No. 02-1674 et al. 

IN THE 

Supreme Court of the United States 

SENATOR MITCH MCCONNELL ET AL., 

Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION ET AL., 

Appellees/Cross-Appellants. 

On Appeal From The United States 

District Court For The District of Columbia

BRIEF FOR APPELLANTS/CROSS-APPELLEES 

SENATOR MITCH McCONNELL ET AL. 

FLOYD ABRAMS KENNETH W. STARR 

SUSAN BUCKLEY Counsel of Record 

BRIAN MARKLEY EDWARD W. WARREN 

CAHILL GORDON & KANNON K. SHANMUGAM 

REINDEL LLP KIRKLAND & ELLIS LLP 

80 Pine Street 655 Fifteenth Street, N.W. 

New York, NY 10005 Washington, DC 20005 

(212) 701-3000 (202) 879-5000 

(additional counsel on inside cover) 

July 8, 2003 
KATHLEEN M. SULLIVAN 

559 Nathan Abbott Way 

Stanford, CA 94305 

(650) 725-9875 

VALLE SIMMS DUTCHER 

L. LYNN HOGUE 

SOUTHEASTERN LEGAL 

FOUNDATION, INC. 

3340 Peachtree Road, N.E. 

Suite 3515 

Atlanta, GA 30326 

(404) 365-8500 

JAN WITOLD BARAN 

THOMAS W. KIRBY 

LEE E. GOODMAN 

WILEY, REIN & 

FIELDING LLP

1776 K Street, N.W.

Washington, DC 20006 

(202) 719-7000 

G. HUNTER BATES

FROST BROWN TODD LLC

400 West Market Street 

32nd Floor 

Louisville, KY 40202 

(502) 589-5400
QUESTIONS PRESENTED 

This brief will address the questions presented in No. 02-

1674, McConnell v. FEC; No. 02-1676, FEC v. McConnell; and 

No. 02-1702, McCain v. McConnell. 

The questions presented in No. 02-1674, McConnell v. FEC, 

are as follows: 

1. Whether the district court erred by upholding portions of 

the “soft money” provision (section 101) of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 

116 Stat. 81, because it constitutes an invalid exercise of 

Congress’ power to regulate elections under Article I, Section 4, 

of the Constitution; violates the First Amendment or the equal 

protection component of the Fifth Amendment; or is 

unconstitutionally vague. 

2. Whether the district court erred by upholding portions of 

the “electioneering communications” provisions (sections 203, 

204, and 311) of BCRA, because they violate the First 

Amendment or the equal protection component of the Fifth 

Amendment, or are unconstitutionally vague. 

3. Whether the district court erred by holding nonjusticiable 

challenges to, and upholding, portions of the “advance notice” 

provisions of BCRA (sections 201 and 212), because they 

violate the First Amendment. 

4. Whether the district court erred by holding nonjusticiable 

challenges to, and upholding, the “coordination” provisions of 

BCRA (sections 202, 211, and 214), because they violate the 

First Amendment. 

5. Whether the district court erred by holding nonjusticiable 

challenges to, and upholding, the “attack ad” provision of 

BCRA (section 305), because it violates the First Amendment. 

The questions presented in No. 02-1676, FEC v. McConnell, 

are as follows: 

1. Whether the limitations on political parties imposed by 
ii 

Section 101 of BCRA are constitutional. 

2. Whether the funding limitations and disclosure 

requirements imposed by Sections 201 and 203 of BCRA with 

respect to “electioneering communications” are constitutional. 

3. Whether the limitations imposed by Section 213 of 

BCRA on coordinated expenditures by a political party 

committee are constitutional. 

4. Whether the prohibition imposed by Section 318 of 

BCRA on contributions to federal candidates or political party 

committees made by minors is constitutional. 

5. Whether the reporting and record-keeping requirements 

imposed on broadcast stations by Section 504 are constitutional. 

The questions presented in No. 02-1702, McCain v. 

McConnell, are as follows: 

1. Whether the three-judge district court erred in 

invalidating on First Amendment grounds the provision 

addressing the raising, directing, transferring, and use of funds 

by political parties, federal candidates, and federal officeholders 

(BCRA § 101). 

2. Whether the three-judge district court erred in 

invalidating on First Amendment grounds the provisions 

addressing the use of funds from corporate and labor union 

general treasuries to finance broadcast advertisements that are 

intended or likely to influence federal elections, and disclosure 

requirements for all such broadcast advertisements (BCRA 

§§ 201, 203, 204). 

3. Whether the three-judge district court erred in 

invalidating on First Amendment grounds the provision 

addressing the ability of political parties to make both 

“independent” and “coordinated” expenditures to support the 

campaigns of candidates they have nominated to seek federal 

office (BCRA § 213). 
iii 

PARTIES TO THE PROCEEDINGS 

This brief is filed on behalf of the following plaintiffs below, 

who are appellants in No. 02-1674 and cross-appellees in No. 

02-1676 and No. 02-1702: Senator Mitch McConnell; 

Southeastern Legal Foundation, Inc.; Representative Bob Barr; 

Center for Individual Freedom; National Right to Work 

Committee; 60 Plus Association, Inc.; U.S. d/b/a Pro English; 

the National Association of Broadcasters; and Thomas E. 

McInerney. 

The “federal defendants,” who are appellees in No. 02-1674 

and/or cross-appellants in No. 02-1676, are the Federal Election 

Commission (FEC) and David W. Mason, Ellen L. Weintraub, 

Danny L. McDonald, Bradley A. Smith, Scott E. Thomas, and 

Michael E. Toner, in their capacities as Commissioners of the 

FEC; John D. Ashcroft, in his capacity as Attorney General of 

the United States; the United States Department of Justice; the 

Federal Communications Commission; and the United States of 

America. 

The “intervenor defendants,” who are appellees in No. 02-

1674 and cross-appellants in No. 02-1702, are Senator John 

McCain; Senator Russell Feingold; Representative Christopher 

Shays; Representative Martin Meehan; Senator Olympia 

Snowe; and Senator James Jeffords. 

The following parties, many of whom are appellants in other 

consolidated cases, were also plaintiffs in the district court: 

Representative Mike Pence; Alabama Attorney General Bill 

Pryor; Libertarian National Committee, Inc.; Alabama 

Republican Executive Committee, as governing body for the 

Alabama Republican Party; Libertarian Party of Illinois, Inc.; 

DuPage Political Action Council, Inc.; Jefferson County 

Republican Executive Committee; American Civil Liberties 

Union; Associated Builders and Contractors, Inc.; Associated 

Builders and Contractors Political Action Committee; Christian 

Coalition of America, Inc.; Club for Growth, Inc.; Indiana 
iv 

Family Institute, Inc.; National Right to Life Committee, Inc.; 

National Right to Life Educational Trust Fund; National Right 

to Life Political Action Committee; Martin Connors; Barret 

Austin O’Brock; Trevor M. Southerland; National Rifle 

Association of America; National Rifle Association Political 

Victory Fund; Emily Echols, a minor child, by and through her 

next friends Tim and Windy Echols; Hannah McDow, a minor 

child, by and through her next friends Tim and Donna McDow; 

Isaac McDow, a minor child, by and through his next friends 

Tim and Donna McDow; Jessica Mitchell, a minor child, by 

and through her next friends Chuck and Pam Mitchell; Daniel 

Solid, a minor child, by and through his next friends Kevin and 

Bonnie Solid; Zachary C. White, a minor child, by and through 

his next friends John and Cynthia White; Republican National 

Committee (RNC); Mike Duncan, as member and Treasurer of 

the RNC; Republican Party of Colorado; Republican Party of 

Ohio; Republican Party of New Mexico; Dallas County (Iowa) 

Republican County Central Committee; California Democratic 

Party; Art Torres; Yolo County Democratic Central Committee; 

California Republican Party; Shawn Steel; Timothy J. Morgan; 

Barbara Alby; Santa Cruz County Republican Central 

Committee; Douglas R. Boyd, Sr.; Victoria Jackson Gray 

Adams; Carrie Bolton; Cynthia Brown; Derek Cressman; 

Victoria Fitzgerald; Anurada Joshi; Peter Kostmayer; Nancy 

Russell; Kate Seely-Kirk; Rose Taylor; Stephanie L. Wilson; 

California Public Interest Research Group; Massachusetts 

Public Interest Research Group; New Jersey Public Interest 

Research Group; United States Public Interest Research Group; 

The Fannie Lou Hamer Project; Association of Community 

Organizers for Reform Now; Chamber of Commerce of the 

United States; National Association of Manufacturers; National 

Association of Wholesaler-Distributors; U.S. Chamber Political 

Action Committee; American Federation of Labor and 

Congress of Industrial Organizations; AFL-CIO Committee on 

Political Education Political Contributions Committee; 

Representative Ron Paul; Gun Owners of America, Inc.; Gun 
v 

Owners of America Political Victory Fund; Real Campaign 

Reform.org; Citizens United; Citizens United Political Victory 

Fund; Michael Cloud; Carla Howell; Representative Bennie G. 

Thompson; and Representative Earl F. Hilliard. 
vi 

STATEMENT PURSUANT TO RULE 29.6 

None of the appellants has a parent corporation, and no 

publicly held company owns 10% or more of the stock of any of 

the appellants. 
vii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ...................................................i 

PARTIES TO THE PROCEEDINGS................................... iii 

STATEMENT PURSUANT TO RULE 29.6........................vi 

TABLE OF AUTHORITIES ................................................ xi

INTRODUCTION ..................................................................1 

OPINIONS BELOW...............................................................2 

JURISDICTION .....................................................................2 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS.........................................................................2 

STATEMENT OF THE CASE ..............................................3 

A. Background...........................................................3 

B. BCRA ...................................................................6 

C. The District Court’s Decision...............................8 

SUMMARY OF ARGUMENT............................................11 

ARGUMENT........................................................................13 

I. THE “SOFT MONEY” PROVISION OF BCRA

IS UNCONSTITUTIONAL......................................13 

A. The “Soft Money” Provision Violates The 

First Amendment Rights Of Free Speech And 

Association. ........................................................14 

B. The “Soft Money” Provision Constitutes An 

Invalid Exercise Of Congress’ Power To 

Regulate Elections Under Article I, Section 4, 

Of The Constitution. ...........................................26 

C. By Discriminating Against Political Parties, 

The “Soft Money” Provision Violates The 

First And Fifth Amendments..............................35 
viii 

II. THE “ELECTIONEERING 

COMMUNICATIONS” PROVISIONS OF 

BCRA ARE UNCONSTITUTIONAL. ....................38 

A. Under Buckley and MCFL, The Government 

May Regulate Only Speech That Constitutes 

“Express Advocacy.” ..........................................39 

B. The Holdings In Buckley And MCFL Apply

Equally To Corporations And Unions. ...............45 

C. Even If This Court Were To Abandon Buckley

And MCFL, The “Electioneering

Communications” Provisions Could Not 

Survive Scrutiny. ................................................49 

D. The “Electioneering Communications” 

Provisions Are Overbroad Because They

Regulate Speech By Qualified Non-Profit

Corporations. ......................................................57 

E. The “Electioneering Communications” 

Provisions Are Vague And Underinclusive........57 

III. OTHER PROVISIONS OF BCRA ARE

UNCONSTITUTIONAL. .........................................62 

A. The “Advance Notice” Provisions Are 

Unconstitutional..................................................63 

B. The “Coordination” Provisions Are 

Unconstitutional..................................................64 

C. The “Attack Ad” Provision Is

Unconstitutional..................................................66 

D. The “Forced Choice” Provision Is

Unconstitutional..................................................68 

E. The “Minors” Provision Is Unconstitutional. .....71 
ix 

F. The “Broadcaster Records” Provision Is

Unconstitutional..................................................73 

CONCLUSION.....................................................................75 
x
xi 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Abbott Labs. v. Gardner, 

387 U.S. 136 (1967) ........................................................ 65 

Alaska Airlines, Inc. v. Brock, 

480 U.S. 678 (1987) ........................................................ 37 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ........................................................ 48 

Baggett v. Bullitt, 

377 U.S. 360 (1964) ........................................................ 60 

Bellotti v. Baird, 

443 U.S. 622 (1979) ........................................................ 71 

Bethel Sch. Dist. No. 403 v. Fraser, 

478 U.S. 685 (1986) ........................................................ 71 

Bigelow v. Virginia, 

421 U.S. 809 (1975) ........................................................ 65 

Blitz v. United States, 

153 U.S. 308 (1894) ........................................................ 29 

Board of County Comm’rs v. Umbehr, 

518 U.S. 668 (1996) ........................................................ 68 

Board of Trs. of Univ. of Ala. v. Garrett, 

531 U.S. 356 (2001) ........................................................ 21 

Buckley v. Valeo, 

424 U.S. 1 (1976) ..................................................... passim 

California Democratic Party v. Jones, 

530 U.S. 567 (2000) ...................................... 16, 18, 30, 70 

California Pro-Life Council, Inc. v. Getman, 

328 F.3d 1088 (9th Cir. 2003)......................................... 43 

Carey v. Brown, 

447 U.S. 455 (1980) ........................................................ 36 
xii 

Chamber of Commerce v. Moore, 

288 F.3d 187 (5th Cir.), 

cert. denied, 123 S. Ct. 536 (2002) ................................. 44 

Citizens Against Rent Control/Coalition for Fair Housing 

v. City of Berkeley, 

454 U.S. 290 (1981) ........................................................ 19 

Citizens for Responsible Gov’t State Political Action 

Comm. v. Davidson, 

236 F.3d 1174 (10th Cir. 2000)....................................... 44 

City of Ladue v. Gilleo, 

512 U.S. 43 (1994) .......................................................... 36 

Clifton v. FEC, 

114 F.3d 1309 (1st Cir. 1997) ......................................... 43 

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) ................................................. passim 

Connally v. General Constr. Co., 

269 U.S. 385 (1926) .................................................. 58, 75 

Cousins v. Wigoda, 

419 U.S. 477 (1975) ........................................................ 16 

Davis v. Bandemer, 

478 U.S. 109 (1986) ........................................................ 38 

Eisenstadt v. Baird, 

405 U.S. 438 (1972) ........................................................ 67 

Erznoznik v. City of Jacksonville, 

422 U.S. 205 (1975) ........................................................ 64 

Eu v. San Francisco County Democratic Cent. Comm., 

489 U.S. 214 (1989) .................................................. 16, 18 

Ex parte Clarke, 

100 U.S. 399 (1879) ........................................................ 29 

Ex parte Siebold, 

100 U.S. 371 (1879) ........................................................ 29 
xiii 

Ex parte Yarborough, 

110 U.S. 651 (1884) ........................................................ 29 

Faucher v. FEC, 

928 F.2d 468 (1st Cir. 1991) ........................................... 43 

FEC v. Beaumont, 

123 S. Ct. 2200 (2003) ................................................ 5, 22 

FEC v. Christian Action Network, Inc., 

110 F.3d 1049 (4th Cir. 1997)......................................... 43 

FEC v. Christian Coalition, 

52 F. Supp. 2d 45 (D.D.C. 1999) .................................... 66 

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) ................................................. passim 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987)........................................... 43 

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986) ............................................ 40, 46, 57 

FEC v. National Conservative Political Action Comm., 

470 U.S. 480 (1985) .......................................... 2, 5, 20, 46 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) .................................................. 35, 47 

Florida Star v. B.J.F., 

491 U.S. 524 (1989) ........................................................ 62 

Freedman v. Maryland, 

380 U.S. 51 (1965) .......................................................... 67 

Ginsberg v. New York, 

390 U.S. 629 (1968) ........................................................ 71 

Gooding v. Wilson, 

405 U.S. 518 (1972) ........................................................ 67 

Keyishian v. Board of Regents of Univ. of State of N.Y., 

385 U.S. 589 (1967) ........................................................ 75 
xiv 

Kusper v. Pontikes, 

414 U.S. 51 (1973) .......................................................... 16 

Legal Servs. Corp. v. Velazquez, 

531 U.S. 533 (2001) ........................................................ 68 

Members of City Council of Los Angeles v. Taxpayers for 

Vincent, 

466 U.S. 789 (1984) ........................................................ 67 

NAACP v. Alabama, 

357 U.S. 449 (1958) ........................................................ 74 

NAACP v. Button, 

371 U.S. 415 (1963) ........................................................ 23 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) .............................................. 1, 52, 68 

Nike, Inc. v. Kasky, 

123 S. Ct. 2554 (2003) .............................................. 18, 48 

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000) ............................................ 18, 20, 25 

Oregon v. Mitchell, 

400 U.S. 112 (1970) .................................................. 27, 30 

Pacific Gas & Elec. Co. v. Public Utils. Comm’n, 

475 U.S. 1 (1986) ............................................................ 47 

Perry v. Sindermann, 

408 U.S. 593 (1972) .................................................. 68, 69 

Pipefitters v. United States, 

407 U.S. 385 (1972) ........................................................ 45 

Police Dep’t of Chicago v. Mosley, 

408 U.S. 92 (1972) .......................................................... 35 

Pope v. Williams, 

193 U.S. 621 (1904) ........................................................ 30 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992) ........................................................ 68 
xv 

Red Lion Broad. Co. v. FCC, 

395 U.S. 367 (1969) ........................................................ 62 

Reno v. ACLU, 

521 U.S. 844 (1997) ........................................................ 58 

Republican Party of Minn. v. White, 

536 U.S. 765 (2002) .................................................. 36, 39 

Riley v. National Fed’n of Blind of N.C., Inc., 

487 U.S. 781 (1988) .................................................. 15, 18 

Rosenberger v. Rector & Visitors of Univ. of Va., 

515 U.S. 819 (1995) ........................................................ 67 

Schaumburg v. Citizens for a Better Env’t, 

444 U.S. 620 (1980) ........................................................ 15 

Smith v. Daily Mail Publ’g Co., 

443 U.S. 97 (1979) .......................................................... 62 

Sugarman v. Dougall, 

413 U.S. 634 (1973) ........................................................ 30 

Sweezy v. New Hampshire, 

354 U.S. 234 (1957) ........................................................ 16 

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986) ........................................................ 30 

Thomas v. Collins, 

323 U.S. 516 (1945) ........................................................ 63 

Timmons v. Twin Cities Area New Party, 

520 U.S. 351 (1997) ........................................................ 18 

Tinker v. Des Moines Indep. Community Sch. Dist., 

393 U.S. 503 (1969) ........................................................ 71 

U.S. Term Limits, Inc. v. Thornton, 

514 U.S. 779 (1995) ........................................................ 28 

United States v. Automobile Workers, 

352 U.S. 567 (1957) .................................................. 45, 46 
xvi 

United States v. CIO, 

335 U.S. 106 (1948) .................................................. 45, 46 

United States v. Kokinda, 

497 U.S. 720 (1990) ........................................................ 15 

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

529 U.S. 803 (2000) ........................................................ 39 

United States v. Reese, 

92 U.S. 214 (1875) .......................................................... 29 

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

221 F.3d 376 (2d Cir. 2000)............................................ 44 

Virginia v. Hicks, 

123 S. Ct. 2191 (2003) .................................................... 67 

Watchtower Bible & Tract Society of N.Y., Inc. v. Village 

of Stratton, 

536 U.S. 150 (2002) ........................................................ 63 

CONSTITUTION AND STATUTES 

U.S. Const. art. I, § 4, cl. 1 .................................................. 27 

U.S. Const. amend. I..................................................... passim 

U.S. Const. amend. V ................................................... passim 

U.S. Const. amend. XXVI ................................................... 72 

2 U.S.C. § 441b ................................................................... 47 

2 U.S.C. § 441f .................................................................... 71 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81.................................. i, 2 

§ 101......................................................................... passim 

§ 201......................................................................... passim 

§ 202...................................................................... 7, 10, 65 

§ 203........................................................................ 7, 9, 38 

§ 204.................................................................. 7, 9, 38, 57 
xvii 

§ 212......................................................................... passim 

§ 213......................................................................... passim 

§ 304.................................................................................. 8 

§ 305................................................................ 8, 66, 67, 68 

