08-205

IN THE

Supreme Court of the United States

CITIZENS UNITED,

Appellant,

—v.—

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF APPELLANT 

ON SUPPLEMENTAL QUESTION

STEVEN R. SHAPIRO

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

JOEL M. GORA

250 Joralemon Street 

Brooklyn, New York 11201

(718) 780-7926

MARK J. LOPEZ

LEWIS, CLIFTON

& NIKOLAIDIS, P.C. 

275 Seventh Avenue, Suite 2300

New York, New York 10001-6708

(212) 419-1512

d
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....................................... ii 

INTEREST OF AMICUS............................................ 1 

SUMMARY OF ARGUMENT .................................... 2 

ARGUMENT............................................................... 3 

SECTION 203 OF BCRA VIOLATES THE 

FIRST AMENDMENT AND SHOULD BE 

DECLARED FACIALLY UNCONSTITUTIONAL.................................................................... 3 

CONCLUSION ......................................................... 20 
ii 

TABLE OF AUTHORITIES 

Cases

American Civil Liberties Union, Inc. v. Jennings, 

366 F.Supp. 1041 (D.D.C. 1973), vacated 

as moot, 422 U.S. 1030 (1975)............................... 11 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ..................................... 2, 18, 19 

Baggett v. Bullitt, 377 U.S. 360 (1964) .................... 13 

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

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ................................................. 4 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) ........................................passim

Freedman v. Maryland ̧ 380 U.S. 51 (1965)............. 18 

Garrison v. Louisiana, 379 U.S. 64 (1964)............... 17 

McConnell v. FEC, 251 F.Supp.2d 176, 586 

(D.D.C. 2003) ......................................................... 10 

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

Miller v. California, 415 U.S. 15 (1973)................... 13 

Mills v. Alabama, 384 U.S. 214 (1966) ................ 6, 13 

Minneapolis Star & Tribune Co. v. Minnesota 

Comm’r of Revenue, 460 U.S. 575 (1983).............. 15 

NAACP v. Button, 371 U.S. 415 (1963)...................... 6 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) ................................................. 5 

Payne v. Tennessee, 501 U.S. 808 (1991).................. 12 
iii 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................... 1 

Smith v. Goguen, 415 U.S. 566 (1974) ..................... 13 

Speiser v. Randall, 357 U.S. 513 (1958) ............ 17, 18 

United States v. National Committee for 

Impeachment, 469 F.2d 1135 (2d Cir. 1972) .. 11, 12 

Watts v. United States, 394 U.S. 705 (1969) ........... 13 

Williams v. Rhodes, 393 U.S. 23 (1968)................... 16 

Statutes and Regulations

Bipartisan Campaign Reform Act of 2002................. 2 

2 U.S.C. § 434(f)(3) .................................................. 3 

2 U.S.C. § 441b(b)(2) (§ 203) ..........................passim

2 U.S.C. § 437c(2)(A) ............................................. 14 

Federal Election Campaign Act, Pub.L. 92-225, 

86 Stat. 3 (1971) .................................................... 10 

FISA Amendments Act, Pub.L. 110-261, 

122 Stat. 2436 (2008) .............................................. 4

Military Commissions Act, Pub.L. 109-366, 

120 Stat. 2600 (2006) .............................................. 4 

11 C.F.R. § 114.10(c)(4)(ii)........................................ 19
1 

INTEREST OF AMICUS1

The American Civil Liberties Union (ACLU) is a 

nationwide, nonprofit, nonpartisan organization with 

more than 500,000 members dedicated to the 

principles of liberty and equality embodied in the 

Constitution and our nation’s civil rights laws. 

 For the past three decades, the ACLU has been 

deeply engaged in the effort to reconcile campaign 

finance legislation and First Amendment principles, 

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

represented our New York affiliate, to McConnell v. 

FEC, 540 U.S. 93 (2003), where the ACLU was both 

co-counsel and plaintiff, to Randall v. Sorrell, 548 

U.S. 230 (2006), where we were lead counsel. In 

addition, the ACLU has appeared as amicus curiae

in many of this Court’s campaign finance cases, 

including FEC v. Wisconsin Right to Life, Inc. 

(“WRTL”), 551 U.S. 449 (2007). 

