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

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Nos. 06-969 & 06-970

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION, Appellant,

WISCONSIN RIGHT TO LIFE, INC., Appellee.

SENATOR JOHN MCCAIN, ET AL., Appellants,

WISCONSIN RIGHT TO LIFE, INC., Appellee.

On Appeal from the

United States District Court

for the District of Columbia

BRIEF AMICI CURIAE OF COMMITTEE

FOR ECONOMIC DEVELOPMENT,

NORMAN ORNSTEIN, THOMAS MANN,

AND ANTHONY CORRADO

IN SUPPORT OF APPELLANTS

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

PAUL A. WERNER

HOGAN & HARTSON L.L.P.

555 Thirteenth Street. N.W.

Washington, D.C. 20004

(202) 637-5810

Counsel tor Amici Curiae

WiLSON-EPES PRINTING CO.. INC. - (202) 789-0096 -— WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......cccsscsssossssscessseesnsesoyees ii

STATEMENT OF INTEREST OF AMICI CURIAE....... 1

Te Ee RIT AES I 2

SUMMARY OF ARGUMENT «.ccccccccccccccssccosccccsececseeeeee 6

RR LORE RS ae eT oe: ON 7

1. BCRA SECTION 203 CLOSED A LOOPHOLE

IN THE FEDERAL CAMPAIGN FINANCE

REGIME THAT CORPORATIONS AND

UNIONS HAD EXPLOITED IN PREVIOUS

NE ALA RR 7

Il. THE LOWER COURT’S REVIEW DEPARTS

FROM THIS COURT’S PRECEDENTS AND

THREATENS TO RE-OPEN THE LOOPHOLE

CLOSED BY BCRA SECTION 203 cocc-cccccccccccesseeeee 24

Ill, WRTL’S ADS ARE THE VERY TYPE OF

COMMUNICATIONS BCRA SECTION 203 IS

DESIGNED TO PROHIBIT. ...-....c-ccccccccsccccssscccesceece 29

i ea 30

(1)

TABLE OF AUTHORITIES

Page

CASES:

Austin v. Michigan Chamber of Commerce, 494 U.S.

a ED ichintlsiainstadaliitasshenncepisitenailiianinanaiveniiiitinlituidasasdatie’ ee 8

Buckley v. Valeo, 424 U.S. 1 (1976) .....ccccccceeeeeeeeeeeees passim

Bush v. Gore, 531 U.S. 98 (2000) ..................eeceeeeeeees 26

City of Indianapolis v. Edmond, 53\ U.S. 32 (2000)... 26

Colorado Republican Fed. Campaign Comm. v. FEC,

Fe I iviiicthincinsciencdndaetnittinssrintticepnisiiepidese 15

Connick v. Myers, 461 U.S. 138 (1983) .........0..eeee ee 26

Faustin v. Citv & County of Denver, 423 F.3d 1192

eK: AE Nhchiienbsenithscnanecdiinsimiminisienbtcdseienstuasbetsieibnih 25

FEC v. Beaumont, 539 U.S. 146 (2003)...........00.00000... passim

FEC v. Colorado Republican Fed. Campaign Comm.,

ee I ictiewrnsconevieiicuisitnianitiinettianscnipiaaiaas 1,2

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

I aati passim

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

PUENTE civnsitnmnievasndnitshceasnsenigeneniuispiadedliminedbinnaibitieantaniein 8,9

Field Day, LLC v. County of Suffolk, 463 F.3d 167

UNG Geet cossisiipcdictssnninstasebpeeidintinabioiiaiauibinananivalinan 25

Hill v. Colorado, 530 U.S. 703 (2000) ..........000ccccccee. 26

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

McConnell v. FEC, 251 F.Supp. 2d 176(D.D.C.),

aff'd in part & rev'd in part, 540 U.S. 93 (2003) ...... passim

Members of the City Council of Los Angeles v. Tax-

pavers for Vincent, 466 U.S. 789 (1984)...000..00.00....... 25

New York Times v. Sullivan, 376 U.S. 254 (1964) ........ 26-27

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

STUIUTIIIscscesiceniicta siti sha ietbedeledhiptineeendatalantabiniaiainaaadsadbiinibhandens 2

ill

TABLE OF AUTHORITIES—Continued

Pickering v. Board of Educ., 39\ U.S. 563 (1968)........

Pipefitters Local Union No. 562 v. United States,

ee Ss ee aiiserttatitinniciiicencncenappncscencntieseeniiieians

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)...............

Spence v. Washington, 418 U.S. 405 (1974) ........ cee

Texas v. Johnson, 491 U.S. 397 (1989)... eeceeeeeees

Time, Inc. v. Hill, 385 U.S. 374 (1967) ............cceceeeeeeees

United States vy. Christian Echoes Nat'l Ministry,

Ng Se ee Ce iccciscciinintansnnncenintinenmnaguntontinn

United States v. International Union United Auto.,

Aircraft & Agric. Implement Workers of Am., 352

Sa I TTT siecstiseeirdeiicctbcbaiiinsessianiatienmaniecisncinmeniiinnebinecee

United States v. Raines, 362 U.S. 17 (1960) .................

Vieth v. Jubelirer, 541 U.S. 267 (2004) ...............0000000..

Walters v. National Ass'n of Radiation Survivors,

i | Ne

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410

STATUTORY AND REGULATORY PROVISIONS:

Bipartisan Campaign Finance Reform Act of 2002,

Pub. L. No. 107-155, § 203, 116 Stat. 91-92 .............

