No. 02-1755 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001

IN THE

	
	




 ———— 

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

———— 

On Appeal from the United States District Court 

For the District of Columbia 

———— 

REPLY BRIEF OF AFL-CIO 

APPELLANTS/CROSS-APPELLEES 

———— 

LARRY P. WEINBERG

1101 17th Street, N.W. 

Suite 900 

Washington, D.C. 20036 

(202) 775-5900 

Of Counsel 

JONATHAN P. HIATT

LAURENCE E. GOLD

Counsel of Record 

AFL-CIO 

815 Sixteenth Street, N.W. 

Washington, D.C. 20006 

(202) 637-5130 

MICHAEL B. TRISTER

LICHTMAN, TRISTER & ROSS, PLLC

1666 Connecticut Ave., N.W. 

Washington, D.C. 20009 

(202) 328-1666 

Counsel for Appellants/CrossAppellees 
(i) 

TABLE OF CONTENTS 

Page 

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

ARGUMENT................................................................. 1 

I. BCRA’S PROSCRIPTION OF UNION 

AND CORPORATE TREASURY FUNDING 

OF “ELECTIONEERING COMMUNICATIONS” IS UNCONSTITUTIONAL................ 1 

A. BCRA’s Primary Definition of “Electioneering Communication” Is Not Narrowly 

Tailored to Serve a Compelling Governmental Interest and Is Unconstitutionally 

Overbroad .................................................. 1 

B. That Unions and Corporations Retain the 

Option of Financing “Electioneering 

Communications” Through Their Separate Political Action Committees Does 

Not Render BCRA’s Ban on Their Use of 

Treasury Funds For This Purpose 

Constitutional ............................................ 10 

C. BCRA’s Backup Definition of “Electionering Communication” Is Unconstitutionally Vague ........................................... 14 

II. BCRA’S COORDINATION PROVISIONS 

ARE UNCONSTITUTIONALLY VAGUE 

AND OVERBROAD......................................... 17 

III. BCRA’S ADVANCE DISCLOSURE REQUIREMENTS VIOLATE THE FIRST 

AMENDMENT ................................................. 19 

CONCLUSION.............................................................. 20
ii 

TABLE OF AUTHORITIES 

CASES Page 

Ashcroft v. ACLU, 535 U.S. 564 (2002) ................ 16 

Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990).................................................. 10, 11

Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999)................................... 12 

Buckley v. Valeo, 424 U.S. 1 (1976)...................... passim 

California Pro-Life Council, Inc. v. Getman, 328 

F.3d 1088 (9th Cir. 2003) .................................. 16 

Chamber of Commerce v. Moore, 288 F.3d 187 

(5th Cir.), cert. denied, 123 S.Ct. 536 (2002) .... 16 

Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981)........................................... 11 

City of Los Angeles v. Jews for Jesus, Inc., 482 

U.S. 569 (1987).................................................. 3

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

(1989)................................................................. 17 

Federal Election Commission v. Beaumont, 123 

S.Ct. 2200 (2003)............................................... 9, 11 

Federal Election Commission v. Christian Action 

Network, Inc., 110 F.3d 1049 (4th Cir. 1997).... 16

Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 

U.S. 431 (2001).................................................. 18 

Federal Election Commission v. Furgatch, 807 

F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 

(1987)................................................................. 15-16 

Federal Election Commission v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986)....... 10, 11 

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978)..5, 8, 11 

Hill v. Colorado, 530 U.S. 703 (2000) .................. 15 

Hurley v. Irish-American Gay, Lesbian And 

Bisexual Group of Boston, Inc., 515 U.S. 557 

(1995)................................................................. 12 
iii 

TABLE OF AUTHORITIES—Continued 

 Page 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 

334 (1995).......................................................... 12 

Meyer v. Grant, 486 U.S. 414 (1988) .................... 10

Miller v. California, 413 U.S. 15 (1973) ............... 16 

NAACP v. Alabama, 357 U.S. 449 (1958)............. 9

NAACP v. Button, 371 U.S. 415 (1963)................. 4

National Endowment for the Arts v. Finley, 524 

U.S. 569 (1988).................................................. 15 

New York Times Co. v. Sullivan, 376 U.S. 254 

(1964)................................................................. 4, 8 

Pacific Gas & Electric Co. v. Public Utilities 

Comm’n of Cal., 475 U.S. 1 (1986) ................... 8, 12 

Riley v. National Federation of Blind of N.C., 

Inc., 487 U.S. 781 (1988)................................... 12 

Roberts v. United States Jaycees, 468 U.S. 609 

(1984)................................................................. 9

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

519 U.S. 357 (1997)........................................... 15 

Thomas v. Collins, 323 U.S. 516 (1945)................ 15, 17 

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 8

Virginia v. Hicks, 23 S.Ct. 2191 (2003)................. 3, 8 

Virginia Society for Human Life, Inc., v. Federal 

Election Commission, 263 F.3d 379 (4th Cir. 

2001) .................................................................. 16 

STATUTES 

2 U.S.C. § 434(f)(2)(D).......................................... 12 

2 U.S.C. § 437g(a)(5)(C) ....................................... 3 

2 U.S.C. § 441a(a)(5)............................................. 14 

2 U.S.C. § 441d(a)(1)............................................. 12 

26 U.S.C. § 527...................................................... 12, 13 

26 U.S.C. § 527(c)(3)............................................. 13 

26 U.S.C. § 527(e)(1)............................................. 13 

26 U.S.C. § 527(e)(2)............................................. 12 
iv 

TABLE OF AUTHORITIES—Continued 

REGULATIONS Page 

11 C.F.R. §§ 110.3(a)(2)(ii), (iii)........................... 14 

MISCELLANEOUS 

Final Rule, “General Public Political Communications Coordinated with Candidates and 

Party Committees; Independent Expenditures,” 