 As framed by the Court’s reargument order, 2009 

WL 1841614 (2009), this case presents fundamental 

questions concerning the constitutionally permissible 

scope of campaign finance regulation that this Court 

first confronted in Buckley and subsequently 

revisited in McConnell and WRTL. The proper 

resolution of that delicate balance remains an issue 

 

1 Pursuant to Rule 37.6, counsel for amicus curiae states that 

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

and no person, other than amicus curiae, its members, or its 

counsel made a monetary contribution to the preparation of this 

brief. Letters of consent to the filing of this brief have been 

lodged with the Clerk of the Court. 
2 

of substantial importance to the ACLU and its 

members. 

SUMMARY OF ARGUMENT 

The broad prohibition on “electioneering communications” set forth in § 203 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 

441b(b)(2), violates the First Amendment, and the 

limiting construction adopted by this Court in WRTL 

is insufficient to save it. Accordingly, the Court 

should strike down § 203 as facially unconstitutional 

and overrule that portion of McConnell that holds 

otherwise. 

 This brief addresses only that question. It does 

not address the additional question raised by this 

Court’s reargument order: namely, whether Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652 

(1990), should be overruled. However, if Austin is 

overruled and the ban on express advocacy by 

corporations and unions is struck down, then the ban 

on “electioneering communications” in § 203 would 

necessarily fall as a consequence. 

 Even if Austin is not overruled, § 203 is unconstitutional precisely because it extends beyond the 

express advocacy at issue in Austin. The history of 

the McConnell litigation, as well as campaign finance 

litigation before and after McConnell, demonstrates 

that there is no precise or predictable way to 

determine whether or not political speech is the 

“functional equivalent” of express advocacy. 

 The decision in WRTL correctly recognized that 

the BCRA’s prophylactic ban on “electioneering 
3 

communications” threatened speech that lies at the 

heart of the First Amendment, including genuine 

issue ads by nonpartisan organizations like the 

ACLU. But the reformulated ban crafted by this 

Court in WRTL continues to threaten core First 

Amendment speech. Its reliance on the hypothetical 

response of a reasonable listener still leaves speakers 

guessing about what speech is lawful and what 

speech is not. That uncertainty invites arbitrary and 

discriminatory enforcement. It will also lead many 

speakers to self-censor rather than risk sanctions or 

undertake the expense of suing the FEC prior to 

speaking, especially since most suits will not be 

resolved until long after the speech is timely and 

relevant. 

 In short, § 203 was a poorly conceived effort to 

restrict political speech and should be struck down.

ARGUMENT 

SECTION 203 OF BCRA VIOLATES THE 

FIRST AMENDMENT AND SHOULD BE 

DECLARED FACIALLY UNCONSTITUTIONAL. 

 1. In McConnell, supra, this Court upheld the 

facial validity of § 203. Section 203 bans 

corporations and unions from using general treasury 

funds to pay for “electioneering communications,” 

which are defined by BCRA as any “broadcast, cable, 

or satellite communication” that refers to “a clearly 

identified candidate for federal office” and that is 

made either 60 days before a general election or 30 

days before a primary election. See 2 U.S.C. § 

434(f)(3). 
4 

 That ban applies to both for-profit and non-profit 

corporations, like the ACLU.2 For that reason, the 

ACLU joined the challenge to BCRA in McConnell. 

As we noted at the time, Congress frequently votes 

on important bills affecting civil liberties in the 

period preceding an election. To choose two recent 

examples, the FISA Amendments Act, Pub.L. 110-

261, 122 Stat. 2436, was adopted in July 2008 

(shortly before the blackout period), and the Military 

Commissions Act, Pub.L. 109-366, 120 Stat. 2600, 

was adopted in October 2006 (during the blackout 

period). 

 Like many other advocacy organizations, the 

ACLU has found that broadcast ads can be an 

important tool for promoting our ideological goals. 

Although the ACLU has never supported or opposed 

a candidate for partisan office, its broadcast issue 

ads were nonetheless banned by BCRA if they met 

the definition of an “electioneering communication.” 

The government did not dispute the impact of BCRA 

on the ACLU’s advocacy efforts in McConnell, and 

this Court did not directly address it. Instead, the 

McConnell Court held that § 203 was facially valid 

because it was not substantially overbroad. 540 U.S. 

at 206-07. 

