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 AMICI CURIAE THE INTERFAITH ALLIANCE

FOUNDATION; THE GENERAL SYNOD OF THE UNITED

CHURCH OF CHRIST; THE UNION OF AMERICAN

HEBREW CONGREGATIONS; THE UNITARIAN

UNIVERSALIST ASSOCIATION; NETWORK,

A NATIONAL CATHOLIC SOCIAL JUSTICE LOBBY; AND

THE CENTRAL CONFERENCE OF AMERICAN RABBIS

IN SUPPORT OF APPELLEES

EVAN A. DAVIS 

Counsel of Record 

ANIL KALHAN

KATHERINE MOONEY

Cleary, Gottlieb, Steen & Hamilton

One Liberty Plaza

New York, New York 10006

212-225-2000

August 5, 2003 Counsel for Amici Curiae
i 

TABLE OF CONTENTS 

Page(s) 

TABLE OF AUTHORITIES ....................... ii 

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

SUMMARY OF ARGUMENT..................... 4 

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

I. Large Segments of the Public, Including Significant Numbers of People of Faith, Lacked 

Confidence in the Pre-BCRA Political Process 

and Campaign Finance System ............... 6 

A. The Pre-BCRA System Gave Rise to a 

Widespread Perception of Corruption..... 7 

B. The Pre-BCRA Campaign Finance System Created a Widespread Perception 

That Ordinary Citizens Cannot Meaningfully Participate in the Political Process . . . 12 

II. The Government Has a Compelling Interest 

in Building Public Confidence in the Political Process and Encouraging Citizen Participation........................................ 13 

III. BCRA Advances the Government’s Compelling Interests in Improving Public Confidence 

in the Political System and Facilitating 

Citizen Participation .......................... 21 

CONCLUSION..................................... 29 
ii 

TABLE OF AUTHORITIES

Cases Page(s)

Austin v. Mich. Chamber of Commerce, 

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

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999)............................ 27-28

Buckley v. Valeo, 

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

Bush v. Gore,

531 U.S. 98 (2000) ............................. 15

Cal. Med. Ass’n v. FEC,

453 U.S. 182 (1981)............................ 19

FEC v. Beaumont,

123 S. Ct. 2200 (2003) ......................... 18, 20

FEC v. Colo. Repub. Fed. Campaign Comm.,

533 U.S. 431 (2001) ......................... 15, 18, 25

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986)............................ 15, 24

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ...................... 13-14, 17-18

McConnell v. FEC,

251 F. Supp. 2d 176 (D.D.C. 2003) ............ 11, 24

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995)............................ 27-28

Moore v. Ogilvie,

394 U.S. 814 (1969)............................ 15
iii 

Page(s) 

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000)............................ 12, 14

Reynolds v. Sims,

377 U.S. 533 (1964)............................ 14-15

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994)............................ 21

United States v. Int’l Union UAW-CIO,

352 U.S. 567 (1957)............................ 14

Wesberry v. Sanders,

376 U.S. 1 (1964) .............................. 15

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002,

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

§ 101 ............................................ 23

§ 101(a)......................................... 23

§ 201(a)......................................... 24, 27

§ 212 ............................................ 27

§ 213 ............................................ 26

§ 214(a)......................................... 24, 26

§ 214(c)......................................... 25

§ 311(1)......................................... 27

Federal Election Campaign Act of 1971,

Pub. L. No. 92-225, 86 Stat. 3 .................. passim

2 U.S.C. § 431(17) ............................. 24
iv 

Page(s) 

2 U.S.C. § 434(f)(1) ............................ 25 

2 U.S.C. § 434(f)(2) ............................ 27 

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

2 U.S.C. § 434(g)............................... 27 

2 U.S.C. § 441a(a)(7)(B) ....................... 26 

2 U.S.C. § 441a(d).............................. 26 

2 U.S.C. § 441d(a)(3)........................... 27 

2 U.S.C. § 441i ................................. 23 

2 U.S.C. § 441i(b)(2) ........................... 23 

68 Fed. Reg. 421 (Jan. 3, 2003) ................... 25 

Other Authorities 

Brief of Appellants, Adams v. FEC, prob. juris. 

noted, 123 S. Ct. 2270 (2003).................. 20 

Carl M. Cannon, A Rough Ride for Reform, 

Nat’l Journal, Jan. 29, 2000 .................... 11 

The Gallup Organization, Campaign Finance 

Reform: Opinions of People of Faith and 

the Clergy (Aug. 2001), available at http:// 

www.callforreform.org/gallup.pdf............... passim 

Interfaith Alliance Foundation, Study Paper: 

Campaign Finance Reform (2002), available 

at http://www.interfaithalliance.org/Files/ 

getFile.cfm?id=4645 ........................... 7 
v 

Page(s) 

Letter from Religious Leaders for Campaign 

Finance Reform, to Congress (Feb. 13, 1997), 

available at http://www.wfn.org/1997/02/ 

msg00149.html ................................. 9 

Letter from Religious Leaders for Campaign 

Finance Reform to the United States Senate 

(Mar. 16, 2001), at http://www.ncccusa.org/ 

news/01news25a.html .......................... 8 

Press Release, The Reform Institute for Campaign 

and Election Issues, On the Docket: Campaign 

Finance and the Courts (Sept. 24, 2002), at 

http://www.reforminstitute.org/cgi-data/article/ 

files/39.shtml ................................... 11 

Press Release, Religious Action Center of Reform 

Judaism, Reform Jewish Leader Welcomes 

House Breakthrough on Campaign Finance 

Reform (Jan. 24, 2002), at http://www.rac.org/ 

news/012402.html .............................. 8 

Protestants for the Common Good, Why Should 

Christians Care About Campaign Finance 

Reform? (2000), at http://www.thecommon 

good.org/campaign_finance.html .............. 7 
INTEREST OF AMICI CURIAE* 

The Interfaith Alliance Foundation (the “Foundation”), serving in partnership with The Interfaith Alliance, 

is a non-partisan, educational institution that provides 

training, education, research, and other support to a 

growing network of clergy and people of faith from more 

than 65 different religious traditions. Through public 

education and advocacy of reform measures, the Foundation strives to promote a fair and balanced campaign 

finance system in which ordinary citizens, including people of faith, participate meaningfully in civic and political life. The Foundation is deeply interested in the 

outcome of this litigation because the weakening of campaign finance reform stands to impede numerous people 

of faith and good will from engaging in national political 

activity. 