65 Fed Reg. 76138 (Dec. 6, 2000)..................... 18 

“Record-Keeping Under the Labor Management 

Reporting and Disclosure Act (LMRDA): Do 

DOL Reporting Systems Benefit the Rank and 

File?”, Joint Hearing Before the Subcommittee 

on Workforce Protections and the Subcommittee on Employer-Employee Relations of the 

House Committee on Education and the 

Workforce, 107th Cong., 2d Sess. (2002).......... 13-14 
I. BCRA’S PROSCRIPTION OF UNION AND 

CORPORATE TREASURY FUNDING OF 

“ELECTIONEERING COMMUNICATIONS” IS 

UNCONSTITUTIONAL 

 A. BCRA’s Primary Definition of “Electioneering Communication” Is Not Narrowly Tailored to 

Serve a Compelling Governmental Interest and Is 

Unconstitutionally Overbroad

The Government defends the definition of “electioneering 

communication” in § 201 of the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”) as a “clear and objective” “brightline, readily administrable test” that avoids the “pitfalls” of 

“attempting to distinguish between advertisements based on 

subjective and manipulable inquiries such as the intent of 

speakers or understanding of listeners” that Buckley v. Valeo, 

424 U.S. 1 (1976), eschewed in construing provisions of the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. § 431 et 

seq., to reach only express advocacy. See FEC Br. at 91. But 

the Government premises the constitutional sufficiency of 

this definition as narrowly tailored on overreaching assumptions about speaker intent and listener understanding, and its 

proposed “test” for proscribable speech charts a sharp and 

dangerous new direction in First Amendment jurisprudence. 

1. The Government asserts that in § 201 Congress 

“identif[ied] the factors that separate communications that are 

intended to influence the outcome of . . . elections and 

communications that are simply intended to promote debate 

on particular issues.” FEC Br. at 92. The Government 

reasons that “‘most advertisements designed to influence 

federal elections refer to a federal candidate,’” id. at 93, 

quoting S.A. 847sa and n. 129 (Kollar-Kotelly), but the 

proposition that would support § 201’s demarcation of speech 

with electoral intent is quite different: that most advertisements that refer to a federal candidate are designed to 

influence the outcome of federal elections. However, both 

the Government and the intervenor-defendants now disclaim 
2 

reliance upon the “subjective” conclusions of the Buying 

Time studies, namely, the student coding of candidatereferential ads as either “issue” or “electoral” in purpose that 

produced the assertedly low percentages of so-called 

“genuine” issue advertisements that figured so prominently in 

both the congressional debates and the briefing below. See 

FEC Br. at 110-11; Intervenors Br. 67.1

 See also S.A. 768sa 

(Kollar-Kotelly) (rejecting retrospective evaluations of nature 

of particular advertisements because “one person’s genuine 

issue advertisement is another’s electioneering commercial”). 

The Government otherwise justifies its contention that 

§ 201 defines ads with electoral intent with the claim that “the 

uncontroverted evidence shows that it is not necessary to 

refer to ‘specific candidates for federal office in order to 

create effective [issue] ads.’” See FEC Br. at 93, quoting 

S.A. 846sa (Kollar-Kotelly). But such evidence in fact was

vigorously controverted below—for example, the AFL-CIO’s 

public affairs director testified that naming a federal 

officeholder (who is a “candidate” within the meaning of 

§ 201 at virtually all times, see AFL-CIO Br. at 25 n.16) in 

broadcast advertisements is often necessary in order effec- 

 1

 The defendants’ shift in emphasis on this appeal from the subjective 

aspects of the Buying Time studies marks a highly significant tactical 

retreat that implicitly acknowledges both the empirical flaws inherent in 

the students’ uninformed and context-free review of printed storyboard 

versions of broadcast ads, and the dramatic impact a few changes in the 

evaluation of advertising would have on the bottom-line results, where 

recoding just eight distinct ads in 1998 would cause the 14.7% “genuine” 

figure to leap to 64%, and recoding just six ads in 2000 would trigger a 

rise from 3.1% “genuine” to 17.0%. See FEC Br. at 111-12; McConnell 

Br. at 54-56. As one of defendants’ amici aptly observed, “no study—

especially a study that asks college students to discern the purpose of a 

political advertisement completely devoid from context—can provide a 

court with a precise percentage of hypothetical future speech that will 

raise significant First Amendment concerns.” Brief of Amici Curiae, 

Former Leaders of the American Civil Liberties Union (“Former ACLU 

Leaders Br.”) at 12-13. 
3 

tively to influence his or her conduct and the issue debate. 

See Denise Mitchell Dec. ¶¶ 11-12 (J.A. 428-30); Mitchell 

Dep. 19-20, 205-06; Mitchell Cross 122-23, 127-28, 141-42, 

199. And, even if such references were “not necessary,” it 

hardly follows that their use reflects electoral intent rather 

than a variety of other possible considerations and judgments, 

including even ill-informed and poorly considered ones that 

speakers are nonetheless privileged to make. 

2. The Government variously expresses a second 

principal argument as to why § 201 is narrowly tailored: that 

the advertisements it covers “will influence candidate 

elections,” FEC Br. at 95; are “likely to have the same effect 

on the outcome of federal candidate elections” as express 

advocacy, id. at 96; or “can be expected to influence federal 

elections.” Id. at 15. See also Intervenors Br. at 43 (“almost 

certainly will convey . . . an electioneering message”), 64 

(“very likely to have some actual effect on an election”.)2

 But 

 2

 The defendants’ insistence that plaintiffs’ facial challenge be rejected 

because they may pursue as-applied claims later offers an alternative with 

little value. Due to the rigidity of the definition, “it is difficult to imagine 

that the [statute] could be limited by anything less than a series of 

adjudications, and the chilling effect of the [statute] on protected speech in 

the meantime would make such a case-by-case adjudication intolerable.” 

