Amicus Curiae Brief — McCain v. Wisconsin Right to Life, Inc. (Nos. 06-970, 06-969)

Nos. 06-969 & 06-970

IN Te

Supreme Court of the United States

EDERAL LLECTION COMMISSION,

Appellant.

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WISCONSIN RIGHT TO LIFEOING..

Appeilee

SeXATOR JOHN MICCAIN, eF al..

Appellants

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WISCONSIN RIGHT TO LIFELING..

Ippellee

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURLAE

INSUPPORT OF APPELLEE

WON VTTEAN POUT

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S15 loth Street. SOW

Washington, DC 20006

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TABLE OF CONTENTS

Page

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| ED LOTTE l

SUMMARY OF ARGUMENT ..............cceseceeesseceeeesees

Ua aniccicieintintindinaiebincennsapenadieiietianpantasesininntaptedes 6

I. A Meaningful As-Applied Exception to

Section 203 Must Be Defined By Bright-Line

and Readily Determinable Characteristics ........ 6

If. The Appellants’ Analyses Effectively Preclude

As-Applied Exceptions and Are Incoherent

RN BOON onseccccccccsccsccnccscesscvevcsesscees 11

Iii. There Is No Governmental Interest in Sup-

pressing Issue Advocacy Broadcast Messages.. 21

IV. The Appellants’ Arguments Concerning

WRITL’s Separate Segregated Fund Should Be

PII sccctssscslenistsicoenienatidiniiniihidianabaliimniiliniisinitions 24

-V. The Court Should Not Foreclose the Possibil-

ity That Labor Organizations as a Class of

Speaker Are Exempt From Section 203 ............ 29

Sean sissantitisosussbsseveietatdnctuaiclieenasiviaicadipeapanidaciaiadessitine 30

(i)

TABLE OF AUTHORITIES

CASES Page

- Abood v. Detroit Bd. of Education, 431 U.S. 209

[sua Wei ricsiiiteseibaiabeiheiiibeiadiiteniaieiasiidadiasiaiiaiitg 29

Ashcroft v. Free Speech Coalition, 535 U.S. 234

SSIITT Disease bieiieasandaticiegieataeaeiebdaae 13

Austin v. Michigan Chamber of Commerce, 494

Sena EESTI ITTITIED sasvsesivichedipdiiciahteniniingnicmiuniadguiaingaiiie 6, 30

BE&K Construction Co. v. NLRB, 536 U.S. 516

SSaTE sdissesbiitihanehiieiipinvenisiieiniageabeiaddeieiusiadbiaiiiiarbaandeatiin 22

Brown v. Hartlage, 456 U.S. 45 (1982)............0... 1]

Brown v. Socialist Workers '74 Campaign Com-

mittee (Ohio), 459 U.S. 87 (1982) .......eecceeeeeeeees 23-24

Buckley v. American Constitutional Law Foun-

Pathan, S25 U.S. 162 (EDD) .....c.cereccccccescecccsscess 27

Buckley v. Valeo, 424 U.S. 1 (1976)..............ccccee passim

Buckley v. Valeo, 519 F. 2d 817 (D.C. Cir. 1975)... 8

Christian Civic League of Maine v. Federal

Election Commission (No. 06-589) ..............00++- 3

Consolidated Edison Co. v. Public Service

Commission, 447 U.S. 530 (1980)...........c eee 23

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)........... 29

Ellis v. Bhd. of Railway and Airline Clerks, 466

U.S. 435 (1984) .000... subquanieneadtaanidainiaaaisiiians 29

Federal Election Commission v. Beaumont, 539

Se: SPIE EITTET ic ccsiatessinisnidiitninnpinenisipasiiblesidnaianiiies 25

Federal Election Commission v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238 (1986)....... 11,12

First National Bank of Boston v. Bellotti, 435

SERA, GENE OIP IT UTII ccrccusncnibsdeihncsdandinleiannsbisaeniieienionbianens 22, 23

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Beston, Inc., 515 U.S. 557

Init: deccticeastedceilinatdeaale heniasaibciaretaataiendiacsanailiatn 27

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

SNE ascebidcinniaidibiinienaedeaieaistediaesaiaaianiidaenaaaeendatiedes 29

iil

TABLE OF AUTHORITIES—Continued

Page

Machinists v. Street, 367 U.S. 740 (1961)............. 29

McConnell v. Federal Election Commission, 540

Ss TT Mihccieshiiinnsishneiienniiehiiiden i iTiliaiinaiiaaaains passim

McConnell v. Federal Election Commission, 251

F. Samp. 26 176 (D.D.C. 2OG3S).......ccccecccscccceeeess 10

Meyer v. Grant, 486 U.S. 414 (1988)... 27-28

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

See cciicindistnibiilbshiadaltedaldeatiinlseaeabasdinatensdinnmindiinidutiiien 13, 23

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .............. 13

Pacific Gas & Electric Co. v. Public Utilities

Commission, 475 U.S. 1 (1986)............ceccceeeeeees 27

Pipefitters Local Union No. 562 v. United States,

Se Cs DUE ericcascsitibainnsiciiennsininiiilasaabiiniees 26, 29

Regan v. Taxation With Representation of

Washington, 461 U.S. 540 (1983) .0.0. eee 26

Riley v. National Federation of Blind of N.C.,

SE Ee Sls Fe I schsctaciicntetensitenntinnntacennen 27

Thomas v. Collins, 323 U.S. 516 (1945) ...........26. 9, 12

Thornhill v. Alabama, 308 U.S. 88 (1940)............ 23

United States v. Congress of Industrial

Organizations, 335 U.S. 106 (1948)................. 27, 29

J/nited States v. United Auto Workers, 352 U.S.

Sy Cera cisescartenhcecinaichcniensipiicsapatiatanimatiainiemees 29

Wisconsin Right to Life, Inc. v. Federal Election

Commission, 546 U.S. 410 (2006)............... 2-3, 21, 25

Wisconsin Right to Life, Inc. v. Federal Election

Commission, 466 F. Supp. 2d 195 (D.D.C.

SuriiihciSiiccsasicdieicadaalicdenidansasebanibaslanedieiicabenianieiaddadbaatianti 9,21

STATUTES

Eh FSS RRR OOO Rae TRH aDE TER 3

I ictdanicnededarituasesiniiaiienidtiadaisaiiaaiigie 2, 21

2 U.S.C. § 431(2O)(A) iii) .occcecseccecssceceesseessesseeseee 15

iV

TABLE OF AUTHORITIES—Continued

2 U.S.C. § 434(f)(3)A)(i) ceecccccecccsssccccssseccssseecssnees

2 U.S.C. § 434(£)(3)(A)(ii) ccccccsscescsseecesececcsseecesecees

2 U.S.C. § 434(f)(3)(B)(IV)..cccccsecscssesssssecesssesesseeee

2.U.S.C. § 441.a(a)(5).cccecccssvecccssececssssecsssuescsssseeesse

ea ee

2 U.S.C. § 441b(b)(2) ceccccccsceccsseeesssvesessvecessecsensveee

2 U.S.C. § 441b(b)(2)(A)-ccsseccsssecsssveecsssecssseesesseeee

2 U.S.C. § 441b(b)(2)(C) -csseccccsseecssseeessseesessseeesesees

Ta

SETTLE

TE ee eee

ee ae

SS eee

REGULATIONS

ee eae

ee OS Ee

To ee ae ae

“Ti. fe. er

11 CLFLR. § 110.3(a)(2)(iii)..ecccceccssssesssseceseseesesseeee

26 C.F.R. § 1.527-2(b)(1) .escccccseccsssseesessessssvecssneeees

MISCELLANEOUS

Detailed Comments of BCRA Sponsors Senator

John McCain, Senator Russ Feingold, Repre-

sentative Christopher Shays, Representative

Marty Meehan, Senator Olympia Snowe, and

Senator James Jeffords (Aug. 23, 2002),

www.fec.gov/pdf/nprm/electioneering_ comm/

comments/us_cong members.pdf)....................

27

Vv

TABLE OF AUTHORITIES—Continued

FEC, “Exception for Certain ‘Grassroots Lobby-

ing’ Communications from the Definition of

‘Electioneering Communication,” 71 Fed.

