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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A25

## Record

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

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0516%3A25. Public record. Not legal advice.