Motion — Christian Civic Civic League of Maine, Inc., The v. Federal Election Commission (No. 06-589)

(3)

No. 06-589

In the Supreme Court of the Anited States

CHRISTIAN CIVIC LEAGUE OF MAINE, INC.,

APPELLANT

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

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

DAVID KOLKER

Assistant General Counsel

HARRY J. SUMMERS

Attorney

Federal Election Commission

Washington, D.C. 20463

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GREGORY G. GARRE

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the three-judge district court correctly held

that appellant’s as-applied constitutional challenge to

the federal statutory prohibition on the use of corporate

treasury funds to finance “electioneering communica-

tions” is not currently justiciable.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

(2001)

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)

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

Christian Civic League of Me., Inc. v. FEC,

433 F. Supp. 2d 81 (D.D.C.) 10, 11, 12, 20, 26

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .... 14, 16

FEC v. Beaumont, 539 U.S. 146 (2003)

FEC v. Massachusetts Citizens for Life, Inc.,

i BL) eR a Ser ey >,

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

(1982)

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

Fox v. Board of Trs. of SUNY, 42 F.3d 135 (2d Cir.

1994)

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

Ine., 528 U.S. 167 (2000)

Golden v. Zwickler, 394 U.S. 103 (1969)

Cases—Continued: Page

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

(1990)

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992)

McConnell v. FEC, 540 U.S. 93 (2003) ... 2, 4, 5, 6, 7, 10, 26

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

National Collegiate Athletic Ass’n v. Smith,

525 U.S. 459 (1999)

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

Pipefitters Local Union No. 562 v. United States,

Gy RA EEE Vacyidecessenesgeasvaareeensacxe

Renne v. Geary, 501 U.S. 312 (1991)

Rescue Army v. Municipal Ct., 331 U.S. 549 (1947)

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

(1911)

Spencer v. Kemna, 523 U.S. 1 (1998)

Wei rstein v. Bradford, 423 U.S. 147 (1975)

Wisconsin Right to Life, Inc. v. FEC:

og te er Pr er a 2, 4,24

No. 04-1260 (D.D.C. Dee. 21, 2006) .......... 15, 27, 28

Constitution, statutes, regulation and rule:

U.S. Const.:

REE £4545 66 844k idk eee eee 13, 19

I Bo 5s elke bee een ea oeewreae teas 13

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81:

DO SO NEO voc ncicwarssdenaivesvareee

V

Statutes, regulation and rule—Continued: Page

§ 203, 116 Stat. 91 passim

SAA BP AOD ho vc cskiab canned ecdneeeen 9

© OE), FIG ee, TEE nse kk cckcacsivders 15, 23

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

et seq.

2 U.S.C. 431(9)(A)(i)

2 U.S.C. 431(17)

2 U.S.C. 434(f)(3)(A)(i) (Supp. TV 2004)

2 U.S.C. 434(f)(3))B)G)-Civ) (Supp. TV 2004)

2 U.S.C. 437e(b)(1)

2 U.S.C. 437d(a)(7)

2 U.S.C. 437d(a)(8) (Supp. IV. 2004)

2 U.S.C. 437f

2 U.S.C. 438(a)(8) (Supp. I'V. 2004)

2 U.S.C. 438(d) (Supp. IV 2004)

2 U.S.C. 441a(a)(1)(C) (Supp. TV 2004)

2 U.S.C.

2 U.S.C. 441b(a)

pie Soo |” BR rename tne rear eer wr er omelet

2 U.S.C. 441b(b)(2) (Supp. TV 2004) 2!

2 US.C. 441b(b)(2)(C) (2000 & Supp. IV 2004) ...:

2 U.S.C. 441b(b)(4)(A)-(C)

26 U.S.C. 501(¢)(4)

11 C.F.R. 114.10

Fed. R. Civ. P. 65(d)

Miscellaneous:

Bureau of Corporations, Elections & Commission,

State of Maine, Election Results (visited Dec. 28,

2006) <http://www.maine.gov/sos/cec/elec/

priorist.htm>

152 Cong. Rec. $5554 (daily ed. June 7, 2006)

In the Supreme Court of the Gnited States

No. 06-589

CHRISTIAN CIVIC LEAGUE OF MAINE, INC., APPELLANT

Vv.

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

OPINIONS BELOW

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

App. la-14a) is unreported. A prior opinion of the dis-

trict court is reported at 433 F. Supp. 2d 81.

JURISDICTION

The decision of the three-judge district court was

issued on September 27, 2006. A notice of appeal was

filed on October 6, 2006, and the jurisdictional statement

was filed on October 26, 2006. The jurisdiction of this

Court is invoked under the Bipartisan Campaign Re-

form Act of 2002, Pub. L. No. 107-155, § 403(a)(3), 116

Stat. 114.

