SENATOR MITCH McCONNELL, et al., 

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

NATIONAL RIFLE ASSOCIATION, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

EMILY ECHOLS, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civ. No. 02-582 

(CKK, KLH, RJL)

Civ. No. 02-581 

(CKK, KLH, RJL)

Civ. No. 02-633

(CKK, KLH, RJL)
2

CHAMBER OF COMMERCE OF THE

UNITED STATES, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

NATIONAL ASSOCIATION OF

BROADCASTERS,

 Plaintiff,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

AFL-CIO, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

Civ. No. 02-751

(CKK, KLH, RJL)

Civ. No. 02-753

(CKK, KLH, RJL)

Civ. No. 02-754

(CKK, KLH, RJL)
3

CONGRESSMAN RON PAUL, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

REPUBLICAN NATIONAL COMMITTEE, et

al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant.

CALIFORNIA DEMOCRATIC PARTY, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

Civ. No. 02-781

(CKK, KLH, RJL)

Civ. No. 02-874

(CKK, KLH, RJL)

Civ. No. 02-875 

(CKK, KLH, RJL)
1

 Pub. L. No. 107-155, 116 Stat. 81 (2002).

4

VICTORIA JACKSON GRAY ADAMS, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant.

BENNIE G. THOMPSON, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

Civ. No. 02-877

(CKK, KLH, RJL)

Civ. No. 02-881 

(CKK, KLH, RJL)

MEMORANDUM OPINION

(May 1, 2003)

RICHARD J. LEON, District Judge: The passage of the Bipartisan Campaign

Reform Act of 2002 ("BCRA"),1 as the record amply indicates, was a considerable

legislative achievement that many thought would never come to pass. Indeed, the law

constitutes the most comprehensive reform of our national campaign finance system in the

past twenty-eight years. As such, it is the latest chapter in the history of a longstanding and

recurring problem that our government has been wrestling with since the administration of
5

Theodore Roosevelt.

Titles I and II of BCRA focus principally on a major campaign finance development that

has dramatically unfolded over the past decade: the use of corporate and union treasury funds,

either directly or through soft money donations to political parties, to finance electioneering

communications masquerading, predominantly, as "issue ads." In an attempt to prevent actual

and apparent corruption arising from the funding of such sham issue advertisements, Congress

enacted a sweeping set of reforms that effectively: alters the methodology of our national, state,

and local parties and transforms their relationship with each other; limits the ability of

corporations, unions, individuals, and interest groups to engage in communications on public

policy; and diminishes the role of federal officeholders in fundraising for political parties and

nonprofit interest groups.

For the reasons set forth in the following opinion, I find that the defendants have more

than adequately demonstrated the constitutionally necessary basis for Congress: (1) to restrict

the use of soft money donations by national, state, and local parties to fund certain types of

campaign communications (particularly candidate-advocacy "issue" advertisements) which are

designed to, and which do, directly affect federal elections; and (2) to restrict the airing of

corporate and union electioneering communications which promote, oppose, attack, or support

specific candidates for the office which they seek.

Notwithstanding this conclusion, however, I do not find that the defendants have

demonstrated a sufficient constitutional basis to support Congress's decision: (1) to ban the
6

solicitation, receipt, and use of soft money by national parties for purposes that do not directly

affect federal elections; (2) to ban state and local parties from using soft money to fund a variety

of election activities that do not directly affect federal elections; (3) to ban the use of corporate

and union treasury monies to fund genuine issue advertisements that are aired during a

particular time period preceding election even though they do not directly advocate the election

or defeat of a federal candidate; (4) to ban national parties from donating to and soliciting soft

money for certain Section 501(c) and Section 527 organizations under the Internal Revenue

Code; (5) to prohibit federal officeholders from raising soft money for their national parties; and

(6) to require broadcast licensees to collect and disclose certain records in connection with

requests to purchase broadcast time. To the contrary, I find that in trying to do so Congress has

unconstitutionally infringed upon the First Amendment rights of the various political actors and

their supporters.

In short, the defendants, in my judgment, have been able to establish in some respects,

but not in others, a sufficient basis for Congress's intervention in dealing with these problems.

As to those where they succeeded, I believe it would make a mockery of existing Supreme

Court precedent and the regulatory scheme that it has heretofore blessed, to hold otherwise. As

to those where they have not, the protections accorded the plaintiffs under the First Amendment

more than adequately warrant their undoing.

The following is a brief outline of my opinion, which has been organized on a title by

title basis. With respect to the opinion itself, to the extent I have agreed with both the judgment
7

and reasoning of either of my colleagues (or both), I have so noted and refrained from writing.

As to those sections where I have agreed only in the judgment of one or more of my colleagues,

I have limited the discussion of my reasoning to that necessary to explain how I reached my

holding. To the greatest extent possible I have tried to acknowledge and address any

disagreements we have had factually. However, in light of the importance and enormity of the

record, I have included in my opinion a complete set of my Findings of Fact which I relied upon

in reaching my judgments. 

* * *

Table of Contents

Introduction ....................................................... 4

I. Title I: Restrictions on Nonfederal Funds .............................. 8

A. New FECA Section 323(a): National Party Ban .................... 8

1. Standard of Review for Restrictions on 

Donations to Political Parties .............................. 9

2. Donations Used to Directly Affect Federal Elections 

are Regulable by Congress ............................... 17

3. New FECA Section 323(a) Unconstitutionally Regulates the Use

of Nonfederal Funds for Nonfederal and Mixed Purposes ..... 26

4. Severability of New FECA Section 323(a) ................... 37

B. New FECA Sections 323(b) and 301(20)(A): Restrictions on "Federal

Election Activities" ........................................... 43

1. New FECA Sections 323(b) and 301(20)(A)(i), (ii), and (iv) .... 45
8

2. New FECA Section 301(20)(A)(iii) ......................... 50

C. New FECA Section 323(d): Restrictions on Tax-Exempt 

Organizations ............................................... 68

D. New FECA Section 323(e): Restrictions on Federal Candidates ..... 71

E. New FECA Section 323(f): Restrictions on State Candidates ........ 72

II. Title II: Noncandidate Campaign Expenditures ........................ 73

A. Section 201: The Primary Definition ............................ 73

B. Section 201: The Backup Definition ............................. 88

C. Section 204: The Wellstone Amendment ......................... 96

D. Section 213: The Party Choice Provision ........................ 99

III. Section 318: Prohibition of Donations by Minors ...................... 106

IV. Section 504: Public Access to Broadcasting Records ................... 111

V. Findings of Fact .................................................. 115

VI. Conclusion ...................................................... 346

* * *

I. Title I: Restrictions on Nonfederal Funds

New FECA Sections 323(a), 323(b), 301(20)(a), 323(d), 323(e), and 323(f)

A. New FECA Section 323(a): Nonfederal Fund Restrictions on National Parties 

I agree with Judge Henderson's conclusion, although for different reasons, that

Congress, in essence, is constitutionally prohibited from regulating a national party's ability
2

In Roberts v. United States Jaycees, the Supreme Court declared that "[a]n

individual's freedom to speak, to worship, and to petition the government for the redress

of grievances could not be vigorously protected from interference by the State unless a

correlative freedom to engage in group effort toward those ends were not also

guaranteed." 468 U.S. 609, 622 (1984) (citing Citizens Against Rent Control/Coalition for

9

to solicit, receive, or use nonfederal funds (i.e., soft money) for nonfederal and mixed

purposes. To the extent that Section 323(a) seeks to regulate donations to national parties

that are used for purposes that at the most indirectly affect federal elections (i.e., nonfederal

or mixed purposes), the defendants have failed to demonstrate that Section 323(a) serves an

important government interest, or even if they had, that it is sufficiently tailored to serve that

interest.

However, I find that Congress can restrict a national party's use of nonfederal money

to directly affect federal elections through communications that support or oppose

specifically identified federal candidates. Therefore, like Judge Kollar-Kotelly, I find

constitutional Congress's ban on the use of nonfederal funds by national parties for Section

301(20)(A)(iii) communications. As a result, I concur in part in, and dissent in part from,

Judge Henderson's judgment and reasoning regarding Section 323(a).

1. Standard of Review for Restrictions on Donations to Political Parties

The right to freedom of political association under the First Amendment is a

fundamental right of donors to political parties, see Buckley v. Valeo, 424 U.S. 1, 24-25

(1976),2

 and arguably of the political parties themselves, see FEC v. Colorado Republican
Fair Housing v. City of Berkeley, 454 U.S. 290, 294 (1981)).

3

 See FEC v. Colorado Republican Fed. Campaign Comm. ("Colorado I"), 518

U.S. 604, 618 (1996) (noting that political parties play an "important and legitimate role .

. . in American elections"); Davis v. Bandemer, 478 U.S. 109, 144-45 (1986) (O'Connor,

J., concurring in judgment) ("There can be little doubt that the emergence of a strong and

stable two-party system in this country has contributed enormously to sound and effective

government."); see also Findings of Fact ("Findings") 20-26.

4

See California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)

("Representative democracy in any populous unit of governance is unimaginable without

the ability of citizens to band together in promoting among the electorate candidates who

espouse their political views. The formation of national political parties was almost

concurrent with the formation of the Republic itself." (citing Noble E. Cunningham, Jr.,

The Jeffersonian Republican Party, in 1 History of U.S. Political Parties 239, 241 (Arthur

M. Schlesinger, Jr. ed., 1973))).

5

 See, e.g., Findings 14-19.

10

Fed. Campaign Comm. ("Colorado II"), 533 U.S. 431, 448 n.10 (2001). Our national

political structure is firmly anchored by our two major parties.3 The role those national

parties play in defining wide-ranging political agendas and bringing together individuals

(and their financial resources) on behalf of those political agendas is critical to the stability

our political system has enjoyed over the past 200 years.4

Upon giving money to a political party, or to any political organization for that

matter, a donor hopes that the organization will amplify his political perspective or

candidate preference.5

 Any number of activities by a political party can amplify the donor's

political voice. Some activities, like direct contributions to state candidates, are for a

nonfederal purpose because they have no effect on a federal election. Others, like public

communications that advocate the election or defeat of a particular federal candidate, are for
6 For a discussion of the distinction between genuine issue advertisements and

"sham" issue ads designed to directly affect a federal candidate's election, see Findings

288-89 and infra Parts I.A.3 & I.B.2.

7

See Colorado II, 533 U.S. at 453 ("[A] party combines its members' power to

speak by aggregating contributions and broadcasting messages more widely than

individual contributors generally could afford to do."); FEC v. Massachusetts Citizens for

Life ("MCFL"), 479 U.S. 238, 261 (1986) ("[I]ndividuals contribute to a political

organization in part because they regard such a contribution as a more effective means of

advocacy than spending the money under their own personal direction."); Citizens Against

Rent Control, 454 U.S. at 294 ("[B]y collective effort individuals can make their views

known, when, individually, their voices would be faint or lost."); id. at 296 (citing

Buckley, 424 U.S. at 65-66); Buckley, 424 U.S. at 15, 22. Alexis de Toqueville observed:

As soon as several of the inhabitants of the United States have conceived a

sentiment or an idea that they want to produce in the world, they seek each

other out; and when they have found each other, they unite. From then on,

they are no longer isolated men, but a power one sees from afar, whose

actions serve as an example; a power that speaks, and to which one listens.

2 Alexis de Tocqueville, Democracy in America 492 (Harvey C. Mansfield & Delba

Winthrop eds., 2000).

11

a federal purpose because they directly affect federal elections. And still others, like generic

voter registration and genuine issue advertisements,6 are for "mixed purposes" because they

indirectly affect both state and federal elections. Regardless of the purpose served, all of

these party activities, paid for with aggregated donations, express loudly, and often

effectively, the donor's political position.7

 For this reason, an individual's donation to a

political party is an act of political association protected by the First Amendment. But as

important as this right is, it is not absolute.

The Supreme Court, in Buckley v. Valeo and ensuing campaign finance cases, has
8

 Federal Election Campaign Act of 1971 ("FECA"), Pub. L. No. 92-225, 86 Stat. 3

(1971 provisions) (codified as amended at 2 U.S.C. §§ 431 et seq.).

9

 See Buckley, 424 U.S. at 23-35 (upholding contribution limitations to candidates

and their political committees); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 390-

98 (2000) (same); see also California Medical Ass'n v. FEC ("California Medical"), 453

U.S. 182, 197-99 (1981) (upholding contribution limitations to PACs). The Supreme

Court has never explicitly addressed limitations on contributions to political parties. The

$20,000, now $25,000, limit on contributions to national parties was not even added to

FECA until the post-Buckley 1976 amendments. See Pub. L. No. 94-283 § 320, 90 Stat.

475 (codified as amended at 2 U.S.C. § 441a(a)(1)(B)); see also California Medical, 453

U.S. at 194 n.15; BCRA § 307(a)(2) (raising amount individuals can contribute to

national parties from $20,000 to $25,000); BCRA § 102 (raising amount individuals can

donate to state parties from $5,000 to $10,000); FECA § 315(a)(1); 2 U.S.C. §

441a(a)(1)(D). Contribution limitations to parties, however, have been upheld indirectly,

see Buckley, 424 U.S. at 38 (upholding FECA's $25,000 limitation on total contributions,

which included "huge contributions to the candidate's political party"), and in dictum, see

Colorado I, 518 U.S. at 617 (recognizing $20,000 contribution limit to political parties

and citing 2 U.S.C. § 441a(a)).

10 If a contribution limitation survives a claim that it infringes associational rights,

then it also survives a speech challenge. See Shrink Missouri, 528 U.S. at 388. Note also

that the challenge based on the donor's associational right is "correlative" to an

overbreadth challenge. See id. at 388 n.3.

12

recognized Congress's power through FECA8

 to regulate, in effect, the source and amount of

contributions to political parties and candidates that donors could make for the purpose of

influencing federal elections.

9

 In enacting such contribution limitations Congress had to

demonstrate that it was doing so in furtherance of the important government interest of

preventing actual or apparent corruption of either the officeholder or the federal electoral

system. Buckley, 424 U.S. at 25; see, e.g., Citizens Against Rent Control/Coalition for Fair

Housing v. City of Berkeley, 454 U.S. 290, 298-99 (1981); Nixon v. Shrink Missouri Gov't

PAC, 528 U.S. 377, 387-88 (2000).10 Indeed, in addressing contribution limitations,
13

preventing actual or apparent corruption is the only government interest the Supreme Court

has found sufficient to interfere with associational rights. FEC v. National Conservative

Political Action Comm. ("NCPAC"), 470 U.S. 480, 496-97 (1985). In Buckley, the Supreme

Court explained: 

To the extent that large contributions are given to secure a political quid pro

quo from current and potential office holders, the integrity of our system of

representative democracy is undermined . . . . Of almost equal concern as the

danger of actual quid pro quo arrangements is the impact of the appearance of

corruption stemming from public awareness of the opportunities for abuse

inherent in a regime of large individual financial contributions.

424 U.S. at 26-27. In each case where the Supreme Court upheld contribution limitations,

see supra note 9, the Court reviewed those limits under Buckley's "closely drawn" scrutiny, a

standard of review somewhat less rigorous than strict scrutiny, by which "[e]ven a

significant interference with protected rights of political association may be sustained if the

State demonstrates a sufficiently important interest and employs means closely drawn to

avoid unnecessary abridgement of associational freedoms." Buckley, 420 U.S. at 25

(internal quotations omitted); see also California Medical Ass'n v. FEC ("California

Medical"), 453 U.S. 182, 196, 196 n.16 (1981).

Nevertheless, the plaintiffs argue, and Judge Henderson agrees, that any limitation on

a national party's ability to raise and use nonfederal money must pass muster under the

strict-scrutiny standard of review that the Supreme Court has traditionally applied to analyze

expenditures. See, e.g., Republican National Committee ("RNC") Opening Br. at 51-53. I

disagree. 
11 That is, Section 323(a) limits an individual, wishing to express his political

agenda, to donations of hard money up to $25,000, the limitation on contributions to

parties under FECA. 2 U.S.C. § 441a(a)(1)(B); see also BCRA § 307(a)(2) (raising how

much individuals can contribute to national parties from $20,000 to $25,000).

12 This standard of review applies to all donation restrictions under Title I of

BCRA.

13 Since the practical effect is that any restriction on solicitation is subsumed within

the restriction on receipt of donations, which I maintain should be reviewed under

closely-drawn scrutiny, there is no reason to apply a different standard of review for the

solicitation restriction. In the end, if the political parties are restricted from receiving

nonfederal donations for federal purposes, then they are restricted from soliciting funds

for those purposes as well.

14

While I agree that Section 323(a)'s prohibitions on soliciting, receiving, and using

nonfederal funds restricts a party's ability to spend nonfederal money, their principal effect

is to limit the ability of future donors through their contributions to use the national parties

to amplify their voices.11 Therefore, in determining to what extent Congress can limit

donations to national and state parties,12 this Court should review the limitations using the

closely-drawn standard of review applied to contribution limitations in Buckley, 420 U.S. at

25, and ensuing campaign finance cases,13 in which the Court specifically acknowledged

"that restrictions on contributions require less compelling justification than restrictions on

independent spending." FEC v. Massachusetts Citizens for Life, Inc. ("MCFL"), 479 U.S.

238, 259-60 (1986); see also Shrink Missouri, 528 U.S. at 387. The Supreme Court lowered

the hurdle for contributions, see Shrink Missouri, 528 U.S. at 387-88, because restrictions on

contributions, in its judgment, impact associational rights less by leaving "the contributor

free to become a member of any political association and to assist personally in the
14 See McConnell Opp'n Br. at 17; see also J. Henderson Op. at Part IV.D.1.a.

15 Justice Marshall observed: 

[T]his Court has always drawn a distinction between restrictions on

contributions, and direct limitations on the amount an individual can expend

for his own speech. . . . Because the Court's opinion is silent on the standard

of review it is applying to this contributions limitations, I must assume that

the Court is following our consistent position that this type of government

action is subjected to less rigorous scrutiny than a direct restriction on

expenditures. 

Citizens Against Rent Control, 454 U.S. at 301 (Marshall, J., concurring).

15

association's efforts on behalf of candidates," id. at 387 (quoting Buckley, 424 U.S. at 22)

(internal quotations omitted), and by not preventing "political committees from amassing the

resources necessary for effective advocacy," Buckley, 424 U.S. at 21. Surely, these reasons

for applying a lower standard of scrutiny for donations to candidates and their political

committees are no less persuasive for analyzing contributions to political parties.

The plaintiffs, nevertheless, maintain that in Citizens Against Rent Control, which

involved limitations on contributions to political committees with the purpose of supporting

or opposing ballot measures, 454 U.S. at 291, the Supreme Court settled on strict-scrutiny

review for contribution limitations to political organizations.14 This conclusion is not based

on a close enough reading of the case. While the plurality does suggest the undefined

standard of "exacting judicial scrutiny," Citizens Against Rent Control, 454 U.S. at 294, 298,

the three concurring justices either specifically applied closely-drawn scrutiny, id. at 301

(Marshall, J., concurring),15 or equated the plurality's "exacting scrutiny" with Buckley's
16 Although "exacting judicial scrutiny" is oft-cited, its parameters are loosely

defined in other cases as well. The Supreme Court, for example, employed the phrase

"exacting scrutiny" when reviewing FECA's disclosure requirements in Buckley, 424 U.S.

at 64, explaining that the government interest must be "sufficiently important," id. at 66,

and "substantial," id. at 80. To give another example: in First National Bank of Boston v.

Bellotti, the Supreme Court applied "exacting scrutiny" to contribution and expenditures

limitations on corporations; it stated that the government must show a "compelling"

interest, 435 U.S. 765, 786 (1978) (quoting Bates v. City of Little Rock, 361 U.S. 516, 524

(1960)), and that the interest must be "closely drawn to avoid unnecessary abridgment,"

Bellotti, 435 U.S. at 786 (quoting Buckley, 424 U.S. at 25). In any event, since it is

uncontroverted that preventing actual and apparent corruption is a "compelling"

government interest, see, e.g., NCPAC, 470 U.S. at 496-97, the only remaining dispute is

whether any donation restriction need be "narrowly tailored" or "closely drawn" to serve

the compelling government interest in combating corruption. And Buckley, coupled with

the various opinions in Citizens Against Rent Control, seemingly foreclose that question

in favor of Buckley's closely-drawn scrutiny.

16

closely-drawn scrutiny, id. at 302 (Blackmun, J., & O'Connor, J., concurring).16 Thus, if

anything, Citizens Against Rent Control suggests that closely-drawn scrutiny should apply,

even if the political organization is established exclusively for a purpose unrelated to federal

campaigns. Restrictions on national political parties, which engage in both candidatespecific and issue-oriented activities, do not deserve to be treated with greater vigilance. 

Indeed, considering the standard of review adopted by the Supreme Court in Citizens

Against Rent Control and the fact that contribution regulations are less jarring of

associational rights than are expenditure restrictions, restrictions on donations to political

parties should be similarly regulable if they are closely drawn to serve the compelling

government interest of preventing corruption and its appearance.
17 If they had been intended by the donor to influence federal elections, they should

have been treated, at the time they were received, as federal money. As stated earlier, the

Supreme Court has, in effect, upheld limitations on contributions to political parties, see

supra note 9, and a "contribution," as defined by FECA, is a donation "for the purpose of

influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i).

18 This so-called "loophole" was created through Federal Election Commission

("FEC") advisory opinions. See McCain Dep. at 63 (stating that BCRA will "close

certain loopholes that have been opened by the FEC, not through acts of Congress"); FEC

Advisory Op. 1995-25; FEC Advisory Op. 1979-17; FEC Advisory Op. 1978-10.

19 See, e.g., McCain Dep. at 192-93 (explaining that grassroots activities are "the

fundamentals of a democratic process" and that "it's the broadcast television and radio ads

that we believe are what is the problem"); Meehan Dep. at 218-19 (explaining that voter

mobilization efforts are "good for the system" and distinguishing those efforts from

candidate advocacy).

17

2. Donations Used to Directly Affect Federal Elections are Regulable by

Congress

Section 323(a) of BCRA seeks to expand Congress's authority to regulate donations

that by definition did not appear to be regulable under FECA because, ostensibly, they were

not given for the purpose of influencing federal elections.17 It does so in sweeping fashion: 

national parties "may not solicit, receive, . . . direct . . . transfer, or spend any funds that are

not subject to the limitations, prohibitions, and reporting requirements of this Act." BCRA §

101; FECA § 323(a); 2 U.S.C. § 441i(b)(1). Congress seeks this expansion, principally,

because the national parties have increasingly, over the past decade, exploited a so-called

"loophole"18 in FECA that fails to regulate the use of these nonfederal funds for various

types of electioneering communications that advocate the election or defeat of a specifically

identified candidate.19 
20 Even the plaintiffs acknowledged that "[i]f BCRA limited only party activities

directly related to federal candidates, Defendants might have the better argument."

California Democratic Party ("CDP)/California Republican Party ("CRP") Reply Br. at 9.

21 See supra note 9.

18

The defendants contend that Congress, in its attempt to close this "loophole," can

limit any donation to a national party, regardless of the purpose for which it is used

thereafter. See Intervenors Opp'n Br. at 26. I disagree. The plaintiffs, on the other hand,

contend that Congress can only limit donations that are funneled thereafter through the party

as coordinated expenditures, direct contributions to candidates, or uncoordinated

expenditures for express advocacy as defined by the "magic words." See, e.g., McConnell

Opening Br. at 36; McConnell Opp'n Br. at 25-26; see also Buckley, 424 U.S. at 44 n.52

(providing examples of "express words of advocacy"). With that I disagree, as well. Both

contentions are calculatingly indifferent to what reason, and precedent, have shown to be the

only constitutionally viable antidote to corruption or its appearance: restrictions on

donations to political parties based upon their use to directly affect federal elections.

20 In

this sense, from my perspective, the issue before the Court is not whether Congress can limit

donations to political parties,

21 but to what extent it can do so. 

In Shrink Missouri, the Supreme Court made it clear that the amount of evidence

needed to satisfy judicial scrutiny of restrictions on associational rights depends on the

"novelty and plausibility of the justification raised." 528 U.S. at 391. Here, Congress relies

upon the government interest of preventing actual and apparent corruption to justify the
22 There is no disagreement that political parties use donations for federal purposes. 

See Findings 30-52; see also Colorado II, 533 U.S. at 449 ("Parties are . . . necessarily the

instruments of some contributors whose object is . . . to support a specific candidate for

the sake of a position on one, narrow issue, or even to support any candidate who will be

obliged to the contributors."). Political parties, inter alia, provide direct contributions to

candidates, see 2 U.S.C. § 441a(a)(2)(A) (setting contribution limit by political

committees to candidates at $5,000); Buckley, 424 U.S. at 35-36, make expenditures in

coordination with a federal candidate, see § 441a(d) (setting party expenditure limits);

Colorado II, 533 U.S. at 464 (upholding § 441a(d) only as applied to coordinated

expenditures), and spend money on uncoordinated candidate advocacy, both express and

nonexpress. 

23 See infra Part I.B.2.

19

restrictions on nonfederal funds. When nonfederal funds are being used by national parties

for nonfederal or mixed purposes, the government's interest in preventing corruption or its

appearance to justify this restraint is so novel, and implausible, that it requires a substantial

amount of evidence to withstand constitutional scrutiny. However, when nonfederal funds

are being used by national parties for the federal purpose of directly benefitting the election

of candidates22 through either express advocacy or "issue" advocacy of the type defined in

Section 301(20)(A)(iii),23 the government's use of that interest to justify congressional

intervention is neither novel, nor implausible, because the risk of corruption, see infra Part

I.B.2, naturally flows from circumstances where a donor's contribution to a party is used

thereafter to directly benefit a candidate's campaign. Indeed, as I discuss at length in the

later in relation to Section 301(20)(A)(iii), id., the record overwhelmingly demonstrates that

candidates are aware of who makes the large soft money donations, and in many instances,

participate in raising money from them. Furthermore, the record clearly establishes that the
24 See, e.g., RNC Opp'n Br. at 37 (conceding that Buckley and its progeny indicate

that contributions to a party may be regulated and subjected to a federal contribution limit

"only to the extent the entity uses the contributions for regulable activity," which includes

"independent expenditures expressly advocating the election or defeat of federal

candidates"); id. (stating that money political parties receive for express advocacy "may

constitutionally be subjected to a federal contribution limit"); McConnell Opening Br. at

36, 37-38 (admitting that a contribution to be used for activities that exclusively serve to

get a candidate elected, like express advocacy, can be corrupting).

20

public perceives that those large soft money donors receive special access to the legislators

and have special influence on the legislative process. Id.

The notion that using donations for a federal purpose can implicate corruption is

consistent with Congress's definition of "contribution" in FECA: "any gift, subscription,

loan, advance, or deposit of money or anything of value made by any person for the purpose

of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i) (emphasis added). 

This definition of contribution was part of FECA when the Supreme Court upheld

contribution limitations in Buckley, stating that a donation is regulable (that is, a

"contribution") because "it is connected with a candidate or his campaign," thus having "a

sufficiently close relationship" to the government interest in preventing actual or apparent

corruption. 424 U.S. at 78. Additionally, the contention that a party's use of a donation to

influence a federal election is conducive to corruption, or its appearance, is also supported

by the widely accepted premise that Congress can restrict donations used for party express

advocacy as defined by the so-called "magic words" requirement of Buckley. Indeed, the

plaintiffs concede as much,24 and this is perfectly consistent with the regulatory scheme that
25 See FEC Advisory Op. 1995-25 (not allowing use of nonfederal funds to pay for

any portion of party express advocacy). One of the reasons that parties should not be able

to fund uncoordinated express advocacy with nonfederal funds is that if such a restriction

did not exist, corporations and labor unions could simply evade the limitations on their

use of their general-treasury funds for express advocacy by funneling those funds through

the parties. See 2 U.S.C. § 441b; MCFL, 479 U.S. at 241-64 (upholding prohibition

against using corporate treasuries to fund uncoordinated expenditures for express

advocacy).

21

was propagated by the FEC.25 Surely, if donations used for express advocacy can be limited

to prevent corruption, then donations used for candidate advocacy that is tantamount to

express advocacy—assuming some minimal "quantum of empirical evidence" of corruption

or its appearance, see Shrink Missouri, 528 U.S. at 391—should be regulable for the same

reason.

The notion that Congress may limit donations based on their use for certain purposes

is also consistent with Supreme Court precedent which intimates that donations closely

connected to a candidate's campaign—even if they are not direct contributions or

coordinated expenditures—raise, at a minimum, the specter of corruption. In First Bank of

Boston v. Bellotti, the Court rejected a Massachusetts statute prohibiting corporations from

making contributions or expenditures to influence the vote on referendum proposals. 435

U.S. 765, 787-95 (1978). In rejecting the statute, the Court explained that the interests in

preventing corruption and thus preserving the integrity of the electoral process were not

served by limiting contributions and expenditures that affected referendum discussion. Id. at

789-92. The Court stated: "Referenda are held on issues, not candidates for public office. 

The risk of corruption perceived in cases involving candidate elections simply is not present
26 Not surprisingly, the defendants rely on California Medical for the proposition

that Congress can regulate all donations to political organizations, see, e.g., RNC Opp'n

Br. at 36; the plaintiffs equally rely on Citizens Against Rent Control for their contention

that Congress cannot regulate any donations to such organizations, see, e.g., Gov't

Opening Br. at 65-66. Again, both positions sweep too far and cannot be reconciled

without parsing the Supreme Court's rationales in the two cases. 

22

in a popular vote on a public issue." Id. at 790. Alternatively, one can infer that perceived

corruption is likely to be present in cases involving candidate elections.

The extent to which certain uses of donations create the risk of corruption was also at

issue in both California Medical, 453 U.S. at 193-201, and Citizens Against Rent Control,

454 U.S. at 292-300, where the Court considered donations to organizations, not candidates. 

It is difficult to reconcile these two cases without drawing the conclusion that the Court was

primarily concerned with the purpose for which the organizations were using the

donations.26 In California Medical, the Court held that Congress can restrict the amount of

donations to multicandidate political committees "which advocate[] the views and

candidacies of a number of candidates." 453 U.S. at 197. Multicandidate political

committees assuredly spend some of their funds on "independent expenditures," as the Court

in California Medical concedes, id. at 195-96, but the Court seemingly concluded that those

uncoordinated expenditures, by a "multicandidate" political committee, are made on behalf

of candidates, whether direct contributions or uncoordinated expenditures. See 2 U.S.C. §

441a(a)(4) (defining multicandidate political committee as a political committee "which has

received contributions from more than 50 persons, and . . . has made contributions to 5 or

more candidates for Federal office."). The Court said as much when it dismissed the
23

ACLU's concerns that donation restrictions would hinder the PAC's efforts to collectively

express political views. California Medical, 455 U.S. at 197 n.17. Restricting contributions

to committees like the one at issue in California Medical, the Court maintained, is different

than efforts to regulate groups expressing common political views. Id. In this sense, the

nature of the organization—that it is established solely to benefit federal candidates—was

enough to conclude that most, if not all, of its contributions and expenditures were for the

purpose, and had the effect, of benefitting a federal candidate. Conversely, in Citizens

Against Rent Control, where the Court found that the City of Berkeley could not restrict

donations to political committees that support or oppose ballot propositions, 454 U.S. at

295-300, the organization was established exclusively to advocate on behalf of a public

issue, id. at 291 (explaining that the issue before the Court was whether donations to

associations "formed to support or oppose ballot measures" could be regulated). That the

association was formed only to oppose a public issue and that its speech was unrelated to

candidates in any way, id. at 296-98, led the Court to find that the restriction "does not

advance a legitimate governmental interest significant enough to justify its infringement of

First Amendment rights," id. at 299. 

Of course, political parties are unique; they are neither super multicandidate political

committees formed entirely to support candidates for federal office nor political associations

completely uninvolved in candidate advocacy. Justice Kennedy described political parties

this way: 
27 One Republican National Committee ("RNC") official explained his party this

way: 

The RNC achieves [its core principles] through three primary means: (1)

promoting an issue agenda advocating Republican positions on issues of

local, state, regional, national, and international importance; (2) electing

candidates who espouse these views to local, state and national offices; and

(3) governing in accord with these views. . . . [T]he RNC often seeks to

promote Republican positions on important issues, even in contexts outside

elections.

Josefiak Decl. ¶ 22.

28 See J. Henderson Op. at Part IV.D.1.c (arguing that "Congress cannot

constitutionally regulate non-federal donations to political parties if the funds are then

spent independently of a candidate").

24

Political parties have a unique role in serving [the principle of open, robust

debate on public issues]; they exist to advance their members' shared political

beliefs. . . . A political party has its own traditions and principles that

transcend the interests of individual candidates and campaigns; but in the

context of particular elections, candidates are necessary to make the party's

message known and effective, and vice versa.

Colorado I, 518 U.S. at 628 (Kennedy, J., concurring in the judgment and dissenting in part)

(citations omitted).27 With such varying purposes, national political parties merit a hybrid

treatment in regulating the funds donated to them. 

Further, Colorado I and Colorado II do not preclude Congress from regulating

donations that directly affect federal elections, even if the parties use those funds

independently of the candidates28 and even if there is no coordination between the donor and

the candidate. In Colorado I, the Supreme Court merely found that Congress could not limit

uncoordinated party expenditures. 518 U.S. 617. Indeed, the Court even reiterated that

Congress has every power to limit the amount of donations to parties that are "used for
29 The Supreme Court also noted that the opportunity for corruption posed by

nonfederal contributions to a party for certain activities, such as supporting state

candidates or voter mobilizations efforts, is "at best, attenuated" because "[u]nregulated

'soft money' contributions may not be used to influence a federal campaign." Colorado I,

518 U.S. at 616. That observation implies that if soft money were being used "to

influence a federal campaign," the opportunities for corruption would be less attenuated,

perhaps even palpable. Also, note that the Supreme Court's observation that

"[u]nregulated 'soft money' contributions may not be used to influence a federal

campaign," id., preceded the 1996 explosion of party candidate advocacy financed with

nonfederal funds. See Mann Expert Report at 17-21. From 1996 until the enactment of

BCRA, the parties used nonfederal funds for the exact purpose that the Supreme Court

stated those funds cannot be used for: "to influence a federal campaign." Colorado I, 518

U.S. at 616.

30 See Jacobus v. Alaska, 182 F. Supp. 2d 881, 889 (D. Alaska 2001) (explaining

that there is no appearance of corruption from political party "donations of time, money

and services . . . not being made for nominating and electing candidates" and holding that

"donations to political parties for purposes other than nominating or electing purposes

(e.g., issue advocacy, voter registration) may not constitutionally be considered

contributions subject to regulation . . . .").

25

independent party expenditures for the benefit of a particular candidate." 518 U.S. at 617. 

Thus, if anything, Colorado I serves to bolster the proposition that Congress can regulate

donations used "for the benefit of a particular candidate" because that is where "the greatest

danger of corruption" arises. Id.29 Reading Colorado I together with Buckley, Bellotti,

Citizens Against Rent Control, and California Medical leaves one with a clear impression: 

donations used directly for the purpose of uncoordinated federal activity, like express

advocacy, can engender corruption, or the appearance thereof, and are therefore regulable.30

Finally, Colorado II, in which the Supreme Court determined that Congress could limit the

amount of coordinated party expenditures, 533 U.S. at 440-65, is relevant because it stands

for the proposition that a contribution by the party to the candidate, even absent coordination
31 As one RNC official testified: "The RNC's national focus should not be

misunderstood as a federal focus. Rather, given the RNC's state-based structure, it is not

surprising that the RNC actually focuses many of its resources on purely state and local

election activity." Josefiak Decl. ¶ 19. I agree. In 1999 and 2001, the RNC contributed

over $9.5 million dollars, using nonfederal funds, directly to state and local candidates. 

26

between the donor and candidate, can be regulated. Thus, donations to political parties used

thereafter for purposes that directly affect federal elections, such as candidate "issue ads,"

even if there is no coordination between the donor and the candidates in advance of the

donations to the party, should likewise be regulable. Common sense and the evidence

introduced by the defendants support that conclusion. See infra Part I.B.2. And, until such

time as Buckley and its progeny are overruled, allowing such donations to occur without

regulation is an affront to a regulatory system that has been blessed by the Supreme Court

and in place since the adoption of the 1974 amendments to FECA.

3. New FECA Section 323(a) Unconstitutionally Regulates the Use of Nonfederal

Funds for Nonfederal and Mixed Purposes

As sure as the evidence, legal precedent, and common sense support Congress's

power to regulate the use of nonfederal funds for federal purposes, they do not support

Congress's effort to regulate nonfederal funds used for nonfederal and mixed purposes.

National parties need to raise and use nonfederal funds for a variety of purposes. 

Sometimes they raise and use nonfederal funds for the nonfederal purpose of contributing to

state and local candidates in "off-year" elections when there are no federal candidates on the

ballot.31 Other times they need to raise and use funds for mixed purposes that only indirectly
Banning Decl. ¶ 28(a); see also Findings 57-59 (explaining, inter alia, that five states

hold elections in odd-numbered years). For example, the RNC contributed approximately

$500,000 to the 1999 Republican gubernatorial candidate in Virginia. La Raja Decl. ¶ 14. 

In the last two off-year elections, the RNC also transferred over $10 million to state

parties and made over $1 million dollars in direct expenditures, bringing the total to $21

million dollars, not including administrative overhead, spent on the two elections where

no federal candidates appeared on the ballot. Banning Decl. ¶ 28(a). In 2001 alone, the

RNC spent $15.6 million on nonfederal activities (contributions to state and local

candidates, transfers to state parties, and direct spending). That $15.6 million dollars

represented 30 percent of all nonfederal money raised that year by the RNC. See Hearing

Tr. (Dec. 4, 2002) at 43 (statement of Burchfield). Thus for elections in which there is no

federal candidate on the ballot, the RNC contributes directly to state and local candidates,

trains state and local candidates, and funds communications calling for election or defeat

of state and local candidates. See id.; Josefiak Decl. ¶¶ 19, 41-59; La Raja Decl. ¶ 14; see

also Bok Cross Exam. at 34-35. Even defendants' expert Thomas E. Mann agreed that

donations to a gubernatorial candidate in an odd-numbered year is not something that is

intended to affect a federal election. Cross Exam. of Def. Expert Mann at 71. 

Of course, the RNC made direct contributions to state and local candidates during

even-numbered years as well, see Josefiak Decl. ¶ 61, and "sometimes devote[d]

significant resources toward states with competitive gubernatorial races even though the

races for federal offices [were] less competitive," Josefiak Decl. ¶ 62.

32 Portions of RNC transfers to state and local parties were used for voter

mobilization efforts. One RNC official testified that "RNC transfers of non-federal funds

to the state parties play a critical role in subsidizing the activities of the state parties. The

state parties depend on these funds to pay for everything from their own administrative

overhead to voter mobilization, grass roots organizing, and media." Banning Decl. ¶ 31;

see also Duncan Decl. ¶¶ 11-12. In 2000, for example, the RNC transferred

approximately $25 million in nonfederal funds to the Republican's Victory Plans, which

were plans tailored to each state's needs and designed to mobilize voters on behalf of all

the candidates on the ticket. Josefiak Decl. ¶¶ 25-40. Money for the Victory Plans was

not spent on federal candidate "issue ads," Josefiak Decl. ¶ 31, and was used primarily to

benefit state and local candidates, see Peschong Decl. ¶¶ 4, 8-9 (stating that "the RNC

typically provides a very substantial share of the funding of state victory programs,"

which are "programs designed to support the entire Republican ticket, and frequently

place more emphasis on high profile state-wide races than on federal races, especially

27

affect the election of federal candidates, such as generic voter mobilization efforts and

genuine issue advertisements.32 The defendants do not deny that the national parties use
when no federal candidate is running state-wide"). Other examples of mixed activities

include party newsletters, administrative overhead, training seminars on get-out-the-vote

activities, and fundraising assistance to state and local parties. See Findings 71-99.

Considering the national parties' extensive involvement in so many nonfederal and

mixed activities, it is not surprising that the Supreme Court has recognized that political

parties do not use all of their donations to affect federal elections, explaining in Colorado

I that FECA permits unregulated 'soft money' contributions for certain nonfederal and

mixed purposes. 518 U.S. at 616 ("We also recognize that FECA permits unregulated

"soft money" contributions to a party for certain activities, such as electing candidates for

state office, or for voter registration and "get out the vote" drives.") (internal citations

omitted).

28

nonfederal funds for both nonfederal and mixed purposes that at the most indirectly affect

federal elections. They contend, nonetheless, that nonfederal donations to national

parties—regardless of their use—create actual or apparent corruption. See Intervenors

Opp'n Br. at 26. To support that expansion of Congress's power in contravention of the First

Amendment rights of the donors and national parties, the defendants would have to

demonstrate that using nonfederal funds for either nonfederal or mixed purposes gives rise

to either corruption or an appearance of corruption, such that the blanket restriction on

nonfederal funds is not overbroad. For the following reasons, they have not done so. 

First, the suggestion that the appearance of corruption, let alone actual corruption,

exists regardless of any perceived, or actual, benefit to a federal candidate does not comport

with the conventional legal understanding of corruption and apparent corruption. The

Supreme Court has defined corruption as something more than a quid pro quo arrangement

in which a legislator sells his vote for one or more contributions to his campaign, see, e.g.,

Colorado II, 533 U.S. at 440-41, as well as "improper influence" or conduct by a donor that
33 See, e.g., Buckley, 424 U.S. at 25; NCPAC, 470 U.S. at 497; see also Black's

Law Dictionary 1261 (7th ed. 1999) (translating quid pro quo as "something for

something"). Defense expert Donald P. Green explained that corruption, whether quid

pro quo or otherwise, "redound[s] to the personal benefit of the candidate seeking to win

election." Green Expert Report at 20. 

Judge Kollar-Kotelly's belief that, notwithstanding my statements to the contrary, I

am narrowly construing the definition of corruption as "something akin to bribery" is, in

my judgment, an inaccurate reading of my opinion. See J. Kollar-Kotelly Op. at Part

III.II.B.2.a.i. That said, regardless of how you describe the acts by an officeholder that

are "contrary to their obligations of office," NCPAC, 470 U.S. at 497; see, e.g.,

29

results in a legislator who is "too compliant" with the donor, Shrink Missouri, 528 U.S. at

389. Of course, the Supreme Court has also recognized that Congress has an equally

compelling government interest in preventing the appearance of corruption in the public's

mind. Id. at 390; Buckley, 424 U.S. at 27. The reason for this is simple: like corruption

itself, the appearance of corruption undermines the public's confidence in our system of

government and frustrates participation in the political process by causing the public to

believe elected representatives are not acting independently of the individuals, corporations,

and unions who contribute to representatives' campaigns and parties. Shrink Missouri, 528

U.S. at 390. Indeed, contribution limits to federal candidates and parties were enacted, and

have been upheld by the Supreme Court, to prevent this very perception in the mind of the

public. Id.; Buckley, 424 U.S. at 23-35. And it has been Congress's province to set the

dollar limit above which this perception starts to ferment. See Buckley, 424 U.S. at 30;

Shrink Missouri, 528 U.S. at 397. Thus, whether the corruption is actual or perceived, every

traditional and accepted definition to date depends on the donor conferring, or being

perceived as having conferred, a benefit on the candidate in return for something.33 In
Intervenors Opening Br. at 43 ("legislative effort") (quoting Green Expert Report at 23-

24); Gov't Reply Br. at 15-16 ("access"); Shrink Missouri, 528 U.S. at 389 ("politicians

too compliant with the wishes of large contributors"), the more telling portion of the

corruption equation for the purpose of understanding my opinion is the Supreme Court's

description of the prospective benefit to the officeholder that supposedly influences him

to act: "the prospect of financial gain to themselves or infusions of money into their

campaign." NCPAC, 470 U.S. at 497. Only an actual or potential benefit of the kind

described by the Supreme Court can lure an officeholder into conduct sufficiently

corrupting to warrant Congress's regulation.

