Nos. 02-1674, et al.

In the Supreme Court of the United States

MITCH MCCONNELL, UNITED STATES SENATOR,

ET AL., APPELLANTS/CROSS-APPELLEES

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION

COMMISSION, ET AL. (FINAL VERSION)

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

STEPHEN E. HERSHKOWITZ

DAVID KOLKER

Assistant General Counsels

Federal Election Commission

Washington, D.C. 20463

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MALCOLM L. STEWART

GREGORY G. GARRE

Assistants to the Solicitor

General

DOUGLAS N. LETTER

JAMES J. GILLIGAN

MICHAEL S. RAAB

DANA J. MARTIN

TERRY M. HENRY

RUPA BHATTACHARYYA

ANDREA GACKI

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514–2217
(I)

QUESTIONS PRESENTED

In 2002, the President signed into law the Bipartisan

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

116 Stat. 81, which amends the Federal Election Campaign

Act (FECA), 2 U.S.C. 431 et seq. BCRA is designed to

address various well-documented abuses associated with the

financing of federal election campaigns. The questions presented are as follows:

1. Whether new FECA § 323(a) (added by BCRA § 101),

which prohibits national political parties from soliciting or

receiving funds except in compliance with FECA’s disclosure requirements and source-and-amount contribution

restrictions, is constitutional.

2. Whether new FECA § 323(b) (added by BCRA § 101),

which generally requires that funds spent by state parties on

four specified categories of “Federal election activity” must

be raised in compliance with FECA’s disclosure requirements and source-and-amount contribution restrictions, is

constitutional.

3. Whether new FECA § 323(d) (added by BCRA § 101),

which prohibits national and state political parties from

soliciting funds for certain tax-exempt organizations, or

making donations to such organizations, is constitutional.

4. Whether new FECA § 323(e) (added by BCRA § 101),

which prohibits federal office-holders and candidates from

soliciting funds for federal or state electoral campaigns

except in compliance with FECA’s source-and-amount contribution restrictions, is constitutional.

5. Whether new FECA § 323(f) (added by BCRA § 101),

which provides that funds used by state candidates and

office-holders for communications that promote or attack a

federal candidate must be raised in compliance with FECA’s
II

disclosure requirements and source-and-amount contribution

restrictions, is constitutional.

6. Whether BCRA § 213, which requires political parties

under certain circumstances to choose between making

independent or coordinated expenditures in support of their

federal candidates, is constitutional.

7. Whether the source-of-funding limitation and disclosure requirements pertaining to “electioneering communications,” imposed by BCRA §§ 201-203 and 311, are constitutional.

8. Whether the district court correctly dismissed

plaintiffs’ challenges to BCRA § 214(a)-(c), which states that

expenditures coordinated with a political party shall be

treated as contributions to the party (§ 214(a)); directs the

Federal Election Commission to promulgate new regulations

governing “coordinated communications” (§ 214(b)); and provides that those regulations “shall not require agreement or

formal collaboration to establish coordination” (§ 214(c)).

9. Whether the district court correctly dismissed plaintiffs’ challenge to BCRA § 307, which increases from $1000 to

$2000 the per-election limit on an individual’s contributions

to a federal candidate.

10. Whether the district court correctly dismissed plaintiffs’ challenge to BCRA §§ 304 and 319, which establish

increased contribution limits in certain circumstances when a

candidate faces an opponent who expends substantial personal funds, beyond a statutory threshold amount, on his

own campaign.

11. Whether the district court correctly dismissed plaintiffs’ challenge to BCRA § 305, which imposes certain

conditions on a federal candidate’s entitlement to the “lowest

unit charge” for broadcast advertising.
III

12. Whether the reporting and record-keeping requirements imposed on broadcast stations by BCRA § 504 are

constitutional.

13. Whether BCRA § 318, which prohibits minors from

making contributions to federal candidates or political party

committees, is constitutional.
(IV)

TABLE OF CONTENTS

Page

Opinion below ................................................................................. 1

Jurisdiction ...................................................................................... 1

Constitutional and statutory provisions involved ................... 2

Statement ........................................................................................ 2

Summary of argument .................................................................. 21

Argument ........................................................................................ 27

I. Title I and Section 213 of BCRA are

constitutional ................................................................... 28

A. The restrictions on political party fundraising imposed by Title I are consistent

with other anti-corruption and conflictof-interest provisions designed to protect

the integrity of federal office-holders and

employees ................................................................. 28

B. The provisions of Title I and Section 213

of BCRA are consistent with the First

Amendment .............................................................. 34

1. The ban on receipt of soft money by

national party committees complies with

the First Amendment ..................................... 34

2. The restrictions on state parties’ use of soft

money for “Federal election activity” are

reasonable and consistent with the First

Amendment ...................................................... 45

3. Title I’s solicitation restrictions reinforce

Title I’s contribution limits and comply

with the First Amendment ............................ 51

4. New FECA § 323(f )’s restrictions on state

candidates and office-holders are valid

anti-circumvention measures ........................ 59
V

Table of Contents—Continued: Page

5. BCRA § 213’s provisions governing independent and coordinated expenditures by

party committees comply with the First

Amendment ...................................................... 60

C. Title I does not intrude upon the authority

of the States to regulate their own elections ..... 65

D. Title I does not intrude impermissibly upon

the ability of political party committees to

associate and interact with each other ................ 69

E. Title I does not violate the political parties’

rights under the equal protection component

of the Fifth Amendment Due Process Clause ... 70

II. The electioneering-communications provisions

of Title II of BCRA are constitutional ........................ 72

A. BCRA’s electioneering-communications

provisions are a natural evolutionary step

in Congress’s longstanding regulation of

corporate and union electoral spending .............. 73

1. For almost a century, Congress has cautiously regulated the manner in which

federal political activity may be financed

by corporations and labor unions .................. 74

2. BCRA’s electioneering-communications

provisions were enacted to plug a loophole in existing law that has been

exploited by corporations and unions .......... 78

B. BCRA’s source limitation on electioneering

communications is narrowly tailored to

advance public interests that this Court has

repeatedly recognized as compelling ................... 85

1. BCRA’s electioneering-communications

provisions advance several compelling

government interests ...................................... 86
VI

Table of Contents—Continued: Page

2. BCRA’s electioneering-communications

provisions are narrowly tailored to advance a compelling government interest .... 90

C. Plaintiffs’ challenges to BCRA’s source-offunding limitation should be rejected .................. 96

1. BCRA’s source-of-funding limitation on

electioneering communications does not

“ban” any speech whatever ............................ 97

2. Neither Buckley nor MCFL adopted the

express-advocacy test as an absolute

limit on Congress’s authority ........................ 101

3. The primary definition of “electioneering

communications” is not overbroad ............... 103

4. The primary definition of “electioneering

communications” is not too narrow .............. 114

5. BCRA’s fallback definition of “electioneering communications” is valid .................... 116

D. BCRA’s disclosure requirements with respect

to electioneering communications are valid ....... 119

E. The district court correctly dismissed

plaintiffs’ challenges to BCRA § 214(a)-(c) ......... 122

III. Plaintiffs’ challenges to Titles III and V of BCRA

should be rejected ........................................................... 125

A. The district court correctly dismissed plaintiffs’ challenges to the increased individual

contribution limits in BCRA § 307 ....................... 125

B. The district court correctly dismissed plaintiffs’ challenge to the “millionaire provisions”

of BCRA §§ 304 and 319 ......................................... 127

C. The district court correctly dismissed plaintiffs’ challenge to BCRA § 305 .............................. 128

D. The disclosure requirements in BCRA § 504

are constitutional ..................................................... 131
VII

Table of Contents—Continued: Page

E. BCRA § 318, which prohibits any minor from

making a contribution to a federal candidate

or political party, is constitutional ....................... 133

Conclusion ....................................................................................... 135

TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................... 125

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) ............. 69

American Party of Tex. v. White, 415 U.S. 767

(1974) ........................................................................................ 69

Ashcroft v. ACLU, 535 U.S. 564 (2002) ............................. 104

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

(2002) ........................................................................................ 118

Austin v. Michigan Chamber of Commerce, 494

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

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995),

cert. denied, 517 U.S. 1119 (1996) ................................... 54, 67

Bowen v. Massachusetts, 487 U.S. 879 (1988) .................. 113

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..... 103, 104, 105

Buckley v. American Constitutional Law Found.,

525 U.S. 182 (1999) ................................................................ 132

Buckley v. Valeo:

519 F.2d 821 (D.C. Cir. 1975) ............................................... 40

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

California Democratic Party v. Jones, 530 U.S.

567 (2000) ............................................................................. 65, 69

California Med. Ass’n v. FEC, 453 U.S. 182

(1981) ....................................... 42, 43, 54, 70, 71, 74, 90, 98, 126

Citizens Against Rent Control v. Berkeley, 454 U.S.

290 (1982) ................................................................................. 121

Civil Serv. Comm’n v. Letter Carriers, 413 U.S.

548 (1973) ....................................................................... 39, 57, 58
VIII

Cases—Continued: Page

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) ......................................... 17-18, 62, 63, 64

Common Cause v. FEC, 692 F. Supp. 1391

(D.D.C. 1987) .......................................................................... 10

Connick v. Myers, 461 U.S. 138 (1983) .............................. 57

County of Allegheny v. ACLU, 492 U.S. 573

(1989) ........................................................................................ 118

Crandon v. United States, 494 U.S. 152 (1990) ............ 29, 39

FEC v. Beaumont, 123 S. Ct. 2200 (2003) ................... passim

FEC v. Colorado Republican Fed. Campaign

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

FEC v. Democratic Senatorial Campaign Comm.,

454 U.S. 27 (1981) ............................................................... 18, 63

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

cert. denied, 484 U.S. 850 (1987) ......................................... 118

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) ...................................................... 14-15, 74,

77, 79, 97, 98, 102, 113, 114

FEC v. National Conservative Political Action

Comm., 470 U.S. 480 (1985) ....................... 74, 86, 88, 98, 100

FEC v. National Rifle Ass’n, 254 F.3d 173 (D.C.

Cir. 2001) ................................................................................. 87

FEC v. National Right to Work Comm., 459 U.S.

197 (1982) ........................................................................... passim

Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta,

458 U.S. 141 (1982) ................................................................ 68

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ............. 86,

88, 99, 132

Free v. Bland, 369 U.S. 663 (1962) ...................................... 68

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........... 116

Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6

(1970) ........................................................................................ 118

Hill v. Colorado, 530 U.S. 703 (2000) .................. 104, 105, 117

Humanitarian Law Project v. Reno, 205 F.3d

1130 (9th Cir. 2000), cert. denied, 532 U.S. 904

(2001) ........................................................................................ 42
IX

Cases—Continued: Page

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) ......................................................................... 125, 129-130

Lujan v. National Wildlife Fed’n, 497 U.S. 871

(1990) ........................................................................................ 125

McCormick v. United States, 500 U.S. 257 (1991) ....... 67, 68

Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Rev., 460 U.S. 575 (1983) ................................. 115

NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958) ......................................................................... 99, 120

National Endowment for the Arts v. Finley, 524

U.S. 569 (1998) ........................................................................ 117

New York v. Ferber, 458 U.S. 747 (1982) ................... 104, 105

New York v. United States, 505 U.S. 144 (1992) .............. 65

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

(2000) ............................................. 6, 7, 28, 30, 31, 32, 36, 39, 44

Oregon v. Mitchell, 400 U.S. 112 (1970) ............................. 30

Pickering v. Board of Educ., 391 U.S. 563

(1968) ........................................................................................ 57

Pipefitters Local Union No. 562 v. United States,

407 U.S. 385 (1972) ..................................................... 3, 4, 75, 97

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376 (1973) ............................ 53

Public Workers v. Mitchell, 330 U.S. 75 (1947) ................ 58

Regan v. Taxation with Representation, 461 U.S.

540 (1983) ............................................................................. 56, 75

Riley v. National Fed’n of the Blind, 487 US.

781 (1988) ............................................................................. 51, 52

Schenck v. Pro-Choice Network of Western N.Y.,

519 U.S. 357 (1997) ................................................................ 117

Siebold, Ex parte, 100 U.S. 371 (1879) ............................. 66, 67

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

567 (1957) ............................................. 3, 4, 5, 73, 74, 75, 77, 86

United States v. CIO, 335 U.S. 106 (1948) ......................... 3, 75

United States v. Lanier, 520 U.S. 259 (1997) .................... 116

United States v. Lopez, 514 U.S. 549 (1995) ...................... 66
X

Cases—Continued: Page

United States v. Mississippi Valley Co., 364 U.S.

520 (1961) ............................................................................. 29, 39

United States v. Morrison, 529 U.S. 598 (2000) ............... 66

United States v. NTEU, 513 U.S. 454 (1995) .................... 58

United States v. Powell, 423 U.S. 87 (1975) ...................... 117

United States v. Raines, 362 U.S. 17 (1960) ..................... 104

United States v. Sun-Diamond Growers, 526 U.S.

398 (1999) ............................................................................. 28, 29

United States v. Thirty-Seven Photographs, 402

U.S. 363 (1971) ........................................................................ 102

Virginia v. Hicks, 123 S. Ct. 2191 (2003) .. 103, 104, 105, 111

Virginia Society for Human Life v. FEC, 263 F.3d

379 (4th Cir. 2001) .................................................................. 79

Yarbrough, Ex parte, 110 U.S. 651 (1884) ........................... 67

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ........... 118

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 4, Cl. 1 (Federal Elections Clause) ..................... 2, 30

Art. III ..................................................................................... 125

Art. VI, Cl. 2 (Supremacy Clause) ................................. 66, 69

Amend. I ............................................................................ passim

Amend. V ........................................................................ 2, 21, 70

Amend. X ........................................................................ 2, 21, 65

Act of Jan. 26, 1907, ch. 420, 34 Stat. 864 .............................. 76

34 Stat. 864-865 ...................................................................... 4

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 82 ................................................ passim

Tit. I ............................................................................... passim

§ 101(a) ........................................................... 12, 34, 45, 51

§ 101(b) ................................................................. 13, 45, 59

§ 102(3) ........................................................................ 12, 32

Tit. II ............................................................................. passim

Subtit. A .......................................................................... 15

§ 201 ...................................................................... passim

§ 201(a) ...................................... 15, 16, 91, 94, 115, 116
XI

Statutes and regulations—Continued: Page

§ 202 ............................................................................ 17

§ 203 ................................................ 16, 73, 84, 112, 117

§ 204 .................................................................... 112, 113

Subtit. B:

§ 213 ...................................................................... passim

§ 213(2) .............................................................. 19, 60, 64

§ 214 ............................................................................ 123

§ 214(a) ................................................... 17, 25, 123, 124

§ 214(a)(2) ................................................................... 123

§ 214(b) ..................................... 17, 25, 123, 124, 125

§ 214(c) ...................................... 17, 25, 123, 124, 125

Tit. III:

§ 301 ............................................................................ 31

§ 302 ............................................................................ 67

§ 304 ....................................................... 19, 25, 127, 128

§ 304(a)(2) ............................................................. 19, 127

§ 305 ............................... 19, 26, 128, 129, 130, 131, 132

§ 305(a)(3) ........................................................... 20, 129

§ 307 ............................................................. 25, 126, 127

§ 307(a)(1) .................................................. 12, 31, 32, 125

§ 307(a)(2) .................................................. 12, 32, 37, 44

§ 307(b) ....................................................................... 12

§ 307(d) ....................................................................... 12

§ 311 ...................................................................... 19, 122

§ 318 ......................................................... 19, 26, 133, 134

§ 319 ....................................................... 19, 25, 127, 128

§ 319(a) .................................................................. 19, 127

Tit. IV:

§ 401 ............................................................................ 20

§ 403(a) ............................................................. 20, 21, 126

§ 403(a)(3) ................................................................... 2

§ 403(b) ................................................................... 20, 21

§ 403(c) ........................................................................ 20

Tit. V:

§ 504 ........................................ 19, 20, 26, 131, 132, 133
XII

Statutes and regulations—Continued: Page

Communications Act of 1934, 47 U.S.C. 201 et seq.:

47 U.S.C. 315 ......................................................................... 19

47 U.S.C. 315(b)(1) ......................................................... 19, 129

47 U.S.C. 315(b)(2)(A) ......................................................... 20

47 U.S.C. 315(b)(2)(C) ......................................................... 20

47 U.S.C. 315(b)(2)(C)(i) ...................................................... 129

47 U.S.C. 315(b)(2)(C)(ii) .................................................... 129

47 U.S.C. 315(b)(2)(D) ................................................... 20, 129

47 U.S.C. 315(e)(1) ............................................................... 20

47 U.S.C. 315(e)(1)(B) .......................................................... 131

47 U.S.C. 315(e)(2) ............................................................... 20

47 U.S.C. 315(e)(2)(G) .......................................................... 133

Federal Corrupt Practices Act of 1925, ch. 368,

§ 302(d), 43 Stat. 1071 ........................................................... 76

Federal Election Campaign Act Amendments of

1976, Pub. L. No. 94-283, Tit. I, § 112(2), 90 Stat.

486-487 ..................................................................................... 6

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. .................................................................................. passim

2 U.S.C. 431(8)(A)(i) ......................................................... 7-8

2 U.S.C. 431(9)(A)(i) ......................................................... 79

2 U.S.C. 431(9)(A)(ii) ........................................................ 122

2 U.S.C. 431(16) ................................................................. 7, 33

2 U.S.C. 434 ........................................................................ 119

2 U.S.C. 434(c) ............................................................. 15, 119

2 U.S.C. 434(c)(2)(C) ......................................................... 119

2 U.S.C. 434(f)(2)(E) ......................................................... 119

2 U.S.C. 434(f)(3)(A)(i) ..................................................... 114

2 U.S.C. 434(f)(3)(C) ......................................................... 94

2 U.S.C. 434(f)(5) ............................................................... 121

2 U.S.C. 437c(b)(1) ............................................................ 3

2 U.S.C. 437d ...................................................................... 104

2 U.S.C. 437d(a) ................................................................. 3

2 U.S.C. 437g .................................................................. 3, 104

2 U.S.C. 437g(a)(5)(C) ...................................................... 104

2 U.S.C. 437h ...................................................................... 126
XIII

Statutes and regulations—Continued: Page

2 U.S.C. 441a ...................................................................... 3, 18

2 U.S.C. 441a(a) ................................................................. 18

2 U.S.C. 441a(a)(1) ............................................................ 7, 63

2 U.S.C. 441a(a)(1)(B) (1976) ........................................... 7

2 U.S.C. 441a(a)(1)(C) (1976) ........................................... 7

2 U.S.C. 441a(a)(2) ............................................................ 7, 63

2 U.S.C. 441a(a)(2)(A) ................................................... 17, 61

2 U.S.C. 441a(a)(4) .................................................... 7, 70, 71

2 U.S.C. 441a(a)(5) ............................................................ 64

2 U.S.C. 441a(a)(7)(B)(i) ...................................... 17, 122, 125

2 U.S.C. 441a(a)(7)(B)(ii) .................................................. 123

2 U.S.C. 441a(c) ................................................................. 18

2 U.S.C. 441a(d) ........................ 17, 18, 19, 60, 61, 62, 63, 71

2 U.S.C. 441a(d)(2) ............................................................ 18

2 U.S.C. 441a(d)(3) ............................................................. 18, 64

2 U.S.C. 441a(d)(4)(A)(i) .................................................. 60

2 U.S.C. 441a(h) ................................................................. 61

2 U.S.C. 441b ................................................................ passim

2 U.S.C. 441b(a) ................................................................. 79

2 U.S.C. 441b(b)(2) ...................................................... 16, 84

2 U.S.C. 441b(b)(2)(A)-(C) ............................................... 4

2 U.S.C. 441b(b)(2)(C) ....................................................... 16, 76

2 U.S.C. 441b(b)(4) ............................................................ 16

2 U.S.C. 441b(b)(4)(C) ...................................................... 98

2 U.S.C. 441c(a) ................................................................. 67

2 U.S.C. 441e ...................................................................... 67

Hobbs Act, 18 U.S.C. 1951 ...................................................... 67

Internal Revenue Code (26 U.S.C.):

§ 501 .......................................................................................... 55

§ 501(c) ........................................................................... 51, 54, 56

§ 501(c)(3) ................................................................................ 54

§ 501(c)(4) ................................................................... 75, 112, 113

§ 527 ................................................................................ 51, 55, 56

§ 527(e)(1) ................................................................................ 112

§ 9008 ....................................................................................... 71
XIV

Statutes and regulations—Continued: Page

Labor-Management Relatons Act, 1947, ch. 120, § 304,

61 Stat. 159 .............................................................................. 76

War Labor Disputes Act of 1943, ch. 144, § 9,

57 Stat. 167 .............................................................................. 76

5 U.S.C. 705 ................................................................................ 124

5 U.S.C. 7323(a) ..................................................................... 54, 58

5 U.S.C. 7323(a)(2) ................................................................ 57, 58

5 U.S.C. 7323(b)(2) .................................................................... 58

5 U.S.C. 7323(b)(3) .................................................................... 58

5 U.S.C. 7353(a)(2) .................................................................... 29

18 U.S.C. 201 ......................................................................... 34, 57

18 U.S.C. 201(b) ........................................................................ 29

18 U.S.C. 201(b)(1)-(4) ............................................................. 34

18 U.S.C. 201(c) ........................................................................ 29

18 U.S.C. 201(c)(1)(A) ............................................................. 30

18 U.S.C. 208 ............................................................................. 29

18 U.S.C. 209 ............................................................................. 29

18 U.S.C. 607 ............................................................................. 67

18 U.S.C. 608(b)(1) (Supp. IV 1974) ..................................... 5

18 U.S.C. 608(b)(3) (Supp. IV 1974) ...................................... 5

18 U.S.C. 608(e)(1) (Supp. IV 1974) ...................................... 101

5 C.F.R.:

Section 2635.202(a)(2) ........................................................... 29

Section 2635.203(f)(2) ........................................................ 34, 53

11 C.F.R.:

Section 100.22(b) ................................................................ 16, 79

Section 100.23 (2002) ............................................................. 122

Section 100.29(b)(3)(ii) .......................................................... 97

Section 102.6(a)(2) (1977) ...................................................... 9

Section 104.11(b) .................................................................... 122

Section 106.1(e) (1977) .......................................................... 9

Section 106.5(a)(2)(i) (2002) .................................................. 10

Section 106.5(a)(2)(iv) (2002) ............................................... 10

Section 106.5(b) (2002) .......................................................... 10

Section 106.5(c) (2002) ........................................................... 10

Section 106.5(d) (2002) .......................................................... 10
XV

Regulations—Continued: Page

Section 109.32(a) .................................................................... 18

Section 109.32(a)(3) ............................................................... 18

Section 109.32(b) .................................................................... 18

Section 109.32(b)(3) ............................................................... 18

Section 109.32(b)(4) ............................................................... 18

Section 109.33(a) ................................................................ 18, 70

Section 114.10 ......................................................................... 113

Section 300.31(c) .................................................................... 50

47 C.F.R. (2002):

Section 73.1212 ....................................................................... 130

Section 73.1212(a) .................................................................. 132

Section 73.1212(a)(1) ............................................................. 131

Section 73.1212(a)(2) ............................................................. 131

Section 73.1212(a)(2)(ii) ........................................................ 131

Section 73.1212(d) .......................................................... 132, 133

Section 73.1212(e) .......................................................... 132, 133

Section 76.1701(d) .......................................................... 132, 133

Miscellaneous:

Richard Briffault, The Political Parties and Campaign Finance Reform, 100 Colum. L. Rev. 620

(2000) ........................................................................................ 41

145 Cong. Rec. S511 (daily ed. Jan. 19, 1999) ....................... 115

147 Cong. Rec.:

p. S2693 (daily ed. Mar. 22, 2001) ........................................ 131

p. S3036 (daily ed. Mar. 28, 2001) ........................................ 83

p. S3251 (daily ed. Apr. 2, 2001) .......................................... 12

148 Cong. Rec.:

p. H409 (daily ed. Feb. 13, 2002) ......................................... 42

p. S2143 (daily ed. Mar. 20, 2002) ........................................ 59

p. S2145 (daily ed. Mar. 20, 2002) ................................ 122-123

55 Fed. Reg. (1990):

p. 26,058 ................................................................................... 9, 10

p. 26,059 ................................................................................... 10

63 Fed. Reg. (1998):

p. 37,723 ................................................................................... 8

pp. 37,723-37,724 .................................................................... 9
XVI

Miscellaneous—Continued: Page

65 Fed. Reg. 76,138 (2000) ....................................................... 122

67 Fed. Reg. (2002):

p. 49,083 ................................................................................... 54

p. 64,555 ................................................................................... 122

p. 64,656 ................................................................................... 122

68 Fed. Reg. 421 (2003) ............................................................ 123

H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess.

(1976) ........................................................................................ 63

http://www.fec.gov/press/053101pacfund/tables/

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S. Doc. No. 1, 107th Cong., 1st Sess. (2002) ......................... 31

Senate Rules:

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(1)

In the Supreme Court of the United States

Nos. 02-1674, et al.

MITCH MCCONNELL, UNITED STATES SENATOR,

ET AL., APPELLANTS/CROSS-APPELLEES

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION

COMMISSION, ET AL. 1

OPINION BELOW

The opinion of the district court (Supp. App. 1sa-1382sa) is

reported at 251 F. Supp. 2d 176.

JURISDICTION

The judgment of the district court was entered on May 2,

2003. This Court noted probable jurisdiction on June 5, 2003.

The jurisdiction of this Court rests on the Bipartisan

 1 This brief is filed on behalf of the Federal Election Commission (FEC) and David M. Mason, Ellen L. Weintraub, Danny L.

McDonald, Bradley A. Smith, Scott E. Thomas, and Michael E.

Toner, in their capacities as Commissioners of the FEC; John

Ashcroft, in his capacity as Attorney General of the United States;

the United States Department of Justice; the Federal Communications Commission; and the United States of America. Those

parties are appellants in Federal Election Commission v. Mitch

McConnell, United States Senator, No. 02-1676.
2

Campaign Reform Act of 2002, Pub. L. No. 107-155,

§ 403(a)(3), 116 Stat. 114.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article I, Section 4, Clause 1 of the United States

Constitution is reproduced at 02-1676 J.S. App. 10a.

2. The First Amendment to the United States Constitution is reproduced at 02-1676 J.S. App. 11a.

3. The Fifth Amendment to the United States Constitution is reproduced at 02-1676 J.S. App. 12a.

4. The Tenth Amendment to the United States Constitution is reproduced at 02-1676 J.S. App. 13a.

5. The Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81, is reproduced at 02-1676 J.S. App.

14a-86a.

STATEMENT

These consolidated cases arise out of pre-enforcement

facial constitutional challenges to various provisions of the

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.

No. 107-155, 116 Stat. 81. A three-judge panel of the District

Court for the District of Columbia sustained several of the

challenged BCRA provisions, held that other provisions violate the First Amendment, and found that certain of the

constitutional challenges are not justiciable in the present

suits.

1. “[T]he history of federal campaign finance regulation,

having its origins in the Administration of President Theodore Roosevelt, is a long-standing and recurring problem

that has challenged our government for nearly half of the life

of our Republic.” Supp. App. 16sa (per curiam). This Court

has previously canvassed the history of such regulation and

has repeatedly recognized Congress’s authority to protect

the integrity of federal elections and prevent corruption of

federal office-holders. See, e.g., FEC v. Beaumont, 123 S.
3

Ct. 2200 (2003); FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (Colorado II); FEC v.

National Right to Work Comm., 459 U.S. 197 (1982)

(NRWC); Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam);

Pipefitters Local Union No. 562 v. United States, 407 U.S.

385 (1972); United States v. Automobile Workers, 352 U.S.

567 (1957) (UAW); United States v. CIO, 335 U.S. 106, 113

(1948). As the district court explained, Supp. App. 15sa-40sa

(per curiam), the development of federal campaign-finance

regulation has followed a pattern of congressional action to

address particular electoral abuses; attempts to circumvent

the limitations established by Congress; and renewed legislative action to respond to the efforts at circumvention and

“plug [an] existing loophole.” UAW, 352 U.S. at 582. After

years of deliberation and debate, Congress enacted BCRA to

adjust the existing statutory scheme in light of “burgeoning

problems with federal campaign finance laws” experienced in

the prior decade. Supp. App. 40sa (per curiam).

2. BCRA amends the Federal Election Campaign Act of

1971 (FECA), 2 U.S.C. 431 et seq. The Federal Election

Commission (FEC) is empowered to administer and enforce

FECA’s provisions. See generally 2 U.S.C. 437c(b)(1),

437d(a), 437g. Two central features of the pre-BCRA statutory regime are of particular significance here. First, federal

law has long prohibited the use of corporate and labor union

general treasury funds for contributions or expenditures in

connection with federal elections, while allowing such contributions or expenditures to be made through separate segregated accounts. 2 U.S.C. 441b. Second, for more than 25

years, FECA has limited the amounts of money that

individuals and unincorporated associations may contribute

to federal candidates, political parties, and independent

political committees. 2 U.S.C. 441a.

a. Prohibited sources of federal campaign spending: The

cornerstone of federal campaign-finance regulation is the
4

longstanding prohibition against the use of corporate general

treasury funds for contributions and expenditures in

connection with federal elections. See 2 U.S.C. 441b; see

generally Beaumont, 123 S. Ct. at 2205-2206 (summarizing

historical development of relevant legislation); see also pp.

74-76, infra. In 1907, Congress first prohibited any corporation from making a “money contribution” in connection with

a federal election. Act of Jan. 26, 1907, ch. 420, 34 Stat. 864-

865. Congress has since extended that ban to cover

“expenditures” as well as “contributions,” and to subject

labor unions as well as corporations to the prohibition on

federal campaign spending. See UAW, 352 U.S. at 582-583.

Corporations and unions are permitted to establish and

administer separate segregated accounts (commonly called

political action committees or “PACs”) for the purpose of

making political contributions and expenditures, using funds

collected from stockholders, members, or certain other personnel and relatives. See 2 U.S.C. 441b(b)(2)(A)-(C); Pipefitters, 407 U.S. at 409-410; Beaumont, 123 S. Ct. at 2203,

2211. Money so acquired can be contributed by the PAC to

federal candidates (subject to FECA’s contribution limits) or

used to pay for independent campaign-related spending. See

Supp. App. 62sa-63sa (per curiam).

This Court has squarely held that Congress and the state

legislatures may prohibit the use of corporate and union

general treasury funds for election-related contributions and

expenditures, and may require instead that corporations and

unions finance their election-related spending with money

contributed specifically for that purpose. In Austin v.

Michigan Chamber of Commerce, 494 U.S. 652 (1990), this

Court considered and rejected a First Amendment challenge

to a Michigan statute, modeled on 2 U.S.C. 441b, that “prohibit[ed] corporations from using corporate treasury funds

for independent expenditures in support of, or in opposition

to, any candidate in elections for state office.” Id. at 654.
5

The Court held that corporations may be barred from using

treasury funds to make independent expenditures for the

purpose of influencing electoral results, at least so long as

they retain the option of establishing separate segregated

accounts to finance such communications. Id. at 657-661.

