No. 06-969 & 06-970 

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

In The 

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

FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

and 

SENATOR JOHN McCAIN, REPRESENTATIVE TAMMY 

BALDWIN, REPRESENTATIVE CHRISTOPHER SHAYS, 

and REPRESENTATIVE MARTIN MEEHAN, 

Appellant-Intervenors, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

--------------------------------- ♦ --------------------------------- 

On Appeal From The 

United States District Court 

For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF OF AMICUS CURIAE

NATIONAL RIFLE ASSOCIATION 

IN SUPPORT OF APPELLEE 

--------------------------------- ♦ --------------------------------- 

CHARLES J. COOPER

Counsel of Record

BRIAN S. KOUKOUTCHOS

DAVID H. THOMPSON

COOPER & KIRK, PLLC 

555 Eleventh Street, NW 

Suite 750 

Washington, D.C. 20004 

(202) 220-9600 

March 23, 2007 

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

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

INTEREST OF AMICUS............................................... 1 

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

ARGUMENT................................................................... 2 

 I. STARE DECISIS DOES NOT REQUIRE 

ADHERENCE TO McCONNELL...................... 2 

 II. TITLE II OF BCRA CANNOT SURVIVE 

STRICT SCRUTINY BECAUSE IT WAS 

AVOWEDLY ENACTED TO SUPPRESS 

CRITICISM OF INCUMBENT GOVERNMENT OFFICEHOLDERS................................ 3 

 III. TITLE II IS FATALLY OVERBROAD AND 

STRICT SCRUTINY THEREFORE MANDATES THAT IT BE STRUCK DOWN............. 10 

 IV. TITLE II CANNOT BE JUSTIFIED BY THE 

NEED TO PREVENT AUSTIN-STYLE “CORRUPTION” BECAUSE CONGRESS ITSELF 

ENACTED A LESS RESTRICTIVE ALTERNATIVE............................................................... 13 

A. Gratitude For Political Support Is Not 

Corruption.................................................... 15 

B. Independent Expenditures By Grassroots 

Advocacy Groups Pose No Threat Of Corrupting The Political Process...................... 17 

C. Title II’s Restrictions On Independent Expenditures By Grassroots Advocacy Organizations Drastically Curtail Speech...... 20 
ii 

TABLE OF CONTENTS – Continued 

Page 

D. The Wellstone Amendment’s Suppression 

Of Political Speech Funded Exclusively 

With Individual Contributions Cannot 

Survive Strict Scrutiny Because It Is Not 

The Least Restrictive Means Of Achieving 

The Congressional Purpose......................... 26 

CONCLUSION ............................................................... 29 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Adarand Constructors v. Pena, 515 U.S. 200 (1995) .. 10, 25 

Arizona v. Rumsey, 467 U.S. 203 (1984) ............................. 2 

Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................. 26 

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

652 (1990) ................................................................passim

Brandenburg v. Ohio, 395 U.S. 444 (1969) ....................... 13 

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

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 

(1932) ................................................................................ 2 

Dickerson v. United States, 530 U.S. 428 (2000)................. 2 

FEC v. Beaumont, 539 U.S. 146 (2003)....................... 18, 19 

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) .......................................................... 3 

FEC v. MCFL, 479 U.S. 238 (1986) ............................passim

FEC v. NCPAC, 470 U.S. 480 (1985) ..................... 16, 20, 21 

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) .............. 17 

Garcia v. San Antonio Metro. Transit Auth., 469 

U.S. 528 (1985) ................................................................. 3 

Helvering v. Hallock, 309 U.S. 106 (1940) ........................ 10 

McConnell v. FEC, 540 U.S. 93 (2003) .......................passim

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 

2003)................................................................................ 22 

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 

(1940) ................................................................................ 2 

Miranda v. Arizona, 384 U.S. 436 (1966)............................ 2 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

Morrison v. Olson, 487 U.S. 654 (1988)............................... 5 

NAACP v. Button, 371 U.S. 415 (1963) ......................... 9, 20 

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

(1964) ...................................................................... 8, 9, 10 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 

(2000) .................................................................... 6, 24, 26 

Patterson v. McLean Credit Union, 491 U.S. 164 

(1989) ................................................................................ 3 

Payne v. Tennessee, 501 U.S. 808 (1991) ....................... 3, 12 

Randall v. Sorrell, 126 S. Ct. 2479 (2006) ................ 2, 6, 23 

Riley v. National Fed’n of the Blind, 487 U.S. 781 

(1988) ................................................................................ 3 

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................... 26 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) ............. 4 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............. 4 

United States v. Playboy Entm’t Group, 529 U.S. 

803 (2000) ................................................................. 21, 26 

United States v. Virginia, 518 U.S. 515 (1996) ................... 4 

Vieth v. Jubelirer, 541 U.S. 267 (2004)................................ 3 

Virginia v. Hicks, 539 U.S. 113 (2003)............................... 12 

West Va. Bd. of Educ. v. Barnette, 319 U.S. 624 

(1943) ............................................................................ 2, 3 

Wisconsin Right to Life v. FEC, 466 F. Supp. 2d 195 

(D.D.C. 2006) .................................................................. 12 

Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016 

(2006) ................................................................................ 2 
v 

TABLE OF AUTHORITIES – Continued 

Page 

OTHER

145 CONG. REC. H3174 (May 14, 1999) ............................. 22 

147 CONG. REC. S2833 (Mar. 26, 2001).............................. 27 

147 CONG. REC. S2847 (Mar. 26, 2001).......................... 1, 22 

147 CONG. REC. S3073 (Mar. 29, 2001).............................. 27 

148 CONG. REC. H424 (Feb. 13, 2002) ............................... 22 

2 U.S.C. § 441b(c)(2)........................................................... 26 

2 U.S.C. § 441b(c)(6)....................................................... 1, 26 

26 U.S.C. § 501(c)(4)............................................................. 1 

26 U.S.C. § 527 ................................................................... 23 

ANTHONY LEWIS, MAKE NO LAW 52 (1991) .......................... 7 

BCRA § 204..................................................................... 1, 26 

FEC Finance Disclosure Report at http://www.fec. 

gov/finance/disclosure/norindsea.shtml.............................23 
1 

INTEREST OF AMICUS1

 Amicus National Rifle Association (“NRA”) is a nonprofit voluntary membership corporation that qualifies as 

tax-exempt under 26 U.S.C. § 501(c)(4). Its approximately 

four million members are individual Americans who have 

come together for the common purpose of ensuring the 

preservation of rights under the Second Amendment. The 

NRA was a principal challenger of Title II of BCRA when 

that statute was last before this court. See NRA v. FEC, 

No. 02-1675, decided with McConnell v. FEC, 540 U.S. 93 

(2003). The NRA was specifically targeted, by name, by 

sponsors of the Wellstone Amendment, BCRA § 204 

(adding 2 U.S.C. § 441b(c)(6)), which was enacted for the 

purpose of extending Title II to nonprofit issue advocacy 

organizations. See 147 CONG. REC. S2847 (Mar. 26, 2001) 

(statement of Sen. Wellstone). The NRA was also the 

single largest victim of Title II’s restrictions on electioneering speech, insofar as the NRA accounted for fully one 

third of the issue ads that were criminalized by BCRA. 

