2

questions of law, and this Court should await plenary briefing
on those questions rather than attempting to resolve them at this
abbreviated preliminary stage. The Court should thwart
intervenors’ scorched-earth litigation strategy, and note
probable jurisdiction on all of the questions presented in this
appeal.

ARGUMENT

1. _Intervenors first insinuate that this Court should refuse
to note probable jurisdiction on appellants’ challenge to section
212 of BCRA, which imposes disclosure requirements on
persons who merely enter into a contract to make disbursements
for independent expenditures, even before those outlays are
actually made.' To be sure, the district court did conclude that
appellants’ challenges to section 212 were unripe in light of the
FEC’s implementing regulations, see Supplemental Appendix
(“Supp. App.”) 132sa-133sa, which seemingly construe section
212, contrary to the plain language of the statute, not to require
advance disclosure, see 68 Fed. Reg. 421, 452-53 (2003) (to be
codified at 11 C.F.R. § 109.10). One would never know from
intervenors’ response, however, that Judge Henderson dissented
from that holding, and would have struck down section 212 in
its entirety. She noted that section 212 would “in many
instances * * * require reporting of expenditures not yet made.”

' Intervenors suggest that appellants have “challenge[d]” the analogous
“advance notice” requirement of BCRA § 201, which adds similar disclosure
requirements with respect to disbursements for “electioneering
communications.” See Intervenors Resp. 3 n.2. Notwithstanding the
references to that provision in the jurisdictional statement, see J.S. i, 14-15,
it is clear that appellants prevailed as to that provision, and that appellants
therefore do not seek to “appeal” from the district court’s decision
themselves. As intervenors note, see Intervenors Resp. 3 n.2, the
government has appealed from the district court’s decision on section 201,
see Executive Branch J.S. 26-27, and appellants agree that this Court should
note probable jurisdiction on that issue. And intervenors correctly note that
appellants do not contest the district court’s ruling that the “advance notice”
provision of section 201 can be severed from the remainder of that section.


VALLE SIMMS DUTCHER

L. LYNN HOGUE
SOUTHEASTERN LEGAL
FOUNDATION, INC.

3340 Peachtree Road, N.E.
Suite 3515

Atlanta, GA 30326

(404) 365-8500

Attorneys for Southeastern
Legal Foundation, Inc.; Bob
Barr; Center for Individual
Freedom; National Right to
Work Committee; 60 Plus
Association, Inc.; and U.S.
d/b/a Pro English

May 29, 2003


4

Intervenors Resp. 5-6. That argument, however, is nothing
more than a strawman. Appellants are plainly not challenging
section 211, as counsel made clear before the district court. Tr.
342. To the extent that appellants cite section 211 at all in their
jurisdictional statement, see J.S. i, 15, they do so only
descriptively, because the definition of “independent
expenditure” in section 211 — which closely tracks the
preexisting definition of “independent expenditures” in FECA
— provides the backdrop for the new, broader definition of
“coordinated” expenditures in section 214.

b. The heart of appellants’ challenge to BCRA’s
coordination provisions is their challenge to section 214. That
section (in apparent contradiction to section 211) treats any
expenditure made merely in consultation with a political party
committee as coordinated, rather than independent, see BCRA
§ 214(a); repeals prior FEC regulations narrowly defining
coordination, see BCRA § 214(b); and demands that the FEC
promulgate new regulations that do “not require agreement or
formal collaboration to establish coordination,” see BCRA
§ 214(c).

The district court rejected plaintiffs’ challenge to section 214
on the ground that an agreement is not constitutionally required
as a predicate for a finding of coordination, see Supp. App.
138sa-143sa, and further rejected plaintiffs’ challenge to section
214(c) on standing and ripeness grounds, see id. at 144sa-156sa.
Intervenors suggest that these conclusions are so unimpeachable
as not to warrant plenary review. Once again, however,
intervenors virtually ignore Judge Henderson’s dissenting
opinion, which took issue with all of the majority’s conclusions.
Judge Henderson began by noting that this Court has never
specifically defined what makes an expenditure “coordinated,”
and therefore subject to the limits applicable to contributions.
See id. at 386sa. However, relying heavily on the key lower-
court decision in the area, see FEC v. Christian Coalition, 52 F.
Supp. 2d 45 (D.D.C. 1999), she concluded that mere


3

Supp. App. 381sa. She reasoned that this Court has long held
that “advance reporting and registration requirements are ‘quite
incompatible with the requirements of the First Amendment.’”
Id, at 383sa (quoting Thomas v. Collins, 323 U.S. 516, 540
(1945)). And she specifically rejected the defendants’ reliance
on the FEC’s regulations, noting that it was a “dubious
proposition” whether the FEC could read the “advance notice”
requirement out of the statute altogether. Jd. at 383sa n.154.