Reg. SZZ95 (Sept. 5, ZOOG) ...cccrccscscorersssesnceeseses

Internal Revenue Service, “Election Year Issues”

[ie a iciesneseissiesenescsinnesianenidetuialindiasilaianianigieanaibiabiaidiine

Letter from Donald J. Simon to Mai T. Dinh

(Aug. 22, 2002), www.fec.gov/pdf/nprm/

electioneering comm/comments/common_cau

Se and Gemoc#sacy 21 pdf).......ccccccccrcosssesserseees

Petition for Rulemaking: Electioneering Commu-

nications and Grassroots Lobbying Exemp-

tion (Feb. 16, 2006), www.fec.gov/pdf/nprm/

lobbying/orig petition.pdf............. eee

“Record-Keeping Under the Labor Management

Reporting and Disclosure Act (LMRDA): Do -

DOL Reporting Systems Benefit the Rank and

File?”, Joint Hearing Before the Subcommittee

on Workforce Protections and the Subcom-

mittee on Employer-Employee Relations of

the House Committee on Education and the

Workforce, 107th Cong., 2d Sess. (2002) .........

www. fec.gov/press/press2006/200607 1 4paccount.

» ie cecessscninepiseschaninesinavincmemneneieinnmaiidinids

Page

26

20

28

28

The American Federation of Labor and Congress of Indus-

trial Organizations (“AFL-CIO”), a federation of 54 national

and international labor organizations with a total membership

of 10 million working men and women, files this brief amicus

curiae in support of Appellee with the consent of the parties

as provided for in the Rules of this Court. '

INTEREST OF AMICUS

As plaintiffs in McConnell v. Federal Election Commis-

sion, 540 U.S. 93 (2003) (No. 02-1755), the AFL-CIO and its

connected federal political committee, AFL-CIO COPE PCC

(together, “the AFL-CIO Plaintiffs”), brought a facial chal-

lenge, under the First Amendment to the United States

Constitution, to § 203 of the Bipartisan Campaign Reform

Act (“BCRA”) of 2002, 2 U.S.C. § 441b(b)(2) and (c)

(amending the Federal Election Campaign Act (“FECA”), 2

U.S.C. § 431 ef seqg.), which proscribes union and corporate

funding of “electioneering communications.”* The AFL-CIO

' No counsel for a party authored this brief amicus curiae in whole or

in part, and no person or entity, other than the amicus, made a monetary

contribution to the preparation or submission of this brief.

> 2 U.S.C. § 434(f(3)A)(i), contains what is generally termed the “pri-

mary definition” of this term, and 2 U.S.C. 434(f(3,A)ii) contains a

“backup definition” that would apply instead if the primary definition

were held to be unconstitutional. The primary definition includes a

transmission element (“any broadcast, cable or satellite communication”);

a content element (“refers to a clearly identified candidate for federal

office”); a temporal element (within 60 days before “a general, special or

runoff election.” or within 30 days before “a primary or preference

election” or nominating “convention or caucus” “for the office sought by

the candidate”) and an audience element (“can be received by 50,000 or

more persons” in the relevant electoral jurisdiction). See McConnell, 540

U.S. at 189-90. The term “clearly identified” means the candidate's

“name,” “photograph” or “drawing,” and where “the identity of the

candidate is apparent by unambiguous reference” otherwise. See 2 U.S.C.

§ 431(18). As elaborated by an FEC regulation, “the identity of the

candidate is otherwise apparent through an unambiguous reference such

as ‘the President,” “your Congressman.” or ‘the incumbent’, or through

2

Plaintiffs did so because this provision threatened to impair

the AFL-CIO’s use of the broadcast medium as a legislative

and policy advocacy tool, marked an unprecedented legisla-

tive incursion on labor organizations’ ability to speak out on

matters of public concern by treating substantial portions of

their public advocacy as electoral in nature, and would

impose a substantial and unwarranted burden on AFL-CIO

COPE PCC.

The AFL-CIO Plaintiffs placed in the record of that case

compact discs and videotapes of approximately 85 different

television and radio advertisements that the AFL-CIO had

sponsored throughout every year from 1995 through 2001;

virtually every ad in turn had numerous versions, the differ-

ence in almost every case being the name of the incumbent

Member of Congress to whom the ad referred. See Joint

Appendix (“J.A.”), Vol. I, pgs. 440-62 (Declaration of Denise

Mitchell); J.A. Vol. Il, pgs. 464-587 (Index of AFL-CIO Issue

Advertising, 1995-2001); Brief of AFL-CIO Appellants/

Cross-Appellees at 1-7. McConnell v. FEC, No. 02-1674, et

al. Without specifically addressing the AFL-CIO Plaintiffs’

evidentiary submission, however, the Court held that the

various McConnell plaintiffs had not “carried their heavy

burden of proving that [§ 203] is overbroad.” See 540 U.S. at

203-11.

The AFL-CIO subsequently filed a brief amicus curiae in

support of the appellant in Wisconsin Right to Life, Inc. v.

an unambiguous reference to his or her status as a candidate such as ‘the

Democratic presidential nominee’ or ‘the Republican candidate for Senate

in the State of Georgia.” See 11 C.F.R. § 100.29. A person becomes a

“candidate” under FECA upon receiving contributions or making

expenditures in excess of $5,000, see 2 U.S.C. § 431(2)(A), a threshold

routinely met by incumbent Members of Congress almost immediately

after winning their most recent election. See also 11 C.F.R. § 100.3. Asa

practical matter, only a Member of Congress who has announced retire-

ment or lost a nomination contest is not a “candidate” at all times, includ-

ing those periods during which § 203 applies.

3

FEC, 546 U.S. 410 (2006) (per curiam) (“WRTL I’), arguing

both that as-applied challenges to § 203 were justiciable and

that the advertisements at issue were entitled to protection

under the First Amendment. In January 2006, the Court

unanimously held that its decision in McConnell “did not

purport to resolve future as-applied challenges,” 546 U.S. at

___, 126 §. Ct. 1016, 1018, and observed that “{a]lthough

the [Federal Election Commission] has statutory authority

to exempt by regulation certain communications from

BCRA’s prohibition on electioneering communications,

§ 434(f\(3)(B)(iv), at this point, it has not done so for the

_ types of advertisements at issue here.” /d. at, 126 S. Ct.

at 1017.

The following month, the AFL-CIO joined with a usual

policy adversary, the Chamber of Commerce of the United

States, and three other organizations in a petition asking the

Federal Election Commission (“FEC”) to initiate a rulemak-

ing to exempt “at least some forms of grassroots lobbying”

from that prohibition, in effect a safe harbor for messages that

bore particular characteristics. See Petition for Rulemaking:

Electioneering Communications and Grassroots Lobbying

Exemption (Feb. 16, 2006), www.fec.gov/pdf/nprm/lobbying/

orig petition.pdf. However, after considering 192 comments

on the petition (all but one of which supported it), the FEC

declined to undertake such a rulemaking, pointing to the

pendency of both the case at bar and another pending as-

applied challenge (No. 06-589, Christian Civic League of

Maine v. FEC), and expressing concern that any exemption

might become the subject of “new litigation.” FEC, “Excep-

tion for Certain “Grassroots Lobbying’ Communications from

the Definition of *Electioneering Communication,” 71 Fed.

Reg. 52295, 52296 (Sept. 5, 2006). The AFL-CIO has a

considerable stake in judicial recognition of a meaningful

standard for as-applied exceptions to § 203°s otherwise abso-

lute prohibition.

4

SUMMARY OF ARGUMENT

1. In McConnell v. FEC, 540 U.S. 93, 206 (2003), the

Court upheld the BCRA § 203 prohibition of corporate- and

union-financed so-called “electioneering communications”

“to the extent that the issue ads broadcast during the pre-

election periods...are the functional equivalent of express

advocacy.” In so holding, the Court focused on one adver- _

tisement in the record and posited a hypothetical message that

satisfied that standard, neither of which included a reference

to a candidate acting in the capacity of an incumbent office-

holders. The Court acknowledged that the compelling gov-

ernmental interests underlying § 203 might not apply to

“genuine issue ads” pertaining to “political policy or advo-

cacy of the passage or defeat of legislation,” whose existence

during the § 203 timeframes it acknowledged. /d. at 205.

