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No. 02-1675 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

NATIONAL RIFLE ASSOCIATION, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The 

United States District Court 

For The District Of Columbia 

----♦-- -

BRIEF FOR APPELLANTS THE NATIONAL 

RIFLE ASSOCIATION, ET AL. (INITIAL VERSION 

WITH CITATIONS TO THE RECORD) 

----♦-- -

CLETA MITCHELL 

FOLEY & LARDNER 

3000 K Street, N.W. Suite 500 

Washington, D.C. 20007 

(202) 295-4081 

July 8, 2003 

CHARLES J. COOPER 

Counsel of Record 

DAVID H. THOMPSON


HAMISH P.M. HUME


DEREK L. SHAFFER


COOPER & KIRK, PLLC


1500 K Street, N.W.


Suite 200 


Washington, D.C. 20005 


(202) 220-9600 


BRIAN S. KOUKOUTCHOS


COOPER & KIRK, PLLC


28 Eagle Trace 


Mandeville, LA 70471 


(985) 626-5052 


================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

QUESTIONS PRESENTED 

1. 	Whether Congress restricted corporate and union 

“electioneering communications” about candidates in 

Title II of the Bipartisan Campaign Reform Act of 2002 

(“BCRA”) in order to serve a compelling governmental 

purpose, as required by the First Amendment to the 

United States Constitution. 

2. 	Whether Congress adopted the least restrictive means 

of regulating political speech by flatly prohibiting “electioneering communications” by both nonprofit 501(c)(4) 

corporations and for-profit corporations alike in Section 

204 of BCRA, rather than permitting 501(c)(4) corporations to fund such communications exclusively with 

individual contributions, as was initially contemplated 

in Section 203(b). 

3. 	Whether Congress adequately tailored the definitions 

of “electioneering communications” in Section 201 of 

BCRA to serve the anti-corruption purpose proffered in 

support of those definitions. 

4. 	Whether Congress violated the Equal Protection 

guarantee of the Fifth Amendment by granting a special exemption in Section 201 of BCRA for political 

speech by corporations that own broadcast facilities, as 

opposed to all other corporations whose identical 

speech constitutes forbidden “electioneering communications.” 
ii 

PARTIES TO THE PROCEEDINGS 

Appellants in this case, No. 02-1675, plaintiffs in the 

court below, are the National Rifle Association (“NRA”) 

and the National Rifle Association Political Victory Fund 

(“PVF”), a Political Action Committee (“PAC”) of the 

NRA.* 

Appellees, defendants or intervenor-defendants below, 

are the Federal Election Commission and its Commissioners; the Federal Communications Commission; the United 

States of America; Senator John McCain; Senator Russell 

Feingold; Representative Christopher Shays; Representative Martin Meehan; Senator Olympia Snowe; and Senator 

James Jeffords. 

* As stated in appellants’ jurisdictional statement, neither 

appellant has a parent corporation, and no publicly held company owns 

10% or more of the stock of either appellant. 
iii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES........................................... v 


OPINIONS BELOW....................................................... 1 


JURISDICTION ............................................................. 1 


PERTINENT CONSTITUTIONAL AND STATUTORY


PROVISIONS ............................................................. 1 


STATEMENT.................................................................. 1 


INTRODUCTION AND SUMMARY OF ARGUMENT... 3 


ARGUMENT................................................................... 7 


I. TITLE II’S PURPOSE IS TO STIFLE CORE 


POLITICAL SPEECH ...................................... 7 


II. TITLE II’S RESTRICTIONS ON “ELECTION­


EERING COMMUNICATIONS” CANNOT BE 


JUSTIFIED AS PREVENTING CORRUPTION. 15


A. 	 Title II Was Not Designed To Prevent Cor­


ruption.......................................................... 15 


B. 	Gratitude For Political Support Is Not 


Corruption.................................................... 17 


C. 	 Title II Cannot Be Justified As Preventing 


Austin-style Corruption .............................. 20 


D.	 Title II Cannot Be Justified As Protecting 


Members Of Advocacy Groups From Mis-


Use Of Their Donations .............................. 23 


E. 	 Requiring The NRA To Speak Through Its


PAC Will Artificially Deflate Its Voice........ 24 

iv 

TABLE OF CONTENTS – Continued 

Page 

III. THE WELLSTONE AMENDMENT’S SUP­


PRESSION OF POLITICAL SPEECH FUNDED


EXCLUSIVELY WITH INDIVIDUAL CONTRI­


BUTIONS IS UNCONSTITUTIONAL ............... 28 


IV. TITLE II IS FATALLY OVERBROAD............... 33 


A. 	Title II Criminalizes The Speech Of Or­


ganizations That Pose No Threat Of Cor­


rupting The Political Process...................... 34 


B. 	 Title II Criminalizes Speech That Is Not 


Intended To Influence Elections ................. 35 


V. TITLE II UNCONSTITUTIONALLY DIS­


CRIMINATES IN FAVOR OF MEDIA COR­


PORATIONS....................................................... 44 


CONCLUSION............................................................ 50 


LEGISLATIVE HISTORY APPENDIX ...................... 1a 
v 

TABLE OF AUTHORITIES 

Page 

CASES 

Arlington Heights v. Metro. Hous. Dev. Corp., 429 


U.S. 252 (1977) ................................................................11 


Ashcroft v. Free Speech Coalition, 535 U.S. 234


(2002) .............................................................................. 33 


Austin v. Michigan State Chamber of Commerce, 

494 U.S. 652 (1990) .................................................passim 

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

California Med. Ass’n v. FEC, 453 U.S. 182 (1981).......... 31 


City of Ladue v. Gilleo, 512 U.S. 43 (1994) ......................... 9 


Colorado Election Comm. v. Colorado Republican


Fed. Campaign Comm., 533 U.S. 431 (2001)................ 15 


Colorado Republican Fed. Campaign Comm. v.


FEC, 518 U.S. 604 (1996)......................................... 15, 24 


Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 


472 U.S. 749 (1985) ........................................................ 45 


Edwards v. California, 314 U.S. 160 (1941) ..................... 34 


FCC v. League of Women Voters, 468 U.S. 364 


(1984) .............................................................................. 45 


FEC v. Beaumont, No. 02-403, 123 S. Ct. 2200, slip 


op. (June 16, 2003) ................................. 15, 21, 22, 23, 31 


FEC v. MCFL, 479 U.S. 238 (1986) ............................passim 

FEC v. NCPAC, 470 U.S. 480 (1985) ......... 10, 24, 29, 32, 34 


FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d 


Cir. 1995)......................................................................... 35 


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


(1978) ............................................................ 20, 36, 45, 46

vi 

TABLE OF AUTHORITIES – Continued 

Page 

Grutter v. Bollinger, No. 02-241, slip op. (U.S. June 


23, 2003).......................................................................... 46 


MCCL v. FEC, 113 F.3d 129 (8th Cir. 1997)...................... 35 


MCCL v. FEC, 936 F. Supp. 633 (D. Minn. 1996),


aff’d, 113 F.3d 129 (8th Cir. 1997) ................................. 35 


Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 


(1974) .............................................................................. 14 


Mills v. Alabama, 384 U.S. 214 (1966)........................ 14, 45 


New York Times Co. v. Sullivan, 376 U.S. 254 


(1964) .............................................................. 3, 12, 13, 14


Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 


(2000) ...................................................................10, 11, 26 


Pennsylvania Dep’t of Corrections v. Yeskey, 524


U.S. 206 (1998) ............................................................... 35 


Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ............ 45 


Renne v. Geary, 501 U.S. 312 (1991) ................................. 34 


Republican Party of Minnesota v. White, 536 U.S. 


765 (2002) ....................................................................... 25 


Reno v. ACLU, 521 U.S. 844 (1997)................................... 42 


Thompson v. Western States Med. Ctr., 535 U.S. 357


(2002) .............................................................................. 16 


Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 


(1997) ........................................................................ 16, 46 


Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 


(1994) .............................................................................. 16 

vii 

TABLE OF AUTHORITIES – Continued 

Page 

United States v. Playboy Entm’t Group, Inc., 529


U.S. 803 (2000) ............................................................... 46 


United States v. Virginia, 518 U.S. 515 (1996) ................. 16 


STATUTES, RULES AND REGULATIONS 

26 U.S.C. § 501(c)(4)............................................................. 1 


11 C.F.R. § 100.29(b)(2) ...................................................... 44 


11 C.F.R. § 114.1 ................................................................. 26 


11 C.F.R. § 114.5(b)............................................................. 32 


11 C.F.R. § 114.7 ................................................................. 26 


11 C.F.R. § 114.10(c) ........................................................... 35 


OTHER: 

Lewis, Anthony, MAKE NO LAW 52 (Random House 


1991).................................................................................11 

1 

OPINIONS BELOW 

The opinions and order of the district court are reported at 251 F. Supp. 2d 176 (D.D.C. May 1, 2003) and 

are reprinted in the supplemental appendix to the jurisdictional statements (“S.A.”) filed in the cases consolidated 

with McConnell v. FEC, No. 02-1674. See S.A. 1-1382. 

JURISDICTION 

The District Court entered judgment on May 1, 2003. 

Appellants the National Rifle Association (the “NRA”) and 

the NRA Political Victory Fund (the “PVF”) filed their 

timely notice of appeal on May 5, 2003. This Court has 

appellate jurisdiction under § 403(a)(3) of BCRA. 

PERTINENT CONSTITUTIONAL AND 

STATUTORY PROVISIONS 

The First and Fifth Amendments to the United States 

Constitution, and relevant provisions of BCRA, are reproduced at App. 5a-6a and 20a-29a of the NRA’s jurisdictional statement. 

STATEMENT1 

The NRA is a nonprofit, voluntary membership 

corporation qualified as tax-exempt under 26 U.S.C. 

§ 501(c)(4). Its four million members are individual Americans bound together by a common desire to ensure the 

preservation of the Second Amendment right to keep and 

bear arms. S.A. 219 ¶2 (Henderson). “The NRA’s frequent 

references to candidates for federal office and the programming it broadcasts throughout the election cycle – 

including the period immediately preceding primaries and 

1 In order to avoid unnecessary duplication, this statement relies 

upon the brief filed by appellants in McConnell v. FEC, No. 02-1674, for 

a more detailed description of Title II of the Bipartisan Campaign 

Reform Act (“BCRA”) and the procedural background of this litigation. 
2 

general elections – are essential to its political mission of 

educating the public about Second Amendment and 

related firearm issues.” S.A. 256 (Henderson). In 2000, it 

paid for more speech on television – over 300,000 minutes 

– than all other issue advocacy groups and unions combined. See NRA App. 4 (LaPierre Decl.) ¶10.2 

The NRA’s political speech furthers a variety of 

purposes: the NRA educates and informs its members and 

the public about specific legislative threats to Second 

Amendment rights, as well as broader political and cultural pressures on gun rights; the NRA also defends itself 

against attacks on its positions and reputation made by 

the media and by anti-NRA politicians; and the NRA 

recruits members and raises funds throughout the year. In 

almost all of this speech, the NRA refers to federal officeholders and candidates. S.A. 256 ¶51 (Henderson). And yet 

the vast bulk of its political speech that furthered these 

purposes in 2000 was not intended to influence a federal 

election. See NRA App. 5-6, 17, 21-22 (LaPierre Decl.) 

¶¶14-15, 40, 50.3

 The PVF is a political committee within 

the meaning of 2 U.S.C. § 431(4) and is a separate segregated fund of the NRA. The PVF runs ads that expressly 

advocate the defeat or election of a candidate. 

The NRA funds its speech almost exclusively with 

dues and contributions from individual members. The 

2 The record in the District Court included three volumes of 

appendices and a supplemental appendix filed by the NRA, which are 

collectively cited herein as “NRA App.” After the joint appendix is filed, 

the NRA will, in accordance with this Court’s instructions and Rule 

26.4(b), timely submit a final brief replacing these citations with 

citations to the joint appendix. Attached hereto is an appendix of 

relevant legislative history referred to as “LH App.” 

3 To be sure, in 2000 the NRA also aired approximately 30,000 

minutes of speech designed to, among other things, inform the public of 

the grave threat that Vice President Gore’s presidential candidacy 

posed to Americans’ Second Amendment rights. See S.A. 234-35 ¶42a 

(Henderson); S.A. 695 ¶2.6.4.3 (Kollar-Kotelly); NRA App. 20 (LaPierre 

Decl.) ¶45. 
3 

organization does not accept business corporations as 

members and the contributions that it receives from such 

corporations are negligible (approximately $385,000 in 

2000), especially in relation to its income from the dues 

and contributions of individual members (approximately 

$140 million in 2000). See S.A. 258-59 ¶51f (Henderson); 

NRA App. 198 (filed under seal); NRA App. 23 (LaPierre 

Decl.) ¶56. The average individual contribution to the 

NRA is $30. S.A. 89 ¶41 (Per Curiam); S.A. 258 ¶51f 

(Henderson). In short, the NRA is an organization comprised of ordinary Americans of moderate means who join 

their voices in a common effort to defend, promote, and 

enjoy a constitutional freedom that is precious to them. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

“[A] representative democracy ceases to exist the 

moment that the public functionaries are by any 

means absolved from their responsibility to their 

constituents; and this happens whenever the 

constituent can be restrained in any manner 

from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.” 

New York Times Co. v. Sullivan, 376 U.S. 254, 297 (1964) 

(Black, J., joined by Douglas, J., concurring) (quoting 1 ST. 

GEORGE TUCKER, BLACKSTONE’S COMMENTARIES (1803), 297 

(editor’s appendix)). If there is truth in this proposition, 

and this Court has reiterated it in many cases, then Title 

II of BCRA cannot stand, for it bans, on pain of criminal 

sanction, independent expenditures for broadcasting 

“opinions . . . upon the conduct of those who may advise or 

execute” public measures. It is, after all, references to 

candidates for federal office that the NRA and similar 

issue advocacy organizations are restricted by Title II from 

broadcasting during an election campaign. 

Title II’s purpose is to severely restrict the quantity 

and content of core political speech, a purpose that is 

“wholly foreign to the First Amendment.” Buckley v. Valeo, 

424 U.S. 1, 49 (1976). This is irrefutably clear from the 
4 

plain words of the statute itself; from the floor statements 

of legislators who supported the measure; from the sworn 

testimony of BCRA’s main sponsors, who intervened in 

this litigation; from the law’s clearly foreseeable effect of 

suppressing political speech; and even from the Intervenors’ own brief below, which candidly blamed “the amount 

of general treasury funds at the disposal” of “interest 

groups” like the NRA for the “explosion” in recent years of 

issue ads – or “negative attack ads,” in their vernacular. 

Intervenors’ Opening Br. 104 (filed Nov. 6, 2002) (emphasis 

added). Indeed, the Government and the Intervenors 

(collectively “Defendants”) went to great lengths to establish that this explosion in political speech was the predicate for, and specific target of, Title II. BCRA bans speech 

to precisely the extent that it succeeds in its goal of muffling this explosion. 

This Court’s decisions have consistently drawn an 

outcome-determinative distinction between legislative 

restrictions on independent political expenditures and on 

direct campaign contributions. Because independent 

expenditures, in contrast to campaign contributions, 

produce “core First Amendment expression” and pose little 

“danger[] of real or apparent corruption,” Buckley, 424 

U.S. at 48, 46, this Court has, with one exception, consistently struck down expenditure limits as failing to narrowly serve the compelling government interest of 

preventing corruption of the electoral process. Title II 

fares no better. To be sure, Defendants introduced in the 

District Court a mountain of evidence in support of their 

claim that the current campaign finance system is widely 

perceived to corrupt the political process. But that evidence relates almost entirely to the corrupting influence of 

unregulated “soft money” campaign contributions, which 

are addressed by Title I. The record contains no substantial evidence that the public regards political ads aired by 

advocacy groups as corrupting or in any way differentiates 

them from ads funded by PACs. 

Nor can Title II find shelter in the only decision of this 

Court upholding an expenditure limit, Austin v. Michigan 

State Chamber of Commerce, 494 U.S. 652 (1990). Title II’s 
5 

purpose, according to the Government, is merely “to 

ensure that [independent electioneering] spending ‘reflect[s] actual public support for the political ideas 

espoused by corporations and unions, rather than their 

success in the economic marketplace, Austin, 494 U.S. at 

660. . . . ” Gov’t Opp’n Br. 56 (filed Nov. 20, 2002). But 

Austin simply cannot be made to support a speech restriction that extends any further than is necessary to ensure 

that a nonprofit advocacy group’s independent political 

spending bears a fair and reasonable “correlation to the 

public’s support for the corporation’s political ideas,” 494 

U.S. 660, as measured by the financial support of individual members rather than business corporations. The NRA, 

in contrast to trade or business associations, derives only a 

miniscule portion of its revenues from corporate contributions. It is funded almost exclusively by membership dues 

of approximately four million individuals of ordinary 

means, the vast bulk of whom cannot afford to make an 

additional donation to the NRA’s PAC, the PVF, as is 

required under Title II in order to fund an electioneering 

communication. Thus, far from preventing the NRA’s 

political voice from being unfairly inflated by funds derived from the economic marketplace, Title II reduces the 

NRA’s political voice to a whisper when compared to its 

actual public support in the political marketplace. By 

channeling the NRA’s political speech through its PAC, 

Title II artificially impedes the ability of ordinary Americans of modest means to participate effectively in our 

democracy. And that is the measure’s avowed purpose; it 

cannot be intelligibly understood except as a naked effort 

to suppress political speech for its own sake. 

But even if one looks past this dispositive refutation of 

the claim that Title II was designed to prevent Austin-type 

corruption of the electoral process, the measure nonetheless must fall, for there were less restrictive means available to Congress to ensure that the political voices of 

grassroots issue advocacy groups like the NRA were not 

unfairly inflated by contributions from business corporations. Indeed, Congress enacted a less restrictive alternative in Title II itself: the original “Snowe-Jeffords” version 
6 

of Title II would have exempted electioneering communications by 501(c)(4) advocacy groups like the NRA, so long as 

they were “paid for exclusively by funds provided directly 

by individuals.” BCRA § 203(b) (adding to U.S.C. 

§ 441b(c)(2)). The so-called “Wellstone Amendment,” however, negated the Snowe-Jeffords Provision, see § 204 

(adding 2 U.S.C. § 441b(c)(6)), for the specific purpose of 

extending Title II to nonprofit issue advocacy organizations. 

Senators McCain and Feingold and the other sponsors 

of BCRA opposed the Wellstone Amendment, not because 

they valued the political speech of the NRA and other 

grassroots advocacy groups that the amendment would 

stifle, but because they believed that the amendment 

would likely be struck down by this Court as unconstitutional. BCRA’s opponents overwhelmingly supported the 

amendment, presumably for this very reason. BCRA’s 

sponsors therefore insisted both that a severability clause 

be enacted and that the original Snowe-Jeffords language 

remain in the bill, so that invalidation of the Wellstone 

Amendment would not threaten Title II as a whole. If the 

Wellstone Amendment is upheld, it will mark the first 

time in our Nation’s history that the Court has sanctioned 

a content-based restriction on core political speech funded 

by like-minded individuals. 

Even if Title II did not suffer from the foregoing 

constitutional flaws, it is fatally overbroad for two independent reasons. First, BCRA regulates speakers that pose 

no threat of corruption. Simply put, there is no threat of 

corruption (or the appearance thereof) arising from likeminded individuals pooling their resources in a grassroots 

advocacy organization. Indeed, such collective action is the 

only way that citizens of ordinary means can have their 

voice heard in the mass media. Second, Title II sweeps 

within its restriction entire categories of speech that are 

wholly divorced from the measure’s alleged target of 

speech intended to influence an election. An issue advocacy organization typically names federal officeholders and 

candidates for innumerable reasons, ranging from the 

need to educate the public about threats to the groups’ 

beliefs, to defending itself against direct attacks launched 
7 

by the politicians themselves. One could not have decried 

McCarthyism without mentioning McCarthy. And, as 

Judge Henderson found, when the NRA’s speech is properly taken into account, more than a third of the broadcasts that Title II would have criminalized in the 2000 

cycle were genuine issue ads unrelated to a federal election. 

Finally, Title II carves out an exception for the electioneering communications of broadcast media companies. 

This media exception to Title II renders the measure 

unconstitutional in its entirety. This Court has consistently rejected the proposition that the institutional press 

has special First Amendment rights, and thus any 

speaker-based preference must be justified by a compelling 

governmental interest. Here, there is no such rationale. 

The factual predicates found in Austin to be sufficient to 

justify such a media exception simply no longer exist. With 

more Americans using the Internet than reading a daily 

newspaper, the broadcast media no longer play a “unique” 

role in “informing and educating” the public. 494 U.S. at 

667. And with some of the world’s largest multinational 

conglomerates now dominating the media industry, the 

notion that “media corporations differ significantly from 

other corporations” is plainly antiquated. Id. If grassroots 

advocacy organizations funded by their individual members truly pose a meaningful threat of an appearance of 

corruption, then surely so do the likes of Microsoft, Disney, 

General Electric, and AOL TimeWarner, each of which 

owns national television channels. 

ARGUMENT 

I. TITLE II’S PURPOSE IS TO STIFLE CORE 

POLITICAL SPEECH. 

These groups often run ads that the candidates 

themselves disapprove of. Further, these ads are 

almost always negative attack ads and do little to 

further beneficial debate and a healthy political 

dialog. To be honest, they simply drive up an 

individual candidate’s negative polling numbers 
8 

and increase public cynicism for public service in 

general. 

– Senator John McCain (LH App. 1a). 

Thus did Senator McCain urge enactment of Title II’s 

restriction on the rights of “these groups” to air advertisements critical of him during an election campaign. Title II 

creates a new crime and a new class of felons: corporations 

and unions that engage in “electioneering communications,” which are defined as “[a]ny broadcast, cable, or 

satellite communication which . . . refers to a clearly 

identified candidate for federal office . . . 60 days before a 

general, special, or runoff election for the office sought by 

the candidate; or . . . 30 days before a primary or preference election. . . . ” BCRA § 201(a) (adding new FECA 

§ 304(f)).4

 To be sure, Title II’s restrictions on electoral 

speech are indifferent to whether the ads seek to bury 

Caesar or to praise him; they criminalize positive ads as 

well as negative. But the world has never seen, and never 

will see, a law aimed at praise of the lawmakers. And, in 

any event, sponsors and supporters of Title II in Congress 

made no bones about their target. One supporter after 

another openly echoed Senator McCain’s complaint 

against “negative attack ads”:5 

4 Title II also includes a fallback definition of “electioneering 

communication,” to take effect only if the primary definition is held 

“constitutionally insufficient.” Id. The NRA has already explained in an 

emergency stay application to the Chief Justice that the truncated 

version of that fallback definition, as revised by Judge Leon and upheld 

by the District Court, is unconstitutional. The NRA therefore will not 

belabor those arguments here but, instead, incorporates them by 

reference. No matter its precise form, however, the fallback definition 

suffers from the same constitutional defects outlined herein with 

respect to the primary definition. 