30

NCPAC, for example, the Supreme Court defined corruption in the following way: 

"Corruption is a subversion of the political process. Elected officials are influenced to act

contrary to their obligations of office by the prospect of financial gain to themselves or

infusions of money into their campaigns." 470 U.S. at 497. Without financial gain to

themselves or money into their campaigns, why would candidates elect to act contrary to

their obligations? In short, since donations cannot logically foster corruption, or its

appearance, unless the candidate benefits or appears to benefit in some way, donations to a

party with no prospect that they will be used to directly affect the candidate's election,

cannot, absent substantial evidence to the contrary, give rise to either actual or apparent

corruption.

Second, the defendants' contention, in essence, that Congress can regulate the use of

soft money donations by national parties for either nonfederal, or mixed, purposes is equally

unsupportable by the record and common sense. If a national party uses nonfederal funds to

support generic voter registration, or to conduct training seminars for state parties on getout-the vote activities, the benefit to the federal candidate, assuming his election is even
34 Judge Kollar-Kotelly references in her opinion an identical statement by officials

of the four national party congressional committees describing as "significant" the effect

"that voter identification, voter registration and get out the vote efforts" have on the

election of federal candidates. See J. Kollar-Kotelly Op. at Part III.II.B.2.b.ii. That

"combined" statement is not in my judgment proof per se that such efforts (either

individually or collectively) directly affect federal elections. Indeed, there is no

quantitative evidence in the record demonstrating the extent to which voter registration,

voter identification, and get-out-the-vote efforts assist federal candidates, as opposed to

the far greater number of state and local candidates that appear on the ballot. 

Determining that, of course, is exacerbated by the practical reality that congressional

races in many states are either noncompetitive, or uncontested. Simply stated, there is no

way of knowing the election impact value of what is considered "significant" in the eyes

of these party officials. Moreover, because these officials do not specify which, if any, of

these were "generic" efforts, there is no way of knowing whether the activities to which

they are referring were crafted in a way to specifically turn out voters for particular

federal candidates. Of course, if they had been, they would not be permissible under this

Court's ruling today. See supra Part I.A.2 & infra Part I.B.2. As a result, I accord limited

probative value to these identical statements on this point.

31

being contested, is attenuated at best, Colorado I, 518 U.S. at 616, because it is generic in

nature and diluted among a far greater number of state and local candidates. See infra Part

I.B.1. No credible evidence has been submitted by the defendants that demonstrates that

federal candidates either are, or are perceived to be, indebted to donors as a result of such

mixed-purpose party activities.34 Moreover, donations used for generic issue advertisements

that may be helpful to both state and federal candidates, another example of a mixedpurpose activity by a party that indirectly affects federal elections in a way unlinked to any

particular candidate's election or re-election, also do not foster actual or apparent corruption. 

Political parties, like many other political organizations, engage in noncandidate-related
35 See Josefiak Decl. ¶ 91(e) ("The RNC seeks to educate the public about the

positions for which the Republican Party stands."); La Raja Decl. ¶ 16 ("Political parties

use nonfederal funds to develop and disseminate political messages."); Colorado I, 518

U.S. at 616 (recognizing that "a political party's independent expression . . . reflects its

members' views about the philosophical and governmental matters that bind them

together"); id. at 629 (Kennedy, J., concurring in part and dissenting in part) (explaining

that political parties "exist to advance their members' shared political beliefs").

32

speech (i.e., genuine or pure issue ads) to influence public opinion on issues of the day.35

Just recently, for example, the RNC funded a generic issue advertisement on the radio that

touted the Republican's education proposal. It broadcasted the following:

Male: Every child can learn . . . 

Female: . . . and deserves a quality education in a safe school.

Male: But some people say some children can't learn . . .

Female: . . . so just shuffle them through.

Male: That's not fair.

Female: That's not right.

Male: Things are changing. A new federal law says every child deserves to

learn.

Female: It says test every child to make sure they're learning and give them

extra help if they're not.

Male: Hold schools accountable. Because no child should be in a school that

will not teach and will not change.

Female: The law says every child must be taught to read by the 3rd grade. 

Because reading is a new civil right.

Male: President Bush's No Child Left Behind Law.

Female: The biggest education reform and biggest increase in education

funding in 25 years.

Male: Republicans are working for better, safer schools . . .

Female: . . . so no child is left behind.

Male: That's right . . . Republicans.

Anncr: Learn how Republican education reforms can help your children. Call .

. . . Help President Bush and leave No Child Behind.

Josefiak Decl. ¶ 91(e) & Exhibit X. While pure issue advocacy, like the above
36 See Buckley, 424 U.S. at 42-43, 43 n.50 ("Public discussion of public issues . . .

tend naturally and inexorably to exert some influence on voting at elections." (quoting

Buckley v. Valeo, 519 F.2d 821, 875 (D.C. Cir. 1975))).

37 BCRA §101; FECA § 323(b); 2 U.S.C. § 441i(b)(1); BCRA § 101; FECA §

301(20)(A); 2 U.S.C. § 431(20)(A). The state and local parties could also presumably use

nonfederal funds for all other mixed activities not included within Section 301(20)(A)'s

definition of "federal election activity." 

38 In United States v. National Treasury Employees Union ("NTEU"), 513 U.S.

454, 473-75 (1995), the Supreme Court rejected a complete ban on honoraria for

government employees because, in part, Congress exempted certain speeches that had no

nexus to the government employment, explaining that the exemption "cast serious doubt

on the Government's submission" that the honoraria was so "threatening . . . as to render

the ban a reasonable response to the threat." Id. at 473. The Court thus found that

Congress's exemption undermined application of the ban to speeches without a

connection to government employment: "[a]bsent such a nexus, no corrupt bargain or

even appearance of impropriety appears likely." Id. at 474; see also City of Ladue v.

Gilleo, 512 U.S. 43, 52 (1994) (observing that exemptions "may diminish the credibility

of the government's rationale for restricting speech in the first place"). 

Further, Congress's decision to only restrict state and local parties from using

nonfederal funds for candidate advocacy, see BCRA § 101; FECA § 301(20)(A)(iii); 2

U.S.C. § 431(20)(A)(iii), reinforces the premise that actual or apparent corruption

manifests only when there is a nexus to a federal candidate.

33

advertisement, can indirectly affect a federal election,36 it is unlikely, and there is no

evidence to the contrary, that candidates will feel indebted to those who helped fund such

advertisements. Moreover, the fact that state and local parties would still be able to use

nonfederal money to engage in genuine issue advocacy37 serves to undermine Section

323(a)'s complete ban on national parties being able to do the same.38 Lastly, if the above

analysis is true with regard to the inability to demonstrate even an appearance of corruption

when nonfederal funds are being used for mixed purposes that indirectly affect a federal

election, it is even more true when the purpose is nonfederal and has no effect on any
39 See Intervenors Opp'n Br. at 26-27 (explaining that "without regard to how soft

money is ultimately spent, . . . the parties reward [federal candidates and officeholders]

for raising it" and that "success in the party reinforces stature in the government because

federal officeholders attain leadership positions in Congress partly as a result of their

success as fundraisers" (citing Bumpers Decl. ¶¶ 7-9)).

40 Cf. Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why

Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L.

Rev. 1281, 1313 (1994) ("If candidates did not stand to gain much for their own

campaigns from the money so raised, one doubts that party loyalties (or pressure) would

34

federal candidate's election or re-election. In short, the defendants have provided no legal

basis to restrict a national party's use of nonfederal funds for nonfederal purposes. 

Third and finally, the defendants' contention that candidates, who raise soft money

donations for their national parties, regardless of their subsequent use, are indebted to the

donors due to "internal party benefits" they subsequently receive for raising the nonfederal

donations,39 is equally tenuous from both a theoretical and an evidentiary standpoint, and, in

any event, Section 323(a) remains insufficiently tailored based on that justification to pass

constitutional muster. The defendants' contention is theoretically flawed because it proceeds

from the premise that the corruption, or appearance of corruption, necessary to warrant

congressional intervention can be satisfied by a federal candidate receiving a benefit other

than personal financial gain or direct assistance, monetary or otherwise, to his election

effort. The Supreme Court has never defined corruption, or its appearance, in those terms. 

As stated previously, the only benefit the Supreme Court has based a finding on is "the

prospect of financial gain to themselves or infusions of money into their campaigns." 

NCPAC, 470 U.S. at 497.40 Even if the Court did, however, bless the notion that a
lead to excessive diversion of candidate time to [soft money] fund-raising.").

41 These advertisements clearly show who funds the advertisements, stating in no

uncertain terms at the end of each advertisement: "Paid for by the Republican National

Committee" or "Paid for by Republican Party of Florida." See, e.g., Findings 45 & 46.

42 See Findings 264-67.

35

nonmonetary benefit from someone other than the donor could, under the right

circumstances, give rise to an indebtedness that the public could perceive as "corrupting" its

legislator's independence, there is no evidence on this record that such corruption has either

occurred or is perceived by the public to exist. The evidence relating to the appearance of

corruption, such as it is, only establishes that the public believes there is a connection

between large donations to national parties and the influence and access the pubic believes

the donors receive. See infra Part I.B. It does not, however, establish that this connection

exists independent of how the parties use the funds. If anything, the public's regular

exposure to so-called "issue ads" sponsored by the parties and crafted to help their

candidates,41 combined with its lack of knowledge of the difference between soft and hard

money and its lack of knowledge of the campaign finance regulations (both of which have

been demonstrated),42 should lead this Court to reasonably infer that the public believes that

these donations are used in whole, on in part, by the parties to directly help their candidates. 

It is that perceived benefit, in my judgment, that gives rise to the public's view that

officeholders, either out of gratitude, or in hope of similar future contributions, provide

increased access and influence to those donors. And in light of the utter absence of
43 It has also been suggested by one of the defendants' witnesses that Members of

Congress raising soft money donations receive the additional benefit of helping their

parties retain control of Congress. See Hickmott Decl. Exhibit A ¶ 18. Even assuming,

arguendo, that this benefit is not too attenuated to establish a sense of indebtedness to the

large party donors, it is severely undercut if the parties cannot, as we have held, use large

nonfederal donations to directly assist the election and re-election of their members. See

supra Part I.A.2 & infra Part I.B.2.

36

evidence on the record establishing any other reason that the public believes accounts for

federal officeholders granting increased influence and access to those who give large

donations to their party, this Court should infer the same. In any event, the defendants'

argument is flawed because their supposed internal-party-benefit rationale was not even

relied upon by Congress to limit the national parties use of nonfederal funds. If it had been,

Congress would have only restricted nonfederal funds that federal candidates themselves

solicited. Thus, Section 323(a)'s sweeping restriction, even if acceptable theoretically and

factually based on the internal-party-benefit rationale, is not sufficiently tailored to "alleviate

[the] harm in a direct and material way." Turner Broadcasting Sys., Inc. v. FCC ("Turner

I"), 512 U.S. 622, 664 (1994).43

In sum, conduct which only indirectly affects a federal election requires a greater

degree of evidence of corruption, or appearance thereof, to warrant congressional regulation. 

Thus, in the absence of sufficient proof to warrant expanding FECA in this direction,

Congress may only prohibit the national parties from using nonfederal money for federal

purposes such as those defined in Section 301(20)(A)(iii), which are clearly designed to

directly affect federal elections. The use of nonfederal funds for nonfederal or mixed
44 See also Edward J. Debartolo Corp. v. Florida Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988) ("[E]very reasonable construction must be

resorted to, in order to save a statute from unconstitutionality." (quoting Harper v.

California, 155 U.S. 648, 657 (1895))); Regan v. Time, Inc., 468 U.S. 641, 652 (1984)

("[A] court should refrain from invalidating more of the statute than is necessary.");

Morse v. Republican Party of Va., 517 U.S. 186, 242 (1996) (Scalia, J., dissenting)

(explaining that a court is required to find a "limiting construction or partial invalidation"

that will "remove the seeming threat or deterrence to constitutionally protected

37

purposes, which at the most indirectly affect federal elections, is simply not regulable by

Congress because it does not give rise to corruption or the appearance of corruption. Thus

Section 323(a)'s complete ban on the use of nonfederal funds is not closely drawn to serve

the designated government interest.

4. Severability of New FECA Section 323(a)

Because Section 323(a) prohibits all uses of nonfederal funds by national parties, and

because I only uphold Congress's power to prohibit the use of nonfederal funds for federal

purposes (as defined in Section 301(20)(A)(iii)), see infra Part I.B.2, a considerable issue is

presented as to whether we can isolate and uphold that prohibition from the remaining

undefined, unconstitutional prohibitions in Section 323(a) in a manner consistent with both

the severance clause and Supreme Court precedent. For the following reasons, I believe we

can and should.

It is a "cardinal principle" of statutory construction to save as much of a statute as

possible. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (Hughes,

C.J.).44 Indeed, Congress itself in Section 401 of BCRA provided us with a severability
expression" (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973))); see also

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) (observing that a statute

should be "declared invalid to the extent it reaches too far, but otherwise left intact").

45 The severability clause states: "If any provision of this Act or amendment made

by this Act, or the application of a provision or amendment to any person or

circumstance, is held to be unconstitutional, the remainder of this Act and the

amendments made by this Act, and the application of the provisions and amendment to

any person or circumstance, shall not be affected by the holding." BCRA § 401.

46 See Chapman v. United States, 500 U.S. 453, 464 (1991) (Rehnquist, C.J.) ("The

canon of construction that a court should strive to interpret a statute in a way that will

avoid an unconstitutional construction is useful in close cases, but it is 'not a license for

the judiciary to rewrite language enacted by the legislature.'" (quoting U.S. v. Monsanto,

491 U.S. 600, 611 (1989))); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,

841 (1986) ("Although this Court will often strain to construe legislation so as to save it

against constitutional attack, it must not and will not carry this to the point of perverting

the purpose of statute . . . or judicially rewriting it." (quoting Aptheker v. Secretary of

State, 378 U.S. 500, 515 (1964) (internal quotations omitted))); United States v. Albertini,

472 U.S. 675, 680 (1985) (explaining any attempt "to rewrite language enacted by the

legislature . . . while purporting to be an exercise of judicial restraint, would trench upon

the legislative powers vested in Congress by Article I, § 1, of the Constitution" (citing

Heckler v. Mathews, 465 U.S. 728, 741-42 (1984))); In re Espy, 800 F.3d 501, 505 (D.C.

Cir. 1996).

47 See, e.g., Edenfield v. Fane, 507 U.S. 761, 763 (1993) (rejecting a broad ban on

solicitation only as applied to the business context); Brockett, 472 U.S. at 502-07, 504

(partially invalidating moral nuisance law "only insofar as the word 'lust' is to be

38

clause which directed us to do as much.45 In attempting to save a statute, however, the

Supreme Court has made it clear that a court must take great pains to avoid "rewriting" the

statute.46 Thus, a severability clause, due in part to separation of powers concerns, is merely

an "aid," not a "command," to the judiciary. Nonetheless, the Supreme Court has frequently

found statutory provisions unconstitutional (or constitutional) as to particular applications

without invalidating (or validating) the entire provision.47 In the campaign finance arena,
understood as reaching protected materials"); United States v. Grace, 461 U.S. 171, 175,

183 (1983) (invalidating prohibition of speech activities on Supreme Court grounds "as

applied to the public sidewalks"); see also NTEU, 513 U.S. at 487 (O'Connor, J.,

concurring in the judgment in part and dissenting in part) (citing examples).

48 Specifically, Section 441a(d) states that political parties "may not make any

expenditure in connection with the general election campaign of a candidate in Federal

office in a State who is affiliated with such party which exceeds" $10,000 in a House

campaign and, in a senatorial campaign, the greater of $20,000 or "2 cents multiplied by

the voting age population of the State." 2 U.S.C. § 441a(d)(3).

39

the Supreme Court in Colorado I and Colorado II did not object to severing applications of

Section 441a(d), a FECA provision that caps how much political parties can spend.48 In

Colorado I, the Supreme Court invalidated Section 441a(d) as applied to uncoordinated, or

independent, expenditures. 518 U.S. at 613-20. It then remanded the question of whether

Section 441a(d)'s application to coordinated expenditures was constitutional, directing the

lower courts to determine "whether or not Congress would have wanted [Section 441a(d)'s]

limitations to stand were they to apply only to coordinated, and not to independent,

expenditures." Id. at 625-26. On remand the district court found that Section 441a(d)'s

application to coordinated expenditures was severable from its application to uncoordinated

expenditures. 41 F. Supp. 2d 1197, 1206-07 (D. Co. 1999). The district court found the two

applications severable because of the "strong" severability provision, which is almost

identical to the provision at issue here, and because there was "no evidence" that Congress

would not have rejected Section 441a(d) as applied to coordinated party expenditures. Id. at

1207. Both the Tenth Circuit and the Supreme Court, noting that the severability argument

was not renewed upon appeal, let the district court's decision stand. Colorado II, 533 U.S. at
49 The Court in NTEU shied away from a limiting construction, in part, because it

could not be sure that it "would correctly identify the nexus Congress would have adopted

in a more limited honoraria ban." 513 U.S. at 479. "[D]rawing one or more lines

between categories of speech covered by an overly broad statute, when Congress has sent

inconsistent signals as to where the new line or lines should be drawn, involves a far more

serious invasion of the legislative domain." Id. at 479 n.26. The Court echoed this

concern in Reno v. ACLU, where it refused to apply a tailoring construction to provisions

seeking to protect minors from "indecent" and "patently offensive" internet

communications. 521 U.S. 844, 883-88 (1997). It found that, in a facial challenge, a

court "may impose a limiting construction on a statute only if it is 'readily susceptible' to

such a construction." Id. at 884 (quoting Virginia v. American Bookseller's Ass'n., Inc.,

484 U.S. 383, 397 (1988)). The Supreme Court suggested that a statute is "readily

susceptible" for a limiting construction when the statute provides "guidance . . . for

limiting its coverage" and "the text or other source of congressional intent identified a

clear line that this Court could draw." Reno, 521 U.S. at 884. 

Justice O'Connor, in her dissent in NTEU, lamented that "a court should not []

40

440 n.5; FEC v. Colorado Republican Fed. Campaign Comm., 213 F.3d 1221, 1225 n.3

(10th Cir. 2000). In the end, though the language in Section 441a(d) makes no reference to

coordinated or uncoordinated expenditures, the Supreme Court upheld certain applications

of the provision (coordinated party expenditures) but invalidated other applications

(uncoordinated party expenditures).

Typically the Supreme Court invalidates specific applications, while letting others

stand, when it can confidently discern congressional intent. In one recent case where the

Supreme Court refused to limit the application of a statute which banned all honoraria to

government employees, United States v. National Treasury Employees Union ("NTEU"),

513 U.S. 454, 479 (1995), it did so because it was faced with considerable uncertainty as to

how Congress would have defined the honoraria restriction if it had known the complete ban

on honoraria would have been rejected as unconstitutional. Id.49 For a number of reasons,
throw up its hands and despair of delineating the area of unconstitutionality" and that it is

"inconsistent with congressional intent to strike a greater portion of the statute than is

necessary to remedy the problem at hand." 513 U.S. at 486-89 (O'Connor, J., concurring

in the judgment in part and dissenting in part); see also id. at 501-03 (Rehnquist, C.J.,

dissenting) (describing the majority's remedy as an "O. Henry ending").

50 See Reno, 521 U.S. at 884 n.49 (explaining that "[i]n part because of separationof-powers concerns, we have held that a severability clause is 'an aid merely; not an

inexorable command'" (quoting Dorchy v. Kansas, 264 U.S. 286, 290 (1924))); Alaska

Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987); Community for Creative Non-Violence

v. Turner, 893 F.2d 1387, 1394 (D.C. Cir. 1990) (agreeing that "'the ultimate

determination of severability will rarely turn on the presence or absence'" of a severability

clause (quoting United States v. Jackson, 390 U.S. 570, 585 n.27 (1968))).

51 See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191

(1999) ("Unless it is evident that the legislature would not have enacted those provisions

which are within its power, independently of that which is not, the invalid part may be

dropped if what is left is fully operative as a law." (quoting Champlin Refining Co. v.

Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932))); Buckley, 424 U.S. at 108-09

(same).

41

we do not have that problem here. 

First, with regard to Title I, Congress's intent, based on both the severability clause

and the text of the statute, is unambiguous. The clause itself, of course, directs that the

Court save "the application of the provisions . . . to any person or circumstance." BCRA §

401. However, as stated previously, such a clause only creates a presumption of

severability.50 It does not relieve this Court of its obligation to determine if the limiting

construction of Section 323(a) can stand alone, and if Congress would have enacted such a

construction knowing that its broader position would be held unconstitutional.51 With

regard to both the former and the latter, Congress, by defining "federal election activity" in

Section 301(20)(A)(iii) to include certain communications which directly affect federal
52 See, e.g., 145 Cong. Rec. S2138 (Mar. 20, 2002) (statement of Sen. McCain)

("Closing the [state and local party] loophole is crucial to prevent evasion of the new

federal rules."); 147 Cong. Rec. S2928 (Mar. 27, 2001) (Sen. Schumer) ("[R]egulating

soft money without dealing with the soft money that goes to State parties is like the

person who drinks a Diet Coke with his double cheeseburger and fries: It does not quite

get the job done."); 145 Cong Rec. H8275 (Sept. 14, 1999) (statement of Rep. Kaptur)

(stating that banning nonfederal funds for national parties but allowing it for state parties

is "like bolting the front door to protect yourself from burglars while hanging a neon sign

on the back door that says, 'Come on in'"); 144 Cong. Rec. H7323 (Aug. 6, 1998)

(statement of Rep. Roukema) (stating that allowing state parties to use federal funds

creates a "loophole large enough to drive an armored car stuffed with campaign cash

through."); Brock Decl. ¶ 8; Rudman Decl. ¶ 19; see also Gov't Opening Br. at 53

("Section 323 contains several interrelated provisions designed to eliminate solicitation,

contribution, and use of unregulated soft money by federal candidates, federal

officeholders, and national political parties."); Gov't Opening Br. at 103 ("Any successful

attempt to limit national party soft money activity must perforce prevent easy evasion

through surrogates such as state and local parties.") (citing Mann Expert Report at 31).

42

elections and by constitutionally prohibiting state parties from engaging in such activity in

Section 323(b), has unequivocally indicated its intent that such activity—as defined—would

be among the undefined uses of nonfederal funds that national parties were similarly being

prohibited from engaging in under Section 323(a). To conclude otherwise would be to turn

a blind eye to an obvious reason why Sections 323(b) and 301(20)(A) were written in the

first place: to prohibit donors (especially corporations and unions) and the national parties

from circumventing Section 323(a) by funneling soft money through state and local parties

for Section 301(20)(A) purposes.52 By limiting the prohibited uses of nonfederal funds by

national parties in Section 323(a) to communications of the kind defined by Congress in its

own words in 301(20)(A)(iii), I am neither employing a saving construction that "rewrites"

Section 323(a), nor ignoring Congress's clear intention to save an implicit feature of that
53 See NTEU, 513 U.S. at 479 (refusing to adopt a limiting construction, in part,

because its judicial obligation was to avoid "independent constitutional concerns"); see

also Ashwander v. TVA, 297 U.S. 288, 346-47 (1936) ("The Court will not 'anticipate a

question of constitutional law in advance of the necessity of deciding it.'" (quoting

Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Comm'rs, 113 U.S. 33, 39 (1885))). 

 

43

section consistent with BCRA's severance clause admonition. 

Finally, by applying Section 301(20)(A)(iii), which I hold to be constitutionally

acceptable for Section 323(b), see infra Part I.B.2, to define the prohibited conduct in

Section 323(a), I avoid the Supreme Court's additional concern of creating a definition the

constitutionality of which has not been decided.53 Accordingly, for all of the above reasons,

I find that Section 323(a)'s implicit prohibition on national parties to use nonfederal money

to fund communications of the kind defined in Section 301(20)(A)(iii) is constitutionally

severable from its remaining unconstitutional applications.

B. New FECA Sections 323(b) and 301(20)(A): Restrictions on Nonfederal Funds for

"Federal Election Activities" 

Unlike Section 323(a)'s total ban on the use of nonfederal funds by national parties,

Section 323(b) only prohibits state parties from using nonfederal funds for certain "federal

election activities," BCRA §101; FECA § 323(b); 2 U.S.C. § 441i(b)(1), which it defines in

Section 301(20)(A). BCRA § 101; FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). Thus, in

order to assess the constitutionality of the restraint on the state parties in Section 323(b), we

have to simultaneously assess the constitutionality of Section 301(20)(A)'s definition of
44

federal election activity. 

Section 301(20)(A) defines federal election activity to include: (1) voter registration

activity during the period 120 days before a regularly scheduled federal election; (2) "voter

identification, get-out-the-vote activity, or generic campaign activity conducted in

connection with an election in which a candidate for Federal office appears on the ballot";

(3) "a public communication that refers to a clearly identified candidate for Federal office . .

. and that promotes or supports a candidate for that office, or attacks or opposes a candidate

for that office (regardless of whether the communication expressly advocates a vote for or

against a candidate)"; and (4) services provided by a state or local party committee employee

who spends more than twenty-five percent of that individual's compensated time "on

activities in connection with a Federal election." BCRA § 101; FECA § 301(20)(A); 2

U.S.C. § 431(20)(A).

Only Section 301(20)(A)(iii), however, describes conduct which is targeted

exclusively at federal elections and which directly affects federal elections. Accordingly,

for the reasons set forth below, I find that Section 323(b) and Sections 301(20)(A)(i), (ii),

and (iv) are substantially overbroad in that they seek to restrain state parties from using

nonfederal funds for election activities, which only indirectly affect federal elections, and

thus do not give rise to the appearance of corruption necessary to warrant congressional

intervention. As to Section 301(20)(A)(iii), however, I find that it is constitutionally

permissible because, by contrast, it focuses on election activities that directly affect federal
54 Because I find these sections and Section 323(a) (aside from nonfederal funds

used for federal activities) unconstitutional based on the First Amendment, I need not

reach either the federalism or equal-protection claims.

45

elections and as such, give rise to the appearance of corruption necessary to warrant

Congress's restraint on the First Amendment rights of the donors.

1. New FECA Sections 323(b) and 301(20)(A)(i), (ii), and (iv)

Section 323(b) is premised, in part, on the congressional belief that certain mixedpurpose activities by state parties, when funded with nonfederal funds, sufficiently affect

federal elections that they give rise to an appearance of corruption between the donors and

the candidates whose campaign receives the benefit of these activities. I disagree. Setting

aside the considerable issue of whether the Elections Clause, U.S. Const. art. I, § 4; Buckley,

424 U.S. at 13 & n.16,54 can be fairly read to allow Congress to regulate state party activities

such as those defined in Sections 301(20)(A)(i), (ii), and (iv), see CDP/CRP Opening Br. at

20-27, the justification and evidence submitted here fail to establish that those provisions

serve a sufficient government interest to justify an infringement on First Amendment rights. 

The Supreme Court pointed out in Colorado I that "the opportunity for corruption

posed by" nonfederal funds for mixed-purpose activities like voter registration and get-outthe-vote "is, at best, attenuated." 518 U.S. at 616. Though dictum it may be, it is

particularly telling. See Central Green Co. v. United States, 531 U.S. 425, 431 (2001)

("dicta 'may be followed if sufficiently persuasive' but are not binding" (quoting Humphrey's
55 Under the pre-BCRA regime, political parties could not use any nonfederal

funds if the voter mobilization effort supported or opposed "a specific candidate." See 11

C.F.R. § 106.5(a)(2)(iv). And in BCRA, generic campaign activity is defined as "a public

communication that promotes or opposes a political party and does not promote or oppose

a clearly identified Federal candidate or a non-Federal candidate," BCRA § 101(b); 2

U.S.C. 431(21); 11 C.F.R. § 100.25 (67 Fed. Reg. 49,111 (July 29, 2002)), and "get-outthe-vote" is defined as "contacting registered voters . . . to assist them in engaging in the

act of voting," regardless of a reference to a federal candidate. See 11 C.F.R. §

100.24(a)(3). In any event, get-out-the-vote or voter registration activities employing a

"public communication," which is defined broadly to include everything from telephone

banks to mass mailings, see BCRA § 101(b); 2 U.S.C. 431(22); 11 C.F.R. § 100.26, that

promotes or attacks a clearly identified federal candidate, see BCRA § 101; FECA §

301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii), would not be allowed if Section

301(20)(A)(iii) is upheld. See also Bowler Decl. ¶ 20(b) (noting that California

Democratic Party's ("CDP's") direct mail programs typically do not mention federal

candidates); Erwin Aff. ¶ 9 (explaining that "[t]he overwhelming amount of [voter

registration] activity is 'generic' voter registration activity urging potential registrants to

'Register Republican'"). 

46

Executor v. United States, 295 U.S. 602, 627 (1935))). One can infer from the Supreme

Court's plain statement that the opportunity for corruption is less because there is no clear

link between donations used for these predominantly generic activities and whatever benefit

accrues to the candidate. 

When nonfederal funds go to political parties, not candidates, and are spent for

purposes that do not directly affect federal elections, there is less concern about donors

having quid pro quo arrangements with candidates. Indeed, given that Section

301(20)(A)(iii) prevents communications that promote federal candidates, the activities

defined in Sections 301(20)(A)(i) and (ii) are necessarily "generic" or specific only to a

nonfederal candidate: that is, these activities are not directed at a specific federal

candidate.55 Conversely, such activities potentially assist a considerably larger number of
56 See Bowler Decl. ¶¶ 13, 15 (explaining that in the 2002 cycle, where the only

federal office on the California ballots was a congressional race, administrative expenses

were required to be allocated 12.5 percent federal and 87.5 percent nonfederal based on

the ballot composition formula). California holds elections for 120 legislative officers,

eight statewide-elected officers, and four members of the State Board of Equalization. It

also holds elections for judicial offices, local offices, and ballot measures at both the state

and local levels. See id. ¶ 13; Erwin Aff. ¶ 5.

57 See Findings 113-37, 150-54. The CDP spent more money for voter registration

in 1998, a year with eight statewide elections, than in 2000, a presidential election year. 

Bowler Decl. ¶ 20.a; see also Erwin Aff. ¶ 14.a (stating that "voter registration activities

are primarily driven by the desire to affect State and local races").

58 See also Bowler Rebuttal Decl. ¶¶ 3-4 (explaining that the CDP pays for much of

its voter registration and get-out-the-vote activities with money raised by the state party);

Bowler Decl. ¶ 12 (explaining that in the 1999-2000 election cycle, the CDP raised

$15,617,002 in nonfederal funds, which it used to fund state and local activities). The

amount of nonfederal money the California Republican Party ("CRP") and CDP raised

themselves is much more than the nonfederal funds they received from national-party

transfers. CDP/CRP 1171 (in the 1999-2000 election cycle, which was a presidential

election cycle, only 19.1 percent of all CRP nonfederal money was from national-party

transfers); CDP/CRP 35, 37, 39 (in 2000, only 36 percent of all CDP nonfederal money

was from national-party transfers). While the state and local parties may spend most of

their nonfederal national-party transfers on candidate advocacy, they spend very little of

their overall nonfederal funds on such activities.

59 For example, the CDP actively registered over 300,000 Democratic voters

throughout California during 2002 even though there was only one competitive

congressional race out of 52 races. See Bowler Decl. ¶ 20.a; Torres Decl. ¶ 8.

47

state and local candidates that greatly outnumber the one, or possibly two, federal candidates

on the ballot,56 many of whom invariably run unopposed or in clearly noncompetitive races. 

There is also evidence that state and local parties undertake voter mobilization efforts

principally for state and local candidates,57 mostly from nonfederal money they raised on

their own,58 and in elections where the federal candidates are practically uncontested.59
48

In light of this focus on state and local candidates, there is every reason for this Court

to doubt whether the federal candidates themselves would view such generic activities by

state and local parties as sufficiently helpful to their campaigns as to warrant even a token

sense of indebtedness to the soft money donors to the political parties. The evidence, such

as it is, regarding Sections 301(20)(A)(i) and (ii) activities fails to demonstrate either the

degree of effect such activities have on the federal candidate's re-election, or the existence

of a public perception that donations used to fund such efforts create a sense of indebtedness

between the federal candidate and those who make large donations to the party. That there

is no evidence that the public perceives corruption in these circumstances is not surprising. 

Since the public would expect state parties to engage in such voter mobilization efforts for

the benefit of all of its candidates, we can, and should, reasonably infer that the public

would correspondingly view a federal candidate's sense of indebtedness, if any, to be diluted

among the numerous state and local candidates who equally benefit from these activities. 

See Feingold Dep. at 126-27 (acknowledging that soft money being used for generic

campaign activity is less likely to create an appearance of corruption). Such uncertainties

are hardly a sufficient basis from which to allege that precluding state and local parties from

using nonfederal funds for mixed-purpose activities serves the government interest in

preventing corruption, or its appearance. Thus, in the absence of a substantial evidentiary

showing to the contrary, it is "mere conjecture," Shrink Missouri, 528 U.S. at 392, by the

defendants that an appearance of corruption arises from donations to state parties, or
60 Cf. Robert Post, Regulating Election Speech Under the First Amendment, 77

Tex. L. Rev. 1837, 1842 (1999) ("It is surely the case that election speech affects

elections, but so does all public discourse. If all that were necessary to bring speech

within the authority of a managerial domain were that the speech produce effects on the

domain, nothing much would be left of public discourse.").

49

transfers from national parties, that are used for these generic or noncandidate-specific

activities set forth in Sections 301(20)(A)(i) and (ii).

Finally, even if the defendants had demonstrated that some mixed-purpose activities

do somehow create an appearance of corruption, Sections 301(20)(A)(i), (ii), and (iv) are

not sufficiently tailored to be constitutionally acceptable. By limiting donations for so many

unmistakably noncorrupting activities, like donations for voter registration on behalf of state

candidates, these sections extend too far. It is simply not enough to claim that just because

the use of a donation has some effect on a federal election, it must be completely funded

with federal funds.60 To reach such a conclusion would inevitably sweep in too many

activities that deserve First Amendment protection. Section 301(20)(A)(iv)'s percentage

based definition of the amount of time a party official must spend in connection with a

federal election, BCRA § 101; FECA § 301(20)(A)(iv); 2 U.S.C. § 431(20)(A)(iv), provides

the starkest example of this insufficient tailoring. If a state party employee spends 26

percent of his compensated time "in connection with a Federal election," then his entire

salary must be paid using federal funds. Clearly, 74 percent of the employee's compensated

time, which has no relation whatsoever to a federal election, is being regulated. There is no

adequate basis in the record before us to determine whether the nature of his conduct
61 This analysis of Section 301(20)(A)(iii) is equally applicable to national, state,

and local parties. Considering the coordination and financial transfers between the

various party levels and that parties at all levels work on behalf of national, state, and

local candidates, it is unrealistic to view the parties differently simply based on the fact

that one is labeled "national" and another "state." It is the nature of the activities they

undertake rather than they label they assume that defines the type of allowable

regulations.

50

sufficiently impacts the election to give rise to an appearance of corruption between the

donors who may be funding his efforts through the state party and the candidate receiving

the benefit of his services. Thus, even if Sections 301(20)(A)(i), (ii), and (iv) served to

prevent some appearance of corruption, they are not drawn closely enough to survive

scrutiny.

2. New FECA Section 301(20)(A)(iii)

As I indicated previously, Congress has the power to require both national and state

parties to use only federal money for election activities that directly affect federal

elections.61 Section 301(20)(A)(iii) focuses on one such type of activity: "a public

communication that refers to a clearly identified candidate for Federal office . . . and that

promotes or supports a candidate for that office, or attacks or opposes a candidate for that

office." BCRA § 101; FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii) (emphasis

added). Judge Henderson concludes in her opinion that the Supreme Court in Buckley

required certain "magic words" that specifically advocate the election or defeat of a

candidate in order for a communication to be the type of advocacy regulable by Congress. 
62 See, e.g., J. Henderson Op. at Part IV.D.1.a & Part IV.D.1.b (referring repeatedly

to "protected issue advocacy"). I do not believe we should assume that just because the

party advertisements are currently funded with nonfederal money that they, by definition,

have a nonfederal purpose. See J. Henderson Op. at Part IV.D.1.c.

63 Any attempt to regulate communications that directly affect federal elections,

like those regulated in Section 301(20)(A)(iii), does not exceed Congress's authority to

regulate federal elections under the Elections Clause, see U.S. Const. art I., § 4. For this

51

All other communications, even if they directly affect a federal election, from her

perspective, are not regulable.62 I disagree. For the same reasons, in part, set forth by Judge

Kollar-Kotelly in her opinion on Title II, I believe that Buckley did not set forth a "brightline test." See J. Kollar-Kotelly Op. at Part III.I.C.1. But, even if the Supreme Court did set

forth a bright-line test for Congress's regulation of expenditures by nonparties in Buckley,

424 U.S. at 39-51, that rationale is not necessarily applicable to, and binding on, Congress's

power to regulate donations to political parties under BCRA.

Therefore, the question before this Court is not so much whether Congress can

regulate the use of nonfederal funds for uncoordinated, nonexpress advocacy that directly

affects federal elections, but whether Congress has defined such nonexpress advocacy in

Section 301(20)(A)(iii) in a way that will withstand constitutional scrutiny. For the

following reasons, I have concluded that Congress not only can regulate uncoordinated,

nonexpress advocacy which directly affects federal elections, but has defined that

nonexpress advocacy in Section 301(20)(A)(iii) in a way that is sufficiently tailored to serve

the government interest of preventing actual or apparent corruption, and in a way that is not

unconstitutionally vague.63
reason, I do not need to address further the plaintiffs' federalism claims in relation to

Section 301(20)(A)(iii). I also reject the plaintiffs' equal-protection challenge because

political parties are unique actors in the political system, see supra note 27 and

accompanying text, such that Congress is warranted in treating contributions to them

differently. See California Medical, 453 U.S. at 200-01 (rejecting equal-protection

challenge to contribution limits for multicandidate political committees, stating that "[t]he

differing restrictions placed on [different entities] reflect a judgment by Congress that

these entities have differing structures and purposes, and that they therefore may require

different forms of regulation in order to protect the integrity of the electoral process").

Finally, I concur with Judge Henderson's discussion of the Thompson Plaintiffs' equalprotection claim. See J. Henderson Op. at Part IV.D.4.

64 See, e.g., Colorado II, 533 U.S. at 458 ("I understood that when I raised funds

for the [Democratic Senatorial Campaign Committee ("DSCC")], the donors expected

that I would receive the amount of their donations multiplied by a certain number that the

DSCC had determined in advance, assuming the DSCC has raised other funds." (quoting

Senator Timothy Wirth)); Simpson Decl. ¶ 7 ("Members know that if they assist the party

with fundraising, be it hard or soft money, the party will later assist their campaign. . . .

Although soft money cannot be given directly to federal candidates, everyone knows that

it is fairly easy to push the money through our tortured system to benefit specific

candidates."); McCain Decl. ¶ 7 ("[P]arties encourage Members of Congress to raise large

amounts of soft money to benefit their own and others' re-election."); see also Findings

52

In defining "candidate advocacy" as it did, Congress chose to couple two concepts

together in order for communications to qualify as regulable: (1) the identification of a

candidate for a federal office; and (2) words that promote, oppose, attack, or support that

candidate for that office. BCRA § 101; FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii). 

Therefore, unlike genuine issue advocacy, which both national and state parties have every

right to participate in with nonfederal funds, and which help all party candidates in a generic

sense, Congress in this definition was seeking to focus on parties using nonfederal funds for

communications intended to directly help a specific federal candidate. Because such

assistance is focused on a specific candidate,64 it is natural for that candidate to feel indebted
31-35.

65 In the 1998 election, $24.6 out of $25.6 million spent by political parties on

advertisements were spent on advertisements that referred to a federal candidate. Out of

44,485 advertisements, 42,599 advertisements referred to a specific candidate. See

Krasno & Sorauf Expert Report at tbl. 1.

66 See Findings 36-52.

53

towards those whose donations funded the communication, even if he does not know exactly

which soft money donors' funds actually made it possible. Concomitantly, it is natural for

the public to perceive that those whose large soft money donations funded the national and

state parties' communications are not only known by the parties' staffs, but by the federal

candidates who directly benefitted from the donations. 

The evidence submitted by the defendants overwhelmingly corroborates these

common sense conclusions. The record is clear that many, if not most, of the party so-called

"issue ads" refer to a specific federal candidate.65 And the evidence also demonstrates that

the advertisements are designed to, and do, support or oppose those candidates for that

office.66 To illustrate one extreme of this genre: in 1996, the Republican National

Committee ("RNC") ran a supposed "issue ad" called "The Story" which requires only a

quick reading to discern its true purpose and effect.

Audio of Bob Dole: We have a moral obligation to give our children an

America with the opportunity and values of the nation we grew up in. 

Voice Over: Bob Dole grew up in Russell, Kansas. From his parents he

learned the value of hard work, honesty and responsibility. So when his

country called . . . he answered. He was seriously wounded in combat.

Paralyzed, he underwent nine operations. 

Audio of Bob Dole: I went around looking for a miracle that would make me
67 145 Cong. Rec. S12747 (Oct. 18, 1999) (Sen. Levin); see also Memorandum

from Charlie Nave to Haley Barbour (May 28, 1996) (explaining that the Dole

advertisement was tested to see its effect on Senator Dole's election).

54

whole again. 

Voice Over: The doctors said he’d never walk again. But after 39 months, he

proved them wrong.

Audio of Elizabeth Dole: He persevered, he never gave up. He fought his way

back from total paralysis. 

Voice Over: Like many Americans, his life experience and values serve as a

strong moral compass. The principle of work to replace welfare. The principle

of accountability to strengthen our criminal justice system. The principle of

discipline to end wasteful Washington spending. 

Voice of Bob Dole: It all comes down to values. What you believe in. What

you sacrifice for. And what you stand for.

Fabrizio Dep. Exhibit 2; McCain Decl. ¶ 15; Huyck Decl. ¶ 3; Fabrizio Dep. at 49-55. 

Though this advertisement transparently was intended to assist Senator Dole's campaign, it

was funded in part with nonfederal funds. It is hard to disagree with Senator Levin, who

described the advertisement this way: "It's not an ad about welfare or wasteful spending; it

is an ad about why should we elect that particular nominee."67

Another and more typical form of sham issue advertisement run by parties is a

candidate-centered ad that focuses on the positions, past actions, or general character traits

of a given federal candidate; contrasts them to the party's view of the proper outlook on

those issues; and encourages the viewers to contact the candidate to ostensibly inquire why

he/she is taking those positions or actions. See Findings 45 & 46. In the 2000 election, for

example, the National Republican Congressional Committee and the Florida Republican

Party ran television advertisements criticizing Linda Chapin, the Democratic candidate for
68 Another example of negative candidate advocacy funded by parties: "We expect

our public officials to be responsible, do their jobs and obey the law. But Corrine Brown

missed an astonishing 187 votes in Congress. . . . Apparently, Corrine Brown thinks she's

above the law. A government audit found extensive violations of federal law during her

1992 campaign. Call Corrine Brown . . . . Tell her public officials should act

responsibly, do their job and obey the law." ODP0041-1024. For more examples, see

Findings 41, 45, 46.

69 See Findings 36-52, 138-47. The parties were clearly not using such

advertisements for party building purposes since 92 percent of the advertisements did not

even mention the name of the party in the body of the advertisement. Buying Time 2000

at 64 (stating that in the 2000 election, almost 92 percent of party advertisements never

even identified the name of a political party in the body of the advertisement, let alone

encouraged voters to register with or support the party or to volunteer with the local party

organization).

55

Congress:

Announcer: Linda Chapin. Hard on taxpayers. Soft on convicts. Chapin

raised taxes on your utilities, pushed to raise the county sales tax and even

tried raising your property tax. Meanwhile, hard time in the county jail turned

into "Chapin time." Where convicts received cable tv and lounged on padded

furniture in carpeted cells. Chapin's County Commission ran this soft jail . . .

a jail she called a "national model." Ask Chapin why she's hard on taxpayers

and soft on convicts.

