No. 02-1755 

IN THE 

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———— 

AMERICAN FEDERATION OF LABOR AND 

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

———— 

On Appeal from the United States District Court 

For the District of Columbia 

———— 

BRIEF OF AFL-CIO 

APPELLANTS/CROSS-APPELLEES 

———— 

LARRY P. WEINBERG


1101 17th Street, N.W. 


Suite 900 


Washington, D.C. 20036 


(202) 775-5900 


Of Counsel 

JONATHAN P. HIATT 

LAURENCE E. GOLD 

Counsel of Record 

AFL-CIO 


815 Sixteenth Street, N.W. 


Washington, D.C. 20006 


(202) 637-5130 


MICHAEL B. TRISTER


LICHTMAN, TRISTER & ROSS, PLLC


1666 Connecticut Ave., N.W. 


Washington, D.C. 20009 


(202) 328-1666 


Counsel for Appellants/ 

Cross-Appellees 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
QUESTIONS PRESENTED 

1. Whether the BCRA § 203 prohibitions of union and 

corporation spending for “electioneering communications,” 

under the primary and backup definitions of that term, 

are narrowly tailored to serve a compelling governmental 

interest. 

2. Whether the provisions prohibiting coordinated expenditures in BCRA §§ 202 and 214(a) are constitutional in light 

of the statute’s mandate that no definition of “coordination” 

may require proof of “agreement or formal collaboration” and 

in light of BCRA’s vagueness and overbreadth. 

3. Whether BCRA’s “advance disclosure” provisions are 

narrowly tailored to serve a compelling governmental 

interest. 

(i) 
ii 

PARTIES TO THE PROCEEDINGS 

The American Federation of Labor and Congress of 

Industrial Organizations (“AFL-CIO”) and its federally 

registered political committee, AFL-CIO Committee on 

Political Education Political Contributions Committee (jointly 

the “AFL-CIO plaintiffs”), appear here as appellants in No. 

02-1755 and as appellees in Federal Election Comm’n v. 

McConnell, No. 02-1676, and McCain v. McConnell, No. 02-

1702. The appellees in No. 02-1755 and appellants in Nos. 

02-1676 and 02-1702 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. 
TABLE OF CONTENTS 

Page 

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

PARTIES TO THE PROCEEDINGS............................ ii 

TABLE OF AUTHORITIES ......................................... v 

OPINIONS BELOW...................................................... 1 

JURISDICTION ............................................................ 1 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS............................................................ 1 

STATEMENT OF THE CASE...................................... 1 

BCRA’s Ban on Union and Corporate Electioneering Communications .................................................. 1 

BCRA’s Coordination Provisions.............................. 7 

BCRA’s Advance Disclosure Requirements ............. 9 

SUMMARY OF ARGUMENT ..................................... 10 

ARGUMENT................................................................. 12 

I. BCRA’s PRIMARY DEFINITION OF 

“ELECTIONEERING COMMUNICATION” 

IS UNCONSTITUTIONALLY OVER 

BROAD ............................................................... 12 

A. 	Union and Corporate Speech About Matters of Public Concern Enjoys the Highest 

First Amendment Protection, and Restrictions Must Be Narrowly Tailored To Serve 

a Compelling Governmental Interest........... 14 

B.	 The Primary Definition Is Not Narrowly 

Tailored........................................................ 16 

II. BCRA’S BACKUP DEFINITION OF 

“ELECTIONEERING COMMUNICATION” 

IS UNCONSTITUTIONALLY VAGUE, 

AND NEITHER OF ITS PRINCIPAL 

CLAUSES IS SEVERABLE ............................. 24 

(iii) 
iv 

TABLE OF CONTENTS—Continued 

Page 

A. 	The Second Prong of the Backup Definition Is Unconstitutionally Vague .............. 25 

B.	 The First Prong of the Backup Definition 

Is Unconstitutionally Vague ........................ 28 

C. The Backup Definition Is Not Severable ..... 31 

III. BCRA’S COORDINATION PROVISIONS 

ARE UNCONSTITUTIONALLY VAGUE 

AND OVERBROAD......................................... 33 

A. 	BCRA’s Coordination Provisions Directly 

Regulate Protected Speech and Associational Activities............................................ 33 

B.	 BCRA’s Provisions Regulating Coordinated Electioneering Communications And 

Expenditures Are Vague And Overbroad... 36 

C. 	The Majority Below Erroneously Relied 

On The “Possibility” of Corrective Regulations In Rejecting The Vagueness And 

Overbreadth Challenges to BCRA’s Coordination Provisions....................................... 39 

D. 	The Majority Erroneously Determined 

That “Agreement or Formal Collaboration” 

Is Not A Constitutionally Required Element of Coordination ................................... 42 

IV. BCRA’S ADVANCE DISCLOSURE REQUIREMENTS ARE NOT NARROWLY 

TAILORED TO SERVE A COMPELLING 

GOVERNMENTAL INTEREST AND 

THEREFORE VIOLATE THE FIRST 

AMENDMENT.................................................. 46 

CONCLUSION.............................................................. 49 
v 

TABLE OF AUTHORITIES 

CASES Page 

Abood v. Detroit Bd. of Education, 431 U.S. 209


(1977)................................................................. 20 


AFL-CIO v. Federal Election Comm’n, 177 F.


Supp. 2d 48 (D.D.C. 2001) ................................ 35 


AFL-CIO v. Federal Election Comm’n, ____ 


F.3d ____, No. 02-5069 (D.C. Cir., June 20, 


2003) .................................................................. 34, 35 


Arizona Right to Life Political Action Comm v. 


Bayless, 320 F.3d 1002 (9th Cir. 2003) ............. 48 


Ashcroft v. Free Speech Coalition, 535 U.S. 234


(2003)................................................................. 22 


Austin v. Michigan Chamber of Commerce, 494


U.S. 652 (1990)..............................................16, 17, 21 


Bates v. Little Rock, 361 U.S. 516 (1960).............. 46 


Brownsburg Area Patrons Affecting Change v.


Baldwin, No. 96-3981, 1999 U.S. App. LEXIS 

23325 (7th Cir., Sept. 17, 1999)......................... passim


Buckley v. Valeo, 424 U.S. 1 (1976)...................... 15 


Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975) .. 


Citizens For Responsible Government State 


Political Action Comm. v. Davidson, 236 F.3d 

1174 (10th Cir. 2000)......................................... 48 


City of Houston v. Hill, 482 U.S. 451 (1987) ........ 24 


Clifton v. Federal Election Comm’n, 114 F. 3d 


1309 (1st Cir. 1997), cert denied, 522 U.S.


1108 (1998)........................................................ 35 


Colorado Republican Federal Campaign Comm. 

v. Federal Election Comm’n, 518 U.S. 604 


(1996).......................................................33, 42, 44, 45 


Connick v. Myers, 461 U.S. 138 (1983)................. 14 


Consolidated Edison Co. of N.Y. v. Public Serv.


Comm. of N.Y., 447 U.S. 530 (1980) ................. 13, 16 


Dorchy v. Kansas, 264 U.S. 286 (1924) ................ 31 

vi 

TABLE OF AUTHORITIES—Continued 

Page 

Eastern Railroad Presidents Conf. v. Noerr 

Motor Freight, Inc., 365 U.S. 127 (1961).......... 34 


Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) ........... 20 


Ellis v. Bhd. of Railway and Airline Clerks, 466 


U.S. 435 (1984).................................................. 20 


Erznoznik v. City of Jackson, 422 U.S. 205


(1975)................................................................. 23, 24 


Eu v. San Francisco County Democratic Central 


Comm., 489 U.S. 214 (1989) ...................15, 23, 34, 46 


Federal Election Comm’n v. Christian Coalition, 


52 F. Supp. 2d 45 (D.D.C. 1999)....................... 35, 46 


Federal Election Comm’n v. Colorado Repub­


lican Federal Campaign Comm., 533 U.S. 431 


(2001)................................................................. passim 

Federal Election Comm’n v. Furgatch, 807 F.2d 

857 (9th Cir.), cert. denied, 484 U.S. 850


(1987)................................................................. 32 


Federal Election Comm’n v. Machinists Non-


Partisan Political League, 655 F.2d 380 (D.C. 

Cir.), cert denied, 454 U.S. 897 (1981) ............. 34 


Federal Election Comm’n v. Massachusetts


Citizens for Life, Inc., 479 U.S. 238 (1986)....... 17 


Federal Election Comm’n v. Nat’l Conservative


Political Action Committee, 470 U.S. 480


(1985)................................................................. 17 


Federal Election Comm’n v. Public Citizen, Inc., 


64 F. Supp. 2d 1327 (N.D. Ga. 1999), rev’d 

on other grounds, 268 F.3d 1283 (11th Cir. 

2001) .................................................................. 35 


First National Bank of Boston v. Bellotti, 435 


U.S. 765 (1978).................................................. 16 

vii 

TABLE OF AUTHORITIES—Continued 

Page 

Florida Right to Life, Inc. v. Mortham, No. 98-

770-CIV-ORL-19A, 1998 U.S. Dist. LEXIS 

16694 (M.D.Fla., Sept. 30, 1998) ...................... 48 


Frost v. Corporation Commission of Oklahoma,


278 U.S. 515 (1929)........................................... 33 


Gibson v. Florida Legislative Comm., 372 U.S. 


539 (1963).......................................................... 34, 46 


Grayned v. City of Rockford, 408 U.S. 104


(1972)................................................................. 25 


Harte-Hanks Communications v. Connaughton, 


491 U.S. 657 (1989)........................................... 15 


Hill v. Colorado, 530 U.S. 703 (2000) .................. 13 


Hagan v. Lavine, 415 U.S. 528 (1974) .................. 40 


Hynes v. Mayor of Oradell, 425 U.S. 610 (1976).. 27 


Kusper v. Pontikes, 414 U.S. 51 (1973)................. 34 


Lake Carriers’ Ass’n v. MacMullan, 406 U.S.


498 (1972).......................................................... 40 


Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 


(1991)................................................................. 20


Lewis v. City of New Orleans, 415 U.S. 130 


(1974)................................................................. 24


Machinists v. Street, 367 U.S. 740 (1961) ............. 20, 21 


Mills v. Alabama, 384 U.S. 214 (1966) ................. 15 


Minnesota v. Mille Lacs Band of Chippewa


Indians, 526 U.S. 172 (1995)............................. 31


Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).. 15


NAACP v. Alabama, 357 U.S. 449 (1958)............. 46


NAACP v. Button, 371 U.S. 438 (1963)................. 46


New York Times v. Sullivan, 376 U.S. 254 


(1964)................................................................. 14, 16


Nike, Inc. v. Kasky, 539 U.S. ___ (2003)............... 16, 23


Nixon v. Shrink Missouri Gov’t PAC, et al., 528


U.S. 377 (2000).................................................. 39

viii 

TABLE OF AUTHORITIES—Continued 

Page 

Pacific Gas & Electric Co. v. Public Utilities 

Comm., 475 U.S. 1 (1986) ................................. 16


Philbrook v. Glodgett, 421 U.S. 707 (1975).......... 40


Pipefitters v. United States, 407 U.S. 385 (1972).. 20


Reno v. American Civil Liberties Union, 521


U.S. 844 (1997).................................................. 31, 32 


Republican Party of Minnesota v. White, 536


U.S. 765 (2002).................................................. 15 


Secretary of State of Maryland v. J.H. Munson 


Co., 467 U.S. 947 (1984) ................................... 22 


Sweezy v. New Hampshire, 354 U.S. 234 (1957)... 34 


Tashjian v. Republican Party of Conn., 479 U.S.


208 (1986).......................................................... 34 


Thomas v. Collins, 323 U.S. 516 (1945)................ 27, 47


Thornhill v. Alabama, 308 U.S. 88 (1940) ............ 14, 23


Turner Broadcasting System, Inc. v. F.C.C., 512 


U.S. 622 (1994).................................................. 13


United States v. CIO, 335 U.S. 106 (1948)............ 21


United States v. Harriss, 347 U.S. 612 (1954) ...... 34


United States v. Jackson, 390 U.S. 570 (1968)...... 31 


United States v. National Treasury Employees


Union, 513 U.S. 454 (1995)............................... 23, 32


United States v. Robel, 389 U.S. 258 (1967) ......... 23


United States v. United Auto Workers, 352 U.S. 


567 (1957).......................................................... 21 


Village of Hoffman Estates v. Flipside, Hoffman 


Estates, 455 U.S. 489 (1982) ............................. 26


Virginia v. Hicks, 539 U.S. ____ (June 16, 


2003) .................................................................. 22


Watchtower Bible & Tract Society v. Village of


Stratton, 536 U.S. 150 (2002)............................ 24


Wisconsin Realtors Ass’n v. Ponto, 233 F. Supp. 


