“expressly advocating” the election or defeat of a candidate if it

could only be interpreted by a reasonable person as containing advocacy of the election or

defeat of one or more clearly identified candidate(s) because —

(1) the electoral portion of the communication is unmistakable, unambiguous, and
suggestive of only on meaning; and

(2) reasonable minds could not differ as to whether it encourages actions to elect or
defeat one or more clearly identified candidate(s) or encourages some other kind of
action.

This is extremely close to Chief Justice Roberts’s standard that an ad “is the functional
equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate.” 127 S. Ct. at 2667. It is consistent with
Buckley’ s requirement that an expenditure be “unambiguously related to the campaign of a particular
candidate.” 424 U.S. at 80. It describes exactly the analysis undertaken by the Court in MCFL.

Section 100.22(b) indicates that the communication should “taken as a whole and with
limited reference to external events, such as the proximity to the election.” This language is
borrowed from FEC y, Furgatch, which defined “express advocacy” to include speech which “when
read as a whole, and with limited reference to external events, [is] susceptible of no other reasonable
interpretation but as an exhortation to vote for or against a candidate.” 807 F.2d 857, 864 (9th Cir.
1987). The principal external event in Furgatch was timing. The ad in question, which was sharply
critical of the actions and character of President Carter and urged readers “Don’t Let Him Do It,” was
published one week before the 1980 presidential election. The court reasoned that “the ad is bold in

calling for action, but fails to state expressly the precise action called for... . Timing the appearance

of the advertisement less than a week before the election left no doubt of the action proposed.” /d. at

865.

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 16


that a solicitation can trigger “contribution” status only if the solicitation is either for “funds
provided to a candidate or political party or campaign committee” or expressly advocate the election
or defeat of a clearly identified candidate.” RTAO Mot. at 15 (quoting Buckley, 424 U.S. at 23 n. 24).

RTAO is entirely mistaken. The use of “support or oppose” for determining whether an
activity may be subject to campaign finance law has been repeatedly sustained by the courts,
including in the context of determining whether funds are contributions within the meaning of
FECA. Nor does anything in FECA or case law support either of plaintiff's asserted requirements for
determining when a response to a solicitation constitute a contribution.

“Support or oppose” is not unconstitutionally vague or overbroad. The Supreme Court
specifically rejected that claim when it upheld the BCRA provision defining the “federal campaign
activity” of a state and local political party to include public communications that “promote,”
“oppose,” “attack,” and “support” a candidate. McConnell, 540 U.S. at 170 n. 64. As the Court
explained, “these words ‘provide explicit standards for those who apply them’ and ‘give the person
of ordinary intelligence a reasonable opportunity to know what is prohibited.’” /d. (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972)).

Similarly, the Fourth Circuit treated whether a committee is “supporting or opposing a
candidate” as a constitutional standard for whether it can be regulated as a political committee. See
North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 287 (4th Cir. 2008). Leake struck down
the North Carolina law defining a political committee as one that has “a major purpose to support or
oppose the nomination or election” of a candidate solely because North Carolina required only “a”

major purpose, not “the” major purpose of supporting or opposing a candidate. But Leake saw no

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 10


(c)(1)(ii) this is identical to the Chief Justice’s application of his own test in WRTL. Itis hard to see
how these added phrases are in any way inconsistent with WRTL.

The regulation also confirms that a communication would be interpreted as something other
than an appeal to vote for or against a candidate if it includes content that “focuses on a public policy
issue and either urges a candidate to take a position on the issue or urges the public to contact the
candidate about the issue.” § 114.15(c)(2)(i). Again this is virtually identical to the Chief Justice’s
approach except that the added language “urges a candidate to take a position” actually creates a
broader exemption from regulable electioneering communication. The regulation would also treat as
a permissible use of corporate or union treasury funds any communication that “includes a call to
action or other appeal that . . . urges a action other than voting for or against or contributing to a
clearly identified Federal candidate or political party.” § 114.15(c)(2)(iii). This goes beyond the
literal words of WRTL only in indicating that a call to make a campaign contribution to a candidate
or party could be treated as an electioneering communication, but surely treating a call to make a
campaign contribution as the functional equivalent express advocacy is consistent with the spirit of
the decision. Finally, § 114.15 tracks WRTL precisely in providing that “any doubt” whether a
corporate or union communication is permitted or prohibited “be resolved in favor of permitting the
communication,” § 114.15(c)(3), and in requiring that the determination be made by considering
“only the communication itself and basic background information that may be necessary to put the
communication in context and which can be established with minimal, if any discovery.” §
114.15(d).

