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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A19

## Record

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

## Text

Nos. 06-969 & 06-970

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION, Appellant,
Ve
WISCONSIN RIGHT TO LIFE, INC., Appellee.

SENATOR JOHN MCCAIN, ET AL., Appellants,
V.
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)

il

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

iV

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

v

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

2

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).

3

“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

4

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.

5

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

6

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.

7

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

8

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

9

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

10

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-

ll

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-

12

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

13

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:

14

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

15

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

16

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.)

17

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

18

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

19

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.

20

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);
see also McConnell, 540 U.S. at 132.

8. “Buckley's express advocacy line [did] not aid[{ ] the
legislative effort to combat real or apparent corruption, and
Congress enacted BCRA to correct the flaws it found in the
existing system.” MeConnell, 540 U.S. at 193-194. The
legislative process culminating in the passage of BCRA
spanned more than six years and generated multiple reform
bills introduced in Congress. See McConnell, 251 F. Supp.
2d at 434 (noting that “the legislative process took over six
years of study and reflection by Congress”) (Kollar-Kotelly);
id. at 434 n.1 (listing campaign finance bills introduced in
Congress during six-year period preceding BCRA’s passage).
This process was influenced by the failings of the pre-BCRA
campaign finance regime brought to light by the Thompson
Report as well as the reforms that the report proposed.®
Senator Feingold, for example, opined that, “in the wake of
the Thompson investigation, we reluctantly concluded that
we need to first focus our efforts on closing the biggest
loopholes in the system: the soft money and the phony issue
ads.” 148 Cong. Rec. $2104 (daily ed. Mar. 20, 2002).
Senator Glenn similarly noted that the Thompson Report

® The House and Senate bills that ultimately became BCRA
were not accompanied by the customary explanatory committee
reports. Members of Congress frequently relied on the Thompson
Report's findings in floor debates on BCRA, however. See, e.x.,
147 Cong. Rec. $3138 (daily ed. Mar. 29, 2001) (statement of Sen.
Levin) (The 1997 Senate investigation collected ample evidence
of campaign abuses.”).

21

“showed that the legal distinction between ‘issue ads’ and
‘candidate ads’ has proved to be largely meaningless” and
that the legislation under consideration “goes a long way to
address[ing] thlis! abuse.” 144 Cong. Rec. $1048-49 (daily
ed. Feb. 26, 1998).

9. BCRA Section 203 directly combats the well docu-
mented problem of issue ads that avoided express advocacy
but nevertheless had the purpose and likely effect of influ-
encing federal eiections. That section extended FECA’s pre-
existing prohibition on the use of corporate and union general
treasury funds to finance communications influencing federal
elections—which MCFL previously had limited to communi-
cations expressly advocating election or defeat of a particular
candidate—-to cover any “electioneering communication.”
2 U.S.C. § 441b(b)(2). An electioneering communication is
defined as (1) any “broadcast, cable or satellite communica-
tion” that (2) “refers to a clearly identified candidate for
Federal office”; (3) ts made within either 60 days preceding a
federal general election, or 30 days preceding a federal
primary election, for the office the candidate seeks: and (4) is
“targeted to the’ relevant’ electorate’ 2 U.S.C.
$ 434(1(3)A)(), meaning that the communication must be
received by 50,000 or more persons in the “relevant congres-
sional district or state.” McConnell, 251 F. Supp. 2d at
212 (per curiam). “Thus, under BCRA, corporations and
unions may not use their general treasury funds to finance
electioncering communications, but they remain free to
organize and administer segregated funds, or PACs, for that
purpose.” McConnell, 540 U.S. at 204.

Congress's new term) “electioneering communication” —
is carefully calculated to identify (and block) corporate and
union general treasury expenditures on broadcast advertise-
ments intended to influence federal elections that escaped
detection under Buckley's express advocacy radar. “By
adopting a definition of electioneering communication that
by and large is premised on the empirical determinants that
Congress found distinguish pure issue advocacy from candi-
date-cemtered issue advocacy.” as Judge Kollar-Kotelly

22

explained, Congress “rejected reliance on the subjective
impressions of the listener and focuses on objective variables
that do an impressive job * * * of distinguishing between
candidate-centered issue advertising and pure issue advertis-
ing.” McConnell, 251 F. Supp. 2d at 569. She found that

the uncontroverted record establishes that pure issue ad-
vocacy is empirically distinguishable from candidate-
centered issue advocacy on the basis of (a) whether the
federal candidate is named; (b) whether the advertisement
is run in close proximity to a federal election; and (c) if
the advertisement is run in a competitive race. [/d. at
567.]

