No.

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, ET AL., APPELLANTS

v.

SENATOR MITCH MCCONNELL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

STEPHEN E. HERSHKOWITZ

DAVID KOLKER

Assistant General Counsels

Federal Election

Commission

Washington, D.C. 20463

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MALCOLM L. STEWART

GREGORY G. GARRE

Assistants to the Solicitor

General

DOUGLAS N. LETTER

JAMES J. GILLIGAN

MICHAEL S. RAAB

DANA J. MARTIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514–2217
(I)

QUESTIONS PRESENTED

In March 2002, the President signed into law the

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

L. No. 107-155, 116 Stat. 81. BCRA is designed to

address various abuses associated with the financing of

federal election campaigns and thereby protect the integrity of the federal electoral process. The questions

presented are as follows:

1. Whether the limitations on political parties imposed by 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 of BCRA are constitutional.
II

PARTIES TO THE PROCEEDINGS

This jurisdictional statement is filed on behalf of the

following appellants: 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. Those parties were defendants in the district

court (current FEC Commissioners Weintraub and

Toner replaced former Commissioners Karl J. Sandstrom and Darryl R. Wold, who were originally named

as defendants).

The following parties were intervenor-defendants in

the district court: Senator John McCain; Senator

Russell Feingold; Representative Christopher Shays;

Representative Martin Meehan; Senator Olympia

Snowe; and Senator James Jeffords.

The following parties were plaintiffs in the district

court: Senator Mitch McConnell; Representative Bob

Barr; 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;

Center for Individual Freedom; Christian Coalition of

America, Inc.; Club for Growth, Inc.; Indiana Family

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

National Right to Life Educational Trust Fund; National Right to Life Political Action Committee; National Right to Work Committee; 60 Plus Association,

Inc.; Southeastern Legal Foundation, Inc.; U.S. d/b/a

ProENGLISH; Martin Connors; Thomas E. McInerney;

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

Wendy 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 Orga-
IV

nizers 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 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; Representative

Earl F. Hilliard; and National Association of Broadcasters.
(V)

TABLE OF CONTENTS

Page

Opinions below ............................................................................... 1

Jurisdiction ...................................................................................... 1

Constitutional and statutory provisions involved ................... 1

Statement ........................................................................................ 2

The questions presented are substantial .................................. 20

Conclusion ....................................................................................... 29

Appendix A ..................................................................................... 1a

Appendix B ..................................................................................... 7a

Appendix C ..................................................................................... 9a

Appendix D ..................................................................................... 10a

Appendix E ..................................................................................... 14a

TABLE OF AUTHORITIES

Cases:

Austin v. Michigan Chamber of Commerce, 494 U.S.

652 (1990) ................................................................................. 24

Buckley v. Valeo, 424 U.S. 1 (1976) .......................... 2, 3, 7, 10

CBS v. FCC, 453 U.S. 367 (1981) ......................................... 28

Colorado Republician Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) ............................................................ 13, 14

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) ....................................................... 2, 14, 23

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

238 (1986) ....................................................................... 10, 14, 24

FEC v. National Right to Work Comm., 459 U.S. 197

(1982) ......................................................................... 2, 3, 5, 12, 20

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ............. 20

Miller v. FCC, 66 F.3d 1140 (11th Cir. 1995), cert.

denied, 517 U.S. 1155 (1996) ................................................ 15

Pipefitters Local Union No. 562 v. United States,

407 U.S. 385 (1972) ................................................................ 2, 5

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) .... 28
VI

Cases—Continued: Page

United States v. Automobile Workers, 352 U.S. 567

(1957) ........................................................................... 2-3, 4, 5, 20

United States v. CIO, 335 U.S. 106 (1948) ......................... 3

United States v. Lanier, 520 U.S. 259 (1997) .................... 26

Constitution, statutes and regulations: Page

U.S. Const.:

Art. I, § 4, Cl. 1 ....................................................................... 1

Amend. I ............................................................... 1, 14, 16, 20, 28

Amend. V ................................................................................ 1, 16

Amend. X ................................................................................ 2, 16

Amend. XXVI ........................................................................ 28

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81 .............................................................. 2

Tit. I, 116 Stat. 82 .............................................................. 7, 17

§ 101(a) .................................................................. 7, 22, 23

§ 101(b) ............................................................. 9, 17, 21, 22

§ 102 ............................................................................... 4

Tit. II, 116 Stat. 88 ............................................. 10, 11, 13, 18

§ 201 ............................................................................... 26

§ 201(a) ................................................................ 11, 12, 26

§ 203 ........................................................................... 11, 26

§ 213 ..................................................................... 14, 17, 27

§ 214(a) .......................................................................... 14

§ 214(b) .......................................................................... 14

§ 214(c) .......................................................................... 14

Tit. III, 116 Stat. 95:

§ 305 ............................................................................... 15

§ 305(a)(3) ..................................................................... 15

§ 307 ............................................................................... 4

§ 307(d) .......................................................................... 4

§ 318 ..................................................................... 15, 17, 19

§ 319 ............................................................................... 28

Tit. IV, 116 Stat. 112:

§ 403(a) .......................................................................... 16

§ 403(a)(3) ..................................................................... 2, 20
VII

Statutes and regulations—Continued: Page

§ 403(a)(4) ..................................................................... 20

Tit. V, 116 Stat. 114:

§ 504 ................................................... 15, 16, 17, 20, 28, 29

Communications Act of 1934, 47 U.S.C. 151 et seq.:

47 U.S.C. 315 .......................................................................... 15

47 U.S.C. 315(b)(1) ................................................................. 15

47 U.S.C. 315(b)(2)(A) ........................................................... 15

47 U.S.C. 315(b)(2)(C) ........................................................... 15

47 U.S.C. 315(b)(2)(D) ........................................................... 15

47 U.S.C. 315(e)(1) ................................................................. 16

47 U.S.C. 315(e)(2) ................................................................. 16

Federal Corrupt Practices Act, 1925, ch. 368, 43 Stat.

1070:

§ 302, 43 Stat. 1071 ............................................................ 4

§ 318, 43 Stat. 1074 ............................................................ 4

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. ........................................................................................ 3

2 U.S.C. 431:

§ 301(20)(A)(i) .............................................................. 22

§ 301(20)(A)(i)-(iv) ....................................................... 9, 22

§ 301(20)(A)(ii) ............................................................. 22

§ 301(20)(A)(iii) ............................................................ 17

§ 301(20)(A)(vi) ............................................................ 22

2 U.S.C. 431(4)(B) (2000) .................................................. 12

2 U.S.C. 431(8)(A)(i) (2000) ............................................. 6

2 U.S.C. 431(9)(A)(ii) (2000) ............................................ 27

2 U.S.C. 431(9)(B)(iii) (2000) ........................................... 12

2 U.S.C. 432-434 (2000) .................................................... 5

2 U.S.C. 434:

§ 304(f )(1)-(2) ............................................................... 12

§ 304(f )(3) ...................................................................... 11

§ 304(f )(3)(A)(ii) ....................................................... 11, 26

§ 304(f )(5) ............................................................ 13, 26, 27

