Opposition Brief — Leake, in His Official Capacity as Chairman of the North Carolina State Board of Elections v. North Carolina Right to Life, Inc.

(2) | Supreme Court, U.S

FILED

|

No. 03-910 |_MAR 2 3 2004

CIn o) he | OFFICE OF THE CLERK

Supreme Court of the Cited States

LARRY LEAKE, in His Official Capacity as

Chairman of the North Carolina State Board

of Elections, et al.,

Petitioners,

NORTH CAROLINA RIGHT TO LIFE, INC., et al,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Brief in Opposition to

Petition for Writ of Certiorari

James Bopp, Jr.

Counsel of Record

Eric C. Bohnet

JAMES MADISON CENTER

FOR FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6" Street

Terre Haute, Indiana 47807

(812) 232-2434

Counsel for Respondents

THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400 ¢ Richmond, VA 23219

(804) 644-4419 ¢ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com

a i

IT.

III.

Questions Presented

Whether a statute is void for vagueness when it

regulates the financing of communications

based upon their “essential nature” and looks to

a series of contextual factors to determine how

the communication would be interpreted by a

reasonable person.

Whether the Constitution permits an association

to be presumed subject to comprehensive

political committee regulations based solely

upon a $3,000 expenditure.

Whether the Constitution permits a state to limit

contributions to independent expenditure

committees that do not contribute to candidate.

Corporate Disclosure Statement

Respondent North Carolina Right to Life, Inc. is

a parent company of Respondents North Carolina

Right to Life Political Action Committee and North

Carolina Right to Life Committee Fund for

Independent Political Expenditures. There are no other

parent corporations for any respondent, and no

publicly held company owns ten percent or more of the

stock of any of the respondents. Rule 29.6.

we

Table of Contents

Page

CORIO FI oo aiccccscanisccnissninieieecieeigeiantaiummiacinai i

Corporate Disclosure Statement...........cccccccscseseseseeeesesees ii

SRE OE CR sititininiciinmmenmemmmaanmmala ili

SAE C8 AMINO oinsinsissicsticsrssorseneineeiioniamanaad vi

PRG sian ssssssestsisrsiseinnicinnscnmnnmanesiiinaaaaean 1

I. The Context Prong of N.C. Gen Stat. §

163-278.14A Is Void For Vagueness...............:000+. 4

A. Vagueness Is Not Permitted in

Content-Based Regulation of

FREER SIT ansoxensninseintaisiornaminsmabasinsiion 4

B. North Carolina’s Context Prong Is

Unconstitutionally Vague... 6

©. Partial Severance of the Context

Prong Does Not Cure Its

WRI ossiasrenssmisnonscesniiiipsennunsdeiiapgmatiatel 9

II. The Fourth Circuit Properly Held That

North Carolina May Not Presume

Political Committee Regulations Based

On A Flat Monetary Standard Without

Analysis of the Organization’s Overall

FG acs snicessoenstvnnnsonenatiienieeeialenmaadanaametal 11

iV

A. Only Organizations Whose Major

Purpose Is Candidate Advocacy

May Be Subjected To

Comprehensive Organization-

Wide Regulation ..........cccscscsssssssesessesseeess 12

B. North Carolina’s Political

Committee Definition Violates the

Major Purpose Test by Imposing ;

Organization-Wide Regulations

Without Reference to _ the

Organization’s Actual Purposes............. 13

os This Definition Is also

Unconstitutionally Vague Because

It is Not Based on _= an

Organization’s Principal Purpose .......... 15

D. A $3,000 Threshold Is Too Low

and Would Ensnare Even the

Organization Found Not to Be a

Political Committee in MCEL.....sssssess-000 16

III. |The Fourth Circuit Properly Found That |

North Carolina Lacks Justification to '