In short, all of § 114.15’s key phrases and concepts come from the Chief Justice’s opinion

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 20


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

THE REAL TRUTH ABOUT OBAMA, INC.
Plaintiff,
v. C.A. No. 3:08-cv-483
FEDERAL ELECTION COMMISSION
AND UNITED STATES DEPARTMENT
OF JUSTICE

Defendants.

mmm

AMICUS CURIAE BRIEF OF PROFESSORS
RICHARD BRIFFAULT AND DANIEL R. ORTIZ

INTEREST OF THE AMICI CURIAE

The individual amici are law professors who have devoted much of their careers to the study
of election law, especially campaign finance law. Richard Briffault, the Joseph P. Chamberlain
Professor of Legislation at Columbia Law School, has written 18 articles on campaign finance law,
some of which have been cited by the courts in campaign finance cases. See, e.g., FEC v. Colorado
Republican Fed. Campaign Comm., 533 U.S. 431, 462 (2001); Nixon v. Shrink Missouri Gov't PAC,
528 U.S. 377, 406 (2000) (Kennedy, J., dissenting); Landell v. Sorrell, 382 F.3d 91, 109 (2d Cir.
2004), rev ‘d 548 U.S. 230 (2006); Speechnow.orgv. FEC,___F. Supp. 2d__, 2008 WL 2698652
(D.D.C., July 1, 2008); Kermani v. New York State Bd. of Elections, 487 F. Supp. 2d 101, 112
(N.D.N.Y. 2006); McConnell v. FEC, 251 F. Supp. 2d 176, 666, 697 (D.D.C. 2003) (opinion of

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 1


Although other courts have disagreed with Furgatch’s approach, see, e.g., North Carolina

Right to Life, Inc. v. Leake, 344 F.3d 418, 425 (4th Cir. 2003), Virginia Soc. for Human Life v. FEC,

83 F. Supp.2d 668, 676 (E.D. Va. 2000), those decisions predated McConnell and relied on the
assumption repudiated by McConnell that the First Amendment mandates the magic words test.
Indeed, Leake was vacated and remanded in light of McConnell. 541 U.S. 1007 (2004). The
Supreme Court has never questioned Furgatch; and McConnell, in rejecting the facial challenge to
BCRA’s definition of “electioneering communication” — which relies heavily on the timing of the ad
~ vindicated Furgatch’s and 100.22(b)’s “limited reference to external events” standard.

To be sure, WRTL placed limits on the use of context. Chief Justice Roberts’s lead opinion
emphasized the primacy of the content of an ad in determining whether it is the functional equivalent
of express advocacy. But even Chief Justice Roberts did not completely reject a “limited reference
to external events.” His opinion said that such contextual factors “should seldom play a significant
role in the inquiry.” /d. at 2669. But that is a far cry from saying that context can never play any
role. Indeed, Chief Justice Roberts agreed that “[cJourts need not ignore basic background
information that may be necessary to put an ad in context.” /d. Section 100.22(b)’s “limited
reference to external events” is consistent with WRTL’s willingness to consider “basic background
information that may be necessary to put an ad in context.”

Nor is 100.22(b) inconsistent with the Fourth Circuit’s recent decision in Leake invalidating
North Carolina’s definition of regulable “communications.” The North Carolina law was far more
open-ended than the FEC regulation. The North Carolina law inquired into the “essential nature” of

the communication, and provided that regulators could consider “contextual factors such as the

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 17


Respectfully Submitted,

Date: August 14, 2008 By: [ lele.f GA

Richard Briffault

Joseph P. Chamberlain Professor of Legislation
Columbia University School of Law

435 West 116th Street

New York, N.Y. 10027

(212) 854-2638

Daniel R. Ortiz

John Allan Love Professor of Law
University of Virginia School of Law
580 Massie Road

Charlottesville, Virginia 22903-1738
(434) 924-3127


creation of an as-applied exception to the electioneering communications provision. WRTL held that
only a communication that is “susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate” can be subject to the electioneering communication
restriction. 127 S. Ct. at 2667. In then applying this new standard to the ads that Wisconsin Right to
Life sought to air, Chief Justice Roberts’s lead opinion noted that the “ads focus on a legislative
issue, take a position on the issue, exhort the public to adopt that position, and urge the public to
contact public officials with respect to the matter.” /d. The Chief Justice also explained that the ads
“lack[] indicia of express advocacy: The ads do not mention an election, candidacy, political party,
or challenger; they do not take a position on a candidate’s character, qualifications, or fitness for
office.” Id.

11 C.F.R. § 114.15 tracks the WRTL lead opinion closely. It exempts electioneering
communication from the corporate and union treasury fund prohibition “unless the communication is
susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly
identified Federal candidate,” which is exactly the Chief Justice’s language. Following the Chief
Justice’s application of his standard to the specific ads in the case, the regulation provides “rules of
interpretation” for applying the “no reasonable interpretation” test to specific communications. Like
the Chief Justice, the regulation looks to whether there are “indicia of express advocacy,” specifically
whether the communication “[m]entions any election, candidacy, political party, opposition
candidate, or voting by the general public,” § 114.15(c)(1)(i), or “[t]akes a position on any candidate
or officeholder’s character, qualifications, or fitness for office,” § 114.15(c)(1)(ii). Other than the

added phrase “or voting by the general public” in (c)(1)(i) and the phrase “or officeholder’s” in

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 19


literally required in order for a communication to be regulated.

