No. 08- No. 08-205 

_______________________________________________ 

In the Supreme Court of the United States

___________________

CITIZENS UNITED, CITIZENS UNITED, 

Appellant,

v. 

FEDERAL ELECTIONS COMMISSION, FEDERAL ELECTIONS COMMISSION, 

Appellee. 

___________________ ___________________ 

On Appeal from the United States District Court 

for the District of Columbia 

BRIEF OF AMICUS BRIEF OF AMICUS CURIAE 

ALLIANCE DEFENSE FUND ALLIANCE DEFENSE FUND 

IN SUPPORT OF APPELLANT IN SUPPORT OF APPELLANT APPELLANTON 

SUPPLEMENTAL QUESTION SUPPLEMENTAL QUESTION 

___________________ ___________________ 

Benjamin W. Bull 

Counsel of Record 

Erik W. Stanley 

ALLIANCE DEFENSE FUND

15100 N. 90TH Street 

Scottsdale, AZ 85260 

(480) 444-0020 

Robert J. McCully 

SHOOK, HARDY & BACON

LLP 

2555 Grand Blvd. 

Kansas City, MO 64108

Tyson C. Langhofer 

Megan E. Garrett 

Court T. Kennedy 

Thomas A. Simpson 

Nicholas G. Frey 

STINSON MORRISON 

HECKER LLP 

1625 N Waterfront 

Pkwy, Suite 300 

Wichita, KS 67206 
i 

TABLE OF CONTENTS TABLE OF CONTENTS 

TABLE OF CONTENTS .............................................. i 

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

INTEREST OF AMICUS IN THIS CASE ................. 1

SUMMARY OF ARGUMENT .................................... 1 

ARGUMENT ............................................................... 2 

I THE COURT HAS RECOGNIZED THE 

CONSTITUTIONAL REQUIREMENT OF 

USING BRIGHT-LINE, OBJECTIVE 

TESTS TO DISTINGUISH REGULATED 

CAMPAIGN SPEECH FROM NONREGULATED CAMPAIGN SPEECH. ............... 2 

II. THE COURT’S LAUDABLE ATTEMPTS 

TO FASHION A BRIGHT-LINE, 

OBJECTIVE TEST TO VALIDATE BCRA 

SECTION 203 HAVE PROVEN 

UNWORKABLE IN PRACTICE. ....................... 6 

III. THE FAILURE OF BRIGHT-LINE, 

OBJECTIVE TESTS IN THE CONTEXT 

OF “FUNCTIONAL EQUIVALENTS OF 

EXPRESS ADVOCACY” CREATES 

UNCERTAINTY AND CHILLS 

PROTECTED SPEECH. IN THE 

ABSENCE OF SUCH A CERTAIN 

STANDARD, SECTION 203’S BROAD 

PROHIBITION ON SPEECH CANNOT BE 

PERMITTED TO STAND. ................................ 19 

CONCLUSION .......................................................... 21
ii 

TABLE OF AUTHORITIES TABLE OF AUTHORITIES 

Cases

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ............................................... 3 

Buckley v. Valeo, 

424 U.S. 1 (1976) ................................ 2, 3, 10, 19, 20 

Faucher v. FEC, 

928 F.2d 468 (1st Cir. 1991) .................................. 3 

FEC v. Colorado Repub. Fed. Campaign Comm., 

59 F.3d 1015 (10th Cir. 1995), rev'd on other 

grounds, 518 U.S. 604 (1996) ................................ 3 

FEC v. Christian Action Network, Inc., 

110 F.3d 1049 (4th Cir. 1997) ............................... 3 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................... 3 

FEC v. Wisconsin Right to Life, 

 127 S.Ct. 2652 (2007) .............. 4, 5, 6, 7, 12, 14, 18 

Iowa Right to Life Comm., Inc. v. Williams, 

187 F.3d 963 (8th Cir. 1999) ................................. 3 

McConnell v. FEC, 

540 U.S. 93 (2003) ....................... 1, 3, 4, 10, 13, 18 

National Right to Work Legal Defense and Education 

Foundation, Inc. v. Herbert, 

581 F. Supp. 2d 1132 (D. Utah 2008) ............. 7-12 

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

525 F.3d 274 (4th Cir. 2007) .................................. 6 

The Real Truth About Obama, Inc. v. FEC, Case No. 

3:08-CV-483, 2008 WL 4416282, *11 (E.D. Va. 

Sept. 24, 2008) ..................................................... 14 

Thomas v. Collins, 323 U.S. 516 (1945) ................. 20 

Vermont Right to Life Comm., Inc. v. Sorrell, 

221 F.3d 376 (2d Cir. 2000) ................................... 3 
iii 

Wisconsin. Right to Life, Inc. v. FEC, 

466 F. Supp. 2d 195 (D.D.C. 2006) ..................... 18 

Other Authorities

11 C.F.R. § 100.22(b ................................................ 13 

Bipartisan Campaign Reform Act of 2002, 

2 U.S.C. §441b ..................................... 1, 3, 5, 6, 11 

Utah Code Ann. § 20A-11-101(30)(a)(ii) ................. 10 

Utah Code Ann. § 20A-11-702 ................................ 10 

Utah Election Code ................................................. 10 

 

Constitutional Provisions

U.S. Constitution amend. I ................... 2, 4, 5, 18, 19 

 
- 1 - 

INTEREST OF INTEREST OF AMICUSIN THIS CASE IN THIS CASE1

 

ALLIANCE DEFENSE FUND (“ADF”) is a notfor-profit public interest organization that provides 

strategic planning, training, and funding to attorneys 

and organizations regarding religious civil liberties 

and family values. ADF and its allied organizations 

represent hundreds of thousands of Americans who 

believe strongly in these topics, and who have a right 

to express those views through this nation’s political 

process. ADF’s allies include more than 1,200 

lawyers and numerous public interest law firms, 

many of whom have been recently pressed into 

service to represent individuals and organizations 

being harassed for expressing their viewpoints in the 

political arena. 

SUMMARY OF ARGUMENT SUMMARY OF ARGUMENT 

The portion of McConnell v. FEC, 540 U.S. 93 

(2003), upholding the facial validity of Section 203 of 

the Bipartisan Campaign Reform Act of 2002, 2 

U.S.C. §441b (“BCRA”), should be overruled. Despite 

the best efforts of this Court after McConnell to 

constitutionally validate Section 203‘s expansion of 

restrictions on political expression, the amount of

administrative disputes and litigation which 

McConnell has generated demonstrates that Section 

 

1 All parties have consented to the filing of this brief. No 

counsel for a party authored this brief in whole or in part, and 

no counsel or party made a monetary contribution intended to 

fund the preparation or submission of this brief. No person 

other than Amicus Curiae, its members, or its counsel made a 

monetary contribution to its preparation or submission. 
- 2 - 

203 cannot be administered and enforced without 

chilling substantial amounts of previously protected 

First Amendment rights. Any attempt at 

determining whether a communication is the 

“functional equivalent of express advocacy” 

necessarily leads to a subjective, intent-based, 

contextual evaluation by the governmental enforcer 

as to whether the enforcer believes that the 

communication is “susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a specific candidate.” This subjective, 

contextual, intent-based, evaluation of political 

discourse is constitutionally prohibited and 

unquestionably chills speech which would have 

otherwise been communicated but for the threat of 

both civil and criminal penalties. 

ARGUMENT ARGUMENT 

I. THE COURT HAS RECOGNIZED THE THE COURT HAS RECOGNIZED THE 

CONSTITUTIONAL REQUIREMENT OF CONSTITUTIONAL REQUIREMENT OF 

USING BRIGHT- USING BRIGHT-LINE, OBJECTIVE TEST LINE, OBJECTIVE TEST LINE, OBJECTIVE TESTS 

TO DISTINGUISH REGULATED TO DISTINGUISH REGULATED 

CAMPAIGN SPEECH FROM CAMPAIGN SPEECH FROMNONREGULATED CAMPAIGN SPEECH. REGULATED CAMPAIGN SPEECH. TED CAMPAIGN SPEECH. 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court 

recognized that while the Government possesses the 

authority to regulate elections, the First Amendment 

requires that such regulation be carried out in a 

manner protective of speech. The Court established

a bright-line test between regulable election-related 

activity and constitutionally protected political 

speech, by holding that the Government may only 
- 3 - 

regulate speech that is “unambiguously related to 

the campaign of a particular federal candidate.” 424 

U.S. at 80. The Court went on to identify such 

speech as that which in “express terms advocate the

election or defeat of a clearly identified candidate” for 

public office. Id. at 44. The Court noted that only 

communications containing words “such as ‘vote for,’ 

‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for 

Congress,’ ‘vote against,’ ‘defeat,’ ‘reject,’“ would be 

subject to regulation as “express advocacy.” Id. at 44 

n.52. This bright line standard was applied 

consistently from 1976 through the 2002 passage of 

BCRA. See, e.g., FEC v. Massachusetts Citizens for 

Life, Inc., 479 U.S. 238, 249 (1986); Faucher v. FEC, 

928 F.2d 468, 470-72 (1st Cir. 1991); Vermont Right 

to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 386-87 

(2d Cir. 2000); FEC v. Christian Action Network, 

Inc., 110 F.3d 1049, 1051 (4th Cir. 1997); Iowa Right 

to Life Comm., Inc. v. Williams, 187 F.3d 963, 969 

(8th Cir. 1999); FEC v. Colorado Repub. Fed. 

Campaign Comm., 59 F.3d 1015, 1023 n.10 (10th Cir. 

1995), rev’d on other grounds, 518 U.S. 604 (1996). 

