No. 08-205 

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

In The 

Supreme Court of the United States 

---------------------------------♦ --------------------------------- 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

---------------------------------♦ --------------------------------- 

On Appeal From The 


United States District Court 


For The District Of Columbia
 

---------------------------------♦ --------------------------------- 

BRIEF OF AMICUS CURIAE
 

NATIONAL RIFLE ASSOCIATION 


IN SUPPORT OF APPELLANT 


---------------------------------♦ --------------------------------- 

CHARLES J. C OOPER 

Counsel of Record 

DAVID H. THOMPSON 

DEREK L. SHAFFER 

JESSE M. PANUCCIO 

COOPER & K IRK, PLLC 

1523 New Hampshire Ave., NW 

Washington, D.C. 20036 

(202) 220-9600 

January 15, 2009 

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


OR CALL COLLECT (402) 342-2831 

 

 

 

i 

TABLE OF CONTENTS 


Page 


TABLE OF AUTHORITIES ................................... iii 


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


SUMMARY OF ARGUMENT ................................ 2 


ARGUMENT........................................................... 9 


I. 	BCRA’S RESTRICTION OF NONPROFITS’ CORE POLITICAL EXPRESSION 

FUNDED BY INDIVIDUALS IS INCOMPATIBLE WITH THE FIRST AMENDMENT........................................................... 9 

II. 	NONPROFITS CURRENTLY REMAIN 

STIFLED BECAUSE ANY “SAFE HARBORS” THEY MIGHT INVOKE ARE ILLUSORY....................................................... 17 

A. 	Political Action Committees Cannot 

Speak Adequately For Nonprofit Advocacy Groups and Their Individual 

Supporters ............................................. 18 

B. 	 The MCFL Exception Is Grudgingly 

Administered and Difficult To Satisfy 

In Practice.............................................. 22 

C. 	 The WRTL Exception Is Subject To 

Uncertainty and Disagreement As Applied In Particular Cases ...................... 25 
 

ii 

TABLE OF CONTENTS – Continued 

Page 

III.	 THIS IS AN APPROPRIATE CASE IN 

WHICH TO STRIKE DOWN THE 

WELLSTONE AMENDMENT AND VINDICATE THE FIRST AMENDMENT 

RIGHTS OF NONPROFIT ORGANIZATIONS AND THE INDIVIDUALS WHO 

SUPPORT THEM ........................................ 28 

CONCLUSION ....................................................... 32 

iii 

TABLE OF AUTHORITIES 


Page 

CASES 

Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) .............................passim
 

Buckley v. Valeo, 424 U.S. 1 (1976) ..................3, 12, 27 


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


(5th Cir. 2002) .........................................................26 


Connally v. General Constr. Co., 269 U.S. 385 


(1926).......................................................................27 


FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987)..........26 


FEC v. Massachusetts Citizens for Life, Inc., 


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

FEC v. NCPAC, 470 U.S. 480 (1985)..............12, 14, 15 


FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001).........24, 30 


FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 


(2d Cir. 1995)...........................................................24 


FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 


2652 (2007)......................................................passim 

McConnell v. FEC, 540 U.S. 93 (2003)...............passim 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 

2003) ................................................................passim
 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 


(2000).......................................................................20 


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


168 F.3d 705 (4th Cir. 1999), cert. denied, 528 


U.S. 1153 (2000) ......................................................24 

 

iv 


TABLE OF AUTHORITIES – Continued
 

Page 

CONSTITUTIONAL AND LEGISLATIVE MATERIALS
 

2 U.S.C. § 434(f)(3)(A)(ii)............................................26 


26 U.S.C. § 501(c)(4) ...........................................passim
 

143 CONG. REC. S10,105 (daily ed. Sept. 29, 


11 C.F.R. § 114.1 .........................................................19 


11 C.F.R. § 114.5(b) .....................................................14 


11 C.F.R. § 114.7 .........................................................19 


11 C.F.R. § 114.10(b)(3)(i)(A) ......................................23 


11 C.F.R. § 114.10(c)(1) ...............................................22 


11 C.F.R. § 114.10(c)(2) ...............................................23 


11 C.F.R. § 114.10(c)(3)(ii) ..........................................23 


11 C.F.R. § 114.10(c)(3)(ii)(B) .....................................24 


11 C.F.R. § 114.10(c)(4)(ii) ..........................................24 


1997) ........................................................................20 


143 CONG. REC. S20,505 (1997) ..................................10 


144 CONG. REC. H4787 (daily ed. June 18, 1998) .......21 


144 CONG. REC. S868 (daily ed. Feb. 24, 1998)..........10 


144 CONG. REC. S917 (daily ed. Feb. 24, 1998)..........21 


144 CONG. REC. S10,169 (daily ed. Sept. 10, 


1998) ........................................................................21 


145 CONG. REC. H3174 (daily ed. May 14, 1999) .........9 


145 CONG. REC. S12,608-09 (daily ed. Oct. 14, 


1999) ........................................................................21 

v 


TABLE OF AUTHORITIES – Continued
 

Page 

147 CONG. REC. S2704-13 (daily ed. Mar. 22, 

2001) ........................................................................26 


147 CONG. REC. S2847 (daily ed. Mar. 26, 


2001) ..........................................................6, 9, 11, 13 


147 CONG. REC. S2848 (daily ed. Mar. 26, 


2002) ..................................................................12, 13 


147 CONG. REC. S2882 (daily ed. Mar. 26, 2001) .......13 


147 CONG. REC. S3073 (daily ed. Mar. 29, 


2001) ..............................................................6, 12, 13 


147 CONG. REC. S3116 (daily ed. Mar. 29, 2001)........27 


148 CONG. REC. H424 (daily ed. Feb. 13, 2002) ...........9 


148 CONG. REC. S2117 (daily ed. Mar. 20, 2002)........21 


OTHER 

Michael Luo, Obama Hauls in Record $750 

Million for Campaign, N.Y. TIMES, Dec. 4, 

2008 .........................................................................20 

 

 

 

1 


INTEREST OF AMICUS CURIAE1 

The NRA is a nonprofit, voluntary membership 

corporation qualified as tax-exempt under 26 U.S.C. 

