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

2

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Nos. 06-969 & 06-970

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION,

Appellant,

WISCONSIN RIGHT TO LIFE. INC..

Appellee.

SENATOR JOHN MCCAIN, ET AL..

Appellants,

WISCONSIN RIGHT TO LIFE. INC.,

Appellee.

On Appeals from the United States District Court

for the District of Columbia

BRIEF OF NATIONAL ASSOCIATION OF REALTORS*«

AS AMICUS CURIAE IN SUPPORT OF APPELLEE

LAURENE K. JANIK DAVID C. FREDERICK

RALPH W. HOLMEN Counsel of Record

NATIONAL ASSOCIATION OF BRENDAN J. CRIMMINS

REALTORS® KELLOGG, HUBER, HANSEN,

130 North Michigan Ave. TODD, EVANS & FIGEL.

Chicago, [L 60611-4087 Patek,

(312) 829-8375 1615 M Street, N.W.

Suite 400

Washingten, D.C. 20036

(P02) 526-7900

Couwrsel for National Association of REALTORS

March 23, 2007

TABLE OF CONTENTS

Page

Ee Oe Fr CE eric terrcsteviccttasncossecatnoesesnsesasennes il

INTEREST OF AMICUS CURIAE ...........cccccc0cseccessseseseeees l

TET ITT nos AR RA COE 4

|, ee 6

STITT isuishesstasstaicteidbiasissineiidsgitnianiadetidemitbiidnantnannaaiabadiiadiaes 8

BCRA §203 IS UNCONSTITUTIONAL

AS APPLIED TO TRUE LEGISLATIVE

ee iieriiicinncciciiinnsinncnensiniianiaiiavitiianinenaneieesihivins 8

A. No Compelling Government Interest

Justifies BCRA § 203’s Burden On

First Amendment Rights..................cc00eccesceeeee 8

B. NAR’s Advertisements Are Not The

Functional Equivalent Of Express

ST ciicistacetcshastesdalnechnicenciiaeabaiastaitabceerpaiebiotaniamibtadaibialines 18

C. Legislative Advocates Do Not Bear

The Burden Of Establishing A Legal

rail isceisasidinssstsiaaibaniintciiuitithatiindiiabesiiehinihaindniniabadibiantimnnataten 19

D. The Court Should Limit Any Exami-

ee ee ee biciiindctictenssdceinsndesnnnsnnanicamscacindeds 22

E. Print Media May Not Be An Available

FEI ccccrncccseicwiaggazepeninans seaisetmbeecbenintaininssiin 23

IT sinisintninasdinninseiihidentinarmniceinnimctnaumnannindaie 26

i

TABLE OF AUTHORITIES

Page

CASES

Austin v. Michigan Chamber of Commerce,

EE Fs Te ee cscenmintcicnsncsintnieentiemnemmneens 13, 15, 16

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995)... cece 2

Buckley v. Valeo, 424 U.S. 1 (1976) ...............csseeeeeseeees 4, 12,

14, 15, 16, 24

Citizens Against Rent Control/Coalition for Fair

Housing v. City of Berkeley, 454 U.S. 290

ich eaten inna 14

City of Monterey v. Del Monte Dunes at Monterey,

RR IS ene eT 2

Consolidated Edison Co. of New York, Inc. v.

Public Serv. Comm'n, 447 U.S. 530 (1980)........... 13, 17

Dolan v. City of Tigard, 512 U.S. 374 (1994) ......... ee. 2

Eastern R.R. Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961) .............. 14, 15

FEC v. Beaumont, 539 U.S. 146 (2003) ........... eee eeeeeees 16

FEC v. Massachusetts Citizens for Life, Inc.,

es II ceisipsnsesicenetinnnniiantinnsiannssitenisaiiies 2, 3, 4, 15,

16, 18, 20, 21, 23, 24

FEC v. National Conservative Political Action

Si ns TInt teressnicninsinideiariandaiiiinnubetuadianees 5

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

UNI cheek etiam da nen aad iaasatntiahiy 16, 17

First Natl Bank of Boston v. Bellotti, 435 U.S.

REE FERRI OT OND meee E ET Se aLeD ee 12. 13, 16, 17, 18

Garrison v. Louisiana, 379 U.S. 64 (1964)............00.ceeee 12

Kelo v. Citv of New London, 545 U.S. 469 (2005)............... 2

Lincoln Property Co. v. Roche, 546 U.S. 81 (2004).......... 1-2

ill

Lucas v. South Carolina Coastal Council,

RR REERERTE II CRR ARRRAa ernie eater 2

McConnell v. FEC:

251 F. Supp. 2d 176 (D.D.C.), aff'd in part,

rev d in part, 540 U.S. 93 (2003) .............ccceeeeeeeee 8-9, 15

NN ek Se citsensnnscinsenenscsnerennninisiin 3, 4, 5, 6, 7, 15,

16, 17, 22, 24, 25, 26

Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334

ITT seciinibinictedhieninatdasmnstenedieibiencitnedsinitecmaneaieds 13, 15, 16

Mills v. Alabama, 384 U.S. 214 (1966) ................cccc cece eee 12

NAACP v. Alabama, 357 U.S. 449 (1958) ............ eee 14

NAACP v. Button, 371 U.S. 415 (1968) 2.00... eee cece eee 14

New York Times Co. v. Sullivan, 376 U.S. 254

ITI ncanetneisnennepengipnntiaeanebnaemnbetainneitetmnsimentetnignvenieane 12

Pacific Gas & Elec. Co. v. Public Utils. Comm'n,

es te ee iicctcinichnncnitadiomintnanndtnbinvsdieiaiabisentnncese’ 13

Rapanos v. United States, 126 S. Ct. 2208 (2006) ............. 1

Roth v. United States, 354 U.S. 476 (1957) .......... cee eee 12

Thornhill v. Alabama, 310 U.S. 88 (1940) .................2.008 12

Yee v. City of Escondido, 503 U.S. 519 (1992).................... 2

CONSTITUTION, STATUTES, REGULATIONS,

AND RULES

U.S. Const.:

PA RI is Oils Uenitinesiciniennnianintbneacnettnnindiiiuinlendeeiiumninitiitniaiaiats 9

pt ee 4, 6, 7, 8, 11, 12, 13, 14, 16, 21, 22, 23

I ERIN sancsissioniunsicempssssmenbuvenoniiiinidnniieced 11, 14,15

I a abla cenaeaeacehcaeal ea 1]

iV

Bipartisan Campaign Reform Act of 2002, Pub.