Limit Contributions to Independent

i xpenditure Committees that Do Not

Contribute to Candidates .............sscscscesescereerees 17

A. Because IEPACs Do Not

- Contribute to Candidates, the State

Lacks Justification for Limiting

Contributions to Such Entities. ................ 18

B. Political Committees Lack the

Close Relationship to Candidates

that Justified Regulation of

Political Parties and Their

Candidates in McConnell o....cccccccccccc05-... 21

i. The State Has Not Shown Any

Realistic Threat Of Corruption that

May Be Reduced By Limiting

Contributions to IEPACS .......ceesessessesseee 22

SON crite ocitensthstsstensieenidiphininninsticeedacecanmuatesesatssin. 25

vl

Table of Authorities

Page

Cases

Anderson v. Spear,

356 F.3d 651,

2004 U.S. App. LEXIS 586 (6th Cir. 2004) ............ 5

Buckley v. Valeo,

GEIB ECE wisssvsssiisnnssrsassinionenasnanssioasiesea Passim

California Medical Association v. FEC,

GS TF TS CID cessiasencesassierasnnnonsionssenansnsts 19

Citizens Against Rent Control v. City of Berkeley,

BIG TID. TOO CFIA) scsinsercisnsvassrcrsecsmmsciscrersnasneees 19, 20

Colorado Republican Federal Election

Campaign Committee v. FEC,

FD OC I os csicsinsesapnscttisctpinsisissonsnccssinssinn 20

FEC v. Massachusetts Citizens for Life, Inc.,

SFO AT TO OD rsnitssennntnennssianecrarncnansaanapannio Passim

FEC v. National Conservative Political

Action Committee,

BF GAP nstssnsasesescitasncasasscninseanninnsean 19, 24

Kolender v. Lawson,

UID. FD ictininnnssasansetnasapsinncioansapsascroreiies 5

Lawrence v. Chater,

Bi TFB, BD CIGD assicascnsissccseccsarssssascavnsanesnes Laz

Vil

Lincoln Club of Orange County v. City of Irvine,

BF FS FO (IU CAP, BOD) oc casescscascscsescosevsnsosates 24

McConnell v. FEC,

ee te ND eandaississaniesicensileniibabinimdadin Passim

North Carolina Right to Life, Inc. v. Leake,

344 F.3d 418 (4th Cir. 2003).......cceeseseseseees Passim

Perry v. Bartlett,

231 F.3d 155 (4th Cir. 2000).............cecececssesssee 22-23

Riley v. National Federation of the Blind,

A EE I siritesesicsninssbiniustiidnstibsinainicent 15

Virginia v. Black,

938 U.S. 343, 123 S. Ct. 1536 (2003)............0ccece0e 14

Constitutional Provisions

Te a Ns MII, Bs cicinstscnisnsissnnnisopsaddivensiindiassseien 4,14,15

Statutes

N.C. Gen. Stat. § 163-278.6(14) ........ccccccseseseseseees 11, 14,15

BR. Ch SHE, ae ctinacnsnestscnencnnnannonsonsennsnas 14

eA. San TE BO witkicsasiettinsenniiactnnnaticesasntciniasttin 4

PU. Comme, Stmt, B RODZ7O TGA La access cncscccsecssscnscceacsonssons 6

N.C. Gen. Stat. § 163-278.14A(a)(1) .0....c.cccsccceceseseseeseeeees 10

N.C. Gen. Stat. § 163-278.14A(a)(2) ..........cccceseceseeeeeeees 4,9

Argument

The state implicitly concedes that this case does

not merit full review by this Court, and instead asks

only that the matter be remanded to the lower court for

further consideration in light of this Court’s recent

decision in McConnell v. FEC, 124 S. Ct. 619 (2003). Such

a procedure is one that “should be exercised

sparingly.” Lawrence v. Chater, 516 U.S. 163, 173 (1996).

It is potentially appropriate only when

intervening developments .. . reveal a

reasonable probability that the decision

below rests upon a premise that the lower

court would reject if given the

opportunity for further consideration,

and where it appears that such a

redetermination may determine the

ultimate outcome of the litigation.

Id. at 167.

No such probability exists here because the

Fourth Circuit’s analysis and holdings are fully

consistent with those announced by this Court in

McConnell. There were three basic holdings in the

lower court on which the state now seeks review: (1)

The context prong of North Carolina’s expenditure

definition failed to provide a _ bright line

“unconstitutionally shifts the determination of what is

‘express advocacy’ away from the words in and of

themselves to the unpredictability of audience

interpretation” North Carolina Right to Life, Inc. v. Leake,

344 F.3d 418, 428 (4th Cir. 2003). (2) The state’s $3,000

major purpose presumption was substantially

tu

overbroad and invalid because it is “based entirely on a

monetary standard completely untethered from the

other factors identified by the Supreme Court in

determining major purposes.” Id. at 433. And (3) That

a limit on the size of contributions to independent

expenditure committees (“IEPACs”) was

unconstitutional because “the corruptive influence of

contributions for independent expenditures is more

novel and implausible than that posed by contributions

to candidates” and that the state had “failed to proffer

sufficiently convincing evidence . . . that there is a

danger of corruption due to the presence of unchecked

contributions to IEPACs.” Id. at 434.

None of these issues was addressed in

McConnell. Although several principles were discussed

in both cases, these had been well established by prior

cases and McConnell simply re-affirmed the authorities

relied upon by the Fourth Circuit here. For example,

the express advocacy test was discussed in both cases,

with the Fourth Circuit striking down North Carolina’s

laws based upon vagueness concerns described by this

Court in Buckley v. Valeo, 424 U.S. 1, 43 (1976). NCRL,

344 F.3d at 427. While this Court upheld the statute it

analyzed, it was able to do so only because the clearly

delineated federal statute “raises none of the vagueness

concerns that drove our analysis in Buckley.”

McConnell, 124 S. Ct. at 689.

The McConnell decision also re-affirmed several

of the principles that underlay the Fourth Circuit's

decision on the IEPAC issue: the level of scrutiny for

contributions limits, the lack of corruptive potential

from independent expenditures, and the connection

between the plausibility of a legislative judgment and

the state’s evidentiary burden to support it. Compare

McConnell, 124 S. Ct. at 655-656, 705, 711 with NCRL,

344 F.3d at 433-434.

With regards to the major purpose presumption

issue, there is no overlap even of underlying principles.