After the enactment of the BCRA, this Court was 

forced to determine whether Section 203‘s definition 

of “electioneering communications”, which 

dramatically expanded the scope of regulable speech, 

fit within the constitutional parameters established 

by its prior rulings in Buckley and Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652 

(1990). This Court rejected a facial challenge to 

Section 203 in McConnell, 540 U.S. at 204-07, by 

recognizing a second category of regulated speech, 

denoted as the “functional equivalent of express 
- 4 - 

advocacy.” See FEC v. Wisconsin Right to Life, 127 

S.Ct. 2652, 2667 (2007)(“WRTL”). In doing so, 

however, this Court recognized that “the interests it 

had found to justify the regulation of campaign 

speech might not apply to the regulation of genuine

issue ads.” McConnell, 540 U.S. at 206 n. 88. As 

originally set forth by this Court, a communication

would not be considered the “functional equivalent of 

express advocacy” unless the communication was 

“susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific

candidate.” See WRTL, 127 S. Ct. at 2667. In the 

subsequent WRTL opinions, this Court attempted to 

articulate standards to be applied to distinguish 

between regulated and non-regulated speech. The 

Court looked for a standard that would be applied as 

an objective test, and not as a test relying upon 

subjective and contextual considerations. As the 

Court observed: 

Far from serving the values the First 

Amendment is meant to protect, an 

intent-based test would chill core 

political speech by opening the door to a 

trial on every ad within the terms of 

§ 203, on the theory that the speaker 

actually intended to affect an election, 

no matter how compelling the 

indications that the ad concerned a 

pending legislative or policy issue. 127 

S. Ct. at 2665-66. 

A listener-based test is subject to the same 

infirmities, as such a test would “typically lead to a 
- 5 - 

burdensome, expert-driven inquiry, with an 

indeterminate result.” Id. at 2666. A standard that 

bases the regulation on speech on how the listener 

will perceive or understand the message subjects the 

speaker to the varied understandings his listeners 

may have. Id. 

To address these concerns and to safeguard First 

Amendment rights, the Court held that “the proper 

standard for an as-applied challenge to BCRA § 203 

must be objective, focusing on the substance of the

communication rather than amorphous 

considerations of intent and effect.” Id. at 2666. As 

explained by the Court, 

It must entail minimal if any discovery, 

to allow parties to resolve disputes 

quickly without chilling speech through 

the threat of burdensome litigation . . . . 

And it must eschew “the open-ended 

rough-and-tumble of factors,” which 

“invit[es] complex argument in a trial 

court and a virtually inevitable appeal.” 

. . . In short, it must give the benefit of 

any doubt to protecting rather than 

stifling speech. 

Id. at 2666-67 (citations omitted; alteration in 

original). As such, the Court has concluded that: 

(1) [t]here can be no free-ranging intentand-effect test; (2) there generally 

should be no discovery or inquiry into 

the sort of ‘contextual’ factors 
- 6 - 

highlighted by the FEC and intervenors; 

(3) discussion of issues cannot be 

banned merely because the issues might 

be relevant to an election; and (4) in a 

debatable case, the tie is resolved in 

favor of protecting speech. Id. at 2669 

n.7. 

II. THE COURT’S LAUDABLE THE COURT’S LAUDABLEATTEMPTS TO ATTEMPTS TO 

FASHION A BRIGHT- FASHION A BRIGHT-LINE, OBJECTIVE LINE, OBJECTIVE 

TEST TO VALIDATE BCRA SECTION 203 TEST TO VALIDATE BCRA SECTION 203 

HAVE PROVEN UNWORKABLE IN HAVE PROVEN UNWORKABLE IN 

PRACTICE. PRACTICE. 

In theory, the standard might be constitutional as 

written. However, experiences since the enunciation 

of this standard demonstrate that applications of this 

purported objective standard have devolved into 

considerations of subjective intent, context, and, 

most often, effect on the listener. The standard 

apparently cannot be applied by regulators without 

their subjective inquiry into the unconstitutional 

considerations of the speaker’s intent or the effect on 

the hearer. Necessarily, the entities determining 

whether particular speech may be regulated must 

decide whether the communication is “susceptible of

no other interpretation other than as an appeal to 

vote for or against a specific candidate.” To do so, the 

regulator must interpret the speech based upon what

they perceive the communication to convey. The 

regulator is compelled to ask how the speech makes 

him feel and whether, given the words in the ad, the 

regulator finds no other purpose for the ad than an

appeal to vote. Unavoidably, that individual will 
- 7 - 

draw upon his or her own subjective interpretation of 

the message they believe to be conveyed by the 

communication. 

Such a conundrum is illustrated by instances 

where enforcing agencies have looked to contextual 

considerations, such as the timing of the 

communication, the audience to which it is made, 

and the speaker’s other activities, to resolve internal 

disagreements as to whether a communication is 

susceptible of “no other interpretation.” See, e.g., 

National Right to Work Legal Defense and Education 

Foundation, Inc. v. Herbert, 581 F. Supp. 2d 1132, 

1150 n.10 (D. Utah 2008) (Lieutenant Governor’s 

proposed context-based analysis considering that ads 

were “run in the midst of a contentious referendum 

signature gathering campaign” “flies in the face of

the Supreme Court’s mandate for clarity”); North 

Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 

281, 284 (4th Cir. 2007) (North Carolina Legislature’s 

statute allowing consideration of contextual factors 

when nature of communication is “unclear” was 

unconstitutional; “speakers are left to guess and 

wonder whether a regulator, applying supple and 

flexible criteria, will make a post hoc determination 

that their speech is regulable as electoral advocacy”). 

Moreover, these same types of contextual 

considerations were expressly rejected by the Court

in WRTL. See WRTL, 127 S. Ct. 2668-69 (rejecting 

as improper the consideration of factors such as 

speaker’s active opposition to candidate in same 

election cycle, timing of the ads, and reference to

website). The fact that regulatory agencies continue 

to resort to these “contextual” factors to determine 
- 8 - 

whether an ad or other statement is the “functional

equivalent of express advocacy” chills political speech 

because the speaker cannot be sure whether the 

agency will subjectively determine that the ad is 

regulable and bring an enforcement action based 

upon that subjective determination. The following 

case and administrative adjudication serve as a 

prime illustration of what has become, in practice, an 

unworkable standard. 

In National Right to Work, 581 F. Supp. 2d at 

1135-36, the National Right to Work Legal Defense 

and Education Foundation, Inc. (“Foundation”) 

challenged the constitutionality of several provisions 

of the Utah Code regulating campaign-related 

expenditures. The Utah Legislature enacted 

legislation permitting students to use state-funded

scholarships, or vouchers, to attend private schools. 

Id. at 1136. The law was met with public opposition,

leading to a ballot referendum seeking its repeal. Id. 

The Utah Teacher’s Association was one of the 

proponents of the referendum, and several teachers 

and other public school employees contacted the 

Foundation claiming harassment and intimidation 

by union agents in efforts to collect signatures on

petitions in opposition to the voucher bill. Id. at 

1136-37. The Foundation, whose purpose is to 

defend “the rights of workers who are suffering legal 

injustice as a result of employment discrimination 

under compulsory unionism arrangements, and to 

assist such workers in protecting rights guaranteed

to them under the Constitution and laws of the 

United States,” began to run an radio and television 

ad campaign “in an effort to inform public school 
- 9 - 

employees of their rights and to oppose the Union.” 

Id. at 1137 (citations omitted). The radio ad stated:

Recently, teacher union officials have 

launched a state-wide political blitz in 

Utah’s public schools. Their goal? To 

sabotage a popular new law meant to 

improve the quality of education for 

Utah’s children. 

If you are a teacher or school employee, 

you have the right not to participate in 

the union’s petition drive. In fact, the 

attorney general’s office has just warned 

that the use of school time or resources 

for politics violates Utah’s criminal 

laws. If you are pressured by a union 

activist, you have the legal right to say 

no – without fear of union retaliation. 

For free legal aid, contact the National 

Right to Work Foundation at 1-800-336-

3600. Or righttowork.org. 

It’s just plain wrong for union bosses or 

any special interest ground to misuse 

our public schools to promote their 

narrow political agenda. You have 

rights. Once again, that’s 1-800-336-

3600. Or righttowork.org. 

Id.

2

 

 

2

 The television ad used similar language. National 

Right to Work, 581 F. Supp. 2d at 1137-38. 
- 10 - 

The Utah Lieutenant Governor’s office warned the 

Foundation that the ads may be subject to the Utah 

Election Code and instructed the Foundation to 

register as a political issues committee. Id. at 1138. 

The Lieutenant Governor’s office believed that the 

phrases “sabotage a popular new law,” “petition 

drive” and “narrow political agenda” subjected the 

ads to regulation. Id. (citations omitted). As a 

political issues committee, the Foundation would be

subject to various disclosure and reporting 

requirements. See id. at 1139. The Foundation 

responded that it was not a political issues 

committee, but instead was “a ‘legal aid organization 

offering free assistance to any public employee who

might be coerced or intimidated in the exercise of 

their political rights by union agents.’“ Id. at 1138, 

1139-40. The Lieutenant Governor’s office ultimately 

concluded that “although the Foundation was not a 

political issues committee, their ads constituted 

political issues expenditures, requiring the 

Foundation to comply with the reporting and 

disclosure requirements of [Utah Code Ann.] § 20A11-702.” Id. 

Utah defined “political issues expenditure” as a 

“‘payment . . . of money made for the purpose of 

influencing the approval or the defeat of a ballot 

proposition.’” Id. at 1140 (quoting Utah Code Ann. 

§ 20A-11-101(30)(a)(ii)) (alterations in original). 

