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

Nos. 06-969 & 06-970

a

IN Tit

Supreme Court of the United States

FEDERAL ELECTION COMMISSION,

Appellant.

v.

WISCONSIN RIGHT TO LIFE. INC..

Appellee.

SENATOR JOUN MCCAINS ET AL.

Appellants,

Wi

WISCONSIN RIGHT TO LIFE. ING...

Appellee.

On Appeal From

The United States District Court

For The District Of Columbia

BRIEF OF

UNITED STATES SENATOR MEECH MeCONNELL

AS AMICUS CURTAE IN SUPPORT OF APPELLEE

LHLODORE BL OLSON

Counsel of Record

Doug ASR. CON

AUR CO. TAYRANI

GIBSON, DUNN & CRE PCHER LLP

LOS0 Connecticut Avenue. VW.

Washington, D.C. 20036

(202) YSS-SSOO

Cowrsel for Amicus Curiae

QUESTION PRESENTED

Whether the prohibition on corporate disbursements for

“electioneering communications” during a statutorily im-

posed black-out period, codified at 2 U.S.C. § 441b, is un-

constitutional as applied to television advertisements that are

devoted exclusively to urging constituents to contact named

elected officials regarding pending governmental matters.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......-.--osssseessssessessnnrennsensennnnnnnns i

TABLE OF AUTHORITIES.........-..::ccsesseereeseeersseensersenenenses il}

INTEREST OF AMICUS CURIAE ......:c:::ceseseseerersteersereeteees 1

STATEMENT. .........-:.ceecsccersoscsssscseresssossscersnsenessossnsnsensnesoenes 2

SUMMARY OF ARGUMENT .........:::ccecceeseereeteereeenssneerenenes 8

ARGUMENT. .........0:0:-scecccessssersssecesersscsesracssnnssnssnsesnnsnsensees 10

I GRASS-ROOTS LOBBYING IS CORE

POLITICAL SPEECH ..........-.:ccccscsseeeeeeseeesseeneeneens 10

ll. IN EVALUATING WHETHER A GRASS-

ROOTS LOBBYING COMMUNICATION

IS CONSTITUTIONALLY PROTECTED,

COURTS SHOULD CONSIDER ONLY

THE “FOUR CORNERS” OF THE AD .............-. 19

CONCLUSION .........:0:scccseeccessersrreesrnessneaneeensessseneanneannnees 26

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. United States,

SIO U.S. GIG (1DID) .......ceccccesccceccesesecccsecsessesescoseeee....... 19

Austin v. Mich. Chamber of Commerce,

Be TE, Ge CIID vcinercscciesconistitsmnmuntatanasinuioecce, 18

BE&K Constr. Co. v. NLRB;

|, ll

Brown v. Hartlage, 456 U.S. 45 eae cendnciaiviniednbdssdcananstaices 8

Buckley v. Valeo, 424 U.S. 1 (1976) coecccccccccccccecceceecec-.. 21

Cal. Med. Ass'n v. FEC, 453 U.S. 182 Ee 16

Colo. Fed. Campaign Comm. v. FEC,

PF a TIT iectntensincstttensnienmossmunleeciaaitisanees ine 2

Cruzan v. Dir., Mo. Dep't of Health,

SPF SPAR IPE CHOI cinisivicshchonsessovsrenmucininsieeanacesssesepesse. 23

E. R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S.127 (1961) cocccccceccccoceccocescoceee... 23

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) ooo cecccccccececeeeeee. 2, 12, 15, 17, 21, 25

First Nat'l Bank of Boston v. Bellotti,

SOS U.S. FES (1D 7B) 2ncaccccerececcesesseceeseseosee.. 13, 16, 18, 22

Garrison v. Louisiana, 379 U.S. 64 ENS 25

Globe Newspaper Co. v. Superior Court,

PF Ws SEU COIN vorsicantncisessiansnmiaseiniasistensssasanmen isco 10

Grosjean v. Am. Press Co., 297 U.S. 233 REO 1]

Lamont v. Postmaster Gen..

ceniesiittecnineciabis ee 20

IV

Page(s)

Cases (cont'd)

McConnell v. FEC,

SED UE. Fo GO ccecencvcesssnsenssnensee 2, 3, 4, 5, 8, 18, 19, 24

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2003) .......ceceeeereeeeees 13, 14

McIntyre v. Ohio Elections Comm'n,

| EI ee ee 10, 13, 19

Meyer v. Grant, 486 U.S. 414 (1988)... ccceeceseteeeeeeeees 20

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

Nixon v. Shrink Mo. Gov't PAC, .

NE italiane iaieaealasnaendiaiiael 2

N.Y. Times Co. v. Sullivan,

I sca seem neneNInaNENNDS 10

Randall v. Sorrell,

I a aati sae tectdenminiheadnlsel 2

Red Lion Broad. Co. v. FCC,

I ieee 10

ET nn REE 25

Rosenberger v. Rector & Visitors of the Univ.

Me 22

Roth v. United States, 354 U.S. 476 (1957) .....ccccccccceeeeeeeeess 10

Thornhill v. Alabama, 310 U.S. 88 (1940)............ccccceeeeeeeees 11

United States v. Cruikshank,

3, | EERE eee He meen ee 12

W. Va. Univ. Hosps., Inc. v. Casey,

I seen 23

Wisconsin Right to Life, Inc. v. FEC,

I i a ssmeennnineia 2,3,6

Page(s)

Statutes

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BF Ohl BOOM ccsnrnnnnnsnnisiicicincinniidadimmnn l

FF Reise 9h icxineniersscmnnsesemnidisinasaaaianaamiaaa 3

Bie Oh Se iicsecicssncicnninsnsinisieiiiaiaien Diasnesiniannintiesidinilipaiiel 3

BO als BS icsvisssssintsitnsttnncantiiaaindeimdaaainaa 4

es BPE ELE DP icvscnsesernisitiatibitiiniiiseenemamaane 10

Regulations

Pe Sk abe BH TED scorn cctnscnetinsinntacsminenaniagaeiaaibiaiinaie 3

Legislative Materials

ie Dg: EIA: ciciisiscnninmnsanceciittissinebiintieaiedims eee 16

Other Authorities

Continental Congress, Address to the

Inhabitants of the Province of Quebec

(Oct. 26, 1774), in 1 JOURNAL OF THE

CONTINENTAL CONGRESS 104 (1904 ed.)....0..ccccccceeeeeee li

Stephen A. Higginson, 4 Short History of the

Right to Petition Government for the

Redress of Grievances, 96 Y ALE L.J. 142

CUPID enisistncunssiisicuniiieaentidbautintaameiagiantae spnasiei 12

Mitch McConnell, Healthy Campaigns,

Democracy Are Compatible, THE HILL, -

SNE CA UT wiiinsiitedinisitisteideiiindladiamisatieaisteaciencmaieane ~— 19

Mitch McConnell, /n Defense of Soft Money,

PGs S's PEs TR Be, SIU cctcsinsliisipiieicesesanprnenmcamianassinioniaa 2

Mitch McConnell, Speech Limits Are Not

Reform, USA TODAY, Feb. 26, 2002 .0.............ccccseesecceeeees |

vi

Page(s)