§ 501(c)(4). Its nearly four million members are 

individual Americans bound together by a common 

desire to ensure the preservation of the Second 

Amendment right to keep and bear arms. McConnell 

v. FEC, 251 F. Supp. 2d 176, 298 (D.D.C. 2003). “The 

NRA’s frequent references to candidates for federal 

office and the programming it broadcasts throughout 

the election cycle – including the period immediately 

preceding primaries and general elections – are 

essential to its political mission of educating the 

public about Second Amendment and related firearm 

issues.” Id. at 316. In 2000, for example, the NRA 

paid for more speech on television – over 300,000 

minutes – than all other issue-advocacy groups and 

unions combined. 

The NRA’s political speech furthers a variety of 

purposes: the NRA educates and informs its members 

and the public about specific legislative threats to 

Second Amendment rights, as well as broader political and cultural pressures on gun rights; the NRA 

also defends itself against attacks on its positions and 

reputation made by the media and by anti-NRA 

1 The parties have consented to the filing of this brief. 

Counsel for a party did not author this brief in whole or in part. 

No person or entity, other than amicus curiae, its members, or 

its counsel made a monetary contribution to the preparation and 

submission of this brief. 
 

 

2 


politicians; and the NRA recruits members and raises 

funds throughout the year. In almost all of this 

speech, the NRA refers to federal officeholders and 

candidates. Id. And yet the bulk of its political speech 

that furthers these purposes is not intended to influence a federal election. 

The NRA funds its speech almost exclusively 

with dues and contributions from individual members. The organization does not accept business 

corporations as members and the contributions that it 

receives from such corporations are negligible. Id. at 

317. The average individual annual contribution to 

the NRA is $35. In short, the NRA is an organization 

comprised of ordinary Americans of moderate means 

who join their voices in a common effort to defend, 

promote, and enjoy a constitutional freedom that is 

precious to them. 

---------------------------------♦--------------------------------­

SUMMARY OF ARGUMENT 

Donations received by nonprofit advocacy groups 

from individual members and supporters are not the 

same as “resources in the treasury of a business 

corporation.” Austin v. Michigan State Chamber of 

Commerce, 494 U.S. 652, 659 (1990) (quotation marks 

omitted) (upholding constitutionality of regulating 

campaign expenditures funded largely by business 

corporations). Simply put, the voluntary donation box 

of a nonprofit organization must be distinguished 

from the cash register of a business when it comes to 
 

 

3 


regulating political expression. For like-minded 

individuals lacking great wealth, pooling their donations to fund a political message is, in a real sense, 

the only way for them to find meaningful voice in the 

marketplace of ideas. There is nothing pernicious, 

problematic, or distorting about individuals banding 

together in this fashion to express shared political 

values and make themselves heard. Yet campaignfinance law continues, at least presumptively, to 

equate donations received by the NRA from individual supporters with the funds amassed by Exxon 

from shareholders and profits. The law muzzles 

political speech of the nonprofit advocacy group no 

differently from that of the multinational corporation. 

This procrustean regulatory approach claims core 

political speech as its casualty without meaningful 

justification. Unexamined inclusion of nonprofit 

advocacy groups alongside for-profit corporations 

within the same speech-restrictive dragnet cannot be 

squared with the notion, consistent with the First 

Amendment, that “the benefit of the doubt” must go 

“to speech, not censorship,” FEC v. Wisconsin Right to 

Life, Inc., 127 S. Ct. 2652, 2674 (2007) (“WRTL II”) 

(opinion of Roberts, C.J.), or that “ ‘debate on public 

issues should be uninhibited, robust, and wideopen,’ ” Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 

(1964)). 

The instant case illustrates the continuing peril, 

and the continuing chill, suffered by nonprofit organizations that want simply to broadcast speech on 
4 


behalf of their individual members around election 

time. As things presently stand, the NRA and other 

nonprofits remain prohibited from funding any “electioneering communication” except to the extent that 

they (i) whisper through a sister PAC, or (ii) successfully litigate fact-specific, as-applied constitutional 

exemptions carved out in FEC v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”) 

and WRTL II. Going the PAC route is artificially 

constraining and enervating: by design, PACs are 

tightly limited in their mission, fundraising, and 

overall activities so as to drain them of efficacy relative to nonprofit advocacy groups’ actual, underlying 

support from individuals. Going the as-applied exemption route is inherently risky and costly: the 

Federal Election Commission typically, if not invariably, finds reason to contest any claim of exemption; as 

a practical matter, electioneering communications 

cannot be safely uttered, and the First Amendment 

often cannot be vindicated, unless and until a separate federal case has been brought and adjudicated 

with respect to a particular speaker or speech, typically well after the window for relevant speech has 

closed. The safe harbors, such as they are, are too 

hotly contested at their borders to be obtained short 

of pitched warfare, and any victory won on the battlefield is likely to be Pyrrhic – secured at great cost, 

only after the fact. Constitutional protections for 

speech such as Hillary: The Movie are subject to 

guesswork and obtained only through litigation. 
 

5 


While supporting the arguments of Citizens 

United as to why its speech is not subject to restriction (up to and including the argument that Austin 

should be overruled rather than extended), amicus 

here draws attention to one crucial aspect of BCRA 

that has long been overlooked – the provision applying the ban on corporate electioneering communications specifically to 501(c)(4) corporations funded by 

individuals. This provision is unconstitutional as 

applied to such corporations, and it is due to be 

severed. Once it has been, the entitlement of nonprofits such as Citizens United and the NRA to fund 

electioneering communications with donations from 

individuals will be clear to all; case-by-case adjudication of challenges such as this may then be dispensed 

with, to the lasting benefit of the courts, the parties, 

the polity, and the First Amendment. 

 Ironically, BCRA itself has always housed a ready 

solution to the constitutional problems it poses for 

nonprofits’ political expression. BCRA’s principal 

sponsors had conscientiously differentiated, via the 

“Snowe-Jeffords” exemption of section 203(b), nonprofit corporations funded by individuals and exempted 

them from the ban on corporate electioneering. Congress initially crafted a provision exempting 501(c)(4) 

membership organizations from the ban on corporate 

funding of electioneering communications, provided 

funds were derived solely from individuals’ contributions and maintained in an account segregated from 

any corporate contributions. In this way, an advocacy 

organization’s political message would be legally 
 

6 


tethered to its popular support in the political marketplace. The late Senator Wellstone and his supporters, however, wanted to go further still; they 

successfully insisted on painting over nonprofits’ 

political speech with a broader regulatory brush. The 

“Wellstone Amendment” took aim specifically at the 

NRA, the Sierra Club, and similar advocacy groups, 

see 147 CONG. REC. S2847 (daily ed. Mar. 26, 2001) 

(statement of Sen. Wellstone); it was designed to 

prevent them and other nonprofits from funding 

electioneering communications with individual 

donations. Recognizing that the constitutionality of 

the Wellstone Amendment was dubious, however, 

Congress made sure it would be cleanly severable 

from the remainder of BCRA. 147 CONG. REC. S3073 

(statement of Sen. Feingold) (daily ed. Mar. 29, 2001). 

