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 AMICI CURIAE OF 

NORMAN ORNSTEIN, THOMAS MANN, 

ANTHONY CORRADO, AND DANIEL ORTIZ 

IN SUPPORT OF APPELLEE

_________ 

 H. CHRISTOPHER BARTOLOMUCCI

 Counsel of Record 

 PAUL A. WERNER

 HOGAN & HARTSON L.L.P. 

 555 Thirteenth Street, N.W. 

 Washington, D.C. 20004 

 (202) 637-5810 

 Counsel for Amici Curiae 
TABLE OF CONTENTS 

Page 

(i)

TABLE OF AUTHORITIES................................... ii 

STATEMENT OF INTEREST OF AMICI 

CURIAE ............................................................ 1 

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

ARGUMENT........................................................... 4 

I. THE COURT SHOULD NOT REOPEN THE 

ISSUE ADVOCACY LOOPHOLE THAT 

BCRA SECTION 203 CLOSED. ...................... 4 

CONCLUSION ....................................................... 16 
ii 

TABLE OF AUTHORITIES 

Page 

CASES: 

Arizona v. Rumsey, 467 U.S. 203 (1984) ............ 16

Austin v. Michigan Chamber of Commerce, 

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

Buckley v. Valeo, 424 U.S. 1 (1976) .................... passim 

FEC v. Beaumont, 539 U.S. 146 (2003)............. passim 

FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001)............................. 1 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) .......................................... 6, 7, 9 

FEC v. National Right to Work Comm., 459 

U.S. 197 (1982) ................................................. 5, 6 

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

2652 (2007) ....................................................... 2, 4, 16

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

McConnell v. FEC, 251 F. Supp. 2d 

176 (D.D.C.), aff’d in part & rev’d in part, 

540 U.S. 93 (2003) ............................................ passim

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

(2000). ............................................................... 2 

United States v. International Union United 

Auto., Aircraft & Agric. Implement Workers 

of Am., 352 U.S. 567 (1957).............................. 5 

Vieth v. Jubelirer, 541 U.S. 267 (2004) .............. 2

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 

410 (2006) ......................................................... 2 
iii 

TABLE OF AUTHORITIES—Continued 

Page 

 

STATUTORY AND REGULATORY PROVISIONS: 

Bipartisan Campaign Finance Reform Act of 

2002, Pub. L. No. 107-155, § 203, 116 Stat. 

91-92.................................................................. passim

Corrupt Practices Act, 1925, §§ 301, 313, 43 

Stat. 1070, 1074................................................ 6 

Federal Election Campaign Act of 1971, 2 

U.S.C. § 431 et seq. ........................................... 2 

2 U.S.C. § 431(9)(A)(i) ......................................... 6 

2 U.S.C. § 441b .................................................... 6, 7, 9 

2 U.S.C. § 441b(a)................................................ 6 

2 U.S.C. § 441b(b)(2)............................................ 3, 14 

RULES: 

S. Ct. R. 37.3(a).................................................... 2 

S. Ct. R. 37.6 ........................................................ 1 

OTHER AUTHORITIES: 

144 Cong. Rec.: 

 p. H6802 (daily ed. July 30, 1998) ................... 10 

 pp. S1048-49 (daily ed. Feb. 26, 1998)............. 13 

147 Cong. Rec. S2455-56 (daily ed. Mar. 19, 

2001).................................................................. 8 

148 Cong. Rec. S2104 (daily ed. Mar. 20, 2002). 13 

Investigation of Illegal or Improper Activities 

in Connection with 1996 Federal Election 

Campaigns, S. Rep. No. 105-167 (1998).......... passim 
iv 

TABLE OF AUTHORITIES—Continued 

Page 

 

Report of Thomas E. Mann, at

http://www.campaignlegalcenter.org/McCon

nell-31.html ...................................................... 8, 9, 10 

S. Rep. No. 1, pt. 2, 80th Cong., 1st Sess. 

(1947) ................................................................ 5 

 
 

STATEMENT OF INTEREST OF 

AMICI CURIAE 

Amici curiae are three political scientists who have 

dedicated much of their careers to studying, analyzing and writing extensively on Congress, federal 

elections, campaign finance, and American politics, 

and a law professor expert in election law.1 

Anthony J. Corrado, Jr. is a Professor of Government at Colby College and Chair of the Board of 

Trustees of the Campaign Finance Institute. He 

served as an expert witness in FEC v. Colorado 

Republican Fed. Campaign Comm., 533 U.S. 431 

(2001), and this Court cited and quoted his expert 

statement in its opinion in that case. 