5 Congress’s purpose to stifle disfavored speech is further inscribed 

upon the statute itself, which grants “a free pass” to those electioneering 

communications that travel through newspaper and direct mail ads or 

are broadcast by media corporations, although such communications 

pose the very same corruption concerns now invoked by Defendants. See 

(Continued on following page) 
9 


• Sen. McCain: “I hope that we will not allow our 

attention to be distracted from the real issues at hand – 

how to raise the tenor of the debate in our elections and 

give people real choices. No one benefits from negative 

ads. They don’t aid our Nation’s political dialog.” (LH App. 

3a). 

• Senator Wellstone: “I think these issue advocacy 

ads are a nightmare. I think all of us should hate 

them. . . . We could get some of this poison politics off 

television.” (LH App. 8a). 

• Senator Jeffords: “[Issue ads] are obviously 

pointed at positions that are taken by you saying how 

horrible they are. . . . The opposition comes forth with this 

barrage [of ads] and you are totally helpless.” (LH App. 

5a). 

• Senator Cantwell: “[Title II] is about slowing 

political advertising and making sure the flow of negative 

ads by outside interest groups does not continue to permeate the airwaves.” (LH App. 9a). 

• Senator Boxer: “We have an opportunity in the 

McCain-Feingold bill to stop [negative ads] and basically 

say, if you want to talk about an issue, that is fine, but you 

can’t mention a candidate. . . . ” (LH App. 13a). 

• Senator Daschle: “The ‘issue ads’ are more attackoriented and personal.” (LH App. 14a). “I believe that 

negative advertising is the crack cocaine of politics.” (LH 

App. 14a).6 

S.A. 364-65 (Henderson). This underinclusiveness fatally “diminish[es] 

the credibility of the government’s rationale for restricting speech in the 

first place.” City of Ladue v. Gilleo, 512 U.S. 43, 45 (1994). 

6 This is a small but representative sample of the statements made 

in the Senate and the House reflecting Congress’s overriding concern 

with stifling negative advertising that it deemed offensive, and, indeed, 

pernicious. A more complete list of such statements, including full 

citations to the relevant pages of the congressional record, is assembled 

in the legislative history appendix to this brief. See LH App. 1a-39a. It is 

also apparent from the legislative record that Congress was intent upon 

(Continued on following page) 
10 

And in defending the measure as an intervenor to this 

case, Senator McCain confirmed that Congress specifically 

targeted speech critical of candidates for federal office: 

“The real world is that the overwhelming majority of ads 

that we see running today are attack ads that are called 

issue ads, which are direct, blatant attacks on the candidates. . . . We don’t think that’s right.” NRA App. 92 (Sen. 

McCain Dep.) at 100.7 

A. In targeting issue ads by corporations and unions, 

Title II is of a piece with the rest of BCRA, the overarching 

thrust of which is to “insulate[] legislators from effective 

electoral challenge.” Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377, 404 (2000) (Breyer, J., concurring). All agree that 

money plays a pivotal role in the American political 

system given the necessity and enormous expense of 

communicating political speech through the broadcast 

media, especially television. See FEC v. NCPAC, 470 U.S. 

480, 494 (1985). In a transparent effort to protect their 

own incumbencies, BCRA’s proponents sought to dry up 

every source of funds for such political speech except socalled “hard money” funds raised from individuals and 

PACs, the two sources of funds in which incumbents have 

a gigantic advantage over challengers. See NRA App. 119. 

And BCRA doubles the limits on individual contributions 

to candidates. As an additional measure of protection, 

Congress further leveraged the “media-related advantages 

repelling what it viewed as intrusion by outside groups, with their 

independent political ads, upon candidates’ ability to control their own 

campaign agendas; according to Senator Boxer, for instance, the ads of 

outside groups “bring[] in other issues that the two candidates themselves do not even want to talk about.” LH App. 40a; see also id. 40a-45a. 

7 The intervening defendants consistently echoed this theme in 

their sworn testimony. See, e.g., NRA App. 95 (Sen. McCain Dep.) at p. 

127; NRA App. 89 (Sen. Jeffords Dep.) at p. 76; NRA App. 84 (Sen. 

Jeffords Dep.) at p. 7; NRA App. 85 (Sen. Jeffords Dep.) at p. 15; NRA 

App. 87 (Sen. Jeffords Dep.) at p. 22; NRA App. 97 (Rep. Meehan Dep.) 

at p. 54; NRA App. 101 (Rep. Shays Decl.) at ¶13. 
11 

of incumbency” by exempting media corporations from 

Title II’s restrictions. Shrink, 528 U.S. at 404 (Breyer, J., 

concurring). See R.195 (Report of James Miller III at 19) 

(media exception confers “considerable advantage” upon 

incumbents by virtue of their access to “inside information” about the legislative process). 

With this sharply skewed playing field in place, only 

two threats to incumbents remained. First, the threat of 

“outside interest groups” airing “negative attack ads” was 

quashed by Title II. Second, Congress responded to the 

threat of challenges from wealthy, self-funded candidates 

by raising the contribution limits for candidates who face 

such a challenge. Given that all of BCRA’s provisions 

operate to the advantage of incumbents, the political 

class’s age-old instinct for self-preservation is readily 

apparent. See Arlington Heights v. Metro. Hous. Dev. 

Corp., 429 U.S. 252, 266 (1977) (effects of a law are probative of statutory intent). This Court should not defer to 

Congress’s (or more accurately the Justice Department’s) 

asserted rationales where, as here, “that deference . . . 

risk[s] such constitutional evils as, say, permitting incumbents to insulate themselves against effective electoral 

challenge.” Shrink, 528 U.S. at 402 (Breyer, J., concurring). 

B. When viewed against the long and largely doleful 

history of governments among men, Title II’s restraint on 

“electioneering communications” is entirely unremarkable 

– just another example of the “standard practice” of the 

governors “us[ing] the criminal law to insulate themselves 

from disagreement” by the governed. Anthony Lewis, 

MAKE NO LAW 52 (Random House, 1991). Even in our open 

democratic society, Title II’s restraint on electoral speech is 

not without its chilling historical antecedents. The infamous Sedition Act of 1798, like Title II, was specifically 
12 

aimed at stifling speech critical of the Government and its 

elected members.8 

Proponents of the Sedition Act in the 5th Congress, 

like BCRA’s supporters in the 107th, decried “malicious 

calumnies against Government,” speech designed to 

“inflame . . . constituents against the Government,” 

publications “calculated to destroy . . . every ligament that 

unites . . . man to society and to Government,” and “representations [that] are outrages on the national authority, 

which ought not to be suffered.” NRA App. 111-13. Opponents of the Sedition Act in Congress, like opponents of 

BCRA, argued then, as we do now: 

This bill and its supporters suppose, in fact, that 

whoever dislikes the measures . . . of a temporary 

majority in Congress, and shall . . . express his 

disapprobation and his want of confidence in the 

men now in power, is seditious and is liable to 

punishment. . . . If you thus deprive the people of 

the means of obtaining information of their conduct, you in fact render their right of electing 

nugatory; and this bill must be considered only 

as a weapon used by a party now in power, in order to perpetuate their authority and preserve 

their present places. 

NRA App. 114.9 

The Sedition Act never reached this Court, but in 

New York Times Co. v. Sullivan, 376 U.S. at 276, the Court 

8 See S.A. 259-60 ¶51g (Henderson); NRA App. 109-10. The Act 

made it a crime, punishable by a $5000 fine and five years in prison, “if 

any person shall write, print, utter or publish . . . any false, scandalous 

and malicious writing or writings against the government of the United 

States, or either house of the Congress . . . , or the President . . . with 

intent to defame . . . or to bring them . . . into contempt or disrepute; or 

to excite against them . . . the hatred of the good people of the United 

States.” 1 Stat. 596, quoted in New York Times Co. v. Sullivan, 376 U.S. 

at 273-74. 

9 Opponents of BCRA in Congress arrestingly made the same 

points. See LH App. 46a-51a. 
13 

unanimously acknowledged that the Act, “because of the 

restraint it imposed upon criticism of government and 

public officials,” had been universally condemned “in the 

court of history” as a blatant infringement on the freedom 

of speech. If history’s judgment on the Sedition Act is 

correct, then Title II’s modern version of it must fall. 

C. Nor can Title II’s limitation on electoral speech be 

reconciled with this Court’s holding in New York Times Co. 

v. Sullivan. At the heart of that case was a political advertisement run in the NEW YORK TIMES by an “interest 

group” – the “Committee to Defend Martin Luther King 

and the Struggle for Freedom in the South.” The ad was 

found to refer to an elected official and to falsely criticize 

his handling of civil rights protests in Montgomery, Alabama. The issue was whether the First Amendment 

“limit[s] a State’s power to award damages in a libel action 

brought by a public official against critics of his official 

conduct.” Id. at 256. Emphasizing that “[i]t is as much [the 

citizen’s] duty to criticize as it is the official’s duty to 

administer,” id. at 283, the Court held that the First 

Amendment prohibits such an action unless the public 

official can show that the defamatory statement was made 

with actual malice. The Sullivan Court’s reasoning is 

equally dispositive of Title II. 

At the heart of the Court’s unanimous ruling was its 

recognition that political speech is the lifeblood of our 

representative democracy and that “debate on public 

issues should be uninhibited, robust, and wide-open.” Id. 

at 270. That the political speech at issue was contained in 

a paid advertisement was irrelevant; the First Amendment protects “persons who do not themselves have access 

to publishing facilities” no less than it protects the press. 

Id. at 266. Nor did the advertisement’s false and defamatory nature suffice to deprive it of First Amendment 

protection, for “erroneous statement is inevitable in free 

debate, and . . . it must be protected if the freedoms of 

expression are to have the ‘breathing space’ that they 

‘need . . . to survive.’ ” Id. at 271-72 (quoting NAACP v. 

Button, 371 U.S. 415, 433 (1963)). And the Sullivan Court 

emphasized, over and over again, that speech concerning 
14 

the conduct of public officials and candidates for public 

office is essential to the vitality of democracy itself. Quoting Mr. Madison’s Report on the Virginia Resolutions 

denouncing the Sedition Act, the Court said this: “The 

value and efficacy of this right [to vote] depends on the 

knowledge of the comparative merits and demerits of the 

candidates for public trust, and on the equal freedom, 

consequently, of examining and discussing these merits 

and demerits of the candidates respectively.” Id. at 275 

(citation omitted).10 

In the record before this Court are hundreds, perhaps 

thousands, of the “negative attack ads” that Title II seeks 

to rid from the airwaves. To dispose of this case, it is 

enough to note simply that every single one of them would 

be protected by the First Amendment from a libel action 

brought by the attacked candidate. But Title II cuts even 

deeper into the heart of the First Amendment than did the 

defamation action invalidated in Sullivan. Title II goes 

beyond just rendering speech actionable in tort; it criminalizes speech outright and punishes the speaker with 

imprisonment. Title II goes beyond just reaching and 

restraining false speech; it reaches and penalizes the 

truth. Title II goes beyond just restraining political speech, 

it targets electoral speech about candidates for public 

office during the weeks before citizens go to the polls. 

Thus, Title II’s restrictions on electioneering 

communications violate the most fundamental postulates of 

the First Amendment. The same conclusion flows from this 

Court’s campaign finance cases, as we demonstrate in detail 

below. 

10 The Court has consistently held “that legislative restrictions on 

advocacy of the election or defeat of political candidates are wholly at 

odds with the guarantees of the First Amendment.” Buckley v. Valeo, 

424 U.S. at 50 (citing Mills v. Alabama, 384 U.S. 214 (1966), and Miami 

Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)). 
15 


II. 	 TITLE II’S RESTRICTIONS ON “ELECTIONEERING COMMUNICATIONS” CANNOT BE 

JUSTIFIED AS PREVENTING CORRUPTION. 

A. 	 Title II Was Not Designed To Prevent Corruption. 

From Buckley in 1976 to FEC v. Beaumont earlier this 

Term, this Court has consistently emphasized the “ ‘fundamental constitutional difference between money spent 

to advertise one’s views independently of the candidate’s 

campaign and money contributed to the candidate to be 

spent on his campaign.’ ” Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 614-16 (1996) (“Colorado Republican I”) (quoting NCPAC, 470 U.S. at 497-98); 

see, e.g., FEC v. Beaumont, 123 S. Ct. 2200, slip op. at 8 

(June 16, 2003). Because of differences in both their 

expressive value and corrupting potential, “limits on 

political expenditures deserve closer scrutiny than restrictions on political contributions.” Colorado Election Comm. 

v. Colorado Republican Fed. Campaign Comm., 533 U.S. 

431, 440-41 (2001) (“Colorado Republican II”). 

Emphasizing that political expenditures “produce 

speech at the core of the First Amendment,” NCPAC, 470 

U.S. at 493, and pose little threat of political corruption, 

this Court has “routinely struck down limitations on 

independent expenditures” under strict scrutiny. Colorado 

Republican II, 533 U.S. at 441. In contrast, campaign 

contribution limits have consistently been upheld under 

“relatively complaisant review” because “contributions lie 

closer to the edges than to the core of political expression,” 

Beaumont, slip op. at 14, and they entail “a plain threat to 

political integrity and a plain warrant to counter the 

appearance and reality of corruption. . . . ” Id. at 8. 

Defendants are well aware that Title II is subject to 

strict scrutiny, so they attempt to cast Title II as designed 

to achieve the compelling government purpose of preventing actual or apparent political corruption. But the legislative record of Title II unequivocally establishes that 

Congress did not limit electioneering communications to 

protect officeholders from the corrupting influence of 
16 

“sham” issue ads. To the contrary, as demonstrated above, 

supra at 7-11, Title II’s supporters made clear that it was 

aimed at “negative attack ads” that have “demeaned and 

degraded all of us” and “do little to further the official 

debate.” 

To fill this void in the legislative record, Defendants 

attempted below to create a post-enactment litigation 

record, comprising solicited testimony from political 

consultants, lobbyists, and former politicians. But to 

sustain a content-based restriction on political speech, the 

Government must establish that the purpose that actually 

animated enactment of the measure is compelling and is 

narrowly served by the restriction. See United States v. 

Virginia, 518 U.S. 515, 533 (1996) (“The justification must 

be genuine, not hypothesized or invented post hoc in 

response to litigation.”); Turner Broad. Sys., Inc. v. FCC, 

520 U.S. 180, 191 (1997).11 Therefore, neither Defendants 

nor this Court can go beyond Title II’s text and legislative 

history in the effort to discern and evaluate “the disease 

sought to be cured” by its limits on electioneering communications. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 

664 (1994) (quotation and citation omitted). And Congress’s avowed purpose – to stifle the airing of “negative 

attack ads” – is not even a legitimate, let alone a compelling, governmental purpose.12 

But even if Defendants’ anti-corruption rationales for 

Title II were not foreclosed as a matter of law, they fail as 

a matter of fact, as we demonstrate below. 

11 The Government may defend a statute based upon a “conceivable” or “hypothetical” legislative purpose only when that statute is 

being reviewed under mere “rational basis” scrutiny. See, e.g., Thompson v. Western States Med. Ctr., 535 U.S. 357, 373 (2002). 

12 If Defendants could extract any arguably legitimate purpose 

from the actual legislative record, that purpose would extend only so far 

as the disclosure requirements of Title II (as opposed to the prohibition 

on corporate speech), which are “the least restrictive means of curbing 

the evils of campaign ignorance and corruption.” Buckley, 424 U.S. at 

68. 
17 


B.	 Gratitude For Political Support Is Not 

Corruption. 

Defendants’ concept of political corruption is far 

removed from the record of “quid pro quo” arrangements 

that concerned this Court in Buckley. See 424 U.S. at 26 & 

n.28. To Defendants, a politician who is, as they put it, 

“naturally grateful” to an organization that runs an issue 

ad in his favor is a politician on the take. But this is not 

“corruption” – this is the democratic process. Elected 

officials are indeed grateful for any support for their 

campaigns, whether it takes the form of the ballot of a 

single constituent, or the endorsement of an organization 

with millions of members, or the speech of supporters 

extolling the candidate’s virtues or decrying the opponent’s 

vices. And those who provide such support do indeed 

expect that, if the campaign is successful, the official will 

cast votes in a way that reflects the shared political ideals 

that inspired the support in the first place. This is called 

“democracy.” 

Defendants, however, see corruption in the natural 

functioning of our representative democracy, and if their 

concept of political corruption is allowed to take root in 

this Court’s First Amendment jurisprudence, then no 

political activity is safe from congressional regulation.13 

One need not think long to grasp that if a candidate’s 

natural gratitude to the NRA for helpful “electioneering 

communications” is corruption enough to justify silencing 

13 Defendants’ novel and expansive theory of corruption qua 

gratitude was adopted by Judge Kollar-Kotelly, who opined that 

candidates are “as beholden to corporations . . . that spend money to 

help them through ad campaigns as they would be if the same entities 

wrote a check directly to the campaign.” S.A. 838 (Kollar-Kotelly). That 

notion, which is bereft of evidence to support it, would obliterate this 

Court’s consistent distinction between contributions and expenditures, 

leaving any independent expenditure – be it that of a PAC, an individual, or some other entity – fully subject to regulation because it can 

simply be equated, in the words of Judge Kollar-Kotelly, with a “check 

. . . to the campaign.” 
18 

such political speech, then what is to stop the Government 

when it trains its sights on, say, the NRA’s speech endorsing a candidate and urging its membership to rally behind 

him? This Court, therefore, has specifically rejected 

Defendants’ notion of corruption. “The fact that candidates 

and elected officials may alter or reaffirm their own 

positions on issues in response to political messages paid 

for by the PACs can hardly be called corruption, for one of 

the essential features of democracy is the presentation to 

the electorate of varying points of view.” NCPAC, 470 U.S. 

at 498. 

As previously noted, Defendants can offer nothing 

from Title II’s legislative record demonstrating a link 

between “electioneering communications” and political 

corruption, so they attempted in the District Court to fill 

that void with a litigation record. To be sure, Defendants 

offered a massive evidentiary record in support of their 

claim of political corruption, but it relates almost exclusively to the corrupting influence of soft-money donations 

banned by Title I (thus confirming the fundamental 

distinction in the corrupting potential of contributions 

versus expenditures).14 As Judge Henderson found: “None 

14 The cavernous disparity in record evidence supporting Defendants’ theory of corruption with respect to contributions regulated by 

Title I, as opposed to expenditures regulated by Title II, is manifest 

from the opinions below, particularly that of Judge Kollar-Kotelly. 

Compare S.A. 589 ¶1.75 (Kollar-Kotelly) (“The record is a treasure trove 

of testimony from Members of Congress, individual and corporate 

donors, and lobbyists, as well as documentary evidence, establishing 

that contributions . . . are given with the expectation they will provide 

the donor with access to federal officials, that this expectation is 

fostered by the national parties, and that this expectation is often 

realized.”) (emphases added); S.A. 567 ¶1.63; S.A. 582 ¶1.73; S.A. 625 

¶1.82; S.A. 574 ¶1.70; S.A. 626 ¶1.83; S.A. 633-34 ¶1.83.5; S.A. 635-36 

¶1.84; with S.A. 718-19 ¶2.7.11 (Kollar-Kotelly) (finding no “direct 

examples of votes being exchanged for candidate-centered issue 

advocacy expenditures” but “that candidates and parties appreciate and 

encourage corporations . . . to deploy their large aggregations of wealth 

into the political process. If nothing else, I find that the record presents 

(Continued on following page) 
19 

of the evidence the defendants have offered materially 

supports the proposition that corporate and labor disbursements for issue advocacy corrupt or appear to corrupt federal candidates.” S.A. 274-75 ¶54b (Henderson). 

Indeed Defendants’ token evidence relating to issue ads 

actually undermines their anti-corruption rationale, even 

under their “gratitude” theory of corruption. Media consultant Strother agreed that there is “nothing in any way 

corrupt or undemocratic about the enterprise . . . of airing 

these political broadcasts.” Strother Dep. 19. And Senator 

Simpson, when asked whether advocacy groups should be 

entitled to run electioneering communications, stated that 

“[a]s long as people know who they are and what they’re 

doing, yes, I think that’s all right. Then you’re into the 

First Amendment.” Simpson Dep. 22-23; see also id. at 42, 

79. Indeed, he testified that it is “the essence of politics” to 

try to influence legislators. Simpson Dep. 27-30. None of 

Defendants’ declarants could testify to a single instance in 

which a candidate or office-holder had changed his or her 

vote in exchange for an advocacy group’s speech,15 

nor 

could any even provide an example of a politician showing 

“gratitude” to an advocacy group.16 

an appearance of corruption stemming from the dependence of officeholders and parties on advertisements run by these outside groups.”). 

Similarly, Judge Leon found specific evidence of an appearance of 

corruption to justify Title I but made no such findings regarding Title 

II. See S.A. 1289 ¶250 (Leon) (“The defendants have offered substantial 

evidence that the public believes there is a direct correlation between 

the size of a donor’s contribution to a political party and the amount of 

access to, and influence with, the officeholders . . . the donor enjoys 

thereafter.”); S.A. 1289-95 ¶251-70 (Leon). 

15 See Andrews Dep. 49, 57, 63-66; Strother Dep. 40; Simpson Dep. 

13-14. 

16 See Andrews Dep. 26-32; Strother Dep. 140-43. Indeed, lobbyist 

Andrews could not recall any instance of a politician expressing 

gratitude for issue ads that supported the politician or attacked an 

opponent. See Andrews Dep. 64-66. In the only concrete example of an 

issue group influencing a candidate, Strother related how a candidate 

decided to return money to an anti-gun group in order to avoid negative 

(Continued on following page) 
20 


C.	 Title II Cannot Be Justified As Preventing 

Austin-style Corruption. 

Core political speech is protected by the First Amendment regardless whether a corporation is the speaker. 

Buckley, 424 U.S. at 45, 50, 187; First Nat’l Bank v. 

Bellotti, 435 U.S. 765, 777 (1978); FEC v. MCFL, 479 U.S. 

238, 259 (1986). Indeed, MCFL upheld a nonprofit 

voluntary membership corporation’s First Amendment 

right to make unlimited independent expenditures to fund 

its political speech, including express advocacy. Only once, 

in Austin, has this Court upheld a restriction on independent expenditures for core political speech. The specific 

danger identified in Austin, corruption of the political 

process through the aggregation of wealth generated by 

business corporations, has no application to speech by 

nonprofit membership organizations that are devoted to 

the advancement of specific rights and ideas and are 

funded almost exclusively by the dues and donations of 

individual members. Title II of BCRA must therefore be 

struck down. 

MCFL held that a voluntary membership organization 

committed to a political purpose does not lose its First 

Amendment rights simply by taking the corporate form: 

The resources in the treasury of a business corporation . . . are not an indication of popular 

support for the corporation’s political ideas. . . . 

. . . . 

. . . Groups such as MCFL, however, do not pose 

that danger of corruption. MCFL was formed to 

disseminate political ideas, not amass capital. 

publicity from the NRA because the candidate was running in a pro-gun 

state and feared how “the voter would react if it was disclosed where 

the check came from.” Strother Dep. 146. Thus, the “influence” was 

based upon the power of the voter, which is hardly improper in a 

democracy. See also Andrews Dep. 20-21, 66-68. 
21 

The resources it has available are not a function 

of its success in the economic marketplace, but 

its popularity in the political marketplace. 

