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No. 02-1674 et al. 

================================================================ 

In The 

Supreme Court of the United States 

----♦-- -

SENATOR MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States District Court 

For The District Of Columbia 

----♦-- -

BRIEF AMICUS CURIAE OF THE CENTER 


FOR GOVERNMENTAL STUDIES 


IN SUPPORT OF THE APPELLEES 


----♦-- -

RICHARD L. HASEN 

Counsel of Record 

919 South Albany Street 

Los Angeles, California 90015 

(213) 736-1466 

Attorney for Amicus Curiae 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

INTEREST OF THE AMICUS CURIAE .................... 1 

INTRODUCTORY STATEMENT AND SUMMARY 

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

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

I. THIS COURT SHOULD AFFIRM THAT LEGISLATIVE BODIES MAY ENACT NARROWLY 

TAILORED DISCLOSURE LAWS GOVERNING COMMUNICATIONS THAT INFLUENCE 

ELECTIONS. STRIKING DOWN BCRA’S 

NARROWLY TAILORED DISCLOSURE PROVISIONS WOULD JEOPARDIZE VIRTUALLY 

ALL EFFECTIVE CAMPAIGN FINANCE 

LAWS ............................................................... 5 

A.	 This Court Has Recognized the Compelling Interests Served by Narrowly Tailored Disclosure Laws............................... 5 

B.	 In Recent Years, Corporations, Unions, 

and Individuals Have Been Able to Avoid 

Disclosure on a Massive Scale in Candidate Campaigns, and Thereby Thwart 

Effective Campaign Finance Disclosure 

Laws, by Eschewing Express Words of 

Advocacy ................................................... 8 

C.	 This Court Should Recognize BCRA’s 

Bright-Line “Electioneering Communications” Provision as a Narrowly Tailored 

Means of Enforcing Effective Disclosure 

Laws .......................................................... 11 
ii 

TABLE OF CONTENTS – Continued 

Page 

1.	 The district court failed to distinguish between use of the bright-line 

test for the disclosure requirement 

and for the segregated fund requirement ..................................................... 11 

2. 	 The bright-line test as applied to disclosure regulations is not overbroad 

at all because virtually all issue ads 

covered by the test will influence federal elections........................................ 13 

3.	 Issue advocacy is not constitutionally 

favored over election-related speech ... 15 

4. 	 Even if there is some overbreadth, it 

is not substantial................................. 19 

D. 	If This Court Fails to Uphold BCRA’s 

Bright-Line “Electioneering Communications” Provision, All Effective State and 

Local Campaign Finance Disclosure 

Laws and Public Financing Laws Are in 

Jeopardy.................................................... 20 

II. THIS COURT SHOULD AFFIRM THE 

CONSTITUTIONALITY OF NARROWLY 

TAILORED LAWS REQUIRING CORPORATIONS AND UNIONS TO USE A SEGREGATED FUND FOR COMMUNICATIONS 

THAT INFLUENCE ELECTIONS .................. 22 
iii 

TABLE OF CONTENTS – Continued 

Page 

A.	 This Court Has Recognized the Compelling 

Interests Served by Limits on Excessive 

Corporate and Union Involvement in the 

Electoral Process ....................................... 22 

B.	 In Recent Years, Corporations and Unions Have Been Able to Skirt the Limits 

on Involvement in the Electoral Process 

by Eschewing Express Words of Advocacy............................................................ 25 

C.	 This Court Should Recognize BCRA’s 

Bright-Line “Electioneering Communications” Provision as a Narrowly Tailored 

Means of Limiting Corporate and Union 

Involvement in the Electoral Process....... 25 

D. 	If This Court Fails to Uphold BCRA’s 

Bright-Line “Electioneering Communications” Provision, State and Local Government Will Be Unable to Enact 

Effective Laws Limiting Corporate and 

Union Involvement in the Political Process.............................................................. 29 

CONCLUSION............................................................ 30 
iv 

TABLE OF AUTHORITIES 

Page 

CASES 

Austin v. Michigan Chamber of Commerce, 494 


U.S. 652 [110 S. Ct. 1391, 108 L. Ed. 2d 652] 


(1990) ........................................................ 4, 23, 24, 27, 29 


Broadrick v. Oklahoma, 413 U.S. 601 [93 S. Ct. 


2908, 37 L. Ed. 2d 830] (1973) ....................................... 14 


Brown v. Socialist Workers ’74 Campaign Commit-


tee, 459 U.S. 87 [103 S. Ct. 416, 74 L. Ed. 2d 250]


(1982) .................................................................... 6, 13, 20 


Buckley v. American Constitutional Law Founda­


tion, 525 U.S. 182 [119 S. Ct. 636, 142 L. Ed. 2d 


599] (1999) ........................................................ 7, 8, 16, 18


Buckley v. Valeo, 424 U.S. 1 [96 S. Ct. 612, 46 


L. Ed. 2d 659] (1976) ...............................................passim 

Chamber of Commerce v. Moore, 288 F.3d 187 (5th 


Cir. 2002)..........................................................................11 


Citizens Against Rent Control v. City of Berkeley,


454 U.S. 290 [102 S. Ct. 434, 70 L. Ed. 2d 492] 


(1981) .......................................................................... 7, 18 


Elections Board v. Wisconsin Manufacturers & 


Commerce, 597 N.W.2d 721 (Wis. 1999).........................11 


FEC v. Akins, 524 U.S. 11 [118 S. Ct. 1777, 141 


L. Ed. 2d 10] (1998) .......................................................... 9 


FEC v. Beaumont, 539 U.S. ___ [123 S. Ct. 2200,


156 L. Ed. 2d 179] (2003) ........................................passim


FEC v. Christian Action Network, 110 F.3d 1049


(4th Cir. 1997)................................................................. 10 

v 

TABLE OF AUTHORITIES – Continued 

Page 

FEC v. Massachusetts Citizens for Life, 479 U.S. 


238 [107 S. Ct. 616, 93 L. Ed. 2d 539] (1986).... 12, 28, 29 


FEC v. National Right to Work Committee, 459 


U.S. 197 [103 S. Ct. 552, 74 L. Ed. 2d 364] 


(1982) .................................................................. 23, 24, 26 


First National Bank of Boston v. Bellotti, 435


U.S. 765 [98 S. Ct. 1407, 55 L. Ed. 2d 707] 


(1978) .......................................................... 6, 7, 16, 18, 24 


Lehnert v. Ferris Faculty Association, 500 U.S. 507


[111 S. Ct. 1950, 114 L. Ed. 2d 572] (1991) ................... 28 


Massachusetts v. Oakes, 491 U.S. 576 [109 S. Ct. 


2633, 105 L. Ed. 2d 493] (1989) ..................................... 14 


McIntyre v. Ohio Elections Commission, 514 U.S. 


334 [115 S. Ct. 1511, 131 L. Ed. 2d 426] (1995) ........ 8, 18 


Nixon v. Shrink Missouri Government PAC, 528 


U.S. 377 [120 S. Ct. 897, 145 L. Ed. 2d 886] 


(2000) .......................................................................... 7, 27 


United States v. Congress of Industrial Organiza­


tions, 335 U.S. 106 [68 S. Ct. 1349, 92 L. Ed. 


1849] (1948) .................................................................... 24 


United States v. Harriss, 347 U.S. 612 [74 S. Ct. 


808, 98 L. Ed. 989] (1954) ........................................ 16, 18 


Virginia v. Hicks, 539 U.S. ___ [123 S. Ct. 2191, 156


L. Ed. 2d 148] (2003) ................................................ 14, 19 


Watchtower Bible & Tract Society v. Village of 


Stratton, 536 U.S. 150 [122 S. Ct. 2080, 153 


L. Ed. 2d 205] (2002) ........................................................ 8 

vi 

TABLE OF AUTHORITIES – Continued 

Page 

CONSTITUTIONS 

Kentucky Constitution, § 150............................................ 23 


STATUTES 

2 U.S.C.A. § 441b (West 1997 & Supp. 2003) ............. 22, 25 


Bipartisan Campaign Reform Act of 2002, Pub. L.