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

Be CIEE bitressevisveterniicinennpicsentemicventarenanenmerinee

Fn ID actinrssestnctetieicnanniintvnnittnnivnniainnindandedian

Beis Se ID sicincttnrtnisnnsostmmnsnnepetntdnenanniote

se EE atiiicipsteincccimastianinenienmatienn cneetean

ns Is asin sanieripsanincateinestoiasenngeianeaidanseaneaitaiaanneibahin

4 toe |_|. Renae FE pay PAR

passim

TABLE OF AUTHORITIES—Continued

Page

ie 0 aiisittaninitiitastiniseininianiiiclnsimanietiviinibiia 3

er aan: OF OP abinciteiaisa hi cesninenabiniiaensiesetndiiieetioninternetess 3

RULES:

ae i ile: APNE csictnigtaiigtieiisiecbennenisentondenisiscincsulpenaseenniuseneiel 2

ek Se SOU ieechictsaeciessncieniidhtcindninesinsicicanaintpedtionstanianesionsiids l

OTHER AUTHORITIES:

143 Cong. Rec. $10125 (daily ed. Sept. 29, 1997)........ 16

144 Cong. Rec.:

p. H6802 (daily ed. July 30, 1998)... eee 15

pp. $1038-39 (daily ed. Feb. 26, 1998) ..........ceceeeees 15

pp. S1048-49 (daily ed. Feb. 26, 1998)... 21

147 Cong. Rec.:

pp. S2455-56 (daily ed. Mar. 19, 2001)... 12

p. $2636 (daily ed. Mar. 21, 2001)... eeeeeeeeeeeees 15

p. $3036 (daily ed. Mar. 28, 2001) ......... ee eeeeeeeeeee 15

p. $3072 (daily ed. Mar. 29, 2001)... eeeeeeeee 15

p. $3138 (daily ed. Mar. 29, 2001) oo... eee 20

148 Cong. Rec.:

p. H387 (daily ed. Feb. 14, 2002)... eee 15

p. H410 (daily ed. Feb. 14, 2002) ....... eiechednemmpsoteinitaa 15

p. $2104 (daily ed. Mar. 20, 2002) ............... eee eee 20

p. $2141 (daily ed. Mar. 20, 2002) .................2:ceee00- 1S

Investigation of Illegal or Improper Activities in

Connection with 1996 Federal Election Cam-

paigns, S. Rep. No. 105-167 (1998)... eee. passim

TABLE OF AUTHORITIES—Continued

Page

Investing in the People’s Business: A Business Pro-

posal for Campaign Finance Reform (CED 1999)..... 1, 11, 12

Report of Thomas E. Mann, at

http://www.campaignlegalcenter.org/McConncll-

PORTE cccsssscsinicsssniihsaniinatbisittipiazesenantnaneianseimeeidiielte 11, 12, 13

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are a non-profit independent research and

policy organization of approximately 250 business leaders

and educators as well as three political scientists who have

dedicated much of their careers to studying and analyzing

Congress, federal elections, campaign finance, and American

politics, and who have written extensively, both individually

and jointly, on those subjects. !

. The Committee for Economic Development (CED) was

formed more than 60 years ago to advance policies that

promote stable economic growth and enhance the standard of

living and range of opportunities enjoyed by all Americans.

Owing to the fact that corruption in government or its

appearance impacts the economy and erodes confidence both

in our democratic institutions and business community, CED

has proposed significant reforms to our federal election laws

in order to strengthen our system of campaign finance. See

Investing in the People’s Business: A Business Proposal for

Campaign Finance Reform (CED 1999) [Business Proposal

for Campaign Reform). CED also participated in the litiga-

tion that led to the decision in McConnell v. FEC, 540 U.S.

93 (2003), and filed a brief amici curiae upon which this

Court relied. See id. at 125 n.13.

Anthony J. Corrado, Jr. is a Professor of Government at

Colby College and Chair of the Board of Trustees of the

Campaign Finance Institute. He served as an expert witness

in FEC v. Colorado Republican Fed. Campaign Comm., 533

U.S. 431 (2001), and thts Court cited and quoted his expert

Statement in its opinion in that case.

Thomas E. Mann ts a Senior Fellow in Governance Studies

at the Brookings Institution. He served as an expert witness

in McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.), aff'd in

' Pursuant to this Court’s Rule 37.6, we note that no part of this

bnef was authored by counsel for any party, and no person or

entity other than amici curiae made a monetary contribution to the

preparation or submission of the brief

part & rev'd in part, 540 U.S. 93 (2003), and this Court cited

and quoted his expert report in its opinion in that case. See

540 U.S. at 124 nn.8, 9, 11 & 12; id. at 148; id. at 155.

Norman J. Ornstein is a Resident Scholar at the American

Enterprise Institute for Public Policy Research. He is the

founder and director of the Campaign Finance Working

Group, a group of scholars and practitioners who helped craft

the McCain-Feingold legislation.

Stemming from their expertise and interest in federal elec-

tions and campaign finance reform, Professor Corrado, Dr.

Ornstein, and Dr. Mann have filed amici briefs in previous

cases before this Court involving election law issues.”

All of the amici have a great interest in ensuring that the

recent reforms that they have been part of bringing to fruition

and that have strengthened our federal campaign finance

system are not undermined through judicial interpretations,

and offer their views to aid the Court in its review of the

instant case. Their brief is filed with the written consent of

all parties pursuant to this Court’s Rule 37.3(a); the requisite

consent letters have been filed with the Clerk of this Court.

INTRODUCTION

This case is before the Court for the second time. It in-

volves an as-applied challenge to Section 203 of the Biparti-

san Campaign Finance Reform Act of 2002 (BCRA), Pub. L.

