Motion — Christian Civic League of Maine v. FEC, 127 S. Ct. 336 (2006) (No. 05-1447)

OFFICE CF THE CLERK |

SUPREME COURT, U.S. |

No. 05-1447

In the Supreme Court of the Gnited States

CHRISTIAN CIVIC LEAGUE OF MAINB, INC.,

APPELLANT

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

FOR THE FEDERAL ELECTION COMMISSION

PAUL D. CLEMENT

LAWRENCE H. NORTON Solicitor General

General Counsel Counsel of Record

Associate General Counsel Deputy Solicitor General

DAVID KOLKER MALCOLM L. STEWART

Assistant General Counsel Assistant to the Solicitor

s General

ae J - SUMMERS Department of Justice

orney Washington, D.C. 20530-0001

Federal Election Commission (202) 514-2217

Washington, D.C. 20463

(202) 694-1650

QUESTIONS PRESENTED

1. Whether appellant’s appeal from the denial of a

preliminary injunction is moot.

2. Whether the three-judge district court abused its

discretion in denying appellant’s request for a

preliminary injunction against en’orcement of the

federal statutory prohibition on the use of corporate

treasury funds to finance “electioneering communi-

cations.”

(1)

TABLE OF CONTENTS

Page

RR pe ee OG Rene ME Pe OY ye ae 1

MIN Sos ey Cowes t g ows Bome ue aces Rea ae 1

PRIN 2 CNC ia seat kaa'y cw RACE COS VEST ONL ke aeees 1

ET EN eee eT eee ry Ee eT eee ee Tore 13

SINR 553% c pa diewuaahek day peek Rann beha a wean 26

TABLE OF AUTHORITIES

Cases:

Austin v. Michigan Chamber of Commerce,

I eee ORE a disk hack WA cena Mieek 6

Bowen v. Kendrick, 483 U.S. 1304 (1987) .............. 25

Buckley v. Valeo, 424 U.S. 1 (1976) ...............0085- 4

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ......... 17

FEC v. Beaumont, 539 U.S. 146 (2008) ............... 3,6

FEC v. Massachusetts Citizens for Life, Inc.,

ee Rak, ID Bis era neae kk eaten ceca 3, 4

FEC v. National Right to Work Comm., 459 U.S. 197

Raia 's a ANAS RAS BON REO ee oa a Oka 3

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) ........ 15

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), fac., SHB US. 167 GOOG) oo csi essen 14

Gonzales v. O Centro Espirita Beneficente Uniao Do

WOON, 10 TT TELE OD ov cas canveadaeaass 17

Lewis v. Continental Bank Corp., 494 U.S. 472

CRUE in 55 Gh ach eed ee ale kaka Pers on Gane es 13, 15

(III)

IV

Cases—Continued: Page

McConnell v. FEC:

SP RAs MOOD ok Sikc a Sha see ek cee ees passim

251 F. Supp. 2d 176(D.D.C. BOOB)... ence ices 19

Murphy v. Hunt, 455 U.S. 478 (1982) ................. 15

North Carolina v. Rice, 404 U.S. 244 (1971) ........... 14

Pipefitters Local Union No. 562 v. United States,

Pe Ws aa ATE soo 5558 Soe Ree RN a 3

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498

PER ca hake erga cakk Wan aciks ceecuece tas, caene 15

University of Tex. v. Camenisch, 451 U.S. 390 (1981) ... 18

Walters v. National Ass’n of Radiation Survivors,

MS 5a A GR ok hee Rs es a 18

Weinstein v. Bradford, 423 U.S. 147 (1975) ............ 15

Wisconsin Right to Life, Inc. v. FEC:

Ee ice Be Ie aaa ba eee ay kes eed 18

Se rar 5 ee ED i cke's bch we eeaeee lentes 2, 7, 20

Constitution, statutes, regulation and rule:

Rises VN AU Ba x ho See ae ois censor kee 21

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81:

§ 201, 116 Stat. 88 (2 U.S.C. 434 (Supp. ITI 2003)) . 21

§ 201(a):

116 Stat. 88 (2 U.S.C. 434 (gp (AC) (Supp. III

| a Sey ee ey erty tee ha rg ren 5

116 Stat. 89-90 (2 U.S.C. 434(f)(3)(B)(i)-{iv)

URE CEE ES bach Sdaeicabncedaeeres 6

V

Statutes, regulation and rule—Continued: Page

§ 203, 116 Stat. 91-92 (2 U.S.C. 441b(b)(2)

COON RUE NID 85 60k bp SvkR Ss Cea kek ns passim

§ 403, 116 Stat. 113 (2 U.S.C. 437h (Supp. III

EN ae Ol ye ew bey aguante <'s ones Ged 15

§ 403(a)(1), 116 Stat. 114 (2 U.S.C. 437h note

PE SER TE hc hkca wane aww a aN aah acd 10

Federal Election Campaign Act of 1971, 2 U.S.C. 431-

Rp UP go REG: | 2

REIN seo 55 eb owed Oh obs oni e awe 4

8 aE 1 os Sareea eae Pree ane 4

Ae ED KCK SRA Rs SA hah een ae eevee awe 2

ARE ey IED chow eaaek ake tatadnnsaae aie 2

REE, 2100 c's bogs bo kw a ord eee Reams 2

REE Sa OMA Bacegs dé dai or sb es vane Pana’ 2

2 U.S.C. 438(a)(8) (2000 & Supp. IIT 2008) ......... 2

RS ER itch te da ecg atk oaks cote e meso 2

2 U.S.C. 441a(a)(1)(C) (2000 & Supp. III 2003) ... 23

REED NER NUS ea ios Ay ck ose dtd wee 3,4

SE Re Cu ct Rica eS cakncec gaa koe 3

DR EE oS ees a, cue skweied an wake aes 5

2 U.S.C. 441b(b)(2) (2000 & Supp. III 2003) ....... 5

2 U.S.C. 441b(b)(Z)(C) (2000 & Supp. ITT 2003) ... 3, 6

BD ALAe nee SEEM) si kc ch wa sae dv scnasscas 3

Internai Revenue Code, 26 U.S.C. 501(ce)(4) ............ &

VI

Regulation and rule—Continued: Page

BEANE es REG aa oak oom CRRA awd KoKRS Coa eens 4,8

PN ae Fs FR 6 vA AN OVEE KAA dag in Deen eee 25

Miscellaneous:

152 Cong. Rec. $5534 (daily ed. June 7, 2006) .......... 12

In the Supreme Court of the Enited States

No. 05-1447

CHRISTIAN CIVIC LEAGUE OF MAINE, INC.,

APPELLANT

U.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

FOR THE FEDERAL ELECTION COMMISSION

OPINION BELOW

The opinion of the three-judge district court (J.S.