The three-judge court plainly disagreed, therefore, as to
whether a narrowing regulation always renders a challenge to a
statutory provision unripe, even where, as here, the statutory
provision unambiguously infringes on important First
Amendment values and the saving construction proffered by the
regulation “press[es] statutory construction to the point of
disingenuous evasion.” United States v. Locke, 471 U.S. 84, 96
(1985) (internal quotation omitted). In light of this substantial
disagreement, the Court should note probable jurisdiction on
appellants’ challenge to section 212 of BCRA, and resolve that
challenge only after full briefing and argument.

2. Intervenors next imply that this Court should refuse to
note probable jurisdiction on appellants’ challenges to the
“coordination” provisions of BCRA. Those provisions,
however, are some of the most important in BCRA, and
appellants’ challenges to those provisions are both justiciable
and substantial.

a. As a threshold matter, intervenors suggest that any
challenge to section 211 of BCRA, which defines “independent
expenditure” as “an expenditure * * * that is not made in
concert or cooperation with or at the request or suggestion of a
candidate or political party committee, has been waived. See

? Judge Henderson further noted that she would have struck down section
212 even if the provision could be narrowed to exclude advance disclosure,
on the ground that the stringent deadlines for reporting even expenditures
that were actually made were not narrowly tailored to a compelling
governmental interest. See Supp. App. 383sa n.154.


CONCLUSION

The Court should note probable jurisdiction on all of the
questions presented, and set the case for briefing and oral

argument.

FLOYD ABRAMS
SUSAN BUCKLEY
BRIAN MARKLEY
CAHILL GORDON &
REINDEL LLP

80 Pine Street

New York, NY 10005
(212) 701-3000

Attorneys for Mitch
McConnell and National
Association of Broadcasters

KATHLEEN M. SULLIVAN
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-9875

Attorney for Mitch
McConnell

G. HUNTER BATES
1215 Cliffwood Drive
Goshen, KY 40026
(502) 473-7557

Attorney for Mitch
McConnell and Thomas E.
McInerney

Respectfully submitted,

KENNETH W. STARR
Counsel of Record
EDWARD W. WARREN
KANNON K. SHANMUGAM
KIRKLAND & ELLIS
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000

Attorneys for Mitch
McConnell; Southeastern
Legal Foundation, Inc.; Bob
Barr; Center for Individual
Freedom; National Right to
Work Committee; 60 Plus
Association, Inc.; and U.S.
d/b/a Pro English

JAN WITOLD BARAN
THOMAS W. KIRBY

LEE E. GOODMAN
WILEY, REIN & FIELDING
LLP

1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000

Attorneys for Mitch
McConnell


No, 02-1674

INTHE
Supreme Court of the United States

OCTOBER TERM, 2002
MITCH MCCONNELL et al.,
Appellants,
Vv.
FEDERAL ELECTION COMMISSION et al.,
Appellees.

On Appeal From The United States
District Court For The District of Columbia

REPLY BRIEF
IN SUPPORT OF JURISDICTIONAL STATEMENT

FLOYD ABRAMS KENNETH W. STARR
SUSAN BUCKLEY Counsel of Record
BRIAN MARKLEY EDWARD W. WARREN
CAHILL GORDON & KANNON K. SHANMUGAM
REINDEL LLP KIRKLAND & ELLIS

80 Pine Street 655 Fifteenth Street, N.W.
New York, NY 10005 Washington, DC 20005
(212) 701-3000 (202) 879-5000

(additional counsel on signature block)

May 29, 2003



consultation with a candidate or political party was insufficient
to render an expenditure “coordinated” for constitutional
purposes, see Supp. App. 385sa-392sa. As to section 214(c)
more specifically, Judge Henderson agreed with appellants that
any regulation that did not require “agreement or formal
collaboration” to establish coordination would be invalid,
noting this Court’s command that “‘simply calling an
independent expenditure a “coordinated expenditure” cannot
(for constitutional purposes) make it one.’” Jd. at 392sa-395sa
(quoting Colorado Republican Fed. Campaign Comm. v. FEC,
518 U.S. 604, 621-22 (1996) (plurality opinion) (Colorado J)).
And she specifically rejected the majority’s holding on
justiciability, on the grounds that, under the test articulated in
this Court’s seminal case on pre-enforcement review, no FEC
regulation could be promulgated that would pass constitutional
muster, and the parties would suffer hardship absent immediate
judicial review because of the risk that current activity could
render future expenditures “coordinated.” See id. at 395sa-
396sa (citing Abbott Labs. v. Gardner, 387 U.S. 136 (1967).