The General Synod of the United Church of Christ, 

a representative body of the 1.3 million members of the 

United Church of Christ, has a deep and compelling 

interest in protecting civic life as expressed through the 

* Amici curiae state that no party or its counsel has authored this 

brief in whole or in part, and no person or entity other than amici, their 

members, or their counsel have made any monetary contribution to its 

preparation. This brief is filed with the consent of all parties, and 

copies of the consent letters have been lodged with the Clerk of this 

Court. 

In addition, counsel for amici curiae acknowledge with appreciation 

the invaluable assistance with the research and writing of this brief 

provided by Joseph Landau, Sanjay Mody, and Stephen M. Rich, associates at Cleary, Gottlieb, Steen & Hamilton who have not yet been 

admitted to the bar, and Michael Kavey, a summer associate at Cleary, 

Gottlieb, Steen & Hamilton who is a member of the class of 2004 at 

Yale Law School. 
2

electoral system and the voting process in the United 

States. In a 1997 Resolution entitled “Campaign Finance 

Reform,” the General Synod addressed the threat to our 

democratic process by “the present system of financing 

campaigns for public office . . . that allows for the appearance of improper influence in the legislative process by 

large contributors and correspondingly discourages participation by persons of lesser means.” The 1997 General 

Synod of the United Church of Christ also resolved to 

“support legislation which seeks more equitable campaign financing.” 

The Union of American Hebrew Congregations 

(“UAHC”) is the central body of the Reform Jewish 

Movement in North America, composed of 900 Reform 

congregations encompassing some 1.5 million Reform 

Jews. Campaign finance reform is not an esoteric technical issue of election regulations, but one that goes to the 

essence of the ethical and moral fiber of our nation. The 

millions of dollars that flow into federal elections have 

created a major problem that threatens the integrity of our 

democratic process. In 1984, the UAHC recognized that 

“Congress must legislate an end to this financial influence race.” The UAHC supports the Bipartisan Campaign 

Reform Act as a vital step toward creating a vibrant and 

participatory American democracy where financial means 

does not determine a citizen’s political influence. 

The Unitarian Universalist Association is a religious 

association of more than 1,000 congregations in the United States and elsewhere. The Association democratically 

adopts resolutions consistent with its fundamental principles and purposes and has taken positions supporting 

campaign finance reform, including a resolution in 2000 
3

calling for campaign finance reform at the state and federal levels. 

NETWORK, A National Catholic Social Justice 

Lobby (“NETWORK”) of more than 12,000 individual 

and organizational members, lobbies, educates, and 

organizes to promote federal legislation creating social 

and economic opportunity. Since 1971, NETWORK has 

worked to create a just, democratic society in which all 

members have a part in the decision-making process. The 

campaign finance system has seriously jeopardized 

the trust of citizens, the health of our democracy, and the 

ability of all citizens to participate effectively in the 

political process. The undue influence of money in campaigns diminishes the voting power of ordinary citizens, 

and especially those who are poor. 

The Central Conference of American Rabbis 

(“CCAR”) is the organized Rabbinate of Reform 

Judaism, composed of 1,800 Reform rabbis. The Jewish 

tradition speaks clearly and unhesitatingly to the critical 

importance of appointing leaders according to their merit 

and fostering the ability of leaders to act independently 

for the public good, unfettered by the demands of the 

wealthy. Jewish texts and common sense teach that a 

democracy only can function properly when elected officials are equally accountable, and equally responsive, to 

all citizens, without regard to those citizens’ abilities to 

make large campaign contributions. The existing campaign finance system benefits the extraordinarily 

wealthy, reduces voter access to elected officials, erodes 

moral standards in government agencies and institutions, 

and breeds distrust and alienation. In 1997, the CCAR 

resolved to “[s]upport the general principles outlined in 
4

the Bipartisan Campaign Finance Reform Act of 1997,” 

and the CCAR continues to support the version of that act 

that was enacted into law in 2002. 

SUMMARY OF ARGUMENT 

Amici curiae urge the Court to uphold the constitutionality of the Bipartisan Campaign Reform Act, Pub. L. No. 

107-155, 116 Stat. 81 (2002) (“BCRA”), vital legislation 

that will help restore public confidence in the political 

system and enable ordinary citizens to participate meaningfully in the democratic process. Faith-based organizations like amici, as well as their constituents and 

members, share in a proud tradition of conscientious 

political participation and public service that will be 

impaired without a strong and effective system of campaign finance regulation. Fostering responsible and moral 

governance requires elected officials who focus on the 

needs of their constituents, not sources of funding. 

Respect for individual dignity requires that all citizens 

have confidence that their direct political participation— 

the giving of their hearts and minds, not just their dollars—can positively affect how our nation is governed. 

The integrity and vitality of our democracy require that 

ordinary citizens, including people of faith, are allowed a 

meaningful voice in the political process. 

1. Widespread distrust of elected officials and decreased 

voter turnout in the years leading up to BCRA’s enactment 

demonstrated that our democratic process was badly in 

need of reform. Opinion polls have revealed a broad public perception of corruption and a general sentiment 

among voters that they cannot make a difference in the 
5

political system as it has been operating. The failings of 

the pre-BCRA system have been of particular concern to 

communities of faith, since honesty, fairness, and integrity are universal religious values. Indeed, as of 2001, 60% 

of people of faith believed that the pre-BCRA campaign 

finance system needed either a “complete overhaul” or 

“major changes,” while only 10% believed that the system was acceptable in its existing state. Only 10% of 

people of faith believed they had the ability to make a 

major difference in the political system, while an overwhelming 61% believed that they personally lacked the 

ability to make much of a difference in the political 

process at all. With this in mind, religious leaders from a 

broad and diverse array of faith traditions have been outspoken in favor of reform. 