In Beaumont, this Court reaffirmed the validity of 2

U.S.C. 441b’s prohibition on the use of corporate treasury

funds for federal campaign contributions. 123 S. Ct. at 2205-

2211. The Court observed that any constitutional challenge

to that ban “goes against the current of a century of congressional efforts to curb corporations’ potentially ‘deleterious influences on federal elections.’ ” Id. at 2205 (quoting

UAW, 352 U.S. at 585). The Court explained that the ban on

corporate treasury contributions serves (1) to prevent actual

or apparent corruption of federal office-holders, (2) to protect the interests of individuals who have paid money to a

corporation or union for non-political purposes, and (3) to

prevent circumvention of other contribution limits. Id. at

2206-2207.

b. Amount limitations on federal campaign contributions from permitted sources: FECA was intended to reduce “the actuality and appearance of corruption” resulting

from the “opportunities for abuse inherent in a regime of

large individual financial contributions.” Buckley, 424 U.S.

at 26-27. As amended in 1974, FECA prohibited individuals

from contributing more than $1000 per election to any candidate for federal office, or more than $25,000 per year to all

federal candidates and political committees (including political parties) combined. 18 U.S.C. 608(b)(1) and (3) (Supp. IV

1974). In Buckley, this Court upheld those contribution

limits against a First Amendment challenge. 424 U.S. at 12-

38.
6

The Buckley Court explained that

[t]he Act’s $1,000 contribution limitation focuses precisely on the problem of large campaign contributions—

the narrow aspect of political association where the actuality and potential for corruption have been identified

—while leaving persons free to engage in independent

political expression, to associate actively through volunteering their services, and to assist to a limited but

nonetheless substantial extent in supporting candidates

and committees with financial resources.

424 U.S. at 28. The Court found “no indication” that the

FECA limits would prevent effective electoral advocacy,

explaining that “[t]he overall effect of the Act’s contribution

ceilings is merely to require candidates and political committees to raise funds from a greater number of persons.”

Id. at 21-22. The Court also upheld the $25,000 annual

ceiling on an individual’s aggregate contributions to all

federal candidates and political committees, characterizing it

as a “quite modest restraint upon protected political

activity” that “serves to prevent evasion of ” FECA’s $1000

limit on individual contributions to candidates. Id. at 38.2

In Nixon v. Shrink Missouri Government PAC, 528 U.S.

377 (2000), the Court reaffirmed the holding in Buckley that

reasonable limits on contributions to political candidates do

not violate the First Amendment. The Court observed that

contribution limits reflect “a concern not confined to bribery

 2 At the time Buckley was decided, FECA did not impose a specific

ceiling on an individual’s contributions to a political committee, including a

national or state party committee. Thus, the only practical limitation on

the amount that an individual could contribute to such entities was the

$25,000 annual aggregate limit on an individual’s overall contributions.

Limits on individual contributions to national parties and to other political

committees were added to FECA in 1976. Federal Election Campaign

Act Amendments of 1976, Pub. L. No. 94-283, Tit. I, § 112(2), 90 Stat. 486-

487; see p. 7, infra.
7

of public officials, but extending to the broader threat from

politicians too compliant with the wishes of large contributors.” Id. at 389. In rejecting the contention that the

challenged contribution limits were too low, the Court

framed the applicable test as “whether the contribution

limitation [i]s so radical in effect as to render political

association ineffective, drive the sound of a candidate’s voice

below the level of notice, and render contributions pointless.” Id. at 397.

3. Developments leading to enactment of BCRA: Before

BCRA was enacted, application of FECA’s source-andamount restrictions to a donation received by a national or

state political party committee turned on the uses to which

the relevant funds were put. As amended in 1976 (see note

2, supra), FECA imposed a $20,000 limit on an individual’s

“contributions” to a national political party committee, and a

$5000 limit on individual “contributions” to other political

committees, including state party committees. See 2 U.S.C.

441a(a)(1)(B) and (C) (1976).3

 Those limits remained in effect

until the enactment of BCRA. The term “contribution” was

(and is) defined to mean a gift or similar transfer made “for

the purpose of influencing any election for Federal office.” 2

 3 The term “political party” is defined to mean “an association, committee, or organization which nominates a candidate for election to any

Federal office whose name appears on the election ballot as the candidate

of such association, committee, or organization.” 2 U.S.C. 431(16). FECA

imposes generally applicable limits on the amount that one “political

committee” as defined in the Act may contribute to a federal candidate or

to another “political committee.” See 2 U.S.C. 441a(a)(1) and (2). The Act

provides, however, that “[t]he limitations on contributions contained in

paragraphs (1) and (2) do not apply to transfers between and among political committees which are national, State, district, or local committees

(including any subordinate committee thereof ) of the same political

party.” 2 U.S.C. 441a(a)(4). Party committees remain free under BCRA

to transfer funds amongst themselves without being subject to the limits

that otherwise apply to contributions made by one political committee to

another.
8

U.S.C. 431(8)(A)(i). FECA also prohibited the use of

corporate or union general treasury funds for contributions

in connection with any federal election. 2 U.S.C. 441b; see

pp. 3-5, supra. Party activities intended to influence federal

elections were thus required to be financed with funds,

known as “hard” or “federal” money, that had been raised in

compliance with FECA’s disclosure requirements and

source-and-amount contribution limits.

Political parties were also permitted, however, to raise

additional funds, known as “soft” or “nonfederal” money, and

to spend those funds for activities intended to influence state

or local elections. Because donations used for such purposes

did not fall within the FECA definition of a “contribution,”

they could lawfully be made outside the framework of the

FECA source-and-amount limits. The “soft money” given to

national and state parties included donations of corporate or

labor union general treasury funds, as well as individual

donations in amounts well above the applicable FECA

contribution limits.4

Application of the FECA contribution limits to funds used

for various “party-building” activities (e.g., get-out-the-vote

drives, or generic party advertising), which influence the

outcome of both federal and state elections, proved to be

difficult. “Since early in its history, the Commission has

struggled with the fact that many party functions have an

impact on both federal and non-federal elections.” 63 Fed.

Reg. 37,723 (1998). In a series of advisory opinions, informational letters, and formal rulemakings, the FEC has

 4 Thus, under the pre-BCRA regime, an individual who wished to

donate $100,000 to a national party committee would have been permitted

to contribute up to the $20,000 FECA limit in “hard” or “federal” money

contributions (which could lawfully be used to influence federal elections),

and could have designated an additional $80,000 for deposit in a “soft

money” account (which could not legally be used for federal-election purposes).
9

addressed the use of soft money to fund such activities. See

id. at 37,723-37,724 (summarizing history of FEC regulatory

efforts); Supp. App. 29sa-34sa (per curiam) (same).

The FEC initially appeared to take inconsistent positions

on the question whether party activities having a likely

effect on both federal and state elections could be financed in

part with funds (e.g., corporate donations) raised outside the

framework of FECA’s source-and-amount limits. See Supp.

App. 29sa-30sa (per curiam). Regulations promulgated in

1976 clarified the Commission’s views. Those rules authorized any political committee to establish separate federal and

non-federal accounts, and to allocate its administrative expenses between the accounts. 11 C.F.R. 102.6(a)(2) and

106.1(e) (1977); see Supp. App. 30sa (per curiam). Advisory

opinions issued in 1978 and 1979 allowed state and national

party committees to accept corporate and union treasury

funds for deposit in a non-federal account, and permitted the

parties to allocate the costs of voter registration and getout-the-vote activities between the federal and non-federal

accounts in the same manner as administrative expenses.

Ibid. Thus, “by the middle of 1979, the FEC permitted

national and state party committees to solicit and accept

donations outside of FECA’s source and amount limitations

* * * provided that these monies were placed in separate

accounts from the federal funds.” Id. at 30sa-31sa. From

that time until the enactment of BCRA, moreover, the

FEC’s consistent view was that the costs of activities that

influence both federal and state elections could be allocated

between a party committee’s hard- and soft-money accounts.

In 1990, the FEC promulgated regulations that required

various party expenses to be funded in part with hard

money, and that established formulas to be used in allocating

those expenses. See 55 Fed. Reg. at 26,058 (announcing final
10

rules).5

 Those regulations, which remained substantially

unchanged until the Commission’s promulgation of new rules

to implement BCRA, applied to party committees’ “[a]dministrative expenses” (11 C.F.R. 106.5(a)(2)(i) (2002)) and to

their expenses for, inter alia, “[g]eneric voter drives,” which

included “voter identification, voter registration, and getout-the-vote drives.” 11 C.F.R. 106.5(a)(2)(iv) (2002). National party committees were required to allocate at least

65% of those expenses to federal accounts during presidential election years, and at least 60% in non-presidential

election years. 11 C.F.R. 106.5(b) and (c) (2002). For state

and local parties, the allocation was determined by the proportion of federal offices to all offices on the state’s general

election ballot. See 11 C.F.R. 106.5(d) (2002).

4. The provisions of BCRA: “In the area of campaign

finance regulation, congressional action has been largely

incremental and responsive to the most prevalent abuses or

evasions of existing law at particular points in time.” Supp.

App. 481sa (Kollar-Kotelly); see id. at 15sa-40sa (per curiam)

(reviewing Congress’s incremental approach to campaignfinance regulation); NRWC, 459 U.S. at 209 (discussing

Congress’s “cautious,” “step by step” approach). BCRA is

the product of more than six years of intensive congressional

study and debate. See Supp. App. 40sa-47sa (per curiam).

In crafting the statute, Congress sought principally to

address (1) the potential for corruption of federal office-

 5 In Common Cause v. FEC, 692 F. Supp. 1391, 1394-1396 (D.D.C.

1987), the district court accepted in principle the FEC’s determination

that the costs of party activities affecting both state and federal elections

could be allocated between hard-and soft-money accounts, but held that

the Commission had failed to provide sufficient guidance regarding the

proper method(s) of allocation. See 55 Fed. Reg. at 26,058. The 1990

regulations were intended to “provide committees with significantly more

guidance on how they are to allocate their administrative expenses and

costs for combined federal and non-federal activities.” Id. at 26,059; see

Supp. App. 33sa (per curiam).
11

holders that is created by soft-money donations to political

parties; and (2) the growing use of corporate and union

general treasury funds for communications that are designed

to influence, or are likely to have the effect of influencing,

the outcome of federal candidate elections.

a. In recent years, soft-money donations to political parties have increased dramatically. See Supp. App. 34sa-35sa,

38sa (per curiam) (national parties’ soft-money spending

increased from $80 million in 1992 to $272 million in 1996 and

$498 million in 2000). In addition to funding an allocable

share of administrative and generic party-building expenses,

as specifically contemplated by FEC regulations, soft money

has been used to purchase advertisements that have featured federal candidates but have not expressly advocated a

particular electoral result. See id. at 35sa-36sa. The parties

have paid for such advertisements “with a mix of federal and

nonfederal funds as permitted by FEC allocation rules.” Id.

at 36sa. Under the pre-BCRA regime, national party funds

were often transferred to state parties for use in such

activities because FEC regulations established more favorable allocation formulas (i.e., permitted greater use of soft

money) for state than for national party committees. See

ibid.

6

 In addition, large-scale soft-money donors frequently

sought and were granted special access to federal officeholders, with the attendant potential to influence legislation,

through arrangements brokered by the political parties. See

Supp. App. 567sa-626sa (Kollar-Kotelly); pp. 37-41, infra.

Congress enacted Title I of BCRA to prevent the real or

apparent corruption of federal office-holders that may result

 6 The record evidence in this case indicates, and two members of the

district court panel specifically found, that national party officials characteristically have insisted on retaining control of the content of advertisements that were financed with money transferred from national to

state party committees. See Supp. App. 522sa-523sa, 524sa-525sa (KollarKotelly); id. at 1234sa (Leon).
12

from political parties’ solicitation and receipt of donations

made either (i) from sources (principally corporate and union

general treasury funds) that have historically been barred

from making contributions in connection with federal elections, or (ii) in amounts that exceed the FECA limits on

contributions by other donors. BCRA § 101(a) adds a new

FECA § 323, which consists of several interrelated provisions designed to ensure “that national parties, federal

officeholders and federal candidates use only funds permitted in federal elections to influence federal elections, and

that state parties stop serving as vehicles for channeling soft

money into federal races to help federal candidates.” 147

Cong. Rec. S3251 (daily ed. Apr. 2, 2001) (statement of Sen.

Thompson).7

New FECA § 323(a)(1) provides that “[a] national committee of a political party (including a national congressional

campaign committee of a political party) may not solicit,

receive, or direct to another person a contribution, donation,

or transfer of funds or any other thing of value, or spend any

funds, that are not subject to the limitations, prohibitions,

and reporting requirements of [FECA].”8

 That provision

 7 Although Title I of BCRA restricts the ability of political parties to

obtain donations from prohibited sources or in amounts that exceed the

FECA contribution limits, the limits themselves have been increased by

other BCRA provisions. Individuals are now permitted to contribute up to

$25,000 per year to any national political party committee, $10,000 per

year to any state party committee, and $2000 per election to any federal

candidate. See BCRA §§ 102(3), 307(a)(1) and (2). The overall annual limit

is now $37,500 per election cycle for contributions to candidates and

$57,500 for other contributions (of which not more than $37,500 may be

attributable to contributions to political committees that are not national

party committees). See BCRA § 307(b). Most of the current contribution

limits are indexed for inflation. See BCRA § 307(d); Supp. App. 472sa

(Henderson).

8 Currently operating under the auspices of the two major political

parties are a total of six national committees: the Republican National

Committee, the National Republican Senatorial Committee, the National
13

imposes no limits on how the national party committees may

spend their money. Rather, it is directed solely at the

acquisition of funds: its purpose and effect is to require that

all money solicited and received by national parties will be

treated as “contributions” subject to the longstanding disclosure requirements and source-and-amount restrictions

imposed by FECA.

New FECA § 323(b) addresses the acquisition by state

and local party committees of funds they use to affect federal

elections. New FECA § 323(b)(1) provides as a general rule

that any disbursements made by a state, district, or local

committee of a political party for “Federal election activity”

must “be made from funds subject to the limitations, prohibitions, and reporting requirements of [FECA].” The term

“Federal election activity” is defined to include (i) voter

registration activity within the 120 days before a federal

election; (ii) voter drives and generic campaign activities

“conducted in connection with an election in which a candidate for Federal office appears on the ballot”; (iii) any “public

communication that refers to a clearly identified candidate

for federal office * * * and that promotes or supports a

candidate for that office, or attacks or opposes a candidate

for that office”; and (iv) all services provided by any employee who devotes more than 25% of his compensated time

in any month to activities in connection with federal

elections. See BCRA § 101(b) (adding FECA § 301(20)(A)(i)-

(iv)). New FECA § 323(b)(2)—known as the “Levin

Amendment”—establishes exceptions to that general rule,

authorizing state-level party committees to use soft money

in limited amounts, raised under certain restrictions, to fund

 Republican Congressional Committee, the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic

Congressional Campaign Committee. See Supp. App. 544sa (KollarKotelly); id. at 1186sa (Leon). Of those six committees, only the

Republican National Committee is a party to the instant cases.
14

an allocated portion of the costs of specified activities that

affect both federal and state elections. See Supp. App. 56sa

(per curiam). BCRA imposes no limit on the amount of

money that a state party committee may spend on “Federal

election activity”; it simply requires the party committee to

comply with FECA’s source-and-amount restrictions in

raising funds used for such activities.

New FECA § 323(d) prohibits political party committees

from soliciting any funds for, or making or directing any

donations to, certain organizations described in Sections

501(c) and 527 of the Internal Revenue Code. See Supp.

App. 57sa-58sa (per curiam). New FECA § 323(e)(1) provides that federal candidates and officeholders may solicit

funds in connection with any federal or non-federal election

only if the amount solicited is “not in excess of” the applicable FECA/BCRA contribution limit and the solicitation is

“not from sources prohibited by the Act.” See Supp. App.

58sa (per curiam). Finally, new FECA § 323(f) prohibits any

state or local office-holder, or any candidate for such office,

from spending soft money for a public communication that

promotes or attacks a candidate for federal office. See Supp.

App. 59sa (per curiam).

b. Title II of BCRA addresses the escalating use of union

and corporate treasury funds for broadcast advertising that

is likely to influence the outcome of federal elections, yet

escaped federal regulation under the prior legal regime.

Federal law has long prohibited corporations and labor

unions from spending general treasury funds to influence

federal elections. See 2 U.S.C. 441b; pp. 3-5, supra. This

Court, however, has construed 2 U.S.C. 441b’s restrictions

on corporate and union independent campaign expenditures

to apply only to communications that “expressly advocate”

the election or defeat of an identified federal candidate.

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,
15

248-249 (1986) (MCFL).9

 With respect to persons other than

political committees, the Court has interpreted FECA’s

requirements for disclosure of independent political

expenditures (2 U.S.C. 434(c)) in a similar manner. See note

9, supra. In recent years and with increasing frequency,

corporations and unions have spent hundreds of millions of

dollars in general treasury funds to pay for so-called “issue

advocacy” campaigns, disseminating advertisements that

praise or denounce a candidate for federal office but do not

use terms that explicitly urge his election or defeat. See

Supp. App. 38sa-39sa (per curiam). Because those advertisements do not include words of express advocacy, the corporate or union disbursements used to finance them have entirely escaped regulation under FECA.

Subtitle A of Title II of BCRA reflects Congress’s effort

to identify, through precise and easily administrable standards, an important category of advertisements, “electioneering communications,” that can be expected to influence

federal elections, whether or not they contain “express advocacy.” New FECA § 304(f )(3) (added by BCRA § 201(a))

defines the term “electioneering communication” to mean (i)

a television or radio communication that (ii) “refers to a

clearly identified candidate for Federal office”; (iii) is made

within the 60 days before the federal general election, or the

30 days before the federal primary election, in which the

identified candidate is running; and (iv) is “targeted to the

relevant electorate” (meaning that it can be received by at

least 50,000 persons in the State or district where the

 9 The Court in MCFL based that holding on Buckley’s similar construction of other FECA provisions pertaining to independent campaign

expenditures. See 479 U.S. at 248-249; p. 79, infra. Neither the validity

nor the proper construction of 2 U.S.C. 441b was at issue in Buckley.
16

election is to be held). See Supp. App. 59sa-60sa (per

curiam).10

BCRA § 203(a) amends FECA § 316(b)(2) (2 U.S.C.

441b(b)(2)) to provide that corporate and labor union general

treasury funds, whose use for express advocacy has long

been forbidden, likewise may not be used to finance “electioneering communications” as defined in BCRA. See Supp.

App. 61sa (per curiam). “The prohibition on electioneering

communications only applies to the general treasury funds of

national banks, corporations, and labor unions, or any other

person using funds donated by these entities.” Id. at 62sa.

Because BCRA does not alter the pre-existing FECA provisions that allow corporations and labor unions to use funds

from separate segregated accounts (or PACs) for the purpose of influencing federal elections, such funds may lawfully

be used to sponsor electioneering communications. See 2

U.S.C. 441b(b)(2)(C) and (4); Supp. App. 62sa (per curiam).

New FECA § 304(f)(1)-(2) (added by BCRA § 201(a))

requires that any person who spends more than $10,000 on

electioneering communications in a calendar year must file

statements with the FEC that identify, inter alia, the persons making the disbursements, those to whom the disbursements were made, and the persons who contributed $1000 or

more to the persons making the disbursement. New FECA

§ 304(f )(5) provides that “[f]or purposes of this subsection, a

 10 BCRA also includes a backup definition of the term “electioneering

communication,” to be used in the event that the primary definition is held

to be unconstitutional. Under the backup definition, “the term ‘electioneering communication’ means any broadcast, cable, or satellite communication which promotes or supports a candidate for [federal] office, or

attacks or opposes a candidate for that office (regardless of whether the

communication expressly advocates a vote for or against a candidate) and

which also is suggestive of no plausible meaning other than an exhortation

to vote for or against a specific candidate.” BCRA § 201(a) (adding FECA

§ 304(f )(3)(A)(ii)); see Supp. App. 61sa (per curiam); compare 11 C.F.R.

100.22(b).
17

person shall be treated as having made a disbursement if the

person has executed a contract to make the disbursement.”

BCRA also includes provisions updating FECA’s regulation of coordinated expenditures. BCRA § 202 amends

FECA § 315(a)(7) to provide that any disbursement for an

electioneering communication that is coordinated with a

candidate or political party shall be treated as a contribution

to the candidate or party. BCRA § 214(a) states that

“expenditures” made in coordination with political party

committees will be treated as contributions to the party.

BCRA §§ 202 and 214(a) parallel pre-existing FECA provisions under which campaign spending in coordination with

a candidate is treated as a contribution to the candidate. See

2 U.S.C. 441a(a)(7)(B)(i); see also Buckley, 424 U.S. at 46

(noting that “controlled or coordinated expenditures are

treated as contributions rather than expenditures under the

Act”); Supp. App. 70sa (per curiam); id. at 385sa-386sa

(Henderson). BCRA § 214(b) repeals FEC regulations

promulgated in December 2000 that address coordinated

communications financed by persons other than candidates

or parties, and BCRA § 214(c) directs the FEC to promulgate new rules on the subject that “shall not require agreement or formal collaboration to establish coordination.”

c. Title II of BCRA also addresses campaign expenditures made by political parties in support of their candidates.

Although expenditures coordinated with federal candidates

are subject as a general rule to FECA’s contribution limits,

FECA allows political party committees to make coordinated expenditures in amounts much greater than the limits

that apply to other donors. Thus, while other multi-candidate political committees can contribute no more than $5000

per election to a candidate, see 2 U.S.C. 441a(a)(2)(A), party

committees are permitted to make contributions in the form

of coordinated expenditures that far exceed that amount, see

2 U.S.C. 441a(d); Colorado II, 533 U.S. at 455; Colorado
18

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604,

610-611 (1996) (opinion of Breyer, J.) (Colorado I).11 Under

this Court’s decision in Colorado I, political party

committees also have a First Amendment right to make

unlimited independent expenditures to support the party’s

candidates. See id. at 608, 618 (opinion of Breyer, J.); id. at

629-631 (opinion of Kennedy, J.); id. at 648 (opinion of

Thomas, J.).

BCRA § 213 alters the range of spending options available

to a party committee, while preserving the party’s statutory

prerogative of making coordinated expenditures well in

excess of the contribution limits that apply to other donors.

After a party has nominated a candidate for a particular

federal election, Section 213 requires the party either (1) to

forgo independent expenditures in support of that candidate,

while remaining free to invoke the increased coordinated-

 11 The national committee of a political party may make coordinated

expenditures of up to 2 cents multiplied by the voting age population of

the United States in support of a Presidential candidate. See 2 U.S.C.

441a(d)(2); 11 C.F.R. 109.32(a). The national committee and a state party

committee may each make coordinated expenditures of up to the greater

of $20,000 or 2 cents multiplied by the voting age population of a State in

support of the State’s candidate for Senator, and up to $10,000 in support

of a candidate for Representative. See 2 U.S.C. 441a(d)(3); 11 C.F.R.

109.32(b). National and state party committees are permitted to assign

their authority to make coordinated expenditures to another political

party committee. 11 C.F.R. 109.33(a); FEC v. Democratic Senatorial

Campaign Comm., 454 U.S. 27 (1981) (DSCC). The statutory limits are

adjusted each year for inflation. 2 U.S.C. 441a(c); 11 C.F.R. 109.32(b)(3).

In the year 2000, the limits on those additional coordinated expenditures

ranged from $33,780 to $67,560 for House of Representatives races, and

from $67,560 to $1.6 million for Senate races. See Colorado II, 533 U.S. at

439 n.3. The FEC interprets 2 U.S.C. 441a to permit national and state

political parties to make direct contributions to a candidate of up to $5000

(the limit applicable to contributions by political committees generally

under 2 U.S.C. 441a(a)) in addition to the coordinated expenditures

authorized by 2 U.S.C. 441a(d). See, e.g., 11 C.F.R. 109.32(a)(3) and (b)(4);

Colorado II, 533 U.S. at 455 n.16.
19

expenditure limits applicable to political parties under 2

U.S.C. 441a(d); or (2) to abide by the $5000 limit on contributions and coordinated expenditures applicable to all other

multicandidate political committees, while retaining the

right to make unlimited independent expenditures in support of that candidate. For purposes of Section 213, all

national and state committees of a particular political party

“shall be considered to be a single political committee.”

BCRA § 213(2) (adding FECA § 315(d)(4)(B)).

d. BCRA §§ 304 and 319 are known collectively as the

“millionaire provisions.” Those provisions allow a congressional candidate to accept contributions in excess of the generally applicable FECA limits under specified circumstances

when his opponent expends substantial personal funds on

the opponent’s own campaign. See BCRA § 304(a)(2) (Senate); BCRA § 319(a) (House of Representatives); Supp. App.

211sa-212sa, 475sa-476sa (Henderson).

e. BCRA § 311 imposes additional requirements concerning the identification of sponsors of election-related advertisements, and makes the sponsorship-identification requirements applicable to “electioneering communications” as

defined in BCRA § 201. See Supp. App. 157sa-158sa (per

curiam).

f. BCRA § 318 prohibits individuals who are less than 18

years old from making contributions to federal candidates or

to political party committees. See Supp. App. 74sa-75sa (per

curiam).

g. BCRA §§ 305 and 504 amend Section 315 of the

Communications Act of 1934, 47 U.S.C. 315. The Communications Act requires stations to sell broadcast time to a candidate at the “lowest unit charge” during the 45-day period

before a federal primary election or the 60-day period before

a federal general election. 47 U.S.C. 315(b)(1). Under

BCRA § 305, a candidate is entitled to the “lowest unit

charge” only if he satisfies one of two requirements. First,
20

the candidate may certify in writing that neither he nor any

authorized committee will make any “direct reference to

another candidate for the same office” during the broadcast

advertisement. BCRA § 305(a)(3) (adding 47 U.S.C.

315(b)(2)(A)). Alternatively, the candidate can retain his

entitlement to the lowest unit charge without making such a

promise if he identifies himself in a specified manner at the

end of the advertisement and states that he approves of the

broadcast. BCRA § 305(a)(3) (adding 47 U.S.C. 315(b)(2)(C)

and (D)); see Supp. App. 73sa (per curiam).

BCRA § 504 requires a broadcast station to maintain and

make publicly available a complete record of requests to purchase broadcast time “made by or on behalf of a legally

qualified candidate for public office” or to broadcast a “message relating to any political matter of national importance,”

including “a legally qualified candidate,” “any election to

Federal office,” or “a national legislative issue of public

importance.” BCRA § 504 (adding 47 U.S.C. 315(e)(1)). The

record created by the licensee must include “the name of the

person purchasing the time, the name, address, and phone

number of a contact person for such person, and a list of the

chief executive officers or members of the executive committee or of the board of directors of such person.” BCRA

§ 504 (adding 47 U.S.C. 315(e)(2)).

h. BCRA § 401 is a severability provision stating that the

invalidation of any BCRA provision, or of any application of

the statute, shall not affect the validity of the remainder of

the Act. BCRA § 403(a) provides that suits challenging the

constitutionality of the Act will be heard by a three-judge

district court in the District of Columbia, and that the final

decision in any such suit will be reviewable by appeal to this

Court. BCRA § 403(b) authorizes any Member of Congress

to intervene in any suit in which the constitutionality of the

Act is called into question, and BCRA § 403(c) authorizes
21

Members of Congress to file suit to challenge the constitutionality of the Act.

5. Pursuant to BCRA § 403(a), a variety of individuals,

party committees, interest groups, and others filed 11 separate lawsuits, alleging that BCRA on its face violates the

First, Fifth, and Tenth Amendments to the Constitution.

The FEC, the individual FEC Commissioners, the Federal

Communications Commission (FCC), the Department of Justice, and the Attorney General were named as defendants.

The United States intervened as a defendant to defend the

constitutionality of BCRA. The principal sponsors of BCRA

also were granted leave to intervene as defendants pursuant

to BCRA § 403(b). After expedited discovery and briefing,

the three-judge district court upheld some provisions of the

statute; invalidated other BCRA provisions and enjoined

their enforcement and application; and found that some of

the constitutional challenges were not justiciable in these

suits. See Supp. App. 4sa-15sa (per curiam) (summarizing

the district court’s disposition of the various constitutional

challenges); 02-1676 J.S. 16-20 (same).

SUMMARY OF ARGUMENT

A. Title I and Section 213 of BCRA are constitutional.

1. Both in campaign-finance legislation and in a broad

range of other laws, Congress has limited the flow of money

to federal officers in order to safeguard the integrity of

government operations. Because federal elected officeholders are inextricably linked to their political parties,

Congress reasonably concluded that large donations to party

committees pose a threat of corruption similar to that

created by large donations to candidates.

2. Title I’s effort to close the soft-money loophole by subjecting all donations to national parties to source-andamount limitations is consistent with the First Amendment.

Limits on contributions are subject to relatively relaxed
22

constitutional scrutiny. Congress’s concern that such donations could result in actual or apparent corruption of officeholders is reasonable on its face. It is also supported by

abundant record evidence that describes a systemic exchange of large soft-money donations for access to federal

office-holders, through arrangements brokered by the

parties. In light of the national parties’ demonstrated ability

to raise large sums of hard money, there is no meaningful

danger that the soft-money ban will prevent effective

advocacy.

3. Congress validly required that state party committees

comply with applicable federal limits when the state parties

finance “Federal election activity” as defined in BCRA.

Because each category of “Federal election activity” involves

conduct that by its nature will affect federal elections, large

donations used for such activities substantially assist federal

candidates and thus directly implicate the federal government’s interest in preventing actual or apparent corruption.

The fact that such activities will often affect state elections

as well does not diminish the federal interest involved. The

financing of such activities has long been subject to federal

regulation; BCRA simply (and validly) requires that all

(rather than an allocable portion) of their costs be paid with

hard money.

4. Title I’s solicitation restrictions validly serve to prevent party committees and federal office-holders and candidates from using surrogate recipients as a means to

circumvent other FECA/BCRA contribution limits. Both in

the campaign-finance context and elsewhere, restrictions on

an entity’s freedom to solicit payments to a third party are

frequently used to prevent circumvention of limits on that

entity’s ability to receive such payments directly.

5. Title I validly prohibits state candidates from spending soft money for a communication that “promotes” or

“attacks” a clearly identified federal candidate. That ban
23

helps to prevent circumvention of the FECA/BCRA contribution limits, and it does not impose any onerous burden

on state candidates and office-holders.

6. BCRA § 213 validly requires political parties, with

respect to each nominated federal candidate, to forgo either

independent expenditures in support of that candidate or the

increased coordinated expenditures that parties alone are

allowed to make. Congress might constitutionally have compelled the parties to utilize the second alternative, thereby

subjecting them to the same legal regime that applies to all

other political committees. Congress’s decision to give

political parties an additional option creates no constitutional

infirmity.

B. The electioneering-communications provisions of Title

II of BCRA are constitutional.

1. This Court has repeatedly affirmed Congress’s judgment that the unique legal and economic attributes of

corporations and labor unions warrant regulation of political

spending by corporations and unions that would not be

permitted as to individuals or unincorporated groups.

Because corporations and unions may amass wealth that

does not necessarily reflect the popularity of their political

views, federal law (2 U.S.C. 441b) has long prohibited them

from using general treasury funds to make contributions or

independent expenditures in connection with federal elections, and instead requires them to engage in such political

activity through a separate segregated fund.

Section 441b’s general prohibition on the direct funding of

corporate and union political activity is of well-established

constitutional validity and has been interpreted by this

Court to apply to the financing of advertisements that contain express advocacy—e.g., “Vote for Smith.” Title II of

BCRA adjusts that longstanding prohibition to apply it to

the corporate or union funding of candidate-centered advertisements—defined as “electioneering communications”
24

(BCRA § 201)—which have escaped regulation because they

avoid express advocacy, but nonetheless clearly identify

candidates and in all likelihood have the same influence on

federal candidate elections as advertisements containing

express advocacy. In the past eight years, corporations and

unions have poured hundreds of millions of dollars in general

treasury funds into federal candidate elections in the form of

such “electioneering communications.”

2. Title II’s source-of-funding limitation on “electioneering communications” is narrowly tailored to serve several

compelling government interests. BCRA’s primary definition of “electioneering communications” is not only clear and

objective, but is supported by empirical evidence showing

that advertisements that clearly identify federal candidates

and are broadcast shortly before an election to the candidate’s own electorate are highly likely to influence electoral outcomes. The objective factors identified by Congress

in BCRA § 201 will pose little or no obstacle to entities that

are interested in financing “genuine” issue advertisements,

but are carefully calibrated to capture so-called “sham” issue

advertisements. Preventing the influx of general treasury

funds to finance electioneering communications directly advances compelling government interests in eliminating real

and apparent corruption in connection with federal elections,

as well as in preventing circumvention of the longstanding

federal policy embodied in 2 U.S.C. 441b.