As the Court aptly observed in Buckley v. Valeo, 424 U.S.

1, 42 (1976), discussion of issues “naturally and inexorably . . .

exert|s] some influence on voters’ choices.” A meaningful

oppertunity to make an as-applied challenge to § 203 must

include reliance upon the presence or absence of characteris-

tics that preserve § 203 insofar as it is constitutional, that are

readily and objectively determinable, and that cabin a class of

communications least likely to be electorally focused. The

WRITL advertisements reflect six such characteristics and

should be protected. |

i]

2. In contrast, the Government and the Intervenors treat

the innate fluidity of electoral and non-electoral speech as

justification to resist any meaningful protection for issue

speech. While the Government correctly acknowledges the

problems with a wide-ranging inquiry into a particular adver-

tisement, its analysis of the WRTL’s ads belies its sensible

cautions. The Government's strict adherence to § 203's

“bright line” effectively deprives speakers of any meaningful

exception. In conferring discretionary exemption authority

5

on the FEC in § 203, Congress itself did not envision that

§ 203’s bright line would be absolute.

The Intervenors offer a variety of vague and unworkable

standards for identifying what speech § 203 may constitution-

ally. capture. They too intrusively parse the language of the

WRTL ads and reach speculative and unjustifiable conclu-

sions from contextual factors whose consideration they erro-

neously contend should be unlimited, and their comparative

examples of speech that merit protection cannot be coherently

distinguished from the WRTL advertisements. Their argu-

ment also marks an unexplained reversal of the position they

urged upon the FEC in its 2002 BCRA rulemaking, when

they advocated a virtually entirely content-based exemption

to § 203 because it would “assure that the communication

plainly and unquestionably is ‘wholly unrelated to any elec-

tion,” a standard that appears even more exacting than those

they urge the Court to apply to the WRTL ads that in all

relevant respects fully satisfy their 2002 formulation.

3. In contrast to express advocacy and its “functional

equivalent,” the Court has never recognized a governmental

interest in suppressing the issue speec.. that merits an as-

applied exemption to § 203. That speech serves the First

Amendment right to petition the Government, and it is core

protected speech regardless of the identity of the speaker.

And, the § 203 prohibition is particularly inappropriately

applied where, as here, the referenced candidate was running

unopposed in a political party primary.

4. The Court should reject the appellants’ argument that

WRTL’s ads should be construed as electoral due to the

distinct activities of WRTL’s federal PAC. The PAC is a dis-

tinct legal entity. and it would effectively impose an uncon-

stitutional forced choice. akin to one the Court rejected in

McConnell, if the PAC’s speech were treated as tainting that

of WRTL. Concluding otherwise would disrupt dual organ-

izational structures that both the Federal Election Campaign

6

Act and the Internal Revenue Code have long protected and

encouraged.

Requiring a corporation’s separate segregated fund to

finance issue speech also unconstitutionally compels the

speaker to assert an electoral character to speech against its

wishes. And, due to a longstanding Internal Revenue Service

rule, the PAC could lose its tax exemption as a result. Re-

quiring groups, particularly in hierarchical structures, to rely

upon a PAC for issue speech is also unduly burdensome.

5. Finally, in deciding this case the Court should not

foreclose the opportunity for a union or other speaker that is

not now before it to make out a class-based exception from

§ 230. McConnell predicated its holding on cases involving

corporations and did not specify why § 203 is constitutional

as to unions, which have “crucial differences” from corpora-

tions that are directly relevant to the justifications underlying

laws restricting corporate electoral speech. Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 655-56 (1990).

ARGUMENT

I. A Meaningful As-Applied Exception to Section 203

Must Be Defined By Bright-Line and Rezdily

Determinable Characteristics

BCRA’s “electioneering communications” provision im-

poses “stringent restrictions on ail/ election-time advertising

that refers to a candidate because such advertising will offen

convey messages of support or opposition.” McConnell v.

FEC, 540 U.S. at 239 (emphasis in original). In upholding

§ 203 against plaintiffs’ overbreadth challenges, the Court

stated that the constitutionally sufficient justifications for

§ 203 applied only “to the extent that the issue ads broadcast

during the [pre-election] periods . . . are the functional

equivalent of express advocacy,” that is, “#f the ads are

intended to influence the voters’ decisions and have that

effect.” /d. at 206; see also id. at 126-27. Vhe Court deter-

~?

mined that “the vast majority of ads” reflected in the record

before it “clearly had such a purpose”; and, in contrast,

§ 203’s application to “pure issue ads” was not “substantial.”

Id. at 206, 207 (emphasis added). While the Court noted the

“dispute” among the parties and within the three-judge court

in that case as to “the precise percentage” of election-

proximate ads in the record that were “genuine issue ads,” id.

at 206, every party and district judge in McConnell acknowl-

edged that some ads run during the § 203 blackout periods

were “genuine issue ads.”

However, the Court eschewed a detailed treatment of the

substantial record of broadcast advertising that was before it.

Instead, the Court generally referred to ads that “although . . .

not urg[ing] the viewer to vote for or against a candidate in so

many words, . . . are no less clearly intended to influence the

election.” /d. at 193 (footnote omitted). The Court illustrated

this concept with a single “striking example”: a 1996 Mon-

tana ad consisting of an ad hominem statement that compared

a non-incumbent congressional candidate’s alleged assault of

his wife and failure to pay child support with the candidate’s

state legislative voting record, and asked listeners to “[c]all

Bill Yellowtail. Tell him to support family values.” /d.

at 193 n. 78. The Court otherwise attributed a “vote-

for” message only to ads that it hypothetically described as

solely “condemn{ing] Jane Doe’s record on a particular issue

before exhorting viewers to ‘call Jane Doe and tell her what

you think.’” /d. at 127 (footnote omitted). Like the Montana

ad, this generic ad did not include a plea that listeners call

upon the candidate as an officeholder either to cast a legisla-

tive vote or take any other official action, and it could have

bee. directed at a candidate who was a non-incumbent. The

Court discussed no other particular advertisement or specific

formulation of advertisements.

By the same token, the AfcConnell majority did not elabo-

rate about what makes ads “genuine.” other than by describ-

8

ing in the manner quoted above what does nof. But the Court

plainly had in mind at least “discussion of political policy

or advocacy of the passage or defeat of legislation”; for, it

quoted its previous comparison—-for purposes of entitle-

ment to First Amendment protection—of that speech with

‘““laldvocacy of the election or defeat of candidates for

federal office’”* in Buckley v. Valeo, 424 U.S. 1, 48 (1976),

before explaining why the government had a compelling

interest in regulating certain sources of the latter. See

McConnell, 540 U.S. at 205.

Because § 203 may be constitutionally applied only to the

“functional equivalent” of express advocacy, at the core of

this case is the question of how to identify candidate-

referential messages that do not so qualify. The difficulty in

distinguishing the broadcast electoral advertising about which

Congress was concerned from other messages arises from

inevitable circumstances that this Court aptly described in

Buckley:

[T]he distinction between discussion of issues and can-

didates and advocacy of election or defeat of candidates

may often dissolve in practical application. Candidates,

especially incumbents, are intimately tied to public

issues involving legislative proposals and governmental

actions. Not only do candidates campaign on the basis

of their positions on various public issues, but cam-

paigns themselves generate issues of public interest.”

50

“. . Discussions of those issues, as well more positive

efforts to influence public opinion on them, tend natu-

rally and inexorably to exert some influence on voting at

elections.”

424 U.S. at 42 and n.50 (emphasis added), quoting Buckley v.

Valeo, 519 F. 2d 817, 875 (D.C. Cir. 1975).

