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No. 02-1674 

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

In The 

Supreme Court of the United States 

----♦-- -

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 AMICI CURIAE OF THE STATES OF 

VIRGINIA, NORTH DAKOTA, IDAHO, 

INDIANA, KANSAS, NEBRASKA, OHIO, 

SOUTH CAROLINA, SOUTH DAKOTA, 

AND UTAH IN SUPPORT OF APPELLANTS 

----♦-- -

CRAIG ENGLE


(Counsel of Record) 


ARENT FOX KINTNER PLOTKIN


& KAHN, PLLC 

1050 Connecticut Avenue, N.W. 

Washington, DC 20036-5339 

(202) 857-6000 

(202) 775-5791 

[Additional Counsel Listed On Inside Cover] 

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

OR CALL COLLECT (402) 342-2831 
Jerry Kilgore, Attorney General 

of the Commonwealth of Virginia; 

Wayne Stenehjem, Attorney General 

of the State of North Dakota; 

Lawrence Wasden, Attorney General 

of the State of Idaho; 

Steve Carter, Attorney General of the 

State of Indiana; 

Phill Kline, Attorney General of the 

State of Kansas; 

Jon Bruning, Attorney General of the 

State of Nebraska; 

Jim Petro, Attorney General of the 

State of Ohio; 

Henry McMaster, Attorney General 

of the State of South Carolina; 

Larry Long, Attorney General of the 

State of South Dakota; 

Mark Shurtleff, Attorney General 

of the State of Utah 
i 

QUESTION PRESENTED 

Do the restrictions imposed upon state and local 

parties and elections by Title I of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”) violate Article I, Section 4 of 

the U.S. Constitution, the Tenth Amendment, and princi

ples of federalism? 
ii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ............................................ i 

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

STATEMENT OF INTEREST OF AMICI CURIAE..... 1 

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

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

I.THE CONSTITUTION LEAVES THE MAN

NER OF CONDUCTING STATE ELECTIONS 

TO THE STATES................................................ 7 

(1) The Founders Did Not Intend To Give Con

gress Power To Regulate State Elections .... 9 

(2) States Have Broad Regulatory Rights Over 

Conducting State Elections......................... 10 

(3) Campaign Finance Laws Are A Fundamen

tal Manner Of Conducting An Election...... 11

(4) A State Does Not Yield Its Power Because 

State And Federal Elections Are Held On 

The Same Day.............................................. 12 

(5) Arguments Against The State Interest Are 

Unpersuasive ............................................... 14 

II.TITLE I OF BCRA TAKES A MANNER OF 

CONDUCTING STATE ELECTIONS AWAY

FROM THE STATES.......................................... 17 

(1) States Have Adopted A Wide Variety Of 

Campaign Finance Laws............................. 17 

(2) BCRA Imposes Federal Rules On State Ac

tivity ............................................................. 20 
iii 

TABLE OF CONTENTS – Continued 

Page 

(3) BCRA Fundamentally Changes State

Choices On Financing State Election

Activity......................................................... 24 

CONCLUSION ............................................................ 29 
iv 

TABLE OF AUTHORITIES 

Page 

FEDERAL CASES 

Alden v. Maine, 527 U.S. 706 (1999) ................................. 29 

Austin v. Michigan Chamber of Commerce, 494 U.S. 

652 (1990) ......................................................................... 5 

Bernal v. Fainter, 467 U.S. 216 (1984)...............................11 

BFP v. Resolution Trust Corp., 511 U.S. 531 (1994)..........11 

Blitz v. United States, 153 U.S. 308 (1894)....................... 10 

Buckley v. Valeo, 424 U.S. 1 (1976).............................. 5, 6, 8 

Busbee v. Smith, 549 F. Supp. 494 (D.C. 1982), 

aff ’d, 459 U.S. 1166 (1983)............................................ 14 

California Democratic Party v. Jones, 530 U.S. 567 

(2000) .......................................................................passim


City of Edmonds v. Oxford House, Inc., 514 U.S. 

725 (1995) ........................................................................11 

Coleman v. Thompson, 501 U.S. 722 (1991)........................ 6 

Eu v. San Francisco County Democratic Central


Comm., 489 U.S. 214 (1989) .......................................... 26 

Ex parte Siebold, 100 U.S. 371 (1879)............................... 12 

Ex parte Yarbrough, 110 U.S. 651 (1884).......................... 13 

Federal Election Comm’n v. Beaumont, No. 02-403, 

2003 U.S. LEXIS 4595 (U.S. June 16, 2003)..................11 

Federal Election Comm’n v. Colorado Republican


Federal Campaign Committee, 533 U.S. 431 

(2001) .............................................................................. 20 

Federal Election Comm’n v. GOPAC, Inc., 917 

F. Supp. 851 (D.D.C. 1996)............................................. 26 

Foster v. Love, 522 U.S. 67 (1997).................8, 11, 12, 13, 14 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Garcia v. San Antonio Metropolitan Transit Author­


ity, 469 U.S. 528 (1985)............................................ 12, 16 

Gillespie v. City of Indianapolis, 185 F.3d 693 (7th

Cir. 1999)....................................................................... 6, 7 

Gregory v. Ashcroft, 501 U.S. 452 (1991)..................7, 11, 29 

Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964) ............................................................... 29 

Hodel v. Virginia Surface Mining & Reclamation


Ass’n, 452 U.S. 264 (1981).......................................... 7, 29 

Kusper v. Pontikes, 414 U.S. 51 (1973).............................. 12 

McConnell v. Federal Election Comm’n, No. 02-582, 

2003 U.S. Dist. LEXIS 7834 (D.D.C. May 1, 2003)... 1, 14 

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316

(1819) .............................................................................. 15 

National League of Cities v. Usery, 426 U.S. 833

(1976) ................................................................................ 7 

Nixon v. Shrink Missouri Government PAC, 528 

U.S. 377 (2000) ..................................................... 6, 20, 28 

New York v. United States, 505 U.S. 144 (1992) ... 6, 7, 9, 14 

Oklahoma v. United States Civil Service Comm’n, 

330 U.S. 127 (1947) ........................................................ 13 

Oregon v. Mitchell, 400 U.S. 112 (1970) ...............3, 8, 10, 11

Pennsylvania Dep’t of Corrections v. Yesky, 524 U.S. 

206 (1998) ........................................................................11 

Pope v. Williams, 193 U.S. 621 (1904)............................... 10 

Printz v. United States, 521 U.S. 898 (1997)....... 6, 7, 13, 29

Roudebush v. Hartke, 405 U.S. 15 (1972)............................ 8 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Smiley v. Holm, 285 U.S. 355 (1932)..................................11 

Storer v. Brown, 415 U.S. 724 (1974) .................................. 8 

Sugarman v. Dougall, 413 U.S. 634 (1973)................... 8, 10 

Tashjian v. Republican Party of Connecticut, 479 

U.S. 208 (1986) ................................................................. 8 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. 

