QUESTIONS PRESENTED

1. Whether the district court erred by upholding broad new

restrictions on so-called “electioneering communications” 

embodied in sections 201, 203, and 204 of the BCRA? 

2. Whether the district court erred by upholding aspects of 

the broad new “coordination” rules embodied in sections 

202 and 214 of the BCRA, and dismissing the challenge 

to other aspects of those rules as non-justiciable?

i
PARTIES TO THE PROCEEDING

The American Civil Liberties Union, appellant here,

was a co-plaintiff below in McConnell, et al. v. Federal 

Election Commission, et al., Civ. No. 02-582. The appellees 

here, who were defendants or intervenor-defendants in the 

district court, are the Federal Election Commission, the 

Federal Communications Commission, the United States of 

America, Senator John McCain, Senator Russell Feingold, 

Representative Christopher Shays, Representative Martin 

Meehan, Senator Olympia Snowe, and Senator James 

Jeffords. 

ii
TABLE OF CONTENTS 

 

 Page 

QUESTIONS PRESENTED.................................i 

PARTIES TO THE PROCEDING.........................ii 

TABLE OF CONTENTS...................................iii 

TABLE OF AUTHORITIES...............................iv 

INTRODUCTION............................................1 

OPINIONS BELOW..........................................2 

JURISDICTION...............................................3 

PERTINENT STATUORY PROVISIONS................3 

STATEMENT OF THE CASE..............................3 

THE QUESTIONS PRESENTED ARE 

SUBSTANTIAL.............................................14 

CONCLUSION................................................25 

iii
TABLE OF AUTHORITIES 

Cases 

 Page

American Civil Liberties Union v. Jennings, 

 366 F. Supp. 1041 (D.D.C. 1973) vacated as moot sub nom, 

Staats v. American Civil Liberties Union, 422 U.S. 1030 

(1975)......................................................................... 10, 23 

Arkansas Writers Project, Inc. v. Ragland, 

 481 U.S. 221 (1987)............................................................ 19 

Austin v. Michigan State Chamber of Commerce, 

 494 U.S. 652 (1990)............................................................ 11 

Brown v. Socialist Workers >74 Campaign Committee, 

459 U.S. 87 (1982)........................................................ 11, 22 

Buckley v. American Constitutional Law Foundation, 

 525 U.S. 182 (1999)............................................................ 24 

Buckley v. Valeo, 

 424 U.S. 1 (1976)......................................................... passim

California Medical Association v. FEC, 

453 U.S. 182 (1981)............................................................ 10 

Colorado Republican Federal Campaign Committee v. FEC, 

 518 U.S. 604 (1996)............................................................ 11 

iv
 Page 

FEC v. Colorado Republican Federal Campaign Committee, 

533 U.S. 431 (2001) ............................................11 

FEC v. Massachusetts Citizens for Life Inc., 

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

FEC v. National Conservative Political Action Committee,

470 U.S. 480 (1985)............................................................. 11 

FEC v. National Rifle Association, 

 254 F3d 173 (D.C. Cir. 2001)............................................. 16 

McIntyre v. Ohio Elections Commission, 

 514 U.S. 334 (1995)..............................................22 

NAACP v. Alabama, 

 357 U.S. 449 (1958)............................................................ 22 

New York Civil Liberties Union v. Acito, 

 459 F.Supp. 75 (S.D.N.Y. 1978)......................................... 23 

New York Times Co. v. Sullivan, 

 376 U.S. 254 (1964)............................................................ 16 

Nixon v. Shrink Missouri Government PAC, 

 528 U.S. 377 (2000)............................................................ 11 

Speiser v. Randall, 

 357 U.S. 513 (1958)............................................................ 15 

Talley v. California, 

362 U.S. 60 (1960).............................................................. 22 

 

v
 

 Page 

Thomas v. Collins, 

 323 U.S. 516 (1945)............................................................ 18 

United States v. National Committee for Impeachment, 

 469 F.2d 1135 (2d Cir.1972)............................................... 10

Wooley v. Maynard, 

 430 U.S. 705 (1977)............................................................ 16 

Statutes 

Bipartisan Campaign Reform Act 0f 2002, 

Pub. L. No. 107-155, 116 Stat. 81............ ...passim 

Federal Election Campaign Act, 

Pub. L. No. 92-225, 86 Stat. 3 (1972) ............10, 19 

Internal Revenue Code: 

§ 501(c)(4) .............................................................. 4, 9, 16 

§ 527 .................................................................................. 5 

Miscellaneous 

68 Federal Regulation 421 (Jan. 3, 2003).............................. 5 

vi
INTRODUCTION 

This case presents a challenge to key provisions of 

the Bipartisan Campaign Reform Act of 2002 (BCRA), 

Pub.L. No. 107-155, 116 Stat. 81, which impose new and 

unprecedented restrictions on core political speech in the 

guise of revising this nation’s campaign finance laws. 

The constitutional issues presented by this litigation

are obviously substantial and just as clearly merit this Court’s 

attention. Congress recognized as much when it provided an 

expedited appeal process to ensure prompt review by this 

Court. And, if nothing else, the staggering length of the 

lower court opinions in this case is surely a testament to the

importance of the constitutional issues at stake. So, too, is 

the sheer number and scope of the parties to this litigation. 

Despite its size and complexity, the BCRA was 

designed to achieve two principal goals. Title I prohibits the

use of so-called soft money by political parties, even for 

traditional party building activities such as voter registration

and get-out-the-vote drives. Title II makes it a crime for

even nonprofit, nonpartisan, membership organizations like 

the ACLU to broadcast an ad that mentions the name of a

federal candidate in the period preceding an election. 