App. la-13a) is reported at 433 F. Supp. 2d 81.

JURISDICTION

The decision of the three-judge district court was

filed on May 9, 2006. A notice of appeal and the jurisdic-

tional statement were filed on May 12, 2006. The juris-

diction of this Court is invoked under 28 U.S.C. 1253.

STATEMENT

This case concerns the “electioneering communica-

tion” provision of the Bipartisan Campaign Reform Act

of 2002 (BCRA), Pub. L. No. 107-155, § 208, 116 Stat. 91-

(1)

2

92. The provision prohibits corporations from using

their general treasury funds to pay for any “electioneer-

ing communication,”defined as a communication that

refers to a candidate for federal office and is broadcast

within 30 days of a federal primary election or 60 days

of a federal general election in the jurisdiction in which

that candidate is running. BCRA § 203, 2 U.S.C.

441b(b)(2) (Supp. III 2003). This Court has sustained

BCRA § 208 against a facial constitutional challenge, see

McConnell v. FEC, 540 U.S. 93, 203-209 (2003), but has

held that the provision is subject to as-applied chal-

lenges, see Wisconsin Right to Life, Inc. v. FEC, 1268.

Ct. 1016, 1018 (2006) (WRTL) (per curiam). Appellant

filed suit in federal district court, arguing that BCRA’s

restrictions on the financing of “electioneering communi-

cations” are unconstitutional as applied to appellant’s

own broadcast advertisements. The three-judge district

court denied appellant’s request for preliminary injunc-

tive relief. J.S. App. la-13a.

1. The Federal Election Commission (Commission or

FEC) is vested with statutory authority over the admin-

istration, interpretation, and civil enforcement of the

Federal Election Campaign Act of 1971 (FECA),

2 U.S.C. 431-455 (2000 & Supp. III 2003), and other fed-

eral campaign-finance statutes. See J.S. App. 2a. The

Commission is empowered to “formulate policy” with

respect to the FECA, 2 U.S.C. 487c(b)(1); “to make,

amend, and repeal such rules * * * as are necessary to

carry out the provisions of [the] Act,” 2 U.S.C.

437d(a)(8), 438(a)(8) and (d) (2000 & Supp. III 2003); and

to issue written advisory opinions concerning the appli-

cation of the Act and Commission regulations to any

specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 437f.

3

2. a. Federal law has long prohibited both for-profit

and nonprofit corporations from using their general

treasury funds to finance contributions and expendi-

tures in connection with federal elections. See FEC v.

Beaumont, 539 U.S. 146, 152-154 (2003). The FECA

makes it “unlawful * * * for any corporation whatever

* * * to make a contribution or expenditure in connec-

tion with any election” for federal office. 2 U.S.C.

441b(a). However, the FECA permits a corporation to

establish a “separate segregated fund,” commonly called

a political action committee or PAC, to finance those

disbursements. 2 U.S.C. 441b(b)(2)(C) (2000 & Supp.

III 2003). The fund “may be completely controlled” by

the corporation, and it is “separate” from the corpora-

tion “‘only in the sense that there must be a strict segre-

gation of its monies’ from the corporation’s other as-

sets.” FEC v. National Right to Work Comm., 459 U.S.

197, 200 n.4 (1982) (quoting Pipefitters Local Union No.

562 v. United States, 407 U.S. 385, 414 (1972)). The fund

may solicit and accept donations voluntarily made for

political purposes by the corporation’s stockholders or

members and its employees, and the families of those

individuals. 2 U.S.C. 441b(b)(4)(A)-(C). The money in

a corporation’s separate segregated fund can be contrib-

uted directly to candidates for federal office, and it may

be used to pay for independent expenditures to commu-

nicate to the general public the corporation’s views on

such candidates.

In FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) (MCF L), this Court held that Sec-

tion 441b’s prohibition on the use of corporate treasury

funds to finance independent expenditures for

campaign-related speech could not constitutionally be

applied to a corporation that (1) was “formed for the

4

express purpose of promoting political ideas, and cannot

engage in business activities”; (2) had “no shareholders

or other persons affiliated so as to have a claim on its

assets or earnings”; and (3) “was not established by a

business corporation or a labor union, and [had a] policy

not to accept contributions from such entities.” /d. at

264; see McConnell, 540 U.S. at 210; 11 C.F.R. 114.10

(implementing the MCFL exception). Corporations pos-

sessing the characteristics identified in that case are

commonly referred to as “MCFL organizations.” See,

e.g., McConnell, 540 U.S. at 210.

The Court in MCFL also adopted a narrowing con-

struction of 2 U.S.C. 441b even as applied to corporate

entities that do not qualify as MCFL organizations. In

interpreting Section 441b’s prohibition of corporate

“expenditure[s],” the Court noted that the FECA defini-

tion of “expenditure” encompassed “the provision of

anything of value made ‘for the purpose of influencing

any election for Federal office.” MCFL, 479 U.S. at

245-246 (quoting 2 U.S.C. 431(9)(A)(i)) (emphasis omit-

ted). To avoid problems of vagueness and overbreadth,

the Court construed Section 441b’s prohibition of inde-

pendent expenditures from corporate treasuries to

reach only the financing of communications that ex-

pressly advocate the election or defeat of a clearly iden-

tified candidate. Jd. at 248-249; see 2 U.S.C. 431(17)

(pre-BCRA law). The Court had previously introduced

the concept of express advocacy in Buckley v. Valeo,

424 U.S. 1, 43-44, 77-80 (1976), when it narrowly con-

strued other FECA provisions regulating independent

campaign expenditures. Buckley provided examples of

words of express advocacy, such as “vote for,” “elect,”

“support,” “defeat,” and “reject.” Jd. at 44 n.52.

