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

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a 5) 6) FILED

Nos. 06-969 and 06-970 cop > 5 999°

} OFFICE OF THE CLERK

au The SUPREME COURT, U.S. _

Supreme Court of the mites States

.

~ FEDERAL ELECTION COMMISSION,

Appellant,

Vs.

‘ WISCONSIN RIGHT TO LIFE. INC., ET AL.,

Appellees.

+

SENATOR JOHN McCAIN, ET AL.,

Intervenor-Appellants,

vs.

WISCONSIN RIGHT TO LIFE, INC., ET AL.,

Appellees.

°

On Appeal From The United States District Court

For The District Of Columbia

¢

BRIEF AMICI CURIAE OF RICHARD BRIFFAULT

AND RICHARD L. HASEN IN SUPPORT OF

APPELLANT AND INTERVENOR-APPELLANTS

.

RICHARD BRIFFAULT RICHARD L. HASEN

435 West 116th Street *Counsel of Record

New York, NY 10027 919 Albany Street

(212) 854-2638 Los Angeles, CA 99015

FAX: (212) 854-7946 (213) 736-1466

FAX: (213) 380-3769

DAVID S. ET. :NGER rick. hasen@lls.edu

HorvVITZ & LEVY LLP

15760 Ventura Boulevard, MARTIN S. LEDERMAN

18th Floor 600 New Jersey Avenue, NW

Encino, CA 91436 Washington, D.C. 20001

(818) 995-0800 (202) 662-9937

FAX: (818) 995-3157

Attorneys for Amici Curiae

COOCKLE | AW BRTEF PRINTING CO (S00) 225-8964

~ ‘'—S wrarwte =}. 7 yds Deed «past? s

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TABLE OF CONTENTS

Page

RD CO BA) IEE BD cciscnscvscsncnsnecencvescsanscoesssovesces iii

INTEREST OF THE AMICI CURIAE .............:ccccceeeeees 1

INTRODUCTION AND SUMMARY OF ARGUMENT... 2

IEEE teisrnscnrnctnineciieutinmaineieniniiiaaamemee 5

I. IN ITS CAMPAIGN FINANCE CASES

THE COURT HAS CRAFTED AS-APPLIED

EXEMPTIONS ONLY FOR ACTIVITY NOT

IMPLICATING COMPELLING GOVERN-

MENTAL INTERESTS AND WHEN REGU-

LATIONS IMPOSE UNIQUELY SERIOUS

BURDENS ON FIRST AMENDMENT

Il. THE COURT SHOULD CRAFT ANY AS-

APPLIED EXEMPTION WITH REGARD TO

THE COMPELLING INTERESTS CON-

GRESS SOUGHT TO PROTECT IN BCRA

PS GD pernnccnsnenvenecssesensusnvnnceuvinecennpenvenante 10

Ill. THE DISTRICT COURT'S AS-APPLIED TEST

IS NOT TAILORED TO THE COMPELLING

INTERESTS CONGRESS SOUGHT TO PRO-

TECT IN BCRA AND WOULD LEAD TO

THE RE-EMERGENCE OF “ISSUE ADS”

PAID FOR WITH CORPORATE TREASURY

FUNDS THAT HAVE AN IMPACT ON FED-

RRs CERI 0 IO eB cevsccceseesccsevecsssnnnnsceneceessssoonees 21

TABLE OF CONTENTS - Continued

Page

IV. THE COURT SHOULD HOLD THAT COR-

PORATIONS SEEKING AN AS-APPLIED

EXEMPTION FROM THE PAC REQUIRE-

MENT FOR “ELECTIONEERING COMMU-

_NICATIONS” MUST DEMONSTRATE THAT

A PARTICULAR BROADCAST ADVERTISE-

MENT IS UNLIKELY TO HAVE ANY AP-

PRECIABLE -EFFECT ON _ VOTERS’

CHOICES IN A FEDERAL ELECTION ............ 24

CIR Ae cecencevesecensesesssssceemnasnssensnesunnesnsvessssnsnnesesnee 28

TABLE OF AUTHORITIES

: Page

CASES

Austin v. Mich. Chamber of Commerce, 494 U.S.

Sa UIT csitcininbesbessshicueasteceiiesriigtiidiibiniiniipdnauieenaiiintbenibibasdaidiiiied 5, 8,9

Brown v. Socialist Workers ’74 Campaign Comm.,

ee ee Se Seri ctdinctncicsienibintantinnnacinninatnimcaniien passim

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

Christian Civic League of Maine, Inc. v FEC, 433

PT Ge GES Se Pincccccccnicnnnciccatmnsannitncenntontiasss 25

FEC v. Beaumont, 539 U.S. 146 (20038)......................2. 9,10

FEC v. Colo. Republican Fed. Campaign Comm., 533

ee Ce ee cnineciteitisiiinctninciptiicinstineiiniabidinnitasniaaeiiisininsiton %

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) ....passim

FEC v. Nat'l Right to Work Comm., 459 U.S. 197

EREREREEERSE REET Sone wr See se ee: ae On To aI 9

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765

STTTar et iichieentcatannstnieitih dle dabisipanctahiaianiatatanaaiieaeaitaiae 14

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

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)..... 1, 6

Pipefitters Local Union No. 562 v. United States,

a arias iscitaiacintacilitittaciteitdnainensinmsiniiesidubiiniaais 11

Randall v. Sorrell, 126 S.Ct. 2479 (2006).............cccccceseeeeees 8

United States v. CIO, 335 U.S. 106 (1948) 0.0.0.0... eee ees 9

United States v. International Union of United

Automobile Workers (UAW), 352 U.S. 567 (1957)......... ll

1V

TABLE OF AUTHORITIES -— Continued

Page

STATUTES

2 U.S.C.

Alb ccencicinatnninsitinedicnsiitennensesnnspibenissemnamnataccnissiieitin 12, 23

I ascceninscientiitiaernsinannisnincnniabiviianiinnnenniewen 12

BE neeticcrnsepninineniettniniadenmnintednninemimiiienpnieematetin 1

Bipartisan Campaign Reform Act of 2002 (BCRA)

STINE .citthisdngtuidecnieseebansiiitaanstnainieiiniiiasmsemmennsibiianiintediitiiiaien 12, 23

i I srsenccintnnnndnnnsencinetitsitdininainitiopenntapmannesieneieitiaiaies passim

EPA anecsonideeemminpcnnnnintiningiendtinmpuaieennieneneissemienenniadeniads 3, 16