The district court below undertook a careful and practical

review in concluding that the as-applied analysis should pro-

ceed almost entirely on the basis of the “four corners of the

9

... ads” themselves, rather than an unbounded consideration

of other material and\analysis in order to ascertain a speaker's

“subjective intent” or a broadcast message’s “likely effect”—

matters that, it concluded, were “too conjectural and wholly

impractical [to determine] if future as-applied challenges are

going to be evaluated on an emergency basis by three-judge

panels,” as BCRA commands. Wisconsin Right to Life, Inc.

v. FEC, 466 F. Supp. 2d 195, 205 (D.D.C. 2006). In evaluat-

ing whether or not the Wisconsin Right to Life, Inc. (“WRTL”)

ads merit First Amendment protection from the application of

§ 203, this Court too should consider what characteristics of a

constitutionally protected advertisement will preserve the

reach of § 203 insofar as McConnell upheld it, and enable

speakers, often in exigent circumstances, to proceed without

having to “‘hedge and trim’” their speech. See Buckley, 424

U.S. at 43, quoting Thomas vy. Collins, 323 U.S. 516, 535

(1945). These factors should supply as bright a line as

possible and cabin a class of communications that are least

likely to be electorally focused, and their presence or absence

should be readily determinable without entailing the kind of

intrusive discovery and litigation donnybrook that ensued

when WRIL sought preliminary relief below, and that would

risk an irreparable loss of First Amendment rights.”

The WRTL ads that are actually before the Court for deci-

sion satisfy the six characteristics enumerated below, and

because they do the § 203 prohibition must yield. More

objective than several of the considerations enumerated by

the district court, these characteristics mark communications

If the Court determines that there is no constitutionally sufficient

means to enable meaningful as-applied challenges to § 203, then it should

reconsider its decision in AfcConnell that the § 203 prohibition is itself

constitutional, either in deciding the case at bar on the current record, or

following supplemental briefing on that question.

* These characteristics track those that the AFL-CIO and others pro-

posed that the FEC adopt in 2006.

10

that in substantial measure belie electoral advocacy and

are very far removed from the Court’s two exemplars—the

Montana ad and the Jane Doe ad—of communications that

are electoral in nature:

1. The “clearly identified federal candidate” is an in-

cumbent public officeholder;

2. The communication discusses a particular current

legislative or executive branch matter;

3. The communication either (a) calls upon the candi-

date to take a particular position or action with respect to

the matter in his or her incumbent capacity, or (b) calls

upon the general public to contact the candidate in that

capacity and urge him or her to do so;

4. If the communication discusses the candidate’s posi-

tion or record on the matter, it does so only by quoting

the candidate’s own public statements or reciting the

candidate’s official action, such as a vote, on the matter;

5. The communication does not refer to an election, the

candidate’s candidacy or a political party; and

6. The communication does not refer to the candidate’s

personal character, or qualifications or fitness for office.”

We acknowledge that an ad that reflects all of these ele-

ments nonetheless conceivably could exert some impact under

some circumstances on an election, as Buckley, 424 U.S. at

42, generally observed. While it is possible to define the sort

* The texts and circumstances of six exemplars of broadcast adver-

tisements that also would satisfy this test are detailed in District Judge

Leon’s opinion in McConnell v. FEC, 251 F. Supp. 2d 176, 488-96

(D.D.C. 2003), as “[rjepresentative [e]xamples of [g]enuine [i]}ssue

{a]dvertisements” that unconstitutionally would have been subject to §

203 had it been in effect: all are AFL-CIO ads from 1998 or 2000. Fach

ad discussed a current legislative issue and referred to a “candidate” (each

an incumbent Member of Congress) only in calling on him or her to take

particular action on the issue. See id.

1]

of speech that necessarily will influence an election—-—express

advocacy, which is “unambiguously related to [a] campaign,”

id. at 80—it is not possible to devise a definition of speech

that necessarily will not. We believe that the above character-

istics, relevant to deciding the case at bar, carefully “identify[]

cases far from the troublesome border,” Brown v. Hartlage,

456 U.S. 45, 56 (1982), and appropriately balance the com-

peting constitutional considerations at hand, while not fore-

closing consideration of other factual circumstances, many of

which might not now be easily foreseeable.

Il. The Appellants’ Analyses Effectively Preclude As-

Applied Exceptions and Are Incoherent and Self-

Contradictary

1. In sharp contrast to the district court and the proposed

analysis above, the Government and the Intervenors treat the

innate fluidity of electoral and non-electoral speech as justi-

fication to subject virtually all of the latter to the prohibition

that § 203 was intended to and constitutionally may impose

only on the former. While the Government calls upon WRTL

to supply “a legal test that avoids the pitfalls of undue

complexity and susceptibility to evasion,” FEC Br. at 27

(emphasis in original), the Government proposes a standard

for an as-applied challenge that simply cannot be met, if

indeed it can be understood. Surprisingly, the Government

rejects “functional equivalence” to express advocacy as a

“workable or administrable” standard for as-applied chal-

lenges, terming it a “useful concept” only for “upholding the

bright-line limitations” of § 203. /d. at 29 n.7. Relying upon

the Court's exemption of certain ideological corporations

from FECA’s independent expenditure ban in FEC v. Massa-

chusetts Citizens for Life, Inc., 479 U.S. 238, 263 (1986)

(“MCFL™), the Government instead asserts that an ad ts

protected only if it “do[es] not pose the danger at which § 203

is directed,” FEC Br. at 40, “at all, rather than [presenting}

differences of degree.” /d. at 27 (emphasis added).

12

The Government’s analysis does not acknowledge that, at

some point, the § 203 “danger” is far too attenuated to justify

application of the prohibition. Its analogy to MCFL fails

because the Court there identified a precisely and objectively

determinable class of speaker that would be exempt from the

ordinary strictures against corporate independent expendi-

tures. See MCFL, 479 U.S. at 262-65. But in describing

what should be exempted from the § 203 bright-line, the

Government suggests no similar precision as to what circum-

stances—cither textually or contextually-—do not “pose” the

§ 203 “danger” “at all.” This poses the problem that § 203

was supposedly drafted to solve: avoiding “the vagueness

concerns that drove [the] analysis in Buckley.” McConnell,

540 U.S. at 194. Instead, the Government’s approach “blan-

kets with uncertainty whatever may be said. It compels the

speaker to hedge and trim.” Buckley, 424 U.S. at 43, quoting

Thomas v. Collins, 323 U.S. at 535.

The Government does claim to agree with the district court

that “requir[ing] examination of a// facts that are potentially

relevant to the ascertainment of an advertisement’s purpose or

effect” is infeasible, FEC Br. at 27 (emphasis in original), as

is any “ad hoc, case by case basis” for doing so, id. at 30, and

it disclaims on First Amendment grounds “close parsing

of the nuances of an advertisement’s text.” /d. at 27. The

Government also correctly recognizes that “potential speakers

may be chilled if the legality of particular communications or

financing arrangements turns on an unstructured post hoc

inquiry into the speaker's likely intent.” /d. at 42. But the

Government then ignores its own wise counsel.

First, the Government agrees with the dissenting judge

below that WRTL’s advertisement that, on its face, com-

plained about judicial filibusters would be “logically directed

only at the legislators who have already supported or em-

ployed the device.” so “‘even a textual approach could

suggest that . . . [the advertisements] might have implicitly

13

discouraged Sen. Feingold’s election.*” FEC Br. at 37, quot-

ing 466 F. Supp. 2d at 216 (Judge Roberts, dissenting). This

reading certainly “close{ly] pars[es] the nuances” of the ad,

and if a circumlocution that “might have implicitly discour-

aged” a candidate’s election “pose[s] the danger at which

§ 203 is directed” then the Government’s standard both “dis-

serve[s] First Amendment values,” id. at 27, and sets the as-

applied bar unreachably high for a speaker to surmount.

Second, despite its rhetorical rejection of a wide-ranging

contextual inquiry, the Government urges the Court to con-—

sider and evaluate the significance of numerous contextual

factors, including the timing of the WRTL ads, the content of

WRTL’s website, WRTL’s conduct over the subsequent year,

and both prior and contemporaneous speech and activities by

WRITL and its federal PAC with respect to Sen. Feingold. /d.

at 40-48.