City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987). 

And, those who “abstain from protected speech” “rather than undertake 

the considerable burden (and sometimes risk) of vindicating their rights 

through case-by-case litigation . . . harm[] not only themselves but society 

as a whole, which is deprived of an uninhibited marketplace of ideas.” 

Virginia v. Hicks, 123 S.Ct. 2191, 2196 (2003). 

The inadequacy of as-applied challenges is especially acute with 

respect to broadcast messages, which are often extremely time-sensitive, 

particularly when aimed at imminent legislative action. And, notwithstanding the Government’s downplaying of the risk of criminal prosecution, see FEC Br. at 104 n. 43, given the clarity (if overbreadth) of the 

primary definition, a speaker’s “knowing and willful” mens rea, see 2 

U.S.C. § 437g(a)(5)(C), might be easy to prove, strongly deterring a union 

or corporation from hazarding a communication in the hope that its First 
4 

predicating censorship on a presumed impact on voter 

behavior of particular messages that contain no express 

advocacy—and, under § 201 need not refer to individuals as 

candidates or to elections at all—cannot be squared with the 

Court’s consistent and steadfast protection of speech on 

matters of public concern that can affect election outcomes. 

Thus, the Court in New York Times Co. v. Sullivan, made 

clear that our “profound national commitment to the principle 

that debate on public issues should be uninhibited, robust and 

wide-open” includes tolerance for “vehement, caustic and 

sometimes unpleasantly sharp attacks on government officials,” 376 U.S. 254, 270 (1964), and “‘breathing space’” for 

its expression. Id. at 272, quoting NAACP v. Button, 371 U.S. 

415, 433 (1963). In Buckley itself the Court’s identification of express advocacy as the category of regulable 

public speech was premised on its analysis that issues, 

candidates and political campaigns are inextricably connected, and that “[p]ublic discussion of public issues which are 

campaign issues readily and often unavoidably draws in 

candidates and their positions, their voting records and other 

official conduct,” and “tend[s] naturally and inexorably to 

exert some influence on elections.” 424 U.S. at 42 & n.50 

(interior quotation marks omitted).3

 As these decisions teach, 

the fact that speech may have some indeterminate impact 

on elections is not a constitutionally sufficient reason to 

restrict it. 

Defendants, however, consign these vital, longstanding and 

controlling First Amendment principles to the sidelines with 

barely a nod, and they fail to acknowledge that if “likely-toinfluence-an-election” suffices as a predicate for the 

proscription of categories of union and corporate speech on 

 

Amendment claim would prevail in defending against enforcement of the 

§ 203 ban. 

3

 BCRA’s sponsors admit that this is precisely the speech §§ 201 and 

203 were intended to encompass. See Intervenors Br. at 66. 
5 

matters of public concern, or on any matter at all, then 

Congress is empowered to impair or extinguish speech well 

beyond even § 201’s broad parameters. Indeed, defendants’ 

proposed First Amendment test is equally applicable to print 

advertisements, leaflets, and letters within the 30-and 60-day 

periods, or to such references in any communications medium 

for even longer periods of time. Or, constituent-targeted 

messages that refer to no candidate at all but that discuss 

issues or themes central to ongoing electoral campaigns in a 

manner that influences how voters evaluate the candidates are 

just as, or even more, “likely to influence” voter behavior 

than are stray legislative or other references to candidates that 

are devoid of election-related issue content. And, the same is 

true of union and corporate speech that is explicitly directed 

at elections concerning referenda that appear on the same 

ballot as elections concerning candidates. Such elections are 

often caught up with each other in public debates and voter 

perceptions, yet corporate and union treasury spending aimed 

at referenda, protected under First National Bank of Boston v. 

Bellotti, 435 U.S. 765 (1978), is vulnerable to prohibition 

under the Government’s theory in the case at bar. 

3. The AFL-CIO’s broadcast advocacy experience, 

summarized at AFL-CIO Br. at 1-7, illustrates both the utility 

of broadcast communications to achieving organizational 

policy goals and the ordinary and inherent interplay between 

legislative policymaking and electoral pressures. Defendants, 

however, misportray the AFL-CIO’s broadcasts as a singleminded ruse to elect Democrats to federal office. Thus the 

Government ascribes to the AFL-CIO (and other plaintiffs) 

only “post hoc account[s] of the purpose behind [their] 

advertisements.” FEC Br. at 106 (emphasis omitted). In fact, 

there is a significant record, adduced in discovery, of 

contemporary AFL-CIO documents – many of which were 

internal to the organization – that explained that the broadcast 

advertising was aimed at influencing congressional action and 
6 

public opinion about the labor movement’s legislative and 

policy priorities.4

The defendant-intervenors quote the AFL-CIO’s public 

affairs director, Denise Mitchell, as testifying below that ads 

were targeted where they could have a “‘big impact” in 

“‘marginal districts,’” Intervenors Br. at 51, implying that the 

intended “impact” was an electoral outcome; but Ms. 

Mitchell’s actual testimony described that “impact” entirely 

otherwise, and well summarized the range of goals served by 

the AFL-CIO’s broadcast efforts: “chang[ing] laws”; “creating an environment where positive changes would happen 

and negative changes wouldn’t happen, so elevating working 

family issues like Medicare and Social Security and minimum 

wage”; “provid[ing] information to constituents, to television 

viewers”; “positioning the AFL-CIO” as “championing for 

working families while we were doing real things”; and 

“hav[ing] an impact on the officeholders themselves by 

putting them on notice that somebody is watching what they 

are doing, and we would aim to sort of set the agenda for the 

legislative and political environment,” which could be more 

influential when broadcast where an officeholder had been 

elected with “52 or 55 percent of the vote” rather than “70 

percent.” See Mitchell Dep. 17-20. See also id. at 46-47, 

165, 170, 204-06.5

 

 4

 See, e.g., Denise Mitchell Dep. Exhs. 24, 32, 34, 40, 52, 55, 56, 58, 

60, 79, 81, 89, 93, 104, 106, 110, 115, 119, 121, 122, 126, 135, 136, 143, 

151, 157; Steven Rosenthal Dep. Exhs. 1, 4, (514-937); Gerald Shea Dep. 