No. 107-155, 116 Stat. 81 (2002)...................................... 1 


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

§ 203 .......................................................................... 13, 22 


Alaska Statute (2002) 

§ 24.45.011....................................................................... 21 


§ 24.45.051 ...................................................................... 21 


Arizona Revised Statute (2003) 

§ 16-919 ........................................................................... 30 


§ 16-920 ........................................................................... 30 


§ 16-952 ........................................................................... 21 


Arkansas Code Annotated (2003) 

§ 21-8-402........................................................................ 21 


§ 21-8-601........................................................................ 21 


California Government Code (West Supp. 2003) 

§ 82045(e) ........................................................................ 21 


§ 85310 ............................................................................ 21 


Colorado Revised Statute (2002) 

§ 24-6-301........................................................................ 21 


§ 24-6-302........................................................................ 21 

vii 

TABLE OF AUTHORITIES – Continued 

Page 

Connecticut General Statute (2003) 

§ 1-91(k)........................................................................... 21 


§ 1-94 ............................................................................... 21 


§ 1-96 ............................................................................... 21 


§ 9-333c(a)(2)................................................................... 21 


§ 9-333o ........................................................................... 30 


§ 9-333p ........................................................................... 30 


District of Columbia Code Annotated § 1-1105.01 


(2003) .............................................................................. 21 


Georgia Code Annotated (2003) 

§ 21-5-70.......................................................................... 21 


§ 21-5-71.......................................................................... 21 


§ 21-5-73.......................................................................... 21 


Hawaii Revised Statute (2003) 

§ 97-1 ............................................................................... 21 


§ 97-2 ............................................................................... 21 


§ 97-3 ............................................................................... 21 


Idaho Code (Michie 2003) 

§ 67-6602 ......................................................................... 21 


§ 67-6617 ......................................................................... 21 


§ 67-6619 ......................................................................... 21 

viii 

TABLE OF AUTHORITIES – Continued 

Page 

Indiana Code Annotated (Michie 2003) 

§ 2-7-1-9........................................................................... 21 


§ 2-7-2-1........................................................................... 21 


§ 2-7-3-3........................................................................... 21 


Kansas Statute Annotated (2002) 

§ 46-225 ........................................................................... 21 


§ 46-268 ........................................................................... 21 


Maine Revised Statute Annotated, title 21-A, 


§ 1125(9) (2002) .............................................................. 21 


Maryland Code Annotated State Government (2003) 

§ 15-701 ........................................................................... 21 


§ 15-704 ........................................................................... 21 


Michigan Compiled Laws (2003) 

§ 4-415 ............................................................................. 21 


§ 4-418 ............................................................................. 21 


§ 169.254 ......................................................................... 30 


§ 169.255 ......................................................................... 30 


Minnesota Statute (2002) 

§ 10A.01........................................................................... 21 


§ 10A.03........................................................................... 21 


§ 10A.04........................................................................... 21 


Mississippi Code Annotated (2003) 

§ 5-8-3.............................................................................. 21 


§ 5-8-9.............................................................................. 21 

ix 

TABLE OF AUTHORITIES – Continued 

Page 

Montana Code Annotated (2002) 

§ 5-7-102.......................................................................... 21 


§ 13-35-227...................................................................... 30 


Nebraska Revised Statute § 49-1433 (2002)..................... 21 


Nevada Revised Statute § 218.912 (2002) ........................ 21 


New Mexico Statute Annotated (Michie 2002) 

§ 2-11-2 ............................................................................ 22 


§ 2-11-6 ............................................................................ 22 


New York Election Law § 14-116 (McKinney 2003).......... 30 


New York Legislative Law (McKinney 2003) 

§ 1-c.................................................................................. 22 


§ 1-j .................................................................................. 22 


North Carolina General Statute § 163-278.19


(2002) .............................................................................. 30 


North Carolina General Statute § 163-278.67


(2003) .......................................................................... 3, 21 


Ohio Revised Code Annotated (West 2002) 

§ 3517.082 ....................................................................... 30 


§ 3599.03 ......................................................................... 30 


Oklahoma Statute, title 21, § 187.2 (2003) ....................... 30 


Oregon Revised Statute (2001) 

§ 171.725 ......................................................................... 22 


§ 171.745 ......................................................................... 22 


25 Pennsylvania Consolidated Statute § 3253 


(2003) .............................................................................. 30 

x 

TABLE OF AUTHORITIES – Continued 

Page 

65 Pennsylvania Consolidated Statute (2002) 

§ 1303 .............................................................................. 22 


§ 1305 .............................................................................. 22 


Rhode Island General Laws (2002) 

§ 17-25-10.1(h) ................................................................ 30 


§ 17-25-15........................................................................ 30 


South Dakota Codified Laws § 12-25-2 (Michie 


2002)................................................................................ 30 


Texas Election Code Annotated (2003) 

§ 253.094 ......................................................................... 30 


§ 253.100 ......................................................................... 30 


Vermont Statute Annotated, title 2 (2003) 

§ 261 ................................................................................ 22 


§ 264 ................................................................................ 22 


Vermont Statute Annotated, title 17 § 2883 (2002).......... 21 


Virginia Code Annotated (Michie 2003) 

§ 2.2-419 .......................................................................... 22 


§ 2.2-426 .......................................................................... 22 


Washington Revised Code § 42.17.200 (2003)................... 22 


West Virginia Code (2003) 

§ 3-8-8.............................................................................. 30 


§ 6B-3-5 ........................................................................... 22 

xi 

TABLE OF AUTHORITIES – Continued 

Page 

Wisconsin Statute (2002) 

§ 11.01(16)(a)................................................................... 21 


§ 11.12(6) ......................................................................... 21 


§ 11.38.............................................................................. 30 


Austin, Texas, City Code § 2-9-12 (2003) .......................... 21 


Berkeley, California, Municipal Code § 2.12.440


(2003) .............................................................................. 30 


Chula Vista, California, Municipal Code § 2.52.060 


(2001) .............................................................................. 30 


Coronado, California, Municipal Code § 1.84.40


(2003) .............................................................................. 30 


Los Angeles, California, Municipal Code § 49.7.14 


(2003) .............................................................................. 21 


Poway, California, Municipal Code § 2.28.030(B)(1) 


(2002) .............................................................................. 30 


San Diego, California, Municipal Code § 27.2947


(2003) .............................................................................. 30 


San Diego County, California, Municipal Code, title 


3, division 2, ch. 9, § 32.924 (2002)................................ 30 


Santee, California, Municipal Code, § 2.40.070 


(2002) .............................................................................. 30 


Scotts Valley, California, Municipal Code § 2.60.040 


(2003) .............................................................................. 30 


COURT RULES 

Supreme Court Rule 37.6..................................................... 1 

xii 

TABLE OF AUTHORITIES – Continued 

Page 

REGULATIONS 

11 Code of Federal Regulations § 100.22(b)(2) 


(2000) .............................................................................. 10 


MISCELLANEOUS 

Act of Apr. 3, 1897, ch. 19, § 1, 1897 Nebraska Laws 


185................................................................................... 23 


Act of Apr. 5, 1897, ch. 18, § 1, 1897 Tennessee 


Public Acts 143 ............................................................... 23 


Act of Apr. 6, 1911, ch. 109, § 1, 1911 New Hamp­


shire Laws 113................................................................ 23 


Act of Apr. 19, 1905, ch. 291, § 1, 1905 Minnesota 


Laws 436......................................................................... 23 


Act of Feb. 5, 1907, ch. 121, 1907 North Carolina 


Session Laws 134 ........................................................... 23 


Act of Feb. 17, 1911, ch. 41, § 10, 1911 Wyoming 


Session Laws 50 ............................................................. 23 


Act of May 29, 1908, ch. 31, art. 1, art. VII, § 9, 


1907-1908 Oklahoma Session Laws 316 ....................... 23 


Act of June 2, 1891, ch. 4538, §§ 1-2, 1891 Florida 


Laws 72........................................................................... 23 


Act of June 21, 1905, ch. 492, § 1, 1905 Wisconsin


Laws 869......................................................................... 23 


Richard H. Fallon, Making Sense of Overbreadth, 


100 Yale L.J. 853 (1991) ................................................. 19 

xiii 

TABLE OF AUTHORITIES – Continued 

Page 

Edward B. Foley, “Narrow Tailoring” Is Not the 

Opposite of “Overbreadth”: Defending BCRA’s 

Definition of “Electioneering Communications”, 2 

Election L.J. (forthcoming Oct. 2003) available at 

http://www.liebertpub.com/elj/Foley1.pdf................ 20, 28 

Richard L. Hasen, Measuring Overbreadth: Using 

Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws Targeting 

Sham Issue Advocacy, 85 Minn. L. Rev. 1773 

(2001) ........................................................................ 14, 19 

Richard Perez-Pena, Air of Mystery Clouds Shot at 

McCain, N.Y. Times, Mar. 3, 2000................................... 2 

Richard W. Stevenson & Richard Perez-Pena, The 

2000 Campaign: The Tactics; Wealthy Texan Says 

He Bought Anti-McCain Ads, N.Y. Times, Mar. 4, 

2000................................................................................... 2 
1 

INTEREST OF THE AMICUS CURIAE 

With the consent of the parties, the Center for Governmental Studies submits this brief amicus curiae in support 

of the Defendants. The letters of consent have been filed 1 with the Clerk of the Court. 

The mission of the Center for Governmental Studies 

(CGS) is to use research, advocacy, technology, and education to improve the fairness of governmental policies and 

processes, empower the underserved to participate more 

effectively in their communities, improve communication 

between voters and candidates for office, and help implement effective public policy reforms. 

Although CGS supports many aspects of the Bipartisan 

Campaign Reform Act, this brief limits its discussion to 

support the position that BCRA’s “electioneering communications” provisions are constitutional. CGS is particularly 

interested in this aspect of the case because it drafts model 

campaign finance laws, including disclosure laws covering 

electioneering communications, that are considered and 

adopted by states and local jurisdictions. In recent years, 

the question of “issue ads” has increased in importance as 

interest groups attempt to find ways to skirt state and local 

campaign finance laws. 

INTRODUCTORY STATEMENT AND 

SUMMARY OF ARGUMENT 

The purpose of this brief amicus curiae is to alert the 

Court to the serious possibility that a decision by this Court 

regarding one aspect of the Bipartisan Campaign Reform 

Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) 

(“BCRA”), may well impair the ability of federal, state, and 

1 Pursuant to Supreme Court Rule 37.6, Amicus states that no counsel 

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

entity other than Amicus, its members, and its counsel contributed 

monetarily to the preparation or submission of this brief. 
2 

local governments to enforce comprehensive campaign 

finance disclosure and other laws. What is at stake in this 

Court’s resolution of the dispute over the “electioneering 

communications” provisions of BCRA is nothing less than 

the ability of all levels of government to enforce effective 

campaign finance laws (1) requiring disclosure of the 

identity of political actors engaging in election-related 

activities and of the amounts and sources of money for 

those activities and (2) regulating the mechanics of corporate and union involvement in the political process. 