After reviewing Buckley, McConnell, and WRTL, the 

district court stated that “campaign finance laws 

may constitutionally regulate only those activities

that are unambiguously campaign related.” Id. at 

1140-44. The court concluded that the government 
- 11 - 

may regulate only: (a) “express advocacy” that uses

the “magic words” discussed in Buckley and (b) “the 

functional equivalent of express advocacy” meeting 

the definition of “electioneering communications” 

under the BCRA and being “susceptible of no 

reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. at 1144 

(citations omitted). 

Using these precedents as its guide, the court 

determined that the definition of “political issues

expenditure” could apply only to “those expenditures 

that unambiguously relate to the enactment or 

defeat of a particular ballot measure.” Id. at 1149. 

The court concluded that the ads were not express 

advocacy. Id. While the ads did refer to the voucher 

law and may have suggested the Foundation’s 

support for the law, they did not “expressly advocate 

for either the success of vouchers or the failure of the 

petition drive.” Id. at 1149-50. Moreover, the 

advertisements were not the functional equivalent of 

express advocacy because they did not meet the 

BCRA‘s definition of “electioneering 

communications.” Id. at 1150. 

The State, however, claimed that “any 

communication deemed to be the functional 

equivalent of express advocacy – whether it meets 

BCRA‘s definition of ‘electioneering communication’

or not – is constitutionally regulable.” Id. at 1150. 

According to the State, when the context of the ads is 

considered, “a reasonable person hearing the ads 

would understand that a central purpose of the ads is 

to engender support for school vouchers” and was the 
- 12 - 

functional equivalent of express advocacy. Id. The 

court rejected this argument, reiterating the 

objective nature of the test for “functional equivalent 

of express advocacy” and noting that the State’s 

context-based argument “flies in the face of the 

Supreme Court’s mandate for clarity” and “provides 

no meaningful boundaries of regulable versus nonregulable speech, and will only lead to further 

disputes and litigation.” Id. at 1150 n.10. 

While the court in National Right to Work 

properly applied the constitutional standard and 

corrected the Lieutenant Governor’s error, this case 

demonstrates how the standard in McConnell has 

become unworkable in practice. While the Court has

eschewed standards that lead to discovery and 

litigation because of their chilling nature, the 

McConnell standard has had just that result. To 

substantiate its regulated speech position, Utah 

argued that the speech was the “functional 

equivalent of express advocacy” because of the 

context in which the ads were run. While the 

standard itself prescribes an objective view of the

communications, the practical application of the 

standard by persons interpreting, applying, and 

enforcing the law is wholly subjective. 

The fact that courts have corrected the misguided 

attempts of executive agencies to enforce campaign 

speech laws does not ameliorate the chilling effect

that the prospect of enforcement may have upon a 

speaker. See WRTL, 127 S. Ct. at 2666 (“[l]itigation 

on such a [hearer-based] standard may or may not 

accurately predict electoral effects, but it will 
- 13 - 

unquestionably chill a substantial amount of political 

speech”). The fact that courts may be able to correct 

the unconstitutional application of McConnell’s 

standard does not assuage the fears of a speaker that 

faces civil and criminal sanctions for speaking. 

Because of the way in which McConnell’s standard is 

applied in practice, to engage in any speech that has 

the possibility of being interpreted as the functional 

equivalent of express advocacy requires a speaker 

willing and able to navigate through agency opinions 

and lawsuits, and willing to undertake the time and

expense to comply with onerous reporting and 

disclosure requirements to speak. This situation 

cannot be what the McConnell Court envisioned or 

intended when it enunciated its standard for political 

speech. 

The Commission has likewise struggled to 

objectively apply McConnell’s standard. In fact, it 

has adopted context-based regulations that allow a 

finding of express advocacy “[w]hen taken as a whole 

and with limited reference to external events, such

as the proximity to the election, could only be 

interpreted by a reasonable person as containing 

advocacy of the election or defeat of one or more 

clearly identified candidate(s) because . . . 

[r]easonable minds could not differ as to whether it 

encourages actions to elect or defeat one or more 

clearly identified candidate(s) or encourages some 

other kind of action.” 11 C.F.R. § 100.22(b). 

Although this statement of law explicitly mandates 

an inquiry of how the hearer interprets the 

statements, and further mandates the examination 

of contextual factors, at least one court has 
- 14 - 

interpreted the “reasonable minds could not differ”

portion of the regulation to be “virtually the same

test” set forth in WRTL. See, e.g., The Real Truth 

About Obama, Inc. v. FEC, Case No. 3:08-CV-483, 

2008 WL 4416282, *11 (E.D. Va. Sept. 24, 2008). A 

context-based test seems to be anything but that 

which was contemplated by the WRTL Court. 

It is clear that contextual and subjective factors 

necessarily play a role in determining whether 

speech is the functional equivalent of express 

advocacy, and resort to those factors may simply be

inevitable. Within the Commission itself, various 

commissioners continue to struggle to apply 

McConnell’s standard without resort to subjective 

considerations. A case from the most recent election 

cycle starkly illustrates the issues faced by 

individuals attempting to apply an objective 

standard that requires them to review a 

communication to determine whether it is capable of

an interpretation other than an appeal to vote. 

In 2008, the National Right to Life Committee, 

Inc. requested an advisory opinion from the 

Commission to determine whether two proposed 

advertisements were regulated speech. See

Transcript of Commission Proceedings, October 23, 

2008 (“Transcript”), Appendix at 10a. The 

advertisements included statements such as “Will 

Obama now apologize for calling us liars when we 

were the ones telling the truth?” and “Barack 

Obama: a candidate whose words you can’t believe 

in.” Transcript, Appendix at 5a n.4. Despite the 

black-and-white scripts that were available to the 
- 15 - 

Commission, it was unable to conclude whether the 

advertisements were subject to regulation. While 

debating the issue, the Commission internally 

debated the extent to which contextual factors and 

subjective interpretations should influence the 

Commission’s determinations. 

The transcript from the October 23, 2008 

Commission meeting at which the advertisements 

were discussed discloses that the Commission 

considered contextual and subjective factors in 

determining whether the ads were subject to 

regulation. See Transcript, Appendix at 10a-35a. In 

particular, the Commission unsuccessfully grappled 

with the proper place that “tone” and other “factors” 

had in its analysis. To illustrate, Chairman McGahn 

mentioned Obama’s candidacy for president, 

indicating that “when we get into referencing 

Senator Obama as a candidate, significantly alters 

the tone of the advertisement, focussing [sic] it as 

much on Senator Obama’s bid for the Presidency as 

his actions as a state legislator.” Transcript, 

Appendix at 20a. The chairman noted how the ad 

was related to Mr. Obama’s campaign slogan, 

observing that “the advertisement manipulates 

senator [sic] Obama’s campaign slogan, ‘Change We 

Can Believe In’ to attack his character and call into 

question his trustworthiness as a candidate whose 

word you can’t believe in.” Transcript, Appendix at 

20a-21a. According to the chairman, though, “[t]he

idea that the tone of the ad is now the standard to

me is not a standard at all....And you know, when 

you get into the tone of the ad and factors and that 

kind of thing, I just don’t see that as – as something 
- 16 - 

that provides a sort of bright-line rule that the 

Supreme Court thought they were doing in the 

Wisconsin Right to Life.” Transcript, Appendix at 

22a. 

In response, Commissioner Weintraub, who 

favored finding one of the advertisements to be 

regulated speech, stated that “I hear what you’re 

saying about words like ‘tone’ and ‘factors,’ and I

would be happy to strip all that language out and 

just go by a straight meeting [sic] of the words if that 

would gain any votes on the other side. I’m not 

optimistic that it would, but I – I’m happy to make

the offer.” Transcript, Appendix at 27a. The 

Commission, however, was unable to divorce itself 

from considering outside factors, and another 

commissioner even suggested that “there are minor 

things that can be identified and clarified, or 

interpretation that can be developed through 

discovery....But there is not a restriction even 

engaging in minor litigation which could clarify 

enough so that a decision could be made fairly 

quickly.” Transcript, Appendix at 29a. 

The “tone” and “factors” considered were 

influenced by the commissioners’ own subjective 

thoughts, experiences, and interpretations. One 

commissioner recognized that, as a parent, she had 

taught her children to be honest while another 

commissioner noted that her mother “taught me that 

telling the truth was an important thing.” 

Transcript, Appendix at 30a. Commissioner 

Weintraub also concluded that “honesty and integrity 

and trustworthiness and having a word that people 
- 17 - 

can believe in are really high on my list of good 

character traits . . . To say that a candidate is – 

someone who is a candidate whose word you can’t 

believe in, I just don’t think there’s any reasonable 

interpretation of those words other than don’t vote

for this guy.” Transcript, Appendix at 19a. 

The Commission also considered the effect the ads 

would have on the hearer by examining how a 

reasonable person would interpret the ads, 

specifically in the context of an actual mention of an 

individual’s candidacy for office. One of the first 

considerations the Commission discussed during the 

meeting was whether referencing Mr. Obama as a 

“candidate” made the advertisement an appeal to 

vote. Commissioner Weintraub postulated that 

Maybe that’s true that [just merely 

referencing Senator Obama as a 

candidate doesn’t convert the ad into an 

appeal to vote], but in some hypothetical 

context one could call somebody a 

candidate without it being an appeal to 

vote for or against, but there’s no other 

explanation offered as to why that word, 

candidate, is in there otherwise. What 

else does it mean other than here’s a 

candidate; somebody is running for 

election that you can’t trust? What 

would any normal person do with that 

information? They would say, well, gee, ?

I don’t want to vote for somebody I can’t 

trust, whose word I can’t believe in.” 
- 18 - 

Transcript, Appendix at 18a (emphasis added). 

