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No. 02-1674 et al. 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

SENATOR MITCH McCONNELL, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

Appellees. 

----♦-- -

On Appeal From The United States District Court 

For The District Of Columbia 

----♦-- -

BRIEF OF THE STATES OF IOWA, VERMONT, 

CONNECTICUT, ARIZONA, COLORADO, ILLINOIS, 

KENTUCKY, LOUISIANA, MARYLAND, 

MASSACHUSETTS, MAINE, MINNESOTA, 

MISSISSIPPI, MISSOURI, MONTANA, NEW YORK, 

OKLAHOMA, RHODE ISLAND, WASHINGTON, 

WISCONSIN, AND THE COMMONWEALTH OF 

PUERTO RICO AND THE U.S. VIRGIN ISLANDS AS 

AMICI CURIAE IN SUPPORT OF APPELLEES 

----♦-- -

THOMAS J. MILLER 

Iowa Attorney General 

THOMAS ANDREWS 

Assistant Attorney General 

Hoover Bldg., 2nd Floor 

Des Moines, IA 50319 

(515) 281-8373 

RICHARD BLUMENTHAL 

Connecticut Attorney General 

55 Elm Street 

Hartford, CT 06141 

(860) 808-5318 

WILLIAM H. SORRELL 

Vermont Attorney General 

*BRIDGET C. ASAY 

Assistant Attorney General 

109 State Street 

Montpelier, VT 05609 

(802) 828-3181 

*Counsel of Record 

[Additional Counsel Listed on Inside Cover] 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
TERRY GODDARD


Attorney General of Arizona 


1275 West Washington 


Phoenix, AZ 85007 


KEN SALAZAR


Attorney General of Colorado 


1525 Sherman Street, 


7th Floor 

Denver, CO 80203 

ALBERT B. CHANDLER, III 

Attorney General of 

Kentucky 

Capitol Building, Suite 118 

700 Capitol Avenue 

Frankfort, KY 40601 

RICHARD P. IEYOUB 

Attorney General of 

Louisiana 

One American Place 

301 Main Street, Suite 600 

P.O. Box 94005 

Baton Rouge, LA 70804 

THOMAS F. REILLY 

Attorney General of 

Massachusetts 

One Ashburton Place 

Boston, MA 02108 

G. STEVEN ROWE


Attorney General of Maine 


State House, Station 6 


Augusta, ME 04333 


MIKE HATCH


Attorney General of 


Minnesota 

State Capitol, Suite 102 

St. Paul, MN 55155 

MIKE MOORE 

Attorney General of 

Mississippi 

P.O. Box 220 


Jackson, MS 39205 


JEREMIAH (JAY) NIXON


Attorney General of Missouri


Supreme Court Building 


207 West High Street 


Jefferson City, MO 65101 


MIKE MCGRATH


Attorney General of Montana


215 N. Sanders 


P.O. Box 201401 


Helena, MT 59620 


ELIOT SPITZER


Attorney General of 


New York 

120 Broadway, 25th Floor 

New York, NY 10271 

W.A. DREW EDMONDSON


Attorney General of Oklahoma


2300 N. Lincoln Blvd., Suite 112


Oklahoma City, OK 73105 


PATRICK LYNCH


Attorney General of Rhode 


Island 

150 S. Main Street 

Providence, RI 02903 

CHRISTINE O. GREGOIRE


Attorney General of Washington


1125 Washington Street 


P.O. Box 40100 


Olympia, WA 98504 

PEGGY LAUTENSCHLAGER 

Attorney General of 

Wisconsin 

17 W. Main Street 

P.O. Box 7857 

Madison, WI 53707 

ANABELLE RODRÍGUEZ 

Secretary of Justice 

Commonwealth of 

Puerto Rico 

P.O. Box 9020192 

San Juan, P.R. 00902 

IVER A. STRIDIRON


Attorney General 


United States Virgin Islands 


Department of Justice 


48B-50C Kronprindsens 


Gade 

GERS Bldg., 2nd Floor 

St. Thomas, VI 00802 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES....................................iii 

INTEREST OF THE AMICI CURIAE .................... 1 

INTRODUCTION AND SUMMARY 

OF ARGUMENT ................................................... 3 

ARGUMENT ............................................................ 6 

I. BCRA Is A Constitutional Exercise 

Of Congress’s Authority To Regulate 

Federal Elections And Federal 

Officeholders .................................................. 6 

A. Congress has the power to regulate 

matters related to federal elections 

and to ensure the integrity of federal

officeholders.............................................. 7 

B. BCRA is an appropriate exercise of 

Congress’s authority to regulate

federal elections...................................... 10 

C. BCRA, which regulates the financial 

transactions of private parties, does

not impermissibly intrude on state 

sovereignty. ............................................ 16 

II. BCRA Serves The Interests Of The 

States And Their Citizens By

Restoring Integrity To The National 

Political Process And Promoting

Political Participation and Discourse ......... 18 
ii 

III. The Ability Of The States To Protect The 

Confidence Of Their Citizenry In Their 

Own Elected State Officials Should Not 

Be Hobbled By The First Amendment 

Proscriptions Sought By Plaintiffs ............. 21 

CONCLUSION....................................................... 24 
iii 

TABLE OF AUTHORITIES 

Page 

Cases: 

Alden v. Maine, 527 U.S. 706 (1999) ..................... 17

Buckley v. Valeo, 424 U.S. 1 (1976) ..... 1, 7, 8, 12, 23 

Burroughs v. United States, 290 U.S.