Labor Management Relations (Taft-Hartley) Act of

1947, ch. 120, § 304, 61 Stat. 159-160 .0... eee eeeeeeee 11

Tillman Act of 1907, Pub. L. 59-36, 34 Stat. 864.............. 10

Court RULES

ES Ge TOT ccccnisctennsnecectccnninennsinisnsintccneninnes 1

MISCELLANEOUS

Richard Briffault, Jsswe Advocacy: Redrawing the

Elections/Politics Line, 77 Tex. L. Rev. 1751

Richard L. Hasen, Buckley is Dead, Long Live

Buckley: The New Campaign Finance Incoher-

ence of McConnell v. Federal Election Commis-

A Te Gee Be Te Ge GD ctiettrccnccntntennesecnnscncsecsess 9

Daniel Hays Lowenstein & Richard L. Hasen,

Election Law -— Cases and Materials (3d ed. 2004)......... 1

1

INTEREST OF THE AMICI CURIAE

The individual amici are law professors who have

devoted much of their careers to the study of election law,

’ especially campaign finance law. Richard Briffault, the

Joseph P. Chamberlain Professor of Legislation at Colum-

bia Law School, has written 17 articles on campaign

finance law, some of which the Court has cited in its

campaign finance cases. See, e.g., FEC v. Colo. Republican

Fed. Campaign Comm., 533 U.S. 431, 462 (2001); Nixon v.

Shrink Mo. Gov’t PAC, 528 U.S. 377, 406 (2000) (Kennedy,

J., dissenting). Richard L. Hasen, the William H. Hannon

Distinguished Professor of Law at Loyola Law School, has

writter | 3 articles (or parts of books) on campaign finance

law, is the co-author of an election law casebook, Election

Law - Cases and Materials (3d ed. 2004) (with Professor

Daniel Hays Lowenstein), and the co-editor of the peer-

reviewed quarterly publication, Election Law Journal.

Amici’s affiliations are listed for identification purposes

only.

With the consent of the parties, whose letters of

consent have been filed with the Clerk of the Court, amici

respectfully submit this brief in support of the Appellant

Federal Election Commission and the congressional

Intervenor-Appellants.' The brief suggests a test for as-

applied challenges to-section 203 of the Bipartisan Cam-

paign Reform Act (BCRA), 2 U.S.C. § 441b(b)(2), that both

protects First Amendment rights of speech and association

and preserves the integrity of the election process through

‘ Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored this brief in whole or in part and that no

person or entity other than amici and their counsel contributed

monetarily to the preparation or submission of this brief.

2

reasonable limitations on corporate spending affecting

federal elections.

¢

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves yet another attack on the 60-year-

old requirement that corporations use separate segregated

funds (or PACs), rather than treasury funds, to spend

money in connection with federal elections. The Court has

repeatedly addressed the PAC requirement, and has

sustained its constitutionality, most recently three Terms

ago in McConnell v. FEC, 540 U.S. 93, 203-11 (2003). The

Court has done so not because election-related speech is

entitled to less constitutional protection than other forms

of political speech, but because, in the context of the

election of public officials, legislatures and the Court have

repeatedly recognized compelling justifications for regula-

tions that might not be present, or as compelling, in other

settings.

At the same time, the Court has recognized that the

Constitution sometimes requires the creation of as-applied

exemptions from otherwise permissible campaign finance

regulations. As-applied exemptions are appropriate, the

Court has explained, when the burden on speech in a

particular application significantly outweighs any effect

the regulation may have in promoting electoral integrity

and other compelling legislative objectives — especially

where a particular application of the law does not raise

any of the concerns justifying regulation.

Thus, for example, in Buckley v. Valeo, 424 U.S. 1

(1976), and Brown v. Socialist Workers ’74 Campaign

3

Comm., 459 U.S. 87 (1982), the Court created and applied

an exemption from general — and constitutionally sound —

campaign disclosure requirements for minor political

parties that can demonstrate that disclosure of contribu-

tors’ names would have an unusually severe chilling effect

on the parties’ and contributors’ First Amendment activi-

ties. To similar effect, in FEC v. Mass. Citizens for Life,

479 U.S. 238, 260-61 (1986) (MCFL), the Court held that

the First Amendment requires an exemption for certain

nonprofit corporations from a corporate PAC requirement

similar to that at issue here, because applying the re-

quirement to such nonprofit corporations would not

further the government interests underlying the require-

ment.

The Court should adopt a similar approach to as-

applied exemptions in this case. The regulation in ques-

tion here is a 2002 enactment, section 203 of the Biparti-

san Campaign Reform Act of 2002, which was aimed at

ending widespread evasions of the corporate PAC re-

quirement. This case presents the question whether and

under what circumstances the Constitution requires

another exemption to the PAC requirement for corpora-

tions, beyond the exemption recognized in MCFL and in

BCRA itself in section 204. We respectfully submit that

any as-applied exemption ought to build on the principles

for identifying such exemptions that the Court developed

in Buckley, Brown, and MCFL.

The district court below failed to follow the Court’s

guidance in these cases. It did not even attempt to tailor

its proposed as-applied exemption to those advertisements

that are unlikely to implicate the compelling government

interests underlying section 203. Congress found, and the

Court has agreed, that broadcast ads that name federal

4

candidates in the immediate pre-election period almost

invariably have an impact on voters’ choices in the elec-

tion. Yet the district court would exempt many of those ads

from regulation. If upheld by the Court, the district court’s

test would thwart Congress’s objectives and return us to

the days immediately preceding BCRA, when corporations

easily evaded the PAC requirement.

We believe that a more appropriate test would exempt

only those communications not implicating the govern-

mental interests underlying the corporate PAC require-

ment. We propose that a corporation should be entitled to

an as-applied exemption from the PAC requirement for

electioneering communications only when it proves that an

identifiable type of communication is unlikely to have any

appreciable effect on voters’ choices in the election. Follow-

ing the approach Congress took in BCRA and the Court’s

analysis in McConnell, whether the corporation is entitled

to an as-applied exemption for an ad must be based on a

consideration of the context as well as the content of a

broadcast advertisement.

The Court’s task in setting the balance between the

proper scope of election regulation of corporations and the

protection of corporate speech is a difficult one. Both

Congress and the Court struggled with it, and BCRA and

McConnell have struck a workable and proper balance.

Any as-applied exemptions should not subvert that bal-

ance.

5

ARGUMENT

I.