III. THE FAILURE OF BRIGHT THE FAILURE OF BRIGHT-LINE, 

OBJECTIVE TESTS IN THE CONTEXT OF OBJECTIVE TESTS IN THE CONTEXT OF 

“FUNCTIONAL EQUIVALENTS OF “FUNCTIONAL EQUIVALENTS OF 

EXPRESS ADVOCACY” CREATES EXPRESS ADVOCACY” CREATES 

UNCERTAINTY AND CHILLS PROTE UNCERTAINTY AND CHILLS PROTE NTY AND CHILLS PROTECTED 

SPEECH. IN THE ABSENCE OF SUCH A SPEECH. IN THE ABSENCE OF SUCH A 

CERTAIN STANDARD, SECTION 203’S CERTAIN STANDARD, SECTION 203’S 

BROAD PROHIBITION ON BROAD PROHIBITION ONSPEECH 

CANNOT BE PERMITTED TO STAND. CANNOT BE PERMITTED TO STAND. TO STAND. 

It is true that “[c]ourts need not ignore basic 

background information that may be necessary to 

put an ad in context – such as whether an ad 

‘describes a legislative issue that is either currently 

the subject of legislative scrutiny or likely to be the 

subject of such scrutiny in the near future,’ – but the 

need to consider such background should not become 

an excuse for discovery or a broader inquiry of the

sort we have just noted raises First Amendment 

concerns.” WRTL, 127 S. Ct. at 2669 (quoting 

Wisconsin Right to Life, Inc. v. FEC, 466 F. Supp. 2d 

195, 207 (D.D.C. 2006)). While this guidance on 

McConnell’s standard appears workable on its face, 

its subsequent use in application evinces that it 

cannot be used by individuals without resort to the

same subjective factors recognized as 

unconstitutional because of their chilling nature. 

The consideration of the effect of a communication 

on the listener, the context of the speech in relation 

to other facts, and individual interpretations of 

intent by regulators leads to unlimited and 
- 19 - 

undefined factors that may be used to categorize a 

particular advertisement as “express advocacy,” the

“functional equivalent of express advocacy,” or 

otherwise subject to regulation. The standard itself, 

while announced and envisioned by the Court as an 

objective standard, cannot be objectively applied 

without resort to unconstitutional “intent and effect” 

and contextual considerations and, instead, becomes

a subjective determination based upon a morass of 

personal opinions and random factors, multiplied by

the fact that there will likely be numerous regulatory 

agencies reviewing the same communication. This 

result hardly provides the bright line necessary to

protect political speech, which is at the core of First 

Amendment protections. Instead of being evaluated 

on objective factors, speakers are left to rely upon the 

personal opinions, upbringings, and thoughts of a few 

commissioners and enforcing officials to determine 

whether the message the speaker wants to convey 

will be seen as the functional equivalent of express 

advocacy. As observed in Buckley, 

[W]hether words intended and designed 

to fall short of invitation would miss 

that mark is a question both of intent 

and of effect. No speaker, in such 

circumstances, safely could assume that 

anything he might say upon the general 

subject would not be understood by 

some as an invitation. In short, the 

supposedly clear-cut distinction between 

discussion, laudation, general advocacy, 

and solicitation puts the speaker in 

these circumstances wholly at the mercy 
- 20 - 

of the varied understanding of his 

hearers and consequently of whatever 

inference may be drawn as to his intent 

and meaning. 

Such a distinction offers no security for 

free discussion. In these conditions, it 

blankets with uncertainty whatever 

may be said. It compels the speaker to 

hedge and trim. 

424 U.S. at 43 (quoting Thomas v. Collins, 323 U.S. 

516, 535 (1945)). 

CONCLUSION CONCLUSION 

Amicus Alliance Defense Fund respectfully 

requests that this Court now overrule that portion of 

McConnell that upholds the facial validity of Section 

203 of the Bipartisan Campaign Reform Act, reverse 

the judgment of the District Court, and remand the 

case to that court for further proceedings. 

Respectfully submitted, 

Benjamin W. Bull 

Counsel Of Record 

Erik Stanley 

Alliance Defense Fund 

15100 North 9th Street 

Scottsdale, Arizona 85260 

(480) 444-0020
- 21 - 

Tyson C. Langhofer 

Megan E. Garrett 

Court T. Kennedy 

Thomas A. Simpson 

Nicholas G. Frey 

Stinson Morrison Hecker LLP 

1625 North Waterfront Pkwy, Suite 300 

Wichita, Kansas 67206 

Robert J. McCully 

Shook, Hardy & Bacon LLP 

2555 Grand Blvd. 

Kansas City, MO 64108-2613 

Attorneys for Amicus Curiae

July 30, 2009
- 1a - 

APPENDIX 1 APPENDIX 1 

December 1, 2008 

AOR 2008-20 

Re: Advisory Opinion Request 

Thomasenia P. Duncan 

Office of General Counsel 

Federal Election Commission 

999 E Street NW (Filed Dec. 1, 2008) 

Washington, DC 20463 

By email & 1st Class Mail 

Dear Ms. Duncan, 

 

On behalf of the National Right to Life Committee, 

Inc. (“NRLC”), we respectfully request an Advisory 

Opinion (“AO”) from the Federal Election 

Commission (“FEC”), pursuant to 2 U.S.C. 437f of the 

Federal Election Campaign Act (“FECA”). NRLC 

seeks guidance as to whether it may reimburse its 

separate segregated fund, National Right to Life 

Political Action Committee (“NRLPAC”), for the costs 

of broadcasting a radio advertisement that was 

declared by the FEC, see AO 2008-15, not to be 

subject to the corporate prohibition at 2 U.S.C. § 

441b (“Prohibition”). 

Facts 
- 2a - 

On September 26, 2008, NRLC submitted AOR 

2008-15, in which NRLC “request[ed] an immediate 

response” (or within the 20 days provided in 11 

C.F.R. § 112.4(b) for candidates) as to whether NRLC 

would be prohibited from broadcasting two radio 

advertisements (Apology #1 and Apology #2). The 

reason for the haste, of course, was the fact that 

public interest in this issue was at a peak prior to the 

November 4 election, so NRLC “want[ed] to begin to 

run its ads immediately.” AOR 2008-15 at 4. NRLC 

added the following note regarding urgency: 

NRLC recognizes that 11 C.F.R. § 

112.4(b) only provides for a shorter 

response period when the requester is a 

“candidate” and NRLC is not a 

candidate. But it is inexcusable that 

this special benefit afforded to 

politicians should not also be afforded to 

private citizens and citizen groups. 

AOR 2008-15 at 4. 

The Supreme Court has placed some reliance on 

the availability of advisory opinions to mitigate 

burdens on free speech and association and to 

mitigate vagueness concerns. See, e.g., McConnell v. 

FEC, 540 U.S. 93 (2003). And in Citizens United v. 

FEC, a case now on appeal in the United States 

Supreme Court (No. 08-105), the FEC argued against 

a preliminary injunction to protect ads that also met 

the statutory “electioneering communication” 

definition on the basis that advisory opinions were

available and could be obtained on an expedited 
- 3a - 

basis: “When necessary, the Commission expedites 

its response to an urgent request for an advisory 

opinion, providing an answer in well under sixty 

days.” Defendant Federal Election Commission’s 

Memorandum in Opposition to Plaintiff ’s Second 

Motion for Preliminary Injunction at 10 n.8, Citizens 

United v. FEC, No. 1:07-cv-2240-RCL (D.D.C. Jan. 8, 

2008) (Doc. 33 on PACER). 

The FEC set the AOR for its October 23, 2008 

open meeting. 

In preparation for the October 23 meeting, the 

General Counsel submitted a draft AO stating that 

Apology #1 was not subject to the Prohibition, either 

as an independent expenditure or an impermissible 

electioneering communication. See Agenda Doc. 08- 

32. The General Counsel’s draft AO identified 

Apology #2 as containing express advocacy. 

Chairman McGahn submitted a draft AO stating 

that neither ad was subject to the Prohibition. See

Agenda Doc. 08- 32-A. 

At the October 23 meeting, comments by the 

commissioners indicated that three commissioners 

would have found that NRLC could permissibly 

broadcast both ads, Transcript (“TS”)3 at 19-20, 22, 

two commissioners would have followed the General 

Counsel’s Report by finding Apology #1 permissible 

and Apology #2 impermissible, TS at 6, 28, and one 

commissioner would have found both ads 

 

3 A transcript of the open meeting is appended. 
- 4a - 

impermissible. TS at 26-27. See also TS at 30-31 

(votes). 

Although there were apparently five 

commissioners (and at least the requisite four 

commissioners necessary for a decision) who 

indicated that they would have found Apology #1

permissible, the FEC did not immediately issue an 

AO permitting NRLC to pay for that ad. Because an 

AO was not immediately issued permitting NRLC to 

broadcast Apology #1, NRLC’s registered political 

committee NRLPAC began broadcasting it instead, 

starting on October 28.4

 

 

4 The version of Apology #1 broadcast by NRLPAC 

slightly differs from the script included in AOR 

2008-15. Instead of including the actual clip of 

Barack Obama’s statement, NRLPAC simply read 

the quote, and NRLPAC removed the reference to 

a specific journalist in the first paragraph. These

changes do not alter the substance of Apology #1

in any legally significant way for purposes of this

AOR. The complete text of Apology #1 as 

broadcast by NRLPAC is as follows: 

Male: The following is paid for by National Male

Right to Life PAC at nrlpac.org. Not 

authorized by any candidate or candidate’s 

committee, NRLPAC is responsible for the 

content of this advertising. 

Female 1: In August, National Right to Life Female 1

released documents proving that in 2003, 

Barack Obama was responsible for killing a 

bill to provide care and protection for babies 

who are born alive after abortions, and that he 

later misrepresented the bill’s content. 
- 5a - 

On November 24, the FEC approved AO 2008-15, 

which found Apology #1 permissible for NRLC to 

broadcast and reached no conclusion on Apology #2. 