L. No. 107-155, 116 Stat. 81............ceecrcoreersees greeneesnns 3

BBO, 196 Beak. GD .....cerccccecrsvccssssvseesees eneenacedunousseoubocaintt 5

£8 eee 3, 5, 6, 7, 8, 14,

15, 16, 17, 18, 20, 23, 25

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

TE GO ©. ccossotscinisieeennnaameniinamntcaein 2

ray Se EE censctbesriitcencbesnibiniinansctiindencuedesinnbbaiadabiliiiiin 15

I ere NIE schsnsncrnicbesesitnisetiiedtacbeinanietiniaitcintaveiidiaiailibenitig 5

eS No ll

rte Bh a eR scsccncicnrecscrsnsscvensscsinisencees 17-18

ee ee vitiintiiciiiciitivencciincsseniinmamiannienition 5

Be ae ITE iieitsincietersciesbicaheenetineisiciaiicaheatibiitaiidainniiy 2, 23

le Oe I eiihcsiisiseischincetsisiinsenasciiniaistaiituncaiinnsieniinin 3,5

ee ie I ccseiicccseenestisanneninetdendseianiséintention 2

Federal Election Campaign Act Amendments of

1974, Pub. L. No. 93-443, 88 Stat. 1263 ................cc0008 4

11 C.F.R.:

Pt. 100:

iy SEED hiceeiisadacibiidhiptadsceaulaielddiabdiniitenimmaiameciod 24, 25

SERS ornare noone ean n oOo rote 15

PW Hdeieibiicisiaticadacciaseasbcetpeciartcsidsstpaiiilaabaniddgailteieicsimianeiaieeoaiiidal 2

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Vv

ADMINISTRATIVE MATERIALS

Electioneering Communications, 67 Fed. Reg.

IRR UI ii allie 18

FEC, First General Counsel’s Report (Aug. 10,

2005), available at http://eqs.sdrdc.com/

TE vicctcintiiowinintnatininametniatanienn 24, 25, 26

FEC, Third General Counsel’s Report (Nov. 3,

2006), available at http://eqs.sdrdc.com/

Ie BE eictcnctntintndsccnitiienasiaibiiiainiaiiiinitinis 25

Letter from Susan L. Lebeaux, Assistant General

Counsel, FEC, to B. Holly Schadler, Esgq.,

and Michael B. Trister, Esq. (Nov. 15, 2006),

available at http://eqs.nictusa.com/eqsdocs/

EERIE LPN ET: 25

Letter from Senator John McCain et al. to Mai

Dinh, FEC (Aug. 23, 2002), available at

http://www.fec.gov/pdf/nprm/electioneering _

comm/comments/us_cong_members.pdf......... 18, 19, 22

Letter from Lawrence H. Norton, General

Counsel, FEC, to B. Holly Schadler, Esq.,

and Michael B. Trister, Esq. (July 21, 2006),

available at http://eqs.nictusa.coni/eqsdocs/

ce ORIEL EMAIL 23

EXECUTIVE MATERIALS

Statement by President George W. Bush Upon

Signing H.R. 2356, 38 Weekly Comp. Pres.

Doc. 517 (Mar. 27, 2002), reprinted in 2002

REAM AIDs.. HUNTED suicviscsensiiipnsetiecnnndciiedasinbiidiathaadadammminnianictaas 17

vi

LEGISLATIVE MATERIALS

147 Cong. Rec.:

$2812-13 (daily ed. Mar. 23, 2001) ............eeeeeeeeeeee 17

$2845-46 (daily ed. Mar. 26, 2001) .............eeeeeeeeeeee 17

OTHER MATERIALS

Thomas Emerson, Toward a General Theory

of the First Amendment (1966)...........ccccccccccceceeeeeeeecees 12

INTEREST OF AMICUS CURIAE'

Amicus the National Association of REALTORS"

(“NAR”) is a nationwide, nonprofit professional associa-

tion, incorporated in Illinois, that represents persons en-

gaged in all phases of the real-estate business, including,

but not limited to, brokerage, appraising, management.

and counseling. Founded in 1908, NAR was created to

promote and encourage the highest and best use of the

land, to protect and promote private ownership of real

property, and to promote professional competence. Its

members are bound by a strict Code of Ethics to ensure

professionalism and competence. The membership of

NAR includes 54 state and territorial Associations of

REALTORS*, approximately 1,500 local Associations of

REALTORS’, and approximately 1.3 million REALTOR*

and REALTOR-ASSOCIATE® members.

NAR represents the interests of real-estate profession-

als and real-property owners in important matters before

the legislatures, courts, and executives of the federal and

state governments. The issues presented in those mat-

ters include fair-lending practices, equal opportunity in

housing, real-estate licensing, neighborhood revitaliza-

tion, housing affordability, and cultural diversity. NAR

has previously participated as amicus curiae in numer-

ous cases before this Court, including, e.g., Watters v.

Wachovia Bank, N.A., No. 05-1342 (argued Nov. 29, 2006):

Rapanos v. United States, 126 S. Ct. 2208 (2006): Lincoln

' Pursuant to Supreme Court Rule 37.6, counsel! for amicus repre-

sents that it authored this brief and that no person or entity other than

amicus or its counsel made a monetary contribution to the preparation

or submission of the brief. Counsel for amicus represents that counsel

for all parties have consented to the filing of this brief. Appellants im

No. 06-970 have filed a letter with the Clerk granting blanket consent

to any party filing an amicus brief, and letters reflecting the consent of

appellant Federal Election Commission (No. 06-969) and appellee Wis-

consin Right to Life. Inc. (Nos. 06-969 & 06-970) to the filing of this

brief have been filed with the Clerk.

* REALTOR® is a federal registered collective membership mark

used by members of NAR to indicate their membership status

2

Property Co. v. Roche, 546 U.S. 81 (2005); Kelo v. City

of New London, 545 U.S. 469 (2005); City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999);

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992); ane Yee v. City of

Escondido, 503 U.S. 519 (1992).

NAR engages in a variety of federal legislative and po-

litical activities intended to advance the interests of its

members by improving the legal climate in which the

members conduct their businesses. Those activities in-

clude financing communications to educate NAR members

and the general public about legislation and other matters

pending in Congress that may impact the real-estate

industry. Those communications may specifically identify

members of Congress and call on them to support or

oppose legislation, and they may encourage viewers to

contact the specified members of Congress to take a par-

ticular position. For example, NAR has paid for adver-

tisements promoting legislation to preserve the ability

of neighborhood real-estate professionals to serve local

communities. Those communications, which share fea-

tures of the three advertisements at issue here, are in-

tended to influence the adoption or defeat of legislation,

and are not intended to influence the election or defeat of

any candidate for federal office.

Although NAR maintains a PAC (the REALTORS®

Political Action Committee), the extensive regulations and

fundraising constraints imposed on PACs (see 11 C.F.R.

pt. 102°) make it unduly burdensome for NAR both to

use PAC contributions to support federal candidates, as

required by the Federal Election Campaign Act of 1971, 2

U.S.C. § 441b(a), (b)(2)(C), and at the same time to pay for

its legislative advocacy through its PAC. Further, NAR

3 See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

253-54 (1986) (“MCFL") (plurality) (detailing requirements imposed on

PACs).

3

cannot satisfy the requirements for the constitutional ex-

emption to federal regulations of independent expendi-

tures that this Court established in MCFL because many

of its members pay their membership dues with corporate

funds. See 479 U.S. at 264 (exempt corporation must not

accept contributions from business corporations). Signifi-

cantly, that is true even though most of NAR’s members

are local, independent real-estate brokers who do not pos-

sess the “immense aggregations of wealth” with which

this Court has expressed concern. McConnell v. FEC, 540

U.S. 93, 205 (2003) (internal quotation marks omitted).