Thomas E. Mann is a Senior Fellow in Governance 

Studies at the Brookings Institution. He served as 

an expert witness in McConnell v. FEC, 251 F. Supp. 

2d 176 (D.D.C.), aff’d in part & rev’d in part, 540 

U.S. 93 (2003), and this Court cited and quoted his 

expert report in its opinion in that case. See 540 U.S. 

at 124 nn.8, 9, 11 & 12; id. at 148 & 155. 

Norman J. Ornstein is a Resident Scholar at the 

American Enterprise Institute for Public Policy 

Research. He is the founder and director of the 

Campaign Finance Working Group, a group of scholars and practitioners that helped craft the McCainFeingold legislation. 

Stemming from their expertise and interest in federal elections and campaign finance reform, Professor Corrado, Dr. Ornstein, and Dr. Mann have filed 

 1 Pursuant to this Court’s Rule 37.6, we note that no 

part of this brief was authored by counsel for any party, 

and no person or entity other than amici curiae and their 

counsel made a monetary contribution to the preparation 

or submission of the brief. 
2 

 

amici briefs in previous cases before this Court 

involving election-law issues.2 

Daniel R. Ortiz is John Allan Love Professor of Law 

at the University of Virginia. He teaches and writes 

in the area of election law and served as coordinator 

of the Task Force on Legal and Constitutional Issues 

for the National Commission on Federal Election 

Reform chaired by Presidents Carter and Ford. 

The amici have a great interest in seeing to the 

success of the reforms that they helped bring to 

fruition and that have strengthened our federal 

campaign finance system, and offer their views to aid 

the Court in this case. Their brief is filed with the 

written consent of all parties pursuant to this Court’s 

Rule 37.3(a); the requisite consent letters have been 

filed with the Clerk. 

SUMMARY OF ARGUMENT 

This case involves another as-applied challenge to 

Section 203 of the Bipartisan Campaign Finance 

Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 

Stat. 91-92. See FEC v. Wisconsin Right to Life, Inc., 

127 S. Ct. 2652 (2007) (WRTL II). BCRA overhauled 

our federal election laws by amending, inter alia, the 

Federal Election Campaign Act of 1971 (FECA), 2 

U.S.C. § 431 et seq. See McConnell, 540 U.S. at 114. 

Section 203 of BCRA amended FECA by prohibiting 

corporations and unions from financing, with their 

general treasury funds, “electioneering communication[s]”—i.e., communications referring to a federal 

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

2652 (2007) (Corrado, Mann & Ornstein); Wisconsin Right 

to Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam) 

(Corrado, Mann & Ornstein); Vieth v. Jubelirer, 541 U.S. 

267 (2004) (Mann & Ornstein); McConnell v. FEC, supra

(Ornstein); FEC v. Colorado Republican Fed. Campaign 

Comm., supra (Mann); Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) (Mann). 
3 

 

office candidate and broadcast within 30 days of a 

primary or 60 days of a general election in the candidate’s jurisdiction. See 2 U.S.C. § 441b(b)(2). 

Citizens United argues that Section 203 could not, 

consistent with the First Amendment, bar it from 

using general treasury funds to make its documentary about then-Senator Hillary Clinton—Hillary: 

The Movie—available to cable subscribers “on demand” as she vied for the Democratic Party’s 2008 

presidential nomination. The Court has asked for 

supplemental briefing on the question whether it 

should overrule Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652 (1990)—which upheld a 

state statute requiring corporations and unions to 

use segregated funds for campaign advocacy—or 

McConnell—which, in the context of a facial challenge, held that Section 203 survived strict scrutiny. 