Each criterion of Congress’s new term is bottomed on
empirical evidence. First, the definition of electioneering
communication aims only at the media “found by Congress
to be problematic.” /d. at 569. “The records developed in
[the BCRA pre-enforcement] !itigation and by the Senate
Committee adequately explain the reasons for this legislative
choice.” McConnell, 540 U.S. at 207. As Judge Kollar-
Kotelly explained, that record “demonstrate[d] that more than
any other medium, broadcast advertisements were the vehicle
through which corporations and labor unions spent their
general treasury funds to influence federal elections.”
McConne!’ 251 F. Supp. 2d at 573. The Thompson Report
further supported Congress’s finding that “corporations and
unions used soft money to finance a virtual torrent of tele-
vised election-related ads during the periods tmmediately
preceding federal elections.” McConnell, 540 U.S. at 207.
See Thompson Report at 4465, 4474-81; id. at 7521-25
(minority views).

Second, the definition of electioneering communication
encompasses only messages that refer to clearly identified
candidates for federal elected office. During the pre-
enforcement challenge, “[fJederal officeholders and candi-
dates * * * testifjied] that, based on their experience, the
intent behind issue advertisements that mention the name of a
federal candidate, are aired right before the clection, and
broadcast to the candidate's electorate, is to influence the

23

election.” McConnell, 251 F. Supp. 2d at 534 (Kollar-
Kotelly). These politicians’ intuitions were confirmed by
political consultants’ “uncontroverted testimony that when
designing pure issue advertisements, it was never necessary
to reference specific candidates for federal office in order to
create effective ads.” /d. at 628 (internal quotation marks &
cllipsis omitted). As Judge Kollar-Kotelly explained, more-
over, the rather obvious “flip side of this coin * * * is that
when advertisements do mention a candidate’s name, particu-
larly in the period preceding an election, the advertisement’s
primary purpose is usually to influence the election.” /d.

Third, the 30- and 60-day pre-election blackout periods
applicable to electioneering communications also strongly
correlate to the periods during which ads aimed at influenc-
ing federal elections are most likely to air—the time period,
not surprisingly, immediately preceding an clection. Judge
Kollar-Kotelly concluded that “[t]he uncontroverted testi-
mony of experts confirms that the airing of issue advertise-
ments designed to influence a federal election is at its zenith
in the final weeks prior to an election.” /d. at 564-565; see
also id. at 630. Her opinion includes a graph showing that
the number of issue ads rises as an election day nears and
dramatically spikes in the wecks immediately preceding an
election. /d. at 564. As one media consultant testified: “In
my decades of experience in national politics, nearly all of
the ads that I have seen that both men.ion specific candidates
and are run in the days immediately preceding the election
were clearly designed to influence elections.” /d. at 561.
This consultant confirmed the common-sense proposition
that, “[f]rom a media consultant’s perspective, there would
be no reason to run stich ads if your desire was not to impact
an election.” Jd. And, in McConnell, this Court similarly
concluded that, although “[t]he precise percentage of issue
ads that clearly identified a candidate and were aired during
those relatively brief [30 and 60 day] preelection time spans
but had no electioneering purpose is a matter of dispute * * *
the vast majority of such ads clearly had such a purpose.”
540 U.S. at 206 (emphasis added) (citations omitted).

24

Fourth, the definition of electioneering communication is
keyed to messages that are targeted to the electorate relevant
to the candidate to which the message refers. This compo-
nent of the definition accounts for the fact that messages that
“target substantial portions of the electorate who decide a
candidate’s political future are those most likely to influence
an election, and carn the candidate's gratitude.” McConnell,
251 F. Supp. 2d at 633 (Kollar-Kotelly). Officeholders and
candidates confirmed that issue ads delivered to a candidate’s
electorate were intended to influence the election. /d. at 534.

