IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF COLUMBIA 

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SENATOR MITCH McCONNELL,

et al.,

Plaintiffs,

v.

 FEDERAL ELECTION COMMISSION,

et al.,

Defendants.

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

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) All consolidated cases.

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REPLY MEMORANDUM IN SUPPORT OF

GOVERNMENT DEFENDANTS’ MOTION FOR

A STAY OF FINAL JUDGMENT PENDING APPEAL

TO THE SUPREME COURT OF THE UNITED STATES

Defendants Federal Election Commission (FEC), individual Commissioners of the FEC in

their official capacities, the United States of America, the United States Department of Justice, John

Ashcroft, Attorney General of the United States, and the Federal Communications Commission,

respectfully file this reply memorandum in support of their Motion for a Stay of Final Judgment

Pending Appeal to the Supreme Court of the United States.

As explained in our previous filings, the Court should stay its judgment in its entirety and

leave the statute that Congress enacted in effect during the interim period that it takes for the

Supreme Court to resolve the parties’ pending appeals on an expedited basis. In opposing such a

stay, plaintiffs ignore the traditional reluctance of the courts to displace an Act of Congress pending

an appeal to the Supreme Court and make exaggerated assertions of harm that would largely persist

whether or not a stay is granted. Moreover, plaintiffs assume that because they prevailed in part

before this Court, they will prevail to at least the same extent before the Supreme Court, despite the
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gravity of the arguments in support of the statute and the inability of this Court itself to reach a

consensus on the reasons for invalidating key provisions of BCRA. Plaintiffs contend that an Act

of Congress should be rendered inoperative during the pendency of the appeals in this case because

First Amendment interests are at stake. But plaintiffs ignore important countervailing interests that

support the validity of the statute and weigh in favor of a stay pending the expedited appeals to the

Supreme Court from this Court’s fractured decision.

1. Plaintiffs’ claim of harm largely derives from their asserted fear of enforcement actions

in the event that they choose to violate BCRA during the pendency of the appeals. But that harm

will persist whether or not a stay is issued. In the absence of a stay, the parties’ legal obligations

would be highly uncertain. Although this Court’s judgment would purportedly authorize plaintiffs

to take action contrary to the provisions of BCRA that the Court invalidated, any such conduct could

later become the basis for an enforcement action in the event of reversal by the Supreme Court. The

Supreme Court’s ruling as to the scope and validity of the statute will have retroactive effect and will

therefore govern conduct that occurs during the pendency of the appeals. See Harper v. Virginia

Department of Taxation, 509 U.S. 86, 96 (1993) (“a rule of federal law, once announced and applied

to the parties to the controversy, must be given full retroactive effect by all courts adjudicating

federal law”). Accordingly, to the extent that the Supreme Court holds that BCRA is constitutional,

the FEC would at least be free to consider enforcement actions for conduct occurring during the

pendency of the appeals that violated the statute. See Suster v. Marshall, 149 F.3d 523, 527 (6th Cir.

1998) (citing Edgar v. MITE Corp., 457 U.S. 624, 647-54 (1982) (Stevens, J., concurring in part and

concurring in the judgment)), cert. denied, 525 U.S. 1114 (1999).
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The agency could choose to forego such enforcement actions as a matter of sound discretion.

Nonetheless, until the Supreme Court provides a definitive ruling as to the validity of the statute,

plaintiffs will incur some risk of liability if they violate the statute, with or without a stay. Thus, the

injury that plaintiffs allege arises principally from the existence of the statute, not the grant or denial

of a stay. Moreover, although “this Court’s decision applies with equal force to all,” McConnell

Resp. at 4, not all parties can be expected to respond to the interim regime in the same manner if a

stay is denied. As explained above, political actors are not free to act with impunity in reliance upon

the district court’s injunction during the pendency of the appeals. Yet some parties can be expected

to take advantage of loopholes opened by this Court’s decision in order to obtain political advantage

over those who proceed within the boundaries established by BCRA until the Supreme Court

resolves the appeals. A stay would minimize those disparities by ensuring that an established set of

administrable rules governs all participants in the 2004 election cycle.