IN ITS CAMPAIGN FINANCE CASES THE COURT

HAS CRAFTED AS-APPLIED EXEMPTIONS ONLY

FOR ACTIVITY NOT IMPLICATING COMPELLING

GOVERNMENTAL INTERESTS AND WHEN REGU-

LATIONS IMPOSE UNIQUELY SERIOUS BURDENS

ON FIRST AMENDMENT RIGHTS

The Court has repeatedly sustained regulations of

campaign finance activity where such regulations are

supported by compelling governmental interests specific to

the election setting. See, e.g., Buckley v. Valeo, 424 U.S. 1

(1976) (upholding disclosure requirements, campaign

contribution limits, and other provisions of Federal Elec-

tion Campaign Act); Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990) (Austin) (upholding requirement that

corporations engage in election-related advocacy through

separate segregated funds); McConnell v. FEC, 540 U.S.

93 (2003) (upholding “soft money” and “electioneering

communications” provisions of BCRA). The Court has done

so not because election-related speech is entitled to less

constitutional protection than other forms of political speech.

To the contrary, speech and associational activity that

supports or opposes candidates is entitled to the greatest

constitutional protection. The election of public officials,

however, provides compelling justifications for regulation

that are not necessarily present in other settings.

For example, the Court has found that maintaining an

informed electorate justifies laws requiring disclosure of

information concerning contributions to and expenditures

by candidates, political parties, and political committees

that support or oppose candidates. Buckley, 424 U.S. at 66-

67. So, too, the Court has repeatedly held that preventing

6

—_

the corruption or the appearance of corruption of elected

officials justifies contribution limitations. E.g., id. at 29; .

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).

Again, this is not because large contributions for political

activities are not constitutionally protected, but because

they raise unique dangers to the integrity of elections.

In upholding reasonable campaign finance regula-

tions, however, the Court has also indicated that the

Constitution sometimes requires the creation of as-applied

exemptions from these regulations. The Court-has carved

out discrete as-applied exemptions either when substan-

tial evidence demonstrates that a uniquely serious burden

on First Amendment activities significantly outweighs any

effect the regulation may have in promoting electoral

integrity in a particular set of cases, or when the conduct

of particular actors does not raise any of the concerns

justifying regulation.

Thus, in Buckley and in Brown v. Socialist Workers ’74

Campaign Comm., 459 U.S. 87 (1982), the Court created

and applied an exemption from general — and constitu-

tionally sound -— campaign disclosure requirements:

disclosure cannot be required when a minor political party

shows its contributors, if identified, will be subject to

“threats, harassment, or reprisals from either Government

officials or private parties.” Buckley, 424 U.S. at 74;

Brown, 459 U.S. at 93. In such a case, not only is there a

unique First Amendment harm to the exempted parties; in

addition, the required disclosure would do little to advance

the voter information and anti-corruption goals that such

disclosure ordinarily serves. See Buckley, 424 U.S. at 70

(“the governmental interest in disclosure is diminished

when the contribution in question is made to a minor party

with little chance of winning an election”).’ When the limited

regulatory benefit of applying disclosure to minor party

candidates is combined with the demonstration that a

particular minor party and its members have been subject to

harassment, the First Amendment requires an as-applied

exemption to the disclosure requirement.

The Court has used a similar mode of analysis in ~

defining an exemption to requirements (such as that at

issue here, in BCRA section 203) that corporations spend

money on election-related activities only through “separate

segregated funds,” or PACs: the exemption is closely

tailored to the absence in certain cases of the state inter-

ests justifying the regulation.

The Court has recognized that such PAC requirements

are generally constitutional because they serve two com-

pelling state interests.’ First, such requirements eliminate

* The Court in Buckley explained that “[a]s minor parties usually

represent definite and publicized viewpoints, there may be less need to

inform the voters of the interests that specific candidates represent.”

424 U.S. at 70. Moreover, the concern that large donors may wield

undue influence over officeholders is “reduced where contributions to a

minor party or an independent candidate are concerned, for it is less

likely that the candidate will be victorious.” Jd.; see also Brown, 459

U.S. at 96 n.11 (“In the case of minor parties, . . . their limited financial

resources serve as a built-in expenditure ceiling which minimizes the

likelihood that they will expend substantial amounts of money to

finance improper campaign activities.... We cannot agree ... that

minor parties are as likely as major parties to make significant

expenditures in funding dirty tricks or other improper campaign

activities.... Moreover, the expenditure by minor parties of even a

substantial portion of their limited funds on illegal activities would be

unlikely to have a substantial impact.”).

* The general constitutionality of a PAC requirement for corporate

election-related spending was not litigated below and thus is not at

(Continued on following page)

8

a type of “distortion caused by corporate spending” in

elections. Austin, 494 U.S. at 660. The distortion is the

result of “state-created advantages” that permit corpora-

tions “to use ‘resources amassed in the economic market-

place’ to obtain ‘an unfair advantage in the political

marketplace.’” Id. at 659 (quoting MCFL, 479 U.S. at

257). “As the Court expl*2ed in MCFL, the political

advantage of corporations is unfair because ‘[t]he re-

sources in the treasury of a business corporation ... are

not an indication of popular support for the corporation’s

political ideas. They reflect instead the economically

motivated decisions of investors and customers. The

availability of these resources may make a corporation a

formidable political presence, even though the power of

the corporation may be no reflection of the power of its

ideas,’” Id.; see also McConnell, 540 U.S. at 205 (“We have

repeatedly sustained legislation aimed at ‘the corrosive

and distorting effects of immense aggregations of wealth

that are accumulated with the help of the corporate form

and that have little or no correlation to the public’s sup-

port for the corporation’s political ideas.’” (quoting Austin,

issue here. See Randall v. Sorrell, 126 S.Ct. 2479, 2500-01 (2006) (Alito,

J., concurring) (refusing to reconsider campaign finance precedent in

Buckley, 424 U.S. 1, because issue was not properly before the Court).

The only question in this case is whether Wisconsin Right to Life, Inc.

(WRTL) is entitled to an as-applied exemption from the requirement for

three advertisements it sought to broadcast with general treasury

funds near the 2004 clections.

* “State law grants corporations special advantages — such as

limited liability, perpetual life, and favorable treatment of the accumu-

lation and distribution of assets — that enhance their ability to attract

capital and to deploy their resources in ways that maximize the return

on their shareholders’ investments.” MCFL, 479 U.S. et 258-59

9

494 U.S. at 660)); MCFL, 479 U.S. at 257-59; cf. FEC v.

Nat'l Right to Work Comm., 459 U.S. 197, 209-10 (1982).