Between October 28, when NRLPAC began 

broadcasting 

Apology #1, and November 24, when AO 2008-15 

was finally issued, NRLPAC spent $69,271.56 

broadcasting Apology # 1. 

 

Male: When Obama was asked about National Male

Right to Life’s charges in a televised interview, 

he replied: (quote) “ . . . I hate to say that 

people are lying, but here’s a situation where 

folks are lying.” 

Female 1: We challenged Obama to admit that Female 1

the documents are genuine, and admit to his 

previous misrepresentations. 

FactCheck[dot]org then investigated, and 

concluded: 

 

Female 2: (clinical, detached tone): “Obama’s Female 2

claim is wrong . . . The documents . . . support 

the group’s claims that Obama is 

misrepresenting the contents of [Senate Bill] 

1082.” 

Female 1: Was Obama afraid that the public Female 1

would learn about his extreme position – that 

he opposed merely defining every baby born 

alive after an abortion as deserving of 

protection? Will Obama now apologize for 

calling us liars when we were the ones telling 

the truth? 
- 6a - 

Discussion Discussion 

The FEC’s AO 2008-15 means that Apology #1 was 

in fact permissible when NRLC requested the 

opinion on September 26 (when the AO was 

requested), on October 22 (when the General Counsel

submitted her draft AO), and on October 23 (when 

sufficient commissioners to issue an AO indicated 

that they believed the ad to be permissible). But 

NRLC could not rely on the General Counsel’s initial 

draft (which was not approved in any event) or on the 

positions indicated at the October 23 meeting 

(especially since there were indications of attempted 

negotiations as to NRLC’s First Amendment rights), 

TS 31-32, because only an official AO provides legal 

protection. See 2 U.S.C. § 437f(c). 

So an issue-advocacy citizen group and its 

members were deprived of protection by the FEC for 

their right to engage in First Amendment-protected,

core-political, amplified speech, see Buckley v. Valeo, 

424 U.S. 1, 22 (1976), at the very time when the 

public’s interest in NRLC’s issue was at its peak. 

NRLC could not safely speak unless it was willing to 

venture forth without protection in the face of two

regulations, 11C.F.R. §§ 100.22(b) and 114.15, that

are so vague that the FEC Commissioners, 

themselves, could not readily or unanimously agree 

as to the regulations’ applicability. 

Moreover, the Commission seemed unable, or 

unwilling, to apply the constitutional mandate that

“in a debatable case, the tie is resolved in favor of 

protecting speech.” FEC v. Wisconsin Right to Life, 
- 7a - 

127 S. Ct. 2652, 2669 n.7 (2007) (“WRTL II”). This 

mandate ought to be applied by the Commission so 

that where the Commissioners split evenly on 

whether a communication is prohibited, the 

communication is recognized as permissible. 

Similarly, because § 100.22(b) turns on whether 

“reasonable minds could . . . differ” and § 114.15 

turns on whether a “communication is susceptible of

no reasonable interpretation other than as an appeal 

to vote,” and because Commissioners nominated by 

the President and confirmed by the Senate to a 

federal agency specializing in campaign-finance 

issues surely must be assumed to be reasonable, 

where commissioners “differ” on whether there is an 

appeal to vote in a communication then that 

communication should not be deemed express 

advocacy or an impermissible electioneering 

communication. 

These constitutional problems, coupled with the 

delay in processing AOs at times when public speech

on public issues is most pressing, requires a new 

approach. While resolving all of these problems is 

beyond this AOR, the facts of this request offer a 

good place to begin. 

NRLC believes that in a situation where a 

connected organization is able and chooses to fund 

communications through a separate segregated fund 

as a legal precaution while it awaits the outcome of a 

requested AO near an election, the connected 

organization should be able to reimburse its separate 

segregated fund for its disbursements to broadcast 

the ad if it is recognized in an AO as permissible. The 
- 8a - 

ability of NRLPAC to speak was no substitute for 

NRLC itself speaking. See, e.g., WRTL II, 127 S. Ct. 

at 2671 n.9 (PAC alternative not adequate 

substitute). And since federal funds are much more 

difficult to raise than other funds, connected 

organizations and SSFs rightly prefer using scarce 

federal funds only for communications for which the

requirement of using federal funds is constitutionally 

justified. 

The FEC could approach this in at least two ways. 

First, it might interpret the exclusion for 

administrative expenses, 2 U.S.C. § 441b(b)(2)(C), 

from the prohibition on “contribution or expenditure” 

and “any applicable electioneering communication,” 2 

U.S.C. § 441b(b)(2), to permit reimbursement for 

such activity where the activity was undertaken as a 

legal precaution for the connected organization while 

it awaits a response to an advisory opinion requested 

near an election. A legitimate “administration” 

function, 11 C.F.R. § 114.5(b), is the proper payment 

of obligations and the allocation of funding to comply 

with constitutional and legal requirements. This 

approach provides the advantage of fitting the new 

reimbursement potential into an existing body of 

law. For example, 11 C.F.R. § 114.15(b)(3) provides

for the reimbursement of administrative expenses by

a connected organization to its SSF within 30 days.

And AO 1983-22 recognized that the FEC has 

authority to permit reimbursement beyond that time 

period where an entity had requested an AO within 

the 30-day period. This is, of course, analogous to the 

present situation with NRLC and NRLPAC and the 

present AOR. 
- 9a - 

Second, the FEC might simply recognize that 2 

U.S.C. § 441b(a) prohibits corporate independent 

expenditures and “applicable electioneering 

communication[s],” not expenditures for permissible

communications. So, where communications are paid 

for by an SSF as a legal precaution for the connected 

organization while it awaits a response to an 

advisory opinion requested near an election, there is 

no justification for forbidding the reimbursement. 

Specifically, in such a situation there is no corporate 

corruption concern that would justify the government 

from forbidding the reimbursement, so that First 

Amendment liberties should prevail. So the FEC 

could simply issue the present AO recognizing in this 

circumstance the permissibility of the 

reimbursement. The Commission may then wish to 

engage in a rulemaking on the subject to explore 

further the constitutionally- and legally-permissible 

boundaries for allowing such reimbursements. 

Question Question 

Under these circumstances, may NRLC reimburse 

NRLPAC for the costs involved in broadcasting 

Apology #1? 

Sincerely, 

BOPP, COLESON & BOSTROM 

/s/ James Bopp, Jr. 

James Bopp, Jr. 

Richard E. Coleson 

Clayton J. Callen 
- 10a - 

AUDIOTAPE TRANSCRIPTION 

from 

FEC OPEN MEETING – OCTOBER 23, 2008 

* * * * 

Taken for: 

Bopp, Coleson & Bostrom 

Kaylan Lytle Phillips 

1 South Sixth Street 

Terre Haute, Indiana 47807 

812-232-2434 

* * * * 

CROSSROADS COURT REPORTING 

Renee R. Dobson, RMR 

9733 Sable Ridge Lane 

Terre Haute, IN 47802 

812-299-0442 

[2] APPEARANCES 

SPEAKERS: 

Donald F. McGahn, II, Chairman 

Steven T. Walther, Vice Chairman 

Cynthia L. Bauerly, Commissioner 

Caroline C. Hunter, Commissioner 

Matthew S. Peterson, Commissioner 

Ellen L. Weintraub, Commissioner 

Jonathan Levin, General Counsel 

Robert Knop, General Counsel 

David Adkins, General Counsel 

Amy Rothstein, General Counsel 
- 11a - 

[3] PROCEEDINGS 

CHAIRMAN MCGAHN: All right. Next up, Draft 

Advisory Opinion 2008-15 submitted by National 

Right to Life Committee, Inc. 

Do we have any other late-submitted documents 

we need to – 

UNIDENTIFIED MALE SPEAKER: Yes, Mr. 

Chairman. We’d move for the sustention of the 

attorney’s – provision for the attorney’s submission of 

documents to consider, Agenda Document Number 

08-32 and Agenda Document 08-32A. 

CHAIRMAN MCGAHN: Without objection, so 

ordered. 

MR. ADKINS: Good morning, Mr. Chairman, 

Commissioners. The two draft advisory opinions 

before you, Agenda Document 08-32 and Agenda 

Document 08-32A, respond to an Advisory Opinion 

request submitted on behalf of the National Right to 

Life Committee, Incorporated. The NRLC is a 

nonstock, 501c4 nonprofit which has produced two 

radio advertisements. The NRLC intends to 

broadcast these advertisements immediately and 

continuously throughout the United States leading 

up to the November 2008 general election. The two 

advertisements involve a dispute between the NRLC 

[4] and Senator Barack Obama over a vote that 

Senator Obama cast as a member of the Illinois 

legislature and specifically whether Senator Obama 
- 12a - 

mischaracterized that vote in subsequent 

statements. The only difference between the two 

advertisements is that the second advertisement 

features a concluding sentence that reads, “Barack 

Obama, a candidate whose words you can’t believe 

in.” The committee asks whether the NRLC’s use of 

general treasury funds to finance the broadcast of 

the advertisements would constitute prohibitive 

corporate expenditures or prohibitive electioneering 

communications. 

The first draft, Agenda Document 08-32, concludes 

that the first advertisement does not contain express 

advocacy and would be a permissible corporatefunded electioneering communication. Therefore, the

NRLC would be able to fund its broadcast with 

general treasury funds. 

Regarding the second advertisement, the draft 

concludes that the ad does contain express advocacy, 

and therefore the NRLC’s funding of its broadcast 

with treasury funds would constitute a prohibitive 

corporate expenditure. 

By contrast, the second draft, which is [5] Agenda 

Document 08-32A, or revised Draft B, concludes that

neither advertisement is an impermissible 

electioneering communication or contains express 

advocacy. Therefore, the NRLC would be able to use 

treasury funds to finance the broadcast of both 

advertisements. 