Although the state claims the McConnell decision

enhances the deference to which the legislative

decision is due, Cert. Petition at 13, 20, the section of

the opinion to which they cite actually says nothing

about deferring to legislative judgment. See McConnell,

124 S. Ct. at 690-693. Although this Court did defer to

Congressional expertise with regards to matters such

as how the close relationship between political parties

and their candidates might be used to influence

elections, McConnell, 124 S. Ct. at 673, there is nothing

to recommend deference to the legislature’s judgment

concerning the operations and _ purposes. of

independent citizens’ groups at issue here. Simply

because this Court deferred to a co-equal branch of the

federal government on a particular legislative finding,

based on a massive evidentiary record, does not

indicate a carte blanche deference to any and all

unrelated campaign finance regulation that a state

legislature may enact.

Because McConnell does not contradict the

Fourth Circuit’s holdings or undermine its analysis,

there is no basis to conclude that a re-evaluation of this

case would alter its outcome, and therefore is no basis

on which to vacate and remand. See Lawrence, 516 U.S.

at 167. Since the existing decision is also fully

consistent with prior decisions of this Court and does

not conflict with the decisions of any other federal

circuit, the state’s petition should be denied.

I. The Context Prong of N.C. Gen Stat. § 163-

278.14A Is Void For Vagueness.

The content definition at issue here, N.C. Gen.

Stat. § 163-278.14A(a)(2), is unconstitutionally vague,

and is therefore unaffected by this Court’s recent

upholding of the federal “electioneering

communication” provision that this Court said “raises

none of the vagueness concerns that drove our analysis

in Buckley.” McConnell v. FEC, 124 S. Ct. 619, 689 (2003).

Although the Fourth Circuit found the statute at issue

here to be unconstitutional on both vagueness and

overbreadth grounds for violating Buckley's express

advocacy test, its analysis focused heavily on

vagueness concerns necessitating a “bright-line

standard.” NCRL, 344 F.3d at 424-428. Since either

vagueness or overbreadth would be sufficient grounds

for striking a restriction on First Amendment rights,

this statute’s vagueness renders any impact of

McConnell’s overbreadth analysis irrelevant.

A. Vagueness Is Not Permitted in Content-

Based Regulation of Political Speech.

In both Buckley and McConnell, this Court

recognized that definitions triggering campaign

finance restrictions must “avoid problems of vagueness

and overbreadth.” McConnell, 124 S. Ct. at 688. In

Buckley, the principal problem was vagueness, which

cannot be tolerated in restrictions of First Amendment

activity because “vague laws may not only ‘trap the

innocent by not providing fair warning’ or foster

‘arbitrary and discriminatory application’ but also

operate to inhibit protected expression by inducing

‘citizens to steer far wider of the unlawful zone.”

NS ee Sate a re a aa enna

Buckley, 424 U.S. at 41 n. 48 (quoting Grayned v. City of

Rockford, 408 U.S. 104, 108-109 (1972)). Hence, a statute

is void for vagueness if it fails to define the offense

“with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a

manner that does not encourage arbitrary or

discriminatory enforcement.” Kolender v. Lawson, 461

U.S. 352, 357 (1983). In addressing the constitutional

use of such phrases as “relative to,” Buckley, 424 U.S. at

41, “advocating the election or defeat,” id. at 42, “for

the purpose of . . . influencing,” id. at 78, or “in

connection with any election,” MCFL, 479 U.S. at 248-

249, this Court found that the constitutional

deficiencies of vagueness “can be avoided only by

reading [the statute] as limited to communications that

include explicit words of advocacy.” Buckley, 424 U.S.

at 43, 80; FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986).

In McConnell, however, vagueness was not an

issue because the statutory reach was defined by an

elaborate but clear series of standards which raised

only questions of overbreadth. McConnell, 124 S. Ct. at

688. This new decision thereby approved the federal

statute as a constitutionally acceptable alternative to

Buckley's express advocacy test, but did not alter

Buckley's approach to vagueness. As the Sixth Circuit

has since explained, McConnell “left intact the ability of

courts to make distinctions between express advocacy

and issue advocacy, where such distinctions are

necessary to cure vagueness and overbreadth.”

Anderson v. Spear, 356 F.3d 651, 2004 U.S. App. LEXIS

586 at 36 (6th Cir. 2004). Together, Buckley and

McConnell provide state’s with two choices for the

regulation of campaign finance expenditures: they can

either use the express advocacy test, or they can utilize

a somewhat broader content delineation if the

excessive scope is narrowed to “the functional

equivalent of express advocacy” through clearly

defined requirements for timing, media, and audience.

McConnell, 124 S. Ct. at 696.

B. North Carolina’s Context Prong Is

Unconstitutionally Vague

Here, North Carolina’s statutory definition, §

163-278.14A(a) attempts what may be called a Buckley-

plus approach as its first subsection codifies Buckley's

express advocacy test by providing a comprehensive

list of the types of campaign speech that plainly and

necessarily expressly advocate the election or defeat of

a candidate. Plaintiffs do not challenge this first

subsection, but they do challenge to statute’s context

prong, subsection(2), which seeks to _ regulate

additional communications according to how the

general public may perceive their “essential nature.”