In MCFL, the Court found that a communication constituted express advocacy even though it
did not contain the magic words. MCFL dealt with an anti-abortion organization’s newsletter that
urged voters to “vote pro-life”; identified candidates in terms of whether they supported or opposed
the organization’s positions; and provided photographs of the candidates with the most favorable
records. At no time, however, did the newsletter use the magic words of advocacy together with the
names of candidates. Nonetheless, the Court concluded that the newsletter “cannot be regarded as a
mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it
provides in effect an explicit directive: vote for these (named) candidates.” 479 U.S. at 249
(emphasis supplied). The Court’s use of “in effect” indicates that the magic words are not essential
if other words, combinations of words or photographs, or other features of the communication have
the “effect” of expressly advocating election or defeat.

In McConnell, the Court considered the record developed by Congress in analyzing campaign
practices in the more than two decades after Buckley and found that virtually all campaign
advertisements eschew the magic words. “Indeed, campaign professionals testified that the most
effective campaign ads, like the most effective commercials for products such as Coca-Cola, should,
and did, avoid the use of the magic words.” 540 U.S. at 127. Asa result, so-called issue advocacy
and express advocacy “proved functionally identical in important respects.” /d. at 126. McConnell
recognized that “the presence or absence of magic words cannot meaningfully distinguish
electioneering specch from a true issue ad” and concluded that Buckley’s express advocacy analysis

was merely a response to FECA’s broad language, that is, it “was the product of statutory

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 14


imposing the burdens of “political committee” status on organizations that are primarily non-
electoral and whose electoral activities are undertaken independently of a candidate, the Supreme
Court has limited “political committee” status to organizations “the major purpose” of which “is the
nomination or election of a candidate.” Buckley, 424 U.S. at 79; accord, FEC v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238, 252 n. 6 (1986) (“MCFL "’) (plurality opinion). To be sure, even
entities that are not primarily electoral are subject to disclosure requirements if they make campaign
expenditures above a threshold level, 2 U.S.C. § 434(e), and the ban on corporate and union money
applies to corporations and unions directly and not just to their contributions to political committees,
2 U.S.C. § 441b. But an independent political organization must be treated as a FECA political
committee only if affecting the nomination or election of a candidate is its major purpose. On the
other hand, it is absolutely clear that an entity that has the “major purpose” of supporting or opposing
a candidate for federal office can be treated as a FECA political committee and regulated
accordingly.

How is “major purpose” to be determined? The Supreme Court has never addressed the
question. Buckley simply articulated the standard. In MCFL — the only other Supreme Court case in
which the major purpose standard received even minor attention — it was “undisputed” that the
“central organizational purpose” of the right-to-life organization whose activities were under review
was not electoral. 479 U.S. at 252 n.6. Massachusetts Citizens for Life had been incorporated five
years before it produced the electioneering literature at issue in the case, and it had long engaged “in
diverse educational and legislative activities,” including organizing an ecumenical prayer service,

sponsoring conferences, drafting and submitting legislation, sponsoring testimony on legislation, and

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 6


527s by definition operate in contemporary election campaigns, and often at their core. Indeed, an
authoritative study found that in the 2004 election, 527 organizations spent more than $400 million
to influence the presidential contest alone. See Stephan R. Weissman and Ruth Hassan, “BCRA and
the 527 Groups,” in Michael Malbin, ed., The Election Afier Reform: Money, Politics, and the
Bipartisan Campaign Reform Act (2006). Funded principally by very wealthy donors, 527s like the
Swift Boat Veterans and MoveOn.org were key means of evading federal campaign laws. Although
not all 527 organizations engage in federal campaign activity, many do, and those must be subject to
the campaign finance regulations that apply to all other campaign participants in the campaign laws
are to achieve their goals.

Nor does it matter that RTAO styles itself an “issue advocacy” 527 organization. As the
Supreme Court has explained, issue advocacy may be “functionally identical in important respects”
to express advocacy. McConnell, 540 U.S. at 126. Not all issue advocacy may be regulated by
campaign finance law, but issue advocacy that is “functionally identical” to express advocacy may be
subject to campaign finance rules consistent with the First Amendment. See id; accord, FEC v.
Wisconsin Right to Life, Inc. (“WRTL”), 127 S. Ct. 2652 (2007). The crucial distinction in campaign
finance law is not, as the plaintiff contends, between ‘issue-advocacy ‘527’ organizations” and
“political committees” but within the broad category of issue-advocacy 527s. An effective,
constitutionally sound campaign finance system requires that a 527 organization whose major
purpose is affecting a federal election be regulated like all other political committees. The FEC rules
and policies that plaintiff attacks provide reasonable, constitutional standards for determining which

527 organizations are ~ as a result of their political activities — federal election campaign