2. As the Supreme Court has consistently recognized, the 

government has a compelling interest in building public 

trust in the political process and encouraging active citizen participation. Ordinary citizens are likely to lose confidence in the electoral process if they lack faith that their 

votes and voices “count” equally in the eyes of elected 

officials and the law. To advance these compelling interests, it is crucial that Congress be able to regulate political campaigns not only to eliminate quid pro quo 

corruption, but also to minimize the perception of undue 

influence and the notion that individual citizens are incapable of making a difference. The very foundations of 

democracy are threatened when ordinary citizens believe 

their voices will be drowned out by special interests. 

3. BCRA directly address these interests and concerns. 

With provisions that rein in “soft money” contributions, 

tighten the regulation of “issue ads” that appear immedi-
6

ately before elections, and expand disclosure requirements, the newly enacted reforms closely target those 

elements of the preexisting campaign finance system that 

have contributed most to the perception among individual 

citizens that their votes and voices “count” less than 

those of financially powerful interest groups. Empirical 

data shows that people of faith believe that the reforms 

embodied in BCRA will improve the integrity of our 

political system. 

ARGUMENT 

I. LARGE SEGMENTS OF THE PUBLIC, 

INCLUDING SIGNIFICANT NUMBERS OF 

PEOPLE OF FAITH, LACKED CONFIDENCE 

IN THE PRE-BCRA POLITICAL PROCESS 

AND CAMPAIGN FINANCE SYSTEM 

Amici represent people of faith from more than 65 different religious traditions. They are concerned with the 

morality of government, the potential for corruption 

among our leaders, and the disillusionment and alienation 

that prevail among the electorate on the issue of campaign finance. Honesty, fairness for all, and integrity— 

the very principles that BCRA seeks to return to our 

nation’s political system—are also three universal religious values that have informed some of the highest traditions of political participation and public service in our 

nation’s history. A government that claims to represent 

the public interest but fails to reflect these values can 

have no moral legitimacy in the eyes of Americans of 

faith and will fail to inspire its citizens to participate 

actively and conscientiously in public affairs. 
7

The ineffectiveness of the campaign finance system in 

place before enactment of the BCRA contributed significantly to this disaffection among people of faith and 

other citizens. The perception that many elected officials 

had become beholden to particular interests that use large 

“soft money” contributions, so-called “issue ads,” and 

coordinated expenditures to evade existing campaign 

finance regulations diminished public trust in the integrity and effectiveness of those regulations and led ordinary 

citizens to lose confidence in their ability to participate 

effectively in the political process. 

A. The Pre-BCRA System Gave Rise to a Widespread Perception of Corruption 

The pre-BCRA campaign finance system produced a 

widespread perception that financially powerful interests 

exercised undue, even corrupting influence on the electoral system and government officials. Statements from a 

broad range of religious leaders confirm a widespread 

public perception that unregulated “soft money” contributions do not differ significantly in their impact from 

outright quid pro quo corruption. One ecumenical Protestant group has stated that the pre-BCRA system created 

“an environment where public officials [were] beholden 

to contributors in ways that border on bribery.” Protestants for the Common Good, Why Should Christians Care 

About Campaign Finance Reform? (2000), at http:// 

www.thecommongood.org/campaign_finance.html. The 

Methodist Church has decried the “pouring of tens of 

millions of dollars into political campaigns to buy special 

influence with legislators” as “a national scandal.” Interfaith Alliance Foundation, Study Paper: Campaign 

Finance Reform 13 (2002), available at http://www.inter-
8

faithalliance.org/Files/getFile.cfm?id=4645. The Religious Action Center of Reform Judaism has criticized 

“the pernicious influence of money in our electoral system, which often allows moneyed interests to dominate 

the political debate,” adding that “[w]e cannot accept an 

electoral system that structurally and systematically 

favors the richest among us.” Press Release, Religious 

Action Center of Reform Judaism, Reform Jewish Leader 

Welcomes House Breakthrough on Campaign Finance 

Reform (Jan. 24, 2002), at http://www.rac.org/news/ 

012402.html. 

The sense of urgency surrounding this issue is further 

demonstrated by collective reform efforts undertaken by 

religious groups. In connection with their efforts to 

reform the campaign finance system, more than 250 leaders from a diverse array of religious organizations took 

the unusual step of constituting an issue-based coalition, 

Religious Leaders for Campaign Finance Reform 

(“RLCFR”). In 2001, this broad coalition issued a joint 

letter to Congress urging passage of meaningful reform 

measures and warning that “the current campaign finance 

system . . . gives the appearance that political access and 

favors are for sale to the highest bidder.” Letter from 

Religious Leaders for Campaign Finance Reform, to the 

United States Senate (Mar. 16, 2001), at http://www. 

ncccusa.org/news/01news25a.html. The religious leaders 

who signed the letter represented Catholics, Presbyterians, Methodists, Baptists, Evangelical Lutherans, Episcopalians, Greek Orthodox Christians, Quakers, Jews, and 

others. Signatories included the national leaders of 17 

mainstream religious groups, ranging from the National 

Baptist Convention to the Union of American Hebrew 
9

Congregations.1 The RLCFR had previously written a letter to Congress in 1997 lamenting that the “present system gives at least the appearance that the President, 

Senators and Representatives are willing to sell their values and votes, as well as the integrity of their offices, for 

the sake of campaign contributions.” Letter from the 

Religious Leaders for Campaign Finance Reform, to 

Congress (Feb. 13, 1997), available at http://www.wfn. 

org/1997/02/msg00149.html (hereinafter “1997 RLCFR 

Letter”). 

Concerns about corruption and support for campaign 

finance reform have not, of course, been limited to the 

leaders of faith-based organizations. Lay people of 

faith—from across the political spectrum, see infra n.2— 

also have perceived an urgent need to cleanse the campaign finance system of corruption and undue influence. 