STATEMENT

This case concerns the “electioneering communica-

tion” provision contained in Section 203 of the Biparti-

(1)

2

san Campaign Reform Act of 2002 (BCRA), Pub. L. No.

107-155, 116 Stat. 91. The provision prohibits corpora-

tions from using their general treasury funds to pay for

any “electioneering communication,” defined as a com-

munication 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, 116 Stat. 91 (2 U.S.C. 441b(b)(2) (Supp. IV 2004)).

This Court has sustained BCRA § 203 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 challenges, see Wisconsin Right

to Life, Inc. v. FEC, 1268. Ct. 1016, 1018 (2006) (WRTL

I) (per curiam). Appellant filed suit in federal district

court, arguing that BCRA’s restrictions on the financing

of “electioneering communications” are unconstitutional

as applied to appellant’s own proposed broadcast adver-

tisements. The three-judge district court ultimately

dismissed appellant’s claims. J.S. App. la-14a.

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 et seq., and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to the FECA, 2 U.S.C. 437e(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) (Supp. IV 2004);

and to issue written advisory opinions concerning the

application 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. IV

2004). The fund “may be completely controlled” by the

corporation, and it is “separate” from the corporation

“only in the sense that there must be a strict segrega-

tion of its monies’ from the corporation’s other assets.”

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) (MCFL), this Court held that See-

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

funds to finance independent expenditures for cam-

paign-related speech could not constitutionally be ap-

plied to a corporation that (1) was “formed for the ex-

4

press 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 MCF'L 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. /d. 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.” /d. at 44 n.52.

5

b. Based on its assessment of evolving federal cam-

paign practices, Congress subsequently determined

that, “{whhile 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 electoral advocacy and financed those commu-

nications with “hundreds of millions of dollars” from

their general treasuries. Jd. at 127. Indeed, even the

advertisements aired by federal candidates themselves

rarely included express exhortations to vote for or

against a particular candidate. See id. at 127 & n.18, 193

& n.77. “[(Tjhe conclusion that such ads were specifically

intended to affect election results was confirmed by the

fact that almost all of them aired in the 60 days immedi-

ately preceding a federal election.” /d. 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) (Supp. [IV 2004). The term “elec-

tioneering communication” is defined in pertinent part

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

(1) refers to a clearly identified candidate for federal

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

tion, or within 30 days before a primary election for the

office sought by the candidate; and (3) is “targeted to

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

6

(2 U.S.C. 484(f)(3)(A)(i) (Supp. IV 2004)).’ 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 electioneering com-

munications from that fund. See 2 U.S.C. 441b(b)(2)(C)

(2000 & Supp. IV 2004).

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, “[b]ecause corporations can still fund

electioneering communications with PAC money, it is

‘simply wrong’ to view * * * [BCRA § 203] as a ‘com-

plete ban’ on expression rather than a regulation.” Jd.

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 Beaumont, 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; (ili) a candidate debate or forum; and

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

consistent with certain requirements. BCRA § 201(a), 116 Stat. 88

(2 U.S.C. 434(f)(3)(B)(i)-(iv) (Supp. IV 2004)). 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 U.S.

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 WRTL I, this Court considered an as-applied

constitutional challenge to BCRA § 203's prohibition on

the use of corporate treasury funds to finance election-

eering communications. The three-judge district court

in that case had construed this Court’s decision in

McConnell as foreclosing all such as-applied challenges.

126 S. Ct. at 1017-1018. This Court vacated the judg-

ment of the district court, stating that McConnell “did

not purport to resolve future as-applied challenges” to

BCRA § 203. /d. at 1018. The Court remanded the case

to the district court to consider the merits of the plain-

tiff corporation’s as-applied challenge in the first in-

stance. /bid. On December 21, 2006, the three-judge

8

district court in that case held that BCRA § 208 is un-

constitutional as applied to the advertisements in ques-

tion. See p. 27, infra.

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

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

3a. Appellant’s complaint asserts that it is tax-exempt

under Section 501(c)(4) of the Internal Revenue Code

(26 U.S.C.), and that it is interested in “laws protecting

traditional marriage” and other public issues. Compl.

paras. 16,20. Appellant asserts that it does not qualify

for any exception that would permit it to finance elec-

tioneering communications with corporate funds, alleg-

ing in particular that it is not a “qualified nonprofit cor-

poration” 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 run

a 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-

section of how marriage will be defined for future

generations. Marriage between a man and a woman

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.

Unfortunately, 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

9

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.1n.1. Because Senator Snowe was a candidate in a

primary election that took place June 13, 2006, the ef-

fect of specifically mentioning Senator Snowe under

BCRA’s electioneering-communications provisions was

that the advertisement in question could not have been

financed with appellant’s treasury funds if it was broad-

- cast in Maine between May 14, 2006, and June 13, 2006.