Since that decision four years ago, the political voices of 

the NRA’s millions of members have been stifled by Title 

II, and amicus therefore respectfully urges this Court to 

overrule McConnell. 

--------------------------------- ♦ --------------------------------- 

 1 The parties have consented to the filing of this brief. Counsel for 

a party did not author this brief in whole or in part. No person or 

entity, other than the amicus curiae, its members, or its counsel made a 

monetary contribution to the preparation and submission of this brief. 
2 

SUMMARY OF ARGUMENT 

ARGUMENT 

I. STARE DECISIS DOES NOT REQUIRE ADHERENCE TO McCONNELL. 

 When the Court misapplied the First Amendment in 

Minersville School District v. Gobitis, 310 U.S. 586 (1940), 

it promptly recognized its error and overruled the case just 

three years later. See West Va. Bd. of Educ. v. Barnette, 319 

U.S. 624 (1943). Similarly prompt correction is warranted 

now with respect to McConnell v. FEC, 540 U.S. 93 (2003). 

Stare decisis is not an “inexorable command,” Burnet v. 

Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) 

(Brandeis, J., dissenting), nor is it “rigidly required in 

constitutional cases,” Arizona v. Rumsey, 467 U.S. 203, 

212 (1984). Unlike cases where the Court appropriately 

adheres to an existing precedent despite its flaws, here 

there is no reason to shy away from righting a manifest 

constitutional error. 

 The McConnell decision is only four years old and 

therefore certainly has not become imbedded in our 

“national culture.” Cf. Dickerson v. United States, 530 U.S. 

428, 443-44 (2000) (declining to overrule Miranda v. 

Arizona, 384 U.S. 436 (1966), which had become imbedded); Randall v. Sorrell, 126 S. Ct. 2479, 2490 (2006) 

(Breyer, J., joined by Roberts, C.J.) (declining to overrule 

Buckley v. Valeo, 424 U.S. 1 (1976), because it has “promoted considerable reliance”). Indeed, the scope and 

meaning of McConnell are and will likely remain in flux, 

given this Court’s unanimous decision in Wisconsin Right 

to Life, Inc. v. FEC, 126 S. Ct. 1016, 1018 (2006) (per 

curiam), permitting challenges to the statute as applied. 

Stare decisis is particularly weak when experience has 
3 

shown that “governing decisions” have created a legal regime 

that is “unworkable.” Payne v. Tennessee, 501 U.S. 808, 827 

(1991); Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (plurality 

opinion); Garcia v. San Antonio Metro. Transit Auth., 469 

U.S. 528, 545-46 (1985). This case involves no “property” or 

“contract rights where reliance interests” are at stake. 

Payne, 501 U.S. at 828. Therefore, overruling McConnell 

would disturb no reliance interests, but would instead bring 

coherence to this Court’s First Amendment jurisprudence. 

 Precedent is more vulnerable where it “conflicts with 

a public sense of justice.” Id. at 834 (Scalia, J., concurring, 

joined by O’Connor and Kennedy, JJ.). That is particularly 

true when what is at stake is freedom of speech, the one 

“fixed star in our constitutional constellation.” Barnette, 

319 U.S. at 642. Reflexive reverence for precedent is least 

appropriate in cases involving the political speech that lies 

at the very core of the First Amendment. McConnell 

should be overruled because it stands as “a positive 

detriment to coherence and consistency” in the law of the 

First Amendment. Patterson v. McLean Credit Union, 491 

U.S. 164, 173 (1989). 

II. TITLE II OF BCRA CANNOT SURVIVE STRICT 

SCRUTINY BECAUSE IT WAS AVOWEDLY 

ENACTED TO SUPPRESS CRITICISM OF INCUMBENT GOVERNMENT OFFICEHOLDERS. 

 A. It is common ground that, as both a content-based 

restriction and a limit on independent political expenditures (rather than contributions), Title II is subject to 

strict scrutiny. See Riley v. National Fed’n of the Blind, 487 

U.S. 781, 795 (1988); FEC v. Colorado Republican Fed. 

Campaign Comm., 533 U.S. 431, 440-41 (2001); McConnell, 

540 U.S. at 205. To sustain a content-based restriction on 
4 

political speech, the Government must establish that the 

purpose that actually animated enactment of the measure 

is compelling and is narrowly served by the restriction. See 

United States v. Virginia, 518 U.S. 515, 533 (1996) (“The 

justification must be genuine, not hypothesized or invented post hoc in response to litigation.”); Turner Broad. 

Sys., Inc. v. FCC, 520 U.S. 180, 191 (1997). Therefore, 

neither the Defendants nor this Court may go beyond Title 

II’s text and legislative history to discern and evaluate 

“the disease sought to be cured” by its limits on electioneering communications. Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622, 664 (1994) (quotation marks and citation 

omitted). This is the first place where the Court erred in 

McConnell, because it ignored the undisputed record that 

laid bare Congress’s avowed – and utterly illegitimate – 

purpose. 

 B. The majority opinion in McConnell treated 

Section 203 of BCRA as if it were “legislation aimed at ‘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.’ ” 540 U.S. at 

205 (quoting Austin v. Michigan Chamber of Commerce, 

494 U.S. 652, 660 (1990)). The majority simply assumed, 

without a single reference to the legislative history, that 

this was Congress’s purpose in Section 203. See 540 U.S. 

at 203-09. That was manifest error. 

 The legislative record made clear that Congress 

enacted Section 203 to stifle negative campaign ads based 

on their content. “Frequently an issue of this sort will 

come before the Court clad, so to speak, in sheep’s clothing” – sometimes a design to suppress speech “is not 

immediately evident, and must be discerned by a careful 
5 

and perceptive analysis. But this wolf comes as a wolf.” 

Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., 

dissenting). Senator McCain, BCRA’s principal sponsor 

and the leading Incumbent Intervenor defending the 

statute here, put BCRA’s goal in terms so plain that the 

majority in McConnell could evade Congress’s intent only 

by resolutely refusing to examine the legislative record: 

I hope that we will not allow our attention to be 

distracted from the real issues at hand – how to 

raise the tenor of the debate in our elections. . . . 

No one benefits from negative ads. They don’t aid 

our Nation’s political dialog. 

540 U.S. at 260 (Scalia, J., dissenting) (quoting remarks of 

Sen. McCain).2

 Senator Wellstone, who drafted the amendment that became BCRA Section 204, declared that “ ‘these 

issue advocacy ads are a nightmare. I think all of us 

should hate them. . . . [By passing the legislation] [w]e 

could get some of this poison politics off television.’ ” Id. at 

260 (quoting remarks of Sen. Wellstone). Senators and 

Congressmen repeatedly lined up to stress that “ ‘[t]his bill 

is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads 

by outside interest groups does not continue to permeate 

the airwaves.’ ” Id. (quoting remarks of Sen. Cantwell).3

 2 As in McConnell itself, the leading sponsors of BCRA (Sen. 

McCain, et al.) have intervened in this dispute as defendants in order to 

defend the incumbency-protecting statute that they authored and 

enacted. We refer to them and their brief herein as the IncumbentIntervenors. 

 3

 The NRA submitted an exhaustive review of BCRA’s extensive 

legislative history in McConnell in the form of two documents: as part 

of the Joint Appendix in McConnell v. FEC, No. 02-1674 (“JA”) and an 

Appendix of Legislative History appended to NRA’s briefs in NRA v. 

FEC, No. 02-1675 (“LH App.”). Both are available in the Court’s files. 
6 

Title II’s supporters opined that negative attack ads were 

unworthy of First Amendment protection because they 

were not speech, but more akin to “crack cocaine,” “driveby shooting[s]” and “air pollution.” Id. (citations and 

quotation marks omitted).4

 

The real world is that the overwhelming majority 

of ads that we see running today are attack ads 

that are called issue ads, which are direct, blatant attacks on the candidates. . . . We don’t 

think that’s right.5

 Section 203’s content-based restriction on political 

speech is particularly suspect because it was enacted by 

incumbent legislators to help them keep their jobs: it “targets 

for prohibition certain categories of campaign speech that are 

particularly harmful to incumbents.” McConnell, 540 U.S. at 

249 (Scalia, J., dissenting) (original emphasis). See also id. at 

262-63. But “insulat[ing] legislators from effective electoral 

challenge” is not even a legitimate, let alone a compelling, 

governmental purpose. Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377, 403-04 (2000) (Breyer, J., concurring). See also

Randall, 126 S. Ct. at 2492, 2496, 2499 (Breyer, J., joined by 

Roberts, C.J., and Alito, J.); McConnell, 540 U.S. at 323 

(Kennedy, J., joined by Rehnquist, C.J., and Scalia, J., 

dissenting) (“That the Government would regulate [negative 

issue ads] for this reason goes only to prove the illegitimacy 

of the Government’s purpose.”). 

 The record on this point is overwhelming and undisputed. In McConnell, the Government did not even try to 

 4See also, e.g., NRA Appendix in NRA v. FEC, No. 02-0581 (D.D.C.) 

(“NRA App.”) 54-60; LH App. 1a-45a, 49a, 56a. 

 5

See JA 936 (Sen. McCain Dep.) at p. 100. 
7 

contest that the legislative record manifests the impermissible purpose behind Title II. And the Incumbent Intervenors, far from denying that the statute’s goal was to stifle 

the negative attack ads that they so disliked, unabashedly 

emphasized this purpose during their depositions in the 

McConnell litigation.6

 

 C. Title II’s restraint on “electioneering communications” is another example of the predictable and deplorable 

“standard practice” of the governors “us[ing] the criminal 

law to insulate themselves from disagreement” by the 

governed. ANTHONY LEWIS, MAKE NO LAW 52 (1991). Like 

Title II, the Sedition Act of 1798 was specifically aimed at 

stifling speech critical of the federal government and its 

elected members. Proponents of the Sedition Act in the 5th 

Congress, like BCRA’s supporters in the 107th, decried 

“malicious calumnies against Government,” speech designed to “inflame . . . constituents against the Government,” publications “calculated to destroy . . . every 

ligament that unites . . . man to society and to Government,” and “representations [that] are outrages on the 

national authority, which ought not to be suffered.” NRA 

App. 111-13. Congressional opponents of the Sedition Act, 

like opponents of BCRA, argued then, as we do now: 

This bill and its supporters suppose, in fact, that 

whoever dislikes the measures . . . of a temporary 

majority in Congress, and shall . . . express his 

disapprobation and his want of confidence in the 

men now in power, is seditious and is liable to 

 6See, e.g., JA 939-40 (Sen. McCain Dep.) at p. 127; JA 914-15 (Sen. 

Jeffords Dep.) at p. 76; JA 906 (Sen. Jeffords Dep.) at p. 15; JA 910 

(Sen. Jeffords Dep.) at p. 22; JA 972 (Rep. Meehan Dep.) at p. 54; JA 

749 (Rep. Shays Decl.) ¶13. 
8 

punishment. . . . If you thus deprive the people of 

the means of obtaining information of their conduct, you in fact render their right of electing 

nugatory; and this bill must be considered only 

as a weapon used by a party now in power, in order to perpetuate their authority and preserve 

their present places.7

 In New York Times Co. v. Sullivan, 376 U.S. 254, 276 

(1964), this Court unanimously observed that the Sedition 

Act, “because of the restraint it imposed upon criticism of 

government and public officials,” had been universally 

condemned “in the court of history” as a blatant infringement on freedom of speech. If this judgment on the Sedition Act is correct, then Title II’s modern version of it must 

fall. 

 D. Nor can Title II’s limitation on electoral speech be 

reconciled with this Court’s decision in New York Times v. 

Sullivan, which concerned a political advertisement run in 

THE NEW YORK TIMES by an “interest group” – the “Committee to Defend Martin Luther King and the Struggle for 

Freedom in the South.” The ad was found to refer to an 

elected official and to falsely criticize his handling of civil 

rights protests in Alabama. The issue was whether the 

First Amendment “limit[s] a State’s power to award 

damages in a libel action brought by a public official 

against critics of his official conduct.” Id. at 256. Emphasizing that “[i]t is as much [the citizen’s] duty to criticize 

as it is the official’s duty to administer,” id. at 282, the Court 

held that the First Amendment prohibits such an action 

unless the public official can show that the defamatory 

 7 NRA App. 114. 
9 

statement was made with actual malice. The Sullivan

Court’s reasoning is equally dispositive of Title II. 