3. Neither plaintiffs nor the district court has identified

any reason to invalidate Title II’s electioneering-communications provisions. In particular, plaintiffs’ reliance on the

overbreadth doctrine is fundamentally misplaced. The conclusion that Title II meets the narrow-tailoring requirement

of strict scrutiny forecloses any finding that the statute is

unconstitutionally overbroad. Moreover, because Title II of

BCRA does not ban any speech whatsoever, but instead

merely places a restriction on the manner in which corpora-
25

tions or unions may finance certain speech, the Act does not

create the sort of “chill” that this Court has held sufficient to

call for the extraordinary step of invalidating a statute on its

face. In any event, plaintiffs’ attempt to manufacture

overbreadth from a few anecdotal examples that they have

culled from the massive record in this case does not begin to

establish the sort of substantial overbreadth required by

this Court’s precedents. To the contrary, the best examples

plaintiffs themselves could find only confirm the wisdom of

the objective factors identified in BCRA § 201.

4. Title II’s disclosure requirements with respect to

electioneering communications are valid. This Court has

upheld FECA’s disclosure requirements concerning campaign expenditures, recognizing that such provisions prevent

real or apparent corruption by exposing significant campaign

spending to the light of day and assist the electorate in

making predictions about candidates’ future performance in

office. The disclosure provisions of Title II simply update

the similar requirements under FECA that have long

applied to the funding of express advocacy.

5. The district court correctly dismissed plaintiffs’ challenges to BCRA § 214(a)-(c). BCRA § 214(a) validly applies

the same standard that has long governed spending coordinated with federal candidates to spending undertaken in

cooperation with political parties. BCRA § 214(b) and (c)

imposes no substantive obligation on plaintiffs, but simply

directs the FEC to promulgate regulations that are themselves subject to judicial review. In and of itself, BCRA

§ 214(b) and (c) causes plaintiffs no injury, and it therefore is

not subject to challenge in this lawsuit.

C. Plaintiffs’ challenges to Titles III and V of BCRA

should be rejected.

1. Plaintiffs lack standing to challenge BCRA §§ 304, 307,

and 319, which increase the applicable limits on individual
26

contributions to federal candidates. Plaintiffs themselves

are entitled to give and receive contributions in the increased amounts. The competitive injury they claim is much

too speculative to support standing and is not fairly traceable to BCRA or to any action of the defendants. In any

event, plaintiffs’ equal protection claim lacks merit: Congress

was under no constitutional obligation to enact contribution

limits at all, and it has broad latitude to define and adjust the

applicable ceilings.

2. Plaintiffs also lack standing to challenge BCRA § 305,

which establishes specific sponsorship-identification requirements for broadcast advertisements that directly refer to an

opposing candidate, if the sponsoring candidate asserts his

statutory entitlement to the “lowest unit charge” for broadcast time. Because the “lowest unit charge” is available only

during specific periods immediately preceding an election,

and Senator McConnell’s current term does not expire until

the year 2008, BCRA § 305 has no actual or imminent impact

on any plaintiff’s communicative activities. In any event,

BCRA § 305 is constitutional. The FCC has long required

that the sponsor of every broadcast advertisement be identified in the advertisement itself. BCRA § 305 simply provides for identification of the relevant sponsor in an

especially clear and unmistakable manner.

3. BCRA § 504, which requires broadcast stations to

maintain and keep publicly available records of requests to

purchase broadcast time for certain categories of political

advertising, is constitutional. BCRA § 504 largely codifies

longstanding and unchallenged regulatory requirements

imposed by the FCC.

4. BCRA § 318’s prohibition on contributions by minors

to federal candidates and political parties is a constitutionally valid means of preventing circumvention of the

FECA/BCRA contribution limits by adults who might otherwise use minors as surrogate contributors.
27

ARGUMENT

Contrary to plaintiffs’ characterizations, BCRA represents a refinement of pre-existing campaign-finance rules. It

is an effort to prevent circumvention of the established

statutory scheme, rather than a repudiation of the prior legal

regime. In particular, BCRA brings two of the most notorious efforts to circumvent pre-existing law—unregulated

soft-money donations to political parties and unregulated

election-related advertisements paid for out of corporate and

union treasuries—within the regulatory regime and makes

related adjustments to the law’s disclosure requirements and

source-and-amount limitations. Congress has the undoubted

power and responsibility to safeguard the integrity of federal elections and to prevent actual or apparent corruption of

federal office-holders. Its past efforts to achieve those

objectives include a variety of restrictions, previously upheld

by this Court, on the financing of federal electoral campaigns. As with other anti-corruption and conflict-ofinterest rules whose validity is unquestioned here, Congress

in enacting prior campaign-finance laws has sought to prevent monied—and especially corporate—interests from exercising undue influence on the judgment of federal officeholders and on the outcome of federal elections.

As central participants in the federal campaign system,

Members of Congress are particularly well-positioned to

assess both the inadequacies of existing campaign-finance

legislation and the likely efficacy and practicality of

alternative proposed solutions. In drafting and enacting

BCRA, Congress remained faithful to the core principles

that have underlain prior campaign-finance laws, while

adapting the statutory regime in light of newly emerging

threats to the integrity of federal elections and officeholders. That “careful legislative adjustment of the federal

electoral laws, in a cautious advance, step by step, * * *
28

warrants considerable deference” from this Court. NRWC,

459 U.S. at 209 (internal quotation marks omitted). And the

adjustments challenged in these cases comport with the

principles established by this Court’s campaign-finance jurisprudence. The challenged provisions of BCRA should be

sustained.

1. TITLE I AND SECTION 213 OF BCRA ARE CONSTITUTIONAL

A. The Restrictions On Political Party Fundraising

Imposed By Title I Are Consistent With Other AntiCorruption And Conflict-Of-Interest Provisions Designed To Protect The Integrity Of Federal OfficeHolders And Employees

1. “The governmental interest in preventing both actual

corruption and the appearance of corruption of elected

representatives has long been recognized.” NRWC, 459 U.S.

at 210. As the Court held in Buckley, see 424 U.S. at 26-29,

limits on contributions to candidates for elective office are a

constitutionally permissible means of pursuing that objective. To address “the broader threat from politicians too

compliant with the wishes of large contributors,” Shrink

Missouri, 528 U.S. at 389, Congress may prohibit donors

from transmitting, and candidates from accepting, infusions

of money above a statutory threshold.

Limits on campaign contributions, however, are simply

one means by which Congress has addressed the danger that

federal officers, in performing their governmental duties,

might be tempted to favor their financial benefactors or

otherwise to advance their own pecuniary interests at the

expense of the public good. Federal law also contains “an

intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other selfenriching actions by public officials.” United States v. SunDiamond Growers, 526 U.S. 398, 409 (1999). Thus, a federal
29

official is subject to criminal penalties if he solicits or accepts

a bribe or illegal gratuity, see 18 U.S.C. 201(b) and (c), SunDiamond, 526 U.S. at 404; participates in his official capacity

in a matter in which he has a personal financial interest, see

18 U.S.C. 208, United States v. Mississippi Valley Co., 364

U.S. 520, 548-549 (1961) (discussing predecessor statute); or

receives a supplementation of salary from any source outside

the United States government, see 18 U.S.C. 209, Crandon

v. United States, 494 U.S. 152, 158-166 (1990). Officers and

employees within all three Branches of government are

barred, subject to limited exceptions, from soliciting or accepting anything of value from any person “whose interests

may be substantially affected by the performance or nonperformance of the individual’s official duties.” 5 U.S.C.

7353(a)(2). Executive Branch employees are further barred,

again subject to limited exceptions, from soliciting or accepting any gift “[g]iven because of the employee’s official

position.” 5 C.F.R. 2635.202(a)(2).

As the Court explained in Crandon, such restrictions

serve to prevent actual and apparent corruption of the

federal work force and to ensure that federal officers and

employees bear undivided loyalty to their public employer:

First, the outside payor has a hold on the employee

deriving from his ability to cut off one of the employee’s

economic lifelines. Second, the employee may tend to

favor his outside payor even though no direct pressure is

put on him to do so. And, third, because of these real

risks, the arrangement has a generally unwholesome

appearance that breeds suspicion and bitterness among

fellow employees and other observers.

Crandon, 494 U.S. at 165. The anti-corruption rationale for

limits on contributions to candidates for public office,

accepted by this Court in Buckley and its progeny, thus

closely resembles the long-accepted bases for more sweeping
30

restrictions on the receipt by public officials of payments and

gifts from persons outside the government. See Shrink

Missouri, 528 U.S. at 390.

Thus, while the Federal Elections Clause (U.S. Const.

Art. I, § 4, Cl. 1) provides a fully sufficient constitutional

basis for the statutory provisions at issue in this case, cf.

Buckley, 424 U.S. at 13, it is not the only source of Congress’s power to act in this sphere. Congress possesses in

addition a more general power to superintend and protect

the integrity of the federal work force. As Justice Black

explained, “inherent in the very concept of a supreme

national government with national officers is a residual

power in Congress to insure that those officers represent

their national constituency as responsively as possible. This

power arises from the nature of our constitutional system of

government and from the Necessary and Proper Clause.”

Oregon v. Mitchell, 400 U.S. 112, 124 n.7 (1970) (opinion of

Black, J.). Congress has undoubted authority, for example, to

prohibit the payment of bribes even to unelected federal

officers and employees.

The extensive network of laws described above also

makes clear that the FECA/BCRA limits on federal campaign contributions do not represent an exception to some

general rule that persons outside the government are free to

use transfers of money to express approval of official conduct

or to associate with public officers. No one (to our knowledge) contends that 18 U.S.C. 201(c)(1)(A), which prohibits

the transfer of anything of value to a federal official “for or

because of any official act,” unconstitutionally impairs the

expressive or associational rights of either the donor or the

donee. Outside the context of electoral campaign contributions, it is uncontroversial that persons who wish to

register their approval of official actions must employ modes

of expression other than the transfer of money to federal

personnel. The existing FECA/BCRA regime thus is not a
31

unique constraint on the use of money in support of political

objectives, but instead represents a pragmatic effort to

achieve the same objectives that underlie federal anti-corruption and conflict-of-interest laws, while allowing federal

candidates to obtain the funds needed to wage vigorous

electoral campaigns.

Although FECA restricts the amounts that an individual

or association may contribute to a candidate for federal

office, the applicable contribution limits far exceed the (essentially de minimis) value of the gifts that federal officials

are otherwise permitted to receive. Compare, e.g., BCRA

§ 307(a)(1) (individual may contribute up to $2000 per election to federal candidate’s campaign) with Senate Rule

35.1(a)(2) and (c)(4), S. Doc. 107-1, at 58-59 (2002) (Senator

may not accept gifts from a single source worth $100 or more

during a calendar year if gifts are given because of the

Senator’s official position). With respect to candidates,

therefore, there is no “soft money”—all contributions are

subject to FECA’s source-and-amount restrictions. Moreover, in order to reduce the corruptive potential of campaign

contributions, federal law prohibits the diversion of such

funds to the candidate’s personal use. See BCRA § 301

(amending FECA § 313(b)(1)). By allowing donors to give

money specifically earmarked for campaign-related purposes, in amounts that are limited but that may substantially

exceed the value of gifts that could permissibly be made on

account of the individual’s official status, Congress has

sought to minimize the risk of actual or apparent corruption

while ensuring that candidates for elective office are able to

“amass the resources necessary for effective advocacy.”

Shrink Missouri, 528 U.S. at 397 (brackets and internal

quotation marks omitted) (quoting Buckley, 424 U.S. at 21).

2. Federal limits on contributions to political party committees reflect a similar balancing of interests. Just as an

elected official might be tempted to favor the interests of
32

persons who have given (or might be expected to give) large

sums to his own campaign, he might also be tempted to favor

the interests of donors who have made substantial contributions to his political party, especially when direct contributions to candidates are capped.12 In part that is true because

party committees frequently seek to influence particular

federal elections, and the parties’ spending decisions are

often responsive to the wishes of large-scale donors. As this

Court recognized in Colorado II, parties frequently “act as

agents for spending on behalf of those who seek to produce

obligated officeholders,” 533 U.S. at 452, when “[d]onors give

to the party with the tacit understanding that the favored

candidate will benefit,” id. at 458. When a federal officeholder has cause to believe that a contribution to the party

has been or will be used for spending that directly furthers

his own electoral prospects, he is particularly likely to

regard it as functionally comparable to a contribution to his

own campaign.

 12 Contrary to the McConnell plaintiffs’ contention (Br. 23), the validity

of the challenged BCRA provisions does not depend on the premise that a

donation to a party committee “is just as corrupting of a candidate as a

contribution directly to the candidate.” BCRA clearly does not equate the

two types of donations, since it allows contributions to national and state

party committees in amounts much larger than the applicable limits on

contributions to candidates. Compare BCRA §§ 102(3), 307(a)(2) (annual

limit of $10,000 on contributions to state party committee and $25,000 on

contributions to national party committee) with BCRA § 307(a)(1) (limit of

$2000 per election on contributions to federal candidate). BCRA does

reflect a congressional judgment that donations to parties in amounts

above the statutory thresholds may ultimately skew the judgment of federal office-holders in essentially the same way as exorbitant contributions

to candidates. Once the validity of some cap on donations to party

committees is accepted, Congress has considerable latitude to determine

appropriate dollar limits, see Buckley, 424 U.S. at 30, at least so long as

the limits do not deprive the parties of the resources needed for effective

advocacy, see Shrink Missouri, 528 U.S. at 397; p. 44, infra.
33

Even when that sort of direct and specific benefit is

absent, however, a Member of Congress can be expected to

feel a natural temptation to favor those persons who have

helped the “team,” especially when those persons have also

made contributions to the individual “team member” up to

the legal limits. A variety of factors contribute to the close

identification between candidate and party. A candidate for

federal office typically runs on a party ticket and is customarily identified by party affiliation. Indeed, under

FECA, the distinguishing feature of a “political party” is

that it “nominates a candidate for election to any Federal

office whose name appears on the election ballot as the candidate of such association, committee, or organization.” 2

U.S.C. 431(16).

The close connection between the party and its member

legislators extends beyond the electoral process. “Once

elected to legislative office, public officials enter an environment in which political parties-in-government control the

resources crucial to subsequent electoral success and legislative power.” J.A. 1196 (D. Green Rep.). Each House of

Congress is organized along party lines, and an individual

Member’s stature and responsibilities will vary dramatically

depending on whether his party is in the majority or in the

minority. See, e.g., J.A. 1196-1197 (“Power within each committee and subcommittee [of Congress] is distributed according to political party, with the majority party enjoying special procedural prerogatives and staffing resources.”). Party

officials both inside and outside Congress will naturally seek

to cultivate an attitude that each party member has an

important stake in the success of the larger organization. A

Member’s prospects of obtaining reelection may be significantly affected by the willingness of party leaders to offer

their support, as well as by public perceptions of the party

with which the Member is associated. See J.A. 1198; J.A.

1298 (Krasno/Sorauf Rep.). It was thus wholly reasonable
34

for Congress to conclude that a Member of Congress is likely

to look favorably upon his party’s large-scale benefactors,

and that substantial contributions to the party will therefore

create risks of “undue influence on an officeholder’s judgment, and the appearance of such influence,” Colorado II,

533 U.S. at 441, similar to those posed by a sizeable contribution to the candidate himself.13

B. The Provisions Of Title I And Section 213 Of BCRA

Are Consistent With The First Amendment

1. The ban on receipt of soft money by national party

committees complies with the First Amendment: New

FECA § 323(a)(1) (added by BCRA § 101(a)) prohibits any

national committee of a political party from receiving funds

that are not subject to the FECA contribution limits. The

effect of that provision is to close loopholes in the regulation

of donations to political parties by barring national party

committees from receiving any donations whatever of

corporate and union general treasury funds, and by limiting

individual donations to the national committees to an annual

maximum of $25,000 (see note 7, supra). Those restrictions

 13 Other federal anti-corruption and conflict-of-interest laws operate on

the premise that payments made to a surrogate may have the same corruptive effect as payments made directly to a federal official. Thus, 18

U.S.C. 201, which proscribes the payment and receipt of bribes and illegal

gratuities, encompasses payments made to a third party designated by the

relevant federal official, so long as the requisite connection between the

payment and official action is present. See 18 U.S.C. 201(b)(1)-(4). Federal ethics regulations likewise provide that the “gift[s]” subject to the regulatory restrictions include gifts “[g]iven to any other person, including

any charitable organization, on the basis of designation, recommendation,

or other specification by the employee.” 5 C.F.R. 2635.203(f )(2). Senate

Rule 35.1(b)(2)(A) is to the same effect. The evident premise of all those

prohibitions is that a federal officer or employee will feel a natural affinity

of interests with an organization with which he is closely affiliated,

whether or not he has a personal financial stake in the organization’s

success.
35

easily satisfy the relatively relaxed standard of review

applicable to contribution limits.

a. New FECA § 323(a)(1) places no restrictions either on

the total amount of money that a national committee may

spend, or on the uses to which lawfully-acquired funds may

be put. It functions solely as a source-and-amount limit

analogous to (though much larger than) the limits that

FECA imposes on contributions to federal candidates and to

non-party political committees. Since this Court’s decision in

Buckley, “restrictions on political contributions have been

treated as merely ‘marginal’ speech restrictions subject to

relatively complaisant review under the First Amendment,

because contributions lie closer to the edges than to the core

of political expression.” Beaumont, 123 S. Ct. at 2210.

In Buckley itself, this Court upheld FECA’s $25,000

annual limit on an individual’s aggregate contributions to all

federal candidates and political committees, including national parties, characterizing that provision as a “quite

modest restraint upon protected political activity” and as “no

more than a corollary of the basic individual contribution

limitation.” 424 U.S. at 38. The Court did not suggest that

limits on contributions to parties or other political committees are subject to more searching review than limits on

contributions to candidates. As the Court in Beaumont explained, contribution limits are subject to a relaxed standard

of review because, “[w]hile contributions may result in

political expression if spent by a candidate or an association,

the transformation of contributions into political debate

involves speech by someone other than the contributor.” 123

S. Ct. at 2210 (ellipsis omitted) (quoting Buckley, 424 U.S. at

21). That observation is as applicable to contributions to

party committees as to contributions to candidates—indeed,

the Court’s reference to “contributions * * * spent by a

candidate or an association” (ibid.) unambiguously encompasses both categories of contributions.
36

Similarly, the Court in Buckley, in distinguishing between

contribution and expenditure limits for purposes of First

Amendment analysis, referred repeatedly to limits on contributions to candidates or political associations. See 424 U.S.

at 20-22. And unlike the expenditure caps struck down in

Buckley, see id. at 39-58—which limited the total amounts

that candidates and others could spend on electoral activity,

without regard to the size of the increments in which the

relevant funds were raised—the effect of the national party

soft-money ban “is merely to require [national party committees] to raise funds from a greater number of persons.”

Id. at 22. There is consequently no basis for plaintiffs’ suggestions that new FECA § 323(a)(1)’s ban on soft-money

donations to national party committees is subject to strict

scrutiny.

b. The closing of the soft-money loophole is reasonably

designed to prevent actual and apparent corruption of federal office-holders and is therefore consistent with the First

Amendment. “The quantum of empirical evidence needed to

satisfy heightened judicial scrutiny of legislative judgments

will vary up or down with the novelty and plausibility of the

justification raised.” Shrink Missouri, 528 U.S. at 391. The

premise on which new FECA § 323(a)(1)’s soft-money prohibition is based—i.e., that a federal office-holder may be

tempted to favor the interests of those who have donated

large sums of money to an organization of which the officeholder is an integral part, and that will have a significant

impact on his efforts to win reelection—is “neither novel nor

implausible.” Ibid. In upholding FECA’s $25,000 annual

ceiling on an individual’s aggregate contributions, the

Buckley Court observed that, absent such a limit, a donor

could circumvent the $1000 cap on contributions to a federal

candidate by making “huge contributions to the candidate’s

political party.” 424 U.S. at 38. And, in light of the close

connections between federal office-holders and the parties
37

with which they are affiliated, and the degree to which the

candidate’s fortunes are intertwined with those of the larger

party organization, the concern that some federal officeholders may be unduly protective of the interests of their

parties’ large-scale donors is an entirely plausible one. See

pp. 31-34, supra.

Presumably for these reasons, plaintiffs do not take issue

with the basic pre-existing $20,000 limit on contributions to

national parties (increased to $25,000 by BCRA § 307(a)(2)),

but only challenge its extension to all donations made to

national parties, regardless of their ostensible purpose. The

premise of the underlying contribution limit, however, is

that large contributions to the parties may ultimately influence the official conduct of party members within the

government. Once the validity of that premise is conceded,

Congress is entitled to considerable deference in deciding

whether donations ostensibly made for non-federal purposes

should be exempted from the limits, or whether those donations also create an unacceptable risk of actual or apparent

corruption of office-holders.

c. The reasonableness of Congress’s judgment regarding

the potential corruptive effects of soft-money donations to

the national parties is confirmed by the record in this case.

Cf. Colorado II, 533 U.S. at 458 (“What a realist would

expect to occur has occurred.”). Judge Kollar-Kotelly aptly

described that record as “a treasure trove of testimony from

Members of Congress, individual and corporate donors, and

lobbyists, as well as documentary evidence, establishing that

contributions, especially large nonfederal donations, are

given with the expectation they will provide the donor with

access to influence federal officials, that this expectation is

fostered by the national parties, and that this expectation is

often realized.” Supp. App. 589sa. Former Senator Warren

Rudman testified that “[l]arge soft money contributions in

fact distort the legislative process” because “[t]hey affect
38

whom Senators and House members see, whom they spend

their time with, what input they get, and—make no mistake

about it—this money affects outcomes as well.” Id. at 595sa

(J.A. 743). One lobbyist testified that “[t]he amount of

influence that a lobbyist has is often directly correlated to

the amount of money that he or she and his or her clients

infuse into the political system.” Id. at 594sa (J.A. 4). A

corporate CEO who had previously worked for many years

as a political fundraiser and consultant (see id. at 550sa)

testified that “many members of the business community

recognize that if they want to influence what happens in

Washington, they have to play the soft money game.” Id. at

598sa (J.A. 716); see id. at 1265sa-1284sa (Leon) (discussing

evidence of links between soft-money donations and increased access to federal office-holders).

Perhaps the most telling evidence that donors view large

soft-money donations as a means to affect the legislative

process is the fact that in both 1996 and 2000, well over half

of the 50 largest soft-money donors gave money to both of

the major political parties. See Supp. App. 619sa-623sa

(Kollar-Kotelly); id. at 1284sa-1286sa (Leon); see also Colorado II, 533 U.S. at 451 (noting that “many PACs naturally

express their narrow interests by contributing to both

parties during the same electoral cycle”). That pattern of

giving belies an ideological motivation and is explicable

instead as an effort to obtain influence within the legislative

process. As former Senator Dale Bumpers testified, “[g]iving soft money to both parties, the Republicans and the

Democrats, makes no sense at all unless the donor feels that

he or she is buying access.” Supp. App. 621sa (KollarKotelly) (J.A. 175); see J.A. 1220 (D. Green Rep.) (stating,

with respect to corporations that have made large softmoney donations to both of the major parties, that “it strains

credulity to think that their evenhanded distribution of
39

shareholders’ money to both parties grows out of their desire

to foster democratic discourse”).

The examples described above are simply illustrative. A

voluminous body of record evidence in this case describes

donors’ use of large soft-money donations to obtain access to

federal office-holders and thereby attempt to affect legislative outcomes.14 That evidence is exhaustively catalogued in

Judge Kollar-Kotelly’s opinion (see Supp. App. 567sa-626sa)

and dwarfs the evidence of corruption that the Court in

Buckley (see 424 U.S. at 27 & n.28) and Shrink Missouri (see

528 U.S. at 393-394) found sufficient in upholding the contribution limits at issue in those cases.15

 14 The record also contains abundant evidence that large soft-money

donations to political parties have created an appearance of corruption in

the eyes of the electorate. See Supp. App. 626sa-636sa (Kollar-Kotelly);

id. at 1289sa-1296sa (Leon). This Court has made clear that the interest in

preventing the appearance of corruption, and thereby fostering public

confidence in the operations of the government, is a constitutionally

sufficient basis for limits on campaign contributions. See Shrink

Missouri, 528 U.S. at 390, 393-394; Buckley, 424 U.S. at 27, 30. The Court

has recognized the importance of that interest in other contexts as well.

The Court has explained, for example, that conflict-of-interest laws governing federal personnel are “directed at an evil which endangers the very

fabric of a democratic society, for a democracy is effective only if the

people have faith in those who govern, and that faith is bound to be

shattered when high officials and their appointees engage in activities

which arouse suspicions of malfeasance and corruption.” Mississippi

Valley Co., 364 U.S. at 562; see Crandon, 494 U.S. at 164-165 (identifying

public perception of corruption as one of the harms caused by private

supplementation of government worker’s salary); cf. Civil Serv. Comm’n

v. Letter Carriers, 413 U.S. 548, 565 (1973) (explaining, with regard to

Hatch Act restrictions on Executive Branch employees’ political activities,

that “it is not only important that the Government and its employees in

fact avoid practicing political justice, but it is also critical that they appear

to the public to be avoiding it, if confidence in the system of representative

Government is not to be eroded to a disastrous extent”).

15 As the RNC plaintiffs observe (Br. 26), the record does not identify

specific instances in which a soft-money donation has demonstrably caused

a Member of Congress to alter his vote on a pending legislative proposal.

This Court’s decisions make clear, however, that the validity of a contri-
40

The record makes clear not only that donors and federal

office-holders perceive a connection between large softmoney donations and influence upon the legislative process,

but that the national party committees actively seek to

foster that perception. The RNC’s own documents “show

that the RNC’s donor programs offer greater access to

federal office holders as the donations grow larger, with the

highest level and most personal access offered to the largest

soft money donors.” Supp. App. 608sa (Kollar-Kotelly);

accord id. at 1271sa (Leon). The RNC plaintiffs assert (Br.

13) that “RNC reliance on federal officeholders for personal

or telephonic solicitation of major donors was ‘exceedingly

rare.’ ” Even if federal office-holders seldom undertake the

actual solicitation of funds on behalf of the RNC, but see

Supp. App. 554sa-555sa (Kollar-Kotelly), the RNC encour-

 bution limit does not depend on evidence of that character. This Court in

Buckley, citing the opinion of the court of appeals in that case, referred to

“the deeply disturbing examples surfacing after the 1972 election” as persuasive evidence “that the problem [of corruption] is not an illusory one.”

424 U.S. at 27 (citing Buckley v. Valeo, 519 F.2d 821, 839-840 & nn.36-38

(D.C. Cir. 1975)). The cited portion of the court of appeals’ opinion, however, identifies no instance in which a political contribution had been

proved to affect the outcome of a Presidential or legislative decision.

Rather, the court of appeals described instances in which large contributions (1) were made “in order to gain a meeting with White House officials

on [milk] price supports,” Id. at 839 n.36; (2) “were motivated by the

perception that this was necessary as a ‘calling card, something that would

get us in the door and make our point of view heard,’ ” id. at 839 n.37; or (3)

were triggered by a “widespread understanding that such contributions

were a means of obtaining the recognition needed to be actively considered” for ambassadorial appointments, id. at 840 n.38. Indeed, the

court of appeals in Buckley stated that it was “not material,” for purposes

of the constitutional analysis, “whether the President’s decision [to increase the price supports] was in fact, or was represented to be, conditioned upon or ‘linked’ to” the contributions at issue. Id. at 839 n.36. This

Court’s treatment of those examples as an adequate factual predicate for

the constitutionality of the FECA contribution limits amply demonstrates

that a systemic exchange of large soft-money donations for access to

federal office-holders may properly be regarded as a form of corruption.
41

ages office-holders to meet with the party’s large soft-money

donors, see id. at 603sa-607sa, and it utilizes the prospect of

access to office-holders in order to attract soft-money donations, see id. at 608sa-609sa. The RNC’s use of other

individuals to convey the explicit request for funds does not

meaningfully reduce the corruptive potential of the larger

process by which soft-money donations are obtained. There

has never been a requirement that the quid and the quo

must both occur in the same telephone call. In addition,

Congress in drafting appropriate prophylactic legislation

was entitled to guard against the possibility that the RNC

might begin to employ on a more systematic basis the same

fundraising techniques that other national party committees

have utilized.16

d. In crafting new FECA § 323(a), Congress chose to

close the loophole that allowed unlimited soft-money donations to national party committees for the financing of activities ostensibly intended solely to influence state elections.

The decision to regulate all donations to the national parties

reflects Congress’s judgment that “[b]ecause the national

parties operate at the national level, and are inextricably

intertwined with federal officeholders and candidates, who

raise the money for the national party committees, there is a

 16 None of the four congressional campaign committees (CCCs) is a

party to these cases. See note 8, supra. Unlike the Republican and Democratic National Committees, each of the CCCs is headed by a sitting

Member of Congress. See Richard Briffault, The Political Parties and

Campaign Finance Reform, 100 Colum. L. Rev. 620, 651 (2000) (“Members of Congress constitute and control the CCCs that play the leading

role in providing party money and campaign services to congressional

candidates.”); J.A. 1282 (Krasno/Sorauf Rep.). The CCCs regularly call

upon Members of Congress to solicit donations. See Supp. App. 548sa554sa (Kollar-Kotelly). With respect to those committees, it is particularly

clear that “no wall between the national parties and the national government exists.” J.A. 1282 (Krasno/Sorauf Rep.). The four CCCs raised a

total of $212 million in soft money during the 2000 election cycle. Id. at 9.
42

close connection between the funding of the national parties

and the corrupting dangers of soft money on the federal

political process.” 148 Cong. Rec. H409 (daily ed. Feb. 13,

2002) (statement of Rep. Shays). Congress concluded that

“[t]he only effective way to address this problem of corruption is to ban entirely all raising and spending of soft

money by the national parties.” Ibid. In light of Congress’s

greater familiarity with the nature of party fundraising and

its effects on the legislative process, that determination is

entitled to substantial judicial deference. It is also supported by extensive record evidence demonstrating that

large soft-money donors to the national party committees

have been promised and granted access to the parties’ federal office-holders, notwithstanding the fact that soft money

is (by definition) not permitted to be used in order to

influence federal elections. See pp. 37-41, supra.

It is wholly understandable, moreover, that an elected

federal official will tend to look favorably on his party’s large

donors, even when a particular donation is earmarked for

activities directed solely at state elections. Because money

is fungible, a donation that defrays the costs of state electoral advocacy will free up funds for other activities that

may directly and tangibly affect federal elections. Cf. Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th

Cir. 2000), cert. denied, 532 U.S. 904 (2001).17 Because the

 17 In California Med. Ass’n v. FEC, 453 U.S. 182 (1981), this Court

applied a similar analysis in holding that FECA’s $5000 annual limit on

contributions to a political committee is constitutional even as applied to

contributions earmarked for administrative support of the political committee itself. The California Medical Association (CMA)—the putative

donor in that case—argued that contributions so earmarked “lack any

potential for corrupting the political process.” Id. at 199 n.19 (plurality

opinion). In rejecting that contention, the plurality explained that “if an

individual or association was permitted to fund the entire operation of a

political committee, all moneys solicited by that committee could be

converted into contributions [to candidates], the use of which might well
43

decennial redrawing of congressional district lines is typically performed by state legislatures, a party’s congressional

candidates can expect to benefit if the party obtains a

legislative majority within the State. See Supp. App. 531sa533sa (Kollar-Kotelly); J.A. 1201-1202 (D. Green Rep.). A

Presidential candidate’s likelihood of winning a State’s electoral votes may be increased if the State’s Governor is a

member of the candidate’s own political party. And even

where such tangible links are not apparent, federal and state

candidates within a single party are co-participants in a

common enterprise and are encouraged by party leaders to

regard each other as such.