Chapin Decl. Exhibit 2; Chapin Decl. ¶ 10; Beckett Decl. ¶ 10; Pennington Decl. ¶ 14.68

This type of electioneering advertisement, and many others like it, were run by the state

party, which used mostly nonfederal funds to pay for it. It takes little convincing to find that

these advertisements can, and do, directly influence the outcome of a federal election69 and

that parties engaging in them are "electioneering in the guise of issue advocacy." Mann

Expert Report at 26. Moreover, because the amount of money used for candidate advocacy
70 See Oliver Dep. at 148-49 (estimating that the RNC spent around $56-61 million

dollars on "issue ads" during the 2000 campaign); Marshall Decl. ¶ 3 (stating that the

largest portion of Democratic National Committee ("DNC") budget during the 2000

election cycle was used for "issue ads"). In 2000, the RNC raised $254 million, a

majority of which was transferred down to the state parties mostly for "issue

advertisements." Josefiak Dep. at 76; Vogel Decl. ¶ 63; McGahn Decl. ¶ 55.

71 The donors themselves are not blind to the fact that donations to the parties are

used to benefit the federal candidates. See, e.g., Rozen Decl. ¶ 12 ("Donors to the

national parties understand that if a federal officeholder is raising soft

money—supposedly 'non-federal' money—they are raising it for federal uses, namely to

help that Member or other federal candidates in their elections.").

72 See supra note 19.

73 One donor, and former political fundraiser, observed the following:

Information about what soft money donors have given travels among the

Members in different ways. Obviously the Member who solicited the money

knows. Members also know who is involved with the various major donor

events which they attend, such as retreats, meetings and conference calls.

And there is communication among Members about who has made soft

money donations and at what level they have given, and this is widely

known and understood by the Members and their staff.

Randlett Decl. ¶ 10; see also Bumpers Decl. ¶¶ 18, 20 (testifying that "some Members

even keep lists of big donors in their offices" and that "you cannot be a good Democratic

or a good Republican Member and not be aware of who gave money to the party. If

56

is substantial,70 the candidates are likely to feel even more indebted to the donors whose

contributions to the political parties made possible this form of campaign assistance.71 Not

surprisingly, the use of nonfederal funds for this type of candidate advocacy was, to all

appearances, Congress's primary concern in deciding to enact BCRA Sections 323(a) and

323(b).72

 

The record further demonstrates that congressional candidates know who the major

soft money donors are.

73 In some cases, they actively assist in helping the party to raise such
someone in Arkansas gave $50,000 to the DNC, for example, I would certainly know

that.”); Wirth Decl. Exhibit A ¶ 17 (“[C]andidates were generally aware of the sources of

the funds that enabled the party committee to support their campaigns.”).

74 See Findings 169, 170, 172-79; Colorado II, 533 U.S. at 458 (“[Y]ou are at the

limit of what you can directly contribute to my campaign,” but “you can further help my

campaign by assisting the Colorado Republican Party.” (quoting then-Congressman

Wayne Allard)); see also Letter from Senator Mitch McConnell to Potential Donor at the

Microsoft Corporation (August 17, 1998) (asking potential donor for an "immediate

commitment" in support of the National Republican Senatorial Committee's ("NRSC's")

issue advocacy campaign); see also Letter Senators Mitch McConnell and Bill Frist to

Donor at Steel Service Center Institute (February 25, 1998) (thanking donor for a "nonfederal contribution of $25,000" to the NRSC).

75 See Findings 176, 208; see, e.g., McCain Decl. ¶ 6 ("Legislators of both parties

often know who the large soft money contributors to their party are, particularly those

legislators who have solicited soft money,” and “[d]onors or their lobbyists often inform a

particular Senator that they have made a large donation.”); Simpson Decl. ¶ 5 ("Even if

some Members did not attend these events, they all still knew which donors gave the

large donations, as the party publicizes who gives what.”); Boren Decl. ¶ 6 (“Each

Senator knows who the biggest donors to his party are” because “[d]onors often prefer to

hand their [soft money contribution] checks to the Senator personally, or their lobbyist

57

contributions.74 And as to those candidates who do not, the parties and the donors keep

many of them apprised of who made the large donations. For example, Robert Hickmott,

lobbyist and former DNC official, advised donors in the following manner: 

[W]hen one of my clients is going to make a donation to a federal candidate or

party, hard or soft money, I advise them on the manner in which they should

do that. I tell them not to just send the check to the party committee, for

example, to the young staff member who is collecting the checks. Instead I tell

my clients that they should personally give the money to a Member of

Congress who then can give the money to the Chair of the party committee,

who will in turn make sure that the check reaches the young staff member.

That way the donor, with one check, gets "chits" with multiple Members of

Congress. 

Hickmott Decl. ¶ 9.75
informs the Senator that a large donation was just made.”).

76 See Findings 201-06, 209-10. Although it is possible—though not

established—that the appearance of increased access alone is synonymous in the public's

mind with increased influence, there is no evidence in the record that increased access

necessarily results in actual influence. Since the Supreme Court has never found that

access in and of itself constitutes corruption, I believe there is no evidence of actual

corruption.

77 See Buying Time 2000 at 62. In 2000, thirty-five of the top 50 nonfederal

donors were corporations, and they gave a total of $29,447,350 to the Republican national

committees in the 2000 election cycle which was 11.4 percent of all nonfederal money

received by that national party. See Mann Expert Report at tbl. 6. Most of the other

donors in the top 50 were unions and plaintiff attorneys. Id.

78 Thus the Court reviews the evidence of actual or apparent corruption against the

background of a plausible justification, and, as explained earlier, the more plausible the

argument, the less evidence the defendants must marshal. See Shrink Missouri, 528 U.S.

at 391-95.

79 Whether because of the endless examples of donors receiving access in return

for donations to parties, see Findings 211-43, the many press reports that made public

such exchanges, see infra note 81, or constituent complaints about them, see Finding 269,

members of Congress were understandably troubled with the appearance of corruption

created by large nonfederal donations to parties. See, e.g., 147 Cong. Rec. S2446 (Mar.

58

Finally, while there is no evidence in the record of actual quid pro quo corruption,76

the record does establish that the public not only appreciates that there are many donors

giving large sums of money (mostly corporations and unions) to the political parties,77 but

believes and expects that the donors—in return—receive privileged access to the legislators

and special influence in the legislative process.78 It is of little surprise that Congress was

particularly concerned with the consequences of the public's perception of a correlation

between large donations to parties and the special access and influence that the public

believes are accorded to these donors.79 There is ample evidence, including polls80 and press
19, 2001) (Sen. Feingold) ("The appearance of corruption is rampant in our system, and it

touches virtually every issue that comes before use."); 147 Cong. Rec. S3248-49 (April 2,

2001) (Sen. Levin) ("[P]ermitting the appearance of corruption undermines the very

foundation of our democracy—the trust of the people in the system.").

80 See Findings 251-68; see, e.g., Mark Mellman & Richard Wirthlin, Research

Findings of a Telephone Study Among 1300 Adult Americans 7 (Sept. 23, 2002) (poll

result finding that 71 percent of Americans think that members of Congress sometimes

decide how to vote on an issue based on what big contributors to their political party

want, even if it is not what most people in the district want, or even if it is not what they

think is best for the country); Robert Y. Shapiro, Public Opinion & Campaign Finance

13-14 (Sept. 18, 2002) (poll results showing that the public has been troubled by large

donations to political parties).

Evidence, like these two reports, need not have been before Congress when it

made its predictive judgment. See Turner I, 512 U.S. at 667 (explaining that to ensure

that Congress drew "reasonable inferences," the Supreme Court needed "substantial

elaboration in the District Court of the predictive or historical evidence upon which

Congress relied, or the introduction of some additional evidence." (emphasis added));

Turner Broadcasting Sys., Inc. v. FCC ("Turner II"), 520 U.S. 180, 185, 187 (1997); c.f.

City of Erie v. Pap's A.M., 529 U.S. 277, 310-17 (2000) (Souter, J., concurring in part and

dissenting in part) (advocating a remand for development of the judicial record). 

81 Senator Rudman observed: 

Almost every day, the press reports on important public issues that are

being considered in Congress. Inevitably, the press draws a connection

between an outcome and the amount that interested companies have given

in soft money. . . . Even if a senator is supporting a position that helps an

industry for reasons other than that the industry gave millions to his party, it

does not appear that way in the public eye.

Rudman Decl. ¶ 11 (emphasis added); see Finding 270; see, e.g., Dan Morgan and Juliet

Eilperin, Campaign Gifts, Lobbying Built Enron's Power in Washington, Wash. Post,

December 25, 2001, at A01; R.G. Ratcliffe and Alan Bernstein, Political Donors Have

the Money, and Get the Time, Houston Chron., May 23, 1999, at 1. 

59

reports,81 to support Congress's judgment that the special access and perceived special

influence accorded to those large donors have undermined the public's confidence in the

independence of its elected representatives from those donors, and thereby giving rise to an
82 See Findings 264-67.

83 Turner I, 512 U.S. at 666 (explaining that a court's role is to "assure that, in

formulating its judgments, Congress has drawn reasonable inferences based on substantial

evidence"). Though courts must "accord substantial deference to the predictive

judgments of Congress," Turner I, 512 U.S. at 665, it does not "'foreclose our

independent judgment of the facts bearing on an issue of constitutional law,'" id. at 666

(quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989)).

60

appearance of corruption. The record clearly establishes that those large donations are used

in large part by the parties to bombard the public with candidate advocacy of the type

defined by Section 301(20)(A)(iii). See Findings 36-52, 138-47. Because the

advertisements are recognizably sponsored by the parties, see supra note 41, it takes little

for the public to conclude that candidates are directly benefitting from large donations to the

parties. Moreover, the fact that the public neither distinguishes between "soft money" and

"hard money," nor is knowledgeable of the restrictions on contributions,82 does nothing to

deter the inference that the special access and influence it perceives are accorded to the

donors is in return for the plainly visible assistance the parties provide to candidates'

campaigns. Given the high plausibility that federal candidates feel indebted to donors who

fund, through the parties, Section 301(20)(A)(iii) communications of which they are the

beneficiary, and the equally high plausibility that the public perceives that the special access

and influence it believes are accorded to these donors is in gratitude for that assistance, the

evidentiary documentation more than adequately convinces me that an appearance of

corruption has arisen from such arrangements. Simply stated, Congress has drawn a

reasonable inference of the same based on substantial evidence.83
84 For example, genuine issue advertisements include: (1) advertisements that

support oppose officeholder-named legislation, like the McCain-Feingold bill, which is

the common label for the legislation at issue here; (2) advertisements supporting or

opposing legislation that simply ends with a call-to-action line asking the viewers to

contact their congressional members to vote against or for a particular bill; or (3) even

advertisements that criticize a certain political personality in order to energize the party's

base on a particular issue, so long as those advertisements are not broadcast within the

identified candidate's district or state.

85 See generally Richard Briffault, The Political Parties and Campaign Finance

Reform, 100 Colum. L. Rev. 620, 655-57 (2000).

61

Moreover, any fear that Section 301(20)(A)(iii) is overbroad is cured by the

accumulated effects of three circumstances. First, Section 301(20)(A)(iii) only regulates

communications that are candidate specific, not issue specific, such that most genuine issue

communications should not be subject to regulation. See Hearing Tr. (Dec. 4, 2002) at 17. 

Second, though there are some genuine issue advertisements that do specifically mention

candidates,84 the fact that the Section 301(20)(A)(iii) definition requires the communication

to have language that "promotes or supports a candidate for that office, or attacks or opposes

a candidate for that office" eviscerates any remaining overbreadth by focusing on

advertisements that directly influence "a candidate for that office." Finally, the fact that the

"speaker" running this type of advertisement is a national or state party also supports the

defendants' contention that most of the advertisements, referring to a candidate in this

manner, will be intended to promote or attack that particular candidate.85 A political party,

as opposed to corporations and other nonparties, exists to a large extent for the purpose of
86 See Finding 27; see, e.g., Brister Decl. ¶ 4 ("The Republican Party of Louisiana's

primary purpose is to help elect Republicans to office 'from the courthouse to the White

House.'"); RNC Chairman Haley Barbour's Update to the Members of the Republican

National Committee, August 7, 1996, at 3 (stating that "[t]he purpose of a political party

is to elect its candidates to public office, and our first goal is to elect Bob Dole president .

. . Electing Dole is our highest priority, but it is not our only priority. Our goal is to

increase our majorities in both houses of Congress and among governors and state

legislatures"); see also Hastert Amicus Br. at 20 ("The very purpose of the National

Republican Congressional Committee is to maintain Republican control of the House."). 

87 See also Nelson Dep. at 191 (stating that the RNC engages in "issue advocacy in

order to achieve one of our primary objectives, which is to get more Republicans

elected").

62

electing candidates of its party to office.86 In Buckley, the Supreme Court observed that

expenditures by political parties, and other political committees with "the major purpose of

which is the nomination and election of a candidate . . . can be assumed to fall within the

core area sought to be addressed by Congress. They are, by definition, campaign related." 

424 U.S. at 79. In interpreting this language by the Supreme Court, the D.C. Circuit

observed that "when an organization controlled by a candidate or the major purpose of

which is election-related makes disbursements, those disbursements will presumptively be

expenditures within the statutory definition." Akins v. FEC, 101 F.3d 731, 742 (en banc)

(D.C. Cir. 1996).87 With this understanding of parties and other political committees, it is

not surprising that the Supreme Court limited disclosure of expenditures by all other groups

to express advocacy, but sanctioned disclosure of all expenditures by "political committees." 

Buckley, 424 U.S. at 49. While not all party advertisements are intended to directly

influence a federal election (i.e., genuine issue advertisements), the presumptively electoral-
88 It bears repeating: Even though donations to political parties may be used

presumptively for the purpose of influencing a federal election, it is clearly not an

irrebuttable presumption, such that all donations should be regulated. While the Court

insinuated that Congress could require disclosures for all expenditures by political parties,

Buckley, 424 U.S. at 79, there is a simple explanation for this outcome—the Constitution

affords less protection to less offensive speech infringements, like disclosure

requirements, than for more offensive infringements, like expenditure limitations. 

Compare id. at 39-51 (rejecting expenditure limitations, even those on express advocacy),

with id. at 79-81 (upholding disclosure requirements for express advocacy); see also Post,

supra note 60, at 1843 ("[T]he placement of a line between election speech and public

discourse must be sensitive to the nature of the proposed regulation of election speech. 

Relatively more benign forms of regulation . . . may constitutionally reach more deeply

into the recesses of public discourse than more draconian requirements, like expenditure

limitations."). Surely, the speech handicap imposed by contribution limitations, which

simply requires that parties use hard money for certain activities, rests somewhere

between that of expenditures limitations and disclosure requirements. See, e.g., Buckley,

424 U.S. at 20-23, 64-68; see also Colorado I, 518 U.S. at 611-26 (rejecting expenditure

limitation on political parties, even though parties are considered "political committees"

that are subject to disclosure of all disbursements).

63

focus of parties suggests that party communications that do mention candidates are, more

likely than not, designed to have some impact on a federal election.88 For these reasons,

Section 301(20)(A)(iii) is closely drawn to serve the government's interest.

Even so, plaintiffs contend that Section 301(20)(A)(iii) is still defective because its

definition of communications that must be funded with federal money is too vague to

withstand constitutional scrutiny. They claim that words such as "promote," "oppose,"

"attack," and "support" are too vague to enable party officials to determine where the line

between noncandidate advocacy (i.e., pure issue advertisements) and candidate advocacy

lies. Like Section 201's fallback definition, see BCRA § 201(a); FECA § 304(f)(3)(A)(i); 2

U.S.C. § 434(f)(3)(A)(i), however, the definition of candidate advocacy in Section
89 When the Buckley Court found unconstitutionally vague FECA expenditure

provisions, which involved different language, "the vast majority of individuals and

groups subject to" the Act did "not have a right to obtain an advisory opinion," 424 U.S.

at 41 n.47. Subsequently, Congress amended the advisory provision to make it available

to "any person." 2 U.S.C. § 437f(a)(1).

64

301(20)(A)(iii) is not unconstitutionally vague because: (1) potential party speakers can

simply avoid regulation by not identifying a candidate; (2) the formulation Congress chose

to use—even for those not expert in the subtleties of campaign advocacy—is anchored in

every day words that have to be linked to a specific candidate's election, or re-election, to a

particular office; (3) to paraphrase defendant's counsel during oral argument, as long as the

communication is not neutral—as to the candidate's election or defeat—it is covered by the

definition, see Intervenors Opp'n Br. at 66; and (4) the opportunity to seek advisory opinions

to clarify any ambiguity "mitigates whatever chill may be induced by the statute and argues

against constitutional adjudication on a barren record," see Martin Tractor Co. v. FEC, 627

F.2d 375, 384-85 (D.C. Cir. 1980); see also United States Civil Serv. Comm'n v. Nat'l Ass'n

of Letter Carriers, 413 U.S. 548, 580 (1973).89 Indeed, Section 301(20)(A)(iii), as crafted,

"give[s] the person of ordinary intelligence a reasonable opportunity to know what is

prohibited," "provide[s] explicit standards for those who apply them," and where First

Amendment rights are implicated, does not induce "citizens to 'steer far wider of the

unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." 

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (quoting Baggett v. Bullitt, 377

U.S. 360, 372 (1964)).
90 See also Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics

Line, 77 Tex. L. Rev. 1751, 1792 (1999) ("[A]s skilled campaign professionals, the major

political parties are in the best position to conform their activities to legal requirements.").

91 As Justice Holmes observed: "Wherever the law draws a line there will be cases

very near each other on opposite sides. The precise course of the line may be uncertain,

but no one can come near it without knowing that he does so, if he thinks, and if he does

so, it is familiar to the criminal law to make him take the risk." United States v.

Wurzbach, 280 U.S. 396, 399 (1930). 

92 That political parties are the speakers is also relevant because since most of their

communications are election-based speech, especially those that identify candidates, there

is less potential for chilling pure issue advocacy. 

65

Even if the above factors were not enough to save Section 201 from a vagueness

attack, those factors, combined with the identity of the speaker being restricted and the fact

that it is a restriction on a contribution (as opposed to an expenditure), would still rescue

Section 301(20)(A)(iii). Because political parties are sophisticated participants in the

election arena, they are much more likely to recognize the line between candidate advocacy

and genuine issue advocacy. See Colorado II, 533 U.S. at 453 ("[T]he party marshals [the

power to speak] with greater sophistication than individuals generally could.").90 Political

parties, more than others, are also more likely to assume the risk that they have crossed the

line.91 In short, the argument that Section 301(20)(A)(iii) is unconstitutionally vague rings

hollow as it applies to parties who are experts in the business of discerning what

combination of words and images help, or harm, candidates.92

Vagueness concerns are also less pronounced with regard to contributions than

expenditures. When restrictions on expenditures are at issue, one must be concerned that if
66

the potential speaker cannot discriminate between issue advocacy and candidate advocacy,

then the speaker will shy away from speaking at all. The restrictions at issue here, however,

only require that Section 301(20)(A)(iii) communications be funded with federal money, so

if the political parties are afraid that a communication may promote or attack a candidate,

they can simply resort to federal funds. In any event, if despite all of the mitigations, some

slight potential for vagueness remains, "uncertainty at the periphery" does not render a

provision unconstitutionally vague. See FEC v. National Right to Work Comm., 459 U.S.

197, 211 (1982).

In sum, Section 301(20)(A)(iii), in its application to Sections 323(a) and 323(b), is

neither unconstitutionally vague, nor insufficiently tailored to serve the compelling

government interest of combating the appearance of corruption. By seeking only to restrict

donations that can give rise to actual or apparent corruption, it sweeps neither too far nor too

near. To the extent that "issue ads" are about issues in fact, as well as in name, political

parties are free to raise as much soft money as they like for such advertisements. In contrast,

soft money donations to political parties used for communications that support or oppose a

clearly identified candidate for federal office—that is, candidate advocacy—directly affect a

federal election and give rise to an appearance of corruption that Congress has a substantial

interest in combating. Such candidate advocacy must be funded with federal money.

A final note on Section 301(20)(A)(iii). Requiring parties to fund Section

301(20)(A)(iii) communications with federal money not only serves the government interest
93 Title I does not, however, prevent circumvention of existing limitations on

contributions to candidates in the manner set forth by the Supreme Court in Buckley, 424

U.S. at 38, and Colorado II, 533 U.S. at 456 & n.18. Even before BCRA was enacted,

because of existing party limitations on direct contributions to and coordinated

expenditures on behalf of candidates, see 2 U.S.C. § 441a(d); Colorado II, 533 U.S. at

440-65, donors could not use the parties to funnel large sums of money directly to

candidates in the form of contributions. Thus, any reliance on the Supreme Court's anticircumvention rationale in Buckley and Colorado II, see J. Kollar-Kotelly Op. at Part

III.II.B.2.a.iii, necessarily dictates a novel application of that precedent.

67

of preventing actual and apparent corruption, but also prevents circumvention of campaign

laws and principles. See NCPAC, 470 U.S. at 500 (noting the Court's "deference to a

congressional determination of the need for a prophylactic rule").93 Under Section 441b of

FECA, corporations and unions are prohibited from using general treasury funds for

independent expenditures expressly advocating the election or defeat of a particular federal

candidate. 2 U.S.C. § 441b; see also MCFL, 479 U.S. at 241-64. If the backup definition of

"electioneering communications" under Section 203 of BCRA is upheld, BCRA § 203(a);

FECA §§ 316(a), (b)(2); 2 U.S.C. §§ 441b(a), (b)(2), corporations and unions would be

additionally prohibited from using their general treasuries to fund candidate advocacy pieces

which promote, oppose, attack, or support federal candidates. BCRA § 201(a); FECA §

304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). Most of the largest nonfederal money

contributions to parties are by corporations and unions. See supra note 77. Thus, if national

and state parties were allowed to spend unlimited amounts of nonfederal money on

candidate advocacy, corporations and unions could largely circumvent the new BCRA

Section 203 by funneling unlimited funds through political parties to pay for advertisements
68

that they are now prohibited from broadcasting under Section 441b of FECA. To allow such

a circumvention in that manner would be ludicrous. Finally, to permit national (or state or

local) parties to convert nonfederal donations, whether from the general treasuries of

corporations and unions, or from wealthy individuals and MCFL groups, to the federal

purpose of directly influencing a federal election through candidate advocacy of the type

defined in Section 301(20)(A)(iii) is, in and of itself, a direct circumvention of a

fundamental premise of the FECA regulatory scheme relating to donations, blessed by the

Supreme Court in Buckley and its progeny: only federal money may be used to directly

influence a federal election. As long as the Buckley line of cases remains the law, it would

make a mockery of those Supreme Court cases and the current regulatory scheme to allow

political parties to use soft money to engage in what Justice Kennedy has aptly described as

"covert advocacy." Shrink Missouri, 528 U.S. at 406, 407 (Kennedy, J., dissenting).

C. New FECA Section 323(d): Nonfederal Fund Restrictions on Tax-Exempt

Organizations 

Section 323(d) prohibits national, state, and local parties from donating either soft or

hard money to, or soliciting for, either: (1) a Section 527 organization; or (2) a Section

501(c) organization if that organization makes expenditures in connection with a federal

election, including expenditures for "federal election activity" as defined in Section

301(20)(A). BCRA § 101(a); FECA § 323(d); 2 U.S.C. § 441i(d). Judge Henderson strikes

down the entire section as unconstitutional. I concur in her judgment, but for different
69

reasons.

First, I would note that the defendants argue that the donation and solicitation

restrictions should be reviewed under closely-drawn scrutiny. See Intervenors Opp'n Br. at

21-23. While I agree with the defendants that Buckley's closely-drawn scrutiny should apply

to donation limitations to organizations as well as candidates, it is less clear which scrutiny

should apply to the solicitation restriction. See J. Henderson Op. at Part IV.D.4. However,

if the restriction on solicitation cannot even withstand closely-drawn scrutiny, there is no

need to choose between the standards of review. Cf. Blount v. S.E.C., 61 F.3d 938, 942-43

(D.C. Cir. 1995). 

As to the statute itself, Section 323(d) prevents national parties from donating any

funds to certain Section 501(c) organizations. This complete ban on donations infringes the

various parties' abilities to effectuate their members voices, and because it is not even

closely drawn to serve a sufficient government interest, it cannot withstand scrutiny. 

Section 323(d) is not closely drawn as to Section 501(c) organizations because it prohibits

solicitation for and donations to those organizations merely because they have made, in

effect, expenditures for federal purposes in the past, and regardless of whether those

donations will be used again for that very purpose. By not specifying the purpose for which

the money will be put, Congress, in effect, is prohibiting solicitation for and donations to

these Section 501(c) organizations that might in turn be used for nonfederal or mixed

purposes. Congress, of course, can only do this if it could show that a sufficient government
94 For example, the California Republican Party funds Section 527 organizations to

engage in voter registration activities in its Operation Bounty program. See Erwin Aff. ¶

9.

70

interest was being served by doing so. It has not. As discussed at length earlier, the only

restrictions on uses of nonfederal funds that can be constitutionally regulated are uses that

directly affect a federal election. See supra Parts I.A.2 & I.B.2. Any other use of the

donation is too tangential to give rise to the risk of corruption, or appearance of corruption,

that is necessary to warrant this congressional infringement on First Amendment rights. To

say the least, the defendants have not produced sufficient evidence to demonstrate that an

appearance of corruption, let alone corruption itself, arises when organizations of this type

use donations from national, state, and local parties for nonfederal or mixed purposes.

Section 323(d) is also constitutionally problematic as a result of its treatment of

Section 527 organizations. Section 527 organizations, according to the applicable IRS

definition, exist, in part, to influence the selection, nomination, election, or appointment of

individuals to state and local public offices, as well as to various political organizations. 26

U.S.C. §§ 527(e)(1) and (2). Accordingly, since Section 527 organizations could expend the

solicited or donated funds for one of these nonfederal or mixed purposes,94 the blanket

prohibition in Section 323(d) on national, state, and local parties from assisting them in this

manner is similarly not closely drawn. Perhaps if Congress had structured Section 323(d)

like Section 323(b) and prohibited these organizations from using nonfederal funds—which

they had received from national, state, and local parties—to directly affect federal elections,
95 Soft money donations to federal candidates, regardless of whether they are used

for nonfederal purposes by the candidates thereafter, can give rise to actual or apparent

corruption, especially if the donation is of any magnitude. In those circumstances, it is

natural for the public to presume that the donation will either be used to help the federal

candidate get elected or in some other way that directly enures for his/her benefit. Either

way, the perception of a personal gain, and the sense of indebtedness that follows

therefrom, justly warrants Congress's regulation.

71

it might have been able to demonstrate that the restriction was closely drawn to serve the

sufficient government interest required under any standard of review to justify these

infringements. But it did not. Therefore, for all of the above reasons, I conclude that

Section 323(d) is unconstitutionally overbroad.

D. New FECA Section 323(e): Nonfederal Fund Restrictions on Federal Candidates 

Judge Henderson and Judge Kollar-Kotelly uphold Section 323(e) in its entirety. 

While I concur to the extent that this section prohibits federal officeholders and candidates

from receiving, directing, transferring, or spending any nonfederal funds in connection with

any election, including the kind of election activity defined in Section 301(20)(A),95 I

dissent with regard to the prohibition on a federal candidate, or officeholder, from soliciting

funds for the benefit of his national party, especially since Congress can and has legally

prohibited the parties (national, state, and local) from using nonfederal funds to directly

influence federal elections. Accordingly, I am writing separately to dissent in part from, and

concur in part in, their opinions.

With regard to the First Amendment rights of federal candidates and officeholders to
72

solicit soft money funds for the use of their parties, I would dissent principally on the basis

that the defendants have failed to demonstrate that soliciting nonfederal funds to be used by

parties for purposes that, at most, indirectly affect federal elections is regulable by Congress. 

For example, donations used for such activities as party building, newsletters, genuine issue

advocacy, and generic voter mobilization so indirectly affect federal elections, if at all, that

they do not give rise to the minimally necessary appearance of corruption to warrant

congressional intervention.

Indeed, soliciting donations to be used for the national party on such mixed (and/or

nonfederal) purposes is the kind of conduct by officeholders which the public not only

would expect them to participate in, but which is fundamental to the successful operation of

the major national parties. To the extent that helping their parties in this way provides

officeholders with some added status among other party officials, in my judgment, is too

attenuated a benefit to give rise to the appearance of corruption necessary to warrant

congressional intervention. See supra Part I.A.3. Accordingly, I concur in part in, and

dissent in part from, the holding of my colleagues.

E. New FECA Section 323(f): Nonfederal Fund Restrictions on State Candidates

Section 323(f) prohibits state candidates from spending funds for a communication of

the type discussed in Section 301(20)(A)(iii) unless the funds are subject to the limitation,

prohibitions, and reporting requirements of FECA (i.e., hard money). Restricting the use of
73

soft money by state candidates for communications that directly affect federal elections is,

of course, consistent with my preceding discussion of the constitutionality of Section

301(20)(A)(iii). By placing this restriction on state candidates Congress is simply guarding

against similar conversions of soft money donations to fund communications that are

designed to accomplish the federal purpose of directly influencing a federal election. Since

this section is closely drawn to uses of soft money by state candidates exclusively for that

purpose, I similarly uphold its constitutionality.

II. Title II: Noncandidate Campaign Expenditures

Sections 201, 204, 213

I join with Judge Henderson, but for different reasons, in holding that the primary

definition of electioneering communications set forth in Section 201 is unconstitutional. I

do not, however, join in her holding that the backup definition also provided in Section 201

is unconstitutional. 

To the contrary, I uphold the backup definition's constitutionality, as does Judge

Kollar-Kotelly who joins in my opinion as a necessary alternative to Judge Henderson's and

my finding the primary definition unconstitutional. The following are my reasons for

rejecting the primary definition and upholding the backup definition.

A. Section 201: The Primary Definition

Title II of BCRA is Congress's attempt to close certain loopholes in FECA and to
96 See J. Henderson Op. at Part IV.A.

97 See J. Kollar-Kotelly Op. at Part III.I.C.1 & Part III.I.C.2.

74

regulate certain conduct arising from the use, both directly and indirectly, of corporate and

union treasury funds to finance electioneering communications that directly affect federal

elections, even though masquerading otherwise as "pure issue advocacy." Because, in part,

Judge Henderson believes that Buckley and its progeny set forth a bright line test requiring

the presence of certain "magic words" advocating the election or defeat of a federal

candidate in order for this advocacy to be regulable by Congress, she strikes down both the

primary and backup definitions.96 Judge Kollar-Kotelly and I disagree with this reasoning,

and I join in the portion of her opinion analyzing why the Supreme Court never intended the

so-called express advocacy test to be a constitutional rule of law limiting the power of

Congress to regulate expenditures for certain uncoordinated advocacy that directly affects

federal elections, notwithstanding the absence of these words.97

While Judge Kollar-Kotelly and I agree regarding Congress's power to regulate the

source of the funds used for these communications and the disclosures that donors must file,

I do not agree that the primary definition, as crafted by Congress, is sufficiently tailored to

regulate the electioneering advocacy it seeks to cover. To the contrary, the primary

definition, which regulates communications referring to clearly identified federal candidates

based upon when and where they are broadcast, rather than their effect on federal elections,

sweeps so broadly that it captures too much First Amendment protected speech that
98 For example, last fall alone, in the period immediately preceding the 2002

congressional election, Congress considered the following important, and controversial,

pieces of legislation: a resolution authorizing the use of armed force against Iraq, (H.J.

Res. 114, 107th Cong.); an election reform bill to update ballot machines and provide

greater access to individuals with disabilities to polling places (H.R. 3295, 107th Cong.);

legislation to establish the Department of Homeland Security (H.R. 5710, 107th Cong.);

75

Congress, in the absence of a demonstrated compelling government interest, has no power to

regulate. What type of speech is that?

The plaintiffs have clearly demonstrated that corporations, interest groups, labor

unions and other entities air genuine issue advertisements in the periods immediately

preceding general and primary elections, the sole purpose of which is educating the viewers

about an upcoming vote on pending legislation, and encouraging them to inform their

elected representative to vote for or against the bill (i.e., legislation-centered

advertisements). Edward Monroe, Director of Political Affairs for Associated Builders and

Contractors ("ABC"), explained that "serious legislative initiatives or regulatory proposals

often are considered near the time of elections." Monroe Decl. ¶¶ 18-19. Laura Murphy,

legislative director for the ACLU, seconds this: "[The] 60 days before a general election

and 30 days before a primary . . . are often periods of intense legislative activity. During

election years, the candidates stake out positions on virtually all of the controversial issues

of the day. Much of the debate occurs against the backdrop of pending legislative action or

executive branch initiatives." Murphy Decl. ¶ 12. See also Mann Cross Exam. at 176

(explaining that a flurry of legislative activity occurs near the end of a congressional session,

therefore, often within the 60 day period preceding a general election); Finding 359.98
and various appropriations bills for federal departments, including the Departments of

Defense, Justice, and State. While last fall's legislative calendar may not be typical, it

nevertheless illustrates BCRA's potential impact on genuine issue advocacy. Murphy

Decl. ¶ 12 (“Some of the President’s or Attorney General’s boldest initiatives are

advanced during election years—often within 60 days of a general election. This year, for

instance, legislation creating a new federal department of Homeland Security is under

consideration during this pre-election period.”).

99 See Finding 359 n.224.

100 See Finding 358 (statement of Dr. Gibson, rejecting the defendants' argument

that it is unproductive to run legislation-centered issue advertisements focusing on policy

matters in the periods before elections).

101 See Findings 358-60.

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Notwithstanding defendants' expert testimony to the contrary,99 interest groups

believe, and plaintiff's expert agrees,100 that the periods immediately preceding elections are

the most effective times to run issue advertisements discussing pending legislation because

the public's interest in policy is at its peak.101 Edward Monroe of ABC explains that "it is . .

. clear that members of the public are generally more receptive to and engaged in

considering government policy ideas and issues as elections near. If that is the time when

people will listen, that is the time to speak. And once an election occurs, there seems to be a

period of fatigue during which political matters are of less interest, making issue ads then

less effective.” Monroe Decl. ¶¶ 18-19; see also Finding 359. Likewise, Paul Huard, Senior

Vice President for Finance and Administration for the National Association of

Manufacturers ("NAM"), finds that "Americans tend to have greater interest in political

matters as an election approaches. At the same time, elected officials are most attuned to the
77

views of their constituents in the pre-election period. Thus, for many purposes, the

pre-election season is a critical time for issue ads." Huard Decl. ¶ 10; see also Finding 359.

The mere fact that these issue advertisements mention the name of a candidate (i.e.,

the elected representative in whose district the advertisement ran) does not necessarily

indicate, let alone prove, that the advertisement is designed for electioneering purposes. To

the contrary, the testimony of various plaintiffs' witnesses indicates that, in their experience,

there are many reasons why it is helpful, if not necessary, to mention a candidate's name in

these advertisements in order to focus the public's attention on a particular pending piece of

legislation. For example, Paul Huard of NAM states "[t]here are many reasons that an issue

ad may need to refer to the name of an elected official or candidate. Many bills are

identified with particular sponsors and may be known by the sponsors' names. Also, both

incumbents and candidates may be prominent people whose support or opposition to a bill

or policy may have important persuasive effect. . . . Also, if an issue ad is used to explain

why a legislative position of a particular Member of Congress is good for his or her district

or state, the member generally must be mentioned. The same is true if the purpose of the ad

may be to induce viewers to contact the Member and communicate a policy position." 

Huard Decl. ¶ 12 (emphasis added); see also Finding 293. Similarly, Denise Mitchell,

Special Assistant for Public Affairs to the AFL-CIO, concurred, explaining that it is often

necessary to refer to a federal candidate by name because "[t]he express or implied urging of

viewers or listeners to contact the policymaker regarding [an] issue is . . . especially
102 The advertisement aired in the districts of Congressman Chris John (LA-07);

Congressman Scott Klug (WI-02); Congresswoman Jo Ann Emerson (MO-08);

Congresswoman Anne Northup (KY-03); Congressman Jack Kingston (GA-01); and

Congressman Rick White (WA-01), and referred to those federal candidates by name. 

See Finding 368.

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effective by showing them how they can personally impact the issue debate in question." 

Mitchell Decl. ¶ 11; see also Finding 293. A quick review of a classic example of a

legislation-centered genuine issue advertisement demonstrates these points.

In 1998, the AFL-CIO aired an advertisement entitled "Barker." The advertisement 

referred to a federal candidate by name only in the call-to-action line at the end of the

advertisement where it urged viewers to call their Member of Congress and express their

position regarding the pending Fast Track trade legislation. The legislation was scheduled

for a vote in the House of Representatives on September 25, 1998—within 60 days of the

general election. The text of the advertisement is as follows:102

Paid for by the Working Men and Women of the AFL-CIO. [Barker

speaking]: Okay ladies and gents, step right up and see if you can follow the

ball. Is it here? Is it there? Where could it be? [Voice over]: They're playing

games again in Washington. Without discussion or debate, they're planning

another vote on the controversial Fast Track law—special powers to ram

through trade deals like NAFTA. Fast Track failed last year because working

families don't want more trade deals that put big corporations first; deals that

ignore our concerns about lost jobs; environmental problems on our borders,

and dangerous, imported foods. But Newt Gingrich and the sponsors of Fast

Track hope they can sneak it by this fall, while public attention is focused on

other issues. [Barker speaking]: Keep your eyes on the ball now . . . [Voice

over]: Call Representative _____ at xxx-xxx-xxxx and tell him to vote no on

Fast Track. Tell him we're still paying attention. And Fast Track is still a bad

idea.

Mitchell Decl. Exhibit 116, Exhibit 1 at 86. Defendants' own expert, David Magleby, who
103 See Finding 290 (discussing the indicia of electioneering advertisements).

104 McConnell Opening Br. at 65 (arguing generally that genuine issue advocacy

will be regulated by BCRA); NRA Opening Br. at 26.

79

stated in his report that he would "presume" an advertisement is electioneering merely

because it mentions a federal candidate by name,103 candidly admitted after reviewing

"Barker" that such an advertisement is a "genuine" issue advertisement. He concluded as

such—even though it mentions a federal candidate's name—because "[t]he body of the ad

has no referent to [a candidate] whatsoever. The only referent to [the candidate] is the call

line." Magleby Cross Exam. at 104.

[A] generic call your Congressman, call your Senator, when

then linked to a legislation and call your Congressman or

Senator about this legislation without a referent to their

position on the issue, seems to me substantively different

than when they are mentioned in view of what their position

is on that issue. Q. When you say substantively different, are

you referring to a difference with respect to whether the

advertisement communicates an electioneering message? A.

Yes.

Magleby Cross Exam. at 106. 

Because genuine issue advertisements, like "Barker," have been, and will need to

be, aired during periods of legislative activity leading up to elections, plaintiffs contend

the primary definition, if upheld, will capture them as "electioneering

communications."104 As such, they will be subjected to a host of limitations and

regulations which, according to the plaintiffs, will limit and chill their ability to engage in

First Amendment protected speech. I agree. 
80

The crux of the problem with the primary definition is that, unlike the backup

definition, it does not depend on the effect of the communication's message on a

candidate's election. As such, many genuine issue ads, like "Barker," will be treated the

same as the sham "issue" ads Congress supposedly was intending to regulate. It is the

absence of a link between the advocacy of an issue and a candidate's fitness, or lack

thereof, for election that renders congressional intervention with respect to genuine issue

ads of this type unconstitutional. Notwithstanding the absence of this link, defendants

contend, and Judge Kollar-Kotelly agrees, that the evidence sufficiently demonstrates that

even though some genuine issue advertisements that run in the months leading up to an

election will be swept in under this definition, it is too insufficient a number to render the

primary definition constitutionally defective. I disagree. 

The plaintiffs have met their burden in this facial challenge because they have

shown that BCRA's primary definition "reaches a substantial amount of constitutionally

protected conduct." City of Houston v. Hill, 482 U.S. 451, 458 (1987) (quoting Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)) (emphasis

added). Plaintiffs, in short, have demonstrated from the statute's "text . . . and from actual

fact that a substantial number of instances exist in which the [l]aw cannot be applied

constitutionally." New York State Club Ass'n v. City of New York, 487 U.S. 1, 14 (1988)

(emphasis added). These instances are not merely "'some' overbreadth," Ashcroft v.

ACLU, 535 U.S. 564, 584 (2002) (quoting Reno v. ACLU, 521 U.S. 844, 896 (1997)), or a
105 Gov't Opening Br. at 159; Gov't Opp'n Br. at 68.

106 The definition itself—a content-indifferent definition based on time and

location alone—is a novel approach to regulating campaign speech. See Richard L.

Hasen, Measuring Overbreadth: Using Empirical Evidence to Determine the

Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy, 85 Minn.

L. Rev. 1773, 1777-78 (2001) (drawing a distinction between "'intent tests,'" like the

backup definition, that usually require a "factfinder to determine whether the person or

group sponsoring the advertisement intended to influence the outcome of an election,"

and the "'bright line'" tests which "attempt to regulate all advertisements that meet certain

objective criteria.").

81

"single" or "bare possibility" of an impermissible application. Members of City Council

of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 & n.19 (1984)

(quoting Broadrick v. Oklahoma, 413 U.S. 601, 630 (1973) (Brennan, J., dissenting)). 

Instead, the plaintiffs have shown, as the Supreme Court aptly put it in Vincent, that

BCRA presents "a realistic danger that the statue will significantly compromise

recognized First Amendment protections of parties not before the Court." Id. at 800-801. 

The evidentiary basis of both the plaintiffs' and defendants' arguments concerning

the primary definition's overbreadth is the Buying Time 1998 and Buying Time 2000

studies. While the defendants correctly contend that plaintiffs carry the burden to show

that BCRA is substantially overbroad,105 the studies defendants rely upon to show that it

is narrowly tailored106 are, in essence, a highly controversial "survey" of the ads run in the

months leading up to the 1998 and 2000 elections. Judge Henderson correctly notes in

her opinion, see J. Henderson Op. Part IV.A, that the parties "quarrel at length" regarding

the significance of the Buying Time studies and, in particular, its conclusions regarding
107 Judge Henderson accords no evidentiary weight to the Buying Time studies. See

J. Henderson Op. at Part III.B.2 & Part IV.A. See also Findings 322-33 and 344-48 for a

discussion of how the criticisms of the Buying Time studies do not preclude this Court

from relying on those studies for the purposes of this litigation. 

82

the percentage of genuine issue advocacy that would be improperly regulated by Section

201 of BCRA. Unlike Judge Henderson, I believe that the Buying Time studies are

entitled to some evidentiary weight.107

However, I do not believe that the studies' statistical conclusions are the last word in

this Court's analysis of whether or not the primary definition is overbroad. With the respect

to the percentage of protected, political speech that is, or will be, regulated by BCRA, it is,

of course, impossible to quantify the exact percentage with absolute certainty. See New York

v. Ferber, 458 U.S. 747, 773 (1982) (explaining that "[h]ow often, if ever" the statute at issue

in Ferber would regulate protected speech "cannot be known with certainty. Yet we

seriously doubt, and it has not been suggested, that these arguably impermissible applications

of the statute amount to more than a tiny fraction of the materials within the statute's reach.").

Thus, it is important not to overstate the significance of the Buying Time studies when using

them as the basis of a finding of unconstitutional overbreadth. After all, the studies did not

analyze every advertisement that ran in every market during the 1998 and 2000 elections.

Instead, they analyzed the top 75 media markets, encompassing eighty percent of the

advertisements runs during those elections. See Findings 315-17. I do not state this fact to

suggest that every ad had to be reviewed before the studies could be deemed credible, rather,

that the percentages produced by the studies may, in fact, be an overstatement, or
108 Gov't Opp'n Br. at 74. Defendants argue that the 1998 formula best "measures

the impact of BCRA on the universe of genuine issue ads aired in any particular calendar

year and, thus, answers the critical question at the heart of any analysis of BCRA's

potential overbreadth, i.e., the amount of genuine issue advocacy that BCRA would

subject to regulation." Gov't Reply Br. at 72.

109 McConnell Opening Br. at 67; McConnell Reply Br. at 35-36 (offering an

analogy to explain the methodology of the two formulas).