Exhs. 2, pp. 50-51; 4, p. 11; 18, 24-27, 30, 35, 36, 38, 40, 43, 46. The 

Government’s discussion of two AFL-CIO 1996 ads, “Job” and “No Two 

Way,” similarly implies that they were divorced from any current 

legislative struggle, see FEC Br. at 107-08, but in fact the record is to the 

contrary. See Mitchell Dec. ¶¶ 41 and 61 (J.A. 446-47, 457). 5

The defendant-intervenors also distort a November 1996 speech by 

AFL-CIO President John J. Sweeney, linking as if they comprised a single 

quotation two phrases that in fact were distinct and two pages apart. 

Compare Intervenors Br. 48 with Denise Mitchell Dep. Exh. 12, pp. 2-4. 

Other comments attributed to Mr. Sweeney are taken from newspaper 
7 

Indeed, it bears emphasis that § 201’s reach to 

“refer[ences]” to “candidates” is tantamount to reaching 

references to all federal officeholders, and of 76 distinct 

AFL-CIO advertising “flights” (substantially identical 

clusters of advertisements run during the same period of time 

and differing only by the name of the person referred to) that 

were broadcast between 1995 and 2001, only two referred 

to no incumbent officeholders. See Mitchell Dep. Exh. 1 

(J.A. 464). 

4. The Government asserts that the overbreadth inquiry 

should focus on whether the § 201 definition of “electioneering communication” “will impermissibly chill protected 

expression on a prospective basis.” FEC Br. at 110 (emphasis 

 

articles, including one (Mitchell Dep. Exh. 5) that addressed only the 

AFL-CIO’s member-oriented electoral program, not AFL-CIO advertising. And, the National Public Radio interview with AFL-CIO Political 

Director Steven Rosenthal that the defendant-intervenors quote, see 

Intervenor Br. 48 and n. 38, was not produced below and is not in the 

record, and, at Mr. Rosenthal’s deposition, defendants asked him only 

about a different portion of the same interview. See Rosenthal Dep. 12-

13. In any event, Mr. Rosenthal played no role at all in the AFL-CIO’s 

broadcast efforts in 1996 (or 1998) due to a “Chinese wall” arrangement 

that the AFL-CIO adopted due to its uncertainty at the time about the 

application of coordination principles under FECA. See Rosenthal Dec. 

¶¶ 30-32 (J.A. 734-36); Rosenthal Dep. 35-40, 45-46, 67-68; Mitchell 

Dec. ¶¶ 9, 15-19 (J.A. 427, 431-33); Mitchell Dep. 15-17. 

The intervenors also emphasize documents prepared not by the AFLCIO but by two AFL-CIO consultants in 1996. See Intervenors Br. at 46, 

47. As the unrebutted record discloses, however, the comments at issue of 

the consultant who evaluated prospective advertising firms did not reflect 

the AFL-CIO’s description to him of its goals, and they were neither 

invited nor endorsed by the AFL-CIO. See Mitchell Dec. ¶ 20 (J.A. 434); 

Mitchell Dep. 108-11, 122-23, 143, 217; Mitchell Cross 76. As for the 

AFL-CIO’s fall 1996 “electronic voter guides” (a format not repeated 

since), which compared candidate positions on key AFL-CIO issues, they 

were designed to promote those issues, portray the candidates’ positions 

fairly while conveying the AFL-CIO’s viewpoint on them, and pressure 

the candidates to embrace that viewpoint. See Mitchell Dec. ¶¶ 42-44 

(J.A. 447-49); Mitchell Dep. 137-38. 
8 

in original). The answer is surely yes. Speech on matters of 

public concern is the lifeblood of an open and democratic 

society, supplying information and argument from all quarters 

so the people and their elected representatives and leaders 

may knowledgeably decide policy and engage in selfgovernment. New York Times Co. v. Sullivan, 376 U.S. at 

269-72. Thus, at stake here is not so much whether particular 

speakers enjoy the full panoply of First Amendment rights, 

but the provision to the public of information and ideas about 

public matters, which are “indispensable to decisionmaking in 

a democracy.” First National Bank of Boston v. Bellotti, 435 

U.S. at 777 (footnote omitted). See also id. at 781-83; 

Virginia v. Hicks, 123 S.Ct. at 2196; Pacific Gas & Electric 

Co. v. Public Utilities Commission, 475 U.S. 1, 8-9 (1986). 

The defendants hardly advert to this core First Amendment 

function, and they attribute to the government the authority 

to override it with respect to union and corporate speakers 

wherever a likely electoral intent or effect may also be 

discerned. But only the people are “entrusted with 

the responsibility for judging and evaluating the relative 

merits of conflicting arguments,” including “the source and 

credibility of the advocate,” First National Bank of Boston v. 

Bellotti, 435 U.S. at 791-92 (footnotes omitted); and, “in the 

free society ordained by the Constitution, it is not the 

government, but the people—individually as citizens and 

candidates and collectively as associations and political 

communities—who must retain control over the quantity and 

range of debate on public issues in a political campaign.” 

Buckley, 424 U.S. at 57 (footnote omitted). See also 

Thornhill v. Alabama, 310 U.S. 88, 104-05 (1940). BCRA 

§ 203 cuts too deeply into core political speech and deprives 

the public of information and debate that the First 

Amendment was intended to guarantee. 