By effectively depriving corporations and unions of any

opportunity to fund “genuine” broadcast issue advertising

during the § 203 timeframes, the Government’s test does not

comport with our constitutional jurisprudence. “(T]he argu-

ment... that protected speech may be banned as a means to

ban unprotected speech . . . turns the First Amendment upside

down. The Government may not suppress lawful speech as

the means to suppress unlawful speech. Protected speech

does not become unprotected merely because it resembles the

latter. The Constitution requires the reverse.” Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 255 (2003).°

* Similarly, precisely because “speech on matters of public concern

needs ‘breathing space’ . . . in order to survive,” Nike, Inc. v. Kasky, 539

U.S. 654, 676 (2003) (Breyer J., dissenting), quoting New York Times Co.

v. Sullivan, 376 U.S. 254, 272 (1964), where a corporation’s regulable

“purely commercial” speech is “inextricably intertwined” with “non-com-

mercial” (public issue-oriented) speech, it must not~be subject to state

' “false advertising” and related “unfair competition” regulation because

that would chill corporations from “issuling] significant communications

14

2. Nonetheless, the Government touts the § 203 “bright

line” as justification in itself to resist recognizing WRTL’s,

and likely any, as-applied challenge. See FEC Br. at 42-43.

But in MCFL the Court squarely rejected the same argument,

holding that where “the rationale for restricting core political

speech is simply the desire for a bright-line rule[, t}his hardly

constitutes the compelling state interest necessary to justify

any infringement on First Amendment freedom.” 479 U.S. at

263 (first emphasis in original; second emphasis added).

Bright-line rules are necessary -in areas implicating First

Amendment freedoms in order to protect speech from gov-

ernmental interference, not to facilitate governmental restric-

tions on speech. Thus, in Buckley, the Court fashioned the

bright line of express advocacy in order to clarify and narrow

a vague and overbroad statute that otherwise would have

trammeled upon non-electoral issue speech and unduly inhib-

ited speakers uncertain about how their speech might be

perceived. See 424 U.S. at 42-44. And, having done so, the

Court then invalidated FECA’s $1,000 expenditure limit, both

because independent express advocacy did not “presently

appear to pose dangers of real or apparent corruption,” id. at

46, and because a great deal of other speech could be devised

that “skirted the restriction on express advocacy of election or

defeat but nonetheless benefited the candidate’s campaign,”

id. at 457—1ationales that McConnell explicitly reaffirmed.

See 540 U.S. at 190-92.

Moreover, Congress itself did not seek to maintain a “bright

line” where the application of § 203 would have inappropriate

consequences. Thus, BCRA authorizes the FEC by regula-

tion to exempt from the definition of “electioneering com-

munications” “any . . . communication . . . to ensure the ap-

relevant to public debate” and “thereby limit the supply of relevant infor-

mation available to those, such as journalists, who seek to keep the public

informed about important issues.” /d. at 682-83 (interim quotation marks -

omitted). See also id. at 663-65 (Stevens J., concurring).

15

propriate implementation” of the law, so long as the commu-

nication does not “promote[] or support[{]” or “attack{]} or

oppese[]””’ a “clearly identified federal candidate.” See 2

U.S.C. § 434(f)(3)(B\iv), incorporating by reference 2 U.S.C.

§ 431(20)(A)(iii). The need for a “bright line” standard can

hardly he regarded as compelling when Congress itself

explicitly allowed the FEC to create exceptions that would

breach one.

3. The Intervenors, who were the primary congressional

sponsors of BCRA, describe numerous formulations of what

§ 203 constitutionally covers that are even vaguer and less

workable than the Government’s: “[a]ny ad that is likely to

influence voters’ decisions, based on an examination of the

ad’s objective content and context, sufficiently evinces an

electioneering purpose and implicates the legitimate goals of

BCRA,” Int. Br. at 16; “whether Congress may regulate an

ad’s financing turns not on whether it uses particular words,

or whether it makes its election-related nature explicit, but

whether it is likely to function as election advocacy by

affecting voters’ decisions,” id. at 23; “an as-applied

challenge should succeed only if the plaintiff can show that

the ad itself and the circumstances of its creation and airing

’ The quoted phrases (sometimes abbreviated as “PASO”) are unde-

fined in the statute. In McConnell, the Court concluded that these terms,

as used in § 431(20)A iii) with respect to political parties, were not

unconstitutionally vague. See 540 U.S. at 170 n.64. But the same conclu-

sion would not be appropriate if these terms are applied to the speech of

entities, like corporations and unions, that are neither parties, candidates

nor political committees. Accordingly, that phrase should not demarcate a

constitutional line for an as-applied challenge. Neither the Government

nor the Sponsors suggest otherwise, and various of their amici rightly

caution against doing so. See Brief for Amicus Curiae The League of

Women Voters of the United States er a/. (*LWYV Br.”) at 10-13. See also

McConnell, 540 U.S. at 337-38 (Kennedy, J., dissenting). The district

court thus erred in recognizing PASO as an element in evaluating as a

constitutional matter the merits of an as-applied challenge to § 203.

16

demonstrate that there is no reasonable prospect the ad is

likely to influence the election,” id at 39; “any ad whose

objective characteristics and context indicate that it is likely

to have a material effect on voters’ choices—and thus to

function as the equivalent of express advocacy ...” /d. at 41.

And, the Intervenors urge, there should be no restriction on

contextual considerations. /d. at 31-42.

It is the Intervenors, then, who have drawn “a line in the

sand ... on a windy day.” /d. at 35. And, not surprisingly,

under their analysis “electioneering’—and only “election-

eering”—-lurks everywhere in the WRTL ads. First, the Inter-

venors emphasize regarding the ads’ content:

1. Because the ads call on listeners to lobby Sen.

Feingold to oppose filibusters, he must be one of the

“group of Senators” referred to in the ads who sup-

ports them; otherwise, the plea would be “gratuitous.”

Id. at 23. (But this interpretation, like the Govern-

ment’s textual approach, excessively “pars[es] . . .

nuances” to discern suspect intent.)

2. Asking listeners also to contact non-candidate Sen.

Kohl is simply a “tactic . . . [to] shield . . . otherwise

obvious electioneering.” /d. at 23. (But if objectively

non-electoral characteristics of issue advocacy are

simply tricks, no message could pass muster.)

3. The ads provide “no contact information” for Sens.

Feingold or Kohl. /d. at 27. (But in the Internet age,

such information may be unnecessary.)

Second, they emphasize regarding the ads’ context:

1. The website to which the ads directed listeners did

contain contact information for the two Senators but

also material “criticizing [Sens.| Feingold and Kohl

for their role in the filibusters.” /d. at 27. (But even if

that website excerpt were relevant to the ad itself. a

17

website is too dynamic and dense with material to

attribute everything on it to a message that simply

refers to its URL.)

. Because Sen. Feingold had “publicly defended the

filibusters,” listeners would associate him with the

“group of Senators” mentioned in the ad. /d. at 23.

(But this opens the door to speculative and unpredict-

able considerations of context and general listener

awareness.)

. The ads were broadcast immediately after four Senate

cloture votes on judicial nominations and then contin-

ued for one week during a Senate recess, and they did

not resume later, including the next year when “the

filibuster controversy peaked.” /d. at 28. (But a

variety of legitimate tactical considerations influence

the timing of advertising, and the determination as to

whether a particular broadcast message is consti-

tutionally protected must be made immediately, not in

light of what transpires in the future.)

. WRTL and its PAC previously criticized Sen.

Feingold on the filibuster issue. /d. at 24. (But see

pp. 25-27, infra.)

. WRITL and its PAC opposed Sen. Feingold’s 2004

reelection. /d. at 24. (But see pp. 25-27, infra.)

. WRTL and its PAC had opposed Sen. Feingold’s

election in 1992 and reelection in 1998. /d. at 24 n.8.

But see pp. 25-27, infra.)

. Others, including the Wisconsin Republican Party

and Republican Senate primary candidates, “invoked

{Sen.] Feingold’s participation in the filibuster as a

central reason he should be defeated,” as shown in a

newspaper article “a year before the election.” /d. at

26. (But a group’s right to speak cannot be condi-

18

tioned on the distant actions of others over which the

group has no control.)

