NO. 08-205

In The

Supreme Court of the United States Supreme Court of the United States

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

 Appellee.

On Appeal from the United States

District Court for the District of Columbia

SUPPLEMENTAL BRIEF OF THE SUNLIGHT

FOUNDATION, THE NATIONAL INSTITUTE ON

MONEY IN STATE POLITICS AND THE CENTER

FOR CIVIC RESPONSIBILITY AS AMICI CURIAE

IN SUPPORT OF APPELLEE

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

July 31, 2009

GARY S. STEIN

 Counsel of Record

PASHMAN STEIN, P.C.

COURT PLAZA SOUTH

21 MAIN STREET, SUITE 100

HACKENSACK, NEW JERSEY 07601

(201) 488-8200

E-mail: gstein@pashmanstein.com

Counsel for Amici Curiae
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE .............. 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. A DECISION OVERRULING AUSTIN

AND/OR THAT ASPECT OF

MCCONNELL ADDRESSING BCRA’S

FACIAL VALIDITY WOULD

INCREASE EXISTING

UNCERTAINTY AND CONFUSION

AMONG LOWER COURTS ABOUT

THE CONSTITUTIONALITY OF

STATE CAMPAIGN DISCLOSURE

STATUTES . . . . . . . . . . . . . . . . . . . . . . . 5

II. BUCKLEY V. VALEO’S LIMITATION

ON CONGRESSIONAL POWER TO

MANDATE DISCLOSURE OF

INDEPENDENT CAMPAIGN

EXPENDITURES WAS NOT

CONSTITUTIONALLY IMPOSED AND

OTHER DECISIONS HAVE CLARIFIED

THE CIRCUMSTANCES IN WHICH

SUCH DISCLOSURE CAN BE

REQUIRED ....................... 9

III. UNLIKE THE DISCLOSURE

PROVISIONS INVALIDATED IN DAVIS

V. FEC, THE BCRA DISCLOSURE

PROVISIONS SUPPLEMENT THE
ii

BLACKOUT PROVISIONS OF § 203 BY

INFORMING THE PUBLIC ABOUT

ISSUE ADS INSULATED FROM

PROHIBITION BY WRTL II AND BY

FACILITATING FEC REGULATION . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
iii

TABLE OF AUTHORITIES

CASES

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . 3, 5, 9

Broward Coal. of Condos., Homeowners Ass’ns &

Cmty. Orgs., Inc. v. Browning,

No. 4:06cv445, 2008 WL 4791004 (N.D. Fla. Oct.

29, 2008); No. 4:06cv445, 2009 WL 1457972

(N.D. Fla. May 22, 2009) . . . . . . . . . . . . . . . . 7, 8

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . 3, 4, 7, 8, 9, 10

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . 4, 11

Citizens United v. FEC,

530 F. Supp. 2d 274 (D.D.C. 2008) .......... 6

Davis v. FEC,

128 S.Ct. 2759 (2008) . . . . . . . . . . . . . . . 5, 12, 15

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . 4, 10

FEC v. Wisconsin Right to Life, Inc.,

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

First Nat’l. Bank v. Bellotti,

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . 4, 10, 11
iv

Human Life of Washington, Inc. v. Brumsickle,

No. C08-0590, 2009 WL 62144 (W.D. Wash. Jan.

8, 2009), appeal docketed No. 09-35128 (9th Cir.

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7

McConnell v. FEC,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . passim

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2003) . . . . . . 13, 14

Nat’l Right to Work Legal Def. and Educ. Found.,

Inc. v. Herbert,

581 F. Supp. 2d 1132 (D. Utah 2008) . . . . . . 3, 8

North Carolina Right to Life, Inc. v. Leake,

525 F.3d 274 (4th Cir. 2008) . . . . . . . . . . . . . 8, 9

Ohio Right to Life Society, Inc. v. Ohio Elections

Comm’n,

No. 2:08-cv-00492, 2008 WL 4186312 (S.D. Ohio

Sept. 5, 2008) ........................... 7

United States v. Harriss,

347 U.S. 612 (1954) . . . . . . . . . . . . . . . . . . . 4, 11

STATUTES

Bipartisan Campaign Reform Act of 2002, 2 U.S.C.