5

b. Based on its assessment of evolving federal cam-

paign practices, Congress subsequently determined

that, “[w]Jhile the distinction between ‘issue’ and express

advocacy seemed neat in theory, the two categories of

advertisements proved functionally identical in impor-

tant respects.” McConnell, 540 U.S. at 126. In the wake

of Buckley, corporations and labor unions crafted politi-

cal communications that avoided the so-called magic

words of express electoral advocacy and financed those

communications with “hundreds of millions of dollars”

from their general treasuries. /d. at 127. Indeed, even

the advertisements aired by federal candidates them-

selves rarely included express exhortations to vote for

or against a particular candidate. See id. at 127 & n.18,

193 & n.77. “(T]he conclusion that such ads were specifi-

cally intended to affect election results was confirmed

by the fact that almost all of them aired in the 60 days

immediately preceding a federal election.” Jd. at 127.

“Congress enacted BCRA to correct the flaws it

found in the existing system.” McConnell, 540 U.S. at

194. BCRA § 203 amended 2 U.S.C. 441b(b) to bar any

corporation or union from paying for an “electioneering

communication” with money from its general treasury.

2 U.S.C. 441b(b)(2) (2000 & Supp. III 2003). The term

“electioneering communication” is defined in pertinent

part as a “broadcast, cable, or satellite communication”

that (1) refers to a clearly identified candidate for fed-

eral office; (2) is made within 60 days before a general

election, or within 30 days before a primary election for

the office sought by the candidate; and (8) is “targeted

to the relevant electorate.” BCRA § 201(a), 116 Stat. 88

6

(2 U.S.C. 434(f)(3)(A)(i) (Supp. ITI 2008)).' The prohibi-

tion on the use of corporate funds for electioneering

communications does not apply to “MCFL organiza-

tions.” See McConnell, 540 U.S. at 209-211. A corpora-

tion or union remains free, moreover, to establish a sep-

arate segregated fund and to pay for any electioneering

communications that it would like from that fund. See

2 U.S.C. 441b(b)(2)(C) (2000 & Supp. ITI 2003).

3. In McConnell, this Court upheld against a facial

constitutional challenge BCRA § 203’s ban on the use of

corporate or union treasury funds for electioneering

communications. See 540 U.S. at 203-209. The Court

observed that, “[bJecause corporations can still fund

electioneering communications with PAC money, it is

‘simply wrong’ to view [BCRA § 203] as a ‘complete ban’

on expression rather than a regulation.” /d. at 204

(quoting Beaumont, 539 U.S. at 162); see Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 658

(1990). “The PAC option allows corporate political par-

ticipation without the temptation to use corporate funds

for political influence, quite possibly at odds with the

sentiments of some shareholders or members.”

McConnell, 540 U.S. at 204 (quoting Beawmont, 539 U.S.

' BCRA excludes from the definition of “electioneering communica-

tion” “(i) a communication appearing in a news story, commentary, or

editorial distributed through” a broadcasting station; (ii) a communica-

tion that is an expenditure or independent expenditure under the

Federal Election Campaign Act; (iii) a candidate debate or forum; and

(iv) any other communications the Commission exempts by regulation,

consistent with certain requirements. BCRA § 201(a), 2 U.S.C.

434(f(3)(B)i)-{iv) (Supp. III 2003). The definition also does not

encompass print communications such as billboards, newspaper and

magazine advertisements, brochures, and handbills, and it does not

cover telephone or Internet communications. See McConnell, 540 US.

at 207.

7

at 163). The Court also noted that its campaign-finance

jurisprudence reflects “respect for the legislative judg-

ment that the special characteristics of the corporate

structure require particularly careful regulation.” /d. at

205 (citations and internal quotation marks omitted).

The Court in McConnell further held that the com-

pelling governmental interests that support the require-

ment that corporations finance express advocacy

through a PAC apply equally to corporate financing of

electioneering communications. 540 U.S. at 206. Based

on its examination of the record before the district

court, the Court concluded that the “vast majority” of

prior advertisements encompassed by BCRA’s definition

of the term “electioneering communications” were in-

tended to influence electoral outcomes. /bid. The Court

further observed that, “whatever the precise percentage

may have been in the past, in the future corporations

and unions may finance genuine issue ads during those

timeframes by simply avoiding any specific reference to

federal candidates, or in doubtful cases by paying for the

ad from a segregated fund.” /bid.

4. In Wisconsin Right to Life, inc. v. FEC, 126 S. Ct.

1016 (2006) (WRTL) (per curiam), this Court considered

an as-applied constitutional challenge to BCRA § 203’s

prohibition on the use of corporate treasury funds to

finance electioneering communications. The three-judge

district court in WRTL had construed this Court’s deci-

sion in McConmell as foreclosing all such as-applied

challenges. /d. at 1017-1018. This Court vacated the

judgment of the district court, stating that McConnell

“did not purport to resolve future as-applied challenges”

to BCRA § 208. /d. at 1018. The Court remanded the

case to the district court to consider the merits of the

plaintiff corporation’s as-applied challenge in the first

8

instance. /bid. That case is currently pending before

the three-judge district court.”

5. Appellant Christian Civic League of Maine, Inc.,

is a nonprofit, nonstock Maine corporation. J.S. App. la.

Appellant’s complaint asserts that it is tax-exempt un-

der Section 50I(c)(4) of the Internal Revenue Code (26

U.S.C.), and that it is interested in “laws protecting tra-

ditional marriage” and other public issues. Compl.

paras. 16, 20; see J.S. App. la. Appellant asserts that it

does not qualify for any exception that would permit it

to finance electioneering communications with corporate

funds, alleging in particular that it is not a “qualified

nonprofit corporation” under 11 C.F.R. 114.10, which

implements the MCFL exception. Compl. para. 22.