NAR files this amicus brief for two principal reasons.

First, this case is critically important to NAR’s continuing

ability to express the views of real-estate professionals

and real-property owners on federal legislation. The Fed-

eral Election Commission (“FEC”) seeks to use the Bi-

partisan Campaign Reform Act of 2002, Pub. L. No. 107-

155, 116 Stat. 81 (“BCRA”), and this Court’s decision in

McConnell essentially to shield incumbent legislators

from all grass-roots lobbying for the critical three-month

period before any national election. The FEC has justified

that result using both BCRA’s prohibition on “election-

eering communications” by corporate bodies (2 U.S.C.

§ 441b(b)(2)) and a recently expanded application of fed-

eral restrictions on so-called “express advocacy.”

Second, NAR files this brief to provide the Court with

additional context in which to consider appellee’s as-

applied challenge to BCRA § 203. NAR provides examples

of the grass-roots lobbying advertisements that it has

sponsored and hopes to continue to sponsor. Those adver-

tisements, which are described in greater detail below,

represent quintessential exercises of the rights of speech, -

petitioning, and association — an association of profes-

sionals petitioning members of Congress to support a

piece of federal legislation, and urging concerned citizens

to do likewise. However the Court resolves appellee's as-

applied challenge (and it should be sustained), the Court

should recognize — like BCRA’s own sponsors have — that

4

genuine issue ads do exist and the First Amendment pro-

tects them.

STATEMENT

The developments in electoral campaigns and their»——

regulation that led to the statutory provision at issue here

begar in 1974, when Congress passed a law limiting the

ability of individuals and groups to communicate their

views on candidates for federal office.’ That law re-

stricted both “the giving and spending of money in politi-

cal campaigns.” Buckley v. Valeo, 424 U.S. 1, 15 (1976)

(per curiam). This case involves a restriction on spending.

In Buckley, this Court held that restrictions on cam-

paign spending burden the exercise of rights of speech

and association, triggering “exacting scrutiny” under the

First Amendment. See id. at 19-20, 22-23, 39, 44-45.

In addressing disclosure requirements for independent

expenditures, the Court interpreted the vague statutory

term “expenditure” (which was defined to include spend-

ing “for the purpose of .. . influencing” a federal election)

to apply only to “funds used for communications that ex-

pressly advocate the election or defeat of a clearly identi-

fied candidate” for federal office. Jd. at 80 (footnote omit-

ted). The First Amendment compelled that interpretation

because the language as drafted threatened unconstitu-

tionaily to chill speech on “public issues involving legisla-

tive proposals and governmental] actions.” Id. ai 42; see

id. at 42-44, 76-80. The law at issue in Buckley also lim-

ited spending by groups, but no party challenged that as-

pect of the statute. See McConnell v. FEC, 540 U.S. 93,

122 (2003). The Court’s narrowing interpretation of the

disclosure provision was later applied to the group expen-

diture limitations as well. See id. at 126; FEC v. Massa-

chusetts Citizens for Life, Inc., 479 U.S. 238, 248-49 (1986)

(“MCFL”). Before BCRA, therefore, federal law prohibited

corporations and unions from making expenditures on

* Federal Election Campaign Act Amendments of 1974, Pub. L. No.

93-443, 88 Stat. 1263.

5

such forms of expression as television advertisements that

expressly advocated the election of a candidate or the

defeat of her opponent.® See McConnell, 540 U.S. at 203;

MCFL, 479 U.S. at 249; 2 U.S.C. § 441b (2006).

In the years preceding BCRA’s enactment, Congress

concluded that candidates’ supporters were circumventing

that spending restriction by paying for ads that were in-

tended to and did function as candidate advertising but

eschewed the words of express advocacy (which were gen-

erally limited to words like “vote for”). See McConnell,

540 U.S. at 126-28. Instead of expressly telling the viewer

to vote for or against a particular candidate, the ads

would instead take the form of “so-called” or “sham” issue

ads — for example, an ad “that condemned {candidate}

Jane Doe’s record on a particular issue before exhorting

viewers to ‘call Jane Doe and tell her what you think.’”

Id. at 126-27, 132. -

In part to address that problem of “candidate adver-

tisements masquerading as issue ads,” id. at 132 (internal

quotation marks omitted), Congress enacted BCRA. As

interpreted by this Court, § 203 prohibits corporations

from using their general treasury funds to pay for any

“electioneering communication.” 2 U.S.C. § 441b(b)(2); see

*McConnell, 540 U.S. at 203-04 & n.87. Section 201, in

turn, defines an “electioneering communication” as any

broadcast, cable, or savellite communication that refers to

a candidate for federal office and that is broadcast within

30 days of a federal primary election or 60 days of a fed-

eral general election in the jurisdiction in which that can-

didate is running for office. 2 U.S.C. § 434(f)(3).

In McConnell, this Court rejected a facial challenge to

the constitutionality of those provisions. see 540 U.S. at

>» See generally FEC v. National Conservative Political Action

Comm., 470 U.S. 480, 490 (1985) (‘On the record before us, these ex-

penditures were.‘independent in that they were not made at the re-

quest of or in coordination with the official Reagan election campaign

committee or anv of its agents.”).

6

189-94, 203-09, Several plaintiffs in that case contended,

among other things, that § 203 was overbroad because the

compelling government interest justifying regulation of

express candidate advocacy did not apply “to significant

quantities of speech encompassed by the definition of elec-

tioneering communications.” Jd. at 206. According to the

Court, that contention “failfed] to the extent that the issue

ads broadcast during the 30- and 60-day periods preced-

ing federal primary and general elections are the func-

tional equivalent of express advocacy.” Jd. (emphasis

added). It further stated that “|t]he justifications for the

regulation of express advocacy apply equally to ads aired

during those periods if the ads are intended to influence

the voters’ decisions and have that effect.” Jd. This case

presents the question McConnell left open — namely,

whether § 203’s prohibition on “electioneering communi-

cations” can constitutionally be applied to an ad that is

not “the functional equivalent of express advocacy.”

SUMMARY OF ARGUMENT

A. Wisconsin Right to Life, Inc. (““WRTL”) seeks to

sponsor broadcast communications advocating positions

on matters pending before Congress and urging citizens to

contact their members of Congress about those matters.

NAR believes that it should be able to engage in similar

legislative advocacy. Legislative advocacy of the type that

WRTL and NAR seek to conduct (which is referred to as

grass-roots lobbying) implicates the First Amendment’s

protections for speech, petitioning, and association.

BCRA § 203, which prohibits corporate grass-roots lobby-

ing of incumbent candidates for 30 days before a primary

and 60 days before a general election, burdens all three of

those First Amendment protections. Although this Court

has recognized a compelling government interest in limit-

ing corporate spending on electoral advocacy, it has not

recognized a similar interest in limiting corporate speech

addressing legislative affairs. Because no compelling in-

terest justifies BCRA § 203’s burdens on true legislative

7

advocacy, that provision is unconstitutional as applied

here.

B. The FEC and the intervenors contend, however, that

the compelling government interest in restricting corpo-

rate electoral spending justifies prohibiting grass-roots

lobbying during the pre-election period. But communica-

tions like those that NAR desires to fund are not the func-

tional equivalent of express candidate advocacy, and their

regulation therefore cannot be defended on that ground.