See 540 U.S. at 207-208. 

The answer to the Court’s question is no. Preventing corporations and unions from using their general 

treasury funds to influence federal elections is not a 

novel congressional objective; it is one that Congress 

has pursued for more than a century with this 

Court’s approval. BCRA is only Congress’s most 

recent effort “to purge national politics of what was 

conceived to be the pernicious influence of ‘big 

money’ campaign contributions.” Id. at 115 (quotation marks & citation omitted). 

Section 203 advances that goal by extending a 

longstanding prohibition against the use of corporate 

and union treasury funds for ads that expressly 

advocate the election or defeat of a federal candidate 

to cover a newly-defined form of communication—i.e., 

electioneering communications. Based on overwhelming evidence, Congress concluded that this 

extension was necessary to prevent corporations and 

unions from circumventing the pre-existing FECA 

prohibition by funding with treasury revenues ads 
4 

 

that, while falling short of prohibited “express advocacy,” were no less calculated to influence federal 

elections and likely had that effect. Section 203 thus 

closed a loophole in FECA that corporations and 

unions exploited during past elections. 

The Court should not reopen that loophole by overruling either Austin or McConnell. This Court has 

consistently affirmed the constitutionality of restrictions on corporate express advocacy and its equivalent in recognition of the effect of unchecked corporate spending on federal elections. There is simply 

no reason to think that rationale, which underpins 

Austin and McConnell, is no longer relevant—only a 

few years after McConnell upheld Section 203 and on 

the very heels of the reaffirmation of that judgment a 

Term ago in WRTL II. 

ARGUMENT 

I. THE COURT SHOULD NOT REOPEN THE 

ISSUE ADVOCACY LOOPHOLE THAT 

BCRA SECTION 203 CLOSED. 

“Since 1907, there has been continual congressional 

attention to corporate political activity, sometimes 

resulting in refinement of the law, sometimes in 

overhaul.” FEC v. Beaumont, 539 U.S. 146, 153 

(2003). Section 203 and the definition of “electioneering communication” fall into the former category. 

That provision extends the prohibition on the spending of corporate and union general treasury funds in 

connection with federal elections to encompass a 

newly-defined form of communication. But since the 

Court’s seminal ruling in Buckley v. Valeo, 424 U.S. 

1 (1976), “Congress’ power to prohibit corporations 

and unions from using funds in their treasuries to 

finance advertisements expressly advocating the 

election or defeat of candidates in federal elections 

has been firmly embedded in our law.” McConnell, 

540 U.S. at 203. Section 203 is no more than a 
5 

 

refinement needed to “ ‘plug [an] existing loophole’ ” 

in that longstanding prohibition. United States v.

International Union United Auto., Aircraft & Agric. 

Implement Workers of Am., 352 U.S. 567, 582, 585 

(1957) (UAW) (quoting S. Rep. No. 1, pt. 2, 80th 

Cong., 1st Sess. 38-39 (1947)). 

1. The Court does not confront Citizen United’s 

challenge to Section 203 in a vacuum, but instead 

should bear in mind that statute’s “historical prologue.” Beaumont, 539 U.S. at 156; see UAW, 352 

U.S. at 570 (“Appreciation of the circumstances that 

begot this statute is necessary for its understanding, 

and understanding of it is necessary for adjudication 

of the legal problems before us.”). That prologue is 

critical: The prohibition on corporate and union 

general treasury expenditures in connection with 

federal elections has long been a cornerstone of 

federal election law. See Beaumont, 539 U.S. at 152-

154. As this Court has recognized, that restriction 

reflects an abiding concern with the ability of corporations and unions to leverage their state-sanctioned 

privileges and to aggregate large amounts of capital 

into unfair political advantages. See Austin, 494 

U.S. at 658-659; FEC v. National Right to Work 

Comm., 459 U.S. 197, 207-208 (1982) (NRWC). 