In the last decade or so, this country has witnessed a 

sea change in the means by which campaigns for office are 

conducted. Corporations, unions, and individuals increasingly have skirted many disclosure requirements and other 

applicable campaign finance laws by eschewing the use of 

express words of advocacy, such as those contained in 

footnote 52 of Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976). 

Thus, by ending an advertisement with something like 

“Call Smith and tell her she’s soft on crime” rather than 

with “Vote Against Smith,” political actors have escaped the 

reach of most campaign finance laws. 

One well-publicized example occurred during the 2000 

Republican Party primary in New York, where a previously 

unknown organization, “Republicans for Clean Air,” sponsored television advertisements without using words of 

express advocacy criticizing Senator John McCain, a 

primary opponent of then-Governor George W. Bush. See 

Richard Perez-Pena, Air of Mystery Clouds Shot at McCain, 

N.Y. Times, Mar. 3, 2000, at A15. The source of the advertisements remained a mystery until a supporter of Mr. 

Bush, Sam Wyly, volunteered that he had run the advertisements in the hopes of influencing the outcome of the 

primary. See Richard W. Stevenson & Richard Perez-Pena, 

The 2000 Campaign: The Tactics; Wealthy Texan Says He 

Bought Anti-McCain Ads, N.Y. Times, Mar. 4, 2000, at A1; 

Joint Supplemental Appendix to Jurisdictional Statements 

(“Supp. App.”) at 97sa-98sa (per curiam opinion). 
3 

Congress chose to address the problem of unregulated 

electioneering communications by using a bright-line 

“electioneering communications” definition in BCRA section 

201, bringing within the ambit of federal campaign finance 

laws those advertisements run within a short period before 

the election, featuring the name or likeness of a candidate 

for office, broadcast on television, radio, satellite or cable 

stations, and targeted to the relevant electorate. State 

governments have begun using similar bright-line approaches. 

If this Court strikes down BCRA’s bright-line test as 

applied to the statute’s disclosure provisions, no government body in the United States will be able to engage in 

effective campaign finance regulation. Corporations, unions, 

and others will have the opportunity to escape disclosure 

laws by eschewing express words of advocacy. Inadequate 

disclosure in turn will (1) deny voters adequate information 

about the sources of funding so helpful in making decisions 

about whom to vote for; (2) raise the risks of corruption and 

the appearance of corruption; and (3) interfere with other 

campaign finance programs, such as voluntary public 

financing programs. 

A decision striking down the law could have other, 

perhaps unintended, effects on state and local laws as well. 

For example, North Carolina’s recently enacted public 

financing program for candidates for judicial office includes 

a “trigger” provision releasing additional public financing 

upon the filing of reports indicating that a certain amount 

of independent expenditures have been made in support of 

or in opposition to a judicial candidate. See N.C. Gen. Stat. 

§ 163-278.67 (2003). Such triggers cannot work if those 

supporting or opposing judicial candidates can avoid filing 

reports of their expenditures. 

In addition, at least twenty-five states and the District 

of Columbia have laws requiring the disclosure of information on expenditures on grassroots lobbying. See infra note 

10. These laws could be called into question by a ruling by 
4 

this Court striking down the electioneering communications 

provisions of BCRA. 

Moreover, the ease with which corporations and unions 

may eschew words of express advocacy means that any 

efforts by state or local governments to limit or prohibit 

excessive corporate and union influence over the political 

process will be doomed to fail as well. Thus, laws that have 

been in place for many decades aimed at preventing corruption of the electoral process and protecting shareholders 

and union members – laws that this Court effectively 

sanctioned in Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) – will become dead letters. 

Congress’s decision to bring within the ambit of federal 

campaign finance disclosure laws and corporate and union 

segregated fund requirements those broadcast advertisements covered by the “electioneering communications” 

provisions of BCRA certainly passes constitutional muster. 

The rationales supporting the disclosure and segregated 

fund requirements apply equally whether or not the advertisements contain express advocacy. 

Plaintiffs’ main constitutional argument against the 

electioneering communications provision is that it is substantially overbroad because it reaches too many “issue 

advertisements” that are, in plaintiffs’ view, constitutionally 

immune from regulation under this Court’s opinion in 

Buckley. Plaintiffs are mistaken. The fact that BCRA’s 

bright-line test might, in some applications, apply to 

instances of “genuine” issue advocacy that are not principally intended to influence candidate elections does not 

render the statute overbroad even in those applications, 

much less substantially overbroad. Whether or not intended 

to influence a federal election, an advertisement that 

specifically refers to a federal candidate and is broadcast 

soon before the candidate’s election – which are advertisements BCRA reaches – will likely in fact influence the 

election. Congress has the power to require disclosure of 

such advertisements and limit the source of corporate and 

union expenditures for such advertisements to segregated 

funds. 
5 

ARGUMENT 

I. 

THIS COURT SHOULD AFFIRM THAT


LEGISLATIVE BODIES MAY ENACT NARROWLY


TAILORED DISCLOSURE LAWS GOVERNING


COMMUNICATIONS THAT INFLUENCE 


ELECTIONS. STRIKING DOWN BCRA’S NARROWLY 


TAILORED DISCLOSURE PROVISIONS


WOULD JEOPARDIZE VIRTUALLY ALL


EFFECTIVE CAMPAIGN FINANCE LAWS. 


A. 	 This Court Has Recognized the Compelling Interests Served by Narrowly Tailored Disclosure Laws. 

In Buckley, 424 U.S. at 60-84, this Court upheld the 

broad reporting requirements of the Federal Election Campaign Act (“FECA”). Under Buckley, “compelled disclosure 

has the potential for substantially infringing the exercise of 

First Amendment rights. But . . . there are governmental 

interests sufficiently important to outweigh the possibility of 

infringement, particularly when the ‘free functioning of our 

national institutions’ is involved.” Id. at 66 (citation omitted). 

The Court held that three compelling governmental 

interests justified reporting requirements: 

(1) Disclosure provides the electorate with important 

information. The sources of financial support “alert the voter 

to the interests to which a candidate is most likely to be 

responsive and thus facilitate predictions of future performance in office,” and a public “armed with information about a 

candidate’s most generous supporters is better able to detect 

any post-election special favors that may be given in return.” 

Id. at 67. 

(2) “Disclosure requirements deter actual corruption 

and avoid the appearance of corruption by exposing large 

contributions and expenditures to the light of publicity.” Id. 

Disclosure of independent expenditures permits the legislature to reach “‘every kind of political activity’ in order to 

insure that the voters are fully informed and to achieve 

through publicity the maximum deterrence to corruption and 

undue influence possible.” Id. at 76. 
6 


(3) “Third, and not least significant, recordkeeping, 

reporting, and disclosure requirements are an essential 

means of gathering the data necessary to detect violations of 

. . . contribution limits. . . . ” Id. at 67-68. 

Buckley’s approach to reporting requirements is notable 

for its deference to legislative judgments. The plaintiffs had 

challenged FECA’s requirements that political committees 

maintain records with the name and address of those who 

make annual contributions in excess of $10 and report the 

name, address, occupation, and employer of those who 

contribute, in the aggregate, more than $100 annually. See 

id. at 63. The Court agreed that these thresholds were 

“indeed low,” but concluded that “we cannot require Congress 

to establish that it has chosen the highest reasonable 

threshold.” Id. at 83. To the contrary, it held that drawing the 

line was “best left in the context of this complex legislation to 

congressional discretion.” Id. 

The Buckley Court also rejected an overbreadth challenge based on the applicability of the requirements to minor 

as well as major political parties. The plaintiffs claimed that 

the First Amendment rights of minor parties were seriously 

burdened by the requirement that they disclose contributors, 

because their supporters were more susceptible to harassment. But the Court refused to carve out a blanket exemption for minor parties. See id. at 68-74. While rejecting the 

facial constitutional challenge, Buckley recognized that the 

federal reporting requirements would be unconstitutional as 

applied to those minor parties that could establish a reasonable probability of harassment. The Socialist Workers Party 

made the requisite showing in Brown v. Socialist Workers ’74 

Campaign Committee, and the Court recognized that party’s 

right to an exemption. See 459 U.S. 87, 102 (1982). 

Two years after Buckley, this Court briefly reaffirmed 

the voters’ compelling interest in electoral information, this 

time in ballot measure elections. First National Bank of 

Boston v. Bellotti, 435 U.S. 765 (1978), involved a Massachusetts criminal statute that prohibited banking and business 

corporations from making contributions or expenditures to 

influence the vote on ballot measure initiatives, unless the 
7 

initiatives materially affected corporate assets, property, or 

business. The Court invalidated the ban against giving and 

spending money on First Amendment grounds but found 

required disclosure of those activities to be different, recognizing that “[i]dentification of the source of advertising may 

be required as a means of disclosure, so that the people will 

be able to evaluate the arguments to which they are being 

subjected.” Id. at 792 n.32 (citations omitted); cf. Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 290, 294 

n.4, 298-99 (1981) (noting that the government’s interest in 

identifying the sources of support for and opposition to ballot 

measures could be met by an existing law requiring preelection publication of a contributor list). 