2. Plaintiffs’ arguments opposing a stay are fundamentally misconceived for the reasons

explained above. They also fail for several additional reasons.

a. The California Democratic Party, the California Republican Party, and the Republican

National Committee contend that this Court’s soft money rulings will be less confusing to administer

than Title I of BCRA. See CDP/CRP Opp. at 8; RNC Opp. at 6. Contrary to plaintiffs’ suggestions,

it would be extremely difficult for the FEC to “reinstat[e] the regulatory regime under which the

political parties have operated for many years (taking into account the restrictions upheld by the

Court).” CDP/CRP Opp. at 8. And it is incorrect to assert that “this Court’s decision simply returns

the law to its familiar posture prior to BCRA.” Id. at 5. As explained in our stay filing (Mem. of

Points and Auth. at 9-11) , this Court’s decision creates a number of uncertainties with respect to
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Title I. For example, although plaintiffs suggest that “the recently repealed or super[s]eded

allocation regulations, applicable to the national parties * * * can easily be reinstated,” CDP/CRP

Opp. at 8, it is not at all clear that doing so would be consistent with Judge Leon’s governing

decision. See J. Leon Op. at 26-37 (holding that the use of nonfederal funds for “mixed” purposes

is not regulable by Congress). Nor is it even clear that the FEC would be permitted to issue

regulations immediately (without prior public notice and comment) to implement this Court’s

decision during the pendency of Supreme Court review. 

b. The primary harm that plaintiffs allege would result from a stay of this Court’s rulings on

Title I is that national, state, and local party committees will be “increasingly prevented” from

undertaking collective planning for elections scheduled as early as this year. See CDP/CRP Opp.

at 6; see also RNC Opp. at 2-3. As explained at length in our merits briefs (Def. Opp. Br. at 23-31,

Def. Reply Br. 29-31 & n. 34), however, BCRA does not prevent representatives of national, state,

and local party committees from conferring about spending priorities or any other issues. The FEC’s

regulations make clear that, contrary to the RNC’s representation (RNC Opp. at 2-3), discussions

of the creation, funding, and implementation of Victory Plans would not involve the “directing” of

soft money within the meaning of the statute. See 11 C.F.R. 300.2(n). RNC’s assertion that

“Defendants in this action have never denied that RNC participation in these plans is severely

curtailed by new Section 323(a),” RNC Opp. at 2-3, is therefore inexplicable. In any event, because

BCRA does not prevent party committees from conferring with each other, a stay likewise would

not prevent party committees from conferring with each other.

c. The Madison Center and AFL-CIO plaintiffs contend that they will be irreparably harmed

if a stay reinstates BCRA’s primary definition of “electioneering communications.” But that
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definition does not apply to advertisements that are aired more than 60 days before a federal general

election and 30 days before a federal primary election. Any harm that those plaintiffs allege will

result from application of that definition (to advertisements that would air more than six months

from now) is entirely speculative and provides no basis whatever for declining to stay the district

court’s final judgment at this time. That is particularly true given that the Supreme Court is likely

to resolve the expedited appeals before the primary definition is triggered. The same plaintiffs

further contend that application of BCRA’s “electioneering provisions” to Title II to a special

election in Texas that is “tentatively” scheduled for early June (Madison Center Opp. at 8;see also

AFL-CIO Opp. at 4 n.4) would cause irreparable injury. But those plaintiffs do not even assert that

they intend to run advertisements in connection with this “tentative[]” runoff election.

In any event, plaintiffs’ allegations with respect to Title II are premised on an exaggerated

assessment of their likelihood of success on the merits as well as their alleged injury. As explained

at length in our briefs, the primary definition of “electioneering communication” is clear and

objective and fully consistent with the Constitution. Congress’s choice of that definition reflects its

informed judgment that advertisements having the specified characteristics are typically intended to

influence electoral outcomes and are likely to have that effect. That legislative judgment was based

in large measure on Members’ direct observations of the use of such communications to circumvent

pre-BCRA restrictions on corporate and union campaign spending, and it is entitled to considerable

judicial respect. And the scope of the provision is limited. A union or corporation that wishes to

distribute covered advertisements may finance them from a separate segregated fund; it may

disseminate them outside the narrow window of time immediately preceding the relevant federal

election or through alternative media; or it may modify the content of such advertisements by
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deleting express references to a particular federal candidate. Indeed, as the AFL-CIO recognizes

