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 
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. 

(I)

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. 
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


(V)

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

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. 

(1)

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 

MAY 2003 

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 
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 

(1a) 
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.