1 The religious leaders who signed the letter included the Presiding Bishop of the Evangelical Lutheran Church in America, the General Secretary of the National Council of the Churches of Christ in the 

USA, the General Secretary of the Reformed Church in America, the 

Presiding Bishop and Primate of the Episcopal Church in the United 

States, the General Minister and President of the Christian Church 

(Disciples of Christ) in the United States and Canada, the Minister 

General of the Franciscan Friars of the Atonement, the General Secretary of American Friends Service Committee, the Executive Director 

of the Church of the Brethren General Board, the Primate of the Antiochian Orthodox Christian Archdiocese of North America, the President of the Moravian Church in America (Southern Province), the 

President of the National Baptist Convention, the Diocesan Bishop of 

the Mar Thoma Church, the President of the United Church of Christ, 

the President of the Union of American Hebrew Congregations, and 

ecumenical officers from the Greek Orthodox Archdiocese of America, the Council of Bishops of the United Methodist Church, and the 

Christian Methodist Episcopal Church. 
10

According to a 2001 Gallup Organization public opinion 

study of clergy and people of faith, commissioned by 

amicus curiae The Interfaith Alliance Foundation, a 

solid majority (60%) of people of faith believe that the 

pre-BCRA campaign finance system needed either a 

“complete overhaul” or “major changes,” while only 10% 

believe that the system was fine as it was. The Gallup 

Organization, Campaign Finance Reform: Opinions of 

People of Faith and the Clergy 7 (Aug. 2001) (hereinafter 

“Gallup Poll”), available at http://www.callforreform. 

org/gallup.pdf.2 More than 85% of people of faith say 

that campaign finance reform, in comparison to other 

key political issues like education and taxes, is either 

very important (54%) or somewhat important (32%). Id. 

Given these numbers, it is hardly surprising that religious 

leaders from such a broad variety of faiths have actively 

and visibly taken public stances on this issue and have 

2 The Gallup Organization interviewed a nationally representative sample of 1,202 people of faith and a nationally representative 

sample of 303 clergy. “People of faith” were those who indicated that 

(1) they attended religious service at least once a month, or that 

(2) religion was “very important” to them. The samples were weighted by age, race, gender, education, and geographical region, in accordance with previous Gallup surveys that had used the same screening 

questions. Gallup Poll at 4. 

The samples also represented a broad range of political ideologies. 

Among people of faith sampled, 41% described themselves politically 

as either “very conservative” or “somewhat conservative,” 36% 

described themselves as “moderate,” and 19% described themselves as 

either “very liberal” or “somewhat liberal.” Id. at 6. Among clergy 

sampled, 54% described themselves politically as either “very conservative” or “conservative,” 21% described themselves as “moderate,” 

and 13% described themselves as either “very liberal” or “liberal.” 

Id. at 6. 
11

strongly supported reform of the nation’s campaign 

finance laws.3 

The views of people of faith are in accord with the 

overwhelming support for reform among the American 

people, a decisive majority of which lacked confidence in 

the pre-BCRA campaign finance system. One major poll 

showed that two-thirds of Americans believed that campaign finance laws either required “major changes” or 

needed to be “completely overhauled.” Carl M. Cannon, 

A Rough Ride for Reform, Nat’l Journal, Jan. 29, 2000, at 

320. More than 70% of the public believed members of 

Congress sometimes vote based on the desires of large 

contributors to their political parties, even when doing so 

is not in the country’s best interest and when it is not 

what their constituents support. Defendant-Intervenors’ 

Excerpts of Reply Brief (Redacted Version for Public 

Distribution) at I-6, McConnell v. FEC, 251 F. Supp. 2d 

176 (D.D.C. 2003). Almost 80% of the public believed 

“big party contributions” have either a “great deal of 

impact” (55%) or “some impact” (23%) on decisions 

made by the federal government. Only 6% believed such 

contributions do not have much or any impact. Press 

Release, The Reform Institute for Campaign and Election 

Issues, On the Docket: Campaign Finance and the Courts 

(Sept. 24, 2002), at http://www.reforminstitute.org/cgidata/article/files/39.shtml. 

3 For example, 52% of clergy support a ban on soft money donations, while 31% oppose such a ban. Sixty-four percent prefer strict 

limits on contributions in addition to disclosure requirements over disclosure requirements alone. Gallup Poll at 10, 13. 
12

B. The Pre-BCRA Campaign Finance System 

Created a Widespread Perception That Ordinary Citizens Cannot Meaningfully Participate in the Political Process 

With a campaign finance system widely viewed as 

broken and corrupt, it is hardly surprising that average 

citizens tend to feel they cannot make a significant difference by participating in political life. Only 10% of 

people of faith believe they can make a major difference 

in the political system as it has been operating. Gallup 

Poll at 9. By contrast, 61% feel that they personally can 

make little or no difference. Id. While the legitimacy of 

our democratic government is premised on the existence of broad and active political participation, citizens 

who feel politically powerless can hardly be expected to 

vote in high numbers or otherwise actively engage themselves in the political process. As noted by the RLCFR, 

“[i]f citizens feel their efforts are futile in the face of 

economic and other forces that overwhelm them, hope 

for the democratic process is destroyed.” 1997 RLCFR 

Letter. Indeed, this Court itself has observed that the 

perception that “large donors call the tune” can “jeopardize the willingness of voters to take part in democratic governance. Democracy works ‘only if the people 

have faith in those who govern.’” Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 390 (2000) (internal citation 

omitted). 

The Gallup Poll statistics call into question any notion 

that Americans of faith are indifferent to reform or otherwise fear it will impede their political participation. For 

example, 58% of people of faith believe campaign finance 

reform will give the average citizen a greater voice in 
13

the political process, while only 11% believe that it 

will give the average citizen less of a voice. Gallup Poll 

at 16. Fifty-seven percent of people of faith believe 

campaigns will become more competitive with campaign 

finance reform, while only 16% believe they will be 

less competitive. Id. These statistics demonstrate that 

people of faith do not agree with the claims made by 

opponents of reform—including some religious special 

interest groups—that campaign regulations somehow 

stifle debate or inhibit political expression. Indeed, the 

overwhelming majority of people of faith (78%) expressly reject the notion that campaign finance reform would 

interfere with their right to free speech. Id. at 18. 

