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

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Nos. 06-969, 06-970 FEB.

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION,

Appellant,

Vv.

WISCONSIN RIGHT TO LIFE, INC., et al.,

Appellees.

McCAIN,

Appellant,

v,

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

On APPEAL FROM THE UNITED Stares District Court

FOR THE DistRICT OF COLUMBIA

BRIEF AMICI CURIAE OF NORMAN DORSEN,

ARYEH NEIER, BURT NEUBORNE,

AND JOHN SHATTUCK

IN SUPPORT OF APPELLANTS

|

Burt NEUBORNE

Counsel of Record

DEBORAH GOLDBERG

Davip GANS

BRENNAN CENTER FOR JUSTICE

AT NYU Law ScuHooi

161 Avenue of the Americas

12" Floor

New York, New York 10013

(212) 998-6730

Attorneys for Amici Curiae

TABLE OF CONTENTS

Table of Authorities.......... ibiiaciahapasinnibligissiteipiidihdsiabiianiadiaine ill

ITT sicscss-custensniaieraiiunenmiianpiliosadesicatoaadibibanieuain ]

Summary of Argument iebaesiaibnei alibi ligt ial aliha l

EEE PO oe See Te nT Oe OOM TLE FDOT O eT 7

I. This Court Should End the Strategic Game

Played by Both Sides in the Litigation Leading

a iiretsccnnsieishindesessnctiletasmadieibanietiapiisentiincbiieiie

Il. WRTL’s Advertisements Do Not Qualify for

an As-Applied Exemption from Section 203’s

Ban on Corporate Funding of

“Electioneering Communications”.....................

A. The District Court Plainly Erred in

Refusing To Consider the Factual

Context of the Advertisements.....................

B. The District Court’s Refusal To Consider

Factual Context Was Not Required by

Administrative Necessity or a Concern

with “Chilling” Corporate-Funded

Pe ar niapidahineamenesiddiainindininnens 10

1. Courts Are Competent To Consider

Context in Evaluating As-Applied

IE scicdddsndenandnnciiencntnaaitinbans

il

2. Consideration of the Factual

Context Does Not Threaten

Constitutionally Protected .

: SR iniiciiccdibiitseahidpinmineciiibucioniontii 14

C. Viewed in Factual Context, WRTL’s

Advertisements Do Not Qualify for an

As-Applied Exemption from Section 203’s

Ban on Corporate Electioneering....................14

1. Precluding WRTL’s Ads Furthers

the Compelling State Interests

Recognized in McConnell.................. 15

2. Granting the As-Applied Exemption

Sought by WRTL Would Undermine

the Statutory Scheme Upheld in

McConnell

FESS Ae CoRR OCR CERO Ee) RAS SO eRe

iil

TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983)..........ccccccesees 12

Austin v. Michigan Chamber of Commerce,

ee HT icicinkatcnicihcsdnbadiiiediaiienscpnesmnnnnneninniniil

Batson v. Kentucky, 476 U.S. 79 (1986)................00e eee 13

Boy Scouts of America v. Dale,

I a oa ieee eee

Bowen v. Kendrick, 487 U.S. 589 (1988).............::cccceseceeeeees 8

Brown v. Socialist Workers’ '74 Campaign Committee,

Ae nates indneiinindephscotesadhinenmdcebigencaiiied 1]

Buckley v. Valeo, 424 U.S. 1 (1976).......... 2... 0.2 ccc eees 10, 11

Colorado Republican Fed. Campaign Comm. v. FEC,

IT anishinc cceisegitanaatyinanisisieciisdincsnannnedadiiasenmniaee

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

A ee eee ee

Edwards v. South Carolina, 372 U.S. 229 (1963).............. 8

FEC v. Beaumont, 539 U.S. 146 (2003).....................14, 16

FEC v. Massachusetts Citizens for Life, Inc.,

8 ETAT Tiny En eee 14, 16

FEC v. National Right to Work Comm.,

SE SE iccsccniniadbmnsgnigndnetinnseoniniencmeaeneiiniee

iv

Hess v. Indiana, 414 U.S. 105 (1973)............ 2c ccecceeeeeees )

Lynch v. Donnelly, 465 U.S. 668 (1984)...............0 10 n.2

McConnell v. FEC, 540 U.S. 93 (2003)..............0.4. passim

McDonnell Douglas Corp. v. Green,

A 13

Milk Wagon Drivers of Chicago, Local 753 v. Meadowmoor

Te eee 9

Miller v. Johnson, 515 U.S. 900 (1995).......... 0... c cece eens 12

Nixon v. Shrink Missouri Government PAC,

I et ecmanienie ll

Rankin v. McPherson, 483 U.S. 378 (1987)............00000000 )