2d 1078 (W.D. Wis. 2002)................................. 48 

ix 

TABLE OF AUTHORITIES—Continued 

STATUTES Page 

2 U.S.C. § 431(2)(A).............................................. 25 


2 U.S.C. § 431(17) ................................................. 17 


2 U.S.C. § 431(18) ................................................. 13 


2 U.S.C. § 431(20)(A)(iii)...................................... 26, 32 


2 U.S.C. §§ 434(f)(1)-(2) ....................................... 9 


2 U.S.C. § 434(f)(2)(B)(iv).................................... 30 


2 U.S.C. § 434(f)(3)(A)(i)...................................... 12, 18 


2 U.S.C. § 434(f)(3)(A)(ii)..................................... 12, 24 


2 U.S.C. § 434(f)(3)(B)(ii)..................................... 17 


2 U.S.C. §§ 434(g)(1)(A)-(B), 434(g)(2)(A)-(B)... 9 


2 U.S.C. § 437(g)(d) .............................................. 39 


2 U.S.C. § 441a(a)(7)(B)(i) (2001) ........................ 37, 38 


2 U.S.C. § 441a(a)(7)(B)(ii) (2001)....................... 36 


2 U.S.C. § 441a(a)(7)(C)........................................ 36 


2 U.S.C. § 441b(b)(2) ............................................ 13 


2 U.S.C. § 441b(c)(1)............................................. 13 


18 U.S.C. § 608(c)(2)(B) ....................................... 37, 38 


38 U.S.C. §§ 1116 and 1117.................................. 27 


42 U.S.C. § 3796gg................................................ 27 


50 U.S.C. § 2301.................................................... 27 


Pub. L. 107-155, § 214(b), 116 Stat. 94-95


(2002)................................................................. 38 


Pub. L. 107-155, § 403(a)(3), 116 Stat. 113-114 


(2002)................................................................. 1 


Pub. L. 107-155, § 403(a)(4), 116 Stat. 114


(2002)................................................................. 1, 40 


REGULATIONS 

11 C.F.R. § 100.3................................................... 25 


11 C.F.R. § 100.23................................................. 36, 45 


11 C.F.R. § 109.20(a)............................................. 41 


11 C.F.R. §§ 109.21(c)(1)-(4)................................ 36 


11 C.F.R. § 109.21(d) ............................................ 42 

x 

TABLE OF AUTHORITIES—Continued 

Page 

11 C.F.R. § 109.21(d)(1)(i).................................... 41 


11 C.F.R. § 109.21(d)(3)........................................ 41 


11 C.F.R. § 109.21(e)............................................. 42 


11 C.F.R. § 109.21(f)............................................. 41 


11 C.F.R. § 109.23(c)(2)(iii), repealed by Pub. L.


107-155, § 214(b), 116 Stat. 94-95 (2002) ........ 45 


11 C.F.R. § 109.29 (2002) ..................................... 13, 18 


MISCELLANEOUS 

65 Fed. Reg. 76138 (Dec. 6, 2000)....................36, 38, 46 


67 Fed. Reg. 51131 (Aug. 7, 2002)........................ 47, 48 


67 Fed. Reg. 65190 (Oct. 23, 2002)....................... 19, 30 


68 Fed. Reg. 421 (January 3, 2003) ....................... 41 


147 Cong. Rec. S2704 (daily ed., March 22, 


2001) .................................................................. 32 


147 Cong. Rec. S2706 ........................................... 32 


147 Cong. Rec. S2708-12 ...................................... 32 


147 Cong. Rec. S3114 (daily ed., March 29, 


2001) .................................................................. 30 


147 Cong. Rec. S3119-20, S3722-23..................... 32 


The Washington Post, p.A1 (May 17, 2003) ......... 29 


www.vote-smart.org/election_president_state_ 


primary_dates.php.............................................. 19 


www.fec.gov/press/20030630convention.html ..... 20 


www.fec.gov/pdf/nprm/electioneering_comm/co


mments/us_cong_members.pdf ......................... 30 


Webster II New College Dictionary (1999:


Houghton Mifflin Co., Boston, MA) ................. 27, 28 

OPINIONS BELOW 

The district court’s opinions dated May 1, 2003 are 

reported at 251 F. Supp. 2d 176 (D.D.C. 2003), and are 

reprinted in volumes I—IV of the Supplemental Appendix to 

Jurisdictional Statements (“S.A.”). The district court’s order 

dated May 19, 2003 staying its final judgment pending appeal 

and the related memorandum opinions are reported at 253 F. 

Supp. 2d 18 (D.D.C. 2003). 

JURISDICTION 

The district court entered judgment on May 2, 2003. The 

AFL-CIO plaintiffs filed their timely notice of appeal on May 

7, 2003. J.S. App. 1a-2a. The jurisdiction of this Court is 

invoked under § 403(a) of the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”), Pub. L. 107-155, § 403(a)(3), 116 

Stat. 113-114 (2002). 

CONSTITUTIONAL AND STATUTORY PROVISIONS 

The First Amendment to the United States Constitution is 

reprinted in pertinent part in the jurisdictional statement filed 

on behalf of the AFL-CIO plaintiffs at 2. BCRA is reprinted 

in full in the appendices to the jurisdictional statements in 

Nos. 02-1674, 02-1675, and 02-1676. Sections 201, 202, 203 

and 214 of BCRA are reprinted at J.S. App. 4a-13a. 

STATEMENT OF THE CASE 

In accordance with the Court’s order dated June 5, 2003, 

all of the issues raised by the AFL-CIO plaintiffs in the 

district court are addressed in this Opening Brief. 

BCRA’s Ban On Union and Corporate Electioneering 

Communications 

BCRA §203, which prohibits corporate and union expenditures for broadcast advertisements through a primary and 

backup definition of covered electioneering communications, 

poses an immediate, direct and substantial threat to the AFLCIO’s historic role in advocating for progressive social 

legislation, influencing other government actions affecting 

workers and their families, and educating union members and 
2 

the general public about these issues. The AFL-CIO spends 

millions of dollars annually for television, radio and cable 

advertisements on a wide variety of social and economic 

issues.1 This program began in the wake of the 1994 national 

election, when the organization ran numerous radio and 

television ads to mobilize union households and the general 

public to oppose the new Republican-controlled Congress’s 

attempts to enact the “Contract With America,” including 

major cuts in federal funding for jobs, health and safety, 

housing, school lunches and the Medicare and Medicaid 

programs. Shea Dec. ¶¶ 20-27 and Exhs. 20-24, 27-28. 

Later, after President Clinton vetoed a draconian budget 

proposal adopted by the Congress and the federal government 

was forced to shut down, the AFL-CIO broadcast advertisements supporting the President’s position and opposing 

the congressional budget cuts. Mitchell Dec., ¶¶ 30-32 and 

Exhs. 26-31; Shea Dec., ¶ 27 and Exh. 28. Virtually all of 

these ads urged viewers or listeners to call named Members 

of Congress to oppose the budget cuts. See Mitchell Dec., 

Exh. 1. Several of these ads would have been banned if 

BCRA § 203 had been in effect because they referred to 

President Clinton by name and were disseminated within 30 

days of the Iowa presidential caucuses and the New 

Hampshire presidential primary election in which the 

President was a candidate. Mitchell Dec. ¶32 and Exh. 1. 

The AFL-CIO broadcast program continued throughout 

1996 in an effort to shape the federal legislative agenda and 

to establish pro-worker public policies, Mitchell Dec. ¶¶ 34-

36 and Exhs. 33-46; Shea Dec. ¶¶ 30-34 and Exhs. 38-41, 

including a long-overdue increase in the federal minimum 

1 A comprehensive table summarizing the AFL-CIO’s television and 

radio advertisements from 1995 through 2001, and videotapes and 

compact discs containing the actual ads themselves, are in the record. 

Mitchell Dec., Exhs. 1-22. 
3 


wage.

2 Id., ¶¶ 30-36 and Exhs. 33-46, 38-41. Most of these 

ads named individual Members of Congress and urged voters 

or listeners to contact them with a particular policy message. 

Mitchell Dec., Exh. 1. A large number of these ads also 

would have been banned if BCRA § 203 had been in effect 

because they ran within 30 days of primary elections, held 

throughout the election year, in which the named Members 

of Congress were candidates. Mitchell Dec. ¶¶ 32, 34-40, 50, 

57-59 and Exh. 1. In addition, one of the AFL-CIO’s ads on 

the subject of federal funding for education, an issue which 

was then pending before Congress, would have been banned 

by BCRA §203 because it ran within 60 days of the 

November 1996 general election and named a number of 

candidates for Congress. Mitchell Dec. ¶ 41 and Exh. 1. 

The AFL-CIO’s broadcast advocacy program was active 

throughout the next three Congresses as well, addressing 

issues such as tax fairness, Social Security and retirement, 

Medicare funding and prescription drug coverage, health 

care, minimum wage and overtime standards, workplace 

health and safety, international trade, and education. See 

Mitchell Dec., Exhs. 1-22. These ads continued to refer to 

individual Members of Congress because this is a key 

element of an ad’s potency and effectiveness. Mitchell Dec. 

¶¶ 11-12. And, while most of the ads named Republicans,3 

2

 Other AFL-CIO ads in 1996 addressed congressional efforts to reduce 

Medicare and Medicaid benefits, Mitchell Dec., ¶¶ 37-38 and Exhs. 47-

56, a proposal to protect the retirement savings of working families, id., 

¶ 40 and Exhs. 57-58, and another struggle over the federal budget. Id., 

¶ 42 and Exhs. 59-61. 3 In selecting the “targets” of its advertising, the AFL-CIO relied on 

substantive and tactical factors: the nature of the issue; the Member of 

Congress’s voting record, committee assignments and legislative role; 

whether the Member’s response to an ad would generate “free media” 

coverage influencing other Members; the presence among viewers or listeners of substantial numbers of union members; and whether a seriously 

contested election was likely or underway, due to the ensuing heightened 

public and policymaker attention and the incumbent candidate’s sensi-
4 


this was because throughout this period Republicans in 

Congress aggressively pursued a host of policies and 

programs disfavored by the labor movement, and Congress 

was so polarized that few Republicans ended up voting 

“right” and few Democrats voted “wrong” by AFL-CIO 

policy standards. Mitchell Dec. ¶¶ 13, 30-44; Mitchell Dep. 

163; Mitchell Cross 12, 101, 127-28, 198; Shea Dec. ¶¶ 20-

35, 38-39, 42, 55 and Exh. 18. On important legislative 

issues where Democrats’ vote inclinations were suspect, including during election years, the AFL-CIO regularly targeted 

them as well.4 

In striking down BCRA § 203’s prohibition of union and 

corporate sponsorship of ads encompassed by the primary 

definition of electioneering communications, Judges 

Henderson and Leon both found that the prohibition would 

have a substantial effect on the AFL-CIO’s legislative and 

policy program. Thus, Judge Henderson found that “BCRA’s 

ban on corporate and labor disbursements for electioneering 

communications . . . will significantly interfere with the AFLCIO’s missions” of providing “an effective political voice to 

workers on public issues that affect their lives and to fight for 

an agenda at all levels of government for working families.” 

S.A. 264sa. Judge Henderson also made detailed findings 

of fact regarding the AFL-CIO’s television and radio advertisements, S.A. 264sa-75sa, including, inter alia, that 

tivity to public opinion. Mitchell Dec., ¶¶ 12, 14; Mitchell Dep. 17-20, 

27-30, 165, 204-06, 209-12; Mitchell Cross 102, 198-200; Shea Dep. 52-

53. Indeed, an effective way to influence an elected official’s positions on issues is to make the official believe that embracing particular 

positions could win or lose him or her votes. Mitchell Cross 183, 189-90, 

201; Shea Cross 14. 4

 See, e.g., Mitchell Dec. Exh. 1: “Call” (July 1998, patient’s bill of 

rights: 5 Democrats out of 16 Members named); “Barker” (September 

1998, “fast track” trade policy: 2 of 8); “Trust” (April-May 2000, trade 

relations with China: 7 of 15); “Now” (October-November 2001, fast 

track: 17 of 25). 
5 

numerous ads run by the AFL-CIO would be banned under 

BCRA, S.A. 268sa, and that they would be “significantly less 

effective” if they did not mention legislative events or had to 

be aired outside of the weeks immediately preceding primary 

and general federal elections. S.A. 269sa. Judge Leon cited 

one of the AFL-CIO’s 1998 ads as “a classic example 

of a legislation-centered genuine issue advertisement,” 

S.A.1150sa, and his findings of fact identify numerous other 

“genuine issue ads” run by the AFL-CIO that would have 

been prohibited under the primary definition of electioneering 

communications. S.A. 1370sa-1377sa.5 

The majority’s findings are supported by substantial 

evidence in the record. Had BCRA’s prohibition on the use 

of union treasury funds to support “electioneering communications” been in effect between 1995 and 2001, it would 

have banned 18 flights of ads broadcast within 60 days of the 

1996, 1998 and 2000 general elections in their entirety, with 

the exception of some versions of a 1998 ad that named 

Senators not then up for election.6 And, the primary 

definition would have banned from one to 12 versions of an 

AFL-CIO ad in 18 of 34 flights aired within 30 days of 

various primaries and conventions.7 The ads that would have 

been banned include: 

5

Judge Leon also relied exclusively on AFL-CIO advertisements as 

examples of ads that, in some cases, would be protected under his revised 

backup definition of electioneering communications and, in other cases, 

would be prohibited under that definition because they are not “neutral as 

to a federal candidate,” S.A. 1163sa, 1377sa-79sa, although Judge Leon 

failed to explain the basis for his conclusion that these ads are entitled to 

less protection under the First Amendment than are the ads he approved. 6 See Mitchell Dec., Exh. 1: in 1996 “No Two Way,” “Retire,” “Kids,” 

“Medicare,” “Students,” “Taxes,” “Home”; in 1998: “Deny,” “Spear,” 

“Barker,” “Save”; in 2000: “Help,” “Teacher,” “Job,” “Who,” “Sure,” 

“Debate,” “Work”. 7 See Mitchell Dec., Exh. 1: in 1996: “Too Far” (banning 1 of 19 versions); “1991” (3 of 10); “Raise” (1 of 2); “People” (2 of 21); “Couple” (2 
6 


• Several different flights of ads in 1996 that called on the 

House to schedule a vote on the first minimum wage 

increase since 1991; at least ten Representatives targeted 

in these ads who voted in March not to bring the bill up, 

later voted in August in favor of final passage. Shea Dec. 

¶¶ 30-34. 

• “Barker,” an AFL-CIO radio advertisement that was 

broadcast in eight congressional districts beginning 

September 21, 1998 after a vote on “fast-track” 

legislation was hastily scheduled for September 25. 