534 (1934)......................................................... 6, 8 

Denver Area Educ. Telecomms.

Consortium, Inc. v. FCC, 518 U.S.

727 (1996)........................................................... 21 

FEC v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238 (1986).................................... 22 

Gregory v. Ashcroft, 501 U.S. 452 (1991)........... 6, 16 

New State Ice Co. v. Liebmann, 285 U.S.

262 (1932)........................................................... 23 

Nixon v. Shrink Missouri Gov’t PAC,

528 U.S. 377 (2000)...................................... 18, 20 

Oregon v. Mitchell, 400 U.S. 112 (1970)................ 16 

Printz v. United States, 521 U.S. 898

(1997).............................................................. 6, 17 

Ex parte Siebold, 100 U.S. 371 (1879)....... 7, 8, 9, 10 

Smiley v. Holm, 285 U.S. 355, 366

(1932).................................................................... 8 
iv 

United States v. Int’l Union UAW-CIO,

352 U.S. 567 (1957)...................................... 20, 23 

United States v. Lopez, 514 U.S. 549

(1995).................................................................. 10 

United States v. Mississippi Valley

Generating Co., 364 U.S. 520 (1961) ................. 18 

United States v. Morrison, 529 U.S.

598 (2000)........................................................... 10 

Ex parte Yarbrough, 110 U.S. 651 

(1884).......................................................... 8, 9, 10 

Constitution, Statutes, and Regulations: 

U.S. Const. art. I, § 4............................................ 3, 6

Bipartisan Campaign Reform Act of 2002,

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

(2002)...........................................................passim 

11 C.F.R. § 106.5 (2002)........................................... 9 

Miscellaneous: 

The Federalist No. 39 (James Madison)

(Clinton Rossiter ed., 1961) ................................. 6 

33 Council of State Governments,

The Book of the States (2000)............................. 22 
1 

INTEREST OF THE AMICI CURIAE 

The Amici States* bring two unique interests to 

this litigation. First, the States as sovereigns have an 

abiding interest in the constitutional principles that 

govern the regulation of elections and campaign 

finance. Amici bear substantial responsibility for 

conducting and policing elections. The very legitimacy 

of state governments is implicated when citizens lose 

faith in their elections and elected officials. To combat 

this, virtually every State in the Union has pursued 

different types of campaign finance reform in a 

continuing effort to ensure the integrity of our 

democratic processes. Just as Buckley v. Valeo, 424 

U.S. 1 (1976), has framed the debate on campaign 

finance legislation at both the state and federal level 

for the last quarter-century, the decision in this case 

will also have a profound impact on both state and 

federal election law for many years to come. 

Second, as dual sovereigns and partners in our 

federal system, the Amici have a keen interest in 

protecting the proper division of power between the 

federal and state governments. The plaintiffs in this 

litigation contend that Congress has overstepped its 

bounds in the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) (“BCRA” 

or “the Act”). Yet, at the same time that plaintiffs 

complain about federal legislation encroaching on the 

States, they ask this Court to adopt a restrictive 

interpretation of the First Amendment that would call 

into question both state and federal campaign finance 

laws. The Amici States disagree strongly with the 

* Joined by the Commonwealth of Puerto Rico and the U.S. 

Virgin Islands. 
2 

federalism arguments advanced by the plaintiffs in 

this case. The potential threat to state authority in 

this context comes not from Congress but from 

plaintiffs’ theory of the First Amendment, which, if 

adopted, would greatly limit the ability of the States to 

enact meaningful campaign finance reforms. 
3 

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

When Congress enacted BCRA, it recognized that 

significant campaign finance reform was essential to 

the health of our national democracy. Although the

plaintiffs posit that the Act’s key provisions violate the 

First Amendment and exceed Congress’s authority,

they are mistaken. BCRA is a constitutional exercise of 

Congress’s power to regulate federal elections and 

ensure the integrity of federal officeholders. 

The Amici States are particularly troubled by the 

plaintiffs’1 effort to derail Congress’s crucial reform 

effort by invocation of “federalism.” The Amici have a 

special expertise in the area of federalism, and they 

pay close attention to the constitutional division of 

authority between the federal and state governments. 

In the view of Amici, the plaintiffs’ federalism 

arguments are wholly unsupportable. 

Congress has broad authority to regulate 

activities that bear a reasonable relationship to federal 

elections. The Court has long recognized the power 

delegated to Congress, see U.S. Const. art. I, § 4, to 

prescribe regulations for federal elections and to 

protect the integrity of federal officeholders. BCRA is 

tailored to reach those campaign activities that are 

subject to federal regulation – and to reach no further. 