479 U.S. at 258-59 (emphasis added). In contrast, Austin 

upheld a law restricting expenditures on express advocacy 

by the Chamber of Commerce because 75% of its funding 

came from for-profit corporations; the Chamber therefore 

could (and did) serve as a conduit for using “resources 

amassed in the economic marketplace” “to provide an 

unfair advantage in the political marketplace.” MCFL, 479 

U.S. at 257. The Court specifically observed that the 

Chamber’s corporate wealth had “little or no correlation to 

the public’s support for the corporation’s political ideas.” 

Austin, 494 U.S. at 660 (emphasis added). 

MCFL and Austin thus draw a line between advocacy 

organizations that fund their speech with individual dues 

and trade associations that fund their speech largely with 

contributions from business corporations. The former, 

unlike the latter, pose no danger of corrupting the political 

marketplace through wealth generated in the economic 

marketplace. 

This analysis of Austin and MCFL is confirmed by the 

Court’s decision last month in FEC v. Beaumont, No. 02-

403, 123 S. Ct. 2200, slip op. (June 16, 2003), which held 

that a restriction on corporate campaign contributions 

could constitutionally be applied to nonprofit advocacy 

organizations as well as business corporations. Slip op. at 

10. Beaumont reaffirmed that the Austin rationale for 

restricting expenditures was to prevent corporations from 

“ ‘us[ing] resources amassed in the economic marketplace 

to obtain an unfair advantage in the political marketplace.’” Id. at 6 (quoting Austin, 494 U.S. at 658-59) 

(internal citations omitted)). As demonstrated above, that 

problem is simply not presented by the NRA or similar 

nonprofit advocacy groups. 

To be sure, Beaumont held that concerns about the 

corporate form of organization, even for a nonprofit advocacy organization funded by individual donations, were 

sufficient to sustain restrictions on campaign contributions 
22 

by such a corporation. Id. at 10-11. In other words, Congress may ban corporate campaign contributions in order 

to “bar[] corporate earnings from conversion into political 

‘war chests.’ ” Id. at 7. But, as the Court reaffirmed, 

contributions barely count as speech at all: “Going back to 

Buckley v. Valeo, restrictions on political contributions 

have been treated as merely ‘marginal’ speech restrictions 

subject to relatively complaisant review under the First 

Amendment.” Id. at 14 (citation omitted). 

In contrast, independent political expenditures on 

campaign speech by nonprofit advocacy groups constitute 

“the core of political expression.” Id. at 14. Independent 

political expenditures “do not pose that danger of corruption,” and therefore the “‘potential for unfair deployment of 

wealth for political purposes’ f[alls] short of justifying a ban 

on expenditures” by such groups. Id. at 11. The rationales 

that sufficed to uphold restrictions on contributions in 

Beaumont cannot survive the strict scrutiny applicable to 

restrictions on expenditures for core political speech. 

Indeed, that is why the First Amendment foreclosed Congress’s attempt to regulate the independent expenditures of 

a corporate PAC in NCPAC. See 470 U.S. at 500-01. 

The NRA is the archetypal issue advocacy group 

protected by the First Amendment. It “was formed to 

disseminate political ideas, not amass capital,” and its 

members are “fully aware of its political purposes.” See 

NRA App. 106 (bylaws), 133-56 (NRA fundraising materials). The NRA’s resources “are not a function of its success 

in the economic marketplace, but its popularity in the 

political marketplace.” MCFL, 479 U.S. at 259. The NRA 

and similar grassroots advocacy organizations do not 

17 Beaumont repeatedly reaffirmed this fundamental distinction 

between restrictions on contributions and expenditures. Slip op. at 4 & 

n.2, 8, 11, 14, 15. In particular, the Court distinguished the deference 

accorded legislative judgments about corruption “when Congress 

regulates campaign contributions” from the strict scrutiny applicable to 

expenditure restrictions. Id. at 8. 

17 
23 

do business in the “economic marketplace,” nor derive 

“market profits,” nor receive more than a negligible portion 

of their revenues from corporate contributions. In short, the 

NRA does not use “ ‘resources amassed in the economic 

marketplace’ to obtain ‘an unfair advantage in the political 

marketplace.’” Austin, 494 U.S. at 659 (quoting MCFL, 479 

U.S. at 259).18 Title II’s restriction on its independent 

electioneer expenditures is, therefore, unconstitutional. 

D.	 Title II Cannot Be Justified As Protecting 

The Members Of Advocacy Groups From 

Misuse Of Their Donations. 

In Beaumont the Court noted that the federal ban on 

campaign contributions by corporations also “protect[s] 

‘the individuals who have paid money into a corporation or 

union for purposes other than the support of candidates 

from having that money used to support political candidates to whom they may be opposed.’ ” Slip op. at 7 (quoting FEC v. National Right to Work Comm., 459 U.S. 197, 

208 (1982)). Yet the Court assumed (correctly) that “advocacy corporations are generally different from traditional 

business corporations in the improbability that contributions they might make would end up supporting causes 

that some of their members would not approve.” Id. at 12. 

Even if this legislative concern might carry some residual 

weight in the area of contributions, see id. at 12 n.5, which 

enjoy only marginal First Amendment protection, it is 

plainly insufficient to intrude on advocacy group expenditures, which are protected by strict scrutiny. 

18 The NRA’s income from sources other than individual contributions is de minimis. Although the NRA derives substantial revenue from 

advertising in its magazines and the sale of NRA memorabilia, it loses 

money on these activities. See NRA App. 23-24 (LaPierre Decl.) ¶58. 

Additionally, the NRA generates rental income from leasing unused 

space in its building. Finally, the NRA receives negligible contributions 

from for-profit businesses. See NRA App. 198 (filed under seal). 
24 

Nor is there any basis in this Court’s jurisprudence for 

licensing the government to peer into the minds of the 

members of a grassroots issue advocacy group in order to 

ensure a perfect correspondence between their views and 

the group’s political activities. Indeed, in MCFL, this 

Court recognized that a contribution to an advocacy group 

“necessarily involves at least some degree of delegation of 

authority to use such funds in a manner that best serves 

the shared political purposes of the organization and 

contributor,” and that a member “dissatisfied with how 

funds are used can simply stop contributing.” 479 U.S. at 

261. This Court offered the same reasoning with respect to 

contributors to a PAC: “[C]ontributors obviously like the 

message they are hearing from these organizations and 

want to add their voices to that message; otherwise they 

would not part with their money.” NCPAC, 470 U.S. at 

495. And the same may be said with respect to the widely 

diverse membership of the political parties. See Colorado 

Republican I, 518 U.S. 604 (1996).19 

E.	 Requiring The NRA To Speak Through Its 

PAC Will Artificially Deflate Its Voice. 

Although Defendants have posited that electioneering 

communications are regulated by Title II because they 

beget the grievous public harm of official corruption, they 

also paradoxically maintain that Title II bans no electioneering communications at all because corporations and 

unions remain free to speak through their PACs. As a 

measure designed to prevent official corruption, of either 

the quid pro quo or the “gratitude” variety, Title II therefore 

19 In any event, the record in this case confirms the strong support 

among NRA members for its speech: over 78 percent of the cost of airing 

its 30-minute broadcasts was paid for by viewers who signed up as new 

members. NRA App. 199 (filed under seal). Under the FEC’s regulations, the NRA’s PAC would not be able to solicit funds in this manner 

from the general public. 
25 

makes no more sense than a bribery statute requiring 

corporations to pay for their bribes using funds from PACs. 

For that reason alone, “belief in the [statute’s proffered 

anti-corruption] purpose [is] a challenge to the credulous.” 

Republican Party of Minnesota v. White, 536 U.S. 765, 780 

(2002) (quotation and citation omitted). Congress surely 

did not intend Title II to result in nothing more than an 

act of institutional ventriloquism, with organizations like 

the NRA simply throwing from the mouths of their PACs 

the very same “electioneering communications” that 

allegedly threaten to corrupt federal officeholders. Moreover, Defendants do not contend that a candidate is any 

less grateful for, and thus any less corrupted by, an issue 

ad aired with PAC money than an identical ad aired with 

an organization’s general funds. And Defendants’ own 

witnesses concede that the public’s perception of ads is not 

affected in the slightest by whether they are purchased 20 with general treasury funds or with PAC money. 

Title II’s congressional supporters well understood 

that requiring the NRA to speak through its PAC will 

necessarily reduce the collective voice of its four million 

21 members to a whisper. See S.A. 259 (Henderson) (“Political action committees cannot finance more than a small 

20 As Senator Simpson stated, drawing a distinction between the 

“appearance of corruption [depending upon] whether the ad is paid for 

by the NRA or whether it is paid for by the NRA’s PAC” is like “dancing 

on the head of a pin,” since “[t]here’s no difference to the American 

public of who that is.” Simpson Dep. 50-51; see also id. at 52; Andrews 

Dep. 16; Strother Dep. 223-24. 

21 See LH App. 58a-62a (Sen. Wellstone) (referencing the NRA and 

Sierra Club as prototypical organizations whose ads should be restricted); LH App. 53a (Rep. Schakowsky) (“If my colleagues care about 

gun control, then campaign finance is their issue so that the NRA does 

not call the shots.”); LH App. 52a (Rep. Pickering) (quoting Scott 

Harshberger, the President of Common Cause, who championed BCRA 

by saying: “ ‘A vote for campaign finance reform is a vote against the 

second amendment gun lobby.’ ”); see generally LH App. 52a-57a. 
26 

fraction of the electioneering communications that corporations and unions have been able to fund from their 

treasury funds.”). A battery of regulatory and practical 

hurdles precludes groups such as the NRA from using 

their PACs to make independent expenditures commensurate with public support for their political ideas.22 The 

NRA’s PAC, the PVF, is strictly barred from soliciting 

beyond the NRA’s membership for contributions, and no 

portion of an NRA member’s membership fees may be 

allocated to PVF. See 11 C.F.R. § 114.7; 11 C.F.R. § 114.1. 

As Judge Henderson explained, “While NRA PVF raised 

$17.5 million during the 2000 election cycle, the NRA 

received over $300 million in contributions from individuals during the same period. The disparity stems from the 

inability of NRA members – most of whom are individuals 

of modest means – to pay the NRA’s membership fee and 

then contribute beyond that amount to NRA PVF.” S.A. 

259 (Henderson) (internal citations omitted). Title II thus 

effectively deprives millions of ordinary individuals of 

their ability to join collectively in making “electioneering 

communications” to support and preserve their freedoms 

under the Second Amendment. 

Although some would justify restricting independent 

expenditures on political speech as necessary “to democratize the influence that money itself may bring to bear upon 

the electoral process,” Shrink, 528 U.S. at 401 (Breyer, J., 

concurring with Ginsburg, J.), Title II stands that reasoning on its head. By requiring a group’s political speech to 

be channeled through its PAC, Title II ensures that the 

voices of members of modest means will be silenced, 

closing the marketplace of political expression to all but 

the well-to-do. 

For this reason, Title II works a similar inversion of 

the Austin Court’s reasoning. Again, Austin upheld a limit 

on corporate independent expenditures as justified to 

22 See NRA App. 14-15 (LaPierre Decl.) ¶¶34-35; Pratt Decl. ¶13; 

Boos Decl. ¶10; Keating Decl. ¶53; Shields Dep. 60-62. 
27 

prevent wealth generated in the economic marketplace 

from unfairly inflating the strength of the corporation’s 

political voice beyond the “public’s support for the corporation’s political ideas.” Austin, 494 U.S. at 660. The NRA’s 

wealth, like that of typical advocacy groups, is attributable 

to its success in the political marketplace, not the economic marketplace, and its general treasury “accurately 

reflects members’ support for the organization’s political 

views.” Id. at 666. By requiring the NRA’s political speech 

to be channeled through the PVF, Title II deflates the 

strength of the organization’s voice in the political marketplace vastly below its “contributors’ support for the 

corporations’ political views.” Id. at 660-61. Thus, far from 

ensuring that “resources amassed in the economic marketplace [are not] used to provide an unfair advantage in 

the political marketplace,” MCFL, 479 U.S. at 257, Title II 

ensures that resources amassed in the political marketplace cannot be put to use in the very place from whence 

they came. 

Finally, most of the NRA’s “electioneering communications” have nothing to do with getting candidates elected; 

instead, they serve to educate Americans about political 

developments that bear upon the Second Amendment, to 

defend the NRA against direct attacks by the media and 

politicians, and to generate membership and raise funds. 

See supra at 2; infra at 35-41. The exclusive mission of 

PVF, however, is “to influence the outcome of federal 

elections. That is the sole purpose for which donors contribute to the Political Victory Fund.” NRA App. 14 (LaPierre Decl.) ¶34. Indeed, PVF is the sole means through 

which NRA members can engage in “express advocacy” 

speech exhorting the public to “vote for” or “against” 

specific candidates – and PVF devotes its precious resources to funding precisely such speech. Forcing the PVF 

now to fund the NRA’s “electioneering communications” 

would necessarily result in a tradeoff with the express 

advocacy it currently funds, further abridging core political speech at the heart of the First Amendment. 
28 


III.	 THE WELLSTONE AMENDMENT’S SUPPRESSION OF POLITICAL SPEECH FUNDED 

EXCLUSIVELY WITH INDIVIDUAL CONTRIBUTIONS IS UNCONSTITUTIONAL. 

Even if one credits at face value Defendants’ claim 

that the specter of Austin-type corruption extends to the 

independent electioneering expenditures of nonprofit 

advocacy groups, Title II must fall. Congress had before it 

a less restrictive means to ensure that the political voices 

of advocacy groups like the NRA were not unfairly inflated 

by corporate wealth generated in the economic marketplace. 

As originally proposed by Senators Snowe and Jeffords, Section 203(b) of Title II would have exempted 

501(c)(4) membership organizations from the ban on 

funding electioneering communications, so long as the 

organizations used funds that were derived solely from 

individual contributions and were maintained in an 

account segregated from any corporate contributions. 

Thus, Section 203(b) of Snowe-Jeffords was designed to 

ensure that such an advocacy organization’s political 

message reflected its popular support in the political 

marketplace. Conversely, by banning electioneering 

expenditures of business corporations and their 501(c)(6) 

trade associations, the original Snowe-Jeffords proposal 

wholly eliminated the threat, identified in Austin, that 

such corporations might use wealth generated in the 

economic marketplace to unfairly distort the political 

arena with electioneering communications having “little or 

no correlation to the public’s support for the corporation’s 

political ideas.” 494 U.S. at 660-61. Snowe-Jeffords thus 

sought to steer a safe course between this Court’s decisions 

in MCFL, on the one hand, and Austin, on the other. 

The Wellstone Amendment, Section 204, effectively 

nullifies Section 203(b) of Snowe-Jeffords. Aimed specifically at the NRA, Sierra Club, and similar advocacy 

groups, see LH App. 58a-62a (Sen. Wellstone), the 

Wellstone Amendment was designed to prevent individuals from combining their voices with others of like mind 
29 

“in organizations which serve to ‘[amplify] the voice of 

their adherents.’ ” NCPAC, 470 U.S. at 494 (quoting 

Buckley, 424 U.S. at 22 (alteration in original)).23 The 

Wellstone Amendment thus runs directly contrary to this 

Court’s consistent First Amendment teaching: “To say that 

[individuals’] collective action in pooling their resources to 

amplify their voices is not entitled to full First Amendment protection would subordinate the voices of those of 

modest means as opposed to those sufficiently wealthy to 

be able to buy expensive media ads with their own resources.” Id. at 495. 

Fully grasping that the Wellstone Amendment was 

“susceptible to a constitutional challenge,” LH App. 58a 

(Sen. Feingold), BCRA’s sponsors opposed the measure. 

But opponents of BCRA rallied behind it (presumably for 

the same reason), and it was passed. To ensure that it 

would not doom Title II as a whole, however, BCRA’s 

sponsors made sure that the Wellstone Amendment, in the 

District Court’s words, could be “cleanly struck from the 

law.”

24 As Senator Feingold explained: 

I voted against adding th[e Wellstone] amendment. I thought and still think that it makes 

23 See LH App. 65a (Sen. Wellstone) (“individuals with all of this 

wealth” will “make their soft money contributions to these sham issue 

ads run by all of these . . . organizations, which under this loophole can 

operate with impunity” to run “poisonous ads”); LH App. 66a-67a 

(noting that only .002% of Americans donate more than $10,000 to 

candidates, and explaining, “I have an amendment that tries to make 

sure . . . this big money doesn’t get” through). 

24 “The Wellstone Amendment was codified in a separate section of 

BCRA in order to preserve severability: hence, if the Court finds the 

inclusion of section 501(c)(4) organizations and section 527 within the 

ban on electioneering communications to be unconstitutional, the 

Wellstone Amendment can be cleanly struck from the law and the 

original Snowe-Jeffords exception for these groups will be restored.” 

S.A. 65-66 (Per Curiam). 
30 

Snowe-Jeffords more susceptible to a constitutional challenge, but it passed when many Senators who oppose the bill and the Snowe-Jeffords 

provision voted for it. In any event, the Wellstone 

amendment was written to be severable from the 

remainder of the Snowe-Jeffords provision. That 

gives even more significance to the vote we will 

have today on severability. But if we win that 

vote, Snowe-Jeffords will survive even if the 

Wellstone amendment is held to be unconstitutional. 

LH App. 58a (Sen. Feingold).25 The Wellstone Amendment, 

from its inception, was thus specifically designed to be a 

disposable part of Title II, destined for extinction upon 26 completion of this Court’s review. 

In the District Court, the Government – while taking 

pains to emphasize that the unconstitutionality of the 

Wellstone Amendment “provides no basis for striking down 

25 See also LH App. 63a (Sen. Edwards) (“[T]he reason Senator 

Feingold and Senator McCain are opposing th[e Wellstone] amendment 

is the same reason that I oppose this amendment: It raises very serious 

constitutional problems”); LH App. 62a (Sen. Wellstone) (“I have drafted 

this amendment to be fully severable. In other words, no one can 

suggest that even if the court finds this amendment unconstitutional, it 

would drag down the rest of this bill or even jeopardize the other 

provisions of Snowe-Jeffords.”); LH App. 58a-64a. 

26 Judge Henderson acknowledged the patent unconstitutionality of 

the Wellstone Amendment. See S.A. 368-70 (Henderson). Judge KollarKotelly left the Wellstone Amendment undisturbed without purporting 

to analyze whether Section 203(b) of Snowe-Jeffords constituted a less 

restrictive alternative. See S.A. 869-71 (Kollar-Kotelly). Judge Leon 

likewise upheld the Wellstone Amendment; he thought it justified by 

the prospect that “for profit-corporations and unions [might] funnel 

their general treasury funds through nonprofit corporations in order to 

purchase electioneering communications.” In doing so, he thus overlooked that this prospect is wholly foreclosed by Section 203(b) of 

Snowe-Jeffords, which restricts electioneering funding to individual 

contributions. S.A. 1168-69 (Leon). 
31 

BCRA’s electioneering communications provisions in toto” 

– characterized the Amendment as intended to “prevent 

large soft-money donations from individuals (i.e., those 

exceeding the hard money contributions to political parties) from being passed through nonprofit corporations to 

purchase electioneering ads.” Gov’t Reply Br. 58-59 (filed 

Nov. 27, 2002) (emphasis added). That simply reformulates 

the amendment’s impermissible intent: the First Amendment flatly forbids Congress from regulating the political 

expenditures, as opposed to the contributions, of individuals, Buckley 424 U.S. at 48-49, and Congress can claim no 

valid interest in preventing circumvention of a nonexistent 

expenditure limit that it lacks power to create.27 

Even if Congress could regulate individual expenditures in this fashion, the less restrictive (and thus constitutionally required) means of doing so would be to prevent 

501(c)(4) corporations from funding “electioneering communications” with individual donations in excess of existing contribution limits – not to impose the Wellstone 

Amendment’s flat prohibition. Had Congress taken this 

less restrictive approach, organizations like the NRA, 

whose average donation totals $30, could sustain their 

political voices without reliance upon “large soft-money 

donations from individuals” that supposedly justified the 

amendment. 

Nor can Defendants save the Wellstone Amendment 

by recasting it as concerned with the “fungibility” of 

money, i.e., the marginal prospect that nonprofit groups 

might otherwise use corporate contributions to offset their 

27 Unlike PACs and political parties that may make contributions 

to candidates, the 501(c)(4) corporations regulated by the Wellstone 

Amendment are categorically prohibited from doing so. See, e.g., FEC v. 

Beaumont, 123 S. Ct. 2200, slip op. at 9-10 (June 16, 2003). Accordingly, 

the Government cannot defend the amendment as merely “a corollary of 

the basic individual contribution limitation” upheld in Buckley. 424 

U.S. at 38; see California Med. Ass’n v. FEC, 453 U.S. 182, 198-99 

(1981). 
32 

expenses, thereby freeing up individual contributions to 

fund “electioneering communications.” That phenomenon 

is an independent feature of existing campaign finance 

law, as corporations remain free under BCRA to fund the 

administrative and operating expenses of their PACs out 

of general treasury funds. See 11 C.F.R. § 114.5(b). Moreover, this Court’s teaching is simply that Congress may 

require a corporation’s expenditures to bear a meaningful 

“correlation,” Austin, 494 U.S. at 660, or to constitute a 

“rough barometer” of the public’s support for its political 

views. MCFL, 479 U.S. at 258. Surely the original SnoweJeffords approach, by confining electioneering expenditures of nonprofit advocacy organizations to the amount of 

their individual contributions, fully implements that 

teaching. And the Wellstone Amendment, by preventing 

such organizations from engaging in “electioneering 

communications” for fear that a single corporate dollar 

might otherwise lend indirect assistance, just as surely 

flouts it. 

Finally, the Intervenors attempted below to justify the 

Wellstone Amendment on the ground that the “electioneering communications” of 501(c)(4) corporations might 

unduly diverge from the views of their individual donors. 

But there is nothing in the legislative record of Title II 

suggesting that Congress shared this concern. Nor is there 

evidence in the legislative record, or even in the litigation 

record developed in this case, that 501(c)(4) corporations 

tend to make independent expenditures at odds with the 

shared views of their donors. To the contrary, the realities 

of the political marketplace ensure that a voluntary 

membership organization dependent on member donations 

will rarely, if ever, stray significantly from the common 

ideals that bind the membership. See NCPAC, 470 U.S. at 

495 (“[C]ontributors obviously like the message they are 

hearing from these organizations and want to add their 

voices to that message; otherwise they would not part with 
33 

their money.”). Here, there is no doubt that the “electioneering communications” of the NRA enjoy the widespread 

support of its membership.28 

In any event, as previously discussed, supra at 23-24, 

this Court has never suggested that a perfect correspondence between an advocacy organization’s electioneering 

communications and the views of all of its members is a 

necessary predicate for First Amendment protection 

against regulation of the organization’s political speech. 

See MCFL, 479 U.S. at 261 (“individuals contribute to a 

political organization in part because they regard such a 

contribution as a more effective means of advocacy than 

spending the money under their own personal direction” 

and “delegat[e] authority to use such funds in a manner 

that best serves the shared political purposes of the 

organization and contributor”). 