§ 311........................................................................ 8, 9, 38 

§ 316.................................................................................. 8 

§ 318................................................................ 7, 10, 71, 72 

§ 319.................................................................................. 8 

§ 403.................................................................................. 8 

§ 504......................................................................... passim 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3........................................... 3 

Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, 88 Stat. 1263..................................... 3 

Federal Election Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, 90 Stat. 475....................................... 3 

OTHER AUTHORITIES 

Lillian R. BeVier, 

The Issue of Issue Advocacy: An Economic, Political, 

and Constitutional Analysis, 

85 Va. L. Rev. 1761 (1999)............................................. 44 

144 Cong. Rec. S978 (daily ed. Feb. 25, 1998)................... 62 

147 Cong. Rec. S2611 (daily ed. Mar. 21, 2001) ................ 62 

147 Cong. Rec. S2908 (daily ed. Mar. 26, 2001) ................ 25 

147 Cong. Rec. S3045 (daily ed. Mar. 28, 2001) ................ 53 

147 Cong. Rec. S3116 (daily ed. Mar. 29, 2001) ................ 61 

148 Cong. Rec. S2117-18 (daily ed. Mar. 20, 2002)........... 53 

148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) ................ 53 
xviii 

Coordinated and Independent Expenditures, 

68 Fed. Reg. 421 (Jan. 3, 2003)....................................... 64 

Electioneering Communications, 

67 Fed. Reg. 51,137 (Aug. 7, 2002) ................................ 63 

Electioneering Communications, 

67 Fed. Reg. 65,190 (Oct. 7, 2002) ................................. 61 

FEC Advisory Op. 1978-10................................................... 5 

FEC Advisory Op. 1979-17................................................... 5 

FEC Advisory Op. 1995-25................................................... 5 

Federal Election Commission, 

Twenty Year Report (1995) ............................................. 30 

The Federalist No. 59 (Clinton Rossiter ed. 1961) 

(Alexander Hamilton)...................................................... 28 

Craig B. Holman & Luke P. McLoughlin, 

Buying Time 2000: Television Advertisements in the 

2000 Federal Elections (Brennan Center 2001)....... passim 

H.R. Conf. Rep. No. 94-1507 (1976), 

reprinted in 1976 U.S.C.C.A.N. 946............................... 42 

Jonathan S. Krasno & Daniel E. Seltz, 

Buying Time 1998: Television Advertising in the 1998 

Congressional Elections (Brennan Center 2000)............ 53 

Joseph Story, 

Commentaries on the Constitution of the United States 

(1st ed. 1833)................................................................... 28 

The Supreme Court, 1989 Term, Leading Cases, 

104 Harv. L. Rev. 209 (1990).......................................... 49 
INTRODUCTION 

Far from merely closing loopholes, the Bipartisan Campaign 

Reform Act of 2002 (BCRA) wholly rewrites our Nation’s 

campaign finance laws and works nothing less than a 

fundamental reordering of our political process. While 

BCRA’s details are complex, the principles that it upsets are 

basic. First and foremost is our “profound national 

commitment to the principle that debate on public issues should 

be uninhibited, robust, and wide-open, and that it may well 

include vehement, caustic, and sometimes unpleasantly sharp 

attacks on government and public officials.” New York Times 

Co. v. Sullivan, 376 U.S. 254, 270 (1964). However 

contentious the debate about the outer reaches of the First 

Amendment, there can be no question but that political speech 

and association lies at its core. With its encroachments on the 

activities of actors at all levels of the political process, BCRA 

cannot be justified without abandoning this first principle of 

uninhibited, robust debate. Nor can it be defended under this 

Court’s campaign finance jurisprudence. Even assuming that 

Congress sought to solve a genuine problem by enacting BCRA 

— and the law’s defenders have not identified a single example 

of actual “corruption” motivating its enactment — BCRA 

constitutes a wildly overbroad remedy. 

BCRA also undermines other bedrock constitutional 

principles. It contravenes the core principle that federal law 

governs the conduct of federal elections, and state law the 

conduct of state elections. Prior to BCRA’s enactment, federal 

law solicitously accommodated the competing state interest in 

regulating campaign activities that affect both federal and state 

elections. BCRA, however, imposes a sweeping federal 

regulatory scheme that reaches even activities that solely affect 

state elections. Even the great federalizer, Alexander Hamilton, 

recognized that federal intervention into state election processes 

is so blatantly violative that it “require[s] no comment.” 

Equally disturbing, BCRA regulates different actors in the 
2 

political process, and different types of speech, in disparate 

fashion, without advancing any legitimate justification for 

doing so. It disadvantages political parties in comparison with 

interest groups; television stations in comparison with 

newspapers; and so-called “attack ads” in comparison with 

other ads. These and other forms of differential regulation 

violate the basic principles of equality embodied in the First and 

Fifth Amendments. 

Ultimately, the Constitution demands that this Court err on 

the side of protecting more speech, not less. As the Court noted 

almost two decades ago, “[t]he fact that candidates and elected 

officials may alter or reaffirm their own positions on issues in 

response to political messages * * * can hardly be called 

corruption, for one of the essential features of democracy is the 

presentation to the electorate of varying points of view.” FEC 

v. National Conservative Political Action Comm., 470 U.S. 480, 

498 (1985) (NCPAC). That rule provides a sufficient basis for 

holding the challenged provisions of BCRA unconstitutional. 

OPINIONS BELOW 

The district court’s opinions are reported at 251 F. Supp. 2d 

176 and reprinted in the joint Supplemental Appendix to the 

jurisdictional statements (“Supp. App.”) at 1sa-1382sa. 

JURISDICTION 

The district court entered judgment on May 2, 2003. 

Appellants filed their notice of appeal and jurisdictional 

statement on the same day. This Court noted probable 

jurisdiction in these cases on June 5, 2003. This Court has 

appellate jurisdiction pursuant to section 403(a)(3) of BCRA. 

CONSTITUTIONAL AND STATUTORY PROVISIONS 

The Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. 

L. No. 107-155, 116 Stat. 81, is reprinted in the Appendix to 

appellants’ jurisdictional statement (“J.S. App.”) at 7a-68a. 

Article I, Section 4, of the United States Constitution is 
3 

reprinted at J.S. App. 4a. The First Amendment of the 

Constitution is reprinted at J.S. App. 5a. The Fifth Amendment 

of the Constitution is reprinted at J.S. App. 6a. 

STATEMENT OF THE CASE 

A. Background 

The historical facts preceding the enactment of BCRA are 

largely undisputed, and are set out at great length in the 

opinions below. See Supp. App. 16sa-40sa (Kollar-Kotelly and 

Leon), 168sa-186sa (Henderson). We summarize only the 

essential facts here. 

1. In 1971, Congress enacted the Federal Election 

Campaign Act (FECA), the first comprehensive regulatory 

scheme governing federal election campaigns. See Pub. L. No. 

92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 431-

455). As amended in 1974, see Pub. L. No. 93-443, 88 Stat. 

1263, FECA had three principal components. FECA limited 

the amount of money that could be contributed “for the purpose 

of influencing [federal] elections” — money that would come to 

be known as “hard money.” Individuals could contribute up to 

$1,000 per candidate, and “political committees” (including 

political action committees, or PACs) could contribute up to 

$5,000.1 FECA also limited the amount of money that could be 

spent in federal elections, restricting expenditures by any person 

“relative to a clearly identified candidate” to $1,000. And 

FECA limited “coordinated expenditures”: that is, expenditures 

made on behalf of, and in agreement with, a federal candidate. 

FECA generally treated coordinated expenditures as 

“contributions” subject to the applicable contribution limits. 

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

1

 In 1976, Congress amended FECA to add further limits on the amounts that 

individuals could contribute to political committees and party committees, 

and the amounts that party committees could in turn contribute to candidates. 

See Pub. L. No. 94-283, 90 Stat. 475. BCRA contains provisions raising 

these contribution limits, which appellants are not challenging. 
4

laid out the now-familiar framework for determining the 

constitutionality of campaign finance regulations. The Court 

recognized that both contributions and expenditures on behalf 

of political candidates implicate the First Amendment rights of 

free speech and association. See id. at 19-23. The Buckley 

Court also recognized that the government had a compelling 

interest in “the prevention of corruption and the appearance of 

corruption.” Id. at 25. Although the Court did not explicitly 

define “corruption,” it repeatedly referred to “quid pro quo” 

arrangements in which contributions or expenditures were made 

in exchange for some particular action. Id. at 26, 27, 45. 

The Buckley Court upheld FECA’s contribution limits, 

reasoning that such limits imposed lesser burdens on First 

Amendment rights — and were thus subject to a lower degree 

of scrutiny — than expenditure limits. See id. at 24-38. 

However, the Court struck down FECA’s limits on independent 

expenditures. See id. at 39-59. Critically, before striking down 

the expenditure limits, the Court first narrowed those provisions 

to cover only expenditures for what has come to be known as 

“express advocacy”: that is, advertising that “in express terms 

advocate[s] the election or defeat of a clearly identified 

candidate.” Id. at 44. This narrowing construction excluded 

from FECA’s reach so-called “issue advocacy”: for instance, 

advertising that comments on positions taken by a clearly 

identified candidate, but does not expressly advocate the 

candidate’s election or defeat. Even after narrowing these 

provisions, however, the Court struck them down on the ground 

that independent expenditures did not pose a sufficient threat of 

actual or apparent corruption. See id. at 45. In so doing, the 

Court expressed approval of FECA’s treatment of coordinated 

expenditures as contributions. See id. at 47. The Court 

similarly narrowed a provision of FECA requiring the 

disclosure of certain expenditures, but ultimately upheld that 

provision. See id. at 74-82. 

b. In the nearly three decades since Buckley, the Court has 
5 

remained faithful to Buckley’s dichotomous treatment of 

contributions and expenditures. It has consistently upheld 

federal limits on contributions, see, e.g., FEC v. Beaumont, 123 

S. Ct. 2200 (2003), and coordinated expenditures, see, e.g., 

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

431 (2001) (Colorado II), but struck down federal limits on 

independent expenditures, see, e.g., NCPAC, 470 U.S. at 480. 

3. In the years following Buckley, the federal regulatory 

regime peacefully coexisted with the States’ respective 

campaign finance regimes. Some States, such as Virginia, 

allowed unlimited contributions to, and expenditures by, state 

candidates and party committees; others, such as Vermont, 

imposed even more stringent limits than those imposed by 

federal law. 

Questions quickly arose, however, as to who should regulate 

the financing of activities, such as voter registration, voter 

identification, and get-out-the-vote efforts, which had effects on 

both federal and state elections. In 1978, the FEC declared that 

state and local party committees could use a combination of 

federally regulated funds (so-called “hard money”) and stateregulated funds (so-called “soft money”) to fund those 

activities. See FEC Advisory Op. 1978-10. The FEC 

subsequently allowed national party committees to use a similar 

“allocation” of federally regulated and state-regulated funds. 

See FEC Advisory Op. 1979-17. Over the next two decades, 

the FEC extended the allocation regime to cover other 

activities, including administrative expenses, party-promoting 

(or “generic”) campaign activities, and, perhaps most 

significantly, some so-called “issue advocacy.” See FEC 

Advisory Op. 1995-25. During the 1990s, the raising and 

spending of state-regulated funds by political party committees, 

and the use of so-called “issue advocacy” by various groups, 

expanded significantly. By 2002, the major parties were raising 

a total of almost $500 million per election cycle in stateregulated funds. See Supp. App. 489sa (Kollar-Kotelly). 
6

B. BCRA 

BCRA is composed of a confusing, sometimes internally 

contradictory, patchwork of regulations, the most important of 

which are discussed below. 

1. Title I of BCRA regulates the use of so-called “soft 

money”: that is, funds that had previously been subject only to 

state regulation. Section 101 of BCRA bans national party 

committees from receiving or spending state-regulated funds for 

any purpose — even for activities that solely or primarily affect 

state and local elections. Section 101 also bans national party 

committees from soliciting state-regulated funds for, or 

transferring state-regulated funds to, any other entity, including 

state and local party committees. 

In addition, section 101 bans state and local party committees 

from spending state-regulated funds for what BCRA 

euphemistically calls “federal election activity” — a category 

that includes voter registration, voter identification, get-out-thevote activity, and party-promoting campaign activity whenever 

there is a federal election on the ballot, and advertising that 

refers to a federal candidate and “promotes,” “supports,” 

“attacks,” or “opposes” the candidate. Because most States 

hold their state and local elections at the same time as federal 

elections, the practical effect of this provision is to ban state and 

local party committees from using state-regulated funds for 

covered activities even if those activities solely or primarily 

affect state and local elections. 

Section 101 also severely restricts federal officeholders and 

candidates from raising state-regulated funds, and bans state 

and local candidates from spending state-regulated funds on 

advertising that refers to a federal candidate and “promotes,” 

“supports,” “attacks,” or “opposes” the candidate. 

2. Title II of BCRA is primarily directed toward the 

regulation of “electioneering communications,” a new statutory 

term that embraces certain types of so-called “issue advocacy.” 
7 

Sections 201 and 204 ban all corporations and unions, or 

entities using funds donated by corporations and unions, from 

making disbursements for “electioneering communications.” 

Section 201 requires all persons who spend $10,000 on 

“electioneering communications” to make disclosures to the 

FEC regarding those disbursements. Section 203, in turn, 

defines an “electioneering communication” as any broadcast 

advertising carried within 30 days of a primary or 60 days of a 

general election which “refers to a clearly identified candidate 

for Federal office.” Anticipating that this definition might be 

held unconstitutional, Congress included a “fallback” 

definition, which defines an “electioneering communication” as 

any broadcast advertising carried at any time which “promotes,” 

“supports,” “attacks,” or “opposes” a federal candidate and “is 

suggestive of no plausible meaning other than an exhortation to 

vote for or against a specific candidate.” 

Title II also contains a number of provisions relating to 

disclosure and coordination. Sections 201 and 212 impose 

disclosure requirements on persons who merely enter into a 

contract to make disbursements for electioneering 

communications or other regulated expenditures, even before 

those outlays are actually made. Section 202 treats coordinated 

disbursements for electioneering communications, like 

coordinated expenditures, as contributions to the “supported” 

candidates. Section 214 broadens the definition of “coordination,” repeals the FEC’s existing regulations on coordination, 

and orders the FEC to promulgate regulations in support of the 

new statutory definition of coordination. Finally, section 213 

bans political parties from making both independent and certain 

coordinated expenditures on behalf of a nominated candidate, 

and instead forces them to choose between one and the other. 

3. Title III of BCRA includes various miscellaneous 

provisions. Section 318 bans minors from contributing 

federally regulated money in any amount to a federal candidate, 

and from contributing either federally regulated or state-
8 

regulated money to a political party committee. Section 305 

requires a federal candidate who wishes to take advantage of the 

lowest available rate for broadcast advertising either to certify 

that he or she will not refer to another candidate in any 

advertising, or to include a specified identification or statement 

in the ad. Belying Congress’ claim that the ordinarily 

applicable limits for contributions and coordinated expenditures 

are necessary to combat actual or apparent corruption, sections 

304, 316, and 319 effectively protect incumbents by raising 

those ordinarily applicable limits when candidates face 

opponents using personal funds in their campaigns. And 

section 311 establishes detailed identification requirements for 

the sponsors of express advocacy or electioneering 

communications. 

4. Title V of BCRA contains section 504, which requires 

broadcasters to collect and disclose records of requests to 

purchase broadcast time for communications “relating to any 

political matter of national importance,” even if those 

communications are never actually made. 

C. The District Court’s Decision 

Conceding that BCRA raised “serious constitutional 

concerns,” President Bush nevertheless signed BCRA into law 

on March 27, 2002. Eleven complaints were promptly filed in 

the United States District Court for the District of Columbia, 

challenging various aspects of the law. Pursuant to the judicialreview provisions in section 403 of BCRA, those cases were 

expedited and consolidated before a single three-judge panel 

(Henderson, Circuit Judge, and Kollar-Kotelly and Leon, 

District Judges). More than a year later, in a series of fractured 

opinions, the district court struck down some of the contested 

provisions of BCRA and upheld others. 

1. The district court invalidated most of section 101, 

BCRA’s “soft money” provision. See Supp. App. 397sa-460sa 

(Henderson), 887sa-1008sa (Kollar-Kotelly), 1084sa-1146sa 
9 

(Leon). It struck down almost all of the restrictions on national 

party committees, with Judge Leon, in his controlling opinion 

for the court, rewriting the statute to ban national committees 

from spending state-regulated funds only for advertising that 

refers to a federal candidate and “promotes,” “supports,” 

“attacks,” or “opposes” that candidate. The court also held 

unconstitutional the restrictions on state and local party 

committees, except insofar as the statute bans state and local 

committees from spending state-regulated funds for advertising 

referring to federal candidates. And the court struck down a 

provision banning party committees from soliciting funds for, 

or donating funds to, certain tax-exempt organizations or 

political committees. The court upheld the provisions limiting 

the ability of federal officeholders and candidates to raise stateregulated funds, and banning state and local candidates from 

spending state-regulated funds on advertising referring to 

federal candidates. 

2. The district court also invalidated the core of BCRA’s 

“electioneering communications” provisions, contained in 

sections 201, 203, 204, and 311. See id. at 106sa-128sa, 157sa158sa (Kollar-Kotelly and Leon), 345sa-380sa (Henderson), 

776sa-886sa (Kollar-Kotelly), 1146sa-1169sa (Leon). The 

district court agreed with plaintiffs that the “primary” and 

“fallback” definitions of “electioneering communications” were 

overbroad and vague, respectively. However, Judge Leon, in 

his controlling opinion for the court, again rewrote the statute in 

order to uphold it, severing the language in the “fallback” 

definition requiring regulated advertising to “be suggestive of 

no plausible meaning other than an exhortation to vote for or 

against a specific candidate” and then upholding the “fallback” 

definition as broadened. The court upheld virtually the entirety 

of the disclosure provisions in sections 201 and 311. 

3. The district court also invalidated the provision of 

section 201 requiring advance disclosure of contracts to make 

disbursements for “electioneering communications,” even 
10

before they are made. Over Judge Henderson’s dissent, 

however, the court refused to reach plaintiffs’ challenge to 

section 212, which requires similar advance disclosure of 

contracts to make independent expenditures, on the ground that 

the FEC’s implementing regulations construe section 212 not to 

require such advance disclosure. See id. at 106sa-128sa, 130sa134sa (Kollar-Kotelly and Leon), 380sa-384sa (Henderson). 

Also over Judge Henderson’s dissent, the court rejected 

plaintiffs’ challenges to the coordination provisions in sections 

202 and 214, holding that an agreement is not constitutionally 

required as a predicate for a finding of coordination and that 

some of plaintiffs’ challenges were nonjusticiable on standing 

and ripeness grounds. See id. at 128sa-130sa, 134sa-157sa 

(Kollar-Kotelly and Leon), 384sa-396sa (Henderson). And the 

court held that plaintiffs lacked standing to challenge section 

305, the provision imposing restrictions on federal candidates 

who wish to take advantage of the lowest available rate for 

broadcast advertising. See id. at 8sa (per curiam), 467sa-472sa 

(Henderson), 1008sa (Kollar-Kotelly). 

The district court unanimously invalidated three other 

provisions. The court concluded that section 213, which forces 

political parties to choose whether to make independent or 

certain coordinated expenditures on behalf of a nominated 

candidate, is unconstitutional because it severely burdens 

parties’ First Amendment right to make independent 

expenditures. See id. at 396sa-397sa (Henderson), 886sa 

(Kollar-Kotelly), 1169sa-1176sa (Leon). It invalidated section 

318, which bans minors from making contributions or 

donations of any amount to a federal candidate or political party 

committee. See id. at 460sa-467sa (Henderson), 1009sa-1011sa 

(Kollar-Kotelly), 1176sa-1181sa (Leon). And it struck down 

section 504, the provision requiring broadcasters to collect and 

disclose records of requests to purchase broadcast time, with a 

majority concluding that defendants had failed to identify any 

evidence that the provision served a cognizable governmental 
11 

interest. See id. at 371sa-384sa (Henderson), 1011sa (KollarKotelly), 1181sa-1184sa (Leon). 

