00001]; Bowler Rebuttal Decl. 43-4 [3 PCS/CDP/CRP at 00085], and the California Republican Party
has demonstrated its ability to broaden significantly its hard money fundraising base when circumstances
warrant, see D. Green Expert Rep. at 34.

Moreover, the plaintiffs’ dire predictions fail to account for the fact that “much of the soft money
that formerly flowed through the national parties to the states in the form of nonfederal transfers will instead
go to the states in the form of Levin contributions.” D. Green Rebuttal Expert Rep. at 6. As Professor
LaRaja reports, “[m]ost groups that made non-federal donations” to the political parties gave small amounts
(median $375), La Raja Expert Rep. at 44, funds that under the new regime could be donated to state and
local party committees as Levin funds, see D. Green Rebuttal Expert Rep. at 6. In addition, BCRA
doubles the hard money contribution limits applicable to contributions to state party committees, and
imposes no restrictions whatsoever upon the state parties’ ability to raise and spend soft money for uses
other than federal election activity. And the national party committees remain free to transfer funds to assist
the state and local parties; the only restriction is that the national party committees’ funds will have been
raised in accordance with the reporting requirements, funding source restrictions, and increased contribution

limitations of FECA, as modified by BCRA.**

‘5 Professor Green discusses the testimony of Ryan M. Erwin, chief operating officer of the California
Republican Party, and notes that “the number of California Republican Party donors giving the maximum allowable hard
money contribution of $5000 rose dramatically between the 1997-98 and 1999-2000 election cycles. Whereas the amount
raised in $5000 amounts was $290,000 in 1995-1996 and $140,000 in 1997-1998, by 1999-2000 this figure had skyrocketed
to $3,030,000. This surge in maximum federal contributions was due, according to Mr. Erwin, to the increased effort that
the party expended in gamering this type of donation.” See D. Green Expert Rep. at 34 (citations omitted) (quoting Erwin
Dep. Tr. (Sept. 10, 2002) at 129-30); see Erwin Decl. Attachment A, Ex. 7, Chart 4 [3 PCS(CDP/CRP) at 00382] (chart
showing growth in number of $5,000 donors to CRP).

“© The lower court cases cited by the RNC in support of its contention that it will be unable to amass resources
for effective advocacy are inapposite. Both cases were decided before the Supreme Court clarified in Shrink Missouri,
528 U.S, at 396-97, that there is no particular amount that is “a constitutional minimum” for contribution limits. Both cases
also concerned limits on direct contributions to local candidates much lower than those in BCRA, and cited specific
evidence concerning the costs of effective local campaigns. See Cal. Prolife Council PAC v. Scully, 989 F. Supp. 1282,
1297 (E.D. Cal. 1998), aff'd, 164 F.3d 1189 (9th Cir. 1999); Nat’l Black Police Ass’n v. D.C. Bd. of Elections & Ethics, 924
F, Supp. 270, 274 (D.D.C. 1996), vacated as moot, 108 F.3d 346 (D.C. Cir. 1997). Such issues and evidence are not
presented here. BCRA doubles the federal individual contribution limits. While the statute also bans soft money

42


The FEC’s definition of an MCFL corporation is derived directly from the Supreme Court’s

decisions in MCFL and Austin. Although there may be considerable disagreement about whether exempt

nonprofit corporations should be permitted to accept de minimis contributions from business corporations,
see FEC v. NRA, 254 F.3d at 191-92, the MCFL exemption is not available to all “advocacy organiza-
tions that fund their speech with individual dues and contributions,” NRA Br. Br. at 18, as the NRA asserts.
As this Circuit has explained, even if an organization like the NRA “appears to be a voluntary political
association akin to the MCFL,” and even if such an organization has a “core political mission,” the Su-
preme court would “never... exempt[]” it from regulation ifit accepts “substantial corporate contributions
that it could... use[] for campaign purposes.” 254 F.3d at 191. This critical inquiry focuses on “whether
[corporate] contributions could . . turn{] the NRA into a potential conduit for corporate funding of political
activity.” Id. at 192. Because this inquiry is the same whether the corporate contributions are eventually
used to pay for independent expenditures or for electioneering communications, this criterion for the MCFL
exemption applies with equal force to both kinds of campaign spending. Thus, in accordance with MCFL
and Austin, Congress can require corporations like the NRA to finance their electioneering communications
through a separate segregated fund, and that requirement does not make BCRA’s regulation of electioneer-
ing communications unconstitutional.

G. BCRA’S Disclosure Requirements Are Constitutional.

Plaintiffs present three challenges to BCRA’s disclosure requirements. First, plaintiffs challenge

BCRA § 201’s disclosure requirements for electioneering communications on the same grounds that they

into an explanation of why NRA does not qualify for the MCFL exemption,

FEC v. NRA, 254 F.3d 173, 192 (D.C. Cir. 2001). Thus, the NRA is barred
by collateral estoppel from re-litigating this Circuit’s decision in FEC v. NRA that it was not entitled to the MCFL
exemption.

106


The FEC adopted a similar narrowing interpretation of the term “voter identification,” limiting itto
costs of “creating or enhancing voter lists by verifying or adding information about the voters’ likelihood
of voting or likelihood of voting for specific candidates.” 11 C.F.R. 100.24(a)(4). Voter identification, as
asubset of “Federal election activity,” is limited to “those times when a candidate for Federal office appears
on the ballot.” 11 C.F.R. 100.24(b)(2).*

Plaintiffs, however, ask the Court to disregard the construction and interpretation of BCRA
reflected in the FEC’s regulations because those regulations have been challenged, in part, in a separate
legal proceeding by two of the intervening defendants. See CDP/CRP Br. at 17n.16 (citing Shays v. FEC,
No. 02-CV-1984 (CKK) (D.D.C. filed Oct. 8, 2002)). But the regulations, unless or until overturned,
are the law and foreclose plaintiffs’ attempt to have the Court review the facial validity of BCRA as ifthe
statute were construed or applied more broadly than reflected in the FEC’s regulations. See Broadrick
vy. Oklahoma, 413 U.S. 601, 617-18 (1973) (‘a court cannot be expected to ignore” construction of

statute by implementing authority); Pinnock, 844 F. Supp. at 581. Indeed, “‘it is acardinal principle of

statutory interpretation” that acts of Congress should be construed to avoid constitutional questions ifit is
“fairly possible” to do so. Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (citations and internal quotation

marks omitted); see also Broadrick, 413 U.S. at 613 (“Facial overbreadth has not been invoked when a

limiting construction has been or could be placed on the challenged statute.””); NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1,30 (1937) (“The cardinal principle of statutory construction is to save and not to
destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of

which it would be unconstitutional, and by the other valid, our plain duty is to adopt that which will save

® Similarly, the FEC recognized an exception for voter identification undertaken by groups of state or local
candidates or officeholders solely in reference to state or local candidates. The FEC included this exception because
it found it “implausible that Congress intended to federalize State and local elections activity to such an extent without
any mention of the issue during the floor debate for BCRA.” 67 Fed. Reg. 49,069-49,070.

8


Section 504 plainly serves an important governmental interest. As explained in our opening brief,
Gov’t Br. at 218, 221, the statute is narrowly targeted to ensure an informed electorate. The Supreme
Court has long recognized the importance of public disclosure in the political arena. See Buckley, 424 U.S.
at 67, 81; Gov’t Br. at 217-18. And, even outside the political arena, the courts have recognized
Congress’s broader latitude to regulate television and radio broadcast stations and cable television systems.
See Gov’t Br. at 219. Section 504 is a permissible regulation of those media, ensuring that the public can
determine the identity of the actual sponsor of political broadcasts and the amount of money spent (and
offered to be spent) on such broadcasts.

Contrary to plaintiffs’ contention, § 504 properly requires disclosure of information about
“requests” to purchase air time. See McConnell Br. at 100; AFL-CIO Br. at 18-20. The FCC’s political
file regulations have always required candidates to disclose their “requests” to purchase broadcast time.
See 47 C.F.R. 73.1943 (broadcast stations); 47 C.F.R. 76.1701 (cable television systems). The similar
disclosure mandated under § 504 provides the public with access to information concerning the amounts
that individuals and groups are prepared to spend to broadcast messages on political matters of national
importance, as well as how much they actually spend on such broadcasts. Further, requiring disclosure of
the identities of those who make requests, and the broadcasters’ disposition of those requests, enables the
public to evaluate whether broadcasters are processing requests in an even-handed fashion.'*°

Finally, the AFL-CIO erroneously suggests that Congress can only require sponsorship disclosures

in apolitical file for broadcasts that expressly advocate the election or defeat of a candidate. See AFL-

of the interpretation, id. at 632. That an administrative agency may be required to provide notice of its interpretation of
an ambiguous regulation before undertaking enforcement action casts no doubt on Congress’s authority to enact § 504
and to delegate to the FCC the responsibility of interpreting and implementing that provision.

'*° Moreover, in its preexisting regulations governing candidate broadcasts, see 47 C.F.R. 73.1943, 76.1701, the
FCC has not interpreted the term “request” to reach beyond specific proposals to purchase broadcast time at a particular
rate and for a particular class of time. The agency has not understood the term to encompass a mere telephonic inquiry
about whether the station sells advertising time.

132


For Defendants United States of America, John

Ashcroft, Attorney General of the United States,

the U.S. Department of Justice, and the Federal
Communications Commission

Douglas N. Letter

Irene M. Solet

Colette G. Matzzie

Ara B, Gershengorn

Terry M. Henry

Andrea Gacki

John Knepper

Attorneys

U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

For Defendant-Intervenors: Senator John
McCain, Senator Russell Feingold,
Representative Christopher Shays,
Representative Martin Meehan, Senator
Olympia Snowe, and Senator James Jeffords

Lynn Bregman

Eric J. Mogilnicki

Edward DuMont

Michael D. Leffel

Anja L. Manuel

Stacy E. Beck

A. Krisan Patterson

Jennifer L. Mueller

WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420

Bradley S. Phillips

Michael R. Doyen

Stuart N. Senator

Deborah N. Pearlstein

Randall G. Sommer

Shont E. Miller

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071

David J. Harth

Charles G. Curtis, Jr.

Monica P. Medina

Michelle M. Umberger

Sarah E. Reindl

HELLER EHRMAN WHITE & MCAULIFFE LLP
One East Main Street, Suite 201

Madison, WI 53703

Frederick A.O. Schwarz, Jr.
E. Joshua Rosenkranz
Prof. Burt Neuborne
Elizabeth Daniel
Laleh Ispahani
Adam H. Morse
BRENNAN CENTER FOR JUSTICE
at NYU School of Law
161 Avenue of the Americas, 12th Floor
New York, NY 10013


Ass’nv. FEC, 453 U.S. 182, 201 (1981) (holding that “differing structures and purposes” of different
entities “may require different forms of regulation in order to protect the integrity of the electoral process”).
E. The Media Exception in BCRA’s Definition of Electioneering Com-
munications Is Constitutional.
Although the NRA admits that the Supreme Court in Austin identified a compelling governmental

interest sufficient to survive strict scrutiny when it upheld the media exception in the context of FECA’s §

441b, see NRA Br. at-41, the NRA treats Austin as if it had been silently overruled because, in the NRA’s

view, the “factual predicates” for Austin “are no longer true.” NRA Br. at 42. Neither the NRA’s factual
mistakes, nor its disregard for dispositive precedent, however, can undermine the constitutionality of
BCRA’s media exception.

As we previously explained, Gov’t Br. at 167-68, the Court in Austin found that although the

“press’ unique societal role may not entitle the press to greater protection under the Constitution, . . . it does
provide a compelling reason for the State to exempt media corporations from the scope of political expen-
diture limitations.” 494 U.S. at 668 (citation omitted). “The media exception ensures that the Act does
not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy
events. Cf. H.R. Rep No. 93-1239, p. 4 (1974) (explaining . . . federal media exception, 2 USC §
431(9)(B)G@) ...).” Id.

Inresponse to this precedent, the NRA does not even attempt to argue that the media exception
has different constitutional ramifications when applied to electioneering communications as defined by

BCRA rather than to the express advocacy expenditures at issue in Austin. Instead, the NRA launches

a frontal attack on Austin itself. As part of that assault, moreover, the NRA, like other plaintiffs,

mischaracterizes what BCRA and FECA proscribe: BCRA’s regulation of electioneering communications,
like FECA’s regulation of independent expenditures, is only a financing restriction on corporations and

unions, not aban on speech. See supra at 55-58. Thus, for example, the NRA’s accusation that BCRA

102


to political parties is given with an eye toward the special favors that only a political party can deliver by
dint ofits ubiquitous role in all levels of government. No interest group can approximate the scope or
influence ofa political party; no interest group has the same presence in the lives or careers of politicians.”
D. Green Rebuttal Expert Rep. at 19.

Even ifsome interest groups do rise in prominence as a result of changes in the regulatory environ-
ment, it does not follow that such prominence will come at the expense of the parties. Political parties as
aclass are not categorically in competition with interest groups. Parties compete with each other, and
parties and interest groups are as likely to be allied with each other as to be in competition. See supra at

n.39 (discussing alliances between party committees and particular interest groups); see also D. Green

Rebuttal Expert Rep. at 18 (noting role of interest groups in pluralistic system). Moreover, as shown
above, BCRA permits political parties to raise ample funds to engage in effective advocacy, and parties
have no constitutional right to outspend their political adversaries.

Inaddition, BCRA regulates interest groups in several respects that minimize the concerns that
plaintiffs express. Under Title, interest groups, like all other entities, are precluded from making any soft
money donations to the national parties or to federal candidates, minimizing the risk that interest groups will
attempt to secure influence over federal officeholders through large, soft money donations to candidates
or their parties. The statute also precludes party committees and federal candidates (with some limited
exceptions) from soliciting funds for, or transferring funds to, certain tax-exempt organizations that engage
in federal election activity. See 2 U.S.C. 441i(d), (e). Those restrictions minimize the danger that party
committees and federal candidates will use such groups as satellite organizations that can conduct activities
on their behalf without complying with FECA’s disclosure requirements and contribution restrictions. See
Gov’t Br. at 117-19; supra at 38. Moreover, Title Il of BCRA prohibits labor unions and corporations

from using money from their general treasuries to pay for campaign-related advertisements broadcast

51


Ce ee ee

As to the submissions of the Defendant-Intervenors:

bell 0. Art

ER M. WITTEN (D.C. Bar #163261)
ETH P. WAXMAN (D.C. Bar #257337)
RANDOLPH D. MOSS (D.C. Bar #417749)
‘WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000

Counsel for Defendant-Intervenors


Supreme Court. Duchess Cty., 6 F. Supp. 2d at 253 (emphases added); see MRTL, 914 F. Supp. at
13.8 Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”), held the
FEC’s regulation unconstitutional, on the ground that, in the court’s view, the regulation shifted the focus
away from the speaker’s words themselves to the inferences drawn by the listener, giving rise to the very

uncertainty, unpredictability, and resulting chill that Buckley adopted the express advocacy construction

of FECA to avoid. VSHL, 263 F.3d at 391-92; see also MRTL, 914 F. Supp. at 11-13.°

FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1050 (4th Cir. 1997); FEC v. Central

Long Island Tax Reform Immediately Comm., 616 F.2d 45,52-53 (2d Cir. 1980); FEC v. Survival Educ.

Fund, Inc., No. 89-0347, 1994 WL 9658, *3 (S.D.N.Y. Jan. 12, 1994); and FEC v. AFSCME, 471 F.

Supp. 315, 16-17 (D.D.C. 1979), all concerned FEC enforcement actions where the courts simply held
that the various advertisements, bulletins, letters, and posters in question did not contain express advocacy,
and, therefore, did not fall within the scope of regulation under FECA as the Supreme Court had defined
it. Atbottom, then, the disputes in all these cases involving FEC regulations and enforcement actions tumed
on the meaning of the express advocacy standard itself, and had nothing to do with the authority of Con-
gress to adopt a different standard for regulation that does not give rise to the vagueness and overbreadth
concerns that Buckley identified.

Plaintiffs also cite a number of decisions where, as they see it, the courts of appeals “rejected

attempts by the state legislatures to regulate speech that did not ‘expressly advocate’ the election or defeat

*8 Similarly, in Faucher v. FEC, 928 F.2d 468 (Ist Cir. 1991), the First Circuit considered whether an FEC
regulation of voter guides “f[ell] within the scope of [FECA] section 441b(a),” id, at 471, and held that the regulation
“overstepped the regulatory boundaries imposed by the FECA as interpreted by the Supreme Court.” Id, at 472; see also
Clifton, 114 F.3d at 1311.

*® The lower court decisions that have invalidated the FEC’s regulation defining express advocacy, 11 C.F.R.
100.22(b), were mistaken. In any event, this regulation was explicitly left undisturbed by BCRA § 201 (creating new 2
U.S.C. 434(f)(3)(B)), which states “Nothing in this subparagraph shall be construed to affect the interpretation or
application of section 100.22(b) of title 11, Code of Federal Regulations.”

62


eernen

federal campaign laws” and to influence federal elections.* Similarly, although federal law has long
barred unions and corporations from using their general treasury funds to influence federal
elections, corporations and unions have spent millions of dollars of such funds over the past several
years on so-called “issue” ads, which avoid words like “vote for” or “vote against,” but are
undeniably intended to, and do, influence federal elections. Precluding evasions such as these, and
returning the law to the status quo ante, can hardly be seen as revolutionary.

Similarly, plaintiffs’ suggestion that BCRA breaks new ground by extending its soft money
provisions to state and local parties is baseless. Federal campaign laws, and Federal Election
Commission rules, have long applied to state and local parties when they engaged in activities, such
as get-out-the-vote (“GOTV”) and voter registration efforts, that influence federal elections.’ Under
prior law, state and local parties were allowed to spend a mix of soft and hard money on certain
activities that, in fact, influenced federal elections.'° Experience has demonstrated, however, that
these allocation rules invited massive evasion of federal law.'' All that BCRA does is expand and
refine the allocation rules — in some cases requiring the use of exclusively federal funds — to
ensure that the state and local parties are no longer used to “launder” soft money in aid of federal
election campaigns.

Plaintiffs also repeatedly and inaccurately assert that BCRA ‘‘bans” speech. BCRA, does no
such thing. In Title I. the Act imposes restrictions on the collection and use of soft money, but
leaves the parties free to raise hundreds of millions of dollars (or more) of hard money to engage in
whatever speech they deem fit. Similarly, in Title II, the electioneering communications rules only

* Ray La Raja, American Political Parties in the Era of Soft Money (2001) at 74-75 (unpublished Ph.D. dissertation,
University of California at Berkeley) (attached to La Raja Cross Tr. (Oct. 15, 2002) at Ex. 3) {hereinafter La Raja Cross.
Tr. Ex. 3]. Professor La Raja testified that he stands by the conclusions in his dissertation. La Raja Cross Tr. at 17-18.

° See Adv. Op. 1976-72 (requiring that 100% hard money be used for such activities); Adv. Op. 1978-10 (ruling that
state or local party voter-registration and GOTV activities could be allocated between federal and non-federal accounts
in the same manner as party administrative costs. partially superseding Adv. Op. 1976-72).

See 11 CER. § 106.5 (establishing allocation formulas for national, state and local political party committees)
See, €.g.. Gov't Br. at 30-31, 69-70. 100-02; Intervenors’ Br. at 7-12

12


Plaintiffs’ challenge to § 213 is grounded on the erroneous assumption that it “ban[s party commit-
tees] from making coordinated expenditures at all (if they choose to make independent expenditures first).””
McConnell Br. at 86-87 (emphasis in original); id. at 88. In fact, 2 U.S.C. 441a(d)(4)(A) only precludes
aparty committee choosing to make independent expenditures from also making “any coordinated expendi-
ture under this subsection.” 2 U.S.C. 441a(d)(4)(A)(i), (ii) (emphasis added). “[T]his subsection” is 2
U.S.C. 441a(d), which contains the increased coordinated expenditure limit available only to party commit-
tees. A different subsection, 2 U.S.C. 441a(a)(2), establishes a generally applicable limit of $5,000 on
contributions and coordinated expenditures by all multicandidate political committees, which includes party
committees. See Colorado I, 518 U.S. at 625 ($5,000 limit would apply to party committee’s coordinated
expenditures in absence of special higher limit in section 441 a(d)). Thus, no matter which choice parties
make under BCRA § 213, they are able at a minimum to make contributions and coordinated expenditures
up to the same $5,000 limit that applies to all other multicandidate committees. Accordingly, as explained
in our opening brief, § 213 requires no choice between constitutionally protected activities, but instead
leaves party committees in the same position as every other multicandiate political committee if they choose
to forgo taking advantage of the option of increased coordinated expenditure limits.!'? Gov’t Br. at 177-

81; see also 67 Fed. Reg. 60,042; 60,056-57; 60,066-67 (Sept. 24, 2002) (proposed regulations 11

C.F.R. 109.20, 109.30, 109.31, and 109.32(b)(4))."!8

“7 Plaintiffs’ reliance on Perry v. Sindermann, 408 U.S. 593 (1972), see McConnell Br. at 87, is misplaced. That
case involved an allegation that the government had taken away a professor’s job because of his speech. Rather than
punishing anyone for engaging in speech, § 213 gives party committees a special option available to no one else, which
they are free to accept or reject. We have shown, Gov’t Br. at 180-81, that Buckley approved a similar option for
presidential candidates to choose public funding coupled with an expenditure limit not applicable to candidates who
declined the option. See Buckley, 424 U.S. at 57.65 & 95.

‘18 Even if parties choose to make independent expenditures and, therefore, become subject to the same $5,000
contribution and coordinated expenditure limit applicable to every other multicandidate committee, national party
committees still receive more advantageous treatment with respect to Senate races. See 2 U.S.C. 441a(h) (as amended
by BCRA § 307(c)) (“[n]otwithstanding any other provision of the Act,” national party committees may contribute up
to $35,000 to a Senate candidate); see also 67 Fed. Reg. 60,056 (Sept. 24, 2002).

111


contributions is to avoid the opportunity for corruption when a benefit is provided a candidate through pre-
arranged spending, and Buckley noted that it would not be difficult to “devis[e] expenditures that skirt{]
... express advocacy of election or defeat but nevertheless benefit[] the candidate’s campaign.” 424 U.S.
at45. Thus, limiting the contribution limits to coordinated spending for express advocacy would “facilitat[e]
circumvention by those seeking to exert improper influence upon a candidate or office-holder” and
“permit[] unscrupulous persons and organizations to .. . [contribute] unlimited sums ofmoney in order to
obtain improper influence over candidates for elective office.” Id. In Colorado II, 533 U.S. at 456, the
Court confirmed Congress’s compelling interest in avoiding such circumvention of the contribution limits

through coordinated spending.!”°

'?6 Plaintiffs argue that the statutory definition of coordination should be narrowed in order to eliminate law
enforcement investigations of such activities. Chamber/NAM Br. at 14-18; AFL-CIO Br. at 12-13. “The law is clear,”
however, “that ‘there is no constitutional right to be free of investigation.’” Sloan v. Dept. of Housing & Urban Dev.
231 F.3d 10, 18 (D.C. Cir. 2000) (citation omitted); see also Jones v. Unknown Agents of the FEC, 613 F.2d 864, 878 (D.C.
Cir. 1979) (“Although field interviews such as those that allegedly occurred here undoubtedly may discourage some
political association, we cannot say that this ‘chill’ states a constitutional claim.”). Moreover, “money spent . . .
according to an arrangement with a candidate is ... harder to classify,” Colorado I, 533 U.S. at 442-43, and involves “a
necessarily fact-intensive inquiry allowing for extensive FEC inquiry into the nature and extent of communications
between the alleged contributor and campaign.” See also Christian Coalition, 52 F. Supp. 2d at 88. Indeed, in the
Christian Coalition case, far from finding the FEC’s investigation in the case improper, the district court sanctioned the
Christian Coalition, not the Commission, for discovery abuses, id. at 51, and it ultimately found the Christian Coalition’s
expenditures not coordinated, “although not for lack of trying,” id, at 93. The two investigations discussed in plaintiffs’
briefs, Chamber/NAM Br. at 14-18; AFL-CIO Br. at 12-13, presented equally complex circumstances involving large
numbers of people, and plaintiffs’ self-serving description of those cases as presenting easily answered questions is
belied by the factual discussion in the FEC General Counsel’s reports [DEV 53-Tab 6 (MUR 4624); DEV 52-Tab 3 (MUR
4291)], which (contrary to the Chamber/NAM Br. at 15 n.8) are admissible as evidence of the results of those
investigations. See Fev. R. Evip. 803(8)(C); Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).

117


historical antecedents” such as the “infamous Sedition Act of 1798, “ NRA Br. at 5, thus, make no sense.
BCRA’s definition of electioneering communications is fully consistent with relevant Supreme Court
precedent, and is constitutional.

B. Buckley Announced No Rule of Constitutional Law That Prohibits Anti-

Corruption Regulation of Independent Political Spending That Does Not
Involve Express Advocacy.

1. Nothing in Buckley’s clarifying construction of FECA suggests that
Congress may only regulate express advocacy.

As the centerpiece of their attack on BCRA’s regulation of electioneering communications, plaintiffs
assert that Buckley laid down a rule of substantive constitutional law that precludes any governmental
regulation of independent political spending for communications that do not entail express advocacy.
McConnell Br. at 47-49; ACLU Br. at 13-15. The Supreme Court did no such thing, however. See
Gov’t Br. at 19-21, 148-53. Buckley’s express advocacy construction of FECA was just that, a matter
of statutory interpretation, and had nothing to do with fixing new constitutional bounds on the power of
Congress to do battle against corruption. The Court merely resolved difficulties of vagueness in former
FECA § 608(e)(1), which restricted independent expenditures “relative to” federal candidates, “by reading
§ 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of
acandidate.” 424 U.S. at 41-44 & n.52. Similarly, to “avoid the shoals of vagueness” the Court con-
strued then-FECA § 434(e), requiring disclosure of independent expenditures “made for the purpose of
influencing” federal elections, to encompass only those expenses incurred for communications containing
express advocacy. Id. at 78-80.

As we have explained, Gov’t Br. at 154-56, Congress designed BCRA’s regulation of electioneer-
ing communications to avoid the vagueness problems that led the Buckley Court to adopt narrowing

constructions of then §§ 608(e)(1) and 434(e). The four criteria in BCRA’s definition of electioneering

57


incentives to take actions on official matters in amanner that will benefit large donors to their parties; and
the public believes that federal candidates and officeholders put the interests of large donors to the political
parties ahead of the interests of their constituents or the nation as a whole. Plaintiffs’ efforts to explain away
this evidence fall flat.

First, plaintiffs attempt to limit Congress, and this Court, to an unduly narrow definition of“corrup-
tion.” See McConnell Br. at 35-36. In Buckley, the Supreme Court emphasized the government interest
in preventing corruption that occurs when “large contributions are given to secure a political quid pro quo
from current and potential office holders.” 424 U.S. at27. But the Court has never stated or suggested
that only demonstrated incidents of actual quid pro quo corruption justify governmental regulation of
campaign finance. Indeed, the Court rejected that contention in Buckley itself, concluding that Congress
also is legitimately concerned with “the impact of the appearance of corruption stemming from public
awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.”
Id. at27. The Court also expressly rejected the contention that bribery laws and disclosure requirements
providea less restrictive means of dealing with corruption, observing that “laws making criminal the giving
and taking of bribes deal with only the most blatant and specific attempts of those with money to influence
governmental action,” and that “Congress was surely entitled to conclude that disclosure was only a partial
measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or
appearance of corruption inherent in a system permitting unlimited financial contributions.” Buckley, 424
US. at27-28. More recently, in Shrink Missouri, the Court again emphasized that its concem with cor-

ruption extends beyond bribery “‘to the broader threat from politicians too compliant with the wishes of

15


sponsored by the AFL-CIO that met BCRA’s criteria are more properly understood as being designed
to influence federal elections. Despite the AFL-CIO’s stated intent to influence pending legislation, few
of the ads they cite in support of their argument actually make any mention of prospective actions by any
of the targeted Members of Congress. For example, one of the ads cited by the AFL-ClO as a “lobbying

ad” that would unfairly be captured by BCRA is entitled “Jobs.” AFL-CIO Br. at 10; see

Itis difficult to see how these advertisements could have had anything to do with influencing the
outcome of pending legislative issues when Congress had already voted on the relevant issues months

before these advertisements were broadcast.”!

°" As yet another example, “No Two Way,” cited at AFL-CIO Br. at 9,

Of the cited ads that ran in the summer and fall of
1996, the FEC General Counsel Report systematically observed that “with the exception of a flight of advertisements on
the topic of the minimum wage . . . there was no clear connection between the content of the [AFL-CIO’s] advertisements
and any legislation that was then the subject of intensive legislative action.” AFL-CIO MUR Rep. at 5-6 [DEV 52-Tab
3]; see also Gov’t Br. at 37-43.

86


Court has recognized, Congress’s authority is not limited to blatant quid pro quo exchanges, but extends
to “the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Mis-

souri, 528 U.S. at 389; see also Colorado II, 533 U.S. at 462-63 (noting the “web ofrelations linking

major donors, party committees, and elected officials” described in Briffault IT, 100 COLUM. L. REV. at
652). Thus, the validity of the statutory contribution limits at the heart of BCRA does not depend upon the
good or bad faith of any particular party committee; “whether they like it or not, [parties] act as agents for
spending on behalf of those who seek to produce obligated officeholders.” Colorado II, 533 U.S. at
452.7

B. Title I is Closely Drawn to Address the Appearance and Reality of
Corruption.

As explained in detail in our opening brief, the provisions of Title I satisfy the First Amendment
because they are closely drawn to prevent the appearance and reality of electoral corruption. See Gov’t
Br. at 58-90. Plaintiffs advance a series of arguments in support of their contention that the statute is not
properly tailored to address the corruption problems that Congress sought to address. Those arguments
are premised on an erroneous understanding of the statute’s scope and on unfounded speculation as to its
impact on the political parties. Properly understood, the statute clearly does not infringe any associational

rights or rights of free speech.

2” Plaintiffs’ argument that, when viewed in historical context, corruption and the appearance of corruption are
not significant national problems, see RNC Br. at 20-21, therefore, fails to account for the Supreme Court’s view, including
the modern realities of “obligation-driven” and “favor-currying” corruption that provides large donors to political party
committees with undue influence over officeholders and the political process. D. Green Rebuttal Expert Rep. at 20 &n.15
(DEV 5-Tab !]. For example, “obligation-driven” corruption occurs when federal officeholders feel a sense of obligation
that “may grow out of the personal relationship that officeholders may have forged with donors.” See D. Green Expert
Rep. at 20 [DEV 1-Tab 3]; see also

; Simpson Decl. § 9 (“Large donors of both hard and soft money receive
special treatment. No matter how busy a politician may be during the day, he or she will always make time to see donors
who gave large amounts of money.”).

22


seek to control the legislative and executive branches of government. As even the Chief Counsel to the
RNC has testified, political parties and interest groups are “fundamentally different”:

[T]he difference between what I consider a party committee especially at the national level

and other kinds of third-party interest groups [is] that, by their very nature, the political

parties have to build coalitions to govern and to get elected. ... And the way you govern

is with the majority of the members of one House or the other. So itis a bigger tent pro-

cess where a special interest group, if someone votes against your interest, you can do

everything you can either to make sure that person doesn’t get reelected or fund their

opposition. Party committees in my mind do not do that.
Josefiak Cross Tr. (Oct. 15, 2002) at 53-55.

Party committees also have significantly greater influence over Members of Congress than do other
entities. See D. Green Expert Rep. at 8 (political parties “play a distinctive and in many ways privileged
role” in the political process and “[e]ven the largest political action committees cannot begin to approach
the political scope, influence, or depth of electoral support characteristic of the Republican or Democratic
Parties”). Indeed, the chairs of the Senate and House campaign committees — organizations that raised
$212 million in soft money during the 1999-2000 election cycle alone — are themselves Members of
Congress. See Krasno & Sorauf Expert Rep. at 9-10; Biersack Decl. Tbl. 2 [DEV 6-Tab 6]. As the

Second Circuit has noted, “it is the rare candidate who can succeed in a general election without the

support of the party.” Rosario, 458 F.2d at 652. More generally, as we previously explained, Gov’t Br.

at 71-75, through both fundraising and their power to organize the legislative branch of government, parties
have a unique and powerful influence in the careers of federal officeholders.

Congress’s judgment that political parties warrant unique treatment finds strong support in both the
evidentiary record and Supreme Court precedent. No other entities are as closely identified, or share as
many interests, with federal candidates and officeholders. No other entities can offer the same access to
alarge and diverse group of powerful lawmakers, and no other entities have the same level of influence

over federal candidates and officeholders. See Gov’t Br. at 71-81; Krasno & Sorauf Expert Rep. at 12-

47


Plaintiffs contend that the reference to “political matters of national importance” is unconstitutionally
vague. McConnell Br. at 98-99; AFL-CIO Br. at 18-19. They also argue that § 504 serves no legitimate
government objective. McConnell Br. at 99-100; AFL-CIO Br. at 19-20. They further contend that § 504
is invalid because (1) itrequires disclosure of information about “requests” for broadcasts, whether or not
an actual broadcast occurs, and (2) it is not limited to broadcasts that “expressly advocate[]” the election
or defeat of a candidate. Id. Those arguments lack merit.

As explained in our opening brief, Gov’t Br. at 222-23, the statutory reference to “political matters
of national importance” is not void for vagueness. Plaintiffs’ contrary argument, McConnell Br. at 98,
relies on the Declaration of Jack N. Goodman, senior vice president and general counsel of the National
Association of Broadcasters (“NAB”), stating that NAB broadcasters will have difficulty in determining
whether broadcast requests refer to “political matters of national importance.” The NAB itself, however,
counsels broadcasters to collect sponsorship information for broadcasts that contain “political matter or
matter involving the discussion ofa controversial issue of public importance.” See NAB Political Broadcast
Catechism (5th ed.) at 62, 65 [PCS/NAB at 0373]; see also 47 C.F.R. 73.1212(e); 47 C.F.R.
76.1701(d) (cable television systems). That standard has been part of the FCC sponsorship regulations
since 1944, see Loveday v. FCC, 707 F.2d 1443, 1453-54 (D.C. Cir. 1983), and NAB does not cite
any previous objection to these similar requirements.'“ Moreover, as explained in our opening brief, Gov’t
Br. at213, any uncertainty regarding the scope of the statute is diminished by the FCC’s availability to

answer inquiries about enforcement of its political broadcast regulations. '*°

"4 In fact, the NAB has posted on its website a document that provides guidance to its members on compliance
with § 504 pending resolution of this litigation. The document, which advises that the phrase “political matters of
national importance” includes such issues as “Medicare reform or gun control,” does not suggest that determining the
meaning of the phrase will be especially difficult. See NAB, The Bipartisan Campaign Finance Reform Act of 2002: New
Public File Requirements For Issue Advertisements (www.nab.org/MembersOnly/nabsays/legal /BCRA.pdf).

'% Plaintiffs’ reliance on Trinity Broadcasting v. FCC, 21 | F.3d 618 (D.C. Cir. 2000), see McConnell Br. at 99, is
misplaced. The Court in Trinity sustained the FCC’s interpretation of its regulations conceming minority ownership,
id, at 627, but refused to enforce the denial of a broadcast license because the agency did not provide adequate notice

131


such special access creates, and the belief among donors that acceding to contribution requests from the
parties is a prerequisite to obtaining access to powerful officials. Indeed, in Buckley the Court assumed
that most contributors do not seek special influence, 424 U.S. at 22-30, but it nonetheless upheld prophy-
lactic contribution restrictions because “the reality or appearance of corruption” is “inherent in a system
permitting large financial contributions.” Id. at 28. Because the contribution limits “focu[s] precisely on
the problem of large campaign contributions,” id., BCRA’s soft money restrictions, which do nothing more
than prevent circumvention of those limits by foreclosing contributors from making an additional donation
beyond the statutory limit, are narrowly tailored to this long-recognized interest.

Inany event, the ways in which soft money donations can purchase access and influence go beyond
the amount or significance of face-to-face interaction with particular officeholders. Congress has recog-
nized, and defendants have already recounted, in considerable detail, that donors give soft money with the
expectation that they will meet and speak with officeholders in order to press their legislative agendas—an
expectation that is frequently realized. See Gov’t Br. at 32-36, 71-84. Because soft money is simply an
additional donation in excess of statutory limits, RNC’s attempt to portray hard money donors and soft
money donors as separate groups, see RNC Br. at 63, is untenable. The likelihood that a donation
exceeding the federal limits will eam more attention than a smaller donation within those limits is simply a
matter ofcommon sense that follows directly from the Supreme Court’s reasoning in upholding the contri-
bution limits themselves.

Indeed, the record is filled with examples of instances in which the RNC has facilitated the ability
ofits soft money donors to obtain access to federal officials. For example, in 1995, RNC Chairman Haley

Barbour sent Senate Majority Leader Dole a handwritten note asking him to meet with the Chief Executive

18


‘corrupt’ not just individual candidates but the parties and, thus, to ‘corrupt’ the government itself since the
party leaders for election fundraising purposes are increasingly the same as the leaders of the party in
government”). Congress, thus, had a strong basis for limiting contributions to political party committees
and federal candidates without imposing similar restrictions on interest groups.

Plaintiffs further contend that the statute is fatally underinclusive because the hard money donations
to political parties that are permitted under FECA also present a danger of corruption. RNC Br. at 63.
Ofcourse, all contribution limits are designed to restrict (not eliminate) the potential for corruption or undue
influence from political contributions, based on the common sense view that, the more money contributed,
the more likely it is that the recipient will feel beholden. Soft money is simply a contribution that exceeds
the federal contribution restrictions. Thus, plaintiffs’ argument boils down to the bizarre position that all
contribution limits are underinclusive because they do not entirely ban contributions. This argument is
foreclosed by the Supreme Court’s decisions that such contribution limits are constitutional in Buckley and
Shrink Missouri.

Plaintiffs’ gloomy predictions that Title I’s soft money restrictions will make the system worse
instead of better, see RNC Br. at 67-70, represent nothing more than a policy disagreement with Congress,
nota basis for a finding of facial unconstitutionality. See Colorado II, 533 U.S. at 454 n.5 (“[W]e do not
mean to take a position on the wisdom of policies that promote one source of campaign funding or an-
other.”). Although plaintiffs predict that the political system will suffer because interest groups will gain
prominence, see RNC Br. at 67-68, Congress reached a contrary conclusion, and that legislative policy
choice warrants deference.

Inany event, it is not a foregone conclusion that soft money that might have been contributed to the
national political parties in the absence of BCRA will instead be contributed to anyone else, much less to

interest groups rather than state and local parties. As Professor Green explained, “[t]he money donated

50


The evidence is plentiful, however, that these ads had everything to do with influencing the 2000
congressional elections.
All but one of these races were considered at least competitive by the Cook Report, and nine were viewed
as “toss-ups.” Cook Report (10/25/00) at 42-43 [DEV 38-Tab 17 at INT 15479-80]. See Gov’t Br.
at 141-42 (citing evidence that electioneering ads are heavily concentrated in jurisdictions with competitive

election races).