This Court should now hold that, whatever 

Austin’s vitality and application may be with respect 

to for-profit corporations, Austin’s anti-distortion 

rationale supplies no justification for regulating 

amicus, Citizens United, and their nonprofit brethren 

along the lines of the Wellstone Amendment, which 

cannot be constitutionally applied to them. Instead, 

the original Snowe-Jeffords exception is the less 

restrictive – and therefore constitutionally compelled 

– alternative by which to pursue any operative regulatory interest associated with Austin. By so holding, 

this Court would do much to repair the harm that 

campaign-finance regulation has wrought upon core 

political speech and to restore nonprofits and their 
 

7 


individual supporters to their proper standing within 

our polity. 

Meaningful examination of this point has thus 

far eluded the Court. In McConnell v. FEC, although 

a challenge to the constitutionality of the Wellstone 

Amendment was squarely posed by amicus and other 

nonprofits, the Court appeared to sidestep it. All the 

Court offered, while rejecting a facial challenge, was 

a terse parenthetical: “As so construed [to incorporate 

an MCFL exception], the provision [banning corporate funding of electioneering communications] is 

plainly valid. See Austin, 494 U.S., at 661-665 (holding that a segregated-fund requirement that did not 

explicitly carve out an MCFL exception could apply to 

a nonprofit corporation that did not qualify for MCFL 

status).” McConnell v. FEC, 540 U.S. 93, 210 (2003). 

There was no meaningful treatment of extensive 

arguments that had been made to the Court about 

the disconnect between Austin’s specific concern with 

for-profit corporations and the Wellstone Amendment’s restriction of nonprofits, or about how the 

Wellstone Amendment had inexplicably displaced the 

less-restrictive alternative of Snowe-Jeffords. Then, 

two Terms ago, in Wisconsin Right to Life, the Chief 

Justice’s opinion expressly acknowledged the question 

as posed by some amici, but found no need to “pass on 

this argument” given the record presented in that 

“as-applied challenge.” WRTL II, 127 S. Ct. at 2672 

n.10 (opinion of Roberts, C.J.). Amicus respectfully 

urges the Court to address it here. 
 

 

8 


In the instant case, the Wellstone Amendment 

can and should be struck down and the bright-line 

safe harbor of Snowe-Jeffords restored for nonprofit 

advocacy corporations funded by individual members 

and supporters. As discussed in Appellant’s brief, 

Citizens United received only de minimis contributions from for-profit corporations, see Citizens United 

Br. 7; JA 244a, 251a-52a, which surely do not implicate Austin’s concern about funds amassed in the 

economic marketplace potentially infecting and 

taking control over the political marketplace. The 

same $1 million-plus behind Hillary would have 

materialized, and the same speech would have resulted, irrespective of the de minimis contributions by 

business corporations. 

This Court should thus hold that a 501(c)(4) 

corporation that complies with Snowe-Jeffords by 

funding an electioneering communication exclusively 

with individual donations is, by virtue of the First 

Amendment, categorically beyond reach of the corporate ban to the extent it might otherwise apply. Thus, 

Austin’s application would be properly limited to its 

rationale, and nonprofit corporations otherwise eager 

to weigh in around election time would enjoy the 

clear safe harbor that remains both necessary and 

wanting. 

---------------------------------♦--------------------------------­
 

 

 

 

 

9 

ARGUMENT 

I. 	 BCRA’S RESTRICTION OF NONPROFITS’ 

CORE POLITICAL EXPRESSION FUNDED 

BY INDIVIDUALS IS INCOMPATIBLE 

WITH THE FIRST AMENDMENT. 

Title II of BCRA is, by operation and design, antispeech. It is no accident that Title II restricts political 

speech by nonprofit organizations that are devoted to 

political missions echoing the political views of individual supporters.2

 Congress was very clear about its 

reasons for restricting nonprofits’ ability to draw 

upon their treasury funds to fund political expression. 

Its reasons were, to be sure, patently unconstitutional, but they were reasons all the same. Even as a 

majority of the Court in McConnell elided reams of 

legislative history reflecting that Members of Congress specifically targeted disfavored speech (negative 

attack ads) precisely because they feared its content 

(criticism of Members of Congress), Justice Scalia’s 

2 Notably, the NRA was singled out by name in relevant 

legislative debates as an especially worthy target. See 147 CONG. 

REC. S2847 (daily ed. Mar. 26, 2001) (statement of Sen. 

Wellstone) (referencing the NRA and Sierra Club as prototypical 

organizations whose ads should be restricted); 145 CONG. REC. 

H3174 (daily ed. May 14, 1999) (statement of Rep. Schakowsky) 

(“If my colleagues care about gun control, then campaign finance 

reform is their issue so that the NRA does not call all the 

shots.”); 148 CONG. REC. H424 (daily ed. Feb. 13, 2002) (statement of Rep. Pickering) (quoting Scott Harshberger, the President of Common Cause, who championed BCRA by saying: “ ‘A 

vote for campaign finance reform is a vote against the second 

amendment gun lobby.’”). 
 

10 


dissenting opinion observed without rejoinder that 

“the most passionate floor statements during the 

debates on this legislation pertained to so-called 

attack ads, which the Constitution surely protects, 

but which Members of Congress analogized to ‘crack 

cocaine,’ 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), ‘drive-by shooting[s],’ id., at 

S879 (remarks of Sen. Durbin), and ‘air pollution,’ 

143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan).” McConnell, 540 U.S. at 260 (Scalia, J., dissenting). This notion combined with a congressional 

concern “that there is too much money spent on 

elections” to serve as the animating purposes behind 

Title II. Id. at 257. Of course, with those purposes in 

mind, it made little, if any, difference whether electioneering communications came from wealthy businesses or from nonprofit organizations funded by 

millions of individual contributors. Electioneering 

communications themselves were bad, and Congress 

set out to minimize what it viewed as noxious “negative attack ads” across the board. 