Appellant’s complaint in the instant case was filed on

April 3, 2006. Appellant alleged that it planned to runa

particular radio advertisement “between May 10 and

early June.” Compl. paras. 11, 13. The text of the ad-

vertisement (known as the “Crossroads” advertisement)

is as follows:

Our country stands at the crossroads—at the inter-

seetion of how marriage will be defined for future

generations. Marriage between a man and a woman

* After this Court’s remand in WRTL, the district court on April 17,

2006, set a schedule for expedited discovery and briefing. Discovery

lasted approximately two months, including depositions of the defen-

dants’ expert witnesses, although a motion to compel is currently

pending before the court. Summary judgment briefing will be

completed by August 18, 2006, and oral argument in the district court

is scheduled for September 18, 2006. In its April 17 scheduling order,

the district court also ordered the parties to address what “live

controversy” the court must adjudicate on remand, and the parties filed

memoranda in response on May 1, 2006.

9

has been challenged across this country and could be

declared unconstitutional at any time by rogue

judges. We must safeguard the traditional definition

of marriage by putting it beyond the reach of all

judges—by writing it into the U.S. Constitution. Un-

fortunately, your senators voted against the Mar-

riage Protection Amendment two years ago. Please

call Sens. Snowe and Collins immediately and urge

them to support the Marriage Protection Amend-

ment when it comes to a vote in early June. Call the

Capitol switchboard at 202-224-3121 and ask for your

senators. Again, that’s 202-224-3121. Thank you for -

making your voice heard.

J.S. App. la-2a. Because “Senator Snowe [was] a candi-

date in a primary election scheduled for June 13, 2006,”

id. at 2a, the effect of specifically mentioning Senator

Snowe under BCRA’s electioneering-communications

provisions was that the advertisement in question could

not be financed with appellant’s treasury funds if it was

broadcast in Maine between May 14 and June 13, 2006.

The complaint in this case further alleged that appel-

lant “intends to run materially similar grass-roots lobby-

ing ads * * * when there are pending matters in the

legislative or executive branch that similarly require

referencing a clearly identified candidate for federal

office in broadcast communications to the citizens of

Maine.” Compl. para. 16. Appellant alleged that it “is

concerned about a range of issues * * * that regularly

have and will become issues in the legislative and execu-

tive branch.” Jbid. Appellant alleged that, “[blecause

the legislative and executive branches often deal with

important legislative and executive branch issues in the

periods before elections, there is a strong likelihood that

[appellant’s] need to broadcast grass-roots lobbying ads

10

will again coincide with the electioneering communica-

tions blackout periods.” /bid. Appellant sought prelimi-

nary and permanent injunctive relief against enforce-

ment of BCRA § 203 with respect to both the specific

advertisement referenced in the complaint and any

other “electioneering communications by [appellant]

that constitute grass-roots lobbying.” Compl. 13. A

three-judge district court was convened pursuant to

BCRA § 403(a)(1), 116 Stat. 114.

6. On May 9, 2006, the district court denied appel-

lant’s request for a preliminary injunction against en-

forcement of BCRA’s restrictions on the financing of the

“Crossroads” advertisement. J.S. App. la-15a.* The

court concluded that “each of the four preliminary in-

junction factors counsels against the grant of the re-

quested injunction.” /d. at 8a.

In holding that appellant had failed to establish a

likelihood of success on the merits, the district court

observed that BCRA “does not bar the proposed adver-

tisement; it only requires that [appellant] fund it

through a political action committee.” J.S. App. 9a. The

court found that the “ability to form and administer sep-

* Ina footnote, the district court observed that appellant’s request

for a preliminary injunction extended beyond the “Crossroads”

advertisement to “encompass ‘any electioneering communications by

[appellant] that constitute grass-roots lobbying.” J.S. App. 3a n. 1

(quoting Compl. 13). The court observed, however, that appellant had

“fail[ed] to define ‘grassroots lobbying’ (other than as including its

proposed advertisement) or to identify any necessity for the application

of such a broader injunction.” Jbid. The court concluded on that basis

that appellant's “request for the broader preliminary injunction [was]

unwarranted.” /bid. The remainder of the court’s opinion therefore

addressed appellant's request for preliminary injunctive relief only

insofar as that request pertained to the “Crossroads” advertisement.

See ibid.

11

arate segregated funds... . has provided corporations .

.. with a constitutionally sufficient opportunity to en-

gage in express advocacy.” /bid. (quoting McConnell,

540 U.S. at 203). The court further explained that appel-

lant could have financed the advertisement with corpo-

rate treasury funds if it had used a non-broadeast me-

dium or had refrained from clearly identifying Senator

Snowe. See ibid.

The district court also noted that appellant’s adver-

tisement

appears to be functionally equivalent to the sham

issue advertisements identified in McConnell. * * *

[T]he advertisement might have the effect of encour-

aging a new candidate to oppose Senator Snowe, re-

ducing the number of votes cast for her in the pri-

mary, weakening her support in the general election,

or otherwise undermining her efforts to gather such

support, including by raising funds for her reelec-

tion.

J.S. App. 10a (citation omitted). The court observed

that a newsletter published by appellant had “already

sounded an enthusiastic note regarding a potential chal-

lenger to Senator Snowe.” /bid. In addition, the court

concluded that appellant’s proposed “grassroots lobby-

ing” exception to the coverage of BCRA § 203 “would

seriously impair the government’s compelling interest in

protecting the integrity of the electoral process” be-

cause “candidates or their allies could easily schedule an

issue for ‘legislative consideration’ during the run-up to

an election as a pretext for broadcasting a particular

subliminal electoral advocacy advertisement.” Jd. at

10a-1la.