§ 441b (BCRA) . . . . . . . . . . . . . . . . . . . . . . passim

Federal Election Campaign Act of 1971 (FECA) 4, 10

Alaska Stat. § 15.13.400(5) ................... 4

Ariz. Rev. Stat. Ann. § 16-901.01(A)(2) ......... 4
v

Cal. Gov’t. Code § 85310 ..................... 4

Colo. Const. Art. XXVIII § 2(7) ................ 4

Conn. Gen. Stat. Ann. § 9-601b(a) ............. 4

Fla. Stat. Ann. § 106.11(18) .................. 4

Haw. Rev. Stat. § 11-207.6 ................... 4

Idaho Code Ann. § 67-6602(f) ................. 4

10 Ill. Comp. Stat. § 5/9-1.14 . . . . . . . . . . . . . . . . . 4

Me. Rev. Stat. Tit. 21-A § 1019-B .............. 4

N.C. Gen. Stat. § 163-278.80(2) ............... 4

Ohio Rev. Code Ann. § 3517.1011(7) ........... 4
1

1

 The parties have consented to the filing of this brief. No counsel

for a party authored this brief in whole or in part, and no person

or entity, other than amici or their counsel, has made a monetary

contribution to the preparation or submission of this brief.

INTEREST OF AMICI CURIAE1

The Sunlight Foundation was founded in 2006 with

the non-partisan mission of using the revolutionary

power of the Internet to make information about

Congress and the federal government more

meaningfully accessible to citizens. Through our

projects and grant-making, Sunlight serves as a

catalyst for greater political transparency, thus

making the government more open and accountable.

Sunlight’s ultimate goal is to strengthen the

relationship between citizens and their elected officials

and to foster public trust in government. Since our

founding, we have assembled and funded an array of

Web-based databases and tools, including

OpenCongress.org, FedSpending.org, OpenSecrets.org,

and EarmarkWatch.org, that make millions of bits of

information available online about members of

Congress, their staff, legislation, federal spending, and

lobbyists. The Sunlight Foundation has a particular

interest in promoting the electronic disclosure of

political expenditures at all levels of government. 

The National Institute on Money in State Politics

(www.followthemoney.org) is a nonpartisan nonprofit

dedicated to compiling state-level campaign finance

data and lobbyist information and providing the public

open access to that data via the Internet. The

Institute’s comprehensive and highly credentialed 50-

state political-donor data has been used by
2

investigative reporters, scholars, attorneys and the

public as they unravel the correlations between

political donors and public policies. Incorporated in

1999 in Helena, Montana, the Institute’s mission is to

promote electoral and governmental transparency as

a means to invigorating public debate on important

issues of the day and civic engagement. The Institute’s

interest is in defending robust disclosure of all political

expenditures at the state level.

The Center for Civic Responsibility is a non-profit

501(c)(3) corporation whose mission is to increase civic

engagement by developing model legislation for use by

citizens who wish to improve government integrity and

transparency. The Center has a long history and

expertise in campaign finance law. In 1999, the Center

established an all volunteer Legal Task Force to

develop model campaign finance reform laws for state

and local adoption. Some of the reforms include a

government contracting “pay-to-play” reform law and

a law requiring developers to disclose political

contributions when applying for major zoning

variances. The Center has a particular interest in

defending any case that threatens to limit disclosure

of campaign expenditures.

SUMMARY OF ARGUMENT

The thrust of the Court’s order directing

supplemental briefing causes Amici to have justifiable

concerns that the Court’s ultimate disposition could

affect not only the constitutionality of BCRA’s

disclosure and disclaimer requirements, but also could

generate uncertainty about the constitutionality of

numerous state statutes that mandate disclosure and

reporting of campaign contributions and expenditures,
3

including expenditures for electioneering

communications as defined in BCRA, that may not be

constitutionally subject to prohibition or limitation.

Those concerns are underscored by several lower

court opinions that reach inconsistent conclusions

about the effect of this Court’s decision in FEC v.

Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)

(WRTL II), on state statutory disclosure and reporting

requirements. Compare Human Life of Washington,

Inc. v. Brumsickle, No. C08-0590, 2009 WL 62144, at

*17-18 (W.D. Wash. Jan. 8, 2009) (upholding State of

Washington statute mandating disclosure by political

committees of expenditures for advocacy relating to

issues underlying ballot proposition, and finding it

“unclear whether [WRTL’s] logic extends to lesser

burdens on non-express advocacy”), appeal docketed,

No. 09-35128 (9th Cir. 2009), with Nat’l Right to Work

Legal Def. and Educ. Found., Inc. v. Herbert, 581 F.