The complaint in this case further alleged that appel-

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

bying 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.” /bid. Appellant alleged that, “[bjecause

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

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

ocrer “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.

10

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. See Christian Civic

League of Maine, Inc. v. FEC, 433 F. Supp. 2d 81

(D.D.C. 2006) (CCL 1).’ The court concluded that “each

of the four preliminary injunction factors counsels

against the grant of the requested injunction.” Jd. at 87.

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.” CCL J, 433 F.

Supp. 2d at 88. The court found that the “ability to form

and administer separate segregated funds . . . has

provided corporations . . . with a constitutionally suffi-

cient opportunity to engage in express advocacy.” /bid.

(quoting McConnell, 540 U.S. at 203). The court further

explained that appellant could have financed the adver-

tisement with corporate treasury funds if it had used a

non-broadcast medium or had refrained from clearly

identifying Senator Snowe. See ibid.

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

for a preliminary injunction extended beyond the “Crossroads” adver-

tisement to “encompass ‘any electioneering communications by [ap-

pellant] that constitute grass-roots lobbying.’” CCL I, 433 F. Supp. 2d

at 84 n. 1. 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.” /bid. The court concluded on that basis that

appellant’s “request for the broader preliminary injunction [was] un-

warranted.” /bhid. 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.

1]

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.

CCL I, 433 F. Supp. 2d at 88-89 (citation omitted). The

court observed that a newsletter published by appellant

had “already sounded an enthusiastic note regarding a

potential challenger to Senator Snowe.” /d. at 89. In

addition, the court concluded that appellant’s proposed

“grassroots lobbying” exception to the coverage of

BCRA § 203 “would seriously impair the government’s

compelling interest in protecting the integrity of the

electoral process” because “candidates or their allies

could easily schedule an issue for ‘legislative consider-

ation’ during the run-up to an election as a pretext for

broadcasting a particular subliminal electoral advocacy

advertisement.” /bid.

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.

CCL I, 433 F. Supp. 2d at 89. The court further con-

cluded that issuance of the requested preliminary in-

12

junction would substantially injure the Commission and

would disserve the compelling public interest in the en-

forcement of BCRA. /d. at 90.

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

statement and moved for expedited disposition of its

appeal. In its Motion to Expedite and Consolidate

Briefing (Mot. to Expedite) (at 2) appellant stated that

a Senate vote on the Marriage Protection Amendment

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

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 motion, argu-

ing that expedited consideration was unwarranted

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 Ex-

pedite 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. 85554 (daily ed.). On Oc-

tober 2, 2006, this Court dismissed as moot appellant’s

appeal from the denial of its request for a preliminary

injunction. 12758. Ct. 336.

8. On September 27, 2006, the district court dis-

missed appellant’s complaint in its entirety. J.S. App.

la-16a.

a. Insofar as appellant challenged the constitutional-

ity of BCRA § 203 as applied to communications other

than the “Crossroads” advertisement, the district court

held that appellant’s claims were “not ripe and/or too

13

speculative and hypothetical to be justiciable.” J.S.

App. 2a; see id. at 4a-9a. The court explained that ap-

pellant “bears the burden of clearly alleging and ulti-

mately proving that the non-Crossroads claims are justi-

ciable.” Jd. at 5a. The court observed, however, that

appellant “has admitted that it has no current plans to

broadcast any advertisements about any issue.” /bid.

The district court further explained that, under Arti-

cle III of the Constitution, federal courts are precluded

from issuing “opinion[s] advising what the law would be

upon a hypothetical state of facts,” J.S. App. 6a (quoting

Lewis v. Continental Bank Corp., 494 U.S. 472, 477

(1990)), and may resolve constitutional questions only

“in the context of a specific live grievance,” ibid. (quot-

ing Golden v. Zwickler, 394 U.S. 103, 110 (1969)). The

district court also relied (see id. at 7a) on Renne v.

Geary, 501 U.S. 312 (1991), in which this Court held that

a First Amendment challenge to a state ban on political-

party endorsements of candidates for non-partisan of-

fices was unripe because the plaintiffs had failed to al-

lege a present intention to endorse any specific candi-

date and had not compiled an adequate factual record as

to any such endorsement. The district court found that

appellant similarly lacks any present intention to broad-

cast any particular advertisement, and that appellant

had not developed any factual record about what such

an advertisement might say, how it might be created, or

how it might be financed or broadcast. See J.S. App. 7a-

8a. The court concluded:

What [appellant] really seeks via its non-Crossroads

claims is for the court to promulgate a rule exempt-

ing all “grass roots lobbying”—a phrase [appellant]

never defines—from the Act’s electioneering com-

munications provision. This court, however, decides

14

present disputes based on particular facts—and es-

pecially so where faced with an as-applied challenge,

as here. Absent a concrete dispute, this court lacks

jurisdiction.