(Opp. at 8), the primary definition “has had little or not practical impact because of the almost

complete absence of federal elections” since the statute took effect. 

d. The Echols plaintiffs argue that a stay should be denied with respect to the Court’s ruling

on section 318 of BCRA, which prohibits persons less than 18 years old from making contributions

to federal candidates or to political parties. Notwithstanding this Court’s decision, there is a strong

likelihood that the Supreme Court will uphold Section 318. That provision is a valid means of

preventing adults from circumventing FECA’s contribution limits by making surrogate contributions

through minors under their control, and it is consistent with longstanding restrictions on minors’

ability to control and dispose of property. Moreover, any First Amendment interests that minors may

have in participating in the financing of federal elections is substantially limited by the fact that

minors have no constitutional right to vote in such elections. See U.S. Const. Amend. XXVI. 

The grant of a stay will cause no significant injury to the Echols plaintiffs. A stay would

delay, but would not deny, plaintiffs the opportunity to make campaign contributions. In the event

that the Supreme Court ultimately concludes that Section 318 is unconstitutional, plaintiffs should

still have ample opportunity to make contributions during the ongoing 2004 election cycle.

Moreover, allowing the statute that Congress enacted to remain in effect pending Supreme Court

review would leave minors entirely free to engage in any other form of political activity, including

volunteering their services to a candidate or political committee, making unlimited independent

expenditures to express their views, and contributing to independent political committees.

e. Contrary to the contentions of the National Association of Broadcasters (NAB), a stay of

this Court’s ruling with respect to Section 504 of the BCRA is also warranted. The Supreme Court
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is likely to uphold Section 504, which requires broadcast stations to maintain and make publicly

available specified categories of requests to purchase broadcast time. Section 504 applies only to

television and radio broadcast stations and cable television systems, and the Supreme Court has

upheld more intrusive regulation of those media than of any other form of communication. Section

504 does not impose significant additional burdens on broadcasters. Indeed, Federal

CommunicationsCommission regulations have long required broadcaststationsto disclosecandidate

“requests” to purchase broadcast time. See 47 C.F.R. 73.1943 (broadcast stations); 47 C.F.R.

76.1701 (cable television systems), and have required disclosure of the sponsors of broadcasts

concerning “controversial issue[s] of public importance,” see 47 C.F.R. 73.1212(e); see also 47

C.F.R. 76.1701(d) (cable television). 

The balance of harms also favors a stay. Although, as explained above, the statute imposes

few significant additional burdens on broadcasters, allowing Section 504 to remain in effect will

ensure that the public has access to important information concerning the amounts that individuals

and groups are prepared to spend to broadcast messages on political matters of national importance,

as well as the sums actually spent on such broadcasts. And requiring disclosure of those who make

requests, and the broadcasters’ dispositions of those requests, also enables the public to evaluate

whether broadcasters are processing requests in an evenhanded fashion. There is no basis for

shielding that information from the public during the pendency of the parties’ expedited appeals.

* * * *

In sum, unless it is stayed, the Court’s judgment invalidating and enjoining provisions of an

important Act of Congress will introduce substantial and unnecessary uncertainty for the 2004

election cycle by in effect requiring the Nation to go through three sets of rule changes in the year
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proceeding that election cycle: from the rules established by Congress in BCRA; to the rules

effectively established by this Court’s divided decision; to the rules ultimately established by the

Supreme Court’s decision in this case. The vital interest of all concerned in ensuring a stable set of

rules to govern the financing of federal elections decidedly outweighs plaintiffs’ exaggerated claims

of injury. And that is particularly true in light of the expedited timetable that Congress mandated

for the resolution of the appeals in this case to the Supreme Court. The Court accordingly should

stay its judgment in its entirety until the Supreme Court resolves the pending appeals.