 At the heart of the Court’s unanimous ruling was its 

recognition that political speech is the lifeblood of democracy and that “debate on public issues should be uninhibited, robust, and wide-open.” Id. at 270. That the political 

speech was contained in a paid advertisement was irrelevant; the First Amendment protects “persons who do not 

themselves have access to publishing facilities” no less 

than it protects the press. Id. at 266. Nor did the advertisement’s false and defamatory nature suffice to deprive it 

of First Amendment protection, for “erroneous statement 

is inevitable in free debate, and . . . it must be protected if 

the freedoms of expression are to have the ‘breathing 

space’ that they ‘need . . . to survive.’ ” Id. at 271-72 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). And the 

Sullivan Court emphasized, over and over again, that 

speech concerning the conduct of public officials and 

candidates for public office is essential to the vitality of 

democracy itself. Quoting James Madison, the Court said 

this: “The value and efficacy of this right [to vote] depends 

on the knowledge of the comparative merits and demerits 

of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these 

merits and demerits of the candidates respectively.” Id. at 

275 (citation omitted). Accordingly, until McConnell this 

Court had consistently held “that legislative restrictions 

on advocacy of the election or defeat of political candidates 

are wholly at odds with the guarantees of the First 

Amendment.” Buckley v. Valeo, 424 U.S. 1, 50 (1976). 

 In the record before the Court in McConnell were 

thousands of the “negative attack ads” that Title II suppresses. To dispose of this case, it is enough to note simply 
10 

that every single one of them would be protected by the 

First Amendment from a libel action brought by the 

attacked candidate. But Title II cuts even deeper into the 

heart of the First Amendment than did the defamation 

action invalidated in Sullivan. Title II goes beyond rendering speech actionable in tort; it criminalizes speech outright and punishes the speaker with imprisonment. Title 

II goes beyond just reaching and restraining false speech; 

it reaches and criminalizes the truth. Title II goes beyond 

just restraining political speech, it targets electoral speech 

about candidates for public office during the weeks before 

citizens go to the polls. 

 Title II’s restrictions on electioneering communications thus violate the most fundamental postulates of free 

speech. In the face of the First Amendment’s ancient, 

broad, deep and pervasive protection of political speech, 

the recently minted precedent of McConnell cannot stand. 

Adherence to a previous ruling is unwarranted when it 

“involves collision with a prior doctrine more embracing in 

its scope, intrinsically sounder, and verified by experience.” Adarand Constructors v. Pena, 515 U.S. 200, 231 

(1995) (quoting Helvering v. Hallock, 309 U.S. 106, 119 

(1940)). 

III. TITLE II IS FATALLY OVERBROAD AND 

STRICT SCRUTINY THEREFORE MANDATES 

THAT IT BE STRUCK DOWN. 

 Until McConnell, Austin v. Michigan Chamber of 

Commerce was “the only time [the] Court had allowed the 

Government to exercise the power to censor political 

speech based on the speaker’s corporate identity.” McConnell, 540 U.S. at 326 (Kennedy, J., dissenting). But 
11 

Austin was based on a faulty assumption. Contrary to Justice Stevens’ proposal that there is a 

“vast difference between lobbying and debating 

public issues on the one hand, and political campaigns for election to public office on the other,” 

there is a general recognition now that discussions of candidates and issues are quite often intertwined in practical terms. 

Id. at 327 (Kennedy, J., dissenting). Indeed, there is total 

unanimity on this point among both the parties and this 

Court. As the majority expressed it in McConnell, “ ‘[i]t is 

foolish to believe there is any practical difference between 

issue advocacy and advocacy of a political candidate. What 

separates issue advocacy and political advocacy is a line in 

the sand drawn on a windy day.’ ” 540 U.S. at 126 n.16 

(quoting a former official of the NRA’s Political Action 

Committee). Both the Government (SG Br. at 30) and the 

Incumbent Intervenors (Incumbents Br. at 35) take precisely the same position and support it by quoting precisely the same NRA official. This insight is hardly new. 

See Buckley, 424 U.S. at 42 (“the distinction between 

discussion of issues and candidates and advocacy of 

election or defeat of candidates may often dissolve in 

practical application”). 

 Although there is, thus, agreement as a factual matter 

on the enormous breadth of Title II’s criminalization of 

political speech, Title II’s defenders and the McConnell 

majority draw the wrong conclusion from this. They 

reason that, if one cannot distinguish between constitutionally protected speech and electioneering communications that the government may restrict, then the State 

may outlaw all of it, and leave any speaker who thinks he 

deserves an exception for “real” issue ads to bring an asapplied challenge or to speak and risk felony prosecution. 
12 

This brings to mind the question put to Simon de Montfort’s 

papal advisor during the Albigensian Crusade, when the 

crusading knights asked their leader how, once they stormed 

the town, they were to distinguish good, orthodox Christians 

from the Cathar heretics that were to be put to death. The 

papal legate replied: kill them all and let God sort them out. 

 This same harsh rule flows from this Court’s decision 

in McConnell, and it gets the First Amendment precisely 

backwards. The Constitution, we respectfully submit, 

requires the Court to put its thumb on the other side of the 

scale, in favor of protecting speech, rather than restricting 

and chilling it. The error in McConnell is just that fundamental. “If protected speech is being suppressed, that 

must be the end of the inquiry.” McConnell, 540 U.S. at 

324 (Kennedy, J., joined by Rehnquist, C.J., and Scalia, J., 

dissenting). It “is no answer to say that” speakers “may 

bring as-applied challenges on a case-by-case basis. When 

a statute is as out of bounds as Section 203, our law 

simply does not force speakers to ‘undertake the considerable burden (and sometimes risk) of vindicating their 

rights through case-by-case litigation.’ ” Id. at 336 (quoting 

Virginia v. Hicks, 539 U.S. 113, 119 (2003)). The threejudge court below did the best it could in fleshing out the 

McConnell standard for employment in an as-applied 

challenge to Title II, and that effort yielded an eight-factor 

test through which political speakers must sift their 

speech before uttering a word. Wisconsin Right to Life v. 