Mitchell Dec., ¶ 53; Shea Dec., ¶ 47. 

• “Job,” a television advertisement that was broadcast 

between September 13 and 25, 2000 and targeted 14 

Representatives who had voted to prevent an important 

OSHA regulation from being implemented; President 

Clinton had threatened to veto the Labor-HHS budget 

bill if it retained the rider removing the regulation. 

Mitchell Dec., ¶ 61. 

• “No Two Way,” a radio and television advertisement 

focusing on an incipient budget fight in Congress that 

ran between September 5 and 17, 1996 in media markets 

serving approximately 35 congressional districts. 

Mitchell Dec., ¶ 41. 

• “Deny,” a radio and television advertisement broadcast 

that ran between September 10 and 23, 1998, shortly 

before the Senate was scheduled to vote on an HMO 

reform bill that the AFL-CIO considered weak. Mitchell 

Dec., ¶ 51. “Deny” targeted approximately 17 Senators 

whom the AFL-CIO and its allies believed could be 

persuaded to vote for a stronger version of the bill; 13 of 

these Senators were not candidates in the imminent 1998 

election, but four were. Id. 

of 30); “Wither” (4 of 26); “5.15” (1 of 4); “Edith” (12 of 31); “Another” 

(6 of 26); and “No Two Way” (10 of 31; and the 60-day rule would have 

banned all 31). In 1998: “Call” (12 of 16) and “Soon” (1 of 3). In 2000: 

“Label” (2 of 14, including one Democrat); “Endure” (1 of 16, a Democrat); “Trust” (3 of 15, including one Democrat); “Sky” (1 of 12); 

“Protect” (2 of 14); and “Help” (3 of 12). 
7 

While some of the AFL-CIO’s broadcast advocacy may in 

some cases indirectly influence election outcomes by addressing issues of interest to the electorate, S.A. 684sa-685sa 

advancing specific electoral outcomes has never been the 

point of the AFL-CIO’s broadcast advocacy. Mitchell Dec., 

¶ 70. As the AFL-CIO’s Director of Public Affairs testifed, 

these advertisements sought to “set the agenda for the 

legislative and political environment,” put lawmakers “on 

notice that somebody is watching what they are doing,” and 

make the AFL-CIO a “visible . . . champion[] for working 

families.” Mitchell Dep. 18, 19; see also id. at 46-47. 

BCRA’s Coordination Provisions 

BCRA’s coordination provisions, like the statute’s ban on 

corporate and union electioneering communications, will 

drastically limit the ability of the AFL-CIO and other unions 

to advocate the interests of workers and their families in 

connection with legislation and other government actions. It 

is critical for union representatives to be able to meet directly 

with Members of Congress and executive branch officials, 

including the President, Vice President and other senior 

White House officials. S.A. 285sa-286sa. Union representatives work with Congressional leaders and other legislators and executive branch officials to design and implement 

lobbying strategies aimed at passing or defeating specific 

legislation, including, as the record in this case amply 

demonstrates, grassroots lobbying efforts paid for by unions 

involving broadcast or other communications urging the 

public to take action. Union officers and members are also 

deeply involved in the operation of political party committees, particularly at the state and local levels where many 

union representatives serve on the parties’ governing bodies 

and provide substantial volunteer services in support of party 

programs. 
8 

The majority below found that BCRA §214(a), was neither 

unconstitutionally vague nor overbroad.8 S.A 135sa-143sa. 

With respect to vagueness, the majority held that “[i]t is . . . 

possible that many, perhaps all, of Plaintiffs’ vagueness concerns have been remedied by the [FEC] regulations’ contents.” S.A.137sa. And, with respect to overbreadth, the 

majority held that the statute’s failure to require the existence 

of an “agreement” as a predicate to the finding of coordination was not required by the Constitution as interpreted in 

this Court’s prior decisions. S.A.138sa-143sa. The majority 

determined that BCRA § 202, which provides that “coordinated” electioneering communications shall be treated as 

contributions, was not unconstitutional for the same reasons 

as it upheld § 214(a). S.A. 130sa. Judge Henderson dissented, with respect to all of BCRA’s coordination provisions, S.A. 384sa-396sa, finding that “[a]n association 

operating under a vague or overbroad definition of coordination faces serious risks each time it sponsors public 

communications either directly or through groups of likeminded organizations or individuals because any discussion 

with a legislator may later serve as the basis for an allegation 

that an association has coordinated a particular communication’s content with the legislator.” S.A. 282sa. Specifically with respect to the AFL-CIO, she also found that “if 

8 In their per curiam opinion, Judges Kollar-Kotelly and Leon also held 

that plaintiffs lacked standing to challenge BCRA § 214(c), S.A. 147sa148sa, and, in a decision which paralleled their decision on BCRA §§ 202 

and 214(a)(2), they alternatively ruled that plaintiffs’ challenge to BCRA 

§ 214(c) was not ripe for judicial review at this time because any 

vagueness in the statutory definition of coordination might be cured by the 

2003 FEC regulations. S.A. 148sa-156sa. The majority also found that 

plaintiffs’ challenge to BCRA §214(b), which repealed the December 

2000 coordination regulations, was moot as a result of the promulgation 

of the January 2003 regulations. S.A.144sa. The Court need not address 

these decisions because, as we show, infra, the provisions of BCRA 

§§ 202 and 214(a)(2) clearly are ripe for decision and encompass all of the 

arguments made against §§ 214(b) and (c). 
9 

the [organization] is prohibited from sponsoring broadcast 

ads because of its lobbying contacts with Members of 

Congress, it will be forced either to curtail its lobbying 

activities or to refrain from airing public communications 

during elections.” S.A. 286sa. See id. at 281sa (finding that 

the ACLU’s legislative activities would be covered by 

BCRA’s coordination provisions “even though the ACLU 

does not engage in those activities for the purpose of 

influencing federal elections”). 

BCRA’s Advance Disclosure Requirements 

Two of BCRA’s reporting provisions require that unions, 

corporations, individuals and other political actors must file 

reports with the FEC whenever they enter into a contract to 

make electioneering communications or independent expenditures, even though these communications have not yet 

aired. 2 U.S.C. § 434(f)(1)-(2); 2 U.S.C. §§ 434(g)(1)(A)-

(B), 434(g)(2)(A)-(B). Judge Henderson found these advance 

disclosure requirements to be unconstitutional, S.A. 381sa384sa, noting with respect to the AFL-CIO in particular that 

advance disclosure will interfere with and have a chilling 

effect on the organization’s broadcast program by allowing its 

opponents to intensify their efforts to pressure stations into 

refusing to run AFL-CIO ads, S.A. 271sa, by forcing the 

organization to reveal its plans and strategies before they are 

finalized, id., and by giving opponents the opportunity to 

prepare counter-messages. Id. 

Although they upheld § 201(a)’s reporting requirement for 

electioneering communications in most respects, Judges 

Kollar-Kotelly and Leon also found that the statute’s requirement of disclosure whenever a person has executed a contract 

to make a disbursement has the effect of “requiring disclosure 

of contracts to make electioneering communications prior to 

their public dissemination,” S.A. 115sa, and therefore “lacks 

a ‘relevant correlation’ or ‘substantial relation’ . . . to a 

legitimate governmental interest.” Id., quoting Buckley, 424 

U.S. at 64. With respect to §212's parallel advance disclosure 
10 

requirement for independent expenditures, however, Judges 

Kollar-Kotelly and Leon found that plaintiffs’ challenge was 

not ripe for review because of the FEC’s promulgation of 

final regulations which, in their view, “provide Plaintiffs with 

the exact remedy they seek: the FEC will not require 

disclosure of independent express advocacy expenditures 

prior to their ‘[p]ublic disseminat[ion].’” S.A. 133sa. 

SUMMARY OF ARGUMENT 

1. BCRA’s prohibition of union and corporate spending 

for a newly defined category of speech in the law, “electioneering communications,” must be narrowly tailored to 

serve a compelling governmental interest. This prohibition 

applies where the First Amendment has its greatest and most 

urgent application, to speech concerning matters of public 

concern, including commentary on the activities of government officials, speech that inextricably intertwines discussion 

of issues, candidates and elections, and speech about the 

qualifications of candidates themselves. And, our jurisprudence establishes that the First Amendment’s applica-tion to 

these matters is just as strong when the speaker is a union or a 

corporation. This Court has countenanced a governmental 

proscription only of express advocacy independent expenditures by a corporation, and solely because that spending 

was facilitated by the state-supported corporate form. 

BCRA’s primary definition of “electioneering communication” fails to adhere to the express advocacy line drawn by 

this Court since Buckley v. Valeo, 424 U.S. 1 (1976), and 

even if the government could ban other speech that is 

somehow connected with an election, the primary definition 

is overbroad. As applied to unions it substantially interferes 

with their core mission of advocating on behalf of all workers 

in the public sphere, and as applied to both unions and 

corporations it sweeps in a vast range of First-Amendment 

protected speech whose connection with elections is at most 

attenuated because its reliance on a candidate reference at 

certain places and times as a substitute for express advocacy 
11 

fails accurately or narrowly to measure a range of speech that 

the government may regulate. 

Each prong of BCRA’s backup definition of “electioneering communication” is unconstitutionally vague. The 

phrase “suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific candidate” 

depends on context for its meaning, its key words are 

undefined and imprecise, and its final phrase tracks a 

formulation that this Court held was overly vague in Buckley. 

The phrase “promotes or supports...or attacks or opposes a 

candidate” also depends on context and is undefined and 

imprecise, and the district court’s construction of it rendered 

it unconstitutionally overbroad. Finally, the backup definition is non-severable, because Congress intended that either 

definition survive a constitutional challenge intact. 

2. BCRA’s definition of coordination must be narrowly 

and clearly drawn in order to avoid interfering with the 

freedom of speech, freedom of association, and the right to 

petition the government. BCRA § 214(a)(2)’s regulation of 

expenditures made “in cooperation, consultation, or concert 

with, or at the request or suggestion” of a political party is 

vague and may reach a broad range of protected activities 

through which citizens interact with political parties. The 

majority’s reliance on the fact that similar language appears 

in FECA’s regulation of coordination with federal candidates 

was misplaced, since Congress has explicitly rejected the 

limiting construction given to that provision by the courts and 

the FEC, and four Justices have already found that FECA’s 

language is overbroad. 

The majority also erred in not reviewing the regulations 

issued by the FEC when it determined that those regulations 

might “possibly” cure any vagueness in the statutes. The 

district court had jurisdiction to consider the regulations, at 

least to the extent necessary to determine whether they saved 

the constitutionality of the statutes, and, even a cursory 
12 

examination of the regulations would have shown that they 

are vague and overbroad in critical respects. 

Finally, the majority erred in concluding that “agreement 

or formal collaboration,” which BCRA prohibits from being a 

required element of “coordination,” is not constitutionally 

required. This Court’s prior decisions strongly suggest that 

proof of an “agreement” is required, and, as the FEC previously recognized, “agreement or formal collaboration” is necessary to prevent the coordination provisions from infringing significant protected activities involving candidates 

and parties. 

3. BCRA’s provision requiring advance disclosure of electioneering communications within 24 hours after an individual, corporation or union has contracted to make such 

communications but before they have aired will have significant chilling effect on the right to speak on public issues by 

forcing speakers to disclose their plans and strategies before 

they are implemented, giving their opponents the opportunity 

to prepare counter-messages, and allowing opponents to 

induce broadcasters not to run the communications at all. 

The advance notice requirement is not narrowly tailored to 

serve a compelling governmental interest, because all of the 

interests which this Court has recognized are served by 

disclosure of political expenditures are fully served by 

after-the-fact disclosure, as the lower federal courts have 

uniformly concluded. 

ARGUMENT 

I. 	 BCRA’s PRIMARY DEFINITION OF 

“ELECTIONEERING COMMUNICATION” IS 

UNCONSTITUTIONALLY OVERBROAD 

Section 201(a) of BCRA, codified at 2 U.S.C. § 434(f) 

(3)(A), defines a category of speech new to the law, “electioneering communication,9

” and § 203, codified at 2 U.S.C. 

9 Section 434(f)(3)(A)(i) contains what is generally termed the “primary definition” of this term, and section 434(f)(3)(A)(ii) contains a 
13 

§§ 441b(b)(2) and (c), proscribes labor organizations and 

corporations from financing such a communication. Section 

203 prohibits speech on the basis of its content—namely, a 

“refer[ence]” to a “candidate” for federal office. “The First 

Amendment’s hostility to content-based regulations extends 

not only to restrictions on particular viewpoints, but also 

to prohibition of public discussion of an entire topic.” 

Consolidated Edison Co. of N.Y. v. Public Serv. Comm. of 

N.Y., 447 U.S. 530, 537 (1980). For, it “place[s] the weight 

of government behind the disparagement or suppression of 

some messages, whether or not with the effect of approving 

or promoting others... [T]he government is held to a very 

exacting and rarely satisfied standard when it disfavors the 

discussion of particular subjects . . .” Hill v. Colorado, 530 

U.S. 703, 735 (2000) (Souter, J., concurring). See also 

Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 

642 (1994). (“Our precedents apply . . . the most exacting 

scrutiny to regulations that suppress, disadvantage, or impose 

“backup definition” that would apply instead if the primary definition is 

finally held to be unconstitutional. The primary definition includes a 

transmission element (“any broadcast, cable or satellite communication”); 

a content element (“refers to a clearly identified candidate for federal 

office”); a temporal element (within 60 days before “a general, special or 

runoff election,” or within 30 days before “a primary or preference election” or nominating “convention or caucus” “for the office sought by the 

candidate”) and an audience element (“can be received by 50,000 or more 

persons” in the relevant electoral jurisdiction). The term “clearly identified” means the candidate’s “name,” “photograph” or “drawing,” and 

where “the identity of the candidate is apparent by unambiguous reference” otherwise. See 2 U.S.C. § 431(18). As elaborated by an FEC regulation, “the identity of the candidate is otherwise apparent through an 

unambiguous reference such as ‘the President,’ ‘your Congressmen,’ or 

‘the incumbent’’’, or “through an unambiguous reference to his or her 

status as a candidate such as ‘the Democratic presidential nominee’ or ‘the 

Republican candidate for Senate in the State of Georgia’”. See 11 C.F.R. 