This determination, in turn, is to be made by weighing

a series of contextual factors according to a “reasonable

person” standard of interpretation. Essentially, the

definition erases the bright line of the express advocacy

test by reaching beyond it to encompass whatever

communications can be viewed as triggering the state’s

interest.

This approach differs dramatically from the

“electioneering communication” upheld in McConnell.

In that case, the federal statute utilized a clear content

delineation which was then narrowed by a series of

clearly-defined contextual limitations: the provision

would apply only to “(1) a broadcast (2) clearly

aa A i! ipa et Pen Illa aN io ease Ci at Na BW ew Bata aba

identifying a candidate for federal office, (3) aired

within a specific time period, and (4) targeted to an

identifiable audience of at least 50,000 viewers or

listeners.” McConnell, 124 S. Ct. at 689. As this Court

noted, “[t]hese components are both easily understood

and objectively determinable,” so that “the

constitutional objection that persuaded the Court in

Buckley to limit FECA’s reach to express advocacy is

simply inapposite here.” Id. Basically, the statute sets

up a series of clearly-defined “safe harbors” within

which communications can be made without threat of

regulation.

In contrast, North Carolina’s statute provides

little safety to anyone wishing to discuss contemporary

political issues. Its reliance on how a communication

would be perceived by the general public or by a

reasonable person ignores this Court’s warning that

such criteria “puts the speaker . . . wholly at the mercy

of the varied understanding of his hearers and

consequently of whatever inference may be drawn as

to his intent and meaning. Such a distinction offers no

security for free discussion . . . . It compels the speaker

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

Thomas v. Collins, 323 U.S. 516, 535 (1945)).

Although the statute in question here looks at

many of the same types of factors as the federal

“electioneering communication,” it utterly fails to

define when or how these factors might apply. For

example, the federal statute sets a specific time frame

for its application: 60 days before a general election or

30 days before a primary. McConnell, 124 S. Ct. at 687.

A speaker can avoid regulation by simply timing his ad

to run 61 days before the election. In contrast, North

Carolina’s statute provides no concrete time limit, but

looks broadly to “the timing of the communication in

relation to events of the day.” Though this may include

proximity to an election, there is nothing in this statute

to prevent enforcement against communications made

61, 120, or even 500 days before an election, and also

nothing to require enforcement against

communications made a week before election day.

Perhaps a mailing that touts a candidate’s tax

proposals will be viewed as electoral in nature if sent

when the candidate kicks off his campaign a year

before the election, but not electoral if sent a few weeks

before the election while the proposal is pending in the

legislature. Or perhaps the proximity to the election

will control so that only the second mailing would be

viewed as electoral. Or perhaps both will be electoral,

or neither of them-a speaker can only guess.

Similarly, a communication that reaches fewer

than 50,000 persons in the candidate’s district is off

limits to the federal regulation, McConnell, 124 S. Ct. at

687, but North Carolina’s context prong balances

whether it is distributed to “a significant number of

registered voters.” Is 20,000 voters a_ significant

number? Is 1,000? 100? Does it matter if the

communication is also distributed outside the district?

The statute again does not answer these critical

questions. Moreover, none of these factors are

mandatory but are simply among those which “may be

considered,” so even communications with

insignificant distribution to the candidate’s

constituents might still trigger regulation based upon

other factors.

|

WD ial Aan CL a

The potential for discriminatory enforcement of

such a scheme is obvious. A partisan prosecutor could

easily focus on factors that would justify enforcement

actions against his opponents while exempting friendly

ads from prosecution. Perhaps a “Smith is bad for

farmers” mailing will be deemed electoral in nature

while “Smith is good for business” radio ads will be

allowed because they ran a week farther from the

election, or because they reached fewer of Smith’s

constituents.

C. Partial Severance of the Context Prong

Does Not Cure Its Vagueness.

Nor do these problems permit the retention of

the first sentence of § 163-278.14A(a)(2), as suggested

by Judge Michael in partial dissent. See NCRL, 344 F.3d

at 435-437 (Michael, J., concurring in part and

dissenting in part). Although this approach would take

out some of the more vague aspects of this statute, this

first sentence still raises ambiguous questions of when

a communication’s “essential nature expresses electoral

advocacy to the general public” and what is meant by

“directs voters to take some action to nominate, elect,

or defeat a candidate in an election.”

The problem is similar to one already addressed

by this Court in rejecting an “advocating the election or

defeat” test. Buckley, 424 U.S. at 42. Because “the

distinction between discussion of issues and candidates

and advocacy of election or defeat of candidates may

often dissolve in practical application” this Court held

that sufficient clarity in this definition could only be

achieved if the statute’s scope were “limited to

communications that include explicit words of

10

advocacy.” Id. at 43. Here as_ well, many

communications that do not contain explicit words of

advocacy will be susceptible to interpretation either as

an issue discussion or as candidate advocacy. For

example, does a plea to “stop Governor Smith from

raising taxes” advocate that the hearers vote against

Governor Smith, join an anti-tax rally, or call their

legislators?