Acknowledging that “Congress’ careful legislative adjust-
ment of the federal electoral laws, in a cautious advance, step
by step, to account for the particular legal and economic
attributes of corporations and labor organizations warrants
considerable deference,” McConnell, 540 U.S. at 117 (inter-
nal quotation marks & citations omitted), this Court upheld
Congress’s corrective measure embodied in BCRA Scction
203, and BCRA’s primary definition of “electioneering
communication” on which it relies, against a facial constitu-
tional attack in McConnell, see id. at 189-194, 203-209.

The deference that this Court in McConnell showed Con-
gress is especially appropriate “in [this] area where it enjoys
particular expertise.” /d. at 185 n.72. In this case, the Court
owes “no less deference than we customarily must pay to the
duly enacted and carefully considered decision of a coequal
and representative branch of our Government.” Walters v.
National Ass’n of Radiation Survivors, 473 U.S. 305, 319
(1985) (internal quotation marks omitted).-

Il. THE LOWER COURT’S REVIEW DEPARTS

FROM THIS COURT’S PRECEDENTS AND

THREATENS TO RE-OPEN THE LOOPHOLE
CLOSED BY BCRA SECTION 203.

The District Court traveled a misguided course in holding
- Section 203 unconstitutional as applied to WRIL’s anti-
filibuster ads——a course charted on a misapprehension of tts
role and in reaction to groundless fears, and one that, in the
end, led it far astray from McConnell’s well-lighted path.

25

1. The District Court fundamentally misunderstood the
task at hand. Even after the partics conducted discovery
(ordered by the court) and proposed findings of fact, see J.S.
App. at 9a-10a, it considered only the “language within the
four corners of the anti-filibuster ads,” id. at 22a, to find the
statute unconstitutional on the belief that “[d]etermining [the]
intent and the likely effect” of the advertisements is “too
conjectural and wholly impractical,” id. at 18a. But an-as-
applied constitutional challenge calls for a far more search-
ing—and fact-intensive—review. See United States
v. Christian Echoes Nat'l Ministry, Inc., 404 U.S. 561, 565
(1972) (as-applied challenge involves determining whether
“the section, by its own terms, infringed constitutional
freedoms in the circumstances of the particular case”); see
also Members of the City Council of Los Angeles v. Taxpay-
ers for Vincent, 466 U.S. 789, 798 (1984) (stating “general
rule that constitutional adjudication requires a review of the
application of a statute to the conduct of the party before the
Court”). That mode of review “requires an analysis of the
facts of a particular case to determine whether the applica-
tion of a statute, even one constitutional on its face, deprived
the individual to whom it was applied of a protected right.”
Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d
Cir. 2006) (emphasis added): see also Faustin v. City &
County of Denver, 423 F.3d 1192, 1196 (10th Cir. 2005)
(“[A]n as-applied challenge tests the application of th{e]
restriction to the facts of a plaintiffs concrete case.”);
Sanjour v. EPA, 56 F.3d 85, 92 n.10 (D.C. Cir. 1995) (en
banc) (noting as-applied challenge “ask[s] only that the
reviewing court declare the challenged statute or regulation
unconstitutional on the facts of the particular case”). The
District Court’s contrary approach rendered as-applicd
review a less precise tool for assessing the constitutionality
of an Act of Congress in a particular case by “formulat[ing] a
rule of constitutional law broader than is required by the
precise facts to which it ts to be applied.” United States
Vv. Raines, 362 U.S. 17, 21 (1960).