The district court correctly recognized that neither of 

these broad provisions could be reconciled with our 

constitutional traditions. It therefore declined to uphold the

law that Congress had written. It nevertheless upheld a

rewritten version of the law that continues to pose severe 

constitutional problems. Because the ACLU is not directly 

affected by the soft money ban, we will leave it to others to 

explain why the continued prohibition on the use of soft 

money for issue advocacy is unconstitutional. We do, 

however, have a very direct stake in the lower court’s

interpretation of Title II.

1
If that interpretation is upheld, it will now be a crime

for the ACLU to broadcast an ad on radio or television 

advocating its views on a particular civil liberties dispute if

the ad could be construed as attacking, supporting, 

promoting, or opposing a candidate for federal office. To

place that dilemma in more concrete terms, President Bush

has just announced his intention to run for a second term. 

There have also been press reports that the Administration is

on the verge of convening a military commission to try at

least some of the detainees now being held at Guantanamo, 

and that the Administration may be seeking enhanced 

surveillance powers from Congress as part of a new 

legislative package. If the ACLU chose to oppose either of 

these steps on civil liberties grounds in a broadcast ad that 

referred to the President, we would be risking criminal 

prosecution based on the lower court’s decision in this case. 

That result would dramatically transform the rules of

political debate in this country and go far beyond anything 

this Court has ever permitted under the First Amendment.

The ACLU urges this Court to note probable jurisdiction and 

to reverse the district court on the questions presented in this 

jurisdictional statement. 

OPINIONS BELOW

The district court’s opinions are not yet reported. 

Pursuant to this Court’s order of May 15, 2003, the opinion 

will be reproduced in a single appendix that will serve as an

appendix to all the jurisdictional statements in this case. The 

ACLU’s notice of appeal is reprinted in the appendix to this

jurisdictional statement. 

2
JURISDICTION

The district court entered judgment on May 2, 2003. 

The ACLU filed its timely notice of appeal on May 7, 2003. 

This Court has appellate jurisdiction pursuant to § 403(a)(3) 

of the BCRA. 

PERTINENT STATUTORY PROVISIONS

The Bipartisan Campaign Reform Act of 2002 

(BCRA), Pub. L. No. 107-155, 116 Stat. 81, is reprinted in 

full in the appendix to the jurisdictional statement of

appellants McConnell, et al. Sections 201, 202, 203, 204, 

and 214 of the BCRA are set forth in the appendix to this 

jurisdictional statement. 

STATEMENT OF THE CASE 

1. This litigation arises from plaintiffs’ challenge to 

various provisions of the BCRA, including the soft money

restrictions embodied in Title I and the issue advocacy

restrictions embodied in Title II. As part of the McConnell 

complaint filed in the district court, the ACLU specifically 

alleged that its First Amendment right to speak out on issues

of concern to the organization and its members was violated

by the broad definition of “electioneering communications”

set forth in the BCRA. 

Prior to passage of the BCRA, corporations and 

unions were free to engage in political speech so long as the 

speech did not expressly advocate the election or defeat of a 

clearly identified candidate. See Buckley v. Valeo, 424 U.S. 

1, 45 (1976). Moreover, even this restriction did not apply to 

nonprofit, ideological corporations that satisfied the criteria 

set forth in FEC v. Massachusetts Citizens for Life, 479 U.S.

238 (1986). The BCRA dramatically expanded this 

regulatory regime by extending the ban on corporate and 

union expenditures to all “electioneering communications.” 

3
Congress provided two definitions of the term 

“electioneering communications” in § 201. Under the

primary definition, an “electioneering communication”

means any broadcast, cable, or satellite communication that: 

(a) refers to a clearly identified candidate for federal office; 

(b) is made within 60 days of a general election or 30 days of 

a primary election; and (c) is targeted to the relevant

audience (except in the case of the President or VicePresident where there is no targeting requirement). App. 4a. 

Congress also anticipated that the primary definition

might not be sustained. It therefore provided a fallback 

definition that applies only if the primary definition is

invalidated. In contrast to the primary definition, the fallback 

definition is not limited to the period preceding an election. 

Rather, it prohibits at any time a broadcast, cable, or satellite 

communication that “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).” In addition, the 

communication must be “suggestive of no plausible meaning 

other than an exhortation to vote for or against a specific 

candidate.” App. 5a.

Under § 203(a), corporations and unions are barred 

from using their general treasury funds to engage in 

“electioneering communications.” However, this apparently 

absolute prohibition is modified by § 203(b), the so-called

Snowe-Jeffords Amendment. Pursuant to Snowe-Jeffords, 

nonprofit corporations that qualify under § 501(c)(4) of the 

Internal Revenue Code, like the ACLU, are permitted to 

engage in “electioneering communications” if those 

communications are funded entirely by individual 

contributions and if the organization discloses its donors of 

$1,000 or more and makes detailed financial disclosure 

reports once its expenditures for electioneering

4
communications exceed $10,000 in any calendar year. App. 

8a.1

As the last piece of this statutory puzzle, Congress 

adopted § 204 of the BCRA, known as the Wellstone 

Amendment, which revokes the exception that the SnoweJeffords Amendment ostensibly provides. App. 10a.2

 In

short, the statute that emerged from Congress prohibits all 

unions and corporations - including nonprofit and 

nonpartisan corporations like the ACLU - from using their 

general funds to pay for any broadcast ad that names a 

clearly identified candidate within the 30/60 day window 

preceding federal elections. 

Finally, in § 214 of the BCRA, Congress tightened 

the rules on coordinated expenditures (which are treated as 

contributions) by repealing the existing FEC regulations and 

then instructing the FEC to issue new regulations that do not 

require “agreement or formal collaboration,” and that 

specifically address “payments for communications made . . . 

after substantial discussion about the communication with a 

candidate or political party.” App. 11a.3

 Pursuant to § 202 

of the BCRA, moreover, this reconception of the 

coordination rules applies not only to express advocacy but 

to all speech now embraced by the expanded definition of 

“electioneering communications.” 

