U.S. at

206; see also Colo. Right to Life Comm., Inc. v. Davidson,

395 F. Supp. 2d 1001, 1020 (D. Colo. 2005) (“if the govern-

ment wishes to justify a regulation of corporate political

activity under [McConnell], it must demonstrate that the regu-

lated activity is ‘the functional equivalent of express advo-

cacy.””). McConnell did not discuss, however, whether the

government had shown the statute to be narrowly tailored.

Instead, it held that the plaintiffs had not proved the election-

eering communication standard to be intolerably overbroad.

540 U.S. at 207. As noted above, this was < surprising

departure from settled precedent placing the burden on the

government to prove narrow tailoring. See supra at 5.

In sum, McConnell approved regulation of electioneering

communications only to the extent they constituted the func-

tional equivalent of express candidate advocacy. McConnell

did not find any compelling need to suppress genuine

'* Context makes clear that McConnell uses “genuine issue ads” to —

distinguish speech that is the “functional equivalent” of express advocacy.

To illustrate the “so-called issue advocacy” targeted by the electioneering

communication standard, McConnell quoted an ad that accused a can-

didate of beating his wife and failing to support his children. 540 U.S. at

193-94 n.78.

corporate issue speech, recognized that such speech might

well be suppressed by the electioneering communication ban,

and held that the plaintiffs there had not proved how much

such speech might exist.

Iil. AS APPLIED HOLDINGS OFTEN DO, AND IN

THIS CASE SHOULD, ESTABLISH CATE-

GORICAL STANDARDS THAT MINIMIZE

FUTURE LITIGATION

Public discourse moves swiftly. And while the legislative

process is ponderous, the moments where grassroots peti-

tioning may make a difference often are fleeting. Thus, there

would be little benefit from a holding here that left future

business speakers with nothing more than a ticket to a lengthy

lawsuit.

But that need not be the result. Instead, as applied chal-

lenges regularly are used by this Court to establish standards,

tests, and categories that provide meaningful future protection

without litigation for entire categories of speech.

For example, Edenfield v. Fane, 507 U.S. 761 (1993),

entertained a challenge to promotional activities by Certified

Public Accountants. The Court accepted that there could be a

need to protect individuals from such activities. cut because

businesses tend to be more sophisticated and less vulnerable,

the Court held that “as applied to CPA solicitation in the

business context,” the statute violated the First Amendment.

Id. at 763; see also United States v. Edge Broad. Co., 509

U.S. 418, 431 (1993) (Fane sustained an “as applied chal-

lenge to a broad category of commercial solicitation”);

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)

(holding an obscenity statute invalid as applied to some

definitions of “lust” but not others).

Similarly, Colorado Republican Federal Campaign Com-

mittee v. FEC, 518 U.S. 604, 620-22 (1996), held that general

spending restrictions could not be applied to “independent

expenditures” by political committees. And United States v.

National Treasury Employees Union, 513 U.S. 454 (1995),

held that a restriction on honoraria violated the First

. Amendment as applied to federal employees in lower pay

grades. There, although Justice O’Connor’s partial dissent

preferred to describe a different category of protected speech,

she accepted the basic approach, saying:

There is a commonsense appeal to the Government’s

argument that, having deemed a particular application of

a statute unconstitutional, a court should not then throw

up its hands and despair of delineating the area of un-

constitutionality.

513 U.S. at 486.

The Court must decide how broadly the record and pres-

entation of a particular as applied challenge allows the Court

to rule. But to the extent it can, the Court should address this

case in a way that provides clear and practical guidance for

the future.

Such an approach is particularly important because of the

nature and importance of the mghts at stake. As Buckley

recognized, core First Amendment activity is easily chilled by

the threat of criminal or civil penalties. 424 U.S. at 41 n.48.

That is particularly true of America’s businesses, the vast

majority of which take great pains to avoid even the

appearance of a violation and tend to steer far wide of any

possible violation. See, e.g., Office Politics: the Growing

Impact of Campaign Finance and Election Law Regulations

on Corporations, Metropolitan Corp. Counsel 35 (Dec. 2005).

As a result, uncertainty in the law regulating corporate peti-

tioning and speech imposes a de facto ban on speech the

government has no need to restrict. See Buckley, 424 U.S. at

41 n.48.