§ 100.29 (2002). 
14 

differential burdens upon speech because of its content.”). 

Section 203 cannot bear that scrutiny. 

A. Union and Corporate Speech About Matters of 

Public Concern Enjoys the Highest First 

Amendment Protection, and Restrictions Must 

Be Narrowly Tailored Serve a Compelling 

Governmental Interest 

Nearly 40 years ago this Court spoke of “a 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 sharp attacks on government and public officials.” 

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

Thus, “[s]peech an public issues occupies the highest rung of 

the hierarchy of First Amendment values, and is entitled to 

special protection.” Connick v. Myers, 461 U.S. 138, 145 

(1983) (interior quotation marks omitted). See also Thornhill 

v. Alabama, 308 U.S. 88, 101-04 (1940). In Sullivan itself, 

the Court applied that principle to protect the right to criticize 

public officials through the medium of a paid newspaper 

advertisement, “an important outlet for the promulgation of 

information and ideas by persons who do not themselves have 

access to publishing facilities.” Id. at 266. 

When this Court last reviewed a substantial rewriting of the 

Federal Election Campaign Act, it held that when speech on 

public issues dovetails with speech concerning elections, the 

First Amendment abides no limitation of the former. Buckley 

v. Valeo, 424 U.S. 1, 42-44 (1976). FECA then limited, to 

$1,000 a year, spending on independent expenditures—by all 

persons, including unions and corporations—for “advocating 

the election or defeat of a candidate.” See id. at 39-40. The 

Court held that this phrase was unconstitutionally vague, 

because “the distinction between discussion of issues and 

candidates and advocacy of election or defeat of candidates 

may often dissolve in practical application,” as “[c]andidates, 

especially incumbents, are intimately tied to public issues 
15 

involving legislative proposals and governmental actions,” 

“candidates campaign on the basis of their positions on public 

issues,” and “campaigns themselves generate issues of public 

interest.” Id. at 42 (footnote omitted). And, “‘[d]iscussions 

of those issues, as well more positive efforts to influence 

public opinion on them, tend naturally and inexorably to 

exert some influence on voting at elections.’” Id. at 42 n.50 

(emphasis added), quoting Buckley v. Valeo, 519 F.2d 817, 

875 (D.C. Cir. 1975). 

Buckley’s crucial insight concerning the inextricable connection between issues and elections, the futility of regulating 

public speech on the basis of perceived “intent” or “effect,” 

and the compelling public interest, guaranteed by the First 

Amendment, in persons making and receiving commentary 

on candidates because they are candidates, and on issues 

because they are pertinent to an ongoing election, are now 

deeply embedded in the law and our political culture. “[T]he 

notion that the special context of electioneering justifies an 

abridgment of the right to speak out on disputed issues sets 

our First Amendment jurisprudence on its head. ‘[D]ebate on 

the qualification of candidates’ is ‘at the core of our electoral 

process and of the First Amendment freedoms,’ not at the 

edges.” Republican Party of Minnesota v. White, 536 U.S. 

765, 781 (2002) (emphasis in original), quoting Eu v. San 

Francisco Democratic Central Comm., 489 U.S. 214, 222-23 

(1989). See also Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 686-87 (1989); Buckley v. Valeo, 

424 U.S. at 14; Monitor Patriot Co. v. Roy, 401 U.S. 265, 

271-72 (1971) (“the constitutional guarantee has its fullest 

and most urgent application precisely to the conduct of 

campaigns for political office”); Mills v. Alabama, 384 U.S. 

214, 218-19 (1966). 

This Court has also repeatedly affirmed that where the 

speaker on matters of public concern is a labor union, a 

corporation or some other organized group, no lesser or 

different First Amendment protection is at stake, for “the 
16 


inherent worth of the speech in terms of its capacity for 

informing the public does not depend upon the identity of its 

source, whether corporation, association, union, or individual.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 

777 (1978). In Bellotti, this Court invalided a criminal statute 

barring corporations from making contributions or expenditures in connection with ballot measures, because permitting 

such advocacy “afford[s] the public access to discussion, 

debate, and the dissemination of information and ideas.” Id. 

at 783 (footnote omitted). See also Pacific Gas & Electric 

Co. v. Public Utilities Comm., 475 U.S. 1, 8-9 (1986) (state 

cannot require corporation to include statements of citizens 

group in its newsletter to customers); Consolidated Edison 

Co. v. Public Service Comm., 447 U.S. 530 (1980) (state cannot preclude corporation from including with customer bills 

its own newsletter that discusses public policy matters).10 

B. The Primary Definition Is Not Narrowly 

Tailored 

This Court has just once endorsed a governmental proscription of candidate-related speech by an entity regulated by 

§ 203, upholding, in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), a state’s ban on the corporate financing of independent express advocacy expenditures. 

In doing so, the Court “emphasize[d]” that its decision turned 

10 Precisely because “speech on matters of public concern needs 

‘breathing space’. . . . in order to survive,” Nike, Inc. v. Kasky, 539 U.S. 

____(2003), slip op. 13 (Breyer, J., dissenting), quoting New York Times 

v. Sullivan, 376 U.S. at 272, Justice Breyer recently stated that where a 

corporation’s regulable “purely commercial” speech is “inextricably 

intertwined” with “non-commercial (public issue-oriented”) speech, it 

must not be subject to state “false advertising” and related “unfair competition” regulation because that would chill corporations from “issu[ing] 

significant communications relevant to public debate” and “thereby limit 

the supply of relevant information available to those, such as journalists, 

who seek to keep the public informed about important issues.” Id. at 12-

19 (interim quotation marks omitted). See also id. at 9-10 (Stevens J., 

concurring). 
17 

only on “the unique state-conferred corporate structure that 

facilitates the amassing of large treasuries” that “have little or 

no correlation to the public’s support for the corporation’s 

political ideas” and that, accordingly, renders corporate 

influence via independent expenditures “unfair[ ]” and regulable. Id. at 660.11 Austin does not identify any other 

governmental interest that might be served by § 203, which 

only proscribes speech other than express advocacy, as the 

term “electioneering communication” does not include either 

an “expenditure” or an “independent expenditure” under 

FECA, see 2 U.S.C. § 434(f)(3)(B)(ii), which comprise the 

field of independent of express advocacy speech. See 2 

U.S.C. 431(17); FEC v. Massachusetts Citizens For Life, 

Inc., (“MCFL”), 479 U.S. 238, 248-49 (1986). 

Even assuming that § 203’s proscription of “electioneering 

communication” under the primary definition is aimed at 

serving the interests identified by the Court in Austin, it is not 

narrowly tailored to do so. First, insofar as the definition 

forecloses speech on matters of public concern that does not 

include express advocacy, Buckley and MCFL teach that, 

perforce, it is not narrowly tailored and is unconstitutional. 

We adopt the briefs of other plaintiffs on this point. Second, 

because § 203 necessarily reaches a wide variety of speech 

that is not election-related—whatever that means—or whose 

connection with an election is at most attenuated, it is not 

narrowly tailored because, as Bellotti demonstrates, a substantial amount of First Amendment protected speech by 

cooperations and unions is necessarily covered. 

11 This Court has recognized no other rationale for regulating independent expenditures, and has repeatedly rejected the notion that they 

either implicate corruption or its appearance, or could serve as conduits to 

circumvent contribution limits. See FEC v. Colorado Republican Federal 

Campaign Committee (“Colorado II”), 533 U.S. 431, 440-41 (2001); 

FEC v. Nat’l Conservative Political Action Comm, 470 U.S. 480, 490-501 

(1985); Buckley v. Valeo, 424 U.S. at 39-58. 
18 

The Government and BCRA’s congressional proponents 

claim that § 203 captures only broadcast advertising that 

comprises the virtual equivalent of express advocacy because 

speech that “refers” to a candidate within 30 days of a primary or convention, or 60 days before a general election, 

either must seek the candidate’s election or defeat or have 

that effect. For that proposition they rely almost exclusively 

upon the Buying Time reports of the Brennan Center, which 

purport to analyze some ads broadcast during the 60 days 

preceding the 1998 and 2000 general elections. Plaintiffs’ 

opening brief in No. 02-1674, McConnell v. FEC, demonstrates how these reports are deeply flawed and unreliable, 

and we rely on that analysis here. But regardless of those 

reports’ empirical worth, and even if this Court decides that 

Congress could proscribe some union and corporate nonexpress advocacy speech whose “intent” or “effect” is electoral, § 203 is unconstitutionally overbroad because it necessarily sweeps in too much speech that the First Amendment protects. 

By its very terms § 201 encompasses a substantial scope of 

protected speech. Any kind of “refer[ence]” to a candidate is 

included, even one that neither names nor visually depicts a 

candidate so long as it refers to the candidate’s governmental 

position or candidacy status, or makes some other “unambiguous reference” to the candidate. See 2 U.S.C. § 434(f)(3) 

(A)(i); 11 C.F.R. § 100.29 (2002). Nor does this reference 

have to have anything to do with the candidate’s status as a 

candidate; any “reference” whatsoever to the individual that 

satisfies § 201(a)’s transmission, temporal and audience 

elements is proscribed, regardless of any other content or 

context. Indeed, that context may include the fact that the 

candidate is unopposed for reelection or faces only taken 

opposition, rendering electoral considerations moot. And, we 

already know from the FEC’s BCRA rulemaking that the 

primary definition includes communications referring to the 

popular name of legislation that includes the name of a 
19 

candidate; promoting a candidate’s business; promoting a 

ballot initiative or referendum, even without a reference to a 

candidate; making public service announcements that include 

the candidate; and promoting local tourism with reference to 

the candidate. See Final Rule, “Electioneering Communications”, 67 Fed. Reg. 65190, 65200-03 (Oct. 23, 2000). 

The potentially limitless variety of broadcast messages that 

§ 203 precludes, includes for example, communications that, 

as the record demonstrates: 

••Call upon a Member of Congress to support or oppose 

imminent legislation, or ask viewers or listeners to urge 

the Member to do so; 

••Inform the public, or express an opinion, about a 

Member of Congress’s votes, legislative proposals or 

performance otherwise; 

••Respond directly to a Member who has criticized 

the organization or taken issue with its activities or 

policies; or 

••Encourage candidates to commit that, if elected, they 

will support or oppose particular legislation or policies. 

The prohibition will have an even more startling impact 

when the President is a candidate for reelection, a situation 

that, of course, now exists. Beginning 30 days before 

the first primary or caucus—for the 2004 election that date 

is December 14, 2003, see www.vote-smart.org/election_ 

president_state_primary_dates—§ 203 will criminalize broadcast references to the President in a series of geographic 

blackouts12 that will continuously ripple throughout the 

Nation, blocking every broadcast outlet, wherever located, 

whose signal can reach 50,000 persons in an upcoming 

primary or caucus state, until June 8, 2004. See id. This 

12 Additional 30-day blackout periods will transpire from July 18 until 

the August 17, 2004 Wyoming caucus, and from July 25 until the August 

24 Alaska primary. See www.vote-smart.org/election_president_state_ 

primary_dates. 
20 

blackout will become national in scope on July 31, 2004, 30 

days before the August 30 - September 2 Republican National 

Convention, see www.fec.gov/press/20030630convention, 

and it will then continue without interruption throughout the 

remaining 60 days until the November 2 election. Thus, from 

July 31, 2004 until the election, it will be a crime for a union, 

corporation or incorporated non-profit organization to pay to 

broadcast any “refer[ence]” to the President, by “name,” 

“photograph,” “drawing” or other “unambiguous” means, 

anywhere in the United States. 

It is very much to the point in this case that “[u]nions have 

traditionally aligned themselves with a wide range of social, 

political and ideological viewpoints,” Lehnert v. Ferris 

Faculty Ass’n, 500 U.S. 507, 516 (1991) and they have 

always played a vital role in the public area as advocates for 

both their members and all workers. See generally Ellis v. 

Bhd. of Railway and Airline Clerks, 466 U.S. 435, 446 

(1984); Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978); 

Abood v. Detroit Bd. of Education, 431 U.S. 209, 227-32 

(1977); Pipefitters v. United States, 407 U.S. 385, 402-32 

(1972); Machinists v. Street, 367 U.S. 740, 767 (1961); id. 

at 798, 800-03, 812-816 (Frankfurter, J., dissenting); 13 United 

13 Of the AFL-CIO itself and its predecessor, the AFL, Justice Frankfurter wrote over 40 years ago: 

American labor’s initial role in shaping legislation dates back 

130 years. With the coming of the AFL in 1886, labor on a national 

scale was committed not to act as a class party but to maintain a 

program of political action in furtherance of its industrial standards. 

. . . When one runs down the detailed list of national and international problems on which the AFL-CIO speaks, [t]he notion that 

economic and political concerns are separable is pre-Victorian. 

Presidents of the United States and Committees of Congress invite 

views of labor on matters not immediately concerned with wages, 

hours, and conditions of employment. And this Court accepts briefs 

as amici from the AFL-CIO on issues that cannot be called Industrial, in any circumscribed sense. It is not true in life that political 
21 

States v. United Auto Workers, 352 U.S. 567, 578-86 (1957); 

United States v. CIO, 335 U.S. 106, 115-21 (1948); id. at 

143-46 (Rutledge, J., concurring).14 

Thus, when unions engage in speech on matters of public 

concern, they “amplify[] the voice of their adherents.” 