IV. TITLE II IS FATALLY OVERBROAD. 

Title II’s prohibition on electioneering communications 

is fatally overbroad both because it silences speakers that 

pose no threat of the harms allegedly sought to be prevented and because it criminalizes categories of speech 

that are wholly divorced from the statute’s purposes. “The 

Government may not suppress lawful speech as the means 

to suppress unlawful speech. Protected speech does not 

become unprotected merely because it resembles the 

latter. The Constitution requires the reverse.” Ashcroft v. 

Free Speech Coalition, 535 U.S. 234, 255 (2002). 

Ashcroft struck down the Child Pornography Prevention Act as overbroad on the basis of hypothesized applications of the law. See id. at 258; id. at 273 (Rehnquist, C.J., 

dissenting). Here, by contrast, there is compelling evidence 

28 Conversely, there is no indication that the independent political 

expenditures of either PACs or political parties, which remain free to 

fund “electioneering communications,” accord with their donors’ wishes 

any more consistently than do those of advocacy groups like the NRA. 
34 

that the NRA is a speaker whose conduct does not implicate the statute’s purpose and whose speech falls outside 

the ambit of the restriction’s purported rationale. 

A.	 Title II Criminalizes the Speech of Organizations that Pose No Threat of Corrupting the Political Process. 

By restricting the electioneering speech of grassroots 

advocacy organizations, Title II frustrates the central 

purpose of such entities: to allow “large numbers of individuals of modest means [to] join together in organizations 

which serve to ‘[amplify] the voice of their adherents.’ ” 

NCPAC, 470 U.S. at 494 (quoting Buckley, 424 U.S. at 22) 

(alteration in original). The aggregated contributions of 

the members of such an organization correspond with the 

members’ support for its political ideas. The NRA’s voice 

can be heard in the halls of Congress and state legislatures precisely because it is the collective voice of millions 

of Americans speaking in unison. That “is not a corruption 

of the democratic political process; it is the democratic 

political process.” Renne v. Geary, 501 U.S. 312, 349 (1991) 

(Marshall, J., dissenting) (emphases in original). And if a 

group of individuals organized in the corporate form and 

united by their common devotion to the protection of their 

Second Amendment rights can be prosecuted for speaking 

the names of political candidates who pose a threat to 

those rights, then the First Amendment has become a 

“promise to the ear to be broken to the hope, a teasing 

illusion like a munificent bequest in a pauper’s will.” 

Edwards v. California, 314 U.S. 160, 186 (1941). 

Title II contains no exception for any nonmedia 

corporate entities. Indeed, even MCFL itself is barred from 

making electioneering expenditures.29 This failure alone 

29 Judge Kollar-Kotelly elided this defect by effectively reading an 

MCFL exemption into the statute, although no such exemption was 

“expressly provided for.” S.A. 870 (Kollar-Kotelly). Judge Leon, in 

(Continued on following page) 
35 

dooms the statute because there are numerous MCFL 

entities that engage in speech that will be criminalized. 

See S.A. 251 ¶45b (Henderson); NRA App. 157-95; NRA 

App. 196-97; Defendants’ Exhibit Volume (“DEV”) 38-Tab 

22, at 27.30 

B.	 Title II Criminalizes Speech That Is Not 

Intended To Influence Elections. 

Title II’s restriction on electioneering communications 

also fails the narrow tailoring standard because it unfairly 

criminalizes numerous categories of speech that are not 

intended to, and will not have the effect of, influencing 

federal elections. The NRA’s extensive independent expenditures on television and radio broadcasting are designed 

to serve three principal purposes: (1) to educate the public 

contrast, held Title II “unconstitutional only in its application to MCFL, 

nonprofit corporations.” S.A. 1169 (Leon). Both thereby erred in failing to 

analyze the statute, on its face, in accordance with its dispositive terms: 

The Wellstone Amendment specifically seeks to regulate nonprofit 

corporations’ use of individual donations and to do so without qualification; and that express, unambiguous prescription by Congress is insusceptible to judicial modification short of outright invalidation. See, e.g., 

Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 220 (1998). 

30 Although the FEC’s regulations provide relief for a limited 

subset of “qualified nonprofit corporations,” its procrustean criteria 

create an exception so narrow that it conflicts with the Court’s decisions 

in MCFL and Austin and, in any event, does not cure the overbreadth 

that infects this statute. 11 C.F.R. § 114.10(c). “The rigidity with which 

the FEC [implements] MCFL would impoverish political debate.” FEC 

v. Survival Education Fund, Inc., 65 F.3d 285, 292 (2d Cir. 1995); see 

Minnesota Citizens Concerned for Life (“MCCL”) v. FEC, 113 F.3d 129, 

130-31 (8th Cir. 1997) (affirming that relevant FEC regulations “are 

constitutionally infirm . . . because they deny the MCFL exemption to a 

voluntary political association that conducts minor business activities 

or accepts insignificant corporate donations”); MCCL v. FEC, 936 

F. Supp. 633, 643 (D. Minn. 1996), aff’d, 113 F.3d 129 (8th Cir. 1997) 

(further suggesting unconstitutionality of FEC requirements that 

organization’s “only” purpose be promotion of political ideas and that 

members not obtain “any” benefit that might discourage disassociation). 
36 

about Second Amendment and related firearm issues, 

including pending legislative initiatives; (2) to defend itself 

against attacks aired by the broadcast media, including 

attacks by politicians opposed to the NRA’s views on the 

Second Amendment and related issues; and (3) to recruit 

members and raise funds. When engaging in such speech, 

the NRA often makes references to public officials and 

candidates for federal office. See S.A. 256 ¶51 (Henderson). 

The vast majority of this speech is not intended to influence elections, see S.A. 858-59 (Kollar-Kotelly), and 

BCRA’s criminalization of this speech demonstrates the 

statute’s dramatic overbreadth. 

1. Broadcasts that urge viewers and listeners to 

oppose or support pending legislation do not implicate the 

concerns that allegedly animate Title II. Just as this Court 

has recognized that speech pertaining to referenda does 

not raise a substantial concern about corruption, so too 

speech urging the passage or defeat of pending legislation 

does not carry any threat of corrupting the political process. See Bellotti, 435 U.S. at 790 (“The risk of corruption 

perceived in cases involving candidate elections simply is 

not present in a popular vote on a public issue.”) (internal 

citation omitted). Even BCRA’s sponsors proposed to the 

FEC a regulatory exception to allow “entities concerned 

about legislation to run true issue ads with a legislative 

objective and a request to contact an elected official during 

the 30 or 60 day windows.” See NRA App. 209-10. Senator 

Jeffords has acknowledged that “there’s nothing wrong 

with” a membership organization running an ad urging 

Senators to vote on legislation affecting its members. See 

NRA App. 88 (Jeffords Dep.) ¶30. But, of course, the 

Wellstone Amendment and the FEC regulations now 

criminalize such speech. 

For example, the NRA ran a series of TV ads criticizing the so-called Brady Bill and urging viewers to call 

their congressional representatives in support of an 

alternative legislative proposal. See NRA App. 885 (transcript); NRA App. A (video). These ads fall within even the 

Intervenors’ conception of a “true issue ad,” though BCRA 

now criminalizes them. Likewise, in 1994 the NRA ran a 
37 

series of broadcast ads in opposition to President Clinton’s 

Crime Bill. The broadcasts urged viewers to “Call your 

congressman” to oppose passage of the bill. See NRA App. 

886-88 (transcript); NRA App. A (video). All of these 

messages were quintessential political speech that was not 

intended to influence an election, regardless of when the 

ads might have been broadcast. The references to federal 

officeholders were necessary to urge Second Amendment 

supporters to pressure their representatives to defend this 

freedom. 

The NRA also airs general educational programming 

to offset the mainstream media’s biased coverage of news 

relating to Second Amendment rights. In response to a 

virtual blackout on coverage of issues important to the 

NRA and its members, the NRA in 2000 ran a series of indepth, half-hour broadcasts modeled on TV news magazines such as 60 Minutes. See NRA App. 3-4 (LaPierre 

Decl.) ¶¶9-11; S.A. 256-58 ¶51 (Henderson). The topics 

included: gun registration and confiscation in England, 

Australia, and Canada; the impact of the Clinton administration’s failure to pursue vigorous prosecution of existing 

gun laws; the identities and hypocrisy of the sponsors of 

the “Million Mom March”; and an analysis of Vice President Gore’s position on the Second Amendment. See NRA 

App. 5-7 (LaPierre Decl.) ¶¶12-18; NRA App. 16-20 (LaPierre Decl.) ¶¶39-46; S.A. 751-52 ¶2.11.4.4 & n.103 

(Kollar-Kotelly). These broadcasts ran over 11,000 times at 

an expense of more than $13 million, and were aired both 

on national cable channels and in targeted markets in 

virtually every state in the Union. See NRA App. 4 (LaPierre Decl.) ¶10; NRA App. 107. 

One such NRA broadcast covered the mounting efforts 

to restrict private ownership of firearms in California. See 

NRA App. 892-904; NRA App. D (video). During the 30-

minute program, a poster bearing a likeness of President 

Clinton and the words “TWO YEARS LEFT TO GET 

YOUR GUNS” appeared while the reporter stated that 

California’s legislation banning semi-automatic weapons 

was “[t]he first in the country and the model use[d for] the 

1994 Clinton-Gore assault weapons ban.” NRA App. 892. 
38 

This single reference to Mr. Gore would have sufficed to 

trigger BCRA’s criminal penalties for each of the more 

than 800 airings that occurred in California alone between 

August 29, 2000 and November 5, 2000. See NRA App. 

216. None of these airings was intended to influence a 

federal election. NRA App. 5-6 (LaPierre Decl.) ¶14. 

Indeed, in California the outcome of the 2000 presidential 

election was never in serious doubt, and the NRA would 

not have wasted its scarce resources on such a contest if 

influencing the election had been its objective.31 

2. As Judge Henderson found, “the NRA’s frequent 

references to candidates for federal office in the programming it broadcasts throughout the election cycle . . . enable 

the NRA to respond directly and effectively to frequent 

criticism by politicians and the media.” S.A. 256-57 ¶51 

(Henderson). For example, on March 2, 2000, President 

Clinton appeared on NBC’s Today Show. During the 15-

minute interview, he pointedly criticized the NRA and 

made several erroneous statements, including that the 

NRA is “against anything that requires anybody to do 

anything as a member of society that helps to make it 

safer.” See NRA App. 905-10 (transcript); NRA App. C 

(video), S.A. 258 (Henderson). 

In order to get its side of the story out, the NRA 

developed and aired a series of thirteen 30- and 60-second 

ads featuring the organization’s President, Charlton 

Heston. See NRA App. 914-16 (transcript); NRA App. B 

(video). Critical to framing an effective response was 

31 The NRA also aired a broadcast in 2000 entitled “It Can’t 

Happen Here.” See NRA App. 917-29 (transcript); NRA App. E (video). 

This program was substantially similar to the “California” program and 

was run throughout the United States from August through October of 

2000. See NRA App. 217-20. Although Vice President Gore’s image on 

the cover of the NRA’s magazine appeared three times on the screen 

during this 30-minute broadcast and a single reference was made to the 

Clinton-Gore administration, this program was not intended to 

influence a federal election in any way. See NRA App. 917, 920, 924, 

929; NRA App. 6 (LaPierre Decl.) ¶15; S.A. 257 ¶51b (Henderson). 
39 

the NRA’s ability to refute specific statements made by 

President Clinton and to refer to him by name. See S.A. 

258 (Henderson). The NRA designed the ad campaign to 

elevate the controversy to such a degree that NRA representatives would be invited onto national media outlets 

and would thus gain a forum to defend the NRA before a 

national audience. NRA App. 36-38 (McQueen Decl.) 

¶25(c)-(f); S.A. 258-59 (Henderson). The media strategy 

succeeded, and NRA representatives were invited to 

appear on several nationwide news shows. Without access 

to paid media and without the ability to refer to President 

Clinton by name, the NRA would not have been able to 

gain access to the national television audience that had 

heard President Clinton’s statements. See S.A. 258-59 

(Henderson); NRA App. 36-40 ¶25. Although the NRA’s ads 

would not have been prohibited by Title II because President Clinton was not running for reelection, they illustrate 

the critical role that paid programming plays in allowing 

the NRA to defend itself. 

Some politicians also use their campaign ads to attack 

the NRA by name. There are dozens of recent examples of 

such ads. See NRA App. 223-44.32 But BCRA would limit 

the NRA’s ability to defend itself by responding directly to 

its attackers through the same medium. 

The NRA’s paid broadcasts also allow it to defend 

against and rebut biased media reporting. See NRA App. 

32 Just this past election cycle, for example, Mark Shriver, a 

candidate in the Democratic primary for the 8th congressional district 

in Maryland, and his opponent, Chris Van Hollen, attacked the NRA in 

a series of TV ads. See NRA App. 226-29. The most egregious attack 

was run by Mr. Shriver: 

I . . . defeated a piece of legislation backed by the NRA that 

would have allowed convicted felons to own handguns. 

That’s bad public policy. We shouldn’t allow people who are 

convicted of domestic violence to own a handgun. . . . I welcome the fight from the NRA. Nothing would give me more 

pleasure than defeating the NRA. 

NRA App. 226. 
40 

15-16 (LaPierre Decl.) ¶¶37-38. The media’s coverage of 

the Million Mom March is illustrative. In the spring of 

2000, the sponsors of that event worked closely with the 

Clinton White House and were able to gain enormous 

exposure (through free national media coverage) for their 

attacks on the NRA. See NRA App. 16-17 ¶39. In response, 

the NRA aired a 30-minute paid program that examined 

the forces and influences behind the Million Mom March. 

See NRA App. 17; see also NRA App. 930-42 (Infomercial 

transcript); NRA App. F (video). The program criticized 

celebrities and politicians (such as Senator Feinstein) for 

advocating confiscation of handguns from ordinary citizens 

while ensuring that they (or their personal bodyguards) 

retain their guns. See NRA App. 931. The program also 

included a short statement from Senator Orrin Hatch 

criticizing anti-gun celebrities. See NRA App. 931, 939; 

S.A. 257 ¶51c (Henderson). Additionally, during a solicitation for new members, the program showed a cover of the 

NRA’s magazine FIRST FREEDOM reading “Clinton to the 

Gore” and depicting President Clinton morphing into Vice 

President Gore. NRA App. 934, 937, 942. The program also 

stated that “President Clinton, Hillary [Clinton, then a 

candidate for the Senate], [and] Schumer” were at the 

Million Mom March “for their own political gain,” id. at 

933; and another segment chastised the “Clinton-Gore 

White House” for having “turned its back on real justice” 

by allowing the number of federal firearm prosecutions to 

drop by 44 percent between 1992 and 1998. Id. at 937. 

This news magazine was broadcast throughout the 

country from July to November 2000. For two months 

prior to the 2000 election, all of the airings nationwide 

would have been prohibited under BCRA because of two 

references to the “Clinton/Gore” administration’s record on 

prosecution of federal firearms laws and the depiction of a 

magazine cover. The program aired dozens of times in 

California in the 60 days prior to Senator Feinstein’s 

reelection. See S.A. 257 ¶51c (Henderson); NRA App. 245-

48. It also aired in New York in the 30 days prior to Senator Clinton’s primary race for the Democratic nomination 

for Senate, NRA App. 249, 251, and in Utah in the 60 days 
41 

prior to Senator Hatch’s reelection. NRA App. 973 (NRAACK 11415.) But in defending itself against the attacks 

launched at the Million Mom March, the NRA had no 

intention of influencing a federal election. See NRA App. 

17 (LaPierre Decl.) ¶40. Indeed, Senator Clinton’s primary 

election and Senators Hatch’s and Feinstein’s general 

elections were not competitive, and the ad ran heavily in 

states that Mr. Gore had no chance of winning. 

3. The NRA also broadcasts programs that are 

designed to increase its membership and to raise funds. An 

integral part of such speech is identifying the threats 

posed to Second Amendment rights by anti-gun politicians. 

In making fundraising appeals, the NRA has repeatedly 

referred to Senators Schumer, Feinstein, and Clinton, as 

well as to President Clinton and Vice President Gore, and 

criticized their positions on Second Amendment rights. 

See, e.g., NRA App. 133-56. These fundraising activities 

are not designed to influence federal elections. Rather, 

they are targeted at communities that the NRA believes 

are concerned about preserving the Second Amendment 

and already have very negative impressions of the federal 

officeholders named in the fundraising appeals.33 

33 For example, the NRA aired a “Tribute” to Charlton Heston 

throughout the country from June through September 2000. NRA App. 

17. The program contained several references to then-Vice President 

Gore. Id. at 947; see S.A. 752 n.104 (Kollar-Kotelly). Despite these 

limited references, the program was not intended to influence the 

outcome of a federal election. NRA App. 22 (LaPierre Decl.) ¶50. Indeed, 

when the ad was run within the 60 days prior to the election, it aired in 

markets such as Dallas, Texas, and Los Angeles, California, where the 

outcome of the presidential election was not in doubt. NRA App. 252, 

253. Additionally, during the appeals for new members, Senator 

Feinstein’s name was briefly mentioned in text at the bottom of the 

screen in a ticker format. NRA App. 945, 947 (“National gun registration plan from Sen. Dianne Feinstein – Campaign Centers on Gun 

Photo ID’s.”). Again, although this program ran in September of 2000 in 

California, it was not intended to influence Senator Feinstein’s reelection contest, which was not competitive. See NRA App. 21-22. Similarly, 

the NRA in 1999 aired “Banned In Canada,” which warned viewers that 

(Continued on following page) 
42 


4. As the foregoing reflects, in the year 2000 alone, 

the NRA aired issue advocacy on hundreds, if not thousands, of occasions when it had no intent to influence a 

federal election but nonetheless would face criminal 

penalties under BCRA. Title II, accordingly, must fall, for 

the criminalization of “a large amount of speech” that is 

protected under the First Amendment demonstrates that 

the statute is fatally overbroad. Reno v. ACLU, 521 U.S. 

844, 874 (1997). And even if the Court rests its overbreadth analysis on the percentage of “innocent” political 

speech that is prohibited by Title II, the NRA’s speech 

alone demonstrates the palpable flaws in the Buying Time 

2000 study relied upon by Congress and Defendants to 

justify the speech restriction. 

By design, the study excluded all of the 330,000 

minutes of the NRA’s speech that took the form of halfhour news magazines, for the study considered only ads 

that lasted less than two minutes on television. Indeed, 

the amount of NRA speech neglected by the study is, in 

terms of total airtime, more than twice that which its 

authors considered. See Expert Report of Kenneth Goldstein, DEV3-Tab 7, Table 4 (interest groups ran 133,335 

political ads in 2000). As explained above, most of the 

NRA’s infomercials, including those that referenced 

candidates, were devoted solely to issue advocacy and were 

not intended to influence an election. When the documented airings of the NRA’s broadcast are added to the 

proper numerator and denominators identified in the 

McConnell Plaintiffs’ brief, Title II is shown to be at least 

34 percent overbroad and thus plainly constitutionally 

invalid. See S.A. 257-58 ¶51d (Henderson).34 

“powerful people like Senator Charles Schumer, the most anti-gun 

politician in history, have a very different future in mind for you”; no 

election was looming at the time, and Senator Schumer himself was not 

up for election until 2004. See NRA App. 987, 999. 

34 Both Judges Kollar-Kotelly and Leon inexplicably stated that the 

NRA had not established how its news magazines would have affected 

(Continued on following page) 
43 

Title II will also have a chilling effect because it 

creates a practical nightmare for national issue advocacy 

groups that wish to continue to engage in political discourse without running afoul of the statute’s criminal 

sanctions. In 2004, such groups will have to censor their 

broadcasts in no fewer than 1,505 markets at varying 

times.35 And there will be thousands of candidates whose 

names must be cleansed from broadcasts reaching the 

relevant markets. See NRA App. 118-19 (indicating that 

there were 2,100 candidates for the House and Senate in 

1998). In attempting to comply with Title II, the NRA 

must first identify the precise time that each primary 

occurs for all political parties in each state, and the names 

of each and every candidate for federal office. The resulting database will have to be constantly updated to reflect 

candidates dropping in and out of all the races. The NRA 

will then have to cross-check its speech for any reference 

to any candidate within the proscribed markets and times. 

Even the Defendants’ own experts concede that “[t]he 

hodgepodge of different primary dates makes it difficult” 

to identify speech that is covered by Title II. See Expert 

Report of Krasno and Sorauf, DEV1-Tab 2, at 61.36 

the results of Buying Time. S.A. 1072-73 (Kollar-Kotelly); S.A. 1355-56 

(Leon). But the details of the calculation upon which Judge Henderson 

relied were set forth in the NRA’s Reply Br. below at 24-25 & n.21 

(citing NRA App. 216, 1005-1049). 

35 In 2004, there will be as many as 870 primaries for the House of 

Representatives (a Republican and Democratic primary for each House 

race), 66 primaries for Senate races, 100 primaries for the Republican 

and Democratic nominations for the presidency, 435 general elections 

for the House, 33 Senate general elections, and one general presidential 

election. These calculations exclude, of course, the primaries for third 

party candidates and thus represent a conservative estimate of the 

number of races that will trigger BCRA’s requirements. 

36 It will be especially onerous for the NRA to purge references to 

candidates for federal office from its 30-minute news magazines. Much 

of this programming is devoted to unscripted interviews with ordinary 

citizens. The NRA will have to transcribe these interviews so that it can 

compile the names of all those who are referenced during the program. 

(Continued on following page) 
44 


V. TITLE II UNCONSTITUTIONALLY DISCRIMINATES IN FAVOR OF MEDIA CORPORATIONS. 

Title II’s restriction of “electioneering communications” does not extend to any “communication appearing in 

a news story, commentary, or editorial distributed through 

the facilities of any broadcast station.” BCRA §201(a). 

During the period when all other corporations are muzzled, media companies may air as many of their own 

electioneering communications as they wish. Unlike other 

corporations, they can endorse candidates for election and 

name candidates while editorializing on particular issues. 

But Title II’s media exception does more than give the 

broadcast companies a special license to discuss candidates for federal office. 

By banning advocacy groups from buying their own 

advertising time, Title II puts those broadcasters in the 

position of being able to grant (or deny) speech licenses to 

advocacy groups whose only remaining hope for air time is 

to be chosen by a broadcaster for inclusion on one of its 

programs. This reinforces the station owners’ “unfettered 

power . . . to communicate only their own views on public 

issues, . . . and to permit on the air only those with whom 

Additionally, some of the interviews contain references to officeholders, 

such as the attorney general of a particular state, without including his 

name. See, e.g., NRA App. 919 (“And when gun owners call ATF directly 

or the California Attorney General’s Office, they can’t get a straight 

answer from them either.”). The NRA will have to identify each 

unnamed officeholder given that Title II covers references to specific 

offices. See 11 C.F.R. § 100.29(b)(2). Many of the NRA’s programs 

include footage of protests against anti-gun measures, so the NRA will 

have to scan and transcribe the text of all the placards carried by the 

protesters to ensure that none contains the name of a candidate or 

references a specific office. And the NRA will face the task of making 

sure that the candidates themselves do not appear in these protests or 

any of its news footage. Once all of these names have been compiled, 

then the NRA must then match them against the database of candidates for federal office. The complexity of this process will severely chill 

the NRA’s speech. 
45 

they agree[ ].” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 

392 (1969); see also FCC v. League of Women Voters, 468 

U.S. 364, 398 (1984). An eighteenth century British 

colonial censor armed only with the Stamp Act would 

salivate at the prospect of wielding the speech-licensing 

power that Title II confers on the broadcast media. 