Similarly, an advertisement sponsored by the AFL-CIO that is included as part of the plaintiffs’

consolidated evidentiary submission,

Eight often of these Members’ re-election
races were rated as competitive by the Cook Report, see Cook Report (10/20/98) at 33 [DEV 38-Tab

16 at INT 15399];

2

87


ments of FECA, or that BCRA’s additional requirements would somehow pose a greater risk to their
activities.

Finally, plaintiffs challenge BCRA’s disclosure provisions “insofar as they require disclosure to take
place before—and irrespective of whether-—an electioneering communication or an independent expendi-

ture is aired.” AFL-CIO Br. at 14; see also McConnell Br. at 56.22. This aspect of plaintiffs’ challenge

is directed at certain BCRA provisions requiring disclosure within 24 or 48 hours after disbursements for
electioneering communications or independent expenditures, or contracts for such disbursements, are made.
See AFL-CIO Br. at 14n.14. As plaintiffs are aware, however, currently proposed FEC regulations
interpret these provisions not to require disclosure until after “‘the date on which a communication is publicly
distributed.” See BCRA Reporting, 67 Fed. Reg. 64,555, 64,565-66 (Oct. 21, 2002) (proposing regula-

tions to be codified at 11 C.F.R. 104.4(f), 104.20(a)); see also id. at 64,558-60 (Explanation and Justifica-

tion). This approach is consistent with FEC regulations regarding similar FECA provisions preceding
BCRA;'" the approach has uniformly been supported in comments received by the FEC in its
rulemaking;'" and final action on the proposed regulations is expected soon. Given the probability that the
proposed regulations will be adopted, which would moot the plaintiffs’ concerns, plaintiffs’ claims to injury
are wholly speculative and their challenge to this aspect of BCRA’s disclosure provisions is therefore unfit

for judicial resolution. Harrison & Burrowes Bridge Constr. Inc. v. Cuomo, 981 F.2d 50, 61 (2d Cir.

1992) (“Constitutional challenges to statutes are routinely found . . . unripe when proposed regulatory

13 Former FECA § 434(c)(2), like its successor, § 434(g)(1), required disclosure of certain independent
expenditures “within 24 hours after such independent expenditure is made.” The FEC regulations interpreted an
independent expenditure to be made “on the first date on which the communication [paid for by the expenditure] is
published, broadcast or otherwise publicly disseminated.” See 11 C.F.R. 109.1(f); 67 Fed. Reg. 12,838 (explanation and
justification).

"4 See BCRA Reporting, 67 Fed. Reg. 64,559 (describing comments from initial NPRM); Comments on NPRM
2002-19 (second NPRM), available at http://www. fec.gov/pages/bcra/rulemakings/consolidated_reporting.htm.

109


candidates if a federal candidate is on the ballot, even if the federal candidate is not mentioned in the
advertisement. The FEC’s regulations, however, define GOTV to mean “contacting registered voters by
telephone, in person, or by other individualized means, to assist them in engaging in the act of voting,” which
includes “[p]roviding to individual voters, within 72 hours of an election, information such as the date of the
election, the times when polling places are open, and the location of particular polling places” and
“[o]ffering to transport or actually transporting voters to the polls.” 11 C.F.R. 100.24(a)(3) (emphasis
added). This excludes from regulation as GOTV all of a party committee’s television or radio advertising
for state candidates or ballot initiatives and, apparently, even mass mailings and Internet appeals. Only
“individualized” assistance must be paid with federal funds (or Levin funds).

The FEC explained its intent to “define GOTV in amanner that distinguishes the activity from
ordinary or usual campaigning that a party committee may conduct on behalf ofits candidates. Stated
another way, if GOTV is defined too broadly, the effect of the regulations would be to federalize a vast
percentage of ordinary campaign activity.” 67 Fed. Reg. 49,067 (July 29, 2002). The FEC also explained
that “GOTV has a very particular purpose: assisting registered voters to take any and all necessary steps
to get to the polls and cast their ballots, or to vote by absentee ballot or other means provided by law. The
FEC understands this purpose to be narrower and more specific than the broader purposes of generally
increasing public support for a candidate or decreasing public support for an opposing candidate.” Id. The
regulation also specifically excludes communications of any kind bya group of state or local candidates or
of state or local officeholders, as long as it only refers to state candidates and not federal ones. Id.; 11
C.F.R. 100.24(a)(3). Thus, the regulation was designed to avoid precisely what plaintiffs contend the
statute should not do.

Another regulation explicitly excludes from the definition of “Federal election activity” any “public

communication” (which includes all broadcasts and mass mailings) that only refers to state or local candi-

28


Figure 1.
2000 Formula

Denominator:
1998 and 2000 Formula Numerator: All Ads Captured
All genuine issue ads regulated by BCRA by BCRA’s

Criteria

1998 Formula Denominator:
All Genuine Issue Ads Run Over the Course
of the Year

As defendants’ experts have explained, the best inquiry for purposes of evaluating BCRA’s

potential overbreadth is the first formula above, the one used in the 1998 edition of Buying Time, i.e., the

percentage ofall genuine issue ads aired ina given year falling within BCRA’s scope.” See Krasno &
Sorauf Expert Rep. at 60 n.43 & App. [DEV 1-Tab 2]; Krasno Rebuttal Expert Rep. at 14-16. This is

so because the 1998 formula measures the impact of BCRA on the universe of genuine issues ads aired

° See City of Houston y. Hill, 482 U.S. 451, 459 (1987) (a statute may be invalidated for facial overbreadth if it
“make[s] unlawful a substantial amount of constitutionally protected conduct”).

70


Nguyen v. INS, 533 U.S. 53 (2001) 2... cnn eee eens 46

*Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) ..............0.. passim
North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ............0... 65
Oregon v. Mitchell, 400 U.S. 112 (1970) 2... cece cece eee eee eee ees 4,9, 10
Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) 00000000 cece cece cece cece eeveeeeees 118
Pa. Department of Corrections v. Yeskey, 524 U.S. 206 (1998) ......... cece eee eee ee 131
Perez v. United States, 402 U.S. 146 (1971) 2... cence eects 13
Perry v. Sindermann, 408 U.S. 593 (1972) 10... ccc eee cee eee eee 113, 131

Pinnock v. International House of Pancakes Franchisee.
844 F. Supp. 574 (S.D. Cal. 1993) 2.0... cece ccc cnn cent eee 7,8

Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 122 S. Ct. 1155 (2002) 26... 122

Reader's Digest Association, Inc. v. FEC,

509 F. Supp. 1210 (S.D.N.Y. 1981) 20... cee e ene 105
Republican Party of Minnesota v. White,

—_ USS. __, 122 S. Ct. 2528 (2002) 2... cece eee eee 99
Rescue Army v. Municipal Court, 331 U.S. 549 (1947)... ccc eee eee eee 117
Riley v. Nat’] Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781 (1988) ............. 37
Right to Life of Duchess Cty., Inc.v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) ............. 63
Rodriguez v. United States, 480 U.S. 522 (1987) .. 0... cece ccc eee e cree e tence eens 122
Rosario v. Rockefeller, 458 F.2d 649 (2d Cir. 1972),

affid, 410 U.S. 752 (1973) 00... ennet eens 48, 49
Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981) 0.0... eee ee 112
Schaumburg v, Citizens for a Better Env’t, 444 U.S. 620 (1980) ............ 0.000 35, 36, 37
Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) 0.6... cece 24
Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947 (1984) 0... eee eee 35

“ix-


I BCRA’S REGULATION OF ELECTIONEERING COMMUNICATIONS
IS CONSTITUTIONAL . .. 0.6 cece e nee e nee 55

A. BCRA'S Regulation of Electioneering Communications Is Not a Ban on
Speech oc e eee eee eee e nee e tenes 55

B. Buckley Announced No Rule of Constitutional Law That Prohibits Anti-
Corruption Regulation of Independent Political Spending That Does Not

Involve Express Advocacy ....... 0... e ccc eect eee eee 58
1. Nothing in Buckley’s clarifying construction of FECA
suggests that Congress may only regulate express advocacy .......... 58
2. No later decision of the Supreme Court endorses plaintiffs’
reading of Buckley ..... 0... cee cence nee eens 61
3. No lower court precedent precludes anti-corruption
legislation such as BCRA’s regulation of electioneering
communications 2.2.0... cece eens 62
Cc. BCRA’s Definition of “Electioneering Communications” Is Not
Overbroad 2... cee eee nee e eens 66
1 The empirical evidence proves that BCRA is not
substantially overbroad 2.11.01. eee ene eee 68
2. Plaintiffs' anecdotal evidence does not prove that BCRA is
substantially overbroad 2.2... . 00. eee cece enn eee nee 77
a. Plaintiffs’ exaggerated claims of BCRA’s impact
should not be credited 2.2... 0... cece eee eee ee 78

b. The record reflects that most of plaintiffs’
“powerful illustrations” of issue advocacy were
broadcast for purposes of influencing federal
elections 6.0.6... cece eet 82

-il-


CIO Br. at 19-20. As discussed above, FCC regulations already require disclosure of the sponsor’s chief
executive officers or members of the executive committee or board of directors for paid broadcasts ofa
“political matter or matter involving the discussion ofa controversial issue of public importance.” See 47
C.F.R. 73.1212(e); 47 C.F.R. 76.1701(d) (cable television systems). In the highly regulated area of
political broadcasts on radio or television, there is no right to make an anonymous broadcast. To the
contrary, stations are under a longstanding obligation to determine the “true sponsor” of broadcasts,
including broadcasts that are in no way campaign-related. See 47 U.S.C. 317(c); Loveday, 707 F.2d at

1449; see also Trumper Communications, 11 F.C.C.R. 20,415, 1996 WL 635821 (Oct. 29, 1996). The

collection and disclosure of sponsorship information concerning political broadcasts does not violate the

Constitution. See KVUE, Inc. v. Moore, 709 F.2d 922, 937 (Sth Cir. 1983) (rejecting First Amendment

challenge to state statute requiring sponsors of political broadcast advertisements to identify themselves),
affid, 465 U.S. 1092 (1984).
CONCLUSION
For the foregoing reasons, and for the reasons stated in defendants’ opening brief, the motion of
the Governmental Defendants and the Defendant-Intervenors for judgment should be granted, and plaintiffs’

claims dismissed, with prejudice.

133


ability of party committees (and their individual members) to meet and confer about campaign strategy.
Thus, BCRA inno way restricts the participation of members of state and local Republican Party commit-
tees in the RNC’s Victory Plan meetings or any other planning and strategy sessions. But see RNC Br.
at 9, 39.

Contrary to plaintiffs’ suggestion, see McConnell Br. at 30; CDP Br 30, the FEC’s regulations
make clear that state or local party officers who also serve on their party’s national committees are free to
raise money on behalf of their state or local committees. As explained in our opening brief, Gov’t Br. at
98-99, BCRA’s prohibition against officers and agents of the national party committees raising or spending
soft money applies only to the extent that the officer or agent is “acting on behalf of such a national commit-
tee.” 2 U.S.C. 441i(a)(2) (emphasis added).”

Plaintiffs’ description of BCRA’s impact on associational rights is exaggerated in other respects
as well. For example, contrary to plaintiffs’ contention, see McConnell Br. at 24, nothing in BCRA
prevents state and local candidates from establishing hard money accounts under FECA to make expendi-
tures that promote or attack federal candidates. See 11 C.F.R. 102.5(a)(1) (authorizing political committee
to set up single account consisting exclusively of hard money to be used for both state and federal election
expenditures). Also, national party committees and their agents remain free to raise hard money for state
and local candidates; a national party committee, like any federal political committee, is free to contribute
its funds to state and local candidates, even though under BCRA all of its funds will have been raised
subject to federal limits. Id. Indeed, when Congress has sought to restrict the uses made of funds in hard

money accounts, it has done so expressly. See 2 U.S.C. 439a (prohibiting personal use of campaign funds

® Similarly, Speaker Hastert’s suggestion that BCRA’s national party soft money ban will preclude him from
participating in state-level party activity by virtue of his status as an officer of the NRCC, Hastert Amicus Br. at 11-14,
lacks merit. To the extent that the Speaker participates in such activity on his own behalf, he would not be acting as an
agent of the NRCC, and the national party soft money ban, therefore, would not be implicated. See 2 U.S.C. 441i(a)(2).

25


such expenditures be made from separate funds, contributed by individuals for electoral purposes, is
likewise a narrowly tailored measure supported by compelling governmental interests.

Under Austin and MCEL, it is well established that the following ad must be financed through a
separate segregated fund in order to be a lawful expenditure by a corporation or union:

Senate candidate Winston Bryant’s budget as Attorney General increased 71 percent.

Bryant has taken taxpayer-funded junkets to the Virgin Islands, Alaska, and Arizona. And

spent about $100,000 on new furniture. Unfortunately, as the State’s top law enforcement

official, he has never opposed the parole of any convicted criminal, even rapists and mur-

derers. And almost 4,000 Arkansas prisoners have been sent back to prison for crimes

committed while they were out on parole. Winston Bryant: Government waste, political
junkets, soft on crime. Call Winston Bryant and tell him to give the money back. And on

Election Day, vote against Winston Bryant.

See Thompson Comm. Rep. at 4007. [Adding last sentence to the text of an actual ad]. Despite plaintiffs’
rhetoric about BCRA’s effect on political speech, they do not challenge Supreme Court precedent uphold-
ing financing restrictions for advertisements like that above under FECA § 441b. But, while plaintiffs
appear to accept, as they must, what they call the “criminalization” of ads like this one (ifknowingly and
willfully paid for with corporate or union general treasury funds), they predict dire consequences for demo-
cracy ifthe same ad were subject to the same financing restriction if broadcast to the relevant electorate
60 days before the election, but without the last eight words. BCRA, however, does nothing more.
Itis clear, therefore, that rather than bringing a new or grandiose type of regulation to political
speech, BCRA simply builds upon the financing structure upheld by the Court in Austin, and incrementally
amends FECA § 441b to apply the same financing restrictions — still applicable only to corporations and
unions —to anarrow category of election advocacy defined as “electioneering communications.” It does
so in the recognition that there is no meaningful distinction between the ad quoted above, and the same ad
without the final eight words, if the latter is broadcast to the relevant electorate in the heat ofa federal

campaign. See Gov’t Br. at 146-48. Plaintiffs’ extravagant comparisons between BCRA and “chilling

56


are mistaken in that point of view. While plaintiffs are largely correct that “the vagueness problem inherent
in [FECA] could not be solved by anything but a bright-line test,” id, at 48, Buckley never anointed express
advocacy as the only bright-line test acceptable to the First Amendment.

Cc. BCRA’S Definition of “Electioneering Communications” Is Not
Overbroad.

As we explained in our opening brief, BCRA’s definition of “electioneering communications” is a
bright-line test that is narrowly tailored to end the now rampant evasion of FECA’s segregated fund and
disclosure requirements through broadcast advertising crafted to omit the “magic words” of express
advocacy. BCRA prohibits corporations and labor unions from using their general treasury funds to make
“electioneering communications,” which are specifically defined as TV or radio communications that “refer[]
to aclearly identified candidate for federal office,” made within the 60 days before a general election or the
30 days beforea primary. Additionally, in the case of communications that refer to a House, Senate, or
(under rules adopted by the FEC)” presidential primary candidate, the communications must be “targeted
to the relevant electorate,” meaning that they can be received by at least 50,000 persons in the state or
district in which the election is being held.® This precise definition carefully limits BCRA’s reach to those
ads sponsored by corporations and unions that present the greatest potential for distortion or corruption

of the political process. See Gov’t Br. at 156-159, 163-164; see also infra at 98-103.

° See Final Rule, Electioneering Communications, 67 Fed. Reg. 65,211 (Oct. 13, 2002) (to be codified at 11 C.F.R.
100.29(b)(3)).

® Plaintiffs overstate the nature of what they misleadingly characterize as the “blackout” period, see McConnell
Br. at 59, by ignoring the targeting requirements contained in BCRA and clarified in the FEC regulations relating to
electioneering communications. As those rules state, BCRA is not to be interpreted in a manner “that would lead to
nationwide application of the electioneering communication provisions with respect to presidential primaries.” 67 Fed.
Reg. 65,194. Instead, the FEC has interpreted BCRA’s regulation of ads broadcast within 30 prior to any State’s
presidential primary as limited to those ads which “can be received by 50,000 or more persons within the State holding
the primary election.” Advertisements can continue unregulated in States where no primary is scheduled within the next
thirty days, or in media markets that reach smaller audiences.

65


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SENATOR MITCH McCONNELL, et al.,

Plaintiffs, Civ. No. 02-0582 (CKK, KLH, RJL)

v. ALL CONSOLIDATED CASES

FEDERAL ELECTION COMMISSION, et al.,
FILED UNDER SEAL
Defendants.

OPPOSITION BRIEF OF DEFENDANTS

ROBERT D. McCALLUM, JR. LAWRENCE H. NORTON
Assistant Attorney General General Counsel
SHANNEN COFFIN RICHARD B. BADER (D.C. Bar #911073)
Deputy Assistant Attorney General Associate General Counsel
JOSEPH H. HUNT STEPHEN HERSHKOWITZ (D.C. Bar #282947)
THEODORE C. HIRT Assistant General Counsel
JAMES J. GILLIGAN DAVID KOLKER (D.C. Bar #394558)
RUPA BHATTACHARYYA Acting Assistant General Counsel
MARC KESSELMAN
SERRIN TURNER ROBERT W. BONHAM III
MICHAEL RAAB VIVIEN CLAIR
DANA J. MARTIN HOLLY J. BAKER
Attorneys COLLEEN T. SEALANDER
U.S. DEPARTMENT OF JUSTICE HARRY SUMMERS
P.O. Box 883 BENJAMIN A. STREETER IL
Washington, D.C. 20044 GREG MUELLER
(202) 514-3358 WILLIAM SHACKELFORD
KEVIN DEELEY
Counsel for the United States Defendants LEIGH G. HILDEBRAND
BRANT LEVINE
ROGER M. WITTEN (D.C. Bar #163261) MICHELLE ABELLERA
SETH P. WAXMAN (D.C. Bar #257337) MARK GOODIN
RANDOLPH D. MOSS (D.C. Bar #417749) Attorneys
WILMER, CUTLER & PICKERING FEDERAL ELECTION COMMISSION
2445 M Street, N.W. 999 E Street, N.W.
Washington, D.C. 20037-1420 Washington, D.C. 20463
(202) 663-6000 (202) 694-1650
Counsel for Defendant-Intervenors Counsel for Defendant Federal Election Commission

ADDITIONAL COUNSEL LISTED ON FOLLOWING PAGES


Given the incidental nature of the
reference, the burden of avoiding it would have been negligible.

ce The “close calls” also reflect an electioneering intent, and
Congress may require that funds collected from individu-

uals for electoral purposes be used to pay for them.

Out of the plaintiffs’ 60 “most powerful illustrations” of pure issue ads that allegedly would be
unfairly captured by BCRA, only a handful of them present legitimately close calls. An ad that has caused
disagreement among the experts, but which nonetheless had a demonstrable electoral purpose, is “Dump-
ster,” sponsored by the National Pro-Life Alliance (“NPLA”).”° “Dumpster” not only criticizes Senators
Kohl and Feingold of Wisconsin for supporting the “grisly procedure” of partial birth abortion, but also goes.
one step further and associates the named Senators with the “despicable act” of leaving newborn babies
in garbage dumpsters. McCain Dep. Tr. (Sept. 25, 2002) at 119-25. While the text of the ad does not
clearly indicate electioneering intent, there is significant contextual evidence indicating such intent. Holman
Dep. Tr. at 68; Snowe Dep. Tr. (Sept. 30, 2002) at 132-35, This ad ran four times in Milwaukee between
October 2-10, 1998, during the heat of Senator Feingold’s re-election campaign; it then re-emerged and
ran nine more times in Milwaukee between October 12 - 24, 2000, during the heat of Senator Kohl’s re-
election campaign.” Plaintiffs have pointed to no specific legislative events to rebut the inference that this
ad was deployed during election season, put on the shelf, and then brought back out for the next election

season.”

°° This ad is titled by CMAG and cited by plaintiffs as “WI/NPLA Feingold Kohl Abortion 60.”

%? An otherwise identical ad featuring then-Virginia Senator Charles Robb in place of Feingold and Kohl aired
15 times in Virginia during Robb’s 2000 re-election. This ad is titled by CMAG and cited by plaintiffs as “VA/NPLA Robb
Abortion.”

°8 Indeed, sometimes interest groups will plan for months to run issue ads in the weeks leading up to the
election, and coincidentally, legislation will arise that corresponds to their issue. Plaintiffs cite one such example in the

91


though the FEC is still in the midst of the rulemaking required by § 214, the plaintiffs insist (see, €.g.,
Chamber/NAM Br. at 6-18) that they are entitled to judicial review of BCRA § 214 before the regulation
is promulgated. This assertion is based upon the fact that BCRA repeals the FEC’s current coordination
regulation as of December 22, 2002, and plaintiffs claim that if the FEC has not promulgated a new
regulation by then, they will be chilled from immediately engaging in lobbying activities because of uncer-
tainty about what communications with incumbent lawmakers the FEC will treat as “coordination.” Cham-
ber/NAM Br. at 6-7.

Plaintiffs’ assertion that the FEC may not have a new regulation by December 22, 2002, is entirely
speculative, ’”! and plaintiffs have not demonstrated any injury that could warrant anticipatory judicial review
of constitutional issues that the new regulation may obviate. See infra at 117-18. In any event, while
amendments have been made to 2 U.S.C. 441a(a)(7), the statutory language defining conduct constituting
coordination has not been altered at all. It is the same language that has been in place in the statute since
1976. Plaintiffs assert that lobbying activity will be chilled if the FEC’s current regulation is repealed
without replacement, but for almost a quarter century before that regulation was promulgated (near the end
of 2000), the FEC’s prior coordination regulation, 11 C.F.R. 109.1(b)(4)(i) (1999 ed.) (quoted in
Intervenors’ Br. at -137 n.510), applied much more broadly. For example, it applied to expenditures
based upon information about a candidate’s plans provided by the candidate, and to expenditures made
“by or through any person” who had been authorized to engage in certain kinds of campaign activities by
the candidate. Id. Plaintiffs offer no reason why the repeal of the 2000 regulation would result in

impermissible chilling of lobbying when a broader standard, under the same statutory language, was in effect

"1 As plaintiffs acknowledge, Chamber/NAM Br. at 13 n.7, the FEC has scheduled final adoption of a
coordination regulation for December 12, 2002; it is subject to a statutory requirement to issue such a regulation by
December 22, 2002; and there so far have been no regulations under BCRA that have been stymied by a 3-3 vote of the
FEC Commissioners.

114


TABLE OF CONTENTS

SUBMISSIONS BY THE GOVERNMENTAL DEFENDANTS

Page
TABLE OF AUTHORITIES 0.0.0... 00sec ceccceeeeeee ene eteenteneeeeteeeeneens v
BCOSING TN 5X 6)D) 0109 5 (0) 1
ARGUMENT 20.00. c 0c ccc eee ence eect ene eee e betes eee ene ete eteenteeneeeenes 1
0 1
PRESENTATION BY THE GOVERNMENTAL DEFENDANTS ...... 0.000000 eee eee 1
I. TITLELIS NOT SUBJECT TO STRICT SCRUTINY ....... 00.0000 eee cues ees 3
I.‘ TITLELIS A VALID EXERCISE OF CONGRESS’S AUTHORITY UNDER THE
ELECTION AND COMMERCE CLAUSES 2.0... .0.00c0ccceeeeeeeeneeeeeens 4
MI. TITLE IIS FULLY CONSISTENT WITH THE FIRST AMENDMENT ........... van

A. BCRA’s Soft Money Provisions Prevent the Appearance and Reality of
Corruption 0.2... een een eee n ees 14

B. Title I Is Closely Drawn to Address the Appearance and Reality of

Corruption 0... cence enn eens 22
L Title I infringes no First Amendment rights of association .......... 23
2. BCRA’s definition of “Federal election activity” is not

overbroad or void for vagueness ........ 0... c ee eee eee eee 27
3. Title I’s limitations on solicitations are constitutional .............. 34

4. Plaintiffs have not shown that Title I will prevent political parties
from amassing resources necessary for effective advocacy ........... 39

5. Congress properly determined that anything less than a ban
on national party soft money would not adequately reduce
the appearance and reality of corruption ............. 00 cee ee eens 44

TV. BCRA’S SOFT MONEY PROVISIONS ARE FULLY CONSISTENT WITH THE
EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT AND ARE
NOT IMPERMISSIBLY UNDERINCLUSIVE ........ 0.0.0 c cece cece cence 46


Another ad cited by plaintiffs is the Alliance for Quality Nursing Home Care’s “Keep the Promise
(Gore).” According to the CMAG data, of this ad’s 986 airings, fewer than ten percent would have been
regulated byBCRA.”

Ifthe AFL-CIO’s run data regarding the advertise-
ment entitled “Deny,” referencing HMO legislation, is correct, then the ad may indeed be a genuine issue
ad that would nevertheless be captured by BCRA. However, contrary to the AFL-CIO’s assertions that
the ad ran only during the weeks preceding the vote on the HMO bill, see AFL-CIO Br. at 9, the CMAG
satellite actually detected that the ad continued running until October 22, 1998, well after the legislative
action the ad was supposedly timed to influence.'°' Moreover, the AFL-CIO’s claim that it was necessary

that this ad mention specific candidates by name is undercut by the fact

This generic version would not have been
regulated by BCRA.
Regardless of whether an ad captured by BCRA is unabashedly electioneering or something ofa

“close call,” it is simply false to suggest that BCRA requires plaintiffs to “forego such advertising.” See,

Coalition for the Future American Worker’s “KY/CFAW Call Northup,” McC 026. CFAW’s founder, Roy Beck, who
controls a number of anti-immigration interest groups, has publicly stated that his ads were in the works leading up to
the elections, and that the legislative debate in September was purely coincidental “lucky timing.” Pamela Barnett, “Lott
Wants Agreement With Dems On H-1B Visa Measure,” National Journal’s Congress Daily, September 14, 2000.

°° The ad ran in Albuquerque, Austin, Boston, Cleveland, Columbus, Detroit, Harrisburg, Little Rock,

Milwaukee, New Orleans, Philadelphia, Portland, Seattle-Tacoma, and St. Louis 986 times from 5/18/0 to 6/26/00. Out of
all these airings, only a subset of the 39 airings in Albuquerque, and only a subset of the 93 airings in Little Rock (93x)
were broadcast within 30 days of primary. Thus, BCRA would have captured less than 10% of the airings of this ad.

‘© On plaintiffs’ video tape, this ad is called “AFL/Made in China Myrick.”

_ Of the other China trade status ads, “Endorse” would have
been captured in only three of 17 districts and “Trust” would have been captured in three of 12.

'' Defendants have no similar information that would rebut the AFL-CIO’s claim that its radio ad “Barker,”
AFL-CIO Br. at 10( ), continued running after the House’s September 25, 2000 vote on Fast
Track.

92


Tenth Amendment jurisprudence “has traveled an unsteady path ....” Further, the rule
does not have anything resembling the kind of preemptive effect on states’ ability to control
their own elections processes that might be perceived as “destructive of state sovereignty.”

Id. (citing inter alia, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985), and Gregory,

501 U.S. at 460-462). For all these reasons, Title lof BCRA is plainly a valid exercise of Congress’s
power under the Elections Clause.

Inaddition, contrary to plaintiffs’ contentions, BCRA’s soft money provisions also fall within
Congress’s authority under the Commerce Clause. Not only are transactions in soft money that BCRA
regulates themselves economic activity, but also the soft money that a political party receives asa result of
those transactions is, in turn, available for additional commerce: the purchase of goods and services for
use in connection with elections. See United States v. Morrison, 529 U.S. 598, 610 (2000) (economic
nature of the regulated activity plays central role in Commerce Clause analysis); see also Perez v. United

States, 402 U.S. 146, 154-57 (1971).!°

‘© Plaintiffs’ suggestion that defendants have waived reliance on the Commerce Clause by virtue of an
interrogatory response, RNC Br. at 32, is baseless. The interrogatory response was expressly made “without prejudice
to any argument that, as a matter of law . . . [,] any other Constitutional power supports the BCRA.” U.S. Resp. to RNC’s
2d Set of Interrogs. {20 (Sept. 19, 2002). And Congress need not expressly invoke the Commerce Clause in order for
legislation to be sustained under that provision. “The constitutionality of action taken by Congress does not depend
on recitals of the power which it undertakes to exercise.” Woods v. Miller, 333 U.S. 138, 144 (1948).

13


aresult of 100%, even ifhundreds or thousands of other genuine issue ads aired unregulated either prior
to the 60-day period, or inside that period but identifying no federal candidates.

Plaintiffs confuse these two very different comparisons and, indeed, appear to invent anew formula
altogether. They wrongly contend that “the authors of Buying Time 1998 now acknowledge that using the
same approach that the Brennan Center employed to report its findings in 2000... , over 14% of ‘genu-
ine’ issue advertisements aired during the last 60 days of the 1998 election would have been prohibited by
BCRA.” McConnell Br. at 67 (emphasis added). As discussed above, however, the percentage formula
used in the 2000 study measures the percentage of all the ads that would have met BCRA’s primary
definition of “electioneering communications” that were also genuine issue ads: 2.33% in 2000 and 14%
in 1998. Byno means does it measure what plaintiffs claim it measures — that “14% of <genuine’ issue
advertisements aired during the last 60 days of the 1998 election would have been prohibited by
BCRA”(emphasis added).

Plaintiffs offer no reason why this Court should adopt one formula over the other, and do not
contest in any way the explanation offered by defendants’ experts that the estimates of BCRA’s potential
overbreadth generated by applying the formula used in the 1998 edition of Buying Time—namely, 6.1%
in 1998 and 3.14% in 2000 — are the most relevant available estimates.”’ Instead, plaintiffs choose to
muddy the waters even further by quoting out of context a statement by Brennan Center President and
CEO Joshua Rosenkranz, see McConnell Br. at 67, regarding what discovery proceedings have demon-
strated to be his mistaken impression that the 7% figure reported in Buying Time 1998 was.derived using

the 2000 formula. See Holman Dep. Tr. (Sept. 6, 2002) at 143-145.

| Defendants have fully explained the various computations, and preferred methodology, used in the two
reports and have provided the Court with the results of the application of both formulas to both the 1998 and the 2000
data sets. See Krasno & Sorauf Expert Rep. App. & Spreadsheets; Goldstein Expert Rep. at 25 (Tbl. 7).

72


1. The empirical evidence proves that BCRA is not substantially
overbroad.

Plaintiffs fail to offer any empirical data of their own to meet their burden of demonstrating that
BCRA suffers from substantial overbreadth. Even with respect to their “starting point” for discussion of
their overbreadth claims — various proposed regulatory exceptions that the FEC declined to enact in recent
rulemaking proceedings, see McConnell Br. at 58-59 — plaintiffs fail to offer any empirical evidence
whatsoever regarding the extent to which genuine issue ads that might have qualified for these proposed
exemptionsTM would nevertheless be captured by BCRA.® Nor do plaintiffs even attempt to take issue with
the results of the Buying Time studies showing that 75-80% of interest group ads that mention candidates
run during the 60 days before a federal elections and that 85-90% of these candidate-focused ads that
aired in the last 60 days before an election were broadcast in the midst of the most closely contested races.
Gov’t Br. at 140-41. Instead, as explained below, plaintiffs mount a personal attack on the respected
political scientists who authored the Buying Time studies, mischaracterize both the results of those studies

and the evidentiary record in this litigation, and take varying meritless, and ultimately inconsistent, positions

“ As the Explanation and Justification accompanying the FEC’s issuance of the electioneering communications
makes clear, each of these proposed exemptions was rejected because the FEC could not conclude, on the basis of the
rulemaking record before it, that they categorically described communications not intended to influence a federal election.
See generally 67 Fed. Reg. 65,200-65,203.

°* Plaintiffs most egregiously complain that public service announcements (“PSA’s”) will be subject to BCRA.
McConnell Br. at 59. They fail to disclose, however, that billions of dollars worth of PSA’s are aired at no expense to
their sponsors. See NPR, Morning Edition, “Analysis: Small amount of time commercial broadcasters allot for public
service announcements,” 2002 WL 3167200 (quoting plaintiff National Association of Broadcasters regarding its survey
finding that the broadcast industry donated $5.6 billion of airtime in one year alone). Since BCRA’s definition of
electioneering communications encompasses only paid political advertising, see 67 Fed. Reg. 65,193 (to be codified at
11 C.F.R. 100.29(b)(3)(i)), none of this billions of dollars worth of advertising would be regulated, even where it refers to
clearly identified federal candidates and is timed and targeted in the manner specified by BCRA. In the same vein,
plaintiffs fail to offer any empirical evidence that ads sponsored by corporations and labor unions (and paid for with their
aggregated wealth) that refer to proposed legislation by popular name; have lobbying goals relating to prospective
legislation; or promote ballot initiatives, referendums, or local tourism; and have no electoral purpose, see 67 Fed. Reg.
65,200-65,203, constitute any substantial portion of ads that would be subject to BCRA’s financing restrictions and
disclosure rules.

67


TL CFR. 109.20 20 nee ttn e eens 113
TL CFR. 109.30 00... e cece ene enn teens 113
LICR. 109.31 0. ene e nee tenet eens 113
LL CPLR. 109.32 .o oc ene nnn eet e teen e eee 113
LI C.FR. 300.2 0c een e nett tent e eens 35
LL CFR. 300.31 0. ent een ete tenes 24, 26
11 CFR. 300.64 .o teen nent teen ne teens 26, 42
AT CPR. 73.1212 occ eee 130, 133
47 CER. 73.1940 2. etter e tenet nets 130
AT CER. 73.1941 oo nn teen eee n ene nes 130
AT CBR. 73.1942 coc nent e ener eens 130
47 CFR. 73.1943 occ eee ene e ttt e nee ee 130. 135
AT CER. 73.1944 oo ene ene eee eee cnet eee e nee e eens 130
AT CPLR. 76.205 occ een een n eet n enna es 130
AT CFR. 76.206 20. e een ene n nee 130
AT CBR. 76.1611 oo ee tne eee nner eee e eee nae 130
AT CER. F6.170L oo nent eter een e tenn ae 130
AT CFR. 73.1212 00 nent ene tee e teens 133, 135
AT CFR. 73.1943 0c ee eee cette eee eens 131, 134
ATCE.R. F6.1701 0.00 cnet 131, 133, 134, 135
Final Rule, Independent Expenditure Reporting,

67 Fed. Reg. 12,838 (Mar. 20, 2002) 0.0... 0.00 ccceeeeeeeeeeeeeeeneeee eens ll
Final Rule, Prohibited and Excessive Contributions: Non-Federal Funds

or Soft Money, 67 Fed. Reg. 49,067 (July 29, 2002) 2.0... .. 2. cece eee eee passim

-xiii-


smoking gun is needed where, as here, the conflict of interest is apparent, the likelihood of stealth great,
and the legislative purpose prophylactic.” 61 F.3d at 945. The D.C. Circuit recognized that “without the
prohibitions of sections (c) and (d) on soliciting contributions, directly or indirectly, underwriters could
easily circumvent the prohibition against direct contributions.” Id. at 61.

The record demonstrates that Congress correctly concluded that solicitation of soft money for state
parties by national party committees and federal candidates presents an opportunity to circumvent the
federal contribution limits, and thus implicates the danger of corruption. See Gov’t Br. at 100-02, 124-25.
Moreover, and, contrary to plaintiffs’ characterizations, BCRA’s restrictions on solicitation are narrowly
targeted to prevent that danger. The statute only restricts the solicitation of soft money, which, by definition,
does not comply with the federal limits. It leaves national party committees and candidates generally free
to solicit contributions that comply with those limits.?”

The only restriction on the general freedom to solicit hard money appears in 2 U.S.C. 441i(d),
which prohibits national and state-level party committees from soliciting any funds for certain tax-exempt
organizations that engage in federal election activity. As explained in our opening brief, the restrictions in
§ 441i(d) are appropriate “prophylactic measures,” see NRWC, 459 U.S. at 210, ensuring that party
committees do not funnel funds to tax-exempt organizations as a means of evading BCRA’s softmoney

restrictions and FECA’s contribution limitations and disclosure requirements.** The record makes abun-

*” Plaintiffs contend, McConnell Br. at 24, that the statute prevents national party committees and national party
officials from soliciting any funds for state candidates because state candidates cannot receive hard money. That
assertion is incorrect. See supra at 25-26. Moreover, individuals who serve as officers of national party committees are
free to solicit soft money for state candidates and party committees in their individual capacities, so long as they are not
acting “on behalf of” the national party committee. 2 U.S.C. 441 i(a)(2); 67 Fed. Reg. 49,083 (July 29, 2002). Thus, contrary
to plaintiffs’ suggestion, see RNC Br. at 45-46, the limitation on solicitations by national party committees and officials
on behalf of state-level candidates is not greater than the limitation on such solicitations by federal candidates.

** Plaintiffs contend that “a party official could violate the law (and be subject to criminal penalties) simply for
contributing to his or her church, if the church has engaged in non-partisan activities encouraging (or assisting) its
members to vote.” CDP Br. at 46. But the statute only prohibits actions by party officials “on behalf of” a party
committee. 2 U.S.C. 441i(d). A party official’s personal donation of his or her own money to a church, like other

37


Another McConnell plaintiff, the National Right to Life Committee (“NRLC”), while claiming that
it “regularly makes disbursements for the direct costs of producing and airing ‘electioneering communica-
tions,” O’ Steen Decl. 4 6 [8 PCS/MC 262-63], in fact, has hardly ever done so. Indeed, in all of 1998
and 2000, the NRLC ran only one radio advertisement that would have qualified as an electioneering
communication under BCRA. See O’Steen Dep. Tr. (Sept. 30, 2002) at 59-61.8! Another group appear-
ing in plaintiffs’ list, Associated Builders & Contractors, is represented as using radio ads “to promote
issues, ... which ads coincide with legislative sessions and elections and will now be banned because they

name candidates.” McConnell Br. at 64.

see also Gov’t Br., App. A, Tab 6, Nos. 3-6 (audio);

Such “off-issue” advertisements can only be interpreted.
as electioneering in design. See Gov’t Br. at 138-39.

The ACLU’s claims of injury are particularly egregious. The ACLU admits that the sole advertise-
ment it has ever sponsored that would meet BCRA’s definition ofan electioneering communication was
a March 2002 ad that urged House Speaker Dennis Hastert to bring the Employment Non-Discrimination
Actto the floor of the House fora vote. ACLU Resp. to Defs’ First Set of Interrogs. (Nos. 10-11) [DEV

10-Tab 7]; ACLU Resp. to Defs’ Second Set of Interrogs. (No. 1) [DEV 10-Tab 9].

*! That advertisement, which criticized Senator John McCain for his stance on campaign finance reform, was
run only in New Hampshire during the New Hampshire presidential primary, at the same time that the NRLC was running
several similar ads out of its PAC that also expressly called for McCain’s defeat. O’Steen Dep. Tr. (Sept. 30, 2002) at 57
& Ex. 6. Asan NRLC press release makes clear, the ad, much like the ACLU Hastert ad, infra, was specifically contrived
to serve as an example of the sort of “issue advocacy” that would be captured by BCRA. See id. at 58-59 & Ex. 8.