SUMMARY OF ARGUMENT 

A. BCRA’s “soft money” provision violates the First 

Amendment, and can be invalidated on that basis alone. The 

provision severely burdens speech and associational rights, and 

should therefore be subject to strict scrutiny. Under any 

applicable level of scrutiny, however, it is invalid. The 

provision cannot implicate the governmental interest in 

preventing actual or apparent quid pro quo corruption, since it 

regulates only donations to and disbursements by political 

parties, rather than federal officeholders or candidates. The 

Court should reject outright the defendants’ effort to defend the 

provision on the theory that it is needed to avoid the mere 

“possibility of the appearance of corruption,” or 

“circumvention” of existing limits. Such unbridled justifications would sweep far beyond Buckley and allow the regulation 

of virtually any activity in the realm of campaign financing. As 

this Court noted almost a decade ago, the use of state-regulated 

funds for activities such as voter registration and get-out-thevote efforts presents only the most attenuated opportunity for 

corruption, and, to the extent that any such opportunity exists, 

Congress could readily have enacted more narrowly tailored 

alternatives, such as a cap on the amount of state-regulated 

funds that could be given to national parties. 

BCRA’s “soft money” provision is unconstitutional for two 

additional reasons. First, the provision trenches on the 

prerogatives of the several States by exceeding Congress’ 

power under the Elections Clause. That clause allows Congress 

to regulate the financing of federal campaigns, but not state 

campaigns. The provision overrides longstanding state 

regulatory mechanisms by limiting the activities of political 

parties, officeholders, and candidates, even if those activities 

affect both federal and state elections, or have no practical 

effect on federal elections at all. Second, the provision curtails 
12 

speech by political parties but not identical speech by other 

entities engaged in the political process, in violation of the 

equality principle embodied in the First and Fifth Amendments. 

It will effect a massive transfer of funds from the political 

parties to narrowly focused interest groups, thereby detracting 

from the crucial role that parties have played in our political 

process. 

B. BCRA’s “electioneering communications” provisions 

also violate the First Amendment. Under this Court’s landmark 

decision in Buckley, the government may regulate independent 

expenditures only for advertising that expressly advocates the 

election or defeat of a clearly identified candidate. To prevail, 

defendants must not only convince this Court to jettison stare 

decisis values and overrule Buckley, but also persuade the Court 

to promulgate a new rule prohibiting corporations and unions 

from engaging in core political speech about issues and 

candidates. Even if this Court were to agree with defendants in 

both respects, BCRA’s “electioneering communications” 

provisions suffer from other constitutional infirmities, including 

overbreadth, vagueness, and underinclusiveness. 

C. Finally, a number of BCRA’s other provisions are 

likewise unconstitutional. BCRA’s “advance notice” 

provisions require disclosures even before expenditures are 

made, absent any cognizable justification for doing so. The 

“coordination” provisions impermissibly broaden the definition 

of coordination, with the result that even mere discussions with 

a candidate or political party are sufficient to render an 

expenditure “coordinated” (and thereby subject to the limits 

applicable to contributions). The “attack ad” provision 

improperly conditions the availability of lower advertising rates 

on a candidate’s agreement either that the candidate will not 

engage in “negative” advertising, or that the candidate will 

include certain content in his or her ad. The “forced choice” 

provision imposes a similarly unconstitutional condition, 

requiring political parties to choose whether to make 
13 

independent or certain coordinated expenditures on behalf of a 

nominated candidate. The “minors” provision bans minors 

from making contributions to candidates or political parties, in 

stark contravention of their undoubted constitutional rights. 

And the “broadcaster records” provision imposes onerous 

recordkeeping and disclosure obligations on broadcasters — 

obligations that are both substantially overbroad and decidedly 

vague. All of these provisions, too, should be invalidated. 

ARGUMENT 

I. THE “SOFT MONEY” PROVISION OF BCRA IS 

UNCONSTITUTIONAL. 

For many decades before BCRA’s enactment, federal law 

governed the financing of federal election campaigns, and state 

law the financing of state campaigns. Where activities had 

effects on both federal and state elections — such as voter 

registration — political party committees were allowed to use a 

combination of federally regulated funds (so-called “hard 

money”) and state-regulated funds (so-called “soft money”) to 

pay for those activities. This dual regime reflected an assiduous 

regard for our federal system. 

BCRA changes all that. For the first time, Congress has 

enacted legislation that dramatically restricts the funding of 

political activity on both the federal and state levels. Section 

101 of BCRA imposes stringent and unprecedented restrictions 

on the raising and spending of state-regulated funds by political 

parties. And it severely burdens the activities of federal and 

state officeholders and candidates. 

As we will now explain, this new provision restricts the 

rights of free speech and association in violation of the First 

Amendment. The district court correctly struck down most of 

section 101 on First Amendment grounds, though it erred by 

upholding the remainder. Equally fundamental, section 101 is 

unconstitutional on two additional grounds that the majority 

below largely did not reach. First, section 101 trenches on the 
14 

prerogatives of the States by exceeding Congress’ power to 

regulate federal elections under Article I, Section 4, of the 

Constitution. Second, section 101 impermissibly discriminates 

against speech by political parties in violation of the First and 

Fifth Amendments. 

A. The “Soft Money” Provision Violates The First 

Amendment Rights Of Free Speech And 

Association. 

In this section, we first demonstrate that section 101 burdens 

significant speech and associational rights, and should therefore 

be subject to strict scrutiny under this Court’s settled 

jurisprudence. We then demonstrate that section 101 is not 

narrowly tailored to meet the government’s compelling interest 

in preventing actual corruption or the appearance of corruption. 

1. Section 101 affects the speech and associational rights of 

donors, political parties, and others in several pivotally 

important ways. 

a. Like the contribution and expenditure limits at issue in 

Buckley, section 101 burdens the speech and associational rights 

of donors, who will no longer be able to give donations 

previously permitted by state law to national party committees, 

and of the parties themselves, which will no longer be able to 

spend state-regulated funds either at all (in the case of national 

party committees) or except for certain limited activities that do 

not qualify as “federal election activity” (in the case of state and 

local party committees). In Buckley, the Court noted (as to 

expenditures) that “[a] restriction on the amount of money a 

person or group can spend on political communication during a 

campaign necessarily reduces the quantity of expression by 

restricting the number of issues discussed, the depth of their 

exploration, and the size of the audience reached.” 424 U.S. at 

19. The Court noted (as to contributions) that contributions, 

like expenditures, have a speech component, though it 

suggested that “the expression rests solely on the 
15 

undifferentiated, symbolic act of contributing.” Id. at 21. And 

the Court noted that limitations on contributions and 

expenditures implicated not just the right of free speech, but the 

right of free association as well. See id. at 22. 

b. Section 101 burdens speech rights in additional ways not 

at issue in Buckley. For instance, it imposes restrictions not just 

on contributions and expenditures, but also on solicitations. 

This Court has repeatedly affirmed that a restriction on 

solicitations is the most direct form of restriction on speech. 

See, e.g., United States v. Kokinda, 497 U.S. 720, 725 (1990); 

Riley v. National Fed’n of Blind of N.C., Inc., 487 U.S. 781, 

788-89 (1988); Schaumburg v. Citizens for a Better Env’t, 444 

U.S. 620, 632 (1980). That is unsurprising, for “solicitation is 

characteristically intertwined with informative and perhaps 

persuasive speech seeking support for particular causes or for 

particular views on economic, political, or social issues,” id., 

and “without solicitation the flow of such information and 

advocacy would likely cease,” id. 

Section 101 aggressively regulates the solicitation of both 

state-regulated and federally regulated funds. It bans national 

committees outright from soliciting state-regulated funds, see 

BCRA § 101(a) (adding new FECA § 323(a)(1)), and from 

soliciting a new category of federally regulated funds known as 

“Levin” funds, which can be used for a narrow subset of 

“federal election activity” known as “Levin” activities, see id. 

(adding new FECA § 323(b)(2)(C)(i)). It bans state and local 

committees from soliciting Levin federally regulated funds on 

behalf of, or jointly with, other state and local committees. See 

id. (adding new FECA § 323(b)(2)(B)(iv)). It bans all party 

committees from soliciting any type of funds for certain taxexempt organizations or political committees. See id. (adding 

new FECA § 323(d)). Finally, it bans federal officeholders and 

candidates from soliciting state-regulated funds in connection 

with any state or local election on behalf of party committees or 

candidates unless those funds comply with the source-and-
16 

amount requirements of federal law, see id. (adding new FECA 

§ 323(e)(1)(B)), and also bans them from soliciting Levin 

federally regulated funds, see id. (adding new FECA 

§ 323(e)(1)(A)).2 All of these restrictions deeply compromise 

the speech rights of the regulated actors. 

c. In addition to speech rights, section 101 burdens 

associational rights in ways not implicated in Buckley. 

Specifically, by pervasively regulating the relationships among 

party committees, and between party committees and others, 

section 101 impermissibly interferes with the associational 

rights of political parties and their members. It is beyond 

question that “[t]he right to associate with the political party of 

one’s choice is an integral part” of the First Amendment 

freedom of association. Kusper v. Pontikes, 414 U.S. 51, 57 

(1973). It is also well established that the right of association 

inheres not only in the members of a political party, but also in 

the party itself. See, e.g., Eu v. San Francisco County 

Democratic Cent. Comm., 489 U.S. 214, 224 (1989); Cousins v. 

Wigoda, 419 U.S. 477, 487 (1975); Sweezy v. New Hampshire, 

354 U.S. 234, 250 (1957). So too, when the government 

attempts to regulate the internal structure of political parties, it 

infringes on the parties’ associational rights. See California 

Democratic Party v. Jones, 530 U.S. 567, 573 (2000); Eu, 479 

U.S. at 229, 230-31. 

i. Section 101 interferes directly with the ability of 

different committees within a single political party to associate 

freely with each other. Most significantly, it bans national 

committees from transferring state-regulated funds to state and 

local committees, see BCRA § 101(a) (adding new FECA 

§ 323(a)(1)); from soliciting Levin federally regulated funds for 

state and local committees, see id. (adding new FECA 

2

 Section 101 also imposes complex restrictions on federal officeholders and 

candidates in connection with the solicitation of state-regulated funds for taxexempt organizations. See BCRA § 101(a) (adding new FECA § 323(e)(4)). 
17 

§ 323(b)(2)(C)(i)); and from providing any funds to state and 

local committees for use in Levin activities, see id. (adding new 

FECA § 323(b)(2)(B)(iv)). It also bans state and local 

committees from soliciting Levin federally regulated funds on 

behalf of, or jointly with, other state and local committees, see 

id., and from transferring Levin funds to those committees, see 

id. (adding new FECA § 323(b)(2)(C)(ii)). As numerous 

witnesses testified below, the net effect of these provisions is to 

strip from political parties much of their traditional power both 

to engage in coordinated fundraising and to allocate funds on 

the national, state, and local levels. See, e.g., Supp. App. 

304sa-306sa (Henderson), 1222sa-1223sa, 1239sa (Leon). The 

provisions will also force political parties to shift their 

fundraising activities from the national committees, which have 

developed comparative expertise in fundraising, see, e.g., id. at 

1219sa, 1221sa-1222sa (Leon), to state and local committees. 

ii. Section 101 also interferes with the ability of party 

committees to associate with others, including their own 

members. It severely restricts federal officeholders and 

candidates from participating in fundraising programs run by 

state and local committees. See BCRA § 101 (adding new 

FECA § 323(e)(1)). It bans party committees from soliciting 

funds for, or donating funds to, certain tax-exempt 

organizations and political committees. See id. (adding new 

FECA § 323(d)). Finally, to the extent that it treats certain 

federal officeholders or state and local party officials as 

“officers or agents” of the national committees, it bans those 

individuals from soliciting state-regulated funds or Levin 

federally regulated funds. See id. (adding new FECA §§ 323(a), 

323(b)(2)(C)(i)). When considered as a whole, these 

associational burdens are both substantial and unprecedented. 

2. Because of its severe burdens on free speech and 

association, section 101 should be subject to strict scrutiny. 

It is well established that “exacting” or strict scrutiny is 

applied to limitations on independent expenditures, see, e.g., 
18 

Colorado II, 533 U.S. at 440-41; limitations on solicitations, 

see, e.g., Riley, 487 U.S. at 795-96; and any other limitations 

that impose a severe burden on associational rights, see, e.g., 

California Democratic Party, 530 U.S. at 582; Timmons v. 

Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Eu, 489 

U.S. at 231. Strict scrutiny therefore unquestionably applies to 

all of the provisions of section 101 that were upheld (as 

modified) by the district court. See BCRA § 101(a) (adding 

new FECA §§ 323(a), 323(b)(1), 323(e), 323(f)); BCRA 

§ 101(b) (adding new FECA § 301(20)(A)(iii)). 

Defendants may well urge, as they did before the district 

court, that a lower degree of scrutiny is appropriate because 

section 101 also contains a limitation on contributions: namely, 

the subsection that bars donations of state-regulated funds to 

national party committees. See BCRA § 101(a) (adding new 

FECA § 323(a)(1)). To be sure, this Court has applied a lower 

level of scrutiny to limitations on contributions. See, e.g., 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88 

(2000). But section 101 is far more than a contributionlimitation provision. Because section 101 was enacted as an 

integrated whole, this Court should treat section 101 

accordingly, and subject its far-reaching requirements to strict 

scrutiny.

3 Even if the Court applies varying standards of review 

to different parts of section 101, however, it should still apply 

strict scrutiny to the subsection barring donations of stateregulated funds to national committees, for two reasons. 

First, unlike the provisions of FECA at issue in Buckley, 

section 101 does not impose any new limits on the amounts of 

contributions to national committees: instead, it merely subjects 

funds used by national committees for a variety of previously 

unregulated purposes to the preexisting source-and-amount 

3 Cf. Nike, Inc. v. Kasky, 123 S. Ct. 2554, 2565 (2003) (Breyer, J., joined by 

O’Connor, J., dissenting) (applying heightened scrutiny to mixture of 

commercial and non-commercial speech). 
19 

limitations of FECA, and requires that national committees 

raise and spend federally regulated, rather than state-regulated, 

funds for those activities. Because section 101 thereby 

effectively regulates the uses for which money is raised and 

spent, rather than imposing any new limits on the amounts of 

contributions or expenditures, Buckley’s dichotomy between 

contributions and expenditures is inapposite, and strict scrutiny 

is warranted. 

Second, this Court has squarely concluded that limitations on 

the amount of contributions to third parties, unlike 

contributions to candidates, are subject to strict scrutiny. See 

Citizens Against Rent Control/Coalition for Fair Housing v. 

City of Berkeley, 454 U.S. 290, 299 (1981). That rule makes 

eminent sense, because a limitation on the amount of 

contributions to third parties effectively limits the amount of 

expenditures by the third parties themselves (and, by extension, 

by the contributors who associate through those third parties). 

See id.; Supp. App. 398sa-409sa (Henderson). To be sure, this 

Court has seemingly applied a lower degree of scrutiny to 

limitations on contributions to third parties where those 

contributions could be used to circumvent limits on 

contributions directly to candidates. See California Med. Ass’n 

v. FEC, 453 U.S. 182, 198 (1981) (plurality opinion); Buckley, 

424 U.S. at 38. Because donations of state-regulated funds 

cannot be used for express advocacy or other activities that 

solely support a candidate for federal office, however, such 

funds are not interchangeable with federally regulated funds 

contributed directly to candidates. The donation limit in section 

101 will effectively limit the amount that national committees 

can spend on a variety of activities that only indirectly and 

partially assist a candidate for federal office, such as voter 

registration, voter identification, and get-out-the-vote efforts. It 

should therefore be subject to strict scrutiny. 

3. Section 101 violates the First Amendment because it 

fails strict, or even intermediate, scrutiny. We begin by 
20 

identifying the governmental interests implicated by section 

101, then consider whether section 101 is sufficiently tailored. 

a. This Court held in Buckley, and has since reaffirmed, that 

“preventing corruption or the appearance of corruption are the 

only legitimate and compelling government interests thus far 

identified for restricting campaign finances.” FEC v. National 

Conservative Political Action Comm., 470 U.S. 480, 496-97 

(1985). “The hallmark of corruption,” in turn, “is the financial 

quid pro quo: dollars for political favors.” Id. at 497; accord 

Buckley, 424 U.S. at 26, 27, 45. 

Section 101 cannot implicate the governmental interest in 

preventing actual or apparent corruption in the classic, quid pro 

quo sense, since a political party (unlike a current or future 

officeholder) cannot respond to a donation by taking some 

legislative action, but instead can act only through its 

officeholders. Unsurprisingly, defendants have failed, despite 

voluminous discovery, to identify a single instance of quid pro 

quo corruption attributable to the donation of state-regulated 

funds. See Supp. App. 325sa-328sa, 409sa-411sa, 425sa 

(Henderson), 1103sa-1111sa (Leon). Consequently, defendants 

contend that the donation of state-regulated funds can be 

corrupting because it allows donors to buy not some particular 

legislative action, but rather “access” to officeholders through 

their political parties. Defendants have suggested that this 

alleged purchasing of “access” gives rise not to actual 

corruption or the appearance of corruption, but rather to the 

“possibility of the appearance of corruption.” Id. at 430sa, 

433sa (Henderson) (emphasis added). 

We recognize that language in some of this Court’s most 

recent campaign finance opinions suggests that the 

government’s interest in preventing corruption sweeps beyond 

preventing classic, quid pro quo corruption, to stemming the 

“broader threat from politicians too compliant with the wishes 

of large contributors,” Shrink Missouri, 528 U.S. at 389, and 

barring “undue influence on an officeholder’s judgment, and the 
21 

appearance of such influence,” Colorado II, 533 U.S. at 441. 

However broad these formulations may be, they do not reach as 

far as defendants’ “access”-based interest. Defendants’ 

“unexamined, anecdotal accounts” aside, Board of Trs. of Univ. 

of Ala. v. Garrett, 531 U.S. 356, 370 (2001), there are no 

legislative findings, and certainly no valid statistical evidence, 

that money secures access to officeholders, see Supp. App. 

328sa-332sa (Henderson), 1081sa (Kollar-Kotelly), 1263sa1264sa (Leon). Even if there were sufficient evidence of such a 

link, however, defendants’ “access”-based interest proves too 

much. Assuming that officeholders naturally provide greater 

access to their supporters, and specifically to their financial 

supporters (whether or not that includes the financial supporters 

of their political parties), than to their opponents, the only 

solution would be to take all money (whether federally 

regulated and state-regulated) out of politics altogether — 

which BCRA does not purport to do. In any event, this Court 

has squarely rejected such a broad equality-based rationale as a 

justification for campaign finance regulation. See, e.g., 

Buckley, 424 U.S. at 48-49. 

In the alternative, BCRA’s defenders have contended that the 

government has an interest in imposing additional limits that, 

while themselves not justified by the anti-corruption rationale, 

are necessary to prevent circumvention of existing limits that 

are justified by the anti-corruption rationale. 

To the extent this Court has invoked such a rationale, it has 

done so only in a limited context: namely, to uphold limits on 

contributions that could be used for the same purposes as direct 

contributions to federal candidates themselves. Thus, in 

Buckley, the Court upheld the $25,000 federal limit on 

aggregate contributions by an individual in a calendar year, on 

the ground that otherwise an individual could circumvent the 

$1,000 limit on contributions to a single candidate simply by 

contributing to that candidate’s political party or sympathetic 

PACs. See 424 U.S. at 38. Similarly, in California Medical, 
22 

the Court upheld the $5,000 federal limit on contributions to 

PACs, on the virtually identical rationale that otherwise an 

individual could circumvent the $1,000 limit on contributions 

to a single candidate and the $25,000 annual limit on aggregate 

contributions. See 453 U.S. at 198 (plurality opinion); id. at 

203 (Blackmun, J., concurring in part and concurring in the 

judgment). In its recent decision in Beaumont, the Court 

suggested that a similar rationale could be used to justify the 

ban on contributions by corporations. See 123 S. Ct. at 2207. 