 2. Four years later, this Court significantly 

limited that holding in the context of an as-applied 

challenge to § 203. Specifically, in WRTL, the Court 

 

2 The only exception is for non-profit corporations that meet the 

criteria set forth by this Court in FEC v. Massachusetts Citizens 

for Life, Inc (“MCFL”), 479 U.S. 238 (1986). The relevance of 

MCFL to this case is discussed infra, at pp.18-19. 
5 

construed BCRA’s ban on “electioneering 

communications” to reach only communications that 

are “susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific 

candidate.” 551 U.S. at 470. 

 Several aspects of WRTL are worth emphasizing. 

First, the Court properly described § 203 as a 

content-based restriction on political speech that 

triggers strict scrutiny under the First Amendment. 

Id. at 464-65. Second, quoting New York Times Co. 

v. Sullivan, 376 U.S. 254, 270 (1964), the Court 

reiterated our “profound national commitment to the 

principle that debate on public issues should be 

uninhibited, robust, and wide-open.” Id. at 467. 

Third, the Court ruled that those wishing to express 

their views on core political issues are entitled to a 

constitutional “safe harbor” that does not turn on the 

subjective evaluation of agency regulators. Id. 

Fourth, the Court recognized that the line between 

campaign advocacy and issue advocacy is often 

difficult to draw in the real world, id. at 474, and 

that the “[d]iscussion of issues cannot be suppressed 

merely because the issues may also be pertinent to 

an election.” Id. Fifth, the Court made clear that 

“[w]here the First Amendment is implicated, the tie 

goes to the speaker, not the censor.” Id. (footnote 

omitted). In other words, a test that purports to 

distinguish between political ads that can be 

proscribed under the First Amendment and those 

that cannot “must give the benefit of any doubt to 

protecting rather than stifling speech.” Id. at 469. 

 3. To say that “the tie goes to the speaker, not 

the censor,” presumes a generally understood method 
6 

for determining the First Amendment score that can 

be fairly and consistently applied. The rules of 

baseball tolerate judgment calls but “[p]recision of 

regulation must be the touchstone in an area so 

closely touching our most precious freedoms.” 

NAACP v. Button, 371 U.S. 415, 438 (1963). Even as 

construed in WRTL, § 203 lacks the precision that 

the First Amendment requires. 

 Congress, to its credit, understood the constitutional problems it faced when it decided to abandon 

the “express advocacy” test that had marked the 

outer boundary of government regulation in this 

sensitive area since Buckley. It therefore took the 

unusual step of providing alternative definitions of 

the “electioneering communications” it sought to 

prohibit in § 203. 

 By describing an “electioneering communication” 

as any broadcast, cable or satellite ad that mentions 

a clearly identified candidate for federal office within 

a specified blackout period, the primary definition 

has the benefit of clarity. For First Amendment 

purposes, however, clarity and precision are not the 

same. A law that prohibits newspapers from 

publishing endorsements on Election Day is perfectly 

clear. It is also unconstitutional as this Court held 

more than forty years ago in Mills v. Alabama, 384 

U.S. 214 (1966), because it is not narrowly tailored to 

advance a compelling state interest. 

 Had this Court struck down the primary 

definition of an “electioneering communication” in 

WRTL, it would have been required to consider the 

fallback definition that Congress provided in 

anticipation of the possibility that its primary 
7 

definition might be declared unconstitutional. 

Unlike the primary definition, the fallback definition 

is not limited to the period preceding an election. 

Rather, its prohibition applies to any broadcast, 

satellite or cable communication that: (a) “promotes 

or supports a candidate for [federal] office, or attacks 

or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a 

vote for or against a candidate)”; and (b) is 

“suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific 

candidate.” 

 The Court’s holding in WRTL borrowed heavily 

from this fallback definition, which has neither 

clarity nor precision, but did so in the guise of 

construing the primary definition. To be sure, there 

are differences. By construing the primary definition 

rather than adopting the fallback definition, the 

WRTL Court maintained the temporal limitations of 

the primary definition, which continues to apply only 

during the congressionally specified blackout periods. 

Also, the WRTL Court did not incorporate the 

language of “promote,” “support,” “attack,” or 

“oppose” that Congress included in the fallback 

definition. But the operative language in the 

fallback definition, as Congress wrote it, is nearly 

identical to the operative effect of the primary 

definition, as this Court construed it in WRTL. 