Supp. 2d 1132, 1152 (D. Utah 2008) (relying on

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

invalidating Utah statute mandating disclosure by

corporations of “political expenditures” and similar

disclosure by so-called “political committees” because

plaintiff’s ads “do not expressly advocate for the

enactment or defeat of school vouchers, nor are they

otherwise unambiguously campaign related.”). Amici

believe that a decision by this Court overruling either

or both Austin v. Michigan Chamber of Commerce, 494

U.S. 652 (1990), and the part of McConnell v. FEC, 540

U.S. 93 (2003), that addresses the facial validity of

Section 203 of the Bipartisan Campaign Reform Act of

2002, 2 U.S.C. § 441b (BCRA), although not resolving

the disclosure issue, would add to the uncertainty and

inconsistency reflected by recent lower court decisions

and would create doubt and confusion about the
4

2

 A number of states have enacted reporting requirements based

on a definition of electioneering communication similar to that

contained in BCRA. See Alaska Stat. § 15.13.400(5); Ariz. Rev.

Stat. Ann. § 16-901.01(A)(2); Cal. Gov’t. Code § 85310; Colo. Const.

Art. XXVIII § 2(7); Conn. Gen. Stat. Ann. § 9-601b(a); Fla. Stat.

Ann. § 106.11(18); Haw. Rev. Stat. § 11-207.6; Idaho Code Ann.

§ 67-6602(f); 10 Ill. Comp. Stat. § 5/9-1.14; Me. Rev. Stat. Tit. 21-A

§ 1019-B; N.C. Gen. Stat. § 163-278.80(2); Ohio Rev. Code Ann.

§ 3517.1011(7).

standards governing enforceability or numerous state

disclosure and reporting laws.2

Amici disputes Appellant’s reliance on Buckley’s

holding that a prior Federal Election Campaign Act

disclosure requirement was confined to spending

“unambiguously related to the campaign of a

particular federal candidate” (Br. 47 (quoting Buckley,

424 U.S. at 80)). In McConnell, this Court made clear

that Buckley’s “express advocacy limitation, in both

the expenditure and the disclosure contexts, was the

product of statutory interpretation rather than a

constitutional command.” 540 U.S. at 191-92. This

Court’s pre- and post-Buckley jurisprudence has

clarified the circumstances in which disclosure of

campaign expenditures can be compelled, without

regard to whether such expenditures are

constitutionally exempt from prohibition or other

limitations. See FEC v. Massachusetts Citizens for

Life, Inc., 479 U.S. 238, 262 (1986) (MCFL), Citizens

Against Rent Control v. City of Berkeley, 454 U.S. 290,

294 n.4, 298-99 (1981); First Nat’l. Bank v. Bellotti,

435 U.S. 765, 792 n.32 (1978) (Bellotti); United States

v. Harriss, 347 U.S. 612, 625-26 (1954).
5

Notwithstanding Appellant’s reliance on this

Court’s invalidation of the disclosure provisions at

issue in Davis v. FEC, 128 S.Ct. 2759 (2008) (Br. 53

(citing Davis, 128 S.Ct. at 2775)), those disclosure

provisions clearly had been adopted for the sole

purpose of implementing the so-called “millionaires’

amendment,” also invalidated in Davis. As the

plurality opinion in McConnell makes clear, 540 U.S.

at 196, the disclosure provisions of BCRA supplement

the blackout provisions of § 203 by providing the public

with information about the sponsorship and funding of

issue ads whether or not they meet the WRTL II test

of express advocacy. Amici contend that any

disposition of this appeal that further dilutes or

invalidates BCRA’s prohibition on certain corporate

and union-funded electioneering communications will

substantially increase their use and dissemination

resulting in an enhanced public interest for disclosure

of the source and funding of such communications.

ARGUMENT

I. A DECISION OVERRULING AUSTIN

AND/OR THAT ASPECT OF MCCONNELL

ADDRESSING BCRA’S FACIAL VALIDITY

WOULD INCREASE EXISTING

UNCERTAINTY AND CONFUSION

AMONG LOWER COURTS ABOUT THE

CONSTITUTIONALITY OF STATE

CAMPAIGN DISCLOSURE STATUTES.

In McConnell, five members of the Court concluded

that BCRA’s disclosure requirements applied to the

“entire range of ‘electioneering communications,’” 540

U.S. at 196, and three additional Justices voted to

uphold those requirements (with one exception not
6

relevant to this appeal) although also voting to

invalidate the ban on corporate-funded electioneering

communications, id. at 321 (Kennedy, J., concurring

in the judgment in part and dissenting in part). In

WRTL II this Court did not invalidate, nor even

consider, the application of BCRA’s disclosure

requirements to electioneering communications. But

recent lower court decisions have reached different

conclusions about the constitutionality of state

statutory disclosure requirements in the wake of

WRTL II.