Sabri v. United States, 541 U.S. 600 (2004).................04.. 8

Santa Fe Indep. School Dist. v. Doe,

EE ee

Spence v. Washington, 418 U.S. 405 (1974)..............6.00..9

Texas Department of Community Affairs v. Burdine,

TE iichtesintienesansnnusesendereseuncesmecesse 13

Texas v. Johnson, 491 U.S. 397 (1989). 22.2... cc cccccceceeeeeeeeeeeD

United States v. American Library Ass'n,

I Ce ics ct ctiendencnitdnebadceiiaiinneienusiuaniesics 8

Vv

United States v. Edge Broadcasting Co.,

FIO WD. FEB CII cc cesesccsuseccchvvencovnseusasesonnl 14, 20, 21

United States v. Lee, 455 U.S. 252 (1982)............ cee 15, 20

United States v. Raines, 362 U.S. 17 (1960)......... ..... 2c. 8

Van Orden v. Perry, 125 S. Ct. 2854 (2005)............... 9n. 2

Virginia v. Black, 538 U.S. 343 (2003)...........0ccceeeesee eens 9

Watts v. United States, 394 U.S. 705 (1969)................606 9

Wisconsin Right to Life, Inc. v. FEC,

Pe EET. GO Giese nceccaccsctecsscesennssueeiiccaminaa passim

Wisconsin Right to Life, Inc. v. FEC, No. 04-1269, 2006 WL »

F746EE9 (D.D.C. Das. 21, BOGS)... cccesecccccescesececcees passim

Other Sources

William Shakespeare, The Tragedy of Julius Caesar, act Ill,

is sd vseccnexiicictencacovesdeevesossineeneaeeaeaeeenl 10

wie

STATEMENT OF INTEREST

Amici are former officials of the American Civil Liberties

Union (“the ACLU”), who are committed both to a robust

First Amendment and to the effective restriction of corporate

treasury funds in electoral campaigns.’ Norman Dorsen

served as President of the ACLU from 1976-1991, and as its

Genera] Counsel from 1969-1976. He is currently Stokes

Professor of Law at New York University School of Law.

Aryeh Neier served as Executive Director of the ACLU from

1973-1981. He is currently President of the Open Society

Institute. John Shattuck served as Director of the ACLU’s

Washington, D.C., office, and as a National Staff Counsel

from 1971-1984. He is currently Executive Director of the

JFK Library Foundation. Burt Neuborne served on the legal

staff of tire ACLU for eleven years, serving as National Legal

Director from 1981-1986. He is currently Inez Milholland

Professor of Civil Liberties at New York University School

of Law. Amici urge this Court to reaffirm the balance of

constitutional interests that it struck in McConnell v. FEC,

540 U.S. 93 (2003), and Wisconsin Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) (“WRTL I’), by reversing the decision

of the court below.

SUMMARY OF ARGUMENT

In recent years, the battle over whether corporations may

use treasury funds to affect the outcome of federal elections

has taken the form of a strategic game between challengers

and defenders of the Bipartisan Campaign Reform Act of

2002 (“BCRA”). Both sides have sought to exploit an alleged

' All parties have consented to the filing of this brief. Copies of their

written consents have been filed with the Clerk of the Court. Pursuant to

Supreme Court Rule 37.6, Amici Curiae state that no counsel for a party

has authored any part of this brief, and no one other than Amici or their

counsel has made a mopetary ‘contribution to iis preparation or

submission.

x

difficulty in distinguishing “electioneering speech” (subject

to regulation) from “issue speech” (protected from

regulation), in an effort to advance their polar views.

Proponents of corporate-funded electioneering have argued

that, in order to preserve constitutionally protected issue

speech, a broad loophole must be opened in section 203 of

BCRA (“Section 203”), insulating from regulation speech

that qualifies as “electioneering communications” as long as

the literal text of advertising avoids an explicit call to

electoral action. Conversely, opponents of corporate-funded

electoral speech have argued that, in order to preserve the

effective prohibition of corporate-funded electioneering, it is

necessary to tolerate the restriction of at least some

corporate-funded issue speech.

This Court has rejected both extremes. In McConnell, this

Court upheld the facial constitutionality of Section 203,

ruling that corporations do not enjoy a First Amendment

right to expend treasury funds on electioneering speech. The

ruling followed almost 30 years in which corporations

enjoyed an unfettered de facto right to use treasury funds to

influence federal campaigns, as long as their advertising

avoided “magic words” of express advocacy. Congress

enacted Section 203 to close that loophole, which had

permitted an avalanche of corporate campaign spending, and

the McConnell Court sustained the provision. But this Court

recognized in WRTL / that an as-applied exemption from

Section 203 might be constitutionally compelled in the

context of genuine issue speech at the periphery of the

electoral process. See infra Point I.

In granting as-applied relief without a full review of the

factual context, the District Court turned the law of as-

applied challenges on its head. The decision below ignored

the purpose of an as-applied challenge, which is designed to

permit a fact-specific analysis of plaintiff's particular

circumstances. See infra Point II (A). The District Court’s

~

assertion that consideration of the facts would be

administratively unworkable and might “chill” protected

corporate speech ignores the fact that courts routinely

consider context in First Amendment cases, and that a well-

defined procedure exists for determining whether the

presumption of coverage established by the probative weight

of the criteria set forth in Section 203 has been rebutted. See

infra Point II(B).