79


communications are crystal clear, and no serious argument can be made suggesting otherwise. Indeed, in
their roughly 400 pages of opening argument, nota single plaintiffhas argued or suggested that BCRA’s
definition of electioneering communications is vague in any respect. This concession of BCRA’s clarity not
only forecloses any challenge to the statute on grounds of vagueness, but also establishes, as shown below,
that Buckley’s analysis is inapplicable in this instance.

The plaintiffs’ repeated statements that Buckley “permit(s] regulation only of express advocacy,”
McConnell Br. at 49, have no foundation in the pages of that decision. Plaintiffs embellish their argument
with partial quotations to Buckley to give the appearance of fidelity to the text, but in fact the Court’s stated
meaning was entirely different from that ascribed to it in plaintiffs’ briefs. For example, the ACLU des-

cribes Buckley’s “clear ruling” to be that “government ] regulation of expenditures can only reach ‘com-
munications that in express terms advocate the election or defeat of a clearly identified candidate....””
ACLU Br. at 13 (quoting Buckley, 424 U.S. at 44). In point of fact, the Court stated, in full: “We agree
that in order to preserve the provision against invalidation on vagueness grounds, § 608(e)(1) must be
construed to apply only to expenditures for communications that in express terms advocate the election or
defeat ofa clearly identified candidate for federal office.” Buckley, 424 U.S. at 44 (emphasis added). In
short, such bald assertions as “only words of express advocacy can be regulated,” McConnell Br. at 54,
and “the Court concluded that Congress . . . could only regulate expenditures that were for [express
advocacy],” ACLU Br. at 14, all fail for the simple reason that Buckley never said anything of the kind.

Again quoting selectively from the Court’s decision, plaintiffs insist that, in striking down §

608(e)(1), Buckley held that “the First Amendment requires” that speakers be permitted “to ‘skirt [] the

we >

restriction on express advocacy,” and to ““‘spend as much as they want”” on federal campaigns, “as the
price of preserving robust debate about candidates and issues.” McConnell Br. at 49 (quoting Buckley,

424 U.S. at 45); ACLU Br. at 14-15 n.5, Once again, plaintiffs have disengaged the Court’s remarks from

58


Officer (“CEO”) of Pfizer, amember of the exclusive “Team 100" soft money donor group,”! to discuss
an extension ofa lucrative tax credit. Mr. Barbour’s note requesting the meeting noted that the CEO who
had requested the meeting “‘is extremely loyal and generous.” See ODP0025-02456-02457 [DEV 70-Tab

48] (from RNC v. FEC, No. 98-CV-1207 (D.D.C.)); see also Investigation of Illegal or Improper Activi-

ties in Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-167 at 7971 (1998) [hereinaf-

ter Thompson Comm. Rep.] (Minority Views) (letter noting how RNC Chairman Barbour “escorted” the
CEO of Entergy, a Team 100 member, on appointments with legislators that were “very significant” in

legislation affecting Entergy and made the CEO “a hero in his industry”);

. Democratic Party committees have likewise facilitated access for its soft

money donors. See Gov’t Br. at 32-36, 75-78; see also Richard Briffault, The Political Parties And

Campaign Finance Reform, 100 COLUM. L. REV. 620, 650 (2000) (“Briffault IT”) (citing Wall Street
Journal report that “cash-for-access confabs on pending bills are business as usual in Washington”) (foot-
note omitted), As the Supreme Court has already concluded, “substantial donations turn the parties into
matchmakers whose special meetings and receptions give the donors the chance to get their points across

to the candidates.” Colorado II, 533 U.S. at 461.7

2! Membership in Team 100 requires a $100,000 threshold donation to the RNC, followed by subsequent $25,000
annual donations for the next three years. See “Team 100" (RNC Finance Committee website:

www.mefe.org/public/team100.htm);

» There also is no merit to plaintiffs’ contention that the government has no interest in preventing actual or
apparent corruption with respect to soft money donations to “minor” parties, such as the Libertarian Party, because such
candidates are rarely elected to federal office. See McConnell Br. at 37 n.11. There is no doubt that “minor-party
candidates may win elective office or have a substantial impact on the outcome of an election.” Buckley, 424 U.S. at 34-
35; see also id. at 70; Goland v. United States, 903 F.2d 1247, 1251 (9th Cir. 1990) (supporter of major party candidate
financed minor party candidate’s television appearance to criticize first candidate’s major party opponent). The Buckley
Court, therefore, refused to exempt minor parties, one of which was the Libertarian Party, 424 U.S. at 34 n.40, from the
contribution limits.

19


advertisement, which labeled the ballot initiative a “Republican scheme” and admonished listeners not to
“let the Republicans get away with it,” would make it “generic” campaign activity. In light ofthe obvious
impact that such general partisan appeals can have on the selection of candidates running in an imminent
federal election, however, there is nothing improper about Congress regulating the financing of expenditures
for such matters.

Similarly, plaintiffs’ contention that a state party committee could not use soft money to pay for the
printing and mailing ofa flyer that reads “Vote Republican; John Smith for Dogcatcher on November 6,"
RNC Br. at 27, is entirely incorrect. The printing and mailing of the flyer would not be GOTV activity
because it is not “individualized,” 11 C.F.R. 100.24(a)(3), particularly ifit is a “mass mailing” of over 500
pieces, see 11 C.F.R. 100.27. It is also not “generic campaign activity” because it mentions a specific state
candidate. See 11 C.F.R. 100.25. And because it only mentions a state candidate, it is not the type of
communication that constitutes “Federal election activity” under 2 U.S.C. 431(20)(A)(iii).

Plaintiffs also contend that BCRA’s definition of “Federal election activity” is unconstitutionally
vague, see CDP Br. at 32-33, focusing on the inclusion in the definition ofa “public communication that

refers to a clearly identified candidate for Federal office . . . and that promotes or supports a candidate for

that office, or attacks or opposes a candidate for that office.” 2 U.S.C. 431(20)(A)(iii) (emphasis added).

As explained in our opening brief, however, the underlined language is not vague; the statute uses ordinary

terms to further a clear and legitimate congressional purpose: preventing the use of soft money to promote
or attack candidates for federal office and thereby influence federal elections. Gov’t Br. at 113-14; see

148 Cong. Rec. $2143 (Mar. 20, 2002) (Sen. Feingold).

31


tions have been qualified by numerous exceptions.” United States v. Sun-Diamond Growers of Calif., 526

U.S. 398, 412 (1999).

3. BCRA’s segregated fund requirement permissibly applies only to
corporations and labor unions.

Plaintiffs also challenge BCRA on the ground that, under § 203, corporations and unions are
restricted in the ways that they may finance electioneering communications, while unincorporated entities
and wealthy individuals are not similarly restricted. See NRA Br. at38. What plaintiffs ignore, however,
is that § 203 applies exclusively to corporations and unions simply because it is an extension of 2 U.S.C.
441b, whose longstanding financing restrictions for independent campaign spending have always applied
exclusively to corporations and unions. See BCRA § 203 (amending § 441b to include electioneering
communications within its coverage). The Supreme Court has squarely rejected the contention that § 441b
is unconstitutionally underinclusive in this respect:

While business corporations may not represent the only organizations that pose th{e]

danger [of distorting the political process through aggregations of wealth amassed in the

economic marketplace], they are by far the most prominent example of entities that enjoy

legal advantages enhancing their ability to accumulate wealth. That Congress does not at

present seek to regulate every possible type of firm fitting this description does not under-

mine its justification for regulating corporations. Rather, Congress’ decision represents the

“careful legislative adjustment of the federal electoral laws, in a ‘cautious advance, step by

step,’” to which we have said we owe considerable deference.

MCEL, 479 U.S. at 258 n.11 (citations omitted); see also Austin, 494 U.S. at 666 (rejecting contention

that state statute modeled after 441b was unconstitutional by virtue ofnot applying to unincorporated

associations with the ability to accumulate large treasuries); NRWC, 459 U.S. at 209.'” Ofcourse, to the

"7 As to the Chamber’s argument that BCRA is underinclusive because the ads it regulates constitute “only
15% of all political advertising which includes ads sponsored by candidates and parties,” the argument ignores that
candidate and party ads are already effectively regulated by FECA insofar as those ads are paid for with contributions
to candidates and parties, and those contributions are in tun regulated by FECA (as supplemented by Title | of BCRA).
Moreover, to the extent that the Chamber attempts to play down the potential for corporate and union advertising to
influence federal races by comparing it to political advertising generally, we have already documented the significant
role corporate advertising has played in recent election cycles. Gov't Br. at 37-49. The comparison drawn by the

100


Thus, itisno surprise that courts have repeatedly sustained restrictions on the solicitation of contri-

butions to be used to influence elections. In NRWC, the Supreme Court held that a nonprofit corporation

had violated FECA § 44 1b by soliciting contributions to its federal PAC from individuals who were not
its actual “members.”*° The Court rejected the view of the court of appeals, which had cited Schaumburg
and had concluded that unless given “an elastic definition” the solicitation restriction might be unconstitu-
tional because solicitations to contribute to the group’s PAC “would neither corrupt officials nor coerce
members of the corporation holding minority views.” 459 U.S. at 206. The Court held that NRWC could
constitutionally be prohibited from soliciting contributions from anyone other than actual members of the
organization because § 441b was designed to avert corruption. See id. (“In this case, we conclude that
the associational rights asserted by respondent may be and are overborne by the interests Congress has
sought to protect in enacting [this provision].”). Moreover, in sharp contrast to the charitable organization
solicitation cases, where the Court explicitly declined to uphold broad restrictions on solicitation as prophy-
lactic measures, see, e.g., Schaumburg, 444 U.S. at 637; Riley, 487 U.S. at 800-01, the Court in NRWC
declined to “second guess a legislative determination as to the need for prophylactic measures where

corruption is the evil feared.” 459 U.S. at 210; see also Broadrick, 413 U.S. at 605-06 (upholding

prohibition on public employees “directly or indirectly, solicit[ing], receiv[ing], or in any manner be[ing]
concemed in soliciting or receiving any . . . contribution for any political organization, candidacy or other
political purpose”).

Similarly, in Blount, the D.C. Circuit upheld federal restrictions on the solicitation of contributions

to local candidates, explaining that “[a]Ithough the record contains only allegations [of quid pro quos], no

*© See 2 U.S.C. 441b (prohibiting corporations and labor unions from making contributions or expenditures in
connection with federal elections from their general treasuries, but permitting them to establish separate segregated
funds (sometimes referred to as “PACs”) to be used for such purposes, with contributions to those funds to be solicited
only from stockholders and certain personnel and their families).

36


accumulated large amounts of campaign funds prior to an election campaign, this provision makes it more
difficult for an incumbent even to qualify for increased contribution limits. In any event, on their face, the
millionaire provisions do not discriminate between incumbents and challengers, and plaintiffs have offered
no evidence that they will operate “invariably and invidiously” in favor of incumbents as aclass. See
Buckley, 424 U.S. at 33; see id. at 30-31 (contribution limits applicable “regardless of [a candidate’s]
occupation, ideological views, or party affiliation” do not violate equal protection “[a]bsent record evidence
of invidious discrimination against challengers as a class”).

Il. SECTION 318 OF BCRA, PROHIBITING CERTAIN POLITICAL CONTRIBUTIONS

AND DONATIONS BY CHILDREN UNDER THE AGE OF EIGHTEEN DOES NOT
VIOLATE THE FIRST AMENDMENT.

The Supreme Court has “consistently held that restrictions on contributions require less compelling
justification than restrictions on independent spending,” Shrink Missouri, 528 U.S. at 387 (quoting MCEL,
479 US. at 259-60), because restrictions on contributions, unlike restrictions on expenditures, do not

significantly interfere with associational and speech rights. Id. at 386-88. A restriction on contributions

“e ory

survives a First Amendment challenge ifit is “‘closely drawn’ to match a ‘sufficiently important interest.
Id. at 387-88 (quoting Buckley, 424 U.S. at 25, 30). As we explained in our opening brief, BCRA § 318
serves the important governmental interest in foreclosing evasion of the individual contribution limits, see
Gov’t Br. at 60-61, 199-202, and itis “closely drawn” to match that interest.'°° BCRA § 318 narrowly

applies to contributions to candidates and party committees, and leaves children free to contribute to other

types of political committees.’*’ Children may also “associate actively [with candidates and parties] through

©° BCRA § 318’s prohibition of contributions by children to candidates and party committees will be codified
as 2 U.S.C. 441k, not 2 U.S.C 324, as we mistakenly stated in our opening brief (p.199).

‘5! The plaintiffs repeatedly mischaracterize § 318 as banning all contributions by minors. See, e.g., McConnell
Br. at 93, 94,

121


Moreover, the fact that this provision applies exclusively to political parties— sophisticated partici-
pants in a highly regulated area*! — diminishes any potential vagueness concerns. See NLRB v. Gissel
Packing Co., 395 U.S. 575, 620 (1969) (rejecting vagueness challenge to National Labor Relations Act
prohibition against employer offers of benefit and threats of reprisals for engaging in union activities, since
“an employer, who has control over that relationship and therefore knows it best, cannot be heard to

complain that he is without guidance for his behavior”); see also Grayned v. City of Rockford, 408 U.S.

104, 112 (1972) (context of statute can eliminate vagueness). Moreover, political parties can eliminate any
uncertainty by requesting an advisory opinion from the FEC. As explained in our opening brief, see Gov’t
Br. at 95-96, the FEC is required by statute to provide a prompt response to a request for an advisory
opinion, see 2 U.S.C. 437f(a), and reliance on such an opinion “‘s a defense to criminal prosecution or civil
suit.” Martin Tractor v. FEC, 627 F.2d 375, 385 (D.C. Cir. 1980). Political parties also can easily
prevent any uncertainty simply by using hard money to fund any questionable communication that references
a clearly identified candidate for federal office.”

A political party that forgoes those options, however, and instead elects to test the outer limits of

6

the definition by “engaging in ‘brinkmanship,”” cannot be heard to complain if it thereby “‘overstep[s] and
tumble[s] (over) the brink.” See Gissel Packing, 395 U.S. at 575 (quoting Wausau Steel Corp. v. NLRB,

377 F.2d 369, 372 (7th Cir. 1967)); see also United States v. Wurzbach, 280 U.S. 396, 399 (1930)

(Holmes, J.) (“Wherever the law draws a line there will be cases very near each other on opposite sides.

+" See Colorado II, 533 U.S. at 453 (“[T]he party marshals [the power to speak] with greater sophistication than
individuals generally could.”); Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line, 77 TEX. L. REV.
1751, 1792 (1999) (“Briffault I”) (“[A]s skilled campaign professionals, the major political parties are in the best position
to conform their activities to legal requirements.”).

* Section 431(20)(A)(iii) does not determine whether the party committees can make such communications, but
only how the communications must be financed. Thus, the statutory language at issue is relevant only to determine
whether public communications by state or local party committees that “refer to a clearly identified candidate for Federal
office” constitute “Federal election activity” and, therefore, must be financed with hard money (or a combination of hard
money and Levin funds).

32



3. No lower court precedent precludes anti-corruption legislation such
as BCRA’s regulation of electioneering communications.

Although the Supreme Court’s jurisprudence provides no basis for plaintiffs’ view that Congress
may regulate only express advocacy consistent with the First Amendment, plaintiffs claim to have founda
“mountain” of supporting precedent, McConnell Br. at 54, in decisions by the courts of appeals. Id. at 51-
53. Plaintiffs have misconstrued these cases, and none of them, in any case, can change the fact that
Buckley did not limit congressional regulation of independent campaign spending to express advocacy.
Asan initial matter, the lower courts have repeatedly and accurately described Buckley’s express
advocacy test as a saving construction of a potentially unconstitutional statute, not itselfa standard of

constitutional law. See Gov’t Br. at 150 (citing cases); see also FEC v. Colorado Republican Fed.

Campaign Comm., 59 F.3d 1015, 1020(10th Cir. 1995), rev’d on other grounds, 518 U.S. 604 (1996);

Clifton v. FEC, 114 F.3d 1309, 1311 (1st Cir. 1997). For their part, plaintiffs string-cite cases froma
number of courts (the D.C. Circuit is not among them) for the asserted proposition that “[t]he federal courts
have been unanimous in rejecting the FEC’s efforts to ignore Buckley and MCFL.” McConnell Br. at 52.
Plaintiffs’ characterization of these decisions serves only to cloud the fact that these cases offer no support
for plaintiffs’ legal position.

In Right to Life of Duchess Cty., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998), and Maine

Right to Life, Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd 98 F.3d 1 (1st Cir. 1996) (per curiam)
(adopting district court’s opinion) (“MRTL”), the courts rejected the FEC’ regulatory definition of express
advocacy insofar as it includes communications that “[wJhen taken as a whole... . could only be interpreted
byareasonable person as containing advocacy of the election or defeat of one or more clearly identified
candidate(s)” See MRTL, 914 F. Supp. at 10. They based their decisions on the conclusion that this

definition of express advocacy “is not authorized by FECA . . . as that statute has been interpreted” by the

61


in any particular calendar year and, thus, answers the critical question at the heart of any analysis of
BCRA’s potential overbreadth, i.e., the amount of genuine issue advocacy that BCRA would subject to
regulation.“ The small percentage of ads that would be affected by BCRA under this proper analysis—
6.1% in 1998 and 3.14% in 2000® — is insufficient to support ajudgment that BCRA is substantially, and
thus, facially, overbroad.”” See Gov’t Br. at 161.

The 2000 formula, on the other hand, as an empirical matter, combines both genuine issue and
electioneering advertisements run within the 60 days prior toa federal election in its denominator, resulting
inacalculation that will vary enormously depending upon the volume of candidate-focused ads in any given
election year. Thus, if, hypothetically, in a non-competitive federal election, no electioneering ads were
aired within 60 days of the election that mentioned a federal candidate, but a single genuine issue ad with

those characteristics was aired, the measurement of BCRA’s impact using the 2000 formula would yield

°§ As we have explained, and as plaintiffs’ expert appears to concede, the 1998 formula overestimates the impact
of BCRA on genuine issue ads, because the denominator includes only the number of genuine issue ads run during a
single calendar year — not an entire election cycle — in which federal elections were held. If the calculation were to
include data regarding genuine issue ads aired in non-election years but during the same election cycle — whether it be
two years, four years, or six years — the estimates would be significantly lower, since none of these non-election year
ads would be subject to regulation under BCRA. See Gov’t Br. at 161 n.113; Gibson Expert Rep. at 38 [1 PCS/ER 00001]
(“Why use January 1, 1998, as the starting date for the total pool of issue ads (i.e., the denominator)? Why not include
ads from December 1997, or even the entire election cycle beginning in November 19962”).

© As Dr. Krasno described in his expert report, he made some minor adjustments in his re-analysis of the 1998
data set, such that the estimate of BCRA’s potential overbreadth that is correctly derived from that data set is 6.1%. See
Krasno & Sorauf Expert Rep. at 60 n.142 & App.

® Tt is important to note that all calculations of the potential effect of BCRA generated by analyzing the 1998
data set are affected by a large number of airings of just one ad by the AFL-CIO, which named different senators and
aired in multiple markets a total of 2,808 times. Thus, because some of the mentioned Senators were candidates for
election in the districts in which the ad was aired, several airings of the ad were determined to be genuine issue ads that
would have been subject to regulation had BCRA been in effect. See Krasno & Sorauf Expert Rep. App. This
advertisement, referred to by the Buying Time authors as “HMO Said No”

that merely instructed viewers to call their (unnamed) Senators, a form of advertising that would not
be subject to regulation under BCRA. See . Had all airings of this ad been of the
generic kind, and, thus, been considered unregulated, only 2.2% of all genuine issue ads aired in 1998 would have been
subject to BCRA. See Krasno & Sorauf Expert Rep. App. (Spreadsheets)

71


by a federal candidate). There are no such restrictions on contributions of hard money by national parties
to state and local candidates.

Moreover, contrary to plaintiffs’ suggestion, see McConnell Br. at 30, the FEC’s regulations
expressly permit joint fundraising ofhard money by state and national party committees in specified circum-
stances, See 11 C.F.R. 102.17, 300.31(e)(1), (f). State and local party committees are free to engage
in joint fundraising with each other of hard money and soft money. See 11 C.F.R. 102.17. While a
committee can only use money it raises itself for any federal election activities it chooses to conduct under
the Levin Amendment option, there is no restriction in Title Ion raising money jointly, or on transferring
hard or soft money between state-level party committees.

State parties also have broad latitude to associate with federal candidates in connection with their
fundraising activities. The statute explicitly permits federal candidates and officeholders to raise soft money
that is not from corporate or union treasuries for state parties in amounts up to the equivalent federal limits.
See 2 U.S.C. 441i(e)(1)(B). Thus, with that limitation, Senator McConnell is free to continue to send
letters soliciting funds for state and local party committees. See McConnell Br. at 23. Moreover, federal
candidates and officeholders are free to participate in fundraising events of state parties, and to speak
“without regulation or restriction” during such events. 67 Fed. Reg. 49,108 (July 29, 2002); see 2 U.S.C.
441i(e)(3); 11 C.F.R. 300.64.2°

The right to associate is not, however, a freedom to make or receive unlimited contributions of

money. “[I]tis clear that ‘neither the right to associate nor the right to participate in political activities is

absolute.’” Buckley, 424 U.S. at 25 (citation omitted). Indeed, the Court in Buckley recognized that

*° Thus, if the Yolo County Bean Feed is a fundraising event, see CDP/CRP Br. at 3-4, the statute would permit
the local congressman to attend, speak, and be a featured guest, 2 U.S.C. 441i(e)(4), and under the FEC’s regulations he
or she could speak at the event “without restriction,” 11 C.F.R. 300.64(b). The party could also announce his or her
attendance in its invitations. Id. 300.64(a).

26


The plaintiffs also complain that the requirement in § 213 that state-level and national committees
of the same party make a common choice between these options “forces party committees to associate
with each other.” McConnell Br. at 87-88 (emphasis in original). We have shown in our opening brief,
that it is unclear whether state-level and national party committees must make a single choice together, but
even if they must there is no violation of associational freedoms. Gov’t Br. at 181-82. To the contrary,
the statute merely recognizes an association already established by these committees by forming acommon
political party; only committees that are “established and maintained” by the official state or national party
committee are considered a single political committee under this provision. FECA for decades has treated
all other similarly affiliated groups of political committees as a single committee subject to a shared limit on
contributions and coordinated expenditures. See 2 U.S.C. 441a(a)(5).

Indeed, plaintiffs themselves describe at length the extensive integration of their national and state
party committees, both in their governance and in their coordinated approach to campaign expenditures.
See RNC Br. at 25-27, 37-44; CDP/CRP Br. at 4-7, 13-14, 31, 35, 37-42. For instance, RNC de-
scribes itself as ‘a federation of state parties,” RNC Br. at 37, explains that its component entities “work

closely together on a daily basis,” and states that the party’s “various elements . . . associate with one

another and coordinate their activities.” RNC Br. at 39; see also CDP/CRP Br. at 39 (“[T]he political

parties are designed as representative bodies to have a great deal of ‘overlap’ in their membership and
leadership at the national, state, and local levels.”).

Further, a “close working relationship . . . exists among representatives from the national, state, and
local Republican Party committees, as well as representatives of key national, state, and local Republican
candidates, in the creation and implementation of ‘Victory Plans,” RNC Br. at 39-40, and the Democrats

havea similarly close working relationship in conducting their “Coordinated Campaigns.” CDP/CRP Br.

112


tions provisions were enacted in response to the widespread use of “issue advocacy” to evade FECA’s
restrictions on corporate and union campaign spending as well as its disclosure requirements. See Gov’t
Br. at 37-52. Such evasion was thoroughly documented in several studies relied upon by Congress and
also in the Thompson Committee Report, and the compelling interests in remedying such evasion were cited
throughout the congressional debate over BCRA. See id. at 50-51.!* BCRA greatly reduces such
evasion; it need not eliminate every vestige of it. See Mariani, 212 F.3d at 774 (“The requirement that the
regulation alleviate the harm in a direct and material way is not a requirement that it redress the harm

completely.”). Accordingly, as explained in detail below, plaintiffs’ underinclusiveness challenges fail.

1. BCRA permissibly targets ads run within 60 days of a general elec-
tion or 30 days of a primary.

Plaintiffs first challenge BCRA as underinclusive on the ground that it regulates only ads aired within

60 days of a general election or 30 days ofa primary, while leaving ads falling outside these windows

'* BCRA’s legislative history demonstrates that Title II was enacted to restore vitality to the disclosure
requirements and financing restrictions on corporate and union independent campaign spending. See Gov’t Br. at 49-52;
see generally 147 Cong. Rec. S3033-48, 3070-76 March 28 & 29, 2001) (debate on Title II during the Senate’s consideration
of an amendment offered by Senator DeWine, which would have struck Snowe-Jeffords in its entirety); cf. Buckley, 424
U.S. at 30-33 (rejecting the argument that FECA’s contribution limits were incumbent protection legislation). The NRA
presents thirty pages culled from the Congressional Record, dating as far back as 1996, as proof that BCRA’s facially
neutral text is an attempt to “insulate” incumbent politicians “from disagreement by the governed.” NRA Br. at 5. See
NRA App. at 54-82. Since the earliest days of the republic, however, courts have refused to infer an unconstitutional
motive from the scattered statements of individual legislators. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130(1810)
(Marshall, C.J.). “Inquiries into congressional motives or purposes are a hazardous matter.” United States v. O’Brien,
391 U.S. 367, 383 (1968). The Court will not invalidate legislation “which could be reenacted in its exact form if the same
or another legislator made a ‘wiser’ speech about it.” Id. at 384. See also Bryan v. United States, 524 U.S. 184, 196 (1998)
(statements of bill opponents “are no authoritative guide to the construction of legislation”). In Buckley, the Court
upheld contribution limits even while acknowledging those limits were, in part, enacted for impermissible motives. The
Buckley Court found three congressional purposes for limits on individual contributions to campaigns: (1) the prevention
of corruption and the appearance of corruption; (2) “mut[ing] the voices of affluent persons and groups in the election
process” and (3) reducing the cost of campaigns so as to “open the political system more widely to candidates without
access to sources of large amounts of money.” 424 U.S. at 25-26. The Court determined that the second purpose of the
contribution limits, dampening the voice of wealthy individuals, is “wholly foreign to the First Amendment.” Id. at 49.
Had the Supreme Court followed the NRA’s vision of legislative analysis, then the contribution limits enacted in FECA
should have been ruled unconstitutional. The opposite happened. The government’s legitimate and compelling interest
in reducing corruption and the appearance of corruption was all the Court needed to uphold the statute. Id. at 26. The
same interests require that BCRA be upheld.

96


holdings in both Austin and MCEL, the NRA asserts that these cases “draw a line between advocacy
organizations that fund their speech with individual dues and contributions, and business or trade associa-
tions that fund their speech largely with contributions from business corporations,” NRA Br. at 18. To the

contrary, as we explained, Gov’t Br. 164-67, Austin reaffirmed MCFL’s holding that unless a nonprofit

corporation shares the “three characteristics” of MCFL that were “essential” to the Court’s holding in
MCEL, the “Constitution does not require that it be exempted from the generally applicable provisions”
of §441b. 494 U.S. at 662 (emphasis added). As we also explained, Gov’t Br. 167 & n.118, the MCFL
exemption applies to electioneering communications under BCRA to the same extent as it applies to
independent expenditures under FECA. Thus, anonprofit corporation that qualifies for the MCFL exemp-
tion can make unlimited independent expenditures and electioneering communications from its general
treasury funds.

To the extent that the NRA describes its own operations and the FEC’s regulation in an effort to
argue that BCRA’s regulation of electioneering communications is overbroad, see NRA Br. at 17, the
argument is foreclosed by MCEL, Austin, and the Court of Appeal’s decision in FEC v. NRA, 254 F.3d
173 (D.C. Cir. 2001). The NRA’s arguments on these points, NRA Br. at 17-24, rest entirely on the
nature of its organization, not on the nature of the campaign spending regulated by BCRA’s definition of
electioneering communications. In other words, all of these arguments about NRA’s corporate structure
and mission would apply equally to FECA’s regulation of independent expenditures, and have already been

ejected in that context.”

'® Despite the fact that the NRA had entered into a stipulation, adopted by this Court by Order of August 13,
2002, that any as-applied challenge it might bring against BCRA would not be litigated at this time, its brief, see NRA
Br. at 18-24, describes at length why it believes the NRA should qualify for the MCFL exemption, or more precisely, its
own greatly expanded version of the MCFL exemption. Pursuant to the Order of August 13, the parties were not
permitted to engage in discovery concerning any as-applied challenge the NRA might bring. Defendants have, thus,
had no opportunity to discover facts that might refute, inter alia, NRA’s contention about its profits derived from
business activities. See, e.g., NRA Br. at 19 n.12. In accordance with the Court's Order, therefore, we will not digress

105


amendments are pending.”); see also T & S Products, Inc. v. U.S. Postal Service, 68 F.3d 510,512 (D.C.

Cir. 1995) (no standing where future agency action may moot the issue of plaintiff's alleged injury).!1%
Even ifthe FEC’s regulations were to require some reporting of electioneering costs before an ad

is broadcast, such requirements would not be unconstitutional. Clearly they would not constitute a “prior

restraint,” McConnell Br. at 55, since no reporting requirement, let alone the mere reporting of advertise-

ment production costs, prevents anyone from speaking. The reports themselves would not have to reveal

the specific content of the ads, yet they would perform an important function in informing the public about

various candidates’ supporters before election day.'' Moreover, current FECA § 431(9)(A)(ii) includes

within the definition of “expenditure” a “written contract, promise, or agreement to make an expenditure,”
so BCRA breaks no bold new ground in requiring the disclosure of financial obligations prior to their final
execution. See also 11 C.F.R. 104.11(b).

I. BCRA’S COORDINATION PROVISIONS ARE CONSTITUTIONAL.

A. The Choice Afforded Political Parties Under BCRA § 213 Is Constitutional.

"5 Noting that the FEC’s currently proposed regulations would moot its challenge to BCRA’s disclosure
provisions, the AFL-CIO suggests that its challenge should be entertained nonetheless because “no party knows how
this rulemaking will conclude.” Precisely because the FEC has not concluded its rulemaking, however, plaintiffs’ claims
of injury are speculative. The case to which plaintiffs attempt to analogize, Citizens for Responsible Government v.
Davidson, 236 F.3d 1174, 1192-93 (10th Cir. 2000), is not to the contrary. In that case, the court held that a state’s mere
representation in the course of litigation that it would not construe the challenged statute to proscribe plaintiffs’ conduct
did not eliminate the plaintiffs’ standing. The court specifically predicated its holding on the fact that it was “aware of
no... administrative regulations” reflecting the state’s representation. Id. at 1193.

"8 The cases cited by plaintiffs are not to the contrary. See AFL-CIO Br. at 15-16. In Citizens for Responsible
Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1197 (10th Cir. 2000), the court invalidated a 24-hour
notice requirement because it believed “such immediate notice” was unduly burdensome — claim not raised by plaintiffs
here — and would not be “compromised by a more workable deadline.” Here, however, given that electioneering
communications by definition occur within a very tight timeframe — 30 or 60 days before primary or general elections —
the public benefits in learning about candidates’ supporters prior to voting outweigh any burden on those paying for
such communications. Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981), is also not on point because it concerned
an advance notice requirement for pamphleteering and picketing; it presented an absolute bar to speech that did not
involve candidate elections. Id. at 1247.

110


Dated: November 20, 2002

As to the submissions of the Governmental
Defendants:

ROBERT D. McCALLUM, JR.
Assistant Attomey General

ROSCOE C. HOWARD, JR.
United States Attorney

SHANNEN COFFIN
Deputy Assistant Attorney General

EPH H. T d
‘HEODORE C. HIRT
JAMES J. GILLIGAN
TERRY M. HENRY

RUPA BHATTACHARYYA
ANDREA GACKI

MARC KESSELMAN
SERRIN TURNER
MICHAEL RAAB

DANA J. MARTIN
Attorneys

U.S. DEPARTMENT OF JUSTICE
P.O. Box 883

Washington, D.C. 20044
(202) 514-3358

Counsel for Defendants United States of
America, John Ashcroft, Attorney General of the
United States, the U.S. Department of Justice,
and the Federal Communications Commission

Respectfully submitted,

As to the submissions of the Governmental
Defendants:

Xi EE
LAWRENCE H. NORTON

General Counsel

COMBE

RICHARD B. BADER (D.C. Bar #911073)
Associate General Counsel _

+E WoASe [|

STEPHEN HERSHKOWITZ \.
(D.C. Bar #282947) :
Assistant General Counsel

DAVID KOLKER (D.C. Bar #394558)
Acting Assistant General Counsel
ROBERT W. BONHAM III
VIVIEN CLAIR

HOLLY J. BAKER

COLLEEN T. SEALANDER
HARRY SUMMERS
BENJAMIN A. STREETER III
GREG MUELLER

WILLIAM SHACKELFORD
KEVIN DEELEY

LEIGH G. HILDEBRAND
BRANT LEVINE

MICHELLE ABELLERA
MARK GOODIN

Attorneys

FEDERAL ELECTION COMMISSION
999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

Counsel for Defendant Federal Election
Commission


Paul M. Dodyk

Christopher J. Paolella

Peter Ligh

CRAVATH, SWAINE & MOORE
Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

Fred Wertheimer

Lexa Edsall

DEMOCRACY 21

1825 Eye Street, N.W., Suite 400
Washington, DC 20006

Trevor Potter

Glen Shor

THE CAMPAIGN AND MEDIA LEGAL CENTER
1101 Connecticut Ave., N.W.,

Suite 330

Washington, DC 20036

Alan B. Morrison

PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, N.W.
Washington, DC 20009


TITLES Il] AND V: CLAIMS AGAINST THE FCC

PRESENTATION BY THE UNITED STATES DEFENDANTS

I. SECTION 305 OF BCRA IS CONSTITUTIONAL.

As discussed in our opening brief, Gov’t Br. at 215-16, plaintiffs’ challenge to § 305 is not
justiciable. Plaintiffs do not even address the issue of standing or ripeness in their opening brief, let alone
discharge their burden of showing that a concrete case or controversy exists with respect to § 305. Even
assuming that plaintiffs could satisfy standing and ripeness requirements, their challenge to § 305 fails on
the merits. The disclosure required under § 305 provides voters with important additional information to
consider in evaluating candidates, '“° and requiring the disclosure to be made with the candidate’s face and
voice ensures that this vital information is transmitted to viewers and listeners in a way that sufficiently distin-
guishes it from the remaining parts of the broadcast so that the information is communicated effectively.

As explained in our opening brief, see Gov’t Br. at 211-13, 219-20, § 305 is consistent with the
Jong history of federal regulation of political broadcasts, and imposes less intrusive requirements than many
existing provisions. See 47 U.S.C. 312(a)(7), 315; 47 C-F.R. 73.1212(d)(e), 73.1940-1944, 76.205-
76.206, 76.1611, 76.1701. Indeed, the courts have recognized that Congress may validly regulate access
to broadcast time by candidates for public office. See CBS v. FCC, 453 U.S. 367 (1981) (upholding
“reasonable access” requirement); Branch v. FCC, 824 F.2d 37, 48-50 (D.C. Cir. 1987) (rejecting
challenge to provision requiring broadcasters to provide “equal time” to legally qualified candidates).
Section 305 is also consistent with the long history of federal disclosure requirements imposed on

broadcasters and cable television systems. See 47 C.F.R. 73.1943; 47 C.F.R. 76.1701(a)-(c). The

‘ Section 305 requires candidates that wish to receive the “lowest unit charge” for their political broadcasts
either to certify they will not make any direct reference to their opponent or to include a short and plain statement at the
end of the broadcast referring to their opponent acknowledging their approval thereof. The statute thus ensures that
“the candidate’s sponsorship [is] absolutely clear” in the broadcast. 147 Cong Rec. $2693 (Mar. 22, 2001) (Sen. Collins).

128


Just as labor and business have fought over control of Congress in the elections since 1996, so, too,
the NRA fought for control of the White House in 2000.*> Any review of the NRA’s ads must begin with
NRA Executive Vice President Wayne LaPierre’s repeated public statements that the NRA in 2000 had
“no more important political objective” than “helping to assure Al Gore was defeated,” LaPierre Dep. Tr.

(Sept. 3, 2002) at 84; see also id. at 55, 85-86, 95, and that the NRA “spent what it took to defeat Al

Gore, which amounted to millions more than we had on hand,” id. at 98; see also id. at 93-94, 96, 101-

113.

Inan effort to support its claims of overbreadth, the NRA makes reference to anumber of televi-
sion broadcasts, but the only broadcasts the NRA cites that actually were run within BCRA’s window, and
that it does not admit were animated by electioneering intent, are four half-hour “infomercials” aired in
2000: “California,” “It Can’t Happen Here,” “MMM,” and “Tribute.” These infomercials, the NRA
contends, illustrate the burden BCRA would place on its speech, since they would have fallen within
BCRA’s scope despite containing only incidental references to federal candidates, mainly presidential
candidate Al Gore. NRA Br. at 25-32. These denials of electioneering intent, however, do not square
with the factual record.

The references to Mr. Gore in the four cited infomercials, while limited, make sense only in the
context of the election. For example, the electioneering tenor of references to Mr. Gore in the “Tribute”
infomercial is self-evident: Charlton Heston is shown forebodingly threatening that the rise of the NRA.
“spells very serious trouble for aman named Gore.” Heston ends his remarks by defiantly clenching a

musket over his head declaring:

°S Often the NRA’s advertising efforts would be matched by groups supporting additional gun control laws
such as Handgun Control, Inc. See, e.g., Gov't Br., App. A, Tab 1, Nos. 16-18.

89


of Police v. United States, 173 F.3d 898, 904 (D.C. Cir. 1999). Here, there can be no question that
Congress enacted Title I to prevent the appearance and reality of corruption presented by unregulated
contributions to political party committees. See Gov’t Br. at 71-86; see also supra at 14-22.°!
Plaintiffs contend that special interest groups present the same dangers of corruption as political
parties, citing evidence that interest groups have attempted to strike quid pro quo arrangements and curry
favor with federal candidates and officeholders and that federal candidates and officeholders make appear-
ances at fundraising events for interest groups. RNC Br. at 17, 20, 64.” But unlike an interest group,
which may have some influence with a few particular candidates, a political party exerts tremendous power
and influence over all candidates and officeholders who belong to that party. Unlike interest groups,
political parties control the processes through which candidates are nominated and placed on the ballot.
They also control “the resources crucial to subsequent electoral success and legislative power” once a
candidate is elected. D. Green Expert Rep. at 7; see Gov’t Br. at 71-75 (explaining the various incentives
that federal candidates and officeholders have to provide special access and consideration to large party

donors); see also Briffault II, 100 COLUM. L. REV. at 651-52 (describing “potential for large donors to

5! The underinclusiveness of a statute may trigger concern where the exemptions from the challenged statute
“represent[s] a governmental ‘attempt to give one side of a debatable public question an advantage in expressing its
views to the people,” or where the statute, “through the combined operation of a general speech restriction and its
exemptions” constitutes an attempt “to select the ‘permissible subjects for public debate’ and thereby to ‘control . . .
the search for political truth.’” City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (citations omitted). But no such concerns
are present here. The statutory provisions at issue are entirely neutral as to content and viewpoint. Title I’s regulation
of political parties simply reflects the special dangers of corruption posed by the unique relationship political parties
have with federal candidates and officeholders, and the special dangers of corruption that party fundraising presents.