No. 107-155, 116 Stat. 91-92. That Act overhauled our

federal election laws by amending, inter alia, the Federal

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

et seg. See McConnell, 540 U.S. at 114. Among BCRA’s

amendments to FECA is a provision prohibiting corporations

_and unions from financing, with general treasury funds,

2 See Wisconsin Right to Life. Inc. \ _ FEC, 546 U.S. 410 (2006)

(per curiam) (Corrado, Mann & Ornstein); Vieth v. Jubelirer, 541

U.S. 267 (2004) (Mann & Ornstein); McConnell v. FEC, supra

(Ornstein): FEC v. Colorado Republican Fed. Campaign Comm.,

supra (Mann), Nixon v. Shrink Mo. Gov't PAC, S28 US. 377

(2000) (Mann).

“electioneering communication[s]”——i.e., communications

referring to a federal office candidate and broadcast within

30 days of a primary or 60 days of a general election in the

candidate’s jurisdiction. See 2 U.S.C. § 441b(b)(2). In

McConnell, this Court sustained most of BCRA’s provisions

against constitutional challenge. See 540 U.S. at 263-209.

There, the Court rejected a First Amendment facial challenge

to Section 203, holding that the provision was neither fatally

overbroad nor fatally underinclusive. Jd. at 207-208.

Wisconsin Right to Life, Inc. (WRTL) now brings an as-

applied challenge to the same provision. WRTL is a non-

profit, non-stock ideological advocacy corporation organized

under the laws of Wisconsin that the Internal Revenue

Service recognizes as tax-exempt under Section 501(c)(4) of

the Internal Revenue Code. J.S. App. 2a-3a. It does not

qualify for any recognized exemption allowing it to fund

electioneering communications from its general treasury

account because it is neither a “qualified nonprofit corpora-

tion” under 11 C.F.R. § 114.10 nor fits the exception for

501(c)(4) corporations provided by 2 U.S.C. § 441 b(c)(2).

Id. at 3a n.2. It administers a segregated account for cam-

paign-related activity in the form of a political action com-

mittee—a PAC. /d. at 58a.

United States Senator Russell Feingold of Wisconsin ran

for reelection in 2004. His challengers made a campaign

issue of his support for “filibusters” of the President’s

nominces for federal judgeships. /d In March 2004,

WRTL’s PAC endorsed three candidates opposing Senator

Feingold and “announced-that the defeat of Senator Feingold

was a priority.” /d. On July 14, 2004, WRTL issued a news

release criticizing Senator Feingold’s “record on Senate

filibusters against judicial nominees.” /d WRTL used a

variety of non-broadcast communications to criticize Senate

filibusters of judicial nominces. /d. at 58a-59a.

On July 26, 2004, WRTL began using its general treasury

funds -rather than its PAC funds- to air three broadcast ads

criticizing the judicial filibuster tactic and specifically

naming Senator Feingold. /d at 59a-60a. In one ad, the

listener hears a father interrupting his daughter’s wedding

ceremony to “share a few tips on how to properly install

drywall.” Jd. at 66a-67a. This set up is followed by the

narrator opining that “[s]ometimes it’s just not fair to delay

an important decision” but, in Washington, “a group of

Senators is using the filibuster delay tactic to block federal

judicial nominees from a simple ‘yes’ or ‘no’ vote.” /d. at

67a. The narrator then urges the listener to “[c]ontact

Senators Feingold and Kohl and tell them to oppose the

filibuster.” Jd. Each ad features a different plot, but all

three play on the same needless-delay theme and essentially

convey the same message. /d. at 69a, 70a.

- Anticipating that the advertisements would constituie

“electioneering communication[s]” under BCRA if aired

during the period between August 15, 2004, and November

2, 2004, WRTL sued the Federal Election Commission in

federal district court. /d. at 59a. It alleged that BCRA’s

prohibition on financing electioneering communications with

general treasury funds is unconstitutional as applied to its

advertisements and moved for a preliminary injunction. /d.

The District Court denied WRTL’s motion, concluding that

its “showing” failed to meet the standard for granting such

relief, id. at 60a, in large measure because this Court's

rejection of a facial constitutional challenge to BCRA

Section 203 “le[ft] no room for the kind of ‘as applied’

challenge that WRTL propounds,” id. at 6la. However, its

reading of McConnell was “but one reason” it found

WRTL’s lawsuit without hope of success. /d. at 62a. It went

on to observe that, in light of their timing and the objectives

of WRTL’s ?AC, the ads “may fit the very type of activity

McConnell found Congress iad a compelling interest in

regulating.” /d.

Following its denial of a preliminary injunction, the Dis-

trict Court dismissed WRTL’s lawsuit. /d. at S5Sa-S6a. This

+ While the ads contain no contact information for either Sena-

tors Feingold or Kohl. they direct listeners or viewers to a website

critical of Senator Feingold’s record in office.

Court later reversed that judgment, concluding that, “{iJn

upholding § 203 against a facial challenge, we did not

purport to resolve future as-applied challenges.” Wisconsin

Right to Life, Inc. v. FEC, 546 U.S. 410, 126 S.'Ct. 1016,

1018 (2006) (per curiam). It declined, however, to consider

the District Court’s suggestion that “WRTL’s advertisements

may fit the very type of activity McConnell found Congress

had a compelling interest in regulating,” finding it “am-

bigu[ous]” whether that observation was intendéd as an

alternative ground for decision. /d. Accordingly, the case

was remanded for the District-Court-to “consider the merits

of WRTL’s as-applicd challenge in the first instance.” /d.