FEC, 466 F. Supp. 2d 195, 204, 207 (D.D.C. 2006) (setting 

forth a 2-part, and then 6-subpart, test for applying 

McConnell). That the McConnell standard for distinguishing a felony from permissible speech is “unworkable” is 

reason enough to depart from stare decisis. Payne, 501 

U.S. at 827. 
13 

 The Government nevertheless contends that BCRA’s 

definition of “electioneering communications” passes 

constitutional muster because it employs bright (albeit 

broad and sweeping) lines to define “a class of communications that are generally intended to influence electoral 

outcomes and are likely to have that effect.” SG Br. at 30. 

This makes for an alarming comparison with the class of 

criminal syndicalism communications that the State may 

outlaw, which is phrased in parallel terms: a state may 

criminalize incitement to violence only when the defendant’s “advocacy is directed to inciting or producing 

imminent lawless action and is likely to incite or produce 

such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 

(1969). That is a much narrower category of communication and a much tougher standard for the State to meet, 

despite the fact that advocating violence, in contrast to 

political speech, is not at the core of the First Amendment. 

Thus the Government’s reading of McConnell is that the 

Constitution guarantees more elbow-room for a speaker to 

advocate the violent overthrow of the government than to 

advocate removal of that same government by means of 

the electoral process. This is a world turned upside down. 

IV. TITLE II CANNOT BE JUSTIFIED BY THE 

NEED TO PREVENT AUSTIN-STYLE “CORRUPTION” BECAUSE CONGRESS ITSELF ENACTED A LESS RESTRICTIVE ALTERNATIVE. 

 Even if, contrary to what BCRA’s legislative sponsors 

themselves said, preventing Austin-style “corruption” were 

the purpose of Title II, that purpose is insufficiently 

compelling to excuse the statute’s abridgement of freedom 

of speech because a less restrictive means of achieving the 
14 

congressional goal is available. This is an alternative and 

independent basis for overruling McConnell. 

 Defendants do not (and cannot) dispute that Title II is 

subject to strict scrutiny, so they attempt to cast Title II as 

designed to achieve the compelling government purpose of 

preventing actual or apparent political corruption. But 

there is absolutely nothing in the legislative record of Title 

II indicating that Congress limited electioneering communications to protect office holders from the corrupting 

influence of “sham” issue ads. To the contrary, as demonstrated above, the statute was aimed at “negative attack 

ads” that supposedly demean the political process. 

 Despite Congress’s remarkable candor about its goal 

of protecting candidates from televised criticism during 

election campaigns, the majority in McConnell ignored 

that purpose and instead launched its analysis “with 

rhetoric that suggests a conflation of the anticorruption 

rationale with the corporate speech rationale.” 540 U.S. at 

290 (Kennedy, J., joined by Rehnquist, C.J., and Scalia, J., 

dissenting). “The conflation appears designed to cast the 

speech regulated here as unseemly corporate speech.” Id. 

at 290-91. Thus “[t]he majority begins with a denunciation 

of direct campaign contributions by corporations and 

unions” and “then uses this rhetorical momentum as its 

leverage to uphold” BCRA’s restrictions on independent 

expenditures, even by non-profit grassroots advocacy 

organizations. Id. at 339-40 (emphasis added). The Court 

should reexamine the basic premises of its analysis in 

McConnell. 
15 

A. Gratitude For Political Support Is Not Corruption. 

 The notion of “political corruption” that the majority 

embraced in McConnell is a world apart from the record of 

“quid pro quo” deals that anchored the Court’s regulation 

of campaign contributions in Buckley. See 424 U.S. at 26 & 

n.28. For the McConnell Court, “any conduct that wins 

goodwill from or influences a Member of Congress” is ipso 

facto “corruption.” 540 U.S. at 294 (Kennedy, J., dissenting) 

(emphasis added). This, we are told, is a matter of simple 

“common sense.” Id. at 152 (joint opinion of Stevens and 

O’Connor, JJ.). Likewise, mere “access, without more,” is 

proof positive of “corruption” that taints both the independent expenditures made in support of a candidate’s policies 

and the candidate to whom the advocacy group making the 

expenditures gains access. Id. at 294 (Kennedy, J., dissenting). “Access, in the Court’s view, has the same legal ramifications as actual or apparent corruption of officeholders.” Id.

 But this is not “corruption” – this is the democratic 

process. To be sure, elected officials are indeed grateful for 

any support for their campaigns, whether it takes the form 

of the ballot of a single constituent, or the endorsement of 

an organization with millions of members, or television 

ads extolling a candidate’s virtues and decrying his opponent’s vices. And those who provide such support do indeed 

expect that, if the campaign is successful, the official will 

cast votes in a way that reflects the shared political ideals 

that inspired the support in the first place.8

 8 It is in the nature of an elected representative to favor certain 

policies, and, by necessary corollary, to favor the voters and 

contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the 

(Continued on following page) 
16 

 But there is nothing “malign” in this, nor in the 

“proclivity of [an] officeholder to agree with those who 

agree with him, and to speak more with his supporters 

than his opponents.” 540 U.S. at 259 (Scalia, J., dissenting). Political allies who raise their voices in support of 

particular causes and hence in support of a candidate who 

promotes those causes “will have greater access to the 

officeholder, and he will tend to favor the same causes as 

those who support him (which is usually why they supported him). That is the nature of politics – if not indeed 

human nature.” Id. 

 Thus the McConnell Court saw “corruption” in the 

natural functioning of our representative democracy. Prior 

to McConnell, this Court had repudiated such a notion of 

“corruption.” “The fact that candidates and elected officials 

may alter or reaffirm their own positions on issues in 

response to political messages paid for by the PACs can 

hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of 

varying points of view.” FEC v. NCPAC, 470 U.S. 480, 498 

(1985). 

only reason, to cast a vote for, or to make a contribution to, 

one candidate over another is that the candidate will respond by producing those political outcomes the supporter 

favors. Democracy is premised on responsiveness. 

McConnell, 540 U.S. at 297 (Kennedy, J., dissenting). 
17 

B. Independent Expenditures By Grassroots 

Advocacy Groups Pose No Threat Of Corrupting The Political Process. 

 Core political speech is protected by the First Amendment regardless whether a corporation is the speaker. 

Buckley, 424 U.S. at 45, 50, 187; First Nat’l Bank v. 

Bellotti, 435 U.S. 765, 777 (1978); FEC v. MCFL, 479 U.S. 