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 3


Judge Kollar-Kotelly); id. at 787 n. 85, 788 n.90 (opinion of Judge Leon), aff'd in part and rev'd in
part, 540 U.S. 90 (2003). Daniel R. Ortiz, the John Allan Love Professor of Law at the University of
Virginia School of Law, has written numerous articles and book chapters on election law and on
campaign finance regulation, in particular. He has also co-edited The New Campaign Finance
Sourcebook. He served as director of the Task Force on Legal and Constitutional Issues for the
National Commission on Election Reform chaired by Presidents Ford and Carter. Amici’s
affiliations are listed for identification purposes only.
INTRODUCTION AND SUMMARY OF ARGUMENT

The plaintiff's motion for preliminary injunction is a frontal assault on the nation’s campaign
finance laws. Its success would seriously undermine the regulatory structure for protecting the
integrity of federal elections — a structure that Congress created in 1974 and strengthened in 2002
and that the Supreme Court has repeatedly upheld. If the plaintiff Real Truth About Obama (RTAO)
were to someone prevail, Congress’s carefully designed framework for insuring fair elections — the
disclosure of the sources of campaign funds, limitations on large contributions, and bans on the use
of corporate and union treasury funds — that is fundamental to our campaign finance system would be
gutted in the midst of a presidential campaign.

Plaintiff's suit would open the current election to massive evasion of the law by so-called
“527” organizations. Named after the section of the Internal Revenue Code under which they are
formed, 527s are “organized and operated primarily for the purpose of directly or indirectly accepting
contributions or making expenditures, or both, for . . . influencing or attempting to influence the

selection, nomination or appointment of any individual” to office. 26 U.S.C. § 527(e)(1),(2).. These

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 2


interpretation rather than a constitutional command.” /d, at 192-93.

McConnell specifically rejected constitutional challenges to three BCRA provisions that
imposed restrictions or disclosure requirements on campaign advocacy that went beyond the magic
words. The Court held that the application of BCRA’s ban on the use of soft money — that is, money
that does not comply with FECA’s dollar limits on contributions and prohibitions on corporate and
union treasury funds — by state and local political parties for public communications that “promote,”
“support,” “attack,” or “oppose” a clearly identified federal candidate is constitutionally sound. /d.
at 170. The Court held Congress could impose disclosure requirements on “electioneering
communications,” defined as broadcast, cable, or satellite communications, aired within sixty days
before a general election or thirty days before a primary election that simply “refer[] to a clearly
identified candidate for federal office,” if the communications are broadcast or aired to the
candidate’s constituency. /d. at 194-202. And the Court rejected a facial challenge to the extension
of the ban on the use of corporate and union treasury funds to pay for campaign expenditures to the
same “electioneering communications.” /d. at 203-09.

WRTL created an as-applied exception from the restrictions on corporate electioneering
communications upheld in McConnell, but WRTL neither overturned McConnell’s finding that the
“electioneering communication” provision is facially constitutional nor mandated the “magic words”
test. In his lead opinion Chief Justice Roberts, determined that an ad can be treated as an
electioneering communication if it is “the functional equivalent of express advocacy.” Id. at 2664.

Section 100.22(b) provides a definition of “expressly advocating” that is consistent with

WRTL’s “functional equivalent” standard. Under 100.22(b), a communication will be treated as

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 15


committee are subject to dollar limitations. The Supreme Court has repeatedly sustained these
requirements and restrictions because they vindicate compelling governmental interests in protecting
the integrity of the electoral process. The value of an informed electorate justifies the disclosure of
information concerning political committee contributions and expenditures. Buckley v. Valeo, 424
USS. 1, 66-67 (1976). The prevention of the corruption or the appearance of corruption of elected
officials justifies contribution limitations, including contributions to political committees. E.g., id. at
29; FEC v. California Medical Ass'n, 453 U.S. 182 (1981). The prohibition on corporate money is
necessary to protect against the “corrosive and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form and that have little or no correlation to the
public’s support for the corporation’s political ideas.” Austin v. Michigan Chamber of Commerce,
494 U.S. 652, 660 (1990); McConnell, 540 U.S. at 205. The corporate and union bans also protect
the interests of dissenting shareholders and union members. McConnell, 540 U.S. at 204.

FECA defines a “political committee” as “any committee, club, association, or other group of
persons which receives contributions aggregating in excess of $1000 during a calendar year or which
makes expenditures aggregating in excess of $1000 during a calendar year.” 2 U.S.C. § 431(4)(A).
There has been little difficulty applying this definition to committees that make contributions directly
to or that coordinate their expenditures with federal candidates. However, organizations that make
election-related expenditures independent of candidates may also qualify as political committees.
Many well-established organizations that are primarily engaged in public education, grassroots

lobbying, or promoting or opposing certain public policies or issue positions may make statements

concerning officeholders and candidates that could be construed as election-related. To avoid

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 5


and the regulation closely adheres to the Chief Justice’s analysis. With the WRTL lead opinion
providing the governing standard in this area, § 114.15 is plainly constitutional.
CONCLUSION