Although this Court has divided in recent years in cases 

raising the constitutionality of certain campaign finance 

contribution limitations, see, e.g., Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377 (2000), FEC v. Beaumont, 123 S. Ct. 2200 

(2003), it has consistently and unanimously upheld the 

ability of the government to require the filing of reports 

disclosing information about contributions and expenditures 

in candidate and ballot measure campaigns. 

Of course, support for contribution limits necessarily 

includes support for adequate disclosure laws to allow 

enforcement of those limits. But even Justices who have 

expressed skepticism of the constitutionality of contribution 

limitations have pointed to disclosure as a more narrowly 

tailored alternative to contribution limits. See, e.g., Shrink 

Mo., 528 U.S. at 430 (Thomas J., dissenting) (“States are free 

to enact laws that . . . require the disclosure of large contributions. . . .”). 

In one of the most recent campaign finance cases, 

Buckley v. American Constitutional Law Foundation, 525 

U.S. 182 (1999) (“ACLF”), there was substantial agreement 

among the Justices on the propriety of Colorado’s law mandating the filing of reports disclosing the names of initiative 

sponsors and the amounts spent gathering support for their 

initiatives. See id. at 202-03; see also id. at 214 (Thomas, J., 

concurring); id. at 224 (O’Connor, J., joined by Breyer, J., 
8 

concurring in the judgment in part and dissenting in part); 

id. at 233 (Rehnquist, C.J., dissenting).2 

B. 	In Recent Years, Corporations, Unions, and 

Individuals Have Been Able to Avoid Disclosure 

on a Massive Scale in Candidate Campaigns, and 

Thereby Thwart Effective Campaign Finance 

Disclosure Laws, by Eschewing Express Words of 

Advocacy. 

Consider two hypothetical broadcast advertisements 

intended to convince voters to vote against candidate Smith 

run in close proximity to the election. They are identical 

except one advertisement ends with the words “Vote against 

Smith,” while the other ends with “Call Smith and tell her 

she is soft on crime.” The compelling interests in disclosure 

previously identified by the Court – providing voters with 

valuable information, deterring actual and apparent corruption, and enforcing other campaign finance laws – are the 

same in the two cases. Yet in recent years only the first 

advertisement has been subject to disclosure laws. The 

second advertisement could be funded by millions of dollars 

from corporations, unions, or individuals, and no one would 

2 The Court, by contrast, has divided on the propriety of disclosure 

laws involving individual leafletters and others engaged in one-to-one 

communications about ballot measures. See McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334 (1995); ACLF, 525 U.S. at 199 (striking down 

requirement that initiative petition circulators wear an identification 

badge); id. at 203 (striking down requirement that initiative proponents list 

on reports the identity of paid circulators and their income from circulation). But see Watchtower Bible & Tract Soc’y v. Vill. of Stratton, 536 U.S. 

150, 167 (2002) (noting that state “may well be justified” in requiring the 

disclosure of the identity of those involved in ballot measure campaigns to 

protect “the special state interest in protecting the integrity of a ballotinitiative process”). This body of law involving disclosure in one-to-one 

communications is not at issue in this case, which involves disclosure of 

large-scale political activity in reports filed with the government, required 

to be filed only if expenditures reach a specified monetary threshold. 
9 

ever know the source of funding unless the information was 

voluntarily disclosed. 

The disparate treatment of these otherwise identical 

advertisements stems from this Court’s discussion in Buckley 

of the FECA disclosure provisions. Section 434(e) of the 

FECA required “‘[e]very person . . . who makes contributions 

or expenditures’ . . . ‘for the purpose of . . . influencing’ the 

nomination or election of candidates for federal office” to 

disclose the source of such contributions and expenditures. 

Buckley, 424 U.S. at 77. This Court viewed the statute, as 

well as section 608(e), imposing limits on spending “relative 

to a clearly identified candidate [in federal elections],” see id. 

at 41, as presenting problems of unconstitutional vagueness 

as applied to persons other than political committees: people 

engaged in political speech might not know if the statutes 

covered their conduct. Id. at 42-44, 76-78. 

To save both statutes from unconstitutional vagueness, 

the Court construed the term “expenditures” as reaching 

only “communications that in express terms advocate the 

election or defeat of a clearly identified candidate.” Id. at 44; 

see also id. at 80. In footnote 52, id. at 44, the Court explained that such express advocacy required explicit words 

“of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ 

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote 

against,’ ‘defeat,’ [or] ‘reject.’ ” So construed, the Court upheld 

the disclosure requirements, see id. at 80-81, though it struck 

down the spending limits as violating the First Amendment 

in the absence of any compelling government interest, see id. 

at 48-49.3 

3 Notably, the Court applied this narrowing construction only with 

respect to independent expenditures by individuals and groups other than 

candidates and political committees. By contrast, and because of their 

particular importance in election campaigns, political committees (i.e., 

organizations that are under the control of a candidate or the major 

purpose of which is the nomination or election of a candidate, see Buckley, 

424 U.S. at 79), were (and are) required to file regular reports of all of their 

receipts and disbursements, including those pertaining to issue advocacy 

not directly related to election campaigns. See FEC v. Akins, 524 U.S. 11, 

(Continued on following page) 
10 


This Court in Buckley certainly recognized that its 

interpretation to avoid vagueness could allow for evasion of 

the FECA rules, see id. at 45, but neither the Court nor 

anyone else could have foreseen the extent of the evasions 

that would follow. Indeed, it was not until the 1990s that socalled “sham issue advocacy” (advertising influencing – and 

typically intended to influence – the outcome of elections but 

eschewing words of express advocacy) became a major 

feature of campaigns. Studies uncontradicted in the lower 

court have shown that approximately $135 to $150 million 

was spent on advertising referring to candidates for federal 

office but lacking words of express advocacy in the 1995-96 

election cycle. That number rose to between $230 million and 

$341 million during the 1997-98 period and over $500 million 

in the 2000 election cycle. Supp. App. 230sa-231sa (Henderson), 806sa-807sa (Kollar-Kotelly), 1306sa (Leon). Indeed, 

the uncontradicted evidence further showed that express 

words of advocacy are not necessary for effective campaign 

speech: only four to 11.4 percent of advertising funded by 

candidates includes express words of advocacy. Supp. App. 

229sa (Henderson), 659sa (Kollar-Kotelly); see also 1296sa1297sa (Leon). 

In response to the rise of electioneering communications 

lacking words of express advocacy, the Federal Election 

Commission (“FEC”) crafted a regulation stating that an 

advertisement would be considered express advocacy when, 

among other requirements, “reasonable minds could not 

differ as to whether it encourages actions to elect or defeat 

one or more clearly identified candidates.” 11 C.F.R. 

§ 100.22(b)(2) (2000). Most courts considering the constitutionality of “intent-based” tests such as the FEC regulation 

have held that they are impermissibly vague under Buckley. 

See, e.g., FEC v. Christian Action Network, 110 F.3d 1049, 

14-15 (1998). The reason for this broader requirement, the Court explained 

in Buckley, 424 U.S. at 79, is that the activities of candidates and of 

“political committees” “can be assumed to fall within the core area sought 

to be addressed by Congress” and “are, by definition, campaign related.” 
11 


1055-57 (4th Cir. 1997) (collecting cases disagreeing with 

FEC’s regulation of express advocacy through an intentbased test). See also, e.g., Elections Bd. v. Wis. Mfrs. & 

Commerce, 597 N.W.2d 721, 731 (Wis. 1999); Chamber of 

Commerce v. Moore, 288 F.3d 187, 196-98 (5th Cir. 2002). 

C. 	 This Court Should Recognize BCRA’s Bright-Line 

“Electioneering Communications” Provision as a 

Narrowly Tailored Means of Enforcing Effective 

Disclosure Laws. 

1. 	 The district court failed to distinguish between use of the bright-line test for the disclosure requirement and for the segregated 

fund requirement. 

To avoid the fate of intent-based tests in the lower 

courts, BCRA uses a newer means to require effective disclosure without raising the problem of unconstitutional vagueness. Section 201 of the law requires the filing of disclosure 

reports for those who spend at least $10,000 per year on 

“electioneering communications.” It then defines electioneering communications as “any broadcast, cable, or satellite 

communication which – (I) refers to a clearly identified 

candidate for Federal office; (II) is made within [60 days of a 

general, special or runoff election or 30 days before a primary 

or preference election]; and (III) in the case of a communication which refers to a candidate for an office other than 

President or Vice President, is targeted to the relevant 

electorate.”4

 This bright-line test is the primary definition of 

electioneering communications in BCRA. A backup definition, to be used only in the event the primary definition fails 

constitutional muster, is a test that turns on “objective” 

4 The law defines “targeted to the relevant electorate” as capable of 

reaching 50,000 or more individuals in the relevant congressional district 

or state that the candidate for the House or Senate is seeking to represent. 

See BCRA § 201. 
12 


intent, i.e., what a reasonable person would necessarily 

perceive as the purpose of the communication. See id. 