Cir. 1999)......................................................................... 15 

United States v. Lopez, 514 U.S. 549 (1995) ..................... 29 

United States v. Reese, 92 U.S. 214 (1875)........................ 13 

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

(1995) ............................................................................ 8, 9 

CONSTITUTION, STATUTES AND ACTS

U.S. Const. art. I, § 4........................................................ 1, 7 

U.S. Const. Amend. X..................................................passim


2 U.S.C. § 1 ......................................................................... 12 

2 U.S.C. § 7 ......................................................................... 12 

2 U.S.C. § 431(8)(B)(ix) ...................................................... 20 

2 U.S.C. § 431(8)(B)(x) ....................................................... 20 

2 U.S.C. § 431(8)(B)(xi) ...................................................... 20 

2 U.S.C. § 441a ................................................................... 20 

2 U.S.C. § 441a(a)(1) .......................................................... 20 

2 U.S.C. § 441a(a)(2) .......................................................... 20 

2 U.S.C. § 441a(d)............................................................... 20 

2 U.S.C. § 441a(h)............................................................... 20 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

2 U.S.C. § 441b ............................................................. 15, 16 

2 U.S.C. § 441b(a)............................................................... 20 

2 U.S.C. § 441e ............................................................. 15, 16 

2 U.S.C. § 453 (1976) (amended 2002) ................................ 5 

18 U.S.C. § 219 ................................................................... 16 

18 U.S.C. § 613 ................................................................... 16 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 301(20)(A)......................................................passim 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 301(20)(B)............................................................. 22 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 323(a)........................................................ 21, 24, 25 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 323(a)(1) ............................................................... 25 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 323(b)(1) ......................................................... 21, 23 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 323(b)(2) ................................................... 22, 23, 27 

Bipartisan Campaign Reform Act of 2002, tit. I, sec. 

101, § 323(f) ............................................ 22, 23, 24, 27, 28 

Bipartisan Campaign Reform Act of 2002, tit. III, 

sec. 312............................................................................ 24 

Bipartisan Campaign Reform Act of 2002, tit. III, 

sec. 315............................................................................ 24 

Tillman Act, ch. 420, 34 Stat. 864 (1907) .......................... 16 

11 C.F.R. § 102.5................................................................. 20 

11 C.F.R. § 106.................................................................... 20 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

H.R. Rep. No. 93-1438 (1974) .............................................. 5 

Mich. Comp. Laws § 169.254 (2003).................................. 18 

Utah Code Ann. § 20A-11-1403 (Supp. 2002).................... 18 

California Proposition 34, Campaign Contributions 

and Spending. Limits. Disclosure. (2000) ..................... 19 

Act to Promote the Purity of Elections, Cal. Stat. 

(1893) .............................................................................. 18 

Act to Prevent Corrupt Practices in Elections and 

to Provide for Publicity of Elections Expenses, 

Mass. Acts (1892)............................................................ 18 

OTHER AUTHORITIES 

29 Congressional Yellow Book (Ericka J. Claflin ed., 

Leadership Directories, Inc. Summer 2003) ................. 16 

Brief of Amici Curiae States of Iowa et al., McConnell v. Federal Election Comm’n, 2003 U.S. Dist. 

LEXIS 7834 (D.D.C. May 1, 2003) (No. 02-582) ........... 14 

Joseph Story, Commentaries on the Constitution of 

the United States (1st ed. 1833)................................... 8, 9 

Federal Election Comm’n, Campaign Finance Law 

2000: Chart 2A: Contribution and Solicitation 

Limitations at http://www.fec.gov/pages/cfl00 

chart2A.htm (last modified June 6, 2000) .................... 18 

The Federalist, No. 39 (James Madison) (Clinton 

Rossiter ed., 1961) .......................................................... 13 

The Federalist No. 59 (Alexander Hamilton) (Clin

ton Rossiter ed., 1961)................................................ 8, 10 
ix 

TABLE OF AUTHORITIES – Continued 

Page 

Massachusetts Governor Lets Stand Repeal of 

Public Campaign Financing, 2003 Money & Poli

tics Rep. (BNA) (July 1, 2003) ....................................... 19 

Murkowski Signs Bill Loosening Limits on Contributions and Lobbyists in Alaska, 2003 Money & 

Politics Rep. (BNA) (July 1, 2003)................................. 19 

North Carolina State Board Finds Municipalities 

Barred From Making Contributions, 2003 Money 

& Politics Rep. (BNA) (July 2, 2003) ............................. 19 

South Carolina Governor Signs Bill To Beef Up 

Campaign Finance Rules, 2003 Money & Politics 

Rep. (BNA) (June 30, 2003) ........................................... 19 
1 

STATEMENT OF INTEREST OF AMICI CURIAE1 

Amici are States which through our Attorneys General argue BCRA is an unconstitutional intrusion upon 

state sovereignty. While the Federal Elections Clause, U.S. 

Const. art. I, § 4, cl. 1, gives the Federal Government 

broad authority to regulate federal elections, it provides no 

authority for Congress to regulate state election activity. 

When BCRA took effect, many state campaign finance 

laws were overridden. This is even true for amicus Commonwealth of Virginia, which is conducting its state 

elections this November in a non-federal election year. 

Filing this brief is necessary because the lower panel 

neglected the Plaintiffs’ threshold Elections Clause and 

Tenth Amendment arguments. Basing their decisions 

primarily on the First Amendment, Judges Leon and 

Henderson did not confront Plaintiffs’ federalism claims. 

Judge Kollar-Kotelly avoided the issue by finding none of 

the Plaintiffs had standing to raise the argument.2 

1 This brief was not written in whole or in part by counsel for a 

party. The preparation of this brief was funded by the State Government Leadership Foundation, a 501(c)(4) organization whose membership includes present and former elected state officials of the amici 

States. 

2 With respect to §§ 301(20)(A)(i), (ii), and (iv), Judge Leon 

admitted it is a “considerable issue” whether the Elections Clause can 

be fairly read to allow Congress to regulate state party matters. Leon at 

1119sa-1120sa. But he also skipped the federalism challenges to Section 

301(20)(A)(iii) without explanation. Leon at 1126sa, n.63. Opinions for 

McConnell v. Federal Election Comm’n, No. 02-582, 2003 U.S. Dist. 

LEXIS 7834 (D.D.C. May 1, 2003), reprinted in Joint Supplemental 

Appendix to Jurisdictional Statements, cited herein as [Name of Judge] 

at 1-1400sa. 
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2 

Amici are well-informed to bring to the Court’s attention the overreach of BCRA and its federalization of state 

and local campaign finance law. States have responsibility 

for conducting state elections and have adopted their own 

campaign finance rules reflecting the different choices of 

our citizenries. As always, amici are vigilant in ensuring 

the Federal Government does not exceed its limited 

Constitutional authority; we submit this brief to defend 

our unique interest. 

----♦-- -

AUTHORITY TO FILE 

This brief is presented on behalf of amici States by 

their Attorneys General pursuant to Court Rule 37.4. 

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SUMMARY OF ARGUMENT 

Our Federal government is one of limited powers. The 

judiciary, a branch with tenure and authority independent 

of direct electoral control, must often keep Congress’ 

political zest from running beyond its actual legislative 

power. One limitation on Congress is a result of the war 

our forefathers fought over the abuses of sovereignty. 

Their victory created the constitutional principle of federalism to protect the people and the States from being 

overrun by a national government, as the colonies were. 