This first sentence of subsection (2) cannot be

saved by a narrowing construction because the only

one available, i.e., explicit words of advocacy, is

already codified in subsection (1). This first provision

provides an exhaustive list of phrases that may

constitute explicit words of advocacy. § 163-

278.14A(a)(1). It incorporates all of the examples

provided by this Court in Buckley, 424 U.S. at 44 n.52,

plus the two-step “vote pro-life, Smith is pro-life”

advocacy described in MCFL, 479 US. at 249. It then

adds a third category of campaign slogans such as

“Smith’s the One.” Notably, this list is prefaced by

“phrases such as,” so that other forms of explicit

advocacy like “Smith for North Carolina” or “Send

Smith packing on November 8” would be covered by

this section even though they are not specifically listed.

Because express advocacy is already regulated

by subsection (1), the only communications that might

be subjected to regulation only by subsection (2) are

necessarily those that do not contain explicit words of

advocacy and whose meanings are therefore subject to

uncertain interpretation. Hence, any effort to construe

this section in a way that avoids vagueness would

necessarily render it redundant with subsection (1).

11

In conclusion, North Carolina’s current attempt

to reach beyond explicit words of advocacy sets an

ambiguous standard that must be struck down as

unconstitutionally vague. If the state legislature wishes

to regulate communications that are “the functional

equivalent of express advocacy,” this Court’s recent

decision provides a roadmap showing how narrow and

well-defined boundaries can be used to achieve this

purpose. McConnell, 124 S. Ct. at 696. However, its

current attempt does not follow this approach and the

lower court’s decision to strike it down should be

allowed to stand.

II. The Fourth Circuit Properly Held That North

Carolina May Not Presume Political

Committee Regulations Based On A Flat

Monetary Standard Without Analysis of the

Organization’s Overall Purpose.

Plaintiffs also challenged a portion of North

Carolina’s political committee definition, N.C. Gen.

Stat. § 163-278.6(14), under which associations making

$3,000 in expenditures or contributions are presumed

to have the major purpose of supporting or opposing

candidates, and are’ thereby subjected to

comprehensive organizational and __ reporting

requirements as a political committee. The Fourth

Circuit properly struck down this presumption because

it is “based entirely on a monetary standard completely

untethered from the other factors identified by the

Supreme Court in determining major purposes.”

NCRL, 344 F.3d at 433.

12

_

A. Only Organizations Whose Major

Purpose Is Candidate Advocacy May Be

Subjected To Comprehensive

Organization-Wide Regulation.

The major purpose test plays an important role

in campaign finance law because it allows

comprehensive regulation of organizations that exist to

promote candidates and whose entire operations are

therefore inherently political, while protecting

organizations that exist principally for other purposes

and which can therefore be regulated only to the extent

of their electoral advocacy. This test was first

announced in Buckley, when this Court allowed the

federal government to compel disclosure of all

expenditures by political committees whose “major

purpose . . . is the nomination or election of a

candidate.” Buckley, 424 U.S. at 79. Regardless of the

content of specific communications, all of such an

organization’s expenditures “can be assumed to fall

within the core area sought to be addressed by

Congress. They are, by definition, campaign related.”

Buckley, 424 U.S. at 79. In contrast, expenditures by

other groups could be regulated only with regard to

the specific “funds used for communications that

expressly advocate the election or defeat of a clearly

identified candidate.” Id. at 79-80.

This distinction between expenditure-specific

and organization-wide regulations was again

illustrated in MCFL, 479 U.S. 238, which involved a

non-profit educational organization whose “central

organizational purpose is issue advocacy, although it

occasionally engages in activities on behalf of political

candidates.” Because of its electoral activities, it was

13

found to be subject to requirements that it disclose the

amounts it spent on independent expenditures and the

amount contributed for that purpose. Id. at 262. This

Court also noted that should “independent spending

become so extensive that the organization’s major

purpose may be regarded as campaign activity, the

corporation would be classified as a_ political

committee.” Id. at 262. In that event, “it would

automatically be subject to the obligations and

restrictions applicable to those groups whose primary

objective is to influence political campaigns.” Id. at 263.

Based upon these precedents, the Fourth Circuit

properly concluded that a constitutionally acceptable

standard for political committee-type regulation

should look to “an entity’s stated purpose, which is

typically reflected in its articles of incorporation, and

the extent of an entity’s activities and funding devoted

to pure issue advocacy versus electoral advocacy.”

NCRL, 344 F.3d at 430. It also noted that this Court in

MCFL had considered the organization’s “legislative

and public demonstration activities, how it raised its

finances, and its publications” before determining its

major purpose. NCRL, 344 F.3d at 430 n.4.

B. North Carolina’s Political Committee

Definition Violates the Major Purpose

Test by Imposing Organization-Wide

Regulations Without Reference to the

Organization’s Actual Purposes.

Like the federal schemes reviewed in Buckley

and MCFL, North Carolina’s statutes also impose

comprehensive organization-based burdens’ on

organizations deemed to be political committees. As

14

the court below summarized the state’s regulations,

“{a] political committee is required to appoint a

treasurer, file a statement of organization, maintain

detailed accounts of all contributions received and

expenditures made, and file periodic statements with

the State Board of Elections.” NCRL, 344 F.3d at 423-

424. Political committee status also triggers limits on

the size of contributions that an organization may

accept. § 163-278.13(b).