Id. at 9a (footnote omitted).

b. With respect to the “Crossroads” advertisement,

the district court held that appellant’s claims were

“moot and not saved by the ‘capable of repetition, yet

evading review’ exception to that doctrine.” J.S. App.

2a; see id. at 10a-13a. The court found that the “Cross-

roads” claims were moot because “the occurrence of the

June 2006 Senate vote on the relevant legislation leaves

the court without power to provide effectual relief.” /d.

at 10a.

The district court noted that the “capable of repeti-

tion, yet evading review” exception to mootness princi-

ples applies “only in exceptional situations,” J.S. App.

lla (quoting City of Los Angeles v. Lyons, 461 U.S. 95,

109 (1983)), and it concluded that appellant had failed to

satisfy either prong of the applicable test, id. at 1la-13a.

With regard to the “capable of repetition” prong, the

court noted that appellant was required to establish a

“reasonable expectation or a demonstrated probability

that the same controversy will recur involving the same

complaining party.” /d. at lla (quoting Murphy v.

Hunt, 455 U.S. 478, 482 (1982)) (quotation marks omit-

ted and emphasis added by district court). -The court

explained that adjudication of appellant’s constitutional

claim would require it to assess the legal significance of

an unusual combination of circumstances, and it found

that this “confluence of specifies” was unlikely to recur.

Id. at 12a. The court also held that any such future

claims would not necessarily evade review because a

challenge filed substantially in advance of the relevant

15

election would “stand a strong chance of gaining full

appellate review in light of the Act’s requirement that

the judiciary expedite consideration of such challenges.”

Id. at 13a (citing BCRA § 403(a)(4), 116 Stat. 113).

ARGUMENT

Appellant contends (J.S. 8-24) that its as-applied

constitutional challenge to BCRA § 203 is “capable of

repetition yet evading review,” and that its suit there-

fore remains justiciable, notwithstanding the fact that

the Senate vote on the Marriage Protection Amendment

took place in June 2006. The three-judge district court

rejected that argument, holding that no substantially

similar dispute involving appellant is likely to recur, and

that any such dispute that might arise could potentially

receive full appellate consideration if suit were filed

sufficiently in advance of the relevant election. Those

holdings are correct. This Court therefore should dis-

miss the appeal as moot or affirm the judgment of the

district court. In the alternative, the Court may wish to

hold the jurisdictional statement pending the possible

filing and disposition of any jurisdictional statements in

Wisconsin Right to Life, Inc. v. FEC, No. 04-1260

(D.D.C. Dee. 21, 2006) (WRTL IT).

1. a. When it sought expedited consideration of its

appeal of the district court’s denial of a preliminary in-

junction, appellant represented to this Court that a Sen-

ate vote on the Marriage Protection Amendment was

expected in early June and that appellant “only wants to

run the [‘Crossroads’] ad until the vote occurs and not

thereafter.” 05-1447 Mot. to Expedite 2. The Senate

terminated its consideration of the Marriage Protection

Amendment in June 2006, and appellant has identified

no reason to believe that any subsequent Senate vote on

16

that measure will occur in the foreseeable future. More-

over, because appellant chose not to run the “Cross-

roads” advertisement during the 30-day period before

the June Senate primary election in Maine, it cannot be

subject to any potential future Commission enforcement

action whose validity might turn en the determination

whether BCRA’s financing restrictions are constitu-

tional as applied to that advertisement.

Because no live controversy exists concerning the

constitutionality of BCRA § 203 as applied to the

“Crossroads” advertisement, appellant’s claim with re-

spect to that advertisement is moot and no longer suit-

able for judicial resolution. See Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180

(2000) (explaining that the “Constitution’s case-or-con-

troversy limitation on federal judicial authority,

Art. III], § 2, underpins * * * [this Court’s] mootness

jurisprudence”). “Article [1] denies federal courts the

power ‘to decide questions that cannot affect the rights

of litigants in the case 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 appellate. To sustain [this Court’s] jurisdiction

* * * it is not enough that a dispute was very much

alive when suit was filed, or when review was obtained

in the Court of Appeals.” /d. at 477-478.

b. This Court has recognized an exception to moot-

ness principles for situations that are “capable of repeti-

tion, yet evading review.” See Southern Pac. Terminal

Co. v. 1CC, 219 U.S. 498, 515 (1911). “(T]he capable-of-

repetition doctrine applies only in exceptional situa-

tions,” Lyons, 461 U.S. at 109, “where the following two

circumstances [are] simultaneously present: (1) the

17

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

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

[is] a reasonable expectation that the same complaining

party [will] be subject to the same action again,”