Title I of BCRA violates that principle. The offense 

occurs in the most fundamental area of a democratic 

system: a State’s ability to have its own rules on how its 

own government will be chosen. Congress’ transgression 

occurs by trumping state campaign finance laws and is 
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3 

similar to its prior over-reaching in Oregon v. Mitchell, 400 

U.S. 112 (1970). This Court is called to prevent this 

violation by applying the Tenth Amendment or the Elections Clause in Article 1 of the U.S. Constitution. 

Congress has asked this Court to vouchsafe its fears of 

corruption. It has even presented alternative statutes to 

the Court to help them find a political majority on how to 

clean up the system. This Court can avoid that thicket by 

finding state sovereignty – an idea older than contribution 

limits or the appearance of corruption – has been trespassed by Congressional over-regulation. Simply put, 

whatever problems Congress thinks it has with its elections cannot lawfully be solved by federalizing the rules 

Governors, state legislators and even some candidates for 

mayor must follow to get elected. 

When Congress overruled the financing laws our 

constituents chose for electing their own state governments, it also took from them the power to shape what 

their state leaders do and how they will be held accountable. Do not take our word for it: Congressionally-elected 

campaign finance reformers insist that contributions, and 

not ideas, determine politics and legislative results. If they 

are right, then the Constitution must be invoked to prevent Congress from determining state politics and legislative results by reforming state campaign finance laws. And 

if they are wrong, then this entire artifice is in doubt. 

Either way, Congress does not have the authority to 

overrule our campaign laws and their lack of deftness in 

doing so shows how fortunate it is they do not have that 

right. 

----♦-- -
4 

ARGUMENT 

This case combines two of the most lively debates in 

American history: campaign finance reform in the 107th 

Congress and the proper allocation of power among dual 

sovereigns in the Constitutional Convention. To reconcile 

these two, this Court must understand what non-federal 

(“soft”) money really is and does, and how the new campaign finance reform law conflicts with the Framers’ 

cherished federalism. 

Political parties raise and spend non-federal money in 

two different places and ways. First is money raised 

(typically by national party committees, federal officeholders and candidates) and spent outside the contribution and 

expenditure definitions of federal election law. This money 

is kept by the national parties in a few large accounts in 

Washington and finances the national parties’ administrative expenses, redistricting work, and a share of its federal 

candidate-related issue ads and voter contact expenses.3 

Second is money raised (by just about anyone) and 

spent in specific compliance with the limits and definitions 

of a state’s own election law. State parties raise this money 

and keep it in their own state accounts for making 

contributions to state candidates and to pay for voter 

contact expenses. National parties also raise this money to 

make state-regulated contributions to state candidates 

and transfers to state parties. 

3 Leon at 1214sa-1215sa (facts #60-64); Kollar-Kotelly at 533sa 

(fact #1.35). 
5 

BCRA regulates both. We are not challenging Congress’ wisdom or ability to regulate federal money for the 

very reason Congress should not be allowed to regulate 

non-federal money; we each lack the power to regulate the 

other. 

This Court has said Congress, not the States, has the 

authority to regulate federal campaign finance. Buckley v. 

Valeo, 424 U.S. 1, 13 (1976) (noting Congress’ power to 

regulate federal elections is well-established). In fact, the 

Federal Election Campaign Act specifically preempts the 

States from regulating federal campaign finance.4 

It follows that States have similar authority to regulate state campaign finance. To be sure, this Court recently sustained two state campaign finance laws not 

because they were compatible with Congress’ rules (in fact, 

they were not) but because each State advanced its own 

interest well enough to pass First Amendment muster. 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 

660, 666 (1990) (“[Michigan] has articulated a sufficiently 

compelling rationale to support its restriction on independent expenditures by corporations . . . [and] Michigan’s 

4 See 2 U.S.C. § 453 (1976) (amended 2002) (federal election laws 

“supersede and preempt any provision of State law with respect to 

election to Federal office”). According to the Conference Committee 

report on the 1974 Amendments to the Act, federal law controls with 

respect to campaign expenditure-related criminal sanctions; the sources 

of campaign funds used in federal races; reporting and disclosure of 

political contributions to, and expenditures by, federal candidates and 

political committees; and the conduct of federal campaigns – but does 

not affect the States’ rights as to other election related conduct such as 

voter fraud; ballot theft; the manner of qualifying as a candidate; or the 

dates and places of elections. H.R. Rep. No. 93-1438, at 69, 100-101 

(1974). 
6 

decision to exclude unincorporated labor unions from the 

[prohibition] is therefore justified by the crucial 

differences between unions and corporations.”); Nixon v. 

Shrink Missouri Government PAC, 528 U.S. 377, 382 

(2000) (“We hold Buckley to be authority for comparable 

state regulation, which need not be pegged to Buckley’s 

dollars.”). Although Congress may have an irresistible interest 

in our campaign finance practices, the Constitution’s 

Elections Clause or the Tenth Amendment means Congressional authority stops where ours begins. Amici agree 

Elections Clause case law requires the States to yield or 

share many federal election functions with Congress, but 

decisions on who can contribute, what kind and amount of 

money can be used, and how candidates and parties can 

spend that money in state elections is a State’s alone. This 

traditional and essential state power does not disappear 

because Congress has authority over federal elections, 

which are often held on the same day as state elections. 

To be clear, we do not seek redress just for ourselves 

as political entities, but for the protection of our citizens 

who derive liberty from the diffusion of power. Gillespie v. 

City of Indianapolis, 185 F.3d 693, 703 (7th Cir. 1999) 

(quoting New York v. United States, 505 U.S. 144, 182-83 

(1992) (O’Conner, J., for the Court) (quoting Coleman v. 

Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting))). 

Accordingly, amici will prove BCRA is an “ultra vires” 

Congressional action, see Printz v. United States, 521 U.S. 
7 

898, 923 (1997), by (I) discussing the threshold question5

 of 

Constitutional federalism and state elections, and (II) 

showing how Title I of BCRA takes power from the States. 

I. THE CONSTITUTION LEAVES THE MANNER 

OF CONDUCTING STATE ELECTIONS TO THE 

STATES 

The Elections Clause states: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be 

prescribed in each State by the Legislature 

thereof; but the Congress may at any time by 

Law make or alter such Regulations, except as to 

the Places of chusing Senators. 

U.S. Const. art. I, § 4, cl. 1. 

5 Amici respectfully suggest the Court order the constitutional 

analysis in this case as was done in Gillespie, 185 F.3d 693: initially 

asking if the advocate can make a Tenth Amendment challenge; if yes, 

then deciding if that challenge is successful; if no, then proceeding to 

other claims such as Second or Fifth Amendment challenges. See also 

New York, 505 U.S. 144 (Tenth Amendment inquiry, then Guarantee 

Clause and Severability analysis); Printz, 521 U.S. 898 (Tenth Amendment inquiry, then Necessary and Proper Clause analysis); Gregory v. 

Ashcroft, 501 U.S. 452 (1991) (noting state’s Tenth Amendment right to 

regulate its judiciary, then finding no Congressional intent under the 

Commerce Clause to change that, then finding no violation of the Equal 

Protection Clause); Cf. Hodel v. Virginia Surface Mining & Reclamation 

Ass’n, 452 U.S. 264 (1981) (relying on National League of Cities v. 