II. THE GOVERNMENT HAS A COMPELLING 

INTEREST IN BUILDING PUBLIC CONFIDENCE IN THE POLITICAL PROCESS AND 

ENCOURAGING CITIZEN PARTICIPATION 

It is clear, therefore, that the pre-BCRA system fostered serious doubts among people of faith and other citizens about their ability to participate effectively in the 

nation’s democratic processes. By enacting BCRA, in the 

exercise of its constitutional power to regulate federal 

elections, Congress squarely sought to address this 

troubling condition. This Court has long recognized 

that “preserv[ing] . . . the individual citizen’s confidence 

in government” and “‘sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the 

wise conduct of government’ are interests of the highest 

importance” that Congress may legitimately seek to 

advance when regulating federal elections. First Nat’l 
14

Bank of Boston v. Bellotti, 435 U.S. 765, 788-89 (1978); 

see Shrink Mo. Gov’t PAC, 528 U.S. at 401 (Breyer, J., 

concurring) (recognizing that campaign finance system 

may be regulated in order to advance compelling government interests in “build[ing] public confidence in [the 

electoral] process and broaden[ing] the base of a candidate’s meaningful financial support, encouraging the 

public participation and open discussion that the First 

Amendment itself presupposes”); Buckley v. Valeo, 424 

U.S. 1, 27 (1976) (per curiam) (“Congress could legitimately conclude that the avoidance of the appearance 

of improper influence” is “critical” in order to maintain 

“‘confidence in the system of representative Government’” (quoting United States Civil Serv. Comm’n v. 

Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 

(1973))); United States v. Int’l Union UAW-CIO, 352 U.S. 

567, 590 (1957) (recognizing compelling government 

interest “to protect the political process from undue influence of large aggregations of capital and to promote individual responsibility for democratic government” 

(emphasis added)). 

In legislating to advance this compelling interest, Congress legitimately concluded that because an individual 

citizen’s “right of suffrage can be denied by a debasement 

or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the 

franchise” itself, Reynolds v. Sims, 377 U.S. 533, 555 

(1964), ordinary citizens are likely to lose confidence in 

the electoral process if they lack faith that their votes and 

voices “count” equally in the eyes of elected officials and 

the law. See Shrink Mo. Gov’t PAC, 528 U.S. at 390 (recognizing compelling interest in preventing “the cynical 
15

assumption that large donors call the tune” from “jeopardiz[ing] the willingness of voters to take part in democratic governance”); see also Bush v. Gore, 531 U.S. 98, 

104 (2000) (“The right to vote is protected in more than 

the initial allocation of the franchise.”); Moore v. Ogilvie, 

394 U.S. 814, 819 (1969) (“The idea that one group can 

be granted greater voting strength than another is hostile 

to the one man, one vote basis of our representative government.”); Wesberry v. Sanders, 376 U.S. 1, 17-18 

(1964) (“No right is more precious in a free country than 

that of having a voice in the election of those who make 

the laws under which, as good citizens, we must live.” 

(emphasis added)). Because “viable” representative government demands “[f]ull and effective participation by all 

citizens” in the political process, Congress legitimately 

may regulate the campaign finance system to ensure that 

citizens remain sufficiently confident that they have 

“equally effective voice[s]” in the electoral process to 

maintain participation at the levels necessary to sustain 

democratic government. Reynolds, 377 U.S. at 565; see 

FEC v. Colo. Repub. Fed. Campaign Comm., 533 U.S. 

431, 441 (2001) (Congress may legitimately regulate 

campaign finance system in order to curb “undue influence on an officeholder’s judgment, and the appearance 

of such influence”); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 659-60 (1990) (recognizing compelling government interest in restricting ability of 

corporations to use state-created advantages “to obtain 

‘an unfair advantage in the political marketplace’” (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

257 (1986))). 
16

In Buckley, this Court sustained provisions of the Federal Election Campaign Act4 (“FECA”) that, inter alia, 

(1) set forth limits on political contributions and (2) mandated disclosure and reporting of the sources of such contributions, on the ground that each furthered the 

government’s compelling interest in cultivating public 

confidence in the electoral process. The Court expressly 

rejected the petitioners’ argument that bribery laws and 

narrowly drawn disclosure requirements constituted a 

sufficient alternative to contribution limits, observing 

that criminal penalties “deal with only the most blatant 

and specific attempts of those with money to influence 

governmental action” and that disclosure requirements 

were only a “partial measure” in combating electoral corruption. Buckley, 424 U.S. at 28.5 Thus, the Court concluded that political contribution limits substantially 

advanced Congress’s compelling interest in building public confidence in the electoral process by minimizing 

both the opportunity for undue influence and the perception of such influence in the eyes of the public. Id. at 

26-29. 

The Court also recognized three categories of compelling governmental interests furthered by FECA’s disclosure requirements. First, disclosure “aid[s] the voters 

4 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 

Stat. 3 (1972), as amended by the Federal Election Campaign Act 

Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (1974). 

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

660 (1990), the Court expanded this rationale to capture the regulation 

of campaign expenditures, because “[c]orporate wealth can unfairly 

influence elections when it is deployed in the form of independent 

expenditures, just as it can when it assumes the guise of political contributions.” 
17

in evaluating those who seek federal office,” allowing 

“voters to place each candidate in the political spectrum 

more precisely” and “alert[ing] the voter to the interests 

to which a candidate is most likely to be responsive and 

thus facilitat[ing] predictions of future performance in 

office.” Id. at 66-67. Second, the Buckley Court echoed 

Justice Brandeis in concluding that “disclosure requirements deter actual corruption and avoid the appearance of 

corruption by exposing large contributions and expenditures to the light of publicity.” Id. at 67 (citing L. Brandeis, Other People’s Money 62 (Nat’l Home Library 

Found. ed. 1933)). Third, the Court concluded that “disclosure requirements are an essential means of gathering 

the data necessary to detect violations of the contribution 

limitations.” Id. at 68. Advancement of each of these 

interests in turn bolsters public confidence in the electoral system. For example, greater transparency regarding the sponsorship of candidate-specific advertisements 

mitigates the suspicion and confusion caused by advertisements funded by pseudonymous organizations with 

vague or unclear connections to the candidates themselves. Disclosure requirements hinder advocacy groups’ 

efforts to disguise their alliances or manufacture impressions of broad, grassroots support using corporate dollars. By deterring interest groups from engaging in such 

deception and mandating greater accountability for campaign-related speech, disclosure requirements decrease 

voter alienation and increase public confidence in our 

political system. 