Second, the PAC requirement protects dissenting

shareholders of corporations who oppose the use of their

money to affect political campaigns. See McConnell, 540

U.S. at 204 (quoting FEC v. Beaumont, 539 U.S. 146, 163

(2003)); Austin, 494 U.S. at 673-75 (Brennan, J., concur-

ring); see also id. at 665-66 (majority opinion); MCFL, 479

U.S. at 260; cf. FEC v. Beaumont, 539 U.S. at 154-55."

The Court in MCFL held that the First Amendment

requires an exemption from the longstanding PAC re-

quirement for a certain category of nonprofit corporations

whose electoral expenditures do not implicate these two

state interests — namely, those that (1) rely solely on

donations from ideological supporters rather than from

commercial activities; (2) have no shareholders; and (3) do

not take money from business corporations. MCFL, 479

* These two rationales have been the dual justifications for

Congress's restrictions on corporate election activity going all the way

back to the Tillman Act of 1907. See United States v. CIO, 335 U.S. 106,

113 (1948). Since its inception in 1947, the federal PAC requirement

has also applied to labor unions. As the Court recognized in Austin,

there are “crucia] differences between unions and corporations,” 494

U.S. at 666, such that the government interests that justify the PAC

requirements as to corporations do not necessarily apply in the same

manner to unions, see id. at 665-66 (elaborating those differences). In

McConnell, the Court held that the PAC requirement was constitutional

as applied to unions, albeit without providing any rationale for treating

corporations and unions alike. See Richard L. Hasen, Buckley is Dead,

Long Live Buckley. The New Campaign Finance Incoherence of McCon-

nell v. Federal Election Commission, 153 U. Pa L. REV. 31, 56-57

(2004). Because of the additional constitutional questions that might

arise with respect to application of the PAC requirement to unions, the

discussion in this brief is limited solely to election-related spending by

corporations.

10

U.S. at 259-65; see also McConnell, 540 U.S. at 210-11

(reiterating criteria in greater detail). In crafting these

criteria, the Court ensured that the exemption would be

carefully tailored in accord with the underlying justifica-

tions for the PAC requirement. Requiring such “MCFL

corporations” to use PACs for political expenditures would

burden their First Amendment activities without advanc-

ing the state interests that support the general regulation

as applied to other corporations. With respect to such a

corporation, “the concerns underlying the regulation of

corporate political activity are simply absent... . It is not

the case ... that [the corporation] merely poses less of a

threat of the danger that has prompted regulation. Rather,

it does not pose such a threat at all.” MCFL, 479 U.S. at

263.

The Court’s treatment of as applied exceptions in such

cases should guide its analysis here, as well, where it is

faced with a virtually indistinguishable corporate PAC

requirement.

Il.

THE COURT SHOULD CRAFT ANY AS-APPLIED

EXEMPTION WITH REGARD TO THE COMPEL-

LING INTERESTS CONGRESS SOUGHT TO PRO-

TECT IN BCRA SECTION 203

Section 203 of BCRA is the latest amendment to the

very well-established, decades-old regulation on corporate

expenditures that the Court has reviewed in numerous

cases.. Congress has regulated corporate influence on

federal elections for 100 years, since the Tillman Act

of 1907, Pub. L. 59-36, 34 Stat. 864. See Beaumont, 539

U.S. at 152-53. Since 1907, “there has been continual

11

congressional attention to corporate political activity.” Jd.

at 153. And for fully 60 years, since the Labor Manage-

ment Relations (Taft-Hartley) Act of 1947, ch. 120, § 304,

61 Stat. 159-160, Congress has required that corporate

expenditures in connection with federal elections must

come from funds raised for that purpose, rather than from

corporate treasury funds derived from shareholders. See

generally Pipefitters Local Union No. 562 v. United States,

407 U.S. 385 (1972) (construing the 1947 and 1972 ver-

sions of the PAC requirement); see also id. at 402-14

(canvassing the history of the regulation); United States v.

International Union of United Automobile Workers (UAW),

352 U.S. 567, 570-87 (1957); MCFL, 479 U.S. at 246-48.

In 1986, the Court construed the PAC requirement to

apply only to expenditures for express advocacy (i.e., ads

specifically stating that viewers or listeners should vote

for or against a particular candidate), so as to avoid a

concern that the coverage of the law was too imprecise.

MCFL, 479 U.S. at 248-49 (referring to Buckley's vague-

ness concerns in an analogous context); see Buckley, 424

U.S. at 40-44. Within ten years, corporations had begun to

exploit this limitation by spending significant sums of

treasury funds for so-called “issue ads,” that is, ads not

expressly advocating a vote for or against a candidate, but

instead criticizing or supporting a candidate’s position on

an issue and telling listeners to call the candidate about

the issue. McConnell, 540 U.S. at 127-28 & nn.20-21; see

also Richard Briffault, Issue Advocacy: Redrawing the

Elections/Politics Line, 77 Texas L. Rev. 1751, 1755-62

(1999) (setting forth ease by which corporations and others

evaded FECA regulation).

12

Congress's response to this widespread evasion of the

restrictions on corporate campaign spending was section

203 of BCRA. It applies the PAC requirement to “election-

eering communications.” Doing so eliminates the vague-

ness concerns that resulted in the Court’s narrowing

construction in MCFL, and as a practical matter puts

corporations in much the same position they were in for

several decades after Congress enacted its initial limita-

tion on corporate expenditures in 1947. Under section 203

— and the definition of “electioneering communications”

found in BCRA section 201 - the corporate PAC require-

ment now extends to expenditures for broadcast, cable, or

satellite communications that refer to a clearly identified

candidate for federal office, that are aired within 60 days

before a general election or 30 days before a primary

election, and that are aired to the candidate’s constituency.

2 U.S.C. § 434(f)(3). Congress determined that by reason of

their content, medium, timing, and targeting, such ads are

“functionally identical in important respects” to express

campaign advocacy even though they eschew the “magic

words” of express advocacy, such as “Elect John Smith.”

McConnell, 540 U.S. at 126. In McConnell, the Court

agreed, upholding the extension of the longstanding

corporate PAC requirement to electioneering communica-

tions as defined by Congress. Jd. at 203-09.