2 U.S.C. 434(c) (2000) ....................................................... 10

2 U.S.C. 437c(b)(1) (2000) ................................................ 5

2 U.S.C. 437d(a) (2000) ..................................................... 5
VIII

Statutes and regulations—Continued: Page

2 U.S.C. 437g (2000) .......................................................... 5

2 U.S.C. 441a(a) (2000) ..................................................... 14

2 U.S.C. 441a(a)(1) (2000) ................................................ 4

2 U.S.C. 441a(a)(1)-(4) (2000) .......................................... 4

2 U.S.C. 441a(a)(2)(A) (2000) .......................................... 13

2 U.S.C. 441a(a)(7)(B)(i) (2000) ....................................... 13

2 U.S.C. 441a(c) (2000) ..................................................... 13

2 U.S.C. 441a(d) (2000) ........................................ 4, 13, 14, 27

2 U.S.C. 441a(d)(2)-(3) (2000) .......................................... 13

2 U.S.C. 441b (2000) .................................................. 4, 10, 24

2 U.S.C. 441b(b)(2) (§ 316(b)(2)) ................................. 11, 12

2 U.S.C. 441b(b)(2)(C) (2000) .......................................... 12

2 U.S.C. 441(b)(4) (2000) .................................................. 12

2 U.S.C. 441i:

§ 323(a) .......................................................................... 21

§ 323(a)(1) ..................................................................... 7, 8

§ 323(b) .......................................................................... 8, 21

§ 323(b)(1) ..................................................................... 8, 22

§ 323(b)(2) ..................................................................... 9

§ 323(d) .......................................................................... 9, 23

§ 323(e)(1)(A) ................................................................ 9

§ 323(e)(1)(B) ................................................................ 9

§ 323(e)(2)-(4) ............................................................... 10

§ 323(f) ........................................................................... 10

Internal Revenue Code:

26 U.S.C. 501(c) ...................................................................... 9

26 U.S.C. 527 ........................................................................... 9

Smith Connally Act, ch. 144, § 9, 57 Stat. 167-168 .............. 4

Taft-Hartley Act of 1947, § 304, ch. 120, 61 Stat. 159 ......... 4

Tillman Act, ch. 420, 34 Stat. 864-865 .................................... 4

11 C.F.R. (2002):

Section 104.11(b) (2003) ......................................................... 27

Section 106.5 ........................................................................... 6

Section 106.5(a)(2)(i) .............................................................. 6

Section 106.5(a)(2)(iv) ........................................................... 6

Section 106.5(b) ...................................................................... 6
IX

Regulations—Continued: Page

Section 106.5(c) ....................................................................... 6

Section 106.5(d) ...................................................................... 7

Section 110.7(b)(3) ................................................................. 14

Section 114.10(c) .................................................................... 24

Section 114.10(d)(2) ............................................................... 24

47 C.F.R.:

Section 73.1212(e) .................................................................. 28

Section 73.1943 ....................................................................... 28

Section 76.1701 ....................................................................... 28

Section 76.1701(d) ................................................................ 29

Miscellaneous:

147 Cong. Rec. S3251 (daily ed. Apr. 2, 2001) ...................... 8

67 Fed. Reg. 65,211 (2002) ....................................................... 24
(1)

In the Supreme Court of the United States

No.

FEDERAL ELECTION COMMISSION, ET AL., APPELLANTS

v.

SENATOR MITCH MCCONNELL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinions of the district court are not yet

reported. See App., infra, 9a.

JURISDICTION

The judgment of the district court was entered on

May 2, 2003. Notices of appeal (App., infra, 1a-6a, 7a8a) were filed by the Federal Election Commission on

May 2, 2003, and by the other appellants on May 5,

2003. The jurisdiction of this Court is invoked under

the Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, § 403(a)(3), 116 Stat. 113-114.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article I, Section 4, Clause 1 of the United States

Constitution is reproduced at App., infra, 10a.

2. The First Amendment to the United States Constitution is reproduced at App., infra, 11a.

3. The Fifth Amendment to the United States Constitution is reproduced at App., infra, 12a.
2

4. The Tenth Amendment to the United States

Constitution is reproduced at App., infra, 13a.

5. The Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81, is reproduced at App.,

infra, 14a-49a.

STATEMENT

This case presents a facial challenge to the constitutionality of the Bipartisan Campaign Reform Act of

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81. A

three-judge panel of the District Court for the District

of Columbia held that several provisions of BCRA

violate the First Amendment to the Constitution.

Congress has vested this Court with direct appellate

jurisdiction over the district court’s decision. See

BCRA § 403(a)(3).

1. “[T]he history of federal campaign finance regulation, having its origins in the Administration of

President Theodore Roosevelt, is a long-standing and

recurring problem that has challenged our government

for nearly half of the life of our Republic.” Per Curiam

op. 16; see Kollar-Kotelly op. 6 (“over the course of the

last century, the political branches have endeavored to

protect the integrity of federal elections with carefully

tailored legislation addressing corruption or the appearance of corruption inherent in a system of donor-financed campaigns”). This Court has previously canvassed the history of such regulation and has repeatedly recognized Congress’s authority to protect the

integrity of federal elections and prevent corruption of

federal office-holders. See, e.g., FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001)

(Colorado II); FEC v. National Right to Work Comm.,

459 U.S. 197 (1982) (NRWC); Buckley v. Valeo, 424 U.S.

1 (1976) (per curiam); Pipefitters Local Union No. 562

v. United States, 407 U.S. 385 (1972); United States v.
3

Automobile Workers, 352 U.S. 567 (1957); United States

v. CIO, 335 U.S. 106 (1948). In particular, Congress has

sought to eliminate the actual and apparent corruption

associated with unrestricted political fundraising and

spending, in order “to sustain the active, alert

responsibility of the individual citizen in a democracy

for the wise conduct of government.” Automobile

Workers, 352 U.S. at 575; see NRWC, 459 U.S. at 208-

209.

As the district court explained (Per Curiam op. 16-

42), the history of Congress’s efforts to ensure the

integrity of the federal electoral process has followed a

pattern of congressional action to respond to particular

electoral abuses; attempts by those in the regulated

community to circumvent the limitations established by

the applicable regulatory scheme; and congressional

action to “plug [an] existing loop-hole.” Automobile

Workers, 352 U.S. at 582. After years of deliberation

and debate, Congress enacted BCRA in response to

“burgeoning problems with federal campaign finance

laws.” Per Curiam op. 42. In crafting that legislation,

Members of Congress drew upon their own unique

experience and familiarity with the problems to which

BCRA is addressed as central participants in the federal campaign system.

2. a. BCRA amends the Federal Election Campaign

Act of 1971 (FECA), 2 U.S.C. 431 et seq., which regulates the financing of federal election campaigns.

FECA was intended to reduce “the actuality and appearance of corruption” resulting from the “opportunities for abuse inherent in a regime of large individual

financial contributions.” Buckley, 424 U.S. at 26-27.

Before BCRA was enacted, FECA’s central features

included limitations on the amounts that individuals and

political committees could contribute to candidates for
4

federal office, political party committees, and independent political committees. See 2 U.S.C. 441a(a)(1)-(4),

441a(d) (2000).1

 FECA also continued in effect longstanding prohibitions against the use of general treasury funds by corporations and labor unions for the

purpose of influencing federal elections. See 2 U.S.C.