5. The Government justifies § 203 in part on the 

contention that it serves the compelling governmental interest 

of protecting union members and corporate shareholders from 
9 

contributing to the support of political candidates whom they 

may oppose. See FEC Br. at 86. But members of voluntary 

organizations such as unions and incorporated membership 

groups understand and expect that their dues are used in part 

for legislative and public advocacy that further the organization’s goals, see AFL-CIO Br. 20-21, and “[e]ffective 

advocacy of both public and private points of view, 

particularly controversial ones, is undeniably enhanced by 

group association. . . .” NAACP v. Alabama, 357 U.S. 449, 

460 (1958). The First Amendment protects the “right to 

associate with others in pursuit of a wide variety of political, 

social, economic, educational, religious, and cultural ends.”

Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). 

This “right to associate for expressive purposes” is protected 

from all “[i]nfringements” save those “adopted to serve 

compelling state interests, unrelated to the suppression of 

ideas, that cannot be achieved through means significantly 

less restrictive of associational freedoms.” Id. at 623 

(emphasis added). BCRA § 203, however, on the basis of the 

content of associational speech, compels union and other 

groups’ members, who are typically of ordinary means,6

 to 

make a separate payment distinct from their dues if they wish 

to continue to fund that speech together, and despite the fact 

that they had considered it to be an ordinary function of the 

organization’s regular, dues-funded activities. Prohibiting 

unions and other organizations from spending member dues 

when they broadcast references to candidates thus directly 

impairs the associational rights and democratic choices of 

 6

 In this regard, the Government’s suggestion that “individuals who are 

affiliated with corporations or labor unions remain free to use their own 

funds for electioneering communications,” FEC Br. 99, is as plausible as 

the original utterance of “let them eat cake”—for, as all agree, broadcast is 

a costly medium inaccessible to all but the very wealthy. The government 

relies upon Federal Election Commission v. Beaumont, 123 S. Ct. 2200, 

2210 n. 8 (2003), for this suggestion, but that case was concerned with

contributions, which entail no minimum amount. 
10 

their members, while only in the most attenuated sense 

protects members from an undesired support of political 

candidates. See Austin v. Michigan Chamber of Commerce, 

494 U.S. 652, 665-66 (1990). And, in so doing, § 203 further 

contravenes the First Amendment by depriving organizations 

and their members of the “right . . . to advocate their cause” 

by “what they believe to be the most effective means for so 

doing.” Meyer v. Grant, 486 U.S. 414, 424 (1988). 

B. That Unions and Corporations Retain the Option 

of Financing “Electioneering Communications” Through 

Their Separate Political Action Committees Does Not 

Render BCRA’s Ban on Their Use of Treasury Funds For 

This Purpose Constitutional. 

The governmental and intervenor defendants, as well as 

several of their supporting amici, repeatedly assert that Title 

II of BCRA does not “ban” unions and corporations from 

undertaking electioneering communications because these 

entities instead may raise funds from their members or 

shareholders to finance political action committees that could 

pay for these communications.7

 In Federal Election Commission v. Massachusetts Citizens for Life, Inc., (“MCFL”), 

479 U.S. 238 (1986), however, the Court enumerated the 

burdensome FECA solicitation, administration and reporting 

requirements applicable to group-sponsored political committees and concluded that while a ban on treasury funding of 

express-advocacy independent expenditures “is not an 

absolute restriction on speech, it is a substantial one,” id. at 

252, whose “practical effect on MCFL in this case is to make 

engaging in protected speech a severely demanding task.” Id.

at 256. The Court therefore refused to compel ideological 

non-profit corporations, whose political activities posed no 

serious risk of corrupting the electoral process, to use 

separately funded federal political committees to engage in 

 7

 Only Judge Henderson addressed this argument below, and she 

rejected it on the basis of the factual record. See S.A. 347sa n.142. 
11 

independent expenditures and held that they must be allowed 

to use their regular corporate treasury funds to finance them.8

 

See also id. at 265-66 (O’Connor, J., concurring). 

Just as MCFL involved little or no risk of corruption 

because of the nature of the group involved, corporate and 

union electioneering communications entail no risk of 

corruption or the appearance thereof because of the nature of 

the speech that is being regulated. As the Court found in 

striking down a state prohibition on corporate contributions 

and expenditures in connection with ballot measures, “[t]he 

risk of corruption perceived in cases involving candidate 

elections . . . simply is not present in a popular vote on a 

public issue.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

at 790 (citations and footnote omitted). See also Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 

(1981). Requiring unions and corporations to conduct 

“electioneering communications” through their PACs rather 

than with their ordinary treasuries is therefore no more 

justified here than it was in MCFL. See also Austin v. 

Michigan Chamber of Commerce, 494 U.S. at 658. 

 8 Federal Election Commission v. Beaumont, supra, is not to the 

contrary. There, the Court upheld application of FECA’s ban on 

corporate contributions to federal candidates as applied to an MCFL

corporation. In doing so, the Court distinguished limits on independent 

expenditures from limits on corporate contributions in light of “the risks 

of harm posed by corporate political contributions, of the expressive 

significance of contributions, and of the consequent deference owed to 

legislative judgments on what to do about them.” Id. at 2209. Although 

Beaumont pointed to the “PAC option” as evidence that FECA does not 

completely ban corporate contributions, id. at 2211, the Court echoed 

MCFL’s recognition of “PAC regulatory burdens.” Id. That burden is 

less justifiable with respect to union and corporate “electioneering 

communications,” which, as described above, exert a far more attenuated 

effect on elections than do either contributions or independent 

expenditures, and comprise core First Amendment-protected speech on 

matters of public concern. 
12 

Moreover, forcing unions and corporations to sponsor 

electioneering communications through their political action 

committees is constitutionally inadequate because it imposes 

a regime of compelled speech that the First Amendment does 

not tolerate. See generally Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 197-200 (1999); 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 