Twice this past term the Supreme Court rejected facial challenges to the constitutionality of
election laws, emphasizing that such a challenge imposes a “heavy burden of persuasion” to
demonstrate that a law is unconstitutional “in all its applications.” Crawford v. Marion Co. Elec.
Bd., 128 S.Ct. 1610, 1621-22 (2008); Washington State Grange v. Washington State Republican
Party, 128 S.Ct. 1184, 1190-91, 1195 (2008). That heavy burden on the plaintiff is particularly
appropriate in this case. The need for effective campaign finance regulation — for full disclosure of
the sources of campaign money, and for enforcement of the limits on large contributions and on the
uses of corporate and union treasury funds — is greater than ever. In the 2004 presidential election,
527 organizations proved to be a key mechanism for smuggling some of the “soft money” barred by
BCRA back into federal elections. Surely, there are new 527s, organized to support or oppose this
year’s candidates, that are eager to participate in this year’s election. Unless there are rules and
policies grounded in campaign realities that require those 527s actually engaged in electioneering to
abide by the rules that apply to other campaign actors, the campaign finance laws are at risk of being
flouted again. If RTAO’s facial challenge were to succeed, the 2008 election would be wide open to
campaigning by groups exempt from disclosure and funded by very large individual donations and
corporate or union money.

As the Grange and Crawford courts indicated — and as McConnell and WRTL demonstrated

in the campaign finance context — specific constitutional problems with particular applications of a

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 21


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

THE REAL TRUTH ABOUT OBAMA, INC.
Plaintiff,
ve C.A. No. 3:08-cv-483
FEDERAL ELECTION COMMISSION
AND UNITED STATES DEPARTMENT
OF JUSTICE

Defendants.

Ne eee

MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF

Professors Richard Briffault and Daniel R. Ortiz hereby move for leave to file an amicus
curiae brief in opposition to the preliminary injunction motion filed by plaintiff The Real Truth
About Obama, Inc. In support of this motion, Professors Briffault and Ortiz state:

1. The plaintiff in this case has filed a Complaint challenging the
constitutionality of several campaign-finance regulations issued by the Federal Election Commission
(FEC), as well as a motion for a preliminary injunction. The motion seeks to enjoin the FEC from
enforcing those regulations in the midst of a Presidential campaign.

2. This Court’s resolution of this matter is of critical importance to the
Presidential campaign and to campaign finance law, an area of law in which the amici focus their

scholarship and teaching.
3. Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at

Columbia University School of Law, specializes in election law and government law. Daniel R.

DC:563269.3

CLERK. U.S. DISTRICT COURT
RICHMOND. VA.


2004, these organizations were at most modest participants in federal election campaigns. But when
the Bipartisan Campaign Reform Act of 2002 (“BCRA”) effectively clamped down on donations of
“soft money” — that is, money that does not comply with the dollar limitations and source
prohibitions of federal campaign law — to the political parties, hundreds of millions of dollars began
to flow into the 527s to be used for electoral purposes. See Weissman & Hassan, supra. Effective
enforcement of election law, particularly restrictions on such soft money, not only permits but
requires investigation into the activities of 527s to determine if they have crossed the line and have
made electioneering their “major purpose,” as many did in 2004. Indeed, a central lesson of the 2004
election is the need for effective standards that assure that the disclosure, contribution, corporate and
union rules that apply to all other campaign participants also apply to 527s whose major purpose is
electioneering.

Plaintiff RTAO seems to believe that a 527 organization can control the determination of its
status simply through statements denying an electioneering purpose in its Articles of Incorporation.
But as the District of Columbia Circuit has observed, “it is the purpose of the organization’s
disbursements, not of the organization itself, that is relevant.” Akins v. FEC, 101 F.3d 731, 743 (D.C.
Cir. 1997). Although an organization’s official statements declaring an electoral purpose may
facilitate finding a “major purpose,” FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), making a
statement denying electoral purpose dispositive of political committee status would be an open
invitation to evasion.

Rather, the resolution of a particular organization’s major purpose necessarily requires an

examination of that organization’s actual activities — its expenditures, its statements soliciting

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 8


engaging in grassroots lobbying concerning its legislative proposals. See id. at 241-42.

On the other hand, there are organizations which are organized in the heat of an election; that
focus all their communications, public statements, and activities on election candidates; and that
discuss issues solely as they relate to those candidates. There are even organizations, like plaintiff
Real Truth About Obama, Inc. (““RTAO”), which define themselves entirely around a single, specific
candidate. Although their communications discuss issues, the content of those communications
exclusively concerns a single candidate, and the very name of the organization refers to that
candidate. It is not implausible to think that an organization so focused on a candidate has as its
“major purpose” the goal of influencing the election in which that candidate is running.