Other Authorities (cont'd)

Mitch McConnell, Stop Arm-Twisting

“Support,” USA TODAY, Feb. 8, 2007 ..........ccceeeeens _

Press Release, Office of the Press Secretary,

President Signs Campaign Finance Reform

Act (Mar. 27, 2002), at

http://www. whitehouse. gov/

news/releases/2002/03/20020327 html ............0.ccceceeeeeees 3

Bradley A. Smith & Jason R. Owen, Boundary

Based Restrictions in Unbounded Broadcast

Media Markets: McConnell v. FEC ’s

Underinclusive Overbreadth Analysis,

18 STAN. L. & POL’y REV. _

(forthcoming 2007)

BRIEF OF

UNITED STATES SENATOR MITCH McCONNELL

AS AMICUS CURIAE IN SUPPORT OF APPELLEE

INTEREST OF AMICUS CURIAE'

The question presented in this case is whether the prohi-

bition on “electioneering communications,” codified at

2 U.S.C. § 441b, is unconstitutional as applied to grass-roots

lobbying. The First Amendment is essential to the vitality

and legitimacy of our political process. Amicus-—a long-time

advocate of First Amendment protection for political speech,

and an elected official with a vital personal stake in the

health of our political system-—has a significant interest in

the resolution of this question.

United States Senator Mitch McConnell is the senior

United States Senator from the Commonwealth of Kentucky

and the Senate Republican Leader. He also is the former

chairman and a current member of the Senate Rules and Ad-

ministration Committee, which is the committee responsible

for reviewing all proposed legislation related to federal elec-

tions. During his four terms in the Senate, Senator McCon-

nell has been one of the Senate’s foremost champions of vig-

orous political debate and has consistently argued that restric-

tions upon free speech are constitutionally doubtful and will

undermine popular participation in government. See, e.g.,

Mitch McConnell, Stop Arm-Twisting “Support,”” USA

TODAY, Feb. 8, 2007, at 14A; Mitch McConnell, Speech

Limits Are Not Reform, USA Topay, Feb. 26, 2002, at 13A;

! Pursuant to this Court's Rule 37.3(a), letters of consent from all par-

ties to the filing of this brief have been submitted to the Clerk. Pursuant

to this Court's Rule 37.6, amicus states that this brief was not authored in

whole or in part by counsel for any party, and that no person or entity

other than amicus or his counse! made a monetary contribution to the

preparation or submission of this brief.

2

Mitch McConnell, Jn Defense of Soft Money, N.Y. TIMES,

Apr. 1, 2001, § 4, at 17.

Senator McConnell’s strongly held beliefs about the

meaning of the First Amendment and the importance of ro-

bust political debate led him to challenge the constitutionality

of the Bipartisan Campaign Reform Act of 2002 shortly after

its enactment. See McConnell v. FEC, 540 U.S. 93 (2003).

He also has participated as amicus curiae in several other

cases contesting the validity of restrictions on political

speech.2 Senator McConnell’s position as a United States

Senator and his extensive experience with campaign finance

legislation give him unique insight into the constitutional in-

firmities presented by the Bipartisan Campaign Reform Act’s

application to the grass-roots lobbying efforts at issue here.

STATEMENT

1. In 2002, Congress passed, and the President signed,

the Bipartisan Campaign Reform Act (“BCRA”), which

amended the Federal Election Campaign Act of 1971

(“FECA”) to curb corruption or the appearance of corruption

in federal elections. See McConnell, 540 U.S. at 115 (calling

BCRA the most recent federal enactment designed to “purge

2 See Brief of United States Senator Mitch McConnell as Amicus Cu-

riae wm Support of Petitioners, Randall v. Sorrell, 126 S. Ct. 2479 (2006)

(No. 04-1528); Brief of United States Senator Mitch McConnell as

Amicus Curiae in Support of Appellant, Wis. Right to Life, Inc. v. FEC,

126 S. Ct. 1016 (2006) (No. 04-1581); Brief of Senator Mitch McConnell,

Missouri Republican Party, Republican National Committee, and National

Republican Senatorial Committee, as Amici Curiae in Support of Respon-

dents, Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000) (No. 98-

963), Bnef of Washington Legal Foundation, Fair Goverment Founda-

. thon, Allied Educational Foundation; U.S. Senators Alfonse M. D’ Amato,

Mitch McConnell; U.S. Representatives Henry J. Hyde, Bob Livingston,.

Joe Barton, Bob Walker, Bill Frenxel and Eugene McCarthy, as Amici

Curiae im Support of Petitioners, Colo. Republican Fed. Campaign

Comm. v. FEC, 518 U.S. 604 (1996) (No. 95-489).

3

national politics of what was conceived to be the pernicious

influence of ‘big money’ campaign contributions” (internal

quotation marks omitted)). When signing BCRA into law,

President Bush cautioned that several of its provisions “pre-

sent serious constitutional concerns.” Press Release, Office

of the Press Secretary, President Signs Campaign Finance

Reform Act (Mar. 27, 2002), at http://www.whitehouse.gov/

news/releases/2002/03/20020327.html [hereinafter Presiden-

tial Signing Statement]. The President expressed specific

“reservations about the constitutionality of [BCRA § 203’s]}

broad ban on issue advertising, which restrains the speech of

a wide variety of groups on issues of public import in the

months closest to an election.” /d.

A year later, this Court upheld most of BCRA’s provi-

sions, and rejected a facial challenge to BCRA § 203’s re-

strictions on issue advertising. McConnell, 540 U.S. at 207.

- In Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016

(2006), this Court clarified that its decision in McConnell did

not “resolve future as-applied challenges” to BCRA § 203.

Id. at 1018. This Court is now squarely confronted with the

as-applied constitutional challenge that McConnell invited

for another day.

2. BCRA §203 prohibits any corporation from

“mak{ing] a contribution or expenditure in connection with

any election to any political office, or in connection with any

primary election...for any political office.” 2 U.S.C.

§ 441b(a). The terms “contribution” and “expenditure” are

defined to include “electioneering communications.” /d.

§ 441b(b)(2).