 

1

 The Snowe-Jeffords exception also applies to “political organizations” 

organized under § 527 of the Internal Revenue Code. BCRA § 203(c)(2). 2

 It is not clear why Congress did not simply repeal the Snowe-Jeffords

Amendment when it adopted the Wellstone Amendment. The intent of

the Wellstone Amendment is nonetheless plain. It states that the 

exemption authorized by the Snowe-Jeffords Amendment “shall not

apply in the case of a targeted communication that is made by an

organization described in” the Snowe-Jeffords Amendment. In other 

words, the Snowe-Jeffords Amendment is rendered a nullity because it no 

longer applies to the organizations it was meant to cover. 3

 The FEC published its new regulations on January 3, 2003. See 68 Fed. 

Reg. 421. 

5
2. By a 2-1 vote, in a nearly 1700 page decision, the 

district court struck down the primary definition of 

“electioneering communications” contained in § 201 of the

BCRA as an overbroad restriction on constitutionally 

protected speech. The district court also struck down a 

critical portion of the fallback definition as unconstitutionally

vague. The district court nonetheless concluded that the 

remaining portion of the fallback definition could stand on its 

own, and was neither vague nor overbroad. 

As a result, the district court wound up sustaining a 

definition of “electioneering communications” that is broader 

in many ways than the definition it struck down as 

overbroad, that is vaguer in many ways than the definition it 

struck down as too vague, and that does not resemble the test 

for “electioneering communications” that Congress adopted 

as either its primary or its fallback definition.4

Judge Leon’s opinion was dispositive on the Title II 

questions.5

 While recognizing that a prohibition on 

broadcast ads that refer to a clearly identified candidate 

within 30 days of a primary election or 60 days of a general 

election has the benefit of clarity, he concluded that it 

“sweeps so broadly that it captures too much First 

Amendment protected speech . . .” Leon Mem. op. at 74. 

Quoting from a declaration submitted by Laura Murphy, 

director of the ACLU’s Washington Office, Judge Leon 

noted that “[t]he 60 days before a general election and 30 

 

4

 The district court also ruled on numerous other provisions of the BCRA, 

which we do not address here because they are beyond the scope of the 

questions presented in this jurisdictional statement. Those other rulings, 

however, have been presented to the Court in other jurisdictional

statements filed by the numerous parties to this litigation. 5

 In Judge Henderson’s view, both the primary and fallback definitions of

“electioneering communications” are unconstitutional in their entirety. 

Judge Kollar-Kotelly, on the other hand, argued that the primary

definition is consistent with the First Amendment and reluctantly 

endorsed the fallback definition only to ensure that at least some portion

of Title II was sustained.

6
days before a primary . . . are often periods of intense 

legislative activity. During election years, the candidates 

stake out positions on virtually all the controversial issues of

the day. Much of this debate occurs against the backdrop of 

pending legislative action or executive branch initiatives.” 

Id. at 75. He further recognized that the electorate is often 

most attentive in the period preceding an election, id. at 76,

and that the mere fact “that issue advertisements mention the 

name of a candidate . . . does not necessarily indicate, let

alone prove, that the advertisement is designed for 

electioneering purposes.” Id. at 77.

Having found the primary definition of 

“electioneering communications” to be unconstitutional, 

Judge Leon then turned his attention to the backup definition. 

He began his discussion by rejecting the claim that a 

prohibition on broadcasts ads that “promote,” “support, 

“attack,” or “oppose” a candidate for federal office is 

unconstitutionally vague. According to Judge Leon, a person 

of ordinary intelligence reading those words would 

understand what could or could not be said in a broadcast ad 

without running afoul of the criminal prohibitions of the 

BCRA. Id. at 91-926

 

Congress, apparently, had more concerns about the 

scope and ambiguity of this fallback definition than Judge 

Leon. It therefore attached a limiting principle to its fallback

definition of an electioneering communication, stipulating 

that it would only apply to broadcast ads that were 

“suggestive of no plausible meaning other than an 

 

6

 Judge Leon reached this conclusion despite the fact that undisputed 

evidence in the record demonstrated that even the most avid advocates of 

the BCRA often disagreed on whether a particular ad should be

characterized as a genuine issue ad or a so-called “sham ad.” As Judge

Kollar-Kotelly noted in her concurring opinion, “[t]he expert testimony in

this case . . . illustrates how one person’s genuine issue advertisement can

be another’s electioneering commercial.” Kollar-Kotelly Mem. op. at 

345 (Factual Finding 2.12.12).

7
exhortation to vote for or against a specific candidate.” 

Paradoxically, Judge Leon was more troubled by this limiting

language, which he found to be unconstitutionally vague and

likely to produce a chilling effect on constitutionally 

protected speech. Id. at 93. Unable to uphold the fallback 

definition as written, Judge Leon chose to sever the offending 

language, id. at 94, leaving in place a definition of 

“electioneering communications” that Congress itself had felt 

constrained to narrow, and that lacks even the temporal 

limitations of the primary definition that he had previously 

declared unconstitutionally overbroad. 

Judge Leon’s approach to the fallback definition was 

reluctantly joined by Judge Kollar-Kotelly. But Judge Leon 

joined with Judge Henderson in ruling that the Wellstone 

Amendment, § 204 of the BCRA, was unconstitutional as 

applied to nonprofit organizations that engage in issue 

advocacy and that meet the criteria set forth in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986)(MCFL). Corporations that qualify for the “MCFL” 

exception therefore retain the benefit of the Snowe-Jeffords 

Amendment under the district court’s decision. As a result, 

they are free to engage in otherwise prohibited 

‘electioneering communications” if they comply with the 

strict and burdensome disclosure and reporting requirements 

of § 201, and if they pay for their “electioneering 

communications” entirely with individual contributions. Id.

at 97. On the other hand, nonprofit corporations that do not 

qualify for an “MCFL” exception remain subject to the 

Wellstone Amendment, and thus are barred from engaging in 

“electioneering communications” unless they are willing to 

create a separate political action committee, or PAC. Id. at 

97-98.