This is particularly so when an entity has chosen to organize itself under section 527. As
Judge Sullivan explained in Shays v. FEC, “an organization’s usage of 527 status is inherently
indicative of its choice to principally engage in electoral activity, which goes a long way to satisfying
the major purpose test.” 511 F. Supp. 2d 19, 30 (D.D.C. 2007). Section 527 is not the only
provision of the Internal Revenue Code that enables an entity to obtain tax-exempt status in order to
engage in public education, public policy debates, or issue advocacy. A “corporation ...community
chest, fund or foundation” engaged in public educational activities can obtain tax-exempt status by
organizing under section 501(c)(3) of the tax code. A “civic league[] or organization . . . operated
exclusively for the promotion of social welfare” can engage in public education and legislative
lobbying and still obtain tax-exempt status by organizing under section 501(c)(4) of the tax code.
An entity that chooses 527 status signals that it has an electoral purpose.

This is confirmed by the explosive growth of 527s in the 2004 presidential elections. Prior to

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE7


committees. These regulations and practices, which reflect three decades of experience with
elections, are entirely consistent with governing Supreme Court and lower federal court precedent.
So, too, the FEC’s regulation for determining which corporate communications constitute regulable
“electioneering communications” are entirely consistent with the governing WRTL decision.

If plaintiff were to prevail, 527s could play an important role in the current election without
having to comply with the disclosure requirements, contribution limitations, and corporate and union
prohibitions that both Congress and the Supreme Court have found vindicate the “clear and
compelling interest in preserving the integrity of the electoral process.” McConnell, 540 U.S. at
119. There is no constitutional basis for the plaintiff's challenge. Even in the unlikely event that
plaintiff can demonstrate that it is not a political committee or that it is constitutionally entitled to an
“as-applied” exemption, its arguments are wholly insufficient to satisfy the “heavy burden of
persuasion” that the plaintiff must bear to succeed in its sweeping facial attack on the campaign
finance system. Crawford v. Marion Co. Elec. Bd., 128 S. Ct. 1610, 1621-22 (2008).

ARGUMENT
I. The FEC May Closely Examine a 527 Organization’s Election-Related Activities to

Determine Whether it is a Political Committee Under FECA.

At the heart of this case is the question of how the Federal Election Commission should
determine whether a 527 organization — which, by definition, accepts and spends money for the
purpose of “influencing or attempting to influence” elections ~ ought to be treated as a “political
committee” under the Federal Election Campaign Act (“FECA”). A political committee is subject to

disclosure requirements; it may not take corporate or union money; and contributions to a political

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 4


language of the communication as a whole, the timing of the communication in relation to events of
the day, the distribution of the communication to a significant number of registered voters for that
candidate’s election, and the cost of the communication.” Leake, supra, 523 F.3d at 280-81 (quoting
N.C.G.S. §163-278.14A(a)(2)). As Judge Wilkinson noted, the North Carolina law opened up a host
of imponderables: “For instance, how is a speaker — or a regulator for that matter — to know how the
“timing” of his comments “relate’ to the events of the day? Likewise, how many voters would be
considered ‘significant’? And at what ‘cost’ does political speech become regulable?” /d. at 284.
Section 100.22(b), by contrast, is far tighter and more limited. It makes no reference to “cost” or the
“significan[ce] of the number of voters reached;” indeed, it does not refer to the number of voters
reached at all. And instead of referring to timing loosely “in relation to the events of the day,” §
100.22(b) refers only to “proximity to the election,” which, as Furgatch indicates, makes sense since
the “express advocacy” question is about whether the communication is expressly advocating how to
vote in the election. Moreover, § 100.22, like WRTL but unlike the North Carolina law, cautions that
only “limited reference” may be made to context.

In short, nothing in Leake or in any Supreme Court case, would support a determination that
§ 100.22 is facially unconstitutionally. Section 100.22 goes beyond “magic words” but under
McConnell and WRTL that is entirely consistent with the First Amendment.
IV. Section 114.15’s Regulation of the Permissible Use of Corporate and Union Funds

for Electioneering Communications is Constitutional.

Section 114.15 grows out of the interplay of Congress’s regulation of corporate and union

electioneering communications, McConnell’s rejection of a facial challenge to that law, and WRTL’s

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 18


CERTIFICATE OF SERVICE

1, RICHARD BRIFFAULT, hereby certify that a copy of the foregoing MOTION FOR
LEAVE TO FILE AMICUS CURIAE BRIEF has been served this 14th day of August, 2008, by first-

class mail, postage prepaid, upon:

‘Thomasenia P. Duncan, General Counsel
FEDERAL ELECTION COMMISSION
999 E Strect, NW

Washington, DC 20436

Counsel for Defendant

Attorney General Michael B. Mukasey
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave. NW
Washington, DC 20530

Counsel for Defendant

Civil Process Clerk

UNITED STATES ATTORNEY'S OFFICE
600 East Main Street, Suite 1800
Richmond, VA 23219-2447

Counsel for Defendant

Michael Boos

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313
Fairfax, VA 22030

Counsel for Plaintiff

RicharBriffault



Exhibit A


constitutional difficulty in defining electoral activity in terms of “supporting or opposing” a
candidate. Indeed, the court invoked “supporting or opposing” or “support or opposition” — and not
express advocacy of election or defeat — a half-dozen times over two pages of its opinion in laying
out its constitutional standard. See id. at 287-88.