Thus, whether or not a particular donation earmarked for

state elections has a foreseeable spillover effect on any

federal race, a federal office-holder’s close identification with

his political party may cause him to regard a large-scale

party benefactor as an ally of his own. See pp. 31-34, supra.

That potential is magnified when the soft-money donor has

already made hard-money contributions to the candidate and

party up to the legal limit. Although soft-money donations

may have less tangible benefits to a federal candidate or

office-holder because of legal restrictions on how the money

may be spent, soft money nevertheless benefits such persons

by assisting the organization of which they are integral

members. And, in any event, the process by which the funds

are raised, in which access to federal office-holders has been

systematically exchanged for large soft-money donations,

creates a substantial risk of actual or apparent corruption,

regardless of how the funds are ultimately spent. See pp. 37-

41, supra.

 be dictated by the committee’s main supporter.” Ibid.; see id. at 203

(Blackmun, J., concurring in part and concurring in the judgment) (agreeing that statutory limit should be sustained under an anti-circumvention

rationale).
44

e. The closing of the soft-money loophole cannot plausibly be expected to prevent the national parties from “amassing the resources necessary for effective advocacy.” Buckley, 424 U.S. at 21; see Shrink Missouri, 528 U.S. at 397. In

the 2000 election cycle, the national parties raised $741

million in hard money alone. Supp. App. 491sa-492sa (KollarKotelly). That is some $210 million more than the national

parties’ combined hard- and soft-money receipts as recently

as the 1992 election cycle. Ibid. The national parties will

likely raise even larger sums of hard money under BCRA,

both because the limit on individual contributions to national

party committees has been increased from $20,000 to $25,000

per year, see BCRA § 307(a)(2), and because the national

parties can adapt to the soft-money ban by “rais[ing] funds

from a greater number of persons,” Buckley, 424 U.S. at 22.18

 18 The RNC plaintiffs also argue (Br. 64-69) that new FECA § 323(a)

violates the First Amendment as applied to minor parties such as plaintiff

Libertarian National Committee (LNC). The principal thrust of their

constitutional argument is that the LNC uses federal campaigns as fora

for issue advocacy, rather than as serious efforts to achieve the election of

candidates, and that soft-money donations to the LNC pose no realistic

threat of corrupting federal office-holders because “[n]o Libertarian Party

candidate has ever won a race for federal office.” RNC Br. 67. Having

chosen to accept the advantages that flow from official recognition of its

candidates on the ballot, however, as well as the various forms of preferential treatment that the FECA/BCRA regime gives to party committees (see p. 71, infra), the LNC has no constitutional entitlement to an

exemption from the restrictions that apply to other political parties.

Plaintiffs’ argument logically suggests that the individuals whom it

nominates for federal office should also receive a constitutional exemption

from the FECA/BCRA limits on contributions to candidates, a proposition

that has no support in this Court’s precedents. Indeed, this Court in

Buckley specifically declined to create a blanket exception for minor

parties from the FECA limits on contributions to federal candidates, or

from the Act’s disclosure requirements. See 424 U.S. at 33-35, 72-74.
45

2. The restrictions on state parties’ use of soft money for

“Federal election activity” are reasonable and consistent

with the First Amendment: With respect to state political

party committees, Congress employed a somewhat different

approach. Congress did not place a federal limit on all donations to the state parties. Rather, BCRA applies the federal

source-and-amount restrictions and disclosure requirements

(subject to the narrow exception provided by the Levin

Amendment, see pp. 49-51, infra) only to the funds used for

four specified categories of “Federal election activity.” See

FECA § 323(b)(1) (added by BCRA § 101(a)). That term is

defined to include (i) “voter registration activity” within the

120 days before a federal election; (ii) “voter identification,

get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate

for Federal office appears on the ballot”; (iii) any “public

communication that refers to a clearly identified candidate

for Federal office * * * and that promotes or supports a

candidate for that office, or attacks or opposes a candidate

for that office”; and (iv) all services provided by any employee who devotes more than 25% of his compensated time

in any month to activities in connection with federal elections. BCRA § 101(b) (adding FECA § 301(20)(A)(i)-(iv)).

The requirement that such activities be financed entirely

with money raised in compliance with the FECA/BCRA

contribution limits is consistent with the First Amendment.

a. Contrary to the RNC plaintiffs’ contention (Br. 39),

the restrictions imposed by new FECA § 323(b) are properly

treated as limits on contributions rather than on expenditures, even though the applicability of those restrictions

turns on the use to which the relevant funds are ultimately

put. Unlike the expenditure caps that were struck down in

Buckley, new FECA § 323(b) does not limit the total amount

of money that either the donor or the party may spend,

either on political advocacy generally or on “Federal election
46

activity” in particular. Compare Buckley, 424 U.S. at 39

(explaining that FECA’s prior “expenditure ceilings impose

direct and substantial restraints on the quantity of political

speech”). Rather, like the contribution limits that the

Buckley Court sustained, the effect of new FECA § 323(b)

“is merely to require * * * [party] committees to raise

funds from a greater number of persons and to compel

people who would otherwise contribute amounts greater

than the statutory limits to expend such funds on direct

political expression, rather than to reduce the total amount

of money potentially available to promote political expression.” Id. at 22. Indeed, Congress placed distinct restrictions on disbursements for “Federal election activity” not in

order to impose some overall limit on state party spending,

but solely to allow spending for non-federal purposes to

remain free from federal regulation. The RNC plaintiffs’

argument would have the perverse effect of subjecting Congress’s limited regulation of contributions used for defined

activities to more demanding constitutional scrutiny than an

absolute cap on donations for any purpose.

b. Each category of “Federal election activity” as defined

in the Act involves conduct that by its nature will influence

federal elections. Disbursements for such activities—particularly disbursements for the activities described in new

FECA § 301(20)(A)(i), (ii), and (iv)—will often influence state

elections as well. But the potential impact on state elections

does not diminish the federal interest in preventing actual or

apparent corruption of federal office-holders. If a state

party’s voter-registration and get-out-the-vote activities in

connection with an even-year election are successful, the

party’s federal candidate(s) will inevitably benefit; and the

extent of that benefit does not depend on the number of

state offices that are contested at the same election. See

J.A. 1205 (D. Green Rep.) (available evidence “shows quite

clearly that a campaign that mobilizes residents of a highly
47

Republican precinct will produce a harvest of votes for

Republican candidates for both state and federal offices.”).

Because federal candidates are likely to regard large donations used to finance “Federal election activity” within their

States or districts as substantially assisting their own campaigns, such donations directly implicate the concern that

the donor may exercise “undue influence on an officeholder’s

judgment, and the appearance of such influence.” Colorado

II, 533 U.S. at 441.

Each category of “Federal election activity,” moreover,

has historically been subject to federal regulation and required to be financed in part with hard money under the

FEC’s allocation rules. See pp. 8-10, supra. The prior

allocation regime reflected the FEC’s recognition that such

activities can be expected to influence federal elections.

Plaintiffs’ attack on new FECA § 323(b) logically implies

that either (1) the prior allocation rules were themselves

unconstitutional, or (2) the activities described in new FECA

§ 301(20)(A)(i)-(iv) have a sufficient impact on federal

elections to justify a requirement that part of their costs be

paid with hard money, but do not have a sufficient impact to

support a requirement that all of their costs be so financed.

Neither of those theories is persuasive. The evidence in

this case amply supports Congress’s determination that

“Federal election activity” as defined in the Act can be

expected to have a significant impact on federal elections.

See Supp. App. 516sa-531sa (Kollar-Kotelly). If such activities could be financed entirely with unlimited soft-money

donations, the party’s spending could therefore have the

effect of creating indebted federal office-holders, and the

other limits on contributions could be effectively circumvented. And once the propriety of some restriction on the

funding of “Federal election activity” is accepted, “a court

has no scalpel to probe” (Buckley, 424 U.S. at 30) whether

100% or some lesser portion of the costs of such activities
48

should be required to be financed with hard money. Based

on its Members’ extensive experience under the Commission’s former allocation rules, Congress determined that

greater constraints on state parties’ use of soft money were

needed to preserve the integrity of federal elections and

federal office-holders. The Constitution does not prevent

Congress from acting upon that judgment.

The RNC plaintiffs appear to argue that the FEC’s prior

allocation rules were invalid, and that a party committee has

a First Amendment right to receive unlimited contributions

for any political activity that does not expressly advocate the

election or defeat of a federal candidate. See RNC Br. 54-55,

88 n.50.19 The Court in Buckley declined, however, to impose

an “express advocacy” test for organizations “the major purpose of which is the nomination or election of a candidate,”

because the expenditures of such organizations “are, by

definition, campaign related.” 424 U.S. at 79; see id. at 79-80.

Unlike some interest groups, which may have as their

primary function issue advocacy rather than the election of

candidates, “parties are primarily and continuously concerned with acquiring power through electoral victory.

Parties never engage in public communication without

regard to its electoral consequences.” J.A. 1209 n.19 (D.

Green Rep.). There is consequently no need to distinguish

between political party disbursements that are directed at

candidate elections and those that are not. Rather, the

relevant distinction is between disbursements that are

directed, in whole or in part, at federal elections, and those

that are directed at state and/or local elections only (and

even that line addresses only who should regulate; it does

 19 The McConnell plaintiffs state (Br. 13) that the FEC’s prior allocation rules “reflected an assiduous regard for our federal system.” Like the

RNC plaintiffs, however, they contend (id. at 26 n.5) that Congress lacks

power to “regulate expenditures for speech that does not constitute

express advocacy.”
49

not demarcate activities that the First Amendment places

beyond regulation). Disbursements for “Federal election

activity” as defined in BCRA can reliably be assumed to fall

within the former category.

c. Consistent with both the First Amendment and principles of federalism, Congress might have categorically

required state party committees to finance all “Federal

election activity” entirely with funds contributed subject to

the FECA/BCRA source-and-amount restrictions and disclosure requirements. Congress chose, however, to establish

an exception to that general rule, in order to accommodate

the interests of state parties in raising and spending additional funds to influence state elections. Under the “Levin

Amendment” (new FECA § 323(b)(2)), state and local party

committees may use soft money to finance an allocable share

of the costs of certain categories of “Federal election

activity,” provided that the following conditions are met:

First, the permitted activities may not refer to a clearly

identified federal candidate. Second, those activities may

not involve any broadcast communication except one that

refers solely to a clearly identified state or local candidate. Third, no single donor may donate more than

$10,000 to a state or local party annually for those

activities. Finally, all money (federal and Levin money

alike) spent on such activities must be “homegrown”—i.e., raised solely by the spending state or local

party.

Supp. App. 56sa (per curiam). Without those limitations on

the Levin Amendment option, Congress might well have

declined to create any exception to the rule that state

parties’ “Federal election activity” must be financed exclusively with money raised in compliance with the generally

applicable federal source-and-amount restrictions. And state

parties may avoid the restrictions on the use of Levin
50

Amendment funds simply by spending hard money to

finance the activities described in new FECA § 301(20)(A).

The RNC plaintiffs focus in particular (see Br. 58-61) on

the requirement that “homegrown” funds be used, which

they characterize as a “ban” on transfers of funds between

different units of a political party. RNC Br. 58. That claim

is misconceived. The Levin Amendment does not restrict

the freedom of party committees to transfer lawfullyacquired funds among themselves. BCRA simply requires

that, if a state or local party committee seeks to use funds

raised outside of FECA’s source-and-amount restrictions to

defray part of the costs of “Federal election activity,” that

activity must be financed entirely with “homegrown” money.

That modest condition on the Levin Amendment option—an

option that Congress was not obliged to create, and one that

no state or local party committee is required to utilize—

creates no meaningful constitutional problem.

Although state and local party committees in raising

Levin Amendment funds are not subject to all of FECA’s

source-and-amount restrictions,20 the $10,000 limit on Levin

Amendment donations reflects Congress’s conclusion that

the activities in question affect federal elections and that

unrestricted donations would therefore threaten actual or

apparent corruption of federal office-holders. Absent the

requirement that funds used for Levin Amendment activities be “homegrown,” a donor could contribute $10,000 to

each of several committees participating in the same joint

activity, effectively subverting the $10,000 per-donor cap on

Levin Amendment donations. And if national party committees could provide the hard money to be spent in

allocation with a state or local party’s Levin funds, the

 20 Most significantly, Levin Amendment funds may include corporate

and union treasury donations, subject to the $10,000 maximum, to the extent that state law permits. See 11 C.F.R. 300.31(c).
51

national parties “could gain influence over how the account is

spent, including the money raised by the less restrictive

Levin provisions.” J.A. 1210 (D. Green Rep.); cf. note 6,

supra (explaining that, before the enactment of BCRA,

national parties frequently transferred soft money to state

parties with instructions as to the manner in which those

funds should be used). The national parties would thus effectively regain the ability to direct soft money to activities

that will affect federal elections—precisely the abuse that

new FECA § 323(a) was designed to prevent.

3. Title I’s solicitation restrictions reinforce Title I’s

contribution limits and comply with the First Amendment:

Plaintiffs also challenge three distinct restrictions imposed

by BCRA § 101(a) on the solicitation of funds by political

party officials and by federal office-holders and candidates.

First, new FECA § 323(a) prohibits any national political

party committee from soliciting soft-money donations to any

recipient. Second, new FECA § 323(d) prohibits any

national or state party committee from soliciting donations

to certain organizations that are exempt from tax under

Section 501(c) or Section 527 of the Internal Revenue Code.

Third, new FECA § 323(e)(1) generally prohibits federal

office-holders and candidates from soliciting donations in

connection with either federal or state elections unless those

donations comply with FECA’s source-and-amount restrictions. Those provisions are valid anti-circumvention measures that are fully consistent with the First Amendment.

a. The McConnell plaintiffs contend that the challenged

solicitation restrictions are subject to strict scrutiny.

McConnell Br. 17-18 (citing Riley v. National Fed’n of the

Blind, 487 U.S. 781, 795-796 (1988)). They are mistaken. In

Riley, the Court applied strict scrutiny only in reviewing a

state-law provision that directly regulated the content of the

fundraiser’s message, by compelling disclosure of information concerning the percentage of gross receipts that were
52

actually passed on to charities. Riley, 487 U.S. at 786, 795.

The Court explained that “[m]andating speech that a

speaker would not otherwise make necessarily alters the

content of the speech. We therefore consider the Act as a

content-based regulation of speech.” Id. at 795. The provisions at issue here, by contrast, are directed not at the

content of the fundraising appeal, but at the identity of the

fundraiser. They are in the nature of conflict-of-interest

regulations and serve to prevent individuals who have

acquired power or influence in one capacity from utilizing it

in service of another entity, in circumstances where corruption of federal office-holders may result. Though such

restrictions are not immune from First Amendment challenge, this Court’s decisions do not suggest that they are

subject to strict scrutiny.

To the contrary, this Court has subjected solicitation restrictions designed to reinforce and prevent the circumvention of the FECA contribution limits to the same complaisant scrutiny applied to the contribution limits themselves. In NRWC, this Court held that a nonprofit corporation could constitutionally be prohibited from soliciting

contributions to its federal PAC from individuals who were

not its actual “members.” See 459 U.S. at 201-211. The

Court did not apply strict scrutiny, but instead emphasized

the need for deference to congressional judgments in this

area, stating that it would not “second-guess a legislative

determination as to the need for prophylactic measures

where corruption is the evil feared.” Id. at 210; see also

Beaumont, 123 S. Ct. at 2207-2209 (noting the close interrelationship between the solicitation restrictions at issue in

NRWC and the underlying contribution limits expressly

upheld in Beaumont). A similarly deferential review is

appropriate here.

b. New FECA § 323(a)’s ban on soft-money solicitations

by national political party committees is based on the rea-
53

sonable premise that, if a large donation to the national party

has sufficient corruptive potential to justify a ban, a similar

donation to an associated entity (e.g., a state party committee or candidate for state office) designated by the

national party may create a comparable threat of corruption.21 That risk is particularly acute in light of the close

connections between national and state party committees

and candidates within the party, which increase the danger

that a large soft-money donation solicited by a national party

committee will be perceived—by the donor, the national

party, and federal office-holders—as the functional equivalent of a donation to the national party committee itself. Congress properly acted to prevent the use of such solicitations

as a means of circumventing the statutory ban on donations

of soft money directly to the national parties.

Insofar as new FECA § 323(a) prohibits a national party

committee from soliciting for others donations that the

committee itself could not lawfully receive, it is in no way

anomalous. To the contrary, similar prohibitions are a

characteristic feature of federal anti-corruption and conflictof-interest laws. See, e.g., 5 C.F.R. 2635.203(f )(2) (providing

that regulatory restrictions on gifts to federal employees encompass gifts “[g]iven to any other person, including any

charitable organization, on the basis of designation, recommendation, or other specification by the employee”); note 13,

 21 We do not understand plaintiffs to challenge new FECA § 323(a)’s

ban on soft-money solicitations by national party committees insofar as

that ban applies to solicitations for the national party itself. New FECA

§ 323(a) categorically prohibits national party committees from receiving

soft-money donations, and neither the party nor its officials can claim any

First Amendment right to propose an illegal transfer of funds. See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S.

376, 388-389 (1973). Rather, we understand plaintiffs to challenge BCRA’s

solicitation restrictions only as they apply to potential donations (e.g., softmoney donations to state party committees or to state candidates) that are

not in themselves illegal.
54

supra. As those provisions demonstrate, when person A is

(for whatever reason) barred from giving money to person

B, a natural corollary of that prohibition is to bar B from

requesting that A give money to a third party (person C) of

B’s choosing. That ancillary prohibition raises no meaningful

First Amendment concerns, even when a payment from A to

C is not unlawful in and of itself.22

c. Congress acted constitutionally in barring national and

state party committees, and their officials acting on behalf of

the parties, from soliciting donations for certain tax-exempt

organizations that engage in political activity.23 New FECA

 22 The RNC plaintiffs assert (Br. 43) that “it is perfectly legal for

anyone else to say ‘contribute to the Jones for Governor campaign,’ but it

is a crime for a national party official merely to utter those exact words.”

That assertion overstates the practical effect of new FECA § 323(a)’s ban

on soft-money solicitation by the national parties. First, that ban applies

to national party officials only when they act “on behalf of such a national

committee.” A national party official therefore remains free to solicit soft

money for a state party or state candidate if he acts in a different capacity

(e.g., as a state party official, or simply as an individual). See 67 Fed. Reg.

49,083 (2002). Second, a candidate for state office (like anyone else) is free

to establish a federal PAC, which can accept contributions subject to

FECA’s disclosure requirements and source-and-amount limits. Money

contributed to that PAC can be used (insofar as federal law is concerned)

to finance the state candidate’s campaign. Even when acting on behalf of

the RNC, a national party official could legally solicit hard-money contributions to that PAC. Third, it is not “perfectly legal for anyone else to

say ‘contribute to the Jones for Governor campaign.’ ” To the contrary,

federal law validly prohibits a variety of persons from soliciting funds for

state electoral campaigns. See, e.g., 5 U.S.C. 7323(a) (federal Executive

Branch employees; see pp. 57-58, infra); 26 U.S.C. 501(c)(3) (designated

nonprofit organizations); Blount v. SEC, 61 F.3d 938, 947 (D.C. Cir. 1995)

(municipal securities professionals, with respect to the campaigns of state

officials from whom they obtain or solicit business). Finally, the RNC

plaintiffs’ argument highlights the restrictions placed on political parties

by new FECA § 323(a) while ignoring the special advantages that parties

receive—precisely the analytical approach that this Court rejected in

California Med. Ass’n. See 453 U.S. at 200-201; p. 71, infra.

23 New FECA § 323(d) prohibits the parties from soliciting donations

to a Section 501(c) organization “that makes expenditures or disburse-
55

§ 323(d) serves to prevent circumvention of the limits on

contributions to the parties through the use of nonprofit

organizations as surrogate recipients of funds.24 The national party committees have in the past persuaded “donors

to donate nonfederal money to certain interest groups that

then use such funds for broadcast issue advertisements and

other activities that influence federal elections.” Supp. App.

636sa (Kollar-Kotelly); see id. at 636sa-642sa; id. at 1247sa1253sa (Leon).

Those donations, if solicited by party committees, will

likely be regarded (by donors, party officials, and federal

 ments in connection with an election for Federal office (including expenditures or disbursements for Federal election activity),” or to any Section

527 organization “other than a political committee, a State, district, or

local committee of a political party, or the authorized campaign committee

of a candidate for State or local office.”

24 In addition to prohibiting national and state parties from soliciting

donations from other persons to the designated tax-exempt organizations,

new FECA § 323(d) also provides that the parties themselves shall not

“make or direct any donations to” those organizations. The government’s

expert explained that “[t]he parties’ motive for transferring funds to taxexempt organizations that are engaged in electoral activity is to gain

control of these organizations, because doing so gives parties control over

the soft money that tax-exempt organizations are free to raise.” J. A.

1209-1210 (D. Green Rep.). The ban on party donations to those

organizations prevents the parties from leveraging their own assets in

that manner. J.A. 1210. And by forcing the party committees to engage in

political advocacy in their own names, rather than through surrogates

whose links to the parties may not be widely known, the prohibition on

party donations to tax-exempt entities assists the public in evaluating

communications for which the party is ultimately responsible. Party

committees remain free to donate lawfully acquired funds to PACs, which

are subject to the disclosure requirements and source-and-amount restrictions imposed by FECA. Ibid.; see new FECA § 323(d)(2) (solicitation ban is inapplicable to any Section 527 organization that is a “political

committee”). And, as with the ban on party solicitations for the designated Section 501 and Section 527 organizations, the ban on direct donations may be regarded as simply a reasonable condition on Congress’s

decision to confer tax-exempt status upon the relevant organization. See

note 25, infra.
56

office-holders alike) as benefitting the party itself and its

federal candidates; yet they are not subject to FECA’s disclosure requirements and source-and-amount restrictions.

The tighter restrictions on donations to other likely surrogates, such as the state parties, will only increase the

temptation to pursue such arrangements. In the absence of

new FECA § 323(d), “the national parties could easily circumvent the new regulatory regime by creating satellite

party organizations in the guise of tax-exempt organizations,

which would be free to collect donations of unlimited size.”

J.A. 1210 (D. Green Rep.); cf. Colorado II, 533 U.S. at 457

(explaining that substantial record evidence in that case

“demonstrates how candidates, donors, and parties test the

limits of the current law”).25

d. New FECA § 323(e)’s restrictions on soft-money solicitations by federal candidates and office-holders are also

constitutional. New FECA § 323(e) reflects Congress’s reasonable concern that large donations made to other candidates or political committees at the behest of a federal candidate or office-holder may create the same kind of risks of

actual or apparent corruption as are posed by large donations to a federal candidate’s own campaign. To the extent

 25 New FECA § 323(d) might also be conceived (and sustained) as a

reasonable condition imposed by Congress on its decision to grant the

relevant Section 501(c) or Section 527 organization an exemption from

federal tax. “[T]ax exemptions * * * are a form of subsidy that is administered through the tax system.” Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983). Although Congress’s authority to grant

and withhold tax exemptions is subject to constitutional limits, see id. at

545, “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes,” id. at 547. New FECA § 323(d)

reflects Congress’s determination that certain organizations that have

requested and received a tax subsidy should not also receive a particular

type of fundraising assistance that could potentially be used to circumvent

the campaign-finance laws. Especially under the relaxed standard applicable to legislative judgments in this field, that condition on the organization’s tax-exempt status easily survives First Amendment review.
57

that it is unclear whether a federal candidate would view a

donation to a particular recipient favorably, that uncertainty

is eliminated by the solicitation itself. As one corporate CEO

and former political consultant testified, “[m]ost soft money

donors don’t ask and don’t care why” money solicited by a

Member of Congress is being directed to a particular recipient; “[w]hat matters is that the donor has done what the

Member asked.” Supp. App. 550sa-551sa (Kollar-Kotelly)

(J.A. 714). By permitting solicitations for both federal and

state elections, subject to FECA’s source-and-amount limits,

BCRA addresses the threat of actual or perceived corruption while allowing federal office-holders and candidates to

play a meaningful role in party fundraising efforts.

Insofar as it subjects federal office-holders and candidates

to legal constraints stricter than those imposed upon the

general public, new FECA § 323(e) breaks no new ground.

This Court has recognized that “the State’s interests as an

employer in regulating the speech of its employees ‘differ

significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’ ” Connick v.

Myers, 461 U.S. 138, 140 (1983) (quoting Pickering v. Board

of Educ., 391 U.S. 563, 568 (1968)).26 Subject to narrow

exceptions not relevant here, the Hatch Act has long prohibited the solicitation of political contributions by federal Executive Branch employees. See 5 U.S.C. 7323(a)(2); see also

 26 Although new FECA § 323(d) encompasses candidates for federal

office who are not (yet) office-holders, its application to such persons serves the same anti-corruption purpose as its application to persons actually

holding federal office. If a candidate incurs political debts during the

course of a campaign, and subsequently wins election, those debts may be

repaid after the candidate takes office. Cf. 18 U.S.C. 201 (federal bribery

and anti-gratuity law applies to any “person who has been selected to be a

public official” as well as to any “public official”).
58

Letter Carriers, supra; Public Workers v. Mitchell, 330 U.S.

75 (1947).27

Restrictions on the participation of public employees in

political fundraising serve in part to insulate the employees

themselves from untoward pressure to engage in political

activities. See Letter Carriers, 413 U.S. at 566. Those

restrictions also serve, however, to ensure (i) that public

employees are not affected (or perceived to be affected) in

the performance of their duties by the fact that persons with

business before the government have contributed to a

political campaign or have declined to do so, cf. id. at 564-565,

and (ii) that persons from whom contributions are requested

will not feel coerced to contribute by reason of the solicitor’s

official status. New FECA § 323(e) is a reasonably tailored

effort to achieve the same objectives.28

 27 At the time of this Court’s decisions in Letter Carriers and Mitchell,

the Hatch Act more broadly prohibited Executive Branch employees from

taking an “active part in political management or in political campaigns.”

See Letter Carriers, 413 U.S. at 550; Mitchell, 330 U.S. at 78 & n.2.

Congress has since relaxed the Hatch Act’s restrictions. Under current

law, the ban on active participation in political campaigns applies only to a

relatively narrow group of Executive Branch employees. See 5 U.S.C.

7323(a), (b)(2) and (3). The ban on participation in political fundraising,

however, remains generally applicable. See 5 U.S.C. 7323(a)(2).

28 Restrictions on a federal candidate’s freedom to solicit lawful contributions in connection with his own electoral race would raise substantial

constitutional questions that are not implicated by the restrictions

imposed upon Executive Branch employees by 5 U.S.C. 7323(a)(2). With

respect to other elections, however, and particularly elections for state

office, it is not apparent why a Member of Congress should have a greater

First Amendment right to engage in political fundraising than does an

Executive Branch employee. Indeed, this Court’s decision in United

States v. NTEU, 513 U.S. 454, 472-473 (1995), suggests that Congress may

have greater power to restrict the off-duty financial activities of the

highest-ranking federal officials than to impose similar restrictions on the

federal rank-and-file, since high-ranking officials will likely be better

positioned to reward past favors through the use of their governmental

power.
59

4. New FECA § 323(f )’s restrictions on state candidates

and office-holders are valid anti-circumvention measures:

New FECA § 323(f ) prohibits state candidates and officeholders from spending soft money “for a communication

described in [new FECA] section 301(20)(A)(iii)”—i.e., for a

communication that “refers to a clearly identified candidate

for Federal office * * * and that promotes or supports a

candidate for that office, or attacks or opposes a candidate

for that office.” BCRA § 101(b) (new FECA §

301(20)(A)(iii)). As Judge Leon correctly explained, that

provision “simply guard[s] against * * * conversions of soft

money donations to fund communications that are designed

to accomplish the federal purpose of directly influencing a

federal election.” Supp. App. 1146sa; see id. at 993sa (KollarKotelly) (endorsing Judge Leon’s analysis).

Plaintiffs’ attack on new FECA § 323(f) rests largely on

overstatements of that provision’s practical effects. Thus,

the NRLC plaintiffs appear to construe new FECA § 323(f)

to encompass virtually every reference a state candidate or

office-holder might make to an identified candidate for

federal office, even when the evident purpose of the communication is to fulfill a state officer’s official duties unrelated to any election, or to further a state candidate’s own

electoral prospects, rather than to influence a federal election. See NRLC Br. 39-43. As Senator Feingold explained,

however, new FECA § 323(f ) does not prohibit “spending

non-Federal money to run advertisements that mention that

[state candidates] have been endorsed by a Federal candidate or say that they identify with a position of a named

Federal candidate, so long as those advertisements do not

support, attack, promote or oppose the Federal candidate.”

148 Cong. Rec. S2143 (daily ed. Mar. 20, 2002). The

McConnell plaintiffs contend (Br. 35) that new FECA

§ 323(f ) “is tantamount to an outright ban” on the issuance

by state candidates and office-holders of the communications
60

described in new FECA § 301(20)(A)(iii). Contrary to those

plaintiffs’ suggestion (Br. 35), however, nothing in federal

law prevents a state candidate or office-holder from establishing a political committee, which can receive contributions

subject to FECA’s source-and-amount restrictions. Funds

contributed to such a political committee can be used to

finance any communication for which new FECA § 323(f )

requires the use of hard money.

5. BCRA § 213’s provisions governing independent and

coordinated expenditures by party committees comply with

the First Amendment: Under 2 U.S.C. 441a(d), political

party committees are permitted to support their candidates

for federal office with coordinated expenditures that far

exceed the contribution limits to which other donors are

subject. See pp. 17-18 & note 11, supra. Once a political

party has nominated a candidate for a particular federal

election, BCRA § 213 requires the party either (1) to forgo

independent expenditures in support of that candidate, in

which case it may invoke the increased coordinated-expenditure limits applicable to political parties; or (2) to abide by

the $5000 limit on contributions and coordinated expenditures that applies to political committees generally, in which

case it may make unlimited independent expenditures in

support of that candidate.29 Plaintiffs’ First Amendment

 29 The RNC plaintiffs suggest (Br. 73) that if a party committee makes

independent expenditures in support of a nominated candidate, the party

is thereafter barred from any coordinated spending with respect to that

candidate. That is incorrect. BCRA § 213(2) adds a new FECA

§ 315(d)(4)(A)(i), which is codified at 2 U.S.C. 441a(d)(4)(A)(i), and

provides that, after making an independent expenditure with respect to a

nominated candidate, the party may not make “any coordinated

expenditure under this subsection with respect to the candidate during

the election cycle.” BCRA § 213(2) (emphasis added). “[T]his subsection”

refers to 2 U.S.C. 441a(d). Thus, BCRA § 213 requires the party to choose

between independent expenditures and the increased coordinated expenditures that 2 U.S.C. 441a(d) allows party committees to make. But
61

challenges (McConnell Br. 68-70; RNC Br. 73-76) to that

provision lack merit.

a. Although a party committee has a First Amendment

right to make unlimited independent expenditures in support of the party’s candidates, see p. 18, supra, it has no

greater constitutional right to make coordinated expenditures than does any other political committee. See Colorado

II, 533 U.S. at 455 (a political party “is in the same position

as some individuals and PACs, as to whom coordinated

spending limits have already been held valid”); McConnell

Br. 69 (acknowledging that 2 U.S.C. 441a(d) “is not constitutionally required”). Consistent with the Constitution,

Congress might have subjected party committees to the

$5000 limit on coordinated spending that applies to every

other multicandidate political committee, while leaving the

parties free to engage in unrestricted independent spending.