The public debate in the weeks preceding an election 

will now be heavily skewed by Title II to those viewpoints 

that the broadcast media, as super-gatekeepers, judge to 

be worthy of consideration. During future elections, the 

NRA will be limited to its PAC funds in broadcasting any 

communication that even refers to a candidate; by contrast, General Electric, for example, will be free to broadcast criticism or praise of candidates at will. Indeed, a 

multinational conglomerate that happens to own a TV 

network and cable channels, Rupert Murdoch’s News 

Corporation, can use its general treasury funds to produce 

a weekly hour-long program (“American Candidate”) that 

effectively launches its very own political candidate, see 

NRA App. 343-47, while the NRA – funded by millions of 

regular Americans with annual dues of $30 each – would 

commit a federal crime if it purchased a 30-second commercial spot during that program that so much as referred 

to that candidate. 

This is unconstitutional. This Court has rejected the 

proposition that “communication by corporate members of 

the institutional press is entitled to greater protection 

than the same communication by [non-media companies].” 

Bellotti, 435 U.S. at 783 n.18; see also Dun & Bradstreet, 

Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985). 

The First Amendment does not enshrine the press, for its 

own sake, as a favored institution apart from the public. 

There is no favored Fourth Estate here, any more than 

there is a First Estate (the clergy) or a Second Estate (the 

aristocracy). The rights of the media are derivative of the 

rights of the people. The press is protected only because it 

“serves . . . as a constitutionally chosen means for keeping 

officials elected by the people responsible to all the people 

whom they were selected to serve.” Mills v. Alabama, 384 

U.S. 214, 219 (1966). 
46 

The Equal Protection Clause prohibits the Government from discriminating between classes of speakers 

without a compelling governmental purpose. See Austin, 

494 U.S. at 667. In Austin, this Court confirmed that a law 

exempting media companies from a regulation of political 

speech triggers strict scrutiny, but concluded that there 

was a compelling governmental purpose for this discrimination: the “unique role that the press plays in ‘informing 

and educating the public, offering criticism, and providing 

a forum for discussion and debate.’ ” Id. at 667 (quoting 

Bellotti, 435 U.S. at 781). The Court found that “media 

corporations differ significantly from other corporations in 

that their resources are devoted to the collection of information and its dissemination to the public.” Id. 

Austin cannot save Title II’s media exception because 

the uncontested evidence in the record demonstrates that 

Austin’s factual predicates no longer exist. The creation 

and proliferation of the Internet has permanently transformed “the collection of information and its dissemination 

to the public,” and the absorption of media companies into 

multinational conglomerates negates any notion that 

media companies are either “unique” or immune from the 

corruption-related concerns that are claimed to be the 

driving force behind BCRA. 

Under strict scrutiny, the Government may not simply 

“posit” the existence of a compelling governmental interest, but must “demonstrate” that interest through the 

presentation of substantial evidence. Turner, 520 U.S. at 

191; see United States v. Playboy Entm’t Group, Inc., 529 

U.S. 803, 816-19 (2000). And this Court has recently 

recognized that the existence of the extraordinary facts 

needed to satisfy strict scrutiny at one time does not 

necessarily mean that those facts will continue to exist to 

justify a similar law in the future. See generally Grutter v. 

Bollinger, No. 02-241, slip op. at 31 (U.S. June 23, 2003). 

Given that 13 years have passed since the Austin Court 

upheld a state law favoring the political speech of media 

companies over that of nonmedia companies, the NRA’s 

challenge to Title II’s media exemption obligated the 
47 

Government to present evidence demonstrating why that 

discrimination satisfies strict scrutiny. 

Despite this burden, the Government presented no 

evidence to the trial court that might justify Title II’s 

discrimination in favor of media companies, choosing 

instead to rely solely upon Austin. The majority below 

followed suit. See S.A. 883-84 (Kollar-Kotelly). But while it 

rejected the NRA’s argument, the District Court did not 

(and could not) reject the uncontested facts that persuaded 

Judge Henderson that “[t]he media industry is no longer 

‘unique’ in the way that it was 10 or 15 years ago.” S.A. 

273 ¶54(a)(5) (Henderson). Neither Judge Kollar-Kotelly 

nor Judge Leon found any facts that contradict Judge 

Henderson’s core factual finding.37 

When the factual record in Austin closed in 1986, the 

internet was essentially nonexistent. Now, as Judge 

Henderson found, “[m]ore than 168 million Americans, or 

60 percent of the general public, use the internet,” meaning that “[m]ore Americans use the internet than read a 

daily newspaper.” S.A. 272-73 ¶54(a)(3)(A) (Henderson). 

Judge Henderson also found that as “a source of news and 

information, the internet rivals and is displacing the 

broadcast media,” that the “rapid growth in internet usage 

37 Judge Kollar-Kotelly rejected the contention that Internet 

advertisements are “comparable to those broadcast over TV and radio 

in terms of their public reach and impact,” S.A. 739-41 ¶¶2.10.3, 2.10.4 

(Kollar-Kotelly), because Internet viewers “make a choice to go to the 

website and download or watch the program, while advertisements on 

television and radio are aired throughout programming without any 

viewer choice.” S.A. 739-40 ¶2.10.3.1 (Kollar-Kotelly). Judge Henderson 

certainly did not find this distinction relevant, see S.A. 272-73 ¶54a(3) 

(Henderson), nor did Judge Leon endorse it. More importantly, neither 

Judge Kollar-Kotelly nor Judge Leon rejected any of the specific facts 

related to the proliferation of Internet usage found by Judge Henderson, and therefore did not (and could not) reject the proposition that the 

Internet has dramatically changed the “collection of information and its 

dissemination” since the time Austin was decided. 
48 

is one of the reasons for the dramatic decline in broadcast 

news program viewing,” and that “[n]umerous websites 

provide an alternative source of daily news and challenge 

the market dominance previously enjoyed by the traditional media.” S.A. 274 ¶54(a)(3)(B) (Henderson). In 

particular, “[t]he internet has also become an increasingly 

popular source of political news during election periods.” 

Id. 

Based upon the undisputed evidence, Judge Henderson concluded that “[o]ver the past decade the role of the 

traditional media in informing and educating the public 

has been profoundly altered by the emergence of the 

internet,” to the point of negating the factual premise of 

Austin that traditional broadcast companies play a 

“unique role” in disseminating information and offering a 

forum for debate. S.A. 272-73 ¶54(a)(5)(A) (Henderson). 

Neither Judge Leon nor Judge Kollar-Kotelly rejected 

these critical facts. 

Judge Henderson also found a second changed circumstance. While Austin relied on the assumption that 

media corporations were different because “their resources 

are devoted to the collection of information and its dissemination to the public,” 494 U.S. at 667, Judge Henderson found that “many media entities have been subsumed 

within larger corporate conglomerates and have devoted 

their resources to bottom-line profits.”38 Why should the 

speech rights of such corporate behemoths as General 

Electric and Disney be greater than the rights of nonprofit, 

38 As Judge Henderson noted, “CBS has been acquired twice in the 

past decade, first by Westinghouse and then by Viacom, and is now a 

subsidiary of a conglomerate that runs oil companies, farms, theme 

parks, and mining companies.” Likewise, ABC is now part of the Walt 

Disney Corporation, NBC is owned by General Electric, and Fox 

Television is part of Rupert Murdoch’s global News Corporation empire, 

which owns transportation companies and sports teams.” S.A. 274 

¶54a(5)(B) (Henderson). Additionally, AOL TimeWarner owns CNN, and 

Microsoft is a co-owner of MSNBC. 
49 

grassroots advocacy organizations like the NRA? Surely a 

multi-billion dollar multinational conglomerate is not 

vaulted into a “unique role” in our society the moment it 

decides to absorb a television station into its panoply of 

diverse business assets. Title II thus stands for the perverse proposition that it is wrong to use corporate money 

to pay for a discrete amount of broadcast time to air 

electioneering communications, unless the amount of 

money used is so enormously large that it purchases an 

entire station’s worth of broadcast time. 

Neither the Government nor the majority below 

explain why nonmedia companies that can afford to 

purchase broadcast facilities should be entitled to greater 

speech rights than other nonmedia companies. Instead, 

Judge Kollar-Kotelly tried to finesse “the NRA’s entire line 

of argument” with the assertion that “the media exception 

only applies to the ‘facilities of any broadcasting station,’ 

. . . not the facilities of any broadcasting company.” S.A. 

883 (Kollar-Kotelly). Yes, it is true that Title II exempts 

news stories, commentaries, and editorials distributed 

through the facilities of any “broadcast station,” but that 

obviously means that Title II exempts news stories, 

commentaries, and editorials broadcast by the company 

that owns that broadcast station. 

Judge Henderson specifically found, on the basis of the 

NRA’s substantial, uncontested, and uncontradicted evidence, that “[m]edia subsidiaries in some circumstances 

have been pressured by their non-media parent corporations to advance the interests of the parent or of the affiliated non-media businesses.” Not surprisingly, therefore, 

“[s]ome media companies have refused to cover stories that 

might compromise the interests of the parent or of the 39 affiliated entities.” S.A. 274 ¶54a(5)(C) (Henderson). 

39 Indeed, BCRA’s supporters, including the late Senator Wellstone, 

have argued that one can no longer rely on the media to fulfill their 

traditional function of “hold[ing] concentrated power – whether public 

or private power – accountable to the people.” NRA App. 628. 
50 


In sum, the uncontested evidence before the trial 

court confirms that “Big Media” has become part of “Big 

Business.” There is no longer any qualitative distinction 

between the two that can justify (1) immunizing broadcast 

corporations from the same corruption concerns that Title 

II ostensibly attributes to all other corporations, or (2) 

giving, say, General Electric a special license to comment 

on federal elections, while muzzling advocacy groups 

whose defining corporate purpose is not profit but the 

dissemination of ideas. 

CONCLUSION 

For the foregoing reasons, this Court should enjoin 

Title II’s prohibition on electioneering communications or, 

alternatively, the Wellstone Amendment. 

CLETA MITCHELL 

FOLEY & LARDNER 

3000 K Street, N.W. Suite 500 

Washington, D.C. 20007 

(202) 295-4081 

July 8, 2003 

Respectfully submitted, 

CHARLES J. COOPER 

Counsel of Record 

DAVID H. THOMPSON


HAMISH P.M. HUME


DEREK L. SHAFFER


COOPER & KIRK, PLLC


1500 K Street, N.W.


Suite 200 


Washington, D.C. 20005 


(202) 220-9600 


BRIAN S. KOUKOUTCHOS


COOPER & KIRK, PLLC


28 Eagle Trace 


Mandeville, LA 70471 


(985) 626-5052 

i 


APPENDIX


TABLE OF CONTENTS


Page 

I.	 Congressional Statements Concerning Controlling The Quantity And Quality Of Political 

Speech ........................................................................ 1a 

A. Senate Statements ............................................. 1a 

B. House Statements ............................................ 33a 

II.	 Congressional Statements Concerning Preserving Candidates’ Control Over Campaigns....... 40a 

A. Senate Statements ........................................... 40a 

B. House Statements ............................................ 43a 

III. Congressional Statements Concerning Opposition To Title II ....................................................... 46a 

IV. Congressional Statements Concerning The 

Need To Restrict NRA’s Speech .............................. 52a 

V. Congressional Statements Concerning Severability Of Wellstone Amendment In Light Of 

Constitutional Concerns ......................................... 58a 

VI.	 Congressional Statements Concerning The 

Design Of Wellstone Amendment To Curb 

Individual Expenditures......................................... 65a 
1a 

I. 	CONGRESSIONAL STATEMENTS CONCERNING CONTROLLING THE QUANTITY 

AND QUALITY OF POLITICAL SPEECH 

A. SENATE STATEMENTS 

Statement of Sen. McCAIN: 

“What the modified bill seeks to do is establish a so 

called bright line test 60 days out from an election. Any 

independent expenditures that fall within that 60-day 

window could not use a candidate’s name or his or her 

likeness. During this 60-day period, ads could run that 

advocate any number of issues. Pro-life ads, pro-choice 

ads, anti-labor ads, pro-wilderness ads, pro-Republican 

party or Democratic party ads all could be aired without 

restriction. However, ads mentioning candidates themselves could not be aired. 

This accomplishes much. First, if soft money is 

banned to the political parties, such money will inevitably 

flow to independent campaign organizations. These 

groups often run ads that the candidates themselves 

disapprove of. Further, these ads are almost always 

negative attack ads and do little to further beneficial debate and a healthy political dialog. To be 

honest, they simply drive up an individual candidate’s 

negative polling numbers and increase public cynicism for 

public service in general.” 

143 CONG. REC. S10,105 (Sept. 29, 1997).* 

* All emphases throughout this appendix have been added. 
2a 

Statement of Sen. McCAIN: 

“I am sure we can make a judgment on a lot of ads we 

have seen and the same ads the Senator and I find disgusting 

and distasteful and should be rejected. But at the same time, I 

don’t know how we can say, OK, if this station doesn’t run my 

ads, I am going to go to a judge and have the judge make them 

run my ads. It just is something that would be very difficult. 

I would love to work with the Senator from New Mexico. 

He has been a steadfast stalwart for campaign finance reform. 

I would love to work with him to try to achieve this goal. 

Frankly, after going around and around on this issue, identifying who paid for the ad, full disclosure and, frankly, not 

allowing corporations and unions to contribute to paying for 

these things in the last 60, 90 days, which is part of our 

legislation, is about the only constitutional way that we 

thought we could address the issue. 

I thank the Senator from New Mexico. He is addressing an 

issue that has demeaned and degraded all of us because people 

don’t think very much of you when they see the kinds of 

attack ads that are broadcast on a routine basis. 

As the Senator pointed out, they are dramatically on 

the increase. I will tell you what. You cut off the soft 

money, you are going to see a lot less of that. Prohibit 

unions and corporations, and you will see a lot less of 

that. If you demand full disclosure for those who pay for those 

ads, you are going to see a lot less of that because people who 

can remain anonymous or organizations that can remain 

anonymous are obviously much more likely to be a lot looser 

with the facts than those whose names and identity have to be 

fully disclosed to the people once a certain level of investment 

is made.” 

147 CONG. REC. S3116 (Mar. 29, 2001). 
3a 

Statement of Sen. McCAIN: 

“I hope that we will not allow our attention to be 

distracted from the real issues at hand how to raise 

the tenor of the debate in our elections and give 

people real choices. No one benefits from negative 

ads. They don’t aid our Nation’s political dialog. 

Again, if someone chooses to run negative ads, this bill will 

not restrict their right to do so. But we should not just 

throw up our hands and say, ‘Who cares?’ We should seek, 

within the protections of the Constitution, to encourage a 

healthy political debate.” 

143 CONG. REC. S10,106 (Sept. 29, 1997). 

Statement of Sen. McCAIN: 

“That is, so we are changing both. I say to my friend, I 

am changing both the definition of ‘independent expenditure’ and the definition of ‘express advocacy.’ We are doing 

so because there is clearly a huge problem in American 

politics today, which I am sure the Senator from Kentucky 

appreciates. There are no longer independent campaigns. 

There is nowhere in any dictionary in the world the word 

‘independent’ that would fit these campaigns. They are 

part of campaigns. To my dismay, and I am sure to 

every Member of this body, they are negative. And 

they are negative to the degree where all of our 

approval ratings sink to an all time low. 

. . . . 

If the Senator from Kentucky believes that these are 

truly independent campaigns, set up and run and funded 

by individuals who just want to see their particular issues, 
4a 

whether it be pro-life or pro-choice or workers’ right to 

strike or any of the others, then fine. 

But it is beyond me to believe that the Senator from 

Kentucky could have, having seen these ads he is very 

deeply involved in the political process that they are 

independent. They are not. They are appendices of the 

political campaigns. The tragedy of it is, 98 percent of 

them are attack ads, as the Senator well knows.” 

143 CONG. REC. S10,132 (Sept. 29, 1997). 

Statement of Sen. JEFFORDS: 

“Mr. President, I understand what my good friend 

from Kentucky is saying, but I remind everyone what the 

real issue is, and that is elections. We are talking about a 

system which has developed over the past couple of years 

which has seriously imposed upon us unfairness as far as 

candidates are concerned who find themselves faced 

with ads, and other areas of expression, to change 

the election. Why would they spend $135 million to $200 

million unless it was successful? 

Let us get a real-life situation of what we are talking 

about. I have been in the election process for many, many 

years, and I know from my own analysis – and I think it 

probably is carried forward everywhere – that the critical 

time in an election to make a change in people’s minds is 

the last couple of weeks. 

Basically, I find that probably of the electorate, only 

about 50 percent care enough about elections to even go. 

That is the average across the country. Of that 50 percent, 
5a 

probably half of them will make up their minds during the 

last 2 weeks. 

So you are out and have a well-planned campaign and 

everything is coming down to the end. You can go and find 

out what your opponent has to spend, and you can try to be 

ready to match that. And then whammo, out of the blue 

comes all these ads that are supposedly issue ads, 

but they are obviously pointed at positions that are 

taken by you saying how horrible they are. So these 

are within the Snowe-Jeffords amendment. 

What can you do about it? You cannot do anything. 

You cannot even find out who is running them, unless you 

are lucky and have an inside source in the TV and radio 

stations to tell you who it is. You cannot find out. There is 

no disclosure. 

The most important part of our amendment is just 

plain disclosure. If it is far enough in advance, 30 days 

before a primary and 60 days before a general election, at 

least you have time to get ready for it. If you know you are 

going to get all these ads coming, then you can reorder 

your priorities of spending. You can say, “Oh, my God, we 

have all this coming,” and you never know until it is all 

over. You are gone. You lose the election and you didn’t 

know. The opposition comes forth with this barrage 

and you are totally helpless.” 

144 CONG. REC. S917 (Feb. 24, 1998). 

Statement of Sen. JEFFORDS: 

“Mr. President, I am disturbed at the DeWine attempt 

to solve a problem that is not there. I was one of those back 

in my last election – not the last but the one before that – 
6a 

who was exposed to this kind of advertising, who has had 

to face seeing ads on television which totally distort 

the facts and say terrible things. You watch a 20-

percent lead keep going down and you do not know who is 

putting them on. You know what they are saying is totally 

inaccurate, but you have no way to refute it, other than to 

try to get people convinced that nobody knows who put it 

there, who is behind it. 

The constitutionality of our provisions is common 

sense. How can you say that something which merely asks 

the person who put out the ad to let everybody know who 

they are is unconstitutional? How in the world can you say 

that it is unconstitutional to require somebody to disclose 

who they are and what they are? 

That is all we are doing in Snowe-Jeffords. 

The Wellstone amendment does make things a 

little more confusing in that regard.” 

147 CONG. REC. S3071 (Mar. 29, 2001). 

Statement of Sen. SNOWE: 

“That is correct – our amendment is not intended to 

convey any criticism of the FEC. The Buckley magic words 

test is a very narrow one, and has proven completely 

ineffective in stopping phony issue ads that attack candidates. My amendment offers a new approach to this 

problem, by creating a new category of ‘electronic ads’ that 

name candidates in broadcasts close in time to an election.” 

144 CONG. REC. S979 (Feb. 25, 1998). 
7a 

Statement of Sen. SNOWE: 

“Any successful campaign finance reform bill must 

address the realities of elections as we approach the new 

millennium. One of those realities is the so called issue 

advocacy or voter education ads. We have all seen these 

ads: threatening music over provocative images blatantly 

designed to influence voters to vote against a candidate. 

But because these ads don’t specifically say “vote against 

candidate X” there is currently no limit on how much can 

be spent on them, and no accountability. 

It is obvious to anyone the purpose of these ads; to 

skirt current campaign finance laws that require that ads 

designed to influence Federal elections be paid for with 

hard money, and disclosed to, and regulated by, the Federal Election Commission. Under my bill, the law would be 

changed in such a way to include these types of ads under 

hard money limits and disclosure requirements. This 

would help limit the attack ads and give the public the 

information they need about who is paying for these ads 

and how much they are spending. An informed electorate 

is the key to any democratic system of government, and 

my bill will give people the information they need to make 

up their own minds.” 

143 CONG. REC. S8581 (July 31, 1997). 

Statement of Sen. WELLSTONE: 

“The last criterion is political equality. Everybody 

ought to have an equal opportunity to participate in the 

process. That means the values and preferences of citizens, 

not just those who get our attention through the large 

contributions, should be considered in the debate. One 
8a 

person, one vote; no more, no less; one person, same 

influence. Each person counts as one, no more than one. 

That is the standard. That is what it is all about. That 

precious principle, that precious standard of representative 

democracy, is being violated. 

. . . . 

Finally, I have to say this because I forgot to mention 

this earlier. This is the part of the McCain-Feingold 

legislation that I think is perhaps most important. I 

remember the 1996 election. I think these issue 

advocacy ads are a nightmare. I think all of us 

should hate them. I very much would like to apply this to 

independent expenditures as well. I want to be clear about 

it. But in Minnesota, it was a barrage of these phony issue 

advocacy ads, where they do not tell you to vote for or 

against; they just bash you and then they say: Call 

Senator So-and-so. 

They are soft money contributions with no limits on how 

much money is raised, no limits on how the money is raised. 

It could be in $100,000 contributions, $200,000 contributions, 

and make no mistake about it, this is in both parties. These 

big soft money contributors have a tremendous amount of 

access and way too much influence in both parties. 

So with one stroke, it would be a wonderful 

marriage. We could get some of this poison politics 

off television. We could get some of these phony ads 

off television. We could build more accountability, and we 

would make both political parties, I think, more accountable to the public.” 

145 CONG. REC. S12,606-07 (Oct. 14, 1999). 
9a 

Statement of Sen. WELLSTONE: 

“The point is, if you are concerned about poison 

politics, leave this loophole open, let these interest 

groups run these sham ads. Overwhelmingly they are 

negative, they can be vicious, they are poison politics.” 

147 CONG. REC. S2846 (Mar. 26, 2001). 

Statement of Sen. WELLSTONE: 

“If you want to try to get as much of the big money out 

of politics as possible, you have to support this amendment. 

If you hate bitter, personal, poison politics, you have 

to support this amendment. Because, before the Presiding Officer came in, I was saying that the Brennan Center 

said that 70 percent of the money spent by these sham ads 

by these groups and organizations is personal, negative, 

and going after people’s character. I am glad to say that 

only about 20 percent of the candidates’ ads do that.” 

147 CONG. REC. S2849 (Mar. 26, 2001). 

Statement of Sen. CANTWELL: 

“This bill is about slowing the ad war. It is about 

calling sham issue ads what they really are. It is about 

slowing political advertising and making sure the 

flow of negative ads by outside interest groups does 

not continue to permeate the airwaves. Ninety-eight 

million dollars worth of these ads ran in the 2000 election 

by narrowly focused special interest groups based out of 

Washington, DC. This legislation will change that and 
10a 

again focus these debates more on the public agenda. This 

bill also stops the unlimited flow of corporate contributions, or soft money, that contributed to the volume of ad 

wars in the 2000 election.” 