And just last month the district court for the District of Columbia specifically upheld the
“support or oppose” provision of §100.57, noting that the contentions that the phrase is
unconstitutionally vague and “not related to the express advocacy requirement” were “entirely
unavailing” in light of the Supreme Court’s ruling in McConnell. See Emily's List v. FEC, ___
F.Supp.2d ___, 2008 WL 2938558, *29 (D.D.C., July 31, 2008).

Nor does case law support RTAO’s proposed test. The first prong of RTAO’s proposed test
would limit the use of a solicitation to determine whether funds are a contribution to “funds provided
to a candidate or political party or campaign committee,” quoting from a footnote in Buckley v.
Valeo. Leaving aside that funds provided to a candidate, political party, or campaign committee
would be a contribution regardless of what the solicitation says, RTAO conveniently ignores the next
sentence in that footnote, which states: “In addition, dollars given to another person or organization
that are earmarked for political purposes are contributions under the Act.” 424 U.S. at 23 n.24.
(emphasis supplied). Surely, funds given to a 527 organization in response to a solicitation
indicating that they will be used to support or oppose a clearly identified federal candidate are
“earmarked for political purposes” within Buckley. See id. at 78 (“Contribution” is defined to
include “not only contributions made directly or indirectly to a candidate, political party, or

campaign committee” but also “contributions made to other organizations or individuals but

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 11


requirement and the controls on corporate and union money would be more open to evasion. But the
rule is squarely consistent with the “functional equivalent of express advocacy standard” of
constitutionality articulated by Chief Justice Roberts in his lead opinion in the recent WRTL decision,
128 S. Ct. at 2664.

RTAO’s contention that the § 100.22 is unconstitutional because it regulates ads that do not
include the so-called “magic words” of advocacy is entirely without support. Buckley did not
mandate a magic words test. MCFL found express advocacy without the magic words. McConnell
emphasized that the magic words test is not constitutionally required. WRTL confirmed that
communications that go beyond the magic words can be regulated so long as they are “the functional
equivalent of express advocacy.”

“Expressly advocating” grows out of Buckley’s analysis of when independent expenditures —
that is expenditures by individuals and organizations other than candidates and political parties — are
sufficiently election-related that it is constitutional to regulate them. In FECA, Congress sought to
impose disclosure requirements on expenditures “for the purpose of . . . influencing” an election, but
the Supreme Court, finding that the broad statutory language has the “potential for encompassing
both issue discussion and advocacy of a political result,” construed “expenditure” “to reach only
funds used for communications that expressly advocate the election or defeat of a clearly identified
candidate.” 424 U.S. at 79, 80. Buckley gave as examples of “expressly advocate” “communications
containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast

your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” /d. at 44, n. 52. These

became known as the “magic words” of advocacy, but the Court never held that the magic words are

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 13


Respectfully Submitted,

Date: August 14, 2008 By: Lebo A Sodfptt
Richard Briffault

Joseph P. Chamberlain Professor of Legislation
Columbia University School of Law

435 West 116th Street

New York, N.Y. 10027

(212) 854-2638

Daniel R. Ortiz

John Allan Love Professor of Law
University of Virginia School of Law
580 Massie Road

Charlottesville, Virginia 22903-1738
(434) 924-3127


law can be addressed with an as-applied exception. Indeed, since no enforcement action has even
been opened against RTAO, it could very well be the case that RTAO’s expenditures, solicitations,
and other activities would be found to be primarily issue-oriented and not electioneering. On the
other hand, the very existence of an entity which is organized under section 527 “primarily for the
purpose of directly or indirectly accepting contributions or making expenditures, or both, for. . .
influencing or attempting to influence” an election, and which has focused its fundraising and
spending activities exclusively on — and even named itself after — the presumptive presidential
nominee of a major party suggests that the rules and policies under attack are unlikely to be
unconstitutional “in all their applications.”

For the foregoing reasons, we urge the court to reject plaintiff's request for a preliminary

injunction against all applications of the rules and policies at issue in this case.

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE 22


Ortiz, the John Allan Love Professor of Law at the University of Virginia School of Law, is an
expert on constitutional law, electoral law, and campaign finance reform.

4, Both amici have written extensively on the issues of | campaign finance. See,
e.g., Richard Briffault, WRIL HH: The Sharpest Turn in Campaign Finance's Long and Winding
Road, | Albany Gov't L. Rev. 101 (2008); Richard Briffault, WRTL and Randall: The Roberts Court
and the Unsettling of Campaign Finance Reform Law, 68 Ohio State L.J. 807 (2007); Richard
Briffault, The 527 Problem... and the Buckley Problem, 74 Geo. Wash. L. Rev. 949 (2005); Daniel
R. Ortiz, The Empirics of Campaign Finance, 78 S. Cal. L. Rev. 939 (2005); Daniel R. Ortiz, The
Unbearable Lightness of Being McConnell, 3 Election L.J. 299 (2004); Daniel R. Ortiz, Drawing a
Roadmap to Uphold BCRA, 6 U. Pa. J. Const. L. 105 (2003).