An “electioneering communication,” in turn, is defined

as any broadcast, cable, or satellite cormmunication that

(1) refers to any clearly identified federal candidate; (ii) is

made within 30 days of a primary or 60 days of a general

election; and (111) is targeted to the electorate of the identified

candidate. 2 U.S.C. § 434(f)(3)(A)i): see also 11 C.F.R.

4

§ 100.29(b)(2) (“[rJefers to a clearly identified candidate

means that the candidate’s_name, nickname, photograph, or

drawing appears”). Once these provisions are triggered, a

corporation “may not use [its] general treasury funds to fi-

nance electioneering communications”; if it intends to run

advertisements referring to particular federal officeholders

during this black-out period, it must first create a distinct or-

ganization—-a separate segregated fund (or PAC)—in order

to speak. McConnell, 540 U.S. at 204; see also 2 U.S.C.

§ 441b(b)(2)(A)-(C).3 BCRA § 203 thus extended FECA’s

existing restrictions on “express advocacy,” which applied to

corporate-funded advertisements that explicitly advocated a

candidate’s election or defeat, to electioneering issue adver-

tisements, which did not expressly advocate a vote for or

against a candidate. McConnell, 540 U.S. at 193-94.

In McConnell, the parties challenging BCRA’s constitu-

tionality argued that § 203’s restriction on electioneering

communications was substantially overbroad and thus fa-

cially unconstitutional. 540 U.S. at 204. The Court rejected

this facial challenge because it believed that “the vast major-

ity” of issue ads aired during the weeks immediately preced-

ing an election served an electioneering purpose (id. at 206)

and that restrictions on such ads were necessary to combat

the potentially distorting impact of corporate wealth on elec-

tions. /d. at 205. The Court explained that the “justifications

for the regu!ation of express advocacy apply equally to [is-

sue] ads aired during those periods if the ads are intended to

influence the voters’ decisions and have that effect.” /d. at

206 (emphases added). The Court recognized that restric-

3 Section 441b(b)(2)(C) provides that “the term ‘contribution or expen-

diture’... shall not include ... the establishment, administration, and

solicitation of contributions to a separate segregated fund to be utilized for

political purposes by a corporation, labor organization, membership or-

ganization, cooperative, or corporation without capital stock.”

tions on issue ads that are nor intended to serve an election-

eering purpose are constitutionally suspect and are thus ame-

nable to an as-applied challenge. See id. at 206 n.88 (“inter-

ests that justify the regulation of campaign speech might not

apply to the regulation of... issue ads” that do not serve an

electioneering function).

3. During the summer of 2004, Wisconsin Right To

Life, Inc. (*“WRTL”), a nonprofit, 501(c) tax-exempt Wis-

consin corporation, ran a series of advertisements urging

Wisconsin residents to lobby United States Senators Feingold

and Kohl to oppose filibusters of judicial nominees. See Ju-

risdictional Statement Appendix (“J.S.A.”) at 2a-6a. The

filibuster issue was then receiving significant national atten-

tion, and there was a vigorous public debate about the judi-

cial confirmation process.

WRTL’s lobbying campaign did not refer to the Sena-

tors’ party affiliations, their general voting records, or their

personal lives. See J.S.A. at 3a-6a. In fact, the ads men-

tioned the Senators’ names only once, concluding with the

suggestion that listeners “[cjontact Senators Feingold and

Kohl and tell them to oppose the filibuster.” See id. (wording

of three filibuster ads). It is undisputed that, because the ads

made reference to Senator Feingold, who was then seeking

re-election, they fell within the plain terms of BCRA’s elec-

tioneering Communications provisions for approximately a

two-and-a-half-month period, beginning August 15, 2004.

See id. at 6a-7a.4

4. On July 28, 2004, WRTL filed suit in the United

States District Court for the District of Columbia and sought

a preliminary injunction allowing it to continue running the

filibuster ads with general treasury funds during the statuto-

4 Because Senator Feingold was a candidate in the September 14 pri-

mary and the November 2 general election, WRTL was prohibited from

running the filibuster ads from August 15 to November 2, 2004.

6

rily imposed black-out period. See J.S.A. at 7a. A three-

judge panel, convened pursuant to BCRA $ 403(a)(1), denied

WRTL’s request for injunctive relief, interpreting McConnell

as precluding all as-applied challenges to BCRA’s election-

eering communications provisions. See id. at 8a.

This Court noted probable jurisdiction and unanimously

reversed, concluding that the district court had misinterpreted

McConnell. Wis. Right to Life, 126 S. Ct. at 1018. The

Court explained that “{i]n upholding § 203 against a facial

challenge, we did not purport to resolve future as-applied

challenges,” id., and remanded the case with instructions that

the district court consider the merits of WRTL’s claims.

5. On remand, the district court granted WRTL sum-

mary judgment, holding that BCRA § 203 is unconstitutional

as applied to the three anti-filibuster ads that WRTL ran in

the period preceding the 2004 election. See J.S.A. at la-2a.

As an initial matter, the court held that WRTL’s claim with

respect to the three ads is not moot because the difficulty of

obtaining judicial review during the bnef BCRA blackout

period, and WRTL’s stated intention of running similar issue

ads during future periods, suffice to bring its challenge within

the exception for claims “capable of repetition, yet evading

review.” See id. at | la-15a.

On the merits, the court heid that BCRA § 203 cannot be

constitutionally applied to issue ads that are neither express

advocacy nor its functional equivalent because the govern-

ment lacks a compelling interest in foreclosing grass-roots

advocacy in the period preceding an election. See J.S.A. at

16a. The court therefore evaluated the text and images of

WRTL’s ads to determine whether they evidenced an elec-

tioneering purpose or effect. See id. at 18a-19a. The court

declined, however, to expand its inquiry beyond the “four

comers” of the ads, reasoning that it would be unmanageable

to conduct an as-applied challenge during the statutorily pre-

scribed blackout period if each case required depositions and -

>

expert testimony regarding the likely impact of an ad and its

sponsor’s alleged subjective intent. See id. at 19a-20a. The

court emphasized that “delving into a speaker’s subjective

intent is both dangerous and undesirable when First Amend-

ment freedoms are at stake.” /d. at 20a.

The district court listed several factors that it deemed

relevant in identifying a constitutionally protected grass-roots

lobbying ad—namely, whether the ad

(1) describes a legislative issue that is either cur-

rently the subject of legislative scrutiny or likely to

be the subject of such scrutiny in the near future;

(2) refers to the prior voting record or current posi-

tion of the named candidate on the issue described;

(3) exhorts the listener to do anything other than

contact the candidate about the described issue;

(4) promotes, attacks, supports, or opposes the

named candidate; and (5) refers to the upcoming

election, candidacy, and/or political party of the

candidate.