148 CONG. REC. S2117 (Mar. 20, 2002). 

Statement of Sen. CANTWELL: 

“The Seattle Post Intelligencer noted earlier this week 

that campaign ads ‘rained down on – or bludgeoned, 

according to some – viewers throughout the late summer 

and fall. And this wasn’t an intermittent, drip torture kind 

of rain that Seattle residents know so well. It was a 

deluge, a constant unavoidable torrent, stretching across 

three solid months.’ 

With this constant torrent of negative advertising, it is no wonder that voting among 18 to 24 year 

olds has dropped from 50% to only 32% – a much 

steeper decline than overall turnout. 

Part of the reason for this disaffection with 

voting and with politics is undoubtedly due to negative attack advertising.” 

147 CONG. REC. S2698 (Mar. 22, 2001). 

Statement of Sen. BOXER: 

“Another good thing about McCain-Feingold: 

Those vicious attacks that have come from large soft 

money contributions will not be able to come 60 days 

before your election. That is a big plus because that is what 
11a 

we find – that candidates at the end simply cannot 

respond to this barrage of activity. 

So I feel personally grateful, going into an election 

cycle, that in 2004 candidates will not have this burden to 

raise hundreds of thousands of dollars from one source in 

soft money. That will not be allowed. I think that is good 

for the candidate. I think that is good for the country, it is 

good for the legislative process. We will not be hit by 

these last-minute ads with unregulated soft money at 

the end, to which we will be unable to respond.” 

148 CONG. REC. S2101 (Mar. 20, 2002). 

Statement of Sen. BOXER: 

“I have to tell you, when I think about speech, I think 

about both sides of it. If you have an independently 

wealthy billionaire running against you in a State like 

California, and he writes checks every day and bashes you 

on television every day and bashes the other opponents that 

he is running against every day, I believe we should ask, 

what about the free speech rights of the opponents? What 

about the speech of the other people that are drowned out 

because of money? If you equate money and speech, it 

seems to me you are saying someone who is wealthy 

has more speech rights than someone who is not. 

This is not the American way. We are all created equal. 

That is the basis of who we are as a nation. I really hope 

that we can get past this notion that money is speech and 

that we will move forward with a comprehensive bill. 
12a 

My one disappointment with the substitute pending 

before the Senate, is that it is not as comprehensive as the 

first version of the McCain-Feingold bill. However, I 

respect the judgment of the Senators that it would be best 

at this time to zero in on two horrible abuses of the system. 

One abuse is the soft money abuse, which means 

unregulated dollars of any amount that flow into political 

parties. We have seen the hearings that are going on by 

this U.S. Senate and over in the House. If anything, we 

come away with this: Let’s put an end to soft money. We 

could point fingers all day this politician, that politician, 

where the calls were made, who made them but I guarantee that gets us nowhere. The issue is the system. There 

will be enough examples around from both parties. This is 

not the problem. 

So if we get exercised about these hearings and I have 

seen colleagues here who are very exercised about them 

they should go over to John McCain and Russ Feingold 

and tell them they are on their side. There ought to be 

some controls on the soft money contribution, and those 

controls are now pending before the Senate. The second 

area of abuse tackled by the McCain-Feingold bill is the so 

called issues advocacy advertisements. This is where you 

take an organization with endless sums of money to put 

into an attack ad against the candidate they don’t like. 

Under current law, individuals can only give $1,000 in 

the primary and $1,000 in the general to the candidate, 

but issues advocacy has grown into huge loophole. These so 

called issues ads are not regulated at all and mention 

candidates by name. They directly attack candidates 
13a 

without any accountability. It is brutal. I have seen 

them. I have seen them from both sides. 

I can tell you, it is totally unfair and totally unregulated and vicious. It is vicious. We have an opportunity 

in the McCain-Feingold bill to stop that and basically say, if you want to talk about an issue, that is 

fine, but you can’t mention a candidate. If this is truly 

issue advocacy, you can’t mention a candidate a few weeks 

before the election. 

If you want to talk about an issue day and night, talk 

about the issue, whether it is choice, the environment, 

health care, gun control talk about it. But once you 

attack a candidate, that is not an issue ad. This is 

what the Feingold McCain will go after.” 

143 CONG. REC. S10,208-09 (Sept. 30, 1997). 

Statement of Sen. BOXER: 

“Second, the McCain-Feingold amendment bans 

attack advertising disguised as ‘issue ads’ by corporations and unions within 60 days of an election.” 

144 CONG. REC. S10,168 (Sept. 10, 1998). 

Statement of Sen. DASCHLE: 

“We also have a serious problem with regard to the 

ads themselves and all that comes from spending this 

money. It is the amount of money, the perception of to 

whom we are indebted, but now we also have a problem 
14a 

with the virulent advertising that comes from it. I 

believe that negative advertising is the crack cocaine 

of politics. We are hooked on it because it works. We are 

hooked on it because we win elections using it. There is no 

accountability, no reporting; it is publicly not tied to any 

candidates. And I expect that in 1998 we are going to see a 

meltdown of the process, because we are going to see more 

virulent ads than we have ever seen in our lifetimes. The 

crack cocaine of politics will be at work again. 

Negative ads from anonymous sources push candidates to the margins. Candidates become bit players in 

their own races. How many times have I heard candidates actually say, ‘I couldn’t keep track of who was on my 

side. I’d watch television and I’d hear my name used pro 

and con, and I didn’t have anything to do with those ads. I 

am sitting like a man at a tennis match, watching both 

sides play it out.’ And the debate now is defined by who 

has the most money; that is how it is defined.” 

144 CONG. REC. 868 (Feb. 24, 1998). 

Statement of Sen. DASCHLE: 

“A 1997 study by the respected Annenberg Public 

Policy Center at the University of Pennsylvania found that 

phony ‘issue ads’ are nearly identical to campaign ads – 

with two exceptions. The ‘issue ads’ are more attackoriented and personal. And, it is harder to identify the 

sponsor. These ads epitomize the negative campaigning – without any accountability – the public so dislikes.” 

145 CONG. REC. S12,660 (Oct. 15, 1999). 
15a 

Statement of Sen. KENNEDY: 

“In recent years, the amount of money spent in Presidential campaigns has doubled every 4 years. Senate and 

House races now cost millions of dollars. Election campaigns have become more and more negative, with 

misleading TV spots that traffic in halftruths or 

outright falsehoods. And corrupting and corroding it all 

are the massive abusers of the current loophole ridden 

campaign financing laws.” 

143 CONG. REC. S10,271 (Oct. 1, 1997). 

Statement of Sen. LIEBERMAN: 

“The Annenberg study further found that more than 

40 percent of the 1996 ads plainly attacked candidates, 

not issues. One of the witnesses before our committee said 

last week that by his review of the ads, the issue ads were 

actually more negative to candidates than the candidate ads were. Some ads don’t bother with issues at all.” 

143 CONG. REC. S10,141 (Sept. 9, 1997). 

Statement of Sen. DURBIN: 

“On the Saturday night before the election last November, bone weary, I pulled into my apartment in Chicago, and I was going to relax a little bit. It was in the 

closing days of the campaign. So I slumped down in a 

chair, grabbed the remote control to listen to Saturday 

night Live. Somewhere between the news and Saturday 

Night Live, up pops four television commercials, one 
16a 

after the other, and every one of them blasting me. 

What a treat that was to sit in the chair and get 

pummeled by four different commercials. 

The most unique thing was that not a single one was 

paid for by my opponent, the Republican Party in Illinois, 

or the National Republican Party. They were paid for by 

committees and organizations that most people never heard 

of. These are organizations which mushroom up during 

campaigns, take some high sounding name, collect millions of dollars, undisclosed and unreported, and run ads, 

the most negative ads on television, against politicians. 

That is an outrage. It is an outrage that I have to account 

for every dollar I raise and spend and I have to identify 

the television commercials that I put on, either comparing 

my record with my opponent or speaking about something 

I believe in, and these groups can literally run roughshod 

over the system, spending millions of dollars without any 

accountability. 

McCain-Feingold addresses that. Thank God it does. If 

we don’t put an end to this outrage, most of these other 

reforms are meaningless. To eliminate soft money and to 

allow special interest groups, whether on the business or 

labor side, to continue to spend money unfettered in issue 

advocacy and the like is outrageous. The McCain-Feingold 

legislation is an idea whose time has come.” 

143 CONG. REC. S10,124 (Sept. 29, 1997). 

Statement of Sen. DURBIN: 

“People are sick of our advertising. It is too negative. 

It is too nasty. These drive-by shooting ads that we 

have, 30-second ads by issue groups you never heard 
17a 

of, at the last minute of a campaign, and candidates, 

myself included, spending a lot of time groveling and 

begging for money, that does not help the process. It does 

not help our image. It does not encourage people to get 

involved. 

What McCain-Feingold is about is not just changing 

the law but changing the attitude of the public toward the 

political campaigns. And unless and until that happens, 

we face a very serious problem in this country. What 

McCain-Feingold goes after in eliminating soft money is 

something that has to happen. Soft money is what is left 

after all of the restrictions on hard money have been 

applied. 

For those who are not well versed in the language of 

politics and campaigns, ‘soft money’ can be corporate 

money, it can be money that is given by a person that 

exceeds any kind of limitation. It can be money that is 

used indirectly to help a campaign. And that sort of 

expenditure has just mushroomed. 

I am glad that the legislation of Senator Feingold and 

Senator McCain is going to ban soft money. I also think it 

is critically important they do something about these issues 

ads.” 

144 CONG. REC. S879 (Feb. 24, 1998). 

Statement of Sen. DURBIN: 

“There is not only something wrong with the advertising, it has become so negative, so nasty, so dirty, that 

people are disgusted with it. There is something wrong 

with the products. Candidates for the House and Senate 
18a 

are losing their reputation or seeing their integrity maligned because we spend so much time grubbing for money. 

People believe that we are captives of special interest 

groups. And because they are sick of the style of campaign 

and because they have little or no confidence in those of us 

who wage the campaigns, they stay home.” 

143 CONG. REC. S10,123 (Sept. 29, 1997). 

Statement of Sen. DURBIN: 

“There is another element, too – the advertising that we 

put on television during the course of the campaign. A lot of 

people are turned off by it. Most campaigns hire sophisticated 

people to make those ads. They hire pollsters who go out 

and take legitimate samples of American opinion – samples within a given State – and convert those samples into 

messages; 30-second messages that go up on television. 

Some of the messages are positive. Some are negative. It is 

the negative ones that unfortunately give us the bad 

name and lead a lot of people to say that this process 

itself is so fundamentally flawed.” 

144 CONG. REC. S10,060 (Sept. 9, 1998). 

Statement of Sen. DORGAN: 

“And guess what? What kind of advertising was this? 

Eighty-one percent of it was negative advertising; 81 

percent negative advertising. That is the air pollution in 
19a 

this country that we ought to worry about. We ought 

to do something about it.” 

143 CONG. REC. S10,097 (Sept. 26, 1997). 

Statement of Sen. DORGAN: 

“Finally, campaign finance reform is also part of what 

our caucus is committed to doing. There are a lot of discussions about what pieces will work and what pieces will not 

work with respect to campaign finance reform. I want to 

describe one little piece that I think is important. The 

most significant kind of air pollution in America 

today is the 30-second political ad that does nothing 

but tear down someone’s opponent. It is a 30-second 

slash and burn, cut and run ad that contributes 

nothing to our country. The first amendment gives 

everybody the right to do that. We won’t change that. But 

there is a little thing we can change. We can, by Federal 

law, say that every television station is required to offer 

the lowest rates on the rate card during political advertising during a certain period. I propose that we change that 

law to say that low rate is only available to candidates 

who run advertisements that are at least 1 minute in 

length. Let’s require people to say something significant in 

one in which the candidate himself or herself is in the 

advertisement 75 percent of that 1 minute.” 

144 CONG. REC. S702 (Feb. 12, 1998). 

Statement of Sen. DORGAN: 

“This overly narrow definition of what constitutes 

express advocacy has created a giant loophole for attack 
20a 

ads. Simply by avoiding the magic words I mentioned 

above, corporations, unions, and other special interest 

groups can pay for brutal attack ads. Anyone who has seen 

some of these ads can tell they’re intended to influence the 

outcome of Federal elections. And because they can be paid 

for with soft money, groups can raise money for them 

without limits, buy them in the millions of dollars, and 

never have to disclose what they’re doing to the FEC.” 

143 CONG. REC. S8933 (Sept. 8, 1997). 

Statement of Sen. DORGAN: 

“And what about the issue ads which Senator Durbin 

mentioned as well? These issue ads – are they ads that 

contribute to this political process? Eighty-one percent of 

them are negative. They represent the slash, burn and tear 

faction of the political system. Get money, get it in large 

chunks from secret sources and put some issue ads on 

someplace and try to tear somebody down.” 

144 CONG. REC. S880 (Feb. 24, 1998). 

Statement of Sen. DORGAN: 

“I would like to just mention two additional items 

before I close. One of the concerns I have about our 

political system is so much of the advertising is 

negative. There is nothing you can do about that; I 

understand that. We cannot prohibit this kind of advertisement. We can say, if you are going to put this kind of 

advertisement on the air, you have to play by the rules and 

get hard money and disclose the donors. There is nothing 
21a 

wrong with that. But we cannot prohibit any advertisement. So much of it now is negative and so much of it is a 

30-second little political explosion that goes on across our 

country where candidates are not even hardly named, at 

least with respect to the person’s campaign, in financing 

the 30-second ad. It is a nameless, faceless, little bomb 

directed to destroy, tar or feather some other candidate.” 

143 CONG. REC. S10,138 (Sept. 29, 1997). 

Statement of Sen. DORGAN: 

“Mr. President, I rise today to discuss legislation I am 

introducing to address a significant air pollution problem 

we have in this country. 

No, I’m not talking about smog, or acid rain, or the 

ozone layer, I’m talking about broadcast air pollution. 

And by that I mean the 30- second, slash-and-burn, 

hit-and-run political ad that does nothing but cut 

down an opponent. 

Can you think of any other business in this country 

that sells its wares only by tearing down the opposition? 

Do airlines ask you to consider their services because their 

competitors’ mechanics are unreliable, and try to conjure 

up images of plane crashes to get you to switch carriers? 

Do car manufacturers sell their products by raising dark, 

misleading doubts about the safety of their competitors’ 

autos? Does McDonald’s run ads raising the threat of Ecoli bacteria in Burger King’s hamburgers? 

Of course not, but that’s precisely the way we compete 

in politics against each other. 
22a 

It is a pretty sad state of affairs when the American 

people get a more informative and dignified discussion about 

the soda they drink or the fast food restaurant they prefer 

than they do in the debate about what choices to make for our 

country’s future. It is time to do something about it. 

We cannot and should not attempt to limit speech. But 

there is something we can do to provide the right incentives. Under current law, television stations are required 

to offer the lowest unit rate to political candidates for 

television advertising within 45 days of a primary election, 

and within 60 days of a general election.” 

The legislation I am proposing today would change 

that law to provide that the low rate must be made available only to candidates who run ads that are at least one 

minute in length, in which the candidate appears at least 

75 percent of the time.” 

144 CONG. REC. S1076 (Feb. 26, 1998). 

Statement of Sen. COLLINS: 

“The situation with bogus issue ads is not better. That 

practice undermines the two major objectives of our 

election laws, namely, placing limits on contributions and 

disclosing the identity of those making the contributions. 

Without such disclosure, we lose accountability. A recent 

study found that as accountability in political communications declines, levels of misinformation and deceit rise. 

Thus, it is no surprise that bogus issue ads almost 

always carry a negative message, something which 
23a 

all in this body purport to decry. The question is – are 

we willing to do something about it?” 

144 CONG. REC. S875 (Feb. 24, 1998). 

Statement of Sen. COLLINS: 

“I want to respond, also, to the comments made by the 

Senator from Connecticut and the Senator from Michigan 

and thank them for their support of the Wyden-Collins 

proposal. Senator Dodd and Senator Feingold also raised a 

very important point, and that is, the deluge of negative 

attack ads discourages people from voting and really 

turns off the American public. This is exacerbated by 

the fact that a lot of times it is not evident who is sponsoring these ads, who is behind these charges and allegations 

that are hurled particularly in the final days of the campaign. 

I believe the Snowe-Jeffords amendment will help in 

that regard and that the amendment Senator Wyden and I 

are sponsoring today will make very clear that when a 

candidate launches a negative ad attacking his opponent, 

that candidate will have to take responsibility for that ad.” 

147 CONG. REC. S2695 (Mar. 22, 2001). 

Statement of Sen. CLELAND: 

“I look back at the 1976 decision by the Supreme 

Court which, in effect, equated the ability to spend money 

with free speech. In the campaign finance hearings a 

couple of years ago, I asked the simple question: If you do 

not have any money in this country, does that mean you do 

not have any speech? Of course not. The problem is we 
24a 

have equated money with speech and the ability to 

get on the air with 30- and 60-second spots which 

make us want to throw up. 

I share the concern of the distinguished Senator from 

Alabama, Mr. Sessions, about these negative attack ads 

that come from out of State and seem to originate from 

God knows where. They come in and assassinate someone’s character. That is not the country for which Senator 

McCain and I fought. That is not the kind of democracy we 

intend to serve. That is one reason why I have bonded with 

him in such a close way: to support cleaning up this incredible process.” 

145 CONG. REC. S12,612 (Oct. 14, 1999). 

Statement of Sen. REED: 

“This would curtail what has become an explosion 

throughout our American political system. Phony issue 

advertisements are unconstrained, cropping up suddenly, 

without attribution, to strike at candidates.” 

144 CONG. REC. S884 (Feb. 24, 1998). 

Statement of Sen. DODD: 

“If you look at campaign advertising, the attacks we 

wage against each other, the personal degradation we 

attach to and associate with our political competitors, what 

has happened is, we have so devalued public service 

and the public life of elected office that the public 

has become understandably disgusted with the 

condition of politics in America. We have no one to 
25a 

blame for that but ourselves. In no small measure that has 

occurred because of the rising amount of dollars that are 

spent being convinced by political consultants that the best 

way to win office is not to convince anyone of the merits of 

your argument but if you can convince people that your 

opponent is somehow unworthy of even consideration for 

the office, let alone that his ideas or her ideas may lack 

substance, then you can win a seat in the Congress of the 

United States. 

Thus we see, as we did last year, where, of the 200 

million eligible voters in America, only 50 percent voted; 

100 million Americans cast their ballots for the Presidency 

of the United States, a decision that was made by a handful of votes in one State, and 100 million of our fellow 

citizens did not even show up on election day, where a tiny 

fraction, had they shown up in one State, would have 

resulted in a different outcome than what occurred as a 

result of the recounts and so forth that occurred in the 

State of Florida. 

I suspect that a good portion of that 100 million didn’t 

show up because they forgot or because they had something better to do that day. 

I suspect a substantial portion didn’t show up because 

they are disgusted with the process; they are sick and tired of 

coming into September and October after an election year and 

you can’t turn on a single bit of programming without 

some mudslinging going on, attacking of one another, 

blistering one another. Whether it is through our own ads, 

or the ads of outside groups just trying to destroy the 

reputations of people seeking public life, I suspect that 
26a 

has more to do with the declining numbers of people checking off on the 1040 forms, the resource to support Presidential public financing. 

One of the reasons why McCain-Feingold deserves support, in my view, is because there is some 

hope that this will put the brakes on, slow this down 

enough so we don’t have an unending exponential growth 

of dollars pouring into the coffers of candidates and groups 

out there year in and year out, destroying not only the 

candidates, but the public’s confidence in a political system 

that has contributed greatly to this great Nation over 200 

years.” 

147 CONG. REC. S2943 (Mar. 27, 2001). 

Statement of Sen. DODD: 

“Mr. President, let me thank our colleague from New 

Mexico for proposing this amendment. All of us here, and 

those who pay any attention at all to politics in this 

country and are confronted with this, as most Americans 

are, if you look at this chart by the Senator from New 

Mexico, particularly in that August, September, 

October period of an election year, it is hard not to be 

confronted with the assault – that is the only way to 

describe this – of ads on television from one end of the 

country to the next, on every imaginable radio station, 

television station, now cable stations – this bombardment 

that occurs. 

What the Senator from New Mexico has graphically 

demonstrated with his chart is that the overwhelming 

majority of these ads are the so-called attack ads. 

Usually, they are very vicious, designed to not promote 
27a 

one’s ideas nor one’s vision, one’s agenda – if they are 

elected to Congress or the Senate or the Presidency or 

some other office – but merely to try to convince the rest of 

us why you ought to be against someone; not why you 

ought to be for me but why you ought to be against my 

opponent. 

The least enlightening part of a campaign is the 

proliferation of these ads. They do nothing, in my view, to 

contribute to the education, the awareness of the American 

people. We have seen an explosion of them over the 

past few years. I suspect this has probably been in the 

last 6 or 7 years, with the explosion of soft money that the 

McCain-Feingold bill seeks to shut down.” 

147 CONG. REC. S3113 (Mar. 29, 2001). 

Statement of Sen. MURRAY: 

“Given the problems in the system, I developed a set 

of principles for reform that have guided my decisions 

throughout this debate. My principles for reform are: 

First, there should be less money in politics. Second, I 

want to make sure that average voters aren’t 

drowned-out by special interests or the wealthy. 

Third, we must demand far more disclosure from those 

who work to influence elections. When voters see an ad on 

TV or get a flyer in the mail, they should know who paid 

for it. There must be disclosure for telephone calls and 

voter guides. Citizens have a right to know who’s trying to 

influence them. We’ve seen a disturbing increase in the 

number of issue ads, which are often negative attack 
28a 

ads. Too often, voters have no idea who’s bankrolling 

these ads.” 

147 CONG. REC. S3236 (Apr. 2, 2001). 

Statement of Sen. BINGAMIN: 

“It should come as no surprise to any of us that more 

and more Americans are repulsed by these anonymous 

assaults and the sheer volume of money pouring into our 

election system. As a consequence, they are distancing 

themselves from the political process. That is the greatest 

tragedy of all. Americans are so turned off by our political 

system that they don’t even vote on election day. When 

they do vote, often it is not the sense of voting for the 

better of two candidates; it is a perception that they are 

voting for the lesser of two evils on the ballot. 

With a tidal wave of campaign cash flowing into our 

political system, the torrent of negative advertising on 

the airways, and the lack of meaningful disclosure or 

accountability, it is becoming increasingly difficult, 

almost impossible, for the American people to feel 

good about any candidate, or their participation in the 

democratic process.” 

144 CONG. REC. S10,081 (Sept. 9, 1998). 

Statement of Sen. WYDEN: 

“Mr. President, I come to the floor this morning with 

Senator Collins of Maine to offer a bipartisan amendment 
29a 

that we believe will help slow the explosive growth of 

negative political commercials that are corroding the faith 

of individuals in the political process. I also thank my 

colleague from New Mexico, Senator Bingaman, and 

Congressman Greg Walden of Oregon on the House side, 

who has also been extremely interested in this issue over 

the years. 