Still, some sponsors of BCRA recognized the need 

to take due account of this Court’s precedents regarding constraints posed by the First Amendment. Because the Court in MCFL displayed First Amendment 

solicitude for nonprofits and their individual donors, 

but in Austin expressed concern specifically with forprofit business corporations dominating political 

debate, Congress initially saw fit to draw a clear 

line differentiating one type of corporation from 

the other for purposes of Title II’s ban on corporate 
 

11 


electioneering. Thus, the Snowe-Jeffords provision of 

section 203(b) of BCRA exempted 501(c)(4) membership organizations from the law’s ban on funding 

electioneering communications with general treasury 

funds, provided the relevant funds were derived 

solely from contributions from individuals and maintained in an account segregated from any corporate 

contributions. The upshot of Snowe-Jeffords was to 

ensure that an organization’s political message would 

reflect its popular support in the political marketplace. At that point, the threat identified in Austin – 

namely, that business corporations or their 501(c)(6) 

trade associations might use wealth generated in the 

economic marketplace to unfairly distort the political 

arena with electioneering communications having 

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

corporation’s political ideas,” 494 U.S. at 660-61 – had 

been wholly contained. 

That ultimately was not enough to satisfy 

Congress, which proceeded to broaden the ban on 

corporate electioneering communications to include 

nonprofits funded by individuals. The Wellstone 

Amendment was added solely to nullify section 

203(b) of Snowe-Jeffords – without regard for any 

Austin rationale: Congress was not attempting to 

ensure that corporations’ political speech properly 

correlated with political support from individuals; it 

was trying to restrict corporations’ political speech 

notwithstanding political support from individuals. 

Aimed specifically at the NRA, the Sierra Club, and 

similar advocacy groups, see 147 CONG. REC. S2847 
 

 

 

12 


(daily ed. Mar. 26, 2001) (statement of Sen. Wellstone), the Wellstone Amendment was meant to 

prevent individuals from combining their voices with 

others of like mind “in organizations which serve to 

‘amplif [y] the voice of their adherents,’ ” FEC v. 

NCPAC, 470 U.S. 480, 494 (1985) (quoting Buckley, 

424 U.S. at 22).3 Under this regime, a billionaire can 

spend the dividends he receives from stock investments on political speech, but Americans of ordinary 

means cannot pool their resources to make themselves heard through nonprofits. 

Fully grasping that the Wellstone Amendment 

was “susceptible to a constitutional challenge,” 147 

CONG. REC. S3073 (daily ed. Mar. 29, 2001) (statement of Sen. Feingold), BCRA’s sponsors opposed its 

adoption, but opponents of BCRA rallied behind it 

(presumably for the same reason), and it was passed. 

To ensure that it would not doom Title II as a whole, 

however, BCRA’s sponsors provided that the 

Wellstone Amendment could, as the three-judge 

district court put it in McConnell, be “cleanly struck 

from the law.” McConnell v. FEC, 251 F. Supp. 2d 

176, 216 (D.D.C. 2003) (per curiam). 

3 See 147 CONG. REC. S2848 (daily ed. Mar. 26, 2001) 

(statement of Sen. Wellstone) (“individuals with all of this 

wealth” will “make their soft money contributions to these sham 

issue ads run by all of these . . . organizations, which under this 

loophole can operate with impunity” to run “poisonous ads”); id. 

at S2850 (noting that only .002% of Americans donate more than 

$10,000 to candidates, and explaining, “I have an amendment 

that tries to make sure . . . this big money doesn’t get” through.). 
 

 

 

 

13 


As Senator Feingold explained: 

I voted against adding th[e Wellstone] 

amendment. I thought and still think that it 

makes Snowe-Jeffords more susceptible to a 

constitutional challenge, but it passed when 

many Senators who oppose the bill and the 

Snowe-Jeffords provision voted for it. In any 

event, the Wellstone amendment was written 

to be severable from the remainder of the 

Snowe-Jeffords provision. That gives even 

more significance to the vote we will have 

today on severability. But if we win that 

vote, Snowe-Jeffords will survive even if the 

Wellstone amendment is held to be unconstitutional. 

147 CONG. REC. S3073 (statement of Sen. Feingold) 

(daily ed. Mar. 29, 2001).4 

Notwithstanding that Congress expressly contemplated severance of the Wellstone Amendment, it 

has (rather incredibly) remained operative from McConnell forward – even in the absence of any cogent 

4 See also 147 CONG. REC. S2882 (daily ed. Mar. 26, 2001) 

(statement of Sen. Edwards) (“[T]he reason Senator Feingold 

and Senator McCain are opposing th[e Wellstone] amendment is 

the same reason that I oppose this amendment: It raises very 

serious constitutional problems.”); id. at S2847-48 (daily ed. 

Mar. 26, 2001) (statement of Sen. Wellstone) (“I have drafted 

this amendment to be fully severable. In other words, no one can 

suggest that even if the court finds this amendment unconstitutional, it would drag down the rest of this bill or even jeopardize 

the other provisions of Snowe-Jeffords.”). 
 

 

14 


analysis or explication of its constitutionality.5 The 

result has been a series of challenges and continued 

litigation by 501(c)(4) organizations that would otherwise be wholly unnecessary. Due to the continuing 

5 After rounds of legislation and litigation, no plausible 

constitutional justification has emerged for the Wellstone 

Amendment – not even post hoc. Some would posit a “fungibility 

of money” theory whereby the Wellstone Amendment guards 

against the prospect that nonprofit groups might otherwise use 

corporate contributions to offset their expenses, thereby freeing 

up individual contributions to fund “electioneering communications.” That phenomenon is an independent, persisting feature 

of campaign finance law, however, as corporations remain free to 

fund the administrative and operating expenses of their PACs 

out of general treasury funds. See 11 C.F.R. § 114.5(b). Moreover, 

this Court’s teaching is simply that Congress may require a 

corporation’s expenditures to bear a meaningful “correlation,” 

Austin, 494 U.S. at 660, or to constitute a “rough barometer” of 

the public’s support for its political views, MCFL, 479 U.S. at 

258. Others would posit that the Wellstone Amendment is an 

“internal governance” measure that prevents advocacy groups 

from using general treasury monies to fund political messages 

with which some individual contributors may disagree. Again, 

that departs from this Court’s teaching that political expression 

need only “correlate” with or be a “rough barometer” of public 

support. Insisting upon perfect correlation would prevent 

nonprofit advocacy groups from making essential executive 

decisions on behalf of their members; it would thereby effectively disable individuals of modest means from participating 

meaningfully in our democracy by “delegat[ing] authority” to 

nonprofit organizations that spend their donations “in a manner 

that best serves the shared political purposes of the organization 

and contributor,” MCFL, 479 U.S. at 261; see also NCPAC, 470 

U.S. at 494-95. Finally, had any such concern truly motivated 

Congress, it could “be met . . . by . . . simply requiring that 

contributors be informed that their money may be used for [an 

electioneering] purpose.” MCFL, 479 U.S. at 261. 
 