Buckley, 424 U.S. at 22. And, as we have shown the AFLCIO’s broadcast advocacy over a seven-year period has been 

a seamless year-in, year-out effort to shape the national issue 

agenda, encourage congressional action, engender public 

support for the labor movement’s policy priorities, and 

influence debate during election periods to reflect worker 

concerns. This advocacy certainly might “affect,” or be 

perceived to “affect,” elections in the sense of influencing the 

electoral issue climate, forcing candidates to address union 

priority matters, informing the public and generating popular 

pressure on candidates to embrace particular policies. In turn, 

the labor movement’s impact on public policy is only 

enhanced when electoral considerations motivate officeholders. But these are essential and inevitable aspects of 

“speech on matters of public concern.” 

The overbreadth doctrine affords recourse against a law 

that “may deter or ‘chill’ constitutionally protected speech— 

protection is irrelevant to and insulated from economic interests. It 

is not true for industry or finance. Nor is it true for labor. 

Machinists v. Street, 367 U.S. at 812, 814-15 (Frankfurter, J., dissenting) 

(footnote omitted). 14 In Austin, the Court determined that the ban on corporate independent expenditures, which did not apply to unincorporated labor 

organizations, was not fatally underinclusive for that reason because there 

are “crucial differences between unions and corporations,” id. at 666, 

namely, unions do not partake of the “significant state-conferred advantages of the corporate structure,” and while they “may be able to amass 

large treasuries” otherwise, “the funds available for a union’s political 

activities more accurately reflect members’ support for the organization’s political views than does a corporation’s general treasury.” Id. at 

665-66. 
22 


especially when the overbroad statute imposes criminal 

sanctions.” Virginia v. Hicks, 539 U.S. ____, slip op. 5 (June 

16, 2003). Those who “abstain from protected speech” 

“rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case 

litigation... harm[ ] not only themselves but society as a 

whole, which is deprived of an uninhibited marketplace of 

ideas.” Id. For that reason, the First Amendment does not 

permit a prohibition of all candidate-referential speech 

merely because some of that speech could be viewed, and 

might even be intended, to have an electoral impact. “[T]he 

argument. . . . that protected speech may be banned as a 

means to ban unprotected speech. . . . turns the First Amendment upside down. The Government may not suppress lawful 

speech as the means to suppress unlawful speech. Protected 

speech does not become unprotected merely because it 

resembles the latter. The Constitution requires the reverse.” 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2003). 

Section 203, however, is predicated on just such an assumed 

“resembl[ance],” and even identity, between express 

advocacy and references to candidates in particular times and 

places. As we have shown, § 203’s reliance upon a candidate reference as a proxy for express advocacy widely misses 

that mark. 

In Secretary of State of Maryland v. J. H. Munson Co., 467 

U.S. 947 (1984), the Court held that an anti-fraud statute 

prohibiting a charity from paying fundraising expenses in an 

amount more than 25% of the amount raised was unconstitutionally overbroad, because this condition restricted First 

Amendment—protected solicitations yet encompassed charities that legitimately incurred high costs because they engaged in that protected conduct. “The flaw in the statute is 

not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates 

on a fundamentally mistaken premise that high solicitation 

costs are an accurate measure of fraud.” Id. at 965 (footnote 
23 

omitted). So too here. Section 203’s premise that any broadcast reference to a candidate, including, of course, an 

incumbent legislator, during certain times and to certain 

audiences, is an accurate measure of “electioneering” utterly 

fails to account for speakers who make such references in the 

course of First Amendment—protected non-electoral communications; See also Erznoznik v. City of Jackson, 422 U.S. 205 

(1975); United States v. National Treasury Employees Union, 

513 U.S. 454, 472-73 (1995); United States v. Robel; 389 

U.S. 258, 262-66 (1967); Thornhill v. Alabama, 310 U.S. at 

97-98. Cf. Nike v. Kasky, slip op. at 12-19 (Breyer, J., dissenting) (mixed commercial and public-issue speech cannot 

be subject to state false advertising laws.) 

Finally, the overbreadth inquiry here cannot rise and fall on 

the limited experience of two 60-day periods,15 irrespective of 

what the Brennan Center reports purported to conclude. The 

widespread use of paid broadcast advertising for non-public 

service messages is a relatively recent phenomenon, yet § 203 

would ban a substantial amount of such advertising for all 

time in reliance upon only a fraction of even the experience to 

date. And, the novelty of these broadcasts lies only in their 

medium, not in their content, which falls well within the 

American tradition of freewheeling commentary on public 

affairs and public officials. Both experience, as the AFL-CIO 

and other plaintiffs have shown, and common sense advise 

that unions, corporations and other groups are likely to 

continue to broadcast a wide range of messages that include 

references to candidates, and that § 203 overbroadly restrains 

15 Even defendants’ studies did not review advertising proximate to 

primary elections, so there is no “empirical” evidence whatsoever regarding the 30-day ban. Yet “[f]ree discussion about candidates for public 

office is no less critical before a primary than before a general election.” 

Eu v. San Francisco Democratic Central Comm., 489 U.S. at 223, 

especially in an era when redistricting has rendered party nominations for 

House seats tantamount to election in most districts. Nor do defendants’ 

studies consider the 30-day period preceding national party conventions. 
24 


their ability to do so. See generally Watchtower Bible & 

Tract Society v. Village of Stratton, 536 U.S. 150, 167 (2002); 

City of Houston v. Hill, 482 U.S. 451, 465-66 (1987); 

Erznoznik v. City of Jacksonville, 422 U.S. at 213; Lewis v. 

City of New Orleans, 415 U.S. 130, 134 (1974). And, it is 

equally reasonable and pertinent to anticipate that Congress 

will take advantage of the broadcast silence imposed by § 203 

to schedule particular legislation when those most affected 

are denied their preferred medium to respond swiftly and 

effectively. Section 203 both suppresses essential speech and 

facilitates official mischief and should be struck down. 

II. 	BCRA’S BACKUP DEFINITION OF “ELECTIONEERING COMMUNICATION” IS 

UNCONSTITUTIONALLY VAGUE, AND 

NEITHER OF ITS PRINCIPAL CLAUSES IS 

SEVERABLE 

BCRA § 201(a) alternatively provides a backup definition 

of “electioneering communication,” codified at 2 U.S.C. 

§ 434(f)(3)(A)(ii), that is to apply in the event that the 

primary definition discussed above “is held to be constitutionally insufficient by final judicial decision. . . .” The 

backup definition includes any “broadcast, cable or satellite 

communication” that (1) “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)” “and” (2) “is 

suggestive of no plausible meaning other than an exhortation 

to vote for or against a specific candidate.” Unlike the 

primary definition, the backup definition entails no temporal 

or audience restriction; it applies to all broadcasts, any 

time, anywhere. And, under FECA, “candidate[s]” include 

virtually all incumbent Representatives and Senators at all 

times, first-term Presidents and Vice Presidents during 
25 

substantial periods of time, and Vice Presidents whenever 

they run for President.16 

Since the backup definition, like the primary definition, on 

its face eschews any limitation to express advocacy, Judge 

Henderson correctly concluded that the backup definition is 

unconstitutional. See S.A. 362sa. If this Court reaffirms its 

prior holdings that Congress may not proscribe corporations 

and unions from undertaking non-express advocacy communications to the general public on matters of public 

concern, then it must similarly strike down the backup 

definition. But, even if the Court finds that its earlier 

decisions on these matters are not controlling, the backup 

definition should be struck down as impermissibly vague and 

overbroad. 

A. The Second Prong of the Backup Definition Is 

Unconstitutionally Vague 

This Court has explained that “[i]t is a basic principle of 

due process that an enactment is void for vagueness if its 

prohibitions are not clearly defined,” for “where a vague 

statute abut[s] upon sensitive areas of basic First Amendment 

freedoms,’ it ‘operates to inhibit the exercise of [those] 

freedoms.” Uncertain meanings inevitably lead citizens to 

‘“steer far wider of the unlawful zone” . . . than if the 

boundaries of the forbidden areas were clearly marked.’” 

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) 

(footnotes and citations omitted). Moreover, “adequate 

notice to a person of ordinary intelligence that his contemplated conduct is illegal” is particularly important in a 

16 A person becomes a “candidate” within the meaning of FECA, for 

example, upon receiving contributions in excess of $5,000, 2 U.S.C. 

§ 431(2)(A), a threshold routinely met by incumbent Members of Congress almost immediately after winning their most recent election. See 

also 11 C.F.R. § 100.3. As a practical matter, only a Member who has 

announced his or her retirement or has lost a nomination contest is not a 

“candidate.” 
26 

criminal statute, Buckley, 424 U.S. at 77, and “where First 

Amendment rights are involved, an even greater degree 

of specificity is required.” Id. (interior quotation marks 

omitted). See also Village of Hoffman Estates v. Flipside, 

Hoffman Estates, 455 U.S. 489, 499 (1982). 

Judge Leon, joined by Judge Kollar-Kotelly, see S.A. 

885sa-86sa, correctly determined that the phrase “suggestive 

of no plausible meaning other than an exhortation to vote” 

was unconstitutionally vague because it “depends on a number of variables such as the context of the campaign, the 

issues that are the centerpiece of the campaign, the timing of 

the ad, and the issues with which the candidates are 

identified.” See S.A. 1164sa (footnote omitted). Additionally, the subsequent language “for or against a specific 

candidate,” unlike the phrase “refers to a clearly identified 

candidate” in the primary definition, both is undefined and 

entails no requirement that the communication itself name or 

otherwise unambiguously refer to a candidate; instead, it 

admits the possibility that a viewer or listener, again solely as 

a subjective function of context, might independently conjure 

up the thought of a candidate.17 Because this prong of the 

17 In Buckley, this Court approvingly equated to express advocacy the 

clarity of the statutory phrase “clearly identified” (then in FECA 

§ 608(e)(2)), because it required “an explicit and unambiguous reference 

to the candidate . . . as part of the communication.” 424 U.S. at 43 

(footnote omitted). That observation strongly suggests that statutory 

terms defining prohibited communications that encompass less direct 

references to a candidate are unconstitutionally vague. If so, the backup 

definition plainly falls short, for it variously uses the formulation 

“candidate for that office” (and the phrase “that office” has no certain 

previous referent in the statute); “candidate,” with no qualifier, which also 

appears in new 2 U.S.C. § 431(20)(A)(iii); and “specific candidate,” a 

formulation not otherwise found in FECA, and which presumably differs, 

somehow, from both “candidate” and “refers to a clearly identified 

candidate”. (The latter formulation, approved in Buckley, appears in both 

the primary definition, at 2 U.S.C. § 434(f)(3)(A)(1)(I), and in 2 U.S.C. 

§ 431(20)(A)(iii).) 
27 

backup definition does not solely rely upon the text of a 

communication, a person’s concern that a court might find 

that his speech is “suggestive” of only one “plausible”— 

express electoral advocacy—meaning, unacceptably “‘puts 

the speaker wholly at the mercy of the varied understanding 

of his hearers,’” “‘blankets with uncertainly whatever may be 

said,’” and “‘compels the speaker to hedge and trim.’” 

Buckley, 424 U.S. at 43, quoting Thomas v. Collins, 323 U.S. 

516, 535 (1945). 

Moreover, BCRA defines neither of the key terms “suggestive” and “plausible”, and their ordinary definitions 

palpably demonstrate their imprecision. The word “suggestive” means “[t]ending to suggest thoughts or ideas” or 

“[c]onveying a suggestion or hint.” Webster II New College 

Dictionary (1999: Houghton Mifflin Co., Boston, MA) 

(“Webster”). The word “plausible” means “[s]eemingly or 

apparently valid, likely, or acceptable.” Id. Plainly, both 

“suggestive” and “plausible” leave much to the subjective 

imagination. Cf. Hynes v. Mayor of Oradell, 425 U.S. 610, 

622 (1976) (invalidating a municipal ordinance requiring 

persons to give advance notice of door-to-door canvassing for 

a “recognized charitable cause” or a “political . . . cause” 

because, inter alia, those terms are unconstitutionally vague). 

And, the final phrase “exhortation to vote for or against” is 

also undefined in the statute and is hardly distinguishable 

from the phrase “advocating the election or defeat,” which, as 

noted earlier, Buckley held to be unconstitutionally vague.

18 

18 A Lexis search reveals that each of these BCRA terms is either 

unique or virtually unique in the United States Code. Neither “exhortation” nor “exhort” appears at all. “Suggestive” appears but once, in the 

phrase “injuries suggestive of rape and sexual assault.” See 42 U.S.C. § 

3796gg. And “plausible” appears only in the phrases “plausible biological 

mechanism”, see 38 U.S.C. §§ 1116 and 1117, and “plausible denialable.” 

See 50 U.S.C. § 2301. None of these usages concern the nature or meaning of language or communications. 
28 

B. The First Prong of the Backup Definition Is 

Unconstitutionally Vague 

The key language of the first prong of the backup 

definition “promotes or supports a candidate . . . or attacks or 

opposes a candidate”—is also unconstitutionally vague. 

BCRA defines none of these terms, and they too have no 

precise meanings. Thus, “promote” can mean “contribute to 

the progress or growth of” or “attempt to sell or popularize by 

advertising.” Webster. “Support” can mean “aid the cause of 

by approving, favoring or advocating.” Id. “Attack” can 

mean “criticize strongly or in a hostile manner.” Id. And, 

“oppose” can mean “be in conflict or contention with”; “be in 

disagreement with or resistant to”; “place in opposition or be 

in opposition to”; or “act or be in opposition to.” Id. 