Negative commercials are clearly fueling citizens’ cynicism about politics. Those negative commercials are depressing voter participation and, in 

my view, they are demeaning all who are involved in 

the political process.” 

147 CONG. REC. S2692 (Mar. 22, 2001). 

Statement of Sen. BAUCUS: 

“The problem we’re really facing is how grey the campaign finance laws have become. McCain-Feingold, as 

amended, would make them black and white. Just take issue 

advocacy advertising as an example. In the last couple campaigns, the lines have been blurred between express advocacy, 

which requires federal disclosures, and issue advocacy. 

We can all recall advertisements in our own state that 

just barely skirted the lines. In Montana, the unregulated soft 

money ads started early. Close to a year before the election, 

groups started attacking candidates with mud-slinging 

ads. Groups with benign sounding names that hid their 

partisan bent. Ads that attacked candidates, and even told 

people where to call, but somehow fell under the ‘issue 
30a 

advocacy’ definition, and were exempt from campaign finance 

laws.” 

147 CONG. REC. S3239 (Apr. 2, 2001). 

Statement of Sen. JOHNSON: 

“I personally have just been through one of the longest 

and, frankly, one of the most expensive per voter Senate 

campaigns in the history of America. My opponent and I 

spent a total of $24 for every vote cast. And, if one were to 

include the money spent by the national party organizations and the various independent groups, total spending 

would rise to around $29 per vote. All of this money 

produced one of the longest political campaigns the Nation 

has ever seen. My opponent began running campaign 

commercials 17 months from the election, then 13 months 

before the election an attack ad campaign, one that I had to 

respond to, although I was not yet even formally an 

announced candidate in the race. 

That is the kind of campaign negative vitriolic, 

longwinded, longstanding that did nothing to improve the confidence of the American public in our 

political process, and did nothing to restore confidence 

that in fact the system reflects their values and their 

ideals and their values. It was simply a system awash in 

too much money.” 

143 CONG. REC. S10,395 (Oct. 6, 1997). 
31a 

Statement of Sen. LEVIN: 

“If we do not do it, if we do not put a stop to the 

money chase and the attack ads that are overwhelming the system and disgusting the American people, 

we will let down our constituents.” 

143 Cong. Rec. S10,127 (Sept. 29, 1997). 

Statement of Sen. COCHRAN: 

“We all see the ads. We are overwhelmed by the 

total number of television ads and other mailings that 

are sent out during a political campaign these days in 

House races, in Senate races, and even the Presidential 

election this past year. Voters have to be confused. Who is 

running the ads? It says “The Good Government Committee,” but who is that? Or it says something else that 

sounds really good, as though they are on the side of right 

and justice and right thinking. So they put the ad up that 

suggests or insinuates that one or the other of the candidates isn’t on the right track, either on one subject or just 

generally speaking, it isn’t good for the State or the district or the country, or suggests that there may be something in the background of the candidate that is 

suspicious, that needs to be looked at very carefully. The 

insinuation, the misleading tone, the negative aspect 

of political campaigns is fueled by the huge 

amounts, the juggernaut, an almost imperceptible 

amount of influence being brought to bear on these 
32a 

campaigns by who knows what source, who knows who is 

behind the spending.” 

147 CONG. REC. S2444 (Mar. 19, 2001). 

Statement of Sen. MIKULSKI: 

“The McCain-Feingold bill does several things. It bans 

soft money raised by national parties and by candidates 

for Federal office. It ends issue ads, which are really 

attack ads under the guise of ‘issues.’ I want to close the 

loophole which allows groups to skirt the current election 

law – and this bill does just that. Finally, it clarifies what 

election activities non-profits can do on behalf of our 

candidates for Federal office.” 

147 CONG. REC. S2691 (Mar. 22, 2001). 

Statement of Sen. BRYAN: 

“The McCain-Feingold proposal addresses two important issues that could begin to turn our campaign system 

around. The legislation proposes to ban soft money 

contributions to our national political parties and to curb 

the use of attack advertisements hidden behind socalled ‘issue advocacy’ campaigns.” 

144 CONG. REC. S1038 (Feb. 26, 1998). 
33a 

B. HOUSE STATEMENTS 

Statement of Rep. SHAYS: 

“The other thing is that we want to deal with the sham 

issue ads. The sham issue ads are those campaign ads 

that basically almost tanked the gentleman from 

Arizona. We would ban those sham issue ads. We would 

not see corporate money being used, we would not see 

union dues money because it would be illegal, because 

once it is a campaign ad, they cannot do those ads. They 

can do it through PAC contributions, but not through 

members’ dues, and they cannot use corporate money.” 

144 CONG. REC. H5480 (July 14, 1998). 

Statement of Rep. ALLEN: 

“If one is a TV viewer and they like endless 

streams of deceptive anonymous issue ads in election 

years, oppose reform; but if one prefers honest and 

less frequent ads, support Shays-Meehan.” 

145 CONG. REC. H8182 (Sept. 14, 1999). 

Statement of Rep. HOEFFEL: 

“Mr. Chairman, I thank the gentleman for yielding me 

this time, and I rise in opposition to the Ney substitute, 

because it is clearly designed to send campaign reform to 

conference where it will die. I rise in full support of the 

Shays-Meehan underlying bill. 

It is time that we get soft money out of Federal elections. 

It is time that we control the sham issue ads. In fact, Mr. 
34a 

Chairman, it is time for a lot more reform. This is only one 

good step forward into cleaning up our Federal elections. 

We should consider other steps that would limit the 

corrupting influence of private money on public campaigns. We should consider a measure of public financing 

for congressional elections, as we do for Presidential 

elections. We should consider ways to raise the discourse and stop the negative ads, and do other things 

to clean up our system and restore a sense to the democratic process that it belongs to the people, not the big 

donors, and restore a sense that it matters what we say in 

campaigns and what people do in campaigns.” 

148 CONG. REC. H389 (Feb. 13, 2002). 

Statement of Rep. BAIRD: 

“Let me share with my colleagues an example actually 

from our recent experience. We had a very expensive 

campaign, I will admit it, because we were getting 

attacked heavily, one of the number-one targets in the 

whole country. But we also had a grassroots campaign. 

That is what we need to have more of. We had 1,100 

volunteers in the field on the day of the election, 1,100 

people going around the district working telephones, 

saying why they cared so much about that election. I know 

my good friend from Illinois had a similar organization. 

That is politics at its best. Politics at its best is people 

working in the field for people they believe. Politics at its 

worst is when people pay telephone solicitors to call with 

smear campaigns. Politics at its worst are last-minute 

$100,000, $200,000 and $300,000 TV attack ads. 
35a 

What I am hoping we can do is inspire the young 

people who come watch us each day and watch us on TV 

and who are in our schools today to be a part of politics at 

its best. This bill will help reduce the impact of politics at 

its worst and maybe inspire people to do more.” 

145 CONG. REC. H1311 (Mar. 16, 1999). 

Statement of Rep. CAPPS: 

“Last year, as was mentioned, I endured four grueling elections and watched as wave after wave of 

attack ads flooded my district under the guise of 

informing voters. These ads distorted both my record and 

the record of my opponent. 

The Shays-Meehan bill effectively ends the misuse of 

issue advertising. It does so by requiring all ads which 

clearly urge the support or defeat of a candidate in a 

Federal election to be treated like what they are, political 

ads. 

Let us restore the public’s trust in our political system. We need to pass the Shays-Meehan bill and send it to 

the Senate today.” 

145 CONG. REC. H8190 (Sept. 14, 1999). 

Statement of Rep. BONIOR: 

“Mr. Speaker, every 2 years America’s airwaves are 

flooded with political attack ads. These negative ads 

leave voters feeling cynical, disenchanted, and with 

little faith in politicians or in the political process. 
36a 

These attack ads are also the main reason why we 

spend so much time fund-raising, defending ourselves 

against vicious 30-second spots, often now funded by 

outside groups, and have become more and more costly 

every single year and every single election. Free TV time 

for credible candidates could drastically lower the cost of 

campaigns and eliminate the need for excessive fundraising. 

The broadcasters and the radio folks and the TV folks 

and the cable folks, they do not own those airwaves. They 

belong to the American people, not the media corporations.” 

144 CONG. REC. H3726 (May 21, 1998). 

Statement of Rep. BONIOR: 

“Although some have proposed spending even more on 

campaigns on this side of the aisle, the American people 

think just the opposite. Nine out of ten believe too much 

money is being spent on political campaigns today. So we 

need to fix the system, to get the money down, to set 

limits, to stop negative advertising, and to get Americans voting again.” 

143 CONG. REC. H3111 (May 21, 1997). 

Statement of Rep. BARRETT: 

“I think that the Shays-Meehan proposal takes away 

some of the cynicism that is out there because it lets 

people understand that we do not want unregulated soft 

money coming into this system. We do not want drive-by 
37a 

shootings that are basically what some of these 30-

second commercials are. What we want is we want 

integrity in the system. And I think that this is a very 

serious and a very meritorious attempt to bring some 

integrity back to the system.” 

144 CONG. REC. H4796 (June 18, 1998). 

Statement of Rep. ESHOO: 

“We should be having a real debate on real reform, the 

Shays-Meehan bill. It bans the unregulated, unlimited 

donations to political parties known as soft money; it 

establishes exacting disclosure requirements; and it limits 

the fund-raising of independent groups who run 

those infamous TV attack ads.” 

144 CONG. REC. H1735 (Mar. 30, 1998). 

Statement of Rep. ROUKEMA: 

“They look at the way this system works – the explosion of soft money, fat cats buying access. White House 

coffees, the Vice-President dialing for dollars, foreign 

contributions. Members and Senators spending every 

waking moment raising cash, attack ad upon attack ad 

piled on top of attack ad.” 

145 CONG. REC. H8196 (Sept. 14, 1999). 
38a 

Statement of Rep. WU: 

“The Shays-Meehan bill does this: It bans soft money 

raised by national parties and by candidates for Federal 

office. It ends issue ads, which are really attack ads 

under the guise of ‘issues.’ And, it clarifies what election 

activities non-profits can do on behalf of our candidates for 

Federal office.” 

148 CONG. REC. H354 (Feb. 13, 2002). 

Statement of Rep. ISRAEL: 

“When we stop the special interests, when people have 

as much of a voice in this House as the special interests do 

by flooding our airwaves with unregulated soft money, 

negative attack ads, that is when people will be put first. 

When people, regular people, working people have as 

much influence in this House as the special interests who 

flood campaign treasuries with unregulated soft money 

special interests contributions, that is when we will put 

people first. Maybe that is when we will get a prescription 

drug benefit.” 

148 CONG. REC. H271 (Feb. 12, 2002). 
39a 

Statement of Rep. EDWARDS: 

“Free speech is a fundamental right, but in a democracy, the strength of a citizen’s voice should depend upon 

the quality of one’s ideas, not the quantity of one’s bank 

account. 

Let us unite once again in defense of our democracy. 

Let us affirm the great American ideal that this should 

truly be the people’s House, where the voice of every citizen 

is heard, not just a privileged few.” 

148 CONG. REC. H374 (Feb. 13, 2002). 
40a 

II. 	CONGRESSIONAL STATEMENTS CONCERNING PRESERVING CANDIDATES’ 

CONTROL OVER CAMPAIGNS 

A. SENATE STATEMENTS 

Statement of Sen. BOXER: 

“We need to ensure that these issue ads become a 

thing of the past. What a phony deal that is. That is as 

much an ad as the ad I put on for myself. How is this for 

an issue ad? ‘Senator X has just cast a vote against a 

particular bill. It is a disaster for our country. Call Senator 

X and tell her she is wrong.’ That is an issue ad? No. That 

is a personal attack. 

’Senator Y has supported a bill that is going to hurt 

our country’s economy. Call Senator Y. Here are the three 

reasons he is wrong on that,’ and you mention the Senator’s name over and over. By the way, you can even show 

the Senator’s face. 

That is not an issue ad. That is a direct attack ad. Was 

it done against my opponent? Yes, it was. Was it done 

against me? Yes, it was. It is uncontrolled. It brings in 

other issues that the two candidates themselves do 

not even want to talk about. It unbalances the whole 

debate in the campaign. It has to be a thing of the past.” 

145 CONG. REC. S12,608-09 (Oct. 14, 1999). 

Statement of Sen. BOXER: 

“This isn’t just a hypothetical: In my own state, outside special interest groups regularly spend millions of 

dollars attacking California congressional candidates, 
41a 

often leaving those candidates mere spectators in 

their own election campaigns. 

The amendment prohibits corporations and unions 

from buying these stealth attack ads, and anyone else – 

individuals and nonprofit organizations – has to disclose 

what they are doing.” 

144 CONG. REC. S10,169 (Sept. 10, 1998). 

Statement of Sen. DASCHLE: 

“Negative ads from anonymous sources push candidates to the margins. Candidates become bit players in 

their own races. How many times have I heard candidates actually say, ‘I couldn’t keep track of who was on my 

side. I’d watch television and I’d hear my name used pro 

and con, and I didn’t have anything to do with those ads. I 

am sitting like a man at a tennis match, watching both 

sides play it out.’ And the debate now is defined by who 

has the most money; that is how it is defined.” 

144 CONG. REC. S868 (Feb. 24, 1998). 

Statement of Sen. LIEBERMAN: 

“We run the risk here, Mr. President, of the candidates becoming bit players in a contest that occurs at a 

higher level between dueling interest groups spending 

millions of dollars running issue ads with soft money.” 

143 CONG. REC. S10,141 (Sept. 29, 1997). 
42a 

Statement of Sen. GLENN: 

“The legislation that we have had before us over the 

past few days takes key steps to correct the two worst 

problems, the proliferation of huge amounts of soft money 

and the explosion of calculated issue advertising which 

exists outside the reach of existing laws simply because it 

avoids a key term such as ‘vote for’ or ‘defeat.’ But the 

proliferation of issue advocacy candidates are 

becoming footnotes in their own campaigns struggling 

to conduct substantive debates on issues of local importance against the din of millions of dollars of issue advertising by national interest groups.” 

144 CONG. REC. S1047 (Feb. 26, 1998). 

Statement of Sen. MURRAY: 

“It reaches the point where you almost cannot hear 

the voices of the candidates or the people anymore, only 

the voices of the dueling special interests. We do not know 

who pays for these ads, where they get their money, or 

what they stand to gain if their candidate wins. Yet they 

have found ways to have a huge influence over the election 

process.” 

144 CONG. REC. S10,167 (Sept. 10, 1998). 
43a 

B. HOUSE STATEMENTS 

Statement of Rep. WAMP: 

“The two things we should focus on is banning soft 

money, which any thinking person is for, it is way out of 

hand; and, secondly, trying to hold accountable these 

outside groups that come in in the last few days of a campaign and assassinate people with unlimited, unregulated, 

now huge sums of money dumped from nowhere in campaigns. Pretty soon we as candidates will not even be 

able to control the message in our own campaigns.” 

144 CONG. REC. H4787 (June 18, 1998). 

Statement of Rep. MALONEY: 

“I think that all of us have been attacked by these socalled independent groups in our campaigns. What is very 

troubling, in many cases I believe these independent 

groups are spending more money than the candidates themselves. But I am all for free speech. We all 

support free speech. Just let the American public know 

who is paying for it. Is that too much to ask? But the real 

point is that we have before us a very carefully crafted bill 

that has what I call the fragile flower of consensus. We 

have a majority of Members in this Congress that support 

Shays-Meehan. We can pass it and enact it into law. We 

can consider other important amendments in the commission bill. That is what we should be doing tonight.” 

144 CONG. REC. H6801 (July 30, 1998). 
44a 

Statement of Rep. CAPPS: 

“I want to even become more personal with my own 

experience. In a hard-fought race in the 22nd District of 

California, my opponent and I both faced this new phenomenon in our current campaign situation. I am speaking now about $300,000 ads that were used to support me. 

And I opposed those ads because they were issue ads that 

did direct voters to vote for me but did not do so under 

current laws, which, in the right way, regulate the way 

campaigns should be run. 

In other words, they did so under this giant loophole 

which we have allowed and these laws, these issues and 

the people behind them which are not disclosed, the 

amount of money that they can contribute is not limited, 

the source of their funds are not disclosed, and these ads 

are not accountable. They directly influence the way 

campaigns are handled. 

It even became common knowledge in my race in the 

special election in California in March that eventually 

these issue people said, candidates themselves will be 

incidental in congressional races, that they are looking 

for these people who espouse particular issues, particular 

ideas about issues, who want to have a platform and they 

see the congressional campaign as a very good platform on 

which to run their issues.” 

144 CONG. REC. H4870 (June 19, 1998). 

Statement of Rep. BORSKI: 

“During the 1996 elections, the television and radio 

airwaves were flooded with these sham issue ads – many of 
45a 

which were negative attack ads. Americans who see or here 

[sic] these ads have no idea who pays for them because no 

disclosure is required. They drown out the voice of the 

average American citizen, and even sometimes of the 

candidates themselves. Without reform, we can certain 

[sic] expect a huge increase in these sham issue ads.” 

145 CONG. REC. E1888 (Sept. 15, 1999). 
46a 

III. 	 CONGRESSIONAL STATEMENTS CONCERNING OPPOSITION TO TITLE II 

Statement of Sen. DEWINE: 

“Our amendment is very simple. It is a motion to 

strike title II, the Wellstone-Snowe-Jeffords provision from 

the underlying McCain-Feingold bill. 

Mr. President, this amendment is necessary because 

title II draws an arbitrary and capricious and unconstitutional line – a line that abridges the first amendment 

rights of U.S. citizens. Under title II, citizens groups – and 

I emphasize that this is currently in the bill and unless 

our amendment is adopted, it will stay in the bill – American citizens would be prohibited from discussing on 

television or radio a candidate’s voting records and positions within 60 days before a general election or 30 days 

before a primary. 

That is right, Mr. President, and Members of the 

Senate. It would be illegal for citizens of this country, 

at the most crucial time, when free speech matters 

the most, when political speech matters the most – 

that is, right before an election – this Congress would 

be saying, and the ‘thought police’ would be saying, the 

‘political speech police’ would be saying that you cannot 

mention a candidate’s name; you cannot criticize that 

candidate by name. 

It silences the voices of the people. It silences them at a 

time when it is most important for those voices to be heard. 

It restricts citizens’ ability to use the broadcast media to 

hold incumbents accountable for their voting records. 

It says essentially that the only people who have a right 

to the most effective form of political speech, the only 
47a 

people allowed to use television or radio to freely 

express an opinion or to take a stand on an issue 

when it counts, when it is within days of an election, 

are the candidates themselves and the news media. 

But under the way the bill is written now, not the 

people – just candidates and the news media. Everyone else would be silenced by this unconstitutional, arbitrary line. 

Let’s suppose for a minute that title II stays in the bill 

and it becomes law. Under this scenario, if you are a 

candidate running for Federal office and it is 60 days 

before the election, yes, you can go on the radio or the local 

television station and broadcast your message. If you are 

lucky enough to be Dan Rather, Tom Brokaw, or Peter 

Jennings, or the person who anchors the 6 o’clock news or 

7 o’clock news in Dayton, OH; or in Steubenville, OH; or in 

Cleveland, you can also talk about the issues and candidates, and you can talk about them together. You can talk 

about the candidate’s voting record. 

But if you don’t fall into either one of these two 

categories – if you are part of a citizens group wanting to enter the political debate and engage in meaningful discourse, using the most wide-sweeping 

medium for reaching the people which is TV, under 

this provision you cannot do that. You simply cannot 

enter the debate using television or radio as a mode 

of communication. 

Title II of this bill makes that illegal. So if you would 

go in to buy an ad and say you want to criticize where the 

ad mentions the name of a candidate who is up for election 

within that 60-day period, the local broadcaster would 
48a 

have to turn to you and say, no, he cannot accept that. It is 

illegal because the U.S. Congress has said it is illegal. 

Title II would make it illegal for citizens groups 

to take to the airwaves and even mention a political 

candidate by name. It would make it illegal to state 

something as simple as to tell the voters whether or 

not a candidate voted yes or no on an issue. It basically just throws the rights of citizens groups out of the 

political ring. It throws them right out of the ring. I believe 

that is wrong and I think it is also unconstitutional. 

It represents a direct violation of the people’s right to 

free political speech, the right guaranteed to us by the first 

amendment of the Bill of Rights in the Constitution of the 

United States of America. 

The language in this bill picks the time when 

political speech is the most important and restricts 

who can use that political speech, and who can 

engage in that political speech.” 

147 CONG. REC. S3024 (Mar. 28, 2001). 

Statement of Sen. SANTORUM: 

“Assuming this is all held to be constitutional – and I 

agree with my colleague from Kentucky, I have grave 

doubts whether that will be the case, but assuming it will 

all be held constitutional, this will do several things. 

No. 1, I got to the Senate and the House of Representatives as a challenger. I came out of nowhere in almost 

both those situations. I did it the hard way. I had support 
49a 

basically from only one special interest group: the Republican Party. That was it. 

In my first race for Congress, I was outspent 3 1/2 to 

1. I think I got $10,000 in PAC contributions. I was a 

nobody. I was a guy who was knocking on doors. The 

Republican Party said: We will help him a little bit; we 

will get the folks organized to help out. And they gave me 

a little money. Guys like me are going to have a lot harder 

time getting to the Senate or the House of Representatives. None of the special interest groups was fighting for 

me because they did not think I had a chance. They are 

going to be the ones to hold the power now. 

Political parties are not going to have the resources to 

support challengers. I heard this comment among my 

colleagues over and over – it is this frustration level, and I 

do not mean to point fingers and I will not, but I hear this 

frustrating comment from my colleagues who support this bill: I am sick and tired of all these people 

playing around in my election. I am tired of all these 

outside groups running ads in my election. 

Well, excuse me. Excuse me. Gee, I did not realize 

when I ran for office that this was my election. You 

see, I thought this was an election for the Senate or, 

before that, for the Congress. I certainly did not 

believe I had ownership of this election. But I will tell 

you, in private meetings, over and over I hear this comment: I am sick and tired of all these people, all these 

speeches – speeches meaning ads – all these folks attacking 

me in my election; I want control back over my election. 

‘My election.’ If you do not think this is an incumbent protection plan, I guarantee you have not 
50a 

been listening. This is all about protecting incumbents. Do my colleagues think we are going to pass 

something which helps folks who run against us? 

How many folks are going to say: I like being here, but I 

want to give the guy who takes me on a better shot at me? I 

can guarantee if my colleagues read this bill, there is no 

way they can see that. 

All you bothersome people out there in America 

who believe you have some right to participate in my 

election, it keeps you at home. You just stay home. Leave 

me alone 60 days before my election so I can do what I 

want to do and tell the people what I want to tell them. 

That is the first thing this does – it shuts you up 

because – you know what? – you are an annoyance. You 

guys go out there and say things I do not like, I do 

not agree with, and it may not be true, so we are just 

going to shut you up. That is the first thing this bill 

does.” 

148 CONG. REC. S2132-33 (Mar. 20, 2002). 

Statement of Rep. DELAY: 

“This bill does not contain real reform. Instead, this 

bill strips citizens of their political rights and 

unconstitutionally attempts to regulate political speech. 