The judges below reached different conclusions, therefore,
not only as to the justiciability of appellants’ challenges to one
of BCRA’s coordination provisions, but also as to the merits of
appellants’ First Amendment challenges to that provision and
others, The Court should note probable jurisdiction on
appellants’ challenges to sections 202 and 214 of BCRA,’ and
await full briefing and argument before ruling on them.*

> Section 202 applies the coordination provisions of BCRA to disbursements
for electioneering communications. As intervenors themselves recognize,
see Intervenors Resp. 5 n.5, appellants’ challenge to section 202 rises or falls
with appellants’ other challenges.

‘Inexplicably, given the ardor with which they argue that this Court should
not consider other claims that the district court held to be nonjusticiable,
intervenors do not suggest that this Court should refuse to note probable
jurisdiction over appellants’ challenge to section 305, which burdens the
ability of federal candidates to refer to other candidates in their advertising.


INTRODUCTION

Consistent with the congressional mandate that the appeals in
the campaign finance litigation be “advance[d] on the docket
and expedite[d] to the greatest possible extent,’ BCRA
§ 403(a)(4), appellants filed their jurisdictional statement within
hours of the decision below. Appellants did so because they
believed that this Court should note probable jurisdiction on all
of the questions presented in an expedited manner, thereby
leaving the Court as much time as possible to consider the case
on the merits. The Executive Branch appellees share this view,
having urged this Court to note probable jurisdiction on all of
the questions presented “[iJn order to facilitate expeditious
resolution of this case in accordance with the statutory
mandate,” Executive Branch Resp. 7, and having further
proposed that this Court note probable jurisdiction on an
expedited basis, see Mot. of Executive Branch Defendants for
Expedited Briefing Schedule 2.

The Intervenor appellees, however, have taken a dramatically
different approach. While agreeing on the one hand that this
Court should note probable jurisdiction within a matter of days,
see id. at 1, they suggest on the other, in a voluminous and at
times belligerent filing, that this Court should “summarily
dispose of appellants’ challenges” to certain statutory
provisions, Intervenors Resp. 13. Leaving aside the curious fact
that the intervenors repeatedly stop short of asking this Court to
affirm the district court’s decision as to those provisions —
which is the appropriate course where a party believes that this
Court should not set issues in an appeal for briefing and oral
argument, see S. Ct. R. 18.6 — intervenors’ attempt to put
points on the board is both imprudent and unwise. Intervenors’
arguments regarding the justiciability of appellants’ challenges
to certain provisions of BCRA go directly to the merits of the
district court’s rulings on those provisions — rulings on which
the three members of the district court did not even agree.
Those justiciability rulings themselves present substantial


ii

TABLE OF AUTHORITIES
Page

CASES
Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ..sseesessesseessessessesseseesessveneeseeseeseeneseanee 5
Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) ....eeceeessecseecseesssesstsssessesseesneesseenenneens 5
FEC v. Christian Coalition,

52 F. Supp. 2d 45 (D.D.C. 1999)... eeeeeseesesssesssseseesseens 4
Thomas v. Collins,

323 U.S. 516 (1945) ..eseescessessessessessesnessesesseesseansseeseeneeees 3
United States v. Locke,

AT1 U.S. 84 (1985) ..cesseessesssesseesssessessressesseessesssecsuecseensens 3
STATUTES

Bipartisan Campaign Reform Act of 2002,
Pub. L. No. 107-155, 116 Stat. 81

11 C-F.R. § 109.10
68 Fed. Reg. 421 (2003) ..sesssscssesesssessssesssesssseessecsseenneesses 2
S.Ct R. 18.6 ceeccecceesssesesssessseesessseessresessessnessesssesaceeneenees 1



TABLE O

TABLE OF AUTHORITIES.

INTRODUCTION...........00008

ARGUMENT .....eeseessessseeens

CONCLUSION ......ecseseseeeee

F CONTENTS