Under BCRA § 213, any political party remains free to

choose that option with respect to any federal election. Congress’s decision to provide party committees an additional

spending option creates no constitutional infirmity.

b. Plaintiffs contend that BCRA § 213 is invalid because

it “forces a choice between two existing rights: one statutory

and the other constitutional.” RNC Br. 75. But Congress

may and often does condition the availability of a statutory

benefit on a private party’s willingness to forgo conduct in

which it would otherwise have a constitutional right to

engage. In Buckley, for example, the Court held that Congress, in establishing a program of public financing for Presidential election campaigns (see 424 U.S. at 85-109), “may

condition acceptance of public funds on an agreement by the

 whichever option the party chooses, it may make direct contributions, or

contributions in the form of coordinated expenditures, up to the $5000

limit that applies to political committees generally under 2 U.S.C.

441a(a)(2)(A), and it may invoke the much larger limit on national party

contributions to Senate candidates established by 2 U.S.C. 441a(h).
62

candidate to abide by specified expenditure limitations.” Id.

at 57 n.65. The Court upheld that condition on public funding, notwithstanding its determination that FECA’s freestanding limits on campaign spending by candidates for

federal office violated the First Amendment. See id. at 54-

58. The Court explained that, “[j]ust as a candidate may

voluntarily limit the size of the contributions he chooses to

accept, he may decide to forgo private fundraising and

accept public funding.” Id. at 57 n.65.

BCRA § 213 does not, as the RNC plaintiffs suggest (Br.

74), reflect a “conclusive presumption” that all party spending in connection with a federal election is coordinated with

the party’s nominee. To the contrary, the text of BCRA

§ 213 expressly contemplates the prospect that a party

committee can make independent expenditures in support of

its candidate even after a nominee is selected. Congress reasonably determined, however, that the higher coordinatedexpenditure ceilings provided in 2 U.S.C. 441a(d) should be

reserved for those situations in which the relevant political

party concludes (for whatever reason) that independent

spending in support of a particular candidate is infeasible or

politically disadvantageous.

The balance struck by Congress accords both with the

original rationale for the higher party coordinated-spending

limits and with this Court’s decision in Colorado I. In 1976,

when it reenacted the predecessor to 2 U.S.C. 441a(d) after

this Court’s decision in Buckley, Congress viewed party

spending in support of the party’s candidate as necessarily

coordinated. The Conference Report accompanying the 1976

FECA amendments explained that the increased spending

limits for party committees “allow[] the political parties to

make contributions in kind by spending money * * * to aid

the individual candidates who represent the party,” and it

expressed the view that, “but for this subsection, these expenditures would be covered by the contribution limitations
63

stated in [2 U.S.C. 441a(a)(1) and (a)(2)].” H.R. Conf. Rep.

No. 1057, 94th Cong., 2d Sess. 59 (1976); see DSCC, 454 U.S.

at 28 n.1 (noting FEC’s position that “[p]arty committees are

considered incapable of making ‘independent’ expenditures

in connection with the campaigns of their party’s candidates”).

Thus, 2 U.S.C. 441a(d) was premised on Congress’s understanding that the parties’ higher level of coordinated

spending would counterbalance their inability to make the

unlimited independent expenditures that other political

committees are allowed to make. There was never an intent

to allow parties to enjoy the best of both worlds—unlimited

independent expenditures and unique opportunities for

substantial coordination. In enacting BCRA § 213, Congress

sought to continue to provide parties with an option that

reflects their distinct character and relationship to federal

candidates, while acknowledging that party committees are

capable of making independent expenditures like other

political committees, and leaving them free to pursue those

expenditures as an alternative to the unique opportunities

for coordination allowed to parties under 2 U.S.C. 441a(d).

BCRA § 213 also helps to prevent political parties from

circumventing the FECA limits on their coordinated spending through the use of expenditures that are ostensibly independent but in fact rest on understandings with the party’s

nominee. Although BCRA § 213 does not wholly bar a party

from simultaneously making independent and coordinated

expenditures in support of the same federal candidate (see

note 29, supra), it reduces the potential for abuse that such

an arrangement may create.30

 30 In Colorado I, a majority of this Court agreed that, where a party

committee’s expenditures are in fact independent of any candidate, the

First Amendment precludes Congress from imposing any limit on the

amount of money that the committee may spend. The Justices in the

majority appeared to disagree, however, as to the practical feasibility of
64

c. For purposes of BCRA § 213, all political committees

“established and maintained” by the national and state committees of a particular political party “shall be considered to

be a single political committee.” BCRA § 213(2) (adding

FECA § 315(d)(4)(B)). That provision serves an obvious

anti-circumvention purpose and does not intrude upon the

parties’ First Amendment rights. There is no merit to

plaintiffs’ claim (RNC Br. 75; McConnell Br. 70) that BCRA

§ 213 imposes upon the parties any form of “compelled” or

“forced” association. Rather, the provision simply attaches

new legal consequences to an existing voluntary association

between different committees of the same political party.31

A party remains free to establish any internal structure or

procedures it deems necessary to ensure that the appropri-

 such independent expenditures. Compare 518 U.S. at 613-614 (opinion of

Breyer, J.) (reviewing the record evidence and accepting the party’s

representation that the expenditure in question was independent of any

candidate) with id. at 630 (opinion of Kennedy, J.) (stating that “it would

be impractical and imprudent, to say the least, for a party to support its

own candidates without some form of ‘cooperation’ or ‘consultation’ ”).

Moreover, because the expenditures at issue in Colorado I took place

before the party’s nominee had been selected, see id. at 612, 613-614

(opinion of Breyer, J.), the Court did not confront the practical feasibility

of independent party expenditures during the post-nomination period—

the only period to which BCRA § 213 applies. BCRA § 213 allows each

political party, with respect to each election for federal office, to determine

for itself whether independent expenditures in support of its candidate

would be practical and commensurate with its interests. The First

Amendment does not preclude Congress from allowing a political party to

make that judgment, and then holding the party to its choice.

31 A state party committee is already aggregated with its “subordinate

committee[s]” for purposes of the coordinated spending limits set out in

2 U.S.C. 441a(d)(3). FECA has also long provided that contributions made

by PACs established or controlled by any “parent, subsidiary, branch,

division, department, or local unit” of a particular corporation or union

“shall be considered to have been made by a single political committee.”

2 U.S.C. 441a(a)(5). There is consequently nothing anomalous about a rule

under which the political expenditures of one entity will affect the spending options of its affiliates.
65

ate official makes the decision between independent and

coordinated spending with respect to each of its federal

candidates.32

C. Title I Does Not Intrude Upon The Authority Of

The States To Regulate Their Own Elections

Plaintiffs contend (see RNC Br. 78-91; McConnell Br. 26-

35) that Title I violates principles of federalism by impairing

the States’ authority to regulate their own elections. That

claim lacks merit.

1. Title I does not affect the duties, qualifications, or

compensation of state officers. It does not regulate the time,

place, or manner of voting, or the qualifications of voters.

Title I imposes no requirements or prohibitions on the

States themselves; it simply regulates financial transactions

between private parties, and it does so in order to safeguard

the integrity of federal elections and office-holders. None of

the precedents on which plaintiffs rely remotely suggests

that provisions of that character contravene principles of

federalism. To the contrary, this Court, in describing the

limits on congressional power imposed by the Tenth Amendment and related federalism principles, has consistently

distinguished between laws that operate on the States qua

States and those that operate directly on the citizenry. See,

e.g., New York v. United States, 505 U.S. 144, 166 (1992) (“In

providing for a stronger central government, * * * the

 32 Plaintiffs’ reliance (RNC Br. 75; McConnell Br. 70) on California

Democratic Party v. Jones, 530 U.S. 567 (2000), is misplaced. In striking

down a state law requiring that party primaries be open to non-members,

the Court in that case noted that the challenged law “force[d] [political

parties] to adulterate their candidate-selection process * * * by opening

it up to persons wholly unaffiliated with the party.” Id. at 581 (emphasis

added). A law that allows non-members to play a potentially decisive role

in the selection of the party’s nominee is not remotely comparable to

BCRA § 213, which simply holds a national or state party accountable for

the actions of those subordinate committees that it has “established and

maintained.”
66

Framers explicitly chose a Constitution that confers upon

Congress the power to regulate individuals, not States.”).

2. More broadly, insofar as plaintiffs seek to invoke the

principle that the national government is one of limited

powers, see, e.g., United States v. Lopez, 514 U.S. 549 (1995),

and United States v. Morrison, 529 U.S. 598 (2000), their

federalism arguments add nothing of substance to their First

Amendment claims. Congress in enacting BCRA sought to

protect the integrity of federal elections and to prevent

corruption of federal office-holders. Plaintiffs do not dispute

that those are legitimate federal objectives and that Congress possesses constitutional authority to enact laws reasonably calculated to achieve them. If the means chosen by

Congress are sufficiently reasonable and tailored so as to

overcome plaintiffs’ First Amendment objections (see pp. 34-

65, supra), there is no basis for challenging Title I under the

principles announced in Lopez and Morrison.

3. Plaintiffs in effect posit a third federalism-related

limitation on congressional authority: that congressional

regulation of private conduct, even if reasonably necessary

to the achievement of a valid federal objective, may be held

invalid if it displaces state policy choices on a subject of

particular importance to the State. That theory is flatly

inconsistent with established constitutional doctrine. If Title

I is an otherwise valid means of preserving the integrity of

federal elections and preventing corruption of federal officeholders, the fact that it prohibits some financial transactions

that the relevant State would permit, and may thus incidentally affect the way in which state electoral campaigns are

financed, cannot create any constitutional infirmity. That

conclusion follows both from decisions of this Court specifically addressing the regulation of federal elections, and from

the Supremacy Clause itself.

a. In Ex parte Siebold, 100 U.S. 371 (1879), this Court

upheld a federal statute that authorized federal prosecution
67

of a state election judge, based on the judge’s breach of

state-law duties in connection with an election at which both

federal and state offices were contested. The Court observed that Congress’s power over federal elections “is

paramount, and may be exercised at any time, and to any

extent which [Congress] deems expedient; and so far as it is

exercised, and no farther, the regulations effected supersede

those of the State which are inconsistent therewith.” Id. at

392. The Court further explained that “[i]f for its own

convenience a State sees fit to elect State and county officers

at the same time and in conjunction with the election of

representatives, Congress will not be thereby deprived of

the right to make regulations in reference to the latter.” Id.

at 393. In Ex parte Yarbrough, 110 U.S. 651, 662 (1884), the

Court reiterated that congressional authority to prevent

corruption of a federal election is not “annulled because an

election for State officers is held at the same time and place.”

Indeed, FECA currently prohibits a variety of potential

donors from making contributions to state as well as federal

candidates. See 2 U.S.C. 441b (national banks and federallychartered corporations); 2 U.S.C. 441c(a) (federal contractors); 2 U.S.C. 441e (foreign nationals); see also 18 U.S.C. 607

(as amended by BCRA § 302) (restricting fundraising on

federal property in connection with both state and federal

elections); Blount, 61 F.3d at 941-949 (upholding federal rule

that restricts the ability of municipal securities professionals

to contribute and solicit contributions to the campaigns of

elected state officials with whom they do business).33 Al-

 33 In McCormick v. United States, 500 U.S. 257 (1991), this Court considered the application to campaign contributions of the Hobbs Act, 18

U.S.C. 1951, an exercise of congressional authority under the Commerce

Clause that makes it a federal crime to obstruct, delay, or affect interstate

commerce by means of robbery or extortion. Although the Court rejected

the application of the Hobbs Act to the facts before it, see 500 U.S. at 269-

273, the Court held that the Act does prohibit a state elected official from
68

though Congress does not possess any freestanding authority to superintend state electoral processes, no principle of

federalism bars Congress from directly regulating the

financing of state electoral campaigns where such regulation

is justified by a legitimate federal interest and is an otherwise appropriate exercise of one of Congress’s Article I

powers. There is consequently no basis for plaintiffs’ contention that BCRA’s indirect effects on the financing of state

electoral campaigns render it an invalid means of safeguarding federal elections and preventing actual and apparent corruption of federal office-holders.

b. When an Act of Congress operates upon private

parties rather than upon the States themselves, and when

the law is reasonably designed to achieve a legitimate federal objective, its validity does not depend upon any balancing of state and federal interests. Indeed, even when

Congress takes the more intrusive step of preempting state

law, “[t]he relative importance to the State of its own law is

not material when there is a conflict with a valid federal law,

for the Framers of our Constitution provided that the

federal law must prevail.” Free v. Bland, 369 U.S. 663, 666

(1962); see Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta,

458 U.S. 141, 153 (1982) (relying on Free and explaining that

the legal principles generally governing federal preemption

of state law “are not inapplicable here simply because real

property law is a matter of special concern to the States”).

The challenged provisions of Title I do not even preempt

state law, in the sense of precluding the States from enforcing their own restrictions on the financing of electoral

campaigns. Rather, Title I (in common with a vast range of

federal legislation) simply prohibits private conduct that

 accepting campaign contributions “if the payments are made in return for

an explicit promise or undertaking by the official to perform or not to

perform an official act,” id. at 273.
69

some States have chosen to allow. Plaintiffs’ contention that

an Act of Congress may be declared invalid by reason of its

asserted conflict with state policy choices turns the Supremacy Clause on its head. Cf. Adams Fruit Co. v. Barrett, 494

U.S. 638, 649 (1990) (referring to “the truism that States may

not pre-empt federal law”).

D. Title I Does Not Intrude Impermissibly Upon The

Ability Of Political Party Committees To Associate

And Interact With Each Other

Plaintiffs repeatedly contend (e.g., RNC Br. 40; McConnell

Br. 14, 16, 17) that various provisions of Title I unconstitutionally impede party committees from associating with each

other in collaborative endeavors. That claim lacks merit.

This Court’s decisions make clear that the internal affairs of

political parties are not altogether immune from reasonable

government regulation, and BCRA places very modest

restrictions on the freedom of political party committees to

associate with each other through financial transactions.

1. This Court has rejected “the proposition that party

affairs are public affairs, free of First Amendment protections.” California Democratic Party, 530 U.S. at 573. The

Court has recognized, however, that when a political party

assumes an official role in the State’s electoral machinery (as

when the party’s nominee is guaranteed a place on the

ballot), it is typically subject to greater constraints than a

political organization acting in a purely private capacity.

The Court has “considered it ‘too plain for argument,’ for

example, that a State may require parties to use the primary

format for selecting their nominees, in order to assure that

intraparty competition is resolved in a democratic fashion.”

Id. at 572 (quoting American Party of Tex. v. White, 415

U.S. 767, 781 (1974)).

2. Plaintiffs’ characterizations of BCRA’s effects on

party committees’ collaborative activities are substantially
70

overstated. Notwithstanding the McConnell plaintiffs’ characterization of Title I as “pervasively regulating the relationships among party committees” (McConnell Br. 16), Title I

does not restrict the ability of national and state party

committees to coordinate strategy or to confer on spending

priorities. It does not limit the amount of money that

national party committees may disburse to state and local

party committees: any and all funds lawfully acquired by a

national party committee may legally be transferred to the

party’s state and local committees (although the Levin

Amendment places some restrictions on the circumstances in

which such transferred funds may be used, see pp. 49-51,

supra). Title I also does not alter pre-existing provisions of

federal law that facilitate cooperation between different

committees of the same political party. See 2 U.S.C.

441a(a)(4) (FECA contribution limits “do not apply to

transfers between and among political committees which are

national, State, district, or local committees * * * of the

same political party”); 11 C.F.R. 109.33(a) (authorizing

national and state party committees to assign their authority

to make coordinated expenditures to another political party

committee).

E. Title I Does Not Violate The Political Parties’

Rights Under The Equal Protection Component Of

The Fifth Amendment Due Process Clause

The RNC (Br. 91-98) and McConnell (Br. 35-38) plaintiffs

contend that BCRA’s restrictions on national and state

political party committees unconstitutionally discriminate

against the parties and in favor of non-party interest groups.

That claim lacks merit. Congress may legitimately determine that different types of organizations “require different

forms of regulation in order to protect the integrity of the

electoral process.” California Med. Ass’n, 453 U.S. at 201.

The FECA/BCRA regime affords political parties sub-
71

stantial advantages that are not available to other advocacy

groups, while restricting the party fundraising practices that

pose the greatest risk of actual or apparent corruption.

1. As the Court recognized in Colorado II, in many

respects, FECA and BCRA treat political parties more

favorably than other political committees. See 533 U.S. at

455. Both national and state party committees are permitted

to receive contributions from individuals that substantially

exceed the FECA limits on contributions to non-party political committees. See note 7, supra. Party committees are

also permitted to make contributions to federal candidates,

in the form of coordinated expenditures, in amounts much

greater than the contribution limits that apply to other

donors. See 2 U.S.C. 441a(d); Colorado II, 533 U.S. at 455

(“[A] party is better off [than individuals and PACs], for a

party has the special privilege the others do not enjoy, of

making coordinated expenditures up to the limit of ” Section

441a(d)); note 11, supra. Committees of the same political

party may transfer funds to each other without regard to the

limits that otherwise govern contributions from one political

committee to another. See 2 U.S.C. 441a(a)(4); p. 70, supra.

Congress has also given national party committees a multimillion-dollar federal subsidy for their quadrennial conventions, see 26 U.S.C. 9008, a benefit that is not available to

other entities. Those substantial advantages sharply undercut plaintiffs’ equal protection claim. Compare California

Med. Ass’n, 453 U.S. at 200-201.

2. In addition to the special privileges they enjoy, the

parties’ distinct role in electoral and governmental processes

demands distinct treatment. “Political parties play a distinctive and in many ways privileged role. Other entities are not

entitled to organize the slate of candidates presented to

voters. Other entities do not organize legislative caucuses,

assign committee chairs and members, or elect legislative

leadership.” J.A. 1197 (D. Green Rep.). A particular
72

Member of Congress may also be a member of the NRA or

the Sierra Club, but his name does not appear on the election

ballot as the nominee of such an organization, and his status

and privileges within the legislature are not tied to the

fortunes of any non-party advocacy group. See pp. 33-34,

supra. The particular closeness of political parties to their

office-holder members creates a heightened risk that a

federal candidate will regard a large donation to the party as

a direct benefit to himself, and may therefore be tempted to

give undue weight to the interests of the donor. A majority

of Congress, whose Members possess unique expertise in

matters of this character, concluded that large soft-money

donors to the parties had in fact acquired unwarranted

influence over the legislative process and ultimately over

legislative outcomes. That judgment is entitled to substantial deference, and it is supported by copious evidence

showing that parties have offered and provided donors

unique access to federal office-holders as a reward for large

soft-money donations. See pp. 37-41, supra.

II. THE ELECTIONEERING-COMMUNICATIONS PROVISIONS OF TITLE II OF BCRA ARE CONSTITUTIONAL

The electioneering-communications provisions of Title II

of BCRA are addressed to the second major problem that

has developed in connection with federal elections over the

past decade: the “spectacular rise” (Supp. App. 655sa

(Kollar-Kotelly)) in candidate-centered issue advertisements

that are paid for with general treasury funds amassed by

corporations and unions and that are designed to influence

federal candidate elections or likely to have that effect. The

direct funding of such advertisements has escaped regulation

under 2 U.S.C. 441b’s longstanding prohibition on the use of

a corporation’s or union’s treasury funds in connection with

federal elections simply because the advertisements do not
73

contain express advocacy (e.g., Vote for Jones), even though

the advertisements are just as likely to influence federal

candidate elections as advertisements that contain express

advocacy. BCRA adjusts Section 441b to apply it to the

funding of such candidate-centered issue advertisements—

defined in BCRA § 201 as “electioneering communications.”

The district court invalidated BCRA § 201’s primary definition of “electioneering communications,” and BCRA § 203’s

source-of-funding limitation on the use of general treasury

funds to finance such communications. Those rulings should

be reversed.

A. BCRA’s Electioneering-Communications Provisions

Are A Natural Evolutionary Step In Congress’s Longstanding Regulation Of Corporate And Union

Electoral Spending

In analyzing challenges to campaign-finance laws, this

Court is sensitive to the “historical prologue” of the provisions at issue. FEC v. Beaumont, 123 S. Ct. 2200, 2207

(2003); see id. at 2205-2207, 2210-2211 n.9; see also United

States v. Automobile Workers, 352 U.S. 567, 570 (1957)

(UAW) (“Appreciation of the circumstances that begot this

statute is necessary for its understanding, and understanding of it is necessary for adjudication of the legal problems

before us.”). BCRA’s electioneering-communications provisions are a natural and incremental outgrowth of the hallmark of federal campaign-finance regulation during the

twentieth century: Congress’s effort to curb the unique

threat that treasury funds accumulated by corporations and

labor unions with the help of their form present to the

integrity of the federal electoral process.
74

1. For Almost A Century, Congress Has Cautiously

Regulated The Manner In Which Federal Political Activity May Be Financed By Corporations

And Labor Unions

a. As this Court emphasized in Beaumont, “[s]ince 1907,

there has been continual congressional attention to corporate

political activity.” 123 S. Ct. at 2205; see id. at 2205-2207 &

n.3; see also FEC v. National Right to Work Comm., 459

U.S. 197, 208-209 (1982) (NRWC); Supp. App. 15sa-38sa (per

curiam); id. at 481sa-482sa (Kollar-Kotelly). That attention

is a product of the unique “dangers posed by [corporations

and labor unions] to the electoral process.” NRWC, 459 U.S.

at 209; see Beaumont, 123 S. Ct. at 2206; Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 658-659 (1990); FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257-259

(1986) (MCFL); FEC v. National Conservative Political

Action Comm., 470 U.S. 480, 500-501 (1985) (NCPAC); California Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981); UAW,

352 U.S. at 570-571. Indeed, federal campaign-finance

regulation itself was borne of “a ‘popular feeling’ in the late

19th century ‘that aggregated capital unduly influenced

politics, an influence not stopping short of corruption.’ ”

Beaumont, 123 S. Ct. at 2205 (quoting UAW, 352 U.S. at

570). And the concern that—if left unregulated—“corporate

earnings” will be “conver[ted] into political ‘war chests,’” id.

at 2206, remains to this day one of the central fixtures of this

Court’s campaign-finance jurisprudence.

In particular, the Court has stressed that the “statecreated advantages” of the corporate form afford corporations “an unfair advantage in the political marketplace.”

Austin, 494 U.S. at 659 (quoting MCFL, 479 U.S. at 257). As

the Court reiterated in Beaumont:

State law grants corporations special advantages—such

as limited liability, perpetual life, and the favorable
75

treatment of the accumulation and distribution of assets

—that enhance their ability to attract capital and to

deploy their resources in ways that maximize the return

on their shareholders’ investments. These state-created

advantages not only allow corporations to play a

dominant role in the Nation’s economy, but also permit

them to use “resources amassed in the economic marketplace” to obtain “an unfair advantage in the political

marketplace.”

123 S. Ct. at 2206 (quoting Austin, 494 U.S. at 658-659).

“[T]he political advantage of corporations is unfair,” the

Court has explained, because “[t]he resources in the treasury of a business corporation . . . are not an indication of

popular support for the corporation’s political ideas,” but

rather “reflect * * * the economically motivated decisions

of investors and customers.” Austin, 494 U.S. at 659; see

Beaumont, 123 S. Ct. at 2206.34

The Court has recognized that labor organizations enjoy a

similar advantage in terms of their capacity to influence

federal elections with “aggregated wealth” that does not

necessarily reflect the popularity of their political ideas.

Pipefitters Local Union No. 562 v. United States, 407 U.S.

385, 416 (1972); see NRWC, 459 U.S. at 207-208; UAW, 352

U.S. at 585; United States v. CIO, 335 U.S. 106, 113 (1948).

b. Over the past 95 years, Congress has engaged in

“careful legislative adjustment of the federal electoral laws,

in a cautious advance, step by step,” “to account for the

particular legal and economic attributes of corporations and

labor unions,” NRWC, 459 U.S. at 209 (internal quotation

 34 Nonprofit corporations that qualify under Section 501(c)(4) of the

Internal Revenue Code also receive a valuable subsidy in the form of an

exemption from federal income taxation. See Regan v. Taxation with

Representation, 461 U.S. 540, 544 (1983); see also Beaumont, 123 S. Ct. at

2209 (noting the “powerful” political influence of “corporations that qualify

for favorable tax treatment under § 501(c)(4)”).
76

marks omitted), and respond to the efforts of “candidates,

donors, and parties [to] test the limits of the current law,”

Beaumont, 123 S. Ct. at 2207. Initially, in 1907, Congress

made it unlawful for “any corporation whatever” to make “a

money contribution” in connection with a federal election.

Act of Jan. 26, 1907, ch. 420, 34 Stat. 864. Then, over the

next 40 years, Congress expanded the original prohibition on

money contributions to include “anything of value,” Federal

Corrupt Practices Act of 1925, ch. 368, § 302(d), 43 Stat. 1071

(emphasis added); extended the coverage of the prohibition

from corporations to labor unions, War Labor Disputes Act,

ch. 144, § 9, 57 Stat. 167; and extended the prohibition on

direct corporate and union contributions to include “expenditure[s],” Labor-Management Relations Act, 1947, ch. 120,

§ 304, 61 Stat. 159; see also Supp. App. 22sa-23sa (per

curiam) (discussing legislative history of Act).

2 U.S.C. 441b, which Congress enacted in 1971, is “merely

a refinement of this gradual development of the federal

election statute.” NRWC, 459 U.S. at 209. As discussed, that

provision prohibits corporations and labor unions from

making any contributions or expenditures in connection with

federal elections, but permits such entities to participate in

the federal electoral process through a separate segregated

fund. See id. at 201; Beaumont, 123 S. Ct. at 2203-2204; 2

U.S.C. 441b(b)(2)(C); see also p. 4, supra.

c. As this Court recounted in Beaumont, the Court’s

“cases on campaign-finance regulation represent respect for

the ‘legislative judgment that the special characteristics of

the corporate structure require particularly careful regulation.’ ” 123 S. Ct. at 2207 (quoting NRWC, 459 U.S. at 209-

210). In Beaumont, the Court rejected a challenge brought

by a nonprofit advocacy corporation to Section 441b’s

prohibition on contributions. 123 S. Ct. at 2203. In doing so,

the Court emphasized that “[a]ny attack on the federal

prohibition of direct corporate political contributions goes
77

against the current of a century of congressional efforts to

curb corporations’ potentially ‘deleterious influences on

federal elections,’ which we have canvassed a number of

times before.” Id. at 2205 (quoting UAW, 352 U.S. at 585);

see also NRWC, 459 U.S. at 209-211.

In MCFL, this Court held that Section 441b’s prohibition

on independent expenditures could not constitutionally be

applied to a nonprofit corporation with three “essential” features: (i) “it was formed for the express purpose of promoting political ideas, and cannot engage in business

activities”; (ii) it “has no shareholders or other persons

affiliated so as to have a claim on its assets or earnings”; and

(iii) it “was not established by a business corporation or a

labor union, and it is its policy not to accept contributions

from such entities.” 479 U.S. at 263-264. In so holding, the

Court explained that corporations with those key features do

not pose a sufficient “danger of corruption,” in the context of

regulating political expenditures, to justify the “regulation of

corporate political activity” that the Court has upheld as to

contributions. Id. at 259; see id. at 257-260.

In Austin, by contrast, the Court upheld the application of

a state law limit on corporate independent expenditures—

modeled on 2 U.S.C. 441b—to a nonprofit corporation that

did not share the essential features of the corporation in

MCFL. 494 U.S. at 654-655 & n.1. Although the Court recognized that Buckley had held unconstitutional a limitation

on the independent election expenditures of individuals, see

424 U.S. at 47, the Court concluded that the equation was

different in the case of corporations, given “the corrosive

and distorting effects of immense aggregations of wealth

that are accumulated with the help of the corporate form and

that have little or no correlation to the public’s support for

the corporation’s political ideas.” Austin, 494 U.S. at 660.

Indeed, the Court held that the source-of-funding limitation
78

on independent expenditures by corporations at issue in

Austin passed strict scrutiny. Id. at 658-661.

Together, Austin and MCFL make clear that the Constitution permits source-of-funding limits on corporate expenditures in connection with candidate elections with

respect to corporations that do not share the “crucial

features” of the nonprofit corporation in MCFL. Austin, 494

U.S. at 662. Indeed, Justice Brennan—who authored the

opinion for the Court in MCFL—joined the Court’s decision

in Austin and wrote a separate concurrence emphasizing

that MCFL is limited to the unique type of nonprofit corporation in that case. See id. at 669-675.

Thus, even in the context of “independent campaign expenditures” entitled to the highest protection, Austin, 494

U.S. at 657, this Court’s precedents establish that government has broad leeway to protect the federal electoral

process from the potential corruption associated with the use

of general treasury funds by corporations and labor organizations. In addition, the Court’s decisions further recognize that Congress may require non-MCFL corporations

and unions to take the relatively simple but nonetheless

critical regulatory step of establishing and making independent election expenditures through a separate segregated

fund, which also allows for disclosure without compromising

the associational interests of the broader corporate entity.

2. BCRA’s Electioneering-Communications Provisions Were Enacted To Plug A Loophole In

Existing Law That Has Been Exploited By Corporations And Unions

The political marketplace has always shown extraordinary

resilience in adapting to—and finding ways around—federal

campaign-finance limits. As the record in this case amply

demonstrates, Title II of BCRA was enacted in response to

that same driving force. See Supp. App. 40sa (per curiam);
79

see id. at 651sa (Kollar-Kotelly); id. at 1308sa (Leon); see

also Beaumont, 123 S. Ct. at 2207 (“[E]xperience demonstrates how candidates, donors, and parties test the limits of

the current law.”) (internal quotation marks omitted).

a. FECA’s general definition of “expenditure” includes

the provision of “anything of value * * * for the purpose of

influencing any election for Federal office.” 2 U.S.C.

431(9)(A)(i). In MCFL, the Court construed 2 U.S.C. 441b so

“that an expenditure must constitute ‘express advocacy’ in

order to be subject to [its] prohibition.” 479 U.S. at 249. The

Court based that “construction” on a passage in Buckley,

where the Court, in construing a different provision of

FECA, “adopted the ‘express advocacy’ requirement to distinguish [for purposes of that provision] discussion of issues

and candidates from more pointed exhortations to vote for

particular persons.” Ibid. The Buckley construction read

the relevant provision to apply “to communications containing express words of advocacy of election or defeat, such as

‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for

Congress,’ ‘vote against,’ defeat,’ ‘reject.’ ” 424 U.S. at 44

n.52. Those phrases have been referred to as Buckley’s

“magic words,” because, under MCFL, 479 U.S. at 248-249,

corporate- or union-funded communications that contain

those words are subject to Section 441b’s limitation.35

 35 The FEC has promulgated a regulation that defines “express advocacy” in more flexible terms. 11 C.F.R. 100.22(b). Some lower courts have

concluded that that regulation is invalid, reasoning that MCFL “engrafted

Buckley’s ‘explicit words of advocacy’ limitation onto § 441b(a),” and that

the lower courts are “bound by” that statutory construction. Virginia

Society for Human Life v. FEC, 263 F.3d 379, 391-392 (4th Cir. 2001). At

the same time, however, in response to the FEC’s “powerful” argument

concerning the need to construe the express-advocacy test in a manner

that prevents circumvention of its requirements, the court of appeals in

Virginia Society emphasized that neither this Court nor Congress was

bound by MCFL’s construction of 2 U.S.C. 441b(a). Ibid. In Title II of

BCRA, Congress took matters into its own hands.
80

b. In the wake of MCFL, corporations and labor unions

began to circumvent the express-advocacy requirement and

pour hundreds of millions of dollars in general treasury funds

into candidate-centered advertisements that avoided words

of express advocacy but were just as likely if not more likely

to influence the outcome of federal candidate elections as

advertisements that contained express advocacy. Significantly, although plaintiffs wage a multi-faceted attack on the

solution that Congress devised, they do not deny the powerful forces that led to its enactment.

i. “Approximately ten years after MCFL, during the

1996 election cycle, corporations and labor unions began

aggressively to use general treasury funds to pay for ‘issue

advocacy’ campaigns that avoided express advocacy but

were designed to influence federal elections.” Supp. App.