441b (2000).2 In addition, FECA included a variety of

 1 Before BCRA was enacted, individuals were permitted to

contribute up to $20,000 to any national political party committee

and up to $5000 to any other political committee in any calendar

year, and up to $1000 per election to any candidate for federal

office, with an overall annual limit of $25,000 by any contributor. 2

U.S.C. 441a(a)(1) (2000). Under BCRA, those limits have been

increased to $25,000 per year to any national political party committee, $10,000 per year to any state party committee, and $2000

per election to any federal candidate. See BCRA §§ 102, 307. The

overall annual limit is now $37,500 per election cycle for contributions to candidates and $57,500 for other contributions (of which

not more than $37,500 may be attributable to contributions to

political committees that are not national party committees). See

BCRA § 307. BCRA also provides that most of the current contribution limits are indexed for inflation. See BCRA § 307(d);

Henderson op. 339. One set of plaintiffs in this litigation challenged the constitutionality of the increased contrbution limits, but

the district court held that the plaintiffs lacked standing. See Per

Curiam op. 11, 15; Henderson op. 338-342.

2 In 1907, Congress first prohibited any corporation from making a “money contribution” in connection with federal elections.

Tillman Act, ch. 420, 34 Stat. 864-865. Congress later extended the

prohibition on corporate contributions to “anything of value.”

Federal Corrupt Practices Act, 1925 (FCPA), ch. 368, §§ 302, 318,

43 Stat. 1071, 1074. The FCPA also made it a crime for a candidate

to accept corporate contributions. 43 Stat. 1074. In 1943, temporary wartime legislation extended the proscription against corporate campaign contributions to labor organizations. Smith-Connally Act, ch. 144, § 9, 57 Stat. 167-168; see Automobile Workers,

352 U.S. at 578. The Taft-Hartley Act of 1947, ch. 120, § 304, 61

Stat. 159, again amended the FCPA “to proscribe any ‘expenditure’ as well as ‘any contribution’ [and] to make permanent [the
5

recordkeeping and disclosure requirements that were

intended to inform the electorate, deter corruption, and

facilitate detection of violations of the contribution and

expenditure limits. See 2 U.S.C. 432-434 (2000).

Congress also established the Federal Election

Commission (FEC) to administer and enforce FECA.

See generally 2 U.S.C. 437c(b)(1), 437d(a), 437g (2000).

b. “In the area of campaign finance regulation,

congressional action has been largely incremental and

responsive to the most prevalent abuses or evasions of

existing law at particular points in time.” KollarKotelly op. 6; see Per Curiam op. 16-42 (reviewing Congress’s incremental approach to campaign-finance regulation); NRWC, 459 U.S. at 209 (discussing Congress’s “cautious,” “step by step” approach). In enacting BCRA, Congress sought principally to address

(1) the acceptance and use by political parties of “soft

money” (i.e., money raised outside the framework of

FECA’s disclosure requirements and source and

amount limits) for the purpose of influencing federal

elections; and (2) the growing use of corporate and

union general treasury funds for communications

designed to influence, and generally known to influence,

the outcome of federal elections. “Broadly speaking,

Title I [of BCRA] attempts to regulate political party

use of nonfederal funds, while Title II seeks to prohibit

 FCPA’s] application to labor organizations.” Automobile Workers,

352 U.S. at 582-583. FECA permitted corporations and unions to

establish and administer separate, 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 Pipefitters Local Union

No. 562 v. United States, 407 U.S. 385, 387, 409-410 (1972). Although BCRA added new restrictions on certain “electioneering”

activities of corporations and labor unions, it left the basic prohibitions on corporate and union treasury contributions unaffected.
6

labor union and corporate treasury funds from being

used to run issue advertisements that have an

ostensible federal electioneering purpose.” Per Curiam

op. 50.

i. Before BCRA was enacted, application of FECA’s

disclosure requirements and source and amount limitations to funds received by a national or state political

party turned on whether the relevant funds were used

“for the purpose of influencing any election for Federal

office.” 2 U.S.C. 431(8)(A)(i) (2000). Political parties

were permitted to raise and spend soft money for activities intended to influence the nomination or election

of candidates for state or local office. With respect to

various “party-building” activities (e.g., get-out-thevote drives, or generic party advertising), which could

be expected and presumably were intended to influence

the outcome of both federal and non-federal elections,

prior FEC regulations established allocation formulas

specifying the extent to which soft money could be

used. See generally 11 C.F.R. 106.5 (2002) (expired)

(providing for allocation of expenses between federal

and non-federal accounts).3

 3 From 1990 until the recent promulgation of new regulations

implementing BCRA, FEC rules required party committees that

chose to establish federal accounts to allocate a portion of their

“[a]dministrative expenses” (11 C.F.R. 106.5(a)(2)(i) (2002)) and

expenses for “[g]eneric voter drives,” which included “voter identification, voter registration, and get-out-the-vote drives, or any

other activities that urge the general public to register, vote or

support candidates of a particular party or associated with a particular issue, without mentioning a specific candidate.” 11 C.F.R.

106.5(a)(2)(iv) (2002). National party committees were required to

allocate at least 65% of those expenses to federal accounts during

presidential election years, and at least 60% in non-presidential

election years. 11 C.F.R. 106.5(b) and (c) (2002). For state and

local parties, the allocation was determined by the proportion of
7

In recent years, however, soft money contributions to

political parties have increased dramatically. Soft

money has been used, inter alia, to purchase advertisements that have featured federal candidates but have

not expressly advocated a particular electoral result.

See Per Curiam op. 38. The parties have paid for such

advertisements “with a mix of federal and nonfederal

funds as permitted by FEC allocation rules.” Ibid.

Under the pre-BCRA regime, national party funds

were often transferred to state parties for use in such

activities because FEC regulations established more

favorable allocation formulas (i.e., permitted greater

use of soft money) for state than for national party committees. See id. at 38-39. Congress ultimately concluded that the effect of such practices was to enable

corporations, labor unions, and wealthy individuals to

make unlimited and unreported contributions to

political parties that were in turn used to benefit federal candidates, thus reintroducing the “opportunities

for abuse inherent in a regime of large * * * financial

contributions” that FECA was intended to foreclose.

Buckley, 424 U.S. at 27.

Congress enacted Title I of BCRA to address the

opportunities for real or apparent corruption presented

when donors make contributions to political parties in

amounts that exceed FECA’s contribution limits, and

the problems caused by the growing use of soft money

for activities that are designed and generally known to

influence federal elections. BCRA § 101(a) adds a new

FECA § 323 (to be codified at 2 U.S.C. 441i). New

FECA § 323 consists of several interrelated provisions

that work together to ensure “that national parties,

federal officeholders and federal candidates use only

 federal offices to all offices on the state’s general election ballot.

See 11 C.F.R. 106.5(d) (2002).
8

funds permitted in federal elections to influence federal

elections, and that state parties stop serving as vehicles

for channeling soft money into federal races to help

federal candidates.” 147 Cong. Rec. S3251 (daily ed.

Apr. 2, 2001) (Sen. Thompson).

New FECA § 323(a)(1) provides that “[a] national

committee of a political party (including a national

congressional campaign committee of a political party)

may not solicit, receive, or direct to another person a

contribution, donation, or transfer of funds or any other

thing of value, or spend any funds, that are not subject

to the limitations, prohibitions, and reporting requirements of [the FECA].” Under new FECA § 323(a)(2),

that ban applies to the national committee itself and to

“any officer or agent acting on behalf of such a national

committee, and any entity that is directly or indirectly

established, financed, maintained, or controlled by such

a national committee.” “The clear import of [Section

323(a)] is that national party committees are banned

from any involvement with nonfederal money.” Per

Curiam op. 58. BCRA imposes no limits on how the

national party committees may spend their money; it

simply requires that all national party funds must be

raised in accordance with the longstanding disclosure

requirements and source and amount limitations imposed by FECA.