2. Moreover, the District Court adopted its “four corners”
review on a premise that this Court’s jurisprudence rejects. It

26

believed that it had to restrict its review to the face of
WRTL’s ads because “the judiciary * * * should not be in the
business of trying to read any speaker’s mind” and likewise
should not “be charged with conjuring the subjective intent of
the speaker.” J.S. App. at 2la-22a. But “[t}he law does not
refrain from searching for the intent of the actor in a multi-
tude of circumstances.” Bush v. Gore, 531 U.S. 98, 106
(2000); see also City of Indianapolis v. Edmond, 531 U.S.
32, 46-47 (2000) (“While we recognize the challenges
inherent in-a purpose inquiry, courts routinely engage in this

enterprise in many areas of constitutional jurisprudence
* * *”

As this Court has explained, “[i]t is common in the law to
examine the content of a communication fo determine the
speaker's purpose.” Hill v. Colorado, 530 U.S. 703, 721
(2000) (emphasis added); see, e.g., Connick v. Mvers, 461
U.S. 138, 147-148 (1983) (“Whether an cmployee’s speech
addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as
revealed by the whole record.”).

The Court has long considered a speaker’s intent, for ex-
ample, when assessing whether symbolic conduct receives
First Amendment protection. See, e.g., Texas v. Johnson,
491 U.S. 397, 404 (1989) (determining “whether particular
conduct possesses sufficient communicative elements to
bring the First Amendment into play” requires consideration
of “an intent to convey a particularized message”) (internal
quotation marks & alteration omitted); Spence v. Washing-
ton, 418 U.S. 405, 410-411 (1974). And, in other circum-
stances, this Court requires consideration of a speaker's
intent before his speech may trigger legal liability. see, e.g.,
Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967) (“We hold
that the constitutional protections for speech and press
preclude the application of the New York [right to privacy]
statute to redress false reports of matters of public interest in
the absence of proof that the defendant published the report
with knowledge of its falsity or in reckless disregard of the
truth.”): New York Times v. Sullivan, 376 U.S. 254, 279-280

27

(1964) (holding that a public official may not recover dam-
ages “for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
‘actual malice’ ”),-or provide grounds for termination from
public employment, see, e.g., Pickering v. Board of Educ.,
391 U.S. 563, 574 (1968) (“[A]bsent proof of false state-
ments knowingly or recklessly made by him, a teacher’s
exercise of his right to speak on issues of public importance
may not furnish the basis for his dismissal from public
employment.”).

3. Even more troubling than the District Court’s adoption
of a “four corners” test based on misplaced concerns is that,
in doing so, it ignored McConnell’s clear contrary instruction
to consider the intent and effect of political ads. There, the
Court rejected the plaintiffs’ argument that “the justifications
that adequately support the regulation of express advocacy do
not apply to significant quantities of speech encompassed by
the definition of clectioneering communications” because
they “apply equally to ads aired during th[e blackout] periods
if the ads are intended to influence the voters’ decisions and
have that effect.” McConnell, 540 U.S. at 206 (emphases
added). Such ads, it concluded, are the “functional equiva-
lent of express advocacy.” /d. And, while the Court declined
to identify the precise percentage of issuc ads that had an
electioneering purpose, it concluded that “[t]he vast majority
of ads clearly had such a purpose.” Jd. (emphasis added).

McConnell’s conclusion that issue ads are tantamount to
express advocacy—and permissibly regulated—‘if the ads
are intended to influence the voters’ decisions and have that
effect’ makes clear that review of an as-applied challenge to
Section 203 requires assessing whether the ads in question
are intended to influence voters and have that effect in view
of their context as well as content. By reviewing only
whether the “language within the four corners” of the ads met
a set of linguistic criteria different from Section 203’s
Objective criteria the District Court ignored the “unmustak-
able lesson” of McConnell: The “presence or absence of
magic words cannot meaningfully distinguish electioneering

28

speech from a true issue ad.”’ The District Court announced
a new set of “magic words” instead. /d. at 193.

4. If the District Court’s approach to as-applied challenges
to Section 203 stands, it threatens to re-open the express
advocacy loophole that unions and corporations exploited
until Congress closed it with that provision. As this Court
knows, “[i]f the history of campaign finance regulation * * *
proves anything, it is that political parties are extraordinarily
flexible in adapting to new restrictions on their fundraising
abilities.” McConnell, 540 U.S. at 173.