Viewed in factual context, this is an easy case. Wisconsin

Right to Life, Inc. (“WRTL”) used corporate treasury funds

to finance three advertisements criticizing Senator Feingold’s

position on President Bush’s judicial nominees, and

broadcast the advertisements in the months leading up to

Senator Feingold’s re-election bid. The advertisements

directed listeners to a website explicitly opposed to Senator

Feingold’s re-election and were part and parcel of a long

campaign by WRTL to oust Senator Feingold. Regulating

these ads under BCRA advances the compelling state

interests recognized in McConnell. WRTL simply has no

right to a First Amendment exemption that would enable it to

use corporate treasury funds for _ electioneering

communications at the core of the electoral process. See infra

Point II(C)(1).

Finally, the District Court’s insistence on granting an as-

applied exemption from Section 203, based solely on the

absence of explicit words of electoral exhortation in the text

of a corporate-funded advertisement, threatens to undercut

Congress’s statutory scheme and to destabilize the careful

First Amendment balance established by this Court. In the

guise of adjudicating WRTL’s as-applied challenge, the

District Court resuscitated the very “magic words” doctrine

that Congress and this Court had rejected, effectively

permitting an end run around the doctrine of stare decisis.

See infra Point I1(C)(2).

=

This appeal represents the latest round of gamesmanship

among parties seeking to upset the terms of BCRA as

sustained by this Court in McConneil and WRTL I. Amici

urge the Court to reject the lower court’s swing from one

extreme to the other, to reaffirm longstanding ground rules

for as-applied challenges, and to bring the strategic game to

an end. |

ARGUMENT

I. This Court Should End the Strategic Game Played by

Both Sides in the Litigation Leading to this Appeal.

Since the passage of Section 203, proponents and

opponents of corporate electioneering have been engaged in a

strategic game, with each side attempting at some point to

establish an extreme constitutional position. Proponents of

corporate-funded electioneering are eager to carve a gaping

loophole in BCRA in the name of preserving constitutionally

protected issue speech. Opponents of corporate-funded

electoral speech have been prepared to countenance

restrictions on some issue speech in .he name of preserving

the statute. This Court should continue to reject both

extremes, as it did in McConnell and WRTL /, and put the

game to rest with this appeal.

The complaint in McConnell opened the first round of the

strategic game. Before the ink was dry on Section 203, which

bans corporate expenditures of more than $10,000 to fund

“electioneering communications’—broadcast, cable, or

satellite ads, aired within a fixed period before a federal

election, that refer to a candidate in that election and target

the candidate’s constituents—challengers argued that the

statute was facially unconstitutional because the provision

might preclude corporate funding of some genuine issue

speech.

ae

The McConnell Court refused to take the bait, holding that

the possibility that Section 203 might apply to some forms of

corporate-funded “issue speech” did not require facial

invalidation of the ban on corporate-funded “electioneering

communications.” Instead, applying strict scrutiny,

McConnell held that Congress had a compellimg state interest

in preventing corporations from building and spending

political war chests on federal elections, and that this interest

justified the ban on the use of corporate general treasury

funds to pay for election-influencing advertisements, even if

the ads did not use “magic words” expressly advocating the

election or defeat of a clearly identified candidate.

McConnell, 540 U.S. at 205-06. The Court noted that thirty

years of experience with the “magic words” test had

demonstrated its vulnerability to evasion. /d. at 126-28, 193-

94.

The Court’s second encounter with Section 203, and the

second round in the strategic game, took place in WRTL /,

when this Court unanimously rejected the argument that

McConnell precluded as-applied challenges to Section 203 in

any setting where corporate-funded speech satisfied the

statute’s definition of “‘electioneering communications.” That

argument, made by BCRA’s defenders, was the mirror image

of the challengers’ argument in McConnell; this time concern

over preserving the prohibition on corporate-funded

“electioneering communications” was deployed as a

justification for banning at least some corporate-funded

“issue speech.” This Court once again refused the bait,

stating: “In upholding § 203 against a facial challenge, we

did not purport to resolve future as-applied challenges.” 546

US. at 410.

The strategic game resumed on remand in the court below,

when respondent Wisconsin Right to Life, Inc. (““WRTL”), a

non-profit corporation that receives substantial funding from

for-profit corporations, re-asserted its claim that three radio

sii

advertisements that aired for the first time in the months prior

to Senator Feingold’s 2004 bid for re-election qualified for

an as-applied exemption from BCRA. Wisconsin Right to

Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669 (D.D.C.

Dec. 21, 2006) (“WRTL II’). The advertisements; costing

more than $10,000, carefully eschewed any “magic words”

of explicit electoral exhortation, but criticized Senator

Feingold’s position on President Bush’s judicial nominees

and urged listeners to contact the Senator’s office in

connection with the Senate’s failure to vote on those

nominees. /d. at *] & nn.3-5. WRTL argued that because the

advertisements carefully avoided explicit electoral

exhortation, they were constitutionally immune from Section

203’s ban on corporate funding, notwithstanding their

implicit criticism of Senator Feingold, their timing to

coincide with the impending election, WRTL’s well-known

record of opposition to the Senator’s re-election, and other

powerful contextual evidence demonstrating that the purpose

and perceived effect of the advertisements were to diminish

the Senator’s electoral prospects. /d. at *6.