12

The district court also held that appellant had failed

to demonstrate that it would suffer irreparable harm

absent a preliminary injunction because, notwithstand-

ing BCRA’s restrictions on “electioneering communica-

tions,” the various alternative means the court had de-

scribed were available for communicating appellant’s

views concerning the Marriage Protection Amendment.

J.S. App. lla. The court further concluded that issuance

of the requested preliminary injunction would substan-

tially injure the Commission and would disserve the

compelling public interest in the enforcement of BCRA.

Id. at 12a-13a.

7. On May 12, 2006, appellant filed a jurisdictional

statement in this Court and moved for expedited dispo-

sition of its appeal. In its Motion to Expedite and Con-

solidate Briefing (Mot. to Expedite), appellant stated

that a Senate vote on the Marriage Protection Amend-

ment was expected to ozcur “on or about June 5, 2006.”

Id. at 2. The motion further stated that appellant “only

wants to run the [‘Crossroads’] ad until the vote occurs

and not thereafter.” /bid. The FEC opposed that mo-

tion, arguing that expedited consideration was unwar-

ranted even though “the question whether the district

court should have issued a preliminary injunction is

likely to become moot before the Court can resolve the

merits of [appellant’s] current appeal.” FEC Opp. to

Mot. to Expedite 5.

On May 15, 2006, this Court denied appellant’s mo-

tion to expedite the appeal. 126 S. Ct. 2062. On June 7,

2006, a vote to invoke cloture on the proposed Marriage

Protection Amendment failed in the United States Sen-

ate, effectively terminating Senate consideration of the

measure. See 152 Cong. Rec. $5534 (daily ed).

13

8. Since May 15, 2006, the parties have, inter alia,

filed a joint report and memoranda about how the case

should proceed before the district court, including vari-

ous scheduling and discovery proposals. Although ap-

pellant moved that proceedings in the district court be

held in abeyance pending this Court’s disposition of the

jurisdictional statement, the district:court denied that

_ motion. The Commission subsequently answered appel-

lant’s complaint regarding the “Crossroads” advertise-

ment and moved to dismiss appellant’s claims concern-

ing future, hypothetical “grassroots lobbying.” The

intervenors moved for partial judgment on the plead-

ings. On June 23, 2006, the court stayed discovery, set

a schedule for addressing jurisdictional issues, and or-

dered the parties to address the question whether the

“Crossroads” portion of the case is moot. A hearing on

the jurisdictional questions was held on August 8, 2006.

ARGUMENT

Appellant challenges the district court’s denial of a

preliminary injunction, arguing that BCRA § 203’s ban

on the use of corporate treasury funds to finance “elec-

tioneering communications” is unconstitutional as ap-

plied to the “Crossroads” advertisement and to “genuine

grassroots lobbying generally.” See J.S. i. Because ap-

pellant’s request for a preliminary injunction is now

moot, the appeal should be dismissed. In the alterna-

tive, the judgment of the district court denying a prelim-

inary injunction should be affirmed.

1. a. “Under Article III of the Constitution, federal

courts may adjudicate only actual, ongoing cases or con-

troversies.” Lewis v. Continental Bank Corp., 494 U.S.

472, 477 (1990). Because appellant previously disavowed

any intent to broadcast the “Crossroads” advertisement

14

after the Senate vote on the Marriage Protection

Amendment, and that vote has now occurred, the ques-

tion whether the district court abused its discretion in

denying preliminary injunctive relief with respect to the

“Crossroads” advertisement is moot and is therefore no

longer suitable for judicial resolution. See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.

167, 180 (2000) (“Constitution’s case-or-controversy limi-

tation on federal judicial authority, Art. III, § 2, under-

pins * * * [this Court’s] mootness jurisprudence.”).

“Article III denies federal courts the power ‘to decide

questions that cannot affect the rights of litigants in the

ease before them.’” Lewis, 494 U.S. at 477 (quoting

North Carolina v. Rice, 404 U.S. 244, 246 (1971)). “This

case-or-controversy requirement subsists through all

stages of federal judicial proceedings, trial and appel-

late. To sustain [this Court’s] jurisdiction * * * itis

not enough that a dispute was very much alive when suit

was filed, or when review was obtained in the Court of

Appeals.” Jd. at 477-478.

In moving for expedited consideration of its appeal,

appellant specifically represented to this Court that a

Senate vote on the proposed Marriage Protection

Amendment was expected in early June and that appel-

lant “only wants to run the [‘Crossroads’] ad until the

vote occurs and not thereafter.” Mot. to Expedite 2.

The Senate has now terminated its consideration of the

Marriage Protection Amendment, and no subsequent

Senate vote on that measure is expected to occur in the

foreseeable future. And because appellant chose not to

run the “Crossroads” advertisement during the 30-day

period before the June Senate primary election in

Maine, it is not subject to any potential future Commis-

sion enforcement action whose validity might turn on the

15

determination whether BCRA’s financing restrictions

are constitutional as applied to that advertisement. Ac-

cordingly, appellant’s request for a preliminary injunc-

tion against FEC enforcement of BCRA § 203 with re-

spect to the “Crossroads” advertisement at issue in this

case is no longer the subject of a live controversy.

b. This Court has recognized an exception to

mootness principles for disputes that are “capable of

repetition, yet evading review.” See Southern Pac. Ter-

minal Co. v. ICC, 219 U.S. 498, 515 (1911). The Court

has applied that exception, however, only when “(1) the

challenged action [is] in its duration too short to be fully

litigated prior to its cessation or expiration, and (2)

there was a reasonable expectation that the same com-

plaining party would be subjected to the same action

again.” Lewis, 494 U.S. at 481 (internal citation omit-

ted) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

For an alleged wrong to be considered “capable of repe-

tition,” “there must be a ‘reasonable expectation’ or a

‘demonstrated probability’ that the same controversy

will recur involving the same complaining party.”

Murphy, 455 U.S. at 482 (quoting Weinstein v. Brad-

ford, 423 U.S. 147, 149 (1975)). Accord, e.g., First Nat'l

Bank v. Bellotti, 435 U.S. 765, 774 (1978).