IV. THE WRTL ADS ILLUSTRATE A CATEGORY

OF CORPORATE SPEECH TO WHICH THE

ELECTIONEERING COMMUNICATION BAN

CANNOT CONSTITUTIONALLY BE APPLIED

The specific circumstances presented by WRTL illustrate a

category of corporate speech to which the electioneering

communication standard cannot constitutionally be applied. '*

In defining that category, the Court should reject criteria that

have the practical effect of defeating as applied protection for

speech and petitioning.

A. That category consists of speech that merely

addresses a current legislative issue and that

refers to candidates only in their capacity as

incumbent elected officials with responsibility

for the issue being discussed.

In the FEC rulemaking petition, the Chamber and other

petitioners suggested that one category of corporate speech to

which the electioneering communication standard does not

properly apply has the following defining characteristics:

(i) the “clearly identified federal candidate” is an incumbent

public officeholder; (ii) the communication exclusively dis-

cusses a particular current legislative or executive branch

matter; (111) the communication either (a) calls upon the

candidate to take a particular position or action with respeet

to the matter in his or her incumbent capacity, or (b) calls

upon the general public to contact the candidate and urge the

candidate to do so; (iv) if the communication discusses the

'* Of course, there is no need for the Court to identify all categories to

which a standard may not be applied. The Court may proceed incre-

mentally as particular challenges illuminate particular categories that

should be protected from the general rule. However, given the First

Amendment imperative to suppress no speech unnecessarily, the Court

should not be unduly restrained in identifying the categories or principles

that justify as applied protection.

candidate’s position or record on the matter, it does so only

by quoting the candidate’s own public statement or reciting

the candidate’s official action, such as a vote, on the matter;

(v) the communication does not refer to an election, the

candidate’s candidacy, or a political party; and (vi) the

communication does not refer to the candidate’s character,

qualifications or fitness for office. '°

A legislative issue is current at least when it is pending for

action during the electioneering communication blackout

period or is likely to be so in the near future. For example,

the judicial filibuster issue addressed by the WRTL ads was

active because filibustered nominations were pending in the

Senate, the Senate remained in session, and Senators were

actively considering potential solutions. Such a current

legislative issue urgently and logically justifies discussion

during the blackout period and is not mere “past history”

dredged up as a pretext for candidate advocacy.

Incumbent legislators who have responsibility for acting on

such an active issue are logical and necessary persons to be

named in such issue discussions. By contrast, there is little

need to identify a candidate who does not hold office at the

time. In the case of the WRTL ads, whom else should

viewers in Wisconsin petition to end judicial filibusters than

their own elected Senators? Referring to elected repre-

sentatives only in that role, and not as candidates or the

subject of electoral exhortation, allows effective petitioning

without inviting candidate campaigning.

'S This definition accommodates the same concerns as the district

court’s reference to whether the ad “exhorts the listener to do anything

other than contact the candidate about the described issue,” Appendix to

the Jurisdictional Statement (“J.S. App.”) 22a, except it makes clear the

issue itself may be analyzed and that the call for action may be broader

than simply contacting the candidate. For example, if the WRTL ad had

said “write your newspaper, talk to your neighbors, and call your Senators

to tell them... ,” it still would have been a genuine issue ad.

Quoting a candidate’s own public statements, or reciting

his or her own official acts, without further commentary, can

provide useful context and explain why a grassroots contact

to that person makes sense. And such a presentation does not

threaten the rationale of McConnell.

A holding that used such elements to identify true issue

advocacy would be clear enough to permit substantial real

time application by corporations and to permit swift adju-

dication if thought necessary.'® It would not be clear enough

to replace the bright line that this Court holds essential

to regulating core speech, Buckley, 424 U.S. at 42-44.

However, operating within the bright line established by the

electioneering communication standard, it will mitigate that

standard’s lack of narrow tailoring and protect at least some

core petitioning and speech Congress has no compelling need

to regulate.

To a limited but vital extent, such a ruling would restore

the core First Amendment right of the Chamber and other

business organizations to speak out on active legislative

issues of importance to the business community whenever

they arise. See supra at 17 (regarding ads urging Senate votes

on federal nominees and ads supporting the President’s

proposed tax plans). It also would avoid incentivising

incumbent federal office holders to shield their official acts

from public criticism by scheduling them during the elec-

tioneering communication blackout period.

speech would not justify suppression. The Chamber submits that most of

these factors simply are not necessary and would pointlessly circumscribe

this Court’s delineation of the protected category.