Lastly, the district court upheld the extension of 

coordination rules, which were originally intended to

distinguish between express advocacy that is independent of 

a candidate and express advocacy that is coordinated with a 

8
candidate and thus properly treated as a contribution, to all 

“electioneering communications.” Accordingly, the district 

court found that § 202 of the BCRA is facially constitutional. 

Per curiam op. at 138-40. Plaintiffs remaining challenges to

§ 214 and its expanded conception of coordination were 

largely dismissed as premature and nonjusticiable. Id. at 

145-68.

3. As construed by the district court, Title II of the 

BCRA will substantially abridge the First Amendment rights

of the ACLU and the members it represents. Since it’s

founding in 1920, the ACLU has given voice to and 

embodied the expressive association of hundreds of 

thousands and perhaps millions of individual Americans who 

share its beliefs and subscribe to its principles. With over 

400,000 members nationwide today, the ACLU is perhaps 

the most well known civil liberties organization in the 

country. Its work amplifies the voices of all of its members, 

supporters and contributors.7

 

7

 The ACLU is a voluntary membership organization constituted under 

501(c)(4) of the Internal Revenue Code. Membership dues to the ACLU

are not tax deductible. The basic membership fee is $35, though many

members contribute more than that. There is also a reduced-fee 

membership available for students and other low-income individuals. 

Membership dues accounted for $9,393,948 of the $13,625,051 

contributed to the organization by individuals in 2001. Only 212 

individuals contributed more than $1000. Although the ACLU does not

maintain records on the corporate status of non-individual donors, less 

than $85,000 of the ACLU=s total revenues was contributed by entities 

such as businesses and other organizations in 2001. This constitutes less 

than 1% of the ACLU=s budget. None of the contributions from

businesses exceeded $500. Total annual contributions from labor 

organizations over the last 10 years have never exceeded $5000. Total 

contributions from political parties over the same 10 year period were 

$330. In sum, contributions from non-individual donors represent an

insignificant percentage of the ACLU=s total annual funding. See 

Declaration of Anthony Romero, & 6: 3 PCS, ACLU 3. Mr. Romero is

the Executive Director of the ACLU. 

9
The ACLU has never taken a position in a partisan 

political election, never contributed a dollar to a political 

campaign or party, never formed a political action committee 

or APAC@ or affiliated with one, and has gone to great lengths

to maintain its rigorously non-partisan stature. Being subject 

to the Federal Election Campaign Act (FECA) would be

fundamentally inconsistent with the ACLU=s mission and 

identity as a nonpartisan organization and would also have 

serious ramifications for the organization=s members and 

contributors whose identities would have to be disclosed. 

Many ACLU members and donors request explicit 

assurances that their membership will remain confidential 

and that their contributions will remain anonymous, and the 

ACLU has consistently defended that right under the First 

Amendment. See Romero Declaration, & 5: 3 PCS, ACLU 2. 

Because it is a non-partisan organization that does not 

endorse or support candidates, all of the ACLU=s advocacy is

focused on issues. Yet, ever since the enactment of FECA 

approximately 30 years ago, the ACLU has been forced to 

resist efforts to stifle its own speech and the speech of other 

issue organizations through the overzealous application of 

overbroad campaign finance laws. For three decades, the 

ACLU has been at the forefront of the public debate over 

campaign finance (including our support of a program of full 

and fair public financing), and has been involved in most of 

the major litigation testing the constitutional limits of the 

effort to restrict political speech in the name of campaign 

finance reform.8

 

8

 Most prominently, the ACLU was co-counsel in Buckley, and its New 

York affiliate appeared as a party. The ACLU, however, has participated

in numerous other campaign finance cases, both before and after Buckley. 

See United States v. National Committee for Impeachment, 469 F.2d 1135

(2d Cir.1972); American Civil Liberties Union v. Jennings, 366 F. Supp. 

1041 (D.D.C. 1973)(three-judge court), vacated as moot sub nom, Staats 

v. American Civil Liberties Union, 422 U.S. 1030 (1975); California

Medical Association v. FEC, 453 U.S. 182 (1981); Brown v. Socialist

10
On an almost daily basis, the ACLU engages in

public commentary on the actions of federal officials, many

of whom will be standing for election. See Declaration of 

Laura Murphy, && 4-12: 3 PCS, ACLU 7-12. Like other 

advocacy groups, the ACLU conveys its message through

multiple mediums, including the internet, direct mail 

campaigns, membership drives, press releases, news 

conferences, public appearances, pamphlets and other 

publications that refer to, praise, criticize, describe or rate the

conduct or actions of clearly identified public officials. 

ACLU communications referring to a candidate for elective 

office are not made for the purpose of influencing the 

election or defeat of that candidate. The timing of those 

communications is a function of the timing of debate over the 

legislation or issue under consideration. See Romero 

Declaration & 3: 3 PCS, ACLU 1-2. 

 The success of the ACLU is also dependent on 

broadcast media that report on the organization=s activities on

an almost streaming basis. The organization is at the front 

line of many controversial issues, and its views are often 

sought. But the ACLU cannot always rely on the news

media to report its activities or to present its views accurately

or completely. Because exclusive reliance on such Aearned 

media@ is not sufficient, the ACLU has turned to the use of

paid media in an effort to ensure that the organization=s views 

are heard in an accurate and balanced way. For example, the 

ACLU paid for a series of radio and newspaper ads directed 

at Speaker of the House Dennis Hastert during his March 

 

Workers >74 Campaign Committee 459 U.S. 87 (1982); FEC v. National

Conservative Political Action Committee 470 U.S. 480 (1985); FEC v.