J.S.A. at 22a. Applying these factors to WRTL’s ads, the

court concluded that the ads did not serve an electioneering

purpose because they addressed judicial filibusters—a press-

ing matter of public concern—-and referred to Senator Fein-

gold, then a candidate for reelection, only in the ads’ “call-to-

action” line, which exhorted viewers to contact the Senator to

express their views on the issue. See id. at 23a-24a. The

court therefore concluded that BCRA § 203 could not be

constitutionally applied to WRTL’s ads. See id. at 29a.

The United States filed a notice of appeal and a jurisdic-

tional statement, and this Court agreed to hear the case, while

postponing further consideration of the question of jurisdic-

tion until the hearing on the merits.

8

SUMMARY OF ARGUMENT

This case presents the exceptionally important question

whether BCRA § 203’s restrictions on electioneering com-

munications can be constitutionally applied to grass-roots

lobbying ads that do not serve an electioneering purpose.

The Court’s resolution of this issue should give due regard to

the free speech and petition rights embodied in the First

Amendment.

In McConnell, the Court explicitly acknowledged the se-

rious constitutional concerns that would be raised by the ap-

plication of BCRA’s electioneering communications provi-

sions to grass-roots lobbying activity. See 540 U.S. at 206

n.88 (“interests that justify the regulation of campaign speech

might not apply to the regulation of . . . issue ads” that do not

serve an electioneering purpose); see a/so Presidential Sign-

ing Statement (expressing “reservations about the constitu-

tionality of the broad ban on issue advertising”). Because the

ability of citizens to express their views and communicate

with their elected representatives without restraint is the es-

sence of self-government and rests at the heart of the First

Amendment, BCRA § 203’s limitations on grass-roots lobby-

ing are unconstitutional.

Political speech rests “[a]t the core of the First Amend-

ment.” Brown v. Hartlage, 456 U.S. 45, 52 (1982). Grass-

roots lobbying, a traditional means of influencing govern-

mental action through citizen participation, fits squarely

within the scope of core political speech and is also a mani-

festation of the people’s constitutionally protected right to

petition the government. To restrict this class of favored

speech, the government must establish that the restriction is

narrowly tailored to serve a compelling governmental inter-

est.

This demanding level of scrutiny is warranted because

political speech underlies every facet of the American system

of government. Without robust political debate, the people

9

cannot govern themselves effectively. Grass-roots lobbying

facilitates self-governance by encouraging citizen participa-

tion in government and the free exchange of ideas. Open

discourse thus serves a consensus-building function, which

ensures that the “best” ideas win out in the political market-

place.

The government has not identified a compelling interest

sufficient to justify the imposition of BCRA’s restrictions on

grass-roots lobbying ads during the weeks immediately pre-

ceding an election, when constituents are most receptive to

political ads and Congress is often at the height of its legisla-

tive activity. A generalized concern about protecting the in-

tegrity of the election process does not justify imposing re-

strictions upon grass-roots issue ads because such restrictions

do not further the government’s asserted anticorruption inter-

est. Grass-roots issue ads are not functionally equivalent to

electioneering issue ads because grass-roots issue ads do not

urge a candidate’s election or defeat, either in appearance or

actuality. Indeed, the only link between grass-roots issue ads

and elections is the fact that such ads are run during the time

frame immediately preceding an election, and that they ex-

hort citizens to contact named elected officials with respect

to pending legislative or executive matters. A desire to insu-

late incumbents from public scrutiny is not a constitutionally

adequate basis for restricting debate on issues of political im-

port.

Nor would First Amendment interests be advanced by .

intrusive judicial scrutiny into the subjective political views

of grass-roots lobbyists. The district court was therefore cor-

rect that an objective test—one that limits the search for an

electioneering purpose and effect to the “four corners” of the

ad--is least intrusive and best ensures a speedy resolution to

litigation. An inquiry into the subjective intent underlying an

ad would not only be unduly burdensome but would also

impermissibly intrude upon the speaker’s political beliefs.

10

This Court should consider this case against the back-

drop of our “profound national commitment to the principle

that debate on public issues should be uninhibited, robust,

and wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,

270 (1964). Restricting grass-roots lobbying efforts would

silence core political speech that is integral to the functioning

of our form of government.

ARGUMENT

I. GRASS-ROOTS LOBBYING IS CORE

POLITICAL SPEECH.

A. Political speech lies at the heart of the First Amend-

ment’s protections, which ensure the “unfettered interchange

of ideas for the bringing about of political and social changes

desired by the people.” Roth v. United States, 354 U.S. 476,

484 (1957). Grass-roots lobbying, which includes any effort

to persuade the electorate to support or oppose particular leg-

islative or other official action, is essential to the robust po-

litical debate that the First Amendment was designed to fos-

ter. See, e.g., 26 U.S.C. § 4911(d)(1) (defining “grass roots”

lobbying for tax purposes). Such lobbying is a traditional

and critical tool through which people disseminate ideas and

make their views known to their elected officials.

This Court has long recognized the importance of “pre-

serv(ing] an uninhibited marketplace of ideas in which truth

will ultimately prevail,” and preventing “monopolization of

that market . . . by the Government itself.” Red Lion Broad.

Co. v. FCC, 395 U.S. 367, 390 (1969). Indeed, “issue-

based” speech involving “advocacy of a politically contro-

versial viewpoint . . . is the essence of First Amendment ex-

pression.” McIntyre v. Ohio Elections Comm'n, 514 U.S.

334, 347 (1995). Debate on issues of public importance en-

sures that the people, rather than the government, retain pri-

mary responsibility for the policy choices made on their be-

half. See Globe Newspaper Co. v. Superior Court, 457 U.S.

596, 604 (1982) (“the First Amendment serves to ensure that

i]

the individual citizen can effectively participate in and con-

tribute to our republican system of self-government”).

Constitutional protection for grass-roots lobbying pro-

motes participatory government. Through the dissemination

of views on public issues, grass-roots lobbyists help promote

public debate and the development of a responsible, informed

electorate. See Thornhill v. Alabama, 310 U.S. 88, 104

(1940) (First Amendment protection “is essential to the se-

curing of an informed and educated public opinion with re-

spect to a matter which is of public concern”); Grosjean v.