1 In this context, “plaintiffs” refers to appellants/cross-appellees 

“Senator Mitch McConnell et al.,” and the “political parties.” The 

briefs filed by these two sets of plaintiffs devote substantial space 

to arguing that certain elements of BCRA exceed Congress’s 

authority, violate the Tenth Amendment, or otherwise run afoul of 

principles of federalism. See Br. for Appellants/Cross-Appellees 

Senator Mitch McConnell et al. at 26-35; Br. of Political Parties at 

78-91. 
4 

Congress has not exceeded its delegated constitutional 

authority and has not regulated purely local matters or 

intruded on the sovereignty of the States. 

Eliminating the corrupting influence of soft money 

in federal elections does not intrude on state power 

but, to the contrary, benefits both the States and their 

citizens. The States and their citizens rely on the 

integrity and fidelity of federal office holders. Just as 

importantly, state and local governments suffer from 

the disaffection and alienation caused by the 

perception that, in politics, “money talks.” Even more 

than the federal government, state and local 

governments depend upon an active, engaged citizenry 

to share in the work of governing. By addressing the 

causes of alienation and cynicism, BCRA will foster 

participation and political discourse at both the state 

and federal level. 

The combination of First Amendment and 

federalism arguments advanced by the plaintiffs is 

troubling for another reason. Because the States share 

with Congress the responsibility for ensuring the 

integrity of elections, the Court’s decision in this case 

will not only decide the fate of BCRA. It will also 

govern the actions of state legislators across the nation 

as they pursue efforts to regulate and reform the 

financing of elections. Although plaintiffs assert 

allegiance to principles of federalism, they do not truly 

seek to preserve the authority of the States to legislate 

in this area. Rather, they seek a constitutional ruling 

from this Court that would limit state campaign 

finance laws and preclude state innovation and 

experimentation. This Court should not adopt such a 

restrictive view of the First Amendment. The political 

branches at the state and federal level should be 
5 

afforded the latitude they need to protect the integrity 

of their respective electoral processes. 
6 

ARGUMENT 

I. BCRA Is A Constitutional Exercise Of 

Congress’s Authority To Regulate Federal 

Elections And Federal Officeholders. 

In our federalist system of government, the 

federal and state governments share the authority to 

govern. As a result, the States retain substantial 

sovereign powers. See, e.g., Printz v. United States, 521 

U.S. 898, 918-19 (1997) (Constitution establishes a 

system of dual sovereignty, in which the States retain 

a “‘residuary and inviolable sovereignty’”) (quoting The 

Federalist No. 39, at 245 (James Madison) (Clinton 

Rossiter ed., 1961)). As intended by the Founders, see, 

e.g., Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991), 

the States guard those powers against encroachment 

by the federal government. But not all powers of 

governance have been – or should be – reserved to the 

States. The Constitution rightly assigns certain powers 

to Congress, including the power to regulate federal 

elections and protect the integrity of federal 

officeholders. See U.S. Const. art. I, § 4; Burroughs v. 

United States, 290 U.S. 534, 545 (1934). BCRA falls 

comfortably within this authority granted to Congress. 

The “federalism” challenges to portions of the Act, 

raised by plaintiffs and some of their amici, are 

misplaced. First, plaintiffs’ cramped view of Congress’s 

authority is inconsistent with this Court’s precedents. 

Congress may regulate activities that bear a 

reasonable relationship to federal elections and may 

pass legislation designed to protect the integrity of 

federal officeholders. The power of Congress in this 

area is not automatically limited by the unavoidable 

impact such regulations may have on state and local 
7 

elections. Second, BCRA does not exceed the authority 

granted to Congress. Each of the challenged provisions 

of the Act regulates activities related to federal 

elections and federal officeholders. Finally, BCRA does 

not “federalize” the conduct or the financing of state 

elections. Congress carefully tailored BCRA to reach 

activities that are related to federal elections and 

officeholders while leaving intact the sovereign 

authority that States exercise over state and local 

elections. 

A. Congress has the power to regulate matters 

related to federal elections and to ensure the 

integrity of federal officeholders. 

As the necessary starting point for the analysis of 

the power of Congress to enact BCRA, the Court must 

first establish the scope of federal authority in this 

area. Much of this work has already been done, 

however. The Court’s precedents establish that 

Congress has broad authority to regulate matters 

relating to federal elections, as well as activities that 

pose a risk of corrupting or appearing to corrupt 

federal candidates and officeholders. 

It is not surprising that by the time of Buckley v. 

Valeo the Court described the power of Congress to 

regulate federal elections as “well-established.” 424 

U.S. 1, 13 (1976). Well over one hundred years ago, the 

Court acknowledged that Congress has “a general 

supervisory power over the whole subject” of federal 

elections. Ex parte Siebold, 100 U.S. 371, 387 (1879). 

Congress unquestionably may provide a “complete 

code for [federal] elections,” including “the numerous 

requirements as to procedure and safeguards which 

experience shows are necessary in order to enforce the 
8 

fundamental right involved.” Smiley v. Holm, 285 U.S. 

355, 366 (1932). The power of Congress in this area is 

not circumscribed or narrow; rather, “[t]he power of 

Congress . . . is paramount, and may be exercised at 

any time, and to any extent which it deems expedient.” 