* Plaintiffs reference the fact that federal candidates or officeholders have made occasional appearances at
fundraising events for interest groups. RNC Br. at 64, But those occasional appearances simply do not compare to the
opportunities that party committees have provided to large donors, as a regular component of their fundraising
operations, to discuss substantive issues with officeholders in small settings. See Mann Expert Rep. at 29 [DEV 1-Tab
1]; Gov’t Br. at 34-35, 75-78;

49


cated the government’s interest in preventing the reality and appearance of corruption the political process.
The provisions in each of those cases were purportedly aimed at preventing fraud by imposing certain
solicitation restrictions where fundraisers failed to limit their fees or expenses in accordance with specified
limits. In each case, however, “there [was] no nexus between the percentage of funds retained by the
fundraiser and the likelihood that the solicitation [was] fraudulent.” Riley, 487 U.S. at 793.

Here, by contrast, BCRA’s solicitation restrictions directly advance the government’s interest in
preventing opportunities for actual and apparent corruption,” and courts have repeatedly sustained restric-
tions aimed at promoting that interest. Indeed, the Supreme Court has accorded great deference to
legislative judgments when the integrity of candidate elections is at issue, notwithstanding the First Amend-
ment interests at stake. See, e.g., NRWC, 459 U.S. at 210 n.7 (noting that First Nat’] Bank of Boston
v. Bellotti, 435 U.S. 765 (1978), “struck down a prohibition against corporate expenditures and contribu-
tions in connection with state referenda,” but “pointed out that in elections of candidates to public office,
unlike in referenda on issues of general public interest, there may well be a threat of real or apparent corrup-
tion’); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 352 n.15 (1995) (“The risk of corruption
perceived in cases involving candidate elections . . . simply is not present in a popular vote ona public
issue.””) (citation omitted); id. at 356 (“The [FECA], at issue in Buckley, regulates only candidate elections,
not referenda or other issue-based ballot measures” and in “candidate elections, the Government can
identify a compelling state interest in avoiding the corruption that might result from campaign expendi-

tures.”).

* BCRA prohibits only those forms of solicitation that Congress believed to present a serious risk of corruption
Thus, national party committees are free to solicit hard money for themselves and state-level party committees as they
see fit. State-level committees are free to solicit both hard and soft money for themselves and (with the exception of the
Levin Amendment) for other committees as well.

35


In another hotly contested election, the U.S. Chamber of Commerce aired an advertisement,
entitled “UT/Matheson Can’t Decide” in the 2nd Congressional District of Utah during the 2000 election.
See Chamber/NAM Br. at 5. The Chamber correctly points out that this ad was considered “genuine” by
the Buying Time 2000 coders, and, indeed, when viewed out of context, the ad appears neutral in the sense
that it says that Jim Matheson has not yet decided between two competing prescription drug plans, and that
he should not pick “the big government plan.” This ad, however, was run exclusively between November
1, 2000, and November 6, 2000. Knowledge of the issue environment of the campaign in which it ap-
peared is also useful in divining its true purpose.” The Chamber claims that its ads were intended to
influence upcoming legislative votes, see Chamber/NAM Br. at 1, but at the time this ad was run, Congress
was not in session, having adjourned so Members could campaign, and Matheson was not a Member of
Congress in any event; he was a challenger in an open seat race that the Cook Report labeled a toss-up.**
The Chamber also fails to explain that Matheson was a Democrat ina very conservative district, and that
his opponent’s strategy, and the Republican party’s strategy, was to portray him as a fence-sitting Demo-
crat trying to masquerade as a Republican.” Thus, the ad’s tag line— “Tell Matheson to make a decision.
This issue is too important to ignore.” — played to the overall campaign theme that voters should elect
someone who is decisive and who shares their values.

Like most “issue ads,” except for those that focus exclusively on the personal character traits of
candidates, “Debbie Death Tax,” “Thanks,” “Who,” “Prescription Drugs,” “Call Debbie,” and “Matheson
Can’t Decide” all contain at least some reference to a genuine issue. The issue, however, is merely the lens

through which the advertisement attempts to portray the candidate:

; Bailey Decl. {| 6-7, 10 [DEV 6-Tab 2].
* Cook Report (10/25/00), at 71 [DEV 38-Tab 17 at INT 15509].

* Almanac of American Politics 2002, p. 1536; see also App. C., Tab 4 (various storyboards of other
advertisements aired in the 2000 Matheson-Smith race in Utah’s 2nd Congressional District).

84


theact.”). Here, the FEC’s regulations supply such a narrowing construction of BCRA, and plaintiffs’
request that the Court reach out to address their broader construction of BCRA contravenes that “cardinal
principle.”

Thus, when viewed in the proper context, itis clear that BCRA’s soft money provisions havea
much more limited impact than plaintiffs contend. To the extent the provisions incidentally impact state and
local elections, Congress clearly was acting within its broad constitutional authority over federal elections
when it enacted Title I’s soft money provisions, not under any power reserved to the states. As the
Supreme Court recognized in Buckley, “{t]he constitutional power of Congress to regulate federal elections
is well established.” 424 U.S. at 13. The Federal Elections Clause, “Article I, § 4 of the Constitution[,]
grants Congress the power to regulate elections of members of the Senate and House of Representatives.”
Id. at 13 n.16. That provision provides that “(t]he Times, Places, and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but the Con-
gress may at any time by Law make or alter such Regulations, except as to Places of choosing Senators.”
U.S. CONST. art. 1 § 4 (emphasis added).'° Although Article I only refers to elections for the House and
Senate, the Supreme Court has also found broad congressional power to legislate in connection with the
elections of the President and Vice President. Buckley, 424 U.S. at 13n.16, 132.'' Indeed, in Burroughs

y. United States, 290 U.S. 534 (1934), the Supreme Court rejected a Tenth Amendment challenge to an

° Furthermore, plaintiffs’ reliance on broader interpretations of BCRA in the discovery responses or depositions
of Defendant-Intervenors, or opinions of non-lawyer expert witnesses in this case, see, e.g., CDP/CRP Br. at 19;
McConnell Br. at 18-19; is misplaced to the extent they are inconsistent with the FEC’s legally determinative regulations.
The positions of Defendant-Intervenors in this litigation are not binding on the agencies charged with implementing and
enforcing FECA.

'° In addition, the Necessary and Proper Clause, U.S. Const. art. I § 8 cl.18, authorizes Congress “[t]o make
all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” See Buckley, 424 U.S.
at 60, 132; Oregon v. Mitchell, 400 U.S. 112, 120 (1970).

"' See also Oregon v. Mitchell, 400 U.S. at 124 (opinion of Black, J.); United States v. Classic, 313 U.S. 299 (1941).



Moreover, the objective of BCRA Title lis not to regulate state elections. The object of the law
is federal elections and, more particularly, the opportunities for corruption of federal candidates and
officeholders. The power of Congress to take necessary and proper steps to minimize the possibility of

corruption of federal officials has long been recognized. See, e.g., Burroughs v. United States, 290 U.S.

534, 545 (1934).

As discussed in detail below, plaintiffs’ broad assertions about activities that would be prohibited
under BCRA are based largely upon mischaracterizations of the statute. Title I simply reinforces the
existing contribution limits and restrictions by prohibiting national political parties from receiving funds
beyond FECA’s regulation, and by requiring that state and local parties finance their “Federal election
activity” either with funds raised pursuant to FECA’s requirements or with Levin funds. National and state
parties still can undertake precisely the same activities as before, so long as they are financed from contri-
butions complying with the applicable federal contribution restrictions. Those activities might (in some
cases) also be intended to influence state and local elections held in conjunction with federal elections, but
that is not why Congress has regulated them, and the effect on such state elections therefore is purely
incidental.

Moreover, since 1990, FEC regulations have required committees that chose to establish federal
accounts to allocate a portion of their “[a]dministrative expenses” (11 C.F.R. 106.5(a)(2)(i)) and expenses
for “[g]eneric voter drives,” which included “voter identification, voter registration, and get-out-the-vote
drives, or any other activities that urge the general public to register, vote or support candidates of a
particular party or associated with a particular issue, without mentioning a specific candidate.” 11 C.F.R.
106.5(a)(2)(iv). National party committees were required to allocate at least 65% of these expenses to
federal accounts during presidential election years, and at least 60% in non-presidential election years. 11

C.F.R. 106.5(b), (c). For state and local parties, the allocation was determined by the proportion of

5


'f, McConnell Br. at 69.34.

* The McConnell plaintiffs complain that Buying Time 2000, as well as defendants’ experts, should have treated
these ads as genuine issue ads rather than electioneering ads, McConnell Br. at 69 n.34.

°* The ads sponsored by Americans for Limited Terms (“AFLT”), McConnell Br. at 62; McC-028, 032, 034; were
similarly conceived, designed, and run to elect or defeat a candidate for federal office. Each of these three ads declares
that a specific candidate has refused to sign a term limits pledge, and then ties this refusal to the candidate’s submission
to special interests and antipathy to the issues which local voters care about. They appeared within a few weeks of
election day, months after the candidates had refused to sign the term limits pledge and, except for one ad that aired only
‘once, ran until the day before the election, in many cases, in highly competitive elections. See Krasno Resp. to Professor
Gibson's Supp. Rep. at 4. One of the incumbents targeted by AFLT, Merrill Cook, explains that the organization was
blatant in its electioneering intent: “Huey Ridge [of AFLT] called me up two months ago and said if I didn’t sign the
pledge, he’d make sure there was an (advertising) campaign run against me in the district that would cost more than
$100,000. I told him to go to h---.” See Bob Bernick, Jr., Cook Does Not Get the Endorsement of U.S. Term Limits, Deseret
News, Oct. 14, 1998, at Bl. Indeed, AFLT made good on its promise to run anti-Cook ads, even though Cook was a
second term Congressman, and there were hundreds of members who had been in office significantly longer.

88


Plaintiffs contend that some of defendants’ experts and witnesses support the view that the public
perception of corruption or undue influence is inaccurate. See RNC Br. at 17. Yet when Dr. Mann, for
example, stated that widespread public concern over congressional ethics (specifically, Congress’s policing
of its own Members) was unfortunate and inaccurate, he also added: “But accurate or not, the public view
is important, and it is clearly influenced by the way in which Congress fulfills its constitutional mandate to
judge its own members and employees.” Mann Cross Tr. (Oct. 11, 2002) Ex. 5 at 7. More important,
Congress is entitled to address the public perception of corruption, whether or not that perception reflects
reality. “Leave the perception of impropriety unanswered, and the cynical assumption that large donors
call the tune could jeopardize the willingness of voters to take part in democratic governance.” Shrink

Missouri, 528 U.S. at 390; see also id. at 394-395 (finding academic doubts about actual corruption

irrelevant to legislative authority to address the public perception). And the fact is that the public does
perceive corruption. See Mellman & Wirthlin Expert Rep. [DEV 2-Tab 5]; Shapiro Expert Rep. (DEV2-
Tab 6].

Plaintiffs attempt to discount the corrupting potential of the special access to candidates and
officeholders that party committees provide to soft money donors. See RNC Br. at 18. They cite asser-
tions of some individual officeholders that they do not recall meeting with or being unduly influenced by
donors at various functions. Of course, testimony that some individual officials may not have been unduly
influenced by particular meetings with donors does not contradict the substantial evidence that others have

been, Italso does nothing to address the public perception of corruption that the Supreme Court has found

20 Plaintiffs contend that the Supreme Court in Colorado I concluded that political parties present no greater
risk of actual or apparent corruption than any other entity. See McConnell Br. at 37; RNC Br. at 16-19. In FEC v.
Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (“Colorado I”), however, the Court explained that this
observation only applied to limits on “independent expenditures,” and that there was no dispute that, in other contexts,
Congress was “concemed with circumvention of contribution limits using parties as conduits.” 533 U.S. at 457 n.19.
Title I of BCRA addresses the latter problem.

17


or appearance of impartiality, then that threat exists without regard to whether the announcement occurs
during an election campaign. See 122 S. Ct. at 2537 (“[S]tatements in election campaigns are such an
infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake,
that this object of the prohibition is implausible.”). Whereas the rationale for the restrictions at issue in
Republican Party of Minnesota thus had no particular connection to elections, the rationale for BCRA’s
restrictions has everything to do with elections. Thus, in contrast to the “infinitesimal portion” of judicial

announcements of legal positions captured by the restrictions in Republican Party of Minnesota, the vast

bulk of electioneering ads occur within BCRA’s time windows. Republican Party of Minnesota is

inapposite.

2. BCRA permissibly targets television and radio advertisements.

Plaintiffs also challenge BCRA as underinclusive on the ground that its definition of electioneering
communications covers television and radio advertisements, but not advertisements run in other media, such
as print, direct mail, or the Internet. See McConnell Br. at 81; NRA Br. at 34-36. According to plaintiffs,
no valid rationale explains “this naked preference.” NRA Br. at 34.

As explained in our opening brief, however, BCRA’s focus on television and radio advertisements
reflects Congress’s judgment that these advertisements pose the greatest danger of causing the “corrosive
and distorting effects [that] immense aggregations of wealth” can have on elections and the political process.

See Gov’t Br. at 169-70; Austin, 494 U.S. at 660. Due to their particularly powerful impact, television

and radio advertisements are capable of creating the greatest distortion, as plaintiffs effectively concede.
See AFL-CIO Br. at 11 (“[B]roadcast is the most potent medium available in this electronic age .... Print
advertising, telephone banks, direct mail and other forms ofnon-broadcast communications pale in compari-
son’). Further, television and radio advertisements typically have a broader reach and higher profile than

non-broadcast advertisements, and thus they are more likely to be noticed not only by voters, but by

98


upheld a provision, limiting coordinated party expenditures, which imposed a different limit for Senate
candidates in each state based on voting age population. Colorado I, 533 U.S. at 465. Thus, Congress
is clearly not precluded ftom tailoring the limits on contributions and coordinated spending to the different
circumstances in which election campaigns occur. See Buckley, 424 U.S. at 30 & n.32 (contribution limits
could have been “scaled to take account of the differences in the amounts of money required for House,
Senate, and Presidential campaigns”).'?”

The RNC argues that the wealth ofa candidate’s opponent should not be a factor in political party
spending, but the millionaire provisions do not require political parties to do anything differently; they simply
give the option of making larger coordinated expenditures in support of a candidate running against a self-
financing opponent. Because the millionaire provisions apply equally to all campaigns run in such
circumstances and are narrowly tailored to address the specific problem presented by self-financed
candidates, they do not infringe the RNC’s equal protection rights.

B. The Millionaire Provisions Do Not Make the Contribution Limits

Unconstitutional.
Contrary to plaintiffs’ arguments , RNC Br. at 74, the compelling governmental interests the

Supreme Court has repeatedly recognized as justifying the general contribution limits are not invalidated
by Congress’s decision to relax those limits in particular circumstances, circumstances in which Congress
concluded this was necessary to avoid discouraging participation in election campaigns by candidates facing
opponents capable of using their own vast wealth to finance their campaigns at a level that might eliminate
any meaningful opposition. Such accommodation of competing interests is commonplace in legislative

action and “[c]ourts . . . must respect and give effect to these sorts of compromises.” Ragsdale v.

"7 The Constitution also does not require opposing candidates to be subject to identical regulations, regardless
of their sources of funding. Thus, Buckley upheld public financing for major party candidates that was unavailable to
minor party candidates, 424 U.S. at 93-97; upheld public financing in presidential primaries that “limit[ed] subsidies to
those with a substantial chance of being nominated,” id. at 106; and upheld an expenditure limit on publicly financed
candidates that did not apply to their privately financed opponents, id. at 108-09.

119


(D.D.C., filed July 15, 1999). But despite its contention, the RNC more than doubled its hard money
receipts in the very next election cycle. See Biersack Decl. Tbl. 1 [DEV 6-Tab 6] (RNC hard money
receipts in 1997-98 were $104,048,689; in 1999-2000, they were $212,798,761).”

Plaintiffs contend that the state parties, in particular, will suffer from the loss of soft money trans-
ferred to them by the national parties. See RNC Br. at 15-16, 54; CDP/CRP Br. at 30-31. But ifthe
state parties lack supporters of their own willing to contribute soft money under California law, that is not
the fault of BCRA. To the extent the state parties assert they can attract more contributions using the “star
power” of federal officeholders, see CDP/CRP Br. at 42, BCRA permits federal officeholders to attend,
and speak without restriction, at state party fundraisers, 2 U.S.C. 441i(e)(4); 11 C.F.R. 300.64, and also
to solicit soft money donations to a state party up to the comparable federal contribution restriction, 2
U.S.C. 441i(e)(1). Moreover, the proven adaptability of party committees, see supra at n.43, belies
plaintiffs’ assumption that state-level parties cannot enhance their fundraising. Indeed, the California
Democratic Party has already demonstrated its capacity to raise significant amounts of soft money, consis-

tent with state law, for use in state and local elections, Bowler Decl. §] 13-14 [3 PCS/CDP/CRP at

“© ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2 (Sth Cir. 1981) (a court may take judicial notice of
its own records).

* Under BCRA, “state and national parties will be encouraged to broaden their financial base of hard money
contributors,” and the “dramatic increase in hard money fundraising over the past decade leaves little doubt that this
can be achieved.” D. Green Rebuttal Expert Rep. at 5; McCain Decl. 20 [DEV 8-Tab 29] (noting that in the “2000 election
cycle, the two major parties nationally raised almost $750 million in hard money. To date, in the 2002 election cycle, the
parties have already raised 12% more hard money than they had at the same point in 2000"); see also D. Green Expert
Rep. at 29-30 (parties “constantly explore new . . . fundraising strategies” in their effort to gain competitive advantage
over rivals); La Raja Cross Tr. at 154-55 (plaintiffs’ own expert concedes that parties “will certainly adapt and make
themselves players in the campaign process” under BCRA).

“ Plaintiffs’ speculation concerning the extent of any loss is, at best, exaggerated because, for example, it fails
to take into account the fact that a portion of the national party transfers that the state parties expect to “lose” is
attributable to transfers made to state parties specifically for the purpose of running issue ads orchestrated by the
national parties. See Gov’t Br. at 34, 69, 101;

To the extent state parties were merely “vehicles” of the national parties for purposes of running ads

orchestrated by the national parties, see Gov’t Br. at 31, 100-02, those amounts, under a BCRA regime, would not be lost
to the state parties; the ads would merely be paid for directly by the national party.

4l


handful of defendants’ witnesses relating to a handful of advertisements do not meet plaintiffs’ heavy burden
of establishing that BCRA is substantially overbroad.

D. Plaintiffs’ “Underinclusiveness” Challenges Are Meritless.

Plaintiffs challenge BCRA’s electioneering communications provisions as “underinclusive.” See
McConnell Br. at 75-77, 81; NRA Br. at 34-39; Chamber/NAM Br. at 6. This challenge is meritless.
Congress need not regulate the entire universe of activity intended to influence federal elections in order to
regulate the category of “electioneering communications” covered by BCRA. To the contrary, the Su-
preme Court has emphasized that Congress’s “careful legislative adjustment of the federal electoral laws,

ina ‘cautious advance, step by step,’ . .. warrants considerable deference.” NRWC, 459 U.S. at 209

(citations omitted). As explained in Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), which examined a
securities regulation pertaining to campaign contributions:
[A] regulation is not fatally underinclusive simply because an alternative regulation, which
would restrict more speech or the speech of more people, could be more effective. The
First Amendment does not require the government to curtail as much speech as may
conceivably serve its goals.

Id. (upholding regulation, even though it “obviously [did] not eliminate all possible methods by which

underwriters may curry favor”); accord Austin, 494 U.S. at 675-78 (Brennan, J., concurring); BellSouth

Corp. v. FCC, 144 F.3d 58, 70 (D.C. Cir. 1998) (“[I]t would be odd to strike down a statute because
Congress failed to restrict as much expression as it could have.”).

Rather, “so long as [Congress] demonstrates that the recited harms [justifying a statute] are real,”
itmay regulate the speech implicated by those harms, “and it may, consistent with that principle, choose
to regulate just some part of that speech.” Mariani v. United States, 212 F.3d 761, 774 (3d Cir. 2000)
(en banc). Here, there can be no serious question that the harms recited in justification of BCRA’s elec-

tioneering communications provisions are real. As previously detailed, BCRA’s electioneering communica-

95


their context in order to distort their meaning. The relevant passage concerning § 608(e)(1) is as follows:

We find that the governmental interest in preventing corruption and the appearance of
corruption is inadequate to justify § 608(e)(1)’s ceiling on independent expenditures. ..
. Unlike the contribution limitations’ total ban on the giving of large amounts of money to
candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and
groups eschew expenditures that in express terms advocate the election or defeat ofa
clearly identified candidate, they are free to spend as much as they want to promote the
candidate and his views. The exacting interpretation of the statutory language necessary
to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness as a
loophole-closing provision by facilitating circumvention by those seeking to exert improper
influence upon a candidate or office-holder. It would naively underestimate the ingenuity
and resourcefulness of persons and groups desiring to buy influence to believe that they
would have much difficulty devising expenditures that skirted the restriction on express
advocacy of election or defeat but nevertheless benefitted the candidate’s campaign.

424 U.S. at 45 (emphases added). Itis plain to see from the foregoing passage that the freedom claimed
by plaintiffs “to spend as much as they want to promote candidate[s] and [their] view[s]” so long as they
“eschew expenditures that in express terms advocate the election or defeat” of those candidates, arose from
Buckley’s “exacting interpretation of the statutory language” in FECA “necessary to avoid unconstitutional
vagueness,” and not as an absolute guarantee that emanates directly from the First Amendment itself. If
anything, the Court’s analysis supports Congress’s authority to combat corruption of the political process
by regulating electioneering communications, because it recognizes that unlimited spending on communica-
tions other than express advocacy could be exploited to benefit a candidate's campaign, and, thereby, to
“obtain improper influence over candidates for elective office.” Id. at 45.°7

2. No later decision of the Supreme Court endorses plaintiffs’
reading of Buckley.

*” As we have noted, Buckley upheld provisions requiring disclosure of independent campaign spending by
political committees, 424 U.S. at 79-80, which included no express advocacy limitation. Thus, Buckley itself demonstrated
that it was never meant to foreclose all regulation of independent campaign spending that does not involve express
advocacy. Similarly, as we have explained, Gov’t Br. at 151-52, see infra at 118-19, coordinated spending need not contain
express advocacy to be subject to regulation.

59


intent to expose the federal election to such corruption or possibility of corruption.” United States v.
Bowman, 636 F.2d 1003, 1011 (5th Cir. 1981) (citing cases). “With federal and state elections held on
the same day and with all candidates listed on one ballot, it is impossible to isolate the threat to the integrity
of the state electoral process from a threat to the integrity of the federal contest.” Id. at 1012.'*

Plaintiffs’ attempt to distinguish Bowman and other similar decisions involving the Voting Rights
Act on the ground that they “involve vote buying and voter-registration fraud, activities that much more
directly affect the ‘Manner of holding Elections for Senators and Representatives,” McConnell Br. at 14
n.4; see also CDP Br. at 23-24, is unavailing. Both the Voting Rights Act and BCRA serve the interests
of preventing corruption. As the Court in Bowman explained, “[t]he only way to prevent corruption in
federal elections with any reasonable probability of success, indeed the means that Congress has chosen,
is to foreclose all chances of exposure by prohibiting corrupt practices anytime a federal candidate is on
the ballot. Congress has made this decision, and, since the end is legitimate and the means appropriate,
the courts cannot, and will not, condemn it.” 636 F.2d at 1012.

Recognizing Congress’s broad power to regulate federal elections, several courts have rejected
Tenth Amendment challenges to the National Voter Registration Act (““NVRA”), 42 U.S.C. 1973qq, et
seq., which requires states to provide voter registration at, inter alia, state offices providing public assistance
and driver’s license registration. Ass’n of Cmty Orgs. For Reform Now v. Miller, 129 F.3d 833 (6th Cir.

1997); Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th Cir. 1995); Ass’n of Cmty Orgs. For Reform

's “When candidates for federal office appear on the same election-day ballot with the local candidates who
have been the target of illegal vote-buying activities, the Necessary and Proper Clause affords Congress ample power
to regulate conduct in the pendant state election to exclude the possibility of tainting, distorting or otherwise unfairly
affecting the results of a federal election.” United States v. Garcia, 719 F.2d 99, 102 (Sth Cir. 1983). “[W]hether the federal
candidate on the ballot is opposed or unopposed is of little consequence because the integrity of a mixed federal-state
election is marred by fraudulent voting activities, even if these activities are only directed toward the state election.”
United States v. McCranie, 169 F.3d 723, 727 (11th Cir. 1999) (citing United States v. Cole, 41 F.3d. 303, 306 (7th Cir. 1994));
see also United States v. Cole, 41 F.3d 303 (7th Cir. 1994); United States v. Saenz, 747 F.2d 930, 943-945 (Sth Cir. 1984);
United States v. Carmichael, 685 F.2d 903, 908-909 (4th Cir. 1982).

11


scope; and they neglect substantial contextual evidence indicating that many of the remaining ads were in
fact made for the purposes of influencing federal elections.

a. Plaintiffs’ exaggerated claims of BCRA’s impact should not
be credited.

Before looking at a single storyboard or video clip, plaintiffs’ list of 59 can be quickly cut by more
than half to 25, because 34 ads would not have been covered by BCRA had it been in effect at the time
theads wererun.” Plaintiffs’ inability to limit their “most powerful”examples to advertisements that would
have been covered by the statute belies their claim that BCRA will capture “an enormous amount of issue
advocacy.” McConnell Br. at 60. Of the 21 ads on the McConnell video tape, nine (9) fall outside of
BCRA’s limitations.” Similarly, twenty-five (25) of the particular advertisements cited by the NRA did

not fall within the statute’s 30/60-day window.” Given that the majority of the examples plaintiffs provide

77 For several of the remaining 25 ads, only a few of their many airings would have been captured by BCRA,
infra at 93-94. Run dates referenced in this section can be found in App. D hereto (table containing selected CMAG data
from Goldstein Expert Rep. [DEV-3-Tab 7 Ex.L (CD); Krasno & Sorauf Expert Rep. [DEV 1-Tab 1(CD App.)]

8 The “Better World Campaign/Helms Biden Law” ad was run only in Washington, DC, and neither Jessie
Helms nor Joseph Biden was a candidate for Senate in the DC television market. The other ads were run outside of the
30/60-day window: “Sierra Club/NC Faircloth Weaken” was run from 8/3 | to 9/4/98, while the primary was held on 5/5/98
and the general election was held on 11/5/98; “Michigan Right to Life/Stabenow PBA” was run from 3/23 to 4/12/00,
while the primary was held 8/8/00; “Sierra Club/Call McCain Grand Canyon” was run from 1/10-14/00, while the primary
was held on 2/22/00; “AJS/Gorton A Magnificent River” was run from 6/14 to 7/18/00, while the primary was held on
9/19/00; “AJS/Gorton If We Lose the Dams” was run from 6/14 to 7/18/00, while the primary was held on 9/19/00; “Sierra
Club/Protect Salmon Gorton,” was run from 5/8-14/00, while the primary was held on 9/19/00; “PhARMA/Call Senator
Gorton 60" was run on 7/19/00, while the primary was held on 9/19/00; and “Friends of the Earth/Asbestos Call Senator
Grams” was run from 4/3/00 to 4/25/00, while the primary was held on 9/12/00.

” Thirteen (13) of the ads cited by the NRA are a series of television ads aired in March 2000, in response to
President Clinton’s Today Show “attacks on the NRA.” NRA App. 914-16. The only individual named in these ads, Bill
Clinton, was not a candidate for federal office in 2000. The NRA also cites to a series of eleven (11) television ads
addressing a crime bill that aired sometime in 1994. NRA Br. at 26, LaPierre Decl. {| 21 (stating only that ads aired “in
1994,” but providing no specific dates); NRA App. 886-88 (providing text of ads). The NRA has not provided any
information that would allow the Court to find that these ads aired within the 30/60-day window and, thus, would have
been covered by BCRA. The NRA has not provided the names of the Congressmen against whom this ad was run, or
any details regarding which of the several crime bills that were debated up to mid-August 1994 to which the ad might
have referred. The NRA has provided even less information regarding its Brady Bill ad, which is not ever mentioned
in any of the NRA’s testimony, and, therefore, the airing dates cannot be ascertained from the current record. NRA Br.
at 26; NRA App. 885. In any event, the Brady Bill was passed on November 10, 1993, so it is odd that the NRA would
be advertising about it in 1994,

77


Ex parte Siebold, 100 U.S. 371 (1879) 2.0... cee ccc cece cence ence eens 10

Sinclair Broadcast Group v. FCC, 284 F.3d 148 (D.C. Cir. 2002) ..... ce eee 24
Sloan v. Department of Housing & Urban Development,

231 F.3d 10 (D.C. Cir. 2000) 0... cee cence tenes 119
Smiley v. Holm, 285 U.S. 355 (1932) 2... enn ete ene n es 10
Speiser v. Randall, 357 U.S. 513 (1958) «0... 6. cece ec ence eee eee 131
T&S Products, Inc. v. U.S. Postal Service, 68 F.3d 510 (D.C. Cir. 1995) ...........000. 111
Trinity Broadcasting v. FCC, 211 F.3d 618 (D.C. Cir. 2000)... 0... eee 134
U.S. Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir.),

cert. denied, - U.S.__, 71 U.S.L.W. 3163 (Nov. 12, 2002) ..........0....000. 65
United States Civil Service Commission v. National Association of

Letter Carriers, 413 U.S. 548 (1973) 2.0... 33
United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002) ... 0... 33
United States v. Bowman, 636 F.2d 1003 (Sth Cir. 1981). 00. eee eee 11
United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982) .....0.0 0... ce eee eee eee 11
United States v. Classic, 313 U.S. 299 (1941)... cece nee e nee 10
United States v. Cole, 41 F.3d 303 (7th Cir. 1994) 2... 11
United States v. Garcia, 719 F.2d 99 (Sth Cir. 1983)... 0... eee cece eee eee 11
United States v. McCranie, 169 F.3d 723 (11th Cir. 1999)... 0. eee 1l
United States v. Morrison, 529 U.S. 598 (2000) . 6... ee eens 13
United States v. O'Brien, 391 U.S. 367 (1968). 0... cece cece cece eee rene ener eens 97
United States v. Rumely, 345 U.S. 41 (1953) 2.0.22 n eee 66
United States v. Saenz, 747 F.2d 930 (Sth Cir. 1984) 0... eee eee eeeeee eee 11
United States v. Sun-Diamond Growers of Calif., 526 U.S. 398 (1999) .... 0... cece eee 101
United States v. Wurzbach, 280 U.S. 396 (1930) 20... e eee 33

-X-


Plaintiffs find no backing for their interpretation of Buckley in any of the Supreme Court’s subse-
quent decisions. They first cite MCFL, McConnell Br. at 51, but as the Court explained therein, MCFL
merely applied the same rationale relied upon in Buckley~ namely, curing vagueness in statutory language
that defined “expenditures” in terms of a speaker’s “purpose to influence an election” — and placed a
“similar” express advocacy “construction” on FECA § 441b. 479 U.S. at 248-49. Thus, MCFL places
No constitutional imprimatur on the express advocacy standard.

The ACLU cites First Nat’] Bank of Boston v. Bellotti, 435 U.S. 765 (1978), Citizens Against

Rent Control v. Berkeley, 454 U.S. 290 (1981), and McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334

(1995), as support for the proposition that “issue advocacy” enjoys absolute First Amendment protection,
see ACLU Br. at 15 n.6, but these cases did not involve candidate elections or advocacy, and explicitly
said so. In Bellotti, the Court distinguished statutes like FECA and stated:

Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate
contributions to political candidates or committees, or other means of influencing candidate
elections. ... and our consideration of a corporation’s right to speak on issues of general
public interest implies no comparable right in the quite different context of participation in
a political campaign for election to public office.

435 U.S. at 788 n.26 (emphasis added); see also Citizens Against Rent Control, 454 U.S. at 297-98

(distinguishing Buckley as involving candidate elections, not ballot measures); McIntyre, 514 U.S. at 352

n.15 (“risk of corruption perceived in cases involving candidate elections... simply is not present ina

popular vote ona public issue”) (citations omitted). Moreover, in Bellotti, 435 U.S. at 789-92 &n.32,
and Citizens Against Rent Control, 454 U.S. at 298-99, the Supreme Court endorsed some regulation of
genuine issue advocacy — in particular, the imposition of disclosure requirements — even in campaigns
involving voter referenda. Similarly, in McIntyre the Court observed that a restriction on political speech
—in that case, a restriction on anonymous handbilling that was not limited to express advocacy —could be

upheld “fit is narrowly tailored to serve an overriding state interest.” Id. (citing Bellotti, 435 U.S. at 786).

60


As we also described, two empirical studies of political advertisements in the 1998 and 2000
election cycles determined that 78-85 percent of interest group ads referring to candidates ran during the
60 days before the election (as did most of the candidates’ own ads), and that the majority of interest group
ads that did not mention candidates ran outside the 60-day period before the election. See Gov’t Br. at
140. These studies concluded that application of an “electioneering communications” definition like that
contained in BCRA would have had only an insubstantial effect on genuine issue advertising, and that 94
to almost 98 percent of such advertising would have remain unregulated had BCRA been in effect during
those election years. See Gov’t Br. at 161.

Despite the demonstrated narrowness of BCRA’s electioneering communications definition,
plaintiffs contend that Title I is unconstitutionally overbroad, and attempt to meet their burden of demon-

strating substantial overbreadth, see Gov’t Br. at 160 (citing, inter alia, New York State Club Ass’n, 487

U.S. at 14), without offering the Court any empirical studies of their own. Despite the years of legislative
debate leading up to the enactment of BCRA and the considerable resources plaintiffs are devoting to this
litigation, plaintiffs neither mention nor rely upon any studies of political advertising comparable to those
presented in Buying Time or the work of Professor Magleby, a body of work that was before Congress
when it debated BCRA. Instead, plaintiffs merely mount an attack on the only empirical evidence of the
potential impact of BCRA provided to the Court, but succeed only in demonstrating their own fundamental
misunderstanding of the analysis performed. Second, plaintiffs cite examples of advertisements that they
believe will be improperly captured by BCRA without paying the slightest attention to whether the sponsors
or advertisements in question are regulated by BCRA, or to the substantial contextual evidence that
demonstrates that the vast majority of those advertisements were made for the purpose of influencing
federal elections. As explained below, none of these arguments is sufficient to meet plaintiffs’ burden of

proving that BCRA is substantially overbroad.

66


CBS v. FCC, 453 U.S. 367 (1981) o.oo cece ccc cc eee eeeeueeueeveteveeueeeeeens 130

Cal. Medical Association v. FEC, 453 U.S. 182 (1981) ...... 0... cee eee eee eee 23, 49, 103
Cal. Prolife Council PAC v. Scully, 989 F. Supp. 1282 (E.D. Cal. 1998),

affid,164 F.3d 1189 (9th Cir. 1999) .... 0... eee renee 44
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.

508 U.S. 520 (1993) 2... cece ee eee een eee eee 122
Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) .........0 0.0 ese e eee 61, 62
Citizens for Responsible Government State Political Action

Committee v.Davidson, 236 F.3d 1174 (10th Cir. 2000) .............0.. 64, 111, 112
City of Houston v. Hill, 482 U.S. 451 (1987) 0... occ ccc eee eee e rte nee 72
City of Ladue v. Gilleo, 512 U.S. 43 (1994) 2... ccc eee nett ee 50, 122
Ex parte Clarke, 100 U.S. 399 (1879) 2.0... cece cece cece eee eee eens 10
Clements v. Fashing, 457 U.S. 957 (1982) 2.0... ccc eee eee een e nee 127
Clifton v. FEC, 114 F.3d 1309 (Ist Cir. 1997)... ec e ce ceece ene n eee 62, 63
Cohen v. California, 403 U.S. 15 (1971) 2... cece cette n ees 132
Colo. Republican Campaign Committee v. FEC, 518 U.S. 604 (1996) ................ 4,113
Condon v. Reno, 913 F. Supp. 946 (D.S.C. 1995)... cece cece n eee eee 12
DKT Mem. Fund Ltd. v. Agency for International Development

887 F.2d 275 (D.C. Cir. 1989) 2... cence teen nent eeee 23
Eubanks v. Wilkinson, 937 F.2d 1118 (6th Cir. 1991) 2.0.0... 128
FEC v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979) 0.00... ccc 64
FEC vy. Cal. Dem. Party, 13 F. Supp. 2d 1031 (E.D. Cal. 1998) 0.0.0.0... 0.02 e eee eee 38
FEC v. Central Long Island Tax Reform Immediately Committee,

616 F.2d 45 (2d Cir. 1980)... cence eee n een ene 64
FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) 00.0.0... cee 64
FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) 1.2... eee 118, 119

-vi-


provision, plaintiffs’ counsel, throughout the various depositions and cross-examinations in this case,
engaged several of defendants’ witnesses in a “pop quiz’”’ by showing them advertisements they had never
seen before and demanding that they prove on the spot that the ads were not genuine issue ads. See
McConnell Br. at 70-75. Plaintiffs’ counsel refused these witnesses’ requests for information beyond what
was on the face of the storyboards, such as the timing of the ads, the placement of the ads, the public
statements made by the sponsors of the ads, or the matters at issue in the campaigns to which the ad
related.'3

The contradictory testimony elicited by plaintiffs by this “pop quiz” on this point, while rhetorically
cute, actually serves as proof that the “backup” definition is extremely narrowly tailored and highly protec-
tive of First Amendment rights. As defendants explained in their opening brief, “the [backup] definition
makes clear that if more than one plausible interpretation is possible, a communication will not be consid-
ered an electioneering communication even ifmany listeners would likely interpret it as calling for an election
result.” Gov’t Br. at 171. This standard, although it does not incorporate the specific, objective criteria
included in BCRA’s primary definition, is nonetheless akin to other First Amendment tests that includeno
such specifics, but instead use an objective “reasonable” person standard that does not vary based on the
sensitivity or special knowledge or ignorance of particular listeners. Id. (citing cases).

To the extent, therefore, that plaintiffs have established with their ‘pop quiz” that reasonable people
can disagree about some of the advertisements that they were shown, should the backup definition be made

effective, plaintiffs have established no more than the narrowness ofits scope. Such quizzes given toa

essentially until April 2001, when the Senate first passed the McCain-Feingold legislation, 147 Cong. Rec. $3258 (Apr.
2, 2001). The backup definition was adopted as a last-minute amendment at the behest of Senator Specter. 147 Cong.
Rec. 3070, 3122-23 (March 29, 2001).

1 See, e.g., McCain Dep. Tr, at 91, 104, 111-18; Meehan Dep. Tr. (Sept. 25, 2002) at 66-68; Strother Cross Tr.
(Oct. 24, 2002) at 26, 89-91; Holman Dep. Tr. at 46-47; McLoughlin Dep. Tr. (Sept. 10, 2002) at 27-30, 39-41; Sorauf Cross
Tr. (Oct. 18, 2002) at35, 51; Krasno Cross Tr. (Oct. 25, 2002) at 17; Lupia Cross Tr. (Oct. 25,2002) at 48-49, 55-63; Feingold
Dep. Tr. (Sept. 9, 2002) at 17-18, 45-46; Shays Dep. Tr. (Sept. 27. 2002) at 116-17.