In WRTL II, a two-person majority of the District Court

refused to consider the advertisements’ factual context in

assessing their principal purpose and perceived effect.

Instead, despite Congress’s rejection of the “magic words”

approach, and this Court’s decision in McConnell, the

District Court granted an as-applied exemption from BCRA

because the four corners of the text did not contain “magic

words” of electoral exhortation. /d. On appeal from WRTL II,

the strategic game continues. While WRTL professes

concern about corporate-funded “issue speech,” its evident

purpose is to open a massive loophole in Section 203,

eviscerating Congress’s ability to ban corporate-funded

“electioneering speech” at the electoral core.

Amici urge the Court to reject, for the third time, the

invitation to choose between over- and under-regulation of

Sd ie

corporate-funded electoral speech. Amici believe that the

strategic game should end. It is past time to get down to the

business of developing workable criteria designed to carry

out the First Amendment balance established in McConnell

and WRTL I.

Il. WRTL’s Adverstisements Do Not Qualify for an As-

Applied Exemption from Section 203’s Ban on

Corporate Funding of “Electioneering

Communications.”

The District Court’s “four corners” approach—turning a

blind eye to context—hardly qualifies as a serious effort to

respect the First Amendment balance struck in McConnell.

The District Court held that the literal text of an

advertisement is the sole determinant of whether it may be

funded by corporate treasury funds. Contextual evidence

bearing on: (i) the purpose of WRTL and its for-profit

corporate donors; and (ii) the perceived meaning of the

advertisements’ clearly implied electoral message, may not

be considered, held the District Court, because such a fact-

intensive approach, would “chill” protected speech and prove

difficult to administer in the waning days of a campaign. See

WRTL Il, 2006 WL 3746669, at *6-8. The District Court’s

analysis is triply flawed.

A. The District Court Plainly Erred in Refusing To

Consider the Factual Context of the Advertisements.

Close analysis of facts and circumstances is the very

hallmark—indeed, the raison d’etre—of an as-applied

challenge. Unlike a facial challenge, which views a statute’s

constitutionality from the perspective of a run-of-the-mill

target, an as-applied challenge focuses on the particularized

facts and circumstances of a single litigant in deciding

whether a law that may be validly applied to most persons

must be suspended in the factual context before the Court.

-8-

An as-applied challenge is, therefore, necessarily fact-

intensive, requiring a party to place evidence before the court

justifying a constitutionally-driven individualized exemption.

See, e.g., United States v. American Library Ass'n, 539 U.S.

194, 215 (2003) (Kennedy, J., concurring) (rejecting facial

challenge but permitting individuals to bring as-applied

challenges based on specific, concrete factuai showing); Boy

Scouts of America v. Dale, 530 U.S. 640, 648-54 (2000)

(concluding that specific facts had been adduced showing

that application of anti-discrimination statute imposed

substantial burden on the litigant’s freedom to associate);

Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J.,

concurring) (calling for District Court to make “detailed

factual findings” about program’s administration in

adjudicating an as-applied Establishment Clause challenge to

financial aid statute); id. at 625 (Kennedy, J., concurring)

(insisting on specific evidence about how religious entities

“spend [their] grant[s]” to adjudicate an as-applied

challenge); see also Sabri v. United States, 541 U.S. 600, 609

(2004) (preferring as-applied to facial challenges because the,

latter “carries too much promise of ‘premature

interpretatio[n] of statutes’ on the basis of factually bare-

bones records” (quoting United States v. Raines, 362 U.S. 17,

22 (1960))). Indeed, the intensely fact-specific nature of an

as-applied challenge is why this Court insists on conducting

an independent de novo review of the record to ensure that

improper fact finding does not lead to a denial of

constitutional rights. See Boy Scouts, 530 U.S. at 648-49;

Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

The District Court’s refusal to consider the factual context

in deciding whether to grant an as-applied exemption turns

as-applied jurisprudence on its head. In effect, the District

+ yr granted a facial exemption from a facially valid statute,

incoherent approach that undermines the very statute the

court purports to apply. It is one thing to recognize, as this

Court did in WRTL IJ, that as-applied challenges remain open;

a.

it is quite another to say, as the District Court did, that a court

should consider an as-applied challenge without undertaking

a full review of the facts and circumstances of the

advertisements allegedly entitled to a constitutional

exemption. 7

This Court’s First Amendment jurisprudence precludes

the District Court’s analysis. In-numerous First Amendment

contexts, this Court considers both the text of the speech in

question, as well as the broader context surrounding the

speech, in determining whether or not to extend

constitutional protection. For example, the Court regularly

examines contextual evidence in determining: (i) whether an

individual’s communicative conduct constitutes protected

symbolic speech, see Texas v. Johnson, 491 U.S. 397, 405-06

(1989); Spence v. Washington, 418 U.S. 405, 410-11 (1974);

(ii) whether a public employee’s political remarks or private

defamatory speech involved matters of public concern, see

Rankin v. McPherson, 483 U.S. 378, 384-85, 386-87 (1987);

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 761 (1985); and (iii) whether a communication is

protected speech or an unlawful threat or exhortation to

violence, see Virginia v. Black, 538 U.S. 343, 360, 362-63

(2003); Hess v. Indiana, 414 U.S. 105, 106-09 (1973); Watts

v. United States, 394 U.S. 705, 708 (1969); see also Milk

Wagon Drivers of Chicago, Local 753 v. Meadowmoor

Dairies, 312 U.S. 287, 293 (1941) (“[An] utterance in a

context of violence can lose its significance as an appeal to

reason and become part of an instrument of force. Such

utterance was not meant to be sheltered by the

Constitution.”).?