83

understatement, of the statute's overbreadth. See Findings 317-18. In addition, I would note

that the Buying Time 2000 study did not analyze advertisements run in the 30 days preceding

a primary or preference election, even though such ads aired during that period are entirely

regulable by BCRA's primary definition. See Finding 316.

Furthermore, this Court, in my judgment, cannot rely upon the results of the two,

Buying Time studies without analyzing, to some extent, the parties' dispute regarding the

formulas used to produce those results. The defendants favor the formula used in the 1998

study,108 which compares the total number of genuine issue ads regulated by BCRA to the

total number of genuine issue ads run in a calendar year. See Findings 335, 336, 337. The

result is the percentage of all genuine issue advocacy that would have been regulated by

BCRA in the course of that year. The plaintiffs, however, contend that the 1998 formula

misstates BCRA's impact because it includes ads that were run outside the 60-day period

preceding a general election, and therefore would not have been subject to regulation under

the primary definition. See Findings 336, 338. According to the plaintiffs, the formula

applied in the Buying Time 2000 study more accurately reflects BCRA's impact by focusing

on the exact period of time regulated by BCRA: the 60 days preceding a general election.109
110 Gov't Opp'n Br. at 73 (explaining the 2000 formula); see also Finding 338.

111 See Finding 336.

112 See Lupia Rebuttal Report at 25. Defendants' expert, Dr. Arthur Lupia,

concludes that while either formula is reasonable, the 2000 formula "could provide

information about the impact during a particular time period," that is, the 60-day period in

when BCRA applies. See also Finding 340.

84

Looking at ads aired only during that 60-day period, the 2000 formula compares the number

of genuine issue ads to the total number of ads, thereby calculating the percentage of all ads

that would have been regulated by BCRA that were genuine issue ads.110 

As the Supreme Court in Broadrick v. Oklahoma stated that a statute's overbreadth

must be "judged in relation to the statute's plainly legitimate sweep," I find that the 2000

formula more accurately measures BCRA's impact. 413 U.S. 601, 615 (1973). The results

produced by the 1998 formula do not assist this Court in comparing BCRA's overbreadth to

its "plainly legitimate sweep," because it measures ads that never would have been regulated

by BCRA.111 While the 1998 formula shows BCRA's impact on all genuine issue advocacy

over the course of a calendar year, that information is of limited value when BCRA's primary

definition applies only in the 30 days preceding a primary election and the 60 days before a

general election.112

Applying the 2000 formula to the data collected during the 1998 and 2000 studies

shows that the primary definition's overbreadth is neither speculative nor hypothetical, but

real and substantial. In 1998, of the ads that met BCRA's primary definition and were aired

in the 60 days preceding a general election, 14.7 percent were genuine issue advocacy. See
85

Finding 339. As to 2000, however, the Buying Time 2000 study concluded that figure was

only 2.33 percent. See Finding 357. That percentage, however, was later increased by

Professor Goldstein, who compiled the data base that served as the foundation of the Buying

Time studies. Professor Goldstein testified on cross examination that he had reevaluated the

results of the study for the purposes of this litigation and concluded that, in fact, 17 percent

of the ads that met BCRA's primary definition and were aired in the 60 days preceding the

2000 general election were genuine issue advocacy. See Finding 357; see also Goldstein

Cross Exam. at 160, 169; McConnell Reply Br. at 36-37. Percentage discrepancies aside, I

find that 14.7 percent and 17 percent of the ads run in the months leading up to the 1998 and

2000 elections, respectively, represents a "substantial amount" of protected speech and

renders the primary definition defective as constitutionally overbroad. 

But these statistics, alone, do not present the full picture of BCRA's impact on genuine

issue advocacy in the 60 days preceding a general election. Indeed, determining whether

BCRA's primary definition reaches a substantial amount of constitutionally protected issue

advocacy is not simply a function of calculating the percentage of pure issue ads that would

have been captured by that definition during the 60-day period preceding the 1998 and 2000

federal elections. Because the total amount of issue advocacy likely to be generated in any

given election year is a function of both the quantity and nature of the issues Congress

chooses to address in that pre-election period, those numbers should not be viewed in a

legislative vacuum. Ideally, this court should additionally assess whether the legislative
86

agendas in 1998 and 2000 were unusually active, controversial or both. Regrettably,

however, the record does not lend itself to such an analysis. Obviously, the more active

and/or controversial the legislative schedule, the greater (or lesser) the amount of issue

advocacy one would expect it to have generated. Simply put, the amount of pure issue

advocacy captured in a particularly contentious, or active, legislative period, is likely to be

higher than that captured in a slow, or routine, legislative period. Furthermore, restricting

14.7 percent of genuine issue advocacy in 1998 would have restricted otherwise protected

speech that would have been seen in 30 million American homes, a number that brings into

sharp relief the effect BCRA will have on the amount of information available to voters. See

Finding 335. Accordingly, for the reasons stated previously, there is reason to believe that

the amount of issue advocacy likely to be generated in future election cycles will be at least

as substantial as it was during those years.

Ever mindful that overbreadth is "strong medicine" to be used "sparingly and only as

a last resort," Broadrick, 413 U.S. at 613, I do not lightly find that the primary definition of

electioneering communications is substantially overbroad. However, the realistic danger that

the primary definition of electioneering communications will significantly compromise

genuine issue advocacy necessitates such a finding. In circumstances such as these, "the

possible harm to society in permitting some unprotected speech to go unpunished is

outweighed by the possibility that protected speech of others may be muted." Ashcroft v.

Free Speech Coalition, 535 U.S. 234, 255 (2002) (quoting Broadrick, 413 U.S. at 612). I
113 See McConnell Opening Br. at 75-77; J. Henderson Op. at Part IV.A.

87

therefore find that the primary definition of electioneering communications is

unconstitutionally overbroad.

I do not, however, join in Judge Henderson's conclusion that both the primary and

backup definitions of electioneering communications are unconstitutional due to

underinclusion. Plaintiffs argue, and Judge Henderson agrees, that Section 201 must fail

because it regulates only broadcast and cable communications, but does not regulate other

mediums of communication such as print, direct mail, and the internet.113 I disagree and join

Judge Kollar-Kotelly's analysis on that issue. See J. Kollar-Kotelly Op. at Part III.I.F.

However, one point bears emphasizing: Congress is infinitely more familiar than this Court

with the circumstances and practical ramifications surrounding federal elections and

campaign finance laws. The record thoroughly, and convincingly, demonstrates that

Congress's decision to regulate broadcast communications, rather than other forms of

communication, was well justified. Congress, as defendants argue, "need not regulate the

entire universe of activity intended to influence federal elections" in order to constitutionally

regulate electioneering communications. Gov't Opp'n Br. at 96. As Congress, in its

expertise, has made this judgment and the record "demonstrates that the recited harms

[justifying a statute] are real," plaintiffs' argument that the statute is unconstitutional for

underinclusion is unavailing. Turner I, 512 U.S. at 664.
114 See Krasno & Sorauf Expert Report at 53; Goldstein Report at 10, 16, 31

(noting that in the 1998 election cycle, only four percent of ads sponsored by candidates

or parties used words of express advocacy, and in 1996 through 2000, FECA did not

regulate a majority of ads aired by interest groups: for every interest group ad regulated

by FECA in 2000, twenty ads that mentioned federal candidates were not covered). See

also Finding 272.

88

B. Section 201: The Backup Definition

Unlike the primary definition, the backup requires as a link between the identified

federal candidate and his election to that office, certain language the purpose of which is

advocacy either for, or against, the candidate. For the same reasons that the absence of that

link doomed the primary definition, it sustains the backup.

Congress concluded, and the record more than adequately demonstrates, that in the

twenty-eight yearssinceBuckley, corporations, unions, and interest groups, have increasingly

affected federal elections by funding out of their general treasuries uncoordinated "issue ads"

that either they, or a political party, ran in the months leading up to an election. See Findings

280-84, 296-301; see also Annenberg Study at 1, 4, 3, 7-8 (showing that the number of issue

advertisements has increased, as well as the number of groups airing them, from 1996 to

1998, and that corporations, interest groups, and unions began in 1996 to actively use

treasury funds to sponsor issue advertisements that "looked and sounded like campaign

ads."). In order to avoid regulation as express advocacy, those so-called "issue

advertisements" did not contain certain "magic words" designed to support or oppose a

specific candidate's election or re-election.114 The ads, however, were constructed in such

a way that they simultaneously presented their sponsors' stand on an issue, identified a
115 The ads have also been described as "electioneering ads" or "issue ads." See

Findings 288-89.

116 Intervenors Opening Br. at 108; see generally Gov't Opening Br. at 142-46;

Intervenors Opening Br. at 104-109.

89

specific candidate's positions or track record thereon, and under the guise of admonishing the

viewer to inform the candidate of his view, suggested that a candidate who takes (or has

taken) the candidate's position should (or should not) be elected to that office. Ads such as

these have been typically described as "sham issue advertisements,"115 or candidate-centered

advertisements, and the factual record unequivocally establishes that they have not only been

crafted for the specific purpose of directly affecting federal elections, but have been very

successful in doing just that. See Findings 273-74. Indeed, they have been so successful that

it is widely believed in the industry that old fashioned express advocacy of the "magic words"

type is far less effective in winning over a viewer's vote. See Findings 273-74, 279; see also

Bailey Decl. ¶¶ 1-2 (stating that "it is rarely advisable to use such words as 'vote for' or 'vote

against.'").

Defendants contend that because these sham issue ads, in essence, directly affect

federal elections, candidates are "beholden" to those who fund them.116 It is that

indebtedness, according to the defendants, that if left unregulated, will undermine the public's

confidence in the integrity and fairness of our electoral process in the same way that

unregulated express advocacy otherwise would, and thereby give rise to corruption or the
117 The Mellman and Wirthlin poll, which was conducted from August through

September 2002, showed that 80 percent of those polled believed a Member of Congress

would be likely to give special consideration to a group that had run issue ads on his or

her behalf. Mellman and Wirthlin concluded that "Americans see very little difference

between the influence of a soft money donation to a political party and the funding of

political ads on television and radio." Mellman & Wirthlin Report at 9.

90

appearance of corruption. See Mellman and Wirthlin at 9-10.117 For essentially the same

reasons that I uphold Congress's definition of federal election activity in Section

301(20)(A)(iii),see supra Part I.B.2, I believe that large soft money expenditures to fund this

type of covert advocacy, regardless of whether corporations, labor unions, and interest groups

produce them themselves, give rise to a public perception that the candidate is being directly

benefitted and will naturally reciprocate with either favored access, or increased legislative

influence, or both. See id. Accordingly, the source of the funds used and the identity of the

sponsors are both, in my judgment, regulable by Congress.

Plaintiffs raise a number of arguments as to why the backup definition of

electioneering communications is "impermissibly vague." McConnell Opening Br. at 70.

First, they claim that "reasonable people can, and emphatically do, disagree about whether

virtually any particular advertisement meets the criteria of BCRA's fallback definition." Id.

As proof of the definition's vagueness, plaintiffs offer the deposition testimony of one of

BCRA's sponsors and one of defendants' expert witnesses, in which they disagree about

whether a particular ad is a genuine issue ad, or whether it promotes or supports a particular
118 See McConnell Opening Br. at 73 (discussing Senator John McCain's opinion

that a particular issue ad was a "sham" ad, while Dr. Holman, an expert witness, believed

the ad was genuine issue advocacy).

119 See id. at 72 (discussing deposition testimony of Senator Feingold and

Representative Meehan).

120 See McConnell Opening Br. at 70-75.

91

candidate.118 Plaintiffs also offer testimony of two Members of Congress, in which one

concludes that a particular ad supports a candidate, while the other concludes that the same

ad attacks the candidate.119 While BCRA's sponsors may disagree about the purpose and

effect of an ad, that fact alone does not demonstrate unconstitutional vagueness. Perfect

clarity, of course, is not required when a law regulates speech. As the Supreme Court said

in Grayned, "we can never expect mathematical certainty from our language." 408 U.S. at

110 (1972). For this reason, the Supreme Court has held that a statute's vagueness exceeds

constitutional bounds only when "its deterrent effect on legitimate expression is . . . both 'real

and substantial' and . . . the statute is [not] readily subject to a narrowing construction by

state courts." Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (quoting

Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)) (emphasis added). Moreover,

if a statute "gives the person of ordinary intelligence a reasonable opportunity to know what

is prohibited," it is not void for vagueness. Grayned, 408 U.S. at 108.

Next, plaintiffs contend that the definition's use of the words "promote," "support,"

"attack," and "oppose" to define the sponsor's message causes it to be unconstitutionally

vague.120 I disagree. The backup definition's language, specifically those words, is not void
92

for vagueness because a person of ordinary intelligence would understand what is prohibited.

See Grayned, 408 U.S. at 108. Indeed, one need only conclude, in effect, that the ad is not

neutral as to both candidates for it to have satisfied the backup definition, and thereby have

satisfied the objective First Amendment standard that a reasonable person considering the

context and nature of the expression at issue is able to evaluate the speech. Such objective

tests have routinely been applied in the First Amendment context. See, e.g., County of

Allegheny v. ACLU, 492 U.S. 573 (1989) (religious expression); Hess v. Indiana, 414 U.S.

105 (1973) (fighting words); Miller v. California, 413 U.S. 15 (1973) (obscenity);

Brandenburg v. Ohio, 395 U.S. 444 (1969) (fighting words). For example, the following

advertisement entitled "No Two Way" and sponsored by the AFL-CIO is not neutral as to a

federal candidate, as it attacks his or her position on the federal budget. Mitchell Decl. ¶ 41.

While former Congresswoman Andrea Seastrand is named, this advertisement also ran in

thirty-five other congressional districts, naming federal candidates from those districts.

CAROLYN: My husband and I both work. And next year, we'll have two

children in college. And it will be very hard to put them through, even with

the two incomes. [Announcer]: Working families are struggling. But

Congresswoman Andrea Seastrand voted with Newt Gingrich to cut college

loans, while giving tax breaks to the wealthy. She even voted to eliminate the

Department of Education. Congress will vote again on the budget. Tell

Seastrand, don't write off our children's future. CAROLYN: Tell her, her

priorities are all wrong.

Mitchell Decl. Exhibit 114. Congress is not, and should not be, constitutionally confined to

"bright line" tests such as the primary definition or the "magic words" formulation in

enacting campaign finance restrictions. A person of ordinary intelligence can be expected
121 See Finding 291.

93

to understand this test, and know what is prohibited.

However, while I do not believe that the words used to define the message are vague,

I do believe that the backup definition's final clause, which requires the message to be

"suggestive of no plausible meaning other than an exhortation to vote," is unconstitutionally

vague. In my judgment, it is extremely difficult, if not impossible, for a speaker to determine

with any certainty prior to airing an ad that it meets that requirement. Whether an ad is

suggestive of no plausible meaning other than an exhortation to vote depends on a number

of variables such as the context of the campaign, the issues that are the centerpiece of the

campaign, the timing of the ad, and the issues with which the candidates are identified.121

The "uncertain meaning[]" of this phrase in the backup definition will, as the Supreme Court

stated in Grayned, "inevitably lead citizens to steer far wider of the unlawful zone . . . than

if the boundaries of the forbidden areas are clearly marked." 408 U.S. at 109. The chilling

effect of this language does not doom the backup definition as unconstitutionally vague,

however, because it is susceptible to a saving construction. See Edward J. Debartolo Corp.

v. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1998) ("[E]very

reasonable construction must be resorted to, in order to save a statute from

unconstitutionality." (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); see also

Carlin Communications, Inc. v. FCC, 837 F.2d 546, 560-61 (2d Cir. 1988) (finding that as

"the presumption is in favor of severability," the court "dropped" the "invalid part" from an
94

FCC regulation, i.e., the words "or indecent," because "the remainder of the statute is fully

operative."), cert. denied, 488 U.S. 984 (1988).

The backup definition's susceptibility to a saving construction is a function of how it

is written. Because the offending phrase is simply appended to the end of the definition, it

can be excised without rewriting the entire definition. See Commodity Futures Trading

Comm'n, 478 U.S. at 841 ("Although this Court will often strain to construe legislation so

as to save it against constitutional attack, it must not and will not carry this to the point of

perverting the purpose of statute . . . or judicially rewriting it." (quoting Aptheker v. Secretary

of State, 378 U.S. 500, 515 (1964) (internal quotations omitted)). By so construing the

backup definition to avoid vagueness, the definition assures that there will be no real, let

alone substantial, deterrent effect on political discourse unrelated to federal elections.

Genuine issue advocacy thereby remains exempt from both the backup definition and its

attendant disclosure requirements and source restrictions. Similarly, genuine issue advocacy,

specifically of the legislation-centered type, that mentions a federal candidate's name in the

context of urging viewers to inform their representatives or senators how to vote on an

upcoming bill will not be regulated by the backup definition because it does not promote,

support, attack, or oppose the election of that candidate. See Findings 368-73 (providing

examples of legislation-centered advertisements that do not promote, support, attack, or

oppose the election of a federal candidate).

Indeed, the backup definition of electioneering communications with its final clause
122 See supra Part I.B.2.

95

severed is very similar to the type of "public communication" defined by BCRA's Section

301(20)(A)(iii) as "federal election activity." See BCRA § 301(20)(A)(iii). While the

arguments against vagueness applicable to Section 301(20)(A)(iii) are generally applicable

to the backup definition, one distinction is important to note: the sophistication in

electioneering communications of the parties being regulated is not equally applicable to the

backup definition. That said, however, I do not believe it is necessary to make a similar

finding here in regard to the comparative sophistication of corporations, labor unions, interest

groups, and other participants in political speech. Additionally, whatever chilling effect, if

any, the definitions of "public communications" and "electioneering communications" may

have are minimized in two, substantial ways: (1) corporations, labor unions, national banks,

individuals, and other entities can avoid regulation simply by not mentioning a candidate for

federal office in its ad, and (2) those groups may seek an advisory opinion from the FEC to

determine whether a communication is regulated by BCRA.122

Thus, the plaintiffs have failed to demonstrate that the vagueness of the backup

definition as severed is real and substantial enough to deprive a person of ordinary

intelligence a reasonable opportunity to know what is prohibited. As such, the backup

definition of electioneering communications is constitutional.
123 That is, (1) whether the corporation is "formed for the express purpose of

promoting political ideas, and cannot engage in business activities"; (2) "has no

shareholders or other persons affiliated," so that members have "no economic disincentive

for disassociating with it if they disagree with its political activity; and (3) the corporation

"was not established by a business corporation," and has a policy of refusing

"contributions from such entities." MCFL, 479 U.S. at 264.

96

C. Section 204: The Wellstone Amendment

While I join Judge Henderson in holding that Section 204 is unconstitutional as it

applies to MCFL nonprofit corporations, I do not agree that it is unconstitutional as it applies

to those nonprofit corporations that do not qualify for MCFL status. Therefore, I am writing

separately to explain my reasons for joining with Judge Henderson in part, and with Judge

Kollar-Kotelly in part who upholds the constitutionality of Section 204 for different reasons.

Defendants concede that Section 204 does not contain an exemption for MCFL

organizations. However, defendants argue that an exemption nonetheless exists for those

organizations because the Supreme Court in MCFL "carve[d] out an as-applied exemption

to restrictions on corporate election activity." Gov't Opening Br. at 167 (emphasis in

original). It is therefore inconsequential, according to the defendants, that BCRA does not

codify the MCFL exemption. The defendants' reasoning misses the mark.

Under FECA, nonprofit corporations were required to pay for express advocacy

expenditures from a separately segregated fund, rather than general treasury funds, unless

that corporation met the three requirements set forth by the Supreme Court in MCFL.

123

Section 203 of BCRA expands FECA's separately segregated fund requirement to apply not

only to corporate expenditures for express advocacy, but to expenditures by corporations,
124 See NRA Opening Br. at 17-24; ACLU Opening Br. at 16-17.

97

labor unions, and national banks for electioneering communications (i.e., nonexpress

advocacy), as defined by Section 201. Likewise, Section 203 expands the exemption for

nonprofit corporations from the separately segregated fund requirement of FECA. Whereas

only those nonprofit corporations that met the three requirements set forth in MCFL were

exempt from FECA's separately segregated fund requirement, Section 203 of BCRA ignores

completely the MCFL criteria and instead provides that all nonprofit corporations organized

under either Section 501(c)(4) or Section 527(e)(1) of the Internal Revenue Code may pay

for electioneering communications using general treasury funds, simply by virtue of their

incorporation under those sections. Doing so, in my judgment, was perfectly consistent with

both MCFL and Congress's power under the Elections Clause, U.S. Const. art. I, § 4.

What Section 203 provides, however, Section 204 takes away. As defendants

acknowledge, Section 204 completely cancels out the exemption for all nonprofit

corporations provided by Section 203. See Gov't Opening Br. at 164, n.115. Plaintiffs

contend, and Judge Henderson agrees, that Section 204 is unconstitutional because, in

essence, it contravenes the Supreme Court's decision in MCFL.

124 I, too, agree with this

conclusion, but I also believe that Section 204 is unconstitutional only in its application to

those nonprofit organizations exempted under MCFL. Congress, in my judgment, has the

authority to withdraw the exemption it provided in Section 203 to those nonprofit

corporations not exempted by MCFL. Thus, the fact that Section 204 applies to nonprofit
125 See generally Austin, 494 U.S. at 256-60; MCFL, 479 U.S. at 658-60; see also

Finding 284 (explaining that corporations and labor unions do not use the "magic words"

in sham issue advertisements in order to avoid source restrictions).

98

corporations does not, in and of itself, impair its constitutionality; the critical factor is

whether the nonprofit corporation that is being regulated is one protected from such

regulation by the MCFL holding.

Congress's authority to withdraw the expansion of the exemption rests on the same

basis as its authority to require non-MCFL, nonprofit corporations to use only separately

segregated funds to purchase electioneering communications: the demonstrated appearance

of corruption that arises if for-profit corporations and unions are able to funnel their general

treasury funds through nonprofit corporations in order to purchase electioneering

communications that they cannot otherwise purchase directly.125 Judge Kollar-Kotelly sets

forth this reasoning in the portions of her opinion upholding Section 203's prohibition on the

use of corporate and union treasury funds, and Section 201's disclosure requirements, for

corporations, unions, and nonprofit corporations. See J. Kollar-Kotelly Op. at Part III.I.E.1.a.

I concur in her reasoning and it needs no further repetition here.

Accordingly, for the reasons stated above and the relevant portions of Judge KollarKotelly's opinion, I hold that Section 204 is unconstitutional only in its application to MCFL,

nonprofit corporations.
126 According to the Party Expenditures Provision, 2 U.S.C. § 441a(d)(3), in

elections for the United States Senate, and for elections to the House of Representatives

in states entitled to only one House Representative, parties are limited to spending the

greater of $20,000, adjusted for inflation, or two cents multiplied by the voting age

population of the State where the election is held. In states entitled to more than one

House Representative, the coordinated expenditure limit for House campaigns is $10,000,

prior to adjustment for inflation. In 2000, the coordinated expenditure limit for House

campaigns was $33,780 per party. The limits for Senate races were as high as $1,626,438

(the coordinated expenditure limit for the California Senate race). See Press Release,

Federal Election Commission, FEC Announces 2000 Party Spending Limits (Mar. 1,

2000).

127 See Intervenors Opening Br. at 147 (citing Senator McCain, who explained that

Section 213 "helps to ensure that the expenditure [of the national political party] will be

truly independent . . . by prohibiting a party from making coordinated expenditures for a

candidate at the same time it is making independent expenditures for the same candidate."

149 Cong Rec. S2144 (daily ed. Mar. 20, 2002)).

99

D. Section 213: The Party Choice Provision

Under FECA, as interpreted by the Supreme Court in Colorado I, and Colorado II,

national party committees could make unlimited independent expenditures on behalf of a

federal candidate, as well as coordinated expenditures up to the amount provided for by the

Party Expenditure Provision, 2 U.S.C. § 441a(d).126

 BCRA, however, changes this by forcing

national parties, in effect, to choose between making coordinated expenditures and unlimited

independent expenditures on behalf of their federal candidates. The defendants contend that

such a choice is necessary, because once a national party coordinates with a candidate, no

expenditure thereafter is truly independent.127 While I agree that Congress can

constitutionally place restrictions on the ability of a national party to make coordinated

expenditures, Section 213's restriction on national party independent expenditures flies in the
128 While Judge Henderson agrees with us in the result, she writes separately to

state her reasons for doing so. See J. Henderson Op. at Part IV.C.

100

face of the Supreme Court's holding in Colorado I, and is therefore unconstitutional.128

The provisions of Section 213 are, as plaintiffs acknowledge, "relatively

straightforward." McConnell Opening Br. at 85. After the date on which a party nominates

its candidate, if it first makes an independent expenditure on behalf of that candidate, any

subsequent coordinated expenditure will be subject to the same $5,000 limitation that exists

for multicandidate committee expenditures, and not under the higher limitation set forth in

formula form in the Party Expenditure Provision of Section 441a(d) of FECA. Conversely,

if the party chooses to first make a coordinated expenditure on behalf of a candidate, thereby

taking advantage of the higher, formula-based dollar limitation under the Party Expenditure

Provision, it cannot thereafter make any independent expenditures on behalf of that

candidate. Additionally, Section 213 treats "all political committees established and

maintained by a national political party (including all congressional campaign committees)

and all political committees established and maintained by a State political party (including

any subordinate committee of a State committee)" as a "single political committee." Finally,

Section 213 forbids transfers, assignments, and receipt of funds by a committee of a political

party that has made a coordinated expenditure for a federal candidate to a political party

committee "that has made or intends to make an independent expenditure with respect to the

candidate." BCRA § 213; FECA § 315(d); 2 U.S.C. § 441a(d).

Plaintiffs argue that the practical effect of Section 213 is to "ban political parties from
129 In Colorado I, the Supreme Court, citing Buckley, stated that "restrictions on

independent expenditures significantly impair the ability of individuals and groups to

engage in direct political advocacy and 'represent substantial ... restraints on the quantity

and diversity of political speech.'" Colorado I, 518 U.S. at 615 (citing Buckley, 424 U.S. 

at 19). 

101

making independent expenditures at all (if they choose to make coordinated expenditures

first), and to ban them from making coordinated expenditures at all (if they choose to make

independent expenditures first)." McConnell Opening Br. at 86. As to the latter claim,

plaintiffs undoubtedly exaggerate Section 213's reach. While it is clear that it does prevent

national party committees that have made an independent expenditure on behalf of a federal

candidate from making coordinated expenditures up to the increased amount as calculated

under the formula in 2 U.S.C. § 441a(d), they are still able nonetheless to make coordinated

expenditures (or contributions) up to the $5,000 limitation provided in 2 U.S.C. § 441a(a)(2),

just like any other multicandidate committee. Thus, since the national political parties may

still make coordinated expenditures after making an independent expenditure first, the real

issue before this Court is the constitutionality of Congress's new provision prohibiting

national political party committees from making independent expenditures if it has first made

a coordinated expenditure on behalf of a federal candidate. Applying a strict scrutiny review

to this prohibition,129 I find that Section 213's restriction on independent expenditures by

national political parties is unconstitutional. 

The Supreme Court made clear in Colorado I that "[t]he independent expression of

a political party's views is 'core' First Amendment activity no less than is the independent
130 Specifically, the Court considered whether the parties' use of donor

contributions to fund independent expenditures, or the possibility that national parties

might funnel donors' contributions to candidates through independent expenditures in an

effort to evade the individual contribution limits, presented a risk of corruption. Id. at

616-17. 

131 While acknowledging that national political parties have a First Amendment

right to make independent expenditures, the defendants also contend that Colorado I

narrowly defines that right. According to the defendants, Colorado I stands for the

proposition that a national political party may make independent expenditures only if the

party has not yet selected its nominee. See Intervenors Opening Br. at 148-49. The

defendants further argue that the Supreme Court's opinion in Colorado II confirms their

interpretation when it states that "the Members of the Court who joined the principal

opinion [in Colorado I] thought the payments were 'independent expenditures' as that

102

expression of individuals, candidates or other political committees," 518 U.S. at 616, and it

cannot therefore be restricted unless the expenditures pose "special dangers of corruption."130

Id. Despite the FEC's contention in Colorado I that "all party expenditures should be treated

as if they had been coordinated as a matter of law" because "'party officials will as a matter

of course consult with the party's candidates before funding communications intended to

influence the outcome of a federal election,'" the Supreme Court found that no such risk of

corruption existed. 518 U.S. at 619, 620 (citing the brief of the FEC). "[T]he

constitutionally significant fact" upon which the Supreme Court relied to determine that

national political parties could, like any other political speaker, exercise their First

Amendment right to make independent expenditures without posing a risk of corruption, "is

the lack of coordination between the candidate and the source of the expenditure." Id. at 617

(emphasis added). Absent such evidence, the Supreme Court refused to accept "as a factual

matter" the FEC's contention that all expenditures by a party were ipso facto coordinated.131
term had been used in our prior cases, owing to the facts that the Party spent the money

before selecting its own senatorial candidate and without any arrangement with potential

nominees." Id. at 439 (citing Colorado I, 518 U.S. at 613-14). In advocating this

argument, however, the defendants have accorded mere dicta in Colorado I the power of

precedent. I do not find that Colorado I conditions a party's First Amendment right to

make independent expenditures upon whether or not the party has selected its nominee. 

While the Supreme Court in Colorado I mentions "that at the time of the expenditure, the

Party had not yet selected a . . . nominee," id. at 613-14, it did so only in its review of the

summary judgment record in order to determine if a genuine issue of fact existed as to

whether the Party's expenditure was coordinated. Though the fact that the Party had not

yet selected its nominee was an important factor in the Court's determination that the

expenditure was independent, the Supreme Court placed equal, if not greater, weight on

the lack of interaction between the Party's nominee and the Party at the time the

expenditure was made. See Colorado I, 518 U.S. at 614. The fact that the Party had not

chosen its nominee is neither the sole underpinning of this factual conclusion, nor of the

Supreme Court's holding that national political parties have a First Amendment right to

make unlimited independent expenditures. See id. at 618-19 ("We do not see how a

Constitution that grants individuals, candidates, and ordinary political committees the

right to make unlimited independent expenditures could deny the same right to political

parties."). Colorado II does not hold or find otherwise.

132 The defendants describe the ban on independent expenditures as the price

national parties must pay to take advantage of the "special privilege" of making

coordinated expenditures at the increased rate set forth in 2 U.S.C. § 441a(d), a privilege

available only to national parties and not to individuals, candidates, or other political

speakers. Although I do not disagree with the defendants' assessment of the Party

103

Id. at 621.

Section 213 conditions a party's exercise of its First Amendment right to make

independent expenditures upon its having refrained from engaging in coordinated

expenditures up to the limit of the Party Expenditures Provision. Defendants' argument that

"[p]roviding . . . an option, which a party committee is free to accept or decline, does not

constitute a restriction of First Amendment rights" is, at best, fanciful. Gov't Opening Br.

at 180.132 By mandating that a party that has made a coordinated expenditure cannot
Expenditure Provision as a "special privilege," I find unconstitutional BCRA's

conditioning of this privilege on the national party forgoing its First Amendment rights.

133 See Intervenors Opening Br. at 149, 149 n.537 The defendants only offer

anecdotal declarations of former and current Members of Congress as well as documents

produced by the national parties to support their contention that the "evidentiary record . .

. amply supports Congress's expert judgment that, when a party chooses to coordinate

efforts with its nominee, it cannot claim at the same time to be making expenditures that

are truly independent of that nominee." Id. at 149. For example, defendants point to the

declaration of Senator McCain who stated that parties and candidates "generally

communicate and coordinate on a regular basis on a variety of topics," so that "[t]he idea

that a party could make both 'coordinated' and 'independent' expenditures once the party

has nominated a candidate, is not sensible."

104

thereafter make independent expenditures, BCRA leaves national political parties with the

familiar predicament of only being able to make expenditures up to the Party Expenditure

Provision limits set forth in 2 U.S.C. § 441a(d). Indeed, this is the very situation the Supreme

Court found unconstitutional in Colorado I.

Defendants have produced no evidence of "special dangers of corruption" posed by

national parties making an independent expenditure after having made one or more

coordinated ones. At most this Court is presented with defendants' own speculation and

suspicion that all expenditures made after a coordinated expenditure are necessarily

coordinated between candidate and party. Of course, if they had such evidence of corruption

or potential corruption, then restrictions on the independent expenditures of national parties

might possibly be warranted. However, the nature of the defendants' concerns about

coordination between parties and candidates133 are such that they can file a complaint with

the FEC challenging whether a party's expenditure on behalf of a candidate is, in fact,
134 See 148 Cong. Rec. S2096-02, S2144 (Mar. 20, 2002) (statement of Senator

McCain). Senator McCain stated:

Section 213 of the bill allows the political parties to choose to make

either coordinated expenditures or independent expenditures on

behalf of each of their candidates, but not both. This choice is to be

made after the party nominates its candidate, when the party makes

its first post-nomination expenditure—either coordinated or

independent—on behalf of the candidate. . . . This provision fully

recognizes the right of the parties to make unlimited independent

105

independent. A complete ban on all party independent expenditures after a coordinated

expenditure has occurred is just not sufficiently tailored to deal with that type of problem.

Moreover, Section 213's ban on independent expenditures treats national political parties

differently than other political actors even though, as mentioned previously, a party's

independent expenditures are no less protected as First Amendment activity than that of

others. See Colorado I, 518 U.S. at 616.

Having rejected Section 213's ban on independent expenditures for parties that have

first made coordinated expenditures, I find it unnecessary to reach the constitutionality of the

two remaining provisions of Section 213: the provision treating all committees of a party

as a single committee, and the provision forbidding transfers and receipt of funds between

committees of a political party. Even if I found those provisions to be constitutional, I do not

believe—after finding the ban on independent expenditures unconstitutional—that a saving

construction can be applied to Section 213 so that it is consistent with Congress's clear intent

to provide a choice to parties between unlimited independent expenditures and coordinated

expenditures up to the Party Expenditure Provision limit.134 Applying a saving construction
expenditures. But it helps to ensure that the expenditure will be truly

independent, as required by Colorado Republican I, by prohibiting a

party from making coordinated expenditures for a candidate at the

same time it is making independent expenditures for the same

candidate. We believe that once a candidate has been nominated a

party cannot coordinate with a candidate and be independent in the

same election campaign. After the date of nomination, the party is

free to choose to coordinate with a candidate, or to operate

independently of that candidate. If it chooses the former, it is subject

to the limits upheld in Colorado Republican II. If it chooses the

latter, it is free to exercise its right upheld in Colorado Republican I

to engage in unlimited hard money spending independent of the

candidate. 

135 Section 318 states: "An individual who is 17 years old or younger shall not

make a contribution to a candidate or a contribution or donation to a committee of a

political party." BCRA § 318; FECA § 324; 2 U.S.C. § 441k.

106

to the statute that would allow only one option, but not the other, would flout that intent.

Therefore, for the reasons set forth above, Section 213 of BCRA is, in our judgment,

unconstitutional.

III. Section 318: Prohibition of Donations by Minors

I concur in the judgment of Judge Henderson and Judge Kollar-Kotelly that

Section 318, which prohibits children from making contributions to candidates or

donations to political parties,

135 is unconstitutional. I write, however, only to explain why

I believe this Court should evaluate this provision under the strict-scrutiny standard of

review.

If Section 318 were a complete ban on adults, instead of on minors, Supreme Court
136 See Bellotti v. Baird, 443 U.S. 622, 633 (1979) ("A child, merely on account of

his minority, is not beyond the protection of the Constitution. . . . 'whatever may be their

precise impact, neither the Fourteenth Amendment nor the Bill or Rights is for adults

alone.'" (quoting In re Gault, 387 U.S. 1, 13 (1967))); Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52, 74 (1976) ("Constitutional rights do not mature and

come into being magically only when one attains the state-defined age of majority. 

Minors, as well as adults, are protected by the Constitution and possess constitutional

rights.").

137 See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986)

(upholding school's decision to punish student using obscene language); Ginsberg v. New

York, 390 U.S. 629, 638 (1968) (upholding criminal conviction under New York statute

that prohibited the selling of sexually oriented magazines to minors).

107

precedent would require us to review such a provision under the strictest of scrutiny. 

Indeed, one of the primary reasons that the Supreme Court reviewed contribution

limitations in Buckley under the less-demanding closely-drawn standard of review was

because contribution limitations permit some expression of support. 424 U.S. at 20-21. 

A complete ban on donations, on the other hand, prevents even a symbolic expression of

support for a candidate or a party's agenda. Id. Similarly, Section 318 merits heightened

scrutiny regardless of the age of those it silences. Simply stated, the standard of review

applied by this Court should be a function of the constitutional rights being infringed

upon, rather than the age of those whose rights are being infringed. 

Children, like adults, are protected by the Constitution.136 The Supreme Court,

however, has made clear that minors in certain circumstances should not be treated in the

same way as adults, repeatedly upholding laws that treat them differently.137 Because the

treatment of minors by the Supreme Court has varied across a wide range of
108

circumstances, lower courts have had to wrestle with some uncertainty in assessing when

the state's power can trump the rights of children, but not those of adults. Indeed, the

Supreme Court itself acknowledged that uncertainty: "The question of the extent of state

power to regulate conduct of minors not constitutionally regulable when committed by

adults is a vexing one, perhaps not susceptible of precise answer." Carey v. Population

Services International, 431 U.S. 678, 692 (1977). Two years later the Supreme Court

shed greater light on the matter in Bellotti v. Baird, when it identified certain reasons that

justify the disparate treatment:

We have recognized three reasons justifying the conclusion that the

constitutional rights of children cannot equated with those of adults: the

peculiar vulnerability of children; their inability to make critical decision in

an informed, mature manner; and the importance of the parental role in

child rearing.

443 U.S. at 634. 

While these reasons provide clearer guidance on when children can be treated

differently from adults, they do not, however, explain whether a court, having found one

of those reasons present, should employ a lesser standard of review in evaluating

children's constitutional rights or merely rely upon one of the reasons as a factor in

recognizing a government interest justifying the regulation. In this jurisdiction, the D.C.

Circuit seemingly answered that question for certain circumstances. 

In Hutchins v. D.C., where the D.C. Circuit upheld the District of Columbia's

imposition of a curfew on minors, 188 F.3d 531, 541 (1999) (en banc), the Circuit Court,
138 For example, in Planned Parenthood of Central Missouri, the Court reviewed a

parental consent provision for abortions under lesser scrutiny, explaining that it must

"examine whether there is any significant state interest in conditioning an abortion on the

consent of a parent or person in loco parentis that is not present in the case of an adult." 

428 U.S. at 75; see also Carey, 431 U.S. at 693 n.15 (applying lesser scrutiny to

contraceptive regulation of minors).

109

in applying the Baird reasons, concluded that children may be more "vulnerable to harm

during curfew hours than adults," "are less able to make mature decisions in the face of

peer pressure, and "are more in need of parental supervision during curfew hours." Id. 

For those reasons, it decided to review the curfew statute under intermediate scrutiny and

found the curfew was substantially related to the achievement of important government

interests. Id. Here, however, I do not believe that we should lower the level of scrutiny. 

In Hutchins, and other cases in which courts applied a lesser standard of review, the

courts identified paternalistic state interests in protecting children from harm, or acting in

loco parentis. The D.C. Circuit, in Hutchins, was particularly concerned that children are

"vulnerable to harm during curfew hours." Id. And in cases concerning decisions by

children that affect procreation—cases in which the Supreme Court has applied a lesser

standard of review—the Court has been equally concerned that children may make

decisions that harm themselves.138 

Section 318 of BCRA was not drafted out of a concern to safeguard children

against harming themselves in the absence of their parents (i.e., the state acting in loco

parentis), but to prevent parents from using their children to circumvent existing donation

limitations to political parties and politicians. Because it involves political expression,
110

this case is not unlike Tinker v. Des Moines Independent Community School District, in

which the Supreme Court rejected a school district's attempt to discipline students

wearing black armbands to express their opposition to the Vietnam War. 393 U.S. 503

(1969). Even in a case where the students were in the custody of the state, the Supreme

Court recognized that the speech caused no harm to, nor interrupted the learning of, the

state's charges. Id. at 508-09. It emphasized that "[s]tudents in school as well as out of

school are 'persons' under our Constitution. They are possessed of fundamental rights

which the State must respect." Id. at 511. Such cases involving government interests,

unrelated to the protection of children, do not warrant review under any scrutiny less than

strict. The political expression of children, especially if they are old enough to work and

pay taxes, surely deserves the same level of constitutional scrutiny as a young adult old

enough to attend college and vote.

This does not mean, of course, that the government need entirely ignore the fact

that some children do not possess "that full capacity for individual choice which is the

presupposition of First Amendment guarantees," Ginsberg, 390 U.S. at 649-50, and that

they sometimes cannot make "critical decisions in an informed, mature manner," Baird,

443 U.S. at 634. It simply means that the government, and the courts, can take into

account these concerns when evaluating whether there is in fact a compelling government

interest. Here, for example, the government could claim that children under thirteen who

generally have no means independent of their parents and rarely make financial decisions
139 The record must include whether the request to purchase was accepted or

rejected; the rate charged for the broadcast; the date and time on which the

communication aired; the class of time that is purchased; the name of the candidate to

which the communication refers and the office to which the candidate is seeking election,

the election to which the communication refers, or the issue to which the communication

refers; in the case of a request on behalf of a candidate, the name of the candidate, the

111

independent of their parents, are vulnerable to being represented by their parents as

having made donations which, in effect, circumvent contribution limits. If there were in

fact more substantial evidence of such circumvention, see J. Kollar-Kotelly Op. at Part

III.III, and the provision were more narrowly tailored to serve the circumvention concern,

see J. Henderson Op. at Part IV.E, then restrictions, which are somewhat more onerous on

children than on adults given a child's lack of independence, may be justifiable based on a

compelling government interest. That is not the case here. For these reasons and for

those set forth, in part, by Judge Kollar-Kotelly and Judge Henderson, I agree that the

prohibition on donations by children is unconstitutional.

IV. Section 504: Public Access to Broadcasting Records

Section 504 requires broadcast licensees to collect and disclose records of any

"request to purchase broadcast time" that "is made by or on behalf of a legally qualified

candidate for public office" or that relates "to any political matter of national importance,"

including communications relating to "a legally qualified candidate," "any election to

Federal office," and "a national legislative issue of public importance." BCRA § 504;

FECA § 315(e)(1); 47 U.S.C. § 315(e)(1).139 Since "compelled disclosure has the
authorized committee, and the treasurer of the committee; and in the case of any other

request, the name of the person purchasing the time, the name and contact information for

such person, and a list of chief executive officers or members of the executive committee

or board of directors. BCRA § 504; FECA § 315(e)(1); 47 U.S.C. § 315(e)(1).

140 In Buckley, the Supreme Court outlined several sufficient government interests

justifying disclosure requirements, including informing voters about how candidates

spend money so that they can better evaluate candidates, 424 U.S. at 66-67 (noting that

disclosure "allows voters to place each candidate in the political spectrum more precisely

than is often possible solely on the basis of party labels and campaign speeches"),

deterring actual corruption and avoiding the appearance of corruption, id. at 67

(explaining that "exposing large contributions and expenditures to the light of publicity"

fights corruption), and gathering data to detect violations campaign finance laws, id. at

67-68. 

112

potential for substantially infringing the exercise of First Amendment rights," Buckley,

424 U.S. at 66, the Supreme Court insisted that any law compelling disclosure of

campaign information must be reviewed under "exacting scrutiny," id. at 64, such that the

government interest served is "substantial," id. at 80, and "sufficiently important to

outweigh the possibility of infringement," id. at 66. For the following reasons, I find that

the record does not establish the existence of a substantial governmental interest

necessary to warrant the disclosure requirements set forth in Section 504. 

Section 504 is different from the other disclosure provisions in BCRA in two

important ways: (1) broadcast licensees, not the purchasers, are required to make the

disclosures; and (2) the disclosures are required for broadcasts on "political matters of

national importance" as well as on federal candidates. In relation to disclosure of 

communications by, and relating to, federal candidates, the government has provided no

evidence that Section 504 serves any of the government interests specified in Buckley.140
141 Any understanding of broadcasts "relating to any political matter of national

importance" necessarily includes broadcasts above and beyond those referring to federal

candidates. Though, as the plaintiffs contend, the scope of those required disclosures is

unclear because of the language's vagueness.