In this matter, the district court rejected

Appellant’s contention that because its speech was

constitutionally protected, BCRA’s disclosure and

disclaimer provisions could not constitutionally be

applied to Citizens United, observing that “the

Supreme Court has not adopted that line * * * and it

is not for us to do so today.” Citizens United v. FEC,

530 F. Supp. 2d 274, 281 (D.D.C. 2008). Analogously,

in Brumsickle, 2009 WL 62144, at *15, a Washington

district court rejected a challenge to the application of

statutory disclosure provisions to a “political

committee” based on the contention that the statute’s

provisions applied to expenditures for communications

that did not expressly support or oppose the ballot

initiative at issue. Noting that in the ballot initiative

context there is “little, if any, meaningful distinction

between issue and express advocacy,” the Washington

district court held that “the state’s compelling

interests in informing the electorate and protecting

contributors justify requiring * * * [disclosure of] all

expenditures made ‘in support of, or opposition to * * *

a ballot proposition’ * * * * even when ‘expenditure’ is

defined to include some advocacy as to the ‘issue’
7

underlying the proposition * * *.” 2009 WL 62144 at

*18.

Similarly, in Ohio Right to Life Society, Inc. v. Ohio

Elections Commission, No. 2:08-cv-00492, 2008 WL

4186312 (S.D. Ohio Sept. 5, 2008), an Ohio district

court rejected plaintiff’s as-applied challenge to Ohio’s

statutory campaign disclosure requirements,

contending that its ads, although mentioning the

names of State Senators running for election within

the proscribed statutory period, were not the

functional equivalent of express advocacy as clarified

by WRTL II. Noting that “[t]he WRTL Court did not

even mention disclosure requirements, much less

consider their constitutionality,” 2008 WL 4186312 at

*9, the Ohio district court sustained the disclosure

requirements, finding that they were supported by the

same public interests identified by this Court in

Buckley and McConnell id. at *10.

In contrast, a Florida federal district court recently

held unconstitutional a Florida statute regulating

electioneering communications in its application to a

non-profit corporation that intended to disseminate

newsletters that mentioned candidates and discussed

ballot issues. Broward Coalition of Condominiums,

Homeowners Ass’ns and Community Organizations,

Inc. v. Browning, No. 4:08cv445, 2008 WL 4791004

(N.D. Fla. Oct. 29, 2008) (preliminarily enjoining

Florida law), 2009 WL 1457972 (N.D. Fla. May 22,

2009) (permanently enjoining electioneering provisions

of Florida law). In Broward, the Florida court

concluded that WRTL II’s standard for determining

whether a communication was functionally equivalent

to express advocacy precluded the application of the

reporting and disclosure provisions of the Florida
8

statute to plaintiff’s ballot issue communications.

2009 WL 1457972 at *5. Similarly in National Right

to Work Legal Defense and Education Foundation, Inc.

v. Herbert, 581 F. Supp. 2d 1132 (D. Utah 2008), a

non-profit legal aid corporation challenged the

application to its radio and television ads of a Utah

statute that regulated and imposed reporting and

disclosure requirements on “political” expenditures,

defined to include any “payment * * * made for the

purpose of influencing the approval or defeat of a

ballot proposition.” Id. at 1149. The ads in question

were intended to inform teachers and school employees

that they had no obligation to participate in the

teachers’ union’s efforts to defeat a ballot proposal for

school vouchers. Id. at 1137. Relying primarily on

Buckley and WRTL II, the court held that because

plaintiff’s ads were not either express advocacy or its

functional equivalent, the Utah statute’s regulatory

and disclosure provisions could not constitutionally be

applied to plaintiff’s ads. Id. at 1144, 1149-50.

Analogously, in North Carolina Right to Life, Inc.

v. Leake, 525 F.3d 274 (4th Cir. 2008), the court

invalidated a North Carolina statute that regulated

and imposed reporting requirements on expenditures

or contributions for communications supporting or

opposing an identified candidate. The statute

authorized consideration of contextual factors to

determine whether a communication met the statutory

standard. Id. at 280-81. In invalidating the statute,

as well as its disclosure and reporting requirements,

the Fourth Circuit relied on Buckley and WRTL II in

concluding that the power to regulate plaintiff’s

communications and to impose reporting requirements

depended on whether such communications were
9

either express advocacy or its functional equivalent.