Spencer v. Kemna, 523 U.S. 1, 17-18 (1998) (citations

and internal quotation marks omitted) (brackets in orig-

inal) (quoting Lewis, 494 U.S. at 481). For an alleged

wrong to be considered “capable of repetition,” “there

must be a ‘reasonable expectation’ or ‘demonstrated

probability’ that the same controversy will recur involv-

ing the same complaining party.” Murphy, 455 U.S. at

482 (quoting Weinstein v. Bradford, 423 U.S. 147, 149

(1975)). Accord, e.g., First Nat’l Bank v. Bellotti, 435

U.S. 765, 774 (1978). ‘This Court “has never held that a

mere physical or theoretical possibility was sufficient”

to satisfy this test; if that were enough, “virtually any

matter of short duration would be reviewable.”

Murphy, 455 U.S. at 482.

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

13a), appellant’s constitutional claim with respect to the

“Crossroads” advertisement is not “capable of repeti-

tion” within the meaning of this Court’s decisions, since

appellant has failed to demonstrate “a reasonable expec-

tation or demonstrated probability that the same con-

troversy will recur involving the same complaining

party.” Murphy, 455 U.S. at 482 (citation and internal

quotation marks omitted). Because the instant suit in-

volves an as-applied rather than a facial challenge to

BCRA § 203, a-broad range of idiosyncratic circum-

stances would potentially bear on the correct disposition

of appellant’s claim. Those circumstances include appel-

lant’s decision to run a broadcast advertisement about

the Marriage Protection Act just before a federal pri-

mary election in Maine; the group’s determination to

18

finance the advertisement with corporate funds, even

though it could use a separate segregated fund; and the

group’s decision to identify a Senate candidate in the

advertisement, even though it could encourage grass-

roots action without doing so. Although appellant need

not show that “the precise facts related to the Cross-

roads Ad” (J.S. 10) are likely to be replicated, any fu-

ture dispute must at least involve a substantially similar

factual setting in order for the two cases to present the

“same controversy.” ®

Whatever the precise nature of the showing that may

be required in this context, appellant cannot satisfy the

applicable standard on the record in this case. At his

deposition, appellant’s longtime executive director testi-

fied that he could not recall any prior occasion on which

appellant had run a broadcast advertisement that had

identified a federal office holder. See FEC Opp. to Mot.

for Prelim. Inj. 11-12. Appellant later introduced evi-

dence (see J.S. 3-4) that in July 2004 it had run a radio

advertisement identifying Senators Snowe and Collins.

There was no Senate election that year in Maine, how-

ever, and the primary election for other federal offices

was held on June 8, 2004. See Bureau of Corporations,

Elections & Commissions, State of Maine, Election Re-

sults (visited Dec. 28, 2006) <http://www.maine.gov/

sos/cec/elec/priorlst.htm>. Thus, the only broadcast

advertisement mentioning a federal office holder that

* Contrary to appellant's contention (J.S. 10), the district court did

not hold that a dispute is capable of repetition only if the “precise facts”

of the case are likely to recur. Rather, the thrust of the court’s analysis

was that the combination of circumstances involved in this case was

sufficiently unusual that a materially similar controversy is unlikely to

arise again. That conclusion is correct for the reasons stated at pp. 18-

22, infra.

19

appellant has been shown to have financed did not fall

within BCRA’s definition of an “electioneering communi-

cation.”

Nor has appellant demonstrated any likelihood that

its advertising practices will change in the future. In its

complaint, appellant alleged in general terms that it

“intends to run materially similar grass-roots lobbying

ads falling within the electioneering communication pro-

hibition period[s}] before” other federal primary and

general elections. Compl. para. 16. In his deposition,

however, appellant’s executive director testified that

appellant had no plans to run any advertisements other

than the “Crossroads” advertisement, and that the

group had “no other issues selected for future cam-

paigns.” J.S. App. 6a. Appellant’s counsel likewise rep-

resented that the group had “no concrete plans to do an

ad” other than the “Crossroads” advertisement. /bid.

Absent any demonstrated likelihood that appellant will

again seek to finance substantially similar advertise-

ments during the periods covered by BCRA § 203, appel-

lant’s “bare statement of intention is insufficient to es-

cape mootness.” Fox v. Board of Trs. of SUNY, 42 F.3d

135, 143 (2d Cir. 1994); ef. Lujan v. Defenders of Wild-

life, 504 U.S. 555, 564 (1992) (holding that “‘some day’

intentions—without any description of concrete plans,

or indeed even any specification of when the some day

will be—do not support a finding of the ‘actual or immi-

nent’ injury” required for Article III standing).