(1995); Riley v. National Federation of Blind of N.C., Inc., 

487 U.S. 781, 797-98 (1988); Pacific Gas & Electric Co. v. 

Public Utilities Commission, 475 U.S. at 11. Requiring 

unions and corporations to identify their non-electoral broadcast communications as having been paid for by their political 

committees, see 2 U.S.C. § 441d(a)(1), and to report to the 

FEC “[t]he elections to which the electioneering communications pertain,” 2 U.S.C. § 434(f)(2)(D), labels those communications as having an electoral purpose regardless of their 

true nature. The so-called PAC option thus violates the 

“principle of autonomy to control one’s own speech.” Hurley 

v. Irish-American Gay, Lesbian And Bisexual Group of 

Boston, Inc., 515 U.S. 557, 574 (1995). This distinguishes 

the PAC option for electioneering communications from the 

same requirement for union and corporate independent 

expenditures, which by definition expressly advocate the 

election or defeat of candidates, and union and corporate 

contributions to candidates, which likewise are explicitly and 

inherently electoral in nature. 

Further, because the definition of “electioneering communication” includes broadcast advertisements made for 

legislative and educational purposes, rather than for the purpose of influencing the outcome of elections, using a political 

committee to pay for these broadcasts could cause the 

committee to lose its tax-exempt status under 26 U.S.C. § 527 

with respect to either the costs of those communications or all 

of its activities. Section 527(e)(2) requires that a political 

committee expend its resources on “the function of 

influencing or attempting to influence the selection, nomi- 
13 

nation, election or appointment of any individual” to any 

public office or to any political organization office, and 

§ 527(c)(3) imposes a tax on all other political committee 

spending. And, if a political committee commits most of its 

spending to “electioneering communications” that are not for 

the purpose of influencing elections, the political committee 

would no longer satisfy § 527(e)(1)’s “primary purpose” 

definition of a political committee and could lose entirely the 

tax exemption § 527 otherwise affords. 

Finally, union and corporate political action committees are 

unable as a practical matter to raise sufficient funds from 

voluntary contributions to support a fraction of the “electioneering communications” that unions and corporations can 

and do undertake with treasury funds. Thus, for example, 

Judge Henderson found that if the AFL-CIO is prohibited 

from so using its general treasury funds, it will “be unable to 

finance such ads to the same degree” with separately 

contributed funds to its political action committee because the 

amount of money that can be raised from union members or 

employees “is generally limited and unlikely to increase to 

the extent necessary to replace the treasury funds now spent 

on issue advocacy.” S.A. 270sa (Finding 53f). Defendants 

make no attempt to rebut Judge Henderson’s findings. And, 

union political action committees that typically are unable 

now to raise sufficient hard money contributions to 

adequately support the core political activities they engage in, 

namely, contributions and independent expenditures, should 

not be forced to divert those resources to fund other 

communications whose electoral purpose or effect may be 

non-existent or highly attenuated.9

 9

 Moreover, there are over 30,000 labor organizations in the private 

sector alone, most of which are small organizations with modest 

treasuries. See “Record-Keeping Under the Labor Management Reporting and Disclosure Act (LMRDA): Do DOL Reporting Systems Benefit 

the Rank and File?”, Joint Hearing Before the Subcommittee on 

Workforce Protections and the Subcommittee on Employer-Employee 
14 

C. BCRA’s Backup Definition of “Electioneering 

Communication” Is Unconstitutionally Vague. 

The government defendants make no attempt to defend the 

truncated version of BCRA’s backup definition of “electioneering communication” endorsed by a majority of the district 

court.10 See FEC Br. at 116. Indeed, defendants virtually 

ignore the first prong of the definition and appear to rely upon 

the second “no plausible meaning” prong of that definition, 

which was invalidated by the majority below, to cure any 

vagueness in the first prong. See id. at 119.11 But, 

defendants fail to demonstrate that the second prong of the 

backup definition meets constitutional standards.12

 

Relations of the House Committee on Education and the Workforce, 

107th Cong., 2d Sess. 115-16 (2002). The FECA “affiliation” rule provides that, for purposes of political committee sponsorship, fundraising 

and spending, all affiliates of a national labor organization are collectively 

considered to comprise a single entity, see 2 U.S.C. § 441a(a)(5); 

11 C.F.R. §§ 110.3(a)(2)(ii) and (iii), meaning that every national 

union and all of its local unions and other affiliates collectively are 

effectively confined to sponsoring a single federal PAC, self-evidently 

impairing the ability of any one union affiliate to access and direct the 

spending of funds for the speech defined by § 201 that § 203 now 

precludes it from undertaking. 10 Intervenors do not address the backup definition at all. Only one of 

the amicus briefs supporting defendants attempts to defend its constitutionality, and it does so in a short and conclusory passage that neither 

treats the actual text nor supports the district court’s conclusion. See 

Former ACLU Leaders Br. at 13-14. 11 Furthermore, the government makes no argument in support of the 

majority’s conclusion that the second prong of the backup definition is 

severable from the first, and fails to address our showing that neither 

prong is severable from the other. See AFL-CIO Br. at 31-33. Thus, if 

the Court finds that either prong of the definition is unconstitutionally 

vague, it should strike down the entire backup definition without regard to 

whether the other prong independently would satisfy constitutional 

requirements. 12 Defendants’ assertion that the Court is especially reluctant to 

invalidate a law for vagueness when the challenge is made to a law on its 

face, FEC Br. at 117, is not supported by the cases cited. The Court’s 
15 

Defendants ignore the language of the second prong and 

simply assert that it is not unconstitutionally vague because 

“[a]ny degree of uncertainty in a standard designed to protect 

speech . . . is not the kind of vagueness that should condemn a 

statute.” See FEC Br. at 117. The logic of this argument is 

hard to fathom: the second prong restricts speech rather than 

“protect[s]” it, and it does so in a manner that neither the 

regulated community nor law enforcement officials can 

comprehend, thereby unacceptably leaving speakers to 

“‘hedge and trim,’” Buckley, 424 U.S. at 43, quoting Thomas 

v. Collins, 323 U.S. 516, 535 (1945), in order to navigate the 

restrictions imposed by the statute.13

 