15 


operation of the Wellstone Amendment, nonprofit 

advocacy groups must struggle under the corporate 

ban and attempt to vindicate their constitutional 

right to fund electioneering communications on an 

election-by-election, ad-by-ad basis. 

A return to first principles would spell the end of 

this unfortunate saga. The Wellstone Amendment 

runs directly contrary to this Court’s consistent First 

Amendment teaching: “To say that [individuals’] 

collective action in pooling their resources to amplify 

their voices is not entitled to full First Amendment 

protection would subordinate the voices of those of 

modest means as opposed to those sufficiently 

wealthy to be able to buy expensive media ads with 

their own resources.” FEC v. NCPAC, 470 U.S. at 495. 

And the only pre-McConnell decision of this Court 

ever to uphold an expenditure limit, Austin, 494 U.S. 

652, could not possibly support the corporate ban at 

issue. By the most charitable (and constitutionally 

sanitized) account of Title II’s purpose, Congress 

intended merely to ensure that spending on electioneering communications “reflect[s] actual public support for the political ideas espoused by corporations” 

and unions, rather than their success in the economic 

marketplace. Id. at 660. Such reasoning cannot 

justify a speech restriction that extends any further 

than might be necessary to ensure that a nonprofit 

advocacy group’s independent political spending 

bears a fair and reasonable “correlation to the public’s 

support for the corporation’s political ideas.” Id. 
 

16 


Austin’s rationale finds no application here. 

Citizens United, like amicus and unlike trade or 

business associations, has derived only a miniscule 

portion of its relevant funding from corporate contributions. Yet Citizens United, like amicus and other 

nonprofit advocacy groups, remains generally prohibited from using individual contributions in its general 

treasury to fund independent electioneering communications. Thus, far from preventing a nonprofit 

advocacy group’s political voice from being unfairly 

inflated by funds derived from the economic marketplace, Title II artificially mutes that political voice 

when compared to actual public support in the political marketplace. 

Under traditional strict scrutiny, the Wellstone 

Amendment was doomed at birth (as many of BCRA’s 

key supporters foresaw) and is (over)due to be struck 

down. It is unconstitutional either because it serves 

an illegitimate – and certainly not compelling – 

content-based purpose, or because any anticorruption – or, more accurately, anti-distortion – 

purpose that it may serve per Austin could be 

achieved through the less restrictive alternative of 

Snowe-Jeffords. However the holding may be 

couched, amicus respectfully urges the Court to hold 

that Title II’s ban on corporate funding of electioneering communications is unconstitutional as presently 

constituted and/or that Title II cannot constitutionally be applied to 501(c)(4) corporations to the extent 

they fund electioneering communications with individuals’ donations. 
 

 

17 


II. 	NONPROFITS CURRENTLY REMAIN 

STIFLED BECAUSE ANY “SAFE HARBORS” THEY MIGHT INVOKE ARE ILLUSORY. 

It has been suggested that Title II poses no real 

problems for amicus and other nonprofits given the 

availability of (i) PACs to fund electioneering communications, (ii) the MCFL exception for which some 

nonprofits may qualify, and/or (iii) the WRTL II 

exception for ads susceptible of any “reasonable 

interpretation other than as an appeal to vote for or 

against a specific candidate.” WRTL II, 127 S. Ct. at 

2667 (opinion of Roberts, C.J.). By that account, the 

continuing controversy and litigation manifested in 

this case and others like it is, in the grand scheme of 

things, really much ado about nothing: the contours 

of proper regulation of corporate speech, so the argument goes, can be entrusted to the FEC’s sound 

discretion to administer, with political speech by 

political speakers in fact left untrammeled. 

When the FEC reaches this Court, it understandably presents its regulatory scheme in the most 

reasonable, benevolent light, insisting that all is 

going well below. That Hillary – which is no 30­

second exhortation to vote, but a 90-minute documentary complete with in-depth interviews about a prior 

Presidential administration, the career of a sitting 

Senator, and the course of a Presidential candidacy – 

is now alleged to be beyond the scope of the Constitution’s protection and subject to criminal prohibition 
 

 

18 


should itself give the lie to any such notion. Lest 

there be any doubt about the problems posed by the 

existing regime, amicus wishes to emphasize that the 

avenues theoretically available for nonprofit advocacy 

groups to fund electioneering communications are, in 

practice, illusory. 

A. 	Political Action Committees Cannot 

Speak Adequately For Nonprofit Advocacy Groups and Their Individual 

Supporters. 

Defenders of Title II invariably emphasize that it 

merely restricts the source from which corporations 

may fund electioneering communications, with corporations left free to fund the very same speech through 

their PACs. According to them, Congress’s intent for 

the Wellstone Amendment to stem the tide of negative attack ads by nonprofit advocacy groups was 

folly; the same ads would continue to run uninhibited, only funded by PACs rather than general treasuries. Congress, of course, knew better, and so should 

this Court. 

A battery of regulatory and practical hurdles 

precludes groups such as the NRA from using their 

PACs to make independent expenditures commensurate with public support for their political message. 

These regulations [governing PACs] are more 

than minor clerical requirements. Rather, 

they create major disincentives for speech, 

with the effect falling most heavily on 
 

19 

smaller entities that often have the most 

difficulty bearing the costs of compliance. 

Even worse, for an organization that has not 

yet set up a PAC, spontaneous speech that 

“refers to a clearly identified candidate for 

Federal office” becomes impossible, even if 

the group’s vital interests are threatened by 

a piece of legislation pending before Congress on the eve of a federal election. . . . 