113

Indeed, Section 201, which this Court finds constitutional in part, already requires

purchasers of "electioneering communications" to disclose a wide array of information,

including the amount of each disbursement and the elections to which the electioneering

communications pertain. BCRA § 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2). 

These disclosure requirements for purchasers in Section 201 mirror many of the

provisions for broadcast licensees in Section 504, and the defendants have provided no

evidence that such a belt-and-suspender approach is necessary. Moreover, they have

provided no evidence suggesting, let alone proving, that purchasers have evaded, or will

evade, disclosure requirements. And though the defendants made an offhanded reference

to the importance of ensuring that broadcast requests are processed in an "even-handed

fashion," Gov't Opp'n Br. at 134-35, there is nothing in the record which demonstrates

that broadcast licensees have treated purchasers unfairly.

As to noncandidate-focused communications which supposedly relate to "political

matters of national importance" (e.g., "a national legislative issue of public

importance"),141 disclosure requests are even more difficult to justify. First, such

disclosure requirements fail to serve any of the three sufficient government interests set

forth in Buckley because those interests are specific to evaluating, and preventing

corruption of, federal candidates. See supra note 135. Second, the defendants' contention
114

that there is a substantial government interest in helping the public identify the sponsors

of political broadcasts and evaluate the credibility of the political message, see Gov't

Reply Br. at 89-90, does not quite square with the holding in Buckley v. American

Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). In American Constitutional

Law Foundation, the Supreme Court did recognize a substantial government interest in

disclosing the names and addresses of ballot-initiative proponents who pay circulators to

collect signatures, explaining that disclosure was "a control or check on domination of the

initiative process by affluent special interest groups." Id. at 202. Here, however, the

defendants have provided no evidence that "special interest groups" have, as yet,

dominated or co-opted broadcast communications relating to political issues of national

importance. See id. at 203 (refusing to require disclosure of petition circulators' names

and amounts paid because the "lower courts fairly determined from the record as a whole"

that the benefit of such information had not been demonstrated).

Absent such evidence, the government lacks a constitutionally acceptable

justification to enact a disclosure provision that imposes an onerous collection and

disclosure system on broadcast licensees; infringes the associational rights of groups and

their members who engage in broadcasting; and potentially curtails political speech

invaluable to an informed electorate. In Buckley v. Valeo, the D.C. Circuit rejected FECA

Section 437a, a disclosure requirement that also encompassed "completely nonpartisan

public discussion of issues of public importance." See Buckley v. Valeo, 519 F.2d 821,
142 The D.C. Circuit's decision on Section 437a was not appealed. See Buckley,

424 U.S. at 10 n.7.

143 In those sections where I have concurred in the judgment and reasoning of one

of my colleagues, she may be basing her opinion on her individual Findings of Fact that

relate to that section. Unless otherwise necessary, I have, to the extent possible, refrained

from repeating those findings in my Findings of Fact. Hence, to that extent, my set of

Findings does not include all of the facts that I have relied upon in reaching my various

judgments. Finally, in a footnote to the introduction of her Findings of Fact, Judge

Henderson comments that she has a "'definite and firm conviction that a mistake has been

committed' with respect to several of [the] findings" in Judge Kollar-Kotelly's and my

115

870, 869-78 (D.C. Cir. 1975).142 In so doing, the court explained:

[I]ssue discussions unwedded to the cause of a particular candidate hardly

threaten the purity of elections. Moreover, and very importantly, such

discussions are vital and indispensable to a free society and an informed

electorate. Thus the interest of a group engaging in nonpartisan discussion

ascends to a high plane, while the governmental interest in disclosure

correspondingly diminishes.

Id. at 873. I could not agree more. In the absence of evidence that disclosure of

nonelection-related broadcasts serves a substantial government interest, Section 504

cannot withstand scrutiny.

V. Findings of Fact

Despite our best efforts to produce a complete set of Findings of Fact, in which

two or more members of this Court concur, we were unable to do so.

Because of the critical importance of the facts to the holdings in the case, and the

sheer enormity of the record developed by the parties, I believe it necessary to set out, for

the most part,143 those facts which in my judgment are sufficiently relevant and probative
opinions. J. Henderson Op. at Part III.B (citing Easley v. Cromartie, 532 U.S. 234, 242

(2001)). Two of the five examples she lists thereafter are Findings 292 and 250 of my

opinion. Because Judge Henderson does not explain why either one or both of these

Findings are "mistaken," I am not in a position to respond to her concerns.

144 Hearing Tr. (Dec. 4, 2003) at 152 (Abrams).

116

to rely upon in reaching my conclusions. Accordingly, while there may be other relevant

and probative facts in the record, I do not accord them sufficient weight to warrant either

relying on them in my judgments, or including them in my Findings.

Moreover, in some instances where evidence was submitted by one side or another

(or both) on a particular point, but in my judgment that evidence did not meet this

standard, I have either commented specifically to that effect, or simply stated that there

was "no probative evidence in the record" as to that point. In other instances, where I

accorded great weight to the relevant and probative evidence submitted on a particular

point, I have specifically acknowledged that that evidence was "substantial" or

"overwhelming" as to that point. In those limited circumstances where the evidence

submitted by one side was not controverted by the other, I have acknowledged the

"uncontroverted" nature of the evidence on that point.

Finally, I would be remiss to not acknowledge the herculean effort expended by

the parties in assembling this "elephantine"144 record over a seven-month time period. It

is a testament, indeed, to their sense of professionalism and duty on a matter of utmost

importance to our system of government. Moreover, the job of reviewing and evaluating

this record would have been substantially more difficult, and less reliable, in my
117

judgment, if they had not assembled these factual materials with such extraordinary care.

That said, upon reviewing the record as a whole, I make the following Findings of

Fact: 

* * *

Table of Contents

I. Title I: Restrictions on Nonfederal Funds ........................... 119

A. National Parties and Their Congressional 

Campaign Committees ..................................... 119

B. National Party Nonfederal Fundraising and Spending ........... 120

C. Senator McConnell ........................................ 126

D. Thomas McInerney ........................................ 127

E. The Role of Political Parties in Democracies ................... 129

F. Republican National Committee ............................. 132

G. The RNC's Federal Election Activities ........................ 133

H. National Party Use of Nonfederal Money to 

Benefit Federal Candidates ................................. 134

I. National Party Use of Nonfederal Money for 

Federal-Candidate Advocacy ............................... 138

J. The RNC's Involvement in Nonfederal Activities ............... 149

K. The RNC's Involvement in "Mixed" Activities ................. 153

L. The RNC's Assistance to State and Local Parties for 

Nonfederal and Mixed Activities ............................. 158

M. RNC Fundraising ......................................... 163

N. The California Democratic Party ("CDP") and the 

California Republican Party ("CRP") ........................ 166

O. Proposition 34 ............................................ 168

P. The CDP's and CRP's Focus on State and Local Activities ....... 169

Q. CDP & CRP Voter Registration Activities ..................... 170

R. CDP and CRP Direct Mail Activities ......................... 171

S. CDP and CRP Get-Out-the-Vote Activities .................... 172

T. State Party "Issue Ads" that Directly Affect Federal Elections ... 173

U. CDP and CRP Cooperation with the National Parties ........... 183

V. Reduction in CDP and CRP Fundraising and 

Voter Mobilization Efforts .................................. 184

W. Federal Officeholder Solicitation of Nonfederal Money .......... 188

X. Political Parties and Nonprofit Groups ....................... 194
118

Y. Interest Groups Compared to Political Parties ................. 200

Z. The Record Contains No Evidence of Quid Pro Quo 

Corruption ............................................... 202

AA. While Some Federal Candidates Are Aware of the 

Identities of Party Contributors, Others Are Not ............... 206

BB. There is No Probative Evidence That National Parties 

Use Nonfederal Donations to Induce Federal Officeholders 

to Support or Oppose Legislation ............................ 210

CC. The Relationship Between Access and Donations ............... 211

1. The RNC ........................................... 212

2. Statistical Evidence Regarding Donations and Access ...... 214

3. Federal Officeholders Are Not More Likely to Meet With

Nonfederal Donors Than Federal Donors ................ 214

4. Lobbyists, Former Members of Congress, Business 

Leaders, and Donors Believe that Soft Money 

Donations to Parties Increase Access to Officeholders ..... 215

5. Party Donation Programs Show That Increased Access

Corresponds With Larger Donations ................... 222

DD. Donors Make Donations to National Parties With the 

Expectation of Building Relationships and Receiving Access ..... 229

1. Lobbyists Believe That Donations Will Enable Donors to

Establish Relationships With Officeholders .............. 229

2. Current and Former Federal Officeholders Acknowledge 

That Donors Expect to Establish Relationships With 

and Obtain Access to Federal Officeholders .............. 230

3. Donors Hope to Establish Relationships or Receive Access 

With Their Donations ................................ 231

EE. Effectiveness of Giving Nonfederal Donations as Opposed to 

Federal Donations ......................................... 235

FF. Donors Often Times Give to Both National Parties in Order to 

Receive Access to Members of Both Parties .................... 238

GG. Lobbying and Donations of Nonfederal Money ................. 240

HH. Public Perception of Corruption ............................. 243

II. Title II: NonCandidate Campaign Expenditures ..................... 251

A. Issue Advocacy in Modern Campaigns ........................ 251

B. The Distinction Between Candidate-Centered Advocacy and 

Pure Issue Advocacy Is Not a Function of the Presence 

or Absence of the Buckley "Magic Words" .................... 255

C. The Rise of "Issue Advocacy" Campaigns Funded by Corporate and

Labor Union General Treasuries ............................ 261
119

D. Explaining the Shift Toward "Issue Advocacy" ................ 264

E. Candidate-Centered "Issue Advertisements" That Do Not Contain

Words of Express Advocacy Are Distinguishable from "Genuine" 

Issue Advertisements ...................................... 265

F. The Use of Issue Advocacy by Organizations for Electioneering

Purposes ................................................. 272

1. Electioneering Advertisements Have Been Run About 

Issues In Which the Group Running Them Has No 

Particular Interest ................................... 282

G. The Buying Time Studies ................................... 283

1. The CMAG Data Set ................................. 287

2. Buying Time Findings ................................ 292

3. Criticism of Buying Time 1998 ......................... 293

4. Buying Time 1998's Calculation of the Percentage of 

Genuine Issue Advocacy Captured by BCRA ............ 307

5. Criticism of Buying Time 2000 ......................... 315

H. The Goldstein Expert Report ............................... 320

I. Genuine Issue Advertisements About Legislation and Public Policy

Issues Are Run During the Sixty Days Before a Federal Election

Notwithstanding the Competition for Air Time with CandidateCentered Advertisements ................................... 329

1. Representative Examples of Genuine Issue Advertisements 

Aired Within 30 Days of a Primary Election, or 60 Days 

of a General Election, and Mentioning the 

Name of a Federal Candidate .......................... 339

2. Representative Examples of Candidate-Centered Issue

Advertisements Aired Within 30 Days of a Primary 

Election or 60 Days of a General Election ................ 344

* * *

As to BCRA's restrictions on nonfederal funds, I find that

National Parties and Their Congressional Campaign Committees

1. The national committees of the two major political parties are: the Republican

National Committee (“RNC”); the National Republican Senatorial Committee
145 Alexander Vogel is General Counsel for the NRSC. Vogel Decl. ¶ 1 [DEV 9-

Tab 41].

146 Donald McGahn is General Counsel for the NRCC. McGahn Decl. ¶ 1 [DEV 8-

Tab 30].

147 James Jordan is the Executive Director of the DSCC. Jordan Decl. ¶ 1 [DEV 7-

Tab 21].

148 Howard Wolfson is Executive Director of the DCCC. Wolfson Decl. ¶ 1 [DEV

9-Tab 44].

120

(“NRSC”); the National Republican Congressional Committee (“NRCC”); the

Democratic National Committee (“DNC”); the Democratic Senatorial Campaign

Committee (“DSCC”); and the Democratic Congressional Campaign Committee

(“DCCC”). Vogel145 Decl. ¶ 6 [DEV 9-Tab 41]; McGahn146 Decl. ¶ 6 [DEV 8-Tab

30]; Jordan147 Decl. ¶ 6 [DEV 7-Tab 21]; Wolfson148 Decl. ¶ 6 [DEV 9-Tab 44]. 

National Party Nonfederal Fundraising and Spending

2. According to defendants' expert Mann

In 1980 the national Republican party spent roughly $15 million in soft

money, the Democrats $4 million. This constituted 9% of total spending by

the two national parties. In 1984 the amount of soft money spent by the

national parties increased marginally to $21.6 million but it constituted a

smaller share (5%) of total national party activity. In 1988 . . . . [p]arty soft

money spending more than doubled to $45 million, which was 11% of

national party totals . . . . By 1988, both parties had developed effective

means of courting large soft money donors. After the election, Republicans

revealed that they had received gifts of $100,000 each from 267 donors;

Democrats counted 130 donors contributing $100,000 or more . . . . 

Mann Report at 12-13 [DEV 1-Tab 1] (citations omitted). 
121

3. The 1992 election cycle was the first in which nonfederal donations were tracked

by the FEC. During that cycle the Democratic and Republican parties together

raised $86.1 million in nonfederal funds. During the 1994 election cycle the two

major parties raised $101.6 million in nonfederal funds. During the 1996 cycle the

combined total rose to $263.5 million but dropped to $222.5 million during the

1998 cycle. During the presidential election cycle of 2000 they raised a combined

total of $487.5 million in nonfederal funds. In the past election cycle of 2002

cycle they raised $495.8 million in nonfederal funds. See Press Release, FEC,

Party Fundraising Reaches $1.1 Billion in 2002 Election Cycle (Dec. 18, 2002),

available at http://www.fec.gov/press/20021218party/20021218party.html.

4. There was 

a threefold increase in national party soft money activity between

1992 and 1996—from $80 million to $272 million. Soft money as a

share of total national party spending jumped from 16% to 30%. 

Both parties and their elected officials worked hard to solicit soft

money donations from corporations, wealthy individuals, and labor

unions. During the 1996 election the national party committees

received . . . approximately 27,000 contributions from federally

prohibited sources . . . Less than $10 million of the $272 million was

contributed directly to state and local candidates in the 1996 cycle. . .

. The two parties transferred a total of $115 million in soft money to

state party committees, which financed two-thirds of state party soft

money expenditures.... State party soft money expenditures for

political communication/advertising jumped from less than $2

million in 1992 to $65 million in 1996.

Mann Report at 21-22 [DEV 1-Tab 1] (citation omitted). During the 1996 election

cycle, the top 50 nonfederal money donors made contributions ranging from
149 Four of the top 50 soft money donors to the national parties in 1999, but not

2000, were state parties. Mann Expert Report at tbl. 5, tbl. 6. 

122

$530,000 and $3,287,175. Id. at 22.149 “The total amount of soft money spent [in

the 1998 midterm election cycle]—$221 million—was less than in 1996 but more

than double the previous midterm election. And soft money as a share of total

spending by the national parties jumped to 34%. The congressional party

campaign committees put a premium on raising and spending soft money to

advance the election prospects of their candidates . . . . Both national party

committees had discovered they could finance campaign activity on behalf of their

senatorial candidates with soft money in the form of ‘issue advocacy.’ The same

pattern, more pronounced with the Democrats than the Republicans, was evident in

the House campaign committees.” Mann Report at 23 [DEV 1-Tab 1] (citation

omitted).

5. Defense expert Mann has reported that "soft money financing of party

campaigning exploded in the 2000 election cycle. Soft money spending by the

national parties reached $498 million, now 42% of their total spending. Raising a

half billion dollars in soft money [in 2000] took a major effort by the national

parties and elected officials, but they had the advantage of focusing their efforts on

large donors. That focus paid substantial dividends: 800 donors (435 corporations,

unions and other organizations and 365 individuals), each contributing a minimum

of $120,000, accounted for almost $300 million or 60 percent of the soft money
123

raised by the parties. The top 50 soft money donors . . . each contributed between

$955,695 and $5,949,000. Among the many soft money donors who gave

generously to both parties were Global Crossing, Enron and WorldCom.” Mann

Report at 24-25 [DEV 1-Tab 1] (citation omitted). “A total of $280 million in soft

money—well over half the amount raised by the six national party

committees—was transferred to state parties [in 2000], along with $135 million in

hard money.” Id. at 26. In 2000, thirty-five of the top 50 donors were

corporations. Most of the other top 50 donors were unions and plaintiff attorneys. 

Mann Expert Report at tbl. 6. 

6. During the first 18 months of the 2001-2002 election cycle the parties reported

nonfederal receipts of $308.2 million, which is a 21 percent increase over the same

period during the 1999-2000 cycle. The FEC notes that this increase is “all the

more significant given that typically parties raise more in Presidential campaign

cycles than in non-presidential campaigns.” Press Release, FEC, Party

Fundraising Growth Continues (Sept. 19, 2002), available at

http://www.fec.gov/press/20020919- partyfund/20020919partyfund.html. By

October 16, 2002, the parties had raised over $421 million in nonfederal funds. 

Press Release, FEC, National Party Fundraising Strong in Pre-Election Filings

(Oct. 30, 2002), available at

http://www.fec.gov/press/20021030partypre.html/20021030partypre.html. 
124

7. Experts attribute the accelerated rise in nonfederal money expenditures to

President Bill Clinton and his political consultant Dick Morris’ use of such funds

during the 1996 campaign to fund 

television ads designed to promote Clinton's reelection. While the

ads prominently featured the President, none of these costs were

charged as coordinated expenditures on behalf of Clinton's

campaign. Instead the party paid the entire cost, based on a legal

argument never before made: that party communications which did

not use explicit words advocating the election or defeat of a federal

candidate could be treated like generic party advertising and

financed, according to the FEC allocation rules, with a mix of soft

and hard money.

Mann Report at 18 [DEV 1-Tab 1]. Defense Expert David Magleby notes that this

development 

ran counter to the stated purposes of soft money which were to

permit parties to raise unlimited amounts of money for ‘party

building’ purposes, unlike hard money which is subject to the

contribution limits given to the parties to help elect or defeat

candidates. . . . The strategy to deploy soft money for these purposes

is described in a series of memos from Dick Morris. . . . Morris says,

“I met with . . . attorney[s] . . . and explained the kinds of ads I had

in mind. Fortunately, they said the law permitted unlimited

expenditures by a political party for such “issue-advocacy” ads. By

the end of the race, we had spent almost thirty-five million dollars on

issue-advocacy ads (in addition to about fifty million dollars on

conventional candidate-oriented media), burying the Republican

proposals and building a national consensus in support of the

president on key issues.” 

8. Magleby Expert Report at 11 (quoting Dick Morris, Behind the Oval Office:

Getting Reelected Against All Odds 141, 624 (1999) [DEV 4-Tab 8]. “The

national Democratic party managed to finance two-thirds of its pro-Clinton ‘issue
125

ad’ television blitz by taking advantage of the more favorable allocation methods

available to state parties. They simply transferred the requisite mix of hard and

soft dollars to party committees in the states they targeted and had the state

committees place the ads.” Mann Expert Report at 22 [DEV 1-Tab 1]; see also

Plaintiff’s Expert Raymond La Raja Dep. Exhibit 3 at 14, 37-48 [JDT 15]

(Raymond Joseph La Raja, American Political Parties in the Era of Soft Money

(2001) (unpublished Ph.D. dissertation, University of California at Berkeley)

(discussing the emergence of “party soft money”).

9. According to Defense experts, “It did not take the Republican party long to

respond in kind by promoting Bob Dole and Jack Kemp.” Magleby Expert Report

at 11 [DEV 4-Tab 8]. 

In May of 1996, the Republican National Committee announced a

$20 million “issue advocacy” advertising campaign. Its purpose, in

the words of the chairman, would be “to show the differences

between Dole and Clinton and between Republicans and Democrats

on the issues facing our country, so we can engage full-time in one

of the most consequential elections in our history.” These

presidential candidate-specific ads, like the Democratic ones, were

targeted on key battleground states and financed with a mix of hard

and (mostly) soft money. Both parties were now financing a

significant part of the campaigns of their presidential candidates

outside of the strictures of the FECA and well beyond the bounds of

the 1979 FEC ruling that national parties may raise corporate and

union funds and solicit unlimited donations from individuals “for the

exclusive and limited purpose of influencing the nomination or

election of candidates for nonfederal office.”

Mann Expert Report at 20 (citation omitted) [DEV 1-Tab 1].
150 Since January 2001, Lamson has served as the Communications Director for the

Office of Public Instruction of the State of Montana, a post he also held from early 1997

until January 2000. During 2000, Lamson managed Nancy Keenan’s campaign to

represent Montana’s Congressional district. During 1996, Lamson managed Bill

Yellowtail’s campaign to represent Montana’s congressional district. From 1983 through

1996, Lamson served as the state director for United States Representative Pat Williams’

congressional office in Montana. During this same period, Lamson also managed

Congressman Williams’ election campaigns in Montana. From 1981 to 1983, Lamson

was Executive Director of the Montana Democratic Party. Lamson provided a sworn

declaration in Colorado Republican Fed. Campaign Comm. v. FEC, 41 F. Supp. 2d 1197

(D. Colo. 1999), aff’d, 213 F.3d 1221 (10th Cir. 2000), rev’d, 533 U.S. 431 (2001). 

Lamson Decl. ¶¶ 2-3 [DEV 7-Tab 26].

126

10. This approach for the use of nonfederal funds spilled over into congressional

races. Mann Expert Report at 20 [DEV 1-Tab 1]; see also Lamson150 Decl. ¶ 9

(describing both parties’ national committees’ use of soft money to run

advertisements in a race for Congress in Montana).

Senator McConnell

11. Senator McConnell routinely participates in political and fundraising events for

state and local candidates and party committees.

12. Since his election to the Senate, Senator McConnell has been a member of the

NRSC, which promotes the Republican position on a wide range of issues and

supports Republican candidates at the federal, state, and local levels. Senator

McConnell chaired the NRSC in the 1998 and 2000 election cycles and, as

chairman, he raised funds not subject to the restrictions and prohibitions of federal

law. These nonfederal funds were used for voter registration and identification,
127

get-out-the-vote activities, "issue advocacy," building funds, and national support

for state and local candidates. As NRSC Chairman, Senator McConnell directed

nonfederal NRSC donations to dozens of state and local candidates, including

Virginia Republican gubernatorial candidate Jim Gilmore (in 1997); California

Republican gubernatorial candidate Dan Lungren (in 1998); and the Republican

candidate for mayor of Warwick, Rhode Island (in 2000). Id. ¶ 8.

13. The overwhelming majority of the people with whom Senator McConnell has met

during his tenure in the Senate do not donate funds to the Republican Party at the

national, state, or local level. Typically Senator McConnell is unaware of the

donation history of the individuals with whom he meets. Id. ¶ 13.

Thomas McInerney

14. Thomas McInerney, a resident of New York, shares the Republican Party's general

philosophy on policy issues such as lower taxes, smaller government, free trade,

and a strong national defense. He has pursued his political and public policy goals

by making donations to Republican organizations at the national, state, and local

levels in order to promote Republican principles and candidates at the federal,

state, and local levels. McInerney Aff. ¶¶ 2-3.

15. Prior to BCRA's enactment in 2002 McInerney donated amounts in excess of

BCRA's aggregate amount limit of $57,500 per cycle to the national political party
128

committees of the Republican Party and in excess of $10,000 per year to state and

local Republican party organizations. His donations were intended to support state

and local candidates voter registration activities for state and local parties; voter

identification activity; get-out-the-vote activity; generic campaign activity for state

and local parties, including broadcast communications that promote the

Republican party when a federal candidate is on the ballot; slate cards, palm cards,

and sample ballots for state and local parties; absentee ballot programs for state

and local parties; phone bank programs for state and local parties; public

communications discussing policy issues, including communications that mention

federal candidates in a manner that could be construed to "promote, support, attack

or oppose" such candidates; staff salaries of employees who spend 25 percent of

their time in any given month on any of these activities. Id. ¶ 4.

16. In the 2002 election cycle McInerney donated more than $57,500 to Republican

Party organizations at the national, state, and local levels “to be used on certain

activities” described above. Id. ¶ 10.

17. In the 2000 election cycle McInerney donated more than $57,500 to Republican

Party organizations at the national, state, and local levels “to be used on certain

activities” described above. See Id. ¶ 12. 

18. McInerney's support for Republican Party organizations at the national, state, and

local levels reflect his shared philosophy and values with the Party.
151 Sidney Milkis and Morton Keller are experts for the plaintiffs.

129

19. Nothing in the record suggests that McInerney's support for the Republican Party

at the national, state, and local levels is dependent upon gaining access to federal

officeholders. McInerney would support the Republican Party whether or not he

was solicited by a federal officeholder and whether or not his contribution resulted

in attendance at an event that included federal officeholders. See id. ¶ 17.

The Role of Political Parties in Democracies

20. Both sides experts testify that political parties play a critical role in democracies. 

See Mann Expert Report at 28 ("Political parties play an indispensable role in

democratic societies . . . ."); Krasno & Sorauf Expert Report at 21-22 ("While most

political scientists may not literally agree with E.E. Schattschneider that 'parties

created democracy, and . . . democracy is unthinkable save in terms of parties' they

would recognize and appreciate the sentiment. We certainly place ourselves in

their number."); La Raja Decl. ¶ 11 ("Political parties are essential institutions in

democracies."). Experts testify that political parties have played and continue to

play certain critical roles in helping us to maintain a stable political order.

21. First, they note that the parties have coordinated and reconciled various national,

state, and local entities within our federal system of government. See Milkis

Expert Report at 13-14; Keller151 Expert Report at 6-7.
152 Thomas Josefiak is Chief Counsel of the RNC. Josefiak Decl. ¶ 1. 

153 Raymond La Raja is one of plaintiffs’ experts.

130

22. Next, they state that the parties encourage “democratic nationalism” by nominating

and electing candidates and by engaging in dialogues concerning public policy

issues of national importance. Milkis Expert Report at 14-19. An example of this

is the RNC’s recent participation in public policy debates concerning a balanced

budget amendment, welfare reform, and educational policy. See Josefiak152 Decl. ¶

91; RNC Exhibit 1711, Exhibit 2428, Exhibit 2440.

23. Experts note that the parties recruit and nominate candidates, aggregate public

preferences, and provide a means of democratic accountability. See D. Green

Expert Report at 7; Magleby Expert Report at 33; Mann Expert Report at 28. 

Political scientists also credit parties with increasing voter turnout, encouraging

volunteer grassroots political participation, fostering broader electoral competition

by supporting challengers against incumbents, and diluting the influence of

organized interests. See Cross Exam. of Green at 83-84; Cross Exam. of Mann at

53; Keller Expert Report at 5-6; Milkis Expert Report at 12-13; La Raja153 Expert

Report at 5, 7-8.

24. Plaintiffs' expert Keller states that party competition in general is healthy for

democracy; it was a major force behind the expansion of the electorate through the

enfranchisement of blacks in the South, reduction of the voting age to eighteen,
154 Jonathan Krasno and Frank Sorauf are experts for defendants.

155 Senator Dale Bumpers served two terms as Governor of Arkansas, from 1971 to

1975. After his service as Governor, he served as a Member of the United States Senate,

representing the State of Arkansas, from 1975 to 1999. Bumpers Decl. ¶ 2 [DEV 6-Tab

10].

131

and the elimination of poll taxes and other constraints on voting registration. See

Keller Expert Report at 15. Intense competition among the post-Civil War parties

led to increased voter turnout and close presidential elections. See id. at 11-12.

25. In addition, experts find that the parties act as critical agents in developing

consensus in the United States. See Milkis Expert Report at 19. In the words of

one defense expert, parties are "the main coalition building institution[s] . . . by a

good measure." Cross Exam. of Green at 84; see Cross Exam. of Mann at 53, 56

("[n]o other group could come close to political parties" in moderating extreme

views); Krasno & Sorauf154 Expert Report at 24 ("Parties with their necessary ‘big

tent’ compete for the allegiances of multiple groups . . . .").

26. Furthermore, experts find that the parties cultivate a sense of community and

collective responsibility in American political culture. See Milkis Expert Report at

19-21; La Raja Expert Report at 3-4. Parties have been integral in forming a

consensus on publicly divisive issues. See Milkis Expert Report at 4.

27. Finally, it is also noted by experts that it is a major purpose of the political parties

to elect candidates to office. See Bumpers155 Decl. ¶ 4 [DEV 6-Tab 10]; Wolfson

Decl. ¶ 6 [DEV 9-Tab 44]; Jordan Decl. ¶ 6 [DEV 7-Tab 21]; Shea Dep. Tr (Sept.
132

24, 2002) at 15, 88-90; Knopp Cross Tr. at 10; Brister Decl. ¶ 4 ("The Republican

Party of Louisiana's primary purpose is to help elect Republicans to office 'from

the courthouse to the White House'"); ODP0021-02001-19, ODP0021-02386-90,

ODP0025-02641-45 [DEV 70-Tab 48] (internal RNC Memoranda from

then-Chairman Haley Barbour); RNC’s Resp. to FEC RFA’s in RNC, No. 40

[DEV 68-Tab 35]; ODP0021-02003 [DEV 70-Tab 48] (RNC Chairman Haley

Barbour stated: “The purpose of a political party is to elect its candidates to public

office, and our first goal is to elect Bob Dole president. . . . Electing Dole is our

highest priority, but it is not our only priority. Our goal is to increase our majorities

in both houses of Congress and among governors and state legislatures.”); see

generally ODP0021-02001 to 19; ODP0021-02386 to 90; ODP0025-02641 to 45

[DEV 70-Tab 48] (internal RNC memoranda from then-Chairman Haley Barbour).

Republican National Committee

28. As a national party, the RNC has historically participated and participates today in

electoral and political activities at the federal, state, and local levels. According to

its general counsel, "[t]he RNC's national focus should not be misunderstood as a

federal focus." See Josefiak Decl. ¶¶ 19, 41-59. The RNC seeks to advance its

core principles—a smaller federal government, lower taxes at all levels of

government, individual freedom, and a strong national defense—by promoting an
156 Jay Banning has served as the RNC’s Director of Administration and Chief

Financial Officer since 1983, and has been employed by the RNC in these and other

capacities for twenty-six years. Banning Decl. ¶ 1.

133

issue agenda advocating Republican positions, electing Republican candidates, and

encouraging governance in accord with these Republican views. See Josefiak

Decl. ¶ 22; see also La Raja Expert Report ¶¶ 11, 16.

29. In pursuit of its objectives, the RNC engages in frequent communications with its

members, officeholders, candidates, state and local party committees, and the

general public. These communications occur both during campaign seasons and at

all other times. See Banning156 Decl. ¶¶ 28(d)-28(f); Josefiak Decl. ¶¶ 88-89, 100-

101.

The RNC's Federal Election Activities

30. The RNC, and its national party committees, engage in a wide range of activities

that influence federal elections. For example, the RNC spends federal funds on: (i)

recruiting and training candidates; (ii) contributing to federal candidate campaign

committees; (iii) making coordinated expenditures on behalf of federal candidates;

(iv) making communications calling for the election or defeat of federal

candidates; (v) funding, in part, research and issue development; and (vi) funding,

in part, voter registration, voter identification, and get-out-the-vote campaigns. 

See Banning Decl. ¶ 28(d); Josefiak ¶¶ 26, 35, 89; see also La Raja Decl. ¶ 11(d);
157 Senator Alan Simpson served as United States Senator from Wyoming from

1979 to 1997. Simpson Decl. ¶ 2 [DEV 9-Tab 38].

134

Magleby Expert Report at 33-34. Prior to the enactment of BCRA, some of these

activities were funded only with federal money; others were funded with a

combination of federal and nonfederal money.

National Party Use of Nonfederal Money to Benefit Federal Candidates

31. Nonfederal money is often given to national parties with the understanding that it

will be used to assist the campaigns of particular federal candidates, and, indeed, it

is often used for that purpose.

32. Senator Simpson157 testified that “[d]onors do not really differentiate between hard

and soft money; they often contribute to assist or gain favor with an individual

politician. When donors give soft money to the parties, there is sometimes at least

an implicit understanding that the money will be used to benefit a certain

candidate. Likewise, Members know that if they assist the party with fundraising,

be it hard or soft money, the party will later assist their campaign.” Simpson Decl.

¶ 6 [DEV 9-Tab 38]. “Although soft money cannot be given directly to federal

candidates, everyone knows that it is fairly easy to push the money through our

tortured system to benefit specific candidates.” Id. ¶ 7; see also Bumpers Decl. ¶¶

10-12 [DEV 6-Tab 10]; McCain Decl. ¶ 7 ("[P]arties encourage Members of

Congress to raise large amounts of soft money to benefit their own and others' re-
158 Senator Paul Simon served as a United States Senator for Illinois from 1985 to

1997, and was a Member of the House of Representatives from 1975 to 1985. Prior to

being elected to Congress, Senator Simon served as Lieutenant Governor of Illinois from

1968 to 1972, and served in the Illinois House of Representatives from 1954 to 1962 and

in the Illinois State Senate from 1962 to 1966. Simon Decl. ¶ 1 [DEV 9-Tab 37]. 

159 Terry S. Beckett is a Democratic political consultant who has spent about 25

years working on political campaigns. Beckett Decl. ¶ 2 [DEV 6-Tab 3]. Beckett worked

on the 1976 and 1980 Presidential campaigns of Jimmy Carter, the 1978 Bill Nelson

Congressional campaign, and she ran Dick Batchelor’s 1982 Congressional campaign. 

Id. Beckett also endeavored to establish a House Democratic Caucus within the Alabama

legislature in the mid 1980s. Id. Beckett ran Gary Hart’s 1988 Presidential campaign in

Florida and Louisiana, and Dick Gephardt’s 1988 Presidential campaign in Florida. Id. 

In 1986, Beckett did the polling on Linda Chapin’s campaign for Orange County

(Florida) Commissioner, and ran Chapin’s 1990 and 1994 campaigns for Orange County

Chairman. Id. Beckett also served as general consultant on Ms. Chapin’s 2000 campaign

to represent Florida’s Eighth congressional district, overseeing the work of the campaign

manager and the media and polling consultants. Id. Beckett has also been involved in

government having worked on the Executive Staff for Bob Graham from 1981-82 when

he was the Governor of Florida and also serving as Ms. Chapin’s Chief of Staff from

1991 to 1994 when she was County Chairman. Id. In addition, Beckett worked for a

polling firm during the 1980s. Id.

135

election."); Simon158 Decl. ¶ 10 [DEV 9-Tab 37]; Beckett159 Decl. ¶ 6 [DEV6-Tab
160 Elaine Bloom is currently engaged in consulting, public speaking, and

community activities. Bloom Decl. ¶ 2 [DEV 6-Tab 7]. In 2001, Bloom was a candidate

for Mayor of Miami Beach, Florida. Id. In 2000, Bloom was the Democratic candidate

in the general election to represent Florida’s 22nd congressional district, running against

the incumbent Republican Clay Shaw, who had served in Congress for nearly 20 years. 

Id. (Shaw won the race by approximately 500 votes out of over 200,000 cast). Prior to the

2000 race, Bloom served as a member of the Florida House of Representatives for over

18 years, from 1974 to 1978 (representing Northeast Dade County) and from 1986-2000

(representing Miami Beach and Miami). Id. Bloom was Speaker Pro-Tempore of the

Florida House from 1992 to 1994, and also served as chair of several legislative

committees, including the Health Care Committee, the Joint Legislative Management

Committee, the Joint Legislative Auditing Committee, and the Tourism and Cultural

Affairs Committee. Id. 

161 Peter Buttenwieser is a large contributor to the Democratic Party. He estimates

that from the 1996 election cycle through the 2002 cycle, he has donated over $2.8

million in nonfederal funds to national committees of the Democratic Party, including

over $1.2 million in the 2000 election cycle. Also from the 1996 election cycle through

the current cycle, he estimates that he and his wife have contributed approximately

$100,000 per cycle in federal funds to federal candidate committees and other federal

political committees not affiliated with political parties. During this same period, he has

also hosted many hard money fundraising events for federal candidates in Philadelphia. 

Buttenwieser Decl. ¶ 6 [DEV 6- Tab 11].

162 Arnold Hiatt engaged in substantial political spending for a number of years. He

estimates that from the 1992 election cycle through 1997, he donated approximately

$60,000 in federal funds, mostly to federal candidates, with a few contributions to federal

political action committees ("PACs"). In October of 1996, he gave a $500,000 nonfederal

donation to the DNC. In February of 2001, he made a $5000 hard money donation to the

League of Conservation Voters' PAC, and believes that is the only hard money donation

he has given since 1997. Hiatt Decl. ¶ 5 [DEV 6-Tab 18]. 

136

3]; Bloom160 Decl. ¶ 3 [DEV 6-Tab 7]; Buttenwieser161 Decl. ¶ 16 [DEV 6-Tab

11]; ODP0018-00501-02 [DEV 69-Tab 48] (letter from federal candidate

regarding “how you can further help my campaign by assisting the Colorado

Republican Party”); Shays Decl. ¶ 12 [DEV 68-Tab 40]; Hiatt162 Dep. at 114-16
163 Senator Timothy Wirth served in the U.S. House of Representatives from 1974

to 1986, representing the Second Congressional District of the State of Colorado. From

1987 through 1992 he served as Senator for the State of Colorado in the United States

Senate. Wirth Decl. Exhibit A ¶ 2 [DEV 9-Tab 43].

137

[JDT Vol. 10] (explaining that anyone donating nonfederal money is indirectly

giving it to the campaigns of federal candidates and officeholders); Buttenwieser

Decl. ¶ 15 [DEV 6-Tab 11] (explaining that there is little difference between

federal and nonfederal money beyond the source and amount limitations on federal

money, because national and state political parties use nonfederal money to

influence federal elections); Rudman Decl. ¶ 19 [DEV 8-Tab 34].

33. Senator Wirth163 understood that when he raised funds for the DSCC, donors

expected that he would receive the amount of their donations multiplied by a

certain number that the DSCC had predetermined, assuming that the DSCC had

raised other funds. Wirth Decl. Exhibit A ¶¶ 5, 8 [DEV 9-Tab 43]; see also

Colorado II, 533 U.S. at 458.

34. In 2000, a Fortune 100 company agreed to contribute $25,000 to the NRSC at the

request of George Allen, the then Republican candidate in the 2000 Senatorial race

in Virginia against incumbent Senator Chuck Robb. An employee noted that the

company had donated to Senator Robb’s Leadership PAC and that a similar

contribution to the NRSC was necessary to balance out the company’s support to

the candidates. Internal memorandum (Oct. 26, 2000) [citation sealed].

35. Individual nonfederal money donors have made specific requests that the RNC
164 John Oliver is Deputy Chairman of the RNC.

165 Brad Marshall has served as Chief Financial Officer of the DNC since 1994. 

Marshall Decl. ¶ 1 [DEV 8-Tab 28].

138

apply their nonfederal money gifts to particular campaigns. RNC0035464

[DEV99], RNC0032733-34 [DEV 92] (fundraising letters requesting that soft

money donations be used for particular federal elections); see Hiatt Dep. at 90-91,

117-18 [JDT Vol. 10] (stating that soft money donations to the DNC are

earmarked for particular candidates, but saying he does not know if the money was

actually spent on those candidates).

National Party Use of Nonfederal Money for Federal-Candidate Advocacy

36. The national parties spend a large proportion of their nonfederal money on socalled "issue advertisements" that are really designed to help elect specific federal

candidates. In 2000, for example, the RNC spent a large portion of their

nonfederal money, an estimated $70-75 million dollars, on the production and

broadcasting of television and radio "issue ads." Oliver164 Dep. at 148-49 [DEV

Supp.-Tab 1]. Of that amount, approximately $14 million were coordinated

expenditures, and the rest were so-called “issue ads.” Id.; see also Marshall165

Decl. ¶ 3 (largest single portion of DNC budget during 2000 election cycle was

used for issue ads) [DEV 8-Tab 28].

37. By the end of the 2000 election cycle, it was clear that parties were using corporate
139

and labor union soft money donations to influence federal elections, often through

candidate-specific issue ads, and not primarily for state and local elections. Mann

Expert Report at 25-26.

38. The RNC has offered to run these so-called “issue ads” for Members of Congress

in their districts, and to have the national committees provide the soft money

portion of the funds required to place the ads, if those Members provide the federal

portion. See ODP0021-01365 to 67 [DEV 70-Tab 48], ODP0025-02936 [DEV

70-Tab 48] (memorandum and email from the RNC offering to pay the soft money

portion of political advertisements for Members of Congress who are willing to

pay the federal portion).

39. Evidence submitted suggests that during the 2000 election, party ads were not

aimed at party building. Almost 92% of party ads never even identified the name

of a political party in the body of the advertisement, let alone encouraged voters to

register with or support the party or to volunteer with the local party organization. 

Buying Time 2000 at 64 [DEV 46].

40. Defendants' expert Green states:

[T]he original exemptions for soft-money were justified partly on the

grounds that get-out-the-vote activity would help strengthen parties.

As it happened, only a small fraction of the soft money (or hard

money, for that matter) that flowed to state and national parties was

spent on voter mobilization activity, even broadly conceived to

include direct mail and commercial phone banking. According to the

classification system presented by La Raja and Javish Shean (2001,

p.3), 8.5% of national party soft money expenditures went to
166 Buckley, 424 U.S. at 44 n.52. See description of the difference between

"genuine issue ads" and "candidate-centered" advocacy ads in supra Parts I.A.3 & I.B.2.

140

‘mobilization’ and ‘grassroots.’ The figures for state and local

parties are each 15%.”) (citing Raymond La Raja and Elizabeth

Jarvis-Shean, Assessing the Impact of a Ban on Soft Money: Party

Soft Money Spending in the 2000 Elections. (Unpublished

manuscript: Institute of Governmental Studies and Citizens’

Research Foundation 2001).

D. Green Report at 14 n.17 [DEV 1-Tab 3].

41. What has been permitted as "issue advocacy" has not only included genuine issue

ads that promote legislation and public policy positions but communications, paid

for in whole or part with nonfederal money, that attack or support a candidate by

name without using the "magic words" described in Buckley.

166

 See 144 Cong.

Rec. S10071-73 (1999) (Sen. Levin) ("issue ads" indistinguishable from candidate

ads which are subject to contribution limits and disclosure requirements); 146

Cong. Rec. H428 (2000) (Rep. Ganske); ODP0021-01365-67 [DEV 70-Tab 48];

ODP0022-00277-88 [DEV 70-Tab 48]; ODP0023-02358-65 [DEV 70-Tab 48];

ODP0023-03560-660 [DEV 70-Tab 48]; ODP0025-01560 [DEV 70-Tab 48];

ODP0025-02720-21 [DEV 70-Tab 48]; ODP0031-00424 [DEV 71-Tab 48];

ODP0033-00534 [DEV 71-Tab 48]; ODP0036-03603 [DEV 71-Tab 48];

ODP0037-00062 [DEV 71-Tab 48]; ODP0037-00884 [DEV 71-Tab 48];

ODP0037-02271 [DEV 71-Tab 48] (examples of advertisements); see also Shays

Decl. in RNC ¶¶ 7, 8 [DEV 68-Tab 40]; Meehan Decl. in RNC ¶13 [DEV 68-Tab
167 Since early 2001, Linda Chapin has been the Director of the Metropolitan

Center for Regional Studies at the University of Central Florida. Chapin Decl. ¶ 2 [DEV

6-Tab 12] received about 49 percent of the votes cast. Id. ¶ 4. From 1998 to 2000,

Chapin directed the Orange County (Florida) Clerk’s Office. Id. ¶ 2. Prior to that,

Chapin was elected to two successive four-year terms, in 1990 and 1994, as County

Chairman of Orange County. Id. The County Chairman is a strong executive position

roughly equivalent to a mayoral office. Id. In recognition of Chapin’s work as County

Chairman, she received a Public Service Excellence Award from then-President Bill

Clinton in 1997, and an Alumni Achievement Award from the Kennedy School of

Government at Harvard University in 1999. Id. Prior to her tenure as County Chairman,

she was elected to a four-year term on the Orange County Commission in 1986.