That exception provides no basis for this Court to

review the district court’s denial of preliminary injunc-

tive relief in this case. Appellant’s request for a perma-

nent injunction against enforcement of BCRA § 203’s

financing restrictions is currently pending before the

district court, which is required by BCRA § 403, 116

Stat. 113, to give expedited consideration to appellant’s

constitutional challenge. If appellant can establish a live

controversy as to its request for a permanent injunc-

tion—.e., if appellant can demonstrate a likelihood that

16

it will again seek to finance the “Crossroads” advertise-

ment during the 30- or 60-day period before a Maine

election in which Senator Snowe or Senator Collins is a

candidate—then it presumably may obtain a district

court ruling on the merits of its constitutional challenge,

subject to review by this Court.

Thus, if the current dispute is indeed capable of repe-

tition, there is no reason to suppose that it will evade

review. On appeal from a final judgment, moreover, the

question of BCRA § 203’s constitutionality as applied to

the “Crossroads” advertisement would be squarely pre-

sented, without regard to the other factors that bear on

the propriety of the district court’s denial of temporary

relief.’ And if petitioner cannot establish a sufficient

* If this Court were to note probable jurisdiction over appellant's

current appeal, its consideration of the underlying constitutional

question could be complicated by the applicability of an abuse-of-

discretion standard; by the need to consider the additional factors that

supported the district court’s denial of preliminary relief; and by the

inadequacy of the evidentiary record that was before the district court

at the time that court denied preliminary relief. As the government

explained in the district court and in our opposition to appellant’s

motion to expedite the appeal, the Commission seeks to compile a

record addressing a narrow range of topics concerning the purpose and

likely effect of appellant’s planned advertisement, such as the organiza-

tion’s decision about where, when, and how to run the advertisement;

appellant’s prior use of broadcast and other media for its public

communications; the relationship between matters raised in the

“Crossroads” advertisement and Senator Snowe’s candidacy for

reelection; and appellant’s prior expressions of support for or opposi-

tion to Senator Snowe. In addition, the Commission may seek expert

testimony as to the likely effect of appellant’s advertisement in Maine's

electoral climate, the importance of identifying office holders in

rrassroots lobbying advertisements, and whether a grassroots lobbying

ex» mption like the one appellant now seeks would likely enable political

consultants to craft electioneering advertisements that would circum-

| |

17

likelihood that it will again seek to broadcast the

“Crossroads” advertisement in circumstances that ren-

der BCRA § 208 applicable, it cannot invoke the “capa-

ble of repetition, yet evading review” exception to

mootness principles in any event.

c. The mootness defect is not an unforeseen develop-

ment. In its opposition to appellant’s extraordinary re-

quest for expedited review, the FEC explained that de-

nial of that request would likely result in appellant’s

appeal of the denial of preliminary injunctive relief be-

coming moot before the Court could resolve the merits

of that appeal. See FEC Opp. to Mot. to Expedite 5.

2. If the Court concludes that this appeal is not

moot, it should affirm the three-judge district court’s

order denying appellant’s request for a preliminary in-

junction. In determining whether to issue a preliminary

injunction, a district court considers the plaintiff’s likeli-

hood of success on the merits, whether the plaintiff will

suffer irreparable injury in the absence of an injunction,

the prospect of injury to other parties if an injunction is

entered, and the public interest in granting or withhold-

ing temporary relief. J.S. App. 7a-8a; see Doran v. Sa-

lem Inn, Inc., 422 U.S. 922, 931 (1975). This Court re-

views the district court’s application of the preliminary-

injunction factors under an abuse-of-discretion stan-

dard. See id. at 931-932; Gonzales v. O Centro Espirita

_ Beneficente Uniao Do Vegetal, 126 S. Ct. 1211, 1219

(2006). The district court correctly held that “each of

the four preliminary injunction factors counsels against

the grant of the requested injunction.” J.S. App. 8a. At

vent regulation during the “electioneering communication” periods

detined by the Act. Factual development with respect to such consider-

ations could be important to the ultimate disposition of appellant’s as-

applied challenge.

18

a bare minimum, the district court did not abuse its dis-

cretion in concluding that interim relief was unwar-

ranted.

a. In contending that the district court abused its

discretion by denying preliminary injunctive relief

against enforcement of BCRA § 203, appellant bears a

particularly heavy burden. Appellant’s effort to alter

the status quo by seeking an exemption from BCRA’s

coverage is contrary to the established principle that

“(t]he purpose of a preliminary injunction is merely to

preserve the relative positions of the parties until a trial

on the merits can be held.” University of Tex. v.

Camenisch, 451 U.S. 390, 395 (1981). In addition, this

Court’s holding in McConnell that BCRA § 203 is consti-

tutional on its face greatly strengthens “(t]he presump-

tion of constitutionality which attaches to every Act of

Congress.” Walters v. National Ass’n of Radiation

Survivors, 468 U.S. 1323, 1824 (1984) (Rehnquist, J., in

chambers). In denying an injunction pending appeal

against enforcement of BCRA with respect to a particu-

lar set of political advertisements, Chief Justice

Rehnquist recently explained that “[a]n injunction pend-

ing appeal barring the enforcement of an Act of Con-

gress would be an extraordinary remedy, particularly

when this Court recently held BCRA facially constitu-

tional.” Wisconsin Right to Life, Inc. v. FEC, 542 U.S.

1305, 1305-1306 (2004) (in chambers) (citing McConnell,

540 U.S. at 189-210).

b. As the district court correctly held (J.S. App. 8a-

lla), appellant is not likely to succeed on the merits of

its contention that BCRA § 203 is unconstitutional as

applied to the “Crossroads” advertisement.

i. The fact that the “Crossroads” advertisement is

phrased as a request that citizens contact their repre-

19

sentatives to express a view on a pending legislative

matter does not insulate the advertisement from

BCRA’s “electioneering communications” provision. In

discussing the sorts of pre-BCRA advertisements that

were intended to influence federal elections but avoided

words of express advocacy, the Court in McConnell ob-

served that “(little difference existed * * * 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.’” 540 U.S. at 126-127. The Court

thus treated an appeal to citizens to contact their elected

representative, when targeted to the relevant electorate

and issued during the 30- and 60-day periods preceding

federal primary and general elections, as a paradig-

matic example of the advertisements that BCRA’s

“electioneering communication” provisions were in-

tended to address. The record before the district court

in McConnell likewise reflected the understanding of

current and former Members of Congress that such ad-

vertisements were routinely used to influence electoral

outcomes. See, e.g., McConnell v. FEC, 251 F. Supp. 2d

176, 532-533 (D.D.C. 2003) (Kollar-Kotelly, J.).