94


“ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when

acase can be fully resolved on a narrower ground.” Greater New Orleans Broad. Ass’n, Inc. v. United

States, 527 U.S. 173, 184(1999).” At the same time, these courts improvidently, and, as shown, errone-

ously, imputed a similar design to the Supreme Court to break faith with this “cardinal rule[ |” in Buckley,
see Gov’t Br. at 152 (quoting, inter alia, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02
(1985)),“' in order to make far-reaching and pre-emptive decisions in a legal realm where Congress enjoys
special expertise to which the Supreme Court has repeatedly deferred. See Shrink Missouri, 528 U.S. at
393 n.5. As we observed in our opening brief, no case since Buckley has squarely presented the question
arising in this case: whether Congress, consistent with the First Amendment, may enact narrowly tailored
legislation of independent political spending for communications that do not involve express advocacy.
Congress enacted BCRA’s regulation of electioneering communications because regulating express
advocacy alone no longer prevents unions and corporations from converting their aggregated wealth into
“war chests” for political spending that can distort the electoral process, and corrupt the politicians who
benefit as aresult. Thus, a nearly century-old legal tradition in this country, and the commitment to demo-
cratic ideals on which it is based, have been rendered largely irrelevant. According to plaintiffs, Buckley

forever “‘condemns” our democratic institutions to this state of affairs, see McConnell Br. at 47, but they

© For example, in U.S. Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir.), cert.denied, _ U.S.__,71
U.S.L.W. 3163 (Nov. 12, 2002), see McConnell Br. at 53, the Fifth Circuit wrote that, under Buckley, “the government may
regulate only those communications containing explicit words advocating the election or defeat of a particular
candidate.” Id. at 193. In Moore, however, the plaintiff sought a declaratory judgment that its political advertisements
were not subject to Mississippi’s disclosure law, id. at 190, which already incorporated the “express advocacy” standard
articulated in Buckley. Id. at 196. Therefore, the court’s discussion concerning the constitutional footing of the express
advocacy standard was unnecessary to its decision that the plaintiff's advertisements, which avoided terms of explicit
advocacy, see id, at 190-91 & n.1, were not covered by Mississippi’s disclosure law. Id, at 196-97. Thus, the court’s
remarks must be taken as dicta.

*" See also Gamer v. Louisiana, 368 U.S. 157, 163 (1961) (“In the view we take of the cases we find it unnecessary
to reach the broader constitutional questions presented.”); United States v. Rumely, 345 U.S. 41, 47 (1953) (“Grave
constitutional questions are matters properly to be decided by this Court but only when they inescapably come before
us for adjudication. Until then it is our duty to abstain from marking the boundaries of congressional power or delimiting
the protection guaranteed by the First Amendment.”) (emphasis added).

64


as we set out this year to defeat the divisive forces that would take freedom away, I want

to say those fighting words for everyone within the sound of my voice to hear and to heed

and especially for you, Mr. Gore: “From my cold dead hands.”
NRA App. 946-47. Similarly, other infomercials describe a 1994 enactment as a “Clinton-Gore assault
weapons ban”; yet, it is highly unlikely that the NRA would have employed this description had Mr. Gore
not been a presidential candidate at the time: the enactment at issue was never popularly known this way,
and NRA advertisements aired in 1994 regarding the same enactment do not invoke Mr. Gore’s name.
See NRA App. 885-88, 914-16. Hence, even if these infomercials were primarily designed for other
purposes, they nonetheless, at points, advanced the NRA’s electoral objectives. Indeed, Mr. LaPierre

testified as to the NRA’s infomercials generally that their “subtext . .. was the election,” LaPierre Dep. Tr.

at 88,

Having chosen to insert electioneering material into their
infomercials, the NRA cannot complain if they would have been detected, and regulated, by BCRA, just
as they would have been regulated by FECA had they contained, at points, words of express advocacy.
See supra n. 82.

In any event, even if the references to candidates in the cited infomercials were entirely incidental,
or “fleeting,” as Mr. LaPierre put it, LaPierre Decl. § 13, this merely goes to show that the burden imposed
by BCRA in such circumstances is a trivial one, as the NRA could easily have avoided the references
without any significant effect on the infomercials’ non-electoral message, and without any more burden than
is presently required to avoid magic words. For example, the NRA repeatedly points to areference to Mr.
Gore made ina section of the infomercials detailing the benefits of NRA membership: a sampling of NRA
magazines is flashed on the screen at one point, with one magazine cover displaying the face of former

President Clinton “morphing” into that of presidential candidate Gore. See NRA Br. at 27 &n.15, 30-31;

90


Without explanation, plaintiffs, who with respect to the 1998 data set castigated the Buying Time
authors for deviating in the slightest from the judgment of the student coders, reverse their position when
discussing this CBM ad from the 2000 data set.” In 2000, plaintiffs contend, Dr. Goldstein should have
disregarded the student coders’ judgment (as well as his own) that six advertisements aired by CBM were
electioneering ads, and should have altered the coding on all six ads in light of his opinion that those ads
were “not meaningfully distinguishable” from one advertisement by the same organization that one student
coder determined to be a genuine issue ad. See McConnell Br. at 69 n.34. But ifany recoding is to be
done for the sake of uniformity, as plaintiffs suggest, it is certainly far more sensible and accurate to alter
the coding on one ad that is mistakenly coded, as Dr. Goldstein did for purposes of assembling the data
set that underlies Buying Time 2000, than to alter the coding on six similar ads in order to bring their coding
into line with one. In other words, under their own reasoning, plaintiffs’ suggestion is exactly, and indisput-

ably, backwards.”*

Plaintiffs’ insistence that the student coders’ assessments be rigidly adhered to (although plaintiffs

apparently so insist only when it suits their purposes), is itself inconsistent with plaintiffs’ expert’s baseless contention
that student coders cannot be trusted to offer their opinions on the purpose of political advertising. See Gibson Expert
Rep. at 10, As defendants’ experts have explained, the use of both student respondents and survey questions seeking
opinions is routine in empirical political science research. Lupia Rebuttal Expert Rep. at 34-36; Lupia Cross Tr. (Oct. 25,
2002) at 36, 76-77; see also Krasno Response to Professor Gibson’s Supplemental Rebuttal at 2 (“The point of having
a combination of student coders and an expert like Dr. Goldstein working to prepare the data set is to take advantage of
their disparate strengths, not to automatically confer authority on one over the others.”).

TM Plaintiffs’ footnoted contention that “30 other ads” should be treated as “genuine” is similarly specious.
McConnell Br. at 69 n.34. What plaintiffs fail to disclose in their description of these “30 other ads” is that these
advertisements were selected by plaintiffs’ counsel for their expert to factor into his calculations without any explanation
whatsoever. See Gibson Cross Tr. (Oct. 21, 2002) at 179-80 ("Q: Now, you refer . . . to this mysterious group of 30 ads,
and [your report] says, “This list was provided to me by counsel.” What I wanted to know is how were these ads
selected by counsel for you? A: J don’t know. . . . Q: I take it you didn’t make any determination that these 30 ads
should have been coded as genuine issue ads, is that correct? A: That is correct... .Q: Did you have any
understanding of the way in which the 30 ads were selected? A: No.”). Indeed, Professor Gibson “never even looked
at these storyboards,” id. at 181, despite the fact that they were attached as an exhibit to his Expert Report and the airings
attributed to these ads were used by him to perform various calculations of BCRA’s impact. Professor Gibson thus has
absolutely no basis for including these “30 other ads” in calculations of BCRA’s potential overbreadth.

75


5. Congress properly determined that anything less than a ban on
national party soft money would not adequately reduce the
appearance and reality of corruption.

Plaintiffs contend that the national party soft money ban should have been more narrowly drawn
to permit the national party committees to raise soft money in limited amounts, or from particular sources,
or for specific purposes. See McConnell Br. at 38-39; RNC Br. at 45. Since soft money is simply money
contributed in excess of the statutory contribution limits or in contravention of the requirement that unions
and corporations make contributions from separate segregated funds, this argument amounts to nothing
more than an assertion that the statutory contribution restrictions are themselves too strict. This argument
is plainly foreclosed by Buckley, 424 U.S. at 30; Shrink Missouri, 528 U.S. at 397; and NRWC, 459 U.S.
at 210.

Congress had good reason to conclude that narrower measures would not solve the appearance
of corruption presented by soft money donations to national parties. The statute “covers all activities of the
national parties, even those that might appear to affect only non-federal elections,” because “the national
parties operate at the national level, and are inextricably intertwined with federal officeholders and candi-
dates, who raise the money for the national party committees.” 148 Cong. Rec. H409 (Feb. 13, 2002)
(Rep. Shays). Because of this “close connection between the funding of the national parties and the
corrupting dangers of soft money on the federal political process,” Congress concluded that “[t]he only
effective way to address this problem of corruption is to ban entirely all raising and spending of soft money
by the national parties.” Id.; see Briffault II, 100 COLUM. L. REV. at 651 (“[C]ontributions to [national]
party campaign committees place donors in direct contact with the legislators who dominate the legislative

process.”) (footnote omitted).

donations to national parties, such monies were not, at least theoretically, supposed to be used in federal campaigns.

43


Plaintiffs also contend that the soft money provisions violate the First Amendment by threatening
the ability of the political parties to operate effectively because they will have a difficult time raising sufficient
hard money to replace all the soft money they will be unable to raise under BCRA. See RNC Br. at 13-
16, 53-56; CDP/CRP Br. at 29-31. This is not the test for constitutionality ofa contribution limit, however.
Indeed, it is an inherent effect of any contribution limit to make it more difficult to raise as much money.
“The overall effect of the Act’s contribution ceiling is merely to require candidates and political committees
to raise funds from a greater number of persons,” but this does not “reduce the total amount of money
potentially available to promote political expression.” Buckley, 424 U.S. at 21-22. Rather, “the test,”
according to the Supreme Court, is “whether the contribution limit [is] so radical in effect as to render
political association ineffective, drive the sound of [the recipient’s] voice below the level ofnotice, and
render contributions pointless.” Shrink Missouri, 528 U.S. at 397.

Plainly, if the $1,000 individual contribution limit upheld in Buckley and the $1,075 limit upheld in
Shrink Missouri satisfied this test, BCRA’s $25,000 limit on contributions to national party committees and

$10,000 limit on contributions to state party committees satisfies it a fortiori. As noted in Colorado II, even

under the lower contribution limits before BCRA, “political parties [were] dominant players, second only

to candidates themselves, in federal elections.” 533 U.S. at 450 (quoting amicus brief of political scien-

tists). Indeed, it is idle to suggest that the $212 million in hard money that RNC raised in the 2000 election
cycle, before BCRA raised the contribution limit, is so low as “to render political association ineffective”
or “drive the sound of [its] voice below the level of notice.” Shrink Missouri, 528 U.S. at 397.
We show below that the plaintiff parties’ self-serving speculation about the likely results of their
future fundraising efforts is dubious at best. But even if RNC is correct in its assertion that no additional
individuals will be willing to contribute to it, or to contribute the additional amount permitted by the increase

in the contribution limits, that would reflect no disability imposed by BCRA, but instead the inability of the

39


ARGUMENT
TITLE I

PRESENTATION BY THE GOVERNMENTAL DEFENDANTS

Plaintiffs’ challenge to BCRA’s soft money provisions rests on several fundamental errors. In an
attempt to overcome the unique and heavy burden attending their effort to have BCRA declared invalid on
its face, see New York State Club Ass’n v. City of New York, 487 U.S. 1, 11 (1988), plaintiffs have
resorted to mischaracterizing the essential nature of the statute. BCRA imposes no limits whatsoever on
the amounts that political party committees can expend on election activity. The statute, accordingly, is
subject to the more lenient standard of review that governs contribution limits, not the stricter scrutiny that
governs limits on expenditures.

The Supreme Court has made clear that FECA’s longstanding limits on contributions are constitu-
tional, and it is those same contribution limits that plaintiffs seek to prevent Congress from enforcing. As
explained in our opening brief, the proliferation of soft money has allowed political parties, candidates, and
donors to circumvent FECA’s prohibition on contributions from the general treasuries of corporations and
labor unions and its limitations on the amounts that individuals can contribute. Plaintiffs attempt to create
the illusion that “soft money” is qualitatively different from hard money, and that they have a constitutional
right to raise soft money free of congressional regulation. But money is fungible, and in fact, soft money,
by definition, is nothing more than a donation that exceeds FECA’s contribution limits or comes from a
source that the statute prohibits. Congress, therefore, was amply justified in requiring that funds spent by
party committees on activities that influence federal elections be raised subject to the federal contribution
restrictions.

Plaintiffs exaggerate the breadth of the statute in a variety of important respects. Plaintiffs provide
several examples of supposed overreaching by BCRA with respect to state and local election activity, but

plaintiffs’ parade of horribles is belied by the text of BCRA and the regulations of the -



The FEC’s regulations also define “generic campaign activity” to include only a “public communica-
tion” that “promotes or opposes a political party and does not promote or oppose” a clearly identified
federal candidate or nonfederal candidate. 11 C.F.R. 100.25 Accordingly, advertising that promotes state
and local candidates is not included, and the FEC stated that its intent in limiting generic campaign activity
to public communications was “to ensure that the definition encompasses only the external activities ofa
political party committee, that is, activities targeted to the public.” 67 Fed. Reg. 49,071. Along the same
lines, the FEC explicitly excluded from “Federal election activity” the costs of any “State, district, or local
political conventions, meetings, or conferences.” Id. at 49,070. It also excluded the costs of grassroots
campaign materials that name or depict only state or local candidates. Id .

Contrary to plaintiffs’ suggestion, see RNC Br. at 15, not all activity that affects both state and
federal elections must be funded entirely with hard money. Even after BCRA’s enactment, there remains
a great deal of mixed federal/state activity that is to be allocated between real soft money and hard money:
anything that benefits both state and federal candidates but does not fall within the definition of “Federal
election activity.” And, for the most part, off-year activities in support of state candidates can be funded
fully with soft money. Moreover, plaintiffs’ assertion, RNC Br. at 15, that state parties will be deprived
of national party transfers is not true. Itis just that the national parties will only have hard money to transfer
from now on.

Plaintiffs repeatedly err in analyzing whether particular conduct constitutes “Federal election activ-
ity.” For example, plaintiffs’ suggestion that a 1996 radio advertisement encouraging listeners to vote
against a state ballot initiative would be GOTV activity, see McConnell Br. at 18-19, is belied by the
FEC’s regulations, which confirm that it would not. See 11 C.F.R. 100.24(a)(3) (GOTV limited to
“contacting registered voters by telephone, in person, or by other individualized means, to assist them in

engaging in the act of voting”) (emphases added). It is a closer question whether the latter part of the

30


national party soft money solicitations, which frequently offer access to officeholders in exchange for large
donations, present a grave threat of actual or apparent corruption. See Gov’t Br. at 71-81, 123-25. Even
ifthe national parties make solicitations on behalf of state-level committees or other entities rather than on
their own behalf, the solicitation process presents a significant danger of corruption, because both federal
candidates and donors have reason to believe that such money can be used to benefit candidates.* There
is, accordingly, a serious risk that the solicitation of soft money by the national parties — whether for
themselves or for other party committees — will create “obligated officeholders.” Colorado II, 533 U.S.
at 452. BCRA’s restriction on solicitation thus forms a crucial part of Congress’s effort to “put the national
parties entirely out of the soft money business.” 148 Cong. Rec. H408-09 (Feb. 13, 2002) (Rep. Shays).

Plaintiffs suggest that BCRA’s prohibition against federal candidates and officeholders “solicit[ing]”
non-federal funds on behalf of state parties is unconstitutionally vague. CDP Br. at 42. As explained in
our opening brief, however, Gov’t Br. at 94, the Supreme Court has rejected vagueness challenges to the
term “solicit” in other political contexts, see Broadrick v. Oklahoma, 413 U.S. 601, 605-08 (1973), and
the FEC’s regulations adopt a narrow definition of that term here. 11 C.F.R. 300.2(m) (67 Fed. Reg.
49,122 (July 29, 2002)).

Plaintiffs invoke a series of Supreme Court decisions analyzing various restrictions upon solicitations

for charitable organizations. See RNC Br. at 47-48 (citing Schaumburg v. Citizens fora Better Env’t, 444

U.S. 620, 622 (1980); Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 967-68 (1984); Riley v.

Nat’] Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781 (1988)). Butnone of those cases impli-

* See, e.g., Gov’t Br. at 100-03; id. at 102 n.83 (explaining that soft money can be used to influence state-law
matters such as redistricting that can have impact on federal candidates and national parties); see also Hassenfeld Decl.
19 [DEV 6-Tab 17] (at DNC’s request, donor made soft money donations to state Democratic committees outside of his
home state to further Bill Clinton’s 1992 presidential campaign); Kirsch Decl. § 9 [DEV 7-Tab 23] (during 2000 election
cycle, national Democratic party solicited donations to state parties to benefit Gore presidential campaign);

34


ofa candidate for public office.” McConnell Br. at 53 & n.20. But these cases do not support the conclu-
sion that, under Buckley, express advocacy is the only form of independent political communication that
may be subject to campaign finance or disclosure laws. The cited precedents dealt with state election laws,
unlike BCRA, that in the courts’ eyes disregarded the principles of vagueness and overbreadth articulated

in Buckley. See Citizens for Responsible Government State Political Action Comm. v. Davidson, 236 F.3d

1174, 1187-88 (10th Cir. 2000) (disclosure requirement for political messages referring to any “specific
public office” except those made in the “regular course and scope of... . business,” delivered by telephone

or “any print or electronic media”); lowa Right to Life Comm.., Inc. v. Williams, 187 F.3d 963, 969-70

(8th Cir. 1999) (disclosure statute encompassing communications that, “[w]hen taken as a whole... .could
only be interpreted by areasonable person as containing advocacy of the election or defeat of one or more

clearly identified candidate(s)””); North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 712-13 (4th

Cir. 1999) (state election law’s definition of political committee held “void for vagueness” without benefit
ofanarrowing construction). The “rejection” in these cases of standards the courts viewed, rightly or
wrongly, as vague and overbroad does not establish that regulation limited to express advocacy is the only
constitutionally acceptable alternative. Indeed, in Iowa Right to Life, the Eighth Circuit explicitly acknowl-
edged that the protection afforded to discussion of candidates and issues under Buckley “does not mean
that government cannot regulate at all or subject such speech to some amount of scrutiny,” so long as
vagueness and overbreadth are avoided. 187 F.3d at 968.

We acknowledge that, in some of these decisions, the courts made remarks that plaintiffs might
view as endorsing their reading of Buckley. But the fact remains that it was unnecessary to the decision
of any of these cases to opine that Buckley ordained the express advocacy standard as the sole permissible
standard for regulating independent campaign spending. If, in fact, these lower courts meant to say as

much, then they disregarded the established rule of constitutional adjudication that courts should not

63


Fashing, 457 U.S. 957 (1982) (requirement that certain officeholders complete their current term before
being eligible to serve in the legislature); see Buckley, 424 U.S. at 96 (“The States have ... been held to
have important interests in limiting places on the ballot to those candidates who demonstrate substantial
popular support.”).

Accordingly, even if the Adams plaintiffs had standing to litigate their challenge to BCRA § 307

—and they have not even attempted to establish their standing even though they have the affirmative
obligation to do so, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)—there is no legal basis for
their claim that the Judiciary should require Congress to regulate the political activities of others more strictly
through a reduced contribution limit in order to enhance the relative voice of certain segments of society.

Plaintiffs Thompson and Hilliard now appear to assert essentially the same wealth-based, disparate

impact claim as the Adams plaintiffs, see Thompson & Hilliard Br. at 6, 8-9; accordingly, their claim also

must fail, for the reasons stated.'*4 See also Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 265 (1977) (intentional discrimination required for equal protection
claim; disparate impact insufficient).!°5

IV. THAT CERTAIN CONTRIBUTION LIMITS ARE NOT INDEXED FOR INFLATION
DOES NOT VIOLATE EQUAL PROTECTION PRINCIPLES.

The California Democratic Party and California Republican Party challenge Congress’s decision

not to index for inflation limits on contributions to state-level party committees. CDP/CRP Br. at 50. As

Interestingly, Representatives Thompson and Hilliard seek relief inconsistent with the Adams plaintiffs and
with their wealth-based, disparate impact claim: they ask not that the Court invalidate the increase in the individual
contribution limit to $2,000, but that the Court rewrite the statute completely to provide for an apparent increase in the
$2,000 limit for individuals giving to “economically challenged” candidates. Thompson & Hilliard Br. at 11-12. Ofcourse,
the Court lacks jurisdiction to rewrite BCRA in such a fashion. See Eubanks v. Wilkinson, 937 F.2d 1118, 1122-23 (6th
Cir. 1991).

"5 Even the Thompson & Hilliard plaintiffs’ claims of impact are merely speculative, however. See, e.g.,
Thompson & Hilliard Br. at 11.

125


TITLE I
PRESENTATION OF GOVERNMENTAL DEFENDANTS
I. THE MILLIONAIRE PROVISIONS OF TITLE II ARE CONSTITUTIONAL.

Sections 304, 316, and 319 of BCRA, the so-called “millionaire provisions,” modify the general
contribution limits to account for the special problem involving a candidate facing an opponent who chooses
to finance his or her campaign largely with personal funds instead of contributions from political supporters.
Even if they have standing, plaintiffs have not met the burden of their facial challenge to the provisions’
constitutionality. Indeed, the McConnell plaintiffs now agree that the millionaire “provisions are manifestly
astep in theright direction.” See McConnell Br. at 95. Congress enacted the millionaire provisions to
enhance opportunities for speech, and like other statutes designed to “‘further[], not abridge[], pertinent First
Amendment values,” Buckley, 424 U.S. at 93 & n.127, the millionaire provisions are constitutional. See
Gov’t Br. at 191-99.

A. The Millionaire Provisions Do Not Violate Equal Protection.

Contrary to the RNC’s argument, see RNC Br. at 74, the millionaire provisions do not violate the
equal protection rights of political parties merely because the provisions allow a political party to make
additional coordinated expenditures for those candidates whose wealthy opponents choose to finance their
own campaigns. As noted in our opening brief, Gov’t Br. at 198-99, the provisions do not force the RNC
to “discriminate” among its candidates, Historically, national political parties have not spent equal amounts
to support each of their candidates. See Gov’t Br. at 199 n.136. If the RNC decides to adopt such a
policy, however, it is free under BCRA to pass up the opportunity to make larger coordinated expenditures
in support of candidates facing a self-funded opponent.

Congress is not required by the Constitution to adopt the same limit on coordinated party

expenditures for all candidates, regardless of circumstances. To the contrary, the Supreme Court recently

118


Notice of Proposed Rulemaking, Coordinate and Independent
Expenditures, 67 Fed. Reg. 60,042 (Sept. 24, 2002) ............00.000. 113, 115, 117

Final Rule, Electioneering Communications, 67 Fed. Reg. 65,190
(Oct. 13,2002) occ cee tenets 67, 69, 80

Notice of Proposed Rulemaking, Bipartisan Campaign Reform Act of 2002:
Reporting, 67 Fed. Reg. 64,555 (Oct. 21, 2002) 6.0... . cece eee eee eee eee eee lll

LEGISLATIVE MATERIALS

H.R. Rep. No. 131, 107th Cong., Ist Sess. (2001) «1.0.26... eee e ee eee eee eee eee 45
S. Rep. No. 167, 105th Cong., 2d Sess. (1998) 6.0... eee eect ee 19
MISCELLANEOUS

Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line,
77 Tex. L. Rev. 1751, 1792 (1999) 2... cee nee ete ee 32

Richard Briffault, The Political Parties And Campaign Finance Reform,
100 CoLuM. L. REV. 620 (2000) ©... 6. eee cece cece eee tenets passim

-xiv-


Wolverine World Wide, Inc., 535 U.S.81,__, 122 S. Ct. 1155, 1164 (2002) (citation omitted); see also

Buckley, 424 U.S. at 84 n.112 (special exception from reporting requirements for photographic, matting,
or recording services furnished to incumbents “represents a reasonable accommodation between the
legitimate and necessary efforts of legislators to communicate with their constituents and activities designed
to win elections by legislators in their other role as politicians”).'”*

[NJ legislation pursues its purposes at all costs. Deciding what competing values will or

will not be sacrificed to the achievement of a particular objective is the very essence of

legislative choice—an4d it frustrates rather than effectuates legislative intent simplistically to

assume that whatever furthers the statute’s primary objective must be the law.
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (emphasis in original). There is no factual or
legal basis for plaintiffs’ assertions that the millionaire provisions undo Congress’s decision that general
contribution limits are needed to reduce opportunities for corruption and the appearance of corruption, a
decision repeatedly upheld by the Supreme Court.'””

Finally, there is no basis for the completely unsupported assertion that Congress adopted the
millionaire provisions to protect incumbents. McConnell Br. at 95-97. To the contrary, Congress included

arestriction on eligibility based upon the amount by which acandidate’s campaign funds exceed the self-

financing candidate’s campaign funds. See BCRA § 316. Because it is usually incumbents who have

8 The RNC cites Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and City of
Ladue v. Gilleo, 512 U.S. 43 (1994), for the proposition that when a statute leaves a “governmental interest partially
unprotected,” it undercuts the asserted interest. RNC Br. at 74. Both of those cases are inapposite, however. Lukumi
involved an ordinance banning animal sacrifice that was targeted at a religious sect, but was ostensibly based on public
health concerns. The Court found the statute to be substantially underinclusive because it forbade “few killings but
those occasioned by religious sacrifice.” 508 U.S. at 543-44, City of Ladue invalidated an ordinance prohibiting many
residential signs, even messages posted in a residence window, because the provision almost completely foreclosed
an “important and distinct” medium of expression while showing little respect for individual liberty in the home. 512 U.S.
at 55-58. In contrast to these cases, the millionaire provisions are carefully tailored to serve specific congressional
purposes that arise in narrowly defined circumstances, and they have no impact on minimizing the opportunity for
corruption accomplished by the general contribution limits in the vast majority of election contests to which the
millionaire provisions have no application.

9 Indeed, there are no bounds to the proposition that enactment of an exception to a statutory requirement
demonstrates that the requirement is itself unnecessary, and acceptance of such a proposition would lead to the
invalidation of countless statutes.

120


dantly clear that, as Congress recognized, allowing party committees to raise funds for tax-exempt political

organizations opens up an easy way to circumvent the restrictions on contributions to party committees.”

In addition, the fact that § 44 1i(e)(4) permits federal candidates and officeholders to make certain
solicitations for tax-exempt organizations does not undermine § 441i(d)’s restrictions on parties. Rather,
§ 441i(e)(4) permits general solicitations by candidates and officeholders for non-political tax-exempt
organizations, such as the Red Cross, and only very limited solicitations (only to individuals in an amount
up to $20,000 per year) for certain federal election activity. See 2 U.S.C. 441i(e)(4). Unlike party
officials, candidates are subject to limits on solicitation whether or not they are acting on behalf of the party.
Compare 2 U.S.C. 441i(a)(2) with id. 441i(e)(1). Thus, it was reasonable for Congress to allow candi-
dates to make solicitations under limited circumstances that accommodate the legitimate interests of candi-
dates in providing personal support for certain organizations, while retaining the monetary limits that help
minimize the risk of corruption. See generally 148 Cong. Rec. H408 (Feb. 13, 2002) (Rep. Shays).

4. Plaintiffs have not shown that Title I will prevent political parties
from amassing resources necessary for effective advocacy.

donations or solicitations made by party officials individually on their own behalf, plainly would not be covered.

»® See, e.g., 144 Cong, Rec. $1048 (Feb. 26, 1998) (Sen. Glenn) (explaining that in 1996 soft money “supplied the
funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related
activities”); 144 Cong. Rec. S977 (Feb. 25, 1998) (Sen. Levin) (“These soft money and issue ad loopholes are used to
transfer millions of dollars to outside organizations to conduct allegedly independent election-related activities that are,
in fact, benefiting parties and candidates.”); 144 Cong. Rec. $898 (Feb. 24, 1998) (Sen. Ford) (‘‘[W]e now know that many
of these so-called independent organizations, many claiming tax-exempt status, are established, operated, and financed
by parties and candidates themselves — and their finances are totally unregulated.”); see also Thompson Comm. Rep.
at 4013; id, at 4568, 5975-79 (Minority Views) (noting that “the RNC funneled money through several theoretically
‘independent’ groups and thereby effectively evaded the federal legal limits on the spending of soft money
contributions”); cf, FEC v. Cal. Dem. Party, 13 F. Supp. 2d 1031, 1033 (E.D. Cal. 1998) (detailing the FEC allegation that,
in 1992, the CDP improperly contributed $719,000 in solely nonfederal funds to ballot initiative group for essentially a
partisan voter registration drive); “FEC v. California Democratic Party,” Selected Court Case Abstracts at 86-87
(www.fec.gov/pdficca.pdf) (describing October 1999 summary judgment order against CDP finding that the ballot
initiative group’s voter registration drive was “targeted effort to register Democrats to vote in a general election.”).

38


c. The “close calls” also reflect an electioneering
intent, and Congress may require that funds
collected from individu- uals for electoral purposes

be used to pay forthem . 0.6... 2... eee eee eee

d. The evidence plaintiffs rely upon demonstrates the
constitutionality of BCRA’s “backup” definition ...........
D. Plaintiffs’ “Underinclusiveness” Challenges Are Meritless ...............

1. BCRA Permissibly Targets Ads Run Within 60 Days of a
General Election or 30 Days ofa Primary ..............-..0.00-5

2. BCRA permissibly targets television and radio
advertisements 0.0.0.0... occ cece cence eee eee eee

3. BCRA’s segregated fund requirement permissibly applies
only to corporations and labor unions .............. 0.0.0 cece eee

4 BCRA permissibly excepts media activities from its
COVETAZE 6c eee ce tere eet ete eee eet eet eee

E. The Media Exception in BCRA’s Definition of Electioneering
Communications Is Constitutional ........... 0.0 eee

F. BCRA Exempts Non-profit Corporations That Qualify for the MCFL
Exemption 0.0.0... 0 cece ccc cece c eee e erences

G. BCRA’S Disclosure Requirements Are Constitutional .................0-
Il. | BCRA’S.COORDINATION PROVISIONS ARE CONSTITUTIONAL ...........

A. The Choice Afforded Political Parties Under BCRA § 213 Is
Constitutional 0.0... c cece teeter teen e enn e need

B. Sections 202 and 214 of BCRA Are Consistent with the First Amendment

-iii-


way they choose, or limits the amount of money they can spend to make their messages heard. Instead,
both statutes seek to ensure that such 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, by regulating the source of funds such entities can use to pay for independent campaign-related
communications. Under the two statutes, corporations and unions “are allowed . . . to make such expendi-
tures from segregated funds used solely for political purposes.” Id, at 654-55.

The same neglect of precedent undermines plaintiffs’ contention that “Title Il of BCRA criminalizes
political speech.” McConnell Br. at 44. Plaintiffs ignore the fact that the Supreme Court has upheld the
very same kind of “criminalization,” id., when that criminalization involves restrictions on how corporations

and unions may finance express advocacy, Austin, 494 U.S. at 657-661; FEC v. Mass. Citizens for Life

(“MCEL”), 479 U.S. 238, 248-49 (1986), which like issue advocacy, “constitute[s] political expression

atthe core of... First Amendment freedoms.” Austin, 494 U.S. at 657.°° Although the dissent in Austin

—like the plaintiffs here —characterized the Michigan statute in question as a “content-based law which
decrees it a crime for a nonprofit corporate speaker to endorse or oppose candidates for . .. public office,”
id. at 695 (Kennedy, J., dissenting), the majority upheld the statute’s requirements for financing corporate
independent expenditures as “precisely targeted to eliminate the distortion caused by corporate spending
while also allowing corporations to express their political views.” Id. at 660. Because corporate and union
wealth can just as unfairly influence elections and corrupt elected officials when it assumes the guise of

“issue advocacy” as when it is deployed as express advocacy, see Gov’t Br. at 134-46, a requirement that

** It is important to note that criminal prosecutions for independent expenditures under § 441b are unusual and
tequire proof of a “knowing and willful” violation of the Act. 2 U.S.C. 437g(a)(5)(C). By empowering the FEC to bring
civil enforcement actions to remedy unlawful campaign spending from the general treasuries of corporations and unions,
Congress provided for a less severe enforcement mechanism than criminal prosecution. See 2 U.S.C. 437d(e), 437g.
Plaintiffs have cited no cases involving criminal prosecutions arising from corporate or union expenditures since the FEC
was given civil enforcement authority over such violations.

55


indictment for disclosure violations under the Federal Corrupt Practices Act of 1925 (“FCPA”), aprede-
cessor to FECA. The Court rejected an argument that Congress could not regulate the financing of
presidential election campaigns, holding that “[s]o narrow a view of the powers of Congress... . is without
warrant.” Id. at 544. And the Court has long held that this broad congressional authority extends to
“prevention of fraud and corrupt practices” in connection with federal elections, and that “[i]t has a general
supervisory power over the whole subject.” Smiley v. Holm, 285 U.S. 355, 366-67 (1932).

In Ex parte Siebold, 100 U.S. 371, 393 (1879), the Court emphasized that, “[i]f, for its own
convenience, a State sees fit to elect State and county officers at the same time and in conjunction with the
election of representatives, Congress will not thereby be deprived of the right to make regulations in
reference to the latter.” 100 U.S. at 393.'? Indeed, in that case and a companion decision, the Supreme
Court upheld federal statutes punishing state election officials for violating their duties under state election
statutes at elections where candidates for Congress are simultaneously voted upon, although there was no
evidence of specific intent to affect the federal election. Ex parte Siebold, 100 U.S. at 393; Ex parte

Clarke, 100 U.S. 399, 403-04 (1879)."?

Insum, “when federal and state candidates are on the same ballot, Congress may regulate any
activity which exposes the federal aspects of the election to the possibility of corruption, whether or not the

actual corruption takes place and whether or not the persons participating in such activity had a specific

"2 See also Ex parte Yarbrough, 110 U.S. 651, 661-662 (1884) (“Can it be doubted that Congress can by law
protect the act of voting, the place where it is done, and the man who votes from personal violence or intimidation, and
the election itself from corruption or fraud? If this be so, and it is not doubted, are such powers annulled because an
election for State officers is held at the same time and place? Is it any less important that the election of members of
Congress should be the free choice of all electors, because State officers are to be elected at the same time? These
questions answer themselves . . . .”) (citation omitted).

* Plaintiffs suggest that Congress’s power “to regulate federal campaign financing” under Article I § 4 might
be in doubt because none of the parties in Buckley challenged “whether Congress had such a power.” McConnell Br.
at 10 (emphasis in original). As the Court noted, however, those parties did not challenge Congress’s authority because
it was so “well established.” Buckley, 424 U.S. at 13.

10


In short, political parties are not similarly situated to interest groups and other entities. In light of
the unique threats of corruption that parties present, neither First Amendment, nor equal protection princi-

ples preclude Congress from treating political parties differently from other organizations.

53


statute simply imposes an additional disclosure requirement on candidates who seek the “lowest unit
charge” benefit, see 47 U.S.C. 315(b)(1), made available to them during the period immediately prior to
a federal election.

Contrary to plaintiffs’ contention (McConnell Br. at 89-90), § 305 does not discriminate on the
basis of viewpoint. The statute does not “treat[] ‘negative’ advertising differently from ‘positive’
advertising,” McConnell Br. at 89-90. Section 305 applies to all broadcasts that “refer” to a candidate’s
opponent, regardless of the party affiliation of the candidate, the candidate’s purpose in sponsoring the
broadcast, or the point of view expressed in the broadcast.'4!

In light of the strong interest in favor of public disclosure of information about federal candidates,
Congress presumably could have required all candidates to provide the disclosure that § 305 encourages.
Congress surely can take the lesser step of making disclosure a condition on the availability of the “lowest
unit charge,” a step that leaves candidates free to purchase broadcast time at the “comparable use rate,”
47 U.S.C. 315(b)(2), if they do not wish to respond to the permissible incentive for disclosure that § 305
provides, !?

Plaintiffs’ contention (McConnell Br. at 90) that § 305 imposes an unconstitutional condition lacks
merit. The unconstitutional conditions cases have typically involved efforts to suppress speech. See, €.g.,
Speiser v. Randall, 357 U.S. 513, 519 (1958) (denial of tax exemption “‘aimed at the suppression of

dangerous ideas” (citation omitted)); Hannegan v. Esquire, Inc., 327 U.S. 146, 156 (1946) (denial of

'' Plaintiffs’ reliance on the title of § 305 (see McConnell Br. at 90) is misplaced. “<[T]he title of a statute
.. cannot limit the plain meaning of the text.’” Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (quoting
Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29 (1947)). The plain language of § 305 makes clear that it applies
to all broadcasts that refer to a candidate’s opponent whether or not the reference is negative.

'® Plaintiffs (McConnell Br. at 89) invoke Perry v. Sindermann, 408 U.S. 593 (1972), but that case is entirely
inapposite. The Court in Perry noted that public employment may not be denied because of the plaintiff's exercise of
his constitutionally protected freedoms of speech and association. Perry was an attempt to suppress speech. Nothing
in that case casts doubt on Congress’s power to impose a disclosure requirement on federal candidates as a condition
on the receipt of a government-created benefit like lowest unit charge.

129


make greater coordinated expenditures in support of federal candidates, see 2 U.S.C. 441a(d); make

greater contributions to Senate candidates (up to $35,000 in the election year), see 2 U.S.C. 441a(h); and
transfer hard money to other party committees without being subject to the contribution limits that apply
to such transfers by nonparty committees, see 2 U.S.C. 441a(a)(4).”

Moreover, the differential treatment of political parties under BCRA rests on the fact that unregu-
lated donations to political parties pose unique threats of corruption. See Gov’t Br. at 90-93. The defining
feature ofa political party under FECA is that it “nominates a candidate for election to any Federal office
whose name appears on the election ballot as the candidate of” the party. 2 U.S.C. 431(16). Thus, unlike
other organizations, the ultimate goal of political parties is not just to persuade officeholders to favor their
views, but “to obtain control of the levers of government by winning elections.” Nader v. Schaffer, 417

F. Supp. 837, 844 (D. Conn.), aff'd mem., 429 U.S. 989 (1976); see also Colorado I, 533 U.S. at 449

(“There is no question about the closeness of candidates to parties.”’); id. at 450 (“Parties are organized
for the purpose of electing candidates.”).°
Thus, the parties alone “stand as deliberate associations of individuals drawn together to advance

common aims by nominating and electing candidates who will pursue those aims once in office.” Rosario

v. Rockefeller, 458 F.2d 649, 652 (2d Cir. 1972), aff'd, 410 U.S. 752 (1973). While interest groups or

corporations typically seek the support of candidates on a limited number of discrete issues, political parties

* Plaintiffs summarily dismiss the favorable treatment they receive as insignificant. Buta limit on contributions
to a national committee that is five times as large as the limit for other political committees, and an advantage that
exceeded $1.5 million in coordinated expenditures for a single Senatorial candidate, see Colorado II, 533 U.S. at 439 n.3,
can hardly be characterized as “minimal,” RNC Br. at 60 n.14.