Am. Press Co., 297 U.S. 233, 250 (1936) (same). Informed

citizens, in turn, are better able to hold their representatives

accountable for unwise or unjust measures that impair the

public interest. Indeed, as the Founders were aware, the

“ready communication of thoughts between subjects, and its

consequential promotion of union among them,” render “op-

pressive officers ... ashamed or intimidated into more hon-

ourable and just modes of conducting affairs.” Continental

Congress, Address to the Inhabitants of the Province of Que-

bec (Oct. 26, 1774), in 1 JOURNAL OF THE CONTINENTAL

CONGRESS 104, 108 (1904 ed.), quoted in Thornhill, 310 U.S.

at 102.

WRITL’s grass-roots issue ads fit squarely within this

constitutional tradition because they were designed to raise

awareness among Wisconsin voters of the Senate’s filibuster

of judicial nominees and to urge constituents to contact the

very people who could bring the filibuster to a close—their

U.S. Senators.

The right to engage in grass-roots lobbying activity also

finds specific textual support in the First Amendment right

“to petition the Government for a redress of grievances,”

U.S. CONST. amend. I, which this Court has deemed “one of

the most precious of the liberties safeguarded by the Bill of

Rights.” BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524-25

(2002) (internal quotation marks omitted). The right to peti-

12

tion—coupled with the freedoms of association and assembly

also protected by the First Amendment—renders the gov-

ernment accountable to the people by providing citizens with

the ability to make their views known to their elected offi-

cials. Indeed, the “very idea of a government, republican in

form, implies a right on the part of its citizens to meet peace-

ably for consultation in respect to public affairs and to peti-

tion for a redress of grievances.” United States v. Cruik-

shank, 92 U.S. 542, 552 (1876).

The freedom to petition is distinct from the right of the

people to choose their representatives through periodic elec-

tions. See Stephen A. Higginson, A Short History of the

Right To Petition Government for the Redress of Grievances,

96 YALE L.J. 142, 162 (1986) (noting “the citizenry’s two

constitutional means of approaching the government: peri-

odic election and continual instruction through petitioning”).

While the right to vote ensures that the people can replace

ineffectual leaders with others who would better represent

them, elections are necessarily episodic. Popular participa-

tion in government, however, does not only occur during an

election cycle, because the Founders provided the people

with the right to petition, which is an independent and ever-

present check on the arbitrary exercise of power. It “not only

assure[s] popular control of government, but also attach{es]

to each citizen responsibility for the nation’s laws.” /d.

B. Because robust political speech is essential to repub-

lican government, this Court has applied the most exacting

judicial scrutiny to attempts to burden such expression. See

FEC v. Mass. Citizens for Life, Inc. (“MCFL”"), 479 U.S.

238, 256 (1986) (“When a statutory provision burdens First

Amendment rights, it must be justified by a compelling state

interest.”). This scrutiny is applied whenever a regulation’s

“practical effect ... is to make engaging in protected speech

a severely demanding task,” even if the law permits speech

by those who comply with the government’s directives. /d.

If the government identifies a compelling interest, the regula-

13

tion must still be “closely drawn to avoid unnecessary

abridgement” of speech. First Nat’l Bank of Boston v. Bel-

lotti, 435 U.S. 765, 786 (1978) (internal quotation marks

omitted). The severe constraints that 3CRA § 203 imposes

on grass-roots lobbying in the weeks preceding a federal

election cannot survive this stringent scrutiny.

To be effective, grass-roots lobbyists must be able to

communicate their message during the times best suited to

achieving their political objectives. Indeed, “[u]rgent, impor-

tant, and effect*ve speech can be no less protected than impo-

tent speech, lest the right to speak be relegated to those in-

stances when it is least needed.” McIntyre, 514 U.S. at 347;

see also Mills v. Alabama, 384 U.S. 214, 219 (1966) (holding

unconstitutional a state law that prohibited election-day

speech because the law “silence[d] the press at a time when it

can be most effective”). BCRA § 203 prohibits airing grass-

roots lobbying ads that fall within its definition of “election-

eering Communications” at the time when the public will be

most receptive to political ads and legislators will be most

likely to pay heed to their constituents’ guidance—the weeks

leading up to a federal election. See, e.g., McConnell v. FEC,

251 F. Supp. 2d 176, 793 n.98 (D.D.C. 2003) (Leon, J.) (list-

ing “important, and controversial, pieces of legislation” be-

fore Congress in the 60 days prior to the 2002 midterm elec-

tions). Indeed, by targeting messages concerning incumbent

officials who are facing reelection, BCRA § 203 prevents

grass-roots lobbying directed at those politicians most likely

to be sensitive to constituent concerns. The First Amend-

ment, however, prohibits the government from regulating

issue-based speech merely because it may prove influential.

See Bellotti, 435 U.S. at 791-92. The government cannot in-

sulate itself from criticism on public issues at the very mo-

ment when that criticism will be most keenly felt.

The realities of the presidential primary season and

multi-state media markets exacerbate the problems that ad-

vocacy groups face in airing grass-roots lobbying ads prior to

14

an election. Because each State holds a presidential primary

or caucus for both major parties, followed by the general

election in November, the total BCRA blackout period for

presidential nominees could exceed 120 days in every State.

See Bradley A. Smith & Jason R. Owen, Boundary Based

Restrictions in Unbounded Broadcast Media Markets:

McConnell v. FEC’s Underinclusive Overbreadth Analysis,

18 STAN. L. & PoL’y REV. _ (forthcoming 2007). Moreover,

because television networks in large metropolitan areas often

serve more than one State, such stations may need to observe

longer blackout periods due to staggered state primaries. See

id. Although these restrictions are most severe for national

candidates, they are by no means so limited (as the facts of

this case illustrate). Indeed, BCRA § 203 restricts, for exam-

ple, the ability of an advocacy group to run an issue ad in the

D.C. media market that names the sponsors of a bill or com-

mittee members conducting a hearing, if the network also

serves a State where the named incumbents are facing reelec-

tion. See id.

The alternatives offered by appellants do not provide

adequate channels for effective grass-roots lobbying. For

example, it will often not suffice for an advocacy group to

run an ad omitting the name of a candidate. This is particu-

larly true when the purpose of an ad is to spur the electorate

to action by convincing constituents to contact their elected

representatives about a specific political issue. See McCon-

nell, 251 F. Supp. 2d at 794 (Leon, J.) (citing expert testi-

mony stating that “[t}he express or implied urging of viewers

or listeners to contact the policymaker regarding [an] issue is

... especially effective by showing them how they can per-

sonally impact the issue debate in question” (alterations in

original)). The name of a candidate may also be indispensa-

ble when a piece of legislation is closely associated with a

particular person (e.g., “McCain-Feingold”) or when men-

tioning a candidate helps the viewer remember the message

of the ad. See id. For example, WRTL’s ads dealt with fili-

15

busters and judicial confirmations, which some members of

the public may not know are issues within the exclusive

province of the Senate. By asking the viewer to contact

Senators Feingold and Kohl, the ads connect familiar names

with the issue and with the legislative body responsible for

resolving it. An ad omitting those names would have left a

much more fleeting impression on viewers.