’ Likewise, in determining whether government-sponsored religious

expression violates the Establishment Clause, the Court examines not

merely the religious expression the government has sponsored but the

larger context of that speech. See Van Orden v. Perry, 545 U.S. 677, 691

(2005); id. at 699-704 (Breyer, J., concurring); Santa Fe Indep. School

x *

The lesson of this long line of cases is that, often, the

literal words a speaker utters, considered alone, do not

adequately capture the relevant First Amendment

considerations. To use a famous literary example, the literal

text of Marc Antony’s oration at Caesar’s funeral said one

thing, while the context said another. See William

Shakespeare, The Tragedy of Julius Caesar act III, sc. ii. In

short, the District Court’s refusal to consider context would

strip the regulatory process of adequate tools to protect

federal electoral campaigns from sophisticated corporate-

funded communications having the clear purpose and

perceived effect of supporting or opposing a candidate for

public office.

B. The District Court’s Refusal To Consider Factual

Context Was Not Required by Administrative

Necessity or a Concern with “Chilling” Corporate-

Funded Political Speech.

The massive congressional record compiled in connection

with the enactment of Section 203, the thorough record

compiled by the District Court in McConnell, and this

Court’s recognition in McConnell of the failure of the bright-

line “magic words” test adopted in Buckley v. Valeo, 424

U.S. 1 (1976) (per curiam), provided the court below with an

unmistakable warning that granting as-applied exemptions

solely on the basis of the literal text would seriously weaken,

perhaps destroy, the regulatory scheme. The WRTL I/

majority argued, nevertheless, that the practical difficulty in

assessing factual context under the time pressures of a

political campaign, coupled with a concern that some

corporate speakers might be “chilled,” forced the court to

Dist. v. Doe, 530 U.S. 290, 307-08 (2000); Lynch v. Donnelly, 465 U.S.

668, 692-93 (1984) (O’Connor, J., concurring).

oft.

adopt a less-than-optimal approach. See WRTL I/, 2006 WL

3746669, at *7-8. The District Court’s twin justifications for

banishing contextual evidence from its as-applied analysis

fall apart on close scrutiny.

1. Courts Are Competent To Consider Context in

Evaluating As-Applied Challenges.

Courts are perfectly competent to consider contextual

factual material in connection with the resolution of a request

for an as-applied exemption from Section 203. This Court’s

election law jurisprudence is replete with the duty to conduct

precisely the fact-intensive analyses that the court below

sought to avoid.

For example, McConnell holds that minor parties can

claim a constitutional exemption from BCRA’s soft-money

ban by showing that the ban on receiving or spending soft

money “prevents it from ‘amassing the resources for

effective advocacy,” McConnell, 540 U.S. at 159 (quoting

Buckley, 424 U.S. at 21), a test that is nothing if not fact-

intensive. A similar standard applies if a litigant wishes to

mount an as-applied challenge to BCRA’s ban on soft money

contributions to state and local political parties. See id. at 173

(requiring as-applied challenger to show that the ban’s effect

on contributions “is ‘so radical in effect as to . . . drive the

sound of the [recipient’s] voice below the level of notice’”

(quoting Nixon v. Shrink Missouri Government PAC, 528

U.S. 377, 397 (2000))).

In the same vein, Brown v. Socialist Workers ‘74

Campaign Committee, 459 U.S. 87 (1982), holds that a minor

party will be entitled to as-applied relief from a campaign

finance disclosure statute if it can show a reasonable

probability that disclosure will lead to threats, harassments,

and reprisals. /d. at 91-93, 98-101. This sort of fact-intensive

analysis applies, as well, in other areas of this Court’s

«12.

election law constitutional jurisprudence. See Miller v.

Johnson, 515 U.S. 900, 910-13 (1995) (imposing fact-

intensive purpose analysis in challenge to drawing of

racially-gerrymandered districts); Anderson v. Celebrezze,

460 U.S. 780, 789-91, 792-93 (1983) (mandating fact-

intensive undue burden analysis in First Amendment

challenge to laws regulating access to the ballot).

Judged against this mass of precedent, the District Court’s

conclusion that readily available contextual evidence should

be ignored in assessing as-applied challenges to BCRA’s

corporate electioneering ban was manifest error. In fact,

compared with the fact-intensive inquiries the Court has

mandated in other campaign finance and election law

settings, the contextual factual issue in this case was child’s

play. Given the ads’ implicit criticism of Sen. Feingold,

WRTL’s long-standing hostility to Senator Feingold, the

_group’s open opposition to him in the website to which the

ads directed listeners, and the suspicious timing of the so-

called “grassroots lobbying,” it is simply impossible for any

reasonable finder of fact to review the record in this case and

conclude that an as-applied exemption is constitutionally

required under McConnell.