Couple the litany of administrative burdens 

with the categorical restriction limiting 

PACs’ solicitation activities to “members,” 

and it is apparent that PACs are inadequate 

substitutes for corporations in their ability to 

engage in unfettered expression. 

McConnell, 540 U.S. at 332 (Kennedy, J., concurring 

in the judgment in part and dissenting in part). 

The NRA is, to be sure, a sophisticated and wellpracticed political speaker. It has a PAC and knows 

how to use it. But the NRA’s PAC, the Political Victory Fund (“PVF”), is strictly barred from soliciting 

beyond the NRA’s membership for contributions, and 

no portion of an NRA member’s membership fees may 

be allocated to PVF. See 11 C.F.R. § 114.7; id. at 

§ 114.1. Thus, as Judge Henderson explained in the 

McConnell case: “While NRA PVF raised $17.5 million during the 2000 election cycle, the NRA received 

over $300 million in contributions from individuals 

during the same period. The disparity stems from the 

inability of NRA members – most of whom are individuals of modest means – to pay the NRA’s membership fees and then contribute beyond that amount 
 

 

 

 

 

20 


to NRA PVF.” McConnell, 251 F. Supp. 2d at 318 

(internal citations omitted). Title II deprives millions 

of ordinary individuals who cannot afford this increased financial burden of their ability to join collectively in making “electioneering communications” to 

support and preserve the Second Amendment. Id. 

Although some would justify restricting independent expenditures on political speech as necessary 

“to democratize the influence that money itself may 

bring to bear upon the electoral process,” Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 401 (2000) 

(Breyer, J., concurring), Title II stands that reasoning 

on its head. By requiring a group’s political speech to 

be channeled through its PAC, BCRA ensures that the 

voices of members of modest means will be muffled.6 

6 The recent general election no doubt demonstrated that 

people of moderate means can still pool their monies by contributing directly to a candidate. See Michael Luo, Obama Hauls in 

Record $750 Million for Campaign, N.Y. TIMES, Dec. 4, 2008, at 

A29. But many of the methods President-Elect Obama used to 

collect three-quarters of a billion dollars in this election cycle are 

unavailable to PACs, which are restricted to soliciting only their 

membership. Thus, effective use of broad-based Internet, television, 

and direct-mail solicitations – which, in 2008, set a record for 

bringing money into politics despite BCRA – are all out of 

bounds for anyone but the candidates themselves. And, of 

course, candidate speech is no substitute for speech by outside 

interests, and funding a candidate one generally agrees with is 

not the same thing as collectively funding a specific, shared 

message. Indeed, one of Congress’s main purposes in enacting 

BCRA was to ensure that politicians themselves, especially 

incumbent politicians, control the terms of political debate. See, 

e.g., 143 CONG. REC. S10,105 (daily ed. Sept. 29, 1997) (statement 

(Continued on following page) 
 

21 


For this reason, Title II works a similar inversion 

of the Austin Court’s reasoning. There, the Court 

upheld a limit on corporate independent expenditures 

as justified to prevent wealth generated in the economic marketplace from unfairly inflating the 

strength of the corporation’s political voice beyond the 

“public’s support for the corporation’s political ideas.” 

494 U.S. at 660. The NRA’s wealth, like that of typical 

advocacy groups, is attributable to its success in the 

political marketplace, not the economic marketplace, 

and its general treasury “accurately reflects members’ 

support for the organization’s political views. . . .” Id. 

at 666. By requiring an advocacy group’s political 

speech to be channeled through a PAC, Title II deflates the strength of the organization’s voice in the 

political marketplace vastly below its “contributors’ 

support for the corporations’ political views.” Id. at 

660-61. Far from ensuring that “resources amassed in 

the economic marketplace [are not] used to provide 

of Sen. McCain) (“These groups often run ads that the candidates themselves disapprove of.”); 144 CONG. REC. S10,169 (daily 

ed. Sept. 10, 1998) (statement of Sen. Boxer) (“[O]utside special 

interest groups regularly spend millions of dollars . . . often 

leaving those candidates mere spectators in their own election 

campaigns.”); 144 CONG. REC. H4787 (daily ed. June 18, 1998) 

(statement of Rep. Wamp) (“Pretty soon we as candidates will 

not even be able to control the message in our own campaigns.”); 

145 CONG. REC. S12,608-09 (daily ed. Oct. 14, 1999) (statement 

of Sen. Boxer) (“It brings in other issues that the two candidates 

themselves do not even want to talk about.”). See also 144 CONG. 

REC. S917 (daily ed. Feb. 24, 1998) (statement of Sen. Jeffords); 

148 CONG. REC. S2117 (daily ed. Mar. 20, 2002) (statement of 

Sen. Cantwell). 
 

 

22 


an unfair advantage in the political marketplace,” 

MCFL, 479 U.S. at 257, Title II ensures that resources amassed in the political marketplace cannot 

be put to use in the very place from whence they 

came. Characterizations of Title II as a mere “source” 

restriction cannot disguise this reality. 

B. The 	MCFL Exception Is Grudgingly 

Administered and Difficult To Satisfy 

In Practice. 

As administered by the FEC, the existing MCFL 

exception is but a narrow aperture through which few 

nonprofit advocacy groups may squeeze. While providing relief for a limited subset of “qualified nonprofit corporations,” the FEC’s regulations employ 

procrustean criteria to minimize that subset; in the 

FEC’s hands, the existing exception is substantially 

narrower than this Court’s decisions in MCFL and 

Austin warrant. Specifically, the FEC has fashioned 

and imposed four requirements purportedly drawn 

from MCFL dicta, each of which unnecessarily limits 

the universe of speakers afforded the protections of 

the First Amendment. 

First, the FEC would deny First Amendment 

protection to any voluntary membership corporation 

that did not have as its “only express purpose . . . the 

promotion of political ideas.” 11 C.F.R. § 114.10(c)(1) 

(emphasis added). Of course, many nonprofit issue 

groups, including the NRA, not only advocate for the 

preservation of certain fundamental rights, but also 
 

 

23 


sponsor programs designed to further the exercise 

and enjoyment of those rights. According to the FEC, 

such diversity of purpose beyond that which is expressly and exclusively political can itself be disqualifying. 