238, 259 (1986). Indeed, MCFL upheld a nonprofit voluntary membership corporation’s First Amendment right to 

make unlimited independent expenditures to fund its 

political speech, including express advocacy. Only once, in 

Austin, has this Court upheld a restriction on independent 

expenditures for core political speech. The specific danger 

identified in Austin, corruption of the political process 

through the aggregation of wealth generated by business 

corporations, has no application to speech by nonprofit 

membership organizations that are devoted to the advancement of specific rights and ideas and are funded 

almost exclusively by the dues and donations of individual 

members. 

 MCFL held that a voluntary membership organization 

committed to a political purpose does not lose its First 

Amendment rights simply by taking the corporate form. 

Although the “resources in the treasury of a business 

corporation . . . are not an indication of popular support for 

the corporation’s political ideas,” nonprofit advocacy 

groups that take the corporate form “do not pose that 

danger of corruption” because they are “formed to disseminate political ideas, not amass capital.” 479 U.S. at 258-59 

(emphasis added). Their “resources . . . are not a function 

of [their] success in the economic marketplace, but [their] 

popularity in the political marketplace.” Id. 
18 

 In contrast, Austin upheld a law restricting expenditures on express advocacy by the Chamber of Commerce 

because 75% of its funding came from for-profit corporations; the Chamber therefore could (and did) serve as a 

conduit for using “resources amassed in the economic 

marketplace” “to provide an unfair advantage in the 

political marketplace.” MCFL, 479 U.S. at 257. The Court 

specifically observed that the Chamber’s corporate wealth 

had “little or no correlation to the public’s support for the 

corporation’s political ideas.” Austin, 494 U.S. at 660 

(emphasis added). 

 MCFL and Austin thus draw a line between advocacy 

organizations that fund their speech with individual dues 

and trade associations that fund their speech largely with 

contributions from business corporations. The former, 

unlike the latter, pose no danger of corrupting the political 

marketplace through wealth generated in the economic 

marketplace. 

 This analysis of Austin and MCFL was confirmed in 

FEC v. Beaumont, 539 U.S. 146, 157-59 (2003), which held 

that a restriction on corporate campaign contributions

could constitutionally be applied to nonprofit advocacy 

organizations as well as business corporations. Beaumont

reaffirmed that the Austin rationale for restricting expenditures was to prevent corporations from “ ‘us[ing] resources amassed in the economic marketplace to obtain an 

unfair advantage in the political marketplace.’ ” Id. at 154 

(quoting Austin, 494 U.S. at 658-59). That problem is 

simply not presented by the NRA or similar nonprofit 

advocacy groups. 
19 

 To be sure, Beaumont held that concerns about the 

corporate form of organization, even for a nonprofit advocacy organization funded by individual donations, were 

sufficient to sustain restrictions on campaign contributions

by such a corporation. Id. at 159-61. In other words, 

Congress may ban corporate campaign contributions in 

order to “bar[ ] corporate earnings from conversion into 

political ‘war chests.’ ” Id. at 154. But, as the Court reaffirmed, contributions barely count as speech at all: “Going 

back to Buckley v. Valeo, restrictions on political contributions have been treated as merely ‘marginal’ speech 

restrictions subject to relatively complaisant review under 

the First Amendment.” Beaumont, 539 U.S. at 161. 

 In contrast, independent political expenditures on 

campaign speech by nonprofit advocacy groups constitute 

“the core of political expression.” Id. at 161-62. Independent political expenditures “ ‘do not pose that danger of 

corruption,’ ” id. at 158, and therefore the “ ‘potential for 

unfair deployment of wealth for political purposes’ f[alls] 

short of justifying a ban on expenditures” by such groups. 

Id. The rationales that sufficed to uphold restrictions on 

contributions in Beaumont cannot survive the strict 

scrutiny applicable to restrictions on expenditures for core 

political speech.9

 Indeed, that is precisely why the First 

Amendment foreclosed Congress’s attempt to regulate the 

 9 Beaumont repeatedly reaffirmed this fundamental distinction 

between restrictions on contributions and expenditures. 539 U.S. at 151 

& n.2, 155-56, 158-59, 161, 162. See also id. at 164 (Kennedy, J., 

concurring in the judgment). In particular, the Court distinguished the 

deference accorded legislative judgments about corruption “when 

Congress regulates campaign contributions” from the strict scrutiny 

applicable to expenditure restrictions. Id. at 155-56, 161. 
20 

independent expenditures of a corporate political action 

committee (“PAC”) in NCPAC. See 470 U.S. at 500-01. 

 The NRA is the archetype of the issue advocacy 

groups protected by the First Amendment. It was formed 

by its members to disseminate a shared political idea – 

preservation of Second Amendment rights – not to amass 

capital. The NRA’s resources “are not a function of its 

success in the economic marketplace, but its popularity in 

the political marketplace.” MCFL, 479 U.S. at 259. The 

NRA and similar grassroots advocacy organizations do not 

do significant business in the “economic marketplace,” nor 

derive “market profits,” nor receive more than a negligible 

portion of their revenues from corporate contributions. In 

short, the NRA does not use “ ‘resources amassed in the 

economic marketplace’ to obtain ‘an unfair advantage in 

the political marketplace.’ ” Austin, 494 U.S. at 659 (quoting MCFL, 479 U.S. at 259). Title II’s restriction on its 

independent electioneering expenditures is, therefore, 

unconstitutional. 

C. Title II’s Restrictions On Independent Expenditures By Grassroots Advocacy Organizations Drastically Curtail Speech. 

 “The freedom to associate with others for the dissemination of ideas – not just by singing or speaking in unison, 

but by pooling financial resources for expressive purposes 

– is part of the freedom of speech.” McConnell, 540 U.S. at 

255 (Scalia, J., dissenting). See also NAACP v. Button, 371 

U.S. 415, 428-29 (1963). “To say that [individuals’] collective action in pooling their resources to amplify their 

voices is not entitled to full First Amendment protection 

would subordinate the voices of those of modest means as 

opposed to those sufficiently wealthy to be able to buy 
21 

expensive media ads with their own resources.” FEC v. 

NCPAC, 470 U.S. 480, 495 (1985). 

 McConnell upheld Section 203 because corporations, 

including nonprofit advocacy organizations such as the 

NRA, the ACLU and the Sierra Club, “can still fund 

electioneering communications with PAC money,” and it 

was therefore “ ‘simply wrong’ to view the provision as a 

‘complete ban’ on expression rather than a regulation.” 540 

U.S. at 204. 