Usery, 426 U.S. 833 (1976), looking at the Commerce Clause first, then 

the Tenth Amendment, then Just Compensation and Due Process 

Clauses of the Fifth Amendment). 
8 

That sentence is traditionally cited as the source of 

Congressional authority to regulate campaign finance. 

Buckley, 424 U.S. at 13. This Court has unanimously 

called this clause a “default provision; it invests the States 

with responsibility for the mechanics of congressional 

elections . . . so far as Congress declines to preempt 

[them].” Foster v. Love, 522 U.S. 67, 68 (1997) (internal 

citation omitted) (emphasis added). See also, Storer v. 

Brown, 415 U.S. 724, 729-30 (1974); Roudebush v. Hartke, 

405 U.S. 15, 24 (1972). 

This clause has not, however, given Congress default 

power to regulate state elections. See, e.g., Tashjian v. 

Republican Party of Connecticut, 479 U.S. 208, 217 (1986) 

(the Constitution allows for “state control over the election 

process for state offices”); California Democratic Party v. 

Jones, 530 U.S. 567, 572 (2000) (“[S]tates have a major 

role to play in structuring and monitoring the election 

process. . . . ”). This sentiment appears in majority opinions and dissents alike. Jones, 530 U.S. at 590 (“A State’s 

power to determine how its officials are to be elected is a 

quintessential attribute of sovereignty.”) (Stevens, J. 

joined by Ginsberg, J., dissenting). 

The best analyses of the limited reach of the Elections 

Clause are made in Oregon v. Mitchell, 400 U.S. at 117-126 

(controlling opinion of Black, J.); Sugarman v. Dougall, 

413 U.S. 634, 647 (1973); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995); 2 Joseph Story, Commentaries on the Constitution of the United States 280-92 (1st 

ed. 1833); and The Federalist No. 59 (Alexander Hamilton). From each of those varied settings and centuries, one 

principle endures: the States, and not the federal government, have authority under the Elections Clause or the 
9 

Tenth Amendment6

 to regulate their own elections and 

perquisites for filling local public office. 

This principle is supported by five points: (1) the 

founders’ purpose in enumerating an election power for 

Congress was not to give it power to regulate state elections; (2) this Court’s jurisprudence affirms States have 

broad regulatory rights over conducting state elections; (3) 

campaign finance laws are a fundamental manner of 

conducting an election; (4) a State does not yield its power 

because state and federal elections are often held on the 

same day; (5) arguments against the state interest are 

unpersuasive. 

(1) 	The Founders Did Not Intend To Give Congress Power To Regulate State Elections 

The Constitutional Convention debates make clear the 

Framers’ Election Clause compromise was not intended to 

give Congress plenary power over federal and state elections, but rather to prevent States from over-regulating 

federal elections. See 2 Joseph Story, Commentaries on the 

Constitution of the United States 280-92, 284 (1st ed. 1833) 

(The concept of federal power regulating state elections is 

“so flagrant a violation of principle, as to require no 

comment.”); U.S. Term Limits, 514 U.S. at 808-09 (“[T]he 

6 The question whether Congress has the affirmative power to 

regulate in a certain area is the “mirror image[ ]” of the question 

whether states have the reserved power to regulate in that area under 

the Tenth Amendment. See, e.g., New York v. United States, 505 U.S. at 

156. If the Tenth Amendment is not a tautology, amici would view this 

case as a Congressional over-extension of a delegated power, rather 

than a pure Tenth Amendment inquiry, because the Constitution metes 

out election powers rather than being completely silent on the subject. 
10 

Framers’ overriding concern was the potential for States’ 

abuse of the power to set the ‘Times, Places and Manner’ 

of elections.”); The Federalist No. 59, at 363 (Alexander 

Hamilton) (Clinton Rossiter ed., 1961) (arguing that giving 

state governments exclusive power to regulate federal 

elections would leave the existence of the Union at the 

mercy of the States). 

(2) 	States Have Broad Regulatory Rights Over 

Conducting State Elections 

This Court’s history is replete with endorsements of 

state power over state elections. See, e.g., Sugarman, 413 

U.S. at 647 (State’s power to regulate elections inheres in 

the State “the basic conception of a political community”) 

(internal quotation omitted); Pope v. Williams, 193 U.S. 

621, 632 (1904) (“[T]he privilege to vote in a State is 

within the jurisdiction of the State itself, to be exercised as 

the State may direct, and upon such terms as to it may 

seem proper, provided, of course, no discrimination is 

made between individuals, in violation of the Federal 

Constitution.”); Blitz v. United States, 153 U.S. 308, 314-

15 (1894) (The national government has “no concern” 

regarding certain fraud in the election of state offices.). 

In Oregon v. Mitchell, 400 U.S. 112, this Court upheld 

a new voting age statute only as applied to federal, but not 

state, elections. Justice Black wrote: 

[n]o function is more essential to the separate 

and independent existence of the States and 

their governments than the power to determine 

within the limits of the Constitution the qualifications of their own voters for state, county, and 

municipal offices and the nature of their own machinery for filling local public offices. 
11 

Mitchell, 400 U.S. at 125 (emphasis added). Justice Black 

made an additional and compelling point in Mitchell: a 

State’s plenary power over state elections is limited only 

by U.S. Constitutional Amendments, “each of which has 

assumed that the States had general supervisory power 

over state elections.” See id. at 125-26. 

(3)	 Campaign Finance Laws Are A Fundamental Manner Of Conducting An Election 

There should be no doubt that state and federal 

campaign finance laws are a “traditional and essential 

function” of a democratically elected government. See 

Pennsylvania Dep’t of Corrections v. Yesky, 524 U.S. 206, 

209 (1998). Just as in determining the qualifications for 

state office holders, amici contend the manner of holding 

an election is a “decision of the most fundamental sort for 

a sovereign” and “at the heart of representative government.” Gregory, 501 U.S. 452, 460, 463 (quoting Bernal v. 

Fainter, 467 U.S. 216, 221 (1984)); accord City of Edmonds 

v. Oxford House, Inc., 514 U.S. 725, 732 n.5 (1995); BFP v. 

Resolution Trust Corp., 511 U.S. 531, 565 n.17 (1994) 

(Souter, J., dissenting). Regulating the manner of an 

election is “comprehensive” authority including the power 

to impose “numerous requirements as to procedure and 

safeguards which experience shows are necessary in order 

to enforce the fundamental right involved.” Foster, 522 

U.S. at 72 n.2 (quoting Smiley v. Holm, 285 U.S. 355, 366 

(1932)). 

The Federal government’s manner of regulating 

campaign finance is one traditional aspect of conducting a 

federal election. Federal Election Comm’n v. Beaumont, 

No. 02-403, 2003 U.S. LEXIS 4595, at *14 (U.S. June 16, 

2003) (noting that since 1907, there has been a century of 
12 

Congressional attention to corporate political contributions). For Congress, enacting campaign finance laws is an 

essential government function too. Supporters contend the 

whole branch may fall victim to the appearance of corruption without new, stricter rules. If this Court agrees, then 

each State also faces this fundamental issue – but for 7 itself. See Garcia v. San Antonio Metropolitan Transit 

Authority, 469 U.S. 528, 556 (1985) (declining to review 

limitations placed on Congress’ Commerce Clause powers 

by our federal system). 