Finally, in Colorado II, the Court, while frequently referring to 

“circumvention,” upheld limits on coordinated expenditures by 

political parties on the basis of the longstanding rule, dating 

from Buckley, that expenditures coordinated with federal 

candidates are the functional equivalent of contributions to the 

candidates themselves. See 533 U.S. at 442-43. Pivotally, 

however, the Court has never embraced an anti-circumvention 

rationale to justify limitations on donations that are not 

interchangeable with direct contributions to candidates, much 

less limitations on independent expenditures (which, of course, 

are entitled to the fullest First Amendment protection). Indeed, 

the fifth-vote concurrence in California Medical expressly 

disclaimed application of the anti-circumvention rationale to 

independent expenditures. See 453 U.S. at 203 (Blackmun, J., 

concurring in part and concurring in the judgment). 

In reality, defendants’ anti-circumvention rationale is no 

rationale at all. Any currently lawful use of money to affect the 

political process could be characterized as an attempt to 

“circumvent” currently existing prohibitions on other uses. If 

this Court were to uphold BCRA on the basis of the anticircumvention rationale, defendants would likely justify future 

restrictions as necessary to prevent circumvention of BCRA, 

much as they have justified BCRA as necessary to prevent 

circumvention of existing law (and, indeed, have justified 

certain provisions of BCRA as necessary to prevent 

circumvention of other provisions of BCRA). This house of 
23 

cards cannot stand. The Court should reject defendants’ 

perverse attempt to fashion a limitless “prophylactic” rationale 

for suppressing, rather than protecting, core constitutional 

rights. See NAACP v. Button, 371 U.S. 415, 438 (1963). 

b. The remaining question is whether section 101 is 

sufficiently tailored to the government’s interest in preventing 

actual or apparent corruption. It is not. 

i. At the outset, it is questionable whether section 101 is 

tailored to the government’s interest in preventing corruption at 

all. To conclude that it is, the Court would have to indulge two 

critical assumptions. 

First, the Court would have to assume that the donation of 

state-regulated funds to, or the spending of state-regulated funds 

by, a political party is just as corrupting of a candidate as a 

contribution directly to the candidate. To make such an 

assumption would work a major departure from existing law. 

In Colorado Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604 (1996) (Colorado I), this Court held that Congress 

could not constitutionally limit independent expenditures of 

federally regulated funds by political parties. The plurality 

expressly rejected the argument that there are “any special 

dangers of corruption associated with political parties that tip 

the constitutional balance in a different direction.” Id. at 616. 

Indeed, the Court noted that expenditures by political parties 

were designed not only to get the party’s candidates elected, but 

to promote the views of the party’s members. See id. (plurality 

opinion); id. at 629 (Kennedy, J., concurring in part and 

dissenting in part); id. at 646 (Thomas, J., concurring in part 

and dissenting in part). Defendants advance no justification for 

treating the disbursement of state-regulated funds by political 

parties (or the donation of state-regulated funds to political 

parties for use in such disbursements) differently from 

expenditures of federally regulated funds by the same parties for 
24 

purposes of First Amendment analysis.4 

Second, the Court would have to assume that a donation of 

state-regulated funds to be used for activities that do not 

exclusively serve to get a candidate elected, but instead benefit 

candidates up and down the party ticket (such as partypromoting campaign activity), or the spending of state-regulated 

funds for such activities, is just as corrupting of a candidate as a 

contribution to be used for activities that exclusively do so 

(such as express advocacy). Again, this Court’s decisions 

counsel against such an assumption. In Colorado I, the 

plurality expressly recognized that “FECA permits unregulated 

‘soft money’ contributions to a party for certain activities.” 518 

U.S. at 616. Nevertheless, the plurality stated outright that “the 

opportunity for corruption posed by these greater opportunities 

for contributions is, at best, attenuated.” Id. (emphasis added); 

see also id. at 647 (Thomas, J., concurring in part and 

dissenting in part) (noting that “there is little risk that an 

individual donor could use a party as a conduit for bribing 

candidates”). As a matter of common sense, because stateregulated funds by definition can be used only for activities that 

influence state elections (or in combination with federally 

regulated funds, for activities that influence both state and 

federal elections), a candidate will feel less indebted, ceteris 

paribus, to a donor for contributing state-regulated funds, which 

will affect his own election only indirectly and partially (if at 

all), than to another donor who contributes federally regulated 

funds, which can be used directly and entirely to support his 

4

 In upholding limits on coordinated expenditures by political parties, the 

Court did state that political parties “act as agents for spending on behalf of 

those who seek to produce obligated officeholders.” Colorado II, 533 U.S. 

at 452. That makes our point. Since Buckley, the Court has treated 

coordinated expenditures as the functional equivalent of direct contributions 

to a candidate. See id. at 444. And the Court went on in Colorado II to 

emphasize that, in upholding limits on coordinated expenditures by political 

parties, it was treating political parties no differently from individuals or 

PACs, which are similarly limited. See id. at 455. 
25 

election. See, e.g., Supp. App. 1105sa-1106sa (Leon). 

ii. Even if the disbursement or donation of state-regulated 

funds could be corrupting in some circumstances, section 101 is 

substantially overbroad. If Congress were truly concerned with 

actual or apparent corruption, it could readily have enacted a 

more narrowly tailored alternative. 

For instance, to the extent “large” donations of stateregulated funds are seen to be corrupting, see Shrink Missouri, 

528 U.S. at 389, Congress could have imposed a cap on the 

amount of such donations. Indeed, the Hagel Amendment, 

which Congress considered and rejected, would have done just 

that. Specifically, it would have imposed a $60,000 aggregate 

limit on donations of federally regulated funds and stateregulated funds from any one donor to a national party 

committee. See 147 Cong. Rec. S2908 (daily ed. Mar. 26, 

2001) (proposed amendment to S. 27, 107th Cong. (2001)). 

Instead, section 101 bans any donations of state-regulated funds 

to national committees, no matter how small, and further bans 

disbursements of state-regulated funds by national committees 

for any purpose (and by state and local committees for “federal 

election activity”). In addition, section 101 imposes a variety of 

restrictions with no evident connection to any concern about 

large donations, including (but not limited to) the ban on joint 

efforts by state and local committees to raise Levin funds; the 

ban on transfers of Levin funds between state and local 

committees; and the ban on solicitations by party committees 

for, or donations by party committees to, certain tax-exempt 

organizations and political committees. 

Likewise, to the extent particular uses of state-regulated 

funds are seen as corrupting, Congress could have imposed 

narrower limits on the uses to which such funds could be put. 

Specifically, Congress could have limited the use of stateregulated funds only for those activities that arguably have a 

more direct effect on a federal candidate’s election (such as 

advertising that refers to a federal candidate, assuming for the 
26 

moment that such disbursements could constitutionally be 

regulated),

5

 and not for those activities whose effect on a federal 

candidate’s election is concededly more attenuated (such as 

party-promoting campaign activity). Instead, section 101 bans 

all uses of state-regulated funds by national committees, and 

restricts a number of uses of state-regulated funds by state and 

local committees which primarily or only affect state elections. 

And section 101 imposes a variety of restrictions on the transfer 

and solicitation of funds, which cannot be justified by any 

concern about the use of state-regulated funds for certain 

activities. This is overkill in the extreme. Given the 

availability of more narrowly tailored alternatives, section 101 

violates the First Amendment. 

B. The “Soft Money” Provision Constitutes An Invalid 

Exercise Of Congress’ Power To Regulate Elections 

Under Article I, Section 4, Of The Constitution. 

Because the district court struck down most of section 101 on 

First Amendment grounds, it had almost no occasion to reach 

plaintiffs’ Elections Clause arguments, though concerns about 

section 101’s regulation of state and local activities seemed to 

animate the district court’s decision that most of section 101 

was overbroad. See, e.g., Supp. App. 433sa (Henderson) 

(noting that provisions regulating state and local party 

5

 In his controlling opinion, Judge Leon upheld provisions of section 101 

that (1) restrict state and local party committees from making disbursements 

of state-regulated funds for certain advertising that refers to a federal 

candidate, see BCRA § 101(a) (adding new FECA § 323(b)(1)); BCRA 

§ 101(b) (adding new FECA § 301(20)(A)(iii)), and (2) restrict state and 

local candidates from making disbursements of state-regulated funds for such 

advertising, see BCRA § 101(a) (adding new FECA § 323(f)(1)). Judge 

Leon also rewrote section 101 to add a similar restriction for national party 

committees. See Supp. App. 1111sa-1118sa. Whether as written by 

Congress or as rewritten by Judge Leon, however, all of these provisions 

violate the First Amendment for the simple reason that they impermissibly 

regulate expenditures for speech that does not constitute express advocacy. 

See infra Part II. 
27

committees “apply wholesale to state and local party 

expenditures for state-focused election activities that barely 

affect federal elections”), 1101sa (Leon) (concluding that “the 

evidence, legal precedent, and common sense * * * do not 

support Congress’ effort to regulate nonfederal funds used for 

nonfederal and mixed purposes”). Quite apart from First 

Amendment concerns, section 101 should fall in its entirety. 

Section 101 massively intrudes into a core area of state 

sovereignty — the ability of States to regulate their own 

elections. The Elections Clause authorizes Congress to regulate 

the financing of federal, not state, campaigns. 

1. a. The Elections Clause states: “The Times, Places and 

Manner of holding Elections for Senators and Representatives, 

shall be prescribed in each State by the Legislature thereof; but 

the Congress may at any time by Law make or alter such 

Regulations, except as to the Places of chusing Senators.” U.S. 

Const. art. I, § 4, cl. 1. In Buckley, this Court assumed that the 

Elections Clause enabled Congress to regulate the financing of 

federal campaigns. See 424 U.S. at 13. But it added that none 

of the parties was challenging Congress’ power to enact FECA. 

See id. at 13-14. 

Whatever the merits of the Court’s assumption in Buckley 

that the power to regulate the “Manner of holding Elections” 

entails the power to regulate the manner of financing election 

campaigns — which appellants, like the plaintiffs in Buckley, 

do not challenge — the text and history of the Elections Clause, 

and subsequent case law interpreting it, make clear that the 

Constitution does not empower Congress to regulate the 

financing of campaigns for state office. 

b. The Elections Clause arose from a carefully crafted 

compromise between delegates to the Constitutional 

Convention who wanted the States to have plenary power over 

the election of federal officials, and delegates who wanted 

Congress to enjoy that power. See Oregon v. Mitchell, 400 U.S. 

112, 119 n.2 (1970) (opinion of Black, J.); 2 Joseph Story, 
28 

Commentaries on the Constitution of the United States 280-92 

(1st ed. 1833). Under that compromise, States were given the 

power to enact regulations concerning federal elections, but 

Congress was given the power to override those regulations. 

The latter power was designed to counteract the “potential for 

States’ abuse” of the former. U.S. Term Limits, Inc. v. 

Thornton, 514 U.S. 779, 808-09 (1995). Indeed, the Framers 

were concerned that, if States enjoyed unlimited power over the 

election of federal officials, they might refuse to provide for 

their election at all. See, e.g., The Federalist No. 59, at 363 

(Clinton Rossiter ed. 1961) (Alexander Hamilton). 

What is abundantly clear, however, is that the Framers left 

untouched the power of the States to regulate state elections. 

As Hamilton wrote in spirited defense of the Elections Clause: 

Suppose an article had been introduced into the 

Constitution, empowering the United States to regulate 

the elections for the particular States, would any man 

have hesitated to condemn it, both as an unwarrantable 

transposition of power, and as a premeditated engine for 

the destruction of the State governments? The violation 

of principle, in this case, would have required no 

comment; and, to an unbiased observer, it will not be 

less apparent in the project of subjecting the existence 

of the national government, in a similar respect to the 

pleasure of the State governments. An impartial view 

of the matter cannot fail to result in a conviction that 

each, as far as possible, ought to depend on itself for its 

own preservation. 

Id.; see also 2 Story, supra, at 284-85 (paraphrasing Hamilton). 

c. In a series of cases after the Civil War, the Court 

confirmed what is plain from the text and contemporary 

understanding of the Elections Clause: namely, that it does not 

confer upon Congress power to regulate state elections, much 

less to regulate campaign financing in state elections. In Ex 
29 

parte Siebold, 100 U.S. 371 (1879), the Court considered the 

constitutionality of provisions of the Enforcement Act barring 

fraud by, or interference with, election officers in House 

elections. The Court noted that, while States often hold their 

elections at the same time as federal elections, Congress does 

not thereby acquire the power to regulate state elections in such 

cases; rather, Congress merely retains its power to regulate 

federal elections. See id. at 393; Ex parte Yarborough, 110 

U.S. 651, 662 (1884). Indeed, the Court specifically added the 

disclaimer that, if election officers were to take actions that 

“ha[d] exclusive reference to the election of State or county 

officers,” Congress would lack any authority to regulate those 

actions. See Siebold, 100 U.S. at 393. Likewise, in United 

States v. Reese, 92 U.S. 214 (1875), the Court held that the only 

possible source of congressional authority for Enforcement Act 

provisions regulating state elections was the Fifteenth 

Amendment, not the Elections Clause. See id. at 217-18. 

Finally, in Blitz v. United States, 153 U.S. 308 (1894), the Court 

ordered dismissal of an Enforcement Act indictment that failed 

to specify that the defendant impersonated another voter in 

voting for a federal candidate. The Court reasoned that 

“[v]oting, in the name of another, for a state officer, cannot 

possibly affect the integrity of an election for representative in 

congress,” and added that “with frauds of that character the 

national government has no concern.” Id. at 314-15; see also 

Ex parte Clarke, 100 U.S. 399, 404 (1879) (upholding 

punishment of election official for violation “in reference to an 

election of a representative to Congress”). 

More recent cases reaffirm the foundational principle that the 

Elections Clause gives Congress no power over state elections. 

Most notably, in Oregon v. Mitchell, the Court considered the 

scope of the Elections Clause in determining whether Congress 

had the power to give 18-year-olds the right to vote in state, as 

well as federal, elections. In his controlling opinion concluding 

that Congress lacked that power, Justice Black emphasized that 
30 

“the Framers of the Constitution intended the States to keep for 

themselves, as provided in the Tenth Amendment, the power to 

regulate elections.” 400 U.S. at 124-25 (footnote omitted). 

Justice Black added that “[n]o function is more essential to the 

separate and independent existence of the States and their 

governments than the power to determine within the limits of 

the Constitution the qualifications of their own voters for state, 

county, and municipal offices and the nature of their own 

machinery for filling local public offices.” Id. at 125. Finally, 

Justice Black noted that the States’ power to regulate state 

elections is limited only by those constitutional amendments 

that operate directly on the States (such as the Civil War 

Amendments), “each of which has assumed that the States had 

general supervisory power over state elections.” Id. at 125-26. 

In a similar vein, other cases reaffirm the broad power of 

States to regulate their own elections. See, e.g., Tashjian v. 

Republican Party of Conn., 479 U.S. 208, 217 (1986); 

Sugarman v. Dougall, 413 U.S. 634, 647 (1973); Pope v. 

Williams, 193 U.S. 621, 632 (1904). Even those Justices who 

have consistently dissented in the Court’s recent federalism 

cases have agreed that “[a] State’s power to determine how its 

officials are to be elected is a quintessential attribute of 

sovereignty.” California Democratic Party, 530 U.S. at 590 

(Stevens, J., joined by Ginsburg, J., dissenting).

6 

2. Section 101 of BCRA impermissibly infringes on the 

ability of States to regulate state elections in four ways. 

a. Section 101 severely limits the involvement of national 

party committees in state and local elections. Those 

committees are prohibited outright from receiving or spending 

any state-regulated funds — even if they are to be used solely 

6

 Indeed, the FEC itself conceded, at least prior to this litigation, that “[t]he 

Constitution grants each state the right to * * * establish its own rules for 

financing the nonfederal elections held within its borders.” Federal Election 

Commission, Twenty Year Report 19 (1995). 
31 

for state and local elections, and even if no federal elections are 

on the ballot (as in the States that hold “off-year” elections). 

See BCRA § 101(a) (adding new FECA § 323(a)(1)). 

“National” party committees are known as such for good 

reason: their responsibilities extend beyond federal elections to 

state and even local elections as well. National party 

committees have given substantial amounts of state-regulated 

funds to, or spent state-regulated funds on behalf of, state and 

local candidates: for example, in the last two off-year election 

cycles, the RNC gave over $9.5 million to state and local 

candidates, and directly spent over $1 million on such 

candidates’ behalf. See Supp. App. 1101sa n.31, 1214sa 

(Leon). National committees have also spent funds on 

grassroots activities in connection with state and local elections. 

See, e.g., id. at 536sa-537sa (Kollar-Kotelly). And in addition 

to spending money directly on state and local elections, national 

committees have transferred state-regulated funds to state and 

local committees for use in those elections. Those transfers 

have constituted a sizable portion of the budgets of state and 

local committees in recent years. See, e.g., id. at 520sa (KollarKotelly). A substantial amount of that money was used solely 

for the purpose of influencing state and local elections: in the 

last two off-year election cycles, the RNC transferred over $10 

million to state committees for use in those elections. See id. at 

1101sa n.31, 1214sa (Leon). 

Section 101 bans all of those activities, and indeed imposes 

additional restrictions on national committees. Section 101 

prohibits national committees from soliciting state-regulated 

funds (or Levin federally regulated funds) for state and local 

committees. See BCRA § 101(a) (adding new FECA 

§§ 323(a)(1), 323(b)(2)(C)(i)). It bans national committees 

from transferring any funds to state and local committees to use 

for Levin activities, which include many activities that affect 

only state elections. See BCRA § 101(a) (adding new FECA 

§ 323(b)(2)(B)(iv)). And it prohibits national committees, like 
32 

state and local ones, from soliciting funds for, or donating funds 

to, certain tax-exempt organizations and political committees, 

even if those funds are to be used for state and local elections. 

See BCRA § 101(a) (adding new FECA § 323(d)). 

In sum, section 101 leaves national party committees in the 

unique and ironic position of being able to use only federally 

regulated funds for any activity affecting state and local 

elections. It thereby displaces the prior regulatory regime, 

which more adequately accommodated the competing state 

regulatory interest by allowing national committees to use a 

combination of federally regulated and state-regulated funds for 

activities affecting both federal and state elections, and only 

state-regulated funds for activities affecting state elections. 

b. Section 101 has similarly draconian effects on the 

activities of state and local party committees. Those 

committees are banned from spending state-regulated funds for 

“federal election activity.” See BCRA § 101(a) (adding new 

FECA § 323(b)(1)); BCRA § 101(b) (adding new FECA 

§ 301(20)-(24)). State and local committees must now pay for 

these activities solely out of ordinary federally regulated funds 

— or, to the extent that these activities qualify as Levin 

activities, out of a combination of ordinary federally regulated 

funds and Levin federally regulated funds. See BCRA § 101(a) 

(adding new FECA § 323(b)(2)(A)). 

BCRA purports to regulate spending by state and local 

committees only when they engage in what the statute 

deceptively calls “federal election activity.” This is mere 

wordplay. The fact that campaign activity occurs when a 

federal election is on the ballot does not remotely render the 

activity itself “federal.” In most States, state and federal 

elections are held simultaneously. As to those States, many 

activities are defined as “federal election activity” even if they 

have effects on both federal and state elections (such as voter 

registration and voter identification); if they have no practical 

effect on federal elections at all (such as certain get-out-the-vote 
33 

activity or party-promoting campaign activity); or if they are 

directed only toward state and local elections (such as any 

covered activity in a district in which the federal elections on 

the ballot are either actually or practically uncontested).7 

By requiring state and local committees to pay for all of these 

activities exclusively with federally regulated funds,8

 section 

101 effectively overrides the more generous laws of States, such 

as Missouri, that allow donations for such activities from 

corporations and unions (unlike federal law); States, such as 

Pennsylvania, that allow larger donations than federal law, or 

indeed in unlimited amounts; or States, such as Virginia, that 

allow both. See, e.g., Supp. App. 424sa (Henderson). As a 

result, state and local committees will no longer be able to avail 

themselves of millions of dollars raised in full compliance with 

applicable state law. The California Democratic Party, for 

example, has historically received more than three-quarters of 

its donations of state-regulated funds from large donors, see id. 

at 1241sa (Leon) — donations that could not constitute ordinary 

or Levin federally regulated funds, and thus could no longer be 

put toward “federal election activity,” if BCRA is upheld. 