 First, this distinction gains no ground for the McConnell Court’s rationale, because Title II is subject to First 

Amendment strict scrutiny, not to a mere balancing test. 

“When the purpose and design of a statute is to regulate 

speech by reason of its content, special consideration or 

latitude is not accorded to the Government merely because 

the law can somehow be described as a burden rather than 

outright suppression.” United States v. Playboy Entm’t 

Group, 529 U.S. 803, 826 (2000). 

 Second, the distinction between ban and burden 

drawn by the McConnell majority provides little comfort to 

advocacy organizations and marks yet another break with 

established doctrine. This Court’s jurisprudence has long 

recognized “the practical difficulties corporations face 

when they are limited to communicating through PACs,” 

540 U.S. at 330 (Kennedy, J., dissenting), which are 

regulated in minute detail by federal law. See MCFL, 479 

U.S. at 253-54. With respect to grassroots advocacy organizations in particular, the PAC rules constitute a 

stultifying array of accounting, reporting, solicitation and 

organizational requirements. “These regulations are more 

than mere minor clerical requirements. Rather they create 

major disincentives for speech, with the effect falling most 
22 

heavily on smaller entities,” and for any organization that 

has not yet established a PAC, spontaneous election 

speech “becomes impossible.” McConnell, 540 U.S. at 332 

(Kennedy, J., dissenting). 

Couple the litany of administrative burdens with 

the categorical restriction limiting PACs’ solicitation activities to “members,” and it is apparent 

that PACs are inadequate substitutes for corporations in their ability to engage in unfettered 

expression. 

Id. 

 Title II’s congressional supporters well understood 

that requiring the NRA to speak through its PAC would 

reduce the collective voice of its four million members to a 

whisper – indeed, they openly declared that gagging the 

NRA during elections was their purpose.10 At the trial 

stage of McConnell, Judge Henderson found that the 

congressional stratagem would succeed, due to the inability of NRA members – the vast majority of whom are 

individuals of modest means – to pay the NRA’s membership fee and then contribute beyond that amount to the 

NRA’s PAC. McConnell v. FEC, 251 F. Supp. 2d 176, 318 

(D.D.C. 2003) Judge Henderson’s finding was not contested 

 10 See 147 CONG. REC. S2847 (Mar. 26, 2001) (Sen. Wellstone) 

(referencing the NRA and Sierra Club as prototypical organizations 

whose ads should be restricted); 145 CONG. REC. H3174 (May 14, 1999) 

(Rep. Schakowsky) (“If my colleagues care about gun control, then 

campaign finance reform is their issue so that the NRA does not call the 

shots.”); 148 CONG. REC. H424 (Rep. Pickering) (Feb. 13, 2002) (quoting 

Scott Harshberger, the President of Common Cause, who championed 

BCRA by saying: “ ‘A vote for campaign finance reform is a vote against 

the second amendment gun lobby.’ ”); see generally LH App. 52a. 
23 

by either of the other members of the district court panel, 

nor questioned by any member of this Court. 

 Experience since McConnell has borne out Judge 

Henderson’s forecast: grassroots advocacy associations 

comprising individuals of ordinary income have been 

effectively gagged, while multimillionaires – whose Section 

527 organizations are not subject to Title II’s restrictions – 

continue to flood the airwaves with their electioneering 

speech.11 Amicus does not contend that the First Amendment requires government to level the playing field 

between rich and poor speakers, but neither does it permit 

government to suppress the collective speech of ordinary 

citizens while allowing plutocrats to broadcast as they 

wish. This Court has struck down even contribution limits 

when they were found to “severely inhibit collective 

political activity by preventing” a group from aggregating 

and “using contributions by small donors” to support a 

candidate, “thereby thwarting the aims” of thousands of 

individuals “from making a meaningful contribution to 

state politics.” Randall, 126 S. Ct. at 2497 (Breyer, J., 

joined by the Chief Justice, and Alito, J.). 

 As Justice Kennedy pointed out, “political committees 

are regulated in minute detail because their primary 

purpose is to influence federal elections,” whereas the 

“ ‘ACLU and thousands of other organizations like it . . . 

are not created for this purpose and therefore should not 

be required to operate as if they were.’ ” McConnell, 540 

 11 For an example of the vigorous spending and healthy state of 

fund-raising by advocacy corporations that qualify under 26 U.S.C. 

§ 527, see http://www.fec.gov/finance/disclosure/norindsea.shtml (reporting 

individual contributions to MoveOn.org by George Soros in the amounts 

of $1,044,285, $955,715 and $500,000). 
24 

U.S. at 332 (Kennedy, J., dissenting). The McConnell 

Court “articulate[d] no compelling justification for imposing this scheme of compulsory ventriloquism.” Id. at 333. 

 Although some would justify limits on independent 

expenditures as necessary “to democratize the influence 

that money itself may bring to bear upon the electoral 

process,” Shrink Missouri, 528 U.S. at 401 (Breyer, J., 

concurring), Title II stands that reasoning on its head. By 

requiring a grassroots advocacy group’s political speech to 

be channeled through a PAC, BCRA ensures that the 

voices of members of modest means will be silenced, 

closing the marketplace of political expression to all but 

the wealthy. Title II thus works a bitter inversion of the 

Austin Court’s rationale. Austin upheld a limit on corporate campaign expenditures as justified to prevent wealth 

generated in the economic marketplace from unfairly 

amplifying the corporation’s voice beyond the “public’s 

support for the corporation’s political ideas.” 494 U.S. at 

660. The NRA’s wealth, like that of typical advocacy 

groups, is attributable to its success in the political marketplace, not the economic marketplace, and its general 

treasury “accurately reflects members’ support for the 

organization’s political views.” Id. at 666. By requiring the 

NRA’s political speech to be channeled through its PAC, 

Title II muffles the NRA’s voice in the political marketplace to a volume far below its “contributors’ support for 

the corporations’ political views.” Id. at 660-61. Thus, far 

from ensuring that “resources amassed in the economic 

marketplace [are not] used to provide an unfair advantage 

in the political marketplace,” MCFL, 479 U.S. at 257, Title 

II ensures that resources amassed in the political marketplace cannot be put to use in the very place from whence 

they came. 
25 

 Nor can Title II possibly achieve the congressional 

goal that the McConnell Court attributed to it. The Court 

proclaimed that electioneering communications are regulated by Title II because they beget the grievous public 

harm of official corruption, 540 U.S. at 206 n.88, while 

paradoxically positing that Title II actually bans no 

electioneering communications at all because corporations 

remain free to speak through their PACs. Id. at 204. But 

requiring the electoral speech of corporations to be funneled through their PACs cannot possibly solve the “corruption” problem that McConnell identifies as the 

animating purpose of Section 203. As a measure designed 

to prevent official corruption, of either the quid pro quo or 

the Austin-“gratitude” variety, Title II makes no more 

sense than a bribery statute requiring corporations to pay 

for their bribes using funds from PACs. See McConnell, 

540 U.S. at 275 n.8 (Thomas, J., dissenting). Congress 

surely did not intend Title II to result in nothing more 

than an act of institutional ventriloquism, with organizations like the NRA simply uttering from the mouths of 

their PACs the very same “electioneering communications” 

that allegedly threatened to corrupt federal office holders. 