(4) 	A State Does Not Yield Its Power Because 

State And Federal Elections Are Held On 

The Same Day 

The date of holding an election does not change a 

State’s rights. Surely, when a State holds its elections 

simultaneously with the Federal government, Congress 

does not lose its power to regulate federal elections. But 

this does not mean Congress somehow gains the power to 

regulate state elections held on the same day.

8 See Ex parte 

7 Congress’ purpose in enacting campaign finance reform (to orient 

Members away from donors and towards constituents) is precisely the 

reason Congress cannot regulate contributions to our state candidates 

and parties. See Jones, 530 U.S. at 580-81. Altering election laws for the 

purpose of changing candidates’ views or whom they must “curry favor 

with” to get elected or reelected unconstitutionally occurs at the 

expense of a party’s ability to perform the basic function of choosing 

their own leaders. Id. (citing Kusper v. Pontikes, 414 U.S. 51, 58 (1973)). 

This is especially true when the goal is the “election of problem solvers 

who are less beholden to party officials.” Id. (emphasis in original). 

8 “Federal Election Day” under 2 U.S.C. §§ 1 and 7, means “the 

Tuesday after the first Monday in November in an even numbered 

year.” Foster, 522 U.S. at 68. 
13 

Siebold, 100 U.S. 371, 393 (1879) (acts relating exclusively 

to the election of state and county officers are not amenable to Federal jurisdiction); Oklahoma v. United States 

Civil Service Comm’n, 330 U.S. 127, 143 (1947) (The 

United States “has no power to regulate[] local political 

activities as such.”); United States v. Reese, 92 U.S. 214, 

218 (1875) (noting with regard to the Elections Clause and 

municipal races, “the effect of art. 1, sect. 4, of the Constitution, in respect to elections for senators and representatives, is not now under consideration.”). 

The date of a state and federal election is a critical 

point because BCRA’s hook for federalizing state fundraising rules is that nearly all elections for federal and state- 9 wide office are held on the same day. Moving state elections to a different day or year to avoid BCRA’s claw 

should not be suggested. As is, state elections are not 

violating anyone’s constitutional rights. Nor are amici 

challenging Congress’ exercise of its constitutional power 

over itself. We are just defending the exercise of our own. 

Saying that States can exercise their rights some other 

time does not sound as though we have “residuary and 

inviolable sovereignty” but more like we are Congress’ 

prefecture. The Federalist, No. 39, at 245 (James Madison) 

(Clinton Rossiter ed., 1961); Printz, 521 U.S. at 919.10 

9 See BCRA, Pub. L. No. 107-155, tit. I, sec. 101, §§ 301(20)(A)(i), 

(ii), 116 Stat. 81, 85-86. Leon at 1213sa (fact #58); Kollar-Kotelly at 

536sa (fact #1.39.1.2); Henderson at 298sa (fact #72c(2)(A)). 

10 States may wish to hold their elections simultaneously with 

those for the Federal government not just for convenience but for the 

reason Congress wanted a uniform federal election day: to remedy the 

evil arising from elections at different times that can distort the voting 

process and influence later voting. Foster, 522 U.S. at 73 (quoting Ex 

(Continued on following page) 
14 

(5) 	Arguments Against The State Interest Are 

Unpersuasive 

Although several States may write in favor of BCRA, 

the Constitutional power of Congress cannot be expanded 

by the “consent” of the governmental unit whose domain 

has been narrowed. New York, 505 U.S. at 182. Further, 

amici find the arguments of our sister states to be unconvincing. Below, they wrote: “because the Act is designed to 

regulate federal election activity, it does not intrude on 

purely local matters.” Brief of Amici Curiae States of Iowa 

et al. at 13, McConnell v. Federal Election Comm’n, 2003 

U.S. Dist. LEXIS 7834 (D.D.C. May 1, 2003) (No. 02-582) 

(emphasis added). With all due respect, that sounds more 

like an ipse dixit than a reasoned explanation, especially 

when those states also admit “some impact on those state 

elections and campaigns is inevitable.” Id. at 11. That 

impact is not excusable just because BCRA was not intended to regulate state elections activity. See Foster, 522 

U.S. at 73 (Resolving a conflict between state and federal 

election laws “does not depend on discerning the intent 

behind the federal statute.”). Instead, it shows how positively well-integrated state and federal political activities 

are even with a dual set of governments.11 And to the 

extent our sister states’ arguments are policy-driven12 

we 

parte Yarbrough, 110 U.S. 651, 661 (1884)); Busbee v. Smith, 549 

F. Supp. 494, 524 (D.D.C. 1982) (recounting the purposes of § 7), aff ’d, 

459 U.S. 1166 (1983). 

11 Leon at 1221sa-1222sa (facts #90-92); Kolar-Kotelly at 525sa 

(fact #1.28); Henderson at 297sa (fact #71c). 

12 Policy arguments made below such as BCRA “is attacking the 

causes of cynicism,” and “is an urgently needed national solution to a 

national problem,” or BCRA will “counter the negative influence of 

fundraising” are all debatable, but not before the Court. Brief of Amici 

Curiae States of Iowa et al. at 3, 5, 8, McConnell v. Federal Election 

(Continued on following page) 
15 

concede they have won that argument in the branch where 

it was properly fought. Today’s question is whether that 

victory was constitutional. 

BCRA’s defenders may also claim it intrudes no more 

on state sovereignty than some other provisions of FECA, 

namely 2 U.S.C. § 441b forbidding “any national bank, or 

any corporation organized by authority of any law of 

Congress, to make a contribution or expenditure in connection with any election to any political office” (emphasis 

added) and 2 U.S.C. § 441e forbidding foreign nationals 

from making contributions “in connection with a Federal, 

State or local election.”13 

These provisions enjoy a stronger pedigree than 

BCRA. Sections 441b and e each find support in wellrecognized Congressional powers other than the Elections 

Clause. With respect to § 441b, Congress has long held the 

ability to charter and regulate national banks. See 

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). 

Inherent in the grant of corporate life is the ability of the 

sovereign (in this case Congress, not a State) to constrain 

such institutions in the way its grantor sees fit. Section 

441e is part of the Federal government’s plenary power 

over immigration and foreign affairs rather than a specific 

Comm’n, 2003 U.S. Dist. LEXIS 7834 (D.D.C. May 1, 2003) (No. 02-

582). 

13 The FEC has previously interpreted “any political office” as 

applying to federal, state and local elections. See United States v. 

Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999). The Court has 

never had occasion to rule whether this FEC interpretation, § 441b or 

§ 441e can withstand Tenth Amendment scrutiny. Amici note BCRA 

expanded 441e, but that change is not at issue in this case. 
16 

attempt to regulate elections. The predecessors to §§ 441b 

and e also predate any effort on the part of the Federal 

government to systematically regulate campaign contributions.14 

This Court should note dual sovereignty is more than 

a barrier against a tide toward nationalism. It also allows 

healthy competition among the States. Amici know each 

State’s individual success is based on enacting unique 

legislation in a variety of areas such as tax, employment 

law, and even the rules for financing state and local 

campaigns. Beyond being democracy’s laboratory, a State 

may feel a contribution restriction (or lack thereof) may 

induce better candidates to run for governor who in turn, 

may have better chances of enticing new businesses or 

winning federal appropriations. Given that 68 of today’s 

100 U.S. Senators were previously elected to some state 

office,15 our own state campaign finance laws must have 

been a fair proving ground for federal office. 