Siebold, 100 U.S. at 392. 

Numerous decisions of the Court confirm that this 

“paramount” authority of Congress includes the power 

to ensure the integrity of federal elections and 

officeholders and to legislate against the potentially 

corrupting influence of money in politics. The 

reasoning of the Court in Ex parte Yarbrough, 110 U.S. 

651, 657-58 (1884), still has force today: “If this 

government is anything more than a mere aggregation 

of delegated agents of other states and governments, 

each of which is superior to the general government, it 

must have the power to protect the elections on which 

its existence depends, from violence and corruption.” 

Similarly, in Burroughs v. United States, the Court 

found no doubt that Congress had the power “to pass 

appropriate legislation to safeguard [a presidential] 

election from the improper use of money.” 290 U.S. at 

545. To say otherwise would “deny to the nation in a 

vital particular the power of self-protection.” Id.; see 

also Buckley v. Valeo, 424 U.S. at 257(acknowledging 

the authority of Congress to “protect the elective 

processes against the ‘two great natural and historical 

enemies of all republics, open violence and insidious 

corruption’”) (White, J., concurring in part and 

dissenting in part) (quoting Yarbrough, 110 U.S. at 

658). 

The plaintiffs largely disregard the substantial 

body of case law supporting the authority of Congress 

to regulate federal elections. Indeed, they fail to 
9 

acknowledge or articulate any standard for measuring 

the extent of Congress’s authority to regulate federal 

elections. Instead, plaintiffs merely assert that 

Congress lacks the power to regulate state elections. 

See Br. of Political Parties at 79, 81-82; Br. for 

Appellants/Cross-Appellees Senator Mitch McConnell 

et al. at 27-30. In so doing, plaintiffs ask and answer 

the wrong question. The issue posed in this case is not 

whether Congress may regulate state elections, but 

whether Congress may regulate federal elections and 

officeholders in a manner that may affect some state 

and local campaign activity. 

Once properly posed, to paraphrase Justice Miller, 

the ‘question answers itself.’ Cf. Yarbrough, 110 U.S. 

at 662. Given the concurrent timing of federal and 

state elections in most jurisdictions, it would be 

impossible for Congress to act without having some 

impact on state elections.2 In Siebold, the Court 

acknowledged as much, declaring that a State’s 

decision to hold concurrent elections does not deprive 

Congress “of the right to make regulations in reference 

to [federal elections].” 100 U.S. at 393. The Court 

suggested that the power of Congress might not extend 

to matters “having exclusive reference to the election of 

State or county officers,” id. (emphasis added), thus 

implicitly recognizing that Congress does have primary 

authority over matters of shared federal and state 

interest. In Yarbrough, the Court once again rejected 

the argument that a concurrent state election in any 

2 The impact of federal regulations on state and local campaign

activity is longstanding. Prior to BCRA, federal law required the 

political parties to allocate their spending for many campaign 

activities between federal and nonfederal dollars. See 11 C.F.R. §

106.5 (2002). 
10 

way diminishes the authority of Congress to regulate 

the federal election. 110 U.S. at 661-62. Neither 

Siebold nor Yarbrough, nor any of the Court’s 

precedents, support the proposition that Congress must 

refrain from regulating matters related to federal 

elections and officeholders whenever those regulations 

could also impact state and local campaign activities. 

That is not to say that the power of Congress to 

regulate elections is so unfettered that it could swallow 

up the concomitant authority of States. In other areas, 

the Court has been hesitant to adopt expansive views 

of Congressional authority that would effectively 

remove “any limitation on federal power.” United 

States v. Lopez, 514 U.S. 549, 564 (1995); see also 

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

does not raise this concern, however, because it does 

not depend upon an expansive interpretation of federal 

power. As argued below, the Act reaches only those 

activities that are related to federal elections and 

officeholders, and it does not intrude on state 

sovereignty. BCRA thus respects the “distinction 

between what is truly national and what is truly local.” 

Morrison, 529 U.S. at 617-18. 

B. BCRA is an appropriate exercise of 

Congress’s authority to regulate federal 

elections. 

Once the scope of Congress’s authority to regulate 

federal elections and protect the integrity of federal 

officeholders is understood, plaintiffs’ federalism 

arguments are easily dismissed. Plaintiffs suggest that 

BCRA regulates matters unconnected to federal 

elections and undermines the authority of States to 

regulate state and local elections. They consistently 
11 

overstate the impact on state elections while 

minimizing the clear basis for federal authority over 

the regulated activities. The few specifics they cite 

illustrate the weakness of their arguments. 

The national party “soft money” ban. Title I of 

BCRA prohibits the national parties from raising and 

spending any nonfederal money. BCRA, tit. I, sec. 

101(a), § 323(a), 116 Stat. at 82. Plaintiffs complain 

that Congress exceeded its authority under the 

Elections Clause by prohibiting national parties from 

raising or spending soft money for nonfederal purposes, 

such as supporting candidates for state and local 

offices. The record in this case, however, demonstrates 

the significant federal interest in curtailing the ability 

of the national parties to raise and spend soft money. 