B. The definition should not employ standards

that deny clarity or invite delay and litigation

burden.

The WRTL district court’s analysis mentioned several other

considerations in concluding that the electioneering commu-

nication ban could not constitutionally be applied to the

WRITL ads. If the Court deems any such elaboration nec-

essary, it will be critical to avoid any formulation that denies

clarity or invites delay and litigation burden.

1. Subjective elements should be excluded.

The district court explicitly and wisely declined to make

protection turn on its assessment of WRTL’s organizational

motives or on the predicted perceptions of possible viewers of

the ads. Many considerations support this outcome.

As Buckley discussed, speakers cannot be expected to

predict with confidence how subjective factors will be judged

or what predicted reactions will be attributed to their

audiences. 424 U.S. at 43. In that case, the D.C. Circuit had

proposed to define the statutory phrase “relative to” an

election to mean speech “advocating the election or defeat of

a candidate.” /d. at 42.

Buckley held such a standard to be unconstitutionally vague

because speakers could not confidently predict how their

“intent” would be assessed, or what “effect” their speech

might be deemed to have. /d. at 42-43. Such a test “puts the

speaker . . . wholly at the mercy of the varied understandings

of his hearers and consequently of whatever inferences may

be drawn as to his intent and meaning.” /d. at 43 (quoting

Thomas v. Collins, 323 U.S. 516, 535 (1945)). It “offers no

security for free discussion [and] . . . blankets with uncer-

tainty whatever may be said.” /d. It compels the speaker to

“hedge and trim,” id., and to “steer far wider . . . than if the

boundaries of the forbidden areas were clearly marked,” id. at

41 n.47 (quoting and citing other authority).

Motive is a particularly problematic consideration with

respect to corporations or similar organizations that are

controlled by and act through multiple individuals with

potentially differing goals. How should subjective hopes of

various corporate officers, executives, directors, and share-

holders be weighed to determine the motives of a corpo-

ration? And how can a corporate decision-maker be con-

‘fident that he or she knows the subjective positions of

everyone involved? The fact that such a judgment is required

for purposes of some laws does not alter the fact that

organizational motive is difficult to assess and is a very

undesirable standard for an area where bright lines are

essential.

Moreover, because motives and predicted reactions are not

observable, objective facts, th., invite extensive discovery to

find inferential proof. Many speakers would rather stand

silent than accept intrusive and burdensome document

production and depositions. Moreover, as already noted, the

time required by such discovery often will make as applied

relief illusory.

Finally, it is difficult to identify a compelling interest that

turns on a speaker’s subjective motivations.'* Admittedly,

'’ The extent to which this Court has found First Amendment consid-

erations to demand greater precision than due process generally turns on

how close the speech that may be chilled by deterrence lies to the core of

the First Amendment’s protections. It has been somewhat less concerned,

for example, that imprecision in the definition of obscenity may chill

some near obscenity, or that imprecision in defining the additional factors

that convert false speech into defamation may chill some false speech that

is not strictly defamatory, though even in these areas it strives for preci-

sion. In the present context, all potentially chilled speech and petitioning

lies at the heart of the First Amendment and, hence, must receive

maximum protection from de facto prohibition via uncertainty.

McConnell repeatedly referred to the “intent” of “sham” ads.

But it did so to determine the likely characteristics of an

entire class of activity, not as a standard to be applied to

regulate specific speech. The standard that was approved was

the electioneering communication standard, not an ad hoc

assessment of motive, intent, or predicted effect. This Court

should strive to provide bright line guidance. '°

2. The PASO standard should be avoided or

objectively defined.

The district court considered whether the ad text “pro-

motes, attacks, supports, or opposes” the named candidate.

Appendix to the Jurisdictional Statement (“J.S. App.”’) at 22a.

Facially, this standard invites inferences about the speaker’s

subjective intent or likely viewer reaction. For the reasons

just discussed, this PASO standard would be very troubling.

The Brief for Amici Curiae The League of Women Voters,

et. al., demonstrates (at 10-12) that the PASO standard has

been upheld only with respect to political parties, and clearly

fails the “much stricter vagueness standard” that Buckley

demanded in other contexts. Indeed, the natural meaning of

the terms involves predictions about subjective intent and

predicted understanding that the district court sought to avoid.