Congress put an end to the ability of corporations and labor
unions to use their treasury funds to influence federal elec-
tions by replacing the “functionally meaningless” express
advocacy test with objective, empirically-based factors that
identify ads intended to influence elections. /d. at 193. Yet,
if BCRA Section 203 cannot constitutionally apply to ads
that meet Congress’s objective standards, but do not, on their
face, meet the District Court’s different criteria, then actors
in the political arena will no doubt “test the limits” of the
new “four corners” rule with ads designed to influence
federal elections. Beaumont, 539 U.S. at 155.

To prevent a new wave of ads designed to circumvent the
campaign finance laws, and halt a return to the days of high
formalism and magic words, the review of as-applicd chal-
lenges to BCRA Section 203 should focus not just on the
“language within the four corners” of the ads but also, as
McConnell requires, on the intent and effect of the ads.

? In fact, the District Court actually invoked Buckley's rationale
for adopting the magic words requirement to support its limited
review, despite MeConnell’s clear holding that Buckley's “express
advocacy restricuion was an endpoint of statutory construction, not
a first principle of constitutional law.” 540 US. at 190.

29

lll. WRTL’S ADS ARE THE VERY TYPE OF
COMMUNICATIONS BCRA SECTION 203 IS
DESIGNED TO PROHIBIT.

Before the District Court restricted itself to the “language
within the four corners” of WRTL’s ads, it found that the ads
“may fit the very type of activity McConnell found Congress
had a compelling interest in regulating.” J.S. App. at 62a.
That conclusion --formed long before it reviewed the merits
of WRTL’s challenge—remains correct.

|. The context, timing, and content of WRTL’s ads reveal
that they are designed to “convey [a] message” opposing a
candidate for federal office—namely, Senator Feingold.
McConnell, 540 U.S. at 239. As for context, WRTL’s “role
in the political environment” first points to the ads’ purpose.
J.S. App. at 41a (Roberts, J., dissenting). WRTL spent more
than $60,000 in independent expenditures to oppose Senator
Feingold’s reelection, and issued a news release critical of his
record on the judicial filibuster issue. /d at 41a-42a.
WRTL’s PAC also announced that Senator Feingold’s defeat
was a priority and, toward that end, endorsed three candi-
dates running against him. /d.

2. The timing of the ads which both Congress and this
Court recognized is a key determinant for identifying ads
intended to influence an election— also signals that WRTL’s
ads were intended to influence Senator Feingold’s reelection
effort and, if aired, would have had that effect. Despite using
other, non-broadcast media to convey its anti-judicial-
filibuster message, WRTL only turned to the broadcast media
(and its ads playing on the needless-delay theme) in the run
up to the BCRA pre-election blackout period before the
election. See id. at Sa, 9a. Moreover, the notion that these
ads were intended to influence cloture votes on judicial
filibusters rather than Senator Feingold’s run for office —ts
gainsaid by the fact the ads only began to air affer the cloture
votes had taken place and when Congress was out of session
on a six-week recess. /d. at 43a (Roberts, J. dissenting).
WRIL did not even run its ads after the 2004 election “in

30

either 2004 or in 2005 during the height of the [judicial
filibuster] controversy.” /d. (citation omitted).

3. The content of the ads themselves further indicates that
they were intended to impact Senator Feingold’s re-election.
All of the ads that WRTL sought to air during BCRA’s
blackout period connect Senator Feingold to a “group of U.S.
Senators * * * blocking qualified [judicial] nominees from a
simple ‘yes’ or ‘no’ vote” by encouraging the listener (or, in
the case of the “Waiting” advertisement, viewer) to contact
Senator Feingold and tell him “to oppose the filibuster.” /d.
at 70a; see also id. at 67a, 69a. Indeed, while the ads offer
the listener or viewer no way to contact Senator Feingold,
they direct the listener or viewer to a website that “explicitly
attacked Feingold’s record and encouraged website readers to
defeat him.” /d. at 42a.

In sum, “{t]he notion that th{ese] advertisement{s] w{fere]
designed purely to discuss the issue of [judicial filibusters]
strains credulity.” McConnell, 540 U.S. at 194 n.78.

CONCLUSION

For the foregoing reasons, the judgment below should be
reversed and the case remanded for further proceedings.

Respectfully submitted,

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

FEBRUARY 2007 Counsel for Amici Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A19. Public record. Not legal advice.