Congress made its initial foray into the arena of 

campaign finance regulation more than a century 

ago—in 1907. The Tillman Act responded to the 

controversy over corporate contributions in the 1904 

elections and President Roosevelt’s call for a ban on 

corporate political contributions by banning “any 

corporation whatever from making a money contribution in connection with federal elections.” Beaumont, 539 U.S. at 153 (quotation marks & citation 

omitted). In 1925, Congress extended the Tillman 

Act’s prohibition on corporate contributions to encompass “anything of value” and by criminalizing the 

giving and receiving of corporate contributions. See
6 

 

NRWC, 459 U.S. at 209 (citing Corrupt Practices Act, 

1925, §§ 301, 313, 43 Stat. 1070, 1074). With the 

Taft-Hartley Act of 1947, Congress later extended 

the scope of this prohibition to include labor unions 

and “expenditures.” See McConnell, 540 U.S. at 117. 

In its “steady improvement of the national election 

laws,” id., Congress enacted FECA in 1971, which 

“ratified the earlier prohibition on the use of corporate and union general treasury funds for political 

contributions and expenditures.” Id. at 118. Specifically, FECA Section 441b, which constituted “merely 

a refinement of th[e] gradual development of the 

federal election statute,” NRWC, 459 U.S. at 209, 

made it “unlawful * * * for any corporation whatever 

* * * to make a contribution or expenditure in connection with any” federal election. 2 U.S.C. 

§ 441b(a); see FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238, 241 (1986) (MCFL). The term 

“expenditure” included “anything of value * * * for 

the purpose of influencing any election for Federal 

office.” 2 U.S.C. § 431(9)(A)(i). While barring expenditures of general treasury funds, however, FECA 

“expressly permitted corporations and unions to 

establish and administer separate segregated funds 

(commonly known as political action committees, or 

PACs) for election-related contributions and expenditures.” McConnell, 540 U.S. at 118. 

2. FECA Section 441b’s prohibition against corporate expenditures of “anything of value” in connection with federal elections was later modified by this 

Court in a way that ultimately prompted Congress to 

enact BCRA Section 203. In MCFL, this Court 

accepted the argument that FECA Section 441b 

“necessarily incorporates the requirement that a 

communication ‘expressly advocate’ the election of 

candidates,” 479 U.S. at 248, and held that “an 

expenditure must constitute ‘express advocacy’ in 

order to be subject to the prohibition of § 441b.” Id.
7 

 

at 249. This requirement stemmed from the Court’s 

prior decision in Buckley, which—in order to avoid 

vagueness and overbreadth concerns inhering in a 

different FECA provision—held that “expenditure 

encompassed ‘only funds used for communications 

that expressly advocate the election or defeat of a 

clearly identified candidate.’ ” Id. at 248-249 (quoting Buckley, 424 U.S. at 80). Buckley “adopted the 

‘express advocacy’ requirement to distinguish discussion of issues and candidates from more pointed 

exhortations to vote for particular persons.” MCFL, 

479 U.S. at 249. Buckley identified eight “more 

pointed exhortations,” 424 U.S. at 44 n.52, which 

later became “known as the ‘magic words’ requirement.” McConnell, 540 U.S. at 191. 

“As a result of MCFL, corporations and labor unions were permitted to use their general treasury 

funds on independent expenditures in connection 

with a federal election, provided that those independent expenditures did not contain words of ‘express advocacy.’ ” McConnell, 251 F. Supp. 2d at 

525-526 (Kollar-Kotelly) (footnote omitted). That 

meant that “corporations and labor unions could use 

their general treasury funds to pay for an advertisement which influenced a federal election, provided 

that the corporation or labor union did not use any of 

Buckley’s ‘magic words’ in the advertisement.” Id. at 

526 (emphasis added). 