The anomalous circumstances under which this case

arose reinforce the conclusion that the current contro-

versy is unlikely to recur. Record evidence indicates

that appellant’s expressed intent to finance the “Cross-

roads” advertisement reflected a hastily arranged effort

to facilitate a constitutional challenge to BCRA § 203.

20

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 appel-

lant’s executive director. That e-mail forwarded a mes-

sage from counsel offering to seek a federal court in-

junction at no charge on behalf of “any group” that

planned a “grass roots lobbying” advertisement during

the electioneering-communication period in its State,

adding that “{t]his may even involve an appeal to the

U.S. Supreme Court (which would result in a landmark

ruling).” FEC Opp. to Mot. for Prelim. Inj. Exh. B. The

e-mail explained that the recipients had been selected

“because [they were] in [States] that could be affected

by McCain-Feingold restrictions on Marriage Amend-

ment lobbying ads that target U.S. Senators who are on

the ballot.” Before receiving that communication, appel-

lant had given no consideration to financing broadcast

advertising during 2006. See id. at 7. About one hour

after receiving the e-mail, however,appellant’s execu-

tive director agreed to “run an ad in that period of time

mentioning Olympia Snowe.” /d. Exh. C. Focus on the

Family subsequently provided appellant with the text of

the “Crossroads” advertisement that is at issue in this

ease. Id. at 8.

The funding mechanism chosen by appellant rein-

forces the inference that the planned advertising cam-

paign was primarily a means to engender litigation.

When the complaint was filed, appellant lacked the

$3992 needed to air the “Crossroads” advertisement on

local radio. See FEC Opp. to Motion for Prelim. Inj. 9-

10; CCL I, 433 F. Supp. 2d at 86. Appellant subse-

quently represented that a single donor had agreed to

provide the necessary funds. See ibid. That donation

would have been within the $5000 limit on individual

21

contributions to a separate segregated fund if appellant

had chosen to establish one, see 2 U.S.C. 441a(a)(1)(C)

(Supp. IV 2004), and the individual donor could simply

have financed the advertisement himself without the

need for appellant to act as a conduit. Because the

availability of those alternatives would be directly rele-

vant to the resolution of appellant’s as-applied constitu-

tional challenge, the absence of any reason to believe

that comparable circumstances will recur in the future

further undermines appellant’s contention that it will

likely confront the “same controversy” again.

ce. Appellant appears to contend (J.S. 11-13) that it

has satisfied the “same controversy” requirement by

avowing an intent to finance future advertisements that

(i) constitute “grassroots lobbying” and (ii) fall within

BCRA § 203's definition of “electioneering communica-

tion.” Because appellant refuses to advocate any spe-

cific definition of the term “grassroots lobbying,” its

contention that the “Crossroads” advertisement quali-

fies (and that appellant intends to finance other “grass-

roots lobbying” communications in the future) provides

no cogent basis for concluding that the “same contro-

versy” is likely to recur.’ And if every dispute about the

' Appellant identifies two possible definitions of the term “grassroots

lobbying,” see J.S. 24-26 nn.27-28, but carefully refrains from endorsing

either one. The statement in the “Crossroads” advertisement that,

“/u)/nfortunately, your senators voted against the Marriage Protection

Amendment two years ago,” J.S. 1 n.1 (emphasis added), would take

that advertisement outside the two proposed “grassroots lobbying”

exceptions that appellant identifies. See J.S. 25 n.27 (stating that the

criteria for the first exception “are not met if the communication

includes any reference to * * * the candidate's record or position on

any issue”); J.S. 25 n.28 (providing, as one condition for the second

exception, that, “{i]f the communication discusses the candidate's

position or record on the matter, it does so only by quoting the candi-

22

constitutionality of BCRA § 203’s restrictions on the

financing of “electioneering communication[s]” were

deemed to present the “same controversy,” the distinc-

tion between facial and as-applied challenges that this

Court recognized in WRTL I would effectively be elimi-

nated. See J.S. App. 8a.

d. Appellant suggests (J.S. 10, 13 n.14) that election-

related disputes necessarily or at least presumptively

satisfy the “capable of repetition yet evading review”

exception to the rule that moot cases are non-justiciable.

This suit, however, differs in a fundamental way from

the cases on which appellant relies. When a plaintiff

demonstrates an intent to participate in electoral pro-

cesses on an ongoing basis, a court may have reasonable

grounds for concluding that any injury the plaintiff suf-

fers during one election will be repeated during later

electoral cycles. The gravamen of appellant’s as-applied

challenge, by contrast, is that it lacks the intent to influ-

ence federal elections, but that its purported issue advo-

cacy was impeded by the fortuity that the Senate vote

on which it sought to comment coincided with a Maine

Senate primary. In light of appellant’s disavowal of any

intent to engage in electoral advocacy, there is no sound

reason to conclude on the record before this Court that

appellant will again wish to finance advertisements

mentioning candidates for federal office during the brief

pre-election periods covered by BCRA § 203.

e. Even if a substantially similar controversy were

to recur in the future, appellant’s as-applied challenge

would not necessarily evade review. See J.S. App. 13a.