652sa (Kollar-Kotelly); see id. at 652sa-658sa (detailing

“spectacular rise in candidate-centered issue advertising”);

id. at 1306sa-1308sa (Leon) (same); see also id. at 39sa (per

curiam) (noting “widespread” use of such issue advocacy).

For example, the evidence shows an escalating cycle of

activity. During the 1995-1996 election cycle, about $135 to

$150 million was spent by organizations on multiple broadcasts of about 100 separate issue advertisements; during the

1997-1998 election cycle, about $250 to $340 million was

spent by 77 organizations on broadcasts of 423 separate issue

advertisements; and during the 1999-2000 cycle, more than

$500 million was spent by 130 groups on 1100 separate issue

advertisements. See Supp. App. 655sa (Kollar-Kotelly); id.

at 806sa-807sa; id. at 1306sa (Leon). Plaintiffs’ “own expert

readily concede[d] that the number of organizations sponsoring issue advertisements has ‘exploded’ over the past three

election cycles.” Id. at 807sa (citing La Raja Decl.) (J.A.

1442)).

That trend is not happenstance. It is “uncontroverted

that * * * by 1996, interest groups had developed a strat-
81

egy to effectively communicate an electioneering message

for or against a particular candidate without using the magic

words and thus avoid disclosure requirements, contribution

limits and source limits.” Supp. App. 657sa-658sa (KollarKotelly); see id. at 664sa-668sa (explaining why “express advocacy” is an “ineffective criteri[on] for distinguishing between genuine issue advertisements and advertisements

that do not use express advocacy but are designed to influence a federal election”); see id. at 1299sa-1306sa (Leon).

As Judge Kollar-Kotelly explained, “[t]he record persuasively demonstrates that corporations and unions routinely

seek to influence the outcome of federal elections with general treasury funds by running broadcast advertisements

that skirt the prohibition contained in section 441b by simply

avoiding Buckley’s ‘magic words’ of express advocacy.”

Supp. App. 778sa; see id. at 814sa-821sa (discussing evidence). Judge Leon similarly observed that, “Congress concluded, and the record more than adequately demonstrates,

that in the twenty-eight years since Buckley, corporations,

unions, and interest groups, have increasingly affected

federal elections by funding out of their general treasuries

uncoordinated ‘issue ads’ that either they, or a political

party, ran in the months leading up to an election” and that

“avoid regulation as express advocacy.” Id. at 1160sa

(record citations omitted); see id. at 1315sa-1325sa (discussing evidence); id. at 106sa (per curiam).

A side by side comparison of two advertisements that

were broadcast in 2000 by the NRA—whose Executive Vice

President acknowledged that the NRA “spent what it took

to defeat Al Gore” in 2000, Supp. App. 694sa (Kollar-Kotelly)

(quoting LaPierre testimony)—illustrates the ease with

which Section 441b was circumvented by corporations and

unions. One advertisement was paid for by the NRA’s PAC

and the other by the NRA’s general treasury. Both advertisements clearly identify Al Gore, are nearly identical in
82

their content, and would in all likelihood have the same

influence on the Presidential election in the districts in which

the advertisements were run. The only significant difference

between the advertisements is that the tag line at the end of

the advertisement paid for by the PAC says “Vote George

W. Bush for President.” Id. at 695sa-696sa (comparison).36

ii. The express-advocacy test is not only easy to

circumvent, but it does not accurately identify communications designed to affect candidate elections. Even when

they are overtly designed for electioneering, “the overwhelming majority of modern campaign advertisements do

not use words of express advocacy, whether they are financed by candidates, political parties, or other organizations.” Supp. App. 658sa (Kollar-Kotelly); see id. at 1296sa

(Leon) (“The record convincingly demonstrates that the

overwhelming majority of modern political advertisements

do not use words of express advocacy.”). Indeed, “[t]he uncontroverted testimony of political consultants demonstrates

that it is neither common nor effective to use the ‘magic

words’ of express advocacy in campaign advertisements.”

Id. at 659sa (Kollar-Kotelly); see also id. at 659sa-664sa (discussing evidence); id. at 808sa-809sa.

As one political consultant explained, “[i]n the modern

world of 30 second political advertisements, it is rarely advisable to use such clumsy words as ‘vote for’ or ‘vote

against.’ ” Supp. App. 809sa (Kollar-Kotelly) (quoting Bailey

Decl.) (J.A. 24)). The record confirms that observation by

 36 Numerous other examples are contained in the record and underscore the efforts of many of the plaintiffs in this case to circumvent the

express-advocacy test. See Supp. App. 678sa-685sa, 693sa-697sa (KollarKotelly) (discussing, inter alia, AFL-CIO’s and NRA’s use of issue advertisements to engage in electioneering). In addition, defendants filed a

video presentation in the district court that contains examples of

advertisements run in connection with recent elections and demonstrates

how advertisements that do not trigger the express-advocacy test may

nonetheless have virtually the same effect on an election.
83

showing that even candidates—who have no financial or regulatory incentive to do so—typically avoid express advocacy. “The unrebutted expert testimony demonstrates that

only 11.4 percent of advertisements purchased by federal

candidates that aired during the 2000 election cycle would

qualify as electioneering under the ‘magic words’ test.” Id.

at 808sa (Kollar-Kotelly). Present and former office-holders

and candidates likewise confirmed that the express-advocacy

test, as one Senator put it, “has no real bearing in today’s

world of campaign ads.” Id. at 665sa (quoting 147 Cong. Rec.

S3036 (daily ed. Mar. 28, 2001) (statement of Sen. McCain));

see id. at 665sa-668sa, 813sa-814sa.

Accordingly, prior to BCRA, federal law (2 U.S.C. 441b)

prohibited corporations and unions from using their general

treasury funds to pay for electioneering advertisements that

contained express advocacy, but left them free to spend their

treasuries on electioneering advertisements that are considered by candidates and political consultants to be if

anything more effective in influencing elections because they

do not contain express advocacy. As discussed above, corporations and unions not only have taken note of that loophole,

but they have in each of the past few federal election cycles

funneled increasing amounts of their general treasury funds

into federal elections through that loophole.

iii. The record establishes that federal office-holders and

candidates are aware of and feel indebted to corporations

and unions that finance electioneering advertisements on

their behalf or against their opponents. See Supp. App.

836sa-837sa (Kollar-Kotelly). For example, the evidence

shows that “Members of Congress seek to have corporations

and unions run these advertisements on their behalf ”; “corporations and labor unions target[] particular federal candidates or their opponents” for electioneering advertisements;

and “candidates are very appreciative of the additional

electioneering support provided on their behalf from the
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general treasuries of corporations and labor unions.” Id. at

837sa-838sa; see also id. at 708sa-719sa (discussing evidence).

Former officer-holders and candidates confirmed that they

“are very aware of who ran advertisements on their behalf

and feel indebted to those who spend money to help get

them elected.” Id. at 711sa.37

Equally problematic is the specter of corruption associated with such advertisements. “[A] large majority of

Americans (80%) are of the view that corporations and other

organizations that engage in electioneering communications,

which benefit specific elected officials, receive special consideration from those officials when matters arise that affect

these [entities].” Supp. App. 837sa (Kollar-Kotelly); see id.

at 713sa-714sa (discussing record).

c. Congress responded to those phenomena by enacting

Title II of BCRA. See Supp. App. 482sa-483sa & n.1 (KollarKotelly) (legislative history of BCRA); id. at 674sa-675sa.

As discussed above, Title II adjusted the longstanding

prohibition on the use of corporate and union general treasury funds in connection with a federal election to cover

“electioneering communications,” as defined in BCRA § 201,

that in all likelihood, based on the presence of certain objective factors, will affect the outcome of federal elections, even

if they do not contain particular words of express advocacy.

BCRA § 203; FECA § 316(b)(2); 2 U.S.C. 441b(b)(2). BCRA

left in place the FECA provisions that permit a corporation

and labor union to establish a separate segregated fund,

which in turn may make contributions and independent expenditures and, in particular, pay for “electioneering communications.” Congress also updated the disclosure requirements for entities that make electioneering communications

 37 See also Defs.’ D. Ct. Opening Br. 41-42, 45 (discussing evidence

showing that certain organizations sought credit from Members of

Congress for broadcasting election-related advertisements).
85

and individuals or entities that contribute to such entities, so

that the electorate will know what interests are funding

which candidates and will be able to make more informed

predictions about future performance. See Part II.D, infra.

B. BCRA’s Source Limitation On Electioneering Communications Is Narrowly Tailored To Advance Public

Interests That This Court Has Repeatedly Recognized As Compelling

This Court has held that “independent campaign expenditures constitute ‘political expression’ ” entitled to the

highest constitutional protection. Austin, 494 U.S. at 657.

In reviewing plaintiffs’ challenge to the constitutionality of

BCRA’s electioneering-communications provisions, the

Court must therefore decide whether those provisions are

narrowly tailored to advance a compelling government interest. See id. at 658-661. This Court’s prior precedents bear

strongly on that determination.

The Court has repeatedly recognized that by limiting electioneering activity to a separate segregated fund, the

campaign-finance laws by no means impose a “complete ban”

on such activity. Beaumont, 123 S. Ct. at 2211; see Austin,

494 U.S. at 660. Moreover, Austin and MCFL, discussed

supra, establish that the existing prohibition in Section 441b

on the direct funding of corporate and union independent

expenditures in connection with federal elections—including

for express advocacy—passes strict scrutiny for non-MCFL

corporations. Congress’s adjustment of Section 441b to

cover corporate or union disbursements for “electioneering

communications” that meet BCRA’s primary definition—

political activity entitled to no more protection under the

First Amendment than the expenditures long regulated by

that provision—passes strict scrutiny too. Indeed, the record

compiled in this case supporting Congress’s judgment with

respect to the need for that limitation dwarfs the showing
86

that this Court found sufficient in upholding the source

limitation on expenditures in Austin. See 494 U.S. at 660.

1. BCRA’s Electioneering-Communications Provisions Advance Several Compelling Government

Interests

a. The Court has long recognized that the interest in

protecting federal elections from real or apparent corruption

is “of the highest importance.” First Nat’l Bank v. Bellotti,

435 U.S. 765, 788-789 (1978); see id. at 788 n.26 (“The

importance of the governmental interest in preventing

[corruption] has never been doubted.”); NCPAC, 470 U.S. at

496-497 (“preventing corruption or the appearance of corruption are * * * compelling government interests”); Buckley, 424 U.S. at 27. Such corruption “directly implicate[s] the

‘integrity of our electoral process,’ ” NRWC, 459 U.S. at 208

(quoting UAW, 352 U.S. at 570), and thus strikes at the

foundation of American democracy.

BCRA’s source-of-funding limitation on electioneering

communications protects against the same “type of corruption” that this Court identified in Austin—i.e., “the corrosive

and distorting effects of immense aggregations of wealth

that are accumulated with the help of the corporate form and

that have little or no correlation to the public’s support for

the corporation’s political ideas.” 494 U.S. at 660; see ibid.

(“[T]he unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit

on independent expenditures”). In addition, the government

has a related but equally important interest in “protect[ing]

the individuals who have paid money into a corporation or

union for purposes other than the support of candidates from

having that money used to support political candidates to

whom they may be opposed.” NRWC, 459 U.S. at 208; see

Austin, 494 U.S. at 660; Beaumont, 123 S. Ct. at 2206.
87

In Austin, this Court held that a State’s effort to address

those forms of corruption supplied “a sufficiently compelling

rationale to support its restriction on independent expenditures by corporations,” emphasizing that “[c]orporate wealth

can unfairly influence elections when it is deployed in the

form of independent expenditures, just as it can when it

assumes the guise of political contributions.” 494 U.S. at 660.

BCRA’s source limitation on the financing of electioneering

communications directly advances the same “compelling”

interest identified in Austin by requiring corporations and

unions to finance electioneering communications through a

separate segregated fund that consists of contributions from

individuals who choose to fund such political activity, as

opposed to general treasury funds that are accumulated as a

result of the benefits of the corporate form and may or may

not correlate with public support for the corporation’s or

union’s political activity. See id. at 660-661.

The NRA argues (Br. 20) that “[t]he specific danger

identified in Austin * * * has no application to speech by

nonprofit membership organizations that are devoted to the

advancement of specific rights and ideas and are funded

almost exclusively by the dues and donations of individual

members.” That argument, however, is fully answered by

this Court’s decision to exempt MCFL corporations, but only

MCFL corporations, from Section 441b’s corporate expenditure restrictions. In Austin, this Court rejected the

argument that the rationale of MCFL should be extended to

nonprofit corporations that do not share MCFL’s “crucial

features,” let alone to traditional for-profit corporations. 494

U.S. at 662.

In another case, the NRA successfully contended that it

qualified as an MCFL corporation in certain years, while the

FEC took a different view. See FEC v. National Rifle

Ass’n, 254 F.3d 173, 192 (D.C. Cir. 2001). This wide-ranging

case is hardly a proper vehicle for the Court to resolve that
88

entity-specific issue. Suffice it to say that if the NRA can

demonstrate that it is an MCFL corporation, then its concerns about applicability of Austin’s distortion rationale to it

will be addressed. But, in any event, especially in light of the

potential availability of MCFL’s safe harbor, those concerns

provide no basis for invalidating BCRA’s electioneeringcommunication provisions on their face.38

b. The Court has stressed that the government also has a

compelling interest in insulating federal elections from the

type of corruption arising from the real or apparent creation

of political debts. See NRWC, 459 U.S. at 207-208. The

Court has repeatedly recognized that that interest is directly

served by Section 441b’s limitation on corporate and union

campaign contributions. See Beaumont, 123 S. Ct. at 2207;

NRWC, 459 U.S. at 207. In NCPAC, the Court held that the

danger of such real or apparent quid pro quo corruption was

not sufficient to justify a limit on independent expenditures

that applied, inter alia, to unincorporated groups and to

PACs not connected to a corporation. See 470 U.S. at 496,

500-501; see id. at 496 (recognizing that Court did not “need

to reach * * * the question whether a corporation can constitutionally be restricted in making independent expenditures to influence elections for public office”). In Austin,

however, this Court specifically recognized “that a legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections.” 494 U.S. at 659

(emphasis added); see Bellotti, 435 U.S. at 788 n.26.

 38 The NRA itself agreed in the district court to “stay any as-applied

challenge [it] had against BCRA under MCFL until the Supreme Court

resolved the merits of Plaintiffs’ challenge to BCRA.” Supp. App. 833sa

(Kollar-Kotelly). Any nonprofit corporation, especially the NRA in light

of its agreement, that believes it is entitled to exemption under MCFL

should be required to litigate that claim on an as-applied basis in a

different case if the FEC disputes the issue. See id. at 871sa.
89

Although the Court did not need to reach the issue in

Austin, see 494 U.S. at 659-660, and it need not do so here in

light of the fact that Title II of BCRA directly advances the

government’s compelling interest in eliminating the specific

type of corruption identified and relied on in Austin, the

record in this case nonetheless demonstrates a sufficient risk

of real or apparent quid pro quo corruption to justify

Congress’s judgment that corporations and unions should be

prevented from using general treasury funds to finance

“electioneering communications.” See Supp. App. 835sa

(Kollar-Kotelly) (“The record powerfully demonstrates that

electioneering communications paid for with the general

treasury funds of labor unions and corporations endears

those entities to elected officials in a way that could be

perceived by the public as corrupting.”); id. at 708sa-718sa,

835sa-838sa; id. at 1161sa-1162sa & n.117 (Leon) (reaching

same conclusion); pp. 83-84, supra.

NRA states that “gratitude for political support is not

corruption.” NRA Br. 17 (heading); see id. at 17-19. But

gratitude for political support in the form of contributions

directly from a corporate or union treasury has long been

viewed as corruption, as has gratitude for political support in

other forms. See Part I.A, supra. The record in this case

confirms Congress’s judgment that further adjustment of

Section 441b was needed to eliminate the fact or expectation

of a candidate’s political indebtedness stemming from the

use of corporate and union treasury funds to broadcast

electioneering communications clearly targeted to support a

particular candidate or attack his opponent. Even the appearance of such corruption is sufficient to justify Congress’s

enactment of Title II, regardless of whether federal officeholders who have benefitted from those advertisements in

fact have responded with political favors.

c. Finally, the government has a compelling interest in

preventing the circumvention of existing statutory limits.
90

See Beaumont, 123 S. Ct. at 2207; Colorado II, 533 U.S. at

457; California Med. Ass’n, 453 U.S. at 198-199. As discussed above, despite the longstanding federal policy against

the use of corporate and union general treasury funds to

influence federal elections, corporations and unions have

poured hundreds of millions of dollars into federal elections

since at least 1996 in the form of broadcast advertisements

that do not trigger Buckley’s express-advocacy requirement

but nonetheless have essentially the same influence on

elections as advertisements whose direct funding would be

proscribed by Section 441b if they contained the requisite

words of express advocacy. See pp. 80-82, supra.

Congress’s compelling interest in preventing the evasion

of existing limits is all the more compelling when, as here,

the record demonstrates that those limits are practically

illusory and other political actors have demonstrated that

the preexisting limits no longer accurately delimit core

electioneering expenditures. In light of the hundreds of

millions of dollars spent by corporations and unions on advertisements virtually indistinguishable from electioneering

advertisements funded by candidates themselves, see pp. 82-

83, supra, Congress clearly needed to update the limits on

corporate and union expenditures to prevent the evasion of

the longstanding policy embodied in Section 441b.

2. BCRA’s Electioneering-Communications Provisions Are Narrowly Tailored To Advance A

Compelling Government Interest

BCRA’s source-of-funding limitation on “electioneering

communications,” as defined in BCRA § 201, is narrowly

tailored to achieve the compelling government interests discussed above. Indeed, here, as in Austin, that source limitation on expenditures is carefully “targeted” to eliminate the

particular threats of corruption and circumvention to which

the limitation is aimed, and yet still allows corporations and
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unions “to express their political views” in the form of electioneering communications through a separate segregated

fund. 494 U.S. at 660. Any contrary conclusion would

impose an unattainable legislative burden on Congress in

seeking to close the enormous loophole discussed above, see

pp. 80-82, supra, the existence of which is not even controverted by plaintiffs.

a. BCRA’s primary definition of “electioneering communications” (§ 201) is clear and objective. An advertisement falls within the definition only if it satisfies four

criteria. First, it must be distributed by broadcast, cable, or

satellite—i.e., television or radio. Second, it must refer to “a

clearly identified candidate for Federal office.” Third, it

must be distributed within 60 days before a general election

or 30 days before a primary election. Fourth, it must be

“targeted” to the identified candidate’s electorate, i.e., the

advertisement must reach at least 50,000 voters in the

relevant district or State in an election for the House of

Representatives or the Senate. See BCRA § 201(a); FECA

§ 304(f)(3)(A).39

In defining the “electioneering communications” subject

to BCRA’s source limitation, Congress thus established a

bright-line, readily administrable test that avoids the pitfalls

that this Court identified in Buckley. See 424 U.S. at 42-43

(discussing the problems in attempting to distinguish between advertisements based on subjective and manipulable

inquiries such as the intent of speakers or understanding of

listeners). The remarkable clarity of that definition is

exemplified by the fact that, notwithstanding the numerous

challenges raised in this litigation, none of the plaintiffs has

 39 In addition, Congress further narrowed the definition of “electioneering communications” by explicitly exempting certain additional

communications, including those appearing within a news story or editorial. See BCRA § 201(a); FECA § 304(f)(3)(B); see also Supp. App. 841sa843sa (Kollar-Kotelly).
92

seriously argued that the primary definition of electioneering communications is in any way vague. See Supp. App.

800sa (Kollar-Kotelly); id. at 801sa-803sa.

As explained below, in challenging the primary definition

of “electioneering communications,” plaintiffs attempt to

show that the definition captures at least some so-called

“genuine” issue advertisements that—even though they

clearly identify a federal candidate and are broadcast in the

time frame and place in which they are most likely to influence a candidate’s election—purportedly are not designed

to influence electoral outcomes. That challenge fails, for the

reasons explained below. At the outset, however, it is

significant to note that because of the exceptional clarity of

the lines drawn by BCRA’s primary definition, any entity

truly not interested in airing electioneering communications

may easily avoid the source limitation on such communications by simply not referring to a candidate for federal

office, running the advertisement outside the 30- or 60-day

window, or running the advertisement outside the candidate’s district. The clarity with which Congress defined

“electioneering communications” therefore itself has considerable constitutional virtue from the standpoint of entities

interested in communicating only about genuine issues, and

not in influencing the election of particular candidates.

b. Congress—whose Members are the central participants in the scheme regulated by BCRA—is uniquely positioned to identify the factors that separate communications

that are intended to influence the outcome of their elections

and communications that are simply intended to promote

debate on particular issues. BCRA’s objective factors are

each carefully calibrated to prevent corporations and unions

from circumventing Section 441b’s source prohibition on

election-related expenditures by using general treasury

funds to broadcast advertisements that do not trigger the

express-advocacy test but nonetheless will in all likelihood
93

have the effect of influencing federal candidate elections.

While “genuine” issue advocacy can readily be accomplished

in a manner that does not trigger Title II of BCRA, BCRA

§ 201’s definition makes it very difficult for “sham” issue

advocacy to circumvent Title II.

i. BCRA § 201’s definition of “electioneering communications” is limited to advertisements distributed by

broadcast, cable, or satellite (i.e., television and radio). The

record demonstrates that those media are the most common

media in which advertisements seeking to influence elections

have been distributed by corporations and unions because

those media reach the largest audience and are considered to

be the most effective means of communicating an electioneering message. See Supp. App. 736sa-743sa (KollarKotelly). As one political communications consultant testified, “among the various media outlets ‘for conveying [the

NRA’s] message, the most powerful is the use of “paid

broadcast media,” which simply refers to paid media that is

broadcast over network, cable, or satellite television, or over

radio.’ ” Id. at 739sa (McQueen Decl.).

ii. The definition applies only to advertisements that

refer to “a clearly identified candidate for Federal office.”

Not surprisingly, the unrebutted evidence shows that “most

advertisements designed to influence federal elections refer

to a federal candidate.” Supp. App. 847sa & n.129 (KollarKotelly); see id. at 719sa-725sa, 845sa-846sa. Federal officeholders confirmed that fact. Id. at 668sa. Conversely, the

uncontroverted evidence also shows that it is not necessary

to refer to “specific candidates for federal office in order to

create effective [issue] ads.’ ” Id. at 846sa (Bailey Decl.) (J.A.

26). Furthermore, an advertisement that clearly refers to a

candidate for federal office, as opposed to one that simply

discusses an issue (without referring to a candidate), creates

a greater risk of an appearance of corruption because the

public is more likely to perceive that a candidate will become
94

indebted to a corporation or union that buys advertising that

clearly identifies him or his opponent.

iii. The timing requirement is also directly tied to Congress’s objective of capturing advertisements that are likely

to influence the outcome of federal elections. The record

“overwhelmingly demonstrate[s] the appropriateness of

BCRA’s sixty and thirty day benchmarks,” and confirms

with remarkable clarity the common-sense conclusion “that

issue advertisements aimed at influencing federal elections

are aired in the period right before an election.” Supp. App.

725sa-728sa, 847sa-848sa (Kollar-Kotelly) (discussing evidence); see id. at 851sa (“The sixty and thirty-day figures are

not arbitrary numbers selected by Congress, but appropriate time periods tied to empirically verifiable data.”).

iv. The definition of “electioneering communications” is

further tailored by focusing only on advertisements that are

targeted to the relevant electorate of the candidate identified in the advertisement. In particular, with respect to

advertisements run in connection with elections for the

House of Representative and the Senate, an advertisement

that mentions a candidate and is run in the period before the

election does not constitute an “electioneering communication” unless 50,000 or more individuals in the candidate’s

district or State may receive the communication. See BCRA

§ 201(a); FECA § 304(f )(3)(C); 2 U.S.C. 434(f )(3)(C). That

criterion, too, is significant because, as Judge Kollar-Kotelly

explained, “[b]roadcast advertisements that target substantial portions of the electorate who decide a candidate’s

political future are those most likely to influence an election,

and earn the candidate’s gratitude.” Supp. App. 854sa.

c. In short, BCRA’s primary definition of “electioneering

communications” targets advertisements that are run in the

most effective communications media for reaching voters

(broadcast); are clearly associated with a particular federal

candidate (by identifying a candidate or his opponent); and
95

are run during the period and in the place where they are

most likely to be perceived by voters and candidates as

relating to an upcoming candidate election (shortly before

the election and in the candidate’s own district). So, for

example, the NRA can freely finance anywhere and anytime

broadcast advertisements trumpeting the Second Amendment that do not refer to a particular candidate; it can freely

complain about a particular Senator’s crusade against gun

rights without limitation in election cycles in which he does

not stand for reelection and in 49 States even when he does

run; and if it wants to complain about the Senator to his

voters in the critical days before his election in a broadcast

advertisement, it still may do so—it simply must act through

a separate segregated fund.40

Zeroing in on advertisements that meet BCRA § 201’s

criteria directly advances each of the compelling government

interests discussed above. First, it prevents corporations

from deploying funds amassed with the benefit of the corporate form to broadcast advertisements that are designed

to or will influence candidate elections, but yet do not necessarily correlate with public support for the corporation’s

political ideas. Second, it eliminates the danger—demonstrated by the record in this case—that candidates who

benefit from advertisements that clearly identify them or

their opponents and that are run at the most critical

junctures of their campaigns will become indebted to the

corporations and unions that pay for those advertisements,

or that the public will perceive such indebtedness. Third, it

prevents corporations and unions from circumventing the

federal policy embodied in Section 441b by funding adver-

 40 In addition, the NRA may run print advertisements, send direct

mail, or use phone banks to target a particular candidate in the days

before an election in his district without even having to take the minimal

step of using a separate segregated fund.
96

tisements that do not contain express advocacy but yet are

virtually indistinguishable from most candidate-funded advertisements and thus presumably are designed to have the

same influence on the election of candidates.

Because BCRA’s source limitation on “electioneering

communications” (BCRA § 201) is narrowly tailored to advance a compelling government interest, it is constitutional.

In at least two important respects, that conclusion follows

directly from this Court’s precedents. First, this Court has

held that a general prohibition on the use of a corporation’s

general treasury funds to make political expenditures survives strict scrutiny. The expenditures at issue in this case

are entitled to no greater protection than the expenditures

at issue in Austin, and the record demonstrating the need to

limit those expenditures is much stronger here than in

Austin. Second, this Court has recognized that Section 441b

may be applied to corporate and union spending on advertisements that are intended to influence federal elections if

they expressly advocate for or against a candidate. BCRA

§ 201’s definition of “electioneering communications” is carefully calculated to regulate candidate-centered advertisements that are likely to have the same effect on the outcome

of federal candidate elections but just avoid the magic words.

C. Plaintiffs’ Challenges To BCRA’s Source-Of-Funding

Limitation Should Be Rejected

Neither plaintiffs nor the district court has provided any

reason for this Court to reach a different conclusion in

reviewing BCRA’s source-of-funding limitation on electioneering communications.
97

1. BCRA’s Source-Of-Funding Limitation On Electioneering Communications Does Not “Ban”

Any Speech Whatever

a. In attacking Title II, plaintiffs greatly exaggerate its

effect, going so far as to argue that BCRA’s source limitation

on the funding of electioneering communications actually

“bans” speech. NRA Br. 3; ACLU Br. 2-3; see also

McConnell Br. 38 (“draconian restrictions”); Business Pls.

Br. 5 (“sweeping ban”). As the district court recognized,

that argument is refuted by this Court’s decisions. See

Supp. App. 62sa (per curiam). As this Court reiterated in

June, Section 441b—which Congress amended in enacting

Title II of BCRA—does not “ban” any speech, but instead

merely limits the manner in which a corporation or labor

union may finance certain speech. See Beaumont, 123 S. Ct.

at 2211 (“NCRL is simply wrong in characterizing § 441b as

a complete ban.”); accord Austin, 494 U.S. at 660; NRWC,

459 U.S. at 201; MCFL, 479 U.S. at 255; Pipefitters, 407 U.S.

at 416-418. Thus, to be clear, corporations and labor unions

are “free to fund as many [electioneering communications

covered by BCRA § 201] as they desire from their separate

segregated fund.” Supp. App. 792sa n.113 (Kollar-Kotelly).41

 41 The Business Plaintiffs proclaim (Br. 5) that, “[i]ncredibly, BCRA

would forbid corporations to so much as mention President Bush, Vice

President Cheney, or their Democratic rivals in broadcasts on the major

television or radio stations in Washington, D.C., New York City, St. Louis,

Chicago, and elsewhere during much of 2004!” In fact, the Business

Plaintiffs may air all the electioneering communications that they would

like during 2004 or any other election cycle by simply establishing a

separate segregated fund and financing the communications with money

from that fund as opposed to their general treasuries. In addition, the

FEC has promulgated a regulation providing that the geographic and time

limits of BCRA § 201 apply separately leading up to presidential primaries

in each individual State. 11 C.F.R. 100.29(b)(3)(ii). And of course, under

FECA, the Business Plaintiffs have for decades been required to fund

advertisements that expressly advocate for a candidate through a PAC.
98

As this Court recognized in Beaumont, 123 S. Ct. at 2203,

although it must register and disclose its activities, such a

separate segregated fund, or PAC, “may be wholly controlled by the sponsoring corporation, whose employees and

stockholders or members generally may be solicited for contributions.” 123 S. Ct. at 2203-2204; see NRWC, 459 U.S. at

200 n.4, 201. Moreover, far from simply requiring “an act of

institutional ventriloquism,” NRA Br. 25, “[t]he PAC option

allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or

members, and it lets the government regulate campaign activity through registration and disclosure without jeopardizing the associational rights of advocacy organizations’

members.” Beaumont, 123 S. Ct. at 2211 (citations omitted);

see also California Med. Ass’n, 453 U.S. at 196.42

b. The NRA argues (Br. 25) that requiring it “to speak

through its PAC will necessarily reduce the collective voice

of its four million members to a whisper.” But the NRA is

free to solicit funds from its members, see 2 U.S.C.

441b(b)(4)(C); this Court has recognized that nonprofit

advocacy organizations such as the NRA are quite adept in

amassing such funds, see Beaumont, 123 S. Ct. at 2209-2210

& n.6; and, indeed, in 2000, the NRA’s separate segregated

fund spent almost $17 million to influence federal elections. See <<http://www.fec.gov/press/053101pacfund/tables/

pacdis00.htm.>>; see also NCPAC, 470 U.S. at 493 (discussing influence of other nonprofit PACs). Nor, as plaintiffs

suggest, can the costs of establishing a separate segregated

 42 What is more, corporations that meet the requirements of the

exception established by this Court in MCFL (see 479 U.S. at 263-264)

may engage in unlimited independent spending in connection with federal

elections—including with respect to making electioneering communications—without even having to form and operate through a separate

segregated fund. See p. 77, supra.
99

fund be overstated, as not just the NRA but every nonprofit

corporation whose challenge this Court has reviewed,

including MCFL, has established such a fund.

Moreover, organizations such as the NRA should not be

allowed to have it both ways. If they are really so pervasively political that the establishment of a separate segregated fund would be superfluous, then contributions to an

expressly political fund will not dry up and reduce their

voice to a “whisper.” NRA Br. 25. To the extent that the

members of an organization such as the NRA decline to contribute money to a separate fund devoted to electioneering

activities, that only underscores that some members may

look to the organization for non-political benefits and thus

highlights the concern—which the Court reiterated in

Beaumont—that some corporations may seek to exploit the

advantages of the corporate form and amass wealth for the

purpose of exerting political influence that is “quite possibly

at odds with the sentiments of some shareholders or

members.” 123 S. Ct. at 2211.

c. In addition to the option of acting through a separate

segregated fund, individuals who are affiliated with corporations or labor unions remain free to use their own funds for

electioneering communications. Cf. Beaumont, 123 S. Ct. at

2210 n.8 (“A ban on direct corporate contributions leaves

individual members of corporations free to make their own

contributions, and deprives the public of little or no material

information.”). The “First Amendment speech and association interests” of corporations and labor unions “are derived

largely from those of their members and of the public in

receiving information.” Ibid. (citing NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449, 458-459 (1958), and Bellotti, 435

U.S. at 777). The First Amendment interests of corporations

and labor unions to finance electioneering communications

from funds amassed in their general coffers are thus

necessarily limited by the fact that the individuals who own
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and operate those entities are free to fund and otherwise

engage in such speech without restriction.