Two terms after Buckley, the Court reaffirmed that the 

preservation of “the individual citizen’s confidence in 

government” is a public concern “of the highest importance.” Bellotti, 435 U.S. at 789. For that reason, the 
18

Court cautioned that where evidence demonstrates that 

“undue influence” by financially powerful interests tends 

to “destroy the confidence of the people in the democratic process and the integrity of government” by 

“drown[ing] out other points of view . . . [and] thereby 

denigrating rather than serving First Amendment interests,” such arguments merit careful consideration. Id. In 

addition, the Bellotti Court powerfully reiterated the 

interest in disclosure announced in Buckley, stating that 

in “judging and evaluating the relative merits of conflicting arguments,” the electorate “may consider . . . the 

source and credibility of the advocate,” and that “[i]dentification of the source of advertising may be required as 

a means of disclosure, so that the people will be able to 

evaluate the arguments to which they are being subjected.” Id. at 791-92. 

Since that time, the Court has made clear that for Congress to advance its compelling interests of ensuring public confidence in the electoral process and facilitating 

meaningful citizen participation, it must be able to prevent circumvention of the mechanisms it has chosen to 

promote those interests in the first instance. See FEC v. 

Beaumont, 123 S. Ct. 2200, 2207 (2003) (“[R]ecent cases 

have recognized that restricting contributions by various 

organizations hedges against their use as conduits for circumvention of [valid] contribution limits.”) (internal 

quotation omitted) (alteration in original); Colo. Repub. 

Fed. Campaign Comm., 533 U.S. at 456 (noting that “all 

members of the Court agree” that preventing circumvention of regulation is an “important government interest”) 

(internal quotation omitted); Austin, 494 U.S. at 664 

(refusing to grant non-profit corporations an exemption 

from expenditure limits in part because such an exemp-
19

tion would allow for-profit corporations to circumvent 

those limits); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 197-

98, 199 (1981) (finding that Congress could place limits 

on contributions to political committees as a means of 

“prevent[ing] circumvention of the very limitations on 

contributions [to candidates] that [the] Court upheld in 

Buckley”); Buckley, 424 U.S at 47 (“[C]ontribution ceilings . . . prevent attempts to circumvent [FECA] through 

prearranged or coordinated expenditures amounting to 

disguised contributions.”). 

For example, the Court has recognized that groups 

exercising undue influence may forsake blatant quid 

pro quo arrangements and instead use more sophisticated 

tactics of influence peddling and misdirection to secure 

their particular objectives. Austin, 494 U.S. at 659-

60 (finding that Michigan’s regulation of independent 

expenditures fulfilled a compelling interest in ameliorating “the corrosive and distorting effects of immense 

aggregations of wealth . . . accumulated with the help of 

the corporate form . . . that have little or no correlation 

to the public’s support for the corporation’s political 

ideas,” regardless of whether Michigan had also demonstrated a viable threat of “‘financial quid pro quo’ corruption” (citations omitted)); see also Buckley, 424 U.S. 

at 28 (rejecting argument that Congress is limited 

to “partial measure[s]” that “deal with only the most blatant and specific attempts . . . to influence governmental 

action” when it legislates to ensure integrity of the political process). Drawing upon Buckley, the Court also has 

paid close attention to attempts to circumvent existing 

campaign finance regulations through the use of “the 

‘special characteristics of the corporate structure’” in a 
20

manner that “threaten[s] the integrity of the political 

process,” and accordingly has endorsed “the public interest in ‘restrict[ing] the influence of political war chests 

funneled through the corporate form.’” Beaumont, 123 

S. Ct. at 2206 (alteration in original) (quoting FEC 

v. Nat’l Conservative Political Action Comm., 470 

U.S. 480, 500-01 (1985)); see also Austin, 494 U.S. at 

659 (“[S]tate-created advantages . . . permit [corporations] to use resources amassed in the economic marketplace to obtain an unfair advantage in the political 

marketplace.” (internal quotation marks and citation 

omitted)). 

Unless congressional action to close the obvious loopholes in its chosen scheme of campaign finance regulation is sustained, public cynicism and alienation from the 

political process will increase even further as a result of 

the disconnect between what the law facially purports to 

regulate and the reality of powerful individuals and institutions circumventing its provisions. As demonstrated by 

the district court record and reinforced by the evidence 

presented by amici in this brief, see supra Point I, that is 

precisely what has happened in the years since Buckley 

and Bellotti were decided. 

In enacting BCRA, Congress explicitly sought, in the 

exercise of its constitutional power to regulate federal 

elections, to “restor[e] Americans’ faith in the electoral 

process and [to] decreas[e] public cynicism about our 

system of government.” Brief of Appellants at 18, Adams 

v. FEC, prob. juris. noted, 123 S. Ct. 2270 (2003) (No. 

02-1740-ATX) (internal quotation marks and citations 

omitted). In this context, Congress’s legislative judgment 

that BCRA is necessary (1) to preserve the integrity and 
21

effectiveness of its overall scheme of campaign finance 

regulation, and (2) to build confidence among ordinary 

citizens in the integrity of that scheme and their own abilities to participate meaningfully in public life, is entitled 

to deference. Cf. Turner Broad. Sys., Inc. v. FCC, 512 

U.S. 622, 665-66 (1994) (noting that “the predictive 

judgments of Congress” should not be ignored “‘simply 

because [appellants] cas[t] [their] claims under the 

umbrella of the First Amendment,’” since “Congress is 

far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon an issue as 

complex and dynamic as that presented here” (alteration 

in original and citations omitted)). 