Given the overwhelming contextual record, this case is

easy. Adequate procedures exist to deal swiftly and surely

with harder cases, as well. As this Court noted in McConnell,

the combined probative weight of the objective indicia for

coverage in Section 203—{i) broadcast, cable, or satellite

advertising costing more than $10,000; (ii) within a fixed

period of a federal election; (iii) that refers to a clearly

. identified candidate in the forthcoming federal election; and

(iv) targets the candidate’s constituents—creates a powerful

factual inference that the speech has both the purpose and

perceived effect of supporting or opposing a candidate for

federal office. McConnell, 540 U.S. at 206 (observing that

the vast majority of covered ads had an electioneering

tts

purpose); see also id. at 127 (“{T]he conclusion that

[supposed issue] ads were specifically intended to affect

election results was confirmed by the fact that almost all of

them aired in the 60 days immediately preceding a federal

election.”). At a minimum, therefore, the inherent probative

weight of the four indicia satisfies the government’s burden

of production on the issues of the communication’s purpose

and perceived effect. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).

The essence of an application for an as-applied exemption

from such presumptively constitutional regulation is the

presentation of factual evidence tending to rebut the

presumption. See Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981); Batson v. Kentucky, 476 U.S.

79 (1986). At a minimum, an application for an exemption

must be accompanied by admissible evidence tending to

support the exemption, generally a sworn statement by the

speaker that the advertisement does not have the purpose of

supporting or opposing the candidate mentioned in the

advertisement. See Burdine, 450 U.S. at 254-55 & n.9. In

addition, the exemption application should be accompanied

by admissible evidence tending to prove that the

advertisement is not and will not be perceived as thinly-

disguised electioneering speech. Once an applicant for an

exemption has presented evidence tending to prove lack of

purpose and perceived effect, the evidence may be rebutted,

after which the District Court must make a finding of fact. In

this case, given the overwhelming factual record, the issue

simply is not in doubt. WRTL intended its corporate-funded

advertisements to harm Senator Feingold’s re-election

efforts. Given the contextual record, no reasonable finder of

fact could rule otherwise.

-14-

2. Consideration of the Factual Context Does Not

Threaten Constitutionally Protected Issue Speech.

Such a classic fact-finding procedure poses no danger of

“chilling” genuine corporate-funded “issue speech.” It is

simply unrealistic to assume that corporate speakers—hardly

the most vulnerable of persons—will refuse to air genuine

corporate-funded issue advertisements simply because a

court adjudicating an as-applied challenge will consider not

only the literal text, but the organization’s past history of

Supporting or opposing the candidate specifically identified

in the ad or the ad’s referral of the viewer (or listener) to

other unquestionably electoral exhortations, as well as the

timing and targeting of the advertisement. Such a procedure

will deter (as it should) only those who wish to air corporate-

funded electioneering ads masquerading as issue ads in an

effort to influence the outcome of elections. Under

McConnell, such persons have no right to relief.

C. Viewed in Factual Context, WRTL’s Advertisements

Do Not Qualify for an As-Applied Exemption from

Section 203’s Ban on Corporate Electioneering.

This Court’s precedents leave no doubt about the standard

to be applied in an as-applied challenge to the application of

a facially constitutional statute. A reviewing court must first

decide whether a ban on corporate funding of the

advertisements in question would advance the compelling

governmental interests recognized by the Court in McConnell

and earlier precedents of this Court. See McConnell, 540 U.S.

at 205; FEC v. Beaumont, 539 U.S. 146, 161 (2003);

Colorado Republican Fed. Campaign Comm. v. FEC, 518

U.S. 604 (1996); FEC v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238 (1986). Second, if granting an as-applied

exemption would significantly undermine BCRA’s

constitutional statutory scheme, the as-applied challenge

must fail. E.g., United States v. Edge Broad. Co., 509 U.S.

- 1$-

418 (1993) (refusing to grant as applied exemption from

broadcasting ban because of impact on facially valid

regulatory scheme); United States v. Lee, 455 U.S. 252, 259-

60 (1982) (refusing to exempt Amish employers from paying

social security taxes despite substantial burden on their free

exercise rights because exemption would compromise social

security system).

1. Precluding WRTL’s Ads Furthers the Compelling

State Interests Recognized in McConnell.

Applying the proper standards, this is an easy case for

rejecting the application. WRTL’s advertisements are virtual

replicas of the phony issue ads BCRA was designed to

eliminate. The advertisements use implicit criticism to tell

the electorate to oppose Senator Feingold and the policies

with which he is identified. The compelling state interests

McConnell recited in rejecting the facial challenge to a ban

on corporate-funded electioneering speech—interests in

preserving the integrity of the electoral process, combating

real and perceived corruption, and preventing the

circumvention of BCRA’s contribution limits—fully support

BCRA’s application to WRTL’s §anti-Feingold

advertisements.