In a similar vein, this Court has observed that, “[i]n

return for the special advantages that the State confers on

the corporate form, individuals acting jointly through corporations forgo some of the rights they have as individuals.”

NCPAC, 470 U.S. at 495. The Court in this case should

reject plaintiffs’ demands that they are in effect entitled

under the Constitution to the best of both worlds—the

special advantages of the corporate form, plus the freedom

to finance electioneering communications without having to

take the minimal—but for the sake of preventing corruption

vital—step of doing so through a separate segregated fund.

d. Finally, the separate segregated fund option reinforces the narrow tailoring of BCRA’s limitations on funding

“electioneering communications” in yet another dimension.

To the extent that corporate or union funds are spent on

electioneering communications, there is a legitimate interest

in public disclosure of the individuals who are behind that

electioneering activity. Requiring disclosure of a corporation’s—and especially a nonprofit organization’s—membership list, however, risks associational freedoms. Accordingly, as this Court in Beaumont recognized, the use of

separate segregated funds furthers associational freedoms

by allowing for disclosure of the funding sources of political

activity without necessitating disclosure of an organization’s

underlying membership. See 123 S. Ct. at 2211. Indeed,

many nonprofit corporations would presumably voluntarily

adopt an arrangement similar to the separate segregated

fund to protect their members’ associational interests. That

fact only underscores that the costs of a segregated-fund

option are minimal and the option to operate through such a

fund is a uniquely tailored response to the challenges of

regulating corporate and union electioneering.
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2. Neither Buckley Nor MCFL Adopted The

Express-Advocacy Test As An Absolute Limit On

Congress’s Authority

Plaintiffs suggest that Buckley and MCFL erected an

inalterable First Amendment rule “that the government

may constitutionally regulate only independent expenditures

for speech expressly advocating the election or defeat of a

candidate, known as ‘express advocacy.’ ” McConnell Br. 40;

see id. at 12, 40-45; ACLU Br. 25-33. The district court

properly rejected that argument. See Supp. App. 782sa,

788sa-799sa (Kollar-Kotelly); id. at 1147sa (Leon).

Certainly nothing in Buckley imposes such a categorical

constitutional restraint on Congress’s “well-established”

authority to regulate federal elections. 424 U.S. at 13. In

adopting an express-advocacy requirement, the Court in

Buckley was not expounding on such first principles; it was

resolving plaintiffs’ argument that the use in former 18

U.S.C. 608(e)(1) (Supp. IV 1974) of the phrase “relative to”

was “unconstitutionally vague.” 424 U.S. at 40-41.

In the key passage of the opinion, the Court explained

that “[t]he use of so indefinite a phrase as ‘relative to’ a

candidate fails to clearly mark the boundary between permissible and impermissible speech.” Buckley, 424 U.S. at 41.

After concluding from the statutory context that “the phrase

‘relative to’ a candidate [should] be read to mean ‘advocating

the election or defeat of ’ a candidate,” the Court observed

that the distinction drawn by the statute “between discussion of issues and candidates and advocacy of election or

defeat of candidates may often dissolve in practical application.” Id. at 42. Therefore, “in order to preserve the provision against invalidation on vagueness grounds,” the Court

held that “§ 608(e)(1) must be construed to apply only to

expenditures for communications that in express terms

advocate the election or defeat of a clearly identified candidate for federal office.” Id. at 44 (emphasis added). In an
102

accompanying footnote, the Court further opined that “[t]his

construction would restrict application of § 608(e)(1) to

communications containing [certain specified] express words

of advocacy.” Id. at 44 n.52.

MCFL confirms that reading of Buckley. In that case, the

Court was required to construe the meaning of Section

441b’s “definition of an expenditure,” and in particular “the

phrase ‘to any candidate . . . in connection with any

election.’ ” 479 U.S. at 248. Relying on Buckley, the plaintiff

argued that that definition “necessarily incorporate[d] the

requirement that a communication ‘expressly advocate’ the

election of candidates.” Ibid. The Court agreed with the

plaintiff that Section 441b’s definition of expenditure

“require[d] a similar construction” as the similar phrase at

issue in Buckley. Id. at 249 (emphasis added). But here

again, in adopting that “construction,” the Court in no way

laid down the express-advocacy requirement as an absolute

constitutional barrier on how far Congress may go in

regulating such expenditures when, as in BCRA, it chooses

to do so in more specific terms.

When the Court adopts a saving construction of a statute

that is amenable to such a construction, the Court by no

means forecloses Congress from devising a different or more

carefully targeted legislative solution to a problem. Cf.

United States v. Thirty-Seven Photographs, 402 U.S. 363,

374 (1971) (plurality). Indeed, the whole point of the avoidance canon is that it avoids the need to fix the constitutional

line definitively in circumstances in which Congress may not

have intended to implicate a constitutional question. If

Congress later clarifies its intent, then, and only then, is the

constitutional issue ripe for adjudication. That is particularly true when, as here, Congress revisits an area to devise

a solution to a problem that has developed in the decades

since this Court adopted a saving construction of a different

statutory provision in a prior case.
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At the same time, it would be bizarre to conclude that the

Constitution permits Congress to prohibit the use of corporate or union general treasury funds for electioneering advertisements, but that the only standard that it can constitutionally use (express advocacy) is one that misses the vast

majority (88.6 percent) of advertisements that candidates

themselves use for electioneering. See pp. 82-83, supra.

That uncontroverted evidence strongly indicates that express advocacy is not an accurate proxy for identifying

advertisements that are designed to influence elections or

will have that effect, much less a standard that—as plaintiffs

argue—is constitutionally enshrined. More to the point,

nothing in Buckley or MCFL consigns Congress—or this

Court—to such an impractical and inflexible constitutional

rule.

3. The Primary Definition Of “Electioneering Communications” Is Not Overbroad

Plaintiffs argue that BCRA’s primary definition of “electioneering communications” is unconstitutionally overbroad.

See McConnell Br. 50; NRA Br. 33. But to the extent that

the doctrine of overbreadth applies at all in the circumstances here, plaintiffs have not met the heavy burden necessary to justify facial invalidation of Title II.

a. “[O]verbreadth is an exception to [the] normal rule

regarding the standards for facial challenges,” which the

Court has provided “out of concern that the threat of

enforcement may deter or ‘chill’ constitutionally protected

speech.” Virginia v. Hicks, 123 S. Ct. 2191, 2196 (2003); see

Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). While,

when properly applied, the overbreadth doctrine ensures

First Amendment breathing room, the Court has stressed

that its application also imposes “substantial societal costs.”

Hicks, 123 S. Ct. at 2197. For example, overbreadth challenges may “block[] application of a law to constitutionally
104

unprotected speech,” ibid., and considering a statute’s hypothetical application to situations before they even arise can

lead to “unnecessary pronouncement on constitutional

issues,” United States v. Raines, 362 U.S. 17, 22 (1960).43

The Court accordingly has emphasized that “the overbreadth doctrine * * * is, manifestly, strong medicine,”

which “has been employed by the Court sparingly and only

as a last resort.” Broadrick, 413 U.S. at 613; see Hicks, 123

S. Ct. at 2196-2197; see Ashcroft v. ACLU, 535 U.S. 564, 584

(2002) (plurality); Hill v. Colorado, 530 U.S. 703, 731 (2000);

New York v. Ferber, 458 U.S. 747, 769 (1982). Overbreadth

challenges may succeed only on a showing that the law’s

overbreadth is “ ‘substantial,’ not only in an absolute sense,

but also relative to the scope of the law’s plainly legitimate

applications.” Hicks, 123 S. Ct. at 2197 (quoting Broadrick,

413 U.S. at 613) (emphasis added); see Ferber, 458 U.S. at

771. In addition, “[t]he overbreadth claimant bears the

burden of demonstrating, from the text of [the law] and from

actual fact, that [such] substantial overbreadth exists.”

Hicks, 123 S. Ct. at 2198 (internal quotation marks omitted).

While the overbreadth doctrine is rarely invoked to begin

with, this case is a particularly unusual candidate for its

“strong medicine.” In the typical overbreadth case, a statute

clearly prohibits a category of unprotected speech and the

concern is that that bar will chill protected speech. As

discussed above, however, Title II of BCRA does not ban

any speech; it simply limits the manner in which certain

 43 The hypothetical threat of criminal prosecution for violation of

BCRA’s source limit—to which plaintiffs repeatedly refer—is highly

remote. Criminal prosecutions for violation of the prohibition on independent expenditures under Section 441b are unusual and require proof of

a “knowing and willful” violation of the Act. 2 U.S.C. 437g(a)(5)(C). Plaintiffs have not cited any cases involving criminal prosecutions arising from

corporate or union expenditures since the FEC was given civil enforcement authority over such provisions. See 2 U.S.C. 437d, 437g.
105

political activity may be funded by corporations and unions.

See pp. 97-98, supra; Hill, 530 U.S. at 731 (rejecting overbreadth argument because, inter alia, the statute at issue

“simply does not ‘ban’ any messages, and likewise it does not

‘ban’ any signs, literature, or oral statements”). Similarly,

any alleged “chill” created by BCRA is much more remote

than in the usual overbreadth case. Title II does not silence

any speakers—or speech—but instead simply requires those

who desire to engage in certain speech to finance it through

a separate fund. Accordingly, plaintiffs’ reliance on the overbreadth doctrine is fundamentally misplaced at the outset.

b. In any event, plaintiffs have not come close to meeting

the heavy burden necessary to invalidate a statute for overbreadth. At most, plaintiffs—who have not submitted any

empirical studies of their own in this case and instead have

relied primarily on anecdotal evidence, Supp. App. 762sa

(Kollar-Kotelly)—have shown that BCRA’s definition of

“electioneering communications” may apply to “genuine” issue advertisements in a few “marginal applications.” Ferber,

458 U.S. at 770 n.25 (citation omitted). Plaintiffs have not,

however, shown that the definition is substantially overbroad—either in an “absolute sense,” or “relative to the

scope of the law’s plainly legitimate applications.” Hicks, 123

S. Ct. at 2197. Therefore, their overbreadth claim fails.

That conclusion follows naturally, if not necessarily, from

the fact that, as explained above, BCRA’s primary definition

of “electioneering communications” is narrowly tailored to

advance several different compelling government interests.

See Broadrick, 413 U.S. at 611-612 (overbreadth doctrine is

a “corollary” to the rule that a law that burdens protected

expression must be “narrowly drawn” to address

“compelling societal needs”). The fact that the narrowtailoring requirement has been met should eliminate any

basis for invalidating the statute on its face under the guise

of “overbreadth.” To the extent that the definition is not
106

perfectly tailored, the marginal applications that form the

basis of plaintiffs’ challenge arguably could be addressed on

an as-applied basis, where a court would at least have the

benefit of adjudicating the applicability of Title II to a concrete controversy.

c. The centerpiece of plaintiffs’ overbreadth challenge is

a post hoc analysis of a few advertisements that were broadcast before BCRA was enacted. See McConnell Br. 50-52;

AFL-CIO Br. 6; NRA Br. 36. That analysis, however,

depends on plaintiffs’ own post hoc account of the purpose

behind those advertisements. As discussed above, BCRA

establishes clear criteria to guide organizations that truly

seek to broadcast issue advertisements that are not disguised attempts to influence the election of federal candidates. The only basis for invalidating the statute on its face

for overbreadth would be to conclude that in a substantial

number of instances, organizations that seek to air legitimate

issue advertisements would be unable to do so without

triggering BCRA’s definition and, further, that having to

choose between airing such communications and funding

them through a PAC somehow would impose an unconstitutional chill on such speech. That conclusion is entirely

implausible. To avoid BCRA, an organization need only

refrain from identifying a federal candidate in an issue advertisement or avoid the narrow window before the candidate’s election or advertising in the candidate’s district.

Moreover, as discussed, this Court has recognized that the

separate segregated fund imposes only minimal—and permissible—burdens for non-MCFL corporations.

In any event, even accepting plaintiffs’ post hoc analysis,

the few examples that they have culled from hundreds of

political advertisements in the record spanning four different

election cycles, see J.A. 1399-1405 (Krasno/Sorauf Rep.), do

not begin to establish the requisite cloak of substantial

overbreadth. Moreover, when these advertisements are
107

examined within their electoral context, as is essential to

understanding their underlying objectives, Supp. App.

732sa-733sa (Kollar-Kotelly); id. at 1311sa-1312sa (Leon), it

is clear that even the most favorable examples that plaintiffs’

lawyers could locate fail to advance their overbreadth claim.

Even if plaintiffs’ account of the advertisements’ alleged

purpose were taken at face value, it would not alter the fact

that—based on the presence of the objective factors identified in BCRA § 201—the advertisements were just as likely

to influence the outcome of the candidate elections in connection with which they were run as advertisements containing

express advocacy.

For example, “Stabenow Death Tax,” sponsored by the

Michigan Chamber of Commerce, criticized then-Senate

candidate Debbie Stabenow for her past votes against repeal

of the estate tax. McConnell Br. 52, App. 3a. The advertisement ran from September 20, 2000, until a week before

election day, Goldstein Expert Report Exh. L (2000 database), in one of the most closely contested Senate races of

the year. Cook Political Report 85 (Oct. 25, 2000) (Cook

Report). It is implausible to suggest that the advertisement

was not likely or designed to influence the election.

Similarly, “Job,” AFL-CIO Br. 6, ran from September 14

to October 6, 2000, in the districts of a dozen or so Members

of Congress whose races were considered competitive by the

political handicappers—nine were labeled as “toss-ups.” J.A.

572-573 (Mitchell Decl., Exh. 1); Cook Report 42-43. The

advertisements criticized the targeted legislators for already

having voted in June 2000 “to block federal safety standards

that would help protect workers,” and culminated in a plea to

voters to tell the candidates that “[their] politics cause[]

pain.” Mitchell Decl., Exh. 141.

“No Two Way” criticized Representatives for voting in

1995 “with Newt Gingrich to cut college loans, while giving

tax breaks to the wealthy,” Mitchell Decl., Exh. 59, yet ran
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in September 1996, Mitchell Decl., Exhs. 1, 43-47, at the

height of the AFL-CIO’s advertising campaign to unseat the

Republican majority in the House of Representatives. See

Supp. App. 678sa-685sa (Kotelly); id. at 1316sa-1320sa

(Leon). Given that those broadcasts ran long after-the-fact

and at the height of hotly contested elections whose outcome

might determine control of Congress but not the outcome of

the particular legislative issues addressed, it is unimaginable

that the advertisements were not intended to or did not have

the effect of influencing candidate elections.

The NRA’s claim that its “infomercials” were not likely to

influence candidate elections does not square with the

record. Indeed, the NRA’s Executive Vice President,

Wayne La Pierre, declared that the NRA had “no more

important political objective” in 2000 than defeating Al Gore,

and that it “spent what it took” to achieve that objective.

LaPierre Dep. 84, 98; see also id. at 55, 85-86, 93-96, 101-113;

Supp. App. 693sa-697sa (Kollar-Kotelly); id. at 1324sa

(Leon). That objective is plain, for example, in “Tribute,”

NRA Br. 41 n.33, in which former NRA President Charlton

Heston declares that the NRA’s return “spells very serious

trouble for a man named Gore,” and defines the NRA’s

mission as “winning in November.” NRA App. 946-947; see

Supp. App. 752sa n.104 (Kollar-Kotelly).44

 44 The remaining broadcasts cited by the NRA include the March 2000

advertisements it ran in answer to televised remarks by President

Clinton. Those advertisements would not have been regulated under

BCRA because, as the NRA concedes, President Clinton was not a candidate for office in 2000. NRA Br. 38-39; see Supp. App. 748sa (KollarKotelly). The NRA also refers to its 1994 advertisements urging viewers

to “Call your congressman” to oppose President Clinton’s crime bill, and

those criticizing the Brady Bill (Br. 36-37), but offers no evidence that

these advertisements were broadcast within BCRA’s 30-or 60-day window. LaPierre Decl. ¶ 21; NRA App. 885-888; see Supp. App. 748sa

(Kollar-Kotelly). Likewise, “Banned in Canada” ran in 1999, when “no

election was looming,” NRA Br. 41-42 n.33, so it, too, would not have been
109

At the same time, a closer examination of the allegedly

“genuine” issue advertisements touted by plaintiffs simply

underscores the wisdom of the objective criteria selected by

Congress for defining the “electioneering communications”

subject to BCRA. As Judge Kollar-Kotelly explained,

although plaintiffs “rely on their own self-serving testimony

and self-selected advertisements they claim are pure issue

advertisements, * * * BCRA’s primary definition of electioneering communications presents an empirical test that

ignores this type of self-serving ex post facto rationalization

by focusing on purely objective criteria.” Supp. App. 745sa.

That is the test that Congress—whose Members are the

veterans of federal campaigns and thus are well aware of

what constitutes electioneering—determined was best.45

d. Plaintiffs erroneously assert that “defendants relied

almost exclusively on two reports by the Brennan Center for

Justice,” the Buying Time studies. McConnell Br. 53-54.

Although plaintiffs focus their attacks on Buying Time

studies, in fact the reports represent only a portion of the

evidence that was placed in the record to show that BCRA’s

primary definition of “electioneering communications” is

carefully targeted to capture issue advertisements that are

likely to influence the outcome of federal candidate elections.

Moreover, the Buying Time reports contain both (i) objective findings on matters such as when and where certain

advertisements were run in connection with recent federal

 subject to regulation under BCRA’s primary definition of “electioneering

communications.”

45 Underscoring the lengths to which plaintiffs have gone to try to

create an impression of overbreadth, the ACLU (Br. 11) cites the only

electioneering communication that it has ever sponsored, which, the district court found, “was clearly designed simply to provide the corporation

standing to challenge BCRA.” Supp. App. 748sa-751sa (Kollar-Kotelly);

see id. at 1368sa-1369sa (Leon).
110

elections, and (ii) a subjective analysis of the “genuine” or

“electioneering” purpose of certain advertisements.

As Judge Kollar-Kotelly explained, “much, if not all, of the

objective findings in the Buying Time reports have not been

undermined by Plaintiffs’ expert.” Supp. App. 856sa. For

example, plaintiffs did not challenge the objective conclusions in the Buying Time studies that use of the express

advocacy terminology or reference to a candidate outside the

60-day period before a general election is rare; that interest

group advertisements that identify candidates are concentrated toward the end of the election campaign; or that

such advertisements are overwhelmingly run in a small

number of competitive districts. See ibid.; Defs.’ D. Ct.

Reply Br. 69-71 (summarizing undisputed record facts).46

Rather, plaintiffs’ criticism of the Buying Time studies

has focused on the subjective aspect of the reports, which

sought to determine whether the purpose of advertisements

was to influence federal elections. That aspect of the Buying

Time studies is less telling than the objective findings on

which Congress based in part the criteria specified in BCRA

§ 201 because, as discussed, such an analysis does not answer

the more important question of whether, or to what extent,

BCRA’s definition of electioneering communications will impermissibly chill protected expression on a prospective basis.

See Supp. App. 858sa (Kollar-Kotelly) (The “subjective

nature of the effort of trying to capture mental impressions

 46 Plaintiffs contend that the district court “unanimously rejected the

conclusions of the Buying Time reports.” McConnell Br. 53 (emphasis in

original). In fact, however, Judge Kollar-Kotelly specifically emphasized

that plaintiffs had not controverted the “objective findings in the Buying

Time reports.” Supp. App. 856sa. Judge Leon also accepted many of the

studies’ objective findings, see id. at 1356sa-1359sa (discussing Goldstein

Expert Report, which was based on essentially the same database as

Buying Time studies), and found that even the subjective analysis of “the

Buying Time studies are entitled to some evidentiary weight.” Id. at

1154sa; see id. at 1339sa-1340sa.
111

of viewers” illustrates “why BCRA’s framers have used

objective criteria to define ‘electioneering communication.’ ”).

In any event, the subjective analysis in the Buying Time

reports ultimately bolsters the conclusion that BCRA’s

definition is not substantially overbroad. Indeed, using the

1998 formula, analysis of the data underlying the Buying

Time reports leads to the conclusion that only 6.1 percent of

genuine issue advertisements that aired in 1998 would have

been captured post hoc by BCRA § 201, and 3.14 percent of

genuine issue advertisements that aired in 2000. See Supp.

App. 1056sa-1057sa (Kollar-Kotelly).

The 1998 formula measures overbreadth in the “absolute

sense,” Hicks, 123 S. Ct. at 2197, in that it compares the

number of genuine issue advertisements broadcast that meet

BCRA’s definition (numerator) with the number of all

genuine issue advertisements aired in a calendar year

(denominator). The 2000 formula used in the Buying Time

studies uses the same numerator but compares it with the

number of all aired advertisements captured by BCRA’s

definition. Because the denominator in the 2000 formula

combines both genuine issue and electioneering advertisements run within 60 days of a general election, it results in a

calculation that may vary significantly depending on the

volume of electioneering advertisements in a calendar year.

See J.A. 1379-1384, 1395-1405 (Krasno/Sorauf Rep.); J.A.

1179 (Goldstein Rep.)

Plaintiffs assert that “defendants’ experts and the [Buying Time]’s authors now concede that the underlying data

[for the 1998 report] demonstrates that 14.7% of the ads that

would have been prohibited by BCRA were ‘genuine.’ ”

McConnell Br. 55. That figure, however, is based on the 2000

formula, which measures the percentage of advertisements

regulated by BCRA that are genuine, as opposed to the

more absolute comparison undertaken by the 1998 formula.

Using the 1998 formula, the 14.7 percent figure drops to
112

around six or seven percent of all genuine issue advertisements aired in the year 1998. A definition that captures only

six or seven percent of the genuine issue advertisements

broadcast in 1998 is not substantially overbroad.47

e. Plaintiffs argue that Title II is overbroad because it

does not expressly exempt “ ‘MCFL’ corporations.”

McConnell Br. 57; see NRA Br. 34-36 & n.29. BCRA § 204

(the Wellstone Amendment) applies the source limitation on

electioneering communications to nonprofit organizations

established under Section 501(c)(4) and Section 527(e)(1) of

the Internal Revenue Code. See BCRA §§ 203, 204; Supp.

 47 Plaintiffs argue that “if the data [in the 2000 report] had been

correctly analyzed, 17% of the ads that referred to candidates in the last

60 days of the 2000 campaign were ‘genuine’ issues ads.” McConnell Br.

56. That figure, however, was calculated by one of defendants’ experts at

a deposition based on an erroneous premise—that five of the six

advertisements in the year 2000 database which had been coded by the

authors of the Buying Time reports as “electioneering” should have been

recoded “genuine” (even though they had been originally coded “electioneering” by students). When the figure is calculated with the five

advertisements properly coded as “electioneering” rather than “genuine,”

the overbreadth figure is properly reduced to around two to three

percent. See Goldstein Cross-Exam. 144-145, 151-152, 160; Goldstein

Rebuttal Report 16. Moreover, as Judge Kollar-Kotelly explained, even

“accept[ing] the 17 percent figure as a valid metric for determining overbreadth,” it would not render the definition “substantially overbroad.”

Supp. App. 859sa-860sa. Rather, “any such impact of BCRA is substantially counterbalanced by the record in this case and the objective

empirical determinants related to these advertisements.” Id. at 860sa.

Plaintiffs also argue that, in the 1998 report, certain advertisements

were improperly recoded by the authors as “electioneering,” and that if

those advertisements had not been recoded, the 1998 report would have

concluded (using the 2000 formula) that “64% of ads mentioning a candidate in the 60 days before the 1998 general election were coded by

students as ‘genuine.’ ” McConnell Br. 56. The advertisements at issue,

however, were recoded to account for the fact that the students had given

internally inconsistent responses with respect to the advertisements; even

plaintiffs’ own expert concluded that he would have recoded the

advertisements under those circumstances. See Gibson Cross Tr. 120-121;

Defs.’ D. Ct. Reply Br. 74-76.
113

App. 65sa (per curiam). Although BCRA § 204 does not

expressly address MCFL corporations, the “well-settled prsumption” is “that Congress understands the state of existing law when it legislates.” Bowen v. Massachusetts, 487

U.S. 879, 896 (1988). Nor, in light of the Court’s treatment of

statutes that similarly lacked a specific exception for nonprofits in MCFL and Austin, would Congress have perceived any necessity in expressly carving out “MCFL corporations.” In addition, the FEC’s regulations implementing

BCRA, just like its pre-BCRA regulations implementing 2

U.S.C. 441b, specifically exempt MCFL-type corporations

from Title II’s source limitation. See 11 C.F.R. 114.10.

The district court concluded that BCRA § 204 would be

unconstitutional as applied to nonprofit corporations that

meet the criteria specified in MCFL. See MCFL, 479 U.S. at

264; Supp. App. 865sa-872sa & n.139 (Kollar-Kotelly); id. at

1166sa-1169sa (Leon). The government has not challenged

that ruling. 02-1676 J.S. 24 n.8. The NRA (Br. 21-22) and

ACLU (Br. 34-37)—both of which elect to receive corporate

contributions, see NRA Br. 3; ACLU Br. 17 n.12—urge the

Court to expand the MCFL exception to cover any Section

501(c)(4) corporation, not just those that meet the criteria

specified in MCFL. That argument is out of place in this

case and, in any event, should be rejected. See Supp. App.

871sa (Kollar-Kotelly); p. 87-88 & note 38, supra. Indeed, as

this Court recognized in Beaumont, nonprofit corporations

that “qualify for favorable tax treatment under § 501(c)(4),”

including the NRA, are among “the Nation’s politically

powerful organizations.” 123 S. Ct. at 2209.

f. Lastly, it is significant that, although plaintiffs go to

extraordinary lengths in attempting to show that BCRA’s

definition of “electioneering communications” is imperfect at

its margins, they have never proposed a better test for

identifying such communications other than claiming that it

is necessary to adhere to the express-advocacy test. As dis-
114

cussed, the uncontroverted evidence shows that the express

advocacy test is a grossly inaccurate proxy for identifying

electioneering communications. Indeed, nearly 90% of the

advertisements that federal candidates themselves aired in

2000 did not contain express advocacy, though presumably

all of them were designed to influence their own election.

See pp. 82-83, supra. The overbreadth doctrine provides no

basis for invalidating Congress’s definition of “electioneering

communications” in BCRA and limiting federal regulation of

the source-of-funding for electioneering advertisements to

the blunt proxy of the express-advocacy test.

4. The Primary Definition Of “Electioneering Communications” Is Not Too Narrow

a. Plaintiffs argue that the definition of electioneering

communications is fatally underinclusive because it applies

(FECA § 304(f)(3)(A)(i), 2 U.S.C. 434(f)(3)(A)(i)) only to

advertisements run in broadcast media and not to advertisements run in other media, such as print. See McConnell Br.

61-62; ACLU Br. 37-41. That argument should be rejected.

Congress’s decision in BCRA to take the more limited step

of focusing only on broadcast advertisements does not

render the Act unconstitutional. See MCFL, 479 U.S. at 258

n.11 (Congress may proceed in the area of campaign finance

in a “cautious advance, step by step.”); Buckley, 424 U.S. at

105 (“[R]eform may take one step at a time, addressing itself

to the phase of the problem which seems most acute to the

legislative mind.”). Moreover, as a general matter, broadcast media have historically been subjected to much greater

federal regulation than print media.

Two considerations in particular support Congress’s decision to take a more limited approach here. First, “[t]he uncontroverted testimony of experts and political consultants

is that broadcast advertising is the most effective form of

communicating an electioneering message.” Supp. App.
115

879sa (Kollar-Kotelly); see id. at 876sa. Second, broadcast

time is more expensive than space in other media. Indeed,

the increased cost of airing advertisements on television and

radio is one of the principal causes of the escalating costs of

the modern political campaign for federal office. As a result,

broadcast advertisements are much more likely than other

types of advertisements to cause the fact or appearance of

the “corrosive and distorting effects [that] immense

aggregations of wealth” can inflict on the electoral process.

Austin, 494 U.S. at 660; see also 145 Cong. Rec. S511 (daily

ed. Jan. 19, 1999) (statement of Sen. Snowe) (broadcast advertisements “constitute the most blatant form of [unregulated] electioneering”).48

b. The NRA likewise argues that the definition of “electioneering communications” is impermissibly narrow because it excludes “communication[s] appearing in a news

story, commentary, or editorial distributed through the

facilities of any broadcast station.” BCRA § 201(a). In

Austin, however, the Court expressly rejected a challenge to

a state law modeled on 2 U.S.C. 441b that contained the

same type of media exception from the restriction on corporate independent expenditures. 494 U.S. at 655 n.1, 666-

668. As the Court explained, “[a] valid distinction * * *

exists between corporations that are part of the media

industry and other corporations that are not involved in the

regular business of imparting news to the public.” Id. at 668.

And, the Court held, the “press’ unique societal role * * *

 48 The newspaper-tax cases relied upon by the ACLU are inapposite.

See ACLU Br. 40-41 (citing, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Rev., 460 U.S. 575 (1983)). BCRA does not impose any

tax on any media outlet and therefore does not implicate any of the special

concerns involving “taxation of the press.” Minneapolis Star, 460 U.S. at

585. Moreover, unlike the selective treatment involved in Minneapolis

Star, see id. at 593, there is ample justification for Congress’s decision to

focus on broadcast media as opposed to other media in enacting BCRA.
116

provide[s] a compelling reason for the State to exempt media

corporations from the scope of political expenditure limitations.” Ibid. Nothing has changed either in this Court’s case

law or in the role of the media since Austin that would

warrant revisiting much less overturning that holding of

Austin. See Supp. App. 883sa-884sa (Kollar-Kotelly).

5. BCRA’s Fallback Definition Of “Electioneering

Communications” Is Valid

Plaintiffs attack BCRA’s fallback definition of “electioneering communications” on the ground that it is unconstitutionally vague. See McConnell Br. 57-61; AFL-CIO Br.

24-33. Judge Leon—who wrote the controlling decision on

the issue for the district court—held that the fallback

definition of “electioneering communications” is constitutional except for its final clause, which further specifies that

a covered communication must be “suggestive of no plausible

meaning other than an exhortation to vote.” BCRA § 201(a)

(adding FECA § 304(f )(3)(A)(ii)); see Supp. App. 1159sa1166sa (Leon); id. at 885sa-886sa (Kollar-Kotelly). But Judge

Leon concluded that the final clause “can be excised” and

upheld the backup definition as so modified. Id. at 1165sa. If

the Court concludes that the primary definition of “electioneering communications” is invalid, it should uphold

BCRA’s backup definition in its entirety.

“[T]he vagueness doctrine bars enforcement of a statute

which either forbids or requires the doing of an act in terms

so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application.” United

States v. Lanier, 520 U.S. 259, 266 (1997) (internal quotation

marks omitted); see Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). But by no means does the mere possibility of

imprecision render a law unconstitutionally vague. As this

Court has observed, “[c]ondemned to the use of words, we

can never expect mathematical certainty from our lan-
117

guage,” and “[i]t will always be true that the fertile legal

‘imagination can conjure up hypothetical cases in which the

meaning of [disputed] terms will be in nice question.’ ” Id. at

110 & n.15; see also United States v. Powell, 423 U.S. 87, 93-

94 (1975); NRWC, 459 U.S. at 211. The Court is especially

reluctant to invalidate a law for vagueness when, as here,

the vagueness challenge is made to a law on its face. See

National Endowment for the Arts v. Finley, 524 U.S. 569,

580, 588-590 (1998); Hill, 530 U.S. at 733.