'* A subjective intent element may assure that a speaker is aware of the

objectionable quality of speech, and thus minimize chill. See United

States v. Cassel, 408 F.3d 622, 631-33 (9th Cir. 2005) (discussing author-

ities on the role of intent); Cal. Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508, 509-11 (1972) (holding that the sham exception to Noerr-

Pennington protection required proof of both objective baselessness and

objective bad faith). The intent element here, however, is being proposed

to increase—trather than reduce—uncertainty.

'? Bright lines are important to avoid suppression through uncertainty

of speech that Congress has no compelling need to suppress. It would be

a perversion to hold that Congress could suppress more speech than

otherwise to provide a bright line. The ultimate objective must be to

suppress no more speech and-petitioning than is essential.

If the Court’s goal is to-define a category with sufficient

clarity that most speakers can apply it for themselves in real

time, and that the FEC and courts can apply swiftly and

consistently when disputes arise, the PASO standard falls

short for all the reasons Buckley explained and the League of

Women Voters brief discusses.

Alternatively, if the Court concludes that the PASO

standard or something like it is necessary, it should make

clear that the standard requires an objective assessment within

the four corners of the ad and does not permit speculation

over what might have been intended or what might be

perceived. The advocacy should be clear and certain on the

face of the ad.

The Chamber also respectfully urges the Court to state

expressly it is not adopting any such formula as a primary

standard that could substitute for the electioneering commu-

nication or express advocacy standards. This is critical

because (i) many state campaign finance statutes around the

country continue to use the same vague language that Buckley

construed to require express advocacy as well as elements of

the PASO standard, e.g., La. Rev. Stat. Ann. § 18:1483(9)(a)

(“‘Expenditure’ means... anything of value made for the

purpose of supporting, opposing, or otherwise influencing the

nomination or election of a person to public office .. .”);

(ii) already, McConnell has been misconstrued to hold that

“holistic” approaches like PASO are sufficient when regu-

lating political speech, e.g., Center for Individual Freedom v.

Carmouche, 449 F.3d 655, 665 (Sth Cir. 2006), cert. denied,

127 S. Ct. 938 (2007); (iii) similar arguments are common in

state proceedings, e.g., Brief of Respondents at 20, Voters

Education Committee v. Washington State Public Disclosure

Commission, No. 77724-1 (Wash. filed Feb. 16, 2006) (citing

McConnell for the proposition that “the United States

Supreme Court has. determined that the particular terms

‘support’ and ‘oppose’ are not vague’); and even the FEC

has misconstrued McConnell to relax Buckley’s vagueness

standard, e.g., Press Release, FEC, Sierra Club Agrees to Pay

Civil Penalty for Violation of Federal Campaign Law

(Nov. 15, 2006), http://www.fec.gov/press/press2006/2006

111Smur.html.”°

The Chamber does not ask this Court to address these other

Situations. Instead, it asks the Court to make explicit the

limits on any role that it may approve for a PASO type

standard here.

3. Analysis should occur within the four corners

of the ad.

The district court said it was limiting its analysis to the four

corners of the ad, explaining that a broader analysis would

reduce uncertainty and invite litigation delay. J.S. App. 19a-

22a. More precisely, the court examined the four corners of

the ad in light of information about Congressional activity

that could be judicially noticed, e.g., whether judicial fili-

bustering was an active issue.

The definition the Chamber proposes above lends itself to a

similarly focused analysis, with the caveat that the court’s

judicial notice should not be aggressive in second-guessing

the existence of an active legislative issue. If objective facts

such as pending bills, statements from legislative leaders, or

similar sources indicate an issue is or shortly will become

active, that should suffice.

that the “communication does not refer to the candidate’s character,

qualifications, or fitness for office.” This standard is intended to be

applied strictly, and not to allow regulators to “infer” that a candidate is

implicitly criticized. With the other elements in place, such a strict

standard does not invite the easy circumvention of the express advocacy

standard and avoids the uncertainty of a PASO standard. The Court may

conclude that this sixth factor is not essential.

This four corners approach is vital for at least two reasons.

First, it provides a fixed basis for self application and real

time judgments. One certainty about both elections and

public discourse is that circumstances change rapidly. A

speaker cannot be sure that the facts existing when an ad is

planned will exist when it has been produced, distributed and

run. Nor can a speaker be sure what surrounding facts a

regulator later may deem significant.