Moreover, Congress specifically opted for a bright-

line definition of “electioneering communication” that

would give speakers clear notice of what, communica-

tions must be funded through a separate segregated

account. That definition avoids the sort of intractable

line-drawing that a less determinate standard would

require. It is undisputed that the “Crossroads” adver-

tisement falls within the Act’s definition of an “election-

eering communication.”

ii. In upholding BCRA § 208 against a facial consti-

tutional attack, the Court in McConnell explained that

20

corporations and unions could “finance genuine issue ads

during [pre-election] time-frames by simply avoiding

any specific reference to federal candidates, or in doubt-

ful cases by paying for the ad from a segregated fund.”

540 U.S. at 206. In the instant case, the district court

relied in part upon the existence of those alternatives in

concluding that appellant was unlikely to prevail on the

merits of its as-applied challenge. See J.S. App. 9a.

Appellant contends (J.S. 26) that this aspect of the dis-

trict court’s analysis “ignores the plain implication of”

WRTL. Appellant’s reliance on WRTL is misplaced.

The Court in WRTL held only that as-applied challenges

to BCRA § 208 are not categorically precluded by

McConnell. See 126 8. Ct. at 1018. The Court did not

define the circumstances, if any, under which such chal-

lenges could succeed, but instead remanded the case to

the district court to consider the merits of WRTL’s con-

stitutional claim in the first instance. See ibid.

iii. In concluding that appellant was unlikely to pre-

vail on the merits of its constitutional claim, the district

court did not simply rely on this Court’s holding in

McConnell that BCRA § 208 is constitutional on its face.

Rather, the court examined the specific advertisement

that appellant proposed to run and concluded that the

“Crossroads” advertisement “appears to be functionally

equivalent to the sham issue advertisements identified

in McConnell.” J.S. App. 10a. The district court ex-

plained that “[appellant’s] advertisement—which char-

acterizes Senator Snowe’s past stance on the Marriage

Protection Amendment as ‘{u]nfortunate|]’—is the sort

of veiled attack that [this] Court has warned may im-

properly influence an election.” /bid. (citing McConnell,

540 U.S. at 126-127). The district court observed that

“the advertisement might have the effect of encouraging

21

a new candidate to oppose Senator Snowe [or] reducing

the number of votes cast for her in the primary.” /bid.

The court noted as well that appellant’s newsletter had

previously “sounded an enthusiastic note regarding a

potential challenger to Senator Snowe.” bid.”

iv. BCRA §§ 201 and 208 establish a bright-line, ob-

jective standard for identifying the broadcast communi-

cations that are subject to the Act’s financing restric-

tions. That clarity serves compelling governmental in-

terests and was critical to the Court’s upholding of the

restriction against the First Amendment challenge. See

McConnell, 540 U.S. at 194. Appellant’s approach, by

contrast, would reintroduce the indeterminacy that Con-

gress and this Court have sought to dispel. -

In support of its contention (J.S. 25) that the “Cross-

roads” advertisement is “not express advocacy or its

functional equivalent,” appellant identifies (J.S. 25-26)

several aspects of the advertisement’s text. Appellant

does not explain, however, whether it views all of those

factors as necessary to establish entitlement to a consti-

tutional exemption from BCRA’s coverage, or how or

whether the factors should be weighed against each

other. And while appellant asserts (J.S. 24 n.12) that

° The “Crossroads” advertisement's characterization of Senator

Snowe’s prior vote as “(u}nfortunate||” renders it analogous to the

“Jane Doe” advertisement described in McConnell. See 540 U.S. at

126-127; p. 19, suwpra. Although appellant describes this feature of the

advertisement as a “mild statement about the differing positions of

[appellant] and the Senators on the constitutional amendment” (J.S.

27), appellant has identified no workable standard for distinguishing

among advertisements based on the level or intensity of criticism they

contain. And while Senator Snowe ran unopposed in the June primary

election, nothing in M Connell suggests that the constitutionality of

BCRA § 203 as applied to a particular advertisement turns on the

likelihood that the advertisement will be outcome-determinative.

22

“this Court could adopt a bright-line test for grass roots

lobbying that is every bit as bright as the exception for

MCF L-type corporations created in MCF L,” appellant

makes no effort to articulate such a standard. Appel-

lant’s approach would encourage politically motivated

pre-election as-applied challenges (with an attendant

right of direct appeal to this Court) involving advertise-

ments meeting the definition of “electioneering commu-

nication”; it would blur the bright lines drawn by Con-

gress; and-it would markedly subvert Congress’s com-

--pelling interest in avoiding “the vagueness concerns that

drove [the Court’s] analysis in Buckley.” McConnell,

540 U.S. at 194.

c. As the district court correctly held (J.S. App. lla-

12a), appellant failed to demonstrate that it would suffer

irreparable harm from the denial of a preliminary in-

junction. Although BCRA prohibits the use of corporate

treasury funds to finance electioneering communica-

tions, corporations remain free to finance such communi-

cations through a PAC, see McConnell, 540 U.S. at 204,

and they may use treasury funds to run advertisements

in other media and to “finance genuine issue ads during

[pre-election] timeframes by simply avoiding any spe-

cific reference to federal candidates,” id. at 206. It is

undisputed that those avenues remain open and avail-

able to appellant.