3. The prohibition contained in FECA Section 441b 

(qualified by the magic words requirement) proved 

no exception to the lesson of experience that “candidates, donors, and parties test the limits of the 

current law.” Beaumont, 539 U.S. at 155 (quotation 

marks & citation omitted). After MCFL, corporations tested FECA Section 441b’s prohibition by 

making expenditures on ads that eschewed Buckley’s 

“magic words” but were no less effective at influencing federal elections than communications containing 
8 

 

“pointed exhortations” of support for or opposition to 

candidates for federal office. See McConnell, 251 F. 

Supp. 2d at 526 (Kollar-Kotelly). As Dr. Mann 

explained in his report in the McConnell litigation, 

research concerning this period reveals “extensive 

and elaborate efforts by parties, candidates, unions, 

corporations and groups to exploit this new issue 

advocacy loophole to avoid the strictures of federal 

election law.” Report of Thomas E. Mann 20-21 

[Mann Report]. 

4. The 1990s witnessed an explosion of issue advocacy in which corporations and unions “spent hundreds of millions of dollars of their general funds to 

pay for these ads.” McConnell, 540 U.S. at 127. The 

Annenberg Center for Public Policy concluded that 

“the numbers of ads, groups, and dollars spent on 

issue advocacy * * * climbed” markedly from the 

1996 to the 2000 election cycle. McConnell, 251 

F. Supp. 2d at 879 (Leon). It found that the 1995-96 

election cycle saw about “$135 million to $150 million 

* * * spent on multiple broadcasts of about 100 ads.” 

Id. 

The numbers only grew during the next election 

cycle: “77 organizations aired 423 advertisements at 

a cost of between $250 million and $340 million.” Id. 

And during the “1999-2000 election cycle, the Annenberg Center found that 130 groups spent over an 

estimated $500 million on 1,100 distinct advertisements.” Id. The Annenberg Center’s tracking of the 

rise of organizations’ reliance on issue advocacy did 

not escape Congress’s attention. See 147 Cong. Rec. 

S2455-56 (daily ed. Mar. 19, 2001). 

5. The meteoric rise in issue ads was not a coincidence but a strategy adopted by organizations intent 

on influencing federal elections. As Dr. Mann has 

explained, “[p]arties and outside groups used issue 

advocacy as a cover to finance campaigns for and 

against federal candidates in targeted races.” Mann 
9 

 

Report 24. Two judges on the three-judge District 

Court convened to review the pre-enforcement challenge to BCRA similarly found that organizations 

used issue ads to influence federal elections. Judge 

Kollar-Kotelly found “uncontroverted” evidence “that 

by the early 1990s and especially by 1996, interest 

groups had developed a strategy to effectively communicate an electioneering message for or against a 

particular candidate without using the magic words.” 

McConnell, 251 F. Supp. 2d at 528 (quotation marks, 

alteration & citation omitted). Judge Leon likewise 

concluded that the “factual record unequivocally 

establishes that [issue ads] have not only been 

crafted for the specific purpose of directly affecting 

federal elections, but have been very successful in 

doing just that.” Id. at 800. 

6. Buckley’s line between express advocacy and 

issue advocacy—later imported into FECA Section 

441b in MCFL—was not only easily and frequently 

circumvented but largely illusory from the start. See 

424 U.S. at 42. This Court in McConnell confirmed 

that the express advocacy test is “functionally meaningless.” 540 U.S. at 193, 217. In other words, 

“[w]hile the distinction between ‘issue’ and express 

advocacy seemed neat in theory, the two categories of 

advertisements proved functionally identical in 

important respects.” Id. at 126. 

Experience powerfully demonstrated that the express advocacy test and the focus on “magic words” 

failed accurately to identify communications designed to influence federal elections. As Dr. Mann 

has explained, “research by political scientists confirmed the suspicion” that there is “little difference 

in purpose and content between express advocacy 

and candidate-specific issue advocacy communications financed by parties and groups.” Mann Report 

24. The result: “Voters were unable to differentiate 

candidate-specific issue ads * * * sponsored by par-
10 

 

ties and outside groups from campaign ads run by 

candidates.” Id. 