McConnell emphasized two points in finding that a ban on

corporate electioneering satisfied strict scrutiny. First, the

McConnell Court noted that forbidding corporations from

using treasury funds to pay for election-related political

advertisements imposes a limited speech burden since

corporations remain free to express any political viewpoint

they chouse, as long as corporate PAC money is used to pay

for the speech.

“The PAC option allows corporate political

participation without the temptation to use corporate

funds for political influence, quite possibly at odds

- 16-

with the sentiments of some shareholders or

members, and it lets the government regulate

campaign activity through regulation and disclosure

without jeopardizing the associational rights of

advocacy organizations’ members.”

McConnell, 540 U.S. at 204 (quoting Beaumont, 539 US. at

163).

Second, McConnell held that BCRA’s ban on corporate-

funded electioneering speech is justified by two well-

recognized compelling state interests. The ban ensures that

corporations do not use the benefits of the corporate form to

amass and spend political war chests capable of destabilizing

the democratic process. Jd. at 205; see also Beaumont, 539

U.S. at 153-55 (collecting cases); Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 658-59 (1990)

(“[S]tate-created advantages not only allow corporations to

play a dominant role in the Nation’s economy, but also

permit them to use ‘resources amassed in the economic

marketplace’ to obtain ‘an unfair advantage in the political

marketplace.” (quoting MCFL, 479 U.S. at 257)); FEC v.

National Right to Work Comm., 459 U.S. 197, 207 (1982)

(“[S]Jubstantial aggregations of wealth amassed by the special

advantages of the corporate form of organization should not

be converted into political “war chests’ which could be used

to incur political debts from legislators . . . .”).

The ban also prevents circumvention of limits on

individual contributions to candidates—laws this Court has

repeatedly upheld against First Amendment challenge-—

through the artifice of diverting money through the

corporation. See McConnell, 540 U.S. at 205 (“[RJecent

cases have recognized that certain restrictions on corporate

electoral involvement permissibly hedge against

‘circumvention of [valid] contribution limits.”” (quoting

Beaumont, 539 U.S. at 155)).

“#- \

The text of the advertisements at issue here and two pieces

of objective and undisputable contextual evidence

demonstrate that WRTL’s ads were designed to affect, and

were perceived as designed to affect, electoral outcomes.

Indeed, they are exactly the kind of sham issue ads BCRA

was enacted to prevent. In the guise of discussing a political

issue, they criticize one candidate’s voting record on a

controversial issue, and urge action directed at the candidate,

clearly suggesting that he should not be re-elected. Moreover,

what was implicit in the text of the advertisement was made

explicit in the website to which the ad directed viewers. That

site, as the dissenting judge below observed, featured alerts

that “excoriat[ed]” Senator Feingold for his filibustering of

President Bush’s judicial nominees and urged the Senator’s

defeat. WRTL II, 2006 WL 3746669, at *14 (Roberts, J.,

dissenting).

McConnell itself confirms that this kind of ad, which

criticizes the political stances of a candidate and asks the

voters to contact him or her, is tantamount to expressly

advocating the criticized candidate’s defeat. “Little

difference exist[s] . . . between an ad that urge[s] viewers to

‘vote against Jane Doe’ and one that condemn{[s] Jane Doe’s

record on a particular issue before exhorting viewers to ‘call

Jane Doe and tell her what you think.”” McConnell, 540 U.S.

at 126-27; see also id. at 170 (“[A]ny public communication

that promotes or attacks a clearly identified candidate directly

affects the election in which he is participating.”); id. at 193

(“[A]lthough the . . . advertisements do not urge the viewer to

vote for or against the candidate in so many words, they are

no less clearly intended to influence the election.”).

The timing of WRTL’s broadcast of the ads, which

McConnell itself treats as probative, see id. at 127, further

supports the conclusion that WRTL broadcast these three

advertisements to convince Wisconsin voters not to re-elect

-18-

Sen. Feingold. The three advertisements at issue here were

the only advertisements that WRTL broadcast concerning the -

filibustering of judicial nominees during the whole of the

controversy over confirmation of President Bush’s judicial

nominees. As the dissent below observed, WRTL began

broadcasting the ads on July 26, 1994, after the last of the

judicial filibuster cloture votes in that session, and after the

Senate had recessed for six weeks, see WRTL IJ, 2006 WL

3746669 at *16 (Roberts, J., dissenting), but just in time to

tee up a challenge to BCRA. Further, WRTL did not

broadcast any advertisements concerning filibustering after

Senator Feingold’s re-election in November 2004, even

though the same group of Senators continued to filibuster

President Bush’s nominees. /d. The timing of the ads thus

confirms what is implicit in the text: these ads were aimed at

defeating Senator Feingold’s re-election bid.

Finally, WRTL has long opposed Senator Feingold and its

PAC has long supported his political opponents. As the

dissent pointed out, WRTL made Senator Feingold’s defeat a

“priority” and in 2004 declared its “resolve to do everything

possible to win Wisconsin for President Bush and send Russ

Feingold packing!” /d. at *15-16. Broadcasting these three

advertisements was part and parcel of WRTL’s strategy to

defeat Senator Feingold. That is why it ran the ads

encouraging voters to tell Senator Feingold to change his

policy, and did so toward the end of the election cycle rather

than when Congress was in session and actually voting on

the filibusters of judicial nominees about which WRTL

claims to be so concerned. Under McConnell, BCRA may—

indeed, must—be applied to these ads, which undoubtedly,

were “intended to influence the voters’ decision and [had]

that effect.” McConnell, 540 U.S. at 206.