III. BCRA ADVANCES THE GOVERNMENT’S 

COMPELLING INTERESTS IN IMPROVING 

PUBLIC CONFIDENCE IN THE POLITICAL 

SYSTEM AND FACILITATING CITIZEN PARTICIPATION 

The district court record contains volumes of evidence 

documenting the use of large, unregulated soft money 

donations by financially powerful interests to secure 

undue influence over federal elections and elected officials. These large soft money contributions foster corruption and the appearance of corruption, undermining 

public confidence in the integrity of our political system. 

People of faith share the general public’s concern about 

soft money and support campaign finance reform that 

includes stricter contribution limits. Of those surveyed in 

the 2001 Gallup Poll, 71% of people of faith and 64% of 

clergy favor strict limits on contributions in addition to 

full disclosure about campaign contributions. Gallup Poll 
22

at 13. Moreover, a plurality (40%) of people of faith and 

a majority (52%) of clergy support a ban on soft money. 

Id. at 10. 

People of faith believe that tighter restrictions on contributions and stricter disclosure requirements would 

strengthen the integrity of our political system and the 

ability of average citizens to participate meaningfully in 

the political process. For example, when asked their 

views about the effects of imposing stricter limits on contributions and stricter disclosure requirements, 

$ 62% of people of faith and 63% of clergy responded 

that such reforms would make the American 

political system work better; 

$ 59% of both people of faith and clergy surveyed 

believe such reforms would result in more ethical 

and honest conduct by members of Congress; 

and 

$ 58% of people of faith and 56% of clergy responded 

that such reforms would give the average citizen 

a stronger voice in the political process. 

Id. at 15-16. 

BCRA’s provisions directly address the most significant loopholes used to circumvent Congress’s existing 

campaign finance regulations. Title I of BCRA addresses 

real and perceived corruption by closing the “soft 

money” loophole that had made FECA’s restrictions virtually irrelevant in the eyes of the public. Its provisions 

require that all money raised by national political parties 

be “hard money” raised from sources and in amounts regulated by FECA, and applies the same restriction to state 

political parties to the extent their activities influence 
23

federal elections.6 BCRA § 101, amending FECA § 323, 

2 U.S.C. § 441i. By closing off the most significant 

avenue for large contributors to exert undue influence on 

the federal political system, the soft money restrictions 

in Title I will bolster the confidence of the American people, including people of faith, in the political system. 

Ordinary citizens will be less likely to believe that the 

influence of big donors renders their own participation in 

the political system meaningless and thus will be encouraged to participate. Reducing the perception of corruption and disenfranchisement among ordinary citizens will 

thus improve the vitality and strength of our democracy. 

Title II of BCRA closes two major loopholes that previously allowed widespread circumvention of the source 

restrictions and disclosure rules of FECA: sham “issue 

ads” and coordinated expenditures. Corporations, unions, 

and other interest groups—like political parties—have in 

recent years spent significant amounts on advertisements 

purporting to address issues rather than expressly advocate the election or defeat of a candidate for public office. 

Although these expenditures generally had both the intent 

and effect of influencing federal elections, they fell outside FECA’s definition of “independent expenditures” 

and thus outside its source restrictions and disclosure 

rules, because they did not “expressly advocat[e] the 

6 In the so-called “Levin Amendment,” BCRA does allow state 

and local parties to spend limited soft money donations, in combination with hard money, on voter registration and mobilization activities 

that do not mention federal candidates. BCRA § 101(a), amending 

FECA § 323(b)(2), 2 U.S.C. § 441i(b)(2). The Levin Amendment 

enhances the resources at the disposal of state and local parties to pursue voter turnout efforts, while avoiding the abuses that accompanied 

the use of unlimited soft money to finance these activities. 
24

election or defeat of a clearly identified candidate.” 

2 U.S.C. § 431(17) (defining “independent expenditure”); 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 245-

49 (1986). 

The provisions of Title II close this loophole by 

extending those source limitations and disclosure rules to 

“electioneering communications,” defined in the first 

instance to include broadcast advertisements that refer to 

a clearly identified candidate for federal office and are 

targeted at that candidate’s electorate within 60 days 

prior to a federal general election or 30 days before a 

federal primary election. Congress also provided a “backup” definition that would become effective if the original 

definition were held unconstitutional, as the district court 

concluded in this case. McConnell v. FEC, 251 F. Supp. 

2d 176, 184-85 (D.D.C. 2003). Under the backup definition, an electioneering communication is defined as “any 

broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or 

opposes a candidate for that office (regardless of whether 

the communication expressly advocates a vote for or 

against a candidate) and which also is suggestive of no 

plausible meaning other than an exhortation to vote for or 

against a specific candidate.” BCRA § 201(a), amending 

FECA § 304, 2 U.S.C. § 434(f)(3)(A)(ii). Corporations 

and unions may not use their treasury funds to run advertisements that qualify as “electioneering communications,” and any individual or group spending more than 

$10,000 per year on such advertisements must file a 

report with the Federal Election Commission (“FEC”) 

disclosing the identity of the sponsor of each advertisement and other information. BCRA § 201(a), amending 
25

FECA § 304, 2 U.S.C. § 434(f)(1)-(2). Unions and corporations remain free to fund electioneering communications through sponsored political action committees. 

In order to prevent circumvention through unregulated 

coordinated expenditures, Title II also adjusts what 

expenditures in support of a candidate are to be considered “coordinated” and thus subject to FECA. As this 

Court recognized in Buckley, expenditures coordinated 

with candidates may be regulated in order to prevent circumvention of contribution limits. Buckley, 424 U.S. at 

47. The Court distinguished between expenditures “made 

totally independently of the candidate and his campaign” 

and those made “in cooperation with or with the consent 

of a candidate, his agents or an authorized committee of 

the candidate.” Id. at 47 & n.53. Since Buckley, the Court 

has reaffirmed the proposition that unrestricted expenditures on behalf of a candidate that are coordinated with 

that candidate or her agents pose the same danger to the 

integrity and perceived integrity of the electoral system 

as unrestricted direct contributions. E.g., Colo. Repub. 