On remand, and after an expedited discovery period, the

District Court granted summary judgment in WRTL’s favor.

J.S. App. at 2a. In assessing whether WRTL’s ads consti-

tuted express advocacy or its functional equivalent, it cs-

chewed any reliance on the intent or effect of the ads, finding

such reliance both “practically” and “theoretically unaccept-

able” and “dangerous and undesirable when First Amend-

ment freedoms are at stake.” /d. at 19a-20a. In its view, “the

judiciary, in conducting First Amendment analysis, should

not be in the business of trying to read any speaker’s mind.”

Id. at 22a. The District Court thus limited its inquiry to

assessing whether the “language within the four corners of

the anti-filibuster ads”

(1) describe[s] a legislative issue that is either currently the

subject of legislative scrutiny or likely to be the subject of

such scrutiny in the future; (2) refer{s] to the prior voting

record or current position of the named candidate on the

issue described; (3) exhort[{s] the listener to do anything

other than contact the candidate about the described issue;

(4) promote[s], attack[s], support[s], or oppose[s] the

named candidate; and (5) refer[s] to the upcoming clection,

candidacy, and/or political party of the candidate. [{/d.]

Under this approach, the District Court found that, “on their

face, WRTL’s three 2004 anti-filibuster advertisements were

not ‘intended to influence the voters’ decisions.” ~~ /d. at 24a.

This conclusion obviated any need for the court to “analyze

whether the ads in fact would have-—or potentially could

have—affected Senator Feingold’s reelection.” /d. (emphasis

in Original).

The District Court further concluded that the government

could assert no compelling interest in regulating genuine

issue ads such as WRTL’s under BCRA wu. at 28a. Unlike

express advocacy or its functional equivalent, it explained

that genuire issue ads do not bear on a candidate’s fitness for

office and thus implicate no concern about “political corrup-

tion and public cynicism in government.” /d. at 27a.

Judge Roberts dissented from the grant of summary judg-

ment, concluding that the majority’s approach “is inconsis-

tent with McConnell, is inconsistent with this panel’s own

prior rulings, and finds little support in logic.” /d. at 30a.

SUMMARY OF ARGUMENT

Preventing corporations, unions, and national banks from

using general treasury funds to influence federal elections is

not a novel congressional goal; it is one that Congress has

pursued for more than a century. BCRA is only its most

recent effort “to purge national politics of what was con-

ceived to be the pernicious influence of ‘big money’ cam-

paign contributions.” McConnell, 540 U.S. at 115 (internal

quotation marks & citation omitted).

Section 203 extends a longstanding prohibition against the

use of corporate and union treasury funds for ads that ex-

pressly advocate the election or defeat of a federal candidate

to cover a newly-defined form of communication—zie.,

electioneering communications. Based on overwhelming

evidence, Congress concluded that this extension was

necessary to prevent corporations and unions from circum-

venting the pre-existing FECA prohibition by funding with

general treasury revenues ads that, while falling short of

prohibited “express advocacy.” were no less calculated to

influence federal elections and likely had that effect. Section

203 thus closed a loophole in FECA that corporations and

unions exploited in past elections.

This Court upheld BCRA Section 203 against a facial

constitutional attack in McConnell. Yet, in striking that same

statute down as applied to WRTL’s ads, the District Court

overlooked this Court’s core rationale for upholding the

provision on its face. In addition to deviating from the

approach taken in McConnell, the District Court also devi-

ated from the traditional approach to as-applied challenges

which are fact intensive inquiries—on the mistaken belief

that a speaker’s intent or purpose for communicating a

message is beyond the bounds of judicial inquiry. If future

as-applied challenges to Section 203 are reviewed in the

same contextual vacuum fashioned here by the court below,

Congress's effort to capture ads that are the functional

equivalent of express advocacy will inevitably be lost as

political actors push the limits of the District Court’s “four

corners” rule—a crabbed rule that harkens a return to the pre-

BCRA “magic word” days.

In any event, the ads that WRTL sought to air during

BCRA’s pre-clection blackout period are, at bottom, the very

kind of sham issue ads —i.e., ads about candidates masquer-

ading as ads about issues that Congress expressly sought-

with BCRA Section 203 to prohibit. As is obvious from the

liming, content, and context of WRTL’s ads, they were

designed to influence Senator Feingold’s bid for reelection

and, if permitted to air, would likely have had just that effect.

ARGUMENT

I. BCRA SECTION 203 CLOSED A LOOPHOLE IN

THE FEDERAL CAMPAIGN FINANCE REGIME

THAT CORPORATIONS AND UNIONS HAD

EXPLOITED IN PREVIOUS ELECTIONS.

“Since 1907, there has been continual congressional atten-

tion to corporate political activity, sometimes resulting in

refinement of the law, sometimes in overhaul.” FEC vy.

Beaumont, 539 U.S. 146, 153 (2003). BCRA Section 203

and the definition of “electioneering communication” fall

into the former category. Although that provision extends

the prohibition on the spending of corporate and union

general treasury funds in connection with federal elections to

encompass a newly-defined form of communication, since

the Court’s seminal ruling in Buckley v. Valeo, 424 U.S. 1

(1976), “Congress” power to prohibit corporations and

unions from using funds in their treasuries to finance adver-

tisements expressly advocating the election or defeat of

candidates in federal elections has been firmly embedded in

our law.” McConnell, 540 U.S. at 203. Section 203 is no

more than a modification of pre-existing law needed to

plug [an] existing loophole’ ” in that longstanding prohibi-

tion. United States v. International Union United Auto.,

Aircraft & Agric. Implement Workers of Am., 352 U.S. 567,

582, 585 (1957) (UAW) (quoting S. Rep. No. 1, pt. 2, 80th

Cong., Ist Sess. 38-39 (1947)).