Id. at 281-82.

Those federal courts that have addressed the

constitutionality of state campaign disclosure

requirements since this Court’s decision in WRTL II

clearly are divided over its effect. A disposition in this

appeal that overrules Austin and/or the aspect of

McConnell that address BCRA § 203’s facial validity

would not resolve the disclosure issue and would add

to the existing confusion. Amici urges the Court to

reaffirm McConnell’s clear holding, 540 U.S. at 196,

that the vital public interests underlying BCRA’s

disclosure requirements apply with equal force to “the

entire range of ‘electioneering communications,’” id.,

whether or not they satisfy WRTL II’s test for the

functional equivalence of express advocacy WRTL II,

551 U.S. 449, 127 S.Ct. 2652, 2667.

II. BUCKLEY V. VALEO’S LIMITATION ON

CONGRESSIONAL POWER TO MANDATE

DISCLOSURE OF INDEPENDENT

CAMPAIGN EXPENDITURES WAS NOT

CONSTITUTIONALLY IMPOSED AND

OTHER DECISIONS HAVE CLARIFIED

THE CIRCUMSTANCES IN WHICH SUCH

DISCLOSURE CAN BE REQUIRED.

Although Appellant relies on Buckley for the

proposition that disclosure requirements can apply

only to spending “unambiguously related to the

campaign of a particular federal candidate,” (Br. 47

(quoting Buckley, 424 U.S. at 80)), this Court in

McConnell explained that Buckley’s “express advocacy

limitation * * * was the product of statutory

interpretation rather than a constitutional command.”
10

540 U.S. at 191-92. See also MCFL, 479 U.S. at 248-49

(noting that Buckley’s “express advocacy” standard

was adopted “to avoid problems of overbreadth.”).

Several decisions of this Court have upheld

disclosure provisions related to expenditures that

could not constitutionally be prohibited. A compelling

example is MCFL, in which the Court held that the

restriction on independent corporate spending

contained in § 316 of the Federal Election Campaign

Act (FECA), 2 U.S.C. 441(b), was unconstitutional as

applied to MCFL, a non-profit corporation with no

shareholders, formed to promote political ideas and not

established or funded by business corporations or labor

unions. 479 U.S. at 263-64. Nevertheless, the Court

noted that:

MCFL will be required to identify all

contributors who annually provide in the

aggregate $200 in funds intended to influence

elections, will have to specify all recipients of

independent spending amounting to more than

$200, and will be bound to identify all persons

making contributions over $200 who request

that the money be used for independent

expenditures.

Id. at 262. Underscoring the recognition that

disclosure requirements rest on a different foundation

than outright prohibition, the MCFL Court added that

“[t]hese reporting obligations provide precisely the

information necessary to monitor MCFL’s independent

spending activity and its receipt of contributions.” Id.

Similarly, in Bellotti, 435 U.S. 765 (1978), in which

the Court invalidated a statute prohibiting
11

corporations from engaging in issue advocacy, the

Court nevertheless acknowledged that “[i]dentification

of the source of advertising may be required as a

means of disclosure, so that the people will be able to

evaluate the arguments to which they are being

subjected.” Id. at 792 n.32. To the same effect is

Citizens Against Rent Control v. City of Berkeley, 454

U.S. 290 (1981), in which the Court invalidated an

ordinance limiting the amount of contributions to

committees supporting or opposing ballot measures

but observed that the enforcement of the disclosure

provisions of the ordinance removes the “risk that

Berkeley voters will be in doubt as to the identity of

those whose money supports or opposes a given ballot

measure * * *” Id. at 298.

Moreover, in United States v. Harriss, 347 U.S. 612

(1954), in upholding the constitutionality of the

Federal Regulation of Lobbying Act, the Court aptly

noted that Congress had not sought to prohibit the

pressures exerted by lobbyists but “has merely

provided for a modicum of information from those who

for hire attempt to influence legislation or who collect

or spend funds for that purpose.” Id. at 625.

In short, this Court’s precedents consistently have

recognized that Congress’ power to compel disclosure

does not depend on the constitutionality of a

prohibition of the activity about which disclosure is

mandated.
12

III. UNLIKE THE DISCLOSURE PROVISIONS

INVALIDATED IN DAVIS V. FEC, THE

BCRA DISCLOSURE PROVISIONS

SUPPLEMENT THE BLACKOUT

PROVISIONS OF § 203 BY INFORMING

THE PUBLIC ABOUT ISSUE ADS

INSULATED FROM PROHIBITION BY

WRTL II AND BY FACILITATING FEC

REGULATION.