Close ties exist between the national party committees 

and the elected federal officials who run the 

committees and raise significant sums of soft money on 

their behalf. See, e.g., Kollar-Kotelly, 548sa-562sa; 

Leon, 1243sa-1247sa. The record illustrates the 

manner in which soft money donations to the national 

parties gain access for donors to federal candidates and 

officeholders. See, e.g., Leon, 1265sa-1271sa (lobbyists, 

former Members of Congress, business leaders, and 

donors believe that soft money donations to the parties 

increase access to officeholders); id. 1271sa-1276sa 

(party donation programs show that increased access 

corresponds with larger donations); Kollar-Kotelly, 

567sa (evidence shows that large contributions provide 

donors access to federal lawmakers). The public, not 

surprisingly, believes that large donors to the parties 

have a major impact on the decisions of elected federal 

officials. Leon, 1291sa. 
12 

These concerns do not go away merely because the 

national party committees are nominally raising 

money for nonfederal activities. Money is fungible. If 

the party committees are able to raise and use soft 

money for some “nonfederal” purposes, they will have 

more hard money available to transfer to or spend in 

support of federal candidates and officeholders. For 

this reason, a soft money contribution to a national 

party committee–although earmarked for a nonfederal 

purpose–may nonetheless confer a benefit on federal 

candidates and officeholders. The ban on national 

parties raising and spending soft money prevents 

donors from circumventing contribution limits in this 

way. Cf. Buckley v. Valeo, 424 U.S. at 38 (upholding 

$25,000 limit on total contributions during an election 

cycle “to prevent evasion of the $1,000 contribution 

limitation by a person who might otherwise contribute 

massive amounts of money to a particular candidate 

through the use of unearmarked contributions to 

political committees likely to contribute to that 

candidate, or huge contributions to the candidate's 

political party”). This provision of BCRA thus protects 

the integrity of federal officeholders and elections. 

The soft money ban on federal candidates and 

officeholders. Title I similarly prevents federal 

candidates and officeholders from raising or spending 

soft money in connection with any election, state or 

federal. BCRA, tit. I, sec. 101(a), § 323(e), 116 Stat. at 

84. Although federal officeholders remain free to solicit 

funds on behalf of state and local candidates, any sums 

raised must comply with federal contribution limits. 

Here, the federal interest is crystal clear.3 Past 

3 Judge Henderson addressed this issue below and held that 
13 

experience shows that allowing federal officeholders to 

raise soft money leads to the appearance of corruption, 

because the donors gain, or appear to gain, increased 

access to federal officials. The purpose for which the 

soft money is raised does not matter. If a federal 

officeholder solicits soft money contributions, both 

potential donors and the public must reasonably 

assume that the contributions will benefit that 

officeholder in some way. See Kollar-Kotelly, 566sa 

(federal officeholders value donations to state political 

parties “almost as much as donations made directly to 

their campaigns”). The benefit to the federal 

officeholder is sufficient to lead to a risk of corruption 

or the appearance of corruption. 

Restrictions on the use of soft money to fund 

“federal election activity” conducted by state and local 

parties. In addition to prohibiting the national parties 

and federal candidates and officeholders from raising 

or spending soft money, Title I restricts the use of soft 

money by state and local parties – but only to the 

extent that the money is used for “federal election 

activity.” BCRA, tit. I, sec. 101(a), § 323(b), 116 Stat. at 

82-83.4 Federal election activities include 

communications that support or attack federal 

candidates as well as voter registration activity within 

Congress has the power to regulate the solicitation and transfer of 

nonfederal funds by federal candidates and officeholders.

Henderson, 452sa n.174. 4 State and local parties and candidates may either use federal

money for these purposes, or a mix of federal dollars and 

nonfederal dollars raised pursuant to the “Levin Amendment,”

BCRA, tit. I, sec. 101(a), § 323(b)(2), 116 Stat. at 83. The Levin 

Amendment loosens the soft money restrictions somewhat for 

voter registration, voter identification, and get out the vote

activities. 
14 

120 days of a federal election, and voter identification, 

get out the vote, and party promotion activities 

conducted in connection with a federal election. BCRA, 

tit. I, sec. 101(b), § 301(20)(a), 116 Stat. at 85-86. 

Notably, although plaintiffs challenge these 

restrictions, they do not dispute that these activities 

are related to federal elections.5 

In fact, all of these activities significantly affect 

federal elections and are subject to federal regulation. 

When parties register voters, and find ways to help 

voters reach the polls, the voters cast ballots for federal 

candidates. When voters are influenced in the weeks 

before a federal election by signs and campaign ads 

that urge them to “Vote Democratic” or “Vote 

Republican,” they are influenced to vote for federal 

candidates. Congress previously attempted to regulate 

this kind of activity by allowing state parties to use a 

mix of federal and nonfederal money, but that 

approach proved to be a loophole through which 

substantial amounts of soft money were used to 

influence the outcome of federal elections. See KollarKotelly, 493sa-501sa (“issue” advocacy); id. 525sa5 The political party plaintiffs appear to argue that the Elections 

Clause gives Congress authority to regulate only those 

expenditures made “for the purpose of influencing” the outcome of 

a federal election. See Br. of Political Parties at 88. They cite no 

support for this proposition, however, and there is no logical 

reason that Congress’s power should be defined by the purpose of 

an activity or expenditure, rather than by its effect. The 

McConnell plaintiffs complain about this provision because 

sometimes the federal elections in a particular jurisdiction are 

“actually or practically uncontested.” Br. for Appellants/CrossAppellees Senator Mitch McConnell et al. at 33. They fail to 

explain why the power of Congress to regulate categories of 

election activity should turn on the election dynamics of a 

particular jurisdiction in a given year. 
15 

527sa (get out the vote activity); id. 529-531sa (voter 

registration); id. 542sa (“national parties found a huge 

loophole through which to circumvent the federal 

campaign finance regime”). BCRA closes the loophole. 