Unfortunately, these organization-wide burdens

are not matched to organizational criteria for their

imposition, but can instead be triggered by the making

of a single expenditure costing a tiny fraction of the

organization’s resources. Under § 163-278.6(14), any

entity is “rebuttably presumed to have as a major

purpose to support or oppose the nomination or

election of . . . candidates if it contributes or expends. .

. more than three thousand dollars.” As the Fourth

Circuit properly explained, this standard, “is based on

an arbitrary level of spending that bears no relation to

the idiosyncracies of the entity.” NCRL, 344 F.3d at 430.

Although the presumption is rebuttable, and the

state claims to retain the burden of proof, a plurality of

this Court made clear last term that such a

presumption violates the First Amendment when used

to blur a constitutionally-mandated distinction because

it “permits a jury to convict in every [] case in which

defendants exercise their constitutional right not to put

on a defense.” Virginia v. Black, 538 U.S. 343, 123 S. Ct.

1536, 1550 (2003). At minimum, such a presumption

“makes it more likely” that the offense will be

established “regardless of the particular facts of the

case.” Id.

t

This Court has also struck down similar

presumptions because they subjected persons

exercising First Amendment rights to potential

litigation in which they would “bear the costs of

litigation and the risk of a mistaken adverse finding by

the factfinder.” Riley v. National Federation of the Blind,

487 U.S. 781 (1988). Such a scheme, “must necessarily

chill speech in direct contravention of the First

Amendment's dictates.” Id.

Such concerns are certainly applicable here

where the presumption allows the prosecution to

establish an organization’s major purpose without

actually examining the organization’s purposes. Rather

than determining an organization’s major purpose by

comparing its electoral activities with its overall

activities, this presumption looks only at the electoral

activity and forces the organization to prove that they

“were not a major part of activities of the organization

during the election cycle.” § 163-278.6(14).

C. This Definition Is also

Unconstitutionally Vague Because It is

Not Based on an _ Organization’s

Principal Purpose.

Additionally, this rebuttal provision also raises

serious vagueness problems. While this Court has

always spoken of “the major purpose,” Buckley, 424 U.S.

at 79 (emphasis added), or a groups’ “primary

objective,” MCFL, 479 U.S. at 263, North Carolina’s

statute speaks of “a major purpose” and provides for

showing that electoral activities were not “a major

part”. The former descriptions look at the

organization’s foremost or principal objective while the

16

latter suggests only significance. As the state explains

in its current petition, the statute deliberately avoids

providing a concrete standard for determining what is

or is not a major purpose of an organization. Cert.

Petition at 17-19. Even if an organization were to prove

that its $3,001 electoral expenditure was dwarfed by

the $10 million it spent on educational ads, there is

nothing in this statute to preclude a finding that the

$3,001 nonetheless comprised “a major part” of its

activities. Indeed, such a finding would logically follow

from the statute’s focus on the potential impact on

campaigns rather than the overall character of the

speaking entity. See Cert. Petition at 14-15.

Such ambiguity fails -to provide potential

speakers with security to speak without fear of being

subjected to comprehensive and restrictive regulations.

The only safe means of avoiding potential enforcement

is by limiting expenditures and contributions to less

than $3,000. As discussed in Section I, supra, such

ambiguity renders the statute unconstitutionally

vague. See Buckley, 424 U.S. at 41. .

D. A $3,000 Threshold Is Too Low and

Would Ensnare Even the Organization

Found Not to Be a Political Committee

in MCFL.

Finally, even if an organization’s major purpose

could be measured by some level of flat monetary

threshold, such a threshold would need to be far higher

than the $3,000 set by North Carolina. In MCFL the

organization at issue spent $9,812.76 to print and

distribute an express advocacy communication, yet it

was “undisputed on this record” that the organization

17

in question did not have “the major purpose of . . . the

nomination or election of a candidate.” MCFL, 479 US.

at 244, 249, 252 n.6. Of course, the impact of such

spending was far greater when it was made in 1978

that it would be now-back then it purchased the

printing of over 100,000 copies of a newsletter and

postage costs to mail 56,000 of them. Id. at 243-44, 249.

Obviously, a presumption of major purpose cannot be

supported by a mere $3,000 expenditure.

Because the Fourth Circuit properly followed

the precedence of this Court, and does not conflict with

the case law of any federal circuit, there is no need for

this review by this Court.

III. The Fourth Circuit Properly Found That North

Carolina Lacks Justification to Limit

Contributions to Independent Expenditure

Committees that Do Not Contribute to

Candidates.

Both the District Court and the Fourth Circuit

found that the state lacked justification for limiting the

size of contributions made to independent expenditure

committees (“IEPACs”) because the compelling interest

in combating corruption was insufficiently supported

by limits on contributions that could not flow to a

candidate. There is no need for Supreme Court

intervention on this issue because the Fourth Circuit

followed the well-established analysis that this Court

has consistently applied to contribution limits, under

which such limits “require less compelling justification

than restrictions on independent spending” and can

therefore survive “if the Government demonstrates

that contribution regulation is ‘closely drawn’ to match

18

a ‘sufficiently important interest.’” NCRL, 344 F.3d at

433 (quoting Shrink PAC, 528 US. at 387-88 (quoting

Buckley, 424 U.S. at 25)). This standard has since been

re-affirmed by this Court. McConnell, 124 S. Ct. at 655-

656, 711.