Plaintiffs’ main constitutional argument against the 

primary definition in section 201 is that it is substantially 

overbroad because it reaches too many “issue advertisements” that are, in plaintiffs’ view, constitutionally immune 

from all regulation, including but not limited to disclosure 

requirements. Two of the judges below, Judges Henderson 

and Leon, agreed with plaintiffs, while Judge Kollar-Kotelly 

rejected the overbreadth challenge. Supp. App. 864sa-865sa 

(Kollar-Kotelly). Judge Leon, joined by Judge Kollar-Kotelly, 

approved the definition under the backup provision,5 as 

modified by Judge Leon to account for a vagueness problem 

he found in the definition. Supp. App. 1159sa-1166sa (Leon); 

see also Supp. App. 885sa-886sa (Kollar-Kotelly).6 

The lower court judges’ discussion of the overbreadth 

concerns with the primary definition unfortunately sheds 

5 These judges struck down one disclosure rule, BCRA § 201(a)(5), 

“which equates contracts to make disbursements with actual disbursements requiring disclosure of contracts to make electioneering communications prior to their public dissemination,” as lacking a “relevant correlation” 

or a “substantial relation” to a legitimate governmental interest. Supp. 

App. 115sa (per curiam). We do not address the constitutionality of that 

specific provision in this brief. 

6 Judge Henderson also would have held the law “underinclusive” 

because it does not apply to print, direct mail, or internet advertisements, 

Supp. App. 364sa-366sa (Henderson). The other two lower court judges 

correctly rejected Judge Henderson’s conclusion on this issue. Supp. App. 

873sa-880sa (Kollar-Kotelly), 1159sa (Leon). This Court has recognized 

that in the context of alleged discrimination in campaign regulations, 

Congress “may take one step at a time, addressing itself to the phase of the 

problem which seems most acute to the legislative mind.” Buckley, 424 U.S. 

at 105; see also FEC v. Mass. Citizens for Life, 479 U.S. 238, 258-59 n.11 

(1986) (“MCFL”). Judge Kollar-Kotelly emphasized that broadcast ads are 

more “potent” and “effective,” Supp. App. 876sa, 878sa-879sa (KollarKotelly), and Congress acted reasonably in tackling first advertisements in 

the media presenting the most pressing need for disclosure. Indeed, by not 

covering print and the Internet, Congress has made the statute much less 

onerous than it would otherwise be. 
13 


little light on the constitutionality of BCRA’s disclosure 

provisions. In considering the constitutionality of the primary definition, the judges focused on how the bright-line 

test would extend the requirement that corporations and 

unions use segregated funds for election-related activities, 

see BCRA § 203, discussed in Part II infra. The lower court 

judges then simply applied their discussion of overbreadth in 

the segregated funds context to the disclosure context, 

without carefully distinguishing between the two. See Supp. 

App. 367sa n.149 (Henderson) (definition “would prohibit too 

much protected expression”); Supp. App. 1152sa (Leon) 

(definition “limit[s] and chill[s]” protected speech). 

This case, however, does not concern the abstract constitutionality of a definition, but the constitutionality of specific 

substantive provisions of title II of BCRA – in particular, the 

disclosure requirements of section 201 and the segregated fund 

requirement of section 203. Each of those substantive provisions must be separately analyzed on their own terms, with due 

regard paid to the distinct requirements and justifications for 

each. Overbreadth concerns that are pertinent to one provision 

are not necessarily germane to another provision. 

The disclosure rules in section 201 do not suffer from the 

concerns that troubled the lower court. They prohibit no 

political expression, and this Court’s recognition of an asapplied exemption to disclosure requirements in the Socialist 

Workers case cures any concern over chilling speech. Moreover, and as we now show, as to disclosure it is not clear that 

there is any overbreadth, much less substantial overbreadth, 

created by section 201’s primary definition. 

2. 	 The bright-line test as applied to disclosure 

regulations is not overbroad at all because 

virtually all issue ads covered by the test will 

influence federal elections. 

The judges below debated the extent to which the 

evidence showed that the bright-line test would regulate too 

much protected speech. It is true that the substantial overbreadth test includes an empirical component requiring 

consideration of the relative frequencies of valid versus 
14 


unconstitutional applications of the law. See Virginia v. 

Hicks, 123 S. Ct. 2191, 2197 (2003) (under the overbreadth 

doctrine, the Court has “insisted that a law’s application to 

protected speech be ‘substantial,’ not only in an absolute 

sense, but also relative to the scope of the law’s plainly 

legitimate applications . . . before applying the ‘strong 

medicine’ of overbreadth invalidation”) (emphasis added); 

Massachusetts v. Oakes, 491 U.S. 576, 589-90 (1989) (Scalia, 

J., concurring); see also id. at 598-99 (Brennan, J., concurring); Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (the 

question is whether the overbreadth is “not only . . . real, but 

substantial as well, judged in relation to the statute’s plainly 

legitimate sweep”). See generally Richard L. Hasen, Measuring Overbreadth: Using Empirical Evidence to Determine the 

Constitutionality of Campaign Finance Laws Targeting 

Sham Issue Advocacy, 85 Minn. L. Rev. 1773, 1781-89 (2001) 

(discussing the relevance of empirical evidence to the Court’s 

substantial overbreadth doctrine). But answering the empirical question requires first identifying unconstitutional 

applications of the law. Regarding disclosure, there are very 

few, if any, such unconstitutional applications. 

The lower court judges all agreed – and we do not 

dispute – that the bright-line test would require disclosure 

by some political actors who run advertisements that are not, 

in fact, intended to influence the outcome of a federal election. Indeed, there was considerable debate over the validity 

of two studies conducted by the Brennan Center for Justice 

aimed at measuring the extent of such “genuine” issue 

advocacy compared to issue advocacy that is in fact intended 

to influence the outcome of federal elections. Compare Supp. 

App. 762sa (Kollar-Kotelly) with Supp. App. 1154sa (Leon) 

and Supp. App. 367sa n.149 (Henderson). The two judges 

who gave the Brennan Center studies at least some evidentiary weight disagreed over whether the studies showed that 

section 201’s bright-line test covered too much “genuine” 

issue advocacy. Compare Supp. App. 858sa-860sa (KollarKotelly) with Supp. App. 1157sa (Leon). 

At least with respect to disclosure, these arguments 

miss the mark completely. Unlike the FECA disclosure 

provision discussed in Buckley, the disclosure provisions of 
15 

BCRA are not dependent upon, and do not correspond to, the 

actual or perceived intent of the parties responsible for the 

expenditures. Rather, underlying the BCRA provisions is the 

government’s recognition that “genuine” issue advertisements, when broadcast in the circumstances described in 

BCRA’s “primary” definition, will almost invariably influence 

the outcome of elections, even if they were not specifically 

intended to do so. An advertisement about pending legislation, mentioning a candidate, targeted to the relevant 

electorate, and run immediately before the election (see 

Supp. App. 1147sa-1148sa (Leon)), even if not intended to 

influence the election, is at least intended to affect some 

legislative action. And, in so doing, the advertisement almost 

always influences a federal election, thereby triggering the 

concerns underlying BCRA’s disclosure requirements. 

By adopting the bright-line test in section 201, Congress 

demonstrated that its concern is with respect to advertisements that likely will, in fact, influence federal elections, 

rather than with advertisements that are intended, in whole 

or in part, to have such effect. Thus, the primary definition is 

precisely tailored to the congressional objectives, and there is 

no overbreadth. 

3. 	 Issue advocacy is not constitutionally favored 

over election-related speech. 

Many of the plaintiffs appear to assume that “genuine” 

speech concerning legislative matters (or concerning political debates distinct from specific electoral decisions) are 

either entitled to greater First Amendment protection than 

“express” campaign-related speech, or are categorically 

immune under the First Amendment from any regulation, 

including disclosure requirements. But this assumption is 

fundamentally mistaken in both respects. 

“Express” election-related speech – such as “Vote for 

Jones” – is, of course, political expression “ ‘at the core of our 

electoral process and of the First Amendment freedoms,’ ” 

Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 393 

U.S. 23, 32 (1968)). Accordingly, such “express advocacy” is 
16 


entitled to no lesser protection than speech concerning 

“issues.” 

Moreover, issue-related speech may be subject to carefully tailored disclosure requirements. For instance, the 

lobbying of legislators is the quintessential form of “genuine” 

issue advocacy. This Court has long recognized the constitutionality of laws requiring disclosure of expenditures for 

lobbying government officials. See United States v. Harriss, 

347 U.S. 612 (1954). Disclosure is permissible to prevent 

corruption and its appearance, as well as to serve important 

informational purposes. In Harriss, the Court upheld the 

Federal Regulation of Lobbying Act, noting that through the 

Act Congress “has merely provided for a modicum of information from those who for hire attempt to influence legislation or collect or spend funds for that purpose. It wants only 

to know who is being hired, who is putting up the money, and 

how much. It acted in the same spirit as for a similar purpose in passing the Federal Corrupt Practices Act – to 

maintain the integrity of a basic governmental process.” Id. 

at 625-26. 

Indeed, this Court has recognized the informational 

interest alone as sufficient to justify disclosure in large-scale 

political activity. In Bellotti and ACLF, this Court approved 

of laws allowing the government to require disclosure of 

financial information in ballot measure campaigns where the 

possibility of candidate corruption is absent. And in Buckley 

itself, the Court approved of disclosure requirements as to all 

of a candidate’s or political committee’s disbursements, 

including those pertaining to issue advocacy not directly 

related to election campaigns. See supra note 3. 