Moreover, McConnell fails to explain why a candidate 

would be any less grateful for, and thus any less corrupted 

by, an issue ad aired with PAC money than an identical ad 

aired with a non-profit advocacy group’s general funds. 

 Thus Title II cannot genuinely be justified on an 

anticorruption rationale, and overruling McConnell would 

not “depart from the fabric of the law; [it would] restore 

it.” Adarand, 515 U.S. at 234. 
26 

D. The Wellstone Amendment’s Suppression Of 

Political Speech Funded Exclusively With 

Individual Contributions Cannot Survive 

Strict Scrutiny Because It Is Not The Least 

Restrictive Means Of Achieving The Congressional Purpose. 

 Even if one credits at face value McConnell’s premise 

that the specter of Austin-type corruption extends to the 

independent electioneering expenditures of nonprofit 

advocacy groups, the case should nevertheless be overruled insofar as it upholds Sections 203 and 204 of BCRA. 

Under strict scrutiny, resort to a less restrictive alternative is mandated if one is available. See Playboy Entertainment, 529 U.S. at 809-810; Shrink Missouri, 528 U.S. 

at 388 n.3; Roberts v. U.S. Jaycees, 468 U.S. 609, 623 

(1984). And “the burden is on the Government to prove 

that the proposed alternatives would not be as effective as 

the challenged statute.” Ashcroft v. ACLU, 542 U.S. 656, 

665 (2004). There are less restrictive means to ensure that 

the political voices of advocacy groups like the NRA are 

not unfairly amplified by corporate wealth generated in 

the economic marketplace. 

 Indeed, Congress enacted a less restrictive alternative 

in Title II itself: the original “Snowe-Jeffords” version of 

Title II would have exempted electioneering communications by 501(c)(4) advocacy groups like the NRA, so long as 

they were “paid for exclusively by funds provided directly 

by individuals.” BCRA § 203(b) (adding to U.S.C. 

§ 441b(c)(2)). The so-called “Wellstone Amendment,” 

however, negated the Snowe-Jeffords Provision, see § 204 

(adding 2 U.S.C. § 441b(c)(6)), for the specific purpose of 

extending Title II to nonprofit issue advocacy organizations. 
27 

 The Incumbent Intervenors and BCRA’s other sponsors opposed the Wellstone Amendment, not because they 

valued the political speech of the grassroots advocacy 

groups that the Amendment would stifle, but because they 

believed that the Amendment was unconstitutional and 

would likely be struck down by this Court.12 BCRA’s 

opponents overwhelmingly supported the amendment, 

presumably for this very reason. BCRA’s sponsors therefore insisted both that a severability clause be enacted and 

that the original Snowe-Jeffords language remain in the 

bill, so that invalidation of the Wellstone Amendment 

would not threaten Title II as a whole. And when Section 

204 was challenged in McConnell, the Government refused 

to defend its curtailment of electioneering communications 

by 501(c)(4) organizations and instead merely sought to 

avoid consideration of it. See Brief of the FEC in No. 02-

1674, at 112-13. 

 Ironically, the McConnell Court upheld the Wellstone 

Amendment by reading into it an exception for MCFL-type 

corporations, despite the fact that, as the Court itself 

conceded, Section 204 “does not, on its face, exempt MCFL 

organizations from its prohibition,” and despite Congress’s 

evident intent to override MCFL by broadening BCRA to 

include issue-advocacy groups. 540 U.S. at 210-11. See also 

id. at 338-39 (Kennedy, J., dissenting) (“There is no ambiguity regarding what § 204 is intended to accomplish. . . . 

 12 All four of the Senator-Intervenors voted against the Wellstone 

Amendment, see LH App. 41b-42b, and Senator Feingold expressly did 

so on constitutional grounds. See LH App. 58a, 63a.; 147 CONG. REC. 

S3073 (Mar. 29, 2001) (statement of Sen. Feingold); 147 CONG. REC. 

S2833 (Mar. 23, 2001) (statement of Sen. Edwards). 
28 

[T]he Wellstone Amendment could be understood only as a 

frontal challenge to MCFL”). 

 The McConnell decision thus marks the first time in 

our Nation’s history that the Court has sanctioned a 

content-based restriction on core political speech funded 

by an association of like-minded individuals – and the 

Court did so gratuitously, because the less restrictive 

alternative of Section 203(b) was readily at hand. 

 Prior to McConnell, this Court’s teaching was that 

Congress may require that a corporation’s expenditures 

bear a meaningful “correlation” to, Austin, 494 U.S. at 660, 

or constitute a “rough barometer” of, public support for 

that corporation’s political views. MCFL, 479 U.S. at 258. 

The original Snowe-Jeffords approach, preserved in 

Section 203(b), accomplished that by confining the electioneering expenditures of nonprofit advocacy organizations to the amount of contributions they received from 

individual donors. In contrast, the Wellstone Amendment, 

by preventing such organizations from engaging in any 

“electioneering communications” for fear that a single 

corporate dollar might otherwise lend indirect assistance, 

suppresses far more speech than necessary to achieve the 

goals vindicated in Austin and MCFL. With the less 

restrictive alternative of the Snowe-Jeffords provision at 

hand, Section 204 cannot survive strict scrutiny. 

--------------------------------- ♦ --------------------------------- 
29 

CONCLUSION 

 This Court should reconsider McConnell and invalidate either Title II’s prohibition of electioneering communications or, alternatively, the Wellstone Amendment. 

Respectfully submitted, 

CHARLES J. COOPER

BRIAN S. KOUKOUTCHOS

DAVID H. THOMPSON

COOPER & KIRK, PLLC 

555 Eleventh Street, N.W. 

Suite 750 

Washington, DC 20004 

(202) 220-9600