This suit was filed in April 2006, just six weeks before

date’s own public statements or reciting the candidate’s official action,

such as a vote, on the matter”).

23

the start of the applicable electioneering-communication

period. The district court noted that a suit brought sub-

stantially in advance of the relevant election would

“stand a strong chance of gaining full appellate review

in light of [BCRA’s] requirement that the judiciary ex-

pedite consideration of such challenges.” TJbid.; see

BCRA § 403(a)(4), 116 Stat. 114. Indeed, even the mas-

sive McConnell litigation took less than 21 months from

the time complaints were filed until the final decision of

this Court. There is no reason to suppose that the time

between the filing of a far simpler suit like this one and

the occurrence of an election would be “always so short

as to evade review.” Spencer, 523 U.S. at 18.

Appellant contends (J.S. 20-22) that the communica-

tive activities in which it wishes to engage cannot

feasibly be planned well in advance of the proposed com-

munications. The proposed constitutional amendment

discussed in the “Crossroads” advertisement was intro-

duced in early 2005, however, and appellant appears to

have been aware at that time of Senator Snowe’s likely

candidacy in the 2006 election and her position on the

amendment. See FEC Opp. to Mot. for Prelim. Inj. 13-

14; Plaintiff Reply in Support of Mot. for Prelim. Inj. 2.

Appellant’s contention that it must react quickly to

emerging legislative events is further belied by the sub-

stantial indications that the proposed “Crossroads” ad-

vertisement was conceived as a device to generate litiga-

tion. See pp. 19-21, supra.

2. As the district court correctly held, appellant’s

claims with regard to advertisements other than the

“Crossroads” advertisement are “not ripe and/or too

speculative and hypothetical to be justiciable.” J.S.

App. 2a. Appellant’s continuing failure to articulate a

clear and administrable definition of the term “grass-

24

roots lobbying” underscores the absence of any focused

dispute between the parties and the impropriety of any

injunctive or declarative relief incorporating that term.

See Fed. R. Civ. P. 65(d) (“Every order granting an in-

junction * * * shall be specific in terms * * * [and]

shall describe in reasonable detail * * * the act or acts

sought to be restrained.”). And even if appellant had

articulated a clear proposed legal standard, its failure to

describe with any precision the sort of advertisements

it intends to finance means that there is not even a hy-

pothetical set of facts to which the standard can be ap-

plied.

In Renne, this Court relied on comparable factors in

holding unripe the plaintiffs’ constitutional challenge to

restrictions on political speech. The plaintiffs in that

case had challenged a state-law provision barring politi-

cal parties from endorsing candidates for nonpartisan

office. This Court stated:

We also discern no ripe controversy in the allega-

tions that respondents desire to endorse candidates

in future elections * * * . [Plaintiffs] do not allege

an intention to endorse any particular candidate, nor

that a candidate wants to include a party’s or com-

mittee member’s endorsement in a candidate state-

ment. We possess no factual record of an actual or

imminent application of [the state-law restriction]

sufficient to present the constitutional issues in

clean-cut and concrete form. We do not know the

nature of the endorsement, how it would be publi-

cized, or the precise language [state officials] might

delete from the voter pamphlet. To the extent

[plaintiffs] allege that a committee or a committee

member wishes to “support” or “oppose” a candidate

25

other than through endorsements, they do not spec-

ify what form that support or opposition would take.

501 U.S. at 321-322 (citations and internal quotation

marks omitted).

Similarly here, appellant has not identified the candi-

date(s) it may wish to identify in future communications,

the legislative issues those communications might dis-

cuss, the timing or location of the advertisements, the

nature of the electoral environment in which the adver-

tisements might air, or the impediments to using financ-

ing methods (e¢.g., a separate segregated fund) that

would not trigger BCRA § 203's restrictions. In the

absence of such information, appellant’s challenge to

possible future applications of BCRA § 203 does not

“present the constitutional issues in ‘clean-cut and con-

crete form.’” 501 U.S. at 322 (quoting Rescue Army v.

Municipal Ct., 331 U.S. 549, 584 (1947)).