Massachusetts Citizens for Life, 479 U.S. 238 (1986); Austin v. Michigan 

State Chamber of Commerce 494 U.S. 652 (1990); McIntyre v. Ohio

Elections Commission, 514 U.S. 334 (1995); Colorado Republican

Federal Campaign Committee v. FEC 518 U.S. 604 (1996); Nixon v. 

Shrink Missouri Government PAC 528 U.S. 377 (2000); FEC v. Colorado

Republican Federal Campaign Committee 533 U.S. 431 (2001). 

11
2002 primary election. The ads had two purposes. First, they 

criticized the Speaker for failing to bring the Employment 

Non-Discrimination Act (ENDA) to the floor of the House of 

Representatives. At that point, ENDA was actively being 

considered in the Senate after the legislation had been stalled 

in the House for some time. The ACLU hoped the ad would 

be a catalyst to help bring the legislation up for a vote. In

addition, the BCRA was then being debated in Congress. 

The radio and print ad campaign was intended to highlight 

the impact of Title II on groups like the ACLU, and to

dramatize that the ACLU=s radio spots would become

criminal once Title II was enacted. As the ACLU pointed out 

at the time, the Hastert broadcast ads would have been illegal 

under the BCRA because they referred to Speaker Hastert

and were aired in his district within 30 days of his primary 

election, even though he was running unopposed. See

Murphy Declaration, & 10: 3 PCS, ACLU 10-11.

Since passage of the BCRA, the ACLU has launched 

a media campaign to address the many civil liberties issues

that have arisen in the past twenty months as the country 

struggles to maintain our tradition of freedom while

responding effectively to the threats posed by international 

terrorism. See Murphy Declaration &10:3 PCS, ACLU 10-

11. As part of this campaign, the ACLU is prepared to take 

out additional broadcast ads consistent with a broader media 

strategy. Romero Declaration, & 8: 3PCS, ACLU 4. Such

media efforts - paid and earned, broadcast and print - are 

essential to creating a climate of opinion favorable to civil 

liberties. And because such communications typically 

concern legislative or executive policies, they frequently

refer by name to current officeholders and candidates, 

including the President. See Murphy Declaration, & 8: 3 

PCS, ACLU 9. Title II=s ban on “electioneering 

communications” would effectively mute much of this 

speech by the ACLU. 

12
It is important to emphasize that whether measured by 

the 30/60 day rule struck down by the district court or the 

broader rule it upheld, election years are often periods of 

intense legislative activity, as the district court recognized.

During the 2002 election cycle, for instance, legislation 

creating a new federal Department of Homeland Security was 

under consideration during this pre-election period. The 

ACLU took out a full page advertisement in Congress Daily

and CQ Monitor on September 30, 2002, urging Congress to 

safeguard civil liberties in connection with its consideration

of the “GrammBMiller” and “Lieberman” versions of the 

Homeland Security legislation. A copy of the ad is attached 

to the Declaration of Laura Murphy: 3 PSC, ACLU 19. 

During the fall 2000 elections, dozens of critical legislative 

issues were pending in Congress during the 60 day general 

election blackout period. See Chart summarizing “Bills of

Interest to the ACLU in the 106th Congress During the 60 

Days Prior to the November General Election.” 3 PCS, 

ACLU 20-22. Thus, it is not unusual for the ACLU >s 

legislative and issue advocacy to be most intense during an 

election year, especially in the days leading up to the 

election. Yet this is precisely when Title II forces the ACLU 

to be silent. 

The impact of Title II on the ACLU goes beyond the 

harm caused by the direct ban on broadcast communications. 

Even if the ban on “electioneering communications” violates

the First Amendment, facially or as applied to the ACLU, § 

201 of the BCRA still requires organizations like the ACLU 

to disclose the identity of their $1,000 donors as the price for 

taking out broadcast ads. Any such disclosure requirement 

not linked to candidate contributions or express advocacy 

would violate longstanding First Amendment rules designed 

to protect anonymous political speech and the right to 

associate with controversial political groups. 

Finally, Title II will negatively affect the ACLU=s 

legislative advocacy in other ways, as well. The 

13
organization=s legislative efforts include many activities

directly associated with lobbying. The ACLU regularly 

meets, speaks or corresponds with members of Congress and 

Executive Branch officials concerning proposed or pending 

legislation or executive action that may affect civil liberties.

For instance, following September 11, 2001, the ACLU has 

had numerous direct contacts with members of both the 

House of Representatives and the Senate urging restraint in 

the rush to adopt legislation giving the Department of Justice 

and other federal agencies sweeping law enforcement powers

curbing important civil liberties. The ACLU also routinely

testifies before Congress, conducts staff briefings for

Congress, and provides members with ACLU position 

papers. See Murphy Declaration, && 3-4: 3 PCS, ACLU 6-7. 

By eliminating the link between express advocacy and

coordination, §§ 202 and 214 of the BCRA have a chilling 

effect on these legislative activities even though the ACLU 

does not, and never has, coordinated its activities with 

elected officials for the purpose of influencing elections. See

Murphy Declaration& 7: 3 PCS, ACLU 8-9. 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL 

Under any conception of the First Amendment, the 

ability of organizations like the ACLU to engage in public 

debate on critical issues of the day through any medium it 

deems appropriate, including broadcast ads, lies at the very 

core of constitutionally protected speech. In its zeal to close

what they perceived to be loopholes in the current system of 

campaign financing, advocates of the BCRA attempted to 

address the problem of so-called “sham” issue ads by

adopting a prophylactic rule that barred all broadcast ads by 

even nonprofit organizations in the period preceding an 

election if the ads simply mentioned the name of a federal 

candidate. The district court, to its credit, recognized that 

such prophylactic rules have no place in our First

Amendment jurisprudence. Unfortunately, the solution

crafted by the district court is equally flawed because it rests 

14
on a definition of “electioneering communications” that is 

hopelessly vague, except insofar as it clearly prohibits 

advocacy groups like the ACLU from using broadcast ads to 

question the policy positions of public officials who also 

happen to be running for office. And, in an era of nearly 

perpetual campaigns, that means most public officials most 

of the time. 