Moreover, the “promote or support. . .” prong inherently 

invites the same examination of an ad’s context that Judge 

Leon correctly found fatal to the “suggestive of no plausible 

meaning. . .” prong. Thus, the communication need not even 

refer to the candidate if its context might somehow remind 

the viewers or listeners about the candidate. Yet even, for 

example, an advertisement’s request that viewers or listeners 

contact a named candidate might be considered “promoting” 

or “opposing” the candidate if viewers were called upon to 

ask the candidate to oppose legislation with which he or she 

is identified as a sponsor; the candidate’s position on the 

matter at issue was both firmly held and widely known, so the 

“call” request in the ad reminded viewers of that position; or 

the bill or issue cited was central to an ongoing campaign, so 

raising it in the context of a “call” request underscored the 

issue to the candidate’s benefit or detriment. Given these 

entirely ordinary scenarios, a would-be speaker could not be 

confident that even a “call” ad would pass muster. 

Judge Leon, again joined by Judge Kollar-Kotelly, see S.A. 

885sa-86sa, concluded below, however, that this prong is not 

unconstitutionally vague, declaring simply that “a person of 

ordinary intelligence would understand what is prohibited” 
29 

because “one need only conclude, in effect, that the ad is not 

neutral as to both candidates for it to have satisfied the 

backup definition” (emphasis in original).19 See S.A. 1163sa. 

But, what does “not neutral” mean? Judge Leon elaborated 

with an AFL-CIO advertisement entitled “No Two Way,” 

which discussed a Representative in his or her legislative 

capacity and that, Judge Leon concluded, “was not neutral as 

to a federal candidate, as it attacks his or her position on the 

federal budget.” See S.A. 1163sa. And, Judge Leon’s 

examples of what he classified as permissible “[g]enuine 

[i]ssue [a]dvertisements” and impermissible “[c]andidate­

[c]entered [i]ssue [advertisements”—all of which are ads 

broadcast by the AFL-CIO—provide no clearer guidance. 

See S.A. 1165sa, 1372sa-79sa. 

Whatever “not neutral” may mean, Judge Leon’s construction plainly would preclude a union, business corporation, or 

incorporated non-profit group from broadcasting anything 

anywhere at any time that conveyed any of a substantial range 

of non-electorally referential opinions about the actions and 

qualities of any individual who is a “candidate”—including, 

as we have shown, virtually every incumbent Senator and 

Representative at virtually all times, and an incumbent 

President for a substantial period of time. In fact, from May 

16, 2003, when President Bush legally became a candidate 

for reelection, see Washington Post, p. A1 (May 17, 2003), 

until May 19, when the district court stayed its May 2 

decision below, it was a federal crime for a union, corporation 

or incorporated non-profit organization to broadcast anything 

19 Nonetheless, Judge Leon’s certitude on this point was apparently 

short-lived; on May 19, he declared that a stay of the court’s May 2 

judgment invalidating the primary definition was warranted because “the 

FEC’s unfortunate failure to promulgate regulations for the backup 

definition, as it did for the primary definition, has sufficiently deprived the 

parties of guidance regarding the contours of the backup definition.” 

Memorandum Opinion, at 3 (May 19, 2003) (Leon, J., dissenting in part 

and concurring in part) (footnote omitted). 
30 

that was “not neutral” about the President, irrespective of its 

subject matter or its urgency to a policy or legislative goal of 

the organization. Such overbreadth is an unacceptable cure 

for vagueness. Cf. Buckley, 424 U.S. at 44-47 (construing 

FECA §608(e)(1) to reach only express advocacy but then 

invalidating its limit on independent expenditures because it 

“severely restricts all independent advocacy despite its 

substantially diminished potential for abuse”). 

Notably, in its BCRA rulemaking, the FEC declined to 

adopt numerous exceptions to the primary definition of “electioneering communication” because 2 U.S.C. §§ 434(f)(2) 

(B)(iv) bars a regulatory exception for any communication 

that “promotes,” “supports,” “attacks” or “opposes” a candidate, and the FEC concluded that virtually any reference to a 

candidate might be so considered. See Final Rule, “Electioneering Communications,” 67 Fed. Reg. at 65200-03. 

And, in this same rulemaking, the defendant-intervenors 

urged the FEC not to include the “promotes or supports. . .” 

phrase in any exception because it was “subjective” and 

would “create[ ] uncertainty about whether a communication 

will be covered by the law.” Detailed Comments of BCRA 

Sponsors Senator John McCain, Senator Russell Feingold, 

Representative Christopher Shays, Representative Martin 

Meehan, Senator Olympia Snowe and Senator James 

Jeffords, at 8, 6 (August 23, 2002). www.fec.gov/pdf 

/nprm/electioneering_comm/comments/us_cong_members. 

pdf.20 Certainly, if this phrase cannot provide sufficient clarity 

in an exception to the primary definition of “electioneering 

20 In the same vein, principal BCRA sponsor and defendant-intervenor 

Senator McCain urged the defeat of an amendment to his bill proposed by 

Senator Bingaman that would have afforded a “clearly identified 

candidate” who was “attack[ed] or oppose[d]” by a person in any broadcast an opportunity, without charge, to respond on the same broadcast 

station, because, in part, “[i]t is very difficult to define what a negative ad 

is” that the amendment would cover. See 147 Cong. Rec. S3114 (daily 

ed., March 29, 2001). 
31 

communication,” then it is unconstitutionally vague as an 

explicit component of the backup definition itself. 

C. The Backup Definition Is Not Severable 

Even if the majority below was correct that the first prong 

of the backup definition is sufficiently clear, its decision to 

save that prong by severing it from the second prong, which it 

acknowledged was unconstitutionally vague, see S.A. 1165sa 

(Leon, J.), was wrong for two reasons. 

First, the legislative history21 of BCRA makes evident that 

Congress’s highly unusual enactment of a backup definition 

of a statutory term was the product of a legislative compromise intended to ensure that one of these particular 

formulations would survive constitutional challenge intact, 

and not that a mere fragment of either would remain. As 

introduced, the original Senate bill contained only what is 

now the primary definition of “electioneering communication.” See S. 27, Section 201, 107th Cong., 1st Sess. 

(2001). Senator Specter initially offered an amendment to 

incorporate in that definition both the “promotes or supports. . .” clause as it now appears in the backup definition 

and the clause “when read as a whole, and in the context of 

external events, is unmistakable, unambiguous and suggestive 

of no plausible meaning other than an exhortation to vote for 

21 The question of severability requires “essentially an inquiry into 

legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 

526 U.S. 172, 191 (1995). Although BCRA contains a severability 

clause, Section 401, providing that if any “provision” or “amendment,” or 

the “application” of either, to “any person or circumstance” is “held to be 

unconstitutional,” the “remainder” of the act and its “application . . . to 

any person or circumstance, shall not be affected,” a severability clause 

“‘is an aid merely; not an inexorable command,’” Reno v. American Civil 

Liberties Union, 521 U.S. 844, 885 n. 49 (1997), quoting Dorchy v. 

Kansas, 264 U.S. 286, 290 (1924), because “separation-of powers concerns” compel courts to steer clear of engaging in legislative conduct or 

rewriting laws. Reno, 521 U.S. at 884-85 and n.50. See also United 

States v. Jackson, 390 U.S. 570, 586 n.27 (1968). 
32 

or against a specific candidate.” See Amendment No. 140, 

147 Cong. Rec. S2704 (daily ed., March 22, 2001). Senator 

Specter explained that he drew the first clause from 

“language...existing in McCain-Feingold” (in what is now 2 

U.S.C. § 431(20)(A)(iii)) and the second clause from FEC v. 

Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 

(1987), and that he offered the amendment because he feared 

that, without them, the definition in the bill was highly 

vulnerable to invalidation under Buckley. See 147 Cong. Rec. 

at S2706. 

In the ensuing debate, Senators Thompson, Biden and 

Snowe (one of the two co-authors of the primary definition) 

stressed the importance of maintaining a bright-line definition 

of “electioneering communication.” Id. at S2708-12. Senator 

Specter responded by offering to convert his amendment from 

a modification of the definition to a separate, alternative 

definition: “to put in the ‘or’, the disjunctive instead of ‘and’, 

the conjunctive so that there is severability. And where one is 

decided to be inefficient [sic] to satisfy the vagueness 

standards of Buckley, the other might be sufficient—picking 

up on what [Senator Biden] said, having the safeguard.” Id. 

at S2712. It was this alternative that was ultimately enacted 

as the backup definition. See id. at S3119-20, S3122-23. 

Thus, the explicit legislative compromise was an either-or 

pairing of two palatable definitions of “electioneering communication”—the primary definition and the backup definition. The Court should refrain from severing either prong of 

the backup definition from the other if it finds either to be 

unlawful, for “drawing one or more lines between categories 

of speech covered by an overly broad statute . . . involves a 

. . . serious invasion of the legislative domain.” United States 

v. National Treasury Employees Union, 513 U.S. 454, 479 

n.26 (1995). See also Reno v. American Civil Liberties 

Union, 521 U.S. at 884-85. 

Second, by severing the first prong after invalidating the 

second, the majority below adopted a definition of “elec-
33 

tioneering communication” that, whatever its actual scope, is 

undeniably a significantly broader prohibition than either the 

full backup definition or the primary definition, and it simply 

cannot be concluded that Congress intended that result. Cf. 

Frost v. Corporation Commission of Oklahoma, 278 U.S. 

515, 525 (1929) (when an “excepting proviso is found 

unconstitutional the substantive provisions which it qualifies 

cannot stand,” because “to hold otherwise would be to extend 

the scope of the law...so as to embrace [circumstances] which 

the legislature passing the statute had, by its very terms, 

expressly excluded”). 

Accordingly, if this Court determines that either prong of 

the backup definition is unconstitutional, then the entire 

definition should be held non-severable and void. 

III. 	BCRA’S COORDINATION PROVISIONS ARE 

UNCONSTITUTIONALLY VAGUE AND 

OVERBROAD. 

A. BCRA’s Coordination Provisions Directly 

Regulate Protected Speech and Associational 

Activities. 

All three judges below correctly recognized that BCRA’s 

definition of coordination must be narrowly and clearly 

drawn in order to avoid interfering with First Amendment 

rights. S.A. 143sa (Per Curiam), 386sa-387sa (Henderson, J.). In holding that the FEC could not define coordination to include all expenditures by political party committees in support of their candidates, the Court recognized 

that the definition of coordination implicates both freedom of 

speech and freedom of association because it determines 

whether communications are fully protected as independent 

expenditures or are subject to the lesser degree of constitutional protection afforded to contributions. Colorado 

Republican Federal Campaign Comm. v. Federal Election 

Commission, 518 U.S. 604, 615-16, 619-22 (1996) (“Colorado I”). Moreover, insofar as the definition of “coordination” depends on a speaker’s contacts with his elected 
34 

representatives and candidates, it implicates the fundamental 

right of citizens “to make their wishes known to their 

representatives.” Eastern Railroad Presidents Conf. v. Noerr 

Motor Freight, Inc., 365 U.S. 127, 137 (1961). See also 

United States v. Harriss, 347 U.S. 612, 635 (Jackson, J. 

dissenting). And, insofar as the definition of “coordination” 

depends on the contacts between a speaker and a political 

party, it implicates the equally fundamental right “to associate 

with the political party of one’s choice.” Kusper v. Pontikes, 

414 U.S. 51, 57 (1973). See also Eu v. San Francisco County 

Democratic Central Comm., 489 U.S. at 224; Tashjian v. 

Republican Party of Conn., 479 U.S. 208, 214 (1986). 

BCRA’s coordination provisions not only implicate First 

Amendment rights by limiting freedom of speech, freedom 

of association and the right to petition the government, they 

also threaten these rights by intruding into highly sensitive 

private political activities which are at “‘the very heart of the 

organism which the first amendment was intended to nurture 

and protect.’” AFL-CIO v. Federal Election Commission, ___ 

F.3d ___, slip op. 2 (D.C. Cir. June 20, 2003), quoting FEC v. 

Machinists Non-Partisan Political League, 655 F.2d 380, 388 

(D.C. Cir.), cert denied, 454 U.S. 897 (1981). By definition, 

enforcement of coordination rules “‘inevitably . . . involves 

an intrusive and constitutionally troubling investigation of the 

inner workings of political [actors].’” Colorado II at 471 n. 3 

(Thomas, J., dissenting, quoting with approval from Brief for 

American Civil Liberties Union, et. al. as Amici Curiae 18). 

See Gibson v. Florida Legislative Investigation Comm., 372 

U.S. 539, 557 (1963); Sweezy v. New Hampshire, 354 U.S. 

234, 245 (1957) (Frankfurter, J. concurring). As Judge 

Henderson put it in her dissenting opinion, “in the absence of 

a clear and narrow definition of coordination, an organization’s ideological opponents need only assert that it is 

engaged in such activity to initiate a crippling litigation proc-
35 

ess that could prevent the organization from participating, 

legally, in lobbying or speech activities.” S.A. 387sa.22 

In the late 1990’s, three lower courts attempted to limit the 

chilling effect of FEC’s omnibus coordination investigations 

by narrowing the definition of coordinated political activities. 

See Clifton v. Federal Election Commission, 114 F. 3d 1309 

(1st Cir. 1997), cert denied, 522 U.S. 1108 (1998); Federal 

Election Commission v. Public Citizen, Inc., 64 F. Supp. 2d 

1327 (N.D. Ga. 1999), rev’d on other grounds, 268 F. 3d 

1283 (11th Cir. 2001); Federal Election Commission v. 