We agree state sovereign interests are more properly 

protected by “procedural safeguards inherent in the 

structure of the federal system than by judicially created 

limitations on federal power.” Garcia, 469 U.S. at 552. To 

amici it is obvious that federalism protects our sovereign 

interests in deciding who can contribute to those wishing 

14 2 U.S.C. § 441b was originally part of the Tillman Act, ch. 420, 

34 Stat. 864 (1907). 2 U.S.C. § 441e was originally enacted as 18 U.S.C. 

§ 613 (1966), an amendment to the 1938 Foreign Agent Registration 

Act, 18 U.S.C. § 219. 

15 See 29 Congressional Yellow Book (Ericka J. Claflin ed., Leadership Directories, Inc. Summer 2003). 
17 

to run our governments, what support they can give, and 

how that money can be spent. 

II. 	TITLE I OF BCRA TAKES A MANNER OF 

CONDUCTING STATE ELECTIONS AWAY 

FROM THE STATES 

Title I of BCRA imposes new, nationally uniform rules 

that change the way amici have chosen to finance our 

election campaigns. Amici admit BCRA does not entirely 

replace state campaign laws,16 but it does cross the line 

from federal into state territory by directly regulating 

state contributions, the voter contact work of state parties 

and even the commercials state candidates can run. 

To prove this charge, amici will demonstrate: (1) the 

States have adopted a wide variety of campaign finance 

laws, (2) BCRA imposes federal rules on state activity, and 

(3) applying these rules fundamentally changes State 

choices on financing State election activity. 

(1) 	States Have Adopted A Wide Variety Of 

Campaign Finance Laws 

There are far more elections for state and local offices 

than federal offices.17 To accommodate this, each of the 50 

16 Alleging a new election law’s burden is not severe because “it 

does not limit the parties from engaging fully in other traditional party 

behavior, such as . . . conducting campaigns” is beside the point. Jones, 

530 U.S. at 581 (emphasis in original). This Court has consistently 

refused to overlook an unconstitutional restriction simply because it 

leaves other constitutionally protected activity unimpaired. See id. 

17 Leon at 1223sa, 1227sa-1228sa (facts #97, 114); Kollar-Kotelly at 

540sa (fact #1.43.2.3). 
18 

states, the four United States territories, and the District 

of Columbia has adopted its own unique campaign finance 

laws. See Federal Election Commission, Campaign Finance Law 2000: Chart 2A: Contribution and Solicitation 

Limitations (“FEC Chart 2A”) at http://www.fec.gov/pages/ 

cfl00chart2A.htm (last modified June 6, 2000). In many 

instances, these laws date to the late 19th century and 

have undergone a long and deliberative process of continual development and revision. See, e.g., “Act to Prevent 

Corrupt Practices in Elections and to Provide for Publicity 

of Elections Expenses,” Mass. Acts (1892); “Act to Promote 

the Purity of Elections,” Cal. Stat. (1893). 

According to the Federal Election Commission’s most 

recent summary of state campaign finance laws, twentynine States permit and twenty-one States prohibit corporations from contributing treasury funds to state and local 

candidates’ campaigns. See FEC Chart 2A. Of those States 

permitting corporate contributions, some allow unlimited 

contributions to be made, while others place limits. Many 

States also allow unlimited contributions of labor union 

treasury funds. In Michigan, unincorporated labor unions 

can make unlimited expenditures, but corporations may 

not. See Mich. Comp. Laws § 169.254 (2003). In Utah, the 

case is just the opposite. See Utah Code Ann. § 20A-11-

1403 (Supp. 2002). 

Some States allow individuals to make unlimited 

contributions to state candidates, political action committees (“PACs”) and party committees. See, e.g., Henderson 

at 290sa-291sa (fact #68b). Other States put a variety of 

limits on these gifts. Many States allow national, state 

and local political parties to spend unlimited sums on 

contributions to (or expenditures on behalf of) state 

candidates. Many states also allow unlimited transfers 
19 

from the national party committees to the state parties to 

finance state-related voter contact work.18 Some States 

regulate the expenditure of these amounts. 

Other peculiarities of state campaign finance laws 

include restrictions on contributions by certain regulated 

industries, prohibitions on contributions by lobbyists while 

the legislature is in session, regulations governing the 

operation of PACs, and provisions for public financing of 

state and local elections. See FEC Chart 2A. State election 

laws even vary the dates and years for holding state and 

local elections.19 

Regardless, States are continually adjusting their 

campaign finance laws to reflect new priorities, enforcement concerns and changed conditions.20 In many cases 

these changes are made by state legislatures and city 

councils. In some cases they are enacted directly by 

citizens through ballot initiatives and referenda. See, e.g., 

California Proposition 34, Campaign Contributions and 

Spending. Limits. Disclosure. (2000); Leon at 1227sa (fact 

18 Leon at 1239sa (facts #152-54); Kollar-Kotelly at 539sa (fact 

#1.43.2.1); Henderson at 297sa (fact #71c). 

19 Leon at 1213sa (fact #58); Kollar-Kotelly at 536sa (fact 

#1.39.1.2); Henderson at 298sa (fact #71c(2)(A)). 

20 Even as this brief was being written, it was reported that four 

states changed their state elections laws. North Carolina State Board 

Finds Municipalities Barred From Making Contributions, 2003 Money 

& Politics Rep. (BNA) (July 2, 2003); Massachusetts Governor Lets 

Stand Repeal of Public Campaign Financing, 2003 Money & Politics 

Rep. (BNA) (July 1, 2003); Murkowski Signs Bill Loosening Limits on 

Contributions and Lobbyists in Alaska, 2003 Money & Politics Rep. 

(BNA) (July 1, 2003); South Carolina Governor Signs Bill To Beef Up 

Campaign Finance Rules, 2003 Money & Politics Rep. (BNA) (June 30, 

2003). 
20 

#111); Henderson at 310sa (fact #72); Shrink Missouri, 528 

U.S. at 382. 

(2)	 BCRA Imposes Federal Rules On State Activity 

Before BRCA, federal election law could be easily 

summarized: contributions by individuals, PACs and 

parties were limited; contributions by corporations and 

labor unions were prohibited; and generic or mixed party 

activities21 either did not count as a contribution or had to 

be paid with an allocation of federal and state-regulated 22 

money. Leon at 1215sa (fact #65). But in any event, state 

activity by state candidates and parties was left alone. 