The minimal nature of BCRA’s impact on issue ad-

vertising is particularly apparent in the circumstances

presented here. Appellant has represented that the cost

of the proposed “Crossroads” advertising campaign

would have been $3992, and that one individual donor

had committed to pay for the campaign in its entirety.

See J.S. App. 6a. Because the projected cost of the cam-

paign was lower than the $5000 annual limit on individ-

23

ual donations to PACs (see 2 U.S.C. 441a(a)(1)(C) (2000

& Supp. ITI 2003)), appellant’s donor could have become

a member of the corporation and could then have been

solicited to direct his donation to appellant’s political

action committee rather than to its general treasury.

Indeed, because BCRA’s restrictions on the financ-

ing of electioneering communicatiois do not apply to

individuals, appellant’s prospective donor could simply

have paid for the advertisement himself without using

the corporation as a conduit. See J.S. 14 (recognizing

that “the individuals who make up [appellant] could en-

gage in electioneering communications,” and that even

BCRA’s disclosure requirements apply only if an individ-

ual’s spending “exceeds $10,000 in a calendar year”).

The practical concern on which appellant’s constitutional

claim is premised—.e., that individuals should not be

hindered from pooling their resources to “form them-

selves into an effective advocacy group for lobbying”

(ibid.)—therefore is not implicated on the facts of this

case. Regardless of the legal significance of the avail-

ability of the various alternative means of communica-

tion with respect to the ultimete merits of appellant’s as-

applied challenge, the existence of those alternatives is

directly relevant at this preliminary-injunction stage of

the case because they underscore that appellant has

failed to establish any basis for overturning the district

court’s finding of no irreparable harm.°

* The circumstances under which this lawsuit was initiated further

suggest that the denial of preliminaryinjunctive relief places insubstan-

tial constraints on appellant’s own communicative freedoms. As the

FEC explained in its opposition to appellant’s motion for a preliminary

injunction (at 6-7), appellant filed this lawsuit ten days after an official

of the Colorado group Focus on the Family sent an e-mail to leaders of

a number of organizations, including appellant’s executive director. No

24

d. The district court also correctly held (J.S. App.

12a-13a) that issuance of a preliminary injunction would

cause irreparable harm to the Commission and would

disserve the public interest. Enforcement of BCRA (and

federal campaign-finance laws generally) is entrusted by

statute to the FEC, and an injunction that barred the

Commission from performing its statutory duties would

substantially injure the agency. See zd. at 12a.

Such an injunction would likewise subvert the public

interest in the enforcement of duly enacted laws. As

Chief Justice Rehnquist explained in staying a district

court injunction against enforcement of a different stat-

ute:

record evidence suggests that appellant had previously planned to

finance broadcast advertising this year. The subject line in that March

24, 2006, e-mail was “Possible legal action needed.” Appellant Opp. to

Motion for Preliminary Injunction Exh. B. The e-mail explained that

the particular recipients had been selected “because [they were] in

[states] that could be affected by McCain-Feingold restrictions on

Marriage Amendment lobbying ads that target U.S. senators who are

on the ballot.” Approximately one hour later, appellant’s executive

director responded by e-mail with a message stating, “I will run an ad

in that period of time mentioning Olympia Snowe.” Jd. at Exh. C.

Focus on the Family subsequently provided appellant with the text of

the advertisement that is at issue in this case.

The funding arrangement that appellant contemplated (see pp. 22-23,

supra), whereby the advertisement was to be paid for not with pooled

contributions, but with a donation from an individual who could have

lawfully financed the advertisement himself, reinforces the inference

that the planned advertising campaign is primarily a mechanism for

engendering litigation. That fact does not necessarily impact the merits

of the constitutional question, but it informs any judicial assessment of

irreparable injury because it calls into question the true urgency of this

matter to appellant itself and the likely harm that denial of preliminary

relief would entail to its purported grassroots lobbying.

25

'

The presumption of constitutionality which attaches

to every Act of Congress is not merely a factor to be

considered in evaluating success on the merits, but

an equity to be considered in favor of [the govern-

ment] in balancing hardships. Given the presump-

tion of constitutionality granted to all Acts of Con-

gress, it is * * * appropriate that the statute remain

in effect pending such review.

Bowen v. Kendrick, 483 U.S. 13804, 1304-1305 (1987)

(Rehnquist, C.J., in chambers) (citations and internal

quotation marks omitted); see p. 18, supra. The public

interest in enforcement of BCRA § 203’s financing re-

strictions is especially strong in light of this Court’s

holding in McConnell that those restrictions are valid on

their face.

3. The preliminary injunction sought by appellant

would have barred enforcement of BCRA § 203 not only

with respect to the “Crossroads” advertisement, but also

with respect to “any electioneering communications by

[appellant] that constitute grass-roots lobbying.”

Compl. 13; see J.S. App. 3a n.1. The district court de-

nied that aspect of appellant’s request for preliminary

injunctive relief on the ground that appellant had

“failfed] to define ‘grassroots lobbying’ (other than as

including its proposed advertisement) or to identify any

necessity for the application of such a broader injunc-

tion.” /bid. Appellant’s jurisdictional statement identi-

fies no basis for concluding that the district court abused

its discretion in that regard. To the contrary, appel-

lant’s continuing failure to articulate a clear and admin-

istrable definition of the term “grassroots lobbying”

underscores the impropriety of any preliminary injunc-

tion incorporating that term. See Fed. R. Civ. P. 65(d)

26

(“Every order granting an injunction * * * shall be

specific in terms * * * [and] shall describe in reason-

able detail * * * the act or acts sought to be re-

strained.”).

CONCLUSION

The appeal should be dismissed as moot. In the al-

ternative, the judgment of the district court should be

affirmed.

Respectfully submitted.

PAUL D. CLEMENT

LAWRENCE H. NORTON Solicitor General

General Counsel GreGorY G. GARRE

RICHARD B. BADER Deputy Solicitor General

Associate General Counsel MALCOLM L. STEWART

DAVID KOLKER Assistant to the Solicitor

General

Assistant General Counsel

HARRY J. SUMMERS

Attorney

Federal Election Commission

AUGUST 2006