Communications by state candidates that support 

or oppose candidates for federal office. Under BCRA, a 

candidate for state office must use federal funds for 

communications that refer to a clearly identified 

candidate for federal office and promote, support, 

attack, or oppose the candidate for that office. BCRA, 

tit. I, sec. 101(a), § 323(f)(1), 116 Stat. at 85. In other 

words, if a state candidate wants to advocate for or 

against a federal candidate for office, the state 

candidate must use federal funds, just as the federal 

candidate would. Without this restriction, donors could 

easily evade the soft money limits by contributing to 

state candidates, who would use the money to support 

not only their own campaigns but also the campaigns 

of like-minded federal candidates.6 The connection with 

federal elections is clear and direct, and thus Congress 

has authority to regulate in this manner. 

Although plaintiffs challenge these elements of 

BCRA on federalism grounds, they nonetheless 

acknowledge that campaigns for federal and state 

elections are closely intermeshed. See, e.g., Br. of 

Political Parties at 19-20 (describing Republican 

“Victory Plans” and Democratic “Coordinated 

Campaigns”). Taken in context, plaintiffs’ complaint 

that Congress failed to respect the boundary between 

6 Plaintiffs further argue that federal candidates should be 

permitted to solicit soft money to be donated to state candidates, 

who could then use the funds to influence both the federal and 

state elections. 
16 

federal and state election activities cannot stand. As is 

evident, parties, candidates, and the voters respect no 

clear dividing line between such elections. When the 

political parties and candidates purposefully coordinate 

their efforts in federal and state elections, Congress 

can hardly be faulted for regulating federal elections in 

a manner that may impact some state and local 

activities. The overlap is neither avoidable nor 

unconstitutional. 

C. BCRA, which regulates the financial 

transactions of private parties, does not 

impermissibly intrude on state sovereignty. 

As important as what BCRA does is what BCRA 

does not do: it does not directly regulate the States in 

any way. The Act leaves untouched such matters as 

the timing of state elections, the structure of state 

government, the qualifications of state officeholders 

and voters, and the terms and duties of state officials. 

The degree of hyperbole found in the plaintiffs’ briefs, 

and in the brief of the Amici States of Virginia, et al., 

might suggest otherwise. But, contrary to the assertion 

of these amici States supporting the plaintiffs, BCRA 

does not affect “a State’s ability to have its own rules 

on how its own government will be chosen,” nor does it 

“trump[] state campaign finance laws.” Br. of Amici 

Curiae Virginia et al. at 2. Instead, the Act regulates 

the financial transactions of private parties. 

A brief comparison of BCRA with the cases cited 

by plaintiffs and their amici promptly illustrates that 

BCRA stops far short of intruding on state sovereignty. 

In Oregon v. Mitchell, 400 U.S. 112, 118 (1970), the 

Court struck a federal statute that set a minimum 

voting age for state elections. In Gregory v. Ashcroft, 
17 

501 U.S. at 463-64, the Court similarly expressed 

doubt about the power of Congress to interfere with the 

“authority of the people of the States to determine the 

qualifications of their most important government 

officials.” BCRA does not override any such state laws. 

Nor does it affect the conduct of voters in state 

elections. Cf. Blitz v. United States, 153 U.S. 308, 313-

15 (1894). Other cases are even farther afield. BCRA 

does not regulate the workings of state government at 

all, so it certainly does not “commandeer” state officials 

or state legislatures, see Printz, 521 U.S. at 925 or 

abrogate state sovereign immunity, see Alden v. Maine, 

527 U.S. 706, 712 (1999). 

Also inapposite are the supposed examples of 

Congressional overreaching described by the plaintiffs. 

The political parties emphasize that the “Chairman of 

the [Republican National Committee]” cannot “send a 

fundraising letter on behalf of a state gubernatorial 

candidate or even a local mayoral candidate.” Br. of 

Political Parties at 78. The McConnell plaintiffs cite 

this example of “severe” federal intrusion: federal 

officeholders, like Senator McConnell “will be 

prohibited from writing or calling donors to ask them 

to make donations . . . to state and local committees 

and candidates.” Br. of Appellants/Cross-Appellees 

Senator Mitch McConnell et al. at 34. What plaintiffs 

describe are simply restrictions on the solicitation of 

money by certain private parties, not intrusions on the 

authority of States to regulate their own elections. 