In so doing, the Court gave great weight to political

realities and focused on the electoral significance of the

ads’ context — not merely to their words:

[T]he unmistakable lesson from the record on

this litigation, as all three judges in the District

Court agreed, is that Buckley's magic-words re-

quirement is functionally meaningless ... Not

13

only can advertisers easily evade the line by es-

chewing the use of magic words, but they would

seldom choose to use such words even if permit-

ted. And although the resulting advertisements

do not urge the viewer to vote for or against a

candidate in so many words, they are no less

clearly intended to influence the clection. Buck-

ley’s express advocacy line, in short, has not

aided the legislative effort to combat real or ap-

parent corruption, and Congress enacted BCRA

to correct the flaws it found in the existing sys-

tem.

Id. at 193-94 (emphasis added); see also id. at 206.

The Court in McConnell concluded that BCRA’s

electioneering communication definition was not vague, id.

at 194, and that the corporate PAC requirement for such

electioneering communications is neither unconstitution-

ally underinclusive, id. at 207-08, nor unconstitutionally

overbroad, id. at 205-07. The Court noted that the vast

majority of ads that fall within the statutory definition are

“clearly” election-related. Id. at 206. Moreover, the Court

noted that corporations would not be unduly burdened by

the regulation because they could continue to pay for

political ads either by avoiding any specific reference to

federal candidates, or “in doubtful cases by paying for the

ad from a segregated fund,” that is, a PAC. Jd.

We respectfully submit that in determining whether

any as-applied exemption to this rule is constitutionally

required, the Court ought to build on the principles that it

developed in Buckley, Brown, and MCFL.

In crafting as-applied exemptions in those cases, the

Court identified discrete circumstances in which the

constitutional balance between the burden on First

14

Amendment rights and the advancement of the state’s

interests was significantly different from the usual run of

cases in which the regulation had already been deemed

constitutional. In particular, the Court considered whether

there were situations in which (i) the burden on First

Amendment rights was greater than in the standard cases

covered by the regulation; and (ii) the usual justifications .

for imposing that burden did not apply, i.e., where the

state interests are not implicated.

In this case — unlike in Brown, 459 U.S. 87; see supra

pp. 6-7 — there are no circumstances in which BCRA’s PAC

requirement imposes greater burdens on First Amendment

rights than the burdens imposed in the vast majority of

concededly constitutional applications. In particular,

application of section 203 to “electioneering communica-

tions” that are purportedly related to legislative initiatives

does not impinge on corporations’ protected speech any

more than does the application of the PAC requirement to

express advocacy itself. As the Court explained in McCon-

nell, “the speech involved in so-called issue advocacy” is

not “any more core political speech than are words of

express advocacy.” 540 U.S. at 205.°

* “After all,” the Court explained, “‘the constitutional guarantee

has its fullest and most urgent application precisely to the conduct of

campaigns for political office,’” and “ ‘{[aJdvocacy of the election or defeat

of candidates for federal office is no less entitled to protection under the

First Amendment than the discussion of political policy generally or

advocacy of the passage or defeat of legislation.’” McConnell, 540 U.S.

at 205 (citations omitted). On this particular point, the entire Court in

McConnell appeared to be in agreement. See id. at 328 (Kennedy, J.,

concurring in the judgment in part and dissenting in part).

The Court’s decision in First Nat. Bank of Boston v. Bellotti, 435

U.S. 765 (1978), is not to the contrary. In Bellotti, the state had

foreclosed all means for corporations to engage in communications on

(Continued on following page)

15

Because application of section 203 to speech that is

arguably more focused on legislative initiatives than on

electoral choices does not raise greater First Amendment

concerns than the core applications of the law that the

Court has already approved, if there are to be any as-

applied exemptions from that statute, it would only be

under circumstances in which “the interests that justify

the regulation of campaign speech might not apply.” Jd. at

206 n.88; see also MCFL, 479 U.S. at 263 (“the concerns

underlying the regulation of corporate political activity are

simply absent with regard to MCFL”).

As noted above, supra pp. 7-9, Congress and the Court

have identified at least two such interests — prevention of

the “distortion caused by corporate spending” when a

corporation uses funds secured by virtue of “state-created

advantages,” and protection of the prerogatives of dissent-

ing shareholders — that are sufficiently compelling to

justify the basic corporate PAC requirement, even as

applied to core political speech. :

The Court and Congress have identified one category

of cases in which these two compelling governmental

interests are simply not implicated - namely, application

of the PAC requirement to so-called “MCFL-exempt”

nonprofit corporations. See McConnell, 540 U.S. at 210-11

(“We presume that the legislators who drafted” BCRA

certain referendum proposals. Under BCRA section 203, by contrast,

corporations may engage in electioneering communications in a number

of ways, including through a PAC that they may control. See MCFL,

479 U.S. at 259 n.12 (“The [corporate PAC requirement] imposed as a

result of this concern is of course distinguishable from the complete

foreclosure of any opportunity for political speech that we invaliaated in

the state referendum context in [Bellotti).”).

16

section 2C4, 2 U.S.C. § 441b(c)(6)(A), extending PAC

requirement to certain nonprofit corporations “were fully

aware that the provision could not validly apply to MCFL-

type entities.”).

The Court has explained in MCFL and McConnell

why the two state interests that ordinarily justify the

corporate PAC requirement are inapposite to such non-

profit corporations. First, such groups do not use aggrega-

tions of wealth accumulated by virtue of the corporate

form to espouse political advocacy with no correlation to

the public’s support for such ideas. Second, the share-

holder-protection interest is not implicated, because

“(iJndividuals who contribute to [such a nonprofit corpora-

tion] are fully aware of its political purposes, and in fact

contribute precisely because they support those purposes.”

MCFL, 479 U.S. at 260-61; see generally McConnell, 540

U.S. at 210-11.

Wisconsin Right To Life, Inc. (WRTL) presumably

satisfies two of the three criteria for an MCFL exemption:

It “‘was formed for the express purpose of promoting

political ideas, and cannot engage in business activities,’”

and “‘it has no shareholders or other persons affiliated so

as to have a claim on its assets or earnings.’” McConnell,

540 U.S. at 210 (quoting MCFL, 479 U.S. at 264). There-

fore, WRTL’s use of its treasury funds, like that of most

nonprofit advocacy corporations, would not implicate the

state interests underlying BCRA section 203. WRTL would

be free to use its treasury funds for both issue-oriented

and direct electoral expression, but for the fact that it does

not satisfy the final MCFL criterion: WRTL does not abide

by a policy of declining to accept contributions from for-

profit corporations. See Defendant Federal Election Com-

mission’s Supplemental Brief in Support of Motion for

17

Summary Judgment, Wis. Right to Life, Inc. v. FEC, No.