Plaintiffs’ argument that “genuine” issue advocacy is 

constitutionally immune from disclosure regulation therefore 

is untenable. In support of that argument, plaintiffs rely 

almost entirely on a few stray words in Buckley. In discussing why the definition of “expenditure” needed to be construed narrowly for disclosure purposes in order to avoid 

vagueness concerns, this Court stated that “[t]o insure that 

the reach of § 434(e) is not impermissibly broad, we construe 

‘expenditure’ for purposes of that section in the same way as 
17 

we construed the term of § 608(e) – to reach only funds used 

for communications that expressly advocate the election or 

defeat of a clearly identified candidate.” Buckley, 424 U.S. at 

80 (footnote omitted and emphasis added). Read in context, it 

is apparent that the Court adopted the narrowing construction largely, if not entirely, in order to cure a concern over 

vagueness, not overbreadth: the discussion appeared in a 

section of the opinion entitled “Vagueness Problems,” id. at 

76, and the discussion of the constitutional problems with 

section 608(e), referenced in the discussion of section 434(e), 

clearly stated that the Court adopted its narrowing construction “to preserve the provision against invalidation on 

vagueness grounds.” Id. at 44 (emphasis added). 

To the extent the Court was addressing a problem of 

“overbreadth,” it appears to have been suggesting not that a 

broader definition of “expenditure” would reach speech 

constitutionally immune from regulation, but instead that, 

as applied to speech not expressly election-related, “the 

relation of the information sought to the purposes of the Act 

may be too remote.” Id. at 80 (emphasis added). 

Significantly, those purposes are quite different than 

BCRA’s. Under the express terms of FECA, Congress was 

concerned only with “the use of money or other objects of 

value ‘for the purpose of . . . influencing’ the nomination or 

election of any person to federal office.’ ” Id. at 63 (emphasis 

added); id. at 77. Because Congress’s objectives in FECA 

were aimed only at speech intended to influence federal 

elections, any applications of the statute to speech that was 

not so intended would have been “overbroad” relative to the 

purposes of the Act itself. 

By contrast, as we explained above, under BCRA 

Congress has not limited its concern, or the aim of its 

regulation, to speech intended to influence federal elections: 

instead, it has carefully crafted a statute to address only 

candidate-specific speech likely to influence such elections – 

and thus to bring within the scope of the Act a more comprehensive array of the speech that does, in fact, implicate 

the concerns underlying the disclosure (and segregated 
18 

fund) requirements. If Buckley were understood as holding 

that application of disclosure requirements to speech other 

than “express” advocacy is unconstitutional regardless of 

the legislature’s objectives, such a holding would have been 

flatly inconsistent with the Court’s holding in Harriss, and 

with the Court’s subsequent discussions in, e.g., Bellotti, 

Citizens Against Rent Control, and ACLF, in each of which 

the Court signaled its approval of the idea of disclosure 

requirements for “genuine” issue-related speech where such 

requirements are appropriately tailored to an important 

state interest, such as assisting voters to “evaluate the 

arguments to which they are being subjected,” Bellotti, 424 

U.S. at 792 n.32, and (in contexts where such speech may 

also affect officeholder conduct) to prevent “the appearance 

of corruption,” McIntyre, 514 U.S. at 356 n.20 (describing 

Harriss). Indeed, such a holding would have been inconsistent with Buckley’s own approval of the broad disclosure 

requirements imposed on “political committees” with 

respect to all of their disbursements. See supra note 3. 

Of course, in this case the Court need not identify the 

precise circumstances under which disclosure requirements 

may be imposed with respect to “pure” issue advocacy 

unrelated to candidate elections, such as was discussed in 

cases such as Harriss, Bellotti, and ACLF. BCRA does not 

attempt to reach lobbying speech, ballot-initiative speech, 

or any other speech that is unlikely directly to affect candidate elections. BCRA is, instead, aimed at speech that is 

likely to affect candidate elections, and thus is supported by 

additional compelling and powerful state interests that are 

not typically present in the context of, e.g., ballot referenda. 

The fact that BCRA’s bright-line test might, in some applications, apply to instances of “genuine” issue advocacy that are 

not principally intended to influence candidate elections does 

not render the statute overbroad even in those applications, 

much less substantially overbroad, because Congress has the 

power to require disclosure of basic financial information 

about the funding of broadcast advertisements that will likely 
19 

influence federal elections (regardless of intent) using a 

clear, non-vague statute. 

4. 	 Even if there is some overbreadth, it is not 

substantial. 

Even if this Court disagrees with this analysis and 

would hold that it is impermissible for Congress to require 

any disclosure of expenditures for funding “genuine” issue 

advocacy, it should still uphold section 201’s disclosure 

provisions because the provisions are not substantially 

overbroad. As this Court recently noted in Virginia v. Hicks, 

123 S. Ct. at 2197, “there are substantial costs created by the 

overbreadth doctrine when it blocks application of a law to 

constitutionally unprotected speech.” 

To be sure, the parties and judges below vigorously 

debated the amount of “genuine” issue advocacy that would 

be covered by the bright-line test. But even if as much as 

17% of the unique advertisements subject to disclosure are 

genuine issue advertisements (i.e., intended solely to influence matters other than elections) – as Judge Leon concluded was possible, Supp. App. 1157sa (Leon)7

 – the law is 

not substantially overbroad. In evaluating overbreadth, this 

Court should consider not only the empirical evidence 

regarding the extent of valid versus invalid applications of 

the law, but also qualitative factors, such as the state’s strong 

interest in legislation of this kind, legislative inability to 

craft a more narrowly tailored law and the extent of the 

burden of the law in its invalid applications. See Hasen, 

7 The 17% figure depended upon the “‘most conservative’ estimate” of 

the studies’ director, Dr. Ken Goldstein. Supp. App. 1360sa-1361sa (Leon), 

and in fact the actual percentage may be much lower. See Supp. App. 

1361sa (Leon) (Dr. Goldstein would have coded five of the six advertisements initially coded as genuine advertisements as electioneering advertisements). Judge Kollar-Kotelly, contrary to the McConnell plaintiffs’ 

misstatement, McConnell Br. at 54, emphatically did not “agree[]” with the 

17% figure. Supp. App. 859sa-860sa (Kollar-Kotelly). 
20 

supra, at 1799-1804; Richard H. Fallon, Making Sense of 

Overbreadth, 100 Yale L.J. 853, 894 (1991). 

Here, Congress had a strong reason to act. The meteoric 

rise of electioneering communications lacking words of 

express advocacy (up to half a billion dollars in the 2000 

election cycle) has threatened to undermine disclosure rules 

central to any effective set of campaign finance laws. 

In addition, Congress could not craft a more narrowly 

tailored law. In order to avoid constitutional vagueness, 

Congress used a bright-line test under which anyone with 

“[a] copy of the proposed advertisement and a calendar” may 

“make a conclusive advance determination that the ad is 

subject to regulation.” Supp. App. 803sa (Kollar-Kotelly) 

(emphasis omitted). It is hard to imagine a less vague test or 

one that could solve the problem of sham issue advocacy 

more directly. See Edward B. Foley, “Narrow Tailoring” Is 

Not the Opposite of “Overbreadth”: Defending BCRA’s Definition of “Electioneering Communications,” 2 Election L.J. 

(forthcoming Oct. 2003), available at http://www.liebertpub 

.com/elj/Foley1.pdf. 

Finally, the First Amendment burden is slight. Political 

actors who must file disclosure reports under BCRA for 

advertisements captured by the bright-line test may well be 

already filing such reports for their election-related activities 

that fund advertisements including words of express advocacy. Importantly, the disclosure rules do not prevent any 

speech, and anyone facing the threat of harassment from 

disclosure may always seek an as-applied exemption from 

disclosure under Socialist Workers. The rules will not chill 

any significant political activity. 

D. 	 If This Court Fails to Uphold BCRA’s Bright-Line 

“Electioneering Communications” Provision, All 

Effective State and Local Campaign Finance Disclosure Laws and Public Financing Laws Are in 

Jeopardy. 

As noted in Part I.B., above, state attempts to use 

intent-based tests to require disclosure of expenditures 
21 

funding issue advertisements that influence state elections 

have fared poorly in lower courts. In response, states have 

begun enacting bright-line tests similar to section 201 to 

ensure effective state campaign finance disclosure laws.8

 A 

decision by this Court striking down BCRA’s bright-line test 

would do more than call into question these nascent efforts 

by states to write effective disclosure laws, however. The law 

would also doom efforts to provide effective voluntary public 

financing of campaigns, including judicial campaigns. 

North Carolina’s recently enacted public financing 

program for judicial candidates includes a “trigger” provision 

releasing additional public financing upon the filing of 

reports indicating a certain amount of independent expenditures in support of or in opposition to a judicial candidate. 

See N.C. Gen. Stat. § 163-278.67. Such triggers cannot work 

if those supporting or opposing candidates can avoid filing 

the reports of their expenditures simply by eschewing words 

of express advocacy. Other state and local laws have similar 9 triggers for their public financing programs. 

In addition to these laws, twenty-five states and the 

District of Columbia have laws that require disclosure of 

expenditures funding grassroots lobbying.10 These laws too 

8 See, e.g., Cal. Gov’t Code § 85310 (West Supp. 2003); Conn. Gen. 

Stat. § 9-333c(a)(2) (2003); Vt. Stat. Ann. tit. 17 § 2883 (2002); Wis. Stat. 

§ 11.12(6) (2002); id. § 11.01(16)(a). 

9 See, e.g., Ariz. Rev. Stat. § 16-952 (2003); Me. Rev. Stat. Ann. tit. 21-

A, § 1125(9) (2002); Austin, Tex., City Code § 2-9-12 (2003); L.A., Cal. 

Municipal Code § 49.7.14 (2003). 