rejection of the vagueness challenge in National Endowment For the Arts 

v. Finley, 524 U.S. 569, 588-90 (1998), did not even mention the facial 

nature of the challenge and relied entirely on the fact that the case 

involved a grantmaking statute. In Hill v. Colorado, 530 U.S. 703 (2000), 

the Court did refuse to facially invalidate a statute on vagueness grounds, 

but it did so only after finding that the statute was clear in the vast 

majority of its intended uses and that any possible vagueness existed only 

in hypothetical situations not before the Court. Id. at 733. Such is not the 

case here, where the backup definition eschews the express advocacy 

standard and cannot confidently be applied to the great majority of 

broadcast communications that mention candidates or address issues of 

legislation and public policy. 13 The principal decision cited by defendants in support of this novel 

theory does not support it. In Schenck v. Pro-Choice Network of Western 

N.Y., 519 U.S. 357 (1997), the provision in question defined an exception

to an otherwise broad injunction that allowed certain “sidewalk 

counselors” to approach persons seeking the services of abortion clinics. 

Here, however, the “savings clause” is not an exception in the sense that it 

attempts to define permissible conduct; it is an additional element of the 

basic prohibition in BCRA’s backup definition. Furthermore, the prohibition involved in Schenck was not content-based and therefore was subject 

to a lesser level of judicial scrutiny than the backup definition here. 

Defendants’ reliance on Federal Election Commission v. Furgatch, 807 

F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987), is also of little 

avail. Unlike the second prong of the backup definition, which permits a 

finding of “exhortation” based entirely on the communication’s context 

and without regard to the words used, the Ninth Circuit stated that 
16 

Defendants also argue, that the second prong is not 

unconstitutionally vague because “a corporation or labor 

union preparing to broadcast such an advertisement would 

have [no] difficulty in determining” whether an ad falls 

within the second prong “based on its understanding of the 

context in which its own advertisement will be aired.” FEC 

Br. at 118. But an advertisement’s “context” involves a broad 

range of circumstances, including all of those identified by 

Judge Leon, see S.A. 1164sa, and a union or corporation 

cannot know which of these contextual elements will matter 

to the “reasonable person” or “ordinary observer” whose 

judicially determined perspective the government says would 

be dispositive.14 See FEC Br. at 118 and n. 49. Like the 

 

“[c]ontext remains a consideration, but an ancillary one, peripheral to the 

words themselves,” id. at 863, and it held that the express advocacy 

standard permits only “a limited reference to external events.” Id. at 864. 

Moreover, the Ninth Circuit recently made clear that “a close reading of 

Furgatch indicates that we presumed express advocacy must contain some 

explicit words of advocacy.” California Pro-Life Council, Inc. v. Getman, 

328 F.3d 1088, 1098 (2003) (emphasis in original). Other courts of 

appeal have refused to go as far as Furgatch, finding even its limited 

reliance on a communication’s context to be “too vague,” Chamber of 

Commerce v. Moore, 288 F.3d 187, 194 (5th Cir.), cert. denied, 123 S.Ct. 

536 (2002), and “unpredictable.” Virginia Soc’y for Human Life, Inc. v. 

Federal Election Comm’n, 263 F.3d 379, 392 (4th Cir. 2001). See also

Federal Election Comm’n v. Christian Action Network, Inc., 110 F.3d 

1049, 1052-1057 (4th Cir. 1997). 14 Defendants’ reliance on the standards used by the Court to define 

obscene materials subject to government regulation is also misplaced. See 

FEC Br. at 118 n. 49. Obscene communications are not protected by the 

First Amendment, whereas political speech, even speech containing 

express advocacy, is. See Miller v. California, 413 U.S. 15, 35-36 (1973). 

Moreover, under the Court’s jurisprudence, whether the average person, 

applying contemporary community standards would find that a work, 

taken as a whole, appeals to the prurient interest, is only one prong of a 

three-part test, the other prongs of which rely on the content of the 

material itself and not on the perception of reasonable listeners or viewers. 

Id. at 24. See also Ashcroft v. ACLU, 535 U.S.564, 578 (2002). Here, 

both prongs of BCRA’s backup definition of electioneering communi-
17 

“neutral[ity]” standard of the first prong, the “no plausible 

meaning” standard of the second prong unconstitutionally 

“‘puts the speaker wholly at the mercy of the varied 

understanding of his hearers.’” Buckley, 424 U.S. at 43, 

quoting Thomas v. Collins, 323 U.S. at 535. 

II. BCRA’S COORDINATION PROVISIONS ARE 

UNCONSTITUTIONALLY VAGUE AND OVERBROAD. 

Regarding BCRA’s coordination provisions, the Government does not even address BCRA §202, which provides that 

“coordinated” electioneering communications shall be treated 

as contributions, and makes only a half-hearted attempt to 

defend BCRA § 214(a), which provides that expenditures 

made “in cooperation, consultation, or concert with, or at the 

request or suggestion of” a political party committee shall be 

considered contributions to that committee.15

Without even discussing the statutory language itself, 

defendants argue that §214(a) is not vague or overbroad 

because similar language already existed in FECA to define 

expenditures coordinated with candidates. See FEC Br. at 

 

cations depend upon the perceptions of listeners and viewers. And, the 

context in which allegedly obscene materials must be evaluated is largely 

created by the speaker himself, such as the manner in which the material 

is advertised, whereas under the common observer standard advanced by 

defendants for BCRA political speakers may not even be aware of many 

of the contextual factors under which their communications will be 

evaluated. The same is true of the contextual factors relied on in the 

Court’s Establishment Clause cases, such as County of Allegheny v. 