168 Rocky Pennington is a Republican political consultant. Pennington Decl. ¶ 2

[DEV 8-Tab 31]. He is the owner and President of three Florida companies engaged in

political activities: Southern Campaign Resources, Direct Mail Systems, Inc., and

Summit Communications. Id. Southern Campaign Resources, which Pennington

founded in 1982, does general consulting primarily for Florida state campaigns, but has

also done Congressional races in Florida, including Congressman Cliff Steams’ first race

in 1988 in Ocala, Bill Sublette’s 2000 campaign in the Eighth Congressional district, and

Congressman Jeff Miller’s 2001 special election in the Panhandle. Id. Direct Mail

Systems, founded in 1981, is a direct mail company with roughly 100 employees that has

done fundraising and has sent voter contact mail for candidates, parties and interest

groups in Florida and elsewhere. Id. Direct Mail Systems has also sent voter contact

mail for some of Florida’s Republican congressional delegation, as well as for state

Republican parties in many other states. Finally, Summit Communications, which

Pennington founded in 2000, creates political advertising for television and radio and

buys airtime for various campaigns, such as Congressman Miller’s 2001 general election

campaign. Id.

169 Senator William Brock he served as United States Representative from

Tennessee from 1963 until 1971. From 1971 until 1977, he served as a United States

Senator from the State of Tennessee. From 1977 until 1981, he served as Chairman of the

Republican National Committee. Brock Decl. ¶ 2 [DEV 6-Tab13]. 

141

30]; Rudman Decl. ¶ 12 [DEV 8-Tab 34]; Beckett Decl. ¶ 11, Exhibit 3 [DEV

6-Tab 3]; Chapin167 Decl. ¶ 11 [DEV 6-Tab 12]; Lamson Decl. ¶¶ 9, 17, Exhibits

2-4 [DEV 7-Tab 26]; Pennington168 Decl. ¶ 13 [DEV 8-Tab 31]; Brock169 Decl. ¶ 8
170 Pat Williams was a Member of the U.S. Congress from 1979 to 1997. Williams

Dep. at 8.

171 Mr. Terry Nelson is the RNC’s Deputy Chief of Staff and Executive Director of

Political Operations. Nelson Dep. at 8-9 [JDT Vol. 24].

142

[DEV 6-Tab 9]; Williams170 Cross Exam. at 47 [JDT Vol. 32].

42. Whether or not party ads used so-called "magic words"—and only about 2.3

percent of party spots did in 2000—all 231,000 party spots viewed by coders in the

Buying Time 2000 study were perceived as electioneering in nature—that is,

designed to campaign for or against candidates. These ads—96 percent of which

mentioned or depicted a candidate—were focused on electing candidates. Buying

Time 2000 at 64 [DEV 46].

43. Defense expert David Magleby finds that over half, and sometimes as much as

three-quarters, of party soft money expenditures go to broadcast advertising. The

focus and content of these ads is candidate centered. “The content, tactics and

strategy are generally indistinguishable from the candidate campaigns, except that

party campaign communications are generally more negative in tone.” Id. at 45.

44. The RNC’s expert Professor La Raja acknowledges that so-called "issue ads" are

intended to and do support the campaigns of federal candidates. La Raja Cross,

Exhibit 3 at 14, 15, 101, n.11 [JDT Vol. 15]. RNC political operations director

Terry Nelson171 testified that the RNC engages in so-called “issue advocacy in

order to achieve one of our primary objectives, which is to get more Republicans
143

elected.” Nelson Dep. at 191.

45. Many so-called “issue ads” by political parties were actually electioneering

advertisements that focused on the positions, past actions, or general character

traits of federal candidates, but not on upcoming federal executive action or

pending legislation. See, e.g., ODP0021-01393 [DEV 70-Tab 48];

ODP0023-02288-95 [DEV 70-Tab 48]; ODP0023-02308 [DEV 70-Tab 48];

ODP0023-02312-13 [DEV 70-Tab 48]; ODP0023-02314 [DEV 70-Tab 48];

ODP0023-02326-28, ODP0025-01729-32 [DEV 70-Tab 48]; ODP0025-01811-12

[DEV 70-Tab 48]; ODP0025-01861-64 [DEV 70-Tab 48]; ODP0025-02227-28

[DEV 70-Tab 48]; ODP0023-00327-28 [DEV 70-Tab 48]; ODP0023-02389-92

[DEV 70-Tab 48]; ODP0029-00010-25 [DEV 70-Tab 48]; ODP0029-00031-33

[DEV 70-Tab 48]; ODP0029-00041 [DEV 70-Tab 48]; ODP0029-00114 [DEV

70-Tab 48]; ODP0029-00169 [DEV 71-Tab 48]; ODP0029-00177-79 [DEV

71-Tab 48]; ODP0029-00235-37 [DEV 71-Tab 48]; ODP0029-00329 [DEV

71-Tab 48]; ODP0029-00339 [DEV 71-Tab 48]; ODP0041-00177-78 [DEV

71-Tab 48]; ODP0041-00202-06 [DEV 71-Tab 48]; ODP0041-00220-23 [DEV

71-Tab 48]; ODP0041-00280-82 [DEV 71-Tab 48]; ODP0041-00352-54 [DEV

71-Tab 48]; ODP0041-01261 [DEV 71-Tab 48]; ODP0041-01275 [DEV 71-Tab

48]; ODP0029-00138-47 [DEV 71-Tab 48]; ODP0036-01403-06 [DEV 71-Tab

48]; ODP0036-02931-32 [DEV 71-Tab 48]; ODP0041-00269-71 [DEV 71-Tab
144

48]; ODP0041-01024-27 [DEV 71-Tab 48]; ODP0041-01219 [DEV 71-Tab 48]

(scripts of so-called "issue ads" by political parties).

46. Many so-called “issue ads” by political parties were actually electioneering

advertisements that compared the positions, or past actions, of two competing

federal candidates, rather than focusing on pending federal legislation. See, e.g.,

ODP0023-02375-80 [DEV 70-Tab 48]; ODP0023-02387 [DEV 70-Tab 48];

ODP0023-02393-94 [DEV 70-Tab 48]; ODP0029-00149 [DEV 71-Tab 48];

ODP0029-00159 [DEV 71-Tab 48]; ODP0029-00329 [DEV 71-Tab 48];

ODP0036-02984 [DEV 71-Tab 48]; ODP0041-00457-61 [DEV 71-Tab 48];

ODP0041-00585-86 [DEV 71-Tab 48]; ODP0041-00729-32 [DEV 71-Tab 48];

ODP0041-01152 [DEV 71-Tab 48]; ODP0041-01164 [DEV 71-Tab 48];

ODP0041-01177 [DEV 71-Tab 48]; ODP0041-01189 [DEV 71-Tab 48];

ODP0041-01198 [DEV 71-Tab 48]; ODP0041-01266 [DEV 71-Tab 48];

ODP0041-01337 [DEV 71-Tab 48]; ODP0041-01474-76 [DEV 71-Tab 48];

ODP0041-01479-81 [DEV 71-Tab 48]; ODP0041-01850 [DEV 71-Tab 48];

ODP0041-01854 [DEV 71-Tab 48]; ODP0041-01859 [DEV 71-Tab 48];

ODP0041-01884 [DEV 71-Tab 48] (scripts of political party advertisements).

47. Parties aim their nonfederal money largely at competitive races. The party

committees spend millions of soft dollars in competitive U.S. Senate races and

hundreds of thousands of dollars or more in competitive U.S. House races.
172 Pat Huyck was the RNC’s Director of Accounting as of 1999. Huyck Decl. in

Mariani ¶¶ 3, 5 [DEV 79-Tab 60]. 

145

Magleby Report at 39 [DEV 4-Tab 8]; see also Bumpers Decl. ¶ 4 [DEV 6-Tab

10]; McCain Decl. ¶ 22 [DEV 8-Tab 29] (“parties generally focus their soft money

spending first on taking care of the parties’ current officeholders and on the

candidates running for open seats and after that on the challengers running against

incumbents”); McConnell Dep. at 237 [JDT Vol. 19] (“I think every Senator

realizes that the resources of the [NRSC] are going to be deployed to the . . .

maximum extent in places where there are competitive races”).

48. From late March 1996 through the Republican National Convention, the RNC

spent approximately $20 million on advertisements designed to boost Senator

Dole's image at a time when he had virtually run out of federal matching primary

funds. The RNC paid for a portion of its issue advocacy advertisements with

nonfederal funds, including the costs of creating and/or disseminating

advertisements that attacked President Clinton’s record on welfare reform, taxes,

and budgetary policy. Huyck172 Decl. in Mariani ¶¶ 3, 5 [DEV 79-Tab 60]; see

also id. at Attach. A [DEV Supp.-Tab 9] (text of advertisements paid for by the

RNC and other Republican party committees in part with soft money). The RNC

conducted a detailed analysis of several advertisements it was planning to run in

various markets. The advertisements consisted essentially of two themes: build up

Bob Dole and attack Bill Clinton. These advertisements were tested in focus
146

groups to see the effects they had on undecided voters. The advertisement used to

build up Bob Dole told his life story and never mentioned the words “vote for,”

“elect,” or any of the so-called “magic words" of express advocacy. The second

set of advertisements showed Bill Clinton speaking on a certain issue, then

publicly stating the opposite. All of the ads were tested to see which would most

help Bob Dole and hurt Bill Clinton in the polls. Memorandum to Haley Barbour

from Charlie Nave and Joel Mincey, dated May 28, 1996, FEC MUR 4553,

Fabrizio Dep., Exhibit 5 [DEV 55-Tab 113]; FEC MUR 4553, Fabrizio Dep. at

83-94 [DEV 55-Tab 113] (despite working as a consultant for Senator Dole,

Fabrizio McLaughlin and Associates were sharing their data with the RNC, NRSC,

and NRCC).

49. An example of a 1996 RNC “issue ad” is “The Story”:

Audio of Bob Dole: We have a moral obligation to give our children an

America with the opportunity and values of the nation we grew up in.

Voice Over: Bob Dole grew up in Russell, Kansas. From his parents he

learned the value of hard work, honesty and responsibility. So when his

country called ... he answered. He was seriously wounded in combat.

Paralyzed, he underwent nine operations.

Audio of Bob Dole: I went around looking for a miracle that would make

me whole again.

Voice Over: The doctors said he’d never walk again. But after 39 months,

he proved them wrong.

Audio of Elizabeth Dole: He persevered, he never gave up. He fought his

way back from total paralysis.

Voice Over: Like many Americans, his life experience and values serve as a

strong moral compass. The principle of work to replace welfare. The

principle of accountability to strengthen our criminal justice system. The

principle of discipline to end wasteful Washington spending.
147

Voice of Bob Dole: It all comes down to values. What you believe in. What

you sacrifice for. And what you stand for.

Fabrizio Dep. Exhibit 2; McCain Decl. ¶ 15. The RNC paid for "The Story," in

part with soft money even though it was obviously intended to help Bob Dole in

the Presidential election. Huyck Decl. in Mariani ¶ 3 [DEV 79-Tab 60]; FEC

MUR 4553, Fabrizio Dep. at 50 [DEV 55-113]; McCain Decl. ¶ 15 [DEV 8-Tab

29]. The RNC’s Curt Anderson and Wes Anderson wrote to the RNC Chairman

regarding the Dole “Story” advertisement, stating: “We could run into a real snag

with the Dole Story spot. Certainly, all the quantitative and qualitative research

strongly suggests that this spot needs to be run. Making this spot pass the issue

advocacy test may take some doing.” ODP0025-02018-20 [DEV 70-Tab 48]. 

“Any reasonable person looking at that ad at that particular time in the Presidential

season would say: It's not an ad about welfare or wasteful spending; it is an ad

about why should we elect that particular nominee.” 145 Cong. Rec. S12747

(1999) (Sen. Levin). Senator Dole himself stated that “The Story” “never says I’m

running for President. I hope that it’s fairly obvious since I’m the only one in the

picture.” Center for Responsive Politics, A Bag of Tricks: Loopholes in the

Campaign Finance System (1996) at 13, ODP0018-00172 [DEV 69-Tab 48]; see

also McCain Decl. ¶ 15 (citing Attach. D) [DEV 8-Tab 29].

50. During the 1998 election cycle, the NRCC in coordination with the RNC

conducted “Operation Breakout,” an "issue advocacy" campaign designed to
148

expand the Republican majorities in Congress. ODP0031-00299 [DEV 71-Tab 48]

(September 25, 1998, letter from RNC Chair Nicholson to donor thanking him for

his donation to “Operation Breakout,” describing it as an issue advocacy campaign

designed to expand the Republican majorities in Congress) ; ODP0043-00679

[DEV 71-Tab 48]. See generally ODP0043-00673-703 [DEV 71-Tab 48];

ODP0033-00258 [DEV 71-Tab 48]; ODP0041-00176-78 [DEV 71-Tab 48];

ODP0029-00138-49 [DEV 71-Tab 48]; see also ODP0030-00002-3 (fundraising

letter requesting support for coalition of Republican state and national campaign

organizations to mount the largest issue advocacy campaign in party history) [DEV

71-Tab 48].

51. Television and radio electioneering advertising by political parties played an

important role in the 2000 congressional elections in Florida’s Eighth and 22nd

Districts. Political parties on both sides of these campaigns ran so-called “issue

ads” that were financed partly with nonfederal money, but clearly directed at

influencing the outcome of the election. In the Eighth District, for example, the

DCCC ran television advertising praising Linda Chapin, the Democratic candidate,

or criticizing the Republican candidates, through the Democratic State Party in

order to take advantage of the more favorable hard money-soft money allocation

ratios enjoyed by state parties. Beckett Decl. ¶ 9, Exhibit 1 [DEV 6-Tab 3]; Chapin

Decl. ¶ 9 [DEV 6-Tab 12]; see also Bloom Decl. ¶ 10, Exhibits 1-1, 1-4,
149

(Democratic party ads in 2000 Florida 22nd congressional district race) [DEV

6-Tab 7]. The NRCC and the Florida Republican Party also ran television ads in

the two months prior to the general election, most of which criticized Chapin’s

record or positions, and which witnesses testify were clearly intended to influence

the election results. Chapin Decl. ¶ 10 Exhibit 2 [DEV 6-Tab 12]; Beckett Decl. ¶

10 Exhibit 2 [DEV 6-Tab 3]; Pennington Decl. ¶ 14 Exhibit 3 [DEV 8-Tab 31];

see also Bloom Decl. ¶ 11 Exhibit 2 (Republican party ads in 2000 Florida 22nd

district congressional race) [DEV 6-Tab 7].

52. For example, one so-called "issue ad" stated the following: 

Announcer: Linda Chapin. Hard on taxpayers. Soft on convicts. Chapin

raised taxes on your utilities, pushed to raise the county sales tax and even

tried raising your property tax. Meanwhile, hard time in the county jail

turned into "Chapin time." Where convicts received cable tv and lounged

on padded furniture in carpeted cells. Chapin's County Commission ran this

soft jail . . . a jail she called a "national model." Ask Chapin why she's hard

on taxpayers and soft on convicts.

Chapin Decl. Exhibit 2; Chapin Decl. ¶ 10; Beckett Decl. ¶ 10; Pennington Decl. ¶

14.

The RNC's Involvement in Nonfederal Activities

53. The RNC also undertakes activities exclusively in connection with state and local

elections. RNC General Counsel Josefiak testified that "given the RNC's statebased structure, it is not surprising that the RNC actually focuses many of its
173 John Peschong is the RNC’s Regional Political Director for the Western

Region. Peschong Decl. ¶ 1.

150

resources on purely state and local election activity. This frequently involves

significant resources to grassroots activities, some of which exclusively benefit

state and local candidates." Josefiak Decl. ¶ 19.

54. Testimony by RNC officials states that for elections in which there is a federal

candidate on the ballot, the RNC still funds the training state and local candidates,

contributes to state and local candidate campaign committees, and supports getout-the-vote activities.

55. In 2000 the RNC donated approximately $5.6 million in nonfederal funds to state

and local candidates. Josefiak Decl. ¶ 61.

56. The RNC devotes resources to state and local political activities during federal

election years even when the federal races are not competitive in a particular state

in the hopes of influencing a gubernatorial race (as in California in 2002 and

Indiana in 2000). Josefiak Decl. ¶ 62 (testifying that "the RNC sometimes devotes

significant resources toward states with competitive gubernatorial races even

though the races for federal offices are less competitive"); Peschong173 Decl. ¶¶ 4,

8-9 (stating that "the RNC typically provides a very substantial share of the

funding of state victory programs," which are "programs designed to support the

entire Republican ticket, and frequently place more emphasis on high profile statewide races than on federal races, especially when no federal candidate is running
174 Derek Bok is an expert for plaintiffs.

175 Ryan Erwin is the Chief Operating Officer of the CRP. Erwin Aff. ¶ 1.

151

state-wide."). In 2000, according to Josefiak, most observers believed that Indiana

was a "safe" state for George Bush and that it also did not have a competitive

Senate race. Nevertheless, the RNC "committed significant resources to the state

in hopes of influencing the gubernatorial race." Josefiak Decl. ¶ 62.

57. For elections in which there is no federal candidate on the ballot, the RNC

frequently trains state and local candidates, contributes to state and local candidate

campaign committees, funds communications calling for the election or defeat of

state and local candidates, and supports get-out-the-vote activities. See Banning

Decl. ¶ 28(a); Josefiak Decl. ¶¶ 19, 41-59; La Raja Decl. ¶ 14; cf. Bok174 Cross

Exam. at 34-35.

58. Five States—Kentucky, Louisiana, Mississippi, New Jersey and Virginia—hold

elections for state and local office in odd-numbered years when there are normally

no federal candidates on the ballot. See Josefiak Decl. ¶ 41. Likewise, numerous

cities—including Houston, Indianapolis, Los Angeles, Minneapolis and New York

City—hold mayoral elections in odd-numbered years. See id.; Erwin175 Decl. ¶ 5;

Green Reb. Decl. App. C at 10 (GOTV study conducted on 2001 elections in

Bridgeport, Columbus, Detroit, Minneapolis, St. Paul, and Raleigh).

59. For the 2001 election, an "off-year" election with no federal candidates on the
176 Robert Duncan is a Member of the RNC from the State of Kentucky. At the

time the RNC’s Complaint in this case was filed, he served as Treasurer of the RNC, but

as of July 2002 he became its General Counsel. Duncan Decl. ¶ 1.

152

ballot, the RNC spent more than $15.6 million in nonfederal funds on state and

local election activity through contributions to state and local candidates, transfers

to state parties, and direct spending. See Banning Decl. ¶ 28(a). In the last two offyear elections combined, the RNC spent over $21 million in nonfederal funds to

support state and local election activity, not including substantial commitments of

staff time and other resources. Id. This includes over $9.5 million in direct

contributions to state and local candidates, over $10 million dollars to state parties,

and over $1 million dollars in direct expenditures. Id.; see also Duncan176 Decl. ¶¶

14-15 (discussing RNC contributions to state and local races); Josefiak Decl. ¶¶

19, 41-59 (discussing RNC electoral activity when no federal candidates appear on

the ballot); Cross Exam. of Defense Expert Mann at 71 (agreeing that donations

gubernatorial candidate in an odd-numbered year is not something that is intended

to affect a federal election); La Raja Expert Report ¶ 15. For example, the RNC

contributed approximately $500,000 to the Republican gubernatorial candidate in

Virginia in 1999. La Raja Decl. ¶ 14(b).

60. Until BCRA's effective date the RNC maintained twelve nonfederal accounts,

known as RNSEC accounts. See Banning Decl. ¶¶ 6, 17.

61. Because of the variations among state campaign finance laws, the RNC set up
153

different rules to govern each RNSEC account according to the type and amount of

contributions that could be deposited therein and the type of disbursements that

could be made therefrom. See id. ¶ 7.

62. Some RNSEC accounts were reserved for corporate funds, which were used to

make contributions or expenditures in states permitting the use of such funds in

connection with state and local elections. See id. ¶ 8. 

63. Other RNSEC accounts were reserved for individual funds, which were used to

make contributions or expenditures in states not permitting the use of corporate

funds in connection with state and local elections. See id. ¶ 10.

64. Still other RNSEC accounts held funds raised and spent pursuant to the unique

legal requirements of particular states; the RNC set up state-specific RNSEC

accounts for California, Massachusetts, Michigan, Missouri, New York, North

Carolina, and Rhode Island. See id. ¶¶ 11-12, 17.

The RNC's Involvement in "Mixed" Activities

65. Prior to the effective date of BCRA the RNC also engaged in “mixed"

activities—that is, activities that indirectly influence both federal and state or local

elections (e.g., administrative overhead, genuine issue ads, nonbroadcast party

building communications, state redistricting litigation, training for state party

officials, and generic voter registration and get-out-the-vote activities). As
177 Kathleen Bowler is the Executive Director of the CDP. Bowler Decl. ¶ 1.

154

required by the FEC, the RNC paid for these activities with a combination of

federal and nonfederal funds.

66. The FEC historically allowed the RNC to pay for its administrative

overhead—including salaries, benefits, equipment, and supplies for party

operations at RNC headquarters in Washington, D.C.—with a mix of federal and

nonfederal funds. See Banning Decl. ¶ 27; see also Bowler177 Decl. ¶ 15.

67. "During the 2000 election cycle, the RNC spent $35.6 million of nonfederal funds

and $52.9 million of federal funds on administrative overhead." Banning Decl. ¶

27. "Administrative overhead includes the operating costs of RNC facilities, such

as utility bills and maintenance, fundraising costs, and routine expenses for travel

and supplies. Administrative overhead also includes the salaries of RNC

employees." Id.; see also Bowler Decl. ¶ 15 (stating that allocation is required for

administrative expenses like rent, utilities, and salaries).

68. The RNC regularly broadcasts ads for the purpose of influencing an issue or

policy. See, e.g., Josefiak Decl. ¶ 91(e); La Raja Decl. ¶ 16(b) ("Political parties

use nonfederal money to develop and disseminate political me sages.").

69. According to Josefiak: "The RNC seeks to educate the public about the positions

for which the Republican Party stands." Josefiak Decl. ¶ 91(e).

70. According to Josefiak: "The RNC is currently airing a 60-second radio spot
155

entitled 'Leave No Child Behind.' This genuine issue advertisement, which

features a man and a woman discussing education issues, states the following:

Male: Every child can learn . . . 

Female: . . . and deserves a quality education in a safe school.

Male: But some people say some children can't learn . . .

Female: . . . so just shuffle them through.

Male: That's not fair.

Female: That's not right.

Male: Things are changing. A new federal law says every child deserves to

learn.

Female: It says test every child to make sure they're learning and give them

extra help if they're not.

Male: Hold schools accountable. Because no child should be in a school

that will not teach and will not change.

Female: The law says every child must be taught to read by the 3rd grade. 

Because reading is a new civil right.

Male: President Bush's No Child Left Behind Law.

Female: The biggest education reform and biggest increase in education

funding in 25 years.

Male: Republicans are working for better, safer schools . . .

Female: . . .so no child is left behind.

Male: That's right . . . Republicans.

Anncr: Learn how Republican education reforms can help your children.

Call . . . . Help President Bush and leave No Child Behind.

The advertisement mentions President Bush's name for the purpose of identifying

the precise proposal supported by the Republican Party ('President Bush's No Child

Left Behind Law'), but mentions no federal candidate currently facing reelection. 

It concludes with a request that listeners call a toll-free number to learn more about

Republican education reform." Josefiak Decl. ¶ 91(e); RNC Exhibit 2428.

71. The RNC has used a mix of federal and nonfederal funds to engage in

nonbroadcast communications with its supporters. The RNC’s magazine "Rising
156

Tide," is designed to provide readers with “a more in-depth education about the

Republican issue agenda than is possible in the more traditional 30-second

television advertisements.” Josefiak Decl. ¶99; RNC Exhibit 977. Also, political

parties use the internet, e-mail, and direct mail to spread their messages to

adherents. See La Raja Expert Report ¶ 16(a); Magleby Expert Report at 42.

72. The RNC used a mix of federal and nonfederal funds to support redistricting

efforts, including state redistricting litigation. Josefiak Decl. ¶ 74. In 2002, for

example, the RNC budgeted approximately $4.1 million on redistricting. Seventy

percent of the redistricting budget was to be funded with nonfederal money. 

Banning Decl. ¶ 28(i). The RNC spends more overall on state legislative

redistricting than on congressional redistricting. Josefiak Decl. ¶ 74.

73. The RNC has used a mix of federal and nonfederal funds to conduct training

seminars for Republican candidates, party officials, activists and campaign staff,

many of whom are involved in state and local campaigns and elections. Topics

included grassroots organizing, fundraising and compliance with campaign finance

regulations. During the 2000 election cycle at least 10,000 people attended RNCsponsored training sessions, including 117 "nuts and bolts" seminars on grassroots

organizing and get-out-the-vote activities. During the same cycle the RNC spent

$391,000 in nonfederal funds and $671,000 in federal funds on such training and

support. See Banning Decl. ¶ 28(c); see also La Raja Expert Report at 11 (parties
157

"help candidates by training them and their campaign staff," support which “can

make an important difference in whether a candidate chooses to run for office,

particularly in an era of cash-intensive campaigning that requires skillful

application of advanced campaign technologies”).

74. The RNC has used a mix of federal and nonfederal funds to support interstate

cooperation on state issues among Republican state and local activities. For

example, the RNC provided $100,000 of seed money for the formation of a

Republican state attorneys general association that focuses on state issues. RNC

Exhibit 978; see also Josefiak Decl. ¶¶ 82-84. In addition, during the 2000

election cycle the RNC spent $199,000 in nonfederal funds and $33,500 in federal

funds on state and local governmental affairs. See Banning Decl. ¶ 28(b). 

75. The RNC has used a mix of federal and nonfederal funds to support efforts to

increase minority involvement and membership in the Republican Party. During

the 2000 election cycle, for example, the RNC spent $1,211,000 in nonfederal

funds and $2,163,000 in federal funds on support of allied groups and minority

outreach. See id. ¶ 28(e).

76. Pursuant to FECA and FEC regulations in force prior to BCRA's effective date, the

RNC paid for mixed activities using a predetermined "allocation" formula for

federal and nonfederal funds. Josefiak Decl. ¶ 23 ("Since the FEC has long

recognized that the RNC is heavily involved in activities at the federal and state
178 Beverly Shea is the RNC’s Finance Director. Shea Decl. ¶ 1.

158

levels, the RNC has historically paid for its overhead using an allocation, or 'split,'

between federal and nonfederal funds: activities that are purely federal are paid for

with 100% federal funds; activities that are purely state or local are paid for with

100% nonfederal funds; and activities that relate to both federal and state elections

are paid for with a combination of federal and nonfederal funds.").

77. During presidential election years national party committees were required to pay

for their mixed activities with at least 65 percent in federal funds. See 11 C.F.R. §

106.5(b)(2)(i) (2001).

78. During nonpresidential election years national party committees were required to

pay for their mixed activities with at least 60 percent in federal funds. See id. at §

106.5(b)(2)(ii).

The RNC's Assistance to State and Local Parties for Nonfederal and Mixed

Activities

79. Prior to BCRA's effective date the RNC also provided financial and fundraising

assistance to state and local candidates and parties through a variety of means. See

B. Shea178 Decl. ¶¶ 32-40; Josefiak Decl. ¶¶ 63-72; Banning Decl. ¶ 28.

80. During the 2000 election cycle the RNC made transfers of approximately $129

million—$93.2 million in nonfederal funds and $35.8 million in federal funds—to

state and local parties. See Press Release, FEC, National Party Transfers to
179 John Dendahl is the State Chairman of the Republican Party of New Mexico. 

Dendahl Decl. ¶ 1. 

159

State/Local Committees: January 1, 1999 to December 31, 2000, available at

http://www.fec.gov/press/051501partyfund/tables/nat2state.html.

81. The RNC helped state and local parties through donor list exchanges; joint

fundraising events; promotion of state party fundraising events; facilitating

contributions from interested donors; providing matching incentives to encourage

state parties to develop their in-house fundraising capabilities through the RNC's

"Finance PLUS" program; and devoting personnel to state party fundraising needs. 

See Dendahl179 Decl. ¶ 10; Duncan Decl. ¶ 13; Josefiak Decl. ¶ 44, 65-72; B. Shea

Decl. ¶¶ 32-40; see also La Raja Expert Report ¶ 12(b) (discussing national party

support for state parties generally).

82. RNC officers have sent fundraising letters on behalf of state and local candidates

even during off-years. See, e.g., Josefiak Decl. RNC Exhibit 292 (RNC 0332976)

(fundraising letter signed by Deputy RNC Chairman Jack Oliver on behalf of Bret

Schundler's New Jersey gubernatorial campaign); Josefiak Decl. RNC Exhibit

1162 (fundraising letter signed by Haley Barbour on behalf of George Allen's

Virginia gubernatorial campaign); RNC Exhibit 1766 (fundraising letter signed by

Haley Barbour on behalf of New Jersey Republican Party); Feingold Dep. Exhibit

12 [JDT Vol. 6] (fundraising letter from Jim Nicholson on behalf of Norm

Coleman's Minneapolis mayoral campaign).
160

83. RNC officers have been involved in helping state and local parties and candidates

raise money in accordance with state and federal law.

84. After becoming Chairman of the RNC in February 2002, Marc Racicot made 82

trips to 67 cities in 36 states in his capacity as Chairman. “The majority of these

trips have had significant fundraising components to them.” Josefiak Decl. ¶ 70.

85. RNC Co-Chairwoman Ann Wagner and Deputy Chairman Jack Oliver respectively

made 31 and 33 trips. “The majority of these trips have had significant fundraising

components to them.” See id.

86. Robert Duncan, current General Counsel and former Treasurer of the RNC, was

actively involved in fundraising activities for the Republican Party of Kentucky

and for Kentucky state candidates. Since 1992 when he became a member of the

RNC, Duncan has sponsored a reception to support the reelection of a Kentucky

state senator and he also hosted and attended numerous fundraising dinners in

support of the Kentucky Republican Party. Duncan Decl. ¶¶ 5-6.

87. RNC support has been used by state and local parties to engage in voter

registration, get-out-the-vote, and generic grassroots organizing. See Banning

Decl. ¶ 31.

88. "RNC transfers of non-federal funds to the state parties play a critical role in

subsidizing the activities of the state parties. The state parties depend on these

funds to pay for everything from their own administrative overhead to voter
180 Bruce Benson is Chairman of the Colorado Republican Party. Benson Decl. ¶

1. 

161

mobilization, grass roots organizing, and media." Banning Decl. ¶ 31; see also

Duncan Decl. ¶¶ 11-12. 

89. The RNC also helped state and local parties fundraise for these voter mobilization

efforts. See Josefiak Decl. ¶¶ 63, 65-72; Benson180 Decl. ¶ 10 ("[T]he Republican

national party committees also assists [the Colorado Republican Party] in raising

money for these party building programs.").

90. Evidence presented shows that the RNC cooperates and works closely with state

and local political parties to support the entire Republican platform and ticket at

the federal, state, and local levels.

91. Both sides’ experts agree that "relationships among local, state, and national

organizations have strengthened in the past three decades" and they attribute the

cohesion to "the role of the national parties in providing resources and expertise to

lower levels of the party." La Raja Expert Report at 7 (citations omitted); see

Mann Expert Report at 30-31 ("The relationship between the national parties and

their state parties has never been closer than it is today.").

92. Plaintiff’s expert La Raja states that cooperation among national, state, and local

parties is generally healthy for American democracy:

Cohesive parties enhance electoral accountability by linking the campaigns

and platforms of federal, state and local candidates. In this way, they

provide voters with clear signals about what the party stands for
162

collectively. The joint campaigns of political parties across federal, state

and local candidates also generate electoral economies of scale that

mobilize greater numbers of voters. The national parties have been

catalysts for party integration because they possess the resources to

coordinate such activity. 

La Raja Rebuttal Report ¶ 9.

93. Examples of national, state, and local political parties working together are the

Republican Party "Victory Plans" and the Democratic Party "Coordinated

Campaigns." All levels of the Republican party structure actively participate in the

design, funding, fundraising and implementation of Victory Plans, see Josefiak

Decl. ¶¶ 26-40, just as all levels of the Democratic Party participate in the design,

funding, fundraising, and implementation of Coordinated Campaigns, see Bowler

Decl. ¶ 29.

94. The RNC's Victory Plans are voter contact programs designed to support the entire

Republican ticket at the federal, state, and local levels. The RNC works with

every state party to design, fund, and implement the Plans. See Benson Decl. ¶ 8;

Josefiak Decl. ¶ 26; Peschong Decl. ¶¶ 4-5.

95. Victory Plans are formulated and implemented after extensive and continuous

collaboration between the RNC and the state parties; each Plan is tailored to the

unique needs of each state and designed to stimulate grassroots activism and

increase voter turnout in the hopes of benefitting candidates at all levels of the

ticket. Josefiak Decl. ¶¶ 25-40.
181 Robert Bennett has served as Chair of the Ohio Republican Party since 1988. 

Bennett Decl. ¶¶ 1-2.

163

96. In 2000 the RNC transferred approximately $42 million to state parties to use in

Victory Plan programs, 60 percent (about $25 million) of which was nonfederal

money and none of which was spent on broadcast "issue advertising." Josefiak

Decl. ¶ 31.

97. Although Victory Plans are designed to benefit Republican candidates at the

federal, state, and local levels, they often place the greatest emphasis on state and

local races because in most instances there are far more state and local candidates

than federal candidates on the ballot. See Benson Decl. ¶ 8; Bennett181 Decl. ¶

17.k (stating that the average ratio of state and local candidates to federal

candidates in Ohio in 2002 is 18 to 1).

98. “By their nature, the Victory Plans and the programs specified in them span the

calendar year, not just the 60 or 120 days prior to the election.” Peschong Decl. ¶

4.

99. The Victory Plans generally incorporate rallies, direct mail, telephone banks,

brochures, state cards, yard signs, bumper stickers, door hangers, and door-to-door

volunteer activities. Id.

RNC Fundraising

100. In 2000 the RNC raised $99,178,295 in nonfederal funds and $152,127,759 in
182 Janice Knopp is the RNC’s Deputy Director of Finance/Marketing Director. 

Knopp Decl. ¶ 1. 

164

federal funds. See Shea Decl. RNC Exhibit 2259.

101. The RNC engages in fundraising through direct marketing—i.e., direct mail,

telemarketing and internet solicitations—and through "major donor" programs. In

2000 the RNC raised $105,860,700 through direct marketing and $146,929,900

through major donor programs. B. Shea Decl. ¶ 7. In 2001 the RNC raised

$56,117,600 through direct marketing and $25,909,700 through major donor

programs. See id.

102. On average, 60 percent of the total amount the RNC raises each year is obtained

through direct marketing. See id.; Knopp182 Decl. ¶ 5. Ms. Knopp testifies that she

has observed that direct marketing messages that "perform the best are those that

emphasize the Republican Party's core political philosophy of lower taxes and less

government and the RNC's important role in federal and state elections. In short,

the RNC's fundraising success depends on its appeal to persons desiring to

associate with its governing philosophy." Knopp Decl. ¶ 25. 

103. "Major donors" are defined by the RNC as individuals who give $1,000 or more

per year. See B. Shea Decl. ¶ 6. In Ms. Shea’s experience, like its smaller donors,

the RNC's major donors are most responsive to appeals based on the RNC's

ideology. See id. ¶¶ 23-24. The RNC has six major programs: the President's Club

is designed to raise federal contributions of $1,000 per person or $2,000 per couple
165

per year, see id. ¶ 14.b; the Chairman's Advisory Board is designed to raise federal

or nonfederal contributions of $5,000 per year, id. ¶ 14.c.; the Eagles program, the

RNC's oldest major donor program, is designed for members who either contribute

$15,000 in federal funds or donate $20,000 in nonfederal funds per year, id. ¶ 14.d;

the Majority Fund is directed at PACs that donate $15,000 in either federal or

nonfederal funds per year, id. ¶ 14.e; Team 100 is designed for members who

donate $100,000 in nonfederal funds upon joining and then donate $25,000 in each

of three subsequent years, id. ¶ 14.f; and the Regents program is designed for

members who give an aggregate amount of $250,000 in nonfederal funds per twoyear election cycle, id ¶ 14.g. In addition, every four years the RNC establishes a

special "Presidential Trust," designed for contributions of $20,000 in federal funds. 

See id. ¶ 15.

104. Over the last nine years the average donation to the RNC, including both federal

and nonfederal funds, has been approximately $57. Knopp Decl. ¶ 5; RNC Exhibit

2430.

105. In 2000 the RNC raised the majority of its nonfederal money from

individuals—not corporations—and the average corporate donation of nonfederal

funds is significantly lower than the average individual donation. In 2000, for

example, the average corporate donation on nonfederal funds was $2,226, while

the average individual donation of nonfederal funds was $10,410. Knopp Decl. ¶
183 These figures, including the corporation/individual breakdown, apparently do

not include approximately $134 million in donations to Republican national committees

aside from the RNC.

184 Timothy Morgan is the Republican National Committeeman from California,

elected by the state central committee of the CRP. Morgan Aff. ¶ 1. 

166

9. Knopp further testifies that in the 2000 election cycle the RNC raised $65

million in nonfederal funds from individuals, and $51 million from corporations. 

Id.

183 However, it should be noted that out of the top 50 soft money donors to both

parties combined, thirty-five corporations gave 11.4 percent ($29,447,350) of all

nonfederal money received by the Republican national committees in the 2000

election cycle. See Mann Expert Report at tbl. 6.

The California Democratic Party ("CDP") and the California Republican Party

("CRP")

106. The CDP and the CRP each maintain a federal committee registered with the FEC. 

In turn, the federal committee maintains a federal account, contributions to which

comply with FECA's source-and-amount limitations and reporting requirements. 

See Bowler Decl. ¶ 9; Morgan184 Aff. ¶ 3.

107. The CDP and the CRP are each registered as political party committees in

accordance with California law. Each maintains a nonfederal account into which

contributions permissible under California law are deposited. The parties'

nonfederal campaign activities are subject to direct regulation by the California
167

Fair Political Practices Commission and each party regularly files disclosure

reports of receipts and expenditures with the Secretary of State. See Bowler Decl.

¶ 11; Morgan Aff. ¶ 3.

108. Prior to BCRA's effective date the costs of the CDP's and the CRP's "mixed"

activities were "allocated" between each party's federal account and nonfederal

account.

109. The CDP was required to allocate funds for administrative expenses such as rent or

employee salaries; generic voter identification activities; voter registration

activities; get-out-the-vote activities that were not candidate-specific; fundraising

expenses; and communications on behalf of both federal and nonfederal

candidates. See Bowler Decl. ¶ 15.

110. Bowler testifies that the CDP allocated funds in accordance with the FEC's

regulations. They allocated funds for administrative expenses, generic voter

identification activities, voter registration activities, and get-out-the-vote activities

based on a "ballot composition" formula that calculated the ratio of federal offices

and nonfederal offices expected to be on the general ballot in a given election

cycle. They allocated funds for public communications supporting or opposing

federal and nonfederal candidates using a "time-and-space" formula. And they

allocated funds for fundraising expenses on a "funds raised" basis. See id. ¶ 15.
168

Proposition 34

111. In November 2000 California voters adopted Proposition 34 to govern campaign

contributions in the state. Under Proposition 34, expenditures by political party

committees on behalf of state candidates are unlimited. Contributions by political

party committees to state candidates are likewise unlimited, although contributions

by other contributors other than political parties to state candidates are limited

depending upon the elective office. Contributions to state and local political

parties for the purpose of making contributions to state candidates are limited to

$25,000 per year per contributor. Contributions to state and local political parties

for other purposes—e.g., funding administrative and overhead costs, voter

registration or generic get-out-the-vote activities or supporting ballot measures or

issue advocacy—are unlimited. Contributions to state and local political parties

are not source-limited; that is, corporations and labor unions may contribute funds

in accordance with generally applicable limits. See id. ¶ 11; Erwin Aff. ¶ 5; see

also CAL. GOV'T CODE §§ 85301, 85303(B), 85303(C), 85312.

112. By adopting Proposition 34, California voters approved the statement that

"[p]olitical parties play an important role in the American political process and

help insulate candidates from the potential corrupting influence of large

contributions." CDP App. at 1193 ("Proposition 34: Text of Proposed Law").
169

The CDP's and CRP's Focus on State and Local Activities

113. The CDP and CRP focus the majority of their resources on supporting state and

local candidates, participating in state and local elections, and influencing state and

local policies.

114. In California, state and local races on any particular ballot substantially outnumber

federal races, of which there will be, at most, three in any election cycle. See

Bowler Decl. ¶ 13; id. ¶ 15 (explaining that in the 2002 cycle, where the only

Federal office on the California ballots was a congressional race, administrative

expenses were required to be allocated 12.5 percent federal and 87.5 percent

nonfederal based on the ballot composition formula; in the 2000 cycle which

included a Presidential race, administrative expenses were required to be allocated

43 percent federal and 57 percent nonfederal).

115. California holds elections for 120 legislative officers, eight statewide-elected

officers and four members of the State Board of Equalization. It holds still more

elections for judicial office and local office and ballot measures at both the state

and local levels. See id. ¶ 13; Erwin Aff. ¶ 5.

116. During the 2002 election cycle—in which, according to CDP Chair Art Torres,

there was only one "contested" congressional race "as a practical matter"—the

CDP was actively involved in eight statewide nonfederal races and a dozen state
185 Art Torres is the elected chair of the CDP. Torres Decl. ¶ 1. 

170

legislative races. See Torres185 Decl. ¶ 8.

117. The CDP actively participates in municipal elections. In recent years the CDP has

spent several million dollars in nonfederal funds supporting candidates in major

cities such as Los Angeles and San Francisco. Torres Decl. ¶ 8.

118. The CDP actively supports and opposes state and local ballot measures. Bowler

Decl. ¶ 8.

CDP & CRP Voter Registration Activities

119. Evidence shows that the CDP and the CRP conduct voter registration primarily for

state and local elections.

120. Erwin testified that "[t]he overwhelming amount of [voter registration] activity is

'generic' voter registration activity urging potential registrants to 'Register

Republican.'" Erwin Aff. ¶ 9.

121. CDP and CRP officials testified that "it is often the case that voter registration

activities are primarily driven by the desire to affect State and local races." Erwin

Aff. ¶ 14a; Bowler Decl. ¶ 20.a.

122. The CDP actively registered over 300,000 Democratic voters throughout

California during 2002 even though there was "only one closely contested

Congressional race" among the 52 races for the U.S. House of Representatives. 
171

See Bowler Decl. ¶ 20.a.

123. The CDP's expenditures on voter registration—consisting of a mix of federal and

nonfederal funds—were approximately $145,000 in the 1996 election cycle;

$300,000 in the 1998 cycle; $100,000 in the 2000 election cycle; and $185,000

during the period from January 1, 2001 to June 30, 2002. See id. 

124. The CDP's expenditures for voter registration were higher in 1998 (a year with

eight statewide elections) than in 2000 (a presidential election year). Id.

125. The CRP has paid for voter registration—with a mix of federal and nonfederal

funds—through its "Operation Bounty" program, in which Republican county

central committees, Republican volunteer organizations, and Republican

candidates for federal and state office participate. Through Operation Bounty

drives, the CRP has typically registered over 350,000 Republican voters in each

election cycle since the 1984 cycle (except 1997-98). See Erwin Aff. at 13; see

also CDP App. at 1185 (charting CRP's voter registration activity by election cycle

since 1984 cycle).

CDP and CRP Direct Mail Activities

126. The CDP and the CRP conduct direct mail campaigns primarily for state and local

elections.

127. The CDP typically spends approximately $7 million to $8 million in nonfederal
172

funds on its mail program in support of state and local candidates that does not

include federal candidates. See Bowler Decl. ¶ 20(b).