C. In criticizing the district court’s conclusion that the

First Amendment precludes BCRA § 203’s application to

WRTL’s planned advertisements, the FEC asserts that

WRTL, and other similarly situated speakers challenging

the application of BCRA § 203 to their speech, cannot pre-

vail on an as-applied challenge to § 203 unless it articu-

lates a legal test to govern future as-applied challenges.

But nothing justifies imposing such a requirement on

speakers such as WRTL.

D. The FEC and the intervenors also criticize the dis-

trict court for giving insufficient weight to purported con-

textual fects — such as separate statements made by

WRTL (or other individuals and groups) about the up-

coming election. The wide-ranging inquiry that the FEC

and the intervenors urge conflicts with the approach that

this Court took in McConnell and penalizes one speaker

for the statements of others.

E. In asserting that BCRA imposes a tolerable burden

on First Amendment freedoms, the FEC and the inter-

venors rely on the fact that BCRA’s definition of election-

eering communications does not include print or other

non-broadcast advertisements. But the availability of

those avenues of expression is not as clear as the FEC and

the intervenors suggest. The FEC recently has taken an

aggressive interpretation of its ability to prohibit corpo-

rate funding of non-broadcast advertisements that the

FEC contends contain express electoral advocacy by con-

sidering amorphous contextual factors — an approach that

8

significantly threatens to chill legitimate and constitu-

tionally protected speech.®

ARGUMENT

BCRA § 203 IS UNCONSTITUTIONAL AS APPLIED

TO TRUE LEGISLATIVE ADVERTISING

The district court correctly held that BCRA’s prohibi-

tion on “electioneering communications” cannot constitu-

tionally be applied to “genuine issue ads” — that is, ads

that are neither “express advocacy” nor “its functional

equivalent.” J.S. App. 17a. As applied here, BCRA bur-

dens the exercise of fundamental First Amendment free-

doms, and the compelling government interest in regulat-

ing corporate speech on candidate elections does not apply

to true legislative advertising.

A. No Compelling Government Interest Justifies

BCRA § 203’s Burden On First Amendment

Rights

This case involves the ability of corporations (both for-

profit and not-for-profit) to engage in grass-roots lobbying.

Grass-roots lobbying is designed to inform members of the

public about important legislative or public-policy issues

and to express a particular view about those issues. Such

efforts often seek to motivate constituents to contact their

elected officials about those issues. It typically takes

the form of advertisements advocating a position on a

pending issue and recommending that viewers contact

their political representatives and urge them to support

that position.’

® The FEC also contends that this case is moot. This Court post-

poned to the hearing on the merits further consideration of the ques-

tion of jurisdiction in these cases. See Order (Jan. 19, 2007). NAR

agrees with WRTL and the intervenors (see Appellants Br. 13 n.8) that

this case is not moot because, as the district court explained, it is capa-

ble of repetition, yet evading review. See J.S. App. lla-l5a. (Refer-

ences to “J.S. App.” are to the Appendix to the Jurisdictional State-

ment filed by the FEC in No. 06-969.)

* See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 793 (D.D.C.)

(Leon, J.) (describing “genuine issue advertisements ... , the sole

9

In this case, for example, WRTL sought to sponsor

broadcast communications criticizing the Senate’s conduct

of (or failure to conduct) a constitutional function — advis-

ing on and consenting to the President's judicial nominees

(see U.S. Const. art. Il, § 2, cl. 2). See J.S. App. 3a-6a &

nn.3-5. Those communications would have expressed the

collective concern of WRTL’s adherents that the failure to

confirm judges impaired the judiciary’s functioning and

would have urged recipients of the communications to

contact their Senators and express disapproval of the

practice of filibustering to prevent a confirmation vote on

judicial nominees. See id.

NAR has paid for analogous advertisements promoting

its views on behalf of its member real-estate professionals,

as well as real-property owners, on pending federal legis-

lation. For example, NAR has sponsored advertisements

with the following messages:

Congressman Ferguson

please cosponsor

H.R. 3424 — “The Community Choice in Real Estate Act”

A COMMITMENT TO

OUR COMMUNITY

America was built by people following a dream,

starting small businesses and building communities

— by people working together in communities volun-

teering to enhance our quality of life. They have

made America into the great country it is today.

Legislation has been introduced that will preserve

our local communities, preserve competition in real

estate and give consumers the choices they deserve.

di

purpose of which is educating the viewers about an upcoming vote

on pending legislation, and encouraging them to inform their elected

representative to vote for or against the bill (1-e., legislation-centered

advertisements)”), aff'd in part, rev'd in part, 540 U.S. 93 (2003).

10

H.R. 3424 will keep the local personalized service

consumers now receive from their local neighbor-

hood real estate professionals.

Call Congressman Ferguson at 908-686-5576 to

ask him to join more than 160 members of Congress

and cosponsor this bipartisan legislation to ensure

local choice for our communities.

We need the support of strong leaders such as

Congressman Ferguson, so that consumers and local

communities will win.

* * *

Call

Congressman Gonzalez

210-472-6195

Tell Him to

Do the Right Thing

and Cosponsor

H.R. 3424 -

“The Community Choice in Real Estate Act”

A COMMITMENT TO

OUR COMMUNITY

Right now, large mega banks are attempting to

control more and more of our lives. The Big Bank

Congiomerates now want to buy up locally owned

and operated real estate companies. The result:

consumers lose.

Legislation has been introduced that will preserve

our local communities, preserve competition in real

estate and give consumers the choices they deserve.

H.R. 3424 will keep the local personalized service

consumers now receive from their local neighbor-

hood real estate professionals.

11

Call Congressman Gonzalez and ask him to join

more than 140 members of Congress and cosponsor

this bipartisan legislation to ensure local choice for

our communities. )

We need the support of strong leaders such as

Congressman Gonzalez, so that consumers and local

communities will win.*

* * *

Like the WRTL communications at issue in this case,

NAR’s advertisements “describe|d] an issue that ... was

. an ongoing issue of legislative concern” in Congress.

J.S. App. 23a. Those advertisements explained to the con-

stituents of Congressmen Ferguson and Gonzalez why

they should support pending legislation to protect the in-

dependence of local real-estate agents, exhorted them to

contact those congressmen, and provided a _ telephone

number to call. And, like WRTL’s ads, NAR’s legislative

ads did “not mention an election, a candidacy, or a politi-

cal party, nor do they comment on a candidate’s character,

actions, or fitness for office.” Jd.

1. Grass-roots lobbying is protected by the Speech

Clause, the Petition Clause, and the right of association.

Grass-roots lobbying implicates three interrelated protec-

tions of the First Amendment, which provides in pertinent

part that “Congress shall make no law ... abridging the

freedom of speech, ... or the right of the people peaceably ©

to assemble, and to petition the Government for a redress

of grievances.” U.S. Const. amend. I.