However, we received two comments on the drafts, 

specifically the first draft, and one comment on the 
- 13a - 

request. So I’m happy to address any questions you 

may have. Thanks. 

CHAIRMAN MCGAHN: Thank you. First, I’d like 

to thank Mr. Adkins for his work on this. Whenever 

we get anywhere near the history of the agency on 

issues that involve interpreting Supreme Court cases 

is a very challenging area. And the herding of the 

cats here has taken up a lot of time, and I appreciate 

the effort and various drafts and – and helping all

the commission with their thinking on this. 

Two drafts and on the first ad, my sense is there’s

some agreement at least as to the conclusion. And 

then there’s a difference on the – whether 

mentioning – whether putting that extra line in the

ad changes the ad. Given that Draft B is from me, it’s 

pretty clear where I [6] stand, but the thing about

this is it’s an AO request, and it’s a rather targeted 

request, and it certainly is a request designed to put 

a tough issue in front of the commission. This is not 

an easy case. These were ads written in a way to 

probably raise a lot of issues. In a lot of ways this is a 

law school exam on the meaning of the Wisconsin 

Right to Life test. And – and, you know, it’s tough as 

an agency to look at test cases because they always

raise issues that may not otherwise be raised, but 

that’s the beauty of the AO process. We still have to 

try to answer the questions as best we can. Any 

comments, thoughts, motions? Ms. Weintraub? 

COMMISSIONER WEINTRAUB: Thank you, Mr. 

Chairman. I support the other draft. We didn’t 

originally have two drafts, so they’re not – one of
- 14a - 

them doesn’t have a letter, and the other one is just 

Draft B. I support the unlettered Agenda Document, 

08-32. I think that it is most consistent with the 

Wisconsin Right to Life decision, with our regulation 

implementing the Wisconsin Right to Life decision, 

with our – with the arguments that this agency has 

made in court subsequent to that regulation, and the 

[7] Wisconsin Right to Life decision, and with the 

responses that we’ve gotten back from the court on – 

from lower courts on that regulation and on 

interpretations of it. I know a lot of people preferred 

the magic word test, and, you know, there were a lot 

of serious, respected people who for many years 

thought that was the end point of under the 

constitution of what could be regulated was magic 

words. But in the McConnell case the Supreme Court 

said that that test is functionally meaningless and

expanded into the area of functional equivalent of 

express advocacy. 

When we got to the Wisconsin Right to Life case, 

the court said, an ad is a functional equivalent of

express advocacy only if the ad is susceptible of no 

reasonable interpretation other than as an appeal to 

vote for or against a specific candidate. Under this 

test, WRTL’s three ads are plainly not the functional 

equivalent of express advocacy. First, their content is 

consistent with that of a genuine issue ad: The ads

focus on a legislative issue, take a position on the 

issue, exhort the public to adopt that position, and 

urge the public to contact public officials with respect 

to the matter. 
- 15a - 

[8] And I’ll just interrupt the quote at this point to 

point out that the ad in this case – I suppose it 

focuses on a legislative issue. It’s a past legislative 

issue. It’s a vote that was taken in the state senate 

in, I think, 2000, but it is – it does generally pertain 

to the issue of abortion, which clearly is an ongoing 

public policy concern that, you know, people get very 

animated about, and it’s very important to a lot of

people. So I’m, you know, not trying to read this too 

narrowly. The ad takes a position on – certainly on

the vote on that issue. Doesn’t really exhort the 

public to adopt that position or urge the public to

contact public officials with respect to the matter. So 

it’s not clear out of the four factors that the court 

mentioned as being consistent with that of a genuine 

issue ad. At least two of them are clearly missing 

from this ad. 

Second, going back to the quote, their content 

lacks indicia of express advocacy: The ads do not 

mention an election candidacy, political party or 

challenger, and they do not take a position on the 

candidate’s character, qualifications, or fitness for 

office. 

[9] Now, those factors, those two factors, I think,

are clearly evident. The indicia of express advocacy, 

in the ad – in the second ad which has the tag line – 

let me find it – “Barack Obama, a candidate whose 

word you can’t believe in.” 

A candidate, mentions that he’s a candidate and 

says that his word can’t be believed in. In the – in a 

recent case that we litigated, “The Real Truth About 
- 16a - 

Obama,” – there were same counsel who has filed the

request today – we had a couple of other ads where 

the tag line was in one case, “Now you know the real 

truth about Obama’s Position on abortion. Is this the 

change you can believe in?” The commission took the

position that that was not express advocacy. 

The second ad had the tag line, “Obama’s 

Callousness,” – and I’m going to put in a dot, dot, dot 

because the rest – there’s a part in the middle that 

doesn’t really go to the legal issue – Obama’s 

callousness reveals a lack of character and 

compassion that should give everyone pause. 

Should give everyone pause was enough for this 

commission to go into court and argue that that’s 

express advocacy. 

[10] Now, the really interesting thing to me about,

“The Real Truth About Obama” case is that the 

decision we got back from the Eastern District of 

Virginia, not normally a place where one finds really 

liberal interpretations of campaign finance laws, was 

that both of these ads were express advocacy; that 

both of them met the no-other-reasonable 

interpretation test under Wisconsin Right to Life. 

I was stunned and gratified by that because that 

actually had been my position all along, but, you 

know, I didn’t expect them to agree with me. 

But if you look at those two tag lines and say, well, 

that’s express advocacy, I think it’s really hard to 

come back and say a candidate whose word you can’t 

believe in doesn’t make the cut. As I said, either 
- 17a - 

under the direct words of Wisconsin Right to Life or 

under our regulation, which the court in “Real Truth 

About Obama” said, you know, was a pretty close 

matchup to the court’s opinion. It pretty much 

endorsed our regulation as an accurate and precise 

reflection of the Supreme Court’s view. 

Now, I recognize that the other draft does attempt 

to proffer some other explanations for [11] what was 

going on in that second ad. There are – let’s see. Am I 

on the right draft here? There are, I think, four 

different proposed – let’s see – one, two, three, four – 

five different proposed interpretations of the ad, none 

of which go to the tag line, which is, of course, the 

difference between the two ads. That’s why I thought 

the first draft, the unnumbered – unlettered draft 

that I support was a good, narrow interpretation of

Wisconsin Right to Life and our regulation because 

even though the ad, I think, does clearly go to 

Senator Obama’s character, without that tag line I 

think it doesn’t quite cross over the line that – the 

very high bar that the Supreme Court set for us in 

Wisconsin Right to Life. And as I said, the 

alternative explanations for even the second ad in 

the – in Draft B don’t address that – that tag line. 

What the draft does go on to say is that just merely 

referencing Senator Obama as a candidate doesn’t 

convert the ad into an appeal to vote. Maybe that’s

true, but in some hypothetical context one could call 

somebody a candidate without it being an appeal to 

vote for or against, but there’s no other explanation 

offered as to why that word, candidate, is in there

otherwise. What [12] else does it mean other than 

here’s a candidate; somebody is running for election 
- 18a - 

that you can’t trust? What would any normal person 

do with that information? They would say, well, gee, 

I don’t want to vote for somebody I can’t trust, whose 

word I can’t believe in. 

The draft goes on to say that the ad, even the 

second ad doesn’t comment on his – Senator Obama’s 

fitness or qualifications for office. 

On the contrary, it takes issue with Senator 

Obama’s candor with respect to statements 

supposedly made by the senator about requester; 

hence, the ad does not say that Senator Obama is a 

candidate you can’t believe in, but instead remains

focused on what he supposedly said; thus stating 

that he’s a candidate whose word you can’t believe in 

with respect to what he said about requester. And I

have to say I cannot find the legal difference or even 

the factual difference between those two statements; 

that he’s a candidate you can’t believe in as opposed 

to a candidate whose word you can’t believe in 

because he’s not doing mime out there on the 

campaign trail. He’s using words. If you can’t believe 

his words, what is it that you could believe about [13] 

this guy? 

And it’s interesting to me – and I don’t know; 

maybe this is inadvertent – that the draft says – it 

doesn’t comment on his fitness or qualifications for 

office, but it leaves out the word, character, which is 

in both the Supreme Court test and in our 

regulation. And I think character is really the key to 

this because when you say somebody’s word can’t be 

believed in, that’s a very direct attack on character. 
- 19a - 

You know, you say somebody’s word can’t be believed

in? In some parts of the country them is fightin’ 

words. 

And certainly, when I try and teach my children 

about what it takes to be a person of good character, 

what traits they ought to be adopting, honesty and 

integrity and trustworthiness and having a word 

that people can believe in are really high on my list 

of good character traits. And I’m – I’m willing to bet 

that the other parents on this panel teach their kids 

the same thing. This does go directly to character. To 

say that a candidate is – someone who is a candidate 

whose word you can’t believe in, I just don’t think

there’s any reasonable interpretation of those words 

other than don’t [14] vote for this guy. And it’s not 

clear to me actually whether if the ad said don’t vote 

for him because he’s a candidate whose word you 

can’t believe in, if that would be enough for my 

colleagues to say, that makes the ad express 

advocacy; or whether they would still say, well, 

there’s all this issue talk in there, and that kind of 

outweighs the even magic words in the context of this 

ad. I’m not really sure what the end point is of that 

analysis. I just – I just don’t think it’s – it’s 

reasonable. I don’t think, again, if – if – again, 

looking to the more conservative of the two ads in,

“The Real Truth About Obama,” if Obama’s 

callousness reveals a lack of character and 

compassion, that should give everyone pause is 

enough to trip the express advocacy standard, I don’t 

see how saying that he’s a candidate whose word you

can’t believe in could possibly be anything other than 

urging somebody – urging anybody who hears this to 
- 20a - 

– to vote against him. And indeed, the fact that he

came in here and said, I want a 20-day AO even 

though I’m not entitled to it, and I really wanted – 

my colleagues know I really did try to get an answer 

as quickly as possible on this. I [15] wanted to 

answer his question quickly because I always 

assumed that these ads were all about the election.