This Court has often stressed the need for “sensitive

tools” when legislating in a First Amendment context. E.g., 

Speiser v. Randall, 357 U.S. 513, 525 (1958). Those

sensitive tools are entirely missing from the restrictions on

issue advocacy contained in Title II of the BCRA, and upheld 

by the district court. An ad by the ACLU criticizing a

proposal put forward by President Bush or any of the 

announced Democratic candidates on civil liberties grounds 

is treated no differently than an ad by General Motors

expressly advocating the election or defeat of a specific 

candidate. Both are equally prohibited despite the fact that

the ACLU’s funds are derived entirely from members and 

contributors rather than shareholders and customers, and we 

have never taken a partisan position in our eight-decade 

history. 

Under the fallback definition of “electioneering 

communications” crafted by the district court, this 

prohibition would go into effect immediately and would 

remain in effect throughout the 2004 election cycle and 

thereafter. Under the primary definition of “electioneering 

communications” adopted by Congress, the blackout period 

would perhaps be shorter but it would cover the period 

preceding a primary or general election when almost 

everyone agrees the public is most attentive. Neither 

prospect is consistent with “our profound national 

commitment to the principle that debate on public issues 

should be uninhibited, robust, and wide-open, and that it may 

well include vehement, caustic, and sometimes unpleasantly

15
sharp attacks on government and public officials.” New York 

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

The response that the ACLU can continue to engage 

in whatever speech it wants by forming a PAC is no response 

at all. There is a reason that the ACLU has never created a 

PAC: we are not a partisan organization and do not choose to 

present ourselves as one. We cannot and should not be 

forced to recharacterize our organization or its basic mission

in order to engage in constitutionally protected speech. See 

Wooley v. Maynard, 430 U.S. 705 (1977)(the First 

Amendment protects against both compelled speech and

silenced speech). Nor is it a sufficient answer to say that the 

ACLU may qualify as a “MCFL” organization and thus be

entitled, at least in the district court’s view, to an exemption

from the general ban against corporate “electioneering 

communications.” It is not clear that the ACLU will in fact

qualify as a “MCFL” corporation so long as we continue to 

receive even a de minimus amount of contributions from 

sources other than individuals.9

 Moreover, the “MCFL”

exception was crafted to permit ideological organizations to 

engage in express advocacy, not to impose a regime of 

disclosure and reporting requirements when such 

organizations engage in issue advocacy. 

 

9

 Under recently adopted FEC regulations, a ' 501(c)(4) corporation that 

receives no funds whatsoever from corporate or union sources may be 

removed from the ban on broadcast communications. The ACLU does 

not appear to qualify for the exception because it accepts contributions 

from businesses and unions B although in de minimis amounts. In 2001,

$85,000 (less than 1%) of the ACLU=s total contributions came from

sources other than individuals. None of the contributions from businesses

exceeded $500. Since the ACLU does not collect or maintain records of 

the corporate status of its non-individual donors, we cannot determine 

precisely how much of this de minimus amount was actually contributed 

by incorporated entities. See Declaration of Anthony Romero, & 6: 3

PCS, ACLU 3. See FEC v. National Rifle Association, 254 F3d 173 

(D.C. Cir. 2001) (Denying MCFL status because of $7,000 in corporate 

contributions).

16
The decision below cannot fairly be described as an 

application of Buckley or even an extension of its core 

principles. To the contrary, it represents a return to the

initial, imprecise efforts at regulating campaign speech that 

this Court emphatically rejected in Buckley and has continued 

to reject ever since. The Court=s opinion in Buckley

repeatedly stressed that campaign finance laws must be 

narrowly tailored to avoid “unnecessary abridgement of 

[First Amendment] freedoms.” Buckley v. Valeo, 424 U.S. at 

25, 64. Neither the BCRA nor the decision below measures

up to that standard. 

 1. Buckley held that the government=s regulation of 

expenditures must be limited to “communications that in

express terms advocate the election or defeat of a clearly

identified candidate . . .” Id. at 45. This “express advocacy” 

doctrine, which Buckley adopted to “distinguish discussion of 

issues and candidates from more pointed exhortations to vote 

for particular persons,” FEC v. Massachusetts Citizens for 

Life, Inc., 479 U.S. at 249, has played a critical role for more 

than two decades in protecting issue-oriented speech by

providing a bright line between permissible and 

impermissible government regulation. 

The district court’s response to Buckley is that the

fall-back definition, as modified, only targets 

communications that are thinly veiled attempts to circumvent 

the express advocacy standard announced in Buckley and 

reaffirmed in MCFL. But in adopting that rationale, the 

district court ignored the very purpose of the bright line that 

Buckley so carefully established. Long before the BCRA, the 

Buckley Court recognized that, 

the distinction between discussion of 

issues and candidates and advocacy 

of election or defeat of candidates 

may often dissolve in practical 

application. Candidates, especially 

17
incumbents, are intimately tied to 

public issues involving legislative

proposals and governmental actions. 

Not only do candidates campaign on 

the basis of their positions on various 

public issues but campaigns 

themselves generate issues of public 

interest. 

Id. at 43. 