The Intervenors then contrast the WRTL ads with ads that,

they say, would be “truly different in kind” and “might well

be deemed to have no realistic connection with the election or

the candidate’s fitness for public office.” /d. at 40 n.27. But,

in fact, applying the Intervenors’ own analysis, those exam-

ples cannot be distinguished from the WRTL ads, and they

only underscore that the Intervenors offer no workable

standard at all.

First, they posit an ordinary commercial ad by an automo-

bile dealership whose founder and namesake is a candidate.

Id. But it seems plain that, by the Intervenors’ logic, such an

ad would promote that candidate’s name and inherently

remind voters of his business acumen and success; indeed,

these could be qualifications that his campaign emphasizes.

Second, they posit a consulting firm that is in the business

of ensuring compliance with the Sarbanes-Oxley law running

an ad mentioning that statute where Rep. Oxley is a candi-

date. /d. But again, under the Intervenors’ approach, such an

ad surely would remind voters of Rep. Oxley’s signature

legislative achievement, which his campaign and others likely

are emphasizing as a reason to reelect him.

Third, they posit “a candidate’s business enterprise, named

after him or her, sponsor|ing] a fall charity event every year

and want[ing] to publicize it during an election year.” /d.

But, again, that public reminder of the candidate’s business

success, coupled here with a charitable good work, could be

said to be highly influential to a prospective voter."

* Appellants’ amici posit a similar ad that they deem to be acceptable

under their equally vague proposed standard, namely, whether or not “[a]

communication is unlikely to have any appreciable effect on voters’

choices in an election.” Brief dmicus Curiae of Richard Briffault and

Richard L. Hasen in Support of Appellant and Intervenor-Appellants at 24

19

4. The Intervenors’ approach is not only self-contradictory

and incoherent, but also marks a notable and unexplained

reversal. In the case at bar, the Intervenors acerbically

characterize the district court’s principal reliance on the text

of the WRTL ads as a “‘see-no-evil’ approach” that “threatens

to open the floodgates to renewed evasion of BCRA’s regula-

tions.” /d. at 32. But in the FEC’s rulemaking to implement

§ 203, the Intervenors urged the agency to adopt the follow-

ing virtually content-only exemption from that prohibition:

The term “electioneering communication” does not

include any communication that: (x)(A) Meets all of the

following criteria: (i) the communication concerns only

a legislative or executive branch matter; (ii) the com-

munication’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 par-

ticular position on the legislative or executive branch

matter; and (ili) the communication refers to the candi-

date only by use of the term “Your Congressman,”

“Your Senator,” “Your Member of Congress” or a simi-

lar reference and does not include the name or likeness

of the candidate in any form, including as part of an

Internet address; and (iv) the communication contains no

reference to any political party. (B) The criteria in Para-

(emphasis deleted)(“Hasen/Briffault Br.”). See also id. at 27 (“it is quite

plausible the [WRTL] ads could affect voters’ choices”). These amici

describe a baseball card corporation advertising its product by using “the

name and likeness of a former baseball star who also happens to be the

incumbent Senator running for reelection.” /d. at 26. They say “it is

highly unlikely that voters would use an ad so far removed from anything

relevant to the candidate or his or her performance in assessing the

candidate.” /d at 25-26. But celebrity in non-political fields is a demon-

_ Strably potent aspect of many successful candidacies for example, Sen.

Jim Bunning (baseball), Rep. Heath Shuler (football), and, of course, Gov.

and President Ronald Reagan and Gov. Arnold Schwarzenegger (acting).

Accordingly, these amici offer no objective and administrable mode of

analysis cither.

20

graph (A) are not met if the communication includes any

reference to: (i) the candidate’s record or position on any

issue; (ii) the candidate’s character, qualifications or fit-

ness for office; or (iii) the candidate’s election or

candidacy.

Detailed Comments of BCRA Sponsors Senator John McCain,

Senator Russ Feingold, Representative Christopher Shays,

Representative Marty Meehan, Senator Olympia Snowe, and

Senator James Jeffords at 10 (Aug. 23, 2002), www.fec. gov/

pdf/nprm/electioneermg_comm/comments/us_cong_members.

pdf). As the Intervenors then explained, “[t]his formulation

allows 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,”

because it “assure/s] that the communication plainly and

unquestionably is ‘wholly unrelated’ to any election.” Id. at

11 (emphasis added). The Intervenors also urged the FEC to

“preserve the ‘bright line’ quality” of the electioneering

communication definition with respect to “entities other than

parties or candidates” because it must “give clear guidance,”

and “[a]n exemption that creates uncertainty about whether a

communication will be covered by the law undermines that

crucial aspect ofthe definition . . .” /d. at 6.”

All of the WRTL ads at issue here satisfy the Intervenors’

2002 proposed exemption, save for their utterances of Sen.

Feingold’s actual name.'” Nothing has changed since these

” Appellants’ current amicus curiae Common Cause also supported this

exemption because it “protect{s} against the possibility that sham

communications that are in fact campaign ads continue to escape [§ 203’s]

coverage.” See Letter from Donald *. Simon to Mai T. Dinh at 12 (Aug.

22, 2002), www.fec.gov/pdf/nprm/electioneering comm/comments/comm

on cause and democracy _2|.pdf. Now, however, Common Cause exco-

riates the district court’s similar analysis as a “magic features test” that

would “eviscerate” § 203. LWV Br. at 6-8 and n.2.

In their 2002 comments to the FEC, the Intervenors asserted that

“prohibit{ing] use of a candidate's name makes it less likely that the ex-

21

2002 comments to require or warrant a different analysis —

certainly not this Court’s decision in McConnell, which

essentially embraced the analysis that the Intervenors, as

intervenors in that litigation as well, urged the Court to adopt.

To be sure, while one’s support of a discretionary regulatory

exemption does not necessarily mean that one believes that

it is constitutionally mandated, as noted above the Inter-

venors contended in 2002 that the exemption they supported

‘““plainly and unquestionably’ is wholly unrelated to an

election”—so, surely, it must neither have any “reasonable

prospect .. . to be likely to influence the election,” Int. Br.

at 39, nor be “likely to have a material effect on voters’

choices.” /d. at 41. The Intervenors, who assured this Court

in McConnell that as-applied challenges to § 203 would be

justiciable, see Brief for Intervenor—Defendant Senator John

McCain, ef al. at 64, 74-75, McConnell, Nos. 02-1674, et al.,

and then vigorously argued the opposite in WRTL /, have

reversed field again in order to render the as-applied option

that this Court recognized in WRTL / effectively a null set.

III. There Is No Governmental Interest in Suppressing

Issue Advocacy Broadcast Messages

The Intervenors also contend that in McConnell the Court

determined that issue advocacy “is entitled to no greater pro-

emption will be used to accomplish an electoral objective.” /d. at 11.

Sureiy, that one circumstance has no legal salience. Since well before

BCRA, a “clearly identified candidate” has been defined in part to include

one who is referred to, without name or image, as “your Congressman” or

“the incumbent.” 2 U.S.C. § 431(18); 11 C.F.R. § 100.17. As Judge Leon

stated below, the record in McConnell, including testimony by the AFL-

CIO’s communications director, demonstrated that actually naming an

official was crucial to motivating constituents to contact him or her in re-

sponse to an ad. Wisconsin Right to Life, Inc. v. FEC, 466 F. Supp. 2d at

207 n.19. That evidence was uncontested in McConnell. Moreover, if, as

the Intervenors now say, the constitutionally significant context includes

the fact that listeners may be assumed to know that Sen. Feingold sup-

ported judicial filibusters, see Int. Br. at 23, then surely they can be

assumed to know the more elementary fact of his name.

22

tection under the First Amendment” than express advocacy,

so § 203 may be applied where it is “impossible to disentan-

gle” them. See Int. Br. at 42 n.28; see also id. at 19-20.

Again, however, that inverts the teaching of Buckley that in

such circumstances the First Amendment requires the censor

to desist. And, while the Court has recognized a compelling

governmental interest in regulating express advocacy and its

“functional equivalent,” it has never recognized any govern-

mental interest at all in prohibiting corporate or union funding

of other advocacy; and, the Government does not suggest any

such interest now.