In sum, section 101 requires state and local party committees 

to use only federally regulated funds for many activities 

affecting state and local elections. It thus fails properly to 

accommodate the States’ interest in regulating the involvement 

of state and local committees in their own elections. 

7

 In the 2002 elections in California, for example, there were no elections for 

the Presidency or the Senate, and only one of the 53 elections for the House 

of Representatives was closely contested. See Supp. App. 311sa 

(Henderson), 1228sa, 1229sa (Leon); see generally id. at 1106sa n.34 (Leon) 

(noting “practical reality that congressional races in many states are either 

noncompetitive[] or uncontested”). 

8 Section 101(b) of BCRA (adding new FECA § 301(20)(B)) does allow 

state and local committees to use state-regulated funds for a few narrow 

categories of activities that affect state elections, including paying for 

bumper stickers and yard signs that identify only a state or local candidate. 
34

c. In addition to political parties, section 101 imposes limits 

on the activities of federal officeholders and candidates in 

connection with state and local elections. Those individuals are 

banned from soliciting or directing state-regulated funds in 

connection with any state or local election unless those funds 

satisfy the source-and-amount requirements of federal law. See 

BCRA § 101(a) (adding new FECA § 323(e)(1)(B)). Further, 

they are banned from soliciting or directing Levin federally 

regulated funds for Levin activity, even if it affects state 

elections. See id. (adding new FECA §§ 323(b)(2)(C)(i), 

323(e)(1)(A)). Although federal officeholders and candidates 

may speak at or attend fundraising events for state and local 

committees, see id. (adding new FECA § 323(e)(3)), they are 

otherwise greatly restricted in participating in fundraising 

programs for state and local committees and candidates. 

The effects of this federal intrusion will be severe. State and 

local committees rely heavily on the participation of federal 

officials in their parties’ integrated fundraising programs. See, 

e.g., Supp. App. 1222sa-1223sa (Leon). For instance, federal 

officeholders and candidates will be prohibited from writing or 

calling donors to ask them to make donations otherwise 

permitted by state law to state and local committees and 

candidates, as Senator McConnell has frequently done in the 

past in his capacity as de facto leader of the Kentucky 

Republican Party. See, e.g., J.A. 401-05, 2125-26. The 

involvement of federal officeholders and candidates in state and 

local elections, like that of national party committees, will 

therefore be greatly curtailed.9 

9 Judge Henderson did address appellants’ federalism claim as to the 

restrictions on federal officeholders and candidates, concluding that 

Congress does have the power to regulate the solicitation and transfer of 

non-federal funds “where a federal candidate is the one soliciting.” Supp. 

App. 452sa n.174. The Elections Clause, however, gives Congress only the 

power to regulate federal elections — not plenary power to regulate the 

activities of federal officeholders or candidates even in exclusive connection 

with state and local elections. 
35

d. Finally, section 101 intrudes even into the activities of 

state and local candidates. Those candidates are banned from 

spending state-regulated funds on any advocacy which “refers 

to” a clearly identified candidate for federal office and which 

“promotes,” “supports,” “attacks,” or “opposes” a candidate for 

that office, regardless of how that advocacy is transmitted or 

when it occurs. See BCRA § 101(a) (adding new FECA 

§ 323(f)(1)). For example, if a Democratic candidate for the 

California Legislature were to spend funds lawfully raised 

under state law on a print ad criticizing his opponent for 

supporting tax cuts, and linking his opponent’s support of tax 

cuts to President Bush’s, the state candidate could thereby 

violate BCRA — notwithstanding the fact that such an ad 

would primarily, perhaps exclusively, affect a state election. 

This is tantamount to an outright ban on such advocacy, since 

there is no such thing as “federally regulated funds” for state 

and local candidates. This restriction, like the other restrictions 

in section 101, fails properly to accommodate the competing 

state interest in regulating state and local elections, and should 

therefore be held invalid. 

C. By Discriminating Against Political Parties, The 

“Soft Money” Provision Violates The First And 

Fifth Amendments. 

Section 101 also fails constitutional muster because it limits 

speech by political parties but not identical speech by other 

entities. As this Court has observed, “[i]n the realm of 

protected speech, the legislature is constitutionally disqualified 

from dictating the subjects about which persons may speak and 

the speakers who may address a public issue.” First Nat’l Bank 

of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) (emphasis 

added; citation omitted). This requirement of neutrality among 

speakers is drawn not only from the equal protection component 

of the Fifth Amendment, but from the First Amendment itself. 

See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 

(1972). Discrimination among speakers is a species of 
36 

impermissible underinclusiveness, insofar as the government is 

prohibiting regulable speech by some speakers but not others. 

See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 

780 (2002); City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994); 

Carey v. Brown, 447 U.S. 455, 461-62 (1980). 

Consonant with this fundamental principle, the Court, in its 

two most recent cases involving campaign finance and political 

parties, reaffirmed that nothing relating to the government’s 

interest in preventing corruption justifies subjecting political 

parties to worse treatment than other entities. In Colorado I, in 

concluding that political parties (like other entities) could not be 

restricted in making independent expenditures, the plurality 

expressly rejected the argument that there are “any special 

dangers of corruption associated with political parties that tip 

the constitutional balance in a different direction.” 518 U.S. at 

616. And in Colorado II, in concluding that political parties 

(like other entities) could be restricted in making coordinated 

expenditures, the Court reiterated that there is “no reason to see 

[political party] expenditures as more likely to serve or be seen 

as instruments of corruption than * * * expenditures by anyone 

else.” 533 U.S. at 444. 

It is indisputable that section 101 will place political party 

committees at a severe disadvantage compared to interest 

groups. Whereas national party committees are barred outright 

from raising state-regulated funds — or spending them on 

contributions to state or local candidates, voter registration, 

voter identification, get-out-the-vote efforts, party-promoting 

campaign activity, or even administrative expenses — interest 

groups will be able to continue to raise and spend non-federally 

regulated funds for all of these purposes. Moreover, whereas 

national party committees are barred outright from spending 

state-regulated funds on so-called “issue advocacy” (regardless 

of whether it refers to a federal candidate, or how and when it is 

disseminated), interest groups will continue to be able to raise 

and spend non-federally regulated funds for such advocacy, 
37 

subject to the restrictions contained in the “electioneering 

communications” provisions of BCRA, and unincorporated 

organizations (and qualified non-profit corporations, under the 

so-called “MCFL” exception) will be able to raise and spend 

non-federally regulated funds for such advocacy without 

restriction.10 Similar disabilities will attach to state and local 

committees, which are barred from using state-regulated funds 

for many of the same purposes as national committees. 

In the recently completed 2002 election cycle, the major 

parties collectively raised almost $500 million in state-regulated 

funds. See Supp. App. 489sa (Kollar-Kotelly). Unsurprisingly, 

interest groups have already been gearing up to fill the void and 

secure those funds themselves for use in many of the same 

activities previously funded by the political parties. See, e.g., 

10 In his controlling opinion below, Judge Leon seemingly recognized the 

equal protection problem, and attempted to cure it by rewriting the statute so 

as to impose similar restrictions on party committees under the “soft money” 

provisions as on interest groups under the “electioneering communications” 

provisions. Compare Supp. App. 1084sa-1142sa (rewriting section 101 to 

bar disbursements of state-regulated funds by party committees for a “public 

communication that refers to a clearly identified candidate for Federal office 

* * * and that promotes or supports a candidate for that office, or attacks or 

opposes a candidate for that office”) with id. at 1159sa-1166sa (rewriting 

section 201 to bar disbursements of funds by corporations and unions for 

“any broadcast, cable, or satellite communication which promotes or 

supports a candidate for [federal] office, or attacks or opposes a candidate 

for that office”). Even under Judge Leon’s procrustean version of BCRA, 

however, political party committees would still be at a disadvantage relative 

to unincorporated organizations and qualified non-profit corporations. 

Conversely, if this Court holds the “electioneering communications” 

provisions of BCRA entirely unconstitutional, thereby allowing all interest 

groups to engage in such communications without restriction, the inequities 

between party committees and interest groups in their use of non-federally 

regulated funds will only grow. Indeed, if this Court strikes down the 

“electioneering communications” provisions, it should strike down the “soft 

money” provision as well, since Congress would likely not have enacted the 

latter provision in the former provisions’ absence. See, e.g., Alaska Airlines, 

Inc. v. Brock, 480 U.S. 678, 685 (1987). 
38 

id. at 415sa-416sa (Henderson). Indeed, interest groups have 

freely acknowledged that they expect their donations to increase 

as a result of section 101. See, e.g., id. at 324sa (Henderson). 

By effectively diverting funds from the political parties to 

interest groups, section 101 will empower narrowly focused 

interest groups at the expense of the political parties, and 

thereby detract from the central and unifying role that parties 

have played in our political process from the earliest days of the 

Republic. “The preservation and health of our political 

institutions, state and federal, depends to no small extent on the 

continued vitality of our two-party system, which permits both 

stability and measured change.” Davis v. Bandemer, 478 U.S. 

109, 145 (1986) (O’Connor, J., concurring); see also Colorado 

I, 518 U.S. at 618 (plurality opinion) (noting “important and 

legitimate role” political parties have played in American 

political process). By impermissibly disadvantaging political 

parties, section 101 violates fundamental principles of free 

speech and equal protection. 

II. THE “ELECTIONEERING COMMUNICATIONS” 

PROVISIONS OF BCRA ARE UNCONSTITUTIONAL. 

Sections 201, 203, 204, and 311 of BCRA impose draconian 

restrictions on the most vital speech in our representative 

democracy: speech about public issues and public officials. In a 

nation that so highly values and so passionately protects 

political discourse, it is difficult to conceive of a more 

constitutionally threatening sort of legislative intrusion than one 

that so stifles debate at the very core of the First Amendment. 

The district court correctly struck down the core of these 

provisions, letting stand a truncated and plainly unconstitutional 

scrap of an already unconstitutional congressional offering. 

This Court should finish the job and strike the “electioneering 

communications” provisions in their entirety. 
39

A. Under Buckley and MCFL, The Government May 

Regulate Only Speech That Constitutes “Express 

Advocacy.” 

1. We begin with first principles. Speech about politics, 

issues, and elections is entitled to the most solicitous protection 

of the First Amendment. Just last year, this Court observed: 

[T]he notion that the special context of electioneering 

justifies an abridgment of the right to speak out on 

disputed issues sets our First Amendment jurisprudence 

on its head. [D]ebate on the qualifications of candidates 

is at the core of our electoral process and of the First 

Amendment freedoms, not at the edges. 

White, 536 U.S. at 781 (internal quotation omitted). But 

abridging the right to speak out on issues and candidates is 

precisely what BCRA’s “electioneering communications” 

provisions do, and that is precisely why they cannot withstand 

scrutiny under the First Amendment. 

2. There can be no doubt that BCRA’s “electioneering 

communications” provisions are subject to strict scrutiny. 

Defendants have conceded this, and the Court’s precedents 

leave no room for debate on the subject. See, e.g., id.; 

Colorado II, 533 U.S. at 440. It is also indisputable that the 

“electioneering communications” provisions seek to prohibit 

core political speech on the basis of its content. As such, they 

come to the Court bearing a presumption of unconstitutionality. 

See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 

818 (2000) (“It is rare that a regulation restricting speech 

because of its content will ever be permissible. Indeed, were 

we to give the Government the benefit of the doubt when it 

attempted to restrict speech, we would risk leaving regulations 

in place that sought to shape our unique personalities or to 

silence dissenting ideas. When First Amendment compliance is 

the point to be proved, the risk of nonpersuasion — operative in 

all trials — must rest with the Government, not with the 
40

citizen.”). 

3. The Court’s prior decisions in Buckley and FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238 (1986) (MCFL), 

make clear that the government may constitutionally regulate 

only independent expenditures for speech expressly advocating 

the election or defeat of a candidate, known as “express 

advocacy.” The rule that a statute regulating expenditures for 

speech beyond express advocacy is unconstitutionally 

overbroad is well-established, and defendants’ attempts to 

recharacterize the cases supporting that rule are unpersuasive. 

a. In Buckley, the Court considered a provision of FECA 

that imposed a $1,000 limit on expenditures by any person 

“relative to a clearly identified candidate,” and an attendant 

provision requiring disclosures of certain expenditures made 

“for the purpose of * * * influencing” federal elections. In both 

instances, the Court narrowed the provisions at issue to reach 

only expenditures made for “communications that in express 

terms advocate the election or defeat of a clearly identified 

candidate for federal office”: that is, “communications 

containing express words of advocacy of election or defeat, 

such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ 

‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” 

Buckley, 424 U.S. at 44 & n.52, 80. The Court explained that it 

was narrowing these provisions both to cure vagueness in the 

statutory language and to eliminate constitutional overbreadth. 

See, e.g., id. at 80 (giving “expenditure” in disclosure provision 

same construction as “expenditure” in spending-limit provision, 

and construing it to reach only expenditures for express 

advocacy “[t]o insure that the reach of [the disclosure 

provision] is not impermissibly broad”). 

Notably, the Buckley Court drew the constitutional line at 

express advocacy even though it explicitly recognized the very 

“problem” that BCRA purports to address — namely, that it 

would sometimes be difficult to distinguish between speech 

advocating the election or defeat of candidates and other speech 
41 

about issues and candidates: 

[T]he distinction between discussion of issues and 

candidates and advocacy of election or defeat of 

candidates may often dissolve in practical application. 

Candidates, especially incumbents, are intimately tied to 

public issues involving legislative proposals and 

governmental actions. Not only do candidates 

campaign on the basis of their positions on various 

public issues, but campaigns themselves generate issues 

of public interest. 

Id. at 42 (emphasis added). The Court added that “[i]t would 

naively underestimate the ingenuity and resourcefulness of 

persons and groups desiring to buy influence to believe that 

they would have much difficulty devising expenditures that 

skirted the restriction on express advocacy of election or defeat 

but nevertheless benefited the candidate’s campaign.” Id. at 45. 

The Court nonetheless concluded that, “[s]o long as persons and 

groups eschew expenditures that in express terms advocate the 

election or defeat of a clearly identified candidate, they are free 

to spend as much as they want to promote the candidate and his 

views.” Id. The Court therefore recognized that, while the 

difficulty in drawing a clear line between express advocacy and 

other speech about issues and candidates was real, the danger of 

restricting core political speech by adopting a more expansive 

definition was more perilous.11 

b. In MCFL, this Court considered a provision of FECA 

banning expenditures by corporations “in connection with” 

federal elections — the same provision that BCRA now amends 

to prohibit disbursements for “electioneering communications.” 

11 The Court ultimately struck down the FECA provision limiting 

expenditures on the ground that, even as narrowed, it failed to serve the 

governmental interest in preventing actual or apparent corruption, see 

Buckley, 424 U.S. at 47-48, 51, but upheld the provision requiring 

disclosures of expenditures, see id. at 81-82. 
42 

As with the provisions at issue in Buckley, the Court narrowed 

this provision to cover only expenditures for express advocacy. 

See 479 U.S. at 248-49. Critically, the Court did not narrow the 

provision on the ground that it was necessary to cure vagueness 

in the statutory language, but instead relied solely on the 

doctrine of constitutional overbreadth. See id. at 248. The 

Court reasoned that “Buckley adopted the ‘express advocacy’ 

requirement to distinguish discussion of issues and candidates 

from more pointed exhortations to vote for particular persons.” 

Id. at 249 (emphasis added). The Court therefore accepted the 

corporation’s argument that “the definition of an expenditure 

* * * necessarily incorporates the requirement that a 

communication ‘expressly advocate’ the election of 

candidates,” id. at 248, though it proceeded to reject the further 

argument that the particular communication at issue did not 

constitute express advocacy, see id. at 249-50. The Court 

ultimately held that independent expenditures by qualified nonprofit corporations (or so-called “MCFL” corporations), like 

independent expenditures by individuals, political parties, and 

political action committees, could not constitutionally be 

regulated. See id. at 263-65. 

c. Congress also understood that Buckley’s expressadvocacy test was constitutionally compelled. In revising 

FECA in the immediate aftermath of the Court’s decision in 

Buckley, Congress amended the expenditure-disclosure 

provision at issue in Buckley to reach only express advocacy. In 

doing so, the Conference Committee Report observed that the 

amendment was necessary “to conform the independent 

expenditure reporting requirement * * * to the requirements of 

the Constitution set forth in Buckley v. Valeo with respect to the 

express advocacy of election or defeat of clearly identified 

candidates.” H.R. Conf. Rep. No. 94-1507, at 40 (1976), 

reprinted in 1976 U.S.C.C.A.N. 946, 955 (emphasis added). 

d. In the nearly three decades since this Court’s decision in 

Buckley, courts and commentators alike have consistently 
43

concluded that Buckley, and then MCFL, drew a 

constitutionally mandated line between speech that expressly 

advocates the election or defeat of a candidate and speech that 

does not. In a number of post-Buckley opinions rejecting the 

FEC’s persistent efforts to expand the definition of express 

advocacy articulated by this Court, and therefore to do by 

regulation what BCRA now attempts to do by statute, the lower 

courts have consistently concluded that only express advocacy 

can constitutionally be regulated. See, e.g., Clifton v. FEC, 114 

F.3d 1309, 1312 (1st Cir. 1997) (noting that, “[i]n [MCFL], the 

Supreme Court not only narrowed section 441b by construction 

but also recognized a First Amendment right to issue 

advocacy”); FEC v. Christian Action Network, Inc., 110 F.3d 

1049, 1064 (4th Cir. 1997) (observing that this Court has held 

that “express words of advocacy * * * are the constitutional 

minima”) (internal quotation omitted); Faucher v. FEC, 928 

F.2d 468, 472 (1st Cir. 1991) (concluding that Buckley and 

MCFL ensured “the right to engage in issue-oriented political 

speech” by “limiting the scope of the FECA to express 

advocacy”).12 Even the Ninth Circuit, the sole court of appeals 

to sanction the FEC’s efforts to broaden the express-advocacy 

standard, has agreed that the line between regulable express 

advocacy and non-regulable political speech is a 

constitutionally mandated one. See California Pro-Life 

Council, Inc. v. Getman, 328 F.3d 1088, 1097 (9th Cir. 2003), 

FEC v. Furgatch, 807 F.2d 857, 860 (9th Cir. 1987). 

Similarly, the lower courts have invalidated a variety of state 

campaign finance laws, some containing starkly unambiguous 

statutory language, on the ground that they may not 

constitutionally restrict speech beyond express advocacy. See, 

e.g., Chamber of Commerce v. Moore, 288 F.3d 187, 193 (5th 

Cir.) (agreeing with other circuits that, “under Buckley and 

12 Lower-court cases supporting the proposition that the express-advocacy 

line is constitutionally compelled are too numerous to list here. See Supp. 

App. 354sa n.145 (Henderson) (listing a selection of cases). 
44

MCFL, the government may regulate only those 

communications containing explicit words advocating the 

election or defeat of a particular candidate”), cert. denied, 123 

S. Ct. 536 (2002); Citizens for Responsible Gov’t State Political 

Action Comm. v. Davidson, 236 F.3d 1174, 1187 (10th Cir. 

2000) (asserting that, in MCFL, “the Court clarified that express 

words of advocacy were not simply a helpful way to identify 

‘express advocacy,’ but that the inclusion of such words was 

constitutionally required”); Vermont Right to Life Comm., Inc. 

v. Sorrell, 221 F.3d 376, 387 (2d Cir. 2000) (noting that state 

statute that explicitly extended disclosure requirement to 

expenditures for speech other than express advocacy is “a 

violation of the rule enunciated in Buckley and its progeny”). 