New FECA § 323(b) addresses the use of soft money

by state and local party committees. Section 323(b)(1)

provides as a general rule that any disbursements made

by a state, district, or local committee of a political

party for “Federal election activity” must “be made

from funds subject to the limitations, prohibitions, and

reporting requirements of FECA].” The term “Federal

election activity” is defined to include (i) voter registration activity within the 120 days before a federal
9

election; (ii) get-out-the-vote and similar generic campaign activities “conducted in connection with an

election in which a candidate for Federal office appears

on the ballot”; (iii) any “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”; and (iv) all services provided by any employee

who devotes more than 25% of his compensated time to

activities in connection with federal elections. See

BCRA § 101(b) (adding FECA § 301(20)(A)(i)-(iv)).

New FECA § 323(b)(2)—known as the “Levin Amendment”—establishes exceptions to that general rule,

authorizing state-level party committees to use soft

money in limited amounts, raised under certain restrictions, to fund an allocated portion of specified activities

that affect both federal and state elections. See Per

Curiam op. 58-59.

New FECA § 323(d) prohibits political party committees from soliciting any funds for, or making or directing any donations to, certain organizations described in Sections 501(c) and 527 of the Internal Revenue Code (26 U.S.C.). See Per Curiam op. 60-61. New

FECA § 323(e)(1)(A) generally prohibits federal candidates and officeholders from soliciting, receiving,

directing, transferring, or spending any soft money in

connection with an election for federal office. Per

Curiam op. 61. New FECA § 323(e)(1)(B) permits

federal candidates to raise money in connection with

state and local elections, but only in amounts that do

not exceed federal contribution limits and only from

sources that are permitted to donate to federal campaigns. Per Curiam op. 61-62. Federal candidates and

officeholders are permitted to attend fundraising

events for state, district, or local committees of a politi-
10

cal party and to make certain solicitations on behalf of

nonprofit organizations. See FECA § 323(e)(2)-(4); Per

Curiam op. 62. Finally, new FECA § 323(f) prohibits

any state or local officeholder, or any candidate for such

office, from spending soft money for a “public communication that ‘refers’ to a clearly identified candidate for

federal office * * * and ‘promotes,’ ‘supports,’

‘attacks,’ or ‘opposes’ a candidate for that office.” Per

Curiam op. 63.

ii. Title II of BCRA addresses the escalating use of

union and corporate treasury funds for broadcast advertising that, while clearly intended to influence the

outcome of federal elections, escaped federal regulation

under the prior legal regime. Federal law has long

prohibited corporations and labor unions from spending

general treasury funds to influence federal elections.

See p. 4 & note 2, supra; 2 U.S.C. 441b (2000). This

Court, however, has interpreted both FECA’s prohibition of corporate and union spending on federal elections (see 2 U.S.C. 441b (2000)) and FECA’s requirements for disclosure of independent political expenditures (see 2 U.S.C. 434(c) (2000)) to apply only to communications that expressly advocate the election or

defeat of a candidate for federal office—i.e., those using

so-called “magic words” such as “vote for,” “elect,”

“defeat” or “reject.” See Buckley, 424 U.S. at 44 n.52;

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

238, 249 (1986) (MCFL). In recent years, corporations

and unions have made increasing use of so-called “issue

advocacy” campaigns, disseminating advertisements

that praise or denounce a candidate for federal office

but do not in express terms urge his election or defeat.

See Per Curiam op. 41-42. Because those

advertisements do not include words of express
11

advocacy, the expenditures used to finance them

escaped regulation under FECA.

Subtitle A of Title II of BCRA reflects Congress’s

effort to identify more precisely those advertisements

that are intended to influence federal elections, by

defining a new category of “electioneering communications” in a manner that does not depend on the use of

“magic words” of express advocacy. New FECA

§ 304(f )(3)(A)(i) (added by BCRA § 201(a)) defines the

term “electioneering communication” to mean a television or radio communication that “refers to a clearly

identified candidate for Federal office”; is made within

the 60 days before the federal general election, or the

30 days before the federal primary election, in which

the identified candidate is running; and is “targeted to

the relevant electorate” (i.e., it can be received by at

least 50,000 persons in the State or district where the

election is to be held). See Per Curiam op. 63-64.

BCRA also includes a backup definition of the term

“electioneering communication,” to be used in the event

that the primary definition is held to be unconstitutional. Under the backup definition, “the term

‘electioneering communication’ means any broadcast,

cable, or satellite communication which promotes or

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

opposes a candidate for that office (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.” BCRA §

201(a) (adding FECA § 304(f )(3)(A)(ii)); see Per Curiam

op. 64-65.

BCRA § 203(a) amends FECA § 316(b)(2) (2 U.S.C.

441b(b)(2)) to provide that corporate and labor union

general treasury funds may not be used to finance
12

“electioneering communications” as defined in BCRA.

See Per Curiam op. 65. “The prohibition on electioneering communications only applies to the general

treasury funds of national banks, corporations, and

labor unions, or any other person using funds donated

by these entities.” Ibid. Because BCRA does not alter

the pre-existing FECA provisions that allow

corporations and labor unions to use funds from separate segregated accounts (or “PACs”) for the purpose

of influencing federal elections, such funds may lawfully

be used to sponsor electioneering communications. See

2 U.S.C. 441b(b)(2)(C) and (4) (2000); Per Curiam op. 65-

66; see also NRWC, 459 U.S. at 200 n.4 (a “separate

segregated fund may be completely controlled by the

sponsoring corporation or union”).4

New FECA § 304(f)(1)-(2) (added by BCRA § 201(a))

requires that any person who spends more than $10,000

on electioneering communications in a calendar year

must file statements with the FEC that, inter alia,

identify the persons making the disbursements, those

 4 FECA permits unions and corporations to use treasury funds

to establish and administer “separate segregated fund[s] to be

utilized for political purposes.” 2 U.S.C. 441b(b)(2)(C) (2000); see

note 2, supra. Such a fund (commonly called a “PAC”) is a political

committee under FECA. See 2 U.S.C. 431(4)(B) (2000). The fund

can solicit and receive voluntary contributions (subject to the

source and amount limits imposed by FECA) from corporate employees and stockholders, from union members, from members of a

membership corporation, and from their families. 2 U.S.C.

441b(b)(4)(A)-(C) (2000). Those funds can be contributed to federal

candidates (subject again to FECA’s contribution limits) or used to

pay for independent expenditures or electioneering communications. Corporations and unions may also use treasury funds to

finance communications on any subject with their stockholders,

executive and administrative personnel, and their “members.” 2

U.S.C. 431(9)(B)(iii), 441b(b)(2) (2000); see Per Curiam op. 65-66.
13

to whom the disbursements were made, and the persons who contributed $1000 or more to the persons

making the disbursement. New FECA § 304(f)(5)

(added by BCRA § 201(a)) provides that “[f]or purposes

of this subsection, a person shall be treated as having

made a disbursement if the person has executed a

contract to make the disbursement.”

iii. Title II of BCRA also addresses the treatment of

campaign expenditures that are coordinated between

candidates and their political parties. FECA has long

treated such expenditures as contributions, see 2

U.S.C. 441a(a)(7)(B)(i) (2000); see also Henderson op.

244, which are subject to the same source and amount

limitations that apply to any other contribution. Under

FECA, however, political party committees are permitted to make coordinated expenditures in amounts

substantially greater than the limits that apply to other

donors. Thus, while other multi-candidate political

committees can contribute no more than $5000 per

election to a candidate, see 2 U.S.C. 441a(a)(2)(A)

(2000), party committees are permitted to make contributions in the form of coordinated expenditures that

far exceed that limit, see 2 U.S.C. 441a(d) (2000);

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604, 610-611 (1996) (opinion of Breyer, J.)