“ .¢

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

challenged provision of federal election law, Beaumont, 539

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

circumstances that begot this statute is necessary for its

understanding, and understanding of it is necessary for

aGjudication of the legal problems before us.”), and it has

recognized that the prohibition on corporate and union

general treasury expenditures in connection with federal

elections has long been a cornerstone of federal election law.

See Beaumont, 539 U.S. at 152-154. That restriction reflects

an abiding concern with the ability of corporations and

unions to leverage thcir state-sanctioned privileges and to

aggregate large amounts of capital into unfair political

advantages. See Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 658-659 (1990); FEC v. National Right to

Work Comm., 459 U.S. 197, 207-208 (1982) (NRWC); UAW,

352 US. at 585.

Congress made its initial foray into the arena of campaign

finance regulation in 1907. It responded to President Roose-

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

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

“banned any corporation whatever from making a money

contribution in connection with federal elections.” Beau-

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

omitted). In 1925, it extended the Tillman Act’s prohibition

on corporate contributions to encompass “anything of value”

and by criminalizing the giving and recciving of corporate

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

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

Congress later extended the coverage of this prohibition to

include labor unions. See NRWC, 459 U.S. at 209 (noting

that “union contributions in connection with federal elections

were prohibited altogether” by the War Labor Disputes Act

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

this prohibition to include “expenditures” as well as contribu-

tions. See McConnell, 540 U.S. at 117.

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

id., Congress enacted FECA in 1972, which “ratified the

earlier prohibition on the use of corporate and union general

treasury funds for political contributions and expenditures.”

Id. at 118. Specifically, FECA Section 441b, which consti-

tuted “merely a refinement of th[e] gradual development of

the federal clection statute,” NRWC, 459 U.S. at 209, made it

“unlawful * * * for any corporation whatever * * * to make a

contribution or expenditure in connection with any” federal

election. 2 U.S.C. § 44lb(a); see FE€-v. Massachusetts

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

The term “expenditure” included “anything of value * * * for

the purpose of influencing any election for Federal office.” 2

U.S.C. § 431(9)(A)Q). While barring expenditures of general

treasury funds, however, FECA “expressly permitted corpo-

rations and unions to establish and administer separate

segregated funds (commonly known as political action

committees, or PACs) for election-related contributions and

expenditures.” McConnell, 540 U.S. at 118; see MCFL, 479

U.S. at 241: Pipefitters Local Union No. 562 v. United

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

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

union expenditures of “anything of value” in connection with

federal elections was later modified by this Court in a way

that ultimately prompted Congress to enact BCRA Section

203. In MCFL, this Court accepted the argument that FECA

Section 441b “necessarily incorporates the requirement that a

communication ‘expressly advocate’ the election of candi-

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

advocacy’ in order to be subject to the prohibition of

§ 441b.” 479 U.S. at 248-249. This requirement stemmed

from the Court’s own prior decision in Buckley v. Valeo,

supra, which—i. order to avoid vagueness and overbreadth

concerns inhering in a different FECA provision—held that

“expenditure encompassed ‘only funds used for communica-

tions that expressly advocate the election or defeat of a

clearly identified candidate.”” /d. (quoting Buckley, 424

U.S. at 80). As the MCFL Court explained, Buckley

“adopted the ‘express advocacy’ requirement to distinguish

discussion of issucs and candidates from more pointed

exhortations to vote for particular persons.” 479 U.S. at 249.

Buckley identified eight such “more pointed exhortations”—

namely, “vote for,” “elect,” “support,” “cast your ballot for,”

“Smith for Congress,” “vote against,” “defeat,” and “reject,”

424 U.S. at 44 n.52—which later became “known as the

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

” 6

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

permitted to use their general treasury funds on independent

expenditures in connection with a federal clection, provided

that those independent expenditures did not contain words of

‘express advocacy.” ” McConnell v. FEC, 251 F. Supp. 2d at

§25-526 (Kollar-Kotelly, J.) (footnote omitted)). That meant

that “corporations and labor unions could use their general

treasury funds to pay for an advertisement which influenced a

federal election, provided that the corporation or labor union

did not use any of Buckley's ‘magic words’ in the advertise-

ment.” /d. at 526 (emphasis added).

3. “{E]xperience demonstrates how candidates, donors,

and parties test the limits of the current law.” Beaumont, 539

U.S. at 155 (internal quotation marks & citation omitted).

The prohibition contained in FECA Section 441b (qualified

by the magic words requirement) proved no exception to this

lesson of experience. In the years following MCFL, corpora-

tions and labor unions tested FECA Section 4416's prohibi-

tion by making expenditures on ads that eschewed reliance

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

influencing federal elections than communications containing

“pointed exhortations” of support for or opposition to candi-

dates for federal office. See, e.g., McConnell, 251 F. Supp.

2d at 526 (Kollar-Kotelly, J.). Such ads “were attractive to

organizations and candidates precisely because they were

beyond FECA’s reach, enabling candidates and their parties

to work closely with friendly interest groups to sponsor so-

called issue ads when the candidates themselves were run-

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

Mann explained in his report in the McConnell litigation,

research concerning this period reveals “extensive and

elaborate efforts by parties, candidates, unions, corporations

and groups to exploit this new issue advocacy loophole to

avoid the strictures of federal clection law.” Report of

Thomas E. Mann 20-21 [Mann Report].

