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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 449

## Text

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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)

il
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
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STATEMENT OF THE CASE .....ccscccsoscosssorcsercssssseseee
SUMMARY OF ARGUMENT ........cccecceeeceeeeeeeeees
eT cnteihetnicicinientiianictiincnaineiinnsiinpaauinenetenmpsene

I,

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 <

10

10

14

18

20

20

iV
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

Vv

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

vi
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. -

2

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

4

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).

5

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.

6

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.

8

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.

9

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).

10

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.

I]

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.

12

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.

13

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.

14

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.

15

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.

16
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-

17

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.

18

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

19

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.

20

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.

21

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.

22

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.

'© WRTL offers a list of further criteria confirming that its proposed —
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.

23

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

24

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.

25

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.

26

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

27

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.

© The sixth factor proposed by the Chamber above, supra at 20-21, is
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.

28

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

29

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

30

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

la
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.

2a
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.

3a

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.

4a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A16. Public record. Not legal advice.