* These advertisements were published as print advertisements in

February 2002, shortly before BCRA’s enactment. Because they were

not broadcast on radio or television and because they were not run dur-

ing a pre-election “blackout” period, BCRA would not have prohibited

them. See 2 U.S.C. § 434(f)(3)(A)G)ID. Even so, NAR believes that it

has the freedom to broadcast during pre-election periods similar adver-

tisements on pending legislative matters that affect its members. and

it may wish to exercise that freedom.

12

First, legislative advocacy is protected speech. As this

Court has explained, “[w]hatever differences may exist

about interpretations of the First Amendment, there is

practically universal agreement that a major purpose of

that Amendment was to protect the free discussion of gov-

ernmental affairs.” Mills v. Alabama, 384 U.S. 214, 218

(1966). In light of our “profound national commitment to

the principle that debate on public issues should be un-

inhibited, robust, and wide-open,” New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964), this Court has con-

strued the First Amendment to afford “the broadest pro-

tection to such political expression in order ‘to assure [the]

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people,’” Buck-

ley, 424 U.S. at 14 (quoting Roth v. United States, 354

U.S. 476, 484 (1957)) (alteration in original). Spending

on political communications receives the same First

Amendment protection because restrictions on that

spending “restrain[] ... the quantity and diversity of po-

litical speech.” Buckley, 424 U.S. at 19; see id. at 16-20;

Bellotti, 435 U.S. at 786 n.23 (“It is too late to suggest

‘that the dependence of a communication on the expendi-

ture of money itself operates to introduce a nonspeech

element or to reduce the exacting scrutiny required by the

First Amendment.’”) (quoting Buckley, 424 U.S. at 16).

This Court’s decision in Bellotti confirms the conclu-

sion that this case involves protected speech. There, a

corporation challenged a state statute forbidding it from

% See First Natl Bank of Boston v. Bellotti, 435 U.S. 765, 777 n.11

(1978) (“Freedom of expres > + erticular significance with respect

to government because | ° »e Sat the state has a special incen-

tive to repress oppositio. © .< «»* wields a more effective power of

suppression.’”) (quoting Thomas Emerson, Toward a General Theory

of the First Amendment 9 (1966)) (alteration in original); Garrison

v. Louisiana, 379 U.S. 64, 74-75 (1964) (“For speech concerning pub-

lic affairs is more than self-expression; it is the essence of self-

government.”); Thornhill v. Alabama, 310 U.S. 88, 95 (1940) (“Those

who won our independence had confidencé in the power of free and

fearless reasoning and communication of ideas to discover and spread

political and economic truth.”).

13

spending money “for the purpose of influencing the vote

on referendum proposals.” 435 U.S. at 767. The Court

explained that the speech at issue was “at the heart of the

First Amendment’s protection,” id. at 776, and “indis-

pensable to decisionmaking in a democracy,” id. at 777.'°

That was “no less true because the speech [came] from

a corporation rather then an individual” because the

“inherent worth of the speech in terms of its capacity for

informing the public does not depend upon the identity

of its source, whether corporation, association, union, or

individual.” /d.'!

Second, this case involves the right “to petition the

Government for a redress of grievances.” U.S. Const.

amend. |. WRTL opposed Senate filibusters of judicial

nominees. To redress its grievance, it sought to sponsor

advertisements petitioning Senators to end the filibusters

and urging others also to petition those Senators. Simi-

larly, NAR opposes the attempts of large banking con-

glomerates to obtain the authority to participate in local

~»arkets for real-estate services. Accordingly, NAR has

petitioned (and exhorted others to petition) members of

Congress to enact legislation prohibiting such entities

from leveraging the substantial economic advantages they

0 See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995)

(“issue-based” advocacy “is the essence of First Amendment expres-

sion” and “{n]o form of speech is entitled to greater constitutional

protection’).

1! See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657

(1990) (“The mere fact that the Chamber is a corporation does not re-

move its speech from the ambit of the First Amendment.”); Pacific Gas

& Elec. Co. v. Public Utils. Comm’n, 475 U.S. 1, 8 (1986) (plurality)

(“The identity of the speaker is not decisive in determining whether

speech is protected. Corporations and other associations, like indi-

viduals, contribute to the discussion, debate. and the dissemination of

information and ideas that the First Amendment seeks to foster.”) (in-

ternal quotation marks omitted); Consolidated Edison Co. of New York,

Inc. v. Public Serv. Comm'n, 447 U.S. 530, 533 (1980) (“The restriction

on bill inserts cannot be upheld on the ground that [the corporation] is

not entitled to freedom of speech.”); Bellotti, 435 U.S. at 778 n.14 (list-

ing 11 cases invalidating laws infringing speech by corporate bodies).

14

enjoy as federally chartered institutions to engage in real-

estate brokerage, to the detriment of local independent

real-estate agents who do not enjoy those advantages.

This Court has indicated that such “publicity campaign|s}

to influence governmental action fall{] clearly into the

category of political activity” protected by the Petition

Clause. Eastern R.R. Presidents Conference v. Noerr

Motor Freight, Inc., 365 US. 127, 140-41 (1961); see id. at

137-38.

Third, this case involves the ability of corporations

“effectively [to] amplify|] the voice|s] of their adherents”

which the First Amendment freedom of association pro-

tects. Buckley, 424 U.S. at 22 (citing NAACP v. Alabama,

357 U.S. 449, 460 (1958)); see Citizens Against Rent

Control/Coalition for Fair Housing v. City of Berkeley,

454 U.S. 290, 294 (1981) (the value of associative commu-

nication “is that by collective effort individuals can make

their views known, when, individually, their voices would

be faint or lost”); see also Buckley, 424 U.S. at 15 (“The

First Amendment protects political association as well as

political expression.”); NAACP v. Button, 371 U.S. 415,

428 (1963) (corporation may raise right of association “on

its own behalf”).

2. Section 203 burdens the rights to speak, petition,

and associate. As applied to the type of grass-roots lobby-

ing at issue here, BCRA § 203’s regulation on electioneer-

ing communications burdens all three of those important

First Amendment freedoms. Section 203 precluded WRTL

from sponsoring its three planned advertisements. See

J.S. App. 6a-7a & nn.7-8. Likewise, BCRA prohibits NAR

from broadcasting advertisements like those reproduced

above on either radio or television (the most effective me-

dia!?), in the congressmen’s districts, for three out of every

24 months (election time, when the congressmen are most

attuned to the telephone calls that the ad urges constitu-

'2 See Buckley, 424 U.S. at 19 (broadcast media are “indispensable

instruments of effective political speech”).

15

ents to make'*) — simply because the ads contain names of

candidates for federal office.'* Under an FEC rule, such

ads would be prohibited even if they asked viewers only

to call “your Congressman.” 11 C.F.R. § 100.29(b)(2); see

2 U.S.C. § 431(18). Grass-roots lobbying of the type en-

gaged in by WRTL and NAR is impossible, of course, if a

legislative advertisement cannot recommend even that a

viewer contact “your Congressman.”!®

Prohibiting corporations from using their general

treasuries for advocacy of a legislative agenda imposes a

content-based burden on freedom of speech. See Austin,

494 U.S. at 657-58; id. at 669 (Brennan, J., concurring).'®

Similarly, because the statute restricts WRTL’s ability to

conduct “a publicity campaign to influence governmental ©

action,” Noerr Motor Freight, 365 U.S. at 140-41, and

“effectively [to] amplify[]| the voice of [its] adherents,”

Buckley, 424 U.S. at 22, it trenches on the guarantees of

the Petition Clause and the right of association.