1:04cv01260, at 12 (D.D.C. Sept. 11, 2006), available at:

http://electionlawblog.org/archives/fec-wrtl-supp%20msj.pdf

(WRTL took contributions of up to $300,000 (including

individual contributions of $50,000 and $130,000) from for-

profit corporations).

This third requirement “‘prevents [nonprofit] corpora-

tions from serving as conduits for the type of [otherwise

prohibited] direct [corporate] spending that creates a

threat to the political marketplace.’” McConnell, 540 U.S.

at 211 (quoting MCFL, 479 U.S. at 264). This point is

worth emphasis: The only reason section 203 applies to

WRTE at all — as to any of its~advertising — is because

WRTL has opted to accept large amounts of money from

the for-profit corporations that are the specific target of

the section 203 PAC requirement. If WRTL would simply

decline corporate funds to pay for political advocacy, then

section 203 and FECA more broadly would not prevent it

from using its treasury funds for any sort of advertising,

including express advocacy.’ Because it has chosen not to

take advantage of the MCFL exemption, the burden of

establishing eligibility for yet another type of as-applied

exemption rests upon WRTL. See Buckley, 424 U.S. at 72-

74; Brown, 459 U.S. at 93-94.

’ It is conceivable that some other nonprofit corporation that

accepts very little money from for-profit corporations could demonstrate

that in such a case the “conduit” concern the Court has recognized is

inapposite because of the trivial amount of corporate funds received. If

such a showing were made, then the Court would have to consider

whether a “de minimis” exception to the final criterion of the MCFL

exemption would be appropriate, and manageable. But no such proof

has been offered here, presumably because WRTL accepts a great deal

of money from for-profit corporations.

-

18

Instead of identifying a category of speakers that do

not implicate the state interests underlying section 203 (as

in MCFL), WRTL argues that there is a category of broad-

cast advertising that falls within the plain terms of the

BCRA definition of “electioneering communications” but

that somehow does not implicate the interests underlying

the PAC requirement. See Appellee’s Response to Appel-

lants’ Jurisdictional Statements, at 4 (the Court in

McConnell “‘assume{d] that the interests that justify the

regulation of campaign speech might not apply to the

regulation of genuine issue ads’” (quoting McConnell, 540

U.S. at 206 n.88)).

In order for WRTL to meet its burden, it must demon-

strate that there is a category of so-called corporate

“electioneering communications” as defined by Congress as

to which corporate aggregations of wealth do not have the

sort of “corrosive and distorting” effects on federal elec-

tions that justify the PAC requirement in the first in-

stance, and that do not implicate shareholders’ interests in

not having their funds be used to affect federal elections.

We submit, however, that advertisements taking the

form of “electioneering communications” as defined by

Congress will invariably implicate such concerns except in

the unusual situation where it is unlikely that such adver-

tisements would have an appreciable effect on voters’

choices in the relevant election.

The Court’s decision in McConnell makes clear that

whether or not an ad implicates the relevant state interests

is a question that necessarily requires careful consideration

of the electoral setting — of whether the ad could have the

effect of influencing voters’ decisions. The Court held that

“issue ads” falling within the statutory definition generally

19

are the “functional equivalent of express advocacy,” i.e.,

that the “justifications that adequately support the regula-

tion of express advocacy” apply as well to “significant

quantities of speech encompassed by the definition of

electioneering communications.” McConnell, 540 U.S. at

206.

Of course, Congress’s definition of “electioneering

communications” does nct correspond exactly to every

advertisement that implicates the interests supporting the

corporate PAC requirement. That definition does not, for

instance, cover every ad that is likely to influence voters’

choices in a federal election. See id. at 208 (explaining that

the definition is not fatally underinclusive even though “it

leaves advertising 61 days in advance of an election

entirely unregulated”). Just as the definition — like any

bright-line rule — is slightly underinclusive relative to

Congress’s objectives, perhaps it is likewise a bit overin-

clusive: There might be some ads covered by the definition

that would be highly unlikely to influence voters’ choices.

Appellees’ primary argument appears to be that an as-

applied exemption should be recognized where a corpora-

tion’s ostensible purpose in broadcasting the advertise-

ment is to influence legislative debates rather than (or in

addition to) federal elections. There is some reason to

think such ostensible non-election-related purposes would

be pretextual in a significant number of cases. See McCon-

nell, 540 U.S. at 206. But more fundamentally, it simply is

not the case that “electioneering communications” would

not implicate Congress’s compelling interests even if the

corporation might also intend for the broadcasts to have

an impact on legislative debates.

20

Indeed, a corporation’s intent in broadcasting such ads

should be immaterial to the as-applied-exemption ques-

tion. The state interests underlying the PAC requirement

— the effects of corporate wealth on federal elections by

virtue of state-conferred prerogatives, and the protection

of shareholders against the risk that their money will be

used to influence federal elections in ways that they do not

approve — are implicated whenever such ads influence

voters’ choices, regardless of whether the corporation

might have (or be able to articulate as a pretext) addi-

tional objectives for broadcasting such ads.

Thus, corporate intent should not be the touchstone

for an exemption. The burden for a corporation such as

WRTL must be to identify an easily distinguishable set of

advertisements that fall within the definition of “election-

eering communications” but that do not have any appre-

ciable chance of actually influencing voters’ federal

election choices — because it is only such advertisements

tuat would not implicate the compelling government

interests underlying the 60-year-old requirement that

corporations should use segregated funds to influence

- federal elections.

21

III.

THE DISTRICT COURT’S AS-APPLIED TEST IS

NOT TAILORED TO THE COMPELLING INTER-

ESTS CONGRESS SOUGHT TO PROTECT IN BCRA

AND WOULD LEAD TO THE RE-EMERGENCE OF

“ISSUE ADS” PAID FOR WITH CORPORATE

TREASURY FUNDS THAT HAVE AN IMPACT ON

FEDERAL ELECTIONS

The district court did not attempt to identify a set of

advertisements that are unlikely to implicate the compel-

ling government interests underlying section 203. Rather,

it would create an exemption for any advertisement that

“describes a legislative issue that is either currently the

subject of legislative scrutiny or likely to be the subject of

legislative scrutiny in the near future,” refers to the

candidate’s voting record, “exhorts the listener to ...

contact the candidate about the described issue,” but then

avoids references to an election or political party, and

avoids expressly attacking or supporting a candidate.