4. The late 1990s were a boom time for issue advocacy

during which “[c]lorporations and unions spent hundreds of

millions of dollars of their general funds to pay for these

ads.” McConnell, 540 U.S. at 127. The Annenberg Center

for Public Policy, which has studied “issue advocacy” since

the carly 1990s, concluded that “the numbers of ads, groups,

and dollars spent on issue advocacy * * * climbed” markedly

from the 1996 to the 2000 election cycle. McConnell, 25)

F.Supp. 2d at 879(Leon, J.). It found that the 1995-96

election cycle saw about “$135 million to $150 million * * *

spent on multiple broadcasts of about 100 ads.” /d.

CED has found that “|djuring the 1996 election cycle, a

wide array of party organizations and other groups seized on

the issue advocacy distinction and spent tens of millions of

dollars on advertisements carefully designed to avoid restric-

tions of federal law.” Business Proposal for Campaign

Reform 29. CED estimated that “party organizations spent at

least $100 million on issue advertising in 1996." /d.: see

also id. (noting that “total amount spent on issue ads during

the 1996 election is not known”). These ads “were broadcast

in markets across the nation and aired in every key congres-

sional race in the country,” and “{a|lmost all the commercials

broadcast by these organizations featured specific federal

candidates, and most were aired in the final six weeks of the

general election campaign.” /d

The numbers only grew during the next clection cycle:

“(T]he Annenberg Public Policy Center found that 77

organizations aired 423 advertisements at a cost of between

$250 million and $340 million.” McConnell, 251 F. Supp.

2d at 879 (Leon, J.). During this cycle, “836 issue ads were

broadcast in 30 states during the final 60 days before the

election, of which an estimated 70 percent were sponsored by

major parties.” Business Proposal for Campaign Reform 29.

During the “1999-2000 election cycle, the Annenberg

Center found that 130 groups spent over an estimated $500

million on 1,100 distinct advertisements.” /d. In passing

BCRA, the Annenberg Center’s tracking of the rise of

organizations’ reliance on issue advocacy did not escape

Congress’s attention. See 147 Cong. Rec. $2455-56 (daily

ed. Mar. 19, 2001).

5. The meteoric rise in issue ads was not a coincidence but

a strategy adopted by organizations intent on influencing

federal elections. As Dr. Mann explained in his report,

“[p]arties and outside groups used issue advocacy as a cover

to finance campaigns for and against federal candidates in

targeted races.” Mann Report 24. CED has similarly ob-

served that “issue advocacy * * * became the new strategy

for election spending, especially for organizations not

allowed to make direct contributions in federa! campaigns.”

Business Proposal for Campaign Reform 29.

Two judges on the three-judge District Court convened to

review the pre-enforcement challenge to BCRA similarly

found that organizations used tssue ads for the purpose of

influencing federal elections. Judge Kollar-Kotelly found

“uncontroverted™ evidence “that by the early 1990s and

especially by 1996, interest groups had developed a strategy

to effectively communicate an electioneering message for or

against a particular candidate without using the magic

words.” McConnell, 251 F. Supp. 2d at 528 (internal quota-

tion marks, alteration & citation omitted). Judge Leon

likewise concluded that the “factual record unequivocally

establishes that [issue ads] have not only been crafted for the

specific purpose of directly affecting federal elections, but

have been very successful in doing just that.” /d. at 800.

6. The line that Buckley drew between express advocacy

and issue advocacy—later imported into FECA Section 441b

in MCFL-—was not only casily and frequently circumvented

but largely illusory from the start. Buckley foresaw as much:

[T]he distinction between discussion of issues and candi-

dates and advocacy of election or defeat of candidates may

often dissolve in practical application. Candidates, espe-

cially incumbents, are intimately tied to public issues in-

volving legislative proposals and government actions. Not

only do candidates campaign on the basis of their positions

on various issues, but campaigns themselves generate

issues of public interest. [Buckley, 424 U.S. at 42.]

Indeed, this Court in McConnell confirmed that the express

advocacy test is “functionally meaningless.” 540 US. at

193,217. “While the distinction between ‘issue’ and express

advocacy seemed neat in theory, the two categories of

advertisements proved functionally identical in important

respects.” /d. at 126.

Experience in fact powerfully demonstrated that the ex-

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

identify accurately communications designed to influence

federal elections. As Dr. Mann explained in his report.

“research by political scicntists confirmed the suspicion” that

there is “little difference in purpose and content between

express advocacy and candidate-specific issue advocacy

communications financed by partics and groups.” Mann

Report 24. He explained that the “evidence of the explicit

electioneering purpose of candidate-specific issue advocacy

near the electlon was overwhelming” as such ads “run by

parties and groups were largely indistinguishable fron. the

campaign ads of the candidates.” /d As Dr. Mann found:

Very few candidate ads used words of express advocacy;

virtually all party issue ads mentioned the name of a fed-

eral candidate, mostly in attack mode, but few mentioned

the name of the party; and almost every issue ad featuring

the name of the candidate and running near an election

was clearly designed to support or attack a candidate, not

to express a view on an issue. [/d. |

The result: “Voters were unable to differentiate candidate-

specific issue ads * * * sponsored by parties and outside

groups from campaign ads run by candidates.” /d.

That the dichotomy between express advocacy and issue

advocacy is a false one was further born out by the McCon-

nell litigation. All three of the judges of the District Court

agreed that few ads run by candidates, parties or interest

groups rely on words of express advocacy. See 251 F. Supp.

2d at 303 (Henderson, J.); id. at 529 (Kollar-Kotelly, J.); id.

at 874 (Leon, J.); see also McConnell, 540 U.S. at 128 n.18.