3. No compelling government interest justifies § 203’s

burden on legislative advocacy. Because BCRA § 203

13 See McConnell, 251 F. Supp. 2d at 793-94 (Leon, J.) (discussing

record evidence that “the periods immediately preceding elections are

the most effective times to run issue advertisements discussing pend-

ing legislation because the public's interest in policy is at its peak”).

14 See McConnell, 540 U.S. at 334-35 (Kennedy, J., concurring in the

judgment in part and dissenting in part) (explaining some of the rea-

sons why grass-roots advocacy must mention the names of members of

Congress to be effective).

15 See McConnell, 251 F. Supp. 2d at 794 (Leon, J.) (citing record

evidence making this point).

'6 See also MCFL, 479 U.S. at 263 (“While the burden on MCFL’s

speech is not insurmountable, we cannot permit it to be imposed with-

out a constitutionally adequate justification.’), id. at 255 (plurality)

(“[T]hat the statute's practical effect may be to discourage protected

speech is sufficient to characterize [it] as an infringement on First

Aimendment activities.”); id. at 265-66 (O'Connor, J., concurring in part

and concurring in the judgment); cf. Mcintyre. 514 U.S. at 345 (statute

requiring campaign literature to identify the author is “a direct regula-

tion of the content of speech”).

16

burdens fundamental First Amendment freedoms, the dis-

trict court rightly employed “exacting scrutiny” in testing

§ 203’s application to WRTL’s ads. Buckley, 424 U.S. at

16, 44-45; see McConnell, 540 U.S. at 205; Austin, 494

U.S, at 669 (Brennan, J., concurring) (such restrictions

“must be analyzed with great solicitude and care”); J.S.

App. 25a. Statutory burdens on First Amendment rights

“must be justified by a compelling state interest,” MCFL,

479 U.S. at 256, and “narrow:y tailored to serve” that

interest, McIntyre, 514 U.S. at 347. This Court has iden-

tified a compelling government interest in restricting cor-

porate expenditures on electoral campaigns to prevent

“corruption or the appearance of corruption.” Austin, 494

U.S. at 658; see McConnell, 540 U.S. at 205, 206 n.88; .

FEC v. Beaumont, 539 U.S. 146, 154 (2003); FEC uv.

National Right to Work Comm., 459 U.S. 197, 208 (1982);

Bellotti, 435 U.S. at 788-89.'"

But this Court’s cases also have recognized that the

“unusually important interests underl[ying] the regula-

tion of corporations’ campaign-related speech” do not ap-

ply to legislative advocacy. McConnell, 540 U.S. at 206

n.88 (emphasis added). Bellotti unequivocally establishes

the point. There, the Court held that “[t}he risk of corrup-

tion perceived in cases involving candidate elections sim-

ply is not present in a popular vote on a public issue.” 435

U.S. at 790 (citations omitted; emphasis added).'* The

7 In the electoral context, the Court also has recognized a govern-

ment interest in restricting corporate and union giving and spending

on political campaigns to “protect{] the individuals who have paid

money into a corporation or union for purposes other than the support

ot candidates from having that money used to support political can-

didates to whom they may be opposed.” Beaumont, 539 U.S. at 154

(internal quotation marks omitted). That interest does not apply to

organizations, such as WRTL and NAR, whose mission involves advo-

cating legislative changes that would benefit the organization and its

members. See MCFL, 479 U.S. at 260-61.

18 See Austin, 494 U.S. at 677 (Brennan, J., concurring) (recognizing

that, while the government can regulate corporate speech on candidate

elections, “a State cannot prohibit corporations from making many

other types of political expenditures”); id. at 678 (Stevens, J., concur-

17

speech at issue there — corporate-sponsored advertise-

ments meant to influence a vote on a referendum proposal

— cannot meaningfully be distinguished from the legisla-

tive advocacy at issue here.

In upholding § 203 against a facial ileal in McCon-

nell, this Court identified no compelling government in-

terest justifying the application of BCRA § 203 to true leg-

islative advocacy — advertisements that are not “the func-

tional equivalent of express advocacy.” 540 U.S. at 206.

Indeed, the Congress that considered BCRA,'® and the

President who signed it,””? showed by their statements

that they perceived no compelling government interest

in regulating true legislative advertisements. Congress

empowered the FEC to exempt genuine issue ads, see 2

ring) (“[T]here is a vast difference between lobbying and debating pub-

lic issues on the one hand, and political campaigns for election to public

office on the other.”); see alsv National Right to Work Comm., 459 U.S.

at 210 n.7 (interpreting Bellotti as recognizing that, “in elections of

candidates to public office, unlike in referenda on issues of general pub-

lic interest, there may well be a threat of real or apparent corruption”)

(emphasis added); Consolidated Edison, 447 U.S. at 535 (invalidating a

regulation that “limited the means by which [a corporation could] par-

ticipate in the public debate on .. . controversial issues of national in-

terest and importance’).

'$ See 147 Cong. Rec. $2845-46 (daily ed. Mar. 26, 2001) (statement

of Sen. Wellstone) (repeatedly referencing “sham issue ads” and stating

that “I am not talking about ads ... that are legitimately trying to in-

fluence policy debates ... I am not talking about legitimate policy

ads”); id. at $2812-13 (daily ed. Mar. 23, 2001) (statement of Sen.

Jeffords) (BCRA’s prohibition on electioneering communications not

intended to “affect the ability of any organization to urge grassroots

contacts with lawmakers on upcoming votes” or “to urge their members

and the public through grassroots communications to contact their

lawmakers on upcoming issues or votes”; “[a]ny organization can, and

should be able to, use their grassroots communications to urge citizens

to contact their lawmakers’).

“0 See Statement by President George W. Bush Upon Signing H.R.

2356, 38 Weexly Comp. Pres. Doc. 517 (Mar. 27. 2002) (“I also have

reservations about the constitutionality of the 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.”), reprinted

in 2002 U.S.C.C.A.N. 125.

18

U.S.C. § 434(f)(3)(B)(iv), but the FEC has refused to so,”!

even though several of the intervenors in this case rec-

ommended an exemption that would have shielded some

legislative advocacy from regulation.22 Because no com-

pelling state interest justifies the application of BCRA to

WRTL’s advertisements, the district court correctly held

that the statute is unconstitutional as applied to them.

See MCFL, 479 U.S. at 263; Bellotti, 435 U.S. at 795.

B. NAR’s Advertisements Are Not The Func-

tional Equivalent Of Express Advocacy

Neither the FEC nor the intervenors contend that

BCRA § 203’s application to WRTL’s advertisements is

not subject to strict scrutiny. Rather, they argue that

Congress's interest in regulating electoral advocacy justi-

fies prohibiting WRTL’s planned advertisements. Regard-

less of how the Court rules on WRLT’s advertisements,

NAR’s advertisements reproduced above present tangible

examples of genuine legislative communications under

any reasonable test.