These repeated conclusions of lower courts cannot be wished 

away as mere “dicta,” as Judge Kollar-Kotelly attempted to do, 

see, e.g., Supp. App. 794sa, 797sa, 798sa, 799sa, but instead 

reflect the settled understanding, as one commentator has put it, 

that “the Buckley bottom line” is that “[e]xpenditures for speech 

that does not expressly advocate the election or defeat of a 

candidate — i.e., expenditures for issue advocacy — may 

neither be limited in amount nor subjected to disclosure 

requirements,” Lillian R. BeVier, The Issue of Issue Advocacy: 

An Economic, Political, and Constitutional Analysis, 85 Va. L. 

Rev. 1761, 1769 (1999). 

In and of itself, the Buckley “bottom line” dooms BCRA’s 

“electioneering communications” provisions. The primary 

definition of “electioneering communications” in section 201, 

which covers advertising that merely “refers” to a clearly 

identified candidate for federal office, sweeps well beyond 

express advocacy, as it fails to require that the advertising 

contain “express words of advocacy of election or defeat.” 

Buckley, 424 U.S. at 44 & n.52. The statute’s fallback 

provision fares no better. That provision encompasses any 

communication that “promotes or supports a candidate for that 

office, or attacks or opposes a candidate for that office 
45 

(regardless of whether the communication expressly advocates 

a vote for or against a candidate) and which also is suggestive 

of no plausible meaning other than an exhortation to vote for or 

against a specific candidate” (emphasis added). By its very 

terms, the fallback provision is at odds with Buckley and 

MCFL, thus requiring that it be stricken as well.13 

B. The Holdings In Buckley And MCFL Apply Equally 

To Corporations And Unions. 

In addition to contending that Buckley and MCFL did not 

draw a constitutional distinction between express advocacy and 

all other speech about issues and candidates, defendants have 

urged in the alternative that such a distinction does not apply to 

corporations and unions. The argument is unavailing. 

1. Contrary to the government’s suggestion, see Fed. Defts. 

J.S. 4 n.2, the past century of American history is not replete 

with examples of Congress passing constitutionally sound 

restrictions on the election-related speech of corporations and 

unions. To the contrary, the federal campaign finance laws did 

not even purport to reach expenditures until 1947, with the 

enactment of the Taft-Hartley amendments to the Federal 

Corrupt Practices Act. See United States v. CIO, 335 U.S. 106, 

107 (1948). This Court did not address the constitutionality of 

federal expenditure limitations until its decision in Buckley 

almost three decades later. In three decisions prior to Buckley, 

the Court expressly declined to reach questions regarding the 

constitutionality of Taft-Hartley’s expenditure restrictions. See 

Pipefitters v. United States, 407 U.S. 385, 400 (1972) (finding 

“decision of the constitutional issues premature” in light of 

dismissal of petitioners’ convictions); United States v. 

Automobile Workers, 352 U.S. 567, 591-92 (1957) (refusing to 

“anticipate constitutional questions” because of decision to 

remand case for prosecution); CIO, 335 U.S. at 110, 124 

13 The same is true for the modified fallback definition that the district court 

upheld as constitutional. See Supp. App. 1159sa-1166sa (Leon). 
46 

(dismissing indictment as beyond scope of statute and therefore 

“express[ing] no opinion * * * upon [statute’s] constitutionality”).

14 When the Court finally did consider the constitutionality 

of congressional expenditure restrictions, it struck them down 

on First Amendment grounds. See Buckley, 424 U.S. at 43-50.15 

In fact, every time this Court has addressed the constitutionality 

of a federal restriction on independent expenditures, it has 

either struck the challenged provision down, see NCPAC, 470 

U.S. at 490-501; Buckley, 424 U.S. at 43-50, or significantly 

limited its scope through a narrowing construction, see MCFL, 

479 U.S. at 248-49, 256-65. History therefore offers little 

support for BCRA’s ban on “electioneering communications.” 

2. In Buckley and MCFL themselves, the Court insisted that 

only expenditures for express advocacy could be subject to 

regulation, without treating expenditures by corporations and 

unions differently. In Buckley, the expenditure provision at 

issue applied to individuals, groups, and corporations alike. See 

424 U.S. at 23, 40 n.45 (quoting the statutory definition of 

14 Aside from avoiding the constitutional questions raised by the federal 

restriction on campaign expenditures, these cases also revealed, through an 

exhaustive recitation of the legislative history, that the members of Congress 

who passed Taft-Hartley were not sure whether its expenditure limitation 

applied in a variety of circumstances, and had concerns about whether the 

Constitution would permit particular hypothetical applications of the law — 

such as to the corporate or union funding of radio broadcasts during a 

campaign that mentioned federal candidates. See, e.g., Automobile Workers, 

352 U.S. at 586-87 & n.1; CIO, 335 U.S. at 112. The historical ambiguity as 

to the scope of pre-FECA federal expenditure restrictions, considered 

together with the express-advocacy limitation articulated in Buckley and 

MCFL, makes plain that the Court has never endorsed the type of regulations 

contemplated by BCRA’s ban on “electioneering communications.” 

15 It is noteworthy that, in striking down FECA’s expenditure restrictions, the 

Buckley Court cited the dissent of Justice Douglas in Automobile Workers, in 

which Justice Douglas excoriated the majority for failing to strike down the 

Taft-Hartley expenditure restrictions on First Amendment grounds. See 

Buckley, 424 U.S. at 43 (citing Automobile Workers, 352 U.S. at 595-96 

(Douglas, J., dissenting)). 
47

“persons”). Indeed, two of the plaintiffs in Buckley were 

corporations, including the New York Civil Liberties Union. 

See id. at 8. The Court struck down the provision in its entirety, 

drawing no distinction between the individual and corporate 

plaintiffs. 

In MCFL, the Court drew the same constitutional line in the 

specific context of speech by a corporation. See 479 U.S. at 

241. The Court construed 2 U.S.C. § 441b, the provision of 

FECA banning all expenditures by corporations and unions “in 

connection with” federal elections, to reach only express 

advocacy. See 479 U.S. at 247-49. The Court did not limit its 

statutory construction to expenditures by qualified non-profit 

corporations, but instead held categorically, with respect to all 

corporations, that “an expenditure must constitute ‘express 

advocacy’ in order to be subject to the prohibition of § 441b.” 

Id. at 249. In fact, it was only after the Court proffered its 

narrowing construction of section 441b, and concluded that the 

speech at issue was express advocacy, that the Court even drew 

a distinction between qualified non-profit corporations and 

other corporations, in resolving the ultimate issue of whether 

expenditures for express advocacy by the defendant non-profit 

corporation could be regulated. See id. at 256-65. 

3. Just two years after Buckley, the Court made clear yet 

again that corporations may not be restricted from making 

expenditures for political advocacy. In Bellotti, the Court held 

unconstitutional a Massachusetts statute that banned corporate 

expenditures in connection with referenda unless they 

“materially affect[ed] any of the property, business or assets of 

the corporation.” 435 U.S. at 767-68. Such speech, the Court 

concluded, was “at the heart of the First Amendment’s 

protection” and “indispensable to decision making in a 

democracy,” adding that “this is no less true because the speech 

comes from a corporation rather than an individual.” Id. at 776-

77; see also Pacific Gas & Elec. Co. v. Public Utils. Comm’n, 

475 U.S. 1, 8 (1986) (noting that “[t]he identity of the speaker 
48 

is not decisive in determining whether speech is protected” and 

adding that “[c]orporations and other associations, like 

individuals, contribute to the discussion, debate, and the 

dissemination of information and ideas that the First 

Amendment seeks to foster”) (internal quotation omitted). 

Similarly, in the recent case of Nike, Inc. v. Kasky, 123 S. Ct. 

2554 (2003), while there was disagreement as to whether the 

petition for writ of certiorari should have been dismissed as 

improvidently granted, there was no suggestion that noncommercial corporate speech relating to matters of public 

interest was without substantial First Amendment protection. 

See id. at 2559 (Stevens, J., joined by Ginsburg and Souter, JJ., 

concurring) (“Knowledgeable persons should be free to 

participate in * * * debate [about important public issues] 

without fear of unfair reprisal.”); id. at 2565 (Breyer, J., joined 

by O’Connor, J., dissenting) (“[S]peech on matters of public 

concern needs ‘breathing space’ * * * in order to survive.”). 

4. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 

(1990), is not, as the government suggests, see Fed. Defts. J.S. 

24, to the contrary. In Austin, the Court held that a State could 

constitutionally restrict corporate independent expenditures for 

express advocacy. Nothing in Austin, however, even remotely 

hints that the Court intended to overrule Buckley, MCFL, and 

Bellotti so as to allow the government to regulate expenditures 

by corporations and unions for speech other than express 

advocacy. Austin itself involved a state statute modeled on the 

federal provision at issue in MCFL, see id. at 656 n.1, and an ad 

that urged voters, in large bold type, to “Elect Richard 

Bandstra” — an ad that plainly constituted express advocacy, 

see id. at 656; id. at 714 (appendix to opinion of Kennedy, J., 

dissenting). Austin held only that Michigan could regulate the 

Michigan Chamber of Commerce’s expenditure for the express 

advocacy at issue, since the Chamber was not a qualified nonprofit corporation under MCFL. See id. at 668-69. As Judge 

Henderson observed, “the Court’s holding in Austin was limited 
49 

to corporate expenditures on express advocacy.” Supp. App. 

356sa; see also The Supreme Court, 1989 Term, Leading Cases, 

104 Harv. L. Rev. 209, 217 (1990) (“[T]he [Austin] Court 

preserved for corporations the right to speak on any issue so 

long as they do not expressly advocate the election or defeat of 

specific candidates.”). 

5. In a related vein, defendants have urged that corporations 

and unions may be required to engage in “electioneering 

communications” through PACs (or “segregated funds”), as 

BCRA permits. See Fed. Defts. J.S. 23-24; Intervenor Defts. 

J.S. 24-25. Leaving aside the fact that many corporations and 

unions may have no desire to establish PACs — a point vividly 

illustrated in the brief of the American Civil Liberties Union, 

see ACLU Br. 17 — requiring a corporation to speak 

exclusively through a PAC substantially burdens its right to 

speak, see, e.g., MCFL, 479 U.S. at 252-56; id. at 266 

(O’Connor, J., concurring). It is simply no answer to say that 

these entities can “speak” by having a PAC speak for them. 

PACs provide neither a constitutionally sufficient nor 

practically workable alternative to speech by plaintiffs 

themselves. If the speech at issue is fully protected by the First 

Amendment — and it is nothing less — plaintiffs are permitted 

to utter it in their own name, and to pay for it with their own 

funds, without fear of governmental interference. 

C. Even If This Court Were To Abandon Buckley And 

MCFL, The “Electioneering Communications” 

Provisions Could Not Survive Scrutiny. 

Given the determinations in Buckley and MCFL, the 

“electioneering communications” provisions can be sustained 

only if the Court were to overrule those cases. The Court 

should decline to do so. The express-advocacy standard is both 

narrow and unambiguous, and is narrowly tailored to advance 

the compelling governmental interest in preventing actual or 

apparent corruption. In contrast, BCRA’s primary definition of 

“electioneering communications” is vastly overbroad. But even 
50 

if this Court were to abandon Buckley and MCFL in favor of 

defendants’ proffered standard, the “electioneering communications” provisions are so overbroad that they cannot be sustained 

under any theory consistent with the First Amendment. 

1. Defendants’ theory is that only speech that is “genuinely” 

about “issues” is constitutionally protected, while all other 

speech is subject to government regulation. This is, of course, 

precisely the opposite of what this Court concluded in Buckley 

and reaffirmed in MCFL: that only speech expressly advocating 

the election or defeat of a candidate is regulable, while all other 

speech about issues and candidates is not. Defendants’ theory 

then proceeds to the dubious proposition that “most” speech 

that is “genuinely” about “issues” is not broadcast in close 

proximity to elections. Therefore, the syllogism marches on, by 

banning any reference to a federal candidate in any 

communication aired within 30 days of a primary or 60 days of 

a general election, BCRA will eliminate disfavored speech 

about issues and candidates — pejoratively referred to by 

defendants as “sham” issue ads — but not most “genuine” 

speech about issues. Defendants’ theory is both legally and 

factually indefensible. 

A review of actual advertisements aired in the 30- and 60-day 

periods before the 1998 and 2000 primary and general elections 

powerfully illustrates the sort of protected speech that would be 

criminalized by BCRA’s regulation of “electioneering 

communications.”16 As would be expected (and as Buckley 

predicted, see 424 U.S. at 42), a vast majority of the ads 

covered by BCRA refer to incumbent officeholders who are 

running for re-election. One such ad, broadcast within 60 days 

of the 1998 general election in the district of Oregon 

Congressman David Wu, urged him as follows: 

16 The ads discussed in this section are included in an appendix to this brief 

(“Br. App.”), as are eight other ads discussed below. Also included with the 

brief is a CD-ROM containing 10 ads that were submitted to the district 

court and discussed at length in the briefs and at oral argument. 
51

The people of America should be running our 

government. That’s the way it was set up in the first 

place. The problem is the special interests and the paid 

lobbyists who control the Washington politicians. The 

answer is term limits. Term limits replace Washington 

insiders with new people who reflect community 

interests, not politics as usual. Molly Bordonaro has 

signed the pledge to limit her terms in Congress. David 

Wu refused. Call David Wu and tell him to sign the US 

Term Limits Pledge. 

Br. App. 1a. The ad thus informed the viewers that 

Congressman Wu had failed to sign a term-limits pledge, and 

attempted to pressure him to do so. Though it may seem 

unthinkable that such core political speech could be the subject 

of criminal sanctions, Americans for Term Limits (the group 

that sponsored the ad) would be subject to such sanctions for 

airing the same ad today. 

Another good example of what is lost under BCRA is an 

AFL-CIO ad opposing permanent most-favored-nation status 

for China. This ad, which ran, inter alia, in the district of 

Representative Ron Paul (a plaintiff in this case) within 30 days 

of his primary election, stated in its entirety: 

Behind this label is a shameful story of political 

prisoners and forced labor camps, of wages as low as 13 

cents an hour, of a country that routinely violates trade 

rules flooding our markets, draining American jobs. 

Now Congress is set to scrap its annual review of 

China’s record and reward China with a permanent 

trade deal. Tell Congressman Paul to vote “No” and 

keep China on probation until this label stands for 

fairness. Paid for by the AFL-CIO. 
52

Br. App. 2a.17 The AFL-CIO could be indicted in 2004 for 

running a similar ad. 

Finally, the federal defendants have identified the following 

ad, aired in Michigan within 60 days of the 2000 general 

election, as an example of a so-called “sham” issue ad: 

WOMAN: My mom started this business and my 

brother and I worked hard to make it grow. One day we 

hope to own it but because of the law, we can never be 

sure. 

ANNOUNCER: Because of the death tax, people like 

Melanie are always at risk of losing family businesses. 

Debbie Stabenow voted twice against getting rid of the 

death tax. 

WOMAN: Everything we have worked for can be taken 

away in an instant and that’s not fair. 

ANNOUNCER: Call Debbie Stabenow. Tell her our 

working families need a break. Paid for by the 

Michigan Chamber of Commerce. 

Br. App. 3a. Remarkably, far from acknowledging that this ad 

is speech fully protected by the First Amendment, defendants 

have viewed it as a perfect example of speech that should be 

criminalized. 

These ads — sometimes using pointed, critical, and 

antagonistic speech — all sought to lobby and pressure federal 

officeholders on issues of unquestioned importance to the 

groups that sponsor them. They are fully protected by Buckley, 

to say nothing of the core principle of New York Times Co. v. 

Sullivan that “uninhibited, robust, and wide-open speech” is 

protected by the First Amendment. 376 U.S. at 270. 

17 The storyboard included in the appendix refers to Congresswoman Sue 

Myrick. The ad referring to Congressman Paul was materially identical. See 

J.A. 563. 
53

2. To counter these and the many other examples of 

BCRA’s overbreadth, defendants relied almost exclusively on 

two reports by the Brennan Center for Justice, counsel to the 

intervenor defendants in this case, entitled Buying Time 1998: 

Television Advertising in the 1998 Congressional Elections 

(Jonathan S. Krasno & Daniel E. Seltz, Brennan Center 2000), 

and Buying Time 2000: Television Advertisements in the 2000 

Federal Elections (Craig B. Holman & Luke P. McLoughlin, 

Brennan Center 2001). The reports were cited repeatedly by 

Members of Congress during the debates on BCRA. See, e.g., 

147 Cong. Rec. S3045 (daily ed. Mar. 28, 2001) (statement of 

Sen. Snowe); 148 Cong. Rec. S2117-18 (daily ed. Mar. 20, 

2002) (statement of Sen. Jeffords); 148 Cong. Rec. S2141 

(daily ed. Mar. 20, 2002) (statement of Sen. McCain). 

The Buying Time reports surveyed ads aired during the 1998 

and 2000 election cycles and concluded that the vast majority of 

ads that would have been banned by BCRA were “sham” issue 

ads, and thus speech that, in the authors’ view, should not be 

entitled to First Amendment protection. The reports concluded 

that only a tiny fraction of so-called “genuine” issue ads — 

speech that defendants admit is entitled to full First Amendment 

protection — would have been covered by BCRA’s primary 

definition of “electioneering communications.” 

Despite defendants’ best efforts, however, the district court, 

after detailed and laborious consideration, unanimously rejected 

the conclusions of the Buying Time reports, finding that, if 

anything, the data demonstrated that BCRA would have 

criminalized a substantial amount of concededly protected 

speech in 1998 and 2000. Judge Henderson concluded that the 

Buying Time reports were “based on a flawed methodology and 

[are] therefore unreliable as evidence,” Supp. App. 244sa,18 but 

18 As Judge Henderson’s opinion demonstrates, the Buying Time reports 

were entirely and irredeemably biased. Funding for the studies was solicited 

for the express purpose of furthering campaign finance “reform,” see Supp. 

App. 239sa-240sa (Henderson); the academic who solicited the funding 
54 

that, in any event, “the record as a whole suggests that BCRA 

would prohibit too much protected expression — anywhere 

from 11.38 per cent to 50.5 per cent of (what even the 

defendants characterize as) ‘genuine’ issue ads broadcast during 

the 60 days before an election in a typical election year,” id. at 

367sa n.149. Judge Leon concluded that “14.7 percent and 17 

percent of the ads” that would have been prohibited by BCRA 

in 1998 and 2000, respectively, were “genuine” issue ads by the 

Brennan Center’s own definition, and that such percentages 

represented “substantial overbreadth.” Id. at 1157sa. Even 

Judge Kollar-Kotelly, who would have upheld the 

“electioneering communications” provisions, refused to accept 

either report’s findings about BCRA’s effect on so-called 

“genuine” issue ads, although she agreed that, as to the 2000 

study, the evidence demonstrated that 17% of the speech that 

BCRA would have banned was “genuine” speech about issues. 

See id. at 857sa. This is overbreadth by any standard. 

The very premise of the Buying Time reports (and indeed, 

defendants’ entire argument about BCRA’s “electioneering 

communication” provisions) is itself fundamentally flawed. In 

insisting that BCRA will have only a modest effect on 

“genuine” issue advocacy, defendants and the Buying Time 

authors have sought to seize for themselves the role of 

determining — in a way wholly inconsistent with Buckley — 

what advocacy is “genuine.” They have embraced the notion 

agreed that the studies were “design[ed] and execute[d] * * * in a way that 

would help move the campaign reform ball forward,” id. at 240sa 

(Henderson); data for the studies were acquired in order to “fuel a 

continuous and multi-faceted campaign to propel reform forward,” id. at 

241sa (Henderson); and the authors agreed with their sponsors that the 

studies would be abandoned in midstream, and the results never published, 

unless the results were helpful to the reform “cause,” see id. at 239sa 

(Henderson). Such conduct was so plainly dishonorable that defendants’ 

expert Dr. Arthur Lupia was forced to admit that it was not “consistent with 

scholarly behavior of honor and seriousness as member of a learned 

profession.” J.A. 926. 
55 

that only speech about a bill or an issue is “genuine” and is 

protected by the First Amendment, while speech about 

candidates is rarely, if ever, protected. This view, as we have 

observed, is flatly at odds both with this Court’s decisions and 

with fundamental First Amendment principles. 