Appellant unpersuasively relies on this Court’s

decision in Davis (Br. 48) in which the Court

invalidated the disclosure provisions of § 319(b) of

BCRA on the basis that those provisions were enacted

solely “to implement the asymmetrical contribution

limits provided for in § 319(a),” which limits the Court

held to be violative of the First Amendment. Davis,

128 S.Ct. at 2775. Analytically, the invalidation of the

§ 319(b) disclosure provisions in Davis provides no

basis for appellant’s contention that BCRA’s disclosure

and disclaimer provisions cannot be applied to

electioneering communications that fall short of

WRTL II’s standards for determining the functional

equivalent of express advocacy.

If not explicitly embraced by the lead opinion in

WRTL II, the opinion implicitly acknowledged, by

giving “the benefit of doubt to speech, not censorship,”

127 S.Ct. at 2674, what was the major premise of the

plurality opinion in McConnell: 

[I]ssue and express advocacy * * * proved

functionally identical in important respects.

Both were used to advocate the election or

defeat of clearly identified federal candidates,

even though the so-called issue ads eschewed
13

the use of magic words * * * * Indeed, campaign

professionals testified that the most effective

campaign ads * * * should, and did, avoid the

use of the magic words.

McConnell, 540 U.S. at 126-27 (internal quotations

removed).

No informed observer of campaign finance

regulation would dispute that, post-WRTL II,

innumerable electioneering communications will be

broadcast and telecast that, although not quite the

functional equivalent of express advocacy, nevertheless

will be intended by their sponsors and understood by

their recipients to constitute express advocacy for the

support or defeat of an identified candidate.

Notwithstanding WRTL II’s bright line rule, the

“important state interests” that this Court recognized

in McConnell in upholding BCRA’s disclosure and

disclaimer requirements, 540 U.S. at 196, remain just

as vibrant and relevant today, and those interests –

especially the interest in public information about the

source and funding of electioneering communications

– apply with equal weight to express advocacy ads as

well as issue ads. Because such information was

unavailable to the public prior to BCRA, McConnell,

540 U.S. at 126, the authors of the district court’s per

curiam opinion in McConnell persuasively documented

the rationale for BCRA’s disclosure provisions:

The factual record demonstrates that the abuse

of the present law not only permits corporations

and labor unions to fund broadcast

advertisements designed to influence federal

elections, but permits them to do so while

concealing their identities from the public.
14

BCRA’s disclosure provisions require these

organizations to reveal their identities so that

the public is able to identify the source of the

funding behind broadcast advertisements

influencing certain elections. * * * Curiously,

Plaintiffs want to preserve the ability to run

these advertisements while hiding behind

dubious and misleading names like: “The

Coalition-Americans Working for Real Change”

(funded by business organizations opposed to

organized labor), “Citizens for Better Medicare”

(funded by the pharmaceutical industry),

“Republicans for Clean Air” (funded by brothers

Charles and Sam Wyly). * * * Given these

tactics, Plaintiffs never satisfactorily answer

the question of how “uninhibited, robust, and

wide-open” speech can occur when organizations

hide themselves from the scrutiny of the voting

public. * * * Plaintiffs’ argument for striking

down BCRA’s disclosure provisions does not

reinforce the precious First Amendment values

that Plaintiffs argue are trampled by BCRA, but

ignores the competing First Amendment

interests of individual citizens seeking to make

informed choices in the political marketplace.

McConnell v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C.

2003).

Moreover, the Federal Election Commission has an

ongoing regulatory need to monitor electioneering

communications and determine for itself whether the

WRTL II exemption is applicable. The FEC’s

enforcement interests depend on the receipt of reports

informing it of the impending broadcast, and funding

sources, of electioneering communications. Unlike the
15

disclosure provision invalidated in Davis, the BCRA

reporting and disclaimer provisions challenged by

Appellant supplement the FEC’s regulatory interest in

enforcing § 203 of BCRA and further the public

interest in knowing the sponsorship and funding

sources of issue ads that may just fall short of “the

functional equivalent of express advocacy.” WRTL II,

551 U.S. 449, 127 S.Ct. 2652, 2667.

CONCLUSION

The judgment of the district court should be

affirmed.

Respectfully submitted,

Gary S. Stein

Pashman Stein

Court Plaza South

21 Main Street, Suite 100

Hackensack, New Jersey 07601

(201) 488-8200

Attorney for Amici Curiae

Date: July 31, 2009