5. Both amici have taught numerous courses on election law and campaign
finance law. Amici Professor Briffault has also twice testified before Congress on clection law
issues, appearing before both the House and Senate Judiciary Committees.

6. Given this background, the amici belicve they can assist this Court by offering
a broader perspective on the complexities of campaign finance law that are now before it.

7. In light of the importance of the issue that is presented here, we respectfully
submit that an amicus curiae brief would assist the Court without adversely affecting the rights of the
parties,

8. The proposed amicus curiae brief is attached as Exhibit A.

WHEREFORE, Professors Richard Briffault and Daniel R. Ortiz respectfully request

that they be granted leave to file an amicus curiae brief.


ECEIVE

AUG | 4 2B
IN ‘THE UNITED STATES DISTRICT COURT

CLERK, US. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND. VA.

THE REAL TRUTH ABOUT OBAMA, INC,
Plaintiff,
v. C.A. No. 3:08-ev-483
FEDERAL ELECTION COMMISSION
AND UNITED STATES DEPARTMENT
OF JUSTICE

Defendants.

LUE ET CEES

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF

This cause coming to be heard on the motion by Professors Richard Bri ffault and Daniel R.
Ortiz for leave to file an amicus curiae brief in support of the Defendants, proper notice having been
served, and the Court being fully advised in the premises:

IT 1S HEREBY ORDERED that the motion by Professors Briffault and Ortiz is
GRANTED.

ENTER:

The Honorable James R. Spencer
United States District Judge

DATED: August ___, 2008


contributions, its other public statements; a calculation of the amounts spent on federal campaigns
and of the amounts spent on non-federal-campaign matters; and then a determination of the federal-
election share of the total. This will inevitably “require[] a very close examination of various
activities and statements.” Shays, 511 F. Supp. 2d at 31. Indeed, Shays sustained this approach,
including review of the 527’s “fundraising solicitations, contribution sources, public statements and
internal documents, and the full range of campaign activities,” id. at 30 -— the very review plaintiff
RTAO now disparages.

The question then becomes which fundraising solicitations and what public statements can
be treated as evidence of federal electoral activity for the “major purpose” test. That is the focus of
the next two sections of this brief.

Il. Fundraising Letters Indicating that the Funds Solicited Will Be Used to Support or

Oppose a Federal Candidate May Be Considered Evidence of Electioneering Purpose.

In determining whether a 527 organization’s major purpose is influencing elections, the FEC
has stated that it will consider fundraising appeals that indicate “that the funds received would be
used to support or defeat a Federal candidate” to be evidence of an electoral purpose. 72 Fed. Reg.
5595, 5604 (Feb. 7, 2007). RTAO’s facial challenge attacks both this and the underlying regulation
defining money provided in response to a fundraising solicitation as a “contribution” when the
solicitation indicates “that any portion of the funds received will be used to support or oppose the
election of a clearly identified Federal candidate.” 11 C.F.R. § 100.57(a). RTAO does not actually
challenge the use of solicitations to determine whether funds given in response are “contributions.”

Instead, plaintiff contends that the “support or oppose” standard is vague and overbroad. It asserts

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PAGE9


earmarked for political purposes.”).
RTAO’s proposed alternative requirement — that the solicitation itself include language of
express advocacy — is equally inconsistent with precedent. n FEC v. Survival Education Fund, Inc.,
65 F.3d 285 (2d. Cir. 1995), the Second Circuit rejected that proposal in a related context. Survival
dealt with the FECA requirement that anyone who “solicits any contribution” must include a
specified notice indicating who paid for the solicitation and whether or not it was authorized by a
candidate. 2 U.S.C. § 441d(a)(3). The district court in that case held, much as RTAO contends here,
that the disclaimer could apply only to communications “that expressly advocate the election or
defeat of a clearly identified candidate for federal office.” 65 F.3d at 293. The Second Circuit
rejected that interpretation, finding that “[e]ven if communication does not itself constitute express
advocacy, it may still fall within the reach of § 441(d) if it contains solicitations clearly indicating
that the contributions will be targeted to the election or defeat of a clearly identified candidate for
federal office.” Jd, at 295. The “support or oppose” standard is consistent with Survival’s
requirement of language indicating that contributions will be targeted to elect or defeat a candidate.
III. | The FEC’s Definition of Express Advocacy is Constitutional.
RTAO asserts that the portion of the federal regulation defining “expressly advocating,” 11
C.F.R. § 100.22(b), is void on its face. This contention would have consequences that go well
beyond determining “political committee” status. Section 100.22(b) also affects the definition of
when an individual’s political expenditures or those of an entity that is not a political committee are

subject to campaign finance regulation, including the application of disclosure requirements and the

ban on the use of corporate or union treasury funds. Were RTAO to succeed, both the disclosure

AMICUS BRIEF OF PROFESSORS RICHARD BRIFFAULT AND DANIEL R. ORTIZ
PaGE 12