(Colorado I).5

 Under this Court’s decision in Colorado

 5 National and state party committees are permitted to make

coordinated expenditures of up to two cents multiplied by the

voting age population of the United States for a Presidential

candidate; the greater of $20,000 or two cents multiplied by the

voting age population of a State for the State’s candidate for

Senator; and $10,000 for a candidate for Representative. See 2

U.S.C. 441a(d)(2)-(3) (2000). Those limits are adjusted each year

for inflation. 2 U.S.C. 441a(c) (2000). In the year 2000, the limits

on those additional coordinated expenditures ranged from $33,780

to $67,560 for House of Representative races and, for Senate races,
14

I, political party committees have a First Amendment

right to make unlimited independent expenditures to

support their candidates. See id. at 608, 618 (opinion of

Breyer, J.); see also id. at 627-631 (opinion of Kennedy,

J.); id. at 644-648 (opinion of Thomas, J.).

BCRA § 213 alters the range of spending options

available to a party committee once the party has

nominated a candidate for a particular federal election.

Under Section 213, the party must choose, for the

remainder of the election cycle, either (1) to forgo

independent expenditures in support of that candidate,

while remaining subject to the increased coordinatedexpenditure limits applicable to political parties under 2

U.S.C. 441a(d) (2000); or (2) to make unlimited independent expenditures in support of that candidate,

while abiding by the $5000 limit on contributions and

coordinated expenditures applicable to all other

multicandidate political committees.

BCRA § 214(a) provides that expenditures made in

coordination with political party committees will be

treated as contributions to the party. Section 214(a)

parallels pre-existing FECA provisions under which

expenditures made in coordination with candidates are

treated as contributions to the candidate. See Per

Curiam op. 74-75; p. 13, supra. BCRA § 214(b) repeals

pre-existing FEC regulations concerning coordinated

communications that are paid for by persons other than

candidates or parties, and BCRA § 214(c) directs the

 from $67,560 to $1.6 million. See Colorado II, 533 U.S. at 439 n.3.

The FEC interprets Section 441a to permit national and state

political parties to make direct contributions to a candidate of up to

$5000 (the limit applicable to contributions by political committees

generally under Section 441a(a)) in addition to the coordinated expenditures authorized by Section 441a(d). See, e.g., 11 C.F.R.

110.7(b)(3) (2002).
15

FEC to promulgate new regulations on the subject that

“shall not require agreement or formal collaboration to

establish coordination.” See Per Curiam op. 75.

iv. BCRA § 318 prohibits individuals who are less

than 18 years old from making contributions to candidates or political party committees. See Per Curiam

op. 79.

v. BCRA §§ 305 and 504 amend Section 315 of the

Communications Act of 1934, 47 U.S.C. 315. The Communications Act requires stations to sell broadcast time

to a candidate at the “lowest unit charge” during the 45-

day period before a federal primary election or the 60-

day period before a federal general election. 47 U.S.C.

315(b)(1).6

 Under BCRA § 305, a candidate is entitled

to obtain the “lowest unit charge” only if he satisfies

one of two requirements. First, the candidate may

certify in writing that neither he nor any authorized

committee will make any “direct reference to another

candidate for the same office” during the broadcast

advertisement. BCRA § 305(a)(3) (adding 47 U.S.C.

315(b)(2)(A)). Alternatively, “[t]he candidate can be exempted from this provision, and thus be eligible for the

lowest unit charge without such a promise, if the

candidate clearly identifies himself at the end of the

broadcast and states that he approves of the broadcast.” Per Curiam op. 77; see BCRA § 305(a)(3) (adding

47 U.S.C. 315(b)(2)(C) and (D)).

BCRA § 504 requires a broadcast station to maintain

and make publicly available a complete record of requests to purchase broadcast time “made by or on

behalf of a legally qualified candidate for public office”

 6 The “lowest unit charge” provision was added to the Communications Act, 47 U.S.C. 315, in 1972 as part of FECA. See

Miller v. FCC, 66 F.3d 1140, 1142 (11th Cir. 1995), cert. denied, 517

U.S. 1155 (1996).
16

or to broadcast a “message relating to any political

matter of national importance,” including “a legally

qualified candidate,” “any election to Federal office,” or

“a national legislative issue of public importance.”

BCRA § 504 (adding 47 U.S.C. 315(e)(1)). The record

created by the licensee must include “the name of the

person purchasing the time, the name, address, and

phone number of a contact person for such person, and

a list of the chief executive officers or members of the

executive committee or of the board of directors of such

person.” BCRA § 504 (adding 47 U.S.C. 315(e)(2)).

3. Pursuant to BCRA § 403(a), a variety of individuals, party committees, interest groups, and others

filed 11 separate lawsuits, alleging that BCRA on its

face violates the First, Fifth, and Tenth Amendments

to the Constitution. The FEC, the individual FEC

Commissioners, the Federal Communications Commission, the Department of Justice, and the Attorney

General were named as defendants. The United States

intervened as a defendant to defend the constitutionality of BCRA. The principal sponsors of BCRA

also were granted leave to intervene as defendants.

After extensive discovery was completed, the threejudge district court upheld some provisions of the

statute; found that some of the constitutional challenges

were nonjusticiable; and invalidated other BCRA

provisions and enjoined their enforcement and application. The district court issued a per curiam opinion

that summarized the court’s disposition of the various

constitutional challenges (see Per Curiam op. 5-15);

discussed the history of federal campaign finance regulation (id. at 16-42); described the provisions of the

BCRA (id. at 42–80); set forth findings of fact (id. at 80-

106) and announced conclusions of law with respect to

some of the constitutional claims, chiefly those in-
17

volving BRCA’s disclosure provisions (id. at 106-170).

In addition, each member of the panel (Circuit Judge

Henderson and District Judges Kollar-Kotelly and

Leon) filed a separate opinion.7

a. With respect to the principal provisions of Title I,

the district court invalidated in significant respects

BCRA’s restrictions on the solicitation and use of soft

money by national and state political parties. Judge

Kollar-Kotelly would have upheld those provisions;

Judge Henderson would have struck them down in

their entirety. See Per Curiam op. 5-6, 12; Henderson

op. 258-305; Kollar-Kotelly op. 478-609.

Judge Leon, whose vote was controlling (Per Curiam

op. 6; cf. note 7, supra), concluded that those restrictions were unconstitutional except as applied to “Section 301(20)(A)(iii) activities”—i.e., to any “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.” BCRA § 101(b) (adding FECA

§ 301(20)(A)(iii)). Judge Leon found that state and

national parties could permissibly be barred from using

soft money to pay for such communications because

“Section 301(20)(A)(iii) * * * describes conduct which

is targeted exclusively at federal elections and which

directly affects federal elections.” Leon op. 44; see id.

at 44-45, 50-68. Judge Leon concluded, however, that

 7 Judge Kollar-Kotelly found only three of the challenged provisions (BCRA §§ 213, 318, 504), which she described as “not central to [BCRA’s] core mission,” to be unconstitutional. See KollarKotelly op. 11. Judge Henderson, by contrast, expressed the view

that BCRA “is unconstitutional in virtually all of its particulars.”