That the dichotomy between express advocacy and 

issue advocacy is a false one was further born out by 

the McConnell litigation. All three of the judges of 

the District Court agreed that few ads run by candidates, parties or interest groups rely on words of 

express advocacy. See 251 F. Supp. 2d at 303 (Henderson); id. at 529 (Kollar-Kotelly); id. at 874 (Leon). 

The record before them confirmed that media professionals actually disfavored such heavy-handed 

tactics. Id. at 529-530 (Kollar-Kotelly); see also id. at 

305 (Henderson); id. at 874-875 (Leon). Rather, the 

“most effective” course, as “[a]ll advertising professionals understand,” is to “lead[ ] the viewer to his or 

her own conclusion without forcing it down their 

throat.” Id. at 529-530 (Kollar-Kotelly); id. at 875 

(Leon). 

Members of Congress themselves—some of them 

“seasoned professionals who have been deeply involved in elective processes and who have viewed 

them at close range over many years”3—confirmed 

that the “magic words” of express advocacy “do not 

distinguish pure issue advertisements from candidate-centered issue advertisements.” Id. at 532 

(Kollar-Kotelly). The Congressional Record is replete 

with such views. See, e.g., 144 Cong. Rec. H6802 

(daily ed. July 30, 1998) (statement of Rep. Shays) 

(“They are not sham in the sense that they do not 

have a right to speak, but they are not issue ads, 

they are campaign ads, and we call them such.”). 

7. The widespread practice of using soft money to 

fund issue ads designed to influence federal elections 

was further documented in the six-volume report—

spanning nearly 10,000 pages—that the Senate 

 3 Buckley, 424 U.S. at 261 (White, J., concurring in part 

& dissenting in part). 
11 

 

Governmental Affairs Committee (Committee), led 

by Chairman Fred Thompson and Ranking Member 

John Glenn, produced following its investigation into 

campaign finance law abuses during the 1996 presidential campaigns. See Investigation of Illegal or 

Improper Activities in Connection with 1996 Federal 

Election Campaigns, S. Rep. No. 105-167 (1998) 

(Thompson Report). This Court has characterized 

the Committee’s findings as “disturbing.” McConnell, 540 U.S. at 122. 

The Committee concluded that issue ads constituted “the second most significant loophole” in the 

pre-existing campaign finance regime. Thompson 

Report at 5968 (minority views). It “found such ads 

highly problematic for two reasons.” McConnell, 540 

U.S. at 131. First, because issue ads “accomplished 

the same purpose as express advocacy (which could 

lawfully be funded only with hard money), the ads 

enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide.” Id. Second, while the ads were 

“ostensibly independent of the candidates,” they were 

“often actually coordinated with, and controlled by, 

the campaigns.” Id. “The ads thus provided a means 

for evading FECA’s candidate contribution limits.” 

Id. The Committee’s findings bear out these conclusions. 

The Thompson Report found that both national 

parties used soft money to fund issue ads intended to 

influence the 1996 presidential election. The Democratic National Committee (DNC) spent $44 million 

on issue ads during the 1996 presidential election, 

while the Republican National Committee (RNC) 

spent $24 million. See Thompson Report at 4482; id. 

at 8294 (minority views). 

Just as the national parties exploited the issueadvocacy loophole, the Thompson Report also concluded that corporations and unions did too. Such 
12 

 

organizations spent “roughly one-seventh of the 400 

million dollars expended on political advertising 

during the 1996 elections by parties, candidates and 

others.” Id. at 3993. These ads were likewise intended to influence federal elections and were often 

coordinated with the presidential candidates’ campaigns or their respective national parties. Id. The 

Thompson Report found, for example, that 

“[e]vidence * * * indicates [that AFL-CIO] programs 

were conceived, designed and implemented to defeat 

Republican Members of Congress during the 1996 

elections.” Id.; see also id. at 128. 