~

«Me

2. Granting the As-Applied Exemption Sought by

WRTL Would Undermine the Statutory Scheme

Upheld in McConnell.

The District Court’s judgment should be reversed for a

second reason. The District Court never considered the effect

of granting an as-applied exemption on the facts of this case

on the statutory scheme upheld in McConnell. The lower

court simply ignored the fact that the exemption it created

would decimate BCRA’s statutory scheme, leaving a gaping

hole that would frustrate the compelling state interests

McConnell recognized. That effect, alone, supports rejection

of the WRTL’s as-applied challenge.

In the final analysis, the District Court’s opinion rests on

dissatisfaction with the McConnell Court’s refusal to erect a

bright-line rule for as-applied challenges similar to the

discredited “magic words” test. Instead of seeking to

implement the McConnell Court’s directive to work out a

First Amendment balance, the District Court’s reasoning

upsets that balance and re-establishes an unworkable scheme

that severely undercuts the holding of McConnell itself.

Upholding WRTL’s as-applied challenge would vitiate the

statutory scheme that McConnell adjudged valid. It would

mean that WRTL «ad any other corporate entity could run

virtually any corporate-funded campaign advertisements it

wished—free from even a duty to disclose—so long as it

chose the words of its ads carefully and criticized the

candidates it opposed in coded language, rather than direct

attacks. Such a ruling would create a hole in BCRA’s scheme

big enough to drive a truck through and would effectively

reinstate the flawed “magic words” approach that BCRA

repudiated. As the Court’s as-applied jurisprudence has made

clear time and again, courts should not radically remake valid

statutory schemes in the guise of vindicating as-applied

claims. Plaintiffs should not be permitted to parlay an overly

. -

broad as-applied challenge into an end-run around the

doctrine of stare decisis.

The Court’s cases make clear that while an as-applied

challenge is an appropriate way to trim the unconstitutional

fat from a statute; it may not to be used to vitiate an

otherwise constitutional statutory scheme. In United States v.

Lee, 455 U.S. 282 (1982), the Court rejected 2n as-applied

challenge brought by an Amish employer wno refused to pay

social security taxes in accordance with the dictates of his

religion. Applying strict scrutiny (then the prevailing

constitutional test), the Court held that recognizing an as-

applied exemption risked vitiating the compelling state

interests underlying the tax statute. Accommodating the

Amish employer, the Court held, would “unduly interfere

with fulfillment of [a compelling] governmental interest,” id.

at 259, because it would open the door to a wide range of

religious-based exemptions incompatible with . mandatory

tax system. Jd. at 259-60 (“[I]t would be difficult to

accommodate the comprehensive social security system with

myriad exceptions flowing from a wide variety of religious

beliefs.”).

Likewise, in United States v. Edge Broadcasting Co., 509

U.S. 418 (1993), the Court rejected an as-applied challenge

by a North Carolina radio station owner who sought to

broadcast lottery advertisements in violation of a federal

statute prohibiting advertisements by stations in jurisdictions,

such as North Carolina, that do not sponsor a lottery. Edge

claimed that it was entitled to a constitutional exemption

because it was located three miles from the border with

Virginia, which sponsored a lottery, and because Virginians

constituted virtually of all its listening audience.

In rejecting Edge’s as-applied challenge, the Court

emphasized that it could not consider Edge’s as-applied

claim in isolation; it had to consider the system-wide effects

o 2.

of granting Edge and all other similar-situated persons a

constitutional exemption. “We judge the validity of the

restriction in this case by the relation it bears to the general

problem [Congress regulated] . . . not by the extent to which

it furthers the Government’s interest in the individual case.”

Id. at 430-31. Because granting Edge an as-applied

exemption would have frustrated Congress’ valid choice to

accommodate the policies of lottery and non-lottery states,

the Court rejected Edge’s claim for a constitutionally-

compelled exemption. /d. at 431-35.

As in Lee and Edge, granting WRTL an as-applied

exemption on the facts of this case would subvert the

statutory scheme this Court approved in McConnell, re-

opening the loophole that BCRA closed. It would allow

groups like WRTL and their corporate donors to pour

millions and millions of dollars of corporate treasury fuads

into federal elections, so long as “magic words” were not

used in the text. As Lee and Edge teach, an as-applied

“hallenge must fail where, as here, it would wreak havoc on a

valid statutory scheme.

o 77 «

CONCLUSION

For the above-stated reasons, the decision of the District

Court should be reversed, and Appellees’ application for an

as-applied exemption from section 203 should be denied.

Respectfully submitted,

Burt Neuborne, Counsel of Record

Deborah Goldberg

David Gans

BRENNAN CENTER FOR JUSTICE

AT NYU LAW SCHOOL

161 Avenue of the Americas, 12" floor

New York, NY 10013

212-998-6730

Attorneys for Amici Curiae