3. Appellant requests (see J.S. i, 24-29) that this

Court consider the merits of its contention that BCRA

§ 203 is unconstitutional as applied to its “Crossroads”

advertisement in particular and to “genuine grassroots

lobbying” in general. That course would be inappropri-

ate even if this Court were to conclude that appellant’s

claims are currently justiciable. Because the district

court did not resolve the merits of appellant’s constitu-

tional claims, there is no pertinent ruling for this Court

to review. And because only minimal discovery oc-

curred before the district court denied preliminary in-

junctive relief in May, the existing evidentiary record is

inadequate for this Court to adjudicate appellant’s as-

applied challenge. For those reasons, the second and

third questions presented in the jurisdictional statement

are not properly before this Court, which “ordinarily

‘dofes] not decide in the first instance issues not decided

26

below.’” Adarand Constructors, Inc. v. Mineta, 534

U.S. 103, 109 (2001) (quoting National Collegiate Ath-

letic Ass’n v. Smith, 525 U.S. 459, 470 (1999)).

To the extent that the evidentiary record has been

developed, that record does not support appellant’s

claim for a constitutional exemption from BCRA § 203's

generally applicable restrictions on the financing of

electioneering communications. See CCL /, 433 F.

Supp. 2d at 87-89 (holding, in connection with the denial

of preliminary injunctive relief, that appellant had failed

to establish a substantial likelihood of success on the

merits of its as-applied constitutional challenge). Evi-

dence obtained in connection with the motion for a pre-

liminary injunction indicates that the Crossroads adver-

tisement was prompted by the then-imminent Senate

primary election and had the potential to affect electoral

outcomes. See pp. 11, 19-21, supra. The evidence fur-

ther indicates that appellant easily could have publicized

its message through other lawful means and could have

financed it through a separate segregated fund. See pp.

20-21, supra.

The Court in McConnell recognized that BCRA’s

electioneering-communication restrictions can be ap-

plied constitutionally to communications that, like the

“Crossroads” advertisement, discuss legislative con-

cerns but can also be expected to influence federal elec-

tions. The Court concluded that BCRA’s minimal im-

pact on such advertising was constitutionally acceptable

because corporations and unions could “finance genuine

issue ads during those timeframes by simply avoiding

any specific reference to federal candidates, or in doubt-

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

McConnell, 540 U.S. at 206. Appellant seeks a quasi-

legislative carve-out that both Congress and the Court

27

in McConnell have considered and rejected, and that

ignores the carefully balanced set of benefits and bur-

dens that the Act applies to corporations and unions and

their separate segregated funds. In any event, because

the underlying as-applied claims in this case are non-

justiciable and therefore were not addressed by the dis-

trict court on the merits, this case does not provide an

occasion for the Court to address the validity of such a

carve-out.

4. For the foregoing reasons, the decision of the

three-judge district court is correct and does not war-

rant plenary appellate review in this Court. On Decem-

ber 21, 2006, however, a different three-judge panel of

the District Court for the District of Columbia issued its

decision in WRTL II, on remand from this Court’s deci-

sion in WRTL I. The court in WRTL IT considered

a constitutional challenge to the application of BCRA

§ 203 to three broadcast advertisements that the plain-

tiff had proposed to air in 2004. See slip op. 2-6. The

district court held that the plaintiffs challenge was “ca-

pable of repetition, yet evading review,” and was there-

fore justiciable, see id. at 9-13, and that BCRA § 203’s

financing restrictions are unconstitutional as applied to

the advertisements in question, see 7d. at 14-26. With

respect to the mootness issue, the court in WRTL II

expressed disagreement with the holding of the three-

judge district court in the instant case. See slip op. 13

n.i4. On December 29, 2006, the FEC and intervenor-

defendants filed notices of appeal to this Court of the

district court’s ruling in WRTL /].

Thus, if a jurisdictional statement is filed in WR7'L

IT and this Court notes probable jurisdiction, the Court

will be required to determine whether the plaintiffs suit

is “capable of repetition, yet evading review.” Because

28

of the unique circumstances presented by each case

—including the fact that the plaintiff in WRTL // has

engaged in much more extensive broadcast issue adver-

tising in the past than has appellant—the Court’s reso-

lution of the mootness-issue in that case will not neces-

sarily control the outcome here. Nevertheless, the

Court may wish to hold the jurisdictional statement in

the instant case pending the possible filing and disposi-

tion of any jurisdictional statements in WRTL I].

CONCLUSION

The appeal should be dismissed for lack of jurisdic-

tion, or the judgment of the district court should be af-

firmed. In the alternative, the jurisdictional statement

should be held pending the filing and disposition of any

jurisdictional statements in Wisconsin Right to Life,

Inc. v. FEC, No. 04-1260 (D.D.C. Dee. 21, 2006), and

then disposed of as appropriate.

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

Assistant General Counsel General

HARRY J. SUMMERS

Attorney

Federal Election Commission

DECEMBER 2006