Henderson op. 5. Thus, with respect to the disposition of most of

the constitutional claims before the district court, Judge Leon’s

opinion proved to be controlling.
18

BCRA’s restrictions on the acceptance and use of soft

money by national and state parties were otherwise

invalid, on the ground that Congress lacks constitutional authority “to regulate nonfederal funds used for

nonfederal and mixed purposes.” Id. at 26; see id. at 45-

50.

b. With respect to Title II’s prohibition on the use of

corporate and union general treasury funds to finance

“electioneering communications,” the district court

again adopted an intermediate position, and Judge

Leon’s views were again controlling. Judge KollarKotelly and Judge Leon agreed that “the record before

the Court clearly demonstrates that * * * the

evolving present use of issue advertisements, specifically the use of ‘issues’ to cloak supportive or negative

advertisements clearly identifying a candidate for

federal office, threaten[s] the purity of elections.” Per

Curiam op. 135 (internal quotation marks omitted).

Judge Kollar-Kotelly would have sustained the expenditure prohibition under either the primary or the

backup definition of the term “electioneering communication.” See id. at 8-9, 12-13; Kollar-Kotelly op. 356-455.

Judge Henderson would have found the expenditure

ban invalid under either definition. See Per Curiam op.

8-9, 12-13; Henderson op. 201-228.

Judge Leon found the primary definition of “electioneering communication,” and the attendant ban on

the use of corporate and union general treasury funds

to finance “electioneering communications” as so defined, to be unconstitutionally overbroad. Judge Leon

based that conclusion on his view that the communications covered by the primary definition include a

significant number of “genuine issue advertisements”

that are not aimed at influencing electoral results.

Leon op. 75; see id. at 73-87. At the same time, how-
19

ever, Judge Leon concluded that the backup definition

of “electioneering communication” is for the most part

constitutional because it “requires as a link between the

identified federal candidate and his election to that

office, certain language the purpose of which is

advocacy either for, or against, the candidate.” Id. at

88. He explained that large expenditures for communications falling within that definition can be expected to

“give rise to a public perception that the candidate is

being directly benefitted and will naturally reciprocate.” Id. at 90.

Judge Leon determined, however, “that the backup

definition’s final clause, which requires the message to

be ‘suggestive of no plausible meaning other than an

exhortation to vote,’ is unconstitutionally vague.” Leon

op. 93. Finding that the final clause “can be excised

without rewriting the entire definition” (id. at 94),

Judge Leon upheld the backup definition as so modified.

Judge Kollar-Kotelly “concur[red] in that conclusion

solely as an alternative to [the district court’s] finding

that the primary definition is unconstitutional.” Per

Curiam op. 8. Thus, the effect of the district court’s

decision was to sustain BCRA’s prohibition on the use

of corporate and union general treasury funds for “electioneering communications,” with that term defined to

mean “any broadcast, cable, or satellite communication

which promotes or supports a candidate for that office,

or attacks or opposes a candidate for that office (regardless of whether the communication expressly

advocates a vote for or against a candidate).”

c. The district court held that BCRA § 318, which

prohibits persons less than 18 years old from making

contributions to federal candidates or to political

parties, is unconstitutional. See Per Curiam op. 11, 15.

Each of the panel members found that minors have a
20

presumptive First Amendment right to engage in

political expression, and that the government had failed

to produce sufficient evidence that minors would

otherwise be used to circumvent statutory limits on

adult contributors. See Henderson op. 326-333; KollarKotelly op. 610-613; Leon op. 106-111. The district

court also struck down the record-keeping and disclosure requirements imposed upon broadcast stations

by BCRA § 504. See Per Curiam op. 11-12, 15. The

panel members found that the government had failed to

demonstrate a public interest sufficient to justify the

burdens that Section 504 places upon broadcasters and

on those who purchase political advertisements. See

Henderson op. 234-238; Kollar-Kotelly op. 614; Leon op.

111-115.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Congress vested this Court with appellate jurisdiction to review district court decisions in suits challenging the constitutionality of BCRA. See BCRA

§ 403(a)(3). This case falls squarely within the Court’s

appellate jurisdiction under Section 403(a)(3). Congress

further directed this Court to “expedite to the greatest

possible extent the disposition of ” any appeal taken

under the statute. BCRA § 403(a)(4).

This Court “has never * * * doubted” the

importance of the government interest in protecting

federal elections from the threat of “real or apparent

corruption” stemming from the creation or suggestion

of political debts. First Nat’l Bank v. Bellotti, 435 U.S.

765, 788 n.26 (1978); see FEC v. National Right to Work

Comm., 459 U.S. 197, 207, 209-210 (1982) (NRWC);

Automobile Workers, 352 U.S. at 570, 575. In invalidating key provisions of BCRA, the district court substituted its own judgment for that of Congress, which

has first-hand experience with the electoral process and
21

a unique understanding of the concerns to which

campaign finance laws are addressed. Those holdings

plainly warrant this Court’s review.

1. a. The district court held that the soft money restrictions imposed on national political party committees by new FECA § 323(a), and on state and local

party committees by new FECA § 323(b), are valid only

insofar as they require the use of federally-regulated

funds to finance any “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.”

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

Judge Leon, whose vote and analysis were controlling

(see pp. 17-18, supra), found that narrowing of the

statute to be constitutionally required on the ground

that Congress’s authority in this area is limited to party

expenditures that directly and exclusively affect

federal elections. In Judge Leon’s view, Congress lacks

power to regulate a party committee’s acquisition of

funds “used for nonfederal and mixed purposes.” Leon

op. 26.

That holding is both novel and erroneous. With

respect to national party committees, Congress reasonably concluded that, given the pervasive connections

between party organizations and federal office-holders,

large unregulated contributions to the national parties

would have the inherent tendency to cause actual or

apparent corruption within the federal government,

regardless of the manner in which the relevant funds

were ultimately spent. See Kollar-Kotelly op. 512-513

(“federal officeholders and candidates control the

national party committees and are so deeply involved in

raising non-federal funds for the national party committees that there is no meaningful separation between
22

the national committees and the federal candidates and

officeholders that control them.”); id. at 524 (evidence in

this case demonstrates that major donors of soft money

to national political parties “are provided access to

federal officeholders and candidates in exchange for

their large contributions”). Congress also had ample

basis for concluding that funds raised by national

parties are predominantly used for activities that affect

federal elections, even though occasional national party

expenditures might be directed to state elections only.

See id. at 550-551.

With respect to state party committees, Congress

prohibited the use of soft money only for “Federal

election activity,” see FECA § 323(b)(1) (added by

BCRA § 101(a)), and it carefully limited the definition of

that term to specified categories of party activities that

can reasonably be expected to influence the outcome of

federal elections, see FECA § 301(20)(A)(i)-(iv) (added

by BCRA § 101(b)). It is doubtless true that the

activities described in new FECA § 301(20)(A)(i), (ii),

and (iv) can be expected to influence the outcome of

state elections as well. But nothing in this Court’s

precedents supports Judge Leon’s novel conclusion that

Congress lacks constitutional authority to regulate the

collection of funds used for those state party activities,

such as voter registration or get-out-the-vote drives,

that can be expected to influence both federal and state

elections. Indeed, the FEC has long required that

various “generic” party activities must be funded in

part by money raised in accordance with FECA limitations, precisely because such activities can be expected

to influence the outcome of federal elections. See note

3, supra. Although the FEC has allowed party committees to use soft money to pay a portion of those
23

costs, this Court’s decisions do not suggest that the

FEC’s allocation regime is constitutionally compelled.

b. The district court also erred in invalidating new

FECA § 323(d) (added by BCRA § 101(a)), which

prohibits party committees from making solicitations

for, and donations to, certain tax-exempt organizations.