BCRA’s restrictions on soft money regulate the 

financial transactions of private parties, not States. 

Congress created a set of rules to govern the financing 

of federal elections, not state elections. Admittedly, the 

two areas overlap, in large part because many States 
18 

thus far have chosen to hold their elections 

simultaneously with federal elections.7 The power of 

Congress to regulate in this area, however, is not 

lessened by any incidental and unavoidable effect those 

regulations may have on state elections. 

II. BCRA Serves The Interests Of The States 

And Their Citizens By Restoring Integrity 

To The National Political Process And 

Promoting Political Participation and 

Discourse. 

Although Congress passed BCRA to reform the 

federal election process, the Act serves a goal that is 

vitally important to the States. It seeks to restore 

integrity to, and confidence in, the national political 

process of which all Americans are a part. As this 

Court has repeatedly recognized, “[d]emocracy works 

‘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.’” Nixon v. 

Shrink Missouri Gov’t PAC, 528 U.S. 377, 390 (2000) 

[hereinafter “Shrink Missouri”] (quoting United States 

v. Mississippi Valley Generating Co., 364 U.S. 520, 562 

(1961)). By eliminating the flow of soft money through 

the political parties, and preventing corporations and 

unions from spending unlimited sums on sham “issue 

ads,” BCRA is designed to remedy the “disaffection 

[and] distrust [that] has now spread to the entire 

political discourse.” Shrink Missouri, 528 U.S. at 408 

(Kennedy, J., dissenting). The States, like the federal 

government, must grapple with this national loss of 

7 States maintain the full authority as sovereigns to hold their 

elections at different times from federal elections. 
19 

faith in our democratic institutions. BCRA directly 

benefits the States and their citizens by (1) restoring 

faith in, and therefore participation in, the democratic 

process; and (2) ensuring that elected federal officials 

represent their constituents with loyalty and integrity. 

Americans’ confidence in their elected officials has 

been deeply shaken by the influence of money, real or 

apparent, on the outcomes of elections, access to 

government, and political decision-making. The record 

below contains substantial evidence that “the public 

believes there is a direct correlation between the size of 

a donor’s contribution to a political party and the 

amount of access to, and influence on, the officeholders 

of that party that the donor enjoys thereafter.” KollarKotelly, 626sa; Leon, 1289sa. Among the data before 

the court was a poll conducted by two prominent 

pollsters, Mark Mellman and Richard Wirthlin, see 

Leon, 1290sa, which found that “[a] significant 

majority of Americans believe that those who make 

large contributions to political parties have a major 

impact on the decisions made by federally elected 

officials.” Kollar-Kotelly, 627sa; Leon, 1291sa. The poll 

further found that seventy-one percent of Americans 

“think that members of Congress sometimes decide 

how to vote on an issue based on what big contributors 

to their political party want, even if it’s not what most 

people in their district want, or even if it’s not what 

they think is best for the country.” Kollar-Kotelly, 

628sa; Leon, 1292sa (emphasis added). 

It is crucial to the States that their citizens have 

faith in the democratic process. When the electorate 

perceives that federal elections or officeholders are 

corrupt, this perception taints the electorate’s view of 

more than just the federal government. Such a 
20 

sentiment leads to cynicism, alienation and a pervasive 

loss of faith in all levels of government – federal, state 

and local. State and local governments, which depend 

on their citizens to serve on local boards and 

committees, run for municipal offices, volunteer for 

emergency services and participate in the obligations 

of democratic society, suffer sharply from such 

cynicism. As this Court has warned, “[l]eave the 

perception of impropriety unanswered, and the cynical 

assumption that large donors call the tune could 

jeopardize the willingness of voters to take part in 

democratic governance.”Shrink Missouri, 528 U.S. at 

390; see also United States v. Int’l Union UAW-CIO, 

352 U.S. 567, 575 (1957) (noting that ban on corporate 

contributions not only preserves the integrity of the 

electoral process but also “sustain[s] the active, alert 

responsibility of the individual citizen in a 

democracy”). 

The States also have a keen interest in the 

integrity and loyalty of federal officeholders elected to 

represent the interests of their citizens. The record 

documents the ways in which soft money has distorted 

the federal political process and has given large donors 

disproportionate access to federal officeholders. 

Curtailing the solicitation and spending of soft money 

will reduce the pressure on federal officeholders to 

respond to the interests of donors and allow these 

public officials to focus their time and attention on the 

needs of their constituents. 

Removing the influence of “big money” not only 

promotes accountability, it invigorates political debate 

at the state and local level. Freeing the political parties 

of the race to raise and spend huge amounts of soft 

money in each federal election cycle will enable them 
21 

to refocus their efforts on political organizing at the 

state and local level, thereby giving ordinary 

Americans more opportunity to debate issues, meet 

candidates and participate in our national political 

process. BCRA is crucial to achieving this result. 

III. The Ability Of The States To Protect The 

Confidence Of Their Citizenry In Their Own 

Elected State Officials Should Not Be 

Hobbled By The First Amendment 

Proscriptions Sought By Plaintiffs. 