A. Because IEPACs Do Not Contribute to

Candidates, the State Lacks Justification

for Limiting Contributions to Such

Entities.

McConnell also re-affirmed the basis for

distinguishing contributions to JIEPACs from

contributions that may ultimately flow to candidates,

‘independent expenditures may well

provide little assistance to the candidate’s

campaign and indeed may prove

counterproductive. The absence of

prearrangement and coordination of an

expenditure with the candidate .. . not

only undermines the value of the

expenditure to the candidate, but also

‘ alleviates the danger that expenditures

will be given as a quid pro quo for

improper commitments from _ the

candidate.

Id. at 705 (quoting Buckley, 424 U.S. at 47). The Fourth

Circuit used a segment of this precise quote as the

foundation of its distinction. See NCRL, 344 F.3d at 433-

434 (quoting Buckley, 424 U'S. at 47).

19

Because of the diminished potential for

corruption when moneys are spent independently by

third parties, the anti-corruption rationale for

contribution limits evaporates where the money never

reaches the candidate. Hence, when this Court upheld

limits on contributions to multi-candidate PACs,

Justice Blackmun emphasized that the result would be

different if a limit “were applied to contributions to a

political committee established for the purpose of

making independent expenditures.” California Medical

Association v. FEC, 453 U.S. 182, 203 (1981) (Blackmun,

J., concurring). As he explained the distinction,

“[m]ulticandidate political committees are

essentially conduits for contributions to candidates,

and as such ... pose a perceived threat of actual or

potential corruption. In contrast, contributions to a

committee that makes only independent expenditures

pose no such threat.” Id. at 203.

Although no majority decision of this Court has

directly addressed the constitutionality of

contributions to IEPACs, it has struck down limits on

contributions to ballot measure committees because

they lacked the anti-corruption justification that

supported limitations on contributions to candidates.

Citizens Against Rent Control v. City of Berkeley, 454 U.S.

290 (1981). It has also found that there is a

“fundamental constitutional difference between money

spent to advertise one’s views independently of the

candidate’s campaign and money contributed to the

candidate to be spent on his campaign.” FEC v. National

Conservative Political Action Committee, 470 U.S. 499, 497

(1985). This Court has also recognized that

contributions to independent speakers are even less

dangerous than independent speech itself: “an

20

independent expenditure made possible by a $20,000

donation, but controlled and directed by a party rather

than the donor, would seem less likely to corrupt than

the same . . . independent expenditure made directly

by that donor.” Colorado Republican Federal Election

Campaign Commitiee v. FEC, 518 U.S. 604, 617 (1996).

Since these contributions are therefore less threatening

than an activity that this Court has recognized as

posing too little threat of corruption to support

limitation, e.g. McConnell, 124 S. Ct. at 705, the Fourth

Circuit was undoubtably correct in concluding that

_ “the corruptive influence of contributions for

independent expenditures is more novel and

implausible than that posed by contributions to

candidates.” NCRL, 344 F.3d at 434.

Moreover, allowing limits on contributions to

IEPACs would create an illogical discrimination

against those who wish to associate with others to fund

independent expenditures through a committee rather

than as individuals. This Court has recognized the

unconstitutionality of such a scheme in a similar

context because “[t]o place . . . any limit on individuals

wishing to band together . . . while placing none on

individuals acting alone, is clearly a restraint on the

right of association,” which “cannot be allowed to

hobble the collective expressions of a group.” Citizens

Against Rent Control, 454 U.S. at 296. Hence, there can

be no basis for prohibiting persons from pooling $4,001

with others to enable a political committee to run ads

while allowing the individuals each to spend millions

of dollars to run the same ad.

21

B. Political Committees Lack the Close

Relationship to Candidates that

Justified Regulation of Political Parties

and Their Candidates in McConnell.

The state’s petition ignores this Court’s repeated

decisions finding limitations on independent

expenditures to be unsupported by the state’s anti-

corruption interest, and instead seeks “considerable

deference to the legislative effort” to prevent

circumvention of other limitations, citing as an

example McConnell’s upholding of restrictions on state

candidates who run ads supporting or opposing

federal candidates. Cert. Petition at 21.

But the corruptive potential of state candidates

who promote federal candidates is easily distinguished

from that of unaffiliated IEPACs like NCRL-FIPE. First

of all, the federal restrictions on state candidates was

predicated and justified because of the close

relationship between a political party and _ its

candidates. McConnell, 124 S. Ct. at 684. Such parties

and candidates “enjoy a special relationship and unity

of interest” which places parties “in a unique position .