Groups backing Republican candidates similarly 

used issue ads to influence federal elections. For 

instance, The Coalition: Americans Working for Real 

Change, a group formed to counter issue ads aired by 

the AFL-CIO, produced ads nearly identical to those 

run by the National Republican Congressional 

Committee (NRCC), a division of the RNC, aired 

them at the same time as the NRCC’s ads and “in 

districts where the Republican incumbent’s seat was 

vulnerable.” Id. at 8944 (minority views). Another 

group, Triad Management Services, also “channeled 

millions of dollars from its backers to two tax-exempt 

groups it had established for the sole purpose of 

running attack ads against Democratic candidates 

under the guise of ‘issue advocacy.’ ” Id. at 4569 

(minority views). 

The Thompson Report concluded that repairs to the 

campaign finance laws must involve restrictions on 

issue advocacy. “The majority expressed the view 

that a ban on the raising of soft money by national 

party committees would effectively address the use of 

union and corporate general treasury funds in the 

federal political process only if it required that 

candidate-specific ads be funded with hard money.” 

McConnell, 540 U.S. at 132; see Thompson Report at 

4492; id. at 9394 (minority views). 
13 

 

8. “Buckley’s express advocacy line [did] not aid[ ] 

the legislative effort to combat real or apparent 

corruption, and Congress enacted BCRA to correct 

the flaws it found in the existing system.” McConnell, 540 U.S. at 193-194. The legislative process 

culminating in the passage of BCRA spanned more 

than six years and generated multiple reform bills 

introduced in Congress. See McConnell, 251 F. Supp. 

2d at 434 & n.1. This process was influenced by the 

failings of the pre-BCRA campaign-finance regime 

brought to light by the Thompson Report as well as 

the reforms that the report proposed.4 Senator 

Feingold, for example, opined that, “in the wake of 

the Thompson investigation, we reluctantly concluded that we need to first focus our efforts on 

closing the biggest loopholes in the system: the soft 

money and the phony issue ads.” 148 Cong. Rec. 

S2104 (daily ed. Mar. 20, 2002) (statement of Sen. 

Feingold); see also 144 Cong. Rec. S1048-49 (daily ed. 

Feb. 26, 1998) (statement of Sen. Glenn). 

9. Section 203 directly combats the welldocumented problem of issue ads that avoided express advocacy but nevertheless have the purpose 

and likely effect of influencing federal elections. 

That section extended FECA’s pre-existing prohibition on the use of corporate and union general treasury funds to finance communications influencing 

federal elections—which MCFL had limited to communications expressly advocating election or defeat 

of a particular candidate—to cover any “electioneering communication.” 2 U.S.C. § 441b(b)(2). As a 

result, “corporations and unions may not use their 

 4 The House and Senate bills that became BCRA were 

not accompanied by explanatory committee reports. 

Members of Congress frequently relied on the Thompson 

Report’s findings in floor debates on BCRA, however. See, e.g., 147 Cong. Rec. S3138 (daily ed. Mar. 29, 2001) 

(statement of Sen. Levin) (“The 1997 Senate investigation 

collected ample evidence of campaign abuses.”). 
14 

 

general treasury funds to finance electioneering 

communications, but they remain free to organize 

and administer segregated funds, or PACs, for that 

purpose.” McConnell, 540 U.S. at 204. 

Congress’s new term—“electioneering communication”—is carefully calculated to identify (and block) 

corporate and union general treasury expenditures 

on advertisements intended to influence federal 

elections that escaped detection under Buckley’s 

express advocacy radar. Each criterion of Congress’s 

new term is bottomed on empirical evidence. First, 

the definition of electioneering communication aims 

only at the media “found by Congress to be problematic”—viz., broadcast, cable, and satellite communications. McConnell, 251 F. Supp. 2d at 569 (KollarKotelly). “The records developed in [the BCRA preenforcement] litigation and by the Senate Committee 

adequately explain the reasons for this legislative 

choice.” McConnell, 540 U.S. at 207. As Judge 

Kollar-Kotelly explained, that record “demonstrate[d] that more than any other medium, broadcast advertisements were the vehicle through which 

corporations and labor unions spent their general 

treasury funds to influence federal elections.” 