Under the former, corporate and union funds cannot 

be used for an “electioneering communication” that is 

“suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific 

candidate.” Under the latter, corporate and union 
8 

funds cannot be used for any “electioneering 

communication” that is “susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a specific candidate.” 

 4. The ACLU’s position in McConnell was that 

both the primary definition and the fallback 

definition of “electioneering communications” in § 

203 are unconstitutional, and that remains our 

position. Because the language adopted by this Court 

in WRTL is indistinguishable in critical respects 

from the fallback definition, we believe it is 

constitutionally insufficient to solve the 

constitutional problems created by § 203. 

 Those problems are amply illustrated by the 

record in McConnell. As Justice Kennedy correctly 

noted in McConnell, “even defendants’ own experts 

disagree among themselves about whether specific 

ads fall within the prohibition” against “sham” issue 

ads. 540 U.S. at 338. Given the current debate about 

health care reform, one illustration from the 

McConnell record is particularly revealing. A group 

called the “Alliance for Quality Nursing Home Care” 

broadcast the following ad prior to the 2000 

presidential election. 

[Announcer]: There’s a nursing home crisis in 

America. Despite record budget surpluses 

Medicare has been cut by billions. Seniors’ 

access to quality nursing care threatened. 

[Woman]: Caring for the elderly: it becomes your 

life. But with Medicare cuts my job is much 

harder. 
9 

[Announcer]: Call. Tell Al Gore to fight to 

restore the Medicare cuts. Keep the promise. 

[Woman]: Help me help those who need it most. 

 This ad was shown to the principal congressional 

sponsors of BCRA during discovery in McConnell. 

Senator Feingold testified at his deposition that “[the 

ad] is certainly not helpful to Al Gore because what it 

suggests is that he was somehow responsible for the 

Medicare cuts and it, in my view, it’s sort of a sneaky 

way of trying to blame him without directly saying 

that he should be thrown out of office or not elected.” 

Senator McCain testified that the ad “implies that Al 

Gore was responsible for Medicare cuts, which is a 

pretty damning indictment.” Representatives 

Meehan and Shays, on the other hand, thought that 

the ad was “probably” intended to promote Senator 

Gore’s presidential candidacy.3

 It is possible, we realize, to dismiss the 

significance of those inconsistent responses by 

arguing that they focused on the intent of the ad’s 

sponsor, which is no longer a relevant consideration 

under this Court’s decision in WRTL.4 But, we think 

it is even more important to acknowledge that the 

 

3 See Consolidated Brief for Plaintiffs in Support of Motion for 

Judgment, McConnell v. FEC, No. 02-0582 (D.D.C.), at 72-73. 

4 “Far from serving the values the First Amendment is meant to 

protect, an intent-based test would chill core political speech by 

opening the door to a trial on every ad within the terms of § 

203, on the theory that the speaker actually intended to affect 

the election, no matter how compelling the indications that the 

ad concerned a pending legislative or policy issue.” WRTL, 551 

U.S. at 468. 
10 

question of whether an ad is the “functional 

equivalent” of express advocacy necessarily calls for 

a subjective response on the part of the listener 

despite this Court’s characterization of the WRTL 

test as an objective standard. Furthermore, those 

responses are likely to differ even among reasonable 

listeners. As Judge Kollar-Kotelly observed after 

reviewing the voluminous evidence presented to the 

three-judge district court in McConnell: “The expert 

testimony in this case . . . illustrates how one 

person’s genuine issue advertisement can be 

another’s electioneering commercial.” McConnell v. 

FEC, 251 F.Supp.2d 176, 586 (D.D.C. 

2003)(concurring opinion). 

 The history of campaign finance regulation 

demonstrates the need to erect sturdy safeguards for 

free speech. The modern era of campaign finance 

regulation began when Congress passed the Federal 

Election Campaign Act (“FECA”) of 1971, Pub.L. 92-

225, 86 Stat. 3. That law was applied for the first 

time against the National Committee Against 

Impeachment, a nonprofit organization that 

purchased a two-page ad in The New York Times in 

May 1972 calling for the impeachment of President 

Nixon and listing an “honor roll” consisting of 

Members of Congress supporting impeachment. The 

government’s theory was that the ad was intended to 

“influence” the outcome of the 1972 presidential and 

congressional elections and that, under FECA, the 

National Committee Against Impeachment was 

therefore barred from accepting contributions and 

spending additional funds unless it first registered as 

a “political committee.” Reversing a preliminary 
11 

injunction in the government’s favor, the Second 

Ciruit ruled that it would be “abhorrent” and 

“intolerable” to permit FECA to “regulat[e] the 

expression of opinion of fundamental issues of the 

day.” United States v. National Committee for 

Impeachment, 469 F.2d 1135, 1142 (2d Cir. 1972). 