Title I of BCRA changes that. The Title contains more 

than thirty new provisions and definitions which must be 

patiently read to appreciate their invasion of state sovereignty. Of particular concern to amici are the following 

21 Mixed expenses include the necessary (if not praiseworthy) 

efforts of political parties to identify voters, register them, and get them 

out to vote. Leon at 1195sa (fact #23); Kolar-Kotelly at 529sa (fact 

#1.31); Henderson at 292sa-294sa (facts #70-71); Jones, 530 U.S. at 587 

(“Encouraging citizens to vote is a legitimate, indeed essential, state 

objective.”) (Kennedy, J., concurring). Generic exhortations to “Vote 

Republican” require some accounting to ensure the party uses a mix of 

state and federal dollars to finance them. When the parties pay for 

communications such as “Vote for Congressman Smith” or “Defeat 

Attorney General Jones” they fully use federal or state funds and may 

be subject to contribution and some expenditure limits. See Federal 

Election Comm’n v. Colorado Republican Federal Campaign Committee, 

533 U.S. 431 (2001) (Colorado II). 

22 See, e.g., 2 U.S.C. §§ 441a(a)(1), 441a(a)(2), 441a(d), 441a(h), 

441b(a), 431(8)(B)(ix), (x), (xi); 11 C.F.R. §§ 102.5, 106. 
21 

provisions which are unfortunately dense but fairly 

phrased as follows: 

§ 323(a) NATIONAL POLITICAL PARTY 

COMMITTEES 

National political party committees may not 

solicit, receive, contribute, transfer or spend 

any funds not in accordance with Federal 

law. 

§ 323(b)(1) STATE AND LOCAL POLITICAL 

PARTY COMMITTEES 

Any amount that is expended or disbursed 

for “Federal election activity” by a state or 

local committee of a political party shall be 

from funds subject to the limitations, prohibitions, and reporting requirements of Federal law. 

§ 301(20)(A) THE TERM ‘FEDERAL ELECTION 

ACTIVITY’ MEANS 

(i) 	 Voter registration activity for 120 days 

before a regularly scheduled Federal 

election; 

(ii) 	 Voter identification, get-out-the-vote activity, or generic campaign activity conducted in an election where a candidate 

for federal office appears on the ballot 

(regardless of whether state candidates 

also appear on the ballot); 

(iii)	 A public communication that promotes, 

supports, attacks, or opposes a federal 

candidate for that office (regardless of 

whether the communication contains 

express advocacy or also refers to a 

state candidate); or 
22 


(iv) 	The cost of personnel who spend more 

than twenty-five percent of their compen- 23 sated time on federal election activity. 

§ 323(b)(2) “LEVIN EXCEPTION” TO BCRA’s 

APPLICABILITY TO STATE PARTIES 

A state or local committee of a political party 

may use an FEC-approved allocation of extra 

funds for certain political party expenses provided that: 

(i) 	 The activity does not refer to a clearly 

identified federal candidate; 

(ii) 	It is not for the cost of a broadcast 

communication (except if it just refers 

to a candidate for State office); 

(iii)	 The extra money is from sources approved by State law, but no person may 

donate more than $10,000 for these expenses; 

(iv) 	The amounts expended are raised by 

the state party itself and not from 

funds provided by the national political 

party or their officers, agents or related 

entities. 

§ 323(f) STATE CANDIDATES 

A candidate for state office or individual holding 

state office cannot make a broadcast communication described in (20)(A)(iii) (above) which 

23 “Federal election activity” does not include (i) communications 

solely about state candidates, (ii) contributions to state candidates, (iii) 

state conventions, or (iv) buttons, bumper stickers and signs depicting 

state candidates only. See BCRA, tit. 1, sec. 101, § 301(20)(B). 
23 

positively or negatively refers to a federal candidate unless he or she uses federal funds. 

BCRA, Pub. L. No. 107-155, tit. I, sec. 101, §§ 323(b)(1), 

323(b)(2), 301(20)(A), 323(f), 116 Stat. 81, 82-86 (codified 

at 2 U.S.C. §§ 441i, 431 (2003)). 

From this glimpse, the Court can see these sections 

create quite a regulatory back-and-forth; there are three 

general rules, an exception, and then conditions on the 

exception. The first rule prohibits national parties from 

raising and transferring state-approved money to its state 

parties, and further prohibits them from making stateapproved contributions to state candidates – even if state 

law specifically permits it. 

The second rule prohibits state parties from spending 

state money on an incredibly misnamed set of “federal 

election activities.” See Henderson at 318sa (fact #76). 

These so-called “federal” activities include: voter contact 

and generic party promotion conducted for an election 

with federal candidates even if the activity does not mention a federal candidate; and the not-so-bright line rule on 

prohibiting public communications that promote, support, 

attack or oppose someone who is a federal candidate even 

without reference to an election. BCRA, tit. I, sec. 101, 

§ 301(20)(A). 

The exception allows state parties to raise some extra 

money to be used for a share of routine voter contact work, 

but on the condition the money cannot be used to refer to a 

federal candidate, cannot exceed $10,000 per person 

regardless if state law permits more, and cannot be raised 

with the help of the national committee as done in the 

past. BCRA, tit. I, sec. 101, § 323(b)(2). 

The last rule is of particular alarm to amici’s state 

officials. BCRA requires any broadcast communication by 
24 

state candidates or officeholders that may also promote, 

support, attack or oppose an individual candidate for 

federal office be paid with federally-regulated, and not 

state, campaign funds. BCRA, tit. I, sec. 101, § 323(f). 

(3) 	BCRA Fundamentally Changes State Choices 

On Financing State Election Activity 

Applying BCRA to state activity makes for some 

treacherous ground. One misstep and a state party volunteer or candidate for city council could face a federal prison 

sentence.24 That is true because most here-to-fore state 

party voter contact work is now “federal election activity.” 

Henderson at 318sa (fact #76). This change means longstanding, uncontroversial state activities previously paid 

for with state money must now be paid for with federallyregulated funds. On its face, that is reason enough to 

invalidate Title I of BCRA. But applying BCRA produces 

irrational results that gives even more reason for it to be 

stopped at the state line. Examples: 

Applying 323(a), the Republican National Committee 

may not raise money specifically allowable under the laws 

of Virginia, Kentucky, New Jersey, Louisiana or Mississippi and contribute that money to a state candidate in a 

manner approved by state law for elections occurring this 

November – even though there are no federal candidates 

on those ballots.25 

24 BCRA, tit. III, sec. 312, 315 (codified at 2 U.S.C. §§ 437g). 

25 The evidence below shows the Republican National Committee 

spent over $15.6 million of state-regulated money on direct contributions to state and local candidates and other state party activities in 

(Continued on following page) 
25 

Applying 323(a), the Republican National Committee 

can no longer work side-by-side with its fifty-five statelevel parties to raise money for them in a manner approved by their state’s law – even if the state party contributes every cent raised to state candidates.26 

Applying 323(a)(1), Republican National Committee 

Co-Chairman Ann Wagner cannot organize and hold a 

series of state-regulated fundraisers for a nationwide slate 

of state and local female candidates in an effort to support 

the party platform of boosting diversity in government – 

even if the contributions go directly from the donors to the 

deserving candidates.27 

Applying 301(20)(A)(ii), a state party may not use 

exclusively state funds to launch a get-out-the-vote drive 

because its incumbent governor is in a hotly contested 

election if a Congressional candidate is also on the ballot – 

even if that Congressman is running unopposed or is in an 

uncompetitive race.28 

2001 – when there were no federal candidates on the ballot. Henderson 

at 298sa (fact #71c(2)(B)); Koller-Kotelly at 536-37sa (fact #1.39.1.2); 

Leon at 1213sa (fact #59). 