The record before them conf.rmed that media professionals

actually disfavored such heavy-handed tactics. As one

political consultant explained, given “the modern world of 30

second political advertisements,” it “is rarely advisable” to

use “such clumsy words as ‘vote for’ or ‘vote against.’ ” /d.

at 529-530 (Kollar-Kotelly, J.); see also id. at 305 (Hender-

son, J.); id. at 874-875 (Leon, J.). Rather, the “most effec-

tive” course, as “[a]ll advertising professionals understand,”

is to “lead{ | the viewer to his or her own conclusion without

forcing it down their throat.” /d. at 529-530 (Kollar-Kotelly,

J.); id. at 875 (Leon, J.); see also McConnell, 540 U.S. at 193

n.77 (noting that “political professionals and academics

confirm that the use of magic words has become an anachro-

nism”). “This is especially true of political advertising,

because people are generally very skeptical of claims made

by or about politicians.” AfeConnell, 251 F. Supp. 2d at 530

(Kollar-Kotelly, J.). The express advocacy limitation of

course proved no substantial obstacle for this “modern”

electioneering approach.

Members of Congress themselves some of them “sea-

soned professionals who have been deeply involved in

elective processes and who have viewed them at close range

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

express advocacy “do not distinguish pure issue advertise-

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

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

opined that “[p]cople didn’t need to hear the so-called magic

words to know what these ads were really all about.” 147

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

McCain explained that “th{is} Court's definition of ‘express

advocacy’—-magic words—has no real bearing in today’s

world of campaign ads.” 147 Cong. Rec. $3036 (daily ed.

Mar. 28, 2001); see also 148 Cong. Rec. $2141 (daily ed.

Mar. 20, 2002) (statement of Sen. McCain) (“[E]ven a casual

observer would concede that ‘magic words’ is a dramatically

underinclusive test for determining what constitutes a cam-

paign ad.”). Many other federal lawmakers expressed similar

views on so-called issue advocacy.°

4 Buckley, 424 U.S. at 261 (White, J., concurring in part &

dissenting in part); see also Colorado Republican Fed. Campaign

Comm. v. FEC, 518 U.S. 604, 650 (1996) (Stevens, J., dissenting)

(“Congress surely has both wisdom and experience in these

matters that is far superior to ours.”).

> See, e.g., 148 Cong. Rec. H387 (daily ed. Feb. 14, 2002)

(statement of Rep. Cardin) (“Currently, these [issue] ads which are

clearly aimed at influencing an cliection can be worded in a way

that they are deemed issue advocacy and are not subject to cam-

paign spending limits or disclosure requirements.”); 148 Cong.

Rec. H410 (daily ed. Feb. 14, 2002) (statement of Rep. Kleczka)

(“An equally troubling aspect of today’s campaign system 1s the

number of issue advertisements broadcast on the television and

radio. Although these ads technically adhere to federal campaign

regulations. they violate the spirit of the law.”); 147 Cong. Rec.

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

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

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

nothing but a means to avoid the legitimate election laws of this

country.”); 144 Cong. Ree. H6802 (daily ed. July 30, 1998)

(statement of Rep. Shays) (“They are not sham in the sense that

they do not have a right to speak. but they are not issue ads, they

are campaign ads, and we call them such.”), 144 Cong. Rec

S1038-39 (daily ed. Feb. 26, 1998) (statement of Sen. Bryan)

(“Independent expenditure ads are one of the very reasons the

7. The widespread practice of using soft money to fund

issue ads designed to influence federal elections was further

documented in the six-volume report—spanning nearly

10,000 pages-that the Senate Governmental Affairs Com-

mittee (Committee), chaired by Senator Fred Thompson and

led also by Ranking Member John Glenn, produced follow-

ing its investigation into campaign finance law abuses during

the 1996 presidential campaigns. See /nvestigation of Illegal

or Improper Activities in Connection with 1996 Federal

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

Report). This Court has characterized the Committee’s

findings as “disturbing.” McConnell, 540 U.S. at 122

The Committee concluded that issue ads constituted “the

second most significant loophole” in the pre-existing cam-

paign finance regime. Thompson Report at 5968 (minority

views). The Committee “found such ads highly problematic

for two reasons.” McConnell, 540 U.S. at 131. First, be-

cause issue ads “accomplished the same purpose as express

advocacy (which could lawfully be funded only with hard

money), the ads enabled unions, corporations, and wealthy

contributors to circumvent protections that FECA was

intended to provide.” /d. Second, while the ads were “osten-

sibly independent of the candidates.” they were “often

actually coordinated with, and controlled by, the campaigns.”

Id. “The ads thus provided a means for evading FECA’s

campaign system is out of control. We all know that these ads are

really intended to deteat a candidate and are often coordinated with

the opposition campaign. Simply put, these ads are not genuinely

independent nor are they strictly concerned with issue advocacy.”).

143 Cong. Rec. $10125 (daily ed Sept. 29, 1997) (statement of

Sen. Collins) (“[ T]he situation I have described [regarding “tssue’

ads run by the AFL-CIO) has led to the biggest sham in American

politics. Nobody in Maine believed that the AFL[-|C1O’s negative

ads were for any purpose other than the defeat of a candidate. Ads

of that nature make an absolute mockery out of the prohibition

against umons and corporations spending money on Federal

elections. The ‘express advocacy” provision in McCain-Feingold

is designed to do away with this sham.)

candidate contribution liiaits.” /d The Committee’s find-

ings bear out these conclusions.