Second, if pre-speech litigation is thought necessary, it

allows some hope that a result can be achieved within a

useful time frame. From 40,000 feet it may seem like a

district court should be able to target, expedite, and conclude

discovery promptly, but that is not the real world. To begin

with, federal courts have many conflicting demands,

including criminal matters that have a constitutional claim to

expedition under the Sixth Amendment’s speedy trial guar-

antee. Moreover, the defendant typically will be the gov-

ernment, and for a variety of reasons, such litigation always

moves slower. Some extraordinary judges may achieve

speedy discovery in some exceptional cases, but core First

Amendment nghts should not be held hostage to the need for

such extraordinary efforts unless there is no other alternative.

These difficulties cannot be avoided by placing primary

reliance on temporary restraining orders or temporary

injunctions. Such procedures themselves take time. More-

over, they are inherently imprecise and approximate, and vest

a large quantum of discretion in the district judge. Such

interlocutory procedures are a vital backstop, but they should

not become a primary method for vindicating core First

Amendment rights.

Importantly, in the context of the definition the Chamber has

proposed, a four-corners standard does not amount to a revived

express advocacy test. The limits of express advocacy were

entirely avoided so long as a narrow class of words did not

appear. By contrast, the other elements of the Chamber’s

suggested standard allow only a few limited types of infor-

mation to be included. The record contains no evidence that a

four-comers approach would result in such ads being used as

the functional equivalent of express advocacy. -

CONCLUSION

For the foregoing reasons, the judgment of the lower court

should be affirmed and the Court should hold that the

electioneering communication ban cannot constitutionally be

applied to corporate speech where (i) the “clearly identified

federal candidate” is an incumbent public officeholder;

(ii) the communication exclusively discusses a particular cur-

rent legislative or executive branch matter; (iii) the communi-

cation either (a) calls upon the candidate 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 and urge the candidate to do so; (iv) if

the communication discusses the candidate’s position or

record on the matter, it does so only by quoting the can-

didate’s own public statement or reciting the candidate’s

official action, such as a vote, on the matter; (v) the

communication does not refer to an election, the candidaté’s

candidacy, or a political party; and (vi) the communication

does not refer to the candidate’s character, qualifications or

fitness for office.

Respectfully submitted,

Of counsel: : JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

CALEB P. BURNS

STEVEN J. LAW

CHIEF LEGAL OFFICER AND

GENERAL COUNSEL

, WILEY REIN LLP

U.S. CHAMBER OF COMMERCE 1776 K Street, N.W.

ROBIN S. CONRAD Washington, D.C._20006

SENIOR VICE PRESIDENT (202) 719-7000 ,

NATIONAL CHAMBER

icus Curi

LITIGATION CENTER, INC. Counsel for Amicus Curiae

AMAR D. SARWAL

GENERAL LITIGATION

COUNSEL

NATIONAL CHAMBER

LITIGATION CENTER, INC.

JUDITH K. RICHMOND

VICE PRESIDENT AND

ASSOCIATE GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

March 23, 2007

APPENDIX

106th Congress

Congressional Action During the 60 Days Prior to

November Election on Bills of interest tc the ACLU

apital Punis nt:

“Sense of Congress” regarding the obligation of

grantee states to ensure access to post-conviction

DNA testing and competent counsel in capital

cases (Amdt. 4345 to S. 3045): Introduced in the

Senate on 10/26/2000.

Chruch-State: [sic]

Bill to protect religious groups in land-use dis-

putes (S 2869) signed by the President on

9/22/2000; P.L. 106-274.

Allows faith-based organizations to receive fed-

eral support for programs to help low income

fathers get more involved in their families’ lives

(HR 4678): Passed House 9/7/2000.

Criminal Justice:

Provide grants to states to process backlog

of DNA evidence (HR 4640): Passed House

10/2/2000.

Pressure states into requiring HIV testing of rape

suspects who have been formally charged, by

threatening to withhold federal crime-fighting

block grant money (HR 3088): Passed House

10/2/2000.

Aimee’s Law: cuts federal crime fighting money

to states if convicted murderers & rapists did not

serve stiff sentences and went on to commit

offense in another state (part of HR 3244):

Passed Senate 10/11/2000.