See Henderson op. 306-315; Leon op. 68-71. Those

restrictions on efforts to channel funds to tax-exempt

organizations are an appropriate means of combating

circumvention of BCRA’s soft money restrictions and

FECA’s contribution limitations and disclosure

requirements. As Judge Kollar-Kotelly explained in

dissenting on this issue, “[i]t is clear that political

parties and candidates have used tax-exempt organizations to assist them in their efforts to win federal

elections. Given this fact, and the fact that BCRA

prohibits state and national political parties from using

nonfederal funds to affect federal elections, the attractiveness of using these tax-exempt proxies would

become even more attractive to the political parties if

nothing had been done by Congress to address this

obvious circumvention route.” Kollar-Kotelly op. 561

(citation omitted). Congress properly acted to prevent

such circumvention, and this Court has repeatedly

honored similar anti-circumvention rationales. See, e.g.,

Colorado II, 533 U.S. at 457 n.19.

2. a. The district court erred in invalidating BCRA

§ 201’s primary definition of the term “electioneering

communication,” as well as BCRA § 203’s ban on the

use of union and corporate general treasury funds for

“electioneering communications” as so defined. See pp.

18-19, supra. Under established constitutional principles, corporations and unions may be prohibited from

using general treasury funds to make independent

expenditures for the purpose of influencing electoral
24

results, at least so long as they retain the option of

establishing separate segregated funds to finance such

communications. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657-661 (1990).8

 Such

restrictions on corporate and union spending serve both

to prevent the creation of political “debts” and the resulting actual or apparent corruption of office-holders,

and to protect individuals who have paid money to the

corporation or union for reasons unrelated to support of

political candidates. See Kollar-Kotelly op. 357-358;

Austin, 494 U.S. at 658-660.

Insofar as it prohibits the use of corporate and union

general treasury funds for communications intended to

influence federal elections, BCRA breaks no new

 8 This Court has held that 2 U.S.C. 441b’s longstanding ban on

federal campaign expenditures from corporate treasuries cannot

constitutionally be applied to a so-called “MCFL corporation” (or

“qualified nonprofit corporation,” see 11 C.F.R. 114.10(c) (2002))—

i.e., a corporation that (1) “was formed for the express purpose of

promoting political ideas, and cannot engage in business activities”;

(2) “has no shareholders or other persons affiliated so as to have a

claim on its assets or earnings”; and (3) “was not established by a

business corporation or labor union, and [has a] policy not to accept

contributions from such entities.” MCFL, 479 U.S. at 264. In

extending Section 441b’s prohibition to payments made for “electioneering communications,” Congress evinced no intent to override this Court’s decision in MCFL, see Kollar-Kotelly op. 459

(discussing legislative history), and the usual presumption is that

Congress intends to stay within the constitutional boundaries

drawn by this Court. In promulgating regulations to implement

BCRA, the FEC has made clear that “[a] qualified nonprofit corporation may make electioneering communications * * * without

violating the prohibitions against corporate expenditures.” 67 Fed.

Reg. 65,211 (2002) (to be codified at 11 C.F.R. 114.10(d)(2)). We

therefore do not challenge the district court’s holding (see Per

Curiam op. 9, 14; Kollar-Kotelly op. 461) that BCRA’s prohibition

on the use of corporate treasury funds to finance electioneering

communications cannot properly be applied to MCFL corporations.
25

ground. See Kollar-Kotelly op. 357 (“For close to one

hundred years the political branches have made the

choice, consistent with the Constitution, that individual

voters have a right to select their federal officials in

elections that are free from the direct influence of

aggregated corporate treasury wealth and—for over

fifty years—from the direct influence of aggregated

labor union treasury wealth.”). Rather, BCRA’s innovation is in the articulation of new criteria for identifying those corporate and union expenditures that are in

fact intended to affect federal electoral results. Congress had ample basis for concluding that, under the

pre-BCRA regime, “corporations and unions routinely

[sought] to influence the outcome of federal elections

with general treasury funds by running broadcast

advertisements that skirt the prohibition contained in

[2 U.S.C.] 441b by simply avoiding Buckley’s ‘magic

words’ of express advocacy.” Id. at 358; see Per Curiam

op. 135 (“record * * * clearly demonstrates” that socalled “issue advertisements” financed by corporate and

union general treasury funds “threaten the purity of

elections”). Drawing upon its Members’ extensive campaign experience, Congress “responded to this problem

by tightly focusing on the main abuse: broadcast

advertisements aired in close proximity to a federal

election that clearly identify a federal candidate and are

targeted to that candidate’s electorate.” Kollar-Kotelly

op. 358.

BCRA’s primary definition of “electioneering communication” is clear and objective. Congress’s choice of

that definition reflects its informed judgment that

advertisements having the specified characteristics are

typically intended to influence electoral outcomes and

are likely to have that effect. That legislative judgment, which was based in large measure on Members’
26

direct observations of the use of such communications

to circumvent pre-BCRA restrictions on corporate and

union campaign spending, is entitled to considerable

judicial respect. To the extent that the primary definition could extend to occasional union or corporate communications that are not intended to affect federal

elections, the burden that would be imposed by BCRA

§§ 201 and 203 is limited. The union or corporation that

wishes to distribute such advertisements may finance

them from a separate segregated fund; it may disseminate them outside the narrow window of time immediately preceding the relevant federal election or

through alternative media; or it may modify the content

of such advertisements by deleting express references

to a particular federal candidate.9

b. The district court largely sustained the disclosure

requirements concerning electioneering communications imposed by BCRA § 201. See Per Curiam op.

113-115. The court held, however, that BCRA § 201 is

invalid insofar as it requires disclosure of executed

contracts for future electioneering communications that

 9 Although it invalidated BCRA’s primary definition of “electioneering communication,” the district court held that the backup

definition is constitutional, while severing the final clause of that

definition on vagueness grounds. See pp. 18-19, supra. That final

clause requires the message to be “suggestive of no plausible

meaning other than an exhortation to vote.” BCRA § 201(a) (adding FECA § 304(f)(3)(A)(ii)). Contrary to Judge Leon’s determination, that clause is not “so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application.” United States v. Lanier, 520 U.S. 259, 266 (1997). In any

event, the final clause of the backup definition is plainly intended

to protect corporate and union speakers, and to narrow the reach of

BCRA’s restrictions on corporate and union expenditures, by

reducing BCRA § 203’s potential applicability to communications

that are not in fact intended to affect federal elections.
27

have not yet been publicly distributed. Id. at 115-123;

see FECA § 304(f )(5) (added by BCRA § 201(a)) (“For

purposes of this subsection, a person shall be treated as

having made the disbursement if the person has executed a contract to make the disbursement.”). That

holding is erroneous. Even assuming that new FECA

§ 304(f)(5) might sometimes have the effect of requiring

that contracts be disclosed before the public distribution of an electioneering communication, that requirement would neither prevent any person from

speaking nor require disclosure of the specific content

of any advertisement. Indeed, under the pre-BCRA

regime the definition of “expenditure” included a “written contract, promise, or agreement to make an expenditure,” 2 U.S.C. 431(9)(A)(ii) (2000); see 11 C.F.R.

104.11(b), so a requirement that contracts be disclosed

at the time of execution would not represent a significant departure from prior law.