*° “When it comes to elections, parties know only one ideology, the capital ‘D’ or ‘R’ after the candidates’
names. That practicality is reflected in funding decisions made by party committees that reflect virtually every political
consideration save the candidates’ views on the issues; mavericks are more than welcome if they can win.” Krasno &
Sorauf Expert Rep. at 24; see also D. Green Expert Rep. at 8-9 & n.10; Rudman Dep. Tr. at 49 (distinguishing national
political parties from interest groups, stating that the “Republican National Committee, the Democratic National
Committee, have one purpose in life, to elect people”); Briffault II, 100 COLUM. L. REV. at 656 (“Parties are quite different.
Winning elections, and thereby political power, is their preeminent concem.”).

46


I. TITLE I IS NOT SUBJECT TO STRICT SCRUTINY

Contrary to plaintiffs’ contentions, the effect of BCRA’s soft money provisions is to limit contribu-

tions to political parties; they place no limits on the amount of party expenditures. The national party soft
money ban, for example, imposes no limitation on the amount ofa national political party’s expenditures.
Rather, the ban simply requires that the party not accept any funds that do not comply with FECA’s
contribution limitations. Because national party committees will only have hard money, the provision’s
references to spending funds not raised under FECA’s limits impose no independent restrictions. Similarly,
BCRA does not place a cap on the amount of expenditures by state-level party committees. Rather, the
statute simply requires that the money used to fund “Federal election activity” be raised in compliance with
the longstanding federal contribution restrictions or, ifthe committee prefers, in compliance with the more
lenient Levin Amendment provisions.

Asrestrictions on the solicitation and acceptance of contributions, rather than on the amount of
expenditures, the provisions of Title I are not subject to strict scrutiny. The Supreme Court has “consis-
tently held that restrictions on contributions require less compelling justification than restrictions on inde-
pendent spending.” Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387 (2000) (“Shrink Missouri”)
(citation omitted). Thus, a contribution limit is constitutional even ifit involves “‘significant interference’ with

fred

association rights,” as long as it is “‘closely drawn’ to match a ‘sufficiently important interest’. . . though the

dollar amount of the limit need not be ‘fine tun[ed].”” Id. at387-388 (quoting from Buckley v. Valeo, 424



The RNC further suggests that its fundraising practices present no risk of corruption because it

“rarely if ever uses federal officeholders for fundraising.” RNC Br. at 20-21.

Moreover, the RNC, like all national political committees, advertises access to federal
officeholders and candidates in exchange for large donations to party committees.”> See Gov’t Br. at 75-
81.74 In anyevent, Buckley established that Congress is entitled to enact general contribution limits to
reduce “the opportunities for abuse inherent in a regime of large individual financial contributions,” 424 U.S.

at 27 (emphases added), whether or not a particular regulated party has engaged in such practices.

> The legislative record includes numerous examples of party committees advertising donations to the party
as the price of access to important policy makers. An invitation to a 1997 senatorial campaign committee event, for
instance, promised that “large contributors would be offered ‘plenty of opportunities to share [their] personal ideas and
vision with’ some of the top leaders and senators.” 147 Cong . Rec. $3248 (Apr. 2, 2001) (Sen. Levin). The invitation
further stated that failure to attend means that “‘you could lose a unique chance to be included in current legislative
policy debates — debates that will affect your family and your business for many years to come.’” Id.; see also 145 Cong.
Rec. $12745 (Oct. 18, 1999), As Senator Levin remarked, “[nJo American should think that because he or she cannot
contribute a huge sum of money they are then going to be unable to participate in a debate which affects family and
business for many years to come.” 147 Cong. Rec. $2979 (Mar. 27, 2001). Other examples of solicitations offering access
to federal officials in exchange for large soft money contributions to national party committees appear at, e.g., 147 Cong.
Rec. $3249 (Apr. 2, 2001) (Sen. Levin); 147 Cong. Rec. $2530 (Mar. 19, 2001) (Sen. Lieberman).

24

20


RNC to persuade people to donate money. As the Court in Buckley recognized, any indirect burden on
speech caused by contribution limits is not unconstitutional merely because it requires political committees

to raise funds from a greater number of sources. See 424 U.S. at 21-22; see also Buckley, 424 at 94

n.128 (the inability of a party “to get private financial support ... presumably reflects a general lack of
public support for the party”).*° The same is true of the California state parties: if they are unable to raise
as much as they would like under the doubled $10,000 contribution limit in BCRA, this would be because
they lack sufficient political supporters willing to give them that much money. Buckley and Shrink Missouri
clearly establish that Congress can impose reasonable contribution limits, even if the parties subject to that
limit lack sufficient political support or fundraising prowess to accumulate as much money as they would
like in contributions under the limit.*!

The parties’ asserted inability to raise more funds under BCRA’s increased contribution limits than
under FECA’s lower contribution limits is difficult to understand, since individual donors who previously
made soft money contributions to the parties after reaching FECA’s contribution limits will now be able to
make substantially larger hard money donations. Indeed, the RNC ina prior case made the very same
claim that it had maximized its hard money fundraising with respect to the hard dollars it raised in the 1997-
98 election cycle (citing at least one of the same witnesses it relies upon here). See Mem. in Support of
Plaintiffs’ Mot. for Summary Judgment at 14-16, 22, RNC v. FEC, No. 98-CV-1207 (D.D.C., filed June

15, 1999); Plaintiffs’ Opp. to Def.’s Mot. for Summary Judgment at 19, RNC v. FEC, No. 98-CV-1207

* Taxes similarly reduce the amounts available for spending by persons on advocacy, but that does not render
them unconstitutional. Cf. Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 390 (1990) (tax provision
“merely decreases the amount of money appellant has to spend on its religious activities [but] any such burden is not
constitutionally significant”).

“' In any event, as discussed in our opening brief, Gov’t Br. at 87-89, Congress concluded that the soft money
ban would not deprive parties of the resources they need to operate and would ultimately strengthen the parties by
increasing their base of support. 147 Cong. Rec. $3106-07 (Mar. 29, 2001) (Sen. Feingold) (“Throughout much of the
1970s and 1980s, soft money was mostly absent from party fundraising. The parties raised hard money, and ran their
parties on hard money. ... We didn’t need soft money then, and we don’t need it now.”).

40


federal offices to all offices on the state’s general election ballot (11 C.F.R. 106.5(d)), often resulting in a
lower allocation ratio. See Gov’t Br. at 27-28.

Thus, even prior to BCRA, state and local political parties were required to finance certain activities
—principally contributions or expenditures in connection with federal elections— entirely with federal funds,
and to finance others with a significant allocated percentage of federal funds. Although the RNC once
challenged the validity of the FEC’s allocation regulations, RNC v. FEC, 98-CV-1207 (D.D.C. voluntarily
dismissed Aug. 27, 2002), the RNC plaintiffs now acknowledge that pre-BCRA allocation rules “made
an effort to strike a meaningful federal-state balance by governing state-party spending, in part, according
to ballot composition.” RNC Br. at27.> To the extent that plaintiffs thus appear to accept the constitu-
tionality of the pre-existing allocation requirements, plaintiffs have effectively conceded that the activities
in question can be regulated by Congress. Whether the financing of these activities is regulated through the
financing requirements of the allocation rules, or the requirements of BCRA, is a question of policy line-
drawing, not of the constitutional authority of Congress to legislate on such matters.*

Inaddition, plaintiffs also almost completely ignore that the FEC — the independent federal agency
with exclusive jurisdiction to administer, interpret, and civilly enforce FECA° —has already promulgated

regulations implementing Title I pursuant to an expedited schedule established by Congress to ensure that

3 At least some state parties were using federal funds for these activities even before BCRA. Thus, the
Republican Party of Virginia candidly admitted in a 1998 FEC rulemaking that banning soft money would have little impact
since it already was financing most of its activities with hard money. REGO06-0007 [DEV 21].

* Contrary to plaintiffs’ implication, see, e.g., RNC Br. at 15, state-level parties may continue to allocate most
other mixed federal-state activity - anything that benefits both federal and state candidates but is not within the
parameters of “Federal election activity” — under the existing allocation formula. Off-year activities in support of state
candidates, for the most part, can be paid by state-level parties entirely with soft money.

* The FEC is empowered to “formulate policy” with respect to FECA, 2 U.S.C. 437¢(b)(1), “to make, amend, and
repeal such rules . . . as are necessary to carry out the provisions of [FECA],” 2 U.S.C. 437d(a)(8), 438(a)(8), (d), and to
render advisory opinions concerning FECA’s application, 2 U.S.C. 437f. Congress also gave the FEC exclusive
jurisdiction over civil enforcement of these statutes. 2 U.S.C. 437c(b)(1); 437d(a)(6); 437d(e); 437g(a). The FEC also has
authority to defend civil actions in its own name. 2 U.S.C. 437c(f)(4).

6


The Paul plaintiffs also challenge restrictions on personal use of campaign funds under BCRA § 301, but
§ 301 merely codifies past FEC regulations interpreting the prior 2 U.S.C. 439a. See 148 Cong. Rec.
$2143 (March 20, 2002) (Sen. Feingold). BCRA § 301 is rationally related to furthering a legitimate
governmental interest, see Heller v. Doe, 509 U.S. 312, 320 (1993), in ensuring the ethical use of campaign

contributions.

or have a substantial impact on the outcome of an election.”). Although plaintiff Libertarian candidates Carla Howell
and Michael Cloud allege that, without contribution limits, they would have obtained more contributions needed for their
candidacies, see Howell Decl. § 15 [Paul]; Cloud Decl. § 15 [Paul], Howell’s run for a Massachusetts Senate seat in 2000
was ranked by Campaign and Elections magazine as the number one third-party senatorial campaign in that cycle. See
Howell Decl. {5. In addition, Cloud, as principal fundraiser, raised over $800,000 for Howell’s 2000 candidacy. See Cloud
Decl. 110. And this happened even before BCRA’s doubling of the individual contribution limit, see BCRA § 307, which
presumably will benefit any future candidacies of plaintiffs.

127


What little remains of plaintiffs’ attack on Buying Time does not constitute serious analysis. With
respect to the 1998 study, plaintiffs object that eight advertisements were “recoded” from the “student
coders’ original assessments” that they were “genuine” (i.e., coded on Question 6 in the 1998 study as
“providing information”) to “electioneering” (i.¢., coded on Question 6 in the 1998 study as “generating
support or opposition for a particular candidate”). See McConnell Br. at 68-69. Plaintiffs argue that these
eight ads should have been treated as genuine issue ads, and that if their number of airings are factored into
the numerator of the 2000 formula, the estimate of BCRA’s potential overbreadth rises to 64% percent.

This estimate is simply incorrect. First, plaintiffs use the 2000 formula for deriving their result, and,
as we have explained, any calculation of BCRA’s overbreadth is best made by determining the applicable
percentage under the 1998 formula. More importantly, plaintiffs’ estimates should be discounted because
plaintiffs fail to explain any substantive basis for their objection to the manner in which these eight ads were
ultimately treated for purposes of analyzing the 1998 data set. Plaintiffs fail to offer any analysis of the
content of these advertisements, the races in which they were run, or the coding of other, similar advertise-
ments in the database. An examination of these factors clearly demonstrates that the treatment of these
advertisements as electioneering by the authors of Buying Time 1998 was correct. See generally Jonathan

S. Krasno’s Response to Professor Gibson’s Supplemental Rebuttal; see also infra at 82-83 (discussing

Look Out for the Lawyers); 83-84 (discussing AJS/Stabenow); 87-89, 93-94 (discussing AFL-CIO ads);
89 n.94 (discussing AFLT ads); and 92-93 (discussing NPLA ad).

Plaintiffs’ analysis of the 2000 Buying Time study is equally flawed. With respect to the 2000 data
set, six genuine issue ads were identified, see Goldstein Expert Rep. at 26 & n.21, which defendants’
expert Professor Kenneth M. Goldstein used as the basis for his calculations of BCRA’s potential
overbreadth. See Gov’t Br. at 161. As Dr. Goldstein explains, the published Buying Time 2000 study

identified three genuine issue ads that would have met BCRA’s electioneering communications definition.

73


reasonable limits on campaign contributions violate no associational rights. See Buckley, 424 U.S. at 22-
23; NRWC, 459 U.S. at 207 (“[W]e conclude that the associational rights asserted by respondent may
be and are overborne by the interests Congress has sought to protect in enacting §441b.”). Contraryto
plaintiffs’ erroneous characterization, BCRA leaves party committees free to engage in a wide range of
associational activities, including a significant amount of fundraising. Plaintiffs’ associational claims, there-
fore, lack merit.

2. BCRA’s definition of “Federal election activity” is not overbroad or void
for vagueness.

Although some “Federal election activity” can affect state as well as federal elections, the impact
on federal elections is manifest. As Professor Green explained, “[b]ecause the partisan proclivities of the
electorate express themselves toward both state and federal candidates, state parties influence federal

elections directly even when they mobilize their supporters on behalf of a candidate for state office.” D.

Green Expert Rep. at 13 (emphasis in original); see also id. at 13-14 (“[A] campaign that mobilizes resi-
dents ofa highly Republican precinct will produce a harvest of votes for Republican candidates for both

state and federal offices.”); see also D. Green Rebuttal Expert Rep. at 14 (so-called voter mobilization

activities such as direct mail and commercial phone banks have a persuasive impact on voters).

Plaintiffs exaggerate the breadth of the definition of “Federal election activity” ina number of
important respects. For example, throughout their briefs, plaintiffs contend that the inclusion as Federal

election activity of GOTV activity keeps them from advertising support for ballot initiatives and state

27


regarding the appropriate treatment of the political advertisements evaluated in the two Buying Time
reports.

Without offering any evidence that alleged personal bias played any role in skewing the results of
either Buying Time report, plaintiffs launch a personal attack on the political scientists responsible for the
studies by casting them as proponents of “reform.” See McConnell Br. at 67. That attack is meaningless.
To point out that political scientists who study political campaigning and fundraising as a matter of profes-
sional interest acted with awareness that the campaign finance system that existed prior to BCRA was
seriously broken and badly in need of repair, see Gov’t Br. at 37-49, does no more to undermine the
integrity of the Buying Time studies than the accusation that medical researchers studying diseases do so
inan effort to cure diseases, not perpetuate them. See Lupia Rebuttal Expert Rep. at 11 [DEV 5]. What
plaintiffs have failed to establish is that there was any effort on the part of those scholars to tilt the results
of the studies in ways that would be used to support the precise language of BCRA’s provisions. See
Goldstein Rebuttal Expert Rep. at 9 [DEV 5] (“Like any conscientious observer, I was careful not to
compromise my academic reputation by involving myselfin any results-oriented research project.”); Krasno
Rebuttal Expert Rep. at 2 [DEV 5] (“Scholars rarely embark upon research without some expectation as
to its results. But more than most scholars, we had a compelling reason to insure that our results could
withstand allegations of bias.”); Lupia Rebuttal Expert Rep. at 11, 40 (failing to find evidence of any such

effort).

68


corrupting. See RNC Br. at 45. But that would not address the appearance of corruption arising from the
raising of large contributions from soft money donors. Indeed, that would return, in essence, to the regime
that existed prior to BCRA, with FEC regulations defining which activities could be funded with soft money.
See Gov’t Br. at 22-28 (explaining FEC soft money regulations). As explained in our opening brief, Gov’t
Br. at 29-36, 68-86, and as the record makes abundantly clear, that system proved to be ineffective in
curbing the dangers of actual and apparent corruption that the national parties’ soft money fundraising
practices have engendered. The record demonstrates that permitting the national parties to raise funds in
excess of FECA’s contribution limits and funding source restrictions contributes to the reality and percep-
tion of corruption in the political process, regardless of the use that is ultimately made of those funds. See
Gov’t Br. at 74-86.

IV. BCRA’S SOFT MONEY PROVISIONS ARE FULLY CONSISTENT WITH THE

EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT AND ARE
NOT IMPERMISSIBLY UNDERINCLUSIVE.

Plaintiffs contend that the soft money ban in BCRA violates the Fifth Amendment by restricting their
activities without imposing similar restrictions on corporations, unions, or special interest groups. See, e.g.,
McConnell Br. at 57; RNC Br. at 59. But the equal protection component of the Fifth Amendment is
“essentially a direction that all persons similarly situated should be treated alike.” Nguyen v. INS, 533

U.S. 53, 63 (2001) (quoting Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). The political

parties are not similarly situated to corporations, unions, or special interest groups. The significant differ-
ences between political parties and other organizations provide strong support for Congress’s decision to
treat those entities differently.

At the outset, it bears emphasizing, see Gov’t Br. at 90, that political parties receive substantially
more favorable treatment under FECA than corporations, unions, or interest groups. Among other things,

political parties are permitted to receive greater contributions from individuals, see 2 U.S.C. 441a(a)(1);

45


Plaintiffs also mischaracterize the results of the Buying Time studies.“ To understand plaintiffs’
mistake, it is necessary to explore briefly the mathematical computations that generated the results reported
in the two studies. Both the studies and the parties discuss the number of genuine issue ads that might be
regulated by BCRA as a percentage, but the real dispute is, as a percentage of what? Specifically, should
thenumber of genuine issue ads that meet BCRA’s definition of electioneering communication be compared
with (1) the number ofall genuine issue ads run in a given year, or with (2) all advertisements that meet
BCRA’s definition of electioneering communications? The first comparison, used in the 1998 Buying Time
study, measures the percentage of all genuine issue ads that would be regulated by BCRA; the second
comparison, used in the 2000 Buying Time study, measures the percentage of all BCRA-regulated ads that
are genuine issue ads. A graphical representation of the differences between these two measurements is
shown in Figure 1. The intersection of the two boxes represents the numerator, which is the same in each
calculation: all genuine issue ads that also met BCRA’s criteria; the denominators are, as is apparent from

the illustration, quite different.

Plaintiffs also object to the coverage of the two data sets that underlie the Buying Time studies. See
McConnell Br. at 66 n.30. The two studies, however, are quite clear as to their scope — they evaluate broadcast television
advertisements in the nation’s top 75 media markets which serve approximately 80 percent of the nation’s television
viewing public. Neither plaintiffs nor plaintiffs’ expert makes any attempt to meet their burden of explaining how, or
whether, additional data from the nation’s smaller media markets might have changed the results. See Goldstein Rebuttal
Expert Rep. at 23-25; Krasno Rebuttal Expert Rep. at 5; Lupia Rebuttal Expert Rep. at 28. The NRA also argues that
Buying Time is “palpably flawed” because it failed to include the NRA’s half-hour newsmagazines in its calculations.
The Buying Time studies, however, included no half-hour shows of any kind. Thus, the NRA cannot simply selectively
add the airings of its own half-hour shows to the Buying Time data, see NRA Br. at 33, without wildly skewing the
results. In any event, the NRA, which offers no expert testimony regarding the percentage figure it offers up in its brief,
fails to describe how that percentage was derived, and absent any such explanation, it is entitled to no weight.

69


not present a single fact or argument (see id. at 42-44) to establish that political advertising on television

and radio has in any way diminished since Austin was decided, or that the pattern of broadcast editorials
or coverage of political campaigns has changed in the past twelve years. See generally 107 Cong. Rec.
S2613-16 (March 21, 2001) (Senate Debate on role of television in political advertising). In short, the
NRA offers no proof that the rise of the Internet has eliminated the role of the institutional press in keeping
citizens informed about current events, the promotion of which the Austin Court found to be a compelling
governmental interest.

The NRA next contends that because some large media companies “have been merged into larger,

multinational conglomerates,” NRA Br. at 44, Austin can be ignored. As the NRA itself notes, however,

“NBC was acquired in 1985 by General Electric,” NRA Br. at 44 n.31, five years before Austin was

decided. More importantly, this same argument was repudiated in Austin. Rejecting Justice Kennedy’s

dissenting view that the “web of corporate ownership that links media and nonmedia corporations is difficult
to untangle for the purpose of any meaningful distinction,” 494 U.S. at 712-13, the majority concluded that
a“‘valid distinction . . . exists between corporations that are part of the media industry and other corpora-
tions that are not involved in the regular business of imparting news to the public,” id. at 668.'°> Nothing
inthe NRA’s argument undermines that holding, and it is equally applicable to the media exception in
BCRA.

F. BCRA Exempts Non-Profit Corporations That Qualify for the MCFL
Exemption.

While eventually conceding that the Supreme Court in Austin “upheld an independent expenditure

restriction on core political speech,” NRA Br. at 17, the NRA attempts to avoid its import: misstating the

‘os In any event, it is worth noting that BCRA’s definition of electioneering communication covers all

television and radio stations, including cable and satellite systems, that can broadcast to more than 50,000 people in any
state or congressional district where a federal election occurs. Many of these local companies undoubtedly have assets
far less than those of the NRA.

104


challenge BCRA § 203’s financing restrictions: they argue that the provisions violate Buckley by virtue of
encompassing more than express advocacy, see McConnell Br. at 55-56, or, alternatively, that they are
overbroad, see NRA Br. at 49-50; ACLU Br. at 11-13. This challenge fails for the same reason as
plaintiffs’ challenge to § 203: as explained at length in our opening brief, the definition of electioneering
communications underlying both § 201 and § 203 is not vague — and hence it complies with the holding of
Buckley — nor isit overbroad, for it does not encompass a substantial amount of genuine issue advocacy.
See Gov’t Br. at 148-64; see also supra at 66-94.'"°

Second, plaintiffs challenge BCRA’s disclosure requirements on the ground that “the chilling effect

on [associational] rights caused by compelled disclosure is substantial.” Chamber/NAM Br. at 19; see also

NRA Br. at 50; ACLU Br. at 17-19. Buckley makes clear, however, that this line of argument cannot
sustain a facial challenge. The Court in Buckley acknowledged the potential threat to associational rights
posed by disclosure, 424 U.S. at 72-74, but it concluded that associational rights could be adequately
vindicated through as-applied challenges in those specific situations where an individual association could
show “‘a reasonable probability that compelled disclosure of [its] contributors’ names will subject them to
threats, harassment, or reprisals.” Id. at 74.

There is thus no basis for the ACLU’s contention that BCRA is unconstitutional on its face for

failing to exempt “controversial groups” from its disclosure requirements. See ACLU Br. at19. Indeed,

"° BCRA is thus distinguishable from the disclosure provision invalidated in the D.C. Circuit’s decision in
Buckley, cited by plaintiffs. See NRA Br. at 49-50; ACLU Br. at 12-13 (citing 519 F.2d 821, 871-75 (D.C. Cir. 1975)). That
provision covered “any act directed to the public for the purpose of influencing the outcome of an election,” or any
material published or broadcast to the public referring to a candidate and setting forth “the candidate’s position on any
public issue, his voting record, or other official acts, .. . or otherwise designed to influence [the candidate’s election].”
The court found that the provision lacked a sufficient electoral nexus and suffered from incurable vagueness. See
Buckley, 519 F.2d at 872-73, 875. In contrast, BCRA’s Title II narrowly and unambiguously targets electioneering speech:
it applies only to television or radio communications referring to a candidate that are aired in the 30 days before a primary
or 60 days before a general election and that are targeted to the district or state where the election is sited. As shown
by the empirical evidence, the communications that meet BCRA’s carefully crafted test are highly likely to be keyed to
federal elections. See Gov't Br. at 156-64. BCRA thus establishes the requisite electoral nexus found lacking in the
provision in Buckley, while simultaneously avoiding any problems of vagueness.

107


Wi. TITLELIS FULLY CONSISTENT WITH THE FIRST AMENDMENT.

Plaintiffs advance numerous arguments in support of their contention that BCRA’s soft money
restrictions violate their First Amendment rights of free speech and association. But their arguments are
based on the erroneous assumption that the soft money restrictions are subject to strict scrutiny. For the
reasons discussed above, and in our opening brief, the soft money restrictions function only as limits on
campaign contributions, which are constitutional ifclosely drawn to advance sufficiently important govern-
mentinterests. See Buckley, 424 U.S. at 25; Shrink Missouri, 528 U.S. at 388. As explained at length
our opening brief, Gov’t Br. at 58-87, and as discussed further below, Title I readily satisfies this
standard.'7

A. BCRA’s Soft Money Provisions Prevent the Appearance and Real-
ity of Corruption.

In our opening brief, we explained in detail how Title I advances the government’s vital interests
in preventing the appearance and reality of corruption in federal elections and in preventing circumvention
of the contribution limits and funding source restrictions set forthin FECA Gov’t Br. at 66-86 (interests
advanced by national party soft money ban), 99-103 (interests advanced by state party restrictions), 117-
19 (interests advanced by restrictions pertaining to tax-exempt organizations), 123-25 (interests advanced
by restrictions pertaining to federal candidates and officeholders).

The overwhelming evidence demonstrates that the exploitation and abuse of soft money has
fostered corruption and the appearance of corruption in the federal political system, establishing a regime
in which political parties openly provide access to federal officeholders and candidates in exchange for large

soft money donations to political party committees; federal officeholders and candidates have strong

"’ As discussed infra at 128-29, the arguments presented by the governmental defendants on Title I apply to
the Paul plaintiffs’ freedom of the press claims as well.

14


Heller v. Doe, 509 U.S. 312 (1993) 2... ec cece eee ee 129

ITT Rayonier, Inc. v. United States, 651 F.2d 343 (Sth Cir. 1981) 0.0.0... eee eee eee 41
Iowa Right to Life Committee, Inc. v. Williams, 187 F.3d 963 (8th Cir. 1999) .......... 64, 65
Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378 (1990) ............... 40
Jones v. Unknown Agents of the FEC, 613 F.2d 864 (D.C. Cir. 1979). 0.0.0.0... ee eee ee 119
KVUE, Inc. v. Moore, 709 F.2d 922 (Sth Cir. 1983), aff'd, 465 U.S. 1092 (1984) ......... 135
Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998) 2.0... eee eee 126
Loveday v. FCC, 707 F.2d 1443 (D.C. Cir. 1983) 2.0... 133, 135
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 00... ccc cece ccc cece cece ee 127

FEC v.Mass. Citizens for Life (“MCFL”), 479 U.S. 238, 248-49 (1986) ... . 56, 61, 82, 102, 105

Maine Right to Life, Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996),

affd, 98 F.3d 1 (1st Cir. 1996) (per curiam) .........0 0... cece eee eee eee eee 63
Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) ...... 2... cece cece eee ee 97, 98
Martin Tractor v. FEC, 627 F.2d 375 (D.C. Cir. 1980) 20.0... eee eee eee 32, 33
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) «0.2.2.0... cece ee 36, 61, 62
NAACP, Los Angeles Branch v. Jones, 131 F.3d 1317 (9th Cir. 1997) .............. 126, 127
NLRB v. Gissel Packing Co., 395 U.S, 575 (1969)... cece cece eee n eee n teenies 32, 33
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) 2... cece cece eee 8
Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.),

affid mem., 429 U.S. 989 (1976) 20... e nent teen teen ens AT

National Black Police Association v. D.C. Board of Elections & Ethics,
924 F, Supp. 270 (D.D.C. 1996), vacated as moot, 108 F.3d 346

(D.C. Cir.1997) 20 ccd cece nee tenn en eeeees 44
New York State Club Association v. City of New York, 487 U.S. 1 (1988).............. 1, 68
New York Times v. Sullivan, 376 U.S. 254 (1964) 2.0... cece cece cence eae 128

-viii-


volunteering their services,” Buckley, 424 U.S. at 28, and may make unlimited independent expenditures
to express their support for candidates.

The Thompson plaintiffs concede that Congress may constitutionally prohibit contributions by young
children, Thompson & Hilliard Br. at 16, and the other plaintiffs have not disputed that proposition. Thus,
the only dispute here is about the age at which to draw the line. Congress chose the age of eighteen, which
is the traditional age of majority, the age at which the Constitution recognizes the right to vote, and the age
at which legally sanctioned control by parents of their children’s property and associational activities

ceases.'*? Cf, Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1101 (10th Cir. 1997)

(“Plaintiffs have not demonstrated that persons under eighteen have a stronger interest in circulating
[initiative and referendum petitions] than they do in voting. The age requirement [for circulating petitions]
is aneutral restriction that imposes only a temporary disability—it does not establish an absolute prohibition
but merely postpones the opportunity to circulate.”). This was a reasonable policy choice by Congress and
easily survives judicial review. See Gov’t Br. at 205-07.

Contrary to the plaintiffs’ assertion, see McConnell Br. at 91, FECA’s prohibition in 2 U.S.C. 441f
on the making of contributions in the name of another is insufficient to foreclose circumvention of the
individual contribution limits. The Supreme Court rejected a similar assertion in Colorado II. The Colorado
Republican Party had claimed that preventing circumvention of individual contribution limits by limiting
coordinated spending by political parties was unconstitutional because an existing “earmarking” provision
already addressed any risk of circumvention. 533 U.S. at 462. In rejecting this argument, the Court noted
that the party’s “position . . . ignores the practical difficulty of identifying and directly combating

circumvention under actual political conditions.” Id. The Court further explained that “circumvention is

'2 The McConnell plaintiffs assert that Congress should have excluded minors who are “emancipated,”
McConnell Br. at 94, but none of the minor plaintiffs has standing to make that argument because none are alleged to
be emancipated. Accordingly, the constitutionality of applying § 318 to emancipated minors is not presented in this case
and can be addressed in an as-applied challenge, if an emancipated minor ever seeks to make such contributions.

122


second class mailing privileges for periodical amounted to censorship). Section 305, by contrast, promotes
First Amendment values by creating an incentive for candidates to provide more information to the public,
information that makes clear their approval of political broadcasts that refer to their opponents. Such public
disclosure furthers First Amendment values by increasing the amount of information available to the public.
Federal candidates who seek public office have no legitimate interest in refusing to disclose their
sponsorship of political advertisements broadcast on radio or television in support of their campaigns.
Plaintiffs’ suggestion (McConnell Br. at 89) that § 305 is an impermissible effort to “compel”
speech similarly lacks merit.'*? Compelled speech cases generally involve efforts to require individuals to
associate themselves with the messages of other parties that they do not necessarily endorse. See, ¢.g.,
Wooley v. Maynard, 430 U.S. 705, 717 (1977). Section 305, by contrast, simply requires a candidate
to acknowledge responsibility for his own political broadcast and for views conveyed on his own behalf.

IL. SECTION 504 OF BCRA IS CONSTITUTIONAL.

Section 504 of BCRA requires a broadcast station to maintain and make publicly available a
“political file” containing a complete record of requests to purchase broadcast time “made by or on behalf
ofa legally qualified candidate for public office” or to broadcast a “message relating to any political matter
of national importance,” including “‘a national legislative issue of public importance.” The record must
include “the name of the person purchasing the time, the name, address, and phone number ofa contact

person for such person, and a list of the chief executive officers or members of the executive committee or

of the board of directors of such person.”

'S Plaintiffs’ reliance (McConnell Br. at 89) on Cohen vy. California, 403 U.S. 15 (1971), and Brown v. Hartlage,
456 U.S. 45 (1982), is entirely misplaced. Cohen involved the appeal of a criminal conviction for the wearing of a jacket
that displayed an offensive slogan protesting the draft. 403 U.S. at 16. Brown involved a constitutional challenge to the
application of the Kentucky Corrupt Practices Act to a campaign pledge by a county commissioner to reduce his salary
if elected. 456 U.S. at 47. Neither case involved a candidate’s disclosure of sponsorship in a political broadcast on
television or radio, and neither case suggests that Congress may not require such disclosure.

130


—

CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2002, I caused a true and accurate copy of the Defendants’
consolidated Opposition, and Appendices C, D, and E thereto to be served upon the following individuals by email
and/or by hand or Federal Express, overnight delivery:

Jan Witold Baran
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006

Bobby Burchfield
Covington and Burling

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Charles J. Cooper
Cooper & Kirk, PLLC
1500 K Street, N.W.
Suite 200

Washington, D.C. 20005

Michael B. Trister
Lichtman, Trister,
Singer & Ross

1666 Connecticut Ave., N.W.

Washington, D.C. 20009

James Matthew Henderson, Sr.

The American Center for Law
and Justice

205 Third Street, S.E.

Washington, D.C. 20003

Floyd Abrams

Cahill, Gordon & Reindel
80 Pine Street

Room 1914

New York, NY 10005

William J. Olson
William J. Olson, P.C.
8180 Greensboro Drive
Suite 1070

McLean, VA 22102-3860

Kenneth W. Starr
Kirkland & Ellis

655 15th Street, N.W.
Washington, D.C. 20005

John Bonifaz

National Voting Rights Institute
One Bromfield Street

Third Floor

Boston, MA 02108

Sherri L. Wyatt

Sherri L. Wyatt, PLLC
International Square Building
1825 I Street, N.W.

Suite 400

Washington, D.C. 20006

Deborah Caplan

Olson, Hagel, Waters &
Fishburn

555 Capital Mall,

Suite 1425

Sacramento, CA 95814

Frank M. Howard


dates and does not promote, oppose, support, or attack any clearly identified candidate for federal office,
so long as the broadcast is not voter registration, GOTV, generic party advertising, or voter identification
activity. 11 C.F.R. 100.24(c). Thus, state-level party committees are free to use soft money to promote
their state and local candidates on television, since such advertising is excluded from Federal election
activity.

Plaintiffs also suggest, without elaboration, that the term “get-out-the-vote activity” is unconstitution-
ally vague. CDP Br. at 32-33. As explained above, however, the FEC has made clear that the regulatory
definition “is focused on activity that is ultimately directed to registered voters, even if the efforts also
incidentally reach the general public.” 67 Fed. Reg. 49,067. Thus, GOTV activity “has a very particular
purpose: assisting registered voters to take any and all necessary steps to get to the polls and cast their
ballots, or to vote by absentee ballot or other means provided by law.” Id. As the FEC has explained,
it “understands this purpose to be narrower and more specific than the broader purposes of generally
increasing public support for a candidate or decreasing public support for an opposing candidate.” Id. This
controlling interpretation by the agency charged with enforcing BCRA eliminates any vagueness concerns.

Like its definition of GOTV, the FEC has defined “voter registration activity” to exclude all mass
media communications urging registration and voting. The agency’s definition is limited to “contacting
individuals by telephone, in person, or by other individualized means, to assist them in registering to vote.”
11 C.F.R. 100.24(a)(2). As the FEC explained: “The FEC has expressly rejected an approach whereby
merely encouraging voter registration would constitute Federal election activity. The regulation requires
concrete actions to assist voters, rather than mere exhortation.” 67 Fed. Reg. 49,067. And it bears
emphasizing that the definition of “Federal election activity” only encompasses voter registration that occurs
within 120 days of a regularly scheduled federal election. See 2 U.S.C. 431(20)(A)(i). Thus, voter

registration in connection with a special election is explicitly excluded. 11 C.F.R. 100.24(b)(1).

29


*FEC v. Colorado Republican Federal Campaign Committee,

533 U.S. 431 (2001)... cece cece sees eect ee eeeeeereerernnres passim
FEC v. Colorado Republican Federal Campaign Committee,

59 F.3d 1015 (10th Cir. 1995), rev'd on other grounds, 518 U.S. 604 (1996) ......... 62
FEC v. NCPAC, 470 U.S. 480 (1985) 2... cence ene e teen e eens 4
FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) 2... 0c cece nee 107, 108
*FEC vy. National Right to Work Committee, 459 U.S. 197 (1982) ...............00% passim
FEC v. Phillips Publishing, Inc., 517 F. Supp. 1308 (D.D.C. 1981) 00.00... 0. cece eee eee 105
FEC v. Survival Education Fund, Inc., No. 89-0347,

1994 WL 9658 (S.D.N.Y. Jan. 12,1994)... cece eens 64
Faucher v. FEC, 928 F.2d 468 (Ist Cir. 1991)... ice eect ce ete e eee e nee 63
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ............0-0-0. 000s 61, 62
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) 0.20... e eee eeee 97
Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999) ................. 50
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) ...........005 13
Garner v. Louisiana, 368 U.S. 157 (1961) 0... e tent e nes 66
Georgia State Conference of NAACP Branches v. Cox,

183 F.3d 1259 (11th Cir. 1999) 2... cece nee eens 126
Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) 0.0... cece cece cece cee e ences 19
Grayned v. City of Rockford, 408 U.S. 104 (1972) 0... ccc ccc cence eee ee eens 32
Greater New Orleans Broad. Association, Inc. v. United States,

527 ULS. 173 (1999) once ene ene e eens 65
Gregory v. Ashcroft, 501 U.S. 452 (1991) 0... eeete ee t teen enn eens 4, 13
Hannegan y. Esquire, Inc., 327 U.S. 146 (1946) 2.0.0... eters 132

Harrison & Burrowes Bridge Construction Inc. v. Cuomo,
981 F.2d 50 (2d Cir. 1992)... 6.0 eee eeteeee nee e es 111

-vii-


1. Title I infringes no First Amendment rights of association.

Plaintiffs contend that BCRA’s soft money restrictions violate the associational rights of political
party committees by restricting their ability to engage in soft money transactions. See McConnell Br. at
28-31; RNC Br. at 37-44; CDP Br. at 27-43. But BCRA leaves party committees free to engage in
virtually any political activities using money contributed under the statutory contribution limits. And the
statute in no way restricts party officials from conferring with other party committees to discuss campaign
strategy or any other matter. As explained in our opening brief, BCRA’s provisions against circumvention
of the statutory contribution limits are closely drawn to prevent the appearance and reality of corruption.
Accordingly, plaintiffs’ associational claims lack merit. Gov’t Br. at 64-87.

Plaintiffs stress that BCRA restricts the ability of party committees to transfer soft money to other
party committees. As explained in our opening brief, however, it is unclear whether organizations even
have a First Amendment right to associate with other organizations. See Gov’t Br. at 89; DKT Mem.
Fund Ltd. v. Agency for Int’] Dev., 887 F.2d 275, 294 (D.C. Cir. 1989) (“Neither this Court nor the
Supreme Court has held that the Constitution protects rights of association between two organizations.”’).
Even assuming that such a right exists, BCRA does not infringe it. The statute leaves party committees with
ample means of associating with other party committees. Indeed, BCRA continues to allow party commit-
tees to solicit money for, and transfer money to, other party committees. The statute simply requires that
such money be raised in accordance with FECA. The restrictions on inter-party transfers of soft money,
moreover, are simply limits on monetary contributions from one committee to another. Thus, they are not
meaningfilly different from the limits on contributions to multicandidate political committees upheld in Cal.
Med. Ass’n v. FEC, 453 U.S. 182, 198 (1981) (plurality) (“Cal Med”); see id. at 203 (Blackmun, J.,

concurring). The impact of BCRA’s contribution limits on associational activity is modest: party commit-

23


“forbid[s] outside groups from buying time from the media to broadcast different viewpoints,” NRA Br.
at 47, is simply untrue. The amount the NRA can spend on such ads is limited only by the willingness of
its millions of individual members to contribute to the NRA’s separate segregated fund, which in 2000 spent

$17 million to influence federal elections. See

http://www. fec.gov/press/053101 pacfund/tables/pacdis00.htm.

Notably, the media exception speaks of the “facilities of any broadcasting station,” not the facilities

of any broadcasting company. Thus, the media exception is meant only to protect the media’s traditional
role in distributing electoral news and commentary to the public through its ordinary broadcasting, not to
exempt media corporations entirely from section 441b; the exemption applies only to a corporation’s
regular media operations. See MCFL, 479 U.S. at 250-51 (finding that press exemption did not apply to
aspecial election edition of a newsletter regularly published by a corporation because the Court could not
“accept the notion that the distribution of[] flyers by entities that happen to publish newsletters automatically

entitles such organizations to the press exemption”); see also Reader’s Digest Ass’n, Inc. v. FEC, 509 F.