The Court should reject plaintiffs’ view of the 

First Amendment, not only to uphold BCRA, but to 

preserve the ability of the States to enact and enforce 

their own campaign finance reforms. The plaintiffs 

view virtually every significant aspect of BCRA as 

facially invalid. If adopted, plaintiffs’ constitutional 

vision would forever deny to the States the ability to 

enact broad categories of legislation,8 thereby 

transforming the First Amendment into an imposed set 

of “judicial formulas so rigid that they become a 

straightjacket that disables government from 

responding to serious problems.” Denver Area Educ. 

Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 741 

(1996) (plurality opinion). 

8 As an example, the McConnell plaintiffs argue that restrictions 

on contributions to political parties cannot be justified by the 

governmental interest in avoiding corruption or the appearance of 

corruption. Br. for Appellants/Cross-Appellees Senator Mitch 

McConnell et al. at 20. Both the McConnell and political party 

plaintiffs argue that limits on contributions to political parties 

must withstand strict scrutiny. Id. at 17; Br. of Political Parties at 

35-36. These views call into question not only section 101 of BCRA 

but also efforts by States to limit contributions to political parties. 
22 

The States seek to protect their ability to 

experiment with campaign finance reforms, because 

the States have a compelling interest in addressing the 

shared belief of many citizens that they have lost any 

meaningful voice in their own government. See FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257 

(1986) (“it is important to protect the integrity of the 

marketplace of political ideas”). A core attribute and 

function of the sovereignty of the Amici is the policing 

of their own elections. 

This case implicates the continuing validity, and 

the future vitality, of myriad State campaign finance 

reforms and innovations that address corruption or the 

appearance of corruption in State elections. See 

generally 33 Council of State Governments, The Book 

of the States 174-232 (2000) (detailing campaign 

finance reform legislation passed by the States); 

http://www.fec.gov/pages/cfllaw2000.htm (visited July 

30, 2003) (charting the current array of campaign 

finance legislation by the States). This Court should 

not effectively silence the medley of responses being 

played out in Statehouses across this nation. Instead, 

the Court should adopt a vision of the First 

Amendment that protects core freedoms while allowing 

the States to continue serving as “laboratories of 

democracy”: 

[A] single courageous state may, if its 

citizens choose, serve as a laboratory; and 

try novel social and economic 

experiments without risk to the rest of 

the country. This Court has the power to 

prevent an experiment. . . . But, in the 

exercise of this high power, we must be 

ever on our guard, lest we erect our 
23 

prejudices into legal principles. 

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 

(1932) (Brandeis, J., dissenting). 9 

Rather than enhancing state sovereignty, the 

plaintiffs seek to preclude the States from 

experimenting with meaningful campaign finance 

reform. As Judge Kollar-Kotelly recognized, the 

plaintiffs advance a view of the First Amendment that 

does not appear to “accept any restrictions 

whatsoever,” even the contribution limits established 

as constitutional in Buckley. Kollar-Kotelly, 1008sa. 

The plaintiffs seek not to reform, but to repeal, this 

entire area of the law, cutting a wide constitutional 

swath that would eradicate a century of efforts to deal 

with the erosion of the public’s faith in our institutions 

of democracy. If plaintiffs’ view of the law prevails, 

“[t]he clock will be turned back to close to 100 years of 

incremental and balanced campaign finance 

regulation.” Kollar-Kotelly, 1012sa-1013sa; see also 

9As Senator John Bankhead noted long ago: 

“We all know that money is the chief source of 

corruption. We all know that large contributions 

to political campaigns not only put the political 

party under obligation to the large contributors, 

who demand pay in the way of legislation, but we 

also know that large sums of money are used for 

the purpose of conducting expensive campaigns

through the newspapers and over the radio; in the 

publication of all sorts of literature, true and 

untrue; and for the purpose of paying the 

expenses of campaigners sent out into the country 

to spread propaganda, both true and untrue.” 

United States v. Int’l Union UAW-CIO, 352 U.S. at 577-78 (1957)

(quoting 86 Cong.Rec. 2720). 
24 

Leon, 1083sa, 1101sa (noting that various of the 

positions urged by plaintiffs, if adopted, would be an 

“affront” to the existing regulatory system and “would 

make a mockery of existing Supreme Court 

precedent”). 

The plaintiffs’ invocation of “federalism” in this 

case is nothing more than a political fig leaf. Plaintiffs 

seek to obscure the fact that their First Amendment 

arguments, if adopted, would foreclose meaningful 

state innovation across the political landscape of 

campaign finance law. Plaintiffs truly seek to restrict, 

not to preserve, state authority. Their arguments 

should be rejected. 

CONCLUSION 

For the foregoing reasons, the Court should uphold 

the constitutionality of the Bipartisan Campaign 

Reform Act. 

Respectfully submitted, 

THOMAS J. MILLER WILLIAM H. SORRELL 

Iowa Attorney General Vermont Attorney General 

THOMAS ANDREWS *BRIDGET C. ASAY 

Assistant Attorney General Assistant Attorney General 

109 State Street 

RICHARD BLUMENTHAL Montpelier, Vermont 05609 

Connecticut Attorney General (802) 828-3181 

Counsel for Amici States 

* Counsel of Record 

August 2003