The primary protection of our first amendment is the 

right of average citizens to get together and to freely and 

fully criticize their government. Political speech is the key 

to political freedom, and Shays-Meehan would radically 

weaken our first amendment right by inappropriately and 
51a 

unwisely constraining the right to political speech. ShaysMeehan denies Americans, denies American citizens their 

fundamental right to criticize politicians for 2 months 

before the election. 

Now, we all know that the last days before an 

election are a very crucial period of political dialogue. That is when voters are really paying attention, and that is the precise reason that this 

incumbent protection scheme that is in the bill will 

suppress political speech 60 days before Election 

Day. Shays-Meehan strengthens incumbents and 

makes it far harder for their constituents to hold 

them accountable. 

This is a sham. It shuts down the system, Mr. 

Chairman. It shuts down political speech. It shuts 

down the opportunity to participate in elections. In a 

country the size of the United States, an individual 

citizen has very little chance of joining the political 

debate without banding together with others, so by 

blocking citizens’ groups from participating in days 

leading up to an election, Shays-Meehan removes a 

very vital tool that citizens can use to hold elected 

officials accountable. 

This is Swiss cheese. It is full of holes. It does not do 

what the authors want. It is like a fine wine that does not 

get better with age, it just rots.” 

148 CONG. REC. H342 (Feb. 13, 2002) 
52a 

IV. CONGRESSIONAL STATEMENTS CONCERNING THE NEED TO RESTRICT 

NRA’S SPEECH 

Statement of Rep. PICKERING: 

“Let me use the words of those who advocate this 

reform to tell what this legislation is all about. They are 

very clear about their purposes. 

Scott Harshberger, the president of the Washington 

D.C.-based Common Cause, says, ‘We need to make the 

connection with every person who cares about gun control 

that there is a need for campaign finance reform 

because that is how you are going to break their 

power.’ 

He goes on to say, ‘The equation,’ he says, ‘is a simple 

one. A vote for campaign finance reform is a vote 

against the second amendment gun lobby.’ It says, 

‘This is one of those times when there is a very direct 

connection.’ They say, ‘A vote for campaign finance reform 

is a vote for policies about guns.’ 

It is very clear that their intent here is to gut and to 

defeat those who want to advocate and defend the second 

amendment. A vote here is to take away the rights of 

those on the first amendment, the freedom of speech, 

to help defeat those who want to defend the second 

amendment. 

This is about the second amendment. The whole 

underlying text of the legislation of this section is unconstitutional. I am convinced it will be struck down. But we 

need to make sure that people know what is really going on 

right here. This is an attempt by their own words to defeat 

those who want to defend and protect the second amendment. If one stands for the second amendment, if one 
53a 

believes in the first amendment, then I urge my colleagues 

to support this amendment.” 

148 CONG. REC. H424 (Feb. 13, 2002). 

Statement of Rep. SCHAKOWSKY: 

“Americans know that special interest money unduly 

influences elections and policy. If my colleagues care 

about gun control, then campaign finance reform is 

their issue so that the NRA does not call all the 

shots. If health care is my colleagues’ issue, campaign 

finance reform is for them so they can be heard over the 

HMOs and insurance companies. 

Ordinary people are wondering what the heck we are 

doing here. I urge the Speaker and my colleagues to do 

something to debate campaign finance reform now. Let us 

do it next week and get this bill on the floor to debate it.” 

145 CONG. REC. H3174 (May 14, 1999). 

Statement of Rep. MEEHAN: 

“Madam Speaker, there is no doubt about it, money 

talks on Capitol Hill. And for the Republican leadership, 

no money talks louder than gun money. 

The National Rifle Association has been the largest 

political donor to Members of Congress throughout the 

decade. In fact, the NRA soft money contributions to the 

Republican Party grew exponentially when the Republicans took over the House in 1994. 
54a 

So it should come as a surprise to absolutely no one 

that the Republican leadership turned to the NRA to write 

their so-called ‘gun Control’ legislation, a proposal that is 

rife with loopholes. 

The truth of the matter is that big money talks louder 

than kids’ lives on Capitol Hill. Enormous soft money 

contributions have blinded the Republican leadership to 

13 children who die every day in America in gun-related 

violence. 

Let us stop the madness. Let us start saving our 

children’s lives by passing real gun control legislation, and 

let us pass campaign finance reform to cut the ties between 

gun money and Congress once and for all.” 

145 CONG. REC. H4029 (June 10, 1999). 

Statement of Rep. MEEHAN: 

“Mr. Chairman, this has been a long evening. But 

then again, this has been a long wait. I have been in the 

Congress now for 6 years trying to find some way to get 

campaign finance reform passed. And I remember when I 

first got here, sort of a brash young freshman legislator 

and I got together with another member from Oklahoma. 

He is a great Member, had a lot of experience, Mike Synar. 

Mike had a lot of courage and he was smart. And he 

sat down with me and he said, ‘If you want to work on 

campaign finance reform, boy, let me give you some tips. 

The first thing you have to do is you have to work with 

Republicans. Because if we, as Democrats,’ and we were 

the majority party then, ‘if we, as Democrats, propose our 

bill, it is not going to have credibility. We have got to get 
55a 

Republicans on board. So the first thing you need to do is 

find a group of Republicans who are interested in truly 

passing campaign finance reform.’ 

And that is what we did. Every year that I have 

fought for campaign finance reform, I have worked with 

Republicans so that we could level the playing field 

equally among Democrats and Republicans. 

The other thing that Mike Synar said was, ‘You know 

what? My experience is that independent expenditures are 

the thing that are going to kill American politics because 

congressional elections are not going to be about the 

people who live back home anymore.’ 

Mike Synar knew something about independent 

expenditures, because the National Rifle Association 

and other groups spent millions over the years trying 

to defeat him. So he said, ‘Whenever you come up with a 

bipartisan bill, you got to make sure that you deal with 

independent expenditures.’ ” 

144 CONG. REC. H4821-22 (June 18, 1998). 

Statement of Rep. SHAYS: 

“For example, the NRA, the National Rifle Association, may campaign against someone, never bringing up the issue that they really oppose them on, that 

person supported the assault weapon ban, and making it 

sound like that candidate is bad for other reasons. 

We want the NRA to just be up front and say it is their ad, 

and we want them to have to abide by all the rules that 

anyone else has to disclose where they get their money, 
56a 

and raise their money under the requirements of the 

campaign law. 

You will have pro-choice groups and pro-life groups 

that want to do the same thing. And you have pro-assault 

weapon ban groups as well as the NRA that opposes the 

assault weapon ban. So it is going to apply to everyone, 

and it should.” 

144 CONG. REC. H4044 (June 3, 1998). 

Statement of Sen. FRIST: 

“The fundamental problem we talked about all last 

week, money in politics – is it corrupt, is it bad, is it evil? I 

say no, that is not the problem. I come back to what the 

problem is – the candidate, the challenger, the incumbent 

does not have the voice they had historically. 

Let me show three charts. They will be basically the 

same format. It is pretty simple. There are seven funnels 

that money, resources, can be channeled through in 

campaign financing. I label the chart ‘Who Spends the 

Money?’ I will have these seven funnels on the next three 

charts. 

First, I have Joe Smith, the individual candidate who 

is out there campaigning. I said his, or her, voice over time 

has been diminished. Why? Because you have all of these 

other funnels – the issue groups: We talked about the 

Sierra Club, the NRA, the hundreds of issue groups 

that are out there right now spending and overwhelming the voice of the individual candidate.” 

147 CONG. REC. S2931 (Mar. 27, 2001). 
57a 

Statement of Sen. REID: 

“I repeat, Mr. President, what I have said on this floor 

before. My friend and colleague, the other Senator from 

the State of Nevada, and I were involved in a bitterly 

contested race in 1998, a race in which we both spent 

about 4 million of hard dollars, campaign dollars. We 

spent $8 million between us. Then our State parties spent 

another $6 million each, or $12 million between them, on 

issue ads. That is $20 million total. These State party 

issue ads were all negative against my opponent and all 

negative against me. I do not think they did anything to 

better the body politic. They certainly did nothing to better 

people’s feelings about who I think were two good people 

running for office. 

That was not the end of it. Then we had independent expenditures coming in: the National Rifle 

Association, the League of Conservation Voters. They 

would have ads running against me; people who believed 

in me would have ads running against my opponent. I 

have no idea how much money these outside groups spent, 

but probably another $2 million to $3 million.” 

147 CONG. REC. S2851 (Mar. 26, 2001). 
58a 

V. CONGRESSIONAL STATEMENTS CONCERNING SEVERABILITY OF WELLSTONE 

AMENDMENT IN LIGHT OF CONSTITUTIONAL CONCERNS 

Statement of Sen. FEINGOLD: 

“I have discussed here the original Snowe-Jeffords 

provision. The Wellstone amendment, in effect, broadens 

that provision to cover ads run by corporations and 

unions. I voted against adding that amendment. I 

thought and still think that it makes SnoweJeffords more susceptible to a constitutional challenge, but it passed when many Senators who 

oppose the bill and the Snowe-Jeffords provision 

voted for it. In any event, the Wellstone amendment was 

written to be severable from the remainder of the SnoweJeffords provision. That gives even more significance 

to the vote we will have today on severability. But if 

we win that vote, Snowe-Jeffords will survive even 

if the Wellstone amendment is held to be unconstitutional.” 

147 CONG. REC. S3073 (Mar. 29, 2001). 

Statement of Sen. WELLSTONE: 

“Snowe-Jeffords forces disclosure of all ads that fall 

under this definition, but under this bill, only corporations 

and unions may not spend funds from their treasury or 

soft money for this purpose. If a corporation or union 

wishes to run electioneering communications, they must 

use a PAC with contributions regulated by Federal law to 

do so. The point is, they have to do it with hard money. The 

point is, every other group and organization, pick 

and choose – it can be the NRA, it can be the 
59a 

Christian right, it can be the Sierra Club, it can be 

other organizations on the left, other organizations on the 

right, organizations representing every other kind of 

interest imaginable – they can continue to use soft 

money and pour it into these sham ads. 

Why are we not applying this prohibition to them? 

Why are we creating this huge loophole? Do we want to 

pass a piece of legislation which is just like Jell-O? Push 

here, no, it doesn’t go do parties and now it all goes into 

the sham issue ads. 

We will not be doing right for people in the country if 

we pass a bill that does not get, really, very much big 

money out of politics but just changes the way it is spent. 

Maybe it will even be less accountable. 

Here is the exemption in this bill for certain organizations: 501(c)(4) groups and 527 groups – this exemption 

means that Sierra Club, National Rifle Association, 

Club for Growth, or Republicans for Clean Air would 

be able to run whatever ads they want using soft 

money to finance them. They would, for the first time, 

have to disclose how much they are spending, but there is 

no bar to such groups running sham ads under this bill. 

Fine. They can disclose how much they are spending. 

Three weeks before election, they pour in an unlimited 

amount of money with poison politics attacking Republicans, I say to the Chair, or Democrats, or independents. 

Why do we want to have this loophole? 

I want to see this soft money prohibition and this big 

money out. I do not want to see us have this loophole in 

this piece of legislation which may mean that we passed a 

piece of legislation that has shifted all of this big money in 
60a 

the worst possible direction. I think this is a mistake. 

Already these interest groups are spending over $100 

million on sham ads to influence our elections. Over 70 

percent of them are bitterly personally negative. 

So these groups already play a major role in our 

elections, and I predict, if we do not close this loophole now 

with this amendment, we will be back here in 2 years or 4 

years, or I hope and pray people do not – maybe it will not 

be for another 20 or 30 years – trying to do what I am 

trying to do today. The reason will be that the center of 

power – please listen to this – in Federal elections will 

move much closer to these unaccountable groups because 

they will be able to pump millions and millions of dollars 

in soft money into these sham ads. That is where this 

money is going to go. 

We will see what the other arguments on the floor are. 

I can anticipate some of them, and I will continue to make 

mine brief. But I say to the Presiding Officer, I do not 

know how many votes this amendment will get. I really do 

not know. But I will tell you this. My wife’s family are from 

Appalachia – Harlan County, and Letcher County in 

Kentucky – the Isons. They talk about poor cities. When I 

am 80 years old, I at least am going to be able to tell my 

grandchildren – I am sorry, I have grandchildren now – 

my great grandchildren, great, great, great grandchildren, 

I hope and pray – that I laid down this amendment, I tried 

to close this loophole, I tried to do something that for sure 

would get more of the big money out of politics. 

I do not know what the vote will be, but I know I am 

here, and I know I have to be a reformer, and I know I 

have to make this bill better. I have to lay down this 

marker just as I tried to do last week in an amendment 
61a 

that should have passed. I cannot believe that colleagues, 

authors of this bill, did not support it. I cannot believe that 

during the vote I had people telling me: I don’t want my 

State legislature or people in my State telling me how to 

finance my campaign – as if it were our campaign. I could 

not believe it. 

I say to the Presiding Officer, I could not believe 

Republicans, who always argue for States rights, voted 

against the proposition that every State ought to decide 

whether or not they wanted on a voluntary basis to apply 

some system of voluntary or partial public financing. Talk 

about encouraging grassroots politics. People in the 

country say: We can get at it in Arizona. They already 

have. You have clean money, clean elections. We can get at 

it in Minnesota, in Nevada. We don’t know if we can ever 

be effective in D.C. toward public financing, but we can do 

it right here, we don’t have to take expensive air trips to 

D.C. And it is defeated. Now I am trying to plug this 

loophole, and tomorrow or the next day we are heading 

towards raising spending limits. 

Let me be clear, this amendment does not say any 

special interest group cannot run an ad. A lot of interests 

are special. That is fine. They are special to the people 

they represent, and sometimes they are special to the 

public interest, depending on your point of view. It only 

says these groups and organizations need to comply with 

the same rules as unions and corporations. Groups covered 

by my amendment can set up PACs, they can solicit 

contributions, and they can run all the ads they want. All 

this amendment says is they cannot use their regular 

treasury money. They can’t use the soft money contributions to run these ads. 
62a 

This is an amendment about fairness. It is an 

amendment about leveling the playing field. 

I know some of my colleagues may come to the floor 

and oppose this amendment because, while they believe as 

a matter of policy this amendment is the right thing to do, 

they fear the Court may find that covering these special 

interest groups under the Snowe-Jeffords electioneering 

communication provision is unconstitutional. And, in all 

honesty, this is probably a question upon which reasonable 

reformers can disagree. But it is a debate worth having. I 

think this provision can withstand constitutional scrutiny, 

but it is probably not a slam-dunk. 

Still, in a moment I want to talk about why I think the 

courts will uphold this amendment. But before I do – this 

has to be in the summary of this amendment tomorrow, 

before people vote – I want to make one important point. 

I have drafted this amendment to be fully severable. 

I have drafted this amendment to be fully severable. In 

other words, no one can suggest that even if the courts 

find this amendment unconstitutional, it would drag 

down the rest of this bill or even jeopardize the other 

provisions of Snowe-Jeffords. 

This creates a totally new section under title II of this 

bill. Under the worst case scenario, if the Supreme Court 

rules that groups covered by my amendment cannot 

be constitutionally barred from using treasury funds 

for these sham issue ads, then the rest of the legislation will be completely unaffected. The rest of the 

legislation will be completely unaffected. And we are going 

to have a debate on severability anyway.” 

147 CONG. REC. S2847 (Mar. 26, 2001). 
63a 

Statement of Sen. EDWARDS: 

“What has been done with Snowe-Jeffords is a very 

careful effort to make sure the constitutional requirements 

of Buckley v. Valeo have been met. In fact, they have been 

met. It is not vague; it establishes a very clear bright-line 

test so we don’t have a vagueness constitutional problem. 

We also don’t have a problem of substantial overbreadth 

because all of the empirical evidence shows 99 percent of 

ads that meet the test are, in fact, election campaign ads 

and constitute electioneering. 

Snowe-Jeffords has been very carefully crafted. It is 

narrow. It specifically meets the requirements of Buckley 

v. Valeo, the constitutional requirement. 

The problem with what Senator Wellstone is attempting to do is there is a U.S. Supreme Court case, the FEC v. 

The Massachusetts Citizens for Life, that is directly on 

point, saying that these 501(c)(4)s have a limited constitutional right to engage in electioneering to do campaign 

ads. There are some limits, but unfortunately if you lump 

them in with unions and for-profit corporations, you create 

a very serious constitutional problem because the U.S. 

Supreme Court has already specifically addressed that 

issue. 

So the reason Senator Feingold and Senator 

McCain are opposing this amendment is the same 

reason that I oppose this amendment: It raises very 

serious constitutional problems. The U.S. Supreme 

Court, in fact, in 1984 specifically ruled on this question. 

What we urge the Members of the Senate to do is not 

support this amendment, to vote for tabling. Those people 

who are in favor of real and meaningful campaign finance 
64a 

reform we hope will support Snowe-Jeffords, support 

McCain-Feingold, and vote to table the Wellstone amendment.” 

147 CONG. REC. S2883 (Mar. 26, 2001). 

Statement of Sen. SCHUMER: 

“I will close by reemphasizing what the Senators from 

Arizona and Wisconsin have so often and eloquently said 

in the course of this debate. I plead with my colleagues, we 

cannot let the perfect be the enemy of the good. On this 

side of the aisle, I say to my colleagues, even if you are 

unhappy with the delicate balance of 501(c)(4) organizations, even if you realize they may not be limited once 

the courts get hold of this, don’ t throw out the baby 

with the bath water. The good in this bill is more than 

just good, it is great. It is a landmark achievement, the 

first serious reform in a generation. And we should strive 

to preserve it, not kick the can across the street to the 

Supreme Court.” 

147 CONG. REC. S3103 (Mar. 29, 2001). 
65a 

VI. 	 CONGRESSIONAL STATEMENTS CONCERNING THE DESIGN OF WELLSTONE 

AMENDMENT TO CURB INDIVIDUAL EXPENDITURES 

Statement of Sen. WELLSTONE: 

“I am going to say it one more time. I don’t know 

whether this amendment will pass. I do not know whether 

it will get one vote. But I tell you this: I am going to be 

able to say later on that I at least tried to get this reform 

amendment passed. This is a huge loophole. In the ShaysMeehan bill, they plugged the loophole. In the original 

Feingold bill, they plugged the loophole. 

I will say it again. How can you say to corporations 

and to labor that they can’t run these sham issue ads in 

the 60-day period before elections and the 30-day period 

before primaries but at the same time not apply that 

prohibition to every other group and organization, whatever cause they represent? 

And, No. 2, don’t you realize that what everybody is 

going to do is set up another one of these groups and 

organizations? Then you will have a proliferation of 

influence groups and organizations. And individuals 

with all of this wealth and organizations that want to 

make these huge soft money contributions will make 

their soft money contributions to these sham issue 

ads run by all of these groups and organizations, 

which under this loophole can operate with impunity. 

We are going to take soft money out of parties and we 

are going to put it into the sham issue ads. Frankly, I don’t 

want my colleague from Kentucky to count me as an ally. 

If I am going to be the subject of these kinds of poisonous 

ads, I would rather point my finger at the Republicans. Or 
66a 

if I were a Republican, I would rather point my finger at 

the Democrats. Or I would rather point my finger at the 

opposing candidates. I wouldn’t want to be put in a position of not knowing exactly who these different groups and 

organizations were with all of this soft money pouring into 

these poisonous ads in the last 3 weeks before the election. 

That is the loophole that we have. 

I am not telling you that some of these groups and 

organizations, right, left, and center, are going to necessarily like this. But I am telling you, if you want to be consistent, that we have to support this amendment. If we don’t 

want a huge loophole that is going to create maybe just as 

much soft money in politics as now, you have to support 

this amendment.” 

147 CONG. REC. S2848 (Mar. 26, 2001). 

Statement of Sen. WELLSTONE: 

“Mr. President, this is a book. I don’t agree with all of 

its analyses. It has a catchy title and was written by Jim 

Hightower. The title is, ‘If The Gods Had Meant Us To 

Vote, They’d Have Given Us Candidates.’ 

The reason I mention this book is there is this one 

graphic that is interesting: The percentage of the American 

people who donate money to national political candidates. 

Ninety-six percent of the American people donate zero 

dollars. The percentage who donate up to $200 is 4 percent. 

The percentage who donate $200 to $1,000 is .09 percent. 

And the percentage who donate $1,000 to $10,000 is .05 

percent. The percentage who donate from $10,000 to 

$100,000 – and he points out in his book that you need a 

magnifying glass for this one – is .002 percent. 
67a 

The percentage who donated $100,000 or more – you 

need a Hubble telescope, he says, for this one – is .0001 

percent. 

I use this graph from my friend Jim Hightower’s book 

for two reasons. First of all, I have an amendment that 

tries to make sure a lot of this big money doesn’ t get 

– it is like Jell-O, you push it here, it shifts. It shifts from 

the party into the sham issue ads, not to the corporation, 

not to labor, but to every other group and organization. 

There will be a proliferation of it. This amendment plugs 

that loophole. 

The Shays-Meehan bill basically has the same approach. This was originally part of the Feingold-McCain 

bill. I made it clear this provision is 100-percent severable. 

This is a separate provision. In any case, we will have a 

debate on severability. I have made it clear it is hard to 

make the argument that when a majority vote, you can’t 

make the argument that to vote for this reform would 

bring the bill down. 

I think we voted for other reforms that have a better 

chance of bringing down the bill. But it doesn’t make 

sense. You say the majority voted for this amendment; now 

they are going to vote against the bill that has this 

amendment. 

The other point I want to make is with this graph, 

what we are doing here is voting down reform amendments, such as the amendment last week that would have 

allowed States to light a candle and move forward with 

some voluntary system of partial or public financing, or 

maybe vote down this amendment, which would be a 

terrible mistake. 
68a 

We are going to revisit this. This is going to be the 

loophole, I promise you. Let’s do the job now, while we can. 

At the same time, they want to raise the hard money 

limits. Now we are supposed to feel better that we have 

gotten rid of a lot of soft money. That is what is significant 

about this effort by Senators McCain and Feingold. That is 

a significance that cannot be denied. But the problem is, it 

may shift to the sham issue ad. The other problem is, since 

80 percent of the money spent in 2000 was hard money, 

PAC money included, you are going to raise the hard 

money limits. 

It is crystal clear what people are talking about with 

one another. Why are we going to do that? Why are we 

going to bring yet more big money into politics and 

make people running for office more dependent on 

the top 1 percent of the population? How did that get 

to be a reform? And then I hear Senators say, well, the 

point is, if you go from 1 to 3 or 2 to 6, we will have to 

spend only one-third of the time. 

Permit me to be skeptical. Everybody will be involved 

in this obscene money chase. They will be just chasing 

$3,000 contributions and $6,000 contributions. Somehow, 

people in Minnesota are going to be more reassured that 

we are putting more emphasis on the people who can 

afford to make $3,000 or $6,000, or maybe it will go from 1 

to 2, or 2 to 4, and we are doing something that gives 

people more confidence in a political process that is more 

dependent upon the people who have the big bucks.” 

147 CONG. REC. S2850 (Mar. 26, 2001).