(Appendix to Jurisdictional Statement of Appellant Fed-

eral Election Commission (App. J.S.) 22a.)

This draws a roadmap for easily evading BCRA.

Congress found, and the Court agreed in McConnell, that

broadcast advertisements that name federal candidates in

the immediate pre-election period have an impact on the

election. Yet, the district court would exempt many of

these ads from regulation. It is hard to imagine what

campaign issue is not “currently the subject of legislative

scrutiny or likely to be the subject of legislative scrutiny in

the near future.” (App. J.S. 22a.) Surely, it would be simple

for a corporation to develop an election-period ad that

takes an emphatic position on an issue, links a candidate

22

to the issue, criticizes the candidate’s position on the issue

(albeit not the candidate herself), and cails on voters to

contact the candidate — all without referring to an election

or party. As McConnell explained, “[llittle difference

existed, for example, between an ad that urged viewers to

‘vote against Jane Doe,’ and one that condemned 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.

The district court’s standard would once again enable

corporations to use treasury funds to sponsor election-

period ads that condemn Jane Doe’s record on a particular

issue before exhorting voters to “call Jane Doe and tell her

what you think.” Truly, under the district court's approach,

the exemption would eat up the rule, and the very kinds of

advertising tactics that BCRA was enacted to prevent

would flourish again.

The district court determined that the as-applied

exemption has to be decided solely by looking at the face of

the ad, without any context. As the court explained, it

limited “its consideration to language within the four

corners of the anti-filibuster ads.” (App. J.S. 22a.) This is

flatly inconsistent with Congress's judgment in BCRA, and

with the Court’s opinion in McConnell. The lower court's

test for as-applied challenges to section 203 ignores

political reality by adopting a “see no evil” approach,

devoid of context, for determining whether corporate

treasury funds are being spent on election-period adver-

tisements that are likely to have an appreciable effect on

voter choices in federal elections.

The compelling government interests that justify

regulation of corporate spending are not concerned with

23

the content of ads per se but with the potential impact of

the corporate treasury funds on elections and on the rights

of shareholders not to have their funds diverted to election

campaigns. The cor.tent of the ad is, of course, a critical

factor in determining whether an ad raises the concerns

that justify regulation. That is why section 203 provides

that a reference to a “clearly identified candidate for

Federal office” is a prerequisite for regulation of the ad as

an “electioneering communication.” But as Congress and

the Court have recognized, content cannot be the only

factor. As BCRA aad McConnell together make clear,

context — including the timing of the ad and the medium of

communication — matters, too.

If the lower court’s as-applied test is allowed to stand,

the corporate “issue ads” that Congress intended to subject

to the PAC requirement in BCRA would likely return in

full force, thereby leading once again to an irrational

regime that might treat ads with virtually identical

electoral impact differently, depending upon the presence

or absence of magic words (in this case, any word that

directly “promotes, attacks, supports, or opposes” a named

candidate (J.S. App. 22a)).

Moreover, although WRTL in this litigation requests

an as-applied exemption-only as to BCRA section 203’s

PAC requirement, if the lower court opinion is allowed to

stand, corporations and others would be able to ask for as-

applied exemptions to BCRA section 201, which uses the

same “electioneering communications” test to trigger a

disclosure requirement for election-related communica-

tions over a certain spending threshold. See 2 U.S.C.

§ 434(f). A broad as-applied exemption thus could lead to a

situation in which the “sponsors of [issue] ads [will once

again use] misleading names to conceal their identity.”

24

McConnell, 540 U.S. at 128. This is a result that would

thwart Congress’s strong interest in mandating effective

campaign finance disclosure, an interest eight of the

Court’s Justices upheld in McConnell. Id. at 196 (uphold-

ing section 201); id. at 321 (Kennedy, J., joined by

Rehnquist, C.J., and Scalia, J., concurring and dissenting)

(voting with majority to uphold the disclosure rules of

section 201 except as to its “advanced disclosure” require-

ment).

IV.

THE COURT SHOULD HOLD THAT CORPORATIONS

SEEKING AN AS-APPLIED EXEMPTION FROM

THE PAC REQUIREMENT FOR “ELECTIONEERING

COMMUNICATIONS” MUST DEMONSTRATE THAT A

PARTICULAR BROADCAST ADVERTISEMENT IS

UNLIKELY TO HAVE ANY APPRECIABLE EFFECT

ON VOTERS’ CHOICES IN A FEDERAL ELECTION

The as-applied exemption the Court should craft is

one tailored to the substantial governmental interests

that, according to the Court, justify the regulation of

corporate election-related activity. We propose the follow-

ing test: a corporation should be entitled to an as-applied

exemption to the PAC requirement for electioneering

communications only when it proves that the communica-

tion is unlikely to have any appreciable effect on voters’

choices in the federal election.

For example, suppose a corporation wishes to use its

general treasury funds to broadcast a television advertise-

ment during the pre-election period concerning a pending

25

legislative issue that mentions’ an incumbent member of

Congress who is running unopposed for reelection.” In such

circumstances, an as-applied exemption might be war-

ranted because in an uncontested election the advertising

can have nv appreciable effect on voters’ choices.”

To give another example, imagine a corporation that

sells baseball cards. It pays for a television advertisement

of its products that is broadcast close to an election and

* The Center for Responsive Politics reports that in 2006, candi-

dates ran completely unopposed in 36 House races. Center for Respon-

sive Politics, 2006 Election Analysis: Incumbents Linked to Corruption

Lose, But Money Still Wins (updated Nov. 9, 2006), http://www.opensecrets.

org/pressreleases/2006/PostElection. 11.8.asp.

* The issue is more complex when a corporation wishes to run a

television advertisement in an uncontested primary election mention-

ing a candidate who will run in a contested general election. Such

advertising may affect the general election. See Christian Civic League

of Me., Inc. v FEC, 433 F.Supp.2d 81, 89 (D.D.C. 2006) (suggesting that

electioneering communication mentioning Senator Olympia Snowe

broadcast shortly before the 2006 Maine Republican primary for U.S.

Senate “might have the effect of encouraging a new candidate to oppose

Senator Snowe, reducing the number of votes cast for her in the

primary, weakening her support in-the general election, or otherwise

undermining her efforts to gather such support, including by raising

funds for her reelection”). Nevertheless, Cc agress has treated the

primary and general elections as separate elections under BCRA, and

therefore we would not rule out the possibility of an as-applied exemp-

tion for uncontested primary elections, depending upon the nature of

the proof a corporation is able to adduce, notwithstanding a slight

possibility that the pre-primary ads might affect general elections.