Second, the FEC denies the protection of the 

First Amendment to any nonprofit that “engage[s] in 

business activities.” 11 C.F.R. § 114.10(c)(2). Such 

activities are defined to include “any provision of 

goods or services that results in income to the corporation.” Id. at § 114.10(b)(3)(i)(A) (emphasis added). 

Although the NRA sells numerous items that bear its 

name, such as hats and shirts, and generates advertising revenue from its magazines, those who purchase such items are plainly supporters of the 

organization. Thus, its “political resources reflect 

political support,” MCFL, 479 U.S. at 264, and do not 

present the dangers identified in MCFL or Austin, 

even though it falls within the FEC ban. Moreover, 

the NRA loses money on the sales of these items, such 

that these “business activities” drain corporate 

wealth rather than amass it. But such “business 

activities,” as construed by the FEC, can be disqualifying even so. 

Third, the FEC denies First Amendment rights to 

any corporation whose members “receive any benefit 

that is a disincentive for them to disassociate themselves with the corporation on the basis of the corporation’s position on a political issue.” 11 C.F.R. 

§ 114.10(c)(3)(ii) (emphasis added). The FEC would 

silence corporations that provide “[t]raining” and 
 

24 


“education” that are not “necessary to enable recipients to engage in the promotion of the group’s political ideas.” Id. at § 114.10(c)(3)(ii)(B). In contrast, 

however, the Court in Austin asked whether an 

advocacy organization’s “political agenda is sufficiently distinct from its educational and outreach 

programs,” 494 U.S. at 663 – not whether the organization’s educational programs are designed to teach 

recipients how to advance the group’s political 

agenda. Yet the FEC employs the latter inquiry as a 

ground for disqualification from MCFL status. 

Fourth, FEC regulations deny MCFL status to 

any nonprofit that “accept[s] donations of anything of 

value from business corporations, or labor organizations.” 11 C.F.R. § 114.10(c)(4)(ii). The lower courts 

have consistently rejected this ironclad prohibition on 

the acceptance of corporate donations, which precludes advocacy groups, however large they may be, 

from engaging in express advocacy if they accept so 

much as a penny of corporate contributions. See FEC 

v. NRA, 254 F.3d 173, 192 (D.C. Cir. 2001); North 

Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 

714 (4th Cir. 1999), cert. denied, 528 U.S. 1153 (2000); 

FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 292-93 

(2d Cir. 1995). The courts of appeals, however, remain 

divided as to whether it is the percentage or the 

absolute amount of corporate donations that counts, 

and where precisely the line is to be drawn. As a 

result, potential entitlement to MCFL status remains 

that much cloudier. 
 

 

25 


In sum, it is a rare 501(c)(4) corporation, from 

among the wide field whose expression is restricted 

by the Wellstone Amendment, that can find shelter 

under the FEC’s administration of the MCFL exception. It is therefore disingenuous to claim that MCFL 

solves the problems outlined herein, even as the 

operative law purposely leaves a body of 501(c)(4) 

corporations funded by individuals to be ground 

under its heel no differently from for-profit corporations. 

C. The 	WRTL Exception Is Subject To 

Uncertainty and Disagreement As Applied In Particular Cases. 

For the mine run of speakers who cannot satisfy 

the FEC that they qualify for the MCFL exemption, 

the only available protection is that provided by the 

test enunciated in WRTL II: An electioneering communication may be prohibited as “the functional 

equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as 

an appeal to vote for or against a specific candidate.” 

127 S. Ct. at 2667 (opinion of Roberts, C.J.). This is, 

by design, a speech-protective standard, and it is a 

welcome one. But the standard is not a bright line 

that would remove the chilling specter of an FEC 

enforcement action. As the dispute in this case demonstrates, an ad’s “reasonable interpretation” may 

be subject to competing glosses. Within the hotlycontested realm of campaign finance litigation, the 
 

 

26 


test is liable to serve largely as a jumping off point for 

lawyers and judges of differing views to stake out 

opposing positions. When disputes arise, resolution 

takes years, by which time the relevant elections 

have passed and the speech at issue has fallen stale; 

the mounting lesson of recent cases could not be 

clearer in this regard. 

It bears noting that the WRTL II standard closely 

resembles the back-up definition of electioneering 

communications that Congress included in Title II of 

BCRA. Under that definition, an “electioneering 

communication” would have been “any broadcast . . . 

communication which promotes or supports a candidate for that office, or attacks or opposes a candidate 

for that office . . . and which is also suggestive of 

no plausible meaning other than an exhortation to 

vote for or against a specific candidate.” 2 U.S.C. 

§ 434(f)(3)(A)(ii). That backup definition had, in turn, 

been modeled upon a test the Ninth Circuit formulated in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 

1987). See 147 CONG. REC. S2704-13 (daily ed. Mar. 

22, 2001) (statement of Sen. Specter) (introducing the 

backup definition and explaining it was derived from 

Furgatch). 

Suffice it to say that tests such as these, which 

depend upon vague words and the Government’s tin 

ear to differentiate between speech that is criminal 

and speech that is constitutionally protected, have 

long been thought to be suspect. See, e.g., Chamber of 

Commerce v. Moore, 288 F.3d 187, 194 (5th Cir. 2002) 

(finding the Furgatch standard unconstitutionally 
 

27 


vague and citing other cases to the same effect). The 

record in McConnell reflects the difficulties of crafting 

a safe harbor that depends upon the content of an ad. 

McConnell, 251 F. Supp. 2d at 802 (opinion of Leon, 

J.) (finding the final clause of the backup definition 

unconstitutionally vague because “it is extremely 

difficult, if not impossible, for a speaker to determine 

with any certainty prior to airing an ad that it” is 

“suggestive of no plausible meaning other than an 

exhortation to vote”) (internal quotation marks 

omitted).7

 In an “area permeated by First Amendment 

interests” any restriction on speech requires “ ‘precision.’ ” Buckley, 424 U.S. at 41 (quoting NAACP v. 