26 The evidence below shows the Republican National Committee 

spent $5.6 million of state-regulated money on direct contributions to 

state and local candidates in 2000. Henderson at 297sa (fact 

#72c(1)(A)); Leon at 1212sa (fact #55). 

27 This result runs contrary to Justice Kennedy’s observation: “Our 

constitutional tradition is one in which our political parties and their 

candidates make common cause. . . . There is a practical identity of 

interests between parties and their candidates during an election.” 

Jones, 530 U.S. at 584. 

28 See Leon at 1212sa-1213sa (fact #56) regarding the RNC 

financial assistance to California in 2002 and Indiana in 2000. 
26 

Applying 301(20)(A)(i), a state party is now prohibited 

from using state funds for voter registration efforts for a 

state primary election held as early as July before a 

general election – even if there are only state candidates 

on the primary ballot.29 

Applying 301(20)(A)(ii), a state party is now prohibited from using any state money for a message stating 

“Vote Republican to Protect Your Water Rights” if a federal 

candidate is on the election ballot. The party’s candidate 

for Water Commissioner, however, could use entirely state 

money for that very same message. 

Applying 301(20)(A)(ii), a state party now faces a 365 

day prohibition against using state funds for routine state 

voter contact work in an election year – even if it is not 

directed at a federal race or does not mention a federal 

candidate.30 

Applying 301(20)(A)(ii), the state parties in the five 

states that have chosen to hold elections for state officers 

29 The Court’s jurisprudence allows easy condemnation of BCRA’s 

financial interference with state primaries. See Jones, 530 U.S. at 575 

(citing Eu v. San Francisco County Democratic Central Comm., 489 U.S. 

214, 224 (1989)) (“[O]ur cases vigorously affirm the special place the 

First Amendment reserves for, and the special protection it accords, the 

process by which a political party selects a standard bearer . . . .”) 

(internal quotations omitted). 

30 Prior federal law could not reach this sort of non-federal activity 

that “spilled over” into Congressional races or created “reverse coat 

tails.” Federal Election Comm’n v. GOPAC, Inc., 917 F. Supp. 851, 862, 

865, 866 (D.D.C. 1996) (explaining while it is “theoretically possible” to 

isolate and trace the indirect impact GOPAC’s non-federal activity had 

on Congressional elections, such activity is not federally regulable 

because GOPAC’s activity did not directly support federal candidates). 
27 

in odd-numbered years can no longer receive state-lawapproved transfers of money from the national parties – 

even if the money will only be spent on the state races. 

Applying 323(b)(2) (the “Levin exception”), a state 

party can only raise certain money to pay its share of 

mixed state and federal voter contact work but no more 

than $10,000 can come from any one source – even if state 

law permits higher amounts.31 

Applying 323(f) and the not-so-bright-line regulation 

of 301(20)(A)(iii), amici’s office holders – whether in the 

context of their re-election campaigns or not – can no 

longer use state-regulated campaign funds for messages 

that refer to a federal candidate in a way that promotes or 

attacks that person for that office. Henderson at 292sa 

(fact #69). 

This 323(f) prohibition deserves additional comment. 

Below, Judge Leon sustained this prohibition against state 

candidates and officeholders from making 301(20)(A)(iii) 

communications with state funds because it is “consistent 

with [his] preceding discussion of the constitutionality of 

Section 301(20)(A)(iii)” as imposed on political parties. 

Leon at 1146sa. To the extent this Court is reviewing his 

rationale, the judge is merging two very different things 

and is overlooking an extra element in 323(f). 

31 The evidence below shows this will substantially interfere, for 

example, with the California Democratic Party’s state law-approved 

fundraising practices. See Leon at 1241sa (fact #161). 
28 

First, Judge Leon sustains the not-so-bright line of 

301(20)(A)(iii) because the record reflects Congressmen 

know whose money is being given to the political parties 

for issue ads favorable to their re-election, which raises an 

appearance of corruption. Leon at 1130sa, 1134sa-1135sa. 

Second, political parties are unique and sophisticated: 

they are constantly in the business of electing their own, 

they merit special regulation and can avoid the bad words 

if they really want to advocate on an issue. Leon at 1139sa. 

That may or may not be true, but 323(f) applies 

BCRA’s speech prohibition to people, not party committees. They are people who may be running for the state 

legislature and think a campaign advertisement saying 

they are supporting the President’s re-election will improve their own chances for getting elected. Instead, it will 

improve their chances for jail.32 

More important, 323(f) also applies to individuals 

simply “holding” state or local office. BCRA, tit. I, sec. 101, 

§ 323(f). Judge Leon overlooks the statute’s extra prohibition on state office holders, as officeholders, regardless of 

whether they are seeking re-election or retiring. Congress 

cannot possibly have this power over our state office 

holders or prove even a minimal federal nexus for such a 

grant. “[S]imply because Congress may conclude a particular activity substantially affects [a Congressional power] 

32 It is possible the federal interest here is that a federal candidate 

could steer non-federal donors to a state candidate who agrees to run 

Trojan Horse ads really advocating the federal candidate’s election. 

That fact is nowhere to be found in the approximately 1,400 pages 

below and should be dismissed, as this Court once aptly said, as “mere 

conjecture.” Shrink Missouri, 528 U.S. at 392. 
----------------------------- ------------------------------

29 

does not necessarily make it so.” United States v. Lopez, 

514 U.S. 549, 557 n.2 (1995) (quoting Hodel, 452 U.S. at 

311 (Rhenquist, J., concurring)). Rather, it is a judicial 

question that can only be resolved by this Court. Id. 

(quoting Heart of Atlanta Motel, Inc. v. United States, 379 

U.S. 241, 273 (1964) (Black, J., concurring)). 

BCRA is clumsy. BCRA is unreasonable. BCRA has 

commanderred state laws, state constitutions and state 

ballot initiatives upsetting “the usual constitutional battle 

of federal and state powers.” Gregory, 501 U.S. at 460. The 

considered legal opinion of amici is BCRA creates real, 

concrete examples of federal interference with the States’ 

prerogatives on how its governments will be chosen. This 

cannot be reconciled with the Constitution. 

----♦-- -

CONCLUSION 

Federal money is admittedly a federal issue. State 

money is a state issue. State campaign finance laws are an 

integral part of state governance and this Court should not 

be surprised amici are here zealously guarding against 

this federal encroachment. See, e.g., Alden v. Maine, 527 

U.S. 706, 748, 751-52, 758 (1999); Printz, 521 U.S. at 919-

20. 

Regardless of how this Court evaluates the merits of 

Congress’ approach, the first question is whether Congress 

can have any approach that includes our state laws. After 

striking those sections that violate our sovereignty, we 

encourage the Court to then evaluate the justifications for 

the remainder. 
30 

The superfluity of Congress’ approach to campaign 

finance reform may be the temporary tenor of the times. 

Fortunately, the judiciary can see beyond that. And while 

amici must frequently heed the desires of the federal 

government, this particular law is more deserving of fear 

than respect. 

Title I of BCRA should be invalidated. 

Respectfully submitted, 

CRAIG ENGLE 

(Counsel of Record) 

ARENT FOX KINTNER 

PLOTKIN & KAHN, PLLC 

1050 Connecticut Avenue, N.W. 

Washington, DC 20036-5339 

(202) 857-6000 

(202) 775-5791