10 See Alaska Stat. §§ 24.45.011, .051 (2002); Ark. Code Ann. §§ 21-8-

402, -601 (Michie 2003); Cal. Gov’t Code § 82045(e) (West. Supp. 2003); 

Colo. Rev. Stat. §§ 24-6-301, -302 (2002); Conn. Gen. Stat. §§ 1-91(k), -94, 

-96 (2003); D.C. Code Ann. § 1-1105.01 (2003); Ga. Code Ann. §§ 21-5-70, 

-71, -73 (2003); Haw. Rev. Stat. §§ 97-1 to -3 (2003); Idaho Code §§ 67-6602, 

-6617, -6619 (Michie 2003); Ind. Code Ann. §§ 2-7-1-9, -2-1, -3-3 (Michie 

2003); Kan. Stat. Ann. §§ 46-225, -268 (2002); Md. Code Ann., State Gov’t 

§§ 15-701, -704 (2003); Mich. Comp. Laws §§ 4-415, -418 (2003); Minn. Stat. 

Ann. §§ 10A.01, .03, .04 (2002); Miss. Code Ann. §§ 5-8-3, -9 (West 2003); 

Mont. Code. Ann. § 5-7-102 (2002); Neb. Rev. Stat. § 49-1433 (2002); Nev. 

(Continued on following page) 
22 

could be subject to challenge should this Court strike down 

the electioneering provisions of BCRA on grounds that the 

government may not require disclosure of expenditures 

likely to influence government action. 

II. 

THIS COURT SHOULD AFFIRM THE CONSTITUTONALITY OF NARROWLY TAILORED LAWS REQUIRING CORPORATIONS AND UNIONS TO USE A 

SEGREGATED FUND FOR COMMUNICATIONS 

THAT INFLUENCE ELECTIONS. 

A. 	This Court Has Recognized the Compelling 

Interests Served by Limits on Excessive Corporate and Union Involvement in the Electoral 

Process. 

Since 1947, federal law has required corporations and 

unions to establish and administer segregated accounts for 

the purpose of making political contributions and expenditures using funds collected from stockholders, members, 

executive and administrative personnel, and their families. See 2 U.S.C.A. § 441b (West 1997 & Supp. 2003). 

Section 203 of BCRA extends that segregated fund requirement to “electioneering communications” defined in 

section 201. Section 203 is consistent with a long tradition 

of congressional and state attempts to limit undue corporate and union involvement in elections, and is constitutional. 

In FEC v. Beaumont, 123 S. Ct. at 2205-08, this Court 

set forth a detailed “historical prologue” tracing a “century 

Rev. Stat. § 218.912 (2002); N.M. Stat. Ann. §§ 2-11-2, -6 (Michie 2002); N.Y. 

Legis. Law §§ 1-c, -j (McKinney 2003); Or. Rev. Stat. §§ 171.725, .745 

(2001); 65 Pa. Cons. Stat. §§ 1303, 1305 (2002); Vt. Stat. Ann. tit. 2, §§ 261, 

264 (2003); Va. Code Ann. §§ 2.2-419, -426 (Michie 2003); Wash. Rev. Code 

§ 42.17.200 (2003); W. Va. Code § 6B-3-5 (2003). 
23 

of congressional efforts to curb corporations’ potential 

‘deleterious influences on federal elections.’ ” Id. at 2205 

(quoting United States v. Auto. Workers, 352 U.S. 567, 585 

(1957)). The Court explained that federal law in this area 

began with the 1907 Tillman Act, followed by “periodic 

amendment . . . meant to strengthen the original, core 

prohibition on direct corporate contributions.” Id. at 2206. 

While not mentioned in Beaumont, state efforts to limit 

excessive corporate involvement in the electoral process 

date back even further, to 1891.11 

This Court has consistently supported special rules for 

corporation and labor union involvement in candidate 

elections. Id. at 2200 (upholding federal corporate contribution limitations applied to nonprofit ideological corporations); 

Austin, 494 U.S. at 669 (upholding Michigan requirement 

that corporations spend money on state candidate elections 

only through a segregated fund); FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197 (1982) (“NRWC”) (upholding federal 

requirement that corporations without shareholders restrict 

solicitations for segregated PACs to “members” of corporation). 

This Court has recognized four interests that justify 

limits on corporate and union contributions and expenditures, three of which are relevant to BCRA § 203.12 

(1) Preventing Corruption and the Appearance of 

Corruption. This Court has long recognized that “substantial 

aggregations of wealth amassed by the special advantages 

11 See Ky. Const. § 150; Act of June 2, 1891, ch. 4538, §§ 1-2, 1891 Fla. 

Laws 72, 72; Act of Apr. 19, 1905, ch. 291, § 1, 1905 Minn. Laws 436, 436; 

Act of Apr. 3, 1897, ch. 19, § 1, 1897 Neb. Laws 185, 185; Act of Apr. 6, 1911, 

ch. 109, § 1, 1911 N.H. Laws 113, 113; Act of Feb. 5, 1907, ch. 121, 1907 

N.C. Sess. Laws 134; Act of May 29, 1908, ch. 31, art. 1, art. VII, § 9, 1907-

1908 Okla. Sess. Laws 316, 348; Act of Apr. 5, 1897, ch. 18, § 1, 1897 Tenn. 

Pub. Acts 143, 143; Act of June 21, 1905, ch. 492, § 1, 1905 Wis. Laws 869, 

869; Act of Feb. 17, 1911, ch. 41, § 10, 1911 Wyo. Sess. Laws 50, 53. 

12 The fourth interest is preventing circumvention of valid contribution 

limits, see Beaumont, 123 S. Ct. at 2207. 
24 

which go with the corporate form” may become “converted 

into political war chests which could be used to incur political 

debts from legislators.” Beaumont, 123 S. Ct. at 2206 (quoting NRWC, 459 U.S. at 207, internal quotations omitted). No 

doubt, these “war chests” raise the possibility of corruption 

and the appearance of corruption as to campaign contributions by corporations and unions. In Bellotti, 435 U.S. at 788 

n.26, this Court explicitly recognized that such war chests 

raise the same dangers as to expenditures as well: “Congress 

might well be able to demonstrate the existence of a danger 

of real or apparent corruption in independent expenditures 

by corporations to influence candidate elections.”

13 

(2) Preventing the Corrosive Effect of Corporate Wealth 

on Politics. In Austin, this Court held that a limit on corporate expenditures was justified by “the corrosive and distorting effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form and that 

have little or no correlation to the public’s support for the 

corporation’s political ideas” but that result from “unique 

state-conferred” benefits. Austin, 494 U.S. at 660. 

(3) Shareholder and Union Member Protection. In 

NRWC, 459 U.S. at 208, this Court recognized that the 

segregated fund requirement protects individuals “who have 

paid money into a corporation or union for purposes other 

than the support of candidates from having that money used 

to support political candidates to whom they may be opposed.” See also Beaumont, 123 S. Ct. at 2206; United States 

v. Congress of Indus. Org., 335 U.S. 106, 113 (1948). 

13 In the later Austin case, this Court did not determine whether or 

not this interest justified the segregated fund requirement for corporate 

expenditures on express advocacy. See Austin, 494 U.S. at 659 (“Regardless 

of whether this danger of ‘financial quid pro quo’ corruption . . . may be 

sufficient to justify a restriction on independent expenditures . . . ”) 

(emphasis added). 
25 


B. 	 In Recent Years, Corporations and Unions Have 

Been Able to Skirt the Limits on Involvement in 

the Electoral Process by Eschewing Express 

Words of Advocacy. 

As explained in Part I.B, interpretations of the Court’s 

Buckley opinion have allowed corporations and unions to 

skirt limits on their involvement in the electoral process 

by eschewing words of express advocacy. Corporations and 

unions have made millions of dollars of “soft money” 

contributions to political parties to fund election advertisements that avoid words of express advocacy. See, e.g., Supp. 

App. 1284sa (Leon). They also have spent millions more on 

independent expenditures lacking such words. Supp. App. 

1316sa-1317sa (Leon). The result is a gutting of the longstanding segregated fund requirement of 2 U.S.C.A. § 441b. 

C.	 This Court Should Recognize BCRA’s Bright-Line 

“Electioneering Communications” Provision as a 

Narrowly Tailored Means of Limiting Corporate 

and Union Involvement in the Electoral Process. 

Congress sought to deal with the evisceration of the 

controls on corporate and union involvement in the political 

process by extending the segregated fund requirement to 

electioneering communications as defined under the bright-line 

test of BCRA section 201. The government’s interests in limiting corporate or union contributions and expenditures apply 

equally whether or not an advertisement that is intended or 

likely to influence the outcome of elections includes words such 

as “Vote for Jones.” The provision merely insures that the 

existing federal segregated fund requirement is effective. 

The connection between corruption – and the appearance of corruption – and corporate and union contributions to 

fund issue advertisements is obvious: large contributions can 

create political debts for legislators. In addition, the evidence 

presented below shows that corporate and union war chests 

also raise the possibility of corruption and the appearance of 

corruption as to independent expenditures. Judge KollarKotelly detailed how federal candidates and political parties 
26 

“know and appreciate who runs candidate-centered issue 

advertisements in their races.” Supp. App. 708sa-719sa (KollarKotelly) (capitalization altered). No other judges made contrary 

findings. 