You wouldn’t need a 20-day AO if it was just an issue 

ad, and he wasn’t seeking to affect the election. The 

reason that he needed to – was urging us to get him

an answer quickly, I think, is because the election is 

coming up. And I think, you know, it would be better 

if we could have answered even quicker and even 

better if we could agree on the result; although, I’m 

not – I’m not optimistic. 

So for all of those reasons I support the first draft, 

the unlettered draft, and not Draft B. And I would be 

happy to move Draft – Draft Unlettered – it’s very 

confusing; sorry – Draft 08-32 at the appropriate 

time, or we could have further discussion, whatever

my colleagues prefer. 

CHAIRMAN MCGAHN: The problem I have with 

the unlettered draft is – well, essentially the flip side 

of the same coin that Commissioner Weintraub 

raised, page 8, lines 13 through 19, when we get into 

referencing Senator Obama as a candidate, 

significantly alters the tone of the advertisement,

focussing it as much on Senator Obama’s bid for the

Presidency as his actions as a [16] state legislator. 

Additionally, the advertisement manipulates 

senator Obama’s campaign slogan, “Change We Can 
- 21a - 

Believe In” to attack his character and call into 

question his trustworthiness as a candidate whose 

word you can’t believe in. The idea that the tone of 

the ad is now the standard to me is not a standard at 

all, and I think this ends up devolving into sort of an 

ink blot test kind of thing where you either see the 

vase or the two people talking to each other; and once 

you see one or the other, you’re never going to see the 

other. To me the issue is whether or not you can read 

an ad as something other than an appeal to vote, and 

I think that both ads you can. Merely because you 

mention that someone is a candidate doesn’t convert

the ad into something other than – it doesn’t convert 

that into an appeal to vote or preclude reading it as 

something other than an appeal to vote. Simply 

because they want an answer before the election that 

somehow we’re going to read some inference into this 

being therefore the functional equivalent of express 

advocacy to me is a farfetched argument because 

folks who want to run issue ads tend to use the [17] 

campaign cycle as the vehicle to bring their issue to 

the public attention because, well, that’s when the

most people are paying attention. You’re not 

necessarily going to run an issue ad on an issue of

public in court, you know, the second week of 

January or something. I mean, you may run it during

the Super Bowl; but you run it during election 

season, and that’s when folks have the most 

opportunity to be heard. So, of course, they’re going 

to use it. 

And then as far as the issue being a past 

legislative issue, the issue that is coming up 

apparently constantly all across the country in state 
- 22a - 

legislatures, when I first read the ad, I thought, well, 

okay, these folks are Right-to-Life folks who 365 days 

a year care about their issue set, and now they’ve 

found a vote from a current candidate that illustrates 

their issue; and they have been called liars, I guess, 

and they want to essentially defend themselves. They 

want to make the point that this fellow is a candidate 

who what he says about is you can’t believe in. And

that’s how I read the ad originally, and that’s how I 

still read the ad. 

And it just goes back to what I said [18] initially. 

This is a tough case because these are essentially a 

test case. They’re very carefully scripted ads. But

when we get into those sorts of ads, it does become

tough. And, you know, when you get into the tone of

the ad and factors and that kind of thing, I just don’t 

see that as – as something that provides a sort of 

bright-line rule that the Supreme Court thought they 

were doing in the Wisconsin Right to Life. 

Since it was raised – I wasn’t going to raise it, but 

“The Real Truth About Obama” litigation, the end of

the opinion, the court says that plaintiff is free to 

disseminate their message and make any 

expenditures they wish. And so, you know, it seems – 

it seems like we may even disagree over what that 

district court said or didn’t say. 

With that being said, I mean, this is – I read the 

Wisconsin Right test as a rather simple bright-line

test. And if you can – if you can read the ad as 

something other than an appeal to vote, that sort of 

begins and ends the analysis. And in fact, you can’t 
- 23a - 

really export the other – the other analyses without 

the full – the full package goods of the Wisconsin 

Right to Life; and in close calls the tie goes in favor of 

the speaker and all that [19] sort of thing. And to me 

I’ve tried to offer a variety of other reads of the ad. 

And whether or not they’re reasonable or 

unreasonable, have that debate, that devolves into 

an issue of fact, and I don’t read this as a fact issue. I 

read this as an issue of law; and hence, that’s why I 

support Draft B. 

Other comments? 

COMMISSIONER PETERSEN: I’ll just add briefly 

that I, too, interpret the Chief Justice’s test that he 

set forth in Wisconsin Right to Life as setting a very 

high bar with regard to which kinds of ads may be 

subjected to BCRA’s prohibition against corporate or 

labor-funded electioneering communications. I 

mean, as has been said already, Chief Justice 

Roberts said in that case, “The Court should find 

that an ad is the functional equivalent of express 

advocacy only if the ad is susceptible of no reasonable 

interpretation other than in its appeal to vote for or 

against a specific candidate. The test contemplates

that there may be close calls as we – as – and I agree 

with the chairman that this was crafted in a way to

be a close call. And – but the tests set forth by the 

chief justice contemplates those close [20] calls; that 

you could have situations where two people who are 

reasonable, one could interpret it as being the 

functional equivalent of express advocacy. The other 

one could think of it as issue advocacy. And he said 

when that happens, the tie goes to the speaker and 
- 24a - 

not the sensor. So the way I – again, I look at that 

test as setting a very high standard. And as the draft 

– Draft B shows, there are a number of reasonable 

interpretations other than as appeals to vote when 

you look at those ads that were proposed by the 

requester in this case. And for that reason I’ll be

supporting Draft B. 

COMMISSIONER HUNTER: Mr. Chairman, 

thank you. I support the comments of the chairman 

and Commissioner Petersen. Today a non-for-profit 

corporation, the National Right to Life Committee, 

would like to exercise its First Amendment rights by 

running two radio ads 60 days before a general 

election regarding an issue that’s at the core of its 

mission. BCRA states that a corporation may not pay

for advertisements that mention a candidate within 

60 days of the general election. National Right to Life 

can attempt to ensure that the speech doesn’t cross

the line by expressly [21] advocating the election or 

defeat of a specific candidate, by analyzing case law, 

the statute, and FEC regulations; but if they get it 

wrong, it’s a potential federal crime. 

In this case the National Right to Life Committee 

decided to file an advisory opinion, and we are in the 

unenviable position of determining whether an ad 

should be afforded the protection of the First 

Amendment. In June of ’07 the Supreme Court 

decided the Wisconsin Right to Life decision, which

we have talked about today, and held that the 

relevant section of BCRA unconstitutional as applied 

to issue ads that a not-for-profit corporation wanted 

to air within 30 days of a primary election. So very 
- 25a - 

similar facts to the Wisconsin Right to Life decision 

are before us today, both non-for-profit corporations. 

Both would like to air ads within the relevant time

period before the relevant electorate. 

The Supreme Court found that an ad is the 

functional equivalent of express advocacy only if the 

ad is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a 

specific candidate. 

As has been noted today, Draft B notes that [22] 

there are several other reasonable interpretations 

other than of an appeal to vote. 

In drawing the line between campaign advocacy 

and issue advocacy, the First Amendment requires 

us to err on the side of protecting political speech 

rather than suppressing it. I will support Draft B 

because I believe neither ad before us today is the

functional equivalent of express advocacy under an 

analysis of the Supreme Court precedent or FEC 

regulations. Thank you. 

CHAIRMAN MCGAHN: Ms. Weintraub again. 

COMMISSIONER WEINTRAUB: Thank you, Mr. 

Chairman. I don’t want to short-circuit anybody else 

who wants to talk. I just wanted to respond very 

briefly to a couple of comments that you made. It’s

true that the “Real Truth About Obama” decision 

says that the plaintiff is free to disseminate their 

message and make any expenditures they wish. The 

next sentence reads, “Their only limitation is on 

contributions based on constitutionally permitted 
- 26a - 

restrictions.” And that’s always the case when we 

have to decide. Nobody is ever forbidden from 

speaking. The question is what kind of money can 

you use, and are there going to be any disclosure [23] 

ramifications. So I don’t – 

CHAIRMAN MCGAHN: Well, if I could just – 

COMMISSIONER WEINTRAUB: Sure. 

CHAIRMAN MCGAHN: So if a corporation – if a 

corporation would be banned from speaking, and this

is a nonprofit entity giving us an Advisory Opinion

request – they’re a 501c4; they’re not an MCFL 

accepted, so they are prohibited from speaking. 

COMMISSIONER WEINTRAUB: Many 

organizations – I’m not – in fact, I’m pretty sure this 

one does, too – many 501c4’s in that position have a 

PAC, and they fund these kinds of communications 

through their PAC. And I believe this one is one of

those, so, again, it goes to funding. 

CHAIRMAN MCGAHN: We agree that the C-4 is 

a separate entity from a PAC? 

COMMISSIONER WEINTRAUB: Yeah. 

CHAIRMAN MCGAHN: Okay. So the C-4 is 

banned. 

COMMISSIONER WEINTRAUB: The C-4 can’t do 

it out of their C-4 account. They can do it out of their 

PAC. 
- 27a - 

The only other point that I wanted to make is that 

I hear what you’re saying about words like [24] 

“tone” and “factors,” and I would be happy to strip all 

that language out and just go by a straight meeting

of the words if that would gain any votes on the other 

side. I’m not optimistic that it would, but I – I’m

happy to make the offer. 