128. In 2000, the CDP produced and sent out over 350 different mail pieces for its state

and local candidates and ballot measures. These mailings do not reference federal

candidates or any federal races. Bowler Decl. ¶ 20(b). This mail often gives both

the election date and the person's polling places. Id. 

129. In most election cycles the CRP mails an absentee ballot application to registered

Republican households. In the 1994, 1996, and 1998 cycles the CRP sent between

2.25 and 2.5 million absentee ballot mailers to Republican voters. In the 2000

cycle the CRP sent approximately 5.2 million absentee ballot mailers. Erwin Aff.

¶ 10.b.

CDP and CRP Get-Out-the-Vote Activities

130. The CDP conducts get-out-the-vote telephone banks primarily for state and local

elections.

131. Approximately 40 to 50 percent of the CDP's paid phone banking is conducted in

connection with a specific state or local race and does not make reference to any

federal candidate. See Bowler Decl. ¶ 20.b.

132. Prior to BCRA's effective date, to the extent the CDP's phone banking referred to

both federal and nonfederal candidates, expenditures therefor consisted of a mix of
173

federal and nonfederal funds. Id.

133. Prior to BCRA's effective date, to the extent the CDP's phone banking did not

endorse any federal candidate, expenditures therefor consisted entirely of

nonfederal funds. Id. 

134. The CDP and the CRP conduct get-out-the-vote door-to-door canvassing

campaigns primarily to influence state and local elections.

135. The CDP and the CRP routinely mail slate cards and hand deliver door hangers

listing endorsed candidates, urging voters to vote on election day, and informing

voters of the date of the election and the polling place. Id.; Erwin Aff. ¶ 10.c;

Bowler Decl. Exhibit H, Exhibit I.

136. Slate cards and door hangers are usually tailored for a particular local area, and

state and local races dominate numerically over federal races. Bowler Decl. ¶

20.b; Erwin Aff. ¶ 10.c.

137. Prior to BCRA's effective date, to the extent slate cards or door hangers mentioned

both federal and nonfederal candidates, expenditures therefore consisted of a mix

of federal and nonfederal funds. See id.; Bowler Decl. ¶ 20.b.

State Party "Issue Ads" that Directly Affect Federal Elections

138. State parties also use nonfederal money to fund federal-candidate centered "issue

ads" that are really electioneering advertisements intended to directly affect federal
174

elections.

139. State parties use a large portion of the transferred nonfederal money to finance

public communications (principally broadcast and cable advertisements) that

support or oppose a federal candidate. See Wolfson Decl. ¶ 63; Marshall Decl. ¶ 3

(noting that in 2000, the largest single portion of the DNC budget was used for

issue advertising, but that “[t]he DNC typically did not expend money for these

issue ads itself, but instead transferred both federal and non-federal money to the

state parties to make these expenditures”); Nelson Dep. Tr. at 121, 123. National

party “issue advocacy” advertising focusing on electing federal candidates is often

bought by state parties, but funded by national party committees, who transfer the

funds needed to the state parties. See, e.g., ODP0021-01365-67,

ODP0023-02358-65, ODP0023-03560-660, ODP0025-01560, ODP0025-2720-21

[DEV 70-Tab 48] (internal RNC correspondence referencing “issue ads” to be run

through state parties).

140. Defense Expert Magleby states that

Parties can stretch their soft money even further by transferring soft and

hard money to state parties where they can achieve a better ratio of soft to

hard dollars than if they spent the money themselves. This is because the

ratio of soft to hard dollars for party spending if done by the national patty

committees is 35 percent soft and 65 percent hard for presidential years, and

40 percent soft and 60 percent hard for off years, but if done by state parties

the ratio of soft to hard dollars is greater. The reason for this difference is

state parties are allowed to calculate their soft/hard ratio based on the ratio

of federal offices to all offices on the ballot in any given year. Both political

parties have found spending soft money with its accompanying hard money
175

match through their state parties to work smoothly, for the most part, and

state officials readily acknowledge they are simply “pass throughs” to the

vendors providing the broadcast ads or direct mail. 

Magleby Expert Report at 37 [DEV 4-Tab 8]; see also Marshall Decl. ¶ 3 [DEV 8-

Tab 28] (testifying that in 2000 the DNC transferred funds to the state parties to

take advantage of their allocation rates); ODP0021-1365 to 1367 [DEV 70-Tab 48]

(memorandum from Haley Barbour to the California House Republicans,

discussing the need to make a media buy in California and stating that “[t]o

accomplish this buy, the [RNC] would transfer funds to the California Republican

Party, which would actually buy the advertising. Under FEC regulations, the

California Republican Party must pay for the advertising with one-third FEC

contributions and two thirds nonfederal dollars”); McConnell Dep. at 267-77 [JDT

Vol. 19] (stating that the NRSC prefers to transfer funds to state parties who then

purchase NRSC advertisements with a more favorable federal/nonfederal fund

allocation ratio); Nelson Dep at 76-77 [JDT Vol. 24] (stating that purchasing

political advertisements through state parties has two advantages: (1) better

federal/nonfederal fund allocation ratios and (2) “having [a] state disclaimer [on

the advertisement] is generally better than having a national disclaimer on it”).

141. The national party committees transferred $9,710,166 in federal funds to state

party committees during the 1992 election cycle, $9,577,985 during the 1994

election cycle, $49,967,893 during the 1996 election cycle, $30,475,897 during the
176

1998 election cycle, and $131,016,957 during the 2000 election cycle. The national

party committees transferred $18,646,162 in nonfederal funds to state party

committees during the 1992 election cycle, $18,442,749 during the 1994 election

cycle, $113,738,373 during the 1996 election cycle, $69,031,644 during the 1998

election cycle, and $265,927,677 during the 2000 election cycle. Biersack Decl.

tbls. 4, 8 [DEV 6-Tab 6].

142. The RNC transferred federal and nonfederal money to state Republican party

committees to pay for electioneering "issue ads." Huyck Decl. in Mariani ¶ 4

[DEV 79-Tab 60]; Josefiak Dep. at 97; Hazelwood Dep. at 118-19; see also

INT810-1605 to 12 (RNC NM0406326 - 33) [DEV 114] (1998 financial statement

for the Republican Party of New Mexico (“RPNM”) shows that it received

revenues of $1,524,634 in nonfederal transfers from other Republican

organizations, $1,110,987 in individual contributions, and just $389,552 in federal

transfers from Republican organizations; the RPNM spent over one-third of its

1998 revenues, $1,062,095, on “issue advocacy—television, radio and mail”). In

2000, the RNC raised $254 million, a majority of which was transferred down to

the state parties for various activities, including issue advertising. Josefiak Dep. at

76 [JDT Vol. 11]. Most of the transfers are used to pay for issue ads. See Vogel

Decl. ¶ 63; McGahn Decl. ¶ 55.

143. The DSCC and DCCC support Democratic state political party committees in
177

producing and disseminating electioneering communications, and the large

majority of their nonfederal transfers to state and local party committees have been

to support the nonfederal share of issue advocacy communications. These

communications frequently refer to Democratic Senate or House candidates or

their Republican opponents, even though “not expressly advocating any

candidate’s election or defeat.” Wolfson Decl. ¶¶ 63, 71 [DEV 9-Tab 44]; Jordan

Decl. ¶¶ 68, 77 [DEV 7-Tab 21]; CDP 02095-101, 2103-04, 2106 [IER Tab 12]

(wire transfer instructions from the DNC to the CDP for media buys); CDP 02984-

89 [IER Tab 12] (detailing transfer of funds from DCCC to CDP for media buy). 

144. When the national parties transfer money to state parties to fund so-called "issue

ads," they insist on control of the communications, participate in the creative

process, and work with the consultants to determine the content, timing, and

placement of the communications. Wolfson Decl. ¶¶ 65-67, 70 [DEV 9-Tab 44];

Jordan Decl. ¶¶ 71-73, 76 [DEV 7-Tab 21]; Vogel Decl. ¶ ¶ 63, 67-68 [DEV 9-Tab

41]; McGahn Decl. ¶ ¶ 55, 58-59 [DEV 8-Tab 30]; Castellanos Dep. Tr. (Sept. 27,

2002) at 111-12 (stating that when working on ads for state parties, National

Media dealt with an RNC representative, not a state party member); Marshall Decl.

¶ 4 (noting that the DNC normally approved the content of the ad and the amount

of money to be spent before calling the state party in question “to let it know that

an ad was coming”).
186 Mr. Kirsch is founder and Chief Executive Officer of Propel Software

Corporation. He has donated millions of dollars to the Democratic Party and to

“progressive candidates and groups.” Kirsch Decl. ¶¶ 2, 4 [DEV 7-Tab 23]. 

178

145. These so-called "issue ads" are intended to and do support the campaigns of

federal candidates. See La Raja Cross Exhibit 3 at 15, 101-04; Pennington Decl.

¶¶ 10, 13, 14 [DEV 8-Tab 31]; see also, e.g., CRP 0369, 371, 373 [IER Tab 12]

(transcripts of television advertisements paid for with nonfederal money

transferred from NRCC to CRP). 

146. Certainly, party communications that promote, support, attack, or oppose a clearly

identified candidate for federal office directly affect federal elections. See McCain

Decl. ¶¶ 15-18; Beckett Decl. ¶¶ 8-9 [DEV 6-Tab 3]; Chapin Decl. ¶¶ 8-10;

Lamson Decl. ¶ 9; Pennington Decl. ¶¶ 10, 13-14; 148 Cong. Rec. S2138 (daily ed.

Mar. 20, 2002) (statement of Sen. McCain).

147. Out of the estimated $25.6 million spent by political parties on ads in the 1998

election cycle, $24.6 million went to fund ads that referred to a federal candidate. 

See Krasno & Sorauf Expert Report at tbl. 1. Out of 44,485 ads, 42,599 referred to

a federal candidate. Id. Viewers perceived 94 percent of these ads as

electioneering in nature. Id. at tbl. 7. 

148. National party committees have directed donors to give nonfederal money to state

parties in order to assist the campaigns of federal candidates. Kirsch186 Decl. ¶¶ 6,
187 Mr. Hassenfeld has served as Chairman of the Board and Chief Executive

Officer of Hasbro, Inc. since 1989, a global company based in Rhode Island with annual

revenues in excess of $3 billion. Hasbro designs, manufactures, and markets toys, games,

interactive software, puzzles and infant products. He also sits on a number of civic and

philanthropic boards. He is a member of the Board of Trustees of the University of

Pennsylvania and Deerfield Academy, serves on the Dean’s Council of the Kennedy

School of Government at Harvard, and sits on the board of Refugees International. He

also run three charitable foundations: the Hasbro Charitable Trust, the Hasbro Children’s

Foundation, and a family foundation. Hassenfeld Decl. ¶¶ 2-3.

188 In 1980, during President Carter’s re-election campaign, Robert Hickmott

worked at the DNC as an Associate Finance Director. Hickmott Decl. ¶ 2 [DEV 6-Tab

19]. Following the general election, Hickmott became the Executive Director of a new

DNC entity, the Democratic Business Council (“DBC”), where he served until 1983. Id. 

During 1985-86, Hickmott served as National Finance Director for then-Congressman

Timothy Wirth’s Senate campaign, and from 1987 until early 1989, on Senator Wirth’s

Senate staff. Id. After that, Hickmott was in private practice as an attorney until January

1991, when he joined the DSCC as Deputy Executive Director. Id. In 1993, Hickmott

worked for four years as the Associate Administrator for Congressional Affairs at the

Unites States Environmental Protection Agency, then for two years as a counselor to

then-Secretary Andrew Cuomo at the United States Department of Housing and Urban

Development (“HUD”). Id. In 1999, Hickmott left HUD and joined The Smith-Free

Group (“Smith-Free”), a small governmental affairs firm located in Washington, D.C. Id.

¶ 3. Hickmott is currently a Senior Vice President at Smith-Free and one of the six

principals in the firm. Id. Hickmott is a regular contributor to presidential and

congressional candidates and the national party committees. He donates primarily to

Democratic candidates, but also to several Republicans. Id. In the 1999-2000 cycle, he

contributed just over $7,000 and in the 2001-2002 cycle, he has contributed a little more

than $10,000. Id. Hickmott provided a declaration in Federal Election Commission v.

Colorado Republican Federal Campaign Committee, 41 F. Supp. 2d 1197 (D. Colo.

1999), aff’d, 213 F.3d 1221 (10th Cir. 2000), rev’d, 533 U.S. 431 (2001) (“Colorado II”);

See Colorado II, 533 U.S. at 458.

189 Mr. Randlett is Chief Executive Officer of Dashboard Technology, a World

WideWeb technology consulting firm based in San Francisco, California. Prior to

founding Dashboard Technology, Mr. Randlett served on the management teams of two

179

9 [DEV 7-Tab 23]; Hassenfeld187 Decl. ¶¶ 9-10 [DEV 6-Tab 17]; Hickmott188

Decl. ¶ 8 [DEV 6-Tab 19]; Randlett189 Decl. ¶ 9 [DEV 8-Tab 32].
other software companies. He was the Democratic political director at the Technology

Network, also known as TechNet, a Palo Alto-based nonprofit corporation and political

service organization which he co-founded in 1996. Prior to starting TechNet, he spent

many years as a political fundraiser and general political consultant, working primarily in

the Silicon Valley area of Northern California, but also throughout California and to some

extent in major metropolitan areas in other parts of the nation. Randlett Decl. ¶ 2 [Dev 8-

Tab 32].

190 Alan Philp testified on behalf of the Colorado Republican Party. Philp Dep. at 9

[JDT Vol. 26].

180

149. Both federal officeholders and the national parties have directed contributors to the

state parties when the contributors have “maxed out” to the candidate or when it

appears that the state party can most effectively use additional money to help that

officeholder or other federal candidates. See Kirsch Decl. ¶¶ 8-9; Philp190 Dep. Tr.

at Exhibit 14 [IER Tab 1.F]; CRP 07164 [IER Tab 1.F]; La Raja Cross Exhibit 3 at

54 (“it is common practice for a candidate to encourage donors to give to the party

when they have ‘maxed’ their federal contributions to his or her committee”);

Josefiak Decl. ¶ 68; MMc0014 [DEV 117-Tab 2] (letter to a contributor stating

“Since you have contributed the legal maximum to the McConnell Senate

Committee, I wanted you to know that you can still contribute to the Victory 2000

program . . . . This program was an important part of President George W. Bush’s

impressive victory in Kentucky last year, and it will be critical to my race and

others next year” signed by Senator McConnell with the handwritten note: “This is

important to me. Hope you can help”); Buttenwieser Decl. ¶¶ 15-16 [DEV 6-Tab

11] (“Federal candidates have often asked me to donate to state parties, rather than
181

the joint committees, when they feel that’s where they need some extra help in

their campaigns. I’ve given significant amounts to the state parties in South Dakota

and North Dakota because all the Senators representing those states are good

friends, and I know that it's difficult to raise large sums in those states. The DSCC

has also requested that I provide assistance to state parties.”); Hassenfeld Decl. ¶ 9

[DEV 6-Tab 17] (“In 1992, when I told the Democratic Party that I wanted to

support then-Governor Bill Clinton's presidential campaign, they suggested that I

make a $20,000 hard money contribution to the DNC, which I did. The Democratic

Party then made clear to me that although there was a limit to how much hard

money I could contribute, I could still help with Clinton’s presidential campaign

by contributing to state Democratic committees. There appeared to be little

difference between contributing directly to a candidate and making a donation to

the party. Accordingly, at the request of the DNC, I also made donations on my

own behalf to state Democratic committees outside of my home state of Rhode

Island. . . . Through my contributions to the political parties, I was able to give

more money to further Clinton's candidacy than I was able to give directly to his

campaign.”); [IER Tab 9] (letter from Congressman Wayne Allard, paid for by the

Colorado Republican Party, informing contributor that he was “at the limit of what

you can directly contribute to my campaign” but at a future breakfast the

contributor would be told how he could “further help my campaign by assisting the
182

Colorado Republican Party”).

150. While state parties invest much of their nonfederal money transferred to them from

the national parties into federal races, La Raja Dep. at 139, they spend the majority

of the nonfederal money they raise on administrative overhead, voter registration,

voter mobilization, and other party building activities and not on "issue ads." See

La Raja Decl. ¶ 22.a; Bowler Decl. ¶ 15 (explaining that "[t]he majority of

[national transfers] were for issue advocacy, although money has been transferred

for voter registration, get-out-the-vote activities, and even administrative expenses. 

We are able to raise a substantial amount of money for our non-Federal activities

and do not rely on national party transfers for those purposes"); Bowler Decl. ¶ 12

(explaining that in the 1999-2000 cycle, the CDP raised $15,617,002 in nonfederal

funds, which it used to fund state and local activities); Bowler Rebuttal Decl. ¶ 3-4

(explaining that the CDP pays for much of its voter registration and get-out-thevote activities with money raised by the state party).

151. The amount of nonfederal money the CRP and CDP raises themselves is much

more than the nonfederal funds it receives from transfers from the national party. 

CDP/CRP 1171 (in 1999-2000, which was a presidential election year, only 19.1

percent of all CRP nonfederal money was from national party transfers); CDP/CRP

35, 37, 39 (in 2000 only 36 percent of all CDP nonfederal money was from

national party transfers).
183

CDP and CRP Cooperation with the National Parties

152. The CDP and the CRP cooperate and work closely with their national counterparts

to support their candidates and platforms at all levels of the ticket.

153. Ms. Bowler testifies that the CDP works closely with the DNC in planning and

implementing Coordinated Campaigns, the purpose of which is to allocate

resources and coordinate plans for the benefit of Democratic candidates up and

down the entire ticket. Party officials, candidates at all levels of the ticket, and

their agents participate in Coordinated Campaigns and collectively make decisions

regarding the solicitation, receipt, directing, and spending of the CDP's funds, both

federal and nonfederal. Bowler Decl. ¶¶ 5, 29. According to Bowler, the CDP is

“integrally related to the [DNC].” Id. ¶ 5.

154. The CRP works closely with the RNC in planning and implementing a Victory

Plan, the purpose of which is to allocate resources and coordinate plans for the

benefit of Republican candidates up and down the entire ticket. The Victory Plan

is implemented in the general election cycle with the full involvement of RNC

staff, CRP staff, state legislative leadership, and representatives from the top of the

ticket campaigns. See Erwin Aff. ¶ 4.
184

Reduction in CDP and CRP Fundraising and Voter Mobilization Efforts

155. The CDP has always raised more nonfederal money than federal money. 

156. The CDP has raised a relatively constant amount of federal money. It raised

$4,316,528 in federal funds in the 1996 election cycle; $4,076,870 in federal

money in the 1998 cycle; $4,837,967 federal money in the 2000 cycle; and

$3,455,887 in federal money during the 2002 election cycle as of June 30, 2002. 

The funds were raised directly by the CDP; the figures do not include any transfers

from other party committees or from candidates. See Bowler Decl. ¶ 10, Exhibit

A.

157. Ms. Bowler believes that even with increased efforts, it may be difficult for the

CDP to raise substantially more federal money than it has in the past. Id. ¶ 10.

158. The CDP has tried many methods of raising more federal funds, with little success. 

Through the telemarketing program, which Bowler states has been its most

successful method of raising federal funds, the CDP has raised between $800,000

and $2 million with an average contribution of $27. The telemarketing program,

however, is very expensive to run; it costs approximately $0.40 to $0.50 for every

dollar raised. Id. ¶ 35.

159. Since 1995 the number of contributions made to the CDP at the $5,000 level—the 

FECA federal maximum—was very small, usually accounting for less than five

percent of the CDP's total in federal contributions. The total amount the CDP has
185

received from maximum federal contributions has ranged from $170,000 (in the

2000 election cycle) to $355,000 (in the 1996 cycle). Because the number of

contributions at the $5,000 level make up a small percentage of CDP’s federal

money fundraising, Bowler does not believe BCRA's doubling the limit from

$5,000 to $10,000 will result in a substantial increase in federal funds contributed

to the CDP. See id. ¶ 35.

160. Prior to BCRA's effective date the CDP raised a relatively constant amount of

nonfederal money. It raised $12,991,251 in nonfederal funds in the 1996 election

cycle; $15,957,831 in nonfederal money in the 1998 cycle; $15,617,002 in

nonfederal money in the 2000 cycle; and $13,928,496 in nonfederal money during

the 2002 election cycle up to June 30, 2002. The funds were raised directly by the

CDP; the figures do not include any transfers from other party committees or from

candidates. See Id. ¶ 12, Exhibit A.

161. Approximately 76 percent to 86 percent of the nonfederal donations the CDP has

received have been from donations exceeding $10,000. See id. ¶ 19, Exhibit A;

Torres Decl. ¶ 7.

162. The CRP has employed a wide variety of fundraising techniques to raise more

federal money. See Erwin Aff. ¶ 12.a.

163. The CRP raises federal funds through direct mail. Erwin states that to maintain a

current and effective direct mail fundraising donor list, the CRP must continually
186

spend funds prospecting for new donors and that such prospecting is expensive

and often loses money. Federal returns on direct mailings range, on average, from

$20 to $40 per contributor and that CRP direct mail returns reached a high in 1986

of over $2 million and have declined to under $1 million since 1997. Id.; CDP

App. at 1189 (charting CRP's major funding sources by year since 1985).

164. The CRP also uses telemarketing to raise federal funds. Federal returns on the

CRP's telemarketing range, on average, from $20 to $40 per contributor. Erwin

testifies that like direct mail prospecting, telemarketing prospecting is “expensive

and often unproductive.” See Erwin Aff. ¶ 12.b; CDP App. at 1189. The CRP

also relies on “Major Donor Programs” and “Event Fundraising” for its federal

money fundraising. Erwin Aff. ¶ 12.c-d.

165. During the 2000 election cycle, the CRP raised $5,397,400 in nonfederal funds

from the 166 donors who gave $10,000 or more. Erwin Aff. ¶ 13(B); Erwin Aff.

Chart 5. Those donations totaled $5,397,400. The aggregated amount above

$10,000 from those donations accounted for $3,737,400 ($5,397,400 minus

$1,660,000 (166 donors multiplied by $10,000)). Erwin Aff. Chart 5, Chart 6A. 

Thus, if the CRP had been limited in funding certain electoral activities with

donations raised within the $10,000 limit specified in the Levin Amendment,

$3,737,400 of the $5,397,400 raised from donations above $10,000 would have

been unavailable for those purposes. Erwin Chart Aff. Chart 6B. This also means
187

that the CRP would have had 10.5 percent less total revenue to use for LevinAmendment activities (i.e., $3,737,400 of $35,649,993, the total revenue for the

2000 election cycle, could not have been used for those activities). Erwin Aff.

Chart 1.

166. Erwin testifies that BCRA's ban on national party transfers will reduce the CRP's

available budget by approximately 40 percent in presidential election cycles and 20

percent in nonpresidential election cycles. Erwin Aff. ¶ 15.a.

167. On average, Erwin attests that between 1993 and 2000 BCRA would have reduced

the CRP's overall spending from $30 million to $18 million during presidential

election cycles and from $17.5 million to $14 million during nonpresidential

election cycles. Id.

168. Party officials believe that under BCRA the CDP will have to reduce their

communications with voters. Not only will administrative costs have to be

reduced, accounting costs will likely increase because of BCRA's additional

reporting requirements. Moreover, fundraising costs will increase because only

federal money can be used to raise federal or Levin funds. Thus, even maintaining

current fundraising efforts will come at a direct cost to the parties' programmatic

and candidate-support activities. Because candidate support and get-out-the-vote

activities are likely to remain the parties' first priorities, voter registration, generic

party-building and grassroots activities will likely be reduced or even eliminated. 
191 Mr. Daniel Murray served as a government relations specialist for Sprint, GTE,

and BellSouth Corporations from 1982 until 1995. As Executive Director of those

companies, he assisted them and their PACs in selecting candidates and political groups

for financial support in both federal and nonfederal funds. During this period he also

served on the Democratic Business Council of the DNC, the Advisory Council of the

Democratic Leadership Council, the 1998 and 1992 DNC Convention Site Selection

188

Bowler Decl. ¶ 23; Torres Decl. ¶ 9.

Federal Officeholder Solicitation of Nonfederal Money

169. It is a common practice for Members of Congress to be involved in raising both

federal and nonfederal dollars for the national party committees, sometimes at the

parties’ request. McCain Decl. ¶¶ 2, 21 [DEV 8-Tab 29] (“Soft money is often

raised directly by federal candidates and officeholders, and the largest amounts are

often raised by the President, Vice President and Congressional party leaders.”);

Feingold Dep. at 91–93 [JDT Vol. 6]; Shays Decl. ¶ 18 [DEV 8-Tab 35] (“Soft

money is raised directly by federal candidates, officeholders, and national political

party leaders. National party officials often raise these funds by promising donors

access to elected officials. The national parties and national congressional

campaign committees also request that Members of Congress make the calls to soft

money donors to solicit more funds.”); see also Rudman Decl. ¶ 12 [DEV 8-Tab

34]; Bumpers Decl. ¶¶ 7-8 [DEV 6-Tab 10]; Simon Decl. ¶ 7 [DEV 9-Tab 37];

Wolfson Decl. ¶¶ 34–35 [DEV 9-Tab 44]; Randlett Decl. ¶¶ 6-9 [DEV 8-Tab 32];

Murray191 Dep. in Mariani at 41-42 [DEV 79-Tab 58]; Rozen192 Decl. Exhibit A ¶
Committees, the DSCC Leadership Circle, the DCCC Annual Dinner Committee, the

RSCC Annual Dinner Committee, and steering committees for many House and Senate

campaigns. Since 1995, he has acted as a government relations consultant for business

and other clients. Murray Aff. in Mariani ¶¶ 3-5 [DEV 79-Tab 59].

192 Mr. Robert Rozen worked as a lobbyist for various interests at the law firm

Wunder, Diefenderfer, Cannon & Thelen from 1995 until 1997. For the last six years, he

has been a partner in a lobbying firm called Washington Counsel; now Washington

Council Ernst & Young. Mr. Rozen represents a variety of corporate, trade association,

non-profit, and individual clients before both Congress and the Executive Branch. His

work includes preparing strategic plans, writing lobbying papers, explaining difficult and

complex issues to legislative staff, and drafting proposed legislation. He also organizes

fundraisers for federal candidates and from time-to-time advises clients on their political

contributions. Rozen Decl. ¶ 4 [DEV 8-Tab 33].

189

7 [DEV 8-Tab 33]; Simpson Decl. ¶ 4 [DEV 9-Tab 38]; Jordan Decl. ¶¶ 32–33

[DEV 7-Tab 21].

170. Federal officeholders and candidates solicit large nonfederal donations for their

parties. ODP0031-00440 (letter from donor to RNC, stating that "I am happy to

deliver a check for one hundred thousand dollars to you that fulfills the

commitment I made to my good friend Bob Dole in a letter I sent him);

ODP0031-00821 (letter from contributor to RNC with contribution, stating

“Congressman Scott McInnis deserve [sic] most of the recruitment credit”),

ODP0037-00882 (a solicitation letter from Senator McConnell to potential donor

at Microsoft Corporation, expressing the hope that this person would “take a

leadership role with [McConnell] at the NRSC in support of the Committee’s issue

advocacy campaign. The resources we raise now will allow us to communicate

our strategy through Labor Day. . . . Your immediate commitment to this project
190

would mean a great deal to the entire Republican Senate and to me personally”);

ODP0037-01171-72 [DEV 71-Tab 48] (correspondence referencing solicitations

by federal officeholders and candidates); Shays Decl. in RNC ¶ 12 [DEV 68-Tab

40]. In general, the personal involvement of high-ranking leaders of Congress is a

significant component of raising federal and nonfederal money from major donors.

See Bumpers Decl. ¶¶ 8-9 [DEV 6-Tab 10]; Meehan Decl. ¶ 6 [DEV 68-Tab 30];

Simon Decl. ¶ 7 [DEV 9-Tab 37]; Rozen Decl. ¶ 15 [DEV 8-Tab 33]; Kolb Decl.

II, Exhibit A ¶ 8 [DEV 7-Tab 25].

171. However, the Finance Director of the RNC stated that it is "exceedingly rare" for

the RNC to rely on federal officeholders for personal or telephonic solicitations of

major donors. See B. Shea Decl. ¶ 17. She states that by RNC policy and practice,

the RNC Chairman, Co-Chairwoman, Deputy Chairman, fundraising staff or

members of major donor groups—not federal officeholders—undertake initial

contact and solicitation of major donors of both federal and nonfederal funds. Id.

172. Republican incumbents and candidates solicit donations of federal and nonfederal

money for both the NRSC and the NRCC. Vogel Decl. ¶¶ 25-28, 32 [DEV 9-Tab

41]; McGahn Decl. ¶¶ 27-30, 33-37 [DEV 8-Tab 30]; ODP0018-00137 (Victory

'96 Brochure outlining the RNC’s donor programs and describing the uses of

Victory '96 proceeds and Presidential candidate Dole’s assistance raising these

funds); ODP0018-00139-41, ODP0018-00151-52 [DEV 69-Tab 48] (Victory '96
191

solicitation letters signed by Senator Dole).

173. “National party committees often feel they need to raise a certain amount of soft

money for a given election cycle. To reach that overall goal, they may divide up

potential donors by geography, affiliated organization, or issue interests. The party

committees decide which Members of Congress should contact these potential

donors, and these Members then put in a certain amount of call time at the national

committee soliciting the money. A Member and a potential donor may be matched

because the Member is on a legislative committee in which the donor has a

particular interest, whether economic or ideological.” Randlett Decl. ¶ 6 [DEV

8-Tab 32]; see Rozen Decl. ¶ 15 [DEV 8-Tab 33]; Krasno and Sorauf Report at

12-13 [DEV 1-Tab 2].

174. The House and Senate congressional campaign committees and their leadership

ask Members of Congress to raise funds in specified amounts or to devote

specified periods of time to fundraising. Jordan Decl. ¶ 33 [DEV 7-Tab 21];

Vogel Decl. ¶¶ 32-33 [DEV 9-Tab 41]; McGahn Decl. ¶¶ 34-35 [DEV 8-Tab 30];

Wolfson Decl. ¶ 35 [DEV 9-44] (stating that the DSCC, NRSC, NRCC, and

DCCC ask members of Congress to raise money for the committees). 

175. The DSCC maintains a “credit” program that credits nonfederal money raised by a

Senator or candidate to that Senator or candidate’s state party. Jordan Decl. ¶¶

36-39 [DEV 7-Tab 21]. Amounts credited to a state party can reflect that the
192

Senator or candidate solicited the donation, or can serve as a donor’s sign of tacit

support for the state party or the Senate candidate. Jordan Decl. ¶¶ 37-40, Tabs F,

G [DEV 7-Tab 21].

176. Both the NRCC and NRSC are aware of which Members have raised funds for

their committees, and may advise Members of amounts they have raised. McGahn

Decl. ¶¶ 34-35 [DEV 8-Tab 30]; Vogel Decl. ¶¶ 33, 36 [DEV 9-Tab 41]. Similarly,

although the DCCC uses “no formal credit or tally program,” it “advises

Democratic House Members of the amounts they have raised for the DCCC,

ascribing particular contributions to the fundraising efforts of the Member in

question.” Wolfson Decl. ¶ 36 [DEV 9-Tab 44]; Thompson Dep. at 28-29 [JDT

Vol. 32].

177. Federal candidates of both parties raise nonfederal money through joint

fundraising committees formed with national committees. See Buttenwieser Decl.

¶¶ 8-14 [DEV 6-Tab 11].

178. One common method of joint fundraising is for a national committee to form a

separate joint fundraising committee with a federal candidate committee. A joint

fundraising committee collects and deposits contributions, pays related expenses,

allocates proceeds and expenses to the participants, keeps required records, and

discloses overall joint fundraising activity to the FEC. Wolfson Decl. ¶ 40 [DEV

9-Tab 44]; Vogel Decl. ¶¶ 39-45 [DEV 9-Tab 41]; Jordan Decl. ¶¶ 41, 50 [DEV
193

7-Tab 21]; Oliver Dep. at 258 [DEV Supp.-Tab 1]. Similarly, the most common

method of NRSC joint fundraising activity is for the NRSC to form a separate joint

fundraising committee under FEC regulations with a Republican Senate candidate.

Vogel Decl. ¶¶ 39-45.

179. Parties often ask officeholders to solicit soft money from individuals who have

maxed out to the officeholder's campaign. Simpson Decl. ¶ 6 [DEV 9-Tab 38].

See Bumpers Decl. ¶¶ 9-11 [DEV 6-Tab 10]; Meehan Decl. in RNC ¶ 6 [DEV

68-Tab 30]; Billings Decl. Exhibit A ¶ 12 [DEV 6-Tab 5]; Jordan Decl. ¶ 27 [DEV

7-Tab 21]; Oliver Dep. at 188 [DEV Supp.-Tab 1] (pertaining to 2000

Bush/Cheney legal defense fund); Sorauf/Krasno Report in Colorado Republican,

at 13-14 [DEV 68-Tab 44]; ODP0018-00620-21 [DEV 69-Tab 48] (federal

candidate noting that he “recently sent a letter to [his] maxed out donors

suggesting contributions to the NRCC”). The parties prefer that donors first “max

out” on federal money gifts before contributing nonfederal money. Kirsch Decl. ¶

8 [DEV 7-Tab 23]. As one candidate stated, “[Y]ou are at the limit of what you

can directly contribute to my campaign,” but “you can further help my campaign

by assisting the Colorado Republican Party.” FEC v. Colorado Republican Fed.

Campaign Comm., 533 U.S. 431, 458 (2001) (quoting an August 27, 1996

fundraising letter from then-Congressman Allard).
194

Political Parties and Nonprofit Groups

180. Political parties and federal candidates work with nonprofit groups on campaign

activities. Moreover, they have raised nonfederal money for, directed nonfederal

money to and transferred nonfederal money to nonprofits for use in federal

elections.

181. The national party committees direct donors to donate nonfederal money to certain

interest groups for broadcast issue advertisements and other activities to influence

federal elections. For example, Steve Kirsch testified that the national Democratic

Party played an important role in his decisions to donate soft money to “certain

interest groups that were running effective ads in the effort to elect Vice-President

Gore, such as NARAL. The assumption was that the funds would be used for

television ads or some other activity that would make a difference in the

Presidential election.” Kirsch Decl. ¶ 10 [DEV 7-Tab 23]; see also 144 Cong. Rec.

S1048 (1998) (Sen. Glenn).

182. Parties raise funds for, or donate nonfederal money to, tax-exempt organizations,

which in turn use funds to influence federal elections. Kirsch Decl. ¶ 10 [DEV

7-Tab 23]; Marshall Decl. ¶ 9 [DEV 8-Tab 28].

183. The RNC, NRSC, and NRCC have all made nonfederal donations to the National

Right to Life Committee, an independent group that assists Republican candidates

through “issue advocacy” activities. Resps. Nat’l Rt. Life Pls. To Defs.’ First
195

Interrogs., No. 3 [DEV 10-Tab 5]; RNC0065691A, RNC0065691 [DEV 134-Tab

8, DEV Supp.-Tab 3, DEV 101]. After the NRSC’s 1994 donation, then-NRSC

Chairman Senator Phil Gramm told The Washington Post that the party made this

donation because it knew the funds would be used on behalf of several specific

Republican candidates for the Senate, saying he had “made a decision...to provide

some money to help activate pro-life voters in some key states where they would

be pivotal to the election.” Id. at 5975; see also RNC 0373365 [IER Tab 31]

(letter from the Republican National State Elections Committee to the American

Defense Institute notifying the group of a $300,000 donation from the RNSEC’s

“non-federal component” to assist the groups “efforts to educate and inform

Americans living overseas of their civic responsibilities”); RNC 0373370,

0373376, 0373381 (three letters to Americans for Tax Reform all dated in October

1996 providing the group $1,000,000, $2,000,000, $600,000 donations in

recognition of the group’s “efforts to educate and inform the American public).

184. The National Right to Work Committee “pays for its advertising from its treasury,

[and] admits that certain Members or Executive Branch Officials have generally

encouraged financial support for the Right to Work cause and, specifically, for the

support of NRTWC in advocating for these issues, through lobbying as well as

issue advertising.” Resp. Nat’l Rt. Work Comm. to Defs. First RFAs, No. 17 [DEV

12-Tab 2]; see also NRW-2812 [DEV 129-Tab 2] (letter from Congressman Pete
196

Sessions asking the recipient to meet with National Right to Work Committee

personnel regarding the Committee’s effort to “stop Big Labor from seizing

control of Congress in November”).

185. Congressman Ric Keller signed a Club for Growth fundraising letter dated July 20,

2001 which credited the Club for his own 2000 electoral success and assured

potential donors that their money would be used to “help Republicans keep control

of Congress.” CFG00208-10 [DEV 130-Tab 5]; see Pennington Decl. ¶¶ 15, 19

[DEV 8-Tab 31].

186. The 2000 Democratic coordinated campaign in Florida’s Eighth Congressional

District was funded primarily by EMILY's List through its Florida Women's Vote

project, though the DCCC and Congressional candidate Linda Chapin also raised

funds for it. Florida Women's Vote gave money to the State Party, which then set

up the coordinated campaign and hired the staff. EMILY's List also sent some staff

to assist in the coordinated campaign, which they also did in their other targeted

races throughout the country. Beckett Decl. ¶ 6 [DEV 6-Tab 3]; Chapin Decl. ¶ 6

[DEV 6-Tab 12].

187. Defendants’ expert Green testifies that “[n]ational parties . . . transferred large

sums of money to tax-exempt organizations because, unlike state parties, these

tax-exempt organizations are not bound by allocation formulas that specify how

much hard money must be spent in conjunction with soft money expenditures.” 
197

Green Expert Report at 17-18 n.17 [DEV 1-Tab 3].

188. Most committees that are organized to support or oppose ballot measures in

California are organized as 501(c)(4) committees. Bowler states that virtually all

of the ballot measure committees in California engage in activity that can be

characterized as get-out-the-vote activity under BCRA. Bowler Decl. ¶ 30.

189. Most Members of Congress either in a formal leadership position, or aspiring

thereto, have his or her own 527 group. Public Citizen Congress Watch,

Congressional Leaders’ Soft Money Accounts Show Need for Campaign Finance

Reform Bills, Feb. 26, 2002, at 6 [DEV 29-Tab 3]. “For congressional leaders, 527

groups appear to collect about as much money as their campaign committees and

often as much as their leadership PACs.” Id. at 9.

190. Most of the 527s active in federal politics exist to either promote certain politicians

(which Public Citizen calls "politician 527s") or promote certain ideas, interests

and partisan orientations in election campaigns. "Politician 527s generally serve as

soft money arms of 'leadership PACs,' which incumbents use to aid other

candidates and otherwise further their own careers. Like the campaign committees

of members of Congress, leadership PACs can receive only 'hard money'

contributions, which are limited in amounts and may not come directly from

corporations or unions. Politician 527s use their soft money mainly to sponsor

events that promote their own careers, help create a 'farm team' of successful state
198

and local candidates, and spur partisan 'get-out-the-vote (GOTV)' efforts." Id. at 6.

191. Many donors to Member 527 organizations donate with the intent of influencing

federal elections. For example, Peter Buttenwieser testified that in early 2002 he

donated $50,000 to a 527 organization, Daschle Democrats, which ran broadcast

ads in South Dakota supporting Senator Tom Daschle in response to the attacks

that had been made against him. Mr. Buttenwieser stated: “I was willing to do this

because I felt that the attacks were hurting Senator Daschle and Senator Tim

Johnson’s re-election campaign as well.” Buttenwieser Decl. ¶ 20 [DEV 6-Tab

11].

192. Twenty-seven industries (including individuals, such as executives, associated

with the industries) contributed $100,000 or more in just a single year to the top 25

politician 527 groups. These industries accounted for 52 percent of all

contributions to the top 25 politician 527s. The top 10 industries contributing were:

computers/Internet, securities & investments, lawyers/law firms, telephone

utilities, real estate, TV/movies/music, air transport, tobacco, oil & gas, and

building materials and equipment. Top corporate contributors included AT&T,

SBC Communications, Philip Morris, Mortgage Insurance Companies of America,

Clifford Law Offices, U.S. Tobacco and American Airlines. Overall, only 15

percent of total contributions to the top 25 politician 527’s came in amounts of less

than $5,000. Democratic party committees and unions also contributed over
199

$100,000 to the top politician 527s. In fact, Democratic party committees (mainly

the DNC) were the single largest contributor to politician 527s. Almost all of this

money (81 percent) went to the Congressional Black Caucus 527. Public Citizen

Congress Watch, Congressional Leaders’ Soft Money Accounts Show Need for

Campaign Finance Reform Bills, Feb. 26, 2002, at 10–11 [DEV 29-Tab 3].

193. Section 527 organizations include political clubs. The CDP has contributed to

Democratic clubs engaged solely in state-focused grassroots, voter registration,

and get-out-the-vote activities. See id. ¶ 31. Likewise, most of the organizations

participating in the CRP's Operation Bounty Program are Section 527

organizations. Erwin Aff. ¶ 9. 

194. Interest groups are funded by persons and entities—whether corporations, unions,

trade associations, advocacy groups, or the like—that (1) are intensely concerned

about a particular issue or set of issues; (2) participate in the political process; and

(3) associate with others of like mind.

195. “Most interest groups, in contrast [to political parties], seek to build relationships

with officeholders as a way of improving access to the legislative process and

lobbying their position. In political science, there is strong empirical support for

the theory that interest groups allocate resources primarily to pursue the “access”

strategy, meaning they give to candidates who are most likely to win office, which

is usually the incumbents (see, for example, Herrnson 2000). Political parties,
193 Frances Beinecke is the Executive Director of the NRDC. Beinecke Decl. ¶ 1.

194 Deborah Sease is the Legislative Director of the Sierra Club. Sease Decl. ¶ 1.

200

however, allocate resources for electoral strategies, meaning they contribute

money to a party candidate who is in a potentially close election.” La Raja Expert

Report ¶ 14.

196. Interest groups are subject to less regulation than political parties. Unlike political

parties, for example, special interest groups have rarely been required to make

public disclosure of their receipts, donors, disbursements, and activities. See

Beinecke193 Decl. ¶¶ 3, 9 (prior to BCRA, National Resources Defense Council did

not have to file disclosure forms with FEC or disclose to the public amounts

donated by foundations); Gallagher Decl. ¶ 15 (prior to BCRA National Abortion

and Reproductive Rights Action League ("NARAL") was not required to track

whether it received donations from persons outside United States); Sease194 Decl. ¶

11 (Prior to BCRA, Sierra Club was not generally required to report identity of

individual donors to any government entity); see also Keller Expert Report ¶ 42

(stating that the political activities of interest groups "are far less transparent than

those of parties").

Interest Groups Compared to Political Parties

197. Interest groups engage in voter registration, voter identification, get-out-the-vote
201

activities, and lobbying of officeholders, Dendahl Decl. ¶ 11, and witnesses predict

that under BCRA such activities by interest groups will expand, see Bennett Decl.

¶ 11; Benson Decl. ¶ 12; Cross Exam. of Green at 158-59.

198. Interest groups have increased their grassroots, direct mail, telephone bank, and

door-to-door mobilization efforts and they increasingly distribute absentee ballots

and provide supporters with transportation to the polls. See Peschong Decl. ¶¶ 13-

14; Cross Exam. of Green at 21-22.

199. During the closing weeks of the 2000 campaign the NAACP National Voter Fund

registered over 200,000 people, put 80 staff in the field, contacted 40,000 people in

each target city, promoted a get-out-the-vote hotline, ran three newspaper print ads

on issues, made several separate direct mailings, operated telephone banks, and

provided grants to affiliated organizations. See Cross Exam. of Green at 15-20,

Exhibit 3; Cross Exam. of McCain at 70-72. The NAACP reports that the program

turned out a million additional black voters and increased turnout (over 1996

numbers) among targeted groups by 22 percent in New York, 50 percent in Florida

and 140 percent in Missouri. See Cross Exam. of Green Exhibit 3. The NAACP's

effort, which cost approximately $10 million, was funded in large part by a single

$7 million donation by an anonymous individual. See id. at 20, Exhibit 3; Cross

Exam. of McCain at 73-74.