Supp. 1210, 1214 (S.D.N.Y. 1981); FEC v. Phillips Publishing, Inc., 517 F. Supp. 1308, 1313 (D.D.C.
1981); 11 C.F.R. 100.8(b)(2). “A contrary position would open the door for those corporations and
unions with in-house publications to engage in unlimited spending directly from their treasuries to distribute
campaign material to the general public, thereby eviscerating § 441b’s prohibition.” MCFL, 479 U.S. at
251.

Rather than address the relevant precedent, the NRA asserts that this Court should disregard
Austin as obsolete because media corporations no longer “occupy a ‘unique societal role’ in disseminating
information” or “devote their resources to the news business.” NRA Br. at 42. The NRA then offers its

opinion that the rise of the Internet has changed the “fundamental factual premise for Austin’s decision.”

Id. at 44. Yet, even ifthis Court were free to disregard binding Supreme Court precedent, the NRA does

103


Federal Election Commission (“FEC”) implementing the statute. In fact, the statute and the FEC’s regula-

tions are carefully drawn to avoid federalizing ordinary state and local party campaign activity. For exam-

ple:

>

Plaintiffs contend that defining “Federal election activity” to include get-out-the-vote (“GOTV”)
and voter registration activity precludes the state-level parties from using soft money to advertise
support for state ballot initiatives and state candidates whenever a federal candidate is also on the
ballot, even if the federal candidate is not mentioned in the advertisement. The FEC, however, has
limited the definition of governed GOTV and voter-registration activities to contacting voters via
individualized means. Thus, such mass advertising is excluded.

Contrary to plaintiffs’ suggestion, not all activity that affects both state and federal elections must
be funded entirely with hard money. Mixed federal/state activity that is not “Federal election
activity” can, as before, be allocated by state parties between soft money and hard money. Simi-
larly, certain Federal election activity expenses can be allocated between hard money and Levin
Amendment funds.

Contrary to plaintiffs’ suggestions, state parties will not be completely deprived of national party
transfers of funds. National parties remain free under BCRA to transfer hard money to state
parties, except in limited circumstances.

Contrary to plaintiffs’ suggestions, nothing in BCRA prevents state and national parties, and their
members, from meeting or conferring regarding campaign strategy or spending priorities.

Contrary to plaintiffs’ suggestions, the FEC’s regulations make clear that state and local party
officers who also serve on their party’s national committee are free to raise money, including soft

money, when acting on behalf of their state and local committees.

Contrary to plaintiffs’ suggestions, federal candidates may speak at state party fundraising events
“without regulation or restriction,” 67 Fed. Reg. 49,108 (July 29, 2002) (11 C.F.R. 300.64).

Insum, BCRA, as implemented, is far more narrowly tailored than plaintiffs suggest. When plain-

tiffs’ mischaracterizations and exaggerations are set aside, when the realities of the system ofmodern

campaign finance are contemplated, and when the proper standard of review is applied, plaintiffs’ facial

attacks on BCRA must be rejected. Title I readily passes constitutional muster.



ey

went

Joint Government and Intervenors’ Introduction

The consistent, but flawed, theme of plaintiffs’ attack on BCRA is that it represents an
epochal change in the law — that it is “the most threatening frontal assault on core First
Amendment values in a generation,”' that it is the modern-day Alien and Sedition Acts,’ and that it
will fundamentally undermine the political parties.* In truth, BCRA is anything but epochal. The
core provisions of the Act work to restore the law to what it was when Congress banned
corporations and unions from making contributions or expenditures from general treasury funds in
connection with federal elections in 1907 and in the 1940s;* when it imposed limits on contributions
by individuals to candidates and parties in 1974;* and when it treated coordinated expenditures as
contributions in 1976.°

In recent years, corporations, unions, political parties, and wealthy individuals have used
soft money contributions, so-called “issue” ads, and coordinated expenditures to evade these long-
standing restrictions on a massive scale. In the 2000 election cycle, unions, corporations, and
wealthy individuals contributed almost a half billion dollars in soft money to the national parties.”
Although these funds were principally used for the purpose of influencing federal elections, they
evaded coverage under FECA based on the fiction — embodied in plaintiffs’ use of the phrase
“state-regulated funds” — that soft money has nothing to do with federal elections. Yet, even the

RNC’s soft money expert witness acknowledges that the parties have used soft money to “exploit

‘McConnell Br. at 1
2 McConnell 2nd Am. Compl. at { 5: see also McConnell Br. at 4.
> McConnell Br. at 1: RNC Br. passim

* See Gov't Br. at 12-15; Intervenors’ Br. at 2 (citing Tillman Act, Ch. 420, 34 Stat. 864 (1907); Labor Management
Relations Act of 1947. Pub. L. No. 80-101, § 304. 61 Stat. 159 (“Taft-Hartley Act”)).

See Gov't Br. at 16-17: Intervenors’ Br. at 2-3 (citing Federal Election Campaign Act Amendments of 1974. Pub.
L. No. 93-442. 88 Stat. 1263 (codified as amended at 2 U.S.C. § 431 ef seg.) (“FECA”).

° See Intervenors’ Br. at 3 (citing 2 U.S.C. § 441a(a)(7)(B)(i)).

Thomas E. Mann. Report of Thomas E. Mann (Sept. 23, 2003) at 24 & Table 3 [DEV 1-Tab 1, hereinafter Mann
Expert Report]

1-1


TITLE oe enn en ene e nent e ae 120

PRESENTATION BY GOVERNMENTAL DEFENDANTS .........- 00:0 e eee ee eee 120
I. THE MILLIONAIRE PROVISIONS OF TITLE I ARE CONSTITUTIONAL ..... 120
A. The Millionaire Provisions Do Not Violate Equal Protection .............. 120

B. The Millionaire Provisions Do Not Make the Contribution Limits
Unconstitutional... 2.0... eee etcetera ees 121

I. SECTION 318 OF BCRA, PROHIBITING CERTAIN POLITICAL CONTRIBUTIONS
AND DONATIONS BY CHILDREN UNDER THE AGE OF EIGHTEEN, DOES NOT
VIOLATE THE FIRST AMENDMENT ...... 22.000 cece eee e eee enee 123

Wl. THE INCREASE IN THE INDIVIDUAL CONTRIBUTION LIMIT TO $2,000 IS
CONSTITUTIONAL . 2... oon nent ene e ee 126

TV. THAT CERTAIN CONTRIBUTION LIMITS ARE NOT INDEXED FOR
INFLATION DOES NOT VIOLATE EQUAL PROTECTION PRINCIPLES ...... 128

V. THE PAUL PLAINTIFFS’ CHALLENGE TO FECA AND BCRA LACKS

MERIT 2... nn ne ene nen ee een enn eee 128
TITLES Il AND V: CLAIMS AGAINST THE FCC... 1 eee nee eee 130
PRESENTATION BY THE UNITED STATES DEFENDANTS .............-0.00 0005 130
I. SECTION 305 OF BCRA IS CONSTITUTIONAL ....... 00.00. c eee eee eens 130
0. SECTION 504 OF BCRA IS CONSTITUTIONAL ........... 00.00 e cee eee ee 132
CONCLUSION... 06 nee eee nee nena ee 135

-iv-


for almost 25 years before that regulation was first promulgated. Plaintiffs fail to offer evidence that
lobbying was chilled under § 441a(a)(7)(B) during those decades, '” and there is no reason to believe this
provision will have that effect now.’ Cf. Colorado II, 533 U.S. at 449 (party’s claim that unlimited
coordinated spending “‘s essential to its very function” amounts to saying that “for almost three decades
political parties have not been functional or have been functioning in systematic violation of the law.”).
Moreover, Congress did not intend “that lobbying meetings between a group and a candidate
concerning legislative issues could alone lead to a conclusion that ads that the group runs subsequently
concerning the legislation that was the subject of the meeting are coordinated with the candidate” and that
the FEC’s rule should not “lead to a finding of coordination solely because the organization that runs the
ads has previously had lobbying contacts with the candidate.” 148 Cong. Rec. $2145 (Mar. 20, 2002)
(Sen. McCain). There is also nothing in the Notice of Proposed Rulemaking, 67 Fed. Reg. 60,042,
suggesting that the FEC is contemplating a rule that would have such an effect; to the contrary, the
proposed regulation focuses on communications with a candidate or party committee about a particular
campaign expenditure, not on discussion of legislative issues. No incumbent federal lawmaker will be
running for reelection before 2004, and there is nothing in the statute, the notice of proposed rulemaking,
or the FEC’s prior enforcement of § 441a(a)(7)(B) suggesting that lobbying during the next few weeks,
or even months, could result in an otherwise independent public communication that is not distributed until
2004 being deemed “coordinated.” Accordingly, plaintiffs have failed to present any grounds for

disregarding the longstanding “policy of strict necessity in disposing of constitutional issues.” Rescue Army

"2 Far from being chilled, from 1997 to 1999 lobbying expenditures grew from $1.26 billion to $1.45 billion, a 7.3%
annual rate. See www.opensecrets.org/bus/lobby00/index.asp (visited Nov.16, 2002). This rapid growth occurred during
the period ending a year before promulgation of the 2000 regulation that plaintiffs now say is essential to avoid the
“chilling” of their lobbying activity.

' Tn any event, any concern plaintiffs have about the legality of their activities under § 441a(a)(7)(B) can be
addressed in an advisory opinion under 2 U.S.C. 437f. Plaintiffs’ reading of Buckley as foreclosing reliance upon the
advisory opinion process to address questions of vagueness and chill is contrary to law. See supra at 32-33 & n.33.

115


e.g., AFL-CIO Br. at 11. BCRA merely requires that they pay for such advertising using funds from their
separate segregated accounts, and, at that, only to the extent the ads meet BCRA’s definition of election-
eering communications. For example, the AFL-CIO’s “Deny,” was aired in the states of 17 U.S. Senators,
only four of whom were then candidates for re-election. See AFL-CIO Br. at 9, BCRA would only have
required the use of PAC funds to pay for the ads targeting those four Senators. The statute would not have
regulated the ads aired in the other 13 states at all. This does not amount to suppression of speech that
warrants facial invalidation of a critical legislative enactment that Congress determined was necessary to
forestall political corruption.

All told, plaintiffs have failed to show by example, anecdote, or illustration that BCRA is substan-
tially overbroad. When put in context, nearly all of plaintiffs’ purported “issue ads” reveal a genuine
electioneering intent. Attaching financing restrictions and disclosure requirements to such advertisements
is both constitutional and unremarkable. With respect to those few that ads that present closer calls,
plaintiffs do not establish that they, or ads like them, comprise any significant portion of the communications
regulated by BCRA, and therefore cannot demonstrate, on the basis of the handful of airings of those ads
that would have fallen within BCRA’s objective definition, that financing restrictions and disclosure require-
ments necessitate a finding that BCRA is substantially overbroad.

d. The evidence plaintiffs rely upon demonstrates the
constitutionality of BCRA’s “backup” definition.

A large part of plaintiffs’ discussion, see McConnell Br. at 70-75, focuses on their challenges to
the alternative, or “backup” definition of electioneering communications. See Gov’t Br. at 170-172

iscussing a), adding 2 U.S.C. ii)). support of their challenge to this
(di ing BCRA § 201(a), adding 2 U.S.C. § 434(f)(3)(A)(ii)).' In f their challenge to thi

'® Plaintiffs regard the fallback definition as an “[a]pparent acknowledgment of the manifest constitutional
infirmity” of BCRA’s primary definition, McConnell Br. at 45, but their perception is flawed. As introduced in February
1998, the Snowe-Jeffords amendments included just one definition of electioneering communications, that which is now
known as the primary definition, see 144 Cong. Rec. $906 (Feb. 24, 1998); Gov’t Br. at 50-51, and this remained the case

93


shortly before an election, and requires disclosure of the donors who fund such campaign-related advertise-
ments. Seeinfra at 55-58, 108-112; Gov’t Br. at 129-48, 172-77 (discussing provisions).*? Section 214
of the statute also requires FEC to enact new regulations to provide better guidance as to when an interest
group’s expenditures (including expenditures for electioneering communications, see BCRA § 202) will be
deemed to have been “coordinated” with a candidate or party and thereby subject to the statutory contribu-
tion limits and source prohibitions.**

Finally, plaintiffs’ prediction that the provisions of Title I “will stifle electoral competition,” RNC
Br. at 69, is without foundation. As Professor Green explains, the reliable evidence statistically demon-
strates that “all forms of campaign finance regulation, including those that limit contributions to the parties,
improve the electoral prospects of challengers.” D. Green Rebuttal Expert Rep. at 15 (discussing
Stratmann and Aparicio-Castillo (2002)).°° Indeed, “[t]he massive influx of soft money into state and
federal elections beginning in the early 1990s has had no effect on the electoral performance of challengers

in U.S. House elections.” Id. at 17.

% The disclosure requirements in Section 201 of BCRA substantially redress the lack of accountability that
plaintiffs cite, see RNC Br. at 68-69, as a problem with electoral activities conducted by interest groups. See 147 Cong.
Rec. $3034 (Mar. 28, 2001) (Sen. Jeffords) (“We deter the appearance of corruption by shining sunlight on the
undisclosed expenditures for sham issue advertisements. Corruption will be deterred when the public and the media are
able to see clearly who is trying to influence the election.”).

* Plaintiffs’ suggestion that Title I should be invalidated in the event that Title [1 is struck down, McConnell
Br. at 42 n.15, is flatly at odds with the severability provision that Congress included in BCRA § 401, as is the suggestion
that the remainder of Title I should be invalidated in the event that any one of its provisions is struck down, RNC Br. at
71. The severability provision “creates a presumption that Congress did not intend the validity of the statute in question
to depend on the validity of the constitutionally offensive provision.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686
(1987); see also Buckley, 424 U.S. at 108-09. Moreover, before adopting BCRA’s severability provision, Congress
rejected a proposal for a nonseverability provision that would have provided for the very result plaintiffs seek. See 147
Cong. Rec. S3087-S3105 (March 29, 2001) (Amendment No. 156 tabled).

‘5 Professor Green further explained that the analysis relied upon by plaintiff's expert, Professor La Raja, is
methodologically inferior to that conducted by Stratmann and Aparicio-Castillo, and that the data presented by plaintiffs’
expert Lott do not in fact support the contention that campaign finance laws worsen the electoral prospects of
challengers. See D. Green Rebuttal Expert Rep. at 15-17 & nn.10-11.

52


the regulations were in place before the statute took effect on November 6, 2002. BCRA § 402(c).
Those regulations narrowly interpret many of BCRA’s provisions, including the definitions underlying the
statutory phrase “Federal election activity,” ina manner that eliminates many of plaintiffs’ arguments. See

Pinnock v. Int’| House of Pancakes Franchisee, 844 F. Supp. 574, 581 (S.D. Cal. 1993) (interpretation

of statute by enforcing agency must be considered in vagueness challenge); Ward v. Rock Against Racism,
491 U.S. 781, 795-96 (1989); cases cited infra at 8.

During that rulemaking, the FEC received several comments objecting to the proposed regulations
on similar Tenth Amendment grounds. The FEC’s final regulations address these concerns. The FEC,
for example, concluded “that it must define GOTV [get-out-the-vote activity] in amanner that distinguishes
the activity from ordinary or usual campaigning that a party committee may conduct on behalf of its candi-
dates. Stated another way, if GOTV is defined too broadly, the effect of the regulations would be to
federalize a vast percentage of ordinary campaign activity.” 67 Fed. Reg. 49,067. The FEC, therefore,
defined “GOTV activity’ as “contacting registered voters . . . to assist them in engaging in the act of voting.”
Id.; 11 C.F.R. 100.24(a)(3). This is “narrower and more specific than . . . generally increasing public

support for a candidate or decreasing public support for an opposing candidate.” 67 Fed. Reg. 49,067.”

° REG008-0175-0193 (RNC) [DEV 22]; REG007-01 66-0188 (Association of State Democratic Chair) [DEV 23];
REG007-0272-0289 (Michigan Democratic Party) [DEV 23]. See also REG008-0016-0019 (Peter Bearse) [DEV 22].
See generally Transcript of Public Hearings (June 4-5, 2002) [DEV 24 & DEV 25].

? The FEC’s regulation also explicitly excludes “any communication by an association or similar group of
candidates for State and local office or of individuals holding State or local office if such communication refers only to
one or more state or local candidates.” 11 C.F.R. 100.24(a)(3). As the FEC stated in its Explanation and Justification, “this
exclusion keeps State and local candidates’ grassroots and local political activity a question of State, not Federal law.
Interpreting the statute to extend to purely State and local activity by State and local candidates would potentially bring
into the Federal regulatory scheme thousands of State and local candidates that are currently outside the Federal system.
The FEC declines to undertake such a vast federalization of State and local activity without greater direction from
Congress.” 67 Fed. Reg. 49,067.


explained in our opening brief, however, the fact that such contributions were not indexed does not offend
the Constitution. See Gov’t Br. at 111-13.

v. THE PAUL PLAINTIFFS’ CHALLENGE TO FECA AND BCRA LACKS MERIT.

The Paul plaintiffs have challenged all disclosure provisions of FECA’ and BCRA, as well as
other provisions of BCRA, as violating the freedom of the press. These plaintiffs assert that freedom of the
press is a significantly greater guarantee than the guarantees of free speech and association or of equal
protection. See Paul Br. at 9n.3.'°” The guarantee of freedom of the press, however, offers no greater
protection than other related constitutional guarantees. See New York Times v. Sullivan, 376 U.S. 254,

269-71 (1964) (construing freedoms of speech and press as one and the same); see also Austin, 494 U.S.

at 668 (“[T]he press’ unique societal role may not entitle the press to greater protection under the
Constitution.”). Thus, though phrased differently, the Paul plaintiffs’ arguments present no distinct or better
constitutional challenge to FECA or BCRA than those already rejected in Buckley and subsequent cases,
or those challenges made by other plaintiffs in this litigation. Accordingly, the arguments already presented
by defendants in defense of Title I and Title II apply fully to the Paul plaintiffs’ arguments as well. And as
to their Title IN claims, the Paul plaintiffs have not shown in this facial challenge that contribution limits

unconstitutionally discriminate against third-party candidates as aclass.'** See Buckley, 424 U.S. at 31.'”

6 To the extent that the Paul plaintiffs challenge provisions of FECA not amended by BCRA, this Court should
not exercise jurisdiction over their claim. See Gov’t Br. at 190 n.130.

137. Plaintiffs also challenge all disclosure provisions as imposing prior restraints, editorial controls, and
discriminatory economic burdens, see Paul Br. at 13-18, but BCRA does not authorize the government to edit or enjoin
anyone’s speech. Although the Paul plaintiffs state that they perform some of the same functions as the press — by, for
example, extensively “publishing” through press releases, unpaid appearances on television and radio, and through their
own websites and bumper stickers — these plaintiffs do not exist, as the press does, to “inform[] and educate[] the public”
or to provide a “forum for discussion and debate,” Austin, 494 U.S. at 667 (citations and intemal quotation marks
omitted). Instead, their purpose is to promote their own candidacies and legislative agendas. See, e.g., Paul Decl. | 4
[Paul]; Bossie Decl. § 3 [Paul].

"38 To the extent the Paul plaintiffs challenge the fact that certain contribution limits are not indexed for inflation,
Paul Br. at 27 n.11, this challenge is answered by our opening brief, Gov’t Br. at 111-13.

"9 See also Buckley, 424 U.S. at 34-35 (“Moreover, any attempt to exclude minor party and independents en
masse from . . . [FECA’s] contribution limitations overlooks the fact that minor-party candidates may win elective office

126


Village of Arlington Heights v. Metropolitan Housing Development Corp.

429 U.S. 252 (1977) 2. cence ett e nent teenie nee 128
Virginia Soc'yfor Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) ................. 63
Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th Cir. 1995) .... 0... eee eee 12
Ward v. Rock Against Racism, 491 U.S. 781 (1989) 2.0.6... eee eee 7
Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2002) ....... 0... eee ee 118
Wilson v. United States, 878 F. Supp. 1224 (N.D. Cal. 1995) ........6 0.0.0... e eee 12
Woods v. Miller, 333 U.S. 138 (1948) 2.6... ccc cece eee ene 13
Wooley v. Maynard, 430 U.S. 705 (1977) 2... ec eee eeee 132
Ex parte Yarbrough, 110 U.S. 651 (1884)... 0.00... cece cece ee eeeeeeteeeneeseees 10
Zadvydas v. Davis, 533 U.S. 678 (2001) 2... cence eee eee tenes 8

CONSTITUTION
USS. Const. art. 1§§ 2,300... cece cence tenet n tere eens 127
USS. Const. art. 1§ 4 occ cence eee renee tenet eneneee 9
USS. Const. art. 1 § 81.18 00... cence eee e tenn e nen ene 9
US. Const. amend. Icl.2 20.0.0... cece cece cee cence cnet nen eee assim

2ZUS.C. 324 eben n nent e ene n eee 124
OAC OF 5) Can rare 30, 31, 47, 102
2ZUS.C. 434 0 nee n ence eet bene ene nee 63
92 OS OF (oa a 6
ZUS.C. 437d ote nner b beret nett n nen nents 6, 56
2ZUS.C.437f 6c cence tenet e net ete n eee 6, 32, 33, 117
ZUS.C. 437g cee enter etn ent etn bene tbe e ees 56

-xi-


federal elections. Adams Br. at 12. And the Supreme Court has explicitly rejected the plaintiffs’ argument
that Bullock v. Carter, 405 U.S. 134 (1972), and other decisions involving the right to vote “permit[ ]
Congress to abridge the rights of some persons to engage in political expression in order to enhance the
relative voice of other segments of our society.” Buckley, 424 U.S. at 49 n.55.
These voting cases and the reapportionment decisions serve to assure that citizens are
accorded an equal right to vote for their representatives regardless of factors of wealth or
geography. But the principles that underlie invalidation of governmentally imposed
restrictions on the franchise do not justify governmentally imposed restrictions on political

expression.

Id.; see also Georgia State Conference of NAACP Branches v. Cox, 183 F.3d 1259, 1263, 1264 (11th

Cir. 1999) (“The ballot access cases . . . do not recognize the right to equal influence in the overall electoral
process. .. . [They] only recognize that each voter is entitled to a single, equal vote.”); Kruse v. Cityof
Cincinnati, 142 F.3d 907, 918 (6th Cir. 1998) (quoting Buckley, 424 U.S. at 49.55, in rejecting similar

argument); NAACP, Los Angeles Branch v. Jones, 131 F.3d 1317, 1323 (9th Cir. 1997) (“There is

simply no claim here that voter plaintiffs are denied their right to cast votes in any part of the election
process. We do not equate the ability to contribute financially to a campaign prior to voting with the right
to cast a vote.”); Albanese v. FEC, 78 F.3d 66, 69 (2d Cir. 1996) (“Unlike the plaintiffs in Terry [v.
Adams, 345 US 461(1953)], plaintiffs here are not prevented from voting in any election.”).
BCRA §307 places no restrictions on access to the ballot, and “[c]andidates do not have a
fundamental right to run for public office.” NAACP v. Jones, 131 F.3d at 1324 (citing Clements, 457 U.S.
at 963). Moreover, voters — whether wealthy or not — have no constitutional right to elect particular
individuals to public office. The Constitution itself establishes age, citizenship, and residency requirements
for Representatives and Senators, U.S. CONST. art. 1 §§ 2, 3, and the Supreme Court has upheld actual
restrictions on ballot access that limit the persons from among whom voters can choose in a way that

BCRA does not. E.g., Burdick v. Takushi, 504 U.S. 428 (1992) (ban on write-in voting); Clements v.

124


Now v. Edgar, 56 F.3d 791 (7th Cir. 1995); Wilson v. United States, 878 F. Supp. 1224 (N.D. Cal.
1995). Although those courts concluded that the NVRA “intrudes deeply into the operation of state
government,” Edgar, 56 F.3d at 792-793, and “its impact on such elections probably will be significant,”
Voting Rights Coalition, 60 F.3d at 1415, they nevertheless recognized that Article I, § 4 “specifically
grants Congress the authority to force states to alter their regulations regarding federal elections.” Miller,
129 F.3d at 836. “Because the Constitution specifically delegates to Congress the power to regulate
federal elections and the NVRA is limited to federal elections, by its own terms, the Tenth Amendment is
inapplicable.” Condon v. Reno, 913 F. Supp. 946, 963 (D.S.C. 1995). Thus, “Congress through the
NVRA may directly regulate the state’s manner and means of voter registration without invading an area

reserved to the states.” Wilson, 878 F. Supp. at 1328 (citation omitted). The states remain free under the

NVRA to establish separate registration requirements for state elections, but if the states continue to
maintain a single, unified registration system for their mixed elections, they are required to follow the federal
requirements. See Miller, 129 F.3d at 836. Similarly in this case, involving a less directly intrusive statute,
if the states choose to continue holding their elections on the same day as federal elections, state-level
political parties must comply with BCRA.'®

In Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995), the D.C. Circuit rejected First Amendment
challenges to an SEC rule restricting the ability of municipal securities professionals to contribute or solicit
contributions to the political campaigns of certain state officials. The Court also rejected as “meritless” a

Tenth Amendment challenge that the provision “usurps the states’ power to control their own elections.”
Blount, 61 F.3d at 949

Rule G-37 neither compels the states to regulate private parties, as the Tenth Amendment
prohibits. .., nor regulates the states directly, a question on which the Supreme Court’s

'S State-level party committees in states that conduct their elections in odd-numbered years are still subject to
BCRA, but the statute will result in far fewer restrictions in those circumstances.

12


b. The record reflects that most of plaintiffs’ “powerful
illustrations” of issue advocacy were broadcast for

purposes of influencing federal elections.

Ofthe 25 or so ads chosen by plaintiffs that, in fact, would have been subject to BCRA had it been.
in effect at the time the ads were run, many provide compelling demonstrations of electioneering, and in
some cases were cited as such in defendants’ opening brief. See Gov’t Br., App. A, Tab 1 (Interest Group
“Tssue Ads”). Both the plain language of these ads and an understanding of the context in which they were
run demonstrate that they were designed and intended to influence the outcome of federal elections. Just
as the Buying Time coders’ perceptions of the advertisements are useful to demonstrate that BCRA’s
definition captures very few ads that are not calculated to affect the outcome of federal elections, so, too,
the contextual information revealing the political climate in which a particular advertisement was run bolsters
the conclusion that BCRA’s objective properly limits regulation to those ads that have an impact on federal
elections. Even with respect to those few ads identified by plaintiffs that some might find to be closer calls,
itremains true that the particulars of the ads and their context provide some evidence of electioneering.
Andas we have discussed, the fact that some of these communications combine both electioneering and
genuine issue advocacy in one does not exempt such a communication from regulation where Congress’s
compelling interests are implicated.*

By way of example, plaintiffs single out more than once in their submissions to the Court an adver-

tisement run by the American Association of Health Plans (“AAHP”) called “Trial Lawyers.”®> The ad was

® Just as when express advocacy is combined with issue advocacy, the presence of the latter does not insulate
the former from regulation. In MCFL, the Court explained that the publication at issue constituted express advocacy
because it could “not be regarded as a mere discussion of public issues” but instead “provide[d] in effect an explicit
directive” and went “beyond issue discussion to express electoral advocacy.” 479 U.S. at 249. The same applies when
electioneering is combined with issue advocacy.

*° See McC 030 (storyboard); McConnell Tape, No. 4 (video); see also Gov’t App. A, Tab 1, No. 52. CMAG
has labeled the advertisement “Look Out for the Lawyers.”

81


obviously very hard to trace. The earmarking provision... . would reach only the most clumsy attempts to
pass contributions through to candidates.” Id. The Court refused, therefore, “[t]o treat the earmarking
provision as the outer limit of acceptable tailoring.” Id. The shortcomings of reliance only upon § 441 fare
similar. See Gov’t Br. at 203-04, 207-08.

For similar reasons, the other options suggested by the plaintiffs, see McConnell Br. at 94, are
inadequate to eliminate the opportunity for parents to circumvent the contribution limits by attributing
contributions to their children. Contributors are not required to disclose their ages or their family relationship
with other contributors, so there is no way to identify all suspect contributions from information that is
publicly available. Requiring such disclosures and undertaking investigations to determine the extent to
which children’s contribution decisions were controlled or influenced by the children’s parents, as plaintiffs,
ineffect, suggest, would be more intrusive on constitutional interests than the contribution restriction enacted
by Congress.

“Neither the right to associate nor the right to participate in political activities is absolute.”
Buckley, 424 U.S. at 25 (quoting Letter Carriers, 413 U.S. at 567).!° The prophylactic contribution
restriction Congress adopted eliminates an opportunity for circumvention of the contribution limits, while
leaving minors with multiple ways to participate in political campaigns and express their views regarding
candidates. It is, therefore, constitutional.

Ili. THE INCREASE IN THE INDIVIDUAL CONTRIBUTION LIMIT TO $2,000 IS
CONSTITUTIONAL.

Despite some lengthy rhetoric, the Adams plaintiffs ultimately concede that BCRA § 307, in raising

the individual contribution limit to $2,000, does not interfere with the right of the “non-wealthy” to vote in

‘31 It makes no difference that § 318 is a limited prohibition of contributions rather than a limit on their dollar
amount. In NRWC, 459 U.S. at 207-11, the Supreme Court upheld a prohibition of corporate contributions to candidates,
and also a complete prohibition of solicitations of contributions to a separate segregated fund from individuals who were
not members of the corporation. The Court found that the compelling governmental interest in avoiding corruption
justified this infringement of associational freedom. The same interest justifies § 318.

123


Goldstein Expert Rep. at 26 n.21. Dr. Goldstein, in his effort to adopt a conservative approach when
authoring his expert presentation to this Court, adjusted the published Buying Time results by treating as
a genuine issue ad any ad that had ever been considered by any coder to be genuine, for a total of six,
regardless of his agreement with that assessment or the treatment of other, similar ads. These six ads, which
aired a total of 1,413 times in markets throughout the country, accounted for 3.14% of all genuine issue ad
airings by interest groups during 2000 (using the 1998 formula), and for 2.33% ofall ad airings by interest
groups that mentioned a candidate and aired within 60 days of the general election (using the 2000 for-
mula). Goldstein Expert Rep. at 25.

One of these six ads was an advertisement sponsored by Citizens for Better Medicare (“CBM”),

. See Gov’t Br. at 33-34

(discussing AFL-CIO and CBM participation in the 2000 election cycle); see also infra at 87-89. The

2000 database contained six similar ads sponsored by CBM. See Goldstein Rebuttal Expert Rep. at 16-
17 & n.8; Goldstein Cross Tr. (Oct. 24, 2002) Ex. 45. Each of these last six ads was coded as election-

eering by the coders.” Nonetheless, because the one version of the ad listed in Dr. Goldstein’s expert

report had once been mistakenly coded as a genuine issue ad, Dr. Goldstein, out of an abundance of

caution, treated that ad as such for purposes of his expert analysis. See Goldstein Expert Rep. at 26n.21.

” Plaintiffs make the wholly insupportable claim that Dr. Goldstein “inexplicably” treated these six ads as

“sham ads.” McConnell Br. at 69 n.34. As plaintiffs are fully aware, there is nothing whatsoever “inexplicable” about
the treatment of these ads; Dr. Goldstein’s rebuttal report, his deposition testimony, and documents introduced as
exhibits by plaintiffs at their examination of Dr. Goldstein all clearly show that these six ads were treated as electioneering
issue ads by both Dr. Goldstein and the authors of Buying Time 2000 because the coders coded them as such. See
Goldstein Cross Tr. at 216-217; Id. Ex. 39, 42; Goldstein Rebuttal Expert Rep. at 16.

74


ZU S.C. 438 een nen nea 6

2ZUS.C.439a enn etn nee eens 26, 129
ZUS.C.44]a cc cette nett nee e ee 47, 112-114, 116
ZUS.C.441D eee eee tenn en tena 36, 101
ZUS.C.441f one eben enn eet e enn t eee nnnee 124
ZUS.C.44i cnc eee tenn n tenn e nen eees passim
2ZUS.C. 441k cence cence enter n tebe ee nes 124
ATUS.C. 312 ceed ent e teen tenet een eene 130
ATUS.C. 315 cect t nent ence tenn eens 130, 131
ATU S.C. B17 ceed eet nnn e tenet eee enenenees 135
National Voter Registration Act, 42 U.S.C. 1973qq, et Seq. 6.0... eee eee eee eee eee 12
Fed. R. Evid. 803(8)(C) . 0. ccccccccecec nee e terete e eee e eee eeenes 119

ADMINISTRATIVE RULES AND REGULATIONS

LL CFR. 100.8 2... cece cece ere tener nee eens 105
TL CFR. 100.22 20. nnn n tenn beeen eens 63
LL CAFR. 100.24 2... eee cece been een eee 7, 8, 28-31
LL CFR. 100.25 00... ence n tec ene eens 30, 31
LL CBR. 100.27 ccc eccrine nner nner ete e ents 31
LE CFR. 102.5 20.0. center t nent eet nent eee 25
LICR. 10217 oo enn eee n ent n enn eens 26
bs 5 52a 107 Dan 112
LI CBR. 106.5 2... enter n eee ene n een n ener nes 5,6
STO 5 <2 025 a 111, 116

-xii-


see also USA-ACLU 00001-02 (press releases)

[DEV 130-Tab 4]. Notwithstanding this record, the ACLU would have the Court believe that ithas now

“turned to the use of paid media to ensure that [its] views are heard,” and that BCRA “would effectively

mute much of this speech by the ACLU.” ACLUBr. at 5, 6. In fact, the ACLU’s declarants also fail to

identify a single specific ad that the organization will run at any time in the near or distant future that would

qualify as an electioneering communication under BCRA. See Romero Decl. [3 PCS/ACLU 6-19];
Murphy Decl. [3 PCS/ACLU 1-6]. BCRA’s impact on the ACLU’s speech is none.

Thus, although Plaintiffs insinuate that there is a comucopia of activity that the statute would wrongly

reach, when put to the test, their harvest is lean. Plaintiffs’ exaggeration and speculation cannot be ac-

cepted as evidence sufficient to meet their burden of demonstrating that BCRA is substantially overbroad.

80


Contrary to what many people would like to believe, itis well known among campaign
consultants that the “swing voters” who regularly determine the outcome of elections
usually vote on candidate personalities, rather than issues. Regardless of the substantive
topic of any particular ad, one of the single most important messages that a political ad can
convey is the underlying sentiment that a candidate has values similar to or different than
the target viewers of thead. A campaign commercial is most effective if the candidate is
perceived as likeable to the citizens relaxing in their living rooms, and ifthe viewers feel
comfortable that the candidate shares their values. Often, the substantive issue is merely
the vehicle used to demonstrate personal qualities.

Bailey Decl. { 4; see also id. 4] 5-6. Thus, the point of an ad that is seemingly about a vote against a

minimum wage bill may in actuality have been designed as a vehicle to portray the named candidate as
beholden to large corporations.” When such advertisements air during the course of hotly contested
elections, or in battleground states where the control of Congress or the White House may be determined,
itis unimaginable that they do not seek to influence the outcome of the pending election. See Goldstein
Expert Rep. at 20-24; Krasno & Sorauf Expert Rep. at 51, 57 n.140, 69;

Air Wars Between Opposing Groups. The electioneering battles between opposing interest
groups are now familiar stories: big labor vs. big business, environmental lobbyists vs. industrial coalitions,
etc. See Gov’t Br. at 37-49. The various ads cited by plaintiffs in their opening briefand attached video
tape should be viewed in the context of these multi-million dollar, high-stakes battles for control of Con-
gress and of the White House.

The AFL-CIO argues that it sponsors issue ads solely for the purpose of influencing pending

legislation. AFL-CIO Br. at 9-11. However, based upon both their timing and content, the advertisements

90

85


extent BCRA does not limit the amount that wealthy individuals can spend on electioneering communica-
tions, itmerely reflects Buckley’s holding that the government may not limit individual campaign expendi-

tures. See 424 U.S. at 45-48; see also Austin, 494 U.S. at 675-78 (Brennan, J., concurring) (statute not

underinclusive merely because it reflects the requirements of Supreme Court precedent).
4. BCRA permissibly excepts media activities from its coverage.
BCRA, like FECA before it, exempts certain communications distributed through the facilities of
a broadcasting station from regulation. See BCRA § 201 (new FECA § 434(f)(3)(B)); 2 U.S.C.
431(9)(B)(i). The NRA argues that this “media exemption makes BCRA underinclusive to the point of
incoherence.” NRA Br. at 46. Inthe NRA’s view, because media corporations can air news stories or
commentaries that meet BCRA’s definition of electioneering communication, without having to pay for such
communications through a separate segregated fund, BCRA does nothing to stop the appearance of
corruption “associated with the influence of large [media] corporations on elections.” Id. This argument

is also foreclosed by Austin, which concluded that a state segregated fund requirement for corporations

was properly tailored to this governmental interest even though it included a media exception. See Gov’t
Br. at 167-68.

BCRA’s media exception strikes a balance by continuing to protect the traditional role of the press
without exempting media corporations entirely from the restrictions in FECA § 441b. See infra at 104-05.
If Congress someday decides that further regulation of media corporations is necessary, it can take that next
step. Inthe meantime, BCRA’s media exception is not unconstitutional merely because media corporations

may be able to deploy their financial resources in ways that other corporations may not. See Cal. Med.

Chamber understates that role since corporate advertising is typically concentrated in a small number of tight key races.
In the races studied by Professor Magleby, for example, advertising by corporations and other groups rivaled that of
candidates. Magleby Expert Rep. at 22.

101


14; D. Green Expert Rep. at 8-10. Donors make contributions to the political parties “with the tacit
understanding that the favored candidate will benefit.” Colorado II, 533 U.S. at 458. The parties are
“matchmakers whose special meetings and receptions give the donors the chance to get their points across
to the candidates.” Id. at 461. And a party’s special “efficiency in channeling benefits to candidates
threatens to undermine the contribution limits to which. . . [other interests] are unquestionably subject.”
Id. at 454.

As the Supreme Court has recognized, Congress may accord different treatment to entities that

“have differing structures and purposes, and that . . . therefore may require different forms of regulation in

order to protect the integrity of the electoral process.” Cal Med, 453 U.S. at 201; see also Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 665-66 (1990). In light of the substantial differences

between political parties and other organizations, and the unique role parties play in the electoral system,
Congress was justified in treating parties differently.

Plaintiffs contend that Title I is impermissibly underinclusive because it does not subject interest
groups and PACs to the same soft money restrictions applicable to party committees. See McConnell Br.
at 41-43; RNC Br. at 58. This argument appears to be largely the same as the claim of discrimination
discussed above. In any event, as the D.C. Circuit has made clear, “a regulation is not fatally underinclusive

simply because an alternative regulation, which would restrict more speech or the speech of more people,

could be more effective.” Blount, 61 F.3d at 946. Rather, arule will be “struck for underinclusiveness only
ifit cannot ‘fairly be said to advance any genuinely substantial governmental interest,’ because it provides

only ‘ineffective or remote support for the asserted goals,’ or ‘limited incremental’ support.” Id. (citations

omitted). Because a “primary purpose” of underinclusiveness analysis is to “ensure that the proffered state

interest actually underlies the law,”” it requires “neither a perfect nor even the best available fit between

means and ends.” Id. (quoting Austin, 494 U.S. at 677 (Brennan, J., concurring); see also Fraternal Order

48


TITLE I
PRESENTATION BY THE GOVERNMENTAL DEFENDANTS

IL BCRA’S REGULATION OF ELECTIONEERING COMMUNICATIONS IS
CONSTITUTIONAL.