Nor does it suffice to save BCRA § 203 from unconstitu-

tionality that grass-roots lobbyists may run an tssue ad during

the statutorily prescribed “blackout” period by using PAC

money. As this Court has recognized, PAC regulations “im-

pose administrative costs that many small entities may be

unable to bear,” creating a disincentive for those organiza-

tions to engage in political speech at all. MCFL, 479 U.S. at

254. Indeed, the FEC’s “Campaign Guide for Corporations

and Labor Unions” is more than 115 pages long

(http://www.fec.gov/pdf/colagui.pdf), and the federal regula-

tions governing PACs are equally extensive. See 11 C.F.R.

pt. 102. In addition, more than thirty years of precedent gov-

erning PACs are embodied in FEC advisory opinions and

enforcement actions. Confronted with the specter of substan-

tial administrative fines for violations of these complex regu-

latory requirements, advocacy groups must generally retain

not only an election lawyer but also an accountant to ensure

regulatory compliance. These are costs that many groups

simply cannot afford, especially because they must also in-

vest in expensive computer equipment and software to com-

ply with the FEC’s electronic filing requirements for PAC

disclosures.

Moreover, “the reporting and disclosure requirements

{for PAC donors} will deter some individuals who otherwise

might contribute,” MCFL, 479 U.S. at 254 n.7 (internal quo-

tation marks omitted), and it is therefore more difficult for

corporations and nonprofit organizations to raise PAC money

than general treasury funds WRTL understandably desires

to use its scarce PAC resources to fund “express advocacy,”

16

or campaign-related speech. WRTL and similarly situated

groups should not have to choose between exercising their

First Amendment right to engage in electioneering or their

First Amendment right to pursue grass-roots lobbying cam-

paigns in the critical weeks before a federal election.>

Furthermore, WRTL’s PAC ts “a separate legal entity

... that engages in independent political advocacy.” Cal.

Med. Ass'n v. FEC, 453 U.S. 182, 196 (1981). Use of a PAC

would prevent WRTL from running an issue ad in its own

name. In addition, since organizations create PACs to solicit

money for campaign-related speech, and the FEC requires a

disclaimer on each ad funded by a PAC, BCRA § 203 com-

pels grass-roots lobbyists to create ads carrying the PAC la-

bel for speech that is unrelated to any election. Ironically, in

such cases, the law requires an issue-advocacy group to cre-

ate an ad that, while intended only to address an issue of pub-

lic concern, carries on its face a label suggesting an election-

eering purpose.

Perhaps recognizing the weakness of its arguments on

the merits, the United States makes the unprecedented claim

that WRTL bears the burden of proof in an as-applied consti-

tutional challenge to BCRA § 203. U.S. Br. 32. On the con-

trary, it is well-established that, “[e]specially where, as here,

a prohibition is directed at speech itself, and the speech is

intimately related to the process of governing, the State may

prevail only upon showing a subordinating interest which is

compelling.” Bellotti, 435 U.S. at 786 (internal quotation

marks and footnote omitted). The “burden is on the Gov-

5 The importance of preserving the right to engage in grass-roots lobby-

ing unencumbered by governmental burdens is reflected in the Senate's

recent vote to remove a provision from the Lobbying Transparency and

Accountability Act of 2007 thai would have required the public disclo-

sure of paid efforts to stimulate grass-roots Jobbying. S. 1, 110th Cong.

§ 220. The amended bill passed the Senate by a vote of 96-2.

17

ernment to show the existence of such an interest.” Jd. (em-

phasis added; internal quotation marks omitted). For exam-

ple, in MCFL, a nonprofit corporation brought an as-applied

challenge to the provision of FECA requiring corporations to

use a PAC to fund independent expenditures for express ad-

vocacy. See 479 US. at 241. In considering the claim, the

Court carefully scrutinized each of the rationales that the

United States offered in defense of the PAC requirement, and

concluded that none of them justified the onerous burdens

imposed on MCFL’s freedom of speech. See id. at 256-63.

This analysis would have been entirely beside the point if, as

the government now argues, MCFL had borne the burden of

establishing its entitlement to an exemption from a facially

valid law. The government’s test turns the traditional burden

of proof in First Amendment cases on its head.®

C. The government cannot demonstrate a compelling in-

terest that adequately justifies the significant burdens that

BCRA § 203 imposes on grass-roots lobbying.

6 The United States also asks this Court to adopt a novel standard for

determining whether a case falls under the “capable of repetition, yet

evading review” exception to mootness: namely, that WRTL must show

that it intends to run ads in the future that share “the particular character-

istics that the district court found legally dispositive.” U.S. Br. 25 (em-

phasis added). This standard is plainly incorrect. The practical effect of

requiring grass-roots lobbyists to demonstrate that they anticipate reoc-

currence of the precise factual circumstances before the court would be to

prevent the adjudication of any as-applied challenge to BCRA § 203 and

to insulate that provision from constitutional scrutiny. J.S A. at 14a. Un-

der this Court’s precedent, WRTL need only demonstrate that there is a

“reasonable expectation” that it will be subject to the “same action”

again. Belotti, 435 U.S. at 774 (internal quotation marks omitted). As

the intervenor-appellants concede, WRTL easily satisfies this burden,

“particularly in light of more recent attempts by WRTL to finance elec-

tioneering communications with its general treasury funds.” McCain Br.

13 n8.

18

The government does not have the same compelling in-

terest in regulating grass-roots lobbying as it does in regulat-

ing true electioneering. Congress enacted the “electioneering

communications” provisions in BCRA to protect the integrity

of electoral politics against “the corrosive and distorting ef-

fects of immense aggregations of wealth that are accumulated

with the help of the corporate form.” Austin v. Mich. Cham-

ber of Commerce, 494 U.S. 652, 660 (1990). There is no

comparable concern that corporations or nonprofits will use

grass-roots Iobbying—which is designed to foster discourse

between the people and their elected representatives, rather

than to further a campaign for political office—-to exercise

undue influence over elections. See McConnell, 540 U S. at

206 n.88 (“we assume that the interests that justify the regu-

lation of campaign speech might not apply to the regulation

of genuine issue ads”); Bellotti, 435 U.S. at 790 (“The risk of

corruption perceived in cases involving candidate elections

... Simply is not present” in an effort to influence the out-

come of a state referendum).