Button, 371 U.S. 415, 438 (1963)). Buckley warned 

against “supposedly clear-cut distinction[s]” that 

nonetheless “put[ ] the speaker . . . wholly at the 

7 As the deposition testimony in McConnell made plain, 

people “of common intelligence” are left to “guess at [the fallback 

definition’s] meaning and differ as to its application.” Connally 

v. General Constr. Co., 269 U.S. 385, 391 (1926). For example, 

when shown an ad that referred to candidate Al Gore and 

broadcast within sixty days of the 2000 general election, Senator 

Feingold was unsure whether the ad was pro-Gore or anti-Gore, 

while Senator McCain called it a “damning indictment” of Gore, 

and Representatives Meehan and Shays believed it promoted 

Gore. See Br. for Appellants/Cross Appellees Senator Mitch 

McConnell et al., McConnell, 540 U.S. 93 (2003) (No. 02-1674) at 

59-60 (citing the record for this and other examples). Thus, as 

Senator McCain himself stated regarding materially identical 

statutory language: “I am not a lawyer, but I have been involved 

so long and so engaged in these issues that words do have 

meaning, and this amendment is very vague.” 147 CONG. REC. 

S3116 (daily ed. Mar. 29, 2001). 
 

28 


mercy of the varied understanding of his hearers and 

consequently of whatever inference may be drawn as 

to his intent and meaning.” 424 U.S. at 43. 

 The WRTL II exception certainly marks an 

improvement over prior law. But it still requires a 

speaker to divine what “reasonable interpretation” 

will be ascribed to any given ad, and empowers 

government censors to push the outer limit of an 

imprecise, subjective, shifting line. Uncertainty, and 

therefore the chilling of core political speech, persist 

under WRTL II. By contrast, a speaker-based safe 

harbor promises clear, stable boundaries that protect 

and promote free speech. 

III. 	THIS IS AN APPROPRIATE CASE IN 

WHICH TO STRIKE DOWN THE WELLSTONE AMENDMENT AND VINDICATE 

THE FIRST AMENDMENT RIGHTS OF 

NONPROFIT ORGANIZATIONS AND THE 

INDIVIDUALS WHO SUPPORT THEM. 

Since BCRA became law in 2002, this Court has 

yet to squarely address the constitutionality of the 

Wellstone Amendment as it applies to nonprofit 

advocacy groups that would draw upon individual 

donations to fund their electioneering communications. 

 In McConnell, the NRA and others argued the 

facial unconstitutionality of the Wellstone Amendment specifically (along with Title II generally). All 

the majority opinion said on this point was this: “As 
 

29 


so construed [to incorporate an MCFL exception], the 

provision [banning corporate funding of electioneering communications] is plainly valid. See Austin, 494 

U. S., at 661-665 (holding that a segregated-fund 

requirement that did not explicitly carve out an 

MCFL exception could apply to a nonprofit corporation that did not qualify for MCFL status).” McConnell, 540 U.S. at 211. Thus, the Court read into the 

law an MCFL exception that was irreconcilable with 

the express prescription and clear legislative history 

of the Wellstone Amendment. The Court then stopped 

short of offering any analysis as to why the SnoweJeffords exception that Congress itself had crafted 

was not a less restrictive alternative to the Wellstone 

Amendment. The pertinent question loomed large: 

Why – consistent with MCFL and Austin – should 

501(c)(4) corporations that might fail to qualify for 

any MCFL exception not still be permitted to fund 

their political speech, including electioneering communications, with donations they received from 

individual supporters for that very purpose? The 

Court said nothing apart from the parenthetical 

citation to Austin quoted above. Amicus submits, 

therefore, that McConnell either contains no holding 

on this point or contains a holding so passing and 

unexamined that it falls at the lowest ebb of the 

already weak stare decisis applicable to constitutional 

rulings. 

The Court has yet to return to the question. The 

controlling opinion in WRTL II did, however, bracket 

it, saying there was “no[ need to] pass on this 
 

30 


argument,” as urged by some amici, given the record 

presented in that “as-applied challenge.” 127 S. Ct. at 

2673 n.10. There is compelling reason to pass on the 

question here and now. Some six years and three 

election cycles have elapsed since the Court decided 

McConnell, during which time nonprofit advocacy 

groups have remained subject to criminal prosecution 

simply for broadcasting the political speech their 

individual members support in the periods preceding 

elections. All the while, the threshold question of 

whether and how the Wellstone Amendment is constitutional has remained dangling. 

As discussed in Appellant’s brief, Citizens United 

received only de minimis contributions from for-profit 

corporations, see Citizens United Br. 7; JA 244a, 

251a-52a, which should not impact the constitutional 

calculus. Cf. FEC v. NRA, 254 F.3d 173, 192 (D.C. Cir. 

2001) (finding a $1,000 contribution to be de minimis 

and thus concluding that the Federal Election Campaign Act of 1971 “cannot constitutionally be applied 

to the NRA” for the relevant election cycle). If this 

case does not suffice to provoke a decision by this 

Court, it seems that none will, for there is an obvious 

chicken-and-egg problem: Absent the protections of 

the Snowe-Jeffords exception or something similar, 

a putative nonprofit corporate speaker lacks incentives 

to strictly limit itself to individual donations for purposes of funding a electioneering communication that 

would, as the law presently stands, be destined for 

prohibition in any event. This Court should therefore 

hold that the First Amendment protects a 501(c)(4) 
 

31 


corporation that does comply with Snowe-Jeffords 

and funds its electioneering communications exclusively with individual donations. 

Were the Court to deem McConnell’s holding 

inconsistent with the safe harbor sought here by 

amicus, it should at least clear the way for a narrower version of the approach suggested by SnoweJeffords. Specifically, in order to meet the concerns of 

Austin, the safe harbor could be limited to speech 

funded by individual contributions to 501(c)4’s whose 

donors were on notice that their contributions would 

be used for political purposes. MCFL itself suggests 

that, “if political fundraising events are expressly 

denominated as requests for contributions that will 

be used for political purposes, including direct expenditures, these events cannot be considered business 

activities.” 479 U.S. at 264. This standard was not 

before the Court in McConnell, and thus stare decisis 

could not possibly counsel against its adoption here. 

---------------------------------♦--------------------------------­
 

32 

CONCLUSION 

For the foregoing reasons, the judgment of the 

district court should be reversed, and Title II’s prohibition on corporate funding of electioneering communications should be held unconstitutional as applied 

to 501(c)(4) advocacy groups to the extent they fund 

their political speech with donations from individuals. 

Respectfully submitted, 

CHARLES J. COOPER 

Counsel of Record 

DAVID H. THOMPSON 

DEREK L. SHAFFER 

JESSE M. PANUCCIO 

COOPER & KIRK, PLLC 

1523 New Hampshire Ave., NW 

Washington, D.C. 20036 

(202) 220-9600 

January 15, 2009