Notably, with one insignificant exception, NAR’s com-

munications meet the stringent test articulated by several

of the intervenors in their comments to the FEC on its

proposed exemption for grass-roots lobbying. Those inter-

venors have suggested that a communication would be

21 See Electioneering Communications, 67 Fed. Reg. 65,190, 65,201-

02 (Oct. 23, 2002) (rejecting proposed exemptions for true legislative

communications because, “[a]lthough some communications that are

devoted exclusively to pending public policy issues before Congress or

the Executive Branch may not be intended to influence a Federal

election, the Commission believes that such communications could be

reasonably perceived to promote, support, attack, or oppose a candi-

date in some manner’).

*2 See Letter from Senator John McCain et al. to Mai Dinh, FEC, at

10-11 (Aug. 23, 2002) (“McCain Letter”) (proposing an exemption

“allowling| individuals and entities concerned about legislation to

run true issue ads with a legislative objective and a request to contact

an elected official during the 30 or 60 day windows’), available at

http://www _.fec.gov/pdf/nprm/electioneering_ comm/comments/us cong.

members.pdf. .

19

“plainly and unquestionably ... wholly unrelated to an

election” if it satisfied the following criteria: (i) the ad

concerns only a legislative or executive branch matter;

(ii) the ad’s only reference to the clearly identified federal

candidate is a statement urging the public to contact the

candidate and ask that he or she take a particular posi-

tion on the legislative or executive branch matter; (ii1) the

ad refers to the candidate only by the use of a phrase

like “your congressman” or “your senator” and does not

include the name or likeness of the candidate; (iv) the ad

does not reference a political party; (v) the ad does not

reference the candidate’s record or »osition on any issue,

the candidate’s qualifications or fitness for office, or the

candidate’s election or candidacy. McCain Letter at 10

(internal quotation marks omitted).

Applying the McCain test, NAR’s communications con-

cerned only a legislative matter — a pending bill to pre-

vent national banking conglomerates from entering and

dominating the real-estate business, to the exclusion of

small, independent real-estate brokers. The only refer-

ences to the two congressmen were statements asking

them to support that bill and urging viewers to contact

them and tell them to support the bill. The advertise-

ments did not reference a political party, the congress-

men’s records or positions on any issue, the congressmen’s

qualifications or fitness for office, or their election or can-

didacy. But for the fact that NAR’s ads mention the con-

gressmen by name, they would meet every criterion of the

McCain test. But that fact alone cannot transform the

communications into the functional equivalent of express

advocacy. To be sure, whether the ad uses the candidate’s

name may be relevant to whether it has an electoral na-

ture, but basic common sense dictates that use of a name

in an advertisement cannot be dispositive.

C. Legislative Advocates Do Not Bear The Bur-

den Of Establishing A Legal Test

The FEC also asserts that WRTL cannot succeed on its

as-applied challenge unless it articulates a legal test that

20

identifies advertisements that are different in kind from

electoral advocacy and that is neither unduly complex nor

susceptible of evasion. FEC Br. 27. The FEC further

asserts that the class of issue advertisements to which

BCRA § 203 cannot constitutionally be applied should

be defined without reference to the text or content of

the advertisements. Jd. at 43. Intervenors, for their

part, apparently recognize no circumstances under which

BCRA § 203 cannot constitutionally be applied to legisla-

tive advocacy. See Appellants Br. 40 n.27 (acknowledging

possible exceptions only for commercial advertisements

that incidentally mention the name of a candidate).

NAR submits that the FEC’s legal-test requirement has

no basis in this Court’s cases and should be rejected. En-

tities like WRTL (and possibly, in the future, NAR) should

not be required to establish an iron-clad legal test to gov-

ern future cases as a condition for obtaining relief from an

unconstitutional statute. If no compelling government

interest supports the application of BCRA § 203 to par-

ticular speech, then the statute is unconstitutional as ap-

plied to that speech.

Contrary to the FEC’s contention, this Court’s decision

in MCFL does not support the FEC’s legal-test require-

ment. There, the Court held that the prohibition on cor-

porate expenditures on express candidate advocacy was

unconstitutional as applied to a nonprofit advocacy corpo-

ration (MCFL) that did not accept donations from busi-

ness enterprises. See MCFL, 479 U.S. at 263-64. This

Court concluded that corporations like MCFL could en-

gage in electoral advocacy without creating the problems

at which the prohibition on corporate electoral advocacy

was targeted. While (presumably to provide guidance for

future cases) the Court detailed the three features of

MCFL that it found dispositive, it did not impose on

MCFL the burden of establishing an airtight and admin-

istrable legal test to prevail on its as-applied challenge.

See id. Indeed, this Court rejected the contention that

“the desire for a bright-line rule,” which would be easily

21

administrable, “justiffied] any infringement on_ First

Amendment freedom.” /d. at 263.

Furthermore, MCFL is different from this case because

MCFL there sought an exemption to engage in express

candidate advocacy. In that context, it made sense for

the Court to articulate how MCFL differed in “kind” from

the ordinary business corporation, which Congress had a

compelling interest in barring from spending on electoral

campaigns. /d. Here, by contrast, the compelling gov-

ernment interest in restricting corporate electoral spend-

ing does not apply to WRTL’s planned communications

because NAR (and, indeed, the district court) does not

view WRTL as attempting to engage in electoral advocacy.

Here, too, there is a difference in “kind,” but the difference

is that genuine legislative advocacy is different in its es-

sential message from electoral advocacy. Contrary to the

FEC’s contention, however, whether a particular commu-

nication is electoral advocacy can be determined only by

examining the text of the communication at issue.

Finally, the MCFL Court recognized that as-applied

challenges can succeed even when “the class of organiza-

tions affected by [the Court’s] holding [may] be small.” 7d.

at 264. Similarly, the FEC cannot diminish the signifi-

cance of the First Amendment rights at stake in this case

by asserting that the class of true legislative ads captured

by the definition of electioneering communication is small.

As the Court in MCFL concluded:

Freedom of speech plays a fundamental role in a de-

mocracy .... Our pursuit of other governmental

ends, however, may tempt us to accept in small in-

crements a loss that would be unthinkable if inflicted

all at once. For this reason, we must be as vigilant

against the modest diminution of speech as we are

against its sweeping restriction. (

Id. at 264-65.

22

D. The Court Should Limit Any Examination Of

Context

Under the circumstances, even if the McCain test were

to state properly the law, one would expect that NAR

should feel somewhat confident that it could prevail in an

as-applied challenge, considering that its advertisements

concern only a pending legislative matter and contain

nothing suggesting an electoral intent or effect. But in

reality NAR and others like it can take little comfort

because the FEC and the intervenors here assert that

the FEC can mine the ads’ “context” to discover some

pusported indicia of electioneering intent or effect. As

the district court explained, that approach disserves First

Amendment values and is impractical. See J.S. App. 19a-

22a.

Furthermore, a search for contextual evidence of elec-

tioneering intent or effect ignores the approach that this

Court took in McConnell. There, the Court found it un-

necessary to look to context in giving examples of sham

issue ads that were the functional equivalent of express

advocacy. See 540 U.S. at 126-27, 193 n.78. And a focus

on the text of the advertisement itself comports with the

test put forth by several intervenors in their submission

to the FEC. See McCain Letter at 10.