Grass-roots lobbying ads that merely advise voters to

contact their elected representatives to express their views on

a particular issue contribute neither to actual corruption nor

to its appearance. As the district court explained, the “com-

mon denominator between express advocacy and its func-

tional equivalent ... is the link between the words and im-

ages used in the ad and the fitness, or lack thereof, of the

candidate for public office.” J.S.A. at 27a. The government

has no legitimate interest in regulating speech under BCRA

§ 203 if that sp ech is directed at an issue of public concern

and ts silent on the suitability of the named candidate for of-

fice.

Indeed, the regulation of genuine issue advocacy actu-

ally impairs the government's interest in ensuring fair and

equal opportunity for citizens to participate in the electoral

process. While the use of corporate money in elections may

create perceived imbalances of political power, the free and

19

open exchange of ideas on issues of political importance is a

principal guarantor of equality in participatory government.

See McIntyre, 514 U.S. at 348 n.11 (“the best test of truth is

the power of the thought to get itself accepted in the competi-

tion of the market” (quoting Abrams v. United States, 250

U.S. 616, 630 (1919) (Holmes, J., dissenting))). The gov-

ernment is therefore wrong to suggest that regulation of issue

advocacy is necessary to prevent corruption in elections;

“healthy campaigns and a healthy democracy are not in con-

flict with the First Amendment, but contingent upon it.”

Mitch McConnell, Healthy Campaigns, Democracy Are

Compatible, THE HILL, July 24, 2002, at 30.

In McConnell, this Court recognized that there might be

examples of classes of speech that Congress could not consti-

tutionally regulate under BCRA § 203 and that the “justifica-

tions for the regulation of express advocacy apply equally” to

issue ads only “if the ads are intended to influence the voters’

decisions and have that effect.” 540 U.S. at 206 & n.88 (em-

phases added). The Court should now make clear that BCRA

§ 203 is unconstitutional as applied to grass-roots lobbying

because the government lacks a compelling interest in re-

stricting political speech that does not have the purpose or

effect of influencing an election.

Il. IN EVALUATING WHETHER A _ GRASS-

ROOTS LOBBYING COMMUNICATION

IS CONSTITUTIONALLY PROTECTED,

COURTS SHOULD CONSIDER ONLY THE

“FOUR CORNERS” OF THE AD.

Appellants urge this Court to endorse an open-ended,

subjective inquiry that would empower judges to scrutinize

the full panoply of a speaker's political views and activities

to determine whether a facially authentic issue ad “truly”

constitutes grass-roots lobbying. The substantial litigating

burdens associated with appellants’ proposed test would have

a significant chilling effect on the grass-roots advocacy of

20

groups unable to divert their finite resources to fund a

lengthy court battle with the government. Appellants’ test

also disregards the fact that advocacy groups like WRTL are

often interested in influencing both legislative activities and

the outcome of elections, and that they have a wide variety of

constitutionally protected tools at their disposal to further

their various political objectives. See Meyer v. Grant, 486

U.S. 414, 424 (1988) (“The First Amendment protects

[speakers’] right not only to advocate their cause but also to

select what they believe to be the most effective means for so

doing.”). To that end, advocacy groups organize community

events to educate the public about important issues, propose

and draft new legislation, establish and utilize PACs for elec-

tionecring purposes, and run issue-specific grass-roots lobby-

ing ads to support or oppose particular legislative proposals.

The test advocated by appellants would impermissibly bur-

den the grass-roots lobbying rights of those organizations

that also engage in express electioneering activities.

The district court therefore properly confined its inquiry

to the text and images of WRTL’s ads. This objective stan-

dard for identifying grass-roots lobbying safeguards the gov-

emment’s interest in preveuting corruption and preserving

the integrity of the electoral process. An invasive, subjective

inquiry, on the other hand, would chill constitutionally pro-

tected speech and unnecessarily burden the judicial process.

A. The subjective standard for identifying grass-roots

lobbying urged by appellants would require intrusive inquisi-

tions into the thoughts and beliefs of the officers and direc-

tors of grass-roots lobbying organizations to determine the

“true” motivation behind their ads. The prospect of having to

disclose one’s political affiliations and electoral preferences

by deposition or testimony in the course of a lawsuit is al-

most certain to deter “the uninhibited, robust, and wide-open

debate and discussion that are contemplated by the First

Amendment.” Lamont v. Postmaster Gen., 381 U.S. 301,

307 (1965) (internal quotation marks omitted). This will be

21

particularly true for small, comparatively unsophisticated

groups that engage in grass-roots lobbying. When con-

fronted with burdensome regulation and the possibility of

intrusive litigation, “it would not be surprising if at least

some [smaller] groups decided that the contemplated political

activity was simply not worth it.” MCFL, 479 U.S. at 255.

The members of political associations should not have to en-

dure such invasive judicial inquiries in order to exercise their

fundamental First Amendment rights. See J.S.A. at 20a

(“delving into a speaker’s subjective intent is both dangerous

and undesirable when First Amendment freedoms are at

stake”).

The district court also noted the significant practical

consequences of adopting a subjective test. An inquiry into

the intentions underlying an ad would entail lengthy discov-

ery and trial testimony, and would make it virtually impossi-

ble for issue advocates to mount a successful as-applied

challenge within the limited time frame of the BCRA black-

out period. See J.S.A. at 19a. Indeed, a subjective test would

make it very difficult for political associations to structure

their future conduct with any degree of certainty, as the gov-

ernment could conceivably introduce a written or oral state-

ment of any member of the organization as proof of hidden

electioneering intent. See Buckley v. Valeo, 424 U.S. 1, 43

(1976) (noting that a subjective intent test “puts the speaker

. wholly at the mercy of the varied understanding of his

hearers and consequently of whatever inference may be

drawn as to his intent and meaning” (internal quotation

marks omitted)). To ensure compliance with BCRA § 203,

advocacy organizations would need to consult closely with

lawyers in developing their grass-roots lobbying cam-

paigns—a cost that many groups would be unable to absorb

and that would compel such groups to forgo grass-roots lob-

bying altogether. The subjective approach advocated by ap-

pellants would thus inevitably result in the suppression of a

significant amount of constitutionally protected speech.

22

Moreover, this Court has made clear that First Amend-

ment protection cannot depend on the identity of the speaker.

See Bellotti, 435 U.S. at 777 (“The inherent worth of the

speech in terms of its capacity for informing the public does

not depend upon the identity of its source... .”). Indeed, the

First Amendment forbids regulation of speech “when the

specific motivating ideology or the opinion or perspective of

the speaker is the rationale for the restriction.” Rosenberger

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829

(1995). Despite this well-established prohibition on “view-

point discrimination,” appellants ask this Court to determine

whether WRTL’s ads constitute grass-roots lobbying by pars-

ing its press releases, e-alerts, voter guides, and the full con-

tent of its former website, “befair.org,” for evidence that

WRTL supports or opposes the candidate named in the ad.