Christian Coalition Inc. Responding to the direction given in 

these decisions, and noting that “[t]he statutory terms are not 

22 The record amply supports Judge Henderson’s conclusion regarding 

the “crippling” and intrusive impact of coordination investigations. In one 

leading coordination case brought against the Christian Coalition, the 

FEC conducted extensive discovery into the inner workings of the 

organization as well as private discussions between the leaders of the 

organization and numerous public officials. Federal Election Commission 

v. Christian Coalition, Inc., 52 F. Supp. 2d 45 (D.D.C. 1999). In another 

major enforcement case involving a coalition of business organizations, 

including the Chamber of Commerce and the National Association of 

Manufacturers, the Commission conducted a “disruptive, burdensome and 

expensive” investigation, S.A. 284sa, involving “four years of extensive 

discovery,” S.A. 283sa, in order to determine whether lobbying meetings 

between business lobbyists and Congressional staff members were used to 

coordinate broadcast advertisements run during the 1996 election cycle. 

And, in a far-ranging, four-year investigation of the AFL-CIO’s campaign 

and lobbying activities during the 1995-96 election cycle initiated by 

the organization’s political opponents, the Commission’s investigators 

sought evidence from more than 150 respondents and third-party witnesses, including the White House, the Clinton/Gore ‘96 Campaign, and 

100 Members of Congress, and subpoenaed more than 50,000 pages of 

”extraordinarily sensitive political information [including] plans and strategies for winning elections, materials detailing political and associational 

activities, and personal information concerning hundreds of employees, 

volunteers and members of the Plaintiff organizations.” AFL-CIO v. 

Federal Election Commission, 177 F. Supp. 2d 48, 51 (D.D.C. 2001), 

aff’d, ___ F.3d ___ , No. 02-5069 (D.C.Cir. June 20, 2003). 
36 

inherently clear, nor does the Act’s legislative history provide 

much guidance,” the FEC on December 6, 2000 issued 

regulations intended to “fill what is largely a vacuum in this 

area.” Final Rule, “General Public Political Communications 

Coordinated With Candidates and Party Committees; 

Independent Expenditures,” 65 Fed. Reg. 76138, 76141 (Dec. 

6, 2000), adopting 11 C.F.R. § 100.23 (2001). BCRA, 

however, reinstates the open-ended standards that were in 

effect prior to the courts’ decisions and the 2000 regulations, 

once again raising serious impediments to the free speech and 

associational rights of all citizens. 

B. BCRA’s Provisions Regulating Coordinated 

Electioneering Communications And Expenditures Are Vague And Overbroad. 

BCRA §214(a)(2) does not use the word “coordination” at 

all,23 but provides instead that expenditures made by any 

person, other than a candidate or candidate’s authorized 

committee, “in cooperation, consultation or concert with, or 

at the request or suggestion of” a political party committee 

shall be considered to be contributions made to such party. 

See 2 U.S.C. § 441a(a)(7)(B)(ii). This language offers no 

clear guidance to political actors and the agencies charged 

with enforcing the campaign finance laws. Does a political 

party “request or suggest” expenditures by third parties when 

a party official publicly identifies the party’s principal 

23 BCRA § 202 provides that if any person makes or contracts to make 

any disbursement for any electioneering communication and such 

disbursement is “coordinated with” a candidate or political party, the disbursement or contracting shall be treated as a contribution to the candidate 

supported by the electioneering communication or that candidate’s party. 

2 U.S.C. § 441a(a)(7)(C). The Court need not consider whether § 202's 

bare reference to “coordination” is constitutionally adequate because the 

FEC regulations issued under BCRA apply the same standards for 

coordinated electioneering communications under § 202 as they apply to 

other coordinated communications under § 214(a)(2). See 11 C.F.R. 

§ 109.21(c)(1). 
37 

campaign themes and the states where the party hopes to 

prevail? Is the result different if the same message is 

delivered in a “private” strategy session, and, if so, how many 

party activists must be present before a meeting loses its 

private character? Has a union official acted “in cooperation 

. . . or concert with” a political party if he meets with the 

party’s congressional leadership to plan strategy in support of 

the party’s legislative agenda, including union expenditures in 

support of that agenda? If a trade association lobbyist 

participates in planning party activities during the early stages 

of a campaign season, will the use of information she has 

learned about the party’s plans turn all of her group’s subsequent independent expenditures into contributions because 

of improper “consultation”? These are only a few of the 

myriad unanswered questions raised by § 214(a)(2)’s expansive and unclear language, the uncertainty and breadth of 

which pose a substantial risk of deterring legitimate involvement of citizens in political parties. 

The two judges below who voted to uphold §§ 202 and 

214(a)(2) did not attempt to show that the statutory language 

is clear and narrowly drawn; indeed,the majority ignored the 

statutory language completely. Instead, the majority rejected 

plaintiffs’ challenge to the scope of § 202 by reference to its 

analysis of § 214(a)(2), see S.A. 130sa, and it rejected the 

vagueness challenge to § 214(a)(2) in part on the dubious 

ground that the same language has long appeared in FECA’s 

provision relating to coordination with candidates, 2 U.S.C. 

§ 441a(a)(7)(B)(i).24 S.A. 135sa-136sa, 137sa. The fact that 

24 The majority below erroneously suggested that the Court approved 

the language of 2 U.S.C. § 441a(a)(7)(B)(i) in Buckley v. Valeo. S.A. 

138sa-140sa. There, the Court located the coordination principle in 

FECA § 608(c)(2)(B), which then provided that expenditures “made by or 

on behalf of” any candidate were to be treated as expenditures of the 

candidate and contributions by the person or group making the expenditures, see 424 U.S. at 47 n. 53 , and further provided that expenditures 

are to be treated as “made by or on behalf of any candidate” if they are 
38 

statutory language is longstanding does not in itself mean that 

the language is clear or that it provides adequate guidance to 

those who must adhere to its mandate. See Colorado II, 533 

U.S. at 472 (Thomas, J., dissenting) (“we have never before 

upheld a limitation on speech simply because speakers have 

coped with the limitation for 30 years”). The parallel 

language in FECA might be relevant if the FEC or the courts 

had rendered interpretations which narrowed the statute’s 

scope and made its language more clear. However, the FEC 

itself recognized as late as 2000 that “[t]he statutory terms [of 

FECA’s coordination provision] are not inherently clear,” 

Final Rule, “General Public Political Communications Coordinated With Candidates and Party Committees; Independent 

Expenditures,” 65 Fed. Reg. at 76141, and the agency’s effort 

to narrow the statutory language at that time has been 

repealed by BCRA itself. Pub. L.107-155 § 214(b), 116 

Stat.94-95 (2002). While the majority in Colorado II did not 

address the question, the four dissenters stated clearly that 

FECA’s definition of coordinated expenditures is unconstitutionally overbroad. See 533 U.S. at 467-468 (Thomas, J., 

dissenting, joined by Rehnquist, C.J., and Scalia and 

Kennedy, JJ.) (2 U.S.C. § 441a(a)(7)(B)(i) “covers a broad 

“authorized or requested by the candidate, an authorized committee of the 

candidate, or an agent of the candidate.” 18 U.S.C. § 608(c)(2)(B), 

reprinted at 424 U.S. 191 (emphasis added). Whether or not the Court 

actually “upheld” this provision, as suggested by the majority below, see 

S.A. 139sa, is of no consequence here because the “authorized or 

requested” language of the 1974 statute is far more restrictive than the “in 

cooperation, consultation, or concert with” language adopted by Congress 

following Buckley and now repeated in BCRA § 214(a)(2). Similarly, the 

Court’s interpretation of § 608(c)(2)(B), based on its legislative history, as 

“operat[ing] to treat all expenditures placed in cooperation with or with 

the consent of a candidate, his agents, or an authorized committee of the 

candidate as contributions subject to the limits set forth in [FECA],” 424 

U.S. at 47 n.53 (emphasis added), offers no support for the broader 

standard at issue here, which allows coordination to be found on the basis 

of mere “consultation” with a candidate or political party committee. 
39 

array of conduct, some of which is akin to an independent 

expenditure”); id. at 471 (“because of the ambiguity in the 

term ‘coordinated expenditure,’ the Party Expenditure Provision chills permissible speech as well”). 

C. 	The Majority Below Erroneously Relied On 

The “Possibility” of Corrective Regulations 

In Rejecting The Vagueness And Overbreadth Challenges to BCRA’s Coordination 

Provisions 

Rather than considering the language of §§ 202 and 

214(a)(2), the majority below also rejected plaintiffs’ 

vagueness challenges as not ripe for consideration because 

the issuance of final FEC regulations while the case was sub 

judice made it “possible that many, perhaps even all, of 

Plaintiffs’ vagueness concerns have been remedied by the 

regulations’ contents.” S.A. 137sa. However, it is no answer 

to a claim that a statute is unconstitutionally vague and 

overbroad that an administrative regulation might “possibly” 

cure the constitutional defects as long as citizens may be 

subject to penalties under the statute. See Nixon v. Shrink 

Missouri Government PAC, 528 U.S. 371, 392 (2000) (“We 

have never accepted mere conjecture as adequate to carry a 

First Amendment burden.”). This is the case here because the 

statute provides separate criminal penalties, enforceable by 

the Department of Justice, for knowing and willful violations 

of “the Act.” E.g., 2 U.S.C. § 437g(d). The only way that the 

FEC regulations defining coordination could cure the 

vagueness and overbreadth of the statute would be if the 

regulations provide a clear and narrowly drawn safe harbor 

for coordinated activities that prevents any possible criminal 

prosecution under the vague and overbroad statutory terms. 

While the majority relied on 2 U.S.C. § 438(e) for the proposition that “FECA also provides protection for those who act 

in good faith reliance on FEC regulations,” S.A. 136sa note 

88, that provision is only relevant to the extent that the 

coordination regulations in fact provide “protection” from 
40 

criminal prosecutions under the statute, which cannot 

possibly be determined without reviewing the regulations 

themselves.

25 

In refusing to consider the FEC’s coordination regulations 

issued in response to BCRA, the majority erroneously relied 

on BCR § 403, which limits the jurisdiction of the three-judge 

court to constitutional challenges to BCRA. S.A. 138sa. For, 

it is well-established that a three- judge court has pendent 

jurisdiction to decide any other claim properly presented in a 

case even though the claim is one that standing alone would 

require only a single district judge. See Philbrook v. 

Glodgett, 421 U.S. 707, 712 (1975); Hagans v. Lavine, 415 

U.S. 528, 543 (1974); Lake Carriers’ Ass’n v. MacMullan, 

406 U.S. 498, 504 n. 5 (1972). Here, moreover, plaintiffs 

raised no claim against the FEC regulations, which became 

relevant, if at all, only as a defense to their constitutional 

claims against the statute. Even if the three-judge court 

lacked jurisdiction to invalidate the FEC regulations themselves, the court was not prohibited from considering whether 

the regulations cured the constitutional flaws in BCRA’s 

coordination provisions. By relegating consideration of the 

regulations to a single-judge court in a separate action in 

which the constitutionality of BCRA’s coordination provisions could not be addressed, the majority awkwardly 

bifurcated the coordination issues and ignored Congress’ 

mandate that the courts should “expedite to the greatest 

possible extent the disposition of the action and appeal” in 

this case. Pub. L. 107-155, §403(a)(4), 116 Stat.114 (2002). 

25 This is the approach followed by the majority itself in considering 

the advance disclosure requirement set forth in BCRA § 201(a), where 

they found that the constitutional infirmity in the statute was not cured by 

the regulation and therefore held that the advance notice requirement in 

the statute should be struck down. S.A. 109sa-111sa and n.73. Cf. S.A. 

132sa-133sa (refusing to address the constitutionality of BCRA § 212 

because, in the majority’s view, the FEC’s regulation cured any infirmity 

in the statute). 
41 

Finally, even a cursory examination would have demonstrated that the FEC regulations fail to narrow the statutes’ 

coordination provisions sufficiently to save their constitutionality. For example, in defining the term “coordinated,” 

the FEC regulations repeat verbatim the vague and overbroad 

language of BCRA § 214(a)(2), see 11 C.F.R. § 109.20(a); to 

the extent that this provision may be applicable, 26 it does 

nothing to clarify or narrow the statutory language. The 

regulations’ definition of “coordinated communication” similarly repeats the vague statutory words “request or suggestion”, 11 C.F.R. §109.21(d)(1)(i); and, the FEC explicitly 

refused to define the term further. See Final Rule, 

“Coordinated and Independent Expenditures,” 68 Fed. Reg. at 

431 (rejecting commenters’ request for further definition 

of the term “suggest”). To the extent that the statute 

impermissibly permits a finding of coordination where a 

speaker merely informs a candidate or political party 

committee of its own independent plans, the regulation fails 

to cure this infirmity and actually reinforces it. See 11 C.F.R. 

§ 109.21(d)(3) (providing that the regulations’ conduct 

standards may be met by “substantial discussion”). Fourth, 

and most significantly, the FEC regulations do not protect 

contacts with legislators undertaken for a lobbying purpose.27 

26 The relationship between the broadly worded definition of “coordinated” in 11 C.F.R. § 109.20 and the definition of “coordinated communication”in 11 C.F.R. § 109.21 is uncertain. The regulations appear to 

contemplate, however, that § 109.20(a) could be applied at least in some 

instances not covered by § 109.21. The majority in the district court did 

not consider the implications of § 109.20(a) to this case. 27 11 C.F.R. § 109.21(f), which provides a “safe harbor” for a candidate’s or a party committee’s responses to an inquiry about that candidate’s or committee’s positions on legislative or policy issues, does not 

protect the vast majority of legitimate contacts between outsiders and 

legislators and party committees on legislative and policy matters, as 

suggested by the majority below. S.A. 152sa. The FEC rejected several 

proposals to narrow the regulations in order to make certain that they do 
42 

For these reasons, it was critical for the majority below to 

consider the FEC’s regulations in detail and its failure to do 

so was reversible error. 

D. The Majority Erroneously Determined That 

“Agreement or Formal Collaboration” Is Not 

A Constitutionally Required Element of 

Coordination. 