CHAIRMAN MCGAHN: I still struggle, though, 

with this. We have a requester who is a candidate –

or who alleges that a candidate for national office 

called them a liar. And we’re not going to get into

what the truth or – I mean, the requester included 

all kinds of backup for the ad; and, you know, for 

purposes of this, I think you just take everybody at 

their word for the purposes of the AO. We don’t need 

to get into whether or not who is winning the namecalling contest, but from a pulpit he wouldn’t have

had if he wasn’t running for president. So my view is 

we shouldn’t foreclose a nonprofit from defending 

itself in the same arena, which is his candidacy. I

mean, if they want to comment at a time – and to me

they throw out the word, candidate, not only – and I 

don’t think – obviously, when you mention the word,

candidacy, it has something to do with the election, 

right? But to me, that’s not the only reason why they 

put in the word, candidate. It’s [25] another reason 

not to believe what he’s saying because here’s a 

situation where the candidate is saying something 

about a grass-roots nonprofit group, and they want to 

say, well, is he a candidate whose words you can’t 

believe in? And the word is that – what he said about 

this nonprofit is the way I read it. And I’m not so

sure stripping out the tone language still changes the 
- 28a - 

end result. If the tag line had said that – said a 

politician whose words you can’t believe in, would 

that change your view? 

COMMISSIONER WEINTRAUB: I’m not sure. 

That is a much closer call. I’d have to go back and

look at the regulation again and see what – 

CHAIRMAN MCGAHN: Okay. Well, let’s take a 

look. 

COMMISSIONER WEINTRAUB: It says, 

“Mentioned an election, candidacy, political party,

opposing candidate or voting by the general public.” 

Maybe. I’d want it – I’d want to give it more than 

10-seconds thought. 

CHAIRMAN MCGAHN: So maybe if they changed 

that one word, that could – 

COMMISSIONER WEINTRAUB: But you still 

have the – the very direct attack on character. So like 

[26] I said, I’d want to give it more than 10- seconds 

thought here at the table. 

CHAIRMAN MCGAHN: Okay. So these are not as 

easy calls as some maybe would think. One word 

here and there can make a difference in these ads. 

But in any event, Vice Chair is looking at the regs as 

well. 

VICE CHAIRMAN WALTHER: We all have looked 

at our regs off and on. I want to say this. I’m 

probably the most conservative approach on this one
- 29a - 

because I don’t – to me, the added sentence in the 

second example doesn’t make such a difference. In 

my own mind it makes one express advocacy, and the 

other one not. Everyone knows Obama is a 

candidate, so it’s not really an issue. And even if it 

were an issue, I mean, even under Roberts’ opinion 

there are minor things that can be identified and 

clarified, or interpretation can be developed through 

discovery. The whole idea, as I understand it, is that 

we don’t want to be able to prevent free speech by 

engaging in protracted litigation, and then delay is 

what prevents it. But there is not a restriction even 

engaging in minor litigation which could clarify 

enough so that a decision could be made fairly 

quickly. 

[27] And I think when you look at this, then the 

next question is whose word you can’t believe in. 

Well, if you read one, you can argue that perhaps 

Obama could redeem himself if he made an apology. 

But when you look at what’s really the message here

is the public would know about his extreme position

that he opposed very defining every baby born alive

after an abortion as deserving a protection; that what 

we’re talking about is trying to convey that Senator 

Obama holds this position. It’s unacceptable; and in 

addition, he’s not telling the truth. And I really think 

at this particular point we find enough in it so that it 

appears an express advocacy; one is as well. 

Because we’re in litigation, however, I think my 

remarks are minor. I’m inclined to just make them as 

truncated as possible because in getting this 

interpreted in the next round of our litigation. 
- 30a - 

CHAIRMAN MCGAHN: Certainly agree. Ms. 

Bauerly? 

COMMISSIONER BAUERLY: Thank you, Mr. 

Chairman. I share many of Commissioner Weintraub 

and a certain amount of Commissioner Walther’s 

concerns about this draft as well. I’ll [28] support 

Draft A because I believe its consistent with our 

regulations and Supreme Court law. 

And some of – just some of my concerns about 

Draft B include that I agree the Supreme Court set a 

very high bar, and I think that the commission went

back and wrote a regulation consistent with that 

stringent test. And we could, you know, disagree 

whether that’s the right test or the wrong test, but 

that’s, you know, frankly not our role. But the 

Supreme Court did give us some guidance about how 

to interpret its tests, and in my view Draft B doesn’t 

fully take account of what I think are important 

guidants – guiding factors that are directly 

applicable here. The Supreme Court talks about 

indicia of express advocacy including mentioning an

election or a candidate and an attack on character.

And I don’t have children, but I agree with you. My

mother taught me that telling the truth was an 

important thing. 

So those are my concerns with Draft B, and so I 

will be supporting Draft A, or the unlettered draft as 

we refer to it. 

COMMISSIONER WEINTRAUB: Make a motion? 

CHAIRMAN MCGAHN: Time for a motion. 
- 31a - 

COMMISSIONER WEINTRAUB: All right, [29] 

Mr. Chairman. I move approval of Agenda Document 

Number 08-32. That’s the one without the letter. 

CHAIRMAN MCGAHN: That’s the unlettered. 

COMMISSIONER WEINTRAUB: The unlettered 

one. 

CHAIRMAN MCGAHN: Even though we have a 

Draft B, we don’t have a Draft A, so that would be 

pseudo A. On that motion all in favor say aye. 

VICE CHAIRMAN WALTHER: May I comment 

before we vote? 

CHAIRMAN MCGAHN: Sure. 

VICE CHAIRMAN WALTHER: I would just like to 

say I would support the portion of the motion that 

relates to question number 2, but not with respect to 

question number 1; so I’ll be voting against it. 

And I also do have problems with the use of the 

word, tone. I think that’s not the message or really 

the appropriate one to make this decision on. 

CHAIRMAN MCGAHN: Okay. All in favor of the 

motion say aye. 

COMMISSIONER WEINTRAUB: Let me just 

throw in one more thought, and that is that I 

appreciate the vice chairman’s comments. That’s why

I think this is the compromised draft because it says 
- 32a - 

one [30] is, and one isn’t express advocacy. I’m 

finished now. 

CHAIRMAN MCGAHN: Okay. We can vote now? 

COMMISSIONER WEINTRAUB: Yeah. 

CHAIRMAN MCGAHN: We’re all set? 

COMMISSIONER WEINTRAUB: Yeah. 

CHAIRMAN MCGAHN: Okay. I’m just looking 

both ways before I cross the street here. Okay. All in 

favor say aye. 

COMMISSIONER WEINTRAUB: Aye. 

CHAIRMAN MCGAHN: All opposed? 

(MEMBERS VOTE NO) 

CHAIRMAN MCGAHN: That motion fails 2 to 4 

with Commissioners Weintraub and Bauerly voting 

in favor, the remainder voting in opposition for 

apparently different reasons. 

Any other motions? 

UNIDENTIFIED MALE SPEAKER: Mr. 

Chairman, I would move that we approve Agenda 

Document Number 08-32-A, otherwise known as 

Draft B. 

CHAIRMAN MCGAHN: All in favor say aye. 

(MEMBERS VOTE AYE) 
- 33a - 

CHAIRMAN MCGAHN: All opposed? 

(MEMBERS VOTE NO) 

 

CHAIRMAN MCGAHN: That motion fails 3-3 

with [31] myself, Commissioner Petersen and Hunter 

voting in favor; Vice Chair, Commissioner Bauerly 

and Commissioner Weintraub voting in opposition. 

My sense is we have consensus; however, where five 

of us agree that the first ad – and I don’t have the 

questions in front of me, so I don’t want to say. 

Depending how you frame the question, do we have 

the okay for the c4 to run, I think, is the best way; 

and the second, we don’t have consensus. So maybe 

the best thing to do at this point is ask the counsel to 

prepare a draft that reflects the common areas where 

we have in five on the first ad and then unable to 

reach a conclusion on the – with respect to the second 

ad. I think that’s an accurate representation of the 

views up here. If it’s not – yes. 

COMMISSIONER WEINTRAUB: I just want to 

say to you what I’ve already said to one or two of 

your colleagues, and that is that I’m not – I haven’t 

decided yet whether I would vote for that answer. In 

part, it depends on the legal rationale, but in part I 

wasn’t actually kidding that I thought Draft A was a 

compromise. And I’m not sure that I’m willing to say, 

you know, just to give the permission without the 

complementary [32] restriction on the other ad. So 

I’m just – I’m continuing to ponder, and it will 

depend on the wording of the draft. 
- 34a - 

CHAIRMAN MCGAHN: Do we have any 

management administrative matters? 

UNIDENTIFIED MALE SPEAKER: We do not. 

CHAIRMAN MCGAHN: Okay. Anything else for 

the good of the order? 

Okay. With that, we will adjourn our open session. 

Thank you. 

(MEETING ADJOURNED) 

[33] STATE OF INDIANA ) 

 ) SS: 

COUNTY OF VIGO ) 

I, Renee R. Dobson, a Notary Public in and for said

county and state, do hereby certify that I listened to 

the audiotape recording of a meeting; 

That said meeting was taken down in Stenograph 

notes and afterwards reduced to typewriting under 

my direction; and that the typewritten transcript is a 

true and accurate record of said meeting; 

I do further certify that I am a disinterested 

person in this matter; that I am not a relative or 

attorney of any of the parties, or otherwise interested 

in the event of this matter, and am not in the employ 

of the parties. 

IN WITNESS WHEREFORE, I have hereunto set 

my hand and affixed my notarial seal this 13th day 

of November, 2008. 
- 35a - 

/s/ Renee R. Dobson, RMR 

My Commission Expires: 

September 6, 2015 

Renee R. Dobson, 

Notary Public, 

Residing in Vigo 

County, Indiana