See, e.g., McCain Br. 25, 27, 42.7 These materials and other

public pronouncements made by nonprofit groups like

WRTL will often reveal the electoral preferences of the

speaker; they do not, however, transform grass-roots lobby-

ing into the functional equivalent of express advocacy.

Participants in the political marketplace may use a vari-

ety of methods to achieve their policy aims, and each method

is suited to accomplish a particular result. It is undisputed

7 Appellants place considerable weight on the content of WRTL’s web-

site, “befair.org,” and the exhortation in the ads to visit the site for more

information. Directing viewers to the website makes perfect sense: It

will almost always be easier for viewers to remember the name of a web-

site than a telephone number or address mentioned briefly at the end of an

ad. While the full content of the site contains examples of campaign-

related speech (as well as contact information for the Senators), this will

be true of any advocacy group that engages in both electioneering and

lobbying activities, and that uses a website as a clearinghouse for its vari-

ous activities. Appellants’ blunderbuss approach to the analysis of an ad

threatens to strip issue-based speech of constitutional protection when-

ever a political association that runs issue ads publicizes its electioneering

activities on the same website that promotes its issue advocacy campaign.

23

that one of WRTL’s top legislative priorities in 2004 was to

end the filibuster of President Bush’s judicial nominees.

WRTL chose to conduct a grass-roots lobbying campaign to

increase citizen awareness of the issue and encourage con-

stituents to make their voices heard by contacting their

elected representatives. Regardless of whether WRTL also

engaged in electioneering activity, BCRA § 203 cannot be

constitutionally applied to WRTL’s grass-roots lobbying.

See, e.g., E. R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 138 (1961) (holding that the con-

stitutional right to petition precluded application of the

Sherman Act “to the activities of the railroads .. . insofar as

those activities comprised mere solicitation of governmental

action with respect to the passage and enforcement of laws”).

if this Court adopted appellants’ test, it would be difficult, if

not impossible, for a nonprofit entity that engaged in an array

of political activities, including electioneering, to avoid the

suspicion that its grass-roots lobbying campaigns were a

veiled attempt to influence an election.®

8 The “four corners” approach adopted by the district court does not, as

the United States suggests, reintroduce Buckley’s “magic words” test. See

U.S. Br. 38. Rather, it instructs courts to look to the text and images of an

ad to determine if the ad, when considered as a whole by a reasonable

viewer, “promotes, attacks, supports, or opposes the named candidate,” or

otherwise indicates that it is the functional equivalent of express advo-

cacy. See J.S.A. at 22a. This approach is hardly novel. Indeed, courts

routinely exclude extrinsic evidence in statutory or contractual interpreta-

tion because the text of the document itself is the most reliable evidence

of the author’s meaning. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 98-99 (1991) (“[W]e do not permit [statutory text] to be ex-

panded or contracted by the statements of individual legislators or com-

mittees during the course of the enactment process.”); Cruzan vy. Dir., Mo.

Dep't of Health, 497 U.S. 261, 284 (1990) (“At common law and by stat-

ute in most States, the parol evidence rule prevents the variations of the

terms of a written contract by oral testimony.”).

24

B. The district court properly applied its objective in-

quiry to WRTL’s ads. Those ads refer on their face to judi-

cial filibusters—-a pressing issue of public concern—and evi-

dence no electioneering intent. The ads mention the Senators

from Wisconsin only in the “call-to-action” line, do not

praise or criticize them politically or personally, and do not

refer to their voting records on the filibuster issue. See J.S.A.

at 3a-6a. Indeed, WRTL’s inclusion of the names of both

Wisconsin Senators—one of whom, Senator Kohl, was not

running for reelection in 2004-—strongly suggests that the

purpose of the ads was to influence legislative behavior, not

electoral outcomes.

Because no reasonable viewer could interpret these fa-

cially neutral ads as an attempt to influence an election, Con-

gress lacks a constitutionally sufficient basis to suppress that

political speech.?

* * *

A grass-roots lobbying campaign that urges the elector-

ate to contact its elected representatives to effect policy

change does not raise the corruption concerns that Congress

contemplated when it enacted BCRA’s “electioneering com-

munication” provisions. On the contrary, grass-roots lobby-

ing fosters broad-based participation in public affairs and en-

9 Appellants urge this Court to reject WRTL’s proposed test for identi-

fying constitutionally protected grass-roots lobbying ads and to adopt

instead a broader, subjective standard. See U.S. Br. 29-32. The need for

any such test, however, is a direct consequence of this Court’s decision in

McConnell upholding BCRA § 203’s facial constitutionality. See 540

U.S. at 206. The government should aut de permitted to silence core po-

litical speech merely because, under the legal framework created by Con-

gress and upheld in part by this Court, the lower courts may have to con-

front some difficult borderline cases. Indeed, the Court could reduce the

number of difficult cases by holding that, in the event of doubt, First

Amendment principles should prevail and constitutionally protected

speech should be allowed to proceed.

25

hances government accountability. Indeed, the United States

concedes that “some corporations are engaged in legitimate

issue advocacy designed to urge changes in the law rather

than to affect federal elections,” and that BCRA “may occa-

sionally capture advertisements that demonstrably lack any

electoral purpose or effect.” U.S. Br. 49. Without a compel-

‘ling state interest—which is demonstrably lacking here—

Congress cannot regulate such political speech because

“speech concerning public affairs is more than self-

expression; it is the essence of self-government.” Garrison

v. Louisiana, 379 U.S. 64, 74-75 (1964).

Ultimately, appellants seem to believe that it is more ex-

pedient to prohibit all speech that falls within BCRA § 203’s

broad definition of “electioneering communications,” rather

than to permit case-by-case adjudication of the purpose and

effect of particular ads. However, “the desire for a bright-

line rule ... hardly constitutes the compelling state interest

necessary to justify any infringement on First Amendment

freedom.” MCFL, 479 U.S. at 263 (emphasis in original).

Indeed, the notion that the First Amendment ceases to oper-

ate when it “become|s] inconvenient or when expediency

dictates otherwise is a very dangerous doctrine [that] would

... undermine the basis of our government.” Reid v. Covert,

354 US. 1, 14 (1957). Legislation, however well-

intentioned, may not intrude on the basic liberties that make

republican government possible.

26

CONCLUSION

For the foregoing reasons, the judgment of the district

court should be affirmed.

Respectfully submitted.

THEODORE B. OLSON

Counsel of Record

DOUGLAS R. Cox

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

March 22, 2007