Although the majority below refused to consider the 

plaintiffs’ overall vagueness and overbreadth challenges to 

BCRA §§ 202 and 214(a)(2) because of the possible impact 

of the FEC’s coordination regulations, it did address whether 

the statutes are overbroad in light of BCRA § 214(c), which 

prohibits the agency from adopting any regulation requiring 

“agreement or formal collaboration” as an element of 

coordination.28 S.A. 138sa-143sa. In ruling that “agreement 

or formal collaboration” is not a constitutionally required 

element of coordination, the majority incorrectly relied 

on this Court’s decisions in Buckley, Colorado I and 

Colorado II,29 which, while not deciding the question 

not prohibit contacts with legislators and committees on legislation and 

policy matters. See 68 Fed. Reg. at 441. 28 This question was clearly ripe for decision since BCRA § 214(c) 

leaves the FEC with no discretion to ignore Congress’s mandate. As 

required by Congress, the regulations issued by the FEC state that 

“[a]greement or formal collaboration between the person paying for the 

communication and the candidate clearly identified in the communication, 

his or her authorized committee, his or her opponent, or the opponent’s 

authorized committee, a political party committee, or an agent of any of 

the foregoing, is not required for a communication to be a coordinated 

communication.” 11 C.F.R. § 109.21(e). See also11 C.F.R. § 109.21(d). 

29 Although the majority below also relied on the district court’s 

decision in Christian Coalition, the opinion in that case offers no support 

for the conclusion that expenditures may be found to be coordinated 

without proof of “agreement or formal collaboration,” for the court 

explicitly stated that “a spender should not be deemed to forfeit First 

Amendment protections for her own speech merely by having engaged in 

some consultations . . . with a federal candidate,” see 52 F. Supp. 2d at 91 
43 

definitively, strongly suggest that the element of “agreement 

or formal collaboration” is essential to keeping the concept of 

coordination within constitutional bounds. Furthermore, 

without proof of “agreement or formal collaboration,” the 

statutory provisions clearly reach a broad range of conduct, 

including mere consultation with a candidate or party, which 

is constitutionally protected. 

In Buckley, the Court located the coordination principle in 

FECA § 608(c)(2)(B), the now-repealed provision which 

applied to any expenditure that was “authorized or requested” 

by a candidate, words that indicate that an element of 

agreement between the speaker and the candidate must be 

present. The Court’s explanation for the coordination rule— 

that it is necessary “to prevent attempts to circumvent the 

Act[‘s contribution limits] through prearranged or coordinated expenditures amounting to disguised contributions,” 

424 U.S. at 47 (emphasis added)—also indicates that some 

form of agreement is necessary before an expenditure will 

subject a political speaker to civil and criminal penalties. 

Chief Justice Burger, concurring in part and dissenting in 

part, similarly emphasized the “authorized or requested” 

language of FECA § 608(c)(2)(B), although he noted that the 

Act “places intolerable pressure on the distinction between 

‘authorized’ and ‘unauthorized’ expenditures on behalf of a 

candidate,” id. at 252, and he expressed doubt “that the 

distinction can be maintained.” Id. Justice White, in his 

separate opinion dissenting from the Court’s invalidation of 

FECA’s limits on independent expenditures, similarly made 

clear his understanding that coordinated expenditures under 

§608(c)(2)(B) were those made “at [a candidate’s] request or 

with his approval or cooperation.” Id. at 261. 

(emphasis added), and it stated that coordination only may be found to 

exist where “the candidate and spender emerge as partners or joint 

venturers in the expressive expenditure.” See id. at 92 (emphasis added). 
44 

In Colorado I, the plurality opinion held that FECA’s 

dollar limits on political party expenditures made “in connection with” the election campaign of a candidate for federal 

office, 2 U.S.C. § 441a(d)(3), could not be constitutionally 

applied to “an expenditure that the political party has made 

independently, without coordination with any candidate.” 

518 U.S. at 608. Since the case involved a challenge to 

FECA’s party contribution limits as applied to specific 

expenditures by the Colorado Republican Party, id. at 613, 

the Court had no occasion to consider whether FECA’s 

definition of coordinated expenditures was facially overbroad 

or vague.30 See id. at 623-24. Moreover, with respect to the 

specific expenditures involved, there was little doubt that 

they were “independent” and not “coordinated” because no 

Republican candidate had been selected to run at the time of 

the party’s expenditures criticizing the incumbent Democrat. 

Id. at 613-14. See also Colorado II, 533 U.S. at 439. In 

rejecting the FEC’s reliance on “general descriptions of party 

practice . . . that do not refer to the advertising campaign at 

issue here or to its preparation,” 518 U.S. at 614 , the plurality 

indicated, however, that such general evidence could not cast 

significant doubt upon uncontroverted direct evidence that the 

campaign was developed by the party “independently and not 

pursuant to any general or particular understanding with a 

candidate.” Id. (emphasis added). The Court’s reference to 

“any general or particular understanding” is suggestive that 

30 Justice Kennedy, joined by the Chief Justice and Justice Scalia, 

would have reached the constitutionality of FECA’s limits on coordinated 

party expenditures, see 518 U.S. at 627, as would have Justice Thomas, 

joined by the Chief Justice and Justice Scalia. See id. at 631. Neither of 

these opinions addressed the facial invalidity of FECA’s definition of 

coordination with candidates. Justice Thomas, however, warned of the 

dangers created by the coordinated expenditure rules which “leav[e] 

political parties in a state of uncertainty about the types of First Amendment expression in which they are free to engage.” See id. at 634. 
45 

some form of “agreement” is constitutionally required before 

an expenditure may be treated as a “disguised contribution.” 

Finally, in Colorado II, the Court reached the question, left 

open in Colorado I, of whether FECA’s party expenditure 

provision was “facially unconstitutional, and so...incapable of 

reaching party spending even when coordinated with a 

candidate.” 533 U.S. at 440. Because the plaintiffs made no 

effort to distinguish between different kinds of coordinated 

expenditures, id. at 456 n.17, the majority opinion was not 

called upon to decide what kinds of conduct would 

constitute coordination if it upheld the statute. The Court did, 

however, cite with approval Buckley’s observation that “treating coordinated expenditures as contributions ‘prevent[s] 

attempts to circumvent the Act through prearranged or 

coordinated expenditures amounting to disguised contributions.’” 533 U.S. at 443, quoting 424 U.S. at 47.31 

Because the majority erroneously regarded this Court’s 

prior coordination decisions as controlling, it failed to 

consider plaintiffs’ arguments that BCRA §§ 202 and 

214(a)(2) would, without proof of “agreement or formal 

collaboration,” reach a substantial number of legitimate and 

protected contacts between citizens and candidates or 

political parties.32 Merely informing a candidate or party 

31 As noted by the majority below, S.A. 142sa, the Court in Colorado II 

did state that the coordination rule could not be avoided by “wink and 

nod” arrangements. 533 U.S. at 442. This oblique and unexplained reference, however, hardly stands as authority for eliminating the requirement 

of “agreement or formal collaboration.” 32 The December 2000 FEC regulations specifically required that, in 

order to rise to the level of coordination, discussions with candidates or 

parties regarding certain aspects of a communication had to be “substantial” and result in “collaboration or agreement.” See 11 C.F.R. 

§ 100.23(c)(2)(iii) (2001), repealed by Pub. L. 107-155, § 214(b) (2002), 

116 Stat. 81. In adopting the requirement of “collaboration or agreement” 

as a required element of coordination, the Commission stated that the 

purpose of the condition was to “establish a ‘buffer zone’ for protected 
46 

official about issues and urging them to take particular positions on these issues is core political speech. So is informing 

a candidate or party about a group’s own activities taken on 

their behalf. Federal Election Commission v. Christian 

Coalition Inc., 52 F. Supp. 2d at 92-95. And, citizens have a 

right to work in candidates’ campaigns and for political 

parties, see Eu v. San Francisco Democratic Central Comm., 

489 U.S. at 230-31, without having the information they may 

thereby obtain about the candidates’ or parties’ plans 

jeopardize their right to make independent expenditures in 

behalf of those candidates. Such conduct may be regulated 

without offending the First Amendment only where it 

presents the same danger of corruption as cash contributions, 

and that is only possible, as the Court’s previous decisions 

reflect, where the candidate or party and the citizen have 

reached “agreement or formal collaboration.” 

IV. 	BCRA’S ADVANCE DISCLOSURE REQUIRE 

MENTS ARE NOT NARROWLY TAILORED 

TO SERVE A COMPELLING GOVERNMENTAL INTEREST AND THEREFORE 

VIOLATE THE FIRST AMENDMENT. 

“[C]ompelled disclosure [of political activities], in itself, 

can seriously infringe on privacy of association and belief 

guaranteed by the First Amendment.” Buckley v. Valeo, 424 

U.S.at 64. The government’s interests in mandating disclosure therefore “must survive exacting scrutiny,” id. at 64, 

citing NAACP v. Alabama, 357 U.S. 449, 463 (1958); Gibson 

v. Florida Legislative Comm., 372 U.S. 539, 546 (1963); 

NAACP v. Button, 371 U.S. 415, 438 (1963); and Bates v. 

Little Rock, 361 U.S. 516, 524 (1960), and must be narrowly 

tailored to serve important governmental interests. 

In upholding FECA’s requirement for after-the-fact 

reporting of independent expenditures in Buckley, the Court 

speech,” see 65 Fed. Reg. at 76141, and that “this new rule is more 

protective of First Amendment rights than the standard it is replacing.” Id. 
47 


recognized only three governmental interests sufficiently 

compelling to support mandatory disclosure and reporting of 

political expenditures: (1) providing the electorate with 

information as to where political campaign money comes 

from and how it is spent, 424 U.S. at 66; (2) deterring actual 

corruption and avoiding the appearance of corruption by 

exposing large contributions and expenditures to the light of 

publicity, id. at 67; and (3) gathering the data necessary to 

detect violations of the [Act’s] contribution limitations. Id. at 

68. BCRA’s advance reporting requirements are not narrowly tailored because each of these governmental interests 

can be fully served by requiring persons making “electioneering communications” to disclose their expenditures within a reasonable period after the communications 

have been aired, not when they have merely contracted to 

make such expenditures. Cf. Thomas v. Collins, 323 U.S. at 

540. In contrast, mandatory disclosure of expenditures for 

communications before they have run may, as Judge 

Henderson found, S.A. 271sa, chill speech by forcing 

speakers to disclose their plans and strategies before they are 

implemented, giving speakers’ opponents an opportunity to 

prepare counter-messages, and allowing opponents the 

opportunity to induce broadcasters not to run the ads at all. In 

addition, as Judges Leon and Kollar-Kotelly found, advance 

notice may actually be counterproductive because “[i]formation concerning contracts that have not been performed, 

and may never be performed, may lead to confusion and an 

unclear record upon which the public will evaluate forces 

operating in the political marketplace.” S.A. 114sa.33 

33 Defendant FEC itself has recognized that “until a person or entity 

actually airs an electioneering communication, it is impossible to know 

with certainty that the person or entity ever will air a communication that 

constitutes an electioneering communication under BCRA; accordingly, 

to require reporting beforehand could lead to “speculative and even 

inaccurate reporting through no fault of the reporting person or entity.” 

Notice of Proposed Rulemaking, “Electioneering Communications,” 67 
48 

For these reasons, the lower federal courts uniformly have 

ruled that advance reporting of political expenditures is not 

narrowly tailored to serve a compelling governmental interest 

and should be struck down. See Citizens For Responsible 

Government State Political Action Comm. v. Davidson, 236 

F.3d 1174, 1197 (10th Cir. 2000), Wisconsin Realtors Ass’n 

v. Ponto, 233 F. Supp. 2d 1078, 1091 (W.D. Wis. 2002); 

Florida Right to Life, Inc. v. Mortham, 1998 U.S. Dist. 

LEXIS 16694 at *30 (M.D.Fla. 1998). See also Arizona 

Right to Life Political Action Comm. v. Bayless, 320 F.3d 

1002 (9th Cir. 2003). Advance disclosure of electioneering 

communications similarly will chill the exercise of free 

speech by forcing groups such as the AFL-CIO to disclose 

on-going and confidential political strategies and by giving 

their opponents the opportunity to interfere with the 

communications. S.A. 271sa (Henderson Findings 53g-i). 

The district court’s decision invalidating section 201(a)’s 

advance reporting requirement should therefore be affirmed. 

Fed. Reg. 51131, 51141 (Aug. 7, 2002). The Commission also noted that 

there could be “constitutional issues” with compelling disclosure of 

potential electioneering communications before they are finalized and 

aired, “particularly when such disclosure could force reporting entities to 

divulge confidential information, and could force them to report 

information, under the penalty of perjury, that later turns out to be 

misleading or inaccurate if the reporting entity does not subsequently air 

any electioneering communications.” Id. 
49 

CONCLUSION 

The decision of the district court concerning BCRA’s prohibition against union and corporate spending for the primary 

definition should be affirmed; its decisions upholding the 

backup definition and BCRA’s coordination provision should 

be reversed; and its decision striking down BCRA’s advance 

disclosure provision should be affirmed. 

LARRY P. WEINBERG


1101 17th Street, N.W. 


Suite 900 


Washington, D.C. 20036 


(202) 775-5900 


Of Counsel 

Respectfully submitted, 

JONATHAN P, HIATT 

LAURENCE E. GOLD 

Counsel of Record 

AFL-CIO 


815 Sixteenth Street, N.W.


Washington, D.C. 20006 


(202) 637-5130 


MICHAEL B. TRISTER


LICHTMAN, TRISTER & ROSS, PLLC


1666 Connecticut Ave., N.W. 


Washington, D.C. 20009 


(202) 328-1666 


Counsel for Appellants/ 

Cross-Appellees