. . to serve as ‘agents for spending on behalf of those

who seek to produce obligated officeholders.’” Id. at

661 (quoting Colorado II, 533 U.S. at 452). This Court

sharply distinguished the “real-world differences

between political parties and interest groups,”

explaining that “[i]nterest groups do not select slates of

candidates for elections. Interest groups do not

determine who will serve on legislative committees,

elect congressional leadership, or organize legislative

caucuses.” Id. at 687. In contrast, “[p]olitical parties

have influence and power in the legislature that vastly

22

exceeds that of any interest group. It is hardly

surprising . . . that parties in turn have special access to

and relationships with federal officeholders.” Id. There

is a good deal of plausibility to the scenario that a

political party with close influence over both federal

and state candidates could facilitate circumvention of

the federal candidate’s contribution limit by funneling

funds to a state candidate who would use them to

finance an ad campaign to aid his partisan compatriot.

Of course, the close relationship between party and

candidate also diminishes the _ risk of

counterproductive ads and increases the likelihood that

the expenditure will be welcomed and rewarded by the

candidate.

Cc. The State Has Not Shown Any Realistic

Threat Of Corruption that May Be

Reduced By Limiting Contributions to

IEPACs

There are also glaring weaknesses in the state’s

evidentiary support for its claims, which consists of a

single episode described in deposition testimony, “an

instance in which an organization known as Farmers

for Fairness threatened . . . that it would run

advertisements against certain vulnerable legislators in

retaliation for votes against the hog industry.” Cert.

Petition at 21-22. Notably, the deponent was not a

member of the legislature and there is nothing to

suggest that the legislature enacted the challenged

statute to address the concerns he raises. In fact, it is

doubtful that the challenged limit would even have

been applicable-Farmers for Fairness established in

prior litigation that it was not a political committee and

did not make regulable expenditures. See Perry v.

23

Bartlett, 231 F.3d 155 (4th Cir. 2000). If anything, this

example serves as confirmation of this Court’s warning

that limitations on expenditures “could not be justified

as a means of avoiding circumvention of contribution

limits” where “its restrictions could easily be evaded.”

McConnell, 124 S. Ct. at 702-703.

The state’s example also fails to show any

triggering of the state’s anti-corruption interest. This

interest encompasses not only guid pro quo exchanges of

money for favors, but also “extend[s] to the broader

threat from politicians too compliant with the wishes of

large contributors.” Id. at 660 (quoting Shrink PAC, 528

U.S. at 389). Here, however, the Farmers group is not

alleged to have offered rewards but to have threatened

opposition. In other words, if the legislators acted

against the interests of hog farmers, Farmers for

Fairness would make communications in agricultural

districts to let hog farmers know about it-a seemingly

reasonable proposition. Such an _ arrangement

necessarily excludes the money-for favors appearances

that justify restraints on contributions that flow to

candidates-the money is being spent against the

wishes of the candidate in a position to grant favors.

Moreover, such a rationale appears to be a thinly-

veiled attempt to insulate incumbents, since they will

normally be the ones in position to ward off the

unwanted campaigns by acceding to the interest

group’s demands. As Justice Breyer has warned, “we

should not defer” if a limit “insulates legislators from

effective electoral challenge.” Shrink PAC, 528 U‘S. at

404 (Breyer, J., concurring).

Additionally, the state’s claims regarding

Farmers For Fairness are not based upon the size of the

24

contributions made to the organization, but to the size

of the expenditures themselves. As such, this evidence

does not support the constitutionality of limits on

contributions to an IEPAC. At most, the anecdote

suggests the type of supposed corruption from

independent expenditures by political committees that

this Court has already rejected because “the absence of

prearrangement and coordination undermines the

value of the expenditure to the candidate, and thereby

alleviates the danger” of corruption. NCPAC, 470 USS.

at 498. Even if there were a danger of corruption from

committees making large expenditures, limits on

contribution to the committees would address the

problem only by starving the committees of funding

for their communications. Such a cure would only give

rise to another disease since this Court has consistently

maintained that contribution limits posed additional

constitutional problems if set so low that they “prevent

. . . political committees from amassing the resources

necessary for effective advocacy.” McConnell, 124 S. Ct.

at 655-656 (quoting Buckley, 424 U.S. at 21). Since

limiting contributions to IEPACs can only address

expenditure-related corruption to the extent that they

prevent such amassment of resources, they cannot be

constitutionally used for this purpose.

In sum, the Fourth Circuit’s decision is fully

consistent with McConnell, and in many aspects is

actually buttressed by the new decision. There is also

no conflict with decisions of other circuits. Rather, the

only other federal court to discuss the constitutionality

of limiting contributions to an IEPAC reached a

consistent result. Lincoln Club of Orange County v. City of

Irvine, 292 F.3d 934 (9th Cir. 2002). s

25

Conclusion

This Court’s recent decision in McConnell does

not undermine the Fourth Circuit’s decision in this

case, but in many regards actually re-affirms the

principles on which the lower court’s decision was

based. There is no “premise that the lower court would

reject if given the opportunity for further

consideration,” and no “reasonable probability” that

“such a redetermination may determine the ultimate

outcome of the litigation,” and hence no reason to

vacate and remand the decision for re-consideration.

See Lawrence, 516 U.S. at 167. The state’s petition

should therefore be denied.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Eric C. Bohnet

JAMES MADISON CENTER FOR

FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (fax: 812/225-3685)

Counsel for Respondents