McConnell, 251 F. Supp. 2d at 573. The Thompson 

Report further supported Congress’s finding that 

“corporations and unions used soft money to finance 

a virtual torrent of televised election-related ads 

during the periods immediately preceding federal 

elections.” McConnell, 540 U.S. at 207. See Thompson Report at 4465, 4474-81; id. at 7521-25 (minority 

views). 

Second, the definition of electioneering communication encompasses only messages that refer to clearly 

identified candidates for federal elected office. 

During the pre-enforcement challenge, “[f]ederal 

officeholders and candidates * * * testif[ied] that, 

based on their experience, the intent behind issue 
15 

 

advertisements that mention the name of a federal 

candidate, are aired right before the election, and 

broadcast to the candidate’s electorate, is to influence the election.” McConnell, 251 F. Supp. 2d at 

534 (Kollar-Kotelly). These politicians’ intuitions 

were confirmed by political consultants’ “uncontroverted testimony that when designing pure issue 

advertisements, it was never necessary to reference 

specific candidates for federal office in order to create 

effective ads.” Id. at 628 (quotation marks & ellipsis 

omitted). 

Third, the 30- and 60-day pre-election blackout 

periods applicable to electioneering communications 

also strongly correlate to the periods during which 

ads aimed at influencing federal elections are most 

likely to air—the time period immediately preceding 

an election. And, in McConnell, this Court similarly 

concluded that, although “[t]he precise percentage of 

issue ads that clearly identified a candidate and were 

aired during those relatively brief [30 and 60 day] 

preelection time spans but had no electioneering 

purpose is a matter of dispute * * * the vast majority 

of such ads clearly had such a purpose.” 540 U.S. at 

206 (emphasis added) (citations omitted). 

Fourth, the definition of electioneering communication is keyed to messages that are targeted to the 

electorate relevant to the candidate to which the 

message refers. This component of the definition 

accounts for the fact that messages that “target 

substantial portions of the electorate who decide a 

candidate’s political future are those most likely to 

influence an election, and earn the candidate’s 

gratitude.” McConnell, 251 F. Supp. 2d at 633 

(Kollar-Kotelly). Officeholders and candidates 

confirmed that issue ads delivered to a candidate’s 

electorate were intended to influence the election. 

Id. at 534. 
16 

 

10. Acknowledging that “Congress’ careful legislative adjustment of the federal electoral laws, in a 

cautious advance, step by step, to account for the 

particular legal and economic attributes of corporations and labor organizations warrants considerable 

deference,” McConnell, 540 U.S. at 117 (quotation 

marks & citations omitted), this Court in McConnell

upheld Congress’s corrective measure embodied in 

BCRA Section 203, and BCRA’s primary definition of 

“electioneering communication” on which it relies, 

against a facial constitutional attack. See id. at 189-

194, 203-209. And only last Term, the Chief Justice, 

author of the controlling opinion in WRTL II, reiterated that “[t]his Court has already ruled that BCRA 

survives strict scrutiny to the extent it regulates 

express advocacy or its functional equivalent.” 127 

S. Ct. at 2664. 

There is no “special justification” for revisiting that 

holding (or Austin’s on which it relied in part) now. 

Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (in 

constitutional cases, “any departure from the doctrine of stare decisis demands special justification”). 

Overruling McConnell would free corporations and 

unions to engage in the very advocacy that Congress, 

political scientists, and this Court have concluded is 

harmful to the electoral process. In view of the long 

history of efforts to prevent corporations and unions 

from deploying war chests to unfairly influence 

federal elections that ultimately led to Congress’s 

passage of BCRA Section 203, there can be no question that they would take full advantage of their 

newfound liberty to do just that. 

CONCLUSION 

The judgment of the district court should be affirmed. 
17 

 

Respectfully submitted, 

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record 

PAUL A. WERNER

HOGAN & HARTSON L.L.P. 

555 Thirteenth Street, N.W. 

Washington, D.C. 20004 

(202) 637-5810 

JULY 2009 Counsel for Amici Curiae