Looking broadly at the problem posed by issue advocacy,

the Thompson Report found that both national parties used

soft money to fund issue ads intended to influence the 1996

presidential election. The Democratic National Committee

(DNC) spent $44 million on issue ads during the 1996

presidential election, while the Republican National Commit-

tee (RNC) spent $24 million. See Thompson Report at 4482;

id. at 8294 (minority v ews). When Harold Ickes, President

Clinton’s Deputy Chief of Staff, was asked during the

Committee hearings whether the average person would

comprehend the DNC and RNC’s issue ads as encouraging a

vote for one of the presidential candidates, he responded that

“| would certainly hope so. If not, we ought to fire the ad

agencies.” /d. at 8286 (minority views).

The 1996 presidential candidates themsclves tended to

share this view toward issue ads funded by soft money. That

President Clinton fully appreciated the impact of issue ads on

his campaign for a second presidential term is apparent in his

telling major contributors to the DNC that their contributions,

which funded ads “run * * * through the Democratic party,”

rather than his campaign, “have made a huge difference.” /d.

at 62. Senator Dole’s campaign deployed this strategy as

well. The Report concluded that “there can be little doubt

that the RNC’s issue ads were intended to influence the

outcome of a federal election.” /d. at 4014. One of. those

advertisements, entitled “The Story,” the Thompson Report

concluded, “was nothing more than a biography of Bob

Dole.” /d. Senator Dole’s campaign manager, Scott Reed,

acknowledged that “[w]Je went out in April and May and

raised $25 million for the party, of which about $17, $18 or

$19 million was put into party building ads, which were Bob

Dole in nature.” /d. at 8301 (minority views). In an inter-

view with Ted Koppel of ABC News, Senator Dole ex-

plained that, while hts campaign could not aftord to fund ads

lauding his candidacy. the RNC ran “generic” ads on his

behalf. /d. at 4153-54. Questioned whether “Bob Dole tor

President” constitutes “generic spending,” Senator Dole

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

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

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

The Thompson Report further detailed the extent to which

the national parties coordinated their issue ads with the

campaigns of their presidential candidates. As for the DNC,

the report concluded that the White House essentially “oper-

ated the [DNC] party apparatus as a slush-fund for the

President’s re-election campaign.” /d. at 23. The Clin-

ton/Gore campaign and the DNC used the same consultants,

pollsters and media producers, id at 34, and even coordi-

nated the day on which their respective ads would run, id. at

118. Indeed, Dick Morris, a campaign advisor to President

Clinton, stated that the President himself was so involved in

the creation of all “of the DNC and Clinton/Gore campaign

ads that they essentially “ ‘became * * * the work of the

President himself.’ /d. at 122. This “unprecedented” level

of coordination led to the “oblitera[tion]” of any “distinctions

remaining between the White House, the DNC, and [the]

Clinton/Gore [campaign].” Jd. at 107.

Similar findings were made in regard to the RNC and

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

controlled by Senator Dole’s “campaign manager, chief

fundraiser, media consultant, and pollster.” /d. at 8297

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

the Dole campaign for deciding where to run issue ads was

whether the ads would help Senator Dole win electoral

votes.” /d. at 8299 (minority views).

The Thompson Report further concluded that, just as the

national parties exploited the issue-advocacy loophole, so,

too, did corporations and unions. I[t found that such organi-

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

expended on political advertising during the 1996 elections

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

like the ones produced by the parties -were likewise in-

tended to influence federal elections. See id. at 3997. They

were indeed often coordinated with the campaigns of the

1996 presidential candidates or the national parties with

which they were associated. /d The Thompson Report

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

AFL-CIO] programs were conceived, designed and imple-

mented to defeat Republican Members of Congress during

the 1996 elections.” /d.; see also id. at 49 (“White House

aides and the AFL-CIO carefully reviewed each other’s

advertisements and coordinated their timing and_place-

ment.”). Dick Morris additionally testified during the

Committee hearings that an August 1995 meeting between

representatives of the Clinton/Gore campaign, the DNC and

seven labor organizations constituted “ ‘a full briefing of us

by them on their media plans.” ” /d. at 128.

Groups backing Republican candidates similarly used issue

ads in an attempt to influence federal elections. For instance,

The Coalition: Americans Working for Real Change, a

group formed to counter issue ads aired by the AFL-CIO,

produced tssue ads nearly identical to those run by the

National Republican Congressional Committee (NRCC), a

division of the RNC, aired them at the same time as the

NRCC’s ads and “in districts where the Republican incum-

bent’s seat was vulnerable.” /d. at 8944 (minority views).

Another group, Triad Management Services, “channeled

millions of dollars from its backers to two tax-exempt groups

it had established for the sole purpose of running attack ads

against Democratic candidates under the guise of ‘issue

advocacy.” ” /d. at 4569 (minority views). “By operating

this way, Triad and its financial backers avoided the disclo-

sure and campaign contribution limits of the federal election

laws.” Jd They became “surrogates” by which the RNC

“was able to circumvent federal campaign finance laws.” /d.

at 5979 (minority views). This was so because whereas “a

political party [that] broadcasts issue ads * * * is required to

pay for them with a combination of hard dollars and soft

dollars,” when “an outside group runs such ads, there are no

such restrictions even if the funding comes from the RNC.”

Ie.

The Thompson Report concluded that repairs to the cam-

paign finance laws must involve restrictions on issue advo-

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

raising of soft money by national party committees would

effectively address the use of union and corporate general

treasury funds in the federal political process only if it

required that candidate-specific ads be funded with hard

money.” McConnell, 540 U.S. at '32; see also Thompson

Report at 4492. The minority similarly recommended

“reforms addressing candidate advertisements masqucrading

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