The question is not academic in the context of this very case.

Senator Feingold ran unopposed in 2004 in the Wisconsin Democratic

primary for U.S. Senate. See Wisconsin State Elections Board, Results

of Fall Primary Election — 9/14/2004, at p. 2, http://165.189.88.185/

docview.asp?docid=1382&locid=47. However, only part of the total

electioneering communications period at issue in this case was due to

the primary; on September 2, or two weeks before the primary, the 60-

day general election period began.

26

includes the name or likeness of a former baseball star

who also happens to be an incumbent Senator running for

re-election. The corporation should be entitled to an as-

applied exemption because such an advertisement, so

entirely unconnected to anything relevant to the candidate

or his performance in office, is unlikely to have an appre-

ciable effect on the voters’ decisionmaking.

Similarly, suppose a candidate has the same name as

an automobile dealership within the district she seeks to

represent in Congress — a business that she founded and is

now operated by her daughter, who has the same name.

The dealership could be allowed to run ads for its business

in the pre-election period featuring the name common to

the candidate, the dealership, and the current head of the

business. ©

Although this test would require application of some

judgment (less in the case of the unopposed candidate, a

little more in the baseball] card and car dealership cases),

the number of difficult cases would be few. The baseball

card or car dealership ad will not have an appreciable effect

on voters’ choices because 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. In contrast, WRTL’s 2004 advertisements

should easily fail to qualify for an as-applied exemption

* The FEC agreed in a 2004 determination. 2004-31 Op. FEC

(2004) (Russ Darrow Group, Inc.), available at http://www.fec.gov/aos/

2004/a02004-31final.pdf. Although the FEC declined to create en

exemption for all situations in which a candidate and a business shared

a name - because such ads could often be used to promote the candidate

— it found that in the particular circumstances of the dealership cave an

exemption was appropriate. Jd.

27

(except arguably during part of the primary period, when

Senator Feingold was running unopposed; see supra p. 25

n.9). A broadcast ad that refers to both a candidate and a

campaign issue in the pre-election period is singularly

unsuitable for an as-applied exemption, because such ads

would almost certainly affect voters’ choices about the

named candidates. The WRTL ads are closely enough

related to a candidate’s performance and issues in the

election that it is quite plausible the advertisements could

affect voters’ choices, as the dissent in the lower court

below demonstrated, applying an appropriate contextual

analysis. (App. J.S. 40a-47a.)"

The Court in McConnell recognized that political

actors can understand context and make such common-

sense judgments. In the few close cases that may arise,

corporations may seek an advisory opinion from the FEC,

cf. McConnell, 540 U.S. at 170 n.64, or “during those

timeframes [] simply avoid[] any specific reference to

federal candidates, or in doubtful cases [] pay|] for the ad

from a segregated fund.” Jd. at 206.

" It is noteworthy that the radio scripts for each of WRTL's ads

included the following disclaimer: “Paid for by Wisconsin Right to Life

(befair.org), which is responsible for the content of this advertising and

not authorized by any candidate or candidate’s committee.” (App. J.S.

3a-5a & nn.3-5.) The disclaimer plainly indicates WRTL’s recognition

that the ads would be perceived by the voters who heard them as

electoral ads, thus confirming that even their sponsor understood they

would have an electoral effect. Indeed, by specifically using the terms

“candidate” and “candidate’s committee,” the ads employ the language

of electoral ads, which reinforces their foreseeable electoral effect. Even

under the district court’s inadequate, content-only test, the ads’

references to “candidate or candidate’s committee” ought to render

them electoral communications ineligible for any as-applied exemption.

28

To be sure, there would not be many cases in which

corporations would qualify for as-applied exemptions. But

corporations would continue to have significant protections

for their First Amendment activities. MCFL-exempt corpora-

tions are not subject to the PAC requirement at all. They can

spend their general treasury funds on such ads. (Recall that

WRTL itself could qualify for such a sweeping exemption if it

simply declines donations from other corporations.) Even for-

profit corporations and corporations such as WRTL that do

not qualify for the MCFL exemption continue to have many

ways to engage in political activity, including:

° Spending on express advocacy and electioneer-

ing communications through a separate PAC

(as WRTL has created (see App. J.S. 41a-42a));

¢ Internet, mail, and print advertising that

avoids express advocacy;

* Broadcast advertisements, including ads

that refer to federal candidates, that are

aired outside the statutory pre-election pe-

riod and that avoid express advocacy;

and

¢ Television or radio advertising broadcast

close to the election that “simply avoid|s]

any specific reference to federal candidates”

(McConnell, 540 U.S. at 206).

+

CONCLUSION

Both Congress and the Court have long struggled to set

the balance between the proper scope of election regulation

and the protection of political speech. BCRA and McConnell

29

have struck a fair balance. Any as-applied exemptions to

BCRA should not be allowed to subvert that balance.

The district court erred in its most recent opinion by

applying a poorly tailored and constitutionally tone-deaf

test for separating electioneering communications likely to

influence voters’ choices in federal elections from those

unlikely to have such an effect. It would permit corporate

use of treasury funds for speech that falls within the core

of the constitutional justifications for BCRA’s regulation.

And it would exempt many electioneering communications

from the reach of a statute Congress only recently adopted

and the Court just recently sustained. Its judgment should

be reversed. Any as-applied exemption the Court adopts

should exempt only those electioneering communications

that are not likely to have an appreciable effect on voters’

choices in a federal election.

For the foregoing reasons, we urge the Court to

reverse the judgment of the district court.

Respectfully submitted,

RICHARD BRIFFAULT RICHARD L. HASEN

435 West 116th Street *Counsel of Record

New York, NY 10027 919 Albany Street

(212) 854-2638 Los Angeles, CA 90015

FAX: (212) 854-7946 ~ (213) 736-1466

’ FAX: (213) 380-3769

a Sr Se rick.hasen@lls.edu

Horvitz & LEVY LLP

15760 Ventura Boulevard, MARTIN S. LEDERMAN

18th Floor 600 New Jersey Avenue, NW

Encino, CA 91436 Washington, D.C. 20001

(818) 995-0800 (202) 662-9937

FAX: (818) 995-3157

Attorneys for Amici Curiae