Indeed, in McConnell 540 U.S. at 206 n. 88, the Court

stated that, “[a]s Justice Kennedy emphasizes in dissent, post,

at 326-328, we assume that -the interests that justify the

regulation of campaign speech might not apply to the regula-

tion of issue ads,” for “unusually important interests underlie

the regulation of corporations’ campaign-related speech,” and

“BCRA’s fidelity to these imperatives sets it apart from the

statute in /First National Bank of Boston v.] Bellotti |,435

U.S. 765 (1978)] .. . .” namely, a state criminal provision that

barred corporations from making contributions or expendi-

tures in connection with ballot measures other than those that

materially affected themselves. In striking down that prohi-

bition, the Be//oiti Court reasoned that “[t}he risk of corrup-

tion perceived in cases involving candidate elections . . .

simply is not present in a popular vote on a public issue,” id.

at 790, and corporate advocacy “affords the public access to

discussion, debate, and the dissemination of information and

ideas.” /d. at 783 (footnote omitted).

That kind of advocacy exercises the right to petition the

government, which is “one of the most precious of the liber-

ties safeguarded by the Bill of Rights, ... and. . . implied by

the very idea of a government, republican in form,” BE&K

Construction Co. v. NLRB, 536 U.S. 516, 524-25 (2002)

(interior quotation marks, citations and brackets omitted), and

23

is entitled to “a wide measure of ‘breathing space’ protec-

tion,” id. at 531, quoting New York Times Co. v. Sullivan, 376

U.S. at 279. “At the heart of the First Amendment’s protec-

tion” is speech on ““issues about which information is needed

or appropriate to enable the members of society to cope with

the exigencies of their period.” First National Bank of

Boston v. Bellotti, 435 U.S. at 776, quoting Thornhill v.

Alabama, 308 U.S. 88, 102 (1940). See also Consolidated

Edison Co. v. Public Service Comm., 447 U.S. 530 (1980)

(state cannot preclude corporation from including with cus-

tomer bills its own newsletter that discusses public policy

matters).

And, where_a speaker on non-electoral matters of public

concern is a labor union, a corporation or some other organ-

ized group, no lesser or different First Amendment protection

is at stake thar it would be for a different speaker. “[T]he

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 individ-

ual.” First National Bank of Boston v. Bellotti, 435 U.S. at

777.

It bears emphasis on this point that absent a meaningful as-

applied exception, § 203 proscribes a// union- and corporate-

financed broadcast references to ail Members of Congress

who are also candidates, even if they are literally unopposed

for reelection or, as is the case for so many of them due to

partisan gerrymandering, the “functional equivalent” of being

so. Notably, the application of § 203 against WRTL that is at

issue here concerns a primary election in which Sen. Feingold

was unopposed. Under no formulation of an election-influ-

encing standard could the “dangers” that inspired § 203 be

considered to arise under that circumstance, as even some of

the appellants’ amici acknowledge. See Hasen/Briffault Br.

at 25 and n.9. In Brown v. Socialist Workers ‘74 Campaign

Committee (Ohio), 459 U.S. 87, 95 (1982), the Court stated

24

that “becausd_minor party candidates are unlikely to win

elections, the government’s general interest in ‘deterring the

“buying” of elections’ is ‘reduced’ in the case of minor

parties,” quoting Buckley, 424 U.S. at 70; and, that fact,

coupled with evidence of past harassment, warranted under

the First Amendment an exemption for a minor party from the

State of Ohio’s campaign contribution and expenditure dis-

closure requirements. Brown, 459 U.S. at 420-25. By a

similar token, because a candidate who is unopposed in a

primary election is certain to win, the governmental interest

in regulating election-”influencing” speech is not just

“reduced,” but entirely absent.

The § 203 prohibition also applies to broadcast references

to the incumbent elected leaders of the Executive Branch, the

President and the Vice President, whenever either is a

candidate for reelection or the Vice President is a candidate

for the presidency, as was the case in every election from

1932 to 2004 (and in only 1952 was the incumbent President

or Vice President not one of the eventual major-party presi-

dential nominees). As both history and contemporary cir-

cumstances make clear, the official conduct of the President

and the Vice President is a matter of the most acute public

concern irrespective of their electoral ambitions and pros-

pects. Yet § 203 uniquely insulates them from broadcast

issue commentary.'' There is no governmental interest, let

'’ During the 2003-04 election cycle, the first to which BCRA applied,

it was a federal crime for union- or corporate-financed broadcast advertis-

ing to refer in any mannef to President Bush during substantial periods of

time and locations while he was an unopposed candidate in primaries and

caucuses for fhe Republican Party nomination: that prohibition continued

throughout the 50 states with respect to both President Bush and Vice

President Cheney during the 30-day period prior to the August 30 -

September 2, 2004, Republican National Convention, even though their

nominations were likewise uncontested; and, it then continued without

pause during the 60 days remaining before the November 2 general

election. Notably, in 2008 the two major-party conventions will be held

25

alone a compelling one, in barring genuine issue communica-

tions referring to the President, the Vice President or

Members of Congress during those periods. _

IV.The Appellants’ Arguments Concerning WRTL’s

Separate Segregated Fund Should Be Rejected

There is also no constitutional basis for compelling unions

and corporations to finance their genuine issue advocacy

through a separate segregated fund.'* The Government's

and the Intervenors’ arguments regarding the significance of

WRTL’s connected federal political committee should be

rejected for three principal reasons.

First, accepting their arguments would impose a substan-

tially disruptive burden on long-established and widespread

organizational structures developed in reliance upon both

FECA and the Internal Revenue Code. Appellants contend

that the WRTL ads are tainted in purpose and effect by the

distinct electoral activities of WRTL’s PAC. However, that

separate segregated fund is a distinct legal entity from its

just before the 60-day pre-November 4 Election Day “blackout” period

begins on September 4 — during August 25-28 (Democratic Party) and

September 1-4 (Republican Party). Although it appears that no incumbent

President or Vice President will then be a candidate, if this timing

becomes the norm then in future elections then the 2004 experience is sure

to be repeated.

'° Although the Court has rejected the characterization of the segregated-

fund requirement as a “complete ban” on corporate or union political

activity, see FEC v. Beaumont, 539 U.S. 146, 194 (2003), it is most cer-

tainly fair to characterize § 203°s proscription of union- and corporate-

paid independent speech as a “prohibition,” as this Court has done on both

occasions that it has considered it. See WRTL J, 546 US. at__, 1268.

Ct. at 1017; McConnell, 543 U.S. at 203. Section 203 itself was entitled

“Prohibition of Corporate and Labor Disbursements for Electioneering

Communications,” 116 Stat. 81, 91, and, as codified, 2 U.S.C. § 441b(a).

provides that unions and corporations are “prohibited” from making any

“contribution or expenditure.” including an “applicable electioneering

communication.” 2 U.S.C. § 441b(b),(2).

26

corporate sponsor, and the sponsor’s contrél over it does not

render the sponsor or its officers subject to the enforcement of

laws barring the sponsor from making political contributions

or expenditures. See Pipefitters Local Union No. 562 v.

United States, 407 U.S. 385, 401-32 (1972). FECA incorpo-

rates these principles. 2 U.S.C. § 441 b(b)(2)(C).

Similarly, while the Internal Revenue Code precludes a

§ 501(c)(3) charitable organization from engaging in any par-

tisan political activity, see 26 U.S. C. § 501(c)(3), it is well-

established that a charity does not violate that prohibition

simply because it is affiliated with a § 501(c)(4) entity that

sponsors and administratively supports a federal political

committee. See Internal Revenue Service (“IRS”), “Election

Year Issues” 365-69, 473-80 (2003). Indeed, the Court has

recognized the utility of the “dual structure” of § 501(c)(3)

and § 501(c)(4) arms to enable an organization to pursue

distinct objectives. See Regan v. Taxation With Representa-

tion of Washington, 461 U.S. 540, 544 (1983). For these

reasons, innumerable organizations maintain multi-affiliate

structures. But appellants’ “taint” argument would render

these various affiliation arrangements traps for the unwary.