Fed. Campaign Comm., 533 U.S. at 464 (noting that there 

exists “no significant functional difference between a 

party’s coordinated expenditure and a party’s direct contribution”). Section 214 of Title II repeals the narrow 

definition of “coordination” adopted by the FEC and 

directs it to issue new regulations. Congress provided 

that these new regulations “shall not require agreement 

or formal collaboration to establish coordination.”7 

BCRA § 214(c), 2 U.S.C. § 441a note. Section 214 also 

7 The FEC issued regulations pursuant to this directive on January 3, 2003. Coordinated and Independent Expenditures, 68 Fed. Reg. 

421 (Jan. 3, 2003). 
26

expands the definition of coordinated expenditures to 

designate independent expenditures made in coordination with a national, state, or local committee of a political party as contributions to such a committee. BCRA 

§ 214(a), amending FECA § 315(a)(7)(B), 2 U.S.C. 

§ 441a(a)(7)(B). Section 213 requires political parties to 

choose between making coordinated expenditures in support of a candidate under 2 U.S.C. § 441a(d) or making “independent” expenditures in support of the candidate. BCRA § 213, amending FECA § 315(d), 2 U.S.C. 

§ 441a(d). 

Title II’s independent expenditure provisions prevent 

circumvention of FECA’s existing source and contribution limits and disclosure requirements, which this Court 

has long recognized advance the government’s compelling interest in preventing the appearance and reality 

of corruption in the electoral system. See, e.g., Buckley, 

424 U.S. at 25-27, 66-68. Unless the significant loopholes relating to sham issue ads and coordinated expenditures are closed, congressional regulation of candidate 

financing will be largely ineffectual. Large contributors 

will retain undue influence, and public perceptions of 

corruption and disenfranchisement will persist. 

In addition to closing loopholes related to contribution 

limits, BCRA includes several new disclosure requirements that the plaintiffs challenge as unconstitutional. 

With respect to electioneering communications, section 

201 of BCRA mandates disclosure regarding disbursements funding electioneering communications that total 

more than $10,000 in a year. The required disclosure 

includes the identity of the person making the disbursement, principal place of business if not an individual, and 
27

the names and addresses of persons who have donated 

$1,000 or more to the disbursing fund. BCRA § 201(a), 

amending FECA § 304, 2 U.S.C. § 434(f)(2). With respect 

to independent expenditures, section 212 of BCRA requires 

reports regarding expenditures or contracts to make independent expenditures that total $1,000 or more after the 

twentieth day prior to a federal election. BCRA § 212, 

amending FECA § 304, 2 U.S.C. § 434(g). 

Finally, BCRA requires the clear identification within 

an advertisement of the sponsors of any electioneering 

communication. Section 311 amends FECA to provide 

that electioneering communications must either clearly 

identify the candidate or political committee that authorized the advertisement or, if not authorized by a candidate or her committee, “clearly state the name and 

permanent street address, telephone number, or World 

Wide Web address of the person who paid for the communication and state that the communication is not 

authorized by any candidate or candidate’s committee.” 

BCRA § 311(1), amending FECA § 318(a)(3), 2 U.S.C. 

§ 441d(a)(3). 

These expanded disclosure requirements advance several compelling government interests related to building 

voter confidence and protecting the integrity of our electoral system.8 Sections 201 and 212 help prevent circum8 The Court’s decisions in McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995), and Buckley v. Am. Constitutional Law Found., 

Inc., 525 U.S. 182 (1999), are not to the contrary. Those decisions concerned state regulations of voter initiatives and referenda, and neither 

state government produced evidence that it had acted on the basis of a 

substantial correlation between disclosure and the eradication of electoral fraud and informational distortion. Indeed, the majority in McIntyre reiterated the Court’s earlier statements that in “candidate 
28

vention of Title II’s restrictions on coordinated expenditures by providing information concerning the sources of 

funding for electioneering communications in support of 

a candidate. Similarly, section 311’s requirement that an 

advertisement’s sponsors be clearly identified also 

enhances the ability of voters to evaluate the information 

presented to them and the candidates. Such identification 

and source information enables the public, the media, and 

regulatory authorities to investigate connections between 

candidates and their financial supporters—connections 

that are of interest to the public both during the election, 

when contribution limits might be triggered, as well as 

after the election, when the public would be alerted to the 

potential for corruption. The disclosure requirements also 

serve as a deterrent to illegal conduct and facilitate 

enforcement of campaign finance and anti-corruption 

laws. 

In addition, BCRA’s expanded disclosure requirements 

advance informational interests, long recognized by this 

Court, in helping voters to evaluate candidates and predict their future conduct once in office. Voters are better 

positioned to ascertain a candidate’s place within the 

elections” the government can pursue its compelling interest in 

decreasing corruption and that “[d]isclosure of expenditures lessens 

the risk that individuals will spend money to support a candidate as a 

quid pro quo for special treatment after the candidate is in office.” 514 

U.S. at 356. As Justice Ginsburg’s concurring opinion observed, “[i]n 

for a calf is not always in for a cow,” and the Court’s decision that a 

single pamphleteer commenting on a school tax levy up for consideration by local referendum did not have to disclose herself as author 

“d[id] not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its 

identity.” Id. at 358. 
29

political spectrum and the interests to which the candidate is likely to respond later if they are informed about 

the identities of groups and individuals providing financial support to that candidate. Buckley, 424 U.S. at 66-67. 

CONCLUSION 

For the foregoing reasons, amici respectfully submit 

that (1) BCRA advances the government’s compelling 

interests in building public confidence in the ability of 

ordinary citizens to participate meaningfully in the political process, encouraging active citizen participation, 

eliminating corruption and its appearance, and minimizing the perception of undue influence in the political 

process, and (2) the Court accordingly should uphold 

BCRA in all respects as a constitutional exercise of Congress’s power to regulate federal elections. 

Respectfully submitted, 

EVAN A. DAVIS 

Counsel of Record 

ANIL KALHAN

KATHERINE MOONEY

Cleary, Gottlieb, Steen & Hamilton

One Liberty Plaza

New York, New York 10006

(212) 225-2000

Attorneys for Amici Curiae

August 5, 2003