Even more to the point, the Buckley Court understood 

that groups would always be able to devise “expenditures 

that skirted the restriction on express advocacy . . . but 

nevertheless benefited the candidate’s campaign” under any 

system of campaign finance regulation. Id. at 46. 

Significantly, however, the Buckley Court also understood 

the converse proposition: that without a bright line between 

issue advocacy and express advocacy, speakers would 

inevitably “hedge and trim” their political message in an 

effort to avoid unwarranted government scrutiny. Id. at 23, 

quoting Thomas v. Collins, 323 U.S. 516, 535 (1945). 

Accordingly, this Court has insisted for more than twentyfive years that “[s]o long as persons and groups eschew 

expenditures that in express terms advocate the election or 

defeat of a clearly identified candidate, they are free to spend

as much as they want to promote the candidate and his 

views.” Id. at 45. 

The primary definition of “electioneering

communication” set forth in the BCRA is plainly inconsistent 

with the express advocacy rule. The fallback definition is

equally flawed, even as written by Congress. Without the 

limiting language that Congress inserted and that the district 

court severed, the fallback definition has not only become 

less precise, it is functionally indistinguishable from FECA’s

original reference to speech “relative to a candidate,” which 

is what led the Buckley Court to develop the express 

18
advocacy rule in the first place. And, because it targets 

“electioneering communications” only if delivered through 

the broadcast medium, the BCRA additionally raises serious 

equal protection issues. See, e.g., Arkansas Writers Project,

Inc. v. Ragland, 481 U.S. 221 (1987). 

2. Both the BCRA and the decision below also 

ignore a second major holding of Buckley designed to ensure 

that the campaign finance laws do not sweep into their ambit 

genuine issue advocacy organizations. In Buckley, the Court 

held that the statutory definition of a “political committee”

must be narrowed to avoid constitutional difficulties. 

Specifically, the Court held that “[t]o fulfill the purposes of

the Act [the disclosure and other obligations of political 

committees] need only [apply to] organizations that are under 

the control of a candidate or the major purpose of which is 

the nomination or election of a candidate.” 424 U.S. at 79. 

While this case does not represent a direct attempt by the 

FEC to designate the ACLU as a political committee,

defendants contend that ACLU must establish a segregated 

fund, i.e., a political committee, in order to engage in 

“electioneering communications.”10 Buckley makes clear, 

however, that the major purpose test was fashioned by the 

Court to protect issue organizations that are not political

committees from being treated as if they were. To the extent

BCRA forces issue advocacy groups whose major purpose is 

not partisan politics to be treated as political committees in 

order to speak, then the Act likewise transgresses Buckley=s 

teachings. 

The soundness of this approach was reaffirmed in 

 

10A segregated fund is a political committee under FECA. 2 U.S.C . '

431 (4)(B). As a consequence, organizations that use a segregated fund

must adhere to extensive reporting requirements, staffing obligations, and

other administrative burdens. These burdens stretch far beyond the more 

straightforward disclosure requirements on unincorporated associations. 

See MCFL, 479 U.S. at 252-253. 

19
FEC v. Massachusetts Citizens for Life, 479 U.S. 238, where 

the Court revisited the regulation of issue advocacy groups 

whose major purpose is not the partisan election of 

candidates. The Court repeatedly stressed the importance of 

the major purpose test as a protection for advocacy 

organizations. Upholding the right of an incorporated antiabortion group to engage in express advocacy, the Court first 

noted that if the group were not incorporated yet made 

certain express advocacy “expenditures,” the major purpose 

test would protect the group from being regulated as a

political committee. 

Second, the Court highlighted in a footnote, id. at 252 

n.6, the fact that MCFL was not primarily a partisan political 

organization: 

In Buckley . . . this Court said that an

entity subject to regulation as a 

“political committee” under the Act 

is one that is either “under the control 

of a candidate or the major purpose 

of which is the nomination or 

election of a candidate.” Id. at 79. It 

is undisputed on this record that 

MCLF fits neither of these 

descriptions. Its central

organizational purpose is issue 

advocacy, although it occasionally 

engages in activities on behalf of 

political candidates. 

Third, the Court noted with disapproval that the

FEC=s effort to equate ideological corporations with forprofit corporations under the Act would mean that “all 

MCFL independent expenditure activity is, as a result,

regulated as though the organization=s major purpose is to 

further the elections of candidates.” Id. at 253. 

Finally, the Court concluded that the government’s 

20
legitimate interests could be adequately served by a more 

narrowly tailored regulation: 

[S]hould MCFL=s independent 

spending become so extensive that 

the organization=s major purpose may 

be regarded as campaign activity, the 

corporation would be classified as a 

political committee. See Buckley, 

424 U.S. at 70. As such it would 

automatically be subject to the 

obligations and restrictions 

applicable to those groups whose 

primary objective is to influence 

political campaigns. 

479 U.S. at 262. 

Buckley and MCFL make clear that the major purpose 

test was adopted by the Court to protect issue organizations 

that are not political committees from being treated as if they

were. The force of that doctrine is fully applicable here even

though the ACLU’s status as a political committee is not 

directly at issue. To the extent that BCRA would require the 

ACLU to form a political committee in order to sponsor an

occasional “electioneering communication,” the safeguards 

of the major purpose test are overridden. Both the express 

advocacy test and the major purpose test thus reflect a single, 

overriding principle of First Amendment jurisprudence: 

“When a law burdens core political speech, we apply

‘exacting scrutiny,’ and we uphold the restriction only if it is 

narrowly tailored to serve an overriding state interest.” 

McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347 

(1995). As first articulated in Buckley and later reaffirmed in 

MCFL, the express advocacy and major purpose tests are 

constitutionally compelled limits on the otherwise fatal reach 

of FECA. They mark the boundaries where permissible 

campaign finance regulation ends and unfettered issue speech

21
begins. Title II ignores those and other limitations and 

thereby undermines the First Amendment safeguards that this 

Court has so carefully erected. 