The regulation of electioneering communications enacted under Title Il of BCRA is aimed at
accomplishing two fundamental objectives: preventing distortion and corruption of the political process
when unions and corporations convert their aggregated wealth into “war chests” for political spending, and
informing voters, before they cast their ballots, of the interests to which candidates would be most respon-
sive if elected to office. See generally Gov’t Br. at 129-48, 172-77, BCRA accomplishes these objectives
by adopting a narrow and precise definition of “electioneering communication[s],” attaching segregated
financing requirements to these communications when they are sponsored by unions or corporations, and,
in general, requiring disclosure of large-scale expenditures for communications of this kind. As we dis-
cussed at length in our opening brief, BCRA’s electioneering communications provisions serve compelling
government interests, and withstand plaintiffs’ facial constitutional challenge.

A. BCRA’s Regulation of Electioneering Communications Is Not a
Ban on Speech.

The Title II plaintiffs, like their Title I counterparts, mount their facial attack on these provisions by
mischaracterizing the statute’s objectives, overstating its impact, and disregarding what the evidence plainly
shows: that federal election campaigns in the last decade have been awash in corporate, union, and other
undisclosed spending intended to influence the outcome of those elections, contrary to the design and intent
of the nation’s long-standing campaign finance laws. Nowhere is plaintiffs’ exaggeration of BCRA’s impact

more obvious than in their refrain that BCRA “bans political speech.” See McConnell Br. at 44; see also

id. at 46; NRA Br. at 47. As we have previously explained, neither FECA § 441b nor BCRA § 203 is

abanon speech. Neither statute prevents corporations or unions from framing political messages in any

54


preclude unions and corporations from using their general treasury funds to run certain broadcast
ads that refer to a clearly identified candidate for federal office right before an election in the
candidate’s district and merely require that others make disclosures regarding certain electioneering
ads. Unions and corporations remain free to use their PAC funds (raised voluntarily from
individuals) to run whatever ads they deem fit and entirely to avoid coverage under Title II, by (a)
running the ads at any time in any place in the newspaper or some other non-broadcast medium; (b)
running the ads at any time in any place in any medium without the name or likeness of the
candidate; (c) running the ads in any place in any medium outside the period that is 60 days before a
general election or 30 days before a primary election; or (d) targeting an audience other than the
constituency of the candidate mentioned in the ads.

Plaintiffs also falsely suggest that only a narrow band of zealots support the law, while a
diverse array of groups — that share nothing more in common than a desire to protect First
Amendment values — oppose it. BCRA, of course, was enacted on a bipartisan basis and signed by
the President. Moreover, although the law is described as an affront to the First Amendment, it is
supported in this litigation by virtually every former leader of the ACLU, who collectively disagree
with the position the ACLU espouses here.'? Although it is described as an assault on states’ rights,
it is supported in this litigation by 19 states.'’ Although it is described as an incumbent protection
measure, it is supported by a bipartisan array of former members of Congress — including Senators

Brock, Rudman, Boren, Simpson, Bumpers, Glenn, Simon, and Wirth, and Representatives

"2 See Brief of Amici Curiae, Former Leadership of the American Civil Liberties Union in Support of Defs. FEC, et
al. Only the current leadership of the ACLU, and Ira Glasser, who retired as ACLU Executive Director in 2001, do not
support the defendants’ position in this case. The ACLU’s National Legislative Director from 1972-1976, who signed a
letter to Congress with the other amici publicly supporting the constitutionality of the BCRA, was unable. due to illness,
to consent to appear on the amicus brief. /d. at 2 n.1.

3 See Brief of Amici Curiae. States of lowa, Vermont, Alaska, Colorado, Connecticut, Hawaii, Kansas, Kentucky.
Maine, Massachusetts. Minnesota. Mississippi. Missouri, Montana, Nevada, New Mexico, Oklahoma, Rhode Island.
Washington. the Territory of the United States Virgin Islands, and the Commonwealth of Puerto Rico in Support of
Defs.

1-3


broadcast in North Carolina in 1998, where incumbent Senator Lauch Faircloth was engaged in an ex-
tremely close race against trial lawyer John Edwards:

Worried about rising healthcare costs? Then look out for the trial lawyers. They want

Congress to pass new liability laws that could overwhelm the system with expensive new

healthcare lawsuits. Lawsuits that could make trial lawyers richer. That could make

healthcare unaffordable for millions. Senator Lauch Faircloth is fighting to stop the trial
lawyers’ new laws. Call him today and tell him to keep up his fight. Because if trial law-

yers win, working families lose.

At the time this ad was run, the airwaves in North Carolina were saturated with millions of dollars ofads
tun by Senator Faircloth’s campaign, by the Republican party, and by interest groups portraying Edwards
asa “deceptive,” truth-stretching trial lawyer.** Edwards’ own campaign ads trumpeted Edwards as a trial
lawyer “fighting for the people.” App. C, Tab 1. Thus, for even the most casual observer of the 1998
North Carolina Senate campaign, the mere mention of the words “trial lawyer” would immediately summon
the image of John Edwards. The tag line of the “Trial Lawyers” ad above may as well have read, “if John
Edwards wins, working families lose.” For plaintiffs to place the spotlight on this unabashed electioneering
ad as one of their prime examples of a “true issue ad that would be unfairly captured by BCRA” again
exposes their tendency to overstate the evidence.

Other ads cited by plaintiffs are similarly revealed to be electioneering when viewed in the context
of the competitiveness of the particular elections in which they were run, or in light of the recurrent “air
wars” between labor and business organizations trying to elect Members of Congress sympathetic to their
interests.

Battleground Races. CMAG estimates that interest groups spent approximately $4 million airing

television ads some 8,000 times relating to the 2000 Senate election in Michigan between Debbie

* Several storyboards of ads run by the campaign committees and the political parties are attached hereto as
App. C, Tab 1; see also Joshua Green, “John Edwards, Esq.,” The Washington Monthly, October 2001, available at
www.washingtonmonthly.com/features/ 2001/0110.green.html (describing campaign memos linking trial lawyer attack
ads to election strategy).

82


U.S. 1, 25, 30 (1976) (per curiam) (footnote omitted);! see id. at 421 (Thomas, J. dissenting) (“[T]he
Court appl[ies] something less — much less ~ than strict scrutiny.”).”

I. TITLE IIS A VALID EXERCISE OF CONGRESS’S AUTHORITY UNDER
THE ELECTION AND COMMERCE CLAUSES.

Plaintiffs’ claims that BCRA’s soft money provisions impermissibly intrude on the Tenth Amend-
ment’s principles of federalism and state sovereignty are without merit. BCRA actually represents a
tailored attempt to restore the integrity of existing federal campaign finance regulation by reducing avenues
for evasion of current law and is fully consistent with the Tenth Amendment.

Atthe outset, it bears emphasizing that BCRA neither regulates state elections nor modifies the
states’ regulation of their own elections. It does not invade a core state function, by, for example, establish-
ing the tenure for the state’s own elected officials or officeholders. See Gregory v. Ashcroft, 501 U.S. 452
(1991). Unlike the provisions at issue in the cases cited by plaintiffs, it does not impose or affect qualifica-
tions for candidates or officeholders; regulate the time, place or manner of voting in state elections or the
machinery for filling state offices; regulate voter qualifications for state elections, cf. Oregon v. Mitchell, 400
U.S. 112 (1970); regulate the affairs of the state itself, or its employees or officials; or regulate the pro-
cesses of state government. Indeed, Title lis not directed at the states at all. Title Imerely regulates the
money that some private parties may give to other private parties. Although the federal regulation of these
private financial transactions is in some respects more restrictive than state law is, that is true ofnumerous

federal laws.

' Because contribution limits bear “more heavily on the associational right than on freedom to speak” the Court
has “proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would
survive a speech challenge as well.” Shrink Missouri, 528 U.S. at 388.

? Even if strict scrutiny were applicable, the government interests supporting BCRA are plainly compelling, see
Colo. Republican Campaign Comm. v. FEC, 518 U.S. 604, 609 (1996) (plurality) (“Colorado I”); FEC v. NCPAC, 470 U.S.
480, 496-97 (1985), and Congress narrowly tailored its remedy to address the most serious risks of corruption.

4


The precise course of the line may be uncertain, but no one can come near it without knowing that he does
so, ifhe thinks, and ifhe does so, it is familiar to the criminal law to make him take the risk.”); NRWC, 459
USS. at 211 (rejecting vagueness challenge although “the statute may leave room for uncertainty at the
periphery”); United States v. Barnes, 295 F.3d 1354, 1366 (D.C. Cir. 2002) (“Since words, by their
nature, are imprecise instruments, even laws that easily survive vagueness challenges may have gray areas
at the margins.”) (citation and internal quotation marks omitted).

Plaintiffs’ characterization of the advisory opinion process as a system of prior restraint, CDP Br.
at 34, is at odds with Supreme Court and D.C. Circuit precedent squarely recognizing that such procedures
provide a valuable means of ameliorating vagueness concerns in the context of political activities. See, e.g.,

United States Civil Serv. Comm’n v. Nat’ Ass’n of Letter Carriers, 413 U.S. 548, 580 (1973); Martin

Tractor, 627 F.2d at 384-85 (footnotes omitted).*?

3. Title I’s limitations on solicitations are constitutional.

Plaintiffs contend that Title I violates their free speech rights by impermissibly restricting the ability
of party committees and candidates to solicit money. See McConnell Br. at 26-27; RNC Br. at 46-51.
But the restrictions on solicitation are carefully limited to prevent the reality and appearance of corruption
and are entirely consistent with Supreme Court precedent.

The restriction on solicitations of soft money by national party committees is a direct byproduct of
BCRA’s ban on the receipt, transfer, and use of soft money. Such solicitations, if permitted, would enable

national parties to ask for soft money that BCRA prohibits them from receiving. Congress recognized that

* The Buckley court noted that a comprehensive series of advisory opinions or a rule . . . might alleviate the
[statute’s] vagueness problems.” 424 U.S. at 40 n.47. It decided not to rely on future advisory opinions to reduce
vagueness problems because at that time “the vast majority of individuals and groups subject to” the Act did “not have
a right to obtain an advisory opinion from the Commission.” id, Congress, however, amended the advisory opinion
provision to make it available to “any person,” 2 U.S.C 437f(a)(1), and “[w]hen a means like this one is available to reduce
uncertainty or narrow the statute’s reach . . . the chill induced by facial vagueness or overbreadth is pro tanto reduced.”
Martin Tractor, 627 F.2d at 386.

33


would not have been covered by the statute, the Court should not indulge plaintiffs’ implication that they
are merely providing a few of the many available examples of ads that would be unfairly captured by
BCRA.

The McConnell plaintiffs purport to catalogue the extent to which BCRA’s electioneering communi-
cations provisions will “imperil” their speech, see McConnell Br. at 63-64; but, just as plaintiffs exaggerate
the number of ads that would be regulated under BCRA, so, too, plaintiffs grossly overstate the statute’s
effect on the activities of non-profit corporations such as those that have joined this litigation.

Plaintiffs portray the Southeastern Legal Foundation, Inc. (“SLF”) as anon-profit corporation that
“regularly uses broadcast advertising to further its support” for limited government and individual economic
freedom. Plaintiffs provide as a purported “example” a broadcast advertisement praising Senator
McConnell for his stance on campaign finance reform, aired in September 2002. SLF co-sponsored this
ad with plaintiffs 60-Plus Association, Inc. (“60-Plus”), the Center for Individual Freedom, Inc. (“CIF”),
and the National Right To Work Committee, Inc. (““NRWC”). McConnell Br. at 63. In their discovery
responses, plaintiffs SLF, 60-Plus, and CIF admit that they have never sponsored any other communica-
tions, beside the September 2002 advertisement, that would have been subject to regulation under BCRA.
Their declarants identify not one electioneering communication that they will broadcast in the future. See
Gov’t Br. 130n.95. Moreover, SLF is a 501(c)(3) organization that, as such, is exempt from BCRA’s
regulation of electioneering communications. 67 Fed. Reg. 65,199-200 (to be codified at 11 C.F.R.

100.29(c)(6)). BCRA “imperils” no speech in which these organizations engage.*®

®° It nevertheless merits observation that, in the fiscal year ending June 30, 2001, non-profit 60-Plus received
nearly $300,000 in donations from pharmaceutical corporations, associations, and organizations as such Pfizer, Inc.,
Merck, Inc., the Pharmaceutical Research and Manufacturers of America (“PhRMA”), and Citizens for Better Medicare.
60+ 0040 (tax retum of 60-Plus) [DEV 131-Tab 3].

78


large contributors.” 528 U.S. at 389. Whether or not defendants can point to direct evidence of soft
money contributions made in return for a political quid pro quo is not determinative.'®

Plaintiffs contend that hard money presents the same risks of actual and apparent corruption as soft
money. See RNC Br. at 17, 63. They similarly contend that the “only solution” to a problem of corruption
associated with officeholders and candidates who “are more solicitous of individuals who provide financial
support for their election” directly or indirectly “would be to take money out of politics altogether in order
to force officeholders and candidates to pay equal attention to all of their constituents.” McConnell Br. at
35-36. But the record confirms the common sense proposition that the problem of corruption and per-
ceived corruption grows with the size of the contributions at issue, and soft money simply represents
donations that exceed FECA’s contribution limits or come from the general treasuries of unions or corpora-
tions, which are prohibited from making contributions at all. Because the likelihood ofa recipient feeling
beholden plainly increases with the size of the contribution, BCRA’s requirement that contributors not
donate any money beyond the federal contribution restrictions addresses this problem in a direct and

targeted way.'?

'® Tn any event, defendants have presented considerable evidence of soft money donations that at the very least
appear to have been made to secure political quid pro quos. See Gov’t Br. at 79-81; see also, e.g., Simon Decl. {13 [DEV
9-Tab 37] (“[I]t is not unusual for large contributors to seek legislative favors in exchange for their contributions.”);
Simpson Decl. {10 [DEV 9-Tab 38] (“[D]onations from the tobacco industry to Republicans scuttled tobacco legislation,
just as contributions from the trial lawyers to Democrats stopped tort reform.”); Hickmott Decl. {_ 9 [DEV 6- Tab 19]
(corporate donors frequently give soft money to parties to “influence the legislative process for their business
purposes”);

. Congress noted similar concems. See, e.g., 147 Cong, Rec. S3107-10 (Mar. 29, 2001) (Sen.
Feingold) (“[I]t is important for us to acknowledge that millions of dollars are given in an attempt to influence what we
do.”).

'° Plaintiffs’ own expert, David Primo, testified that, assuming that money does buy access to or influence of
federal officeholders, soft money is more likely to buy access or influence “simply by virtue of the numbers.” Primo
Cross Tr. (Oct. 23, 2002) at 162; accord Krasno & Sorauf Expert Rep. at 15 [DEV 1-Tab 2] (“[T]he much greater size of the
{soft money] individual donations at issue here pose a proportionately larger risk of influencing their beneficiaries than
do contributions of hard money.”); ; Wirthlin Cross Tr. (Oct. 21, 2002) at 57.

16



vy. Mun. Court, 331 U.S. 549, 568 (1947); see also Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 772

(1947) (“[T]he very fact that constitutional issues are put forward constitutes a strong reason for not
allowing this suit either to anticipate or to take the place of the [agency’s] final performance of its
function.”).

Plaintiffs also challenge BCRA § 202, which amends 2 U.S.C. 441a(a)(7) to provide that an
“electioneering communication” coordinated with a candidate or political party is acontribution. Plaintiffs
suggest that “‘the First Amendment limits the coordination concept to express advocacy.” Chamber/NAM
Br. at 12. Coordinated expenditures, however, are contributions under the statute; there is no constitutional
impediment to such treatment, see Colorado II, 533 U.S. at 442-45; and the D.C. Circuit has long
recognized that the Supreme Court “limited [the express advocacy requirement] to those provisions
curtailing or prohibiting independent expenditures. This definition is not constitutionally required for those
statutory provisions limiting contributions.” Orloski v. FEC, 795 F.2d 156, 167 (D.C. Cir. 1986); see also
FEC v. Christian Coalition, 52 F. Supp. 2d 45, 87 n.50 (D.D.C. 1999) (“Buckley read an express
advocacy standard into the statutory provisions regarding independent expenditures” but “with regard to
“coordinated expenditures’ there is no constitutional need to narrow the definition of the term ‘expenditure’
given by Congress”). !"4
Plaintiffs’ express advocacy argument is unsupported by precedent,'TM and “give[s] short shrift to

the government’s compelling interest in preventing real and perceived corruption that can flow from large

campaign contributions.” Id. at 88. After all, the purpose of treating coordinated expenditures as

‘4 When Buckley upheld limits on contributions, 424 U.S. at 24-38, and when it found that “contribution”
includes “all expenditures placed in cooperation with or with the consent of a candidate,” id. at 78, it made no reference
to the express advocacy concept.

25 Plaintiffs rely primarily upon the separate views of a single Commissioner, never adopted by the agency.
See Wertheimer v. FEC, 268 F.3d 1070, 1075 n.5 (D.C. Cir. 2002) (noting “one commissioner” has “stated that he believes
a political party’s ad is not coordinated with the candidate unless it expressly urges a vote for the candidate”).

116


— = a ae

pny power ee eS

LaRocco and Williams — who have nothing to gain from protecting incumbents, but who bring to
bear substantial personal experience regarding the corrosive influence of money on our political
system. And, perhaps most significantly, although BCRA is described as unnecessary, it is widely
supported by a public that, unlike the plaintiffs, perceives that money has grossly skewed the
political process.

In attacking BCRA, plaintiffs further complain that the law goes too far and that Congress
could have accomplished its goals with less comprehensive rules. In truth, BCRA goes as far as
necessary to protect the integrity of the federal political process—and no farther. Many of the same
parties that today rail against the scope of BCRA’s restrictions spent the previous decade
relentlessly creating and exploiting holes in the campaign finance laws. In enacting BCRA,
Congress used its expert judgment to respond to these “‘catch-us-if-you-can” efforts, to close the
most gaping loopholes in the federal campaign finance laws, and to anticipate how parties, unions,
corporations, and wealthy individuals will attempt to evade the new restrictions. In the end,
plaintiffs object because they recognize that BRCA effectively prevents future evasions.

In essence, this case is about whether Congress possesses the authority to enforce long-
established law or whether the Nation must accept rampant evasion that threatens to make a
mockery of that law and the democratic ideals it embodies. Supreme Court precedent makes clear
that the underlying laws are constitutional, and establishes that Congress may enact legislation to
prevent the evasion of campaign finance laws. The legislative history of BCRA, and the evidentiary
record assembled in this case. moreover, demonstrate the extraordinary pattern of evasion that has
taken place in recent years, and the substantial threat of future evasions if nothing were done.

Taken together. this precedent and evidence requires that the Court reject plaintiffs’ challenges.

1-4


Plaintiffs suggest that a $60,000 or $100,000 cap on soft money donations to the political parties
would bea more tailored solution to the problem of soft money. McConnell Br. at38n.14, But Congress
expressly considered, and rejected, the notion that it could achieve its objectives by permitting a limited
amount of soft money donations, above the statutory contribution restrictions, to the national parties, rather
than banning them entirely. The Senate, for instance, debated the “Hagel Amendment,” which would have
permitted the national parties to raise soft money in amounts up to $60,000 per donor in excess of the hard
money limits. See 147 Cong. Rec. $2908 (Mar. 26, 2001) (proposed amendment to S. 27). The House,
like the Senate, rejected proposals that would have capped, rather than banned, soft money contributions
to national parties, noting that they would not reduce the potential for and appearance of corruption.*”
Congress concluded that capping soft money donations rather than eliminating them would represent
legislative approval of direct donations by corporations and unions to national political parties that would
“send[] the campaign finance laws back in time to the very beginning of the 20th century before the Tillman
Act banned direct corporate donations to the parties and before Taft-Hartley banned direct labor contribu-
tions to the parties.” 147 Cong. Rec. S2887-88 (Mar. 26, 2001) (Sen. Feingold) (opposing the Hagel
Amendment).**

Finally, plaintiffs suggest that Congress should have permitted the national party committees to

continue to raise soft money, while imposing restrictions only on the uses of soft money that are most

47 See, e.g., 148 Cong. Rec. H273 (Feb. 12, 2002) (Rep. Turner) (“[T]he so-called Ney-Wynn substitute, does
not clean up the current system. It does not ban soft money from the political process. In fact, Enron could have given
80 percent of the money they gave if the Ney-Wynn substitute becomes law tomorrow.”); 148 Cong. Rec. H260 (Feb. 12,
2002) (Rep. Meehan) (“[T]he Ney bill allows $900,000 in soft money per donor to be given to national parties in just one
election cycle.”); see also H.R. Rep. 107-131, Bipartisan Campaign Reform Act of 2001, Minority Views of Steny H.
Hoyer, Chaka Fattah, and Jim Davis to accompany H.R. 2356 (July 10, 2001), at 48-49 (a “$75,000 annual cap on soft
money to the national parties . . . is [in effect] not a cap at all”).

“8 Plaintiffs’ assertion that Congress should only have banned soft money from corporations and unions,
McConnell Br. at 30, ignores Congress’s equally important interest in avoiding circumvention of the individual
contribution limits. See Cong. Rec. $2931 (Mar. 27, 2001) (Sen. Kerry).

44


at 6-7, 41.!!° Each party’s unified campaign operation “brings all the elements of the party together to unify
and build the party and work collectively on. . . the election of their candidates. ... These persons come
together to set priorities and goals, analyze resources and allocate those resources in an effort to elect as
many of the parties’ candidates as possible up and down the ticket.” CDP/CRP Br. at 7. Accordingly,
far from overriding private associational choice, § 213 merely responds to the affiliation of groups that have
already made their own decision to join ina single political party, and which already routinely cooperate
in devising campaign strategy and deploying their resources to promote their common candidates.

B. Sections 202 and 214 of BCRA Are Consistent with the First Amendment.

Plaintiffs appear to mount two separate arguments with respect to BCRA’s treatment of coordi-
nated expenditures. They have failed, however, to provide any reason to believe their challenge to § 214,
which directs the FEC to promulgate a new regulation addressing coordination, presents any issue ripe for
review. Furthermore, their challenge to § 202, which specifies that electioneering communications coordi-
nated with a candidate or political party be treated as contributions in the same manner that coordinated
expenditures have always been treated, is both contrary to judicial precedent and would undermine the
statute’s purpose of foreclosing opportunities for corruption.

We have already shown, Gov’t Br. at 185-90, why plaintiffs’ argument that “agreement or formal
collaboration” is a constitutional “prerequisite to deeming an expenditure ‘coordinated,”” McConnell Br.
at 83, is incorrect, '”° and why plaintiffs’ apparent belief that § 214 requires the FEC to define coordinated

communications by the four criteria Congress listed in § 214(c), ACLU Br. at 9, 19-20, is erroneous. Even

119 See

"2° As discussed in the FEC’s Notice of Proposed Rulemaking, even the terms “agreement” and “formal
collaboration” must be construed in the rulemaking. 67 Fed. Reg. 60,052 (Sept. 24, 2002) (noting that proposed regulation
“would require some degree of collaboration,” though not “‘formal,’ in the sense of being planned or systematically
approved or executed”),

113


unregulated. See McConnell Br. at 75-77; see also NRA Br. at 37-38. The limited temporal scope of
the provisions, plaintiffs claim, “diminish[es] the credibility of the government’s rationale for restricting
speech.” McConnell Br. at 76.

To the contrary, BCRA’s 60- and 30-day windows effectuate BCRA’s rationale. BCRA’s Title
IL aims to extend existing campaign finance law to cover ads that avoid express advocacy but that are
nonetheless designed to influence federal elections, as indicated by objective criteria. One of those criteria
is the timing of an ad: for obvious reasons, advertisements run in the weeks and months just before the
election occurs are most likely to affect the election. Indeed, in 1998 and 2000, 78-85 percent of interest
group ads referring to candidates ran during the 60 days before the election (as did most of the candidates’
own ads). Goldstein Expert Rep. at 17 & Tbl. 4; Krasno & Sorauf Expert Rep. at 57 & App. Tbls. 3,

6; see also Gov’t Br. at 140-41.'°° Hence, BCRA’s temporal limitations are simply the stitches ofnarrow

tailoring: they limit the statute’s application to those times when electioneering ads are most likely to run.
While some electioneering ads will certainly fall outside BCRA’s 60- and 30-day windows, for Congress
to leave such statutory breathing room is not only permissible, but necessary where it seeks to devise a

bright-line test that avoids unnecessary overbreadth, See Mariani, 212 F.3d at 774 (“First Amendment

underinclusiveness analysis requires neither a perfect nor even the best available fit between means and
ends.”),

Plaintiffs thus err in relying upon Republican Party of Minnesota v. White. US.___, 1228.

Ct. 2528 (2002). See McConnell Br. at 76-77. In that case, the Court struck down a restriction prohibit-
ing candidates for judicial office from announcing their views on legal questions during the course of their

campaign, reasoning that, ifa judge’s announcement ofhis or her legal views threatens his or her impartiality

ws

97


candidates who may feel indebted to the groups sponsoring the ads. Cf.

Finally, television and radio advertisements are typically much more
expensive than non-broadcast advertisements and, thus, constitute a particularly valuable form of political
currency. See NRA Br. at 15 (“All the parties to this action 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 also 106

For all these reasons, television and radio advertisements are currently the most prominent medium
through which corporations, unions, and undisclosed groups have been evading FECA’s restrictions and
undermining the integrity of federal elections. They, therefore, “constitute the most blatant form of [unregu-
lated] electioneering.” 145 Cong. Rec. $511 (Jan. 19, 1999) (Sen. Snowe). Accordingly, Congress chose
to make a priority of addressing these ads in particular, as is its prerogative, for the Supreme Court has
never endorsed an “all or nothing” approach to judging the constitutionality of Acts of Congress, particularly
in the First Amendment area. See Buckley, 424 U.S. at 105 (“[R]eform may take one step at a time,
addressing itself to the phase of the problem which seems most acute to the legislative mind.”’) (citation
omitted). To the contrary, the Court has noted that statutes protecting the government from corruption

involve “an area where precisely targeted prohibitions are commonplace, and where more general prohibi-

‘% Iconsistently, the NRA later suggests in its brief that newspaper advertisements “often dwarf radio
advertisements” in terms of their expense, citing an example of a full-page ad run in the New York Times at a cost of
$65,000, and comparing it with a radio ad run in “a small market such as Peoria” at a cost of $75. This clearly unbalanced
comparison is meaningless as it says nothing about the difference between the average costs of radio and newspaper
advertisements. Indeed, the NRA overlooks that the advertising campaign of which the cited $65,000 New York Times
ad was a part also included a television and radio component costing $1.1 million. See Berman Decl. {11 [NRA App.
256].

99


TABLE OF AUTHORITIES
(Submission of the Governmental Defendants)

FEDERAL CASES

Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 (1947) 2.6... cece 118
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) 2.0... ccc eee enn ees 54
Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996) 0.0.0. 126
America Constitutional Law Foundation, Inc. v. Meyer,

120 F.3d 1092 (10th Cir. 1997) 2... cect cee eee eens 124
Association of Cmty Organizations For Reform Now v. Edgar,

56 F.3d 791 (7th Cir. 1995) 0.0... ccc cece cece eee eee eeeeeeeeveneeeeeees 12
Association of Cmty Organizations For Reform Now v. Miller,

129 F.3d 833 (6th Cir. 1997) 2... e nee teens 12
* Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ...............00 passim :
Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) 2.2... cece eee eens 119
BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir. 1998) 2... ccc ccc nee ee eee 97
Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995)... cee eee eee eee 13, 37, 50, 96, 97
Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987) 0... ccc cece cece eee reece 130
Broadrick v. Oklahoma, 413 U.S. 601 (1973) oo... ccc cece cence eee eens 8, 35. 37
Brown v. Hartlage, 456 U.S. 45 (1982) 0... ccc ccc eee eee ence eee 132
Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982) .............. 109
Bryan v. United States, 524 U.S. 184 (1998) o.oo cece cence teen ence eee 97
*Buckley v. Valeo, 424 U.S. 1 (1976) 06... cece cece cere ene t een n ees passim
Bullock v. Carter, 405 U.S. 134 (1972) ooo. ccc ec rece cece etn e teen ences 126
Burdick v. Takushi, 504 U.S. 428 (1992)... oie e eee e teens 127
Burroughs v. United States, 290 U.S. 534 (1934) 0.0... ccc e cece cence eee eees 5,10


In sum, plaintiffs point to no valid reason for inflating the estimates of overbreadth that were
obtained by careful analysis of the empirical data by the authors of Buying Time and then validated in a re-
analysis of the relevant data sets by defendants’ experts. Plaintiffs, therefore, fail to meet their burden of
demonstrating, on the basis of the only empirical evidence that has been provided to the Court, that
BCRA’s electioneering communications definition is substantially overbroad. As Congress correctly
determined, and as we demonstrated in our opening brief, it is not.

2. Plaintiffs’ anecdotal evidence does not prove that BCRA is
substantially overbroad.

In support of their argument that BCRA’s definition of “electioneering communication” is
overbroad, plaintiffs collectively discuss approximately sixty (60) specific television ads that they think
would be unfairly captured by BCRA.”* The product of months of culling through all of the available issue
advertisements, these 60 ads (compared to the approximately 500 ads run by interest groups in 1998 and
2000,” purportedly represent plaintiffs’ most “powerful illustrations” of BCRA’s overbreadth. McConnell
Br. at61. Asan initial matter, plaintiffs’ anecdotal evidence cannot substitute for a comprehensive empiri-
cal analysis of BCRA’s overall impact on genuine issue advocacy. Defendants recognize that a small
amount of genuine issue advocacy will fall within BCRA’s scope. What defendants deny, and what plain-
tiffs’ anecdoctal evidence alone cannot prove, is that this amount will be so substantial as to warrant facial
invalidation of the statute. In any event, plaintiffs’ anecdotal evidence is overstated: plaintiffs overlook that

many of the ads they cite as examples of BCRA’s overbreadth would not have even fallen within BCRA’s

*5 The McConnell plaintiffs have submitted with their opening brief a VHS tape containing 21 “issue ads.”
Several of these 21 ads are discussed in Plaintiffs’ Opening Briefs, and an additional 38 ads are either referred to in the
text of the plaintiffs’ briefs, or the storyboards are appended to the back of the briefs. This section of our brief will
address each of these ads.

7 See Krasno & Souraf Expert Rep. App. (Spreadsheet: 2000 Formula); Buying Time 2000 at 59 [DEV 46].

76


Moreover, even ifa particular federal officeholder did not personally raise funds from a particular
donor, the officeholder, nevertheless, is likely to know that the donor is a large contributor to the party.
The “party’s involvement does not sterilize the system,” because “[e]lected officials know exactly who the

big party contributors are.” Rudman Decl. J 12 [DEV 8-Tab 34]; accord Bumpers Decl. 20 [DEV 6-

Tab 10] (“[Y]ou cannot be a good Democratic or a good Republican Member and not be aware of who
gave money to the party.”); McCain Decl. 46 [DEV 8-Tab 29] (“Legislators of both parties often know
who the large soft money contributors to their parties are.”).”> Thus, “{p]arty committees do not so much
dilute and ‘cleanse’ private interest money as centralize it and focus it on the President and the congressio-
nal leadership.” Briffault I, 100 COLUM. L. REV. at 651. Federal officeholders have a strong interest in
cultivating future contributions from large party donors, maintaining their good will, and returning their
telephone calls because of the close intersection between the interests of the party and the interests of the

candidate and officeholders. See Gov’t Br. at 72-75; see also Bumpers Decl. § 18 (“those who have

consistently been good party members and good donors can get access” and “get their phone calls re-
turned”).26
Inany event, Buckley and Shrink Missouri upheld limits on all contributions without regard to the

particular method of solicitation or the particular dealings between donor and recipient. As the Supreme

25 These fundraising events also furnish soft money donors with the opportunity to interact with the staffers
who work for federal officeholders. See

Such interactions with staffers can be as beneficial as direct interactions with federal officeholders, cf. Rudman Dep. Tr.
(Sept. 17, 2002) at 17 (noting that having Hill staffers as contacts “is better frankly than having them with the senators”),
and these staffers also know the identities of the big soft money donors, see Simpson Decl. J 9 (“Staffers who work for
Members know who the big donors are, and those people always get their phone calls returned first and are allowed to
see the Member when others are not.”).

?6 Moreover, solicitations from party leaders, like solicitations from officeholders and candidates, are potentially
coercive because party leaders are so closely connected to federal officeholders. See Gov’t Br. at 90 n.76; see also Kolb
Decl. Ex. 6 at 4 [DEV 7-Tab 24] (51% of corporate executives surveyed agreed that “many business executives fear
adverse legislative consequences to themselves or their industry if they turn down requests for campaign contributions
from high-ranking political leaders and/or political operatives”).

21


Buckley specifically rejected the idea of such a “blanket” exemption. See 424 U.S. at 73-74. Nor was
such an exemption recognized in Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982),
as the ACLU represents. ACLU Br. at 18. Brown simply held certain disclosure requirements to be
unconstitutional as applied to the Socialist Workers Party, finding that the district court “properly applied

the Buckley test to the facts of this case.” See 459 U.S. at 98 (emphasis added). The remedy in Brown

was to prohibit application of the statute to that particular political party, not to invalidate the statute on its
face. See id. at 102.

To the extent that the NRA and the Chamber plaintiffs bring such as-applied challenges, they have
failed to make the requisite showing. These plaintiffs have presented no evidence of any “pattern of threats
or specific manifestations of public hostility” sufficient to show that compliance with BCRA’s disclosure
requirements would likely result in harassment of their members.''! Buckley, 424 U.S. at 74. Instead, the
NRA and the Chamber plaintiffs primarily rely on the speculation of their spokesmen, plus limited evidence
that some of their members have reduced or ceased their contributions in the past in order to avoid disclo-
sure of their identities. See NRA Br. at 50; Chamber/NAM Br. at 19. Buckley specifically found testi-
mony of this nature to be insufficient to warrant an exemption from disclosure. 424 U.S. at 71-72 & 72
n.88.!!? It is also worth noting that plaintiffs have presented no serious evidence that the election advocacy

funded through their separate segregated funds has suffered because of the longstanding disclosure require-

1

"2 Moreover, as previously explained, plaintiffs’ fears of having to disclose the identities of their contributors
are undercut by the fact that BCRA does not require a group sponsoring electioneering communications to disclose all
of its contributors; rather, BCRA effectively requires a group to disclose only those persons whose contributions (of
$1,000 or more) are used to fund its electioneering communications. Gov’t Br. at 175.

108


Stabenow and Spencer Abraham, one of the most hotly contested Senate races that year, which ultimately
resulted in challenger Stabenow upsetting the incumbent Abraham. The Cook Political Report (Oct. 25,
2000) at 85 (“Cook Report”) [DEV 38-Tab 17 at INT 15523]. The sponsors of ads in this exceptionally
tight race include a “who’s who” of electioneering interest groups: the AFL-CIO, Americans for Job
Security,®° Americans for Quality Nursing Home Care, the Business Roundtable, the Chamber of Com-
merce, the League of Conservation Voters, the NRA, National Right to Life, and the Sierra Club.
One ad from the Stabenow-Abraham race included in plaintiffs’ video submission is “Debbie Death
Tax.”*° This ad, sponsored by the Michigan Chamber of Commerce, began airing on September 20, 2000,
and continued running until less than a week before the election. The ad was not timed to any particular
upcoming legislative action, and it refers explicitly to two past votes cast by then-Congresswoman
Stabenow. Revealing that the Chamber’s true focus was on the outcome of the Senate race in Michigan,
the Chamber of Commerce not only spent an estimated $250,000 on these estate tax “issue ads,” but also
between September 20 and November 6, 2000, spent an additional $125,000 on “issue ads” concerning
Stabenow’s education agenda, and more than $750,000 on “issue ads” concerning Stabenow’s position

on prescription drug benefits.

5 Americans for Job Security (“AJS”) is a business-backed organization that picked up the mantle of The
Coalition after the 1996 election cycle. See Gov’t Br. at 38-42 (discussing the electioneering activities of The Coalition).
AJS is funded with millions from the American Insurance Association, the American Forest and Paper Association,
Microsoft, and several large pharmaceutical firms. See John Nichols, “Money Flows Into Anti-Wellstone Campaign,”
The Nation, October 23, 2002. AJS’s election year ads have covered an incredibly diverse range of topics including
taxes, education, social security, welfare, crime, clean water, dams, and the personal characteristics of candidates. App.
C, Tab 2. AJS also sponsored an ad targeting Debbie Stabenow in her 1998 race for the House. See “Stabenow Turned
Her Back,” McC 033. This particular ad accuses Stabenow of tolerating gang violence and turning her back on small
businesses and working families.

*° The message of this ad is that, because Stabenow voted against ending the estate tax, “working families are
suffering.” McC Video Tape, Ad No. 9. For additional “issue ads” run in connection with the Stabenow-Abraham
election, see Gov’t Br., App. A, Tab 1, Nos. 12- 15 (“Thanks,” “Who,” “Prescription Drugs,” and “Call Debbie.”). See
also App. C, Tab 3.

83


tees are free to “‘affiliate” with other party committees through contributions ofhard money. Buckley, 424
U.S. at 22.

BCRA prohibits state-level party committees from using hard money received from another
committee to fund Federal election activity pursuant to the Levin Amendment. See 2 U.S.C.
441i(b)(2)(B)(iv). But as an exception to the requirement that Federal election activity be financed only
with hard money, the entire Levin Amendment “is an effort to enhance [plaintiffs’] speech rights,” and its

restrictions accordingly “must be assessed in that light.” See Schenck v. Pro-Choice Network, 519 U.S.

357, 383-84 (1997); see also FEC v. Nat’| Right to Work Comm., 459 U.S. 197, 210 (1982) (“NRWC”)

(upholding restriction on solicitation of contributions to corporation’s PAC on the basis of compelling
governmental interests supporting the overall ban on corporate contributions to candidates, to which the

limited opportunity to establish a PAC was an exception); Sinclair Broadcast Group v. FCC, 284 F.3d

148, 169 (D.C. Cir. 2002) (“As an exception to the local ownership restrictions . . . the eight-voices
exception presents no separate constitutional implications . . . ifanything .. . it decreases the minimal
burden on speech imposed by the Local Ownership Order.”). Congress was not constitutionally required
to provide state-level committees with the option of using Levin funds for federal election activities; it could
have required those committees to fund activity affecting federal elections entirely with money raised in
conformity with federal contribution limits. And state-level committees that do not wish to comply with the
Levin Amendment’s restrictions are free to fund federal election activity entirely with hard money.”®
Moreover, BCRA does not prevent representatives of national, state, and local party committees

from conferring about spending priorities or any other issues. Nothing in BCRA purports to restrict the

8 Plaintiffs contend that Levin Amendment funds cannot include donations from corporations or unions,

even if such donations are allowed under state law. McConnell Br. at 17. But FEC’s regulations make clear that such
donations are permitted where state law allows. See 11 C.F.R. 300.31(c).

24