 The ACLU found itself in a similar position 

when it sought to purchase an ad shortly before the 

1972 elections criticizing President Nixon’s busing 

policies and praising Members of Congress who 

shared the organization’s support for court-ordered 

busing as a remedy for school segregation in 

appropriate circumstances. Based on its understanding of FECA, The New York Times treated the 

ad as one “on behalf” of the reelection of the 

congressional members listed in the ad, and “in 

derogation” of President Nixon’s reelection campaign. 

It refused, accordingly, to print the ad unless the 

ACLU provided the newspaper with a statutorily 

required certification. A three-judge court held that 

the proposed interpretation of FECA “establishe[d] 

impermissible prior restraints, discourage[d] free 

and open discussion of matters of public concern and 

as such must be declared an unconstitutional means 

of effectuating legislative goals.” American Civil 

Liberties Union, Inc. v. Jennings, 366 F.Supp. 1041, 

1051 (D.D.C. 1973), vacated as moot, 422 U.S. 1030 

(1975). 

 It is certainly true that a legislative scheme that 

permits the regulation of political speech “on behalf” 

of a candidate, Jennings, or speech that is intended 

to “influence” an election, National Committee, is 

more constitutionally pernicious than the narrowing 
12 

interpretation of § 203 adopted in WRTL. But, that 

ought not to be the measuring stick. 

 The WRTL Court implicitly recognized that a 

determination of whether or not a particular ad (or in 

this case a movie) is “susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a specific candidate” will necessarily depend 

on the totality of circumstances. The Court then 

tried to limit the reach of that judicially-crafted 

language by noting that the particular ad at issue in 

WRTL did not mention an election or candidacy, and 

did not take a position on a candidate’s character, 

qualifications, or fitness for office. 551 U.S. at 470. 

However, none of those criteria were described as 

dispositive, which is hardly surprising since the 

underlying statute was consciously designed as an 

alternative to Buckley’s express advocacy test. By 

definition, any test that depends on a reasonable 

interpretation of the totality of circumstances has 

considerable play in the joints. 

 5. Despite this Court’s effort to narrow the scope 

of § 203 in WRTL, the statute should be declared 

facially unconstitutional for at least three 

independently sufficient reasons.5

 

5 Under these circumstances, stare decisis does not justify 

preserving the contrary holding in McConnell. McConnell is 

only six years old, its rationale on this point was substantially 

undermined by WRTL just two years ago, stare decisis has less 

force for constitutional rulings that cannot be corrected by 

Congress, and this is not a situation where there are any 

significant reliance issues. See Payne v. Tennessee, 501 U.S. 

808, 828 (1991)(and collected cases). 
13 

First, § 203 remains unconstitutionally vague. 

Vague laws chill speech and the vagueness doctrine 

therefore applies with special force in First 

Amendment cases. See Smith v. Goguen, 415 U.S. 

566, 572 (1974); Baggett v. Bullitt, 377 U.S. 360, 372 

(1964). 

 For that reason, First Amendment tests do not 

typically rely on the reaction of a “reasonable 

listener.” There are, of course, exceptions. The Miller 

test for obscenity rests, in part, on the response of 

the “average person” to the material at issue. Miller 

v. California, 415 U.S. 15, 24 (1973). This Court has 

also referred to the “reaction of the listeners” in 

determining whether speech qualifies as a “true 

threat” that can be proscribed. See Watts v. United 

States, 394 U.S. 705, 708 (1969). But, both those 

cases were dealing with speech that has historically 

been deemed outside the First Amendment. 

 This case, by contrast, deals with political speech 

at the First Amendment’s core. 

Whatever differences may exist about 

interpretations of the First Amendment, there is 

practically universal agreement that a major 

purpose of that Amendment was to protect the 

free discussion of governmental affairs. This of 

course includes discussions of candidates, 

structures and forms of government, the manner 

in which government is operated or should be 

operated, and all such matters relating to public 

processes. 