3. The reporting and disclosure requirements for 

broadcast communications cross the line between disclosure 

that can be compelled and expressive activities that are

entitled to full First Amendment protection. Both before and 

after Buckley, the Court had powerfully reaffirmed the 

importance of preserving the right to anonymous political

speech as well as the right to privacy of political association.

NAACP v. Alabama, 357 U.S. 449 (1958); Talley v. 

California, 362 U.S. 60 (1960), McIntyre v. Ohio Elections

Commission, supra. Buckley, itself, limited the reach of

disclosure rules to individuals and groups who contribute to a

candidate or expressly advocate the election or defeat of a

candidate. 424 U.S. at 74-80. The BCRA disturbs this 

careful balancing of interests. Even in the limited situations

where a non-profit corporation might be permitted to engage

in such speech, it must publicly disclose contributors who 

give a $1,000 or more either to the “electioneering 

communication” or to the organization itself. Indeed, the 

disclosures required by ' 201 are almost as onerous and 

burdensome as those required of regular partisan political 

committees. In the case of controversial groups, such 

threatened disclosure can have a deadly chilling effect on the 

group’s advocacy. 

Thus, even in the context of express advocacy, the 

Buckley Court recognized that association with controversial 

political organizations carries particular dangers of chilling 

political speech. 424 U.S. at 74. And, in Brown v. Socialist 

Workers Campaign Committee, 459 U.S. 87 (1982), the 

Court ruled that campaign finance disclosure laws cannot be 

applied to controversial political parties, even those that 

22
engage in core campaign and electoral activities. This 

necessary safeguard is missing from Title II, as well. 11 

4. Sections 202 and 214 of Title II significantly 

expand the rules prohibiting “coordination” of campaign 

activity with candidates. First, § 202 extends the 

coordination rules beyond express advocacy to

“electioneering communications.” Second, § 214 eliminates 

any requirement of “agreement or formal collaboration.” In 

tandem, these provisions create a significant chilling effect

on the ACLU’s traditional expressive activities.12

Rather than treat coordination as the absence of 

independence and the functional equivalent of candidate 

control or instigation, see Buckley v. Valeo, 424 U.S. at 47 & 

n.53, the BCRA broadly deems any “substantial discussion”

about public communication between a candidate and an 

issue group as a basis for a finding of “coordination.” Such 

 

11 In discussing the issue of compelled disclosure, the district court held

that the ACLU had not demonstrated a sufficient need in the record to

safeguard the anonymity of its members. In fact, the ACLU submitted an

uncontroverted affidavit by its Executive Director, Anthony Romero, 

stating that many of its members and contributors seek an explicit 

assurance that their anonymity will be preserved, and the ACLU has 

fought strenuously to do so throughout its history. Romero Declaration, ¶ 

5: 3 PCS, ACLU 2-3. The district court criticized this showing as 

inadequate because it did not specify why the ACLU’s members and 

contributors would want to preserve their anonymity. With due respect,

we respectfully submit that the ACLU’s defense of unpopular causes is

well known and does not require extensive elaboration. Moreover, the

connection between the ACLU’s advocacy on controversial issues and 

the desire to preserve the privacy of its members and contributors has 

been recognized by other courts in analogous circumstances. See, e.g., 

New York Civil Liberties Union v. Acito, 459 F.Supp. 75 (S.D.N.Y.

1978); ACLU v. Jennings, 366 F.Supp. 1041 (D.D.C. 1975). 12 The district court upheld the coordination provisions of § 202 but ruled 

that plaintiffs’ challenge to the coordination provisions of § 214 was 

largely nonjusticiable because the final implementation of § 214 was 

dependent on the promulgation of new coordination rules by the FEC. 

While that is true, it is also true that § 214 establishes a specific set of 

guidelines for the FEC to follow in implementing its new rules. 

23
“coordination” then taints later commentary by the issue 

group on the subjects discussed by treating it as a prohibited 

corporate contribution. The repeal of current FEC rules 

requiring agreement or formal collaboration directed by Title 

II casts the net further by eliminating a common sense 

understanding of what is required to satisfy the definition of 

coordination in this context. 

The record shows how these new rules can chill and

disrupt legislative and policy discussions by ACLU officials 

with Members of the Executive or Legislative branches. See 

Declaration of Laura Murphy && 4-8: 3 PCS, ACLU 7-9. 

Read literally, § 214 can effectively impose a year round 

prohibition on all communications made by a corporation 

like the ACLU where there has been “substantial discussion” 

about the communication with a candidate. This feature of 

the BCRA acts as a continuing prior restraint which bars the 

ACLU from engaging in core First Amendment speech for 

the lawmaker=s entire term of office. 

More generally, these coordination rules will impair 

the ability of the representatives of unions, corporations, nonprofits and even citizen groups to interact in important ways 

with elected representatives for fear that the taint of 

coordination will silence the voices of those groups in the 

future. The First Amendment is designed to encourage and

foster such face-to-face discussions of government and 

politics, see Buckley v. American Constitutional Law 

Foundation, 525 U.S. 182 (1999), not to drive a wedge 

between the people and their elected representatives. 

24
CONCLUSION 

For the foregoing reasons, the Court should note 

probable jurisdiction. 

 Respectfully submitted, 

Joel M. Gora Mark J. Lopez 

Brooklyn Law School Counsel of Record 

250 Joralemon Street Steven R. Shapiro 

Brooklyn, NY 11201 AMERICAN CIVIL 

LIBERTIES UNION

May 29, 2003 FOUNDATION, INC. 

125 Broad Street 

New York, NY 10004 

 (212) 549-2500 

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