ACLU, 492 U.S. 573 (1989), to determine whether governmental use of 

religious symbols constitutes an endorsement of religion, and the 

Establishment Clause test is also inapposite because the question 

presented in such cases is whether government action, not protected 

private speech, is permissible. 15 The AFL-CIO plaintiffs do not question Buckley’s conclusion 

that coordinated expenditures may be treated as in-kind contributions; 

we challenge only the expansive manner in which Congress sought to 

define coordinated expenditures in BCRA when it overturned a narrower 

and more explicit definition fashioned by the lower federal courts and the 

FEC itself. 
18 

123. But this is no answer at all, both because FECA’s 

language was subject to limiting judicial and agency interpretations that Congress in BCRA has now rejected, and 

because vague and overbroad language in one statute can 

hardly validate its repetition elsewhere. The FEC itself has 

acknowledged with respect to coordination under FECA that 

“[t]he statutory terms are not inherently clear,” Final Rule, 

“General Public Political Communications Coordinated With 

Candidates and Party Committees; Independent Expenditures,” 65 Fed. Reg.76138, 76141 (Dec. 8, 2000), and four 

Justices of this Court recently concluded that FECA’s 

definition of coordination is unconstitutionally overbroad. 

See Federal Election Commission v. Colorado Republican 

Federal Campaign Committee, 533 U.S. 431, 467-68, 471 

(2001) (Thomas, J., dissenting, joined by Rehnquist, C.J., and 

Scalia and Kennedy, JJ.). Thus, incorporating the same 

overly broad language into BCRA’s general coordination 

provisions cannot warrant upholding the decision below. 

Defendants further argue that “any uncertainty that 

regulated entities may feel regarding the scope of BCRA 

§ 214(a)” may be “alleviated” by BCRA’s provision 

mandating the FEC to issue new coordination regulations, see 

FEC Br. at 124, a view embraced by the district court. The 

problem with this argument is that the FEC has already

issued new coordination regulations that do not cure the 

statute’s vagueness or overbreadth; and, the district court 

incongru-ously refused even to consider those regulations in 

upholding § 214(a). The government’s position—that the 

mere possibility of curative administrative regulations is 

sufficient to defeat an otherwise meritorious vagueness or 

overbreadth challenge—has never been adopted by this Court 

and ignores the important First Amendment rights 

jeopardized by the statute challenged here. Just as the Court 

has long permitted pre-enforcement facial challenges to 

statutes on First Amendment grounds rather than requiring 

plaintiffs to face the risks of enforcement actions, it should 
19 

not allow the government to defend a facially unconstitutional 

statute because it might be saved some day by agency 

regulations.16

III. BCRA’S ADVANCE DISCLOSURE REQUIREMENTS VIOLATE THE FIRST AMENDMENT.

Although the governmental defendants discuss BCRA’s 

disclosure requirements for electioneering communications in 

general, see FEC Br. at 119-22, they make only a cursory 

attempt to justify the advance disclosure aspect of those 

requirements that the district court unanimously struck down. 

See id. at 121-22. Significantly, they do not contend that any

of the governmental interests relied on in Buckley to support 

after-the-fact disclosure are also served by compelled 

disclosure of communications before, and irrespective of 

whether, they are ever disseminated. Moreover, their defense 

that prospective disclosure of communications “would neither 

prevent any person from speaking nor require disclosure of 

the specific content of any advertisement,” id. at 122, ignores 

both that “compelled disclosure [of political activities], in 

itself, can seriously infringe on privacy of association and 

belief guaranteed by the First Amendment,” Buckley, 424 

U.S. at 64, and the uncontroverted evidence in this case 

concerning the chilling and confusing effects of this 

requirement. See S.A. 114sa (per curiam); 271sa (Henderson). Finally, there is no basis for defendants’ suggestion 

that the constitutional infirmity in the statute has been cured 

by regulation, FEC Br. at 122, an argument that the district 

court accepted with respect to advance disclosure of 

 16 This is especially true here because Congress mandated expedited 

judicial review of BCRA’s provisions and the statute’s coordination 

provisions are impairing political actors even while this case is pending. 

Defendants’ argument that BCRA § 214(b)-(c) “imposes no substantive 

obligation upon any private party, but simply requires the promulgation of 

rules by an Executive Branch agency,” see FEC Br. at 125 n. 52, has no 

application to BCRA §§ 202 and 214(a), which manifestly do impose 

immediate, substantive constraints on private parties. 
20 

independent expenditures but rejected with respect to 

electioneering communications in a careful analysis, see S.A. 

108sa-111sa, that defendants similarly fail to address. 

CONCLUSION 

The decision of the district court concerning BCRA’s 

prohibition against union and corporate spending for the 

primary definition of “electioneering communication” should 

be affirmed; its decisions upholding the backup definition and 

BCRA’s coordination provision should be reversed; and its 

decision striking down BCRA’s advance disclosure provision 

should be affirmed. 

Respectfully submitted, 

LARRY P. WEINBERG

1101 17th Street, N.W. 

Suite 900 

Washington, D.C. 20036 

(202) 775-5900 

Of Counsel 

JONATHAN P. HIATT

LAURENCE E. GOLD

Counsel of Record 

AFL-CIO 

815 Sixteenth Street, N.W. 

Washington, D.C. 20006 

(202) 637-5130 

MICHAEL B. TRISTER

LICHTMAN, TRISTER & ROSS, PLLC

1666 Connecticut Ave., N.W. 

Washington, D.C. 20009 

(202) 328-1666 

Counsel for Appellants/CrossAppellees