BCRA’s legislative change is simply the most recent of 

what this Court recognized are “periodic amendment[s] [to 

congressional laws regulating corporate political activity] . . . 

meant to strengthen the original core prohibition on direct 

corporate contributions.” Beaumont, 123 S. Ct. at 2206. As 

this Court has done in its other recent campaign finance 

cases, it should show “respect for the ‘legislative judgment 

that the special characteristics of the corporate structure 

require particularly careful regulation.’ ” Id. at 2207 (quoting 

NRWC, 459 U.S. at 209-10). 

Two of the lower court judges in this case rejected 

application of the bright-line test to the segregated fund 

limitation on corporate and union involvement in the electoral process on the ground that it “would prohibit too much 

protected expression.” Supp. App. 367sa n.149 (Henderson); 

see also Supp. App. 1152sa (Leon). 

This analysis misses the mark. As this Court explained 

in Beaumont, 123 S. Ct. at 2211, the segregated fund requirement should not be “characteriz[ed] . . . as a complete ban. . . . 

[T]he section ‘permits some participation of unions and corporations in the federal electoral process by allowing them to 

establish and pay the administrative expenses of [PACs].’ ” 

Nor is the law substantially overbroad. As explained in 

Part I.C., supra, “genuine” issue advertisements that must 

be funded through segregated funds under the new law, even 

if not intended to influence the outcome of elections, are 

intended to influence government decisions and in fact will 

almost inevitably – however intended – influence the outcome 

of elections if made under the circumstances described in 

BCRA’s bright-line definition. The AFL-CIO acknowledges 

this point in its brief. AFL-CIO Br. at 21 (AFL-CIO broadcast 

advocacy “certainly might ‘affect,’ or be perceived to ‘affect,’ 

elections in the sense of influencing the electoral issue 

climate, forcing candidates to address union priority matters, 

informing the public and generating popular pressure on 
27 

candidates to embrace particular policies. In turn, the labor 

movement’s impact on public policy is only enhanced when 

electoral considerations motivate office-holders”). 

Three of the same interests that this Court has recognized for limiting corporate and union attempts to influence 

elections through express advocacy apply as well to the government’s interest in limiting excessive corporate and labor 

influence over the outcome of elections, whatever the intention 

of the corporations and unions paying for the advertisements. 

Large amounts of corporate and union spending referring to a candidate for federal office and broadcast around 

the time of elections raise at least the appearance of corruption in voters’ minds, not to mention the threat of actual 

corruption. The concern is neither novel nor implausible. Cf. 

Shrink Mo., 528 U.S. at 391. 

In addition, limiting the corrosive effect on elections of 

immense aggregations of wealth that are accumulated as a 

result of unique state-conferred privileges and benefits – an 

interest this Court found sufficiently compelling to justify a 

segregated fund requirement in Austin – applies equally 

whether or not a corporation or labor union intends to 

influence an election so long as large spending is likely to 

have that effect. Nor does that corrosive effect depend upon 

the presence of “express advocacy.” 

Importantly, plaintiffs in this case have not challenged 

the holding in Austin that the “corrosive effect” of immense 

aggregations of wealth through the corporate form justifies 14 regulating corporate express advocacy. Cf. Beaumont, 123 

S. Ct. at 2212 (Kennedy, J., concurring) (declining to reconsider distinction between contributions and expenditures 

because the issue was not presented for review). The question 

14 The closest the plaintiffs come in their opening briefs to challenging 

Austin is the discussion of the media exemption in the National Rifle 

Association Br. at 47-48. The NRA does not attack Austin’s central holding 

on the corrosive effects of corporate wealth, but rather raises an equal 

protection attack based on BCRA’s exemption of media corporations from 

the electioneering communications regulations. 
28 

then should be simply whether the same “corrosive effect” 

rationale for limits on corporate express advocacy applies as 

well to corporate and union advertisements lacking words of 

express advocacy but likely to influence the outcome of 

elections. It certainly does apply in that context, and plaintiffs offer no arguments to the contrary.

15 See Foley, supra, 2 

Election L.J. (temporary pages 12-15). 

Similarly, the government’s interest in corporate shareholder and union feeholder protection applies equally whether 

or not an advertisement funded with shareholder or union 

member funds contains words of express advocacy. Cf. Lehnert 

v. Ferris Faculty Ass’n, 500 U.S. 507, 521-22 (1991) (plurality 

opinion) (state may not compel its employees to subsidize 

legislative lobbying or other political union activities, including “discussion[s] of governmental affairs,” outside the 

limited context of contract ratification or implementation). 

Even if this Court were to hold that the government 

may not require unions and corporations to pay for broadcast 

advertisements through a segregated fund when the corporation or union does not intend to influence the outcome of 

elections and uses no words of express advocacy, the law is 

not substantially overbroad. The vast majority of candidatespecific issue advertisements that are broadcast to the 

relevant electorate in the period immediately before the 

election are intended to influence the outcome of federal 

elections. See Supp. App. 1315sa-1325sa (Leon); Supp. App. 

678sa-708sa (Kollar-Kotelly). In addition, as noted in Part I.C., 

in evaluating overbreadth, this Court should consider not only 

the empirical evidence regarding the extent of valid versus 

15 MCFL is not to the contrary. In MCFL, this Court referred to the 

overbreadth language in Buckley, characterizing its construction of the 

express advocacy provision in Buckley as a means to “avoid problems of 

overbreadth.” MCFL, 479 U.S. at 248. As explained above, Buckley found 

overbreadth in the context of the FECA’s purposes. In contrast, in this case 

there is no overbreadth in the context of BCRA’s purpose to control 

excessive corporate and union influence over the electoral process, 

whatever the intention of the corporate or union advertisers. 
29 

invalid applications of the law, but also qualitative factors, such 

as the state’s strong interest in legislation of this kind, legislative inability to craft a more narrowly tailored law, and the 

extent of the burden of the law in its invalid applications. 

Here, the government has a strong and longstanding 

interest in regulating corporate and union involvement in 

the electoral process; the government has no ability to craft a 

more narrowly tailored law that will materially address what 

this Court in Austin identified as the government’s compelling 

interests; and the law requires only the use of a segregated 

fund – no speech is banned. The burden is particularly slight 

in the case of corporate activities. As this Court recently noted 

in the context of a corporate contribution ban, “[a] ban on 

direct corporate contributions leaves individual members of 

corporations free to make their own contributions, and deprives the public of little or no material information.” Beaumont, 123 S. Ct. at 2210 n.8. The same may be said of the 

segregated fund requirement: it leaves individual members of 

corporations free to make their own contributions or expenditures (including to the segregated fund), and deprives the 

public of little or no material information.16 

D. 	 If This Court Fails to Uphold BCRA’s Bright-Line 

“Electioneering Communications” Provision, State 

and Local Government Will Be Unable to Enact Effective Laws Limiting Corporate and Union Involvement in the Political Process. 

At least fourteen states impose segregated fund 

requirements on corporations, unions, or both types of 

16 The ACLU, NRA, and NRLC all argue that the Austin rationale 

should not apply to these organizations because they are ideological 

corporations. Those arguments are best addressed by the Court in the 

context of considering the proper scope of the MCFL exception to the law. 

They are not a reason to strike down the segregated fund requirement as 

applied to for-profit corporations such as General Motors or Exxon-Mobil or 

unions such as those comprising the AFL-CIO. 
30 

entities.17 A number of cities have similar requirements.18 If 

this Court fails to uphold BCRA’s bright-line electioneering 

provision to the segregated fund requirements on the federal 

level, these states and municipalities will not be able to craft 

effective laws limiting corporate or union involvement in the 

political process. The laws will become a dead letter, thereby 

undoing historical practice going back many decades. 

CONCLUSION 

For the foregoing reasons, we urge this Court to affirm 

the constitutionality of the electioneering provisions of 

sections 201 and 203 of the BCRA. 

July 28, 2003 

Respectfully submitted, 

RICHARD L. HASEN 

Counsel of Record 

919 South Albany Street 

Los Angeles, California 90015 

(213) 736-1466 

Attorney for Amicus Curiae 

17 Ariz. Rev. Stat. §§ 16-919, 920 (2003); Conn. Gen. Stat. § 9-333o, p 

(2003); Mich. Comp. Laws §§ 169.254, 169.255 (2003); Mont. Code Ann. 

§ 13-35-227 (2002); N.Y. Elec. Law § 14-116 (McKinney 2003); N.C. Gen. 

Stat. § 163-278.19 (2002); Ohio Rev. Code Ann. §§ 3599.03, 3517.082 (West 

2002); Okla. Stat. tit. 21, § 187.2 (2003); 25 Pa. Cons. Stat. § 3253 (West 

2003); R.I. Gen. Laws §§ 17-25-10.1(h), -15 (2002); S.D. Codified Laws § 12-

25-2 (Michie 2002); Tex. Elec. Code Ann. §§ 253.094, .100 (2003); W. Va. 

Code § 3-8-8 (2003); Wis. Stat. § 11.38 (2002). 

18 For example, a number of California cities have such requirements. 

See Berkeley, Cal., Municipal Code § 2.12.440 (2003); Chula Vista, Cal., 

Municipal Code § 2.52.060 (2001); Coronado, Cal., Municipal Code § 1.84.40 

(2003); Poway, Cal., Municipal Code § 2.28.030(B)(1) (2002); San Diego, 

Cal., Municipal Code § 27.2947 (2003); San Diego County, Cal., Municipal 

Code tit. 3, div. 2, ch. 9, § 32.924 (2002); Santee, Cal., Municipal Code 

§ 2.40.070 (2002); Scotts Valley, Cal., Municipal Code § 2.60.040 (2003).