CONCLUSION

For the foregoing reasons, and those stated in our stay motion and supporting memorandum,

the Court should stay the effect of its May 2, 2003 Final Judgment pending disposition of the

pending appeals by the Supreme Court of the United States. 

Respectfully submitted, 

THEODORE B. OLSON

 Solicitor General

LAWRENCE H. NORTON ROBERT D. McCALLUM, JR.

 General Counsel Assistant Attorney General

RICHARD B. BADER PAUL D. CLEMENT

 Associate General Counsel Deputy Solicitor General

STEPHEN E. HERSHKOWITZ MALCOLM L. STEWART

 Assistant General Counsel GREGORY G. GARRE

 Assistants to the Solicitor General

DAVID KOLKER 

 Assistant General Counsel

 

Counsel for Defendant

Federal Election Commission
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____________________________________

JOSEPH H. HUNT

THEODORE C. HIRT

JAMES J. GILLIGAN 

TERRY M. HENRY

RUPA BHATTACHARYYA

ANDREA GACKI

MARC L. KESSELMAN

SERRIN TURNER

Attorneys

U.S. Department of Justice

20 Massachusetts Ave, N.W.

Washington, D.C. 20044

Tel: (202) 514-3358

Counsel for Defendants United States of

America, John Ashcroft, Attorney General of

the United States, the U.S. Department of

Justice, and the Federal Communications

Dated: May 14, 2003 Commission
CERTIFICATE OF SERVICE

I hereby certify that on May 14, 2003, copies of the foregoing document were served (1) upon all counsel known

to be designated by the parties for service by electronic mail, by electronic mail, (2) upon the following by facsimile:

David A. Wilson 202.942.8484 John Bonifaz 617.368.9101

Kenneth W. Starr 202.879.5200 Charles J. Cooper 202.220.9601

James M. Henderson, Sr. 202.337.3167 James Bopp, Jr. 812.235.3685

Donald J. Mulvihill 202.862.8958

(3) upon the following by first-class mail, postage prepaid: 

Jan Witold Baran

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, D.C. 20006

Bobby R. Burchfield 

Covington & Burling

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Charles J. Cooper

Cooper & Kirk PLLC

1500 K Street, N.W., Ste. 200

Washington, D.C. 20005 

Laurence E. Gold

AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

James Matthew Henderson, Sr.

American Center for Law and

Justice

205 Third Street, S.E.

Washington, D.C. 20003

Donald J. Mulvihill

Cahill Gordon & Reindel

1990 K Street, N.W.

Washington, D.C. 20006

John Bonifaz

National Voting Rights Institute

One Bromfield St. 3rd Floor

Boston MA 02108

William J. Olson

William J. Olson, P.C.

8180 Greensboro Dr., Ste. 1070

McLean, VA. 22102-3823

Joseph E. Sandler

Sandler, Reiff & Young, P.C.

50 E St., S.E. #300 

Washington, D.C. 20003

Kenneth W. Starr

Kirkland & Ellis

655 Fifteenth Street, N.W.

Washington, D.C. 20005

David A. Wilson

Hale and Dorr L.L.P.

1455 Pennsylvania Ave., N.W.

10th Floor

Washington, D.C. 20004

Sherri L. Wyatt

Sherri L. Wyatt, PLLC

International Square Bldg.

1825 I Street, N.W.

Suite 400

Washington, D.C. 20006

G. Hunter Bates

1215 Cliffwood Drive

Goshen, Kentucky 40026

James Bopp, Jr.

James Madison Center For

Free Speech

Bopp, Coleson & Bostrom

1 South Sixth Street

Terre Haute, Indiana 47807

Floyd Abrams

Cahill Gordon & Reindel

80 Pine St.

New York, NY 10005

Mark J. Lopez

American Civil Liberties Union

125 Broad Street 17th Fl.

New York, N.Y. 10004

Roger M. Witten

Randolph D. Moss

Wilmer, Cutler & Pickering

2445 M Street, N.W.

Washington, DC 20037

Frederick A.O. Schwarz, Jr.

E. Joshua Rosenkranz 

Brennan Center for Justice

161 Avenue of the Americas,

12th Floor

New York, NY 10013

____________________________________

 JAMES J. GILLIGAN