The core conclusions of the Buying Time reports are derived 

solely from surveys filled out by college students, who were 

asked to determine whether the “purpose” of an ad was to 

“provide information about or urge action on a bill or issue,” or, 

alternatively, to “generate support or opposition for a particular 

candidate.” See id. at 241sa (Henderson), 1043sa (KollarKotelly), 1329sa (Leon). If students determined that an ad 

generated support or opposition for a candidate, the ad was 

classified as a “sham” issue ad. If it provided information, the 

ad was deemed to be “genuine.” The survey form provided no 

way for a student to conclude that an ad’s “purpose” was to do 

both. See J.A. 895, 986. Tellingly, when Professor Kenneth 

Goldstein, a defense expert and the principal researcher for the 

Buying Time reports, was asked if he would have designed the 

reports differently had he known that speech about both issues 

and candidates was constitutionally protected, he conceded that 

he would have. See Supp. App. 247sa (Henderson). 

In any event, it is now clear that the reports’ conclusions 

about BCRA’s insignificant effect on so-called “genuine” issue 

ads are insupportable. The 1998 report, on which BCRA’s 

congressional supporters relied, indicated that only 7% of 

“genuine” issue ads aired in 1998 would have been prohibited 

by BCRA. See id. at 242sa (Henderson), 857sa (KollarKotelly), 1345sa (Leon). However, using a more accurate 

methodology that the Brennan Center itself later adopted, 

defendants’ experts and the report’s authors now concede that 

the underlying data demonstrates that 14.7% of the ads that 

would have been prohibited by BCRA were “genuine.” See id. 

at 243sa (Henderson), 1157sa (Leon). 

A closer look at the documents underlying the 1998 report 
56 

demonstrates that BCRA would have prohibited even more socalled “genuine” issue ads. The report claimed that, of the 30 

ads that would have been prohibited by BCRA, only two were 

coded as “genuine” issue ads. See id. at 242sa (Henderson), 

1333sa (Leon). However, a review of the actual handwritten 

coding sheets filled out by Professor Goldstein’s students shows 

that, in fact, at least 10 ads met BCRA’s criteria and were coded 

as “genuine.” 

At some point before the 1998 report went to press, someone 

re-coded at least eight ads from “genuine” to “sham.” See Br. 

App. 7a-15a; Supp. App. at 243sa (Henderson), 765sa-766sa 

(Kollar-Kotelly). The impact of this re-coding on the numbers 

is telling. If the eight re-coded ads had been counted as 

“genuine” issue ads, Buying Time 1998 would have reported 

that 64% of ads mentioning a candidate in the 60 days before 

the 1998 general election were coded by the students as 

“genuine.” See id. at 243sa-244sa (Henderson), 1349sa (Leon). 

Employing a different methodology used in the report of 

defendants’ expert Dr. Jonathan Krasno, plaintiffs’ expert Dr. 

James Gibson concluded that no less (and likely more) than 

50.5% of the ads featuring candidates within 60 days of the 

1998 election were coded as “genuine.” See id. at 244sa 

(Henderson), 1349sa-1350sa (Leon). This is surely overbreadth 

at a level rarely seen in any case. 

For its part, Buying Time 2000 also drastically underreports 

the number of “genuine” issue ads that would have met 

BCRA’s criteria. Two of the three judges below, after close 

and careful review, concluded that if the data had been correctly 

analyzed, 17% of the ads that referred to candidates in the last 

60 days of the 2000 campaign were “genuine” issue ads, the 

broadcast of which would have been criminal. See id. at 767sa 

(Kollar-Kotelly), 1157sa (Leon). Judge Henderson did not 

specifically address the 17% figure, finding that “neither study 

has any significant evidentiary weight” and that “even if I 

accepted the distinction [between ‘genuine’ and ‘sham’ issue 
57 

ads], the record as a whole suggests that BCRA would prohibit 

too much protected expression.” Id. at 367sa n.149. 

D. The “Electioneering Communications” Provisions 

Are Overbroad Because They Regulate Speech By 

Qualified Non-Profit Corporations. 

By its plain terms, section 204 of BCRA extends to all 

corporations and unions the ban on disbursements for 

“electioneering communications.” BCRA therefore makes no 

accommodation for qualified non-profit corporations, or socalled “MCFL” corporations: that is, non-profit, ideological 

corporations that accept no more than de minimis funds from 

corporate sources. This Court has held that such corporations 

must be allowed to make expenditures even for express 

advocacy. See MCFL, 479 U.S. at 259, 264. 

Judge Henderson would have struck down section 204 in its 

entirety. See Supp. App. 370sa. Judge Leon, in his controlling 

opinion, held section 204 to be unconstitutional insofar as it 

extends to MCFL corporations. See id. at 1166sa-1169sa. 

Defendants have conceded that BCRA’s “electioneering 

communications” provisions cannot constitutionally be applied 

to MCFL corporations. See Fed. Defts. J.S. 24 n.8; Intervenor 

Defts. J.S. 14 n.16. In light of defendants’ concessions, the 

Court should strike down section 204 as unconstitutionally 

overbroad. 

E. The “Electioneering Communications” Provisions 

Are Vague And Underinclusive. 

Finally, even if the Court accepts all of defendants’ other 

arguments, BCRA’s “electioneering communications” provisions are still unconstitutionally vague and underinclusive. 

1. The “fallback” definition of “electioneering 

communications,” which covers advertising that “promotes,” 

“supports,” “attacks,” or “opposes” a federal candidate and is 

“suggestive of no plausible meaning other than an exhortation 

to vote for or against a specific candidate,” is as 
58 

unconstitutional as the primary definition. First and foremost, 

the definition fails under — and indeed, flouts — Buckley, 

because it applies by its terms “regardless of whether the 

communication expressly advocates a vote for or against a 

candidate.” This statutory provision, enacted notwithstanding 

the specific holding of Buckley to the contrary, once again puts 

political speakers “wholly at the mercy of the varied 

understanding of [their] hearers.” Buckley, 424 U.S. at 43 

(internal quotation omitted). Under the fallback definition, 

much as the Court warned in Buckley, speakers will be forced to 

“hedge and trim” their political speech to ensure that it is not 

perceived as promoting or attacking a candidate. Id. (internal 

quotation omitted). 

Apart from its inconsistency with Buckley, the fallback 

definition is unconstitutional because it is so vague that people 

“of common intelligence must necessarily guess at its meaning 

and differ as to its application.” Connally v. General Constr. 

Co., 269 U.S. 385, 391 (1926); accord Reno v. ACLU, 521 U.S. 

844, 871-72 (1997). And an “even greater degree of 

specificity” is required in the First Amendment context. 

Buckley, 424 U.S. at 77 (internal quotation omitted). As Craig 

Holman, chief author of Buying Time 2000, acknowledged in 

his deposition, any effort to determine the “purpose” of a 

political advertisement is by its nature not a “black and white 

issue,” but is instead a “subjective judgment” that can be 

reasonably debated. J.A. 896. Indeed, defendants’ own expert 

Professor Goldstein noted that the students involved in coding 

ads for the Buying Time studies disagreed 25% of the time as to 

whether a particular ad was intended to “generate support or 

opposition for a particular candidate” or not. See id. at 860. 

Discovery confirmed that reasonable and intelligent people 

often disagree about whether political ads meet the criteria of 

the fallback definition. When shown particular ads during their 

depositions in this case, the Buying Time authors, defendants’ 

experts, and BCRA’s sponsors routinely disagreed with each 
59 

other as to whether a given ad was intended to promote, 

support, attack, or oppose a specific candidate. A criminal law 

that gives so little guidance as to its meaning cannot be 

sustained. 

By way of example, an ad that ran within 60 days of the 1998 

general election stated in part as follows: “Year after year the 

federal government takes a bigger piece of the pie. In fact in 

1998 we’ll pay more in federal taxes than at any time in 

American history except for World War II. And now with the 

budget surplus, in thirty years all the Washington politicians can 

talk about is getting their hands on more of your dough.” The 

ad then asked viewers to “[c]all Harry Reid and John Ensign” 

and urge them to cut taxes. “Otherwise,” the ad concluded, 

“there will be nothing left but the crumbs.” Br. App. 4a. Luke 

McLoughlin, co-author of Buying Time 2000, opined that this 

ad was “genuine” because its “focus is on taxes.” J.A. 959. 

Senator McCain, however, testified that the ad “attacks both” 

candidates. Id. at 937. And Congressman Shays offered a third 

view, testifying that the ad supported “one person’s position, 

but not the other” and that it was therefore “designed to 

influence the election.” Id. at 994. 

Another ad, sponsored by the Alliance for Quality Nursing 

Home Care broadcast within 60 days of the 2000 general 

election, referred to then-presidential candidate Al Gore. See 

Br. App. 5a. Senator Feingold was unsure whether the ad was 

pro-Gore or anti-Gore. See J.A. 852. On the other hand, 

Senator McCain testified that the ad “implies that Al Gore was 

responsible for Medicare cuts, which is a pretty damning 

indictment.” Id. at 941. But Representative Meehan concluded 

that that the ad “probably” was intended to promote Gore’s 

candidacy, see id. at 973, and Representative Shays agreed, see 

id. at 995. 

A third example was this ad, aired with 60 days of the 2000 

general election: 
60 

GRADUATE: Dear high tech company, I’d like to send 

you my resume. 

ANNOUNCER: Dear Graduate, sorry, Congress is 

going to give your job to a foreign worker. 

GRADUATE: But I’ve just finished four hard years of 

technical studies. 

ANNOUNCER 1: Sorry, besides foreign workers will 

work for a lot less. 

ANNOUNCER 2: Is this any way to treat American 

workers? But based on her record, Congresswoman 

Northrup is likely to vote in favor of the Foreign 

Worker Bill. Call Congresswoman Northrup and tell 

her to save our best jobs for American workers. Ask 

her to vote no on the Foreign Worker Bill. This 

message paid for by the Coalition for the Future 

American Worker. 

Br. App. 6a. Though the ad was treated in Buying Time 2000 as 

a “genuine” issue ad (that is, one that does not “generate 

support or opposition for a particular candidate”), see J.A. 896-

98, Senator McCain called the ad “exactly what I have in mind 

as a sham issue ad,” id. at 942. 

With so much disagreement, it is plain that the fallback 

definition will inevitably lead candidates to “steer far wider of 

the unlawful zone than if the boundaries of the forbidden area 

were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372 

(1964) (internal quotation omitted). In the end, Senator 

McCain said it best when he rose on the Senate floor to oppose 

the inclusion of materially identical statutory language: 

Boy, we better get out the dictionary because there is a 

great deal of ambiguity of words. * * * It says in the 

amendment: * * * [ads] can have no reasonable 

meaning other than to advocate the defeat of one or 

more clearly identified candidates. Who decides that? 
61 

* * * Now you are asking a judge to look at every 

commercial, or you are asking the broadcast station to 

look at every commercial[,] and make some decision as 

to whether it is an attack ad or not. * * * I am not a 

lawyer, but I have been involved so long and so engaged 

in these issues that words do have meaning, and this 

amendment is very vague. 

147 Cong. Rec. S3116 (daily ed. Mar. 29, 2001). The 

“fallback” definition in section 201 is unacceptably, and 

unconstitutionally, vague.

19 

2. Finally, by regulating only broadcast ads and not print 

ads or other forms of communication, both definitions of 

“electioneering communications” in section 201 are 

underinclusive and violate basic First Amendment principles. 

19 The modified fallback definition that the district court upheld as 

constitutional, see Supp. App. 1159sa-1166sa (Leon), is not only vague, but 

also overbroad. As written by Congress, the fallback definition contained no 

temporal restrictions. Presumably, Congress determined that the 30- and 60-

day limits of the primary definition were unnecessary in the fallback 

definition, because that definition would apply only to ads that are 

“suggestive of no plausible meaning other than an exhortation to vote for or 

against a specific candidate.” Shorn of that final clause, however, the 

fallback definition upheld by the district court now covers all ads that 

“promote, support, attack, or oppose a Federal candidate.” In its 

rulemaking, the FEC itself recognized that virtually any ad that refers to a 

federal candidate “could well be understood” to meet those criteria. 

Electioneering Communications, 67 Fed. Reg. 65,190, 65,201 (Oct. 7, 

2002). 

Moreover, by striking the definition’s one narrowing characteristic, the 

district court not only concocted a statutory provision that there is no reason 

to believe Congress would have enacted, but also did nothing to overcome 

the inherent vagueness of the terms “promote,” “support,” “attack,” and 

“oppose.” In fact, the language found to be unconstitutionally vague in 

Buckley (even after the Court’s narrowing construction) bears a strong 

resemblance to the language in the fallback definition. Compare Buckley, 

424 U.S. at 42 (“advocating the election or defeat of a candidate”) (internal 

quotation omitted), with BCRA § 201(a) (“promot[ing] or support[ing] * * * 

or attack[ing] or oppos[ing] a candidate for [federal] office”). 
62 

This Court has frequently struck down laws on the ground that 

they apply only to certain forms of media and not to others. 

See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 540 (1989); 

Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-05 (1979). 

At the time of BCRA’s enactment, members of Congress 

sought to justify the restriction on only broadcast ads by 

resorting to the “scarcity rationale”: that is, the argument that 

activities by broadcasters may be regulated because broadcast 

stations operate on a limited spectrum provided by the 

government. See, e.g., 144 Cong. Rec. S978 (daily ed. Feb. 25, 

1998) (statement of Sen. Levin); 147 Cong. Rec. S2611 (daily 

ed. Mar. 21, 2001) (statement of Sen. Torricelli). Even 

assuming, however, that the “scarcity rationale” is applicable to 

cable and satellite broadcasting (or, for that matter, retains any 

vitality at all), that doctrine has never been applied to justify 

restrictions on broadcasters that would have the effect of 

decreasing speech, rather than increasing it. Indeed, the very 

justification for the “scarcity rationale” was to ensure the 

dissemination of voices that “would otherwise, by necessity, be 

barred from the airwaves.” Red Lion Broad. Co. v. FCC, 395 

U.S. 367, 389 (1969). 

There is simply no justification for allowing Congress to 

regulate an ad only when it is read over the radio, but not when 

it is printed in a newspaper. See Supp. App. 365sa 

(Henderson). Because the “electioneering communications” 

provisions of BCRA discriminate against broadcast ads, they 

fail constitutional scrutiny on this ground as well. 

III. OTHER PROVISIONS OF BCRA ARE UNCONSTITUTIONAL. 

The district court correctly struck down a number of other 

provisions of BCRA, and incorrectly upheld others. We 

address each in turn. 
63

A. The “Advance Notice” Provisions Are Unconstitutional. 

The district court properly struck down one of BCRA’s two 

“advance notice” provisions, but erred by holding plaintiffs’ 

challenges to the other nonjusticiable. Section 201 of BCRA 

imposes disclosure requirements on persons who merely enter 

into a “contract to make” disbursements for electioneering 

communications, even before those disbursements are made, 

and even if they are ultimately not made. Section 212 imposes 

similar requirements on persons who “contract[] to make” 

independent expenditures over a certain amount, again even 

before those expenditures are made. 

As the district court unanimously held, the “advance notice” 

provision of section 201 violates the First Amendment. Section 

201 cannot be said to serve any of the governmental interests 

recognized in Buckley as potentially supporting disclosure 

requirements: namely, preventing actual or apparent corruption, 

informing the electorate as to the source of campaign spending, 

and assisting in the enforcement of contribution limits. See 424 

U.S. at 66-68. As the district court recognized, those interests 

would be fully served by requiring disclosures after the 

underlying expenditures have actually been made. See Supp. 

App. 114sa (Kollar-Kotelly and Leon). Indeed, requiring 

advance disclosures could have a chilling effect on would-be 

speakers. This Court has held that similar preconditions on 

speech are repugnant to First Amendment values. See, e.g., 

Watchtower Bible & Tract Society of N.Y., Inc. v. Village of 

Stratton, 536 U.S. 150, 165-66 (2002) (striking down ordinance 

requiring permits for canvassers); Thomas v. Collins, 323 U.S. 

516, 540 (1945) (invalidating registration requirement for labor 

organizers).20 

20 In its rulemaking, the FEC itself freely acknowledged that mandating 

disclosure of expenditures before the relevant communications are aired 

could raise “constitutional issues.” Electioneering Communications, 67 Fed. 

Reg. 51,137, 51,141 (Aug. 7, 2002). 
64 

The district court erred only by concluding that appellants’ 

challenge to the analogous “advance notice” requirement in 

section 212 was unripe in light of the FEC’s implementing 

regulation. See Supp. App. 130sa-134sa (Kollar-Kotelly and 

Leon). That regulation “construes” section 212 so as not to 

require advance disclosure. See Coordinated and Independent 

Expenditures, 68 Fed. Reg. 421, 452-53 (Jan. 3, 2003) (to be 

codified at 11 C.F.R. § 109.10). As Judge Henderson suggested 

in dissent, see Supp. App. 383sa n.154, not only is section 212 

not “easily susceptible” to such a saving construction, 

Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975), but 

the construction advanced in the regulation is flatly contrary to 

the language of the statute itself. Section 212 expressly requires 

disclosures not just of independent expenditures themselves, 

but also of “contracts to make” such expenditures. The Court 

should accordingly conclude that appellants’ challenge to the 

“advance notice” provision in section 212 is ripe, and that the 

provision is invalid for the same reasons as its counterpart in 

section 201. 

B. The “Coordination” Provisions Are Unconstitutional. 

The district court erred by rejecting appellants’ challenges to 

BCRA’s “coordination” provisions. The heart of those 

provisions is section 214, which broadens the definition of 

“coordination” to treat expenditures made in agreement or 

consultation with political party committees, like candidates, as 

coordinated, see BCRA § 214(a); repeals prior FEC regulations 

defining coordination, see BCRA § 214(b); and commands the 

FEC to promulgate new regulations that do “not require 

agreement or formal collaboration to establish coordination,” 

BCRA § 214(c). Because those provisions allow an 

expenditure to be classified as “coordinated” (and thereby 

subject to the limits on contributions) even absent agreement 

between the spender and the candidate or party committee, they 
65 

violate the First Amendment.

21 

The district court erred by concluding that appellants’ 

challenge to one subsection, section 214(c), was nonjusticiable. 

See Supp. App. 144sa-156sa (Kollar-Kotelly and Leon). Since 

appellants’ contention is that agreement is always required 

before coordination can constitutionally be found, and since 

section 214(c) commands the FEC to promulgate a regulation 

that does not require agreement to establish coordination, no 

FEC regulation (including, as it turns out, the regulation 

subsequently promulgated) could pass constitutional muster. 

Appellants’ challenge to section 214(c) is therefore appropriate 

for judicial resolution at this time, and appellants would suffer 

hardship absent review because of the risk that current activity 

could render future expenditures “coordinated.” See Abbott 

Labs. v. Gardner, 387 U.S. 136, 149 (1967).22 

When considered as an integrated whole, section 214 violates 

the First Amendment. Although this Court has upheld the 

constitutionality of treating coordinated expenditures as 

contributions, see Buckley, 424 U.S. at 47, it has never defined 

the constitutional outer bounds of coordination, though it has 

suggested that coordination turns on whether expenditures are 

“potential alter egos for contributions” or “functionally true 

expenditures,” Colorado II, 533 U.S. at 463, and made clear 

that coordination means “actual coordination as a matter of 

fact,” Colorado I, 518 U.S. at 619 (plurality opinion). In other 

words, “simply calling an independent expenditure a 

‘coordinated expenditure’ cannot (for constitutional purposes) 

make it one.” Id. at 621-22. 

21 Section 202 applies the BCRA’s “coordination” provisions to 

disbursements for electioneering communications. If this Court strikes down 

the “electioneering communications” provisions of BCRA, it should strike 

down section 202 as well. 