Gay and Lesbian Issues:

e Repeal federal charter of Boy Scouts, in reaction

to Supreme Court: decision that allows Boy

Scouts to discriminate against homosexuals (HR

4892): Defeated in House 9/13/2000.

e Prohibit using local or federal funds for needle

exchange (amendment to HR 4942): Passed

House 9/27/2000.

e Prohibit the use of Federal funds for the conduct

or support of programs of HIV testing that fail to

make every reasonable effort to inform the

individuals of the results of the testing (HR

5615): Introduced in the House on 10/11/2000.

Hate Crimes:

e Expansion of federal hate crimes law (amend-

ment to S 2549): House voted to instruct con-

ferees to accept amendment 9/13/2000; conferees

dropped language from bill 10/5/2000.

Immigration:

e Allow some immigrants who committed minor

crimes long ago to apply to stay in US and not be

deported; part of “Fix *96” (HR 5062); Passed

House 9/19/2000.

Internet Filtering

e Force schools and libraries to use technology

protection measures to block access by children

to web pornography (amendment to HR 4577):

Conferees added this provision to the bill

10/23/2000.

Media & Violence

e Require violent TV programming be limited to

hours when children are not likely to be a

substantial part of audience (S 876): Approved

by Senate Commerce committee 9/20/2000.

Physician-Assisted Suicide:

e Overturns Oregon’s law that permits physician-

assisted suicide (amendment to HR 2614):

Passed House 10/26/2000; Filibustered in Senate

10/27/2000.

Privacy:

e Restrictions on law enforcement use of electronic

surveillance (HR 5018): Approved by House

Judiciary subcommittee 9/14/2000; Mark-up by

House Judiciary committee 9/20/2000.

e Creation of commission to study issue of privacy

on the internet (HR 4049): Defeated in House

10/2/2000: failed to get 2/3’s majority needed for

passage under suspension of rules.

e Prohibit the appearance of Social Security ac-

count numbers on or through unopened mailings

of checks (HR 3218): Passed House 10/18/2000;

Passed Senate 10/25/2000.

e Enhance privacy protections for individuals, and

to prevent fraudulent misuse of Social Security

account numbers (HR 4857): House full

committee mark up on 9/28/2000.

Reproductive Rights:

e Funding prohibition in DC Approp. (HR 4942;

HR 5633): Passed both House and Senate on

11/14/2000.

e “Conscience clause” to employee-sponsored

health plans coverage of contraceptives (amend-

ment to HR 4942): Passed House 9/14/2000.

e Abortion restrictions on international family

planning aid (HR 4811): Conference Committee

appointed 10/19/2000; House debates conference

report 10/25/2000;

e Define “human being;” seeks to protect humans

born alive at any stage of pregnancy (HR 4292):

Passed House 9/26/2000.

e Prevent abortion protestors convicted of violent

crimes from seeking bankruptcy protection to

avoid paying hefty legal penalties (amendment to

S 3046): Senate voted to proceed with debate on

10/19/2000.

e Prohibit use of funds to distribute postcoital

emergency contraception “morning after pill” on

elementary or secondary school premises (HR

4577, Labor/HHS Approp.): Pre. Coburn an-

nounces intention to offer motion to instruct

House conferees on this amendment on

9/18/2000.

Secret Evidence

e Makes it harder for INS to use secret evidence to

deport immigrants or to deny tem [sic] asylum

(HR 2121): Approved by House Judiciary

Committee 9/26/2000.

Terrorism

e Provide clearer coverage over threats against

former Presidents and members of their families”

(HR 3048): House disagreed with certain Senate

amendments on 10/25/2000.

Trafficking Victims:

e Combat trafficking of persons, especially into the

sex trade, slavery, and slavery-like conditions

(HR 3244): Passed Senate 10/11/2000.

Violence Against Women:

e Reauthorization of VAWA (HR 1248): Passed

House 9/26/2000; Passed Senate as par [sic] of

HR 3244 0/11/2000 [sic].

Voting Reform

e Proposing a constitutional amendment to abolish

the electoral college and to provide for the direct

popular election (SJRes 56): Introduced in the

Senate on 11/01/2000. Proposing a constitu-

tional amendment to abolish the electoral college

(HJRes 113): Introduced in the House on

10/12/2000.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.