Mills v. Alabama, 384 U.S. at 218-219. To facilitate 

these discussions, the First Amendment demands a 
14 

bright line between protected speech and unlawful 

advocacy because political campaigns in the real 

world so rarely provide one. “Not only do candidates 

campaign on the basis of their positions on various 

public issues, but campaigns themselves generate 

issues of public interest.” Buckley, 424 U.S. at 42. 

 As an abstract matter, a hypothetically 

reasonable speaker should perhaps be able to predict 

with a reasonable degree of certainty how a 

hypothetically reasonable listener will interpret an 

ad. But piling hypotheticals together is no more 

consistent with strict scrutiny under the First 

Amendment than the “prophylaxis-upon-prophylaxis 

approach to regulating expression” that this Court 

rejected in WRTL. 551 U.S. at 479.6 

Second, vague laws invite discriminatory enforcement on the basis of viewpoint and that risk is 

particularly acute when what is at stake is political 

speech that may be harshly critical of those in power. 

FECA seeks to minimize that risk by providing that 

each major party is entitled to equal representation 

on the Federal Elections Commission. 2 U.S.C. 

§437c(2)(A). But the bipartisan composition of the 

 

6 Citing Buckley, the WRTL Court explained that a test based 

on the “actual effect” that speech will have on the target 

audiences “puts the speaker . . . wholly at the mercy of the 

varied understanding of his hearers.” 551 U.S. at 469. Although 

the majority rejected Justice Scalia’s critique that its own test 

suffered from the same vagueness problems, id. at 474 n.7, it is 

hard to see how a test based on the hypothetical impact of 

speech on a reasonable listener or listeners (who may have 

different responses that could be described as reasonable) 

provides greater clarity. 
15 

FEC does not protect minor parties; it does not 

protect groups that operate independently of any 

political party; and it does not extend to state and 

local laws that may not even attempt to insulate 

campaign finance enforcement from partisan 

political influence. 

Third, BCRA’s ban on “electioneering communications” currently extends only to broadcast, cable 

and satellite. That selective focus presents its own 

constitutional problems. The government concedes 

that Hillary: The Movie is not subject to BCRA if it is 

purchased as a DVD and watched at home, yet 

contends that it is subject to BCRA if ordered for 

home viewing as a pay-per-view movie. It is difficult 

to justify that distinction in any rational First 

Amendment world.7 

 More seriously, the limitations on covered media 

included in BCRA could be changed at any time. As 

the government made perfectly clear during oral 

argument in March, its constitutional theory would 

permit Congress to ban a book as well as a 30- 

second TV spot if the book satisfied the operative 

definition of an “electioneering communication” and 

the book’s corporate publisher paid for the book with 

general treasury funds (as it almost certainly would). 

Tr. at 26-30. The breadth of that concession is 

staggering. It has become commonplace to publish 

 

7 Cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of 

Revenue, 460 U.S. 575, 592 (1983)(holding that a special tax 

targeting a handful of newspapers “presents such a potential for 

abuse that no interest suggested by [the state] can justify the 

scheme.”). 
16 

books about candidates during campaign season. 

Such books almost always take a position on a 

candidate’s character, either explicitly or implicitly, 

which is one of the indicia of prohibited advocacy 

that this Court identified in WRTL. The fact that 

such books could be banned under the government’s 

theory unless funded by a PAC vividly illustrates 

why those criteria are insufficient to safeguard the 

important First Amendment interests at stake.8

 6. The government devotes a scant four pages of 

its supplemental brief to defending McConnell’s 

holding on the facial validity of § 203. Its defense is 

not only short, but unpersuasive. Initially, the 

government repeats its mantra that § 203 – as 

drafted by Congress and, a fortiori, as construed in 

WRTL – only reaches political speech that is the 

“functional equivalent” of express advocacy. 

Supp.Br. at 21-22. That cannot mean that § 203 only 

bans speech that would previously have been covered 

by the express advocacy rules since § 203 would then 

be pointless. Yet, the government never even 

attempts to define the daylight between Buckley and 

BCRA by explaining what speech is permitted by the 

former and prohibited by the latter. 