3. The district court erred in invalidating BCRA

§ 213. See Per Curiam op. 10, 14; Henderson op. 256-

257; Kollar-Kotelly op. 477; Leon op. 99-106. Once a

political party has nominated a candidate for a particular federal election, Section 213 permits the party

either (1) to forgo independent expenditures in support

of that candidate (in which case it may invoke the

increased coordinated-expenditure limits applicable to

political parties under 2 U.S.C. 441a(d) (2000)); or (2) to

make unlimited independent expenditures in support of

that candidate, while abiding by the $5000 limit on

contributions and coordinated expenditures applicable

to political committees generally. Consistent with the

Constitution, Congress might have limited party committees to the second alternative, thereby treating

them exactly the same as every other multicandiate political committee. Congress’s decision to provide party
28

committees an additional spending option cannot

render the BCRA regime unconstitutional.

4. The district court erred in invalidating BCRA

§ 318, which prohibits persons less than 18 years old

from making contributions to federal candidates or to

political parties. See Per Curiam op. 11, 15; Henderson

op. 326-333; Kollar-Kotelly op. 610-613; Leon op. 106-

111. Section 318 is a valid means of preventing adults

from circumventing FECA’s contribution limits by

making surrogate contributions through minors under

their control, and it is consistent with longstanding

restrictions on minors’ ability to control and dispose of

property. In addition, any First Amendment interests

that minors may have in participating in the financing

of federal elections is substantially limited by the fact

that minors have no constitutional right to vote in such

elections. See U.S. Const. Amend. XXVI.

5. The district court erred in striking down BCRA §

504, which requires broadcast stations to maintain and

make publicly available specified categories of requests

to purchase broadcast time. See Per Curiam op. 11-12,

15; Henderson op. 234-238; Kollar-Kotelly op. 614; Leon

op. 111-115. Section 504 applies only to television and

radio broadcast stations and cable television systems,

and this Court has upheld more intrusive regulation of

those media than of any other form of communication.

See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

637 (1994); CBS v. FCC, 453 U.S. 367 (1981). Longstanding Federal Communications Commission regulations have required broadcast stations to disclose candidate “requests” to purchase broadcast time, see 47

C.F.R. 73.1943 (broadcast stations); 47 C.F.R. 76.1701

(cable television systems), and have required disclosure

of the sponsors of broadcasts concerning “controversial

issue[s] of public importance,” see 47 C.F.R. 73.1212(e);
29

see also 47 C.F.R. 76.1701(d) (cable television). The

similar disclosure mandated by BCRA § 504 provides

the public with access to information concerning the

amounts that individuals and groups are prepared to

spend to broadcast messages on political matters of

national importance, as well as the sums actually spent

on such broadcasts. Requiring disclosure of the identities of those who make requests, and the broadcasters’

dispositions of the requests, also enables the public to

evaluate whether broadcasters are processing requests

in an evenhanded fashion.

CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted.

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

STEPHEN E. HERSHKOWITZ

DAVID KOLKER

Assistant General Counsels

Federal Election

Commission

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MALCOLM L. STEWART

GREGORY G. GARRE

Assistants to the Solicitor

General

DOUGLAS N. LETTER

JAMES J. GILLIGAN

MICHAEL S. RAAB

DANA J. MARTIN

Attorneys

MAY 2003
(1a)

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 02-582

(CKK, KLH, RJL)

SENATOR MITCH MCCONNELL, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-581

(CKK, KLH, RJL)

NATIONAL RIFLE ASSOCIATION OF AMERICA, ET AL.,

PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-633

(CKK, KLH, RJL)

EMILY ECHOLS, A MINOR CHILD, BY AND THROUGH HER

NEXT FRIENDS, TIM AND WINDY ECHOLS, ET AL.,

PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS
2a

Civil Action No. 02-751

(CKK, KLH, RJL)

CHAMBER OF COMMERCE OF THE UNITED STATES,

ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-753

(CKK, KLH, RJL)

NATIONAL ASSOCIATION OF BROADCASTERS, PLAINTIFF

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-754

(CKK, KLH, RJL)

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS
3a

Civil Action No. 02-781

(CKK, KLH, RJL)

CONGRESSMAN RON PAUL, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-874

(CKK, KLH, RJL)

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-875

(CKK, KLH, RJL)

CALIFORNIA DEMOCRATIC PARTY, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS
4a

Civil Action No. 02-877

(CKK, KLH, RJL)

VICTORIA JACKSON GRAY ADAMS, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Civil Action No. 02-881

(CKK, KLH, RJL)

REPRESENTATIVE BENNIE G. THOMPSON, ET AL.,

PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

[Filed: May 5, 2003]

NOTICE OF APPEAL TO THE UNITED STATES

SUPREME COURT

Notice is hereby given that defendants the United

States of America, Attorney General John Ashcroft, the

United States Department of Justice, and the Federal

Communications Commission, hereby appeal to the
5a

United States Supreme Court from the Final Judgment

entered in these consolidated actions on the 2nd day of

May, 2003. A direct appeal to the United States

Supreme Court is authorized by section 403(a)(3) of the

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81, 114.

Respectfully submitted,

ROBERT D. MCCALLLUM, JR.

Assistant Attorney General

Civil Division

ROSCOE C. HOWARD, JR.

United States Attorney

SHANNEN W. COFFIN

Deputy Assistant Attorney General

Federal Programs Branch, Civil Division
6a

/s/ RUPA BHATTACHARYYA 

JOSEPH H. HUNT

THEODORE G. HIRT

JAMES J. GILLIGAN

TERRY M. HENRY

RUPA BHATTACHARYYA

ANDREA GACKI

MARC L. KESSELMAN

SERRIN TURNER

Attorneys

U.S. Department of Justice, Civil Division

Federal Programs Branch

P.O. Box 883, 20 Massachusetts Ave.,

N.W.

Washington, D.C. 20044

Tel: (202) 514-3358

Fax: (202) 616-8470

Counsel for Defendants United States of

America, John Ashcroft, Attorney

General of the United States, the U.S.

Department of Justice, and the Federal

Communications Commission

Dated: May 3, 2003
7a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. Civil Action No. 02-0582

(CKK) (KLH) (RJL)

Consolidated Actions

SENATOR MITCH MCCONNELL, ET AL., PLAINTIFF

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

[Filed: May 2, 2003]

NOTICE OF APPEAL

Notice is hereby given that the Federal Election

Commission, defendant in the above named cases,

appeals to the Supreme Court of the United States

from the final judgment entered in these actions on

May 2, 2003.

Respectfully submitted

_____________________

/s/ Lawrence H. Norton

General Counsel
8a

_____________________

Richard B. Bader

Associate General Counsel

_____________________

Stephen E. Hershkowitz

Assistant General Counsel

_____________________

David Kolker

Assistant General Counsel

May 2, 2003

For the Appellant

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650
9a

APPENDIX C

OPINIONS OF THE DISTRICT COURT

Due to the length of the opinions below, appellants

are not including the district court’s opinions in

the appendix to their jurisdictional statement. The

opinions can be found on the Internet at http://lsmns2o.

gtwy.uscourts.gov/dcd/mcconnell-2002-ruling.html. Appellants have filed a motion to dispense with filing the

district court opinions in the appendix to the jurisdictional statement.
10a

APPENDIX D

Article I, Section 4, Clause 1 of the United States

Constitution provides as follows:

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.
11a

The First Amendment to the United States Constitution provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.
12a

The Fifth Amendment to the United States Constitution provides as follows:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb, nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use without just compensation.
13a

The Tenth Amendment to the United States Constitution provides as follows:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.