22 Because of this risk, appellants plainly also have standing. See, e.g., 

Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). 
66 

Section 214 redefines coordination to sweep well beyond 

even implicit “wink and nod” agreements between the spender 

and the candidate or political party, see, e.g., Colorado II, 533 

U.S. at 442; Colorado I, 518 U.S. at 614 (plurality opinion), 

and include even mere discussions with a candidate or political 

party. Defining coordination so broadly, however, would chill 

political actors from engaging in constitutionally protected 

petitioning of officeholders, officials, and candidates. As a 

lower court noted in the decision that inspired the FEC 

regulations BCRA purports to overrule, “considerable 

coordination will convert an expressive expenditure into a 

contribution[,] [but] the spender should not be deemed to forfeit 

First Amendment protections for her own speech merely by 

having engaged in some consultations or coordination with a 

federal candidate.” FEC v. Christian Coalition, 52 F. Supp. 2d 

45, 91 (D.D.C. 1999) (emphases added). 

As Judge Henderson noted in her dissent below, the net 

effect of BCRA’s broadening of the definition of coordination 

will be to “tote the same impermissible restrictions [from other 

parts of BCRA] through the back door.” Supp. App. 385sa. 

While the concept of coordination is readily defensible, 

BCRA’s broadening of the definition of coordination is not. 

BCRA’s “coordination” provisions should be invalidated. 

C. The “Attack Ad” Provision Is Unconstitutional. 

Section 305, entitled “Limitation on Availability of Lowest 

Unit Charge for Federal Candidates Attacking Opposition,” is 

one of BCRA’s most obviously unconstitutional provisions. It 

conditions the “lowest unit charge” (a lower advertising rate 

made available to candidates) upon a candidate’s “written 

certification” that he or she will “not make any direct reference 

to another candidate for the same office” in the ad sought to be 

aired, or even in a different ad. Candidates can be exempted 

from these requirements, but only if they include specific 

disclosures in their ads — disclosures that are not required for 

ads that do not refer to (and therefore presumably “attack”) 
67

opponents.23 

The district court held that plaintiffs — including Senator 

McConnell — lacked standing to challenge section 305. See 

Supp. App. 467sa-472sa (Henderson). However, as the court 

acknowledged, Senator McConnell testified without 

contradiction that he intended to run campaign ads critical of 

his opponents in the future. See id. at 470sa. And he further 

testified that he had run such ads in his most recent campaign. 

See J.A. 404-05. At a minimum, that is more than sufficient to 

meet this Court’s relaxed requirements for standing in First 

Amendment challenges. See, e.g., Members of City Council of 

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 

(1984); Gooding v. Wilson, 405 U.S. 518, 520 (1972).24 

On the merits, section 305 is a viewpoint-based regulation, 

subject to “most exacting” First Amendment scrutiny. See, e.g., 

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 

829 (1995); R.A.V. v. City of St. Paul, 505 U.S. 377, 391 

(1992). Section 305 should be stricken because it imposes an 

23 Under section 305, television ads referring to opponents qualify for the 

lowest unit charge only if they include an image of the candidate for four 

seconds and a printed statement identifying the candidate, indicating that the 

candidate approved the ad, and stating that the candidate’s authorized 

committee paid for the ad. Radio ads referring to opponents qualify for the 

lowest unit charge only if they include a “personal audio statement by the 

candidate that identifies the candidate, the office the candidate is seeking, 

and indicates that the candidate has approved the broadcast.” 

24 The district court contended that relaxed First Amendment standing rules 

“are applicable only to claims of First Amendment overbreadth.” Supp. 

App. 471sa (Henderson). But relaxed standing rules have often been applied 

in cases involving claims other than traditional overbreadth. See, e.g., 

Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972) (equal protection); 

Freedman v. Maryland, 380 U.S. 51, 56-57 (1965) (prior restraint). In any 

event, while a majority of the cases imposing relaxed standing requirements 

may involve claims of overbreadth, the basic rationale in all of these cases 

— that “the threat of enforcement * * * may deter or chill constitutionally 

protected speech,” Virginia v. Hicks, 123 S. Ct. 2191, 2196 (2003) (internal 

quotation omitted) — is plainly applicable here. 
68 

unconstitutional condition (namely, the requirement that a 

candidate either engage in advertising that does not reference an 

opponent, or include governmentally required speech) on the 

receipt of a governmental benefit (the lowest unit charge). See, 

e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 

(2001); Board of County Comm’rs v. Umbehr, 518 U.S. 668, 

674-75 (1996); Perry v. Sindermann, 408 U.S. 593, 597 (1972). 

In addition, the defendants have failed to articulate any 

legitimate governmental interest to justify stricter regulation of 

ads that “attack” (or even mention) one’s opponent.25 Although 

the federal defendants have proffered several governmental 

interests purportedly served by section 305 — including that it 

“provides voters with important additional information to 

consider in evaluating” a candidate, Fed. Defts. D. Ct. Opening 

Br. 218; that it generally serves the purpose of preventing fraud 

and corruption, see id. at 216-17; and that it requires candidates 

to “own up to” their sponsorship of ads, Fed. Defts. D. Ct. 

Reply Br. 89 — at no time have defendants been able to link 

these purported objectives to the actual requirements of the 

statute. Because section 305 punishes “vehement, caustic, and 

sometimes unpleasantly sharp attacks on * * * public officials,” 

New York Times Co. v. Sullivan, 376 U.S. at 270, without 

serving any legitimate government interest, it should be struck 

down. 

D. The “Forced Choice” Provision Is Unconstitutional. 

The district court unanimously, and correctly, struck down 

BCRA’s “forced choice” provision. That provision, section 

213, forces a political party to choose, once a candidate is 

nominated, whether to make independent expenditures on 

25 Even if the prevention of so-called “attack ads” were a permissible 

governmental objective, section 305 is unconstitutionally overbroad, because 

it would apply even to an ad that did no more than identify the opposing 

candidate. Defendants have not articulated, and cannot articulate, a 

governmental interest in regulating such ads. 
69 

behalf of the candidate, or to make coordinated expenditures, 

subject to the statutory limits on coordinated expenditures 

applicable to political parties. For purposes of this provision, 

“all political committees established and maintained by a 

national political party * * * and all political committees 

established and maintained by a State political party” are treated 

as a single committee. Under section 213, therefore, if one 

committee of a political party chooses to make coordinated 

expenditures (subject to the relevant statutory limits) on behalf 

of a nominated candidate, all other committees of that party are 

barred from making independent expenditures, and vice versa. 

As the district court noted, section 213 “flies in the face” of 

this Court’s holding in Colorado I, and is therefore 

unconstitutional. Supp. App. 1170sa (Leon). In Colorado I, of 

course, the Court held that political party committees, like other 

entities, have an unfettered First Amendment right to engage in 

independent expenditures. See 518 U.S. at 614-19 (plurality 

opinion). Notably, in Colorado I, the party committee at issue 

not only was making independent expenditures, but had already 

effectively made the maximum permissible amount of 

coordinated expenditures as well. See id. at 612. The net effect 

of section 213 is to condition political parties’ receipt of a 

“benefit” — specifically, the right to make a certain amount of 

coordinated expenditures, which is not constitutionally required, see Colorado II, 533 U.S. at 441-4526 — on their 

agreeing to forgo their constitutional right to make independent 

expenditures. Such a rule severely burdens the political parties’ 

constitutional rights, and indeed imposes an unconstitutional 

condition on them. See, e.g., Perry, 408 U.S. at 597. 

These constitutional problems are only exacerbated by the 

fact that section 213 treats all of the committees of a political 

party as a single committee. Section 213 therefore compels 

26 The provisions of FECA regarding the public financing of presidential 

campaigns, by contrast, place conditions on the receipt of public funds. 
70 

party committees to work together to decide whether to make 

independent or coordinated expenditures — and potentially 

leaves a party committee at the mercy of another committee 

over which it has no control (if, for instance, one county 

committee decides to make coordinated expenditures without 

consulting with another county committee). As Judge 

Henderson noted, this compelled association “is especially 

perverse in light of the fact that [BCRA] elsewhere severely 

restricts [party committees] from working together to raise 

certain kinds of funds and to decide how such funds should be 

used.” Supp. App. 397sa; see generally supra Part I.A.1.c 

(discussing Title I provisions barring joint fundraising). Section 

213’s forced association, no less than Title I’s forced 

disassociation, violates the First Amendment. See, e.g., 

California Democratic Party, 530 U.S. at 574-75. 

Defendants have argued that section 213 is necessary because 

it is “tenuous” to claim that expenditures are truly independent 

when an entity is also making coordinated expenditures. See, 

e.g., Intervenor Defts. J.S. 28. To the extent that is true, section 

213 is woefully underbroad, since it continues to allow political 

parties to make simultaneous independent and coordinated 

expenditures (albeit subject to the lower limits applicable to 

individuals and PACs), and allows individuals and PACs to do 

so as well. Moreover, defendants’ argument boils down to an 

argument that, where a political party makes some coordinated 

expenditures on behalf of a candidate, all other expenditures by 

that party should be presumed to be coordinated. This is little 

more than a variation on the contention that all expenditures 

should be presumed to be coordinated — a contention made by 

the FEC, and rejected by the Court, in Colorado I. See 518 

U.S. at 619-23 (plurality opinion). 

Like other provisions of BCRA, section 213 reflects 

Congress’ disregard, even contempt, for this Court’s campaign 

finance jurisprudence. It should be invalidated. 
71

E. The “Minors” Provision Is Unconstitutional. 

The district court also unanimously struck down section 318. 

That provision bans anyone under age 18 from contributing, in 

any amount, to a federal candidate, or giving federally regulated 

or state-regulated funds, in any amount, to a national, state, or 

local political party committee. 

Section 318 is so plainly unconstitutional, it is difficult to 

know where to start. It is indisputable that minors, like adults, 

have First Amendment rights. See, e.g., Tinker v. Des Moines 

Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969). 

Although this Court has recognized that the government has 

broader authority to regulate minors than adults, it has done so 

primarily when the government is acting in loco parentis to 

safeguard children from harm. See, e.g., Bethel Sch. Dist. No. 

403 v. Fraser, 478 U.S. 675, 682-83 (1986); Bellotti v. Baird, 

443 U.S. 622, 634 (1979); Ginsberg v. New York, 390 U.S. 629, 

637-38 (1968). Here, there can be no argument that section 318 

is necessary to protect children: there is no evidence, for 

instance, that candidates or parties are somehow manipulating 

children into giving them money. For purposes of section 318, 

therefore, minors are fully protected by the First Amendment. 

Because section 318 does not merely limit contributions by 

minors, but instead bans them altogether, it is subject to strict 

scrutiny. See Buckley, 424 U.S. at 21. Section 318 cannot 

survive that scrutiny, or indeed even the lower scrutiny 

applicable to limits on contributions. The only governmental 

interest on which defendants now rely is the supposedly 

compelling interest in preventing circumvention of contribution 

limits by parents who supposedly channel contributions through 

their children. See Fed. Defts. Opp. to Mot. of Echols Pltfs. to 

Aff. 4. As the district court noted, however, such channeling is 

already barred under preexisting law, see 2 U.S.C. § 441f, and 

defendants’ evidence that channeling is nevertheless taking 

place is “remarkably thin.” Supp. App. 463sa (Henderson); 

accord id. at 1011sa (Kollar-Kotelly). Moreover, to the extent 
72 

that channeling is actually occurring, it could be regulated by a 

host of more narrowly tailored means, including (1) banning 

contributions by minors only when their parents have “maxed 

out” on their own contribution limits; (2) banning contributions 

by minors only when the contributed funds were given to the 

minors by others, not earned by the minors themselves; (3) 

requiring disclosure of the age of donors, so as to facilitate 

enforcement of the preexisting anti-channeling law; (4) 

imposing a cap on contributions by minors, or on contributions 

by a single family; (5) employing a rebuttable presumption 

regarding the voluntariness of contributions by minors, as the 

FEC itself proposed; and (6) barring contributions only by those 

children too young to be capable of making knowing and 

voluntary contributions. Presented with this tray full of 

scalpels, Congress opted for a machete instead.27 

Section 318 also violates constitutional principles of equal 

protection, to the extent that it regulates speech by minors but 

not identical speech by other entities, and federalism, to the 

extent that it regulates even donations of state-regulated funds. 

Above all, however, the complete ban on contributions by 

minors in section 318 “reflects a profound congressional 

disregard for the First Amendment and settled jurisprudence 

thereunder.” Supp. App. 467sa (Henderson). The district 

court’s decision to strike down section 318 should be affirmed. 

27 Defendants argue that the right of minors to make contributions should be 

limited because minors lack the right to vote, see Fed. Defts. Opp. to Mot. of 

Echols Pltfs. to Aff. 2-3; the right to serve on juries or bring lawsuits, see id. 

at 3 n.1; and the right to enter into binding contracts or alienate property, see 

id. at 3-4. The First Amendment, however, is not somehow coextensive with 

the Twenty-Sixth Amendment, and does not contain a hitherto-undiscovered 

limitation to individuals with otherwise plenary legal capacity. Moreover, 

while it is true that Congress has prohibited contributions by foreign 

nationals (who, like minors, lack the right to vote), see id. at 9 n.4, that 

restriction, unlike the restriction on contributions by minors, is justified by 

the ordinary governmental interest in preventing actual or apparent 

corruption. 
73

F. The “Broadcaster Records” Provision Is Unconstitutional. 

The district court unanimously determined that section 504 

of BCRA is unconstitutional. That provision compels 

broadcasters to collect and publicly disclose detailed records 

related to (1) requests by candidates to broadcast any ads and 

(2) requests by private citizens and groups to broadcast ads 

related to “any political matter of national importance,” 

including but not limited to communications relating to any 

“election to Federal office” or any “national legislative issue of 

public importance.”28 As the district court unanimously found, 

section 504 serves no legitimate governmental interest and thus 

violates the First Amendment. In the alternative, as the district 

court suggested, section 504 is unconstitutionally vague. 

As a preliminary matter, Judge Henderson recognized that 

section 504 is unconstitutional on its face because, like sections 

201 and 311, it requires disclosure of expenditures for speech 

that does not constitute express advocacy. See Supp. App. 

377sa-378sa. Indeed, defendants have freely conceded that, in 

terms of covered subject matter, section 504 sweeps even more 

broadly than the “electioneering communications” disclosure 

provisions in section 201. See Fed. Defts. Opp. to Mot. of NAB 

to Aff. 7 n.1. 

Even if this Court were to conclude that the government 

could require disclosures related to speech other than express 

advocacy, section 504 would still not survive exacting scrutiny. 

Defendants have identified an ever-changing list of purported 

governmental interests served by section 504, including that it 

provides “public access to important information about political 

28 These records must include the acceptance or rejection of requests for 

advertisements; the name of the person making the requests and other 

contact information; a list of the chief executive officers or members of the 

executive committee or board of directors of the entity making the request; 

the date and time on which the communication is aired; the rate charged; the 

class of time purchased; and the issue to which the communication “refers.” 
74 

broadcasts,” Fed. Defts. D. Ct. Opening Br. 218; that it assists 

voters who have “difficulty identifying the true sponsors of 

issue ads,” id.; and that it enables “the public to evaluate 

whether broadcasters are processing requests in an evenhanded 

fashion,” Fed. Defts. J.S. 29. Yet defendants have never 

explained how such generalized interests satisfy the exacting 

scrutiny warranted by the First Amendment. 

The district court found that defendants “provided no 

evidence that section 504 serves any of the government 

interests” that were deemed sufficient in Buckley to justify 

compelled disclosure of communications about federal 

candidates. Supp. App. 1182sa (Leon) (emphasis added); 

accord id. at 379sa (Henderson), 1011sa (Kollar-Kotelly). 

Moreover, the district court concluded that section 504’s 

disclosure requirements for “noncandidate-focused” ads “are 

even more difficult to justify” and that “the defendants * * * 

provided no evidence” that interest groups posed a threat to 

justify the comprehensive disclosures mandated by section 504. 

Id. at 1183sa (Leon) (emphasis added); accord id. at 1011sa 

(Kollar-Kotelly). 

Section 504 imposes a wealth of burdensome and invasive 

requirements upon broadcasters and political speakers alike. 

See id. at 1011sa (Kollar-Kotelly), 1184sa (Leon). In this 

regard, the provision is particularly intolerable under the First 

Amendment because it forces disclosure to the government of 

the identity and the message (even if it is never broadcast) of 

private individuals and groups engaged in advocacy about 

important, often controversial, social and political issues. See 

NAACP v. Alabama, 357 U.S. 449, 462 (1958) (“It is hardly a 

novel perception that compelled disclosure of affiliation with 

groups engaged in advocacy may constitute * * * a restraint on 

freedom of association * * *.”). 

Finally, all three members of the district court correctly 

suggested that section 504 is void for vagueness because its 

application turns on the wholly ambiguous phrases “political 
75 

matter of national importance” and “national legislative issue of 

public importance.” Supp. App. 256sa (Henderson), 1011sa 

(Kollar-Kotelly), 1183sa n.141 (Leon). The inability of 

broadcasters to determine when the disclosure requirements of 

section 504 will apply is particularly troublesome because a 

violation of the provision will subject broadcasters to 

substantial fines or burdensome inquiries from the FCC. Such 

vagueness is plainly intolerable under both the First 

Amendment and the Due Process Clause of the Fifth 

Amendment. See, e.g., Keyishian v. Board of Regents of Univ. 

of State of N.Y., 385 U.S. 589, 604 (1967); Connally, 269 U.S. 

at 391. 

Section 504 represents a broad and aimless infringement of 

the rights of broadcasters and political speakers alike. The 

district court’s decision to strike down section 504 should be 

affirmed. 

CONCLUSION 

For the foregoing reasons, the decision of the district court 

should be affirmed in part and reversed in part, and the 

challenged provisions of BCRA declared unconstitutional. 
FLOYD ABRAMS 

SUSAN BUCKLEY 

BRIAN MARKLEY 

CAHILL GORDON & 

REINDEL LLP 

80 Pine Street 

New York, NY 10005 

(212) 701-3000 

Attorneys for Senator Mitch 

McConnell and National 

Association of Broadcasters 

KATHLEEN M. SULLIVAN 

559 Nathan Abbott Way 

Stanford, CA 94305 

(650) 725-9875 

Attorney for Senator Mitch 

McConnell 

Respectfully submitted, 

KENNETH W. STARR 

Counsel of Record 

EDWARD W. WARREN 

KANNON K. SHANMUGAM 

KIRKLAND & ELLIS LLP 

655 Fifteenth Street, N.W. 

Washington, DC 20005 

(202) 879-5000 

Attorneys for Senator Mitch 

McConnell; Southeastern 

Legal Foundation, Inc.; 

Representative Bob Barr; 

Center for Individual 

Freedom; National Right to 

Work Committee; 60 Plus 

Association, Inc.; and U.S. 

d/b/a Pro English 

JAN WITOLD BARAN 

THOMAS W. KIRBY 

LEE E. GOODMAN 

WILEY, REIN & 

FIELDING LLP 

1776 K Street, N.W. 

Washington, DC 20006 

(202) 719-7000 

Attorneys for Senator Mitch 

McConnell 
VALLE SIMMS DUTCHER 

L. LYNN HOGUE 

SOUTHEASTERN LEGAL 

FOUNDATION, INC. 

3340 Peachtree Road, N.E. 

Suite 3515 

Atlanta, GA 30326 

(404) 365-8500 

Attorneys for Southeastern 

Legal Foundation, Inc.; 

Representative Bob Barr; 

Center for Individual 

Freedom; National Right to 

Work Committee; 60 Plus 

Association, Inc.; and U.S. 

d/b/a Pro English 

July 8, 2003 

G. HUNTER BATES

FROST BROWN TODD LLC

400 West Market Street 

32nd Floor 

Louisville, KY 40202 

(502) 589-5400 

Attorney for Senator Mitch 

McConnell and Thomas E. 

McInerney