Particularly pernicious is the FEC’s and the interve-

nors’ focus on statements that WRTL (or its PAC) made in

other contexts. See FEC Br. 47-48; Appellants Br. 23-24.

Indeed, the intervenors would go even further, consider-

ing communications made by individuals and groups other

than WRTL or its PAC. See Appellants Br. 25-27. The

consequence of that focus is to strip an entity that has

made negative statements about an incumbent in the past

(or that is considered to be associated with those who

have) of its First Amendment right to engage in pre-

election grass-roots lobbying of that incumbent on any leg-

islative issue. V’hile it is easy to understand why an in-

cumbent legislator interested in preserving power would

23

favor such a rule, that does not make it comport with the

First Amendment.

E. Print Media May Not Be An Available Alterna-

tive

Both the FEC and the intervenors assert that BCRA

§ 203 does not impose a particularly severe burden on

First Amendment activities in part because affected par-

ties like NAR have the option of communicating through

non-broadcast media. See FEC Br. 36; Appellants Br. 31

n.20. But they fail to mention that the FEC recently has

employed an expansive interpretation of the prohibition

on expenditures for express advocacy — a prohibition that

applies to all media. Specifically, the FEC has promul-

gated a broad regulatory definition of express advocacy,

and it has signaled a willingness to apply that definition,

using a wide-ranging contextual analysis, to prohibit com-

munications that neither contain actual express advocacy

nor meet the definition of electioneering communication.

Last year, the FEC found probable cause to believe that

the Sierra Club had violated 2 U.S.C. § 441b(a), which

(as interpreted by this Court in MCFL, 479 U.S. at 249)

prohibits corporations from making independent expendi-

tures for express candidate advocacy.”* It based that

conclusion in part on the following definition of express

advocacy contained in an FEC regulation:

When taken as a whole and with limited reference

to external events, such as the proximity to the

election, could only be interpreted by a reasonable

person as containing advocacy of the election or de-

feat of one or more clearly identified candidate(s)

because —

(1) The electoral portion of the communication is

unmistakable, unambiguous, and suggestive of only

one meaning; and

23 See Letter from Lawrence H. Norton, General Counsel, FEC, to

B. Holly Schadler, Esq., and Michael B. Trister, Esq. (July 21, 2006).

available at http://eqs.nictusa.com/eqsdocs/000058 10. pdf.

24

(2) Reasonable minds could not differ as to

whether it encourages actions to elect or defeat one

or more clearly identified can¢cidate(s) or encourages

some other kind of action.

11 C.F.R. § 100.22(b).

In contending that the communication at issue there,

a voter guide, constituted express advocacy under that

regulation, the FEC General Counsel's Office gleaned that

the “electoral portion” was “suggestive” based on an ex-

amination of some of the same “contextual” facts that it

relies on here — namely, that the guide was issued in the

pre-election period; that it mentioned clearly identified

candidates for federal office; and “the Sierra Club’s

well-known stance promoting environmental regulation.”

First General Counsel’s Report at 11 (Aug. 10, 2005)

(“FEC Report”), available at http://eqs.sdrdc.com/eqsdocs/

00005805.pdf. Thus, the FEC showed a willingness to

preclude pre-election speech containing candidates’ names

even when that speech does not fall within the definition

of electioneering communication.

Even worse, the Office cited McConnell as support

for its expansive interpretation of the express-advocacy

requirement. See id. at 16. The Office observed that

McConnell had held that the express-advocacy standard

was not a constitutional requirement and had sustained

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

a vagueness challenge. See id. at 14-16. But this Court

imposed the express-advocacy requirement because the

statute as written was unduly vague. See MCFL, 479

U.S. at 249; Buckley, 424 U.S. at 42-44, 76-80. Nothing in

McConnell’s holding that the express-advocacy standard

does not articulate a constitutional line authorized the

FEC to substitute a vague regulatory definition for this

Court’s narrowing construction of a vague statute. More-

over, the FEC’s regulatory standard is a far cry from the

relatively straightforward “promote, support, attack, or

oppose” test sustained by this Court. The regulation ap-

plies when, considering whatever contextual factors the

25

FEC deems relevant, “/t/he electoral portion of the com-

munication” (whatever that portion might be) “is unmis-

takable, unambiguous, and suggestive of only one mean-

ing; and ... {rjeasonable minds could not differ as to

whether it encourages actions to elect or defeat one or

more clearly identified candidate(s) or encourages some

other kind of action” (whatever that action might be). 11

C.F.R. § 100.22(b) (emphases added).

The FEC General Counsel's Office also noted that

McConnell had upheld the definition of electioneering

communication against an overbreadth challenge and had

“acknowledged that the definition of electioneering com-

munication would cover some ads which have no election-

eering purpose.” FEC Report at 16. The Office thus sig-

naled it believed itself to be empowered to regulate speech

that is not express advocacy, and that may not even have

an “electioneering purpose.”

The Sierra Club case, which was the FEC’s first use of

§ 100.22(b) since McConnell,”* leaves speakers with little

reason to credit the FEC’s and the intervenors’ assertions

that, regardless of the outcome of this case, they will con-

tinue to be able to conduct legislative advocacy in the pre-

election period through print media. Indeed, to the extent

the FEC is able to apply § 100.22(b) in this sweepingly

broad fashion to corporate-sponsored ads that are not

“electioneering communications” under BCRA § 203, there

is little reason to think that the FEC will not similarly do

so with respect to ads like those of WRTL at issue here,

and thereby functionally eviscerate the constitutional pro-

tection to which true legislative advocacy is entitled.*°

24 See Third General Counsel's Report at 3 (Nov. 3, 2006), available

at http://eqs.sdrdc.com/eqsdocs/00005811.pdf. The case was settled

after the FEC’s finding of probable cause. See Letter from Susan L.

Lebeaux, Assistant General Counsel, FEC, to B. Holly Schadler. Esq.,

and Michael B. Trister, Esq. (Nov. 15, 2006), available at http://eqs.

nictusa.com/eqsdocs/000058 15.pdf.

*° The particular communication at issue in the Sierra Club case

may have been fairly characterized as express advocacy based on an

26

CONCLUSION

The Court should affirm the district court’s judgment.

Respectfully submitted,

LAURENE K. JANIK DAVID C. FREDERICK

RALPH W. HOLMEN Counsel of Record

NATIONAL ASSOCIATION OF BRENDAN J. CRIMMINS

REALTORS® KELLOGG, HUBER, HANSEN,

430 North Michigan Ave. TODD, EVANS & FIGEL,

Chicago, IL 60611-4087 P.L.L.C.

(312) 329-8375 1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for National Association of REALTORS®

March 23, 2007

examination of the ad’s text only. See FEC Report at 9-10. Neverthe-

less, the FEC’s suggestion that McConnell authorizes it to use a vague

regulatory standard to prohibit communications that may “have no

electioneering purpose,” id. at 16, is troubling and likely to chill consti-

tutionally protected speech.