Nothing about the final clause of the definition is unconstitutionally vague. Indeed, that clause is designed to protect

corporate and union speakers, and to narrow the reach of

BCRA’s restrictions on corporate and union expenditures,

by reducing BCRA § 203’s potential applicability to communications that are not in fact intended to affect federal

elections. To the extent that there is any ambiguity in that

last sentence, it is only a question of how much otherwise

regulable electioneering speech Congress has voluntarily

forgone addressing in an effort to avoid any conceivable

chilling effect. Any degree of uncertainty in a standard designed to protect speech—like whatever uncertainty might

remain about the exact contours of New York Times v.

Sullivan’s “actual malice” standard—is not the kind of

vagueness that should condemn a statute. Cf. Schenck v.

Pro-Choice Network of Western N.Y., 519 U.S. 357, 383-384

(1997) (rejecting First Amendment challenge to sidewalkcounselor exception to cease-and-desist order restricting

certain demonstrations; “the entire exception for sidewalk

counselors was an effort to enhance petitioners’ speech

rights, and the ‘cease and desist’ limitation must be assessed

in that light”) (citations omitted).

Judge Leon reasoned that “[w]hether an ad is suggestive

of no plausible meaning other than an exhortation to vote

depends on a number of variables such as the context of the

campaign, the issues that are the centerpiece of the cam-
118

paign, the timing of the ad, and the issues with which the

candidates are identified.” Supp. App. 1164sa. The context

in which the advertisement is broadcast is indeed important.

But that does not mean that a corporation or labor union

preparing to broadcast such an advertisement would have

any difficulty in determining—based on its understanding of

the context in which its own advertisement will be aired—

whether that communication is reasonably capable of no

other meaning than an exhortation to vote for or against a

specific candidate. See FEC v. Furgatch, 807 F.2d 857, 864

(9th Cir.) (construing FECA’s express-advocacy test to

apply to communications that do not contain Buckley’s magic

words, but are “susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific

candidate”), cert. denied, 484 U.S. 850 (1987).49

As Judge Leon himself concluded, plaintiffs’ vagueness

challenge to the other terms of the backup definition similarly lacks merit. See Supp. App. 1163sa-1164sa. In considering that challenge, Judge Leon properly refused to

follow the deposition testimony cited by plaintiffs (see

McConnell Br. 58-60) based on their own pop quiz of certain

witnesses, during which plaintiffs refused to answer the

witnesses’ requests to supply them with additional information concerning the context in which the advertisement was

 49 Although BCRA’s backup definition does not incorporate the

specific, objective criteria included in BCRA’s primary definition of “electioneering communications,” it is nonetheless akin to other First Amendment standards that omit such express criteria and instead use an objective “reasonable person” or “ordinary observer” standard. See Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 246 (2002); County of Allegheny v.

ACLU, 492 U.S. 573, 599-600 (1989); see also Zelman v. Simmons-Harris,

536 U.S. 639, 655 (2002) (a reasonable observer must be deemed to be

aware of the “history and context” of the program at issue); Greenbelt

Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970). Moreover, the traditional vagueness inquiry itself must be undertaken from the standpoint of

a reasonable person—presumed to be aware of the world around him.
119

aired (which a corporation or union determining whether an

advertisement is covered by the backup definition would

have). See Defs.’ D. Ct. Opp. Br. 95 & n.103 (citing depositions). Disagreement over whether a particular advertisement falls within the backup definition suggests only that a

communication may be susceptible to more than one

interpretation, not that the statute’s definition is unconstitutionally vague. The backup definition itself makes clear that

if a communication is susceptible to more than one reasonable interpretation, it is not covered.

D. BCRA’s Disclosure Requirements With Respect To

Electioneering Communications Are Valid

BCRA § 201 amends FECA § 304 (2 U.S.C. 434) to require

any person who makes a disbursement for the direct costs of

producing or airing “electioneering communications” in an

aggregate of more than $10,000 in a calendar year to

disclosure certain information to the FEC. See Supp. App.

66sa-67sa (per curiam). That provision simply updates the

requirements that have long applied to express advocacy,

and were upheld in Buckley, to reflect BCRA’s adjustment

of Section 441b to apply to “electioneering communications.”

In fact, BCRA’s disclosure provisions are less intrusive than

the disclosure requirements for independent expenditures

that have long applied under 2 U.S.C. 434(c). Whereas that

provision requires groups making independent expenditures

to identify each of their donors contributing over $200 and to

file disclosure reports for expenditures exceeding $250, 2

U.S.C. 434(c)(2)(C), BCRA’s new requirements apply only to

each of their donors contributing over $1000 and do not

require disclosure at all until $10,000 has been spent. FECA

§ 304(f)(2)(E) (2 U.S.C. 434(f )(2)(E)).

The district court sustained BCRA § 201’s disclosure

provisions in principal part, see Supp. App. 106sa-128sa (per

curiam), emphasizing that “[t]he factual record demonstrates
120

that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements

designed to influence federal elections, but permits them to

do so while concealing their identities from the public,” id. at

106sa; see also id. at 675sa-677sa (Kollar-Kotelly). That

ruling is unassailable.

This Court has recognized that disclosure laws in the

campaign-finance context serve several compelling interests.

First, laws requiring disclosures concerning the sources of

financial support “alert the voter to the interests to which a

candidate is most likely to be responsive and thus facilitate

predictions of future performance in office.” Buckley, 424

U.S. at 67. Second, “[d]isclosure requirements deter actual

corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of

publicity.” Ibid. Third, “recordkeeping, reporting, and disclosure requirements are an essential means of gathering the

data necessary to detect violations of [campaign finance

laws].” Id. at 67-68. BCRA’s disclosure requirements directly advance each of those interests.

The ACLU argues (Br. 41-46) that BCRA § 201’s disclosure provisions impermissibly chill speech and violate its

“right to anonymous political speech and association.” Id. at

42 (citing, e.g., NAACP v. Alabama ex rel. Patterson, 357

U.S. 449 (1958)). In Buckley, however, this Court rejected a

similar challenge to FECA’s disclosure provisions, holding

that electioneering “disclosure requirements, as a general

matter, serve substantial government interests” and “appear

to be the least restrictive means of curbing the evils of

campaign ignorance and corruption that Congress found to

exist.” See 424 U.S. at 68; see id. at 66-68 (discussing the

important government interests served by FECA’s recordkeeping and disclosure requirements). As the district court

found, BCRA’s disclosure requirements directly advance the

same interests given the number of organizations that have
121

financed electioneering communications but sought to

conceal their identities through the use of misleading or nondescript pseudonyms. See Supp. App. 118sa (per curiam);

see also Citizens Against Rent Control v. Berkeley, 454 U.S.

290, 298 (1982) (“[W]hen individuals and corporations speak

through committees, they often adopt seductive names that

may tend to conceal the true identity of the source.”).

In Buckley, this Court also held “that NAACP v.

Alabama is inapposite where * * * any serious infringement on First Amendment rights brought about by the

compelled disclosure of contributors is highly speculative.”

424 U.S. at 70. Instead, the Court held, to implicate the

concerns identified in that case, the plaintiffs must establish

“a reasonable probability that the compelled disclosure of a

party’s contributors’ names will subject them to threats,

harassment, or reprisals from either government officials or

private parties.” Id. at 74; see ibid. (“The proof may include,

for example, specific evidence of past or present harassment

of members due to their associational ties, or of harassment

directed against the organization itself.”). In this facial

challenge, as in Buckley’s, plaintiffs have failed to meet that

evidentiary burden. Indeed, as the district court explained,

“the ACLU has presented the Court with no facts that place

it in the same category of threatened associations such as the

NAACP.” Supp. App. 122sa (per curiam).

The district court concluded that BCRA § 201 is invalid

insofar as it requires disclosure of executed contracts for

electioneering communications that have not yet been publicly distributed. See Supp. App. 107sa-116sa (per curiam);

see 2 U.S.C. 434(f )(5) (added by BCRA § 201) (“For purposes

of this subsection, a person shall be treated as having made

the disbursement if the person has executed a contract to

make a disbursement.”). That holding is erroneous. Because

the time and location of the actual broadcast is an element of

BCRA’s definition of electioneering communication, the
122

FEC has interpreted the provision at issue not to require

disclosure until after “the date on which a communication is

publicly distributed.” 67 Fed. Reg. 64,555, 64,656 (2002).

But even assuming that new FECA § 304(f )(5) might sometimes have the effect of requiring that contracts be disclosed

before public distribution of an electioneering communication, that requirement would neither prevent any person

from speaking nor require disclosure of the specific content

of any advertisement. Indeed, under the pre-BCRA regime

the definition of “expenditure” included a “written contract,

promise, or agreement to make an expenditure.” 2 U.S.C.

431(9)(A)(ii); see 11 C.F.R. 104.11(b).50

E. The District Court Correctly Dismissed Plaintiffs’

Challenges To BCRA § 214(a)-(c)

Federal law has long provided that expenditures made “in

cooperation, consultation, or concert with, or at the request

or suggestion of,” a federal candidate will be treated as contributions to the candidate’s campaign. 2 U.S.C.

441a(a)(7)(B)(i); see p. 17, supra. In December 2000, the

FEC revised its regulations defining the circumstances

under which election-related expenditures will be treated as

“coordinated” with a candidate or party committee. See 65

Fed. Reg. 76,138 (2000); 11 C.F.R. 100.23 (2002). Evidently

concluding that the FEC had redefined the concept of

coordination in an unduly narrow way, see 148 Cong. Rec.

 50 BCRA § 311 amends FECA § 318 to impose additional requirements

concerning the identification of sponsors of election-related advertisements, and to make the sponsorship-identification requirements applicable

to “electioneering communications.” Like the other disclosure requirements that BCRA imposes with respect to electioneering communications,

BCRA § 311 furthers the government’s interest in ensuring an informed

electorate. Plaintiffs’ challenge to BCRA § 311 is premised entirely on

their contention that Buckley precludes Congress from imposing restrictions on speech that is not express advocacy. See McConnell Br. 38-45;

Bus. Pls. Br. 32-33; Supp. App. 157sa-158sa (per curiam). That argument

lacks merit for the reasons stated at pp. 101-103, supra.
123

S2145 (daily ed. Mar. 20, 2002) (statement of Sen. McCain),

Congress directed the agency to reconsider the matter.

BCRA § 214(b) repeals the Commission’s December 2000

coordination regulations, and BCRA § 214(c) requires the

FEC to promulgate new regulations that “shall not require

agreement or formal collaboration to establish coordination.”

In addition, BCRA § 214(a)(2) amends FECA § 315(a)(7)(B)

to provide that expenditures made “in cooperation, consultation, or concert with, or at the request or suggestion of,” a

political party committee shall be considered contributions to

that committee.

Plaintiffs challenged BCRA § 214, contending that it is

unconstitutionally vague and that it reflects an unduly broad

understanding of “coordination.” In December 2002, while

plaintiffs’ claims were pending in the district court, the FEC

promulgated new coordination rules in accordance with the

statutory directive. See 68 Fed. Reg. 421 (2003). The district court rejected plaintiffs’ challenge to BCRA § 214(a)

and held that their challenge to BCRA § 214(b) and (c) is not

justiciable in this facial challenge. See Supp. App. 134sa156sa (per curiam); but see id. at 386sa-396sa (Henderson,

dissenting). Those holdings are correct.

1. The text of BCRA § 214(a)(2) tracks the preexisting

language of 2 U.S.C. 441a(a)(7)(B)(ii). As the district court

observed, “this same definition has been applied to expenditures coordinated with political candidates for over 25 years

and was recently found by [this] Court to apply to political

party expenditures.” Supp. App. 135sa-136sa (per curiam)

(citing Colorado II, 533 U.S. at 467). “Plaintiffs have provided no explanation as to why the application of this coordination formula to the context of political parties chills

political speech any more than when applied to expenditures

coordinated with political candidates.” Id. at 137sa. And by

directing the FEC to promulgate new regulations addressing the subject of coordination, subject to judicial review if
124

necessary (see p. 124, infra), BCRA § 214(c) provides a

mechanism for alleviating any uncertainty that regulated

entities may feel regarding the scope of BCRA § 214(a). See

Supp. App. 137sa-138sa (per curiam). Plaintiffs’ vagueness

challenge therefore lacks merit.

2. BCRA § 214(b) and (c) does not define the standard for

determining when an expenditure is “coordinated” with a

candidate or party, nor does it otherwise alter the plaintiffs’

legal rights or obligations. Rather, the Act directs the

expert agency to address the question of coordination in the

first instance. Any impairment of plaintiffs’ ability to engage

in campaign-related activity is attributable to the FEC rules

adopted in response to the statutory directive, not to BCRA

§ 214(b) and (c) on its face. The FEC has now promulgated

the required regulations, which are subject to judicial review

under the Administrative Procedure Act (APA). If plaintiffs

believe that the rules promulgated by the FEC in December

2002 define coordination in an unconstitutionally broad (or

otherwise improper) manner, their proper recourse is to file

suit under the APA to challenge those regulations. In and of

itself, however, BCRA § 214(b) and (c) causes plaintiffs no

injury, and it therefore is not subject to challenge in this

lawsuit.51

3. Plaintiffs contend that “agreement is always required

before coordination can constitutionally be found,” and that

any FEC regulation that is consistent with BCRA § 214(b)

and (c) would therefore necessarily violate the First Amend-

 51 As the district court observed, any plaintiff in an APA action

challenging the FEC’s coordination regulations could “seek a stay from

the FEC or a court to prevent the application of the rule pending review.”

Supp. App. 156sa n.99 (per curiam) (citing 5 U.S.C. 705). There is consequently no basis for the McConnell plaintiffs’ suggestion (Br. 65) that

immediate review by this Court of their abstract constitutional challenge

to BCRA § 214(b) and (c) is necessary in order to avoid hardship to

regulated entities.
125

ment. McConnell Br. 65; see RNC Br. 78. FECA has long

provided, however, that expenditures made “at the request

or suggestion of ” a candidate will be treated as contributions

to that candidate. 2 U.S.C. 441a(a)(7)(B)(i). This Court has

recognized that coordinated spending “covers a spectrum of

activity,” Colorado II, 533 U.S. at 445, including “wink or

nod” arrangements, id. at 442. And while plaintiffs contend

that BCRA § 214(b) and (c) effectively compels the FEC to

promulgate coordination rules that violate the First Amendment, they have not filed suit to challenge the regulations

that the Commission has actually adopted.52

III. PLAINTIFFS’ CHALLENGES TO TITLES III AND

V OF BCRA SHOULD BE REJECTED

A. The District Court Correctly Dismissed Plaintiffs’

Challenges To The Increased Individual Contribution Limits In BCRA § 307

1. To establish Article III standing, a plaintiff must

demonstrate an actual or imminent injury that is fairly

traceable to the defendant’s challenged conduct and is likely

to be redressed by a favorable decision. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-561 (1992). The district court

correctly held that the Adams plaintiffs lack standing to

challenge BCRA § 307(a)(1), which increases from $1000 to

$2000 the per-election limit on individual contributions to

 52 Plaintiffs’ reliance (McConnell Br. 65) on Abbott Labs. v. Gardner,

387 U.S. 136 (1967), is misplaced. Abbott Labs. holds that an agency regulation may appropriately be made the subject of a judicial challenge, even

before the rule has been applied to a discrete set of facts, if the regulation

“is a substantive rule which as a practical matter requires the plaintiff to

adjust his conduct immediately.” Lujan v. National Wildlife Fed’n, 497

U.S. 871, 891 (1990) (citing Abbott Labs.). Abbott Labs. does not suggest,

however, that a plaintiff may bring a facial challenge to a statutory

provision that imposes no substantive obligation upon any private party,

but simply requires the promulgation of rules by an Executive Branch

agency.
126

federal candidates. See Supp. App. 472sa-475sa (Henderson); id. at 1008sa (Kollar-Kotelly).53

The Adams plaintiffs include both voters and potential

federal candidates. See Adams Br. 2. BCRA § 307 allows

those plaintiffs to make and receive larger contributions

than were previously lawful. Plaintiffs’ contention (Br. 2-3)

that other donors and candidates will derive a greater

practical benefit from the increase is far too speculative to

establish actual or imminent injury. And even if plaintiffs

had adequately alleged a likelihood of “actual or imminent”

injury, their harm would not be “fairly traceable” to BCRA

or to any action of the defendants. See Supp. App. 474sa

(Henderson).

2. In any event, plaintiffs’ equal protection claim lacks

merit. Because plaintiffs themselves can now make and

receive contributions up to the new $2000 limit, BCRA § 307

does not deny them any right or privilege that it confers on

others. Plaintiffs’ claim logically presumes that limits on

individual contributions to federal candidates are constitutionally compelled—a proposition clearly belied by the absence of any such restrictions until 1974. And, having concluded that a contribution limit is appropriate, Congress has

considerable discretion to choose and adjust the applicable

 53 Unlike the Adams plaintiffs, the Paul plaintiffs contend (Br. 46) that

Congress should have increased the contribution limit applicable to

political committees other than political parties, and that it should have

indexed that limit for inflation. This Court lacks jurisdiction over that

claim because it is in substance a challenge to the pre-existing FECA limit

on contributions to non-party political committees, not to any provision of

BCRA (which left that contribution limit unchanged). Challenges to the

constitutionality of FECA are subject to direct review before an

appropriate en banc court of appeals, see 2 U.S.C. 437h, not in the threejudge district court convened pursuant to BCRA § 403(a). In any event,

Congress has broad authority to conclude that different types of

organizations “may require different forms of regulation in order to

protect the integrity of the electoral process,” California Med. Ass’n, 453

U.S. at 201; see pp. 70-72, supra, and it did not exceed that authority here.
127

ceiling. Indeed, the Court in Buckley specifically noted that

“a court has no scalpel to probe” whether a “$2,000” or

“$1,000” cap would be preferable. 424 U.S. at 30.

B. The District Court Correctly Dismissed Plaintiffs’

Challenge To The “Millionaire Provisions” Of

BCRA §§ 304 And 319

1. The Adams plaintiffs also challenge BCRA §§ 304 and

319 (collectively referred to as the “millionaire provisions”),

which allow congressional candidates to accept contributions

that exceed the generally applicable FECA/BCRA limits in

certain circumstances when the candidate faces an opponent

who expends substantial personal funds on his own campaign. See BCRA § 304(a)(2) (Senate); BCRA § 319(a)

(House of Representatives). Plaintiffs contend (Adams Br.

11-12) that non-wealthy candidates “whose supporters cannot make large donations” will be unable to compete on even

terms in any future election in which their opponents include

both a self-funded candidate and another candidate who

receives contributions in excess of the general $2000 limit by

invoking the “millionaire” provisions. The district court correctly held that plaintiffs lack standing to challenge BCRA

§§ 304 and 319. See Supp. App. 475sa-477sa (Henderson); id.

at 1008sa (Kollar-Kotelly).

Plaintiffs’ claim of injury resulting from BCRA §§ 304 and

319 is even more speculative than their claim with respect to

BCRA § 307. It is wholly uncertain whether any plaintiff

will be a candidate in any election affected by the millionaire

provisions. See Supp. App. 476sa (Henderson). And even if

one of the plaintiffs becomes a candidate in such a race, the

immediate consequence of BCRA §§ 304 and 319 (like that of

BCRA § 307) would be to increase the amount of money that

could be contributed to his campaign. Plaintiffs’ claim of

harm depends not only on the uncertain prospect that a

plaintiff candidate will face a self-funded opponent in an
128

upcoming federal election, but also on speculative predictions that a third candidate in the same race will qualify for

and benefit significantly from the increased contribution

limits provided by BCRA §§ 304 and 319, and that plaintiffs

themselves will be unable to derive a comparable benefit.

Even in that circumstance, any competitive electoral disadvantage that plaintiffs might suffer would not be attributable to BCRA or to the defendants. See p. 126, supra.

2. In any event, the millionaire provisions do not deprive

plaintiffs of their right to equal protection of the laws. In any

election where a self-funded opponent’s expenditures trigger

the higher contribution limits provided by BCRA §§ 304 and

319, plaintiffs themselves will have the same opportunity as

any other donors and candidates to make and receive

contributions in the increased amounts. The possibility that

other donors and candidates will derive a greater practical

advantage from the increased limits is insufficient to establish an equal protection violation. See pp. 126-127, supra.

C. The District Court Correctly Dismissed Plaintiffs’

Challenge To BCRA § 305

Under BCRA § 305, a candidate for federal office may

invoke his statutory entitlement (see p. 19, supra) to the

“lowest unit charge” for broadcast advertising only if he

either (a) promises that his advertisements will “not make

any direct reference to another candidate for the same

office,” or (b) makes clear, in any advertisement that does

include a direct reference to an opposing candidate, that the

sponsoring candidate has approved the broadcast. If the

sponsoring candidate chooses option (b), BCRA § 305

prescribes the form in which he must state his approval of

the advertisement. For television broadcasts, the advertisement must include “a clearly identifiable photographic or

similar image of the candidate,” and “a clearly readable

printed statement” expressing the candidate’s approval.
129

BCRA § 305(a)(3) (adding 47 U.S.C. 315(b)(2)(C)(i) and (ii)).

For radio advertisements, the broadcast must include “a

personal audio statement by the candidate that identifies the

candidate, the office the candidate is seeking, and indicates

that the candidate has approved the broadcast.” BCRA

§ 305(a)(3) (adding 47 U.S.C. 315(b)(2)(D)). The district court

correctly held that plaintiffs lack standing to challenge

BCRA § 305. See Supp. App. 467sa-472sa (Henderson); id.

at 1008sa (Kollar-Kotelly). In any event, plaintiffs’ challenge

lacks merit.

1. Plaintiffs’ claim of injury resulting from BCRA § 305

rests entirely on the affidavit of Senator McConnell. Senator

McConnell testified that in prior campaigns, he has run

advertisements “that made contrasts between me and my

opponent.” McConnell Aff. para. 12. He further testified

that he would run similar advertisements in future campaigns because he considers it “important for Kentucky

voters to have as much information as possible about the

qualifications of those who choose to run for the office of

United States Senator.” J.A. 404; see McConnell Br. 67.

Senator McConnell’s current term does not expire until

the year 2008. Because a candidate for federal office is

entitled to the “lowest unit charge” for broadcast advertising

only during specific periods directly preceding an election,

see 47 U.S.C. 315(b)(1), BCRA § 305 has no immediate impact on any communicative activities in which Senator

McConnell might wish to engage. Rather, “the earliest date

he could feel the effect of [BCRA § 305] is 45 days before the

Republican primary election in 2008.” Supp. App. 470sa

(Henderson). The length of time before Senator McConnell

could be tangibly affected by the challenged provision, and

the inevitable uncertainty regarding the type of advertisements he will wish to run if he indeed stands for reelection in

2008, precludes him from establishing that his alleged injury

is “certainly impending.” Defenders of Wildlife, 504 U.S. at
130

565 n.2. And neither Senator McConnell’s affidavit nor

plaintiffs’ brief explains how his ability to inform Kentucky

voters “about the qualifications of those who choose to run

for the office of United States Senator” (J.A. 404) would be

compromised if he were to state his approval of the relevant

broadcasts in the manner specified by BCRA § 305—a

course of action that would allow him to refer directly to

opposing candidates while retaining his entitlement to the

“lowest unit charge.”

2. BCRA § 305 does not violate the First Amendment.

Contrary to plaintiffs’ contention (McConnell Br. 68), BCRA

§ 305 does not discriminate on the basis of viewpoint.

Rather, it applies by its terms to all radio and television

broadcasts that make a “direct reference” to a candidate’s

opponent, regardless of the party affiliation of either candidate or the message that the sponsoring candidate seeks to

convey. BCRA § 305 is not invalid simply because it may

induce candidates to include in their advertisements a statement of personal approval that they would not otherwise

make. An FCC regulation that long predates BCRA

requires that the sponsor of every broadcast advertisement

must be identified within the advertisement itself. See 47

C.F.R. 73.1212 (2002). Although BCRA § 305 imposes additional requirements regarding the manner in which the

sponsorship-identification information must be conveyed,

plaintiffs do not explain why that greater specificity should

alter the constitutional analysis. Indeed, BCRA § 305 is in

one significant respect less burdensome than the pre-existing FCC rule, since it applies only if the candidate invokes

his statutory entitlement to the “lowest unit charge.”

BCRA § 305 reflects Congress’s determination that, if a

candidate for federal office seeks the “lowest unit charge” for

a broadcast advertisement that includes a direct reference to

his opponent, the candidate should identify himself as the
131

sponsor in a particularly clear and unmistakable manner.54

See 147 Cong. Rec. S2693 (daily ed. Mar. 22, 2001) (statement of Sen. Collins). Federal candidates have no First

Amendment right to utilize the broadcast media anonymously, let alone to do so at a particularly favorable rate.

They likewise have no constitutional right to avoid a mode of

sponsorship-identification that is especially likely to achieve

its intended objective.

D. The Disclosure Requirements In BCRA § 504 Are

Constitutional

BCRA § 504 requires a broadcast station to maintain and

make publicly available a complete record of requests to

purchase broadcast time to “communicate[] a message relating to any political matter of national importance, including

* * * a national legislative issue of public importance.”

BCRA § 504 (adding 47 U.S.C. 315(e)(1)(B)). Plaintiffs’ First

Amendment challenge to that provision (McConnell Br. 73-

75) lacks merit.55

 54 The analogous FCC rule, in addition to requiring generally that the

sponsor of broadcast advertising be identified within the advertisement

itself, see 47 C.F.R. 73.1212(a)(1) and (2) (2002), imposes more specific

sponsorship-identification requirements with respect to candidate advertising. See 47 C.F.R. 73.1212(a)(2)(ii) (2002) (“In the case of any television

political advertisement concerning candidates for public office, the sponsor

shall be identified with letters equal to or greater than four percent of the

vertical picture height that air for not less than four seconds.”). Thus, the

fact that BCRA § 305’s more specific sponsorship-identification requirement is triggered by the content (but not the viewpoint) of the pertinent

advertisement reflects no departure from the established principles governing broadcast communications.

55 BCRA §§ 305 and 504 impose distinct types of sponsorship-identification requirements, though the two provisions serve closely related

purposes. BCRA § 305 requires, as a prerequisite for entitlement to the

“lowest unit charge,” that the sponsor of certain broadcast advertisements

must be identified in a specified manner in the advertisement itself.

BCRA § 504 applies to a broader class of advertisements and requires that

additional information be submitted to the broadcast licensee and made
132

1. Plaintiffs contend (McConnell Br. 73) that the First

Amendment bars Congress from imposing disclosure requirements for speech that does not expressly advocate the

election or defeat of a candidate for public office. That argument is foreclosed by this Court’s precedents. See Bellotti,

435 U.S. at 792 n.32 (State may require disclosure of sponsor

of corporate advertisement regarding referendum proposal);

Buckley v. Am. Constitutional Law Found., 525 U.S. 182,

202-203 (1999) (State may require disclosure of the names of

ballot initiative petition sponsors and the amounts paid to

gather support for the initiatives).

2. As explained in the government’s brief in opposition to

the motion for summary affirmance on this issue filed by

plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements

with respect to the sponsorship of broadcast matter “involving the discussion of a controversial issue of public

importance.” 47 C.F.R. 73.1212(d) and (e) (2002); see 47

C.F.R. 76.1701(d) (2002) (same standard used in disclosure

regulation governing cablecasting). By enabling viewers and

listeners to identify the persons actually responsible for

communications aimed at a mass audience, those regulations

assist the public in evaluating the message transmitted. See

Bellotti, 435 U.S. at 792 n.32 (“Identification of the source of

advertising may be required * * * so that the people will

be able to evaluate the arguments to which they are being

subjected.”).

 publicly available upon request. Both provisions have close analogues in

longstanding FCC regulatory requirements. See 47 C.F.R. 73.1212(a), (d),

and (e) (2002); p. 130, supra; p. 132, infra. Plaintiffs’ mode of attack on

BCRA §§ 305 and 504—characterizing those provisions as unprecedented

assaults on the First Amendment, while simply ignoring their established

historical antecedents—is symptomatic of plaintiffs’ approach to the entire

case.
133

The range of information required to be disclosed under

BCRA § 504 is comparable to the disclosures mandated by

pre-existing FCC rules. Compare 47 U.S.C. 315(e)(2)(G)

(added by BCRA § 504), with 47 C.F.R. 73.1212(e) and

76.1701(d) (2002). Plaintiffs do not attempt to show that

BCRA § 504’s requirements are more onerous than the

FCC’s longstanding rules, nor do they contend that the preexisting agency regulations are themselves unconstitutional.

See generally 02-1676 Gov’t Br. in Opp. to Mot. of NAB for

Summ. Aff. 4-9. Because BCRA § 504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be

rejected.

3. Plaintiffs’ vagueness argument (McConnell Br. 74-75)

also lacks merit. Broadcasters have evidently achieved a

workable understanding of FCC disclosure requirements

that apply to broadcast matter “involving the discussion of a

controversial issue of public importance.” 47 C.F.R.

73.1212(d) and (e) (2002); 47 C.F.R. 76.1701(d) (2002). Plaintiffs offer no reason to believe that the BCRA terms “political matter of national importance” and “national legislative

issue of public importance” will be more difficult to comprehend. See generally 02-1676 Gov’t Br. in Opp. to Mot. of

NAB for Summ. Aff. 2-4.

E. BCRA § 318, Which Prohibits Any Minor From

Making A Contribution To A Federal Candidate Or

Political Party, Is Constitutional

1. This Court’s decision in Beaumont forecloses the

Echols plaintiffs’ argument (Br. 34 n.38) that BCRA § 318 is

subject to strict scrutiny. In Beaumont, a nonprofit corporation “argue[d] that application of the ban on its contributions

should be subject to a strict level of scrutiny, on the ground

that [2 U.S.C.] § 441b does not merely limit [corporate]

contributions, but bans them on the basis of their source.”
134

Beaumont, 123 S. Ct. at 2210. The Court rejected that contention, explaining that “restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions subject to relatively complaisant review under the

First Amendment.” Ibid.; see p. 35, supra. The Court

further observed that “the difference between a [contribution] ban and a limit” is properly considered “when

applying scrutiny at the level selected, not in selecting the

standard of review itself.” Id. at 2211. Similarly here, the

fact that BCRA § 318 bans rather than limits contributions

by minors to federal candidates and political parties is

relevant to the First Amendment analysis, but it provides no

basis for applying strict scrutiny.

2. BCRA § 318 is a valid means of preventing circumvention of the FECA/BCRA contribution limits by adults

who might otherwise use minors as surrogate contributors.

Minors have historically been barred from voting, from

entering into binding contracts, and from disposing of

property. BCRA § 318 therefore does not meaningfully

burden any right that minors have traditionally been

understood to possess. Congress surely has power to

identify some minimum age for making political contributions, and it reasonably chose the age at which individuals

acquire a host of other political, civil, and property rights.

BCRA § 318 will have no meaningful impact on the ability of

candidates and parties to acquire the resources needed for

their own advocacy—the principal constitutional value

implicated by contribution limits. And because BCRA § 318

bars only transfers of money to federal candidates and

political parties, it leaves minors free to volunteer for federal

campaigns and to engage in a variety of other political

activities. See generally 02-1676 Gov’t Br. in Opp. to Mot. of

Echols, et al., for Summ. Aff. 2-9.
135

CONCLUSION

The Court should sustain the constitutionality of BCRA

and should affirm in part and reverse in part the judgment of

the district court.

Respectfully submitted.

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

STEPHEN E. HERSHKOWITZ

DAVID KOLKER

Assistant General Counsels

Federal Election Commission

THEODORE B. OLSON

Solicitor General

PETER D. KEISLER

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

MALCOLM L. STEWART

GREGORY G. GARRE

Assistants to the Solicitor

General

DOUGLAS N. LETTER

JAMES J. GILLIGAN

MICHAEL S. RAAB

DANA J. MARTIN

TERRY M. HENRY

RUPA BHATTACHARYYA

ANDREA GACKI

Attorneys

AUGUST 2003