Adoption of appellants’ position would unconstitutionally

burden WRTL and its PAC, for the PAC would no longer be

available to provide “a constitutionally sufficient opportunity

[for WRTL] to engage in express advocacy.” McConnell,

540 U.S. at 203-05.'° In McConnell, the Court invalidated

BCRA’s requirement that a political party forgo its First

Amendment right to undertake express-advocacy independent

expenditures if it (or an affiliated party committee) previously

made coordinated expenditures with a party’s nominee for

'? The Court’s comment in McConnell that in “doubtful cases” such a

fund may be used to pay for “genuine issue ads,~ 540 U.S. at 206, cannot

be construed as a command that such a fund be used to finance an ad

that merits an as-applied exception; if it were, there could be no such

exception.

27

federal office, because this forced choice placed an “uncon-

stitutional burden” on that right. /d. at 213-14. The invalid

choice there was between “a constitutional right and a statu-

tory benefit,” 540 U.S. at 28; here, the invalid de facto forced

choice is between two constitutional rights: a PAC’s right to

make independent expenditures and an affiliated § 501(c)

organization’s right to finance issue-oriented broadcast

speech.'* Section 203 cannot constitutionally force a speaker

to make that choice.

Second, requiring a non-electoral entity like a union or a

corporation to employ an electoral entity as the sponsor of its

non-electoral message violates the First Amendment “princi-

ple of autonomy to control one’s own speech.” Hurley v.

Irish-American Gay, Lesbian and Bisexual Group of Boston,

Inc., 515 U.S. 557, 574 (1995). See generally Buckley v.

American Constitutional Law Foundation, 525 U.S. 182, 197-

200 (1999); Riley v. National Federation of Blind of N.C.,

Inc., 487 U.S. 781, 797-98 (1988); Pacific Gas & Electric Co.

v. Public Utilities Commission, 475 U.S. 1, 11 (1986). For,

whenever a federal political committee makes a communica-

tion, it must both identify itself and either affirm or disclaim

“candidate” authorization of its speech. 2 U.S.C. § 441d(a).

This deprives the organization and its members of the “right

. . . to advocate their cause” by “what they believe to be the

'* Although it is unclear whether or not any of WRTL’s other com-

munications about Sen. Feingold were confined to WRTL’s members,

insofar as they were the appellants presumably would consider them to be

pertinent and discoverable “context.” Yet the First Amendment precludes

incursions by federa! campaign finance laws on a union's or other mem-

bership organiz2*e =<" © internal communications, see United States

v. Congress of l= « —« «* ganizations, 335 U.S. 106, 121 (1948), and

FECA explicitly provides that union and corporate internal communica-

tions “on any subject” are exempt from treatment as cither “contributions”

or “expenditures.” 2 U.S.C. § 441 b(b)(2)A). If the exercise of such pro-

tected internal speech and association effectively forfeits a group's ability

to undertake external issue speech, then that is also an unconstitutional

condition on the exercise of those nghts.

28

most effective means for so doing.” Meyer v. Grant, 486

U.S. 414, 424 (1988).

Moreover, under a longstanding IRS rule, if the separate

segregated fund of a § 501(c) organization “expends more

than an insubstantial amount . . . for activities that are not for

an exempt function [that is, election-influencing activity, see

26 U.S.C. § 527(e)(2)j, during a taxable year, [then] the fund

will not be treated as a segregated fund for such year,” and all

of its receipts will be taxed to its § 501(c) sponsor. 26 C.F.R.

§ 1.527-2(b)(1). Thus, compelling WRTL’s separate segre-

gated fund to pay for non-electoral advertising subjects it to a

substantial risk of loss of its tax exemption.

Third, as applied to “genuine” issue speech, the segregated-

fund requirement entails unduly complicated and burdensome

administrative and other requirements. In MCFL the Court

held that those burdens made it a “severely demanding task”

for a nonprofit ideological corporation to engage in express-

advocacy independent expenditures. 479 U.S. at 256. That

burden is at least as severe for organizations that wish to

broadcast speech that poses no greater threat of corruption or

its appearance than does an MCFL organization itself. And,

for unions and corporations that operate in a hierarchical,

affiliated structure, typically only the national affiliate spon-

sors and controls a federal PAC, because FECA treats all

affiliates of a national organization as comprising a single

entity for purposes of political committee sponsorship, fund-

raising and spending.'” See 2 U.S.C. § 441a(a)(5); 11 C.F.R.

'S So, for example, there are over 30,000 labor organizations in the

private sector alone, most of which are small organizations with modest

treasuries, see “Record-Keeping Under the Labor Management Reporting

and Disclosure Act (LMRDA): Do DOL Reporting Systems Benefit the

Rank and File?”, Joint Hearing Before the Subcommittee on Workforce

Protections and the Subcommittee on Employer-Employee Relations of

the House Committee on Education and the Workforce, 107th Cong., 2d

Sess. 115-16 (2002), but there are only 283 union-sponsored federal politi-

cal committees. www.fec.gov/press/press2006/200607 I 4paccount.htm].

29

§§ 110.3(aX(2)(1i) and (iii). Absent meaningful as-applied

recourse, a typical organization coping with an immediate

and unforeseen legislative problem would have to either

create its own PAC to fund “electioneering communications”

or try to persuade its national parent affiliate, perhaps on very

short notice, to spend its PAC money—which it raised for

contributions and express-advocacy spending—for that

affiliate’s non-electoral issue message. That consequence is

constitutionally unacceptable.

V. The Court Should Not Foreclose the Possibility

That Labor Organizations as a Class of Speaker

Are Exempt From Section 203

The Court has long recognized and afforded protection to

the vital role of labor organizations in the non-electoral public

arena as advocates for legislation and public policies in the

interests of both their members and all workers. See

generally Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 516

(1991); Ellis v. Bhd. of Railway and Airline Clerks, 466 U.S.

435, 446 (1984): Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66

(1978); Abood v. Detroit Bd. of Education, 431 U.S. 209,

227-32 (1977); Pipefitters Local Union No. 562 v. United

States, supra; Machinists v. Street, 367 U.S. 740, 767 (1961);

id. at 798, 800-03, 812-816 (Frankfurter, J., dissenting);

United States vy. United Auto Workers, 352 U.S. 567, 578-86

(1957); United States v. Congress of Industrial

Organizations, 335 U.S. at 115-21; id. at 143-46 (Rutledge,

J., concurring). The case at bar provides no occasion to

foreclose the question as to whether § 203 itself is

constitutional with respect to labor organizations as a distinct

class of speaker.

With the sole exception of MCFL corporations, McConnell

did not distinguish among the various entities regulated by

§ 203 in analyzing the record of their broadcast advertising

practices. And, in upholding the prohibition, the Court recited

only its “prior decisions regarding campaign finance regu-

30

lation, which represent respect for the legislative judgment that

the special characteristics of the corporate structure require

particularly careful regulation.” See 540 U.S. at 205 (emphasis

added) (interior quotation marks and citations omitted). See

also Hasen/Briffault Br. at 9 n.5. The Court did not explain

why § 203 is constitutional as applied to unions.

In Austin v. Michigan Chamber of Commerce, 494 U.S.

652, 665-66 (1990), the Court rejected the claim by a busi-

ness trade association that the State of Michigan’s proscrip-

tion of corporate-financed electoral independent expenditures

was fatally under-inclusive because it did not also apply to

unincorporated labor organizations, explaining that unions

have “crucial differences” from corporations: although unions

too “may be able to amass large treasuries, they do so without

the significant state-conferred advantages of the corporate

structure,” and “the funds available for a union’s political

activities more accurately reflect members’ support for the

organization’s political views than does a corporation’s

general treasury.” In deciding the case at bar, the Court

should not foreclose the ability of unions, or other entities

regulated by § 203 whose claims are not now before the

Court either, to make out a broader as-applied challenge on

some future occasion. -

CONCLUSION

For the reasons stated above, the Court should affirm the

judgment below.

Respectfully submitted,

JONATHAN P. HIATT

LAURENCE E. GOLD *

AFL-CIO

815 16th Street, N.W.

Washington, DC 20006

* Counsel of Record (202) 637-5130