 If the government cannot state the difference 

clearly and succinctly, speakers covered by § 203 will 

necessarily be guessing when they venture beyond 

 

8 “Debate on the qualifications of candidates is integral to the 

system of government established by our Constitution,” 

Buckley, 424 U.S. at 14, and thus “at the core of our electoral 

process and of the First Amendment freedoms,” Williams v. 

Rhodes, 393 U.S. 23, 32 (1968). 
17 

express advocacy. Rather than risk sanctions, many 

speakers will “steer far wider of the unlawful zone,” 

Speiser v. Randall, 357 U.S. 513, 526 (1958). If so, 

the resulting constitutional injury is not limited to 

those who are silenced. “[S]peech concerning public 

affairs is more than self-expression, it is the essence 

of self-government.” Garrison v. Louisiana, 379 U.S. 

64, 74-75 (1964). 

 In fashioning the express advocacy doctrine, the 

Buckley Court was not naive. It understood that 

groups could devise “expenditures that skirted the 

restriction on express advocacy of election or defeat 

but nevertheless benefited the candidate’s 

campaign.” 424 U.S. at 46. But, contrary to the 

government’s position, the Court chose to accept that 

possibility rather than permit the suppression of 

constitutionally protected speech. 

 The government next contends that the chilling 

effect of § 203 is overstated because the FEC has 

provided “a simple mechanism” for corporations and 

unions to claim that their speech is permissible 

under WRTL. Supp.Br. at 22. But that “simple 

mechanism”—a regulatory form—only works if the 

FEC agrees with the speaker’s contention about 

WRTL’s impact on particular speech. The 

administrative review mechanism becomes less 

simple if the speaker must take the FEC to court. 

 In fact, the government’s suggested solution only 

compounds the constitutional problem. This Court 

has repeatedly held that the government may not 

impose a content-based restriction on speech and 

then place the burden on the speaker to establish the 

constitutionality of the proposed speech. 
18 

[W]here particular speech falls close to the line 

separating lawful and the unlawful, the 

possibility of mistaken fact-finding – inherent in 

all litigation – will create the danger that the 

legitimate utterance will be penalized . . . This 

is especially to be feared when the when the 

complexity of the proofs and the generality of 

the standards applied . . . provide but shifting 

sands on which the litigant must maintain his 

position.” 

Speiser v. Randall, 357 U.S. at 526 (citations 

omitted). See also Freedman v. Maryland ̧ 380 U.S. 

51, 58 (1965). 

 Finally, the government argues that free speech 

interests are adequately protected because Congress 

provided for expedited review of constitutional 

challenges to BCRA. Supp.Br. at 23. This Court 

took a more realistic view in WRTL, agreeing with 

the district court’s assessment that “it would be 

‘entirely unreasonable . . . to expect that [the 

speaker] could have obtained complete judicial 

review of its claims in time for its ads’ during the 

BCRA blackout periods.” 551 U.S. at 462 (citations 

omitted). 

 7. As noted at the outset, this brief does not 

address the question of whether Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652 (1990), should 

be overruled. At the very least, however, the ACLU 

strongly believes that this Court should hold that the 

MCFL exception for nonprofit, ideological 

corporations that do not accept corporate funding, see 

n.2, supra, should extend to organizations like the 

ACLU that only accept de minimis funding from 
19 

sources other than individual donors. Contrary to 

the position it has taken for years, see 11 C.F.R. § 

114.10(c)(4)(ii), the government now apparently 

concedes, or at least acknowledges, that MCFL 

applies to nonprofit, ideological corporations that are 

financed “overwhelmingly” by individual donations. 

Supp.Br. at 3 n.3. The ACLU urges the Court to 

adopt that interpretation of MCFL, if it does not 

overrule Austin entirely. 
20 

CONCLUSION 

 For the reasons stated herein, this Court should 

declare § 203 of BCRA facially unconstitutional 

under the First Amendment, and overrule the 

contrary holding in McConnell. 

 Respectfully submitted, 

Steven R. Shapiro 

 Counsel of Record 

American Civil Liberties 

 Union Foundation 

125 Broad Street 

New York, NY 10004 

(212) 549-2500 

Joel M. Gora 

250 Joralemon Street 

Brooklyn, NY 11201 

(718) 780-7926 

Mark J. Lopez 

Lewis, Clifton & 

Nikolaidis, P.C. 

275 Seventh Ave. Ste. 2300 

New York, NY 10001-6708 

(212) 419-1512 

Dated: July 29, 2009