200. NARAL’s Executive Vice President, in 2000 NARAL spent $7.5 million and
202

mobilized 2.1 million pro-choice voters. The group also made 3.4 million phone

calls and mailed 4.6 million pieces of election mail. See Gallagher Decl. ¶ 24.

The Record Contains No Evidence of Quid Pro Quo Corruption

201. The record does not include any evidence that nonfederal donations to political

parties have resulted in "actual" quid pro quo corruption, such as vote buying. 

202. There is no evidence presented in the record that any Member of Congress has

ever changed his or her vote on any legislation in exchange for a donation of

nonfederal funds to his or her political party. See Resp. of FEC to RNC's First and

Second Reqs. for Admis. at 2-3 (conceding lack of evidence); McCain Dep. at

171-74 (unable to identify any federal officeholder in quid pro quo corruption);

Snowe Dep. at 15-16 (same); Jeffords Dep. at 106-07 (same); Meehan Dep. at 181-

83 (same); Shays Dep. at 171 (same); see also 148 Cong. Rec. S2099 (daily ed.

March 20, 2002) (statement of Sen. Dodd) ("I have never known of a particular

Senator whom [sic] I thought cast a ballot because of a contribution."); 147 Cong.

Rec. S2936 (daily ed. March 27, 2001) (statement of Senator Wellstone) ("I don't

know of any individual wrongdoing by any Senator of either party."). 

203. Testimony from other former Members of Congress describe, at best, their

personal conjecture regarding the impact of soft money donations on the voting

practices of their present and former colleagues. See Simpson Decl. ¶ 10 (“Too
203

often, Members’ first thought is not what is right or what they believe, but how it

will affect fundraising. Who, after all, can seriously contend that a $100,000

donation does not alter the way one thinks about--and quite possibly votes on--an

issue? . . . When you don’t pay the piper that finances your campaigns, you will

never get any more money from that piper. Since money is the mother’s milk of

politics, you never want to be in that situation.”). Senator Simon testifies that 

It is not unusual for large contributors to seek legislative favors in

exchange for their contributions. A good example of that which

stands out in my mind because it was so stark and recent occurred on

the next to last day of the 1995-96 legislative session. Federal

Express wanted to amend a bill being considered by a Conference

Committee, to shift coverage of their truck drivers from the National

Labor Relations Act to the Railway Act, which includes airlines,

pilots and railroads. This was clearly of benefit to Federal Express,

which according to published reports had contributed $1.4 million in

the last 2-year cycle to incumbent Members of Congress and almost

$1 million in soft money to the political parties. I opposed this in the

Democratic Caucus, arguing that even if it was good legislation, it

should not be approved without holding a hearing, we should not

cave in to special interests. One of my senior colleagues got up and

said, ‘I’m tired of Paul always talking about special interests; we’ve

got to pay attention to who is buttering our bread.’ I will never forget

that. This was a clear example of donors getting their way, not on the

merits of the legislation, but just because they had been big

contributors. I do not think there is any question that this is the

reason it passed.

Simon Decl. ¶¶ 13-14 [DEV 9-Tab 37]; see also Colorado II, 533 U.S. 431, 451

n.12 (2001); Feingold Dep. at 62 [JDT Vol. 6] (testifying that in the fall of 1996 a

senior Senator suggested to Senator Feingold that he support the Federal Express

amendment because “they just gave us $100,000”).
204

204. To the extent that there is any statistical evidence in the record which would

support the conclusion that nonfederal donations to political parties or their

committees has resulted in actual quid pro quo corruption of federal candidates or

officeholders, it has been so seriously called into question that it is of no probative

value.

205. Defense expert Green testified that there are no statistically valid studies showing a

correlation between political donations (either federal or nonfederal) and

legislative voting behavior. See Cross Exam. of Green at 58-61. Indeed, Green

acknowledged that "[s]ome studies have even found a negative correlation." Id. at

54-55; see also Cross Exam. of Sorauf at 132 ("political scientists lack the means

to observe . . . such things"; Cross Exam. of Bok at 18-21, 35-36 (some existing

studies erroneously assume "that because money goes to people who vote a

particular way, the money must have caused the vote"). Moreover, Green opines

in his expert report that "the literature on the relationship between roll call votes

and money is murky because the problem is an extremely difficult one to solve,

statistically." Cross Exam. of Green at 67-68. Green further explained in his

expert report that the "[c]orrelations between contributions and legislative behavior

cannot disentangle whether contributions reward fealty, create it, or merely affect

ideological affinity between legislators and their financial backers." Green Expert

Report at 24. But Green does note that corruption, whether quid pro quo or
205

otherwise, "redound[s] to the personal benefit of the candidate seeking to win

election." Id. at 20.

206. To the extent that there is any statistical evidence presented in support of the

conclusion that nonfederal donations influence other legislative actions such as

committee voting, offering amendments, or filibustering, it is so undermined by

challenges to its validity that it has no probative value. See Cross Exam. of Green

at 55, 68-72, 95 (noting that one study that attempts to find such evidence fails to

take lobbying and other activities into account); Cross Exam. of Primo at 136-38,

142-43 (existing study's findings are mathematically unsupported); Snyder

Rebuttal Report at 7-9 (existing study critically flawed). Defendants’ expert Mann

acknowledges that “[t]here is little statistical evidence that campaign contributions

to members of Congress directly affect their roll call decisions: Party, ideology,

constituency, mass public opinion and the president correlate much more with

voting behavior in Congress than do PAC contributions.” Mann Expert Report at

32 [DEV 1-Tab 1]; Milkis Expert Report ¶ 41 (political parties reduce the risk of

quid pro quo corruption by providing a "protective layer of decision makers

between candidates and donors"). However, he notes that “[w]hen these variables

are less significant, there is evidence that interest group contributions, particularly

to junior members of Congress, have influenced roll call votes – for example, on

financial services regulation.” Id. at 32-33 (citing Thomas Stratmann, Can Special
206

Interests Buy Congressional Votes? Evidence from Financial Services Legislation.

Paper (prepared for delivery at the 2002 Annual Meeting of the American Political

Science Association, Boston, 29 August - 1 September), available at

http://apsaproceedings.cup.org/Site/papers/022/022023 StratmannT.pdf. 2002. 

While Some Federal Candidates Are Aware of the Identities of Party Contributors,

Others Are Not

207. Some federal candidates and officeholders are unaware of who donates money to

either their campaigns, the parties, or both. See e.g., Feingold Dep. at 115-16 ("Q:

How generally are . . . Senators made aware of, if at all, the amounts and identities

of soft money donors to the national committees? A: I don't know exactly how

that's done or how much it's done."); Snowe Dep. at 223-24 (unaware of

nonfederal donors to the RNC); Jeffords Dep. at 94-97 (generally unaware of

nonfederal donors to RNC and DNC); Meehan Dep. at 179 (aware of few

nonfederal donors to national party committees, and only because "from time to

time I read who they are in the newspaper"); see also, e.g., Rudman Dep. at 76

(unaware); Wirth Dep. at 66-67 (unaware); Hickmott Dep. at 66-68 (noting that as

Deputy Chief of Staff to former Senator Wirth he was unaware who donated

nonfederal funds to national party committees). 

208. Others, however, not only acknowledged their own awareness but their belief that

other federal officeholders and candidates are typically aware of who donates to
207

their campaigns and to their parties. Indeed, one Member of Congress suggested

that he did not know the identity of contributors to his party because he made a

conscious effort to remain unaware. Bumpers Decl. ¶¶ 18, 20 (explaining that

officeholders of both parties are aware of contributors' identities, and that he had

"heard that some Members even keep lists of big donors in their offices" and that

"you cannot be a good Democratic or a good Republican Member and not be

aware of who gave money to the party. If someone in Arkansas gave $50,000 to

the DNC, for example, I would certainly know that"); Senator Rudman Decl. ¶ 6,

Rudman Dep. at 75-78 (explaining that while he did not know the identity of

contributors who donated "either hard or soft money" to the RNC, that the RNC

"probably" provided him with that information and that "if they came to the office,

the [administrative assistant] took them and probably read them." Rudman also

explains that sitting Members of Congress are the ones raising nonfederal and

federal party donations, and that the party committees decide which donors should

contact which members); Congressman Shays, 148 Cong Rec. H352 (2002)

(recognizing that "it's the candidates themselves and their surrogates who solicit

soft money. The candidates know who makes these huge contributions and what

these donors expect"); Randlett Decl. ¶ 10 ("Information about what soft money

donors have given travels among the Members in different ways. Obviously the

Member who solicited the money knows. Members also know who is involved
208

with the various major donor events which they attend, such as retreats, meetings

and conference calls. And there is communication among Members about who has

made soft money donations and at what level they have given, and this is widely

known and understood by the Members and their staff.”); Wirth Decl. Exhibit A ¶

17 (“[C]andidates were generally aware of the sources of the funds that enabled

the party committee to support their campaigns.”); Senator Simpson Decl. ¶ 5

(explaining that "[p]arty leaders would inform Members at caucus meetings who

the big donors were. If the leaders tell you that a certain person or group has

donated a large sum to the party and will be at an event Saturday night, you'll be

sure to attend and get to know the person behind the donation . . . . Even if some

members did not attend these events, they all still knew which donors gave the

large donations, as the party publicizes who gives what."); Senator Boren Decl. ¶ 6

(testifying that "[e]ach Senator knows who the biggest donors to the party are"

because "[d]onors often prefer to hand their [nonfederal money contribution]

checks to the Senator personally, or their lobbyist informs the Senator that a large

donation was just made."); McCain Decl. ¶ 6 ("Legislators of both parties often

know who the large soft money contributors to their party are, particularly those

legislators who have solicited soft money,” and “[d]onors or their lobbyists often

inform a particular Senator that they have made a large donation.”); Vogel Decl. ¶¶

25-28 (explaining that the parties distribute lists of potential donors to incumbents
195 Mr. Wright Andrews is an attorney and lobbyist at the Washington, D.C. firm of

Butera & Andrews, specializing in government relations and federal legislative

representations. He has been an active lobbyist before Congress since 1975. Prior to that

time, he served as Chief Legislative Assistant to then United States Senator Sam Nunn. 

Prior to forming Butera & Andrews, he worked in the government relations practice at

the Washington office of the law firm of Sutherland, Asbill & Brennan. During his career,

he has represented clients from throughout the nation and abroad, and they have included

major corporations, trade associations, coalitions, and state governmental entities. He has

worked with clients on a broad array of issues including environmental matters, federal

taxation, banking, financial services, housing, and many others. He has served two terms

as President of the American League of Lobbyists, and Washingtonian magazine named

him as one of “Washington’s Top 50 Lobbyists.” Andrews Decl. ¶ 1 [DEV 6-Tab 1].

209

so that they can solicit donations); McGahn Decl. ¶¶ 21, 34-37 (same); Jordan

Decl. ¶¶ 20, 25-28 (same); Wolfson Decl. ¶¶ 21, 28-31 (same); Jordan Decl. ¶¶ 52,

58; Wolfson Decl. ¶ 49; Josefiak Dep. at 117-18; Andrews195 Decl. ¶ 14; Letter

from RNC Chairman Jim Nicholson to Donald Fisher, August 18, 1998, (copies to

House Speaker Newt Gingrich, House Majority Leader Dick Armey and

Congressman John Linder (stating "I appreciate your interest in helping us hold

onto our majority in the House. . . . I can tell you every single dollar of your

contribution will go directly into Operation Breakout. . . . If you will make your

check out (which can be personal or corporate) to the Republican National

Committee and annotate it for Operation Breakout I will personally show a copy

of it to Newt, Dick Armey and John Linder. Please feel free to accompany it with a

transmittal letter containing any other message that you choose."); Senator

Feingold Dep. at 115 (explaining that while he does not know how Senators are

made aware of the identity of donors of nonfederal money to national parties, it is
210

because he "made a real effort to be far away from that part of the process so [he

is] not privy to or aware of exactly how that's done and to what extent it's done.");

Congressman Meehan Dep. at 178-79 (explaining that he was unaware of the

Democratic National Committee's "tallying" process, by which the amount of

money the DNC spends on a particular candidate is related to the amount of

nonfederal money that candidate raised for the DNC, however, that he was

"probably one of the last people that they would let know about the tallying

process"). One lobbyist, and former DNC official, observed that 

[W]hen one of my clients is going to make a donation to a federal candidate

or party, hard or soft money, I advise them on the manner in which they

should do that. I tell them not to just send the check to the party committee,

for example, to the young staff member who is collecting the checks.

Instead I tell my clients that they should personally give the money to a

Member of Congress who then can give the money to the Chair of the party

committee, who will in turn make sure that the check reaches the young

staff member. That way the donor, with one check, gets "chits" with

multiple Members of Congress. 

Hickmott Decl. ¶ 9.

There is No Probative Evidence That National Parties Use Nonfederal Donations to

Induce Federal Officeholders to Support or Oppose Legislation

209. There is no probative evidence that national parties have attempted, through the

use of nonfederal donations, to get federal officeholders to change their position

on legislation. Senator Rudman testifies that the RNC never asked him to take a

particular position because a donor had contributed soft money to the party. 
211

Rudman Dep. at 77-82. Senator McCain testifies that "there are many times where

the Republican National Committee tried to change my votes and other votes of

other Republicans . . . [T]he Republican National Committee constantly weighs in

on legislation before the Congress of the United States," McCain Dep. at 171-72 ,

but he also states that he does not "know [if it was] in exchange for donations or

not").

210. There is no probative evidence in the record which suggests that national party

committees support or withhold support from federal officeholders based on their

voting records. See, e.g., Vosdingh Dep. at 89 (FEC unaware of any national party

committee using nonfederal funds to induce federal officeholder to support or

oppose specific legislation); Mann Cross Exam. at 113-15 ("I would be shocked if

[the RNC] ever did such a thing. . . . [T]he point is to win the margin seat, to

control the majority for the party, not to weaken a potentially vulnerable candidate.

. . . It would be self-defeating. That isn't how it works."). 

The Relationship Between Access and Donations

211. The record contains substantial probative evidence that donors of both federal and

nonfederal donations to parties receive greater access, both in the amount of time

they spend with federal officeholders and in the priority with which their interests

are accorded in comparison to nondonors. See Bumpers Decl. ¶ 14; McCain Decl.
212

¶ 6; Boren Decl. ¶ 9; Senator Glenn (144 Cong. Rec. S1048 (1998); Shays Decl. ¶

9 (the overall message of the statements of these current and former federal

officeholders is that the expectation of the donor is that he or she has access when

needed by virtue of his contribution, and that donors often give soft money in

response to an invitation for an event that will allow them face-to-face access with

a federal officeholder); see also Senator Simon Decl. ¶ 16 (stating that he was

more likely to first return the telephone call of a donor to his campaign than

someone who had not donated, and that increased access for those who give large

contributions to the party is not fair to those who cannot afford to give

contributions at all).

The RNC

212. The RNC’s Finance Director Beverly Shea testifies that the RNC does not arrange

meetings with government officials for any of its donors—federal or

nonfederal—and whenever a donor attempts to condition a donation on obtaining

such a meeting, the RNC rejects the donation. See B. Shea Decl. ¶ 44. Ms. Shea

maintains that the RNC Finance Division, "[a]s a matter of policy," passes along

requests from donors for meetings with a federal officeholder to that officeholder's

scheduling staff "without inquiring into the purpose of the proposed meeting"; to

"neither to advocate a meeting nor ascertain whether a meeting has been
213

arranged"; to not provide to the officeholder's scheduler the amount of the money

that donor has contributed to the party; and to reject any donation that is

conditioned on obtaining a meeting with an officeholder. Id. at 44, 46. The record,

however, includes examples of documents provided by a national party which

suggest a link between contributions to the party and the occurrence of meetings

with party leadership. See e.g., ODP0025-02456 to 57 [DEV 70 - Tab 48] (RNC

Chair asking Senate Majority Leader Dole to meet with the “loyal and generous”

CEO of Pfizer); RNC0044465 [DEV 93] (RNC employee asking to establish a

contact in Senator Dole’s office for a “generous” RNC contributor); ODP0030-

03512 to 13 [DEV 71 - Tab 48] (notes of RNC Chair Jim Nicholson stating he will

take up a donor’s issue with Senator Trent Lott).

213. Based upon a review of the RNC's donor files, the RNC's Finance Director,

Beverly Shea, testifies that during each two-year election cycle the RNC receives

no more than 15 requests—most from contributors of federal funds—for meetings

with Members of the Congress. See B. Shea Decl. ¶ 45.

214. Federal candidates and officeholders appear at events held for donors of federal

funds as well as for donors of nonfederal funds. See id. at 22; see also Resp. of

FEC to RNC's First and Second Reqs. for Admis. at 4-5 (conceding that both

federal and nonfederal donors attend political party fundraisers and that all six

major national political party committees' fundraisers are open to both types of
214

donors).

Statistical Evidence Regarding Donations and Access

215. No valid statistical evidence supports the conclusion that nonfederal donations

secure any different access to federal candidates and officeholders. Experts for the

plaintiffs and for the defendants agree that there exists no valid study linking types

of donations and "access" or "legislative effort." Cross Exam. of Defense Expert

Green at 55, 69-72 (existing studies fail to control for effect of lobbying

expenditures and are not "statistically sound"); id. at 95 (studies make no effort to

"track access specifically"); Krasno & Sorauf Expert Report at 5 ("[T]he absence

of systematic data on access . . . prevents political scientists from searching for

relationships between access and policy-makers' behavior."); Primo Expert Report

at 8-9 (noting only "scant evidence in the political science literature that money

secures access" and stating that existing literature is statistically flawed); see also

RNC v. FEC, Civ. No. 98-CV-1207 (D.D.C.) (Herrnson Dep. at 300 (testifying on

behalf of FEC and stating that existing studies on "access" are "kind of weak and

wishy washy")).

Federal Officeholders Are Not More Likely to Meet With Nonfederal Donors Than

Federal Donors

216. The defendants have submitted no probative evidence that federal officeholders
215

are more likely to meet with nonfederal donors than with federal donors. In fact,

certain legislators testifying in this case stated that they personally do not provide

special access to individuals or corporations that provide large contributions to

parties based upon whether the donation was federal or nonfederal. See Resp. of

FEC to RNC's First and Second Reqs. for Admis. at 4 (conceding lack of

evidence); see also Feingold Dep. at 116 (“I cannot imagine a situation where . . . I

would meet with somebody because they gave soft money.”); Snowe Dep. at 210-

11 (stating she has never given preferential access to any donor, federal or

nonfederal, and that "[e]verybody has access to my office to the extent that I have

time available"); Jeffords Dep. at 96-97 (stating person's status as a donor to

national party committee does not "affect [his] decisions as to who [he] meet[s]

with or give[s] access to"); Meehan Dep. at 180 (stating he provides no

preferential access to nonfederal donors); Cross Exam. of Shays at 20-21

(acknowledging that, like most congressman, he "pretty much [has] an open door

policy to meet people who want to talk to [him] about important legislative

issues").

Lobbyists, Former Members of Congress, Business Leaders, and Donors Believe that Soft

Money Donations to Parties Increase Access to Officeholders

217. Lobbyist Robert Rozen testifies: 

I know of organizations who believe that to be treated seriously in
216

Washington, and by that I mean to be a player and to have access,

you need to give soft money. As a result, many organizations do

give soft money. While some soft money is given for ideological

purposes, companies and trade associations working on public policy

for the most part give to pursue their economic interests. In some

cases, that might limit their contributions to one political party. 

More often, they give to both. They give soft money because they

believe that’s what helps establish better contacts with Members of

Congress and gets doors opened when they want to meet with

Members. 

Rozen Decl. ¶ 10 [DEV 8-Tab 33]; see also id. ¶ 14.

218. Lobbyist Daniel Murray's testimony in a prior case, which has been incorporated

into the records of this case, states that “contribution of soft money . . . has proven

to provide excellent access to federal officials and to candidates for federal

elective office. Since the amount of soft money that an individual, corporation or

other entity may contribute has no limit, soft money has become the favored

method of supplying political support. . . . [S]oft money begets both access to

law-makers and membership in groups which provide ever greater access and

opportunity to influence.” Murray Aff. in Mariani ¶ 14 [DEV 79-Tab 59].

219. Senator Rudman explains: “By and large, the business world, including

corporations and unions, gives money to political parties . . . [because] they believe

that if they decline solicitations for such contributions, elected and appointed

officials will ignore their views or, worse, that competing business interests who

do make large contributions to the party in question will have an advantage in

influencing legislation or other government decisions. The same is true in the
196 Mr. Greenwald is currently Chairman Emeritus of United Airlines, the largest

employee majority-owned company in the United States. From 1994 through his

retirement in 2000, he served as the Chairman and CEO of United. Prior to that, he was

vice chairman at Chrysler Corporation and worked at Ford Motor Company. Greenwald

Decl. ¶ 2 [DEV 6-Tab 16] 

217

preponderance of cases where wealthy individuals give $50,000, $100,000,

$250,000, or even more to political parties in soft money donations.” Rudman

Decl. ¶ 5 [DEV 8-Tab 34]; see also id. ¶ 6 (stating that sitting members of

Congress raise money from these entities knowing that they contribute large sums

to the parties in order to achieve such access). Senator Rudman also states that 

[s]pecial interests who give large amounts of soft money to political

parties do in fact achieve their objectives. They do get special

access. Sitting Senators and House Members have limited amounts

of time, but they make time available in their schedules to meet with

representatives of business and unions and wealthy individuals who

gave large sums to their parties. These are not idle chit-chats about

the philosophy of democracy. In these meetings, these special

interests, often accompanied by lobbyists, press elected officials

—Senators who either raised money from the special interest in

question or who benefit directly or indirectly from their contributions

to the Senator's party— to adopt their position on a matter of interest

to them. Senators are pressed by their benefactors to introduce

legislation, to amend legislation, to block legislation, and to vote on

legislation in a certain way. No one says: ‘We gave money so you

should do this to help us.’ No one needs to say it — it is perfectly

understood by all participants in every such meeting.” 

Id. ¶ 7.

220. Chairman Gerald Greenwald196 testifies that some unions and corporations 

give large soft money contributions to political parties — sometimes to both

political parties — because they are afraid to unilaterally disarm. They do

not want their competitors alone to enjoy the benefits that come with large
218

soft money donations: namely, access and influence in Washington. Though

a soft money check might be made out to a political party, labor and

business leaders know that those checks open the doors to the offices of

individual and important Members of Congress and the Administration,

giving donors the opportunity to argue for their corporation’s or union’s

position on a particular statute, regulation, or other governmental action.

Labor and business leaders believe--based on experience and with good

reason--that such access gives them an opportunity to shape and affect

governmental decisions and that their ability to do so derives from the fact

that they have given large sums of money to the parties.” 

Greenwald Decl. ¶ 12 [DEV 6-Tab 16]; see also Greenwald Decl. ¶ 10 [DEV 6-

Tab 16. 

“[L]abor and business leaders are regularly advised that—and their

experience directly confirms that—organizations that make large soft

money donations to political parties in fact do get preferred access to

government officials. That access runs the gamut from attendance at events

where they have opportunities to present points of view informally to

lawmakers to direct, private meetings in an official’s office to discuss

pending legislation or a government regulation that affects the company or

union.”). 

221. Individual donor Peter Buttenwieser testifies: 

Events, meetings and briefings held for soft money donors provide

opportunities for the donors to hear speeches and engage in policy

discussions with federal office holders. There is also a certain

amount of politicking and lobbying at these events. This is true

particularly in the side discussions, in which donors can approach

office holders and discuss their issues.

Buttenwieser Decl. ¶ 25 [DEV 6-Tab 11]. Arnold Hiatt testifies that 

[A]s a result of my $500,000 soft money donation to the DNC, I was

offered the chance to attend events with the President, including events at

the White House, a number of times. I was offered special access as a result

of the contributions I had made, though I generally never took advantage of
219

that access. One event that I did attend was a dinner at the Mayflower Hotel

in Washington, D.C. in approximately March 1997 with President Clinton

and Vice-President Gore. The dinner was for the largest donors to the DNC,

about thirty people. I did not plan on attending but I went because several

people urged me to use the occasion to speak in favor of campaign finance

reform. I used the opportunity to talk to the President about how the

campaign finance system in this country had become a crisis, and argued

that the crisis provided an opportunity for the President to provide some

leadership. I don’t think that we got the leadership I was seeking on the

campaign finance issue, but I did get the chance to make a personal pitch to

the President as a result of my donation.

Hiatt Decl. ¶ 9[DEV 6-Tab 18]. Hiatt testifies that others in attendance also shared

their views on policy matters of importance to them as the event was advertised as

an opportunity to “give advice to the president.” Hiatt Dep. at 119-21 [JDT Vol.

10]; see also Hassenfeld Decl. ¶ 12-13 [DEV 6-Tab 17] (“[W]hen given the

opportunity, some donors try to pigeonhole or corner Members, in a less than

diplomatic way, to discuss their issues at these events.”); Geschke Decl. ¶ 5 [DEV

6-Tab 14] (testifying that in connection with $50,000 in donations made to the

DNC he and his wife attended a dinner of 10 to 12 people with President Clinton

“last[ing] two or three hours, and consist[ing] primarily of a conversation about

issues of importance to the nation and the President's program”).

222. Evidence shows that party leaders have in some instances facilitated direct

communications between soft money donors and officeholders on certain policy

matters. A handwritten note dated October 27, 1995, from RNC Chairman Haley

Barbour asks Senate Majority Leader Bob Dole to meet with the CEO of Pfizer, a
220

member of the RNC’s “Team 100” soft money donor group, to discuss an

extension of the lucrative Section 936 tax credit:

Dear Bob 

Bill Steere, CEO of Pfizer, has asked to see you on Wed. 11/1. He is

extremely loyal and generous. He also is not longwinded. He’ll tend

to his business and not eat up extra time. They have proposed a

[Internal Revenue Code §] 936 solution that [Republican Senator

William] Roth and [Republican Congressman Bill] Archer are

considering. I’m sure that is the issue. I’d appreciate it if you’d see

Bill. [signed] Haley.

ODP0025-02456 to 57 [DEV 70-Tab 48]; see also July 10, 1996, letter from John

Palmer to [redacted addressee] (reminding addressee that Palmer had asked him to

join the RNC’s Team 100, and noting that RNC Chair Barbour escorted new Team

100 member and Energy CEO Lupberger on four appointments that were “very

significant” in legislation affecting companies like his and made him “a hero in his

industry”); ODP0023-02043 [DEV 70-Tab 48]; RNC0240565-RNC0240566

[DEV 97], Sept. 28 [no year] (discussing an upcoming meeting requested by

Bristol-Myers Squibb, in connection with its consideration of joining the RNC’s

“Season Pass” major donor program; scheduled attendees included

representatives of major pharmaceutical companies and “Active Team 100

members” Bristol-Myers Squibb, Glaxo Wellcome, and Pfizer; the memo stated:

“This group is particularly interested in the White House’s proposal to add a

prescription drug benefit to the Medicare program. They vehemently oppose it and

are helping to fund a million-dollar campaign that began in July and features an
221

older woman named Flo, who declares, ‘I don’t want bureaucrats in my medicine

cabinet.”’ The memorandum includes as a “Key Talking Point” the directive to

“[l]et them know how crucial it is we have their financial support this election

cycle”); see also Vogel Decl. Tab D at NRSC 066-000009 (draft letter from

chairmen of the NRSC and NRCC Technology Committees inviting High

Technology CEOs to the 1998 Republican House-Senate Dinner in response “to

your industry’s plea for a voice on the cutting edge issues so important to the

future of high technology” and noting that the dinner is the “most prestigious

annual event, and all Republican members of the U.S. House and Senate will be in

attendance”) [DEV 9-Tab 41]. Former Senator Wirth testifies: 

The Democratic national campaign committees sometimes asked me

to meet with large donors to the party whom I had not met before. 

At the party’s request, I met with the donors. I understood that the

donors’ goal in making the large contributions was often to occasion

meeting(s) with me or other prominent Democratic congressional

leaders to press their positions on legislative issues. On these

occasions, sometimes all I knew about the donor would be the issue

in which he was interested.

Wirth Decl. Exhibit A ¶ 15 [DEV 9-Tab 43]; RNC0177216 [DEV 95] (note

written on stationery of RNC’s Team 100 Director, Haley Barbour, stating “they

have pretty much decided to join T-100 . . . . They want access to political players .

. . . Their top issue is tort reform”); RNC0044465 [DEV 93] (Memorandum from

Tim Barnes of the RNC to Royal Roth noting that someone from Moore Capital

Management had been “trying to establish a contact in Senator Dole’s office for
222

Mr. Bacon. As you know, Mr. Bacon [of Moore Capital Management] has been

very generous to the RNC. If there is any way you can assist, it would be greatly

appreciated.”).

Party Donation Programs Show That Increased Access Corresponds With Larger

Donations

223. RNC documents show that the RNC’s donor programs offer greater access to

federal office holders as the donations grow larger, with the highest level and most

personal access offered to the largest soft money donors. ODP0018-00113 to 36

[DEV 69-Tab 48] (RNC Brochure “Donor Programs”); see also Resps. RNC to

FEC’s First RFA’s, No. 62 [DEV 12-Tab 10]. The RNC offers its donors a range

of different donor programs, for a range of different donor financial levels and

interests. ODP0025-00375 to 79 [DEV 70-Tab 48] (“Summary of RNC’s Donor

Programs”). The RNC President’s Club required a $1,000 annual contribution and

offered at least one meeting per year, which included policy briefings and

discussions led by Republican congressional and other leaders. Id. at

ODP0025-00375. The Chairman’s Advisory Board required a $5,000 annual hard

money contribution and offered a “vigorous and informal exchange of views

among Board members and party leaders. . . . Board meetings include three or four

panel discussions, each chaired by a Congressional leader or senior policy adviser

with particular expertise in the area under consideration.” Id. at ODP0025-00375
223

to 77 [DEV 70-Tab 48]. According to the document, the Chairman’s Advisory

Board was established “to enlist the personal energy and professional expertise of

Republican leaders in business and community affairs in developing policy and

campaign strategies at the highest levels for the party.” Id. The Republican Eagles

required an annual contribution of $15,000 (individual) or $20,000 (with spouse or

corporate). Id. at ODP0025-00377-0378, ODP0025-00429 [DEV 70-Tab 48]. The

Eagles program offered a series of national and regional meetings with elected

Republican congressional leaders, special access to Republican events, and other

benefits. ODP0025-00428 [DEV 70-Tab 48]; ODP0030-02838 -39 [DEV 71-Tab

48]. The Team 100 program required a donation of $100,000 upon joining and

every fourth year thereafter, with $25,000 donations required in each of the three

intervening years; ODP0014-00983, ODP0014-01457 to 58 [DEV 69-Tab 48]. The

Team 100 program offered members national and regional meetings with the

Republican Party leadership throughout the year, special events, membership in the

Eagles program, the opportunity to participate in international trade missions, and

other benefits. ODP0025-00377, ODP0025-00424, ODP0025-01705 to 13 [DEV

70-Tab 48]. The Season Ticket program required a donation of $250,000 upon

joining and renewals thereafter. ODP0022-03045-46, ODP0023-02480,

ODP0025-01569 [DEV 70-Tab 48]; ODP0030-03408 [DEV 71-Tab 48]. The

“Season Ticket” or “Season Pass” program offered the greatest and most exclusive
224

range of RNC donor program benefits, including one Team 100 membership, two

Eagle memberships, special access to a range of Republican Party events, and the

assistance of RNC support staff. ODP0025-01569 [DEV 70-Tab 48].

224. The NRSC offered several major donor programs. In 1995 and 1996, the NRSC

offered a corporate donor program called “Group 21” or “G21,” which required an

annual donation of $100,000. ODP0037-02246, ODP0037-02275,

ODP0037-02281 [DEV 71-Tab 48]. The “Group 21” program offered donors

“small dinners with [then-NRSC Chairman] Senator D’Amato and other senators”

and other “VIP benefits.” ODP0037-02275 [DEV 71-Tab 48]. The Chairman’s

Foundation required an annual corporate (meaning nonfederal funds) donation of

$25,000. ODP0036-03603 [DEV 71-Tab 48]. The Senatorial Trust required an

annual donation of $10,000 (personal) or $15,000 (corporate). ODP0036-03873 -

74 [DEV 71-Tab 48]. The Presidential Roundtable required an annual donation of

$5,000 in personal or corporate funds. ODP0037-00315 [DEV 71-Tab 48]; see

also ODP0036-03525 (letter signed by Senator McConnell to NRSC member

asking him to renew his membership, noting that “[y]our non-federal contribution

to the Chairman's Foundation will allow us to put our federal dollars directly

towards the Senate campaigns, where they are desperately needed.”);

ODP0036-3562 (letter signed by Senator McConnell thanking addressee for

joining the Chairman’s Foundation); ODP0036-03595 (letter signed by Senator
225

McConnell soliciting someone to join the Chairman’s Foundation);

ODP0037-01861-69 (NRSC brochure) [DEV 71-Tab 48]; Vogel Decl. ¶¶ 20

(“When donors have reached their federal contribution limit, the NRSC may

encourage them to make additional donations to the NRSC's nonfederal account.”),

51, Tabs A, J [DEV 9-Tab 41] (2002 Senatorial Trust materials).

225. The NRCC Congressional Forum “has been designed to give its members an

intimate setting to develop stronger working relationships with the new Republican

Congressional majority,” ODP0042-01226 [DEV 71-Tab 48], and the “benefit that

attracts most Forum members are the dinners with Committee Chairmen and the

Republican members from each Committee.” ODO0042-00028 [DEV 71-Tab 48];

see also CDP 0098 [DEV 106] (CDP brochure showing that those who contribute

$100,000 to the CDP are classified by the party as “Trustees,” and that the CDP

“recognizes its extraordinary supporters with extraordinary opportunities,” and

provides “Trustees” with “[e]xclusive briefings, receptions and meetings with

officials such as U.S. Senator Dianne Feinstein, U.S. Senator Barbara Boxer, Lt.

Governor Gray Davis, Controller Kathleen Connell and other national figures.”).

226. The evidence shows that contributors request to be seated with certain lawmakers

at these donor events. For example, an RNC “Table Buyer’s Guest List” sheet for

“The Official 1995 Republican Inaugural Gala” filled out by “Am. Banker’s

Ass’n/Nation’s Bank” contained a request to sit with certain Members of Congress
226

and “anyone on House Banking Comm.” ODP0023-3288 [DEV 70-Tab 48]; see

also 2000 RNC Gala Leadership Levels, undated, RNC0022509 [DEV 92]; 2000

RNC Attendance Forms, April 20, 2000, RNC0236323 [DEV 97] (filled out by

Microsoft attendee requesting to be seated with a particular Senator or “Leadership

Commerce Comm. or Judiciary"); RNC 0032805-32806, RNC 0032799 [DEV 92]

(request for Burger King Chairman and Team 100 member who donated $100,000

to be seated with Senator Fred Thompson and three other Senators, and document

showing Senator Thompson was placed at the Burger King table). PhRMA’s

Judith Bello testified that the five Members of Congress that PhRMA listed as

options for the “VIP” to be seated at its table at the 2000 Republican House-Senate

dinner were all Members who had responsibility or oversight over issues of

importance to the pharmaceutical industry. Bello Dep. at 82 [JDT Vol. 1].

227. The parties appear to have used such opportunities to promote their various donor

clubs. For example, a letter from the chairmen of the Congressional Forum of the

NRCC sent a letter to the Association of Trial Lawyers of America regarding an

upcoming Congressional Forum Chairman’s Dinner, in which they wrote: “[o]ur

event will give you an excellent opportunity to meet with the Members of the

[Judiciary Committee] to discuss issues relevant to your organization.” ODP0042-

00025 [DEV 71-Tab 48]; see also ODP0042-000654 (memorandum to all

Congressional Forum members from the chairmen, informing them of an
227

upcoming dinner featuring members of the Banking Committee, noting that “[o]ur

event will give you an excellent opportunity to meet with members of the

committee to discuss issues relevant to your organization”); Fowler Decl. ¶ 8

[DEV 6-Tab 13] (testifying that "[p]arty and government officials participate in

raising large contributions from interests that have matters pending before

Executive agencies, the Congress, and other government agencies. Party officials,

who are not themselves elected officials, offer to large money donors opportunities

to meet with senior government officials. Donors use these opportunities — White

House and congressional meetings— to press their views on matters pending

before the government.”); RNC 0026901 [IER Tab 7] (note from the director of

the RNC’s Team 100 program thanking a donor for “facilitating Dow [Chemical]’s

generous contribution to the Republican Party. It’s a timely donation as we head

into the final hours of the campaign. Give me a call . . . and we can figure out

when is a good time to bring your Dow [Chemical] leadership into town to see

[RNC Chairman] Haley [Barbour], [Senate Majority Leader Robert] Dole &

[Speaker of the House] Newt [Gingrich].”); RNC 0194817 [IER Tab 1.E] (letter

from RNC to a pharmaceutical company asking the company for its opinion and

suggestions on the enclosed RNC “health care package” and a $250,000 donation

to join the RNC’s Season Pass program).

228. According to lobbyist Robert Rozen:
228

[S]oft money contributions built around sporting events such as the

Super Bowl or the Kentucky Derby, where you might spend a week

with the Member, are even more useful. At the events that

contributors are entitled to attend as a result of their contributions,

some contributors will subtly or not-so-subtly discuss a legislative

issue that they have an interest in. Contributors also use the events to

establish relationships and then take advantage of the access by later

calling the Member about a legislative issue or coming back and

seeing the Member in his or her office. Obviously from the

Member's perspective, it is hard to turn down a request for a meeting

after you just spent a weekend with a contributor whose company

just gave a large contribution to your political party.

Rozen Decl. ¶ 11 [DEV 8-Tab 33].

229. Some evidence shows the connection between large donations and access to

elected officials as being even more direct. A call sheet prepared for then-DNC

Chair Fowler instructs him to call a number of large givers ask for donations, and

invite them for lunch with the President of the United States (“POTUS”). DNC

113-00137 to 38 [DEV 134-Tab 7] (“Ask her to give 80k more this year for lunch

with Potus on October 27th.”) (“Ask him to write another 100K to become a

Managing Trustee for the campaign and come to lunch with POTUS on Oct. 27.”). 

A CDP call sheet entitled “Child Call List, 5/16/96" includes the notation that a

potential donor should be asked “if they might be able to do $25,000 for a small

mtg with the President, you know it’s steep, but want to include them in these

types of meetings.” CDP 00124 [IER Tab 11].
229

Donors Make Donations to National Parties With the Expectation of Building

Relationships and Receiving Access

Lobbyists Believe That Donations Will Enable Donors to Establish Relationships With

Officeholders

230. Lobbyist Robert Hickmott testifies that he advises his clients to make contributions

in order to “establish relationships. Having those relationships in many ways then

helps us get meetings and continue that relationship.” Hickmott Dep. at 50 [JDT

Vol. 10]. Hickmott testifies that when Senator Robb was chairman of the DSCC

he would go to the DSCC offices where he would “accept checks from individuals

or organizations who wanted to give money to the DSCC and they wanted face

time with Chairman Chuck Robb.” Id. at 94-95. Donors would “use this as an

opportunity not only to make a contribution to the DSCC, but also to convey to

Senator Robb what their group or individual position was on an issue.” Id. at 95;

see also Hickmott Decl. Exhibit A. ¶ 46 (stating that "[t]here is a very rare strata of

contributors who contribute large amounts to the DSCC because they actually

believe in Democratic politics . . . . The majority of those who contribute to

political parties do so for business reasons, to gain access to influential Members

of Congress and to get to know new Members.").

231. As Wright Andrews explains: 

Sophisticated political donors—particularly lobbyists, PAC directors, and

other political insiders acting on behalf of specific interest groups—are not

in the business of dispensing their money purely on ideological or charitable

grounds. Rather, these political donors typically are trying to wisely invest
230

their resources to maximize political return. Sophisticated donors do not

show up one day with a contribution, hoping for a favorable vote the next

day. Instead, they build longer term relationships. The donor seeks to

convey to the member that he or she is a friend and a supporter who can be

trusted to help the federal elected official when he or she is needed.

Presumably, most federal elected officials recognize that continued

financial support from the donor often may be contingent upon the donor

feeling that he or she has received a fair hearing and some degree of

consideration or support.

Andrews Decl. ¶ 8 [DEV 6-Tab 1].

232. Some lobbyists believe that donations to parties are beneficial to their clients'

business interests. See Rozen Decl. ¶ 10 (“[L]arge political contributions are

worthwhile because of the potential benefit to the company’s bottom line.”) [DEV

8-Tab 33].

Current and Former Federal Officeholders Acknowledge That Donors Expect to

Establish Relationships With and Obtain Access to Federal Officeholders

233. Some former and current federal officeholders acknowledge that donors expect to

establish relationships with officeholders in return for their nonfederal donations to

the national parties. Senator Bumpers Decl. ¶ 13 (testifying that people that give

money to party committees feel that they are "ingratiating themselves" with the

federal officeholder who solicits the donation); Wirth Decl. Exhibit A. ¶ 5 (stating

that those donors who made contributions to the state party "almost always did so

because they expected that the contributions would support my campaign," and

that, generally, "they expected that [the Senator] would remember their
231

contributions"); Brock Decl. ¶ 5(a) (testifying that "contributors . . . feel they have

a 'call' on . . . officials" when they contribute soft money); Senator Boren Decl. ¶ 8

(testifying that he knows from "first hand experience and from [his] interactions

with other Senators that they feel beholden to large donors."); Senator Simpson

testifies that groups used “to give to someone who was for your philosophy,” but

now “[i]t's giving so you can get access and kiss butt and do all the rest of the

things so you won't get knocked off the perch.” Simpson Dep. at 11-12 [JDT Vol.

30].

Donors Hope to Establish Relationships or Receive Access With Their Donations

234. Steven Kirsch testifies that: 

Policy discussion with federal officials occurs at major donor events

sponsored by political parties. I have attended many such events. They

typically involve speeches, question and answer sessions, and group policy

discussions, but there is also time to talk to Members individually about

substantive issues. For example, at a recent event. I was able to speak with a

Senator representing a state other than California and we had a short

conversation about how our respective staffers were working together on a

particular issue.

Kirsch Decl. ¶ 12 [DEV 7-23]; see also Hiatt Decl. ¶ 11 (stating that "[l]arge soft

money donors give in order to obtain access and influence."). In fact, corporate

donors view nonfederal donations as the "cost of doing business." Hassenfeld

Decl. ¶ 16 (testifying that nonfederal donations are viewed by the "corporate

world" as "a good investment relative to the potential economic benefit to their
232

business."); Hassenfeld Decl. ¶¶ 23-24 (“I think companies in some industries have

reason to believe that because their activities are so closely linked with federal

government actions, they must participate in the soft money system in order to

succeed.”) [DEV 6-Tab 17]; Randlett Decl. ¶ 5 (stating that "many soft money

donations are not given for personal or philosophical reasons. They are given by

donors with a lot of money who believe they need to invest in federal officeholders

who can protect or advance specific interests through policy action or inaction.

Some soft money donors give $250,000, $500,000, or more, year after year, in

order to achieve these goals. For most institutional donors, if you're going to put

that much money in, you need to see a return, just as though you were investing in

a corporation or some other economic venture.”); Randlett Decl. ¶ 14 (explaining

that “many members of the business community recognize that if they want to

influence what happens in Washington, they have to play the soft money game.

They are caught in an arms race that is accelerating, but that many feel they cannot

afford to leave or speak out against.”); Kirsch Decl. ¶ 14 (stating that “[major]

donors perceive that they are getting a business benefit through their special

access, and that it is a good investment for them”) [DEV 7-Tab 23].

235. Roger Tamraz, an American businessman involved in investment banking and

international energy projects, made donations to the DNC during the 1996 election

cycle. When asked during congressional hearings by Senator Levin whether one
233

of the reasons he made the contributions was because he “believed it might get

[him] access?,” Mr. Tamraz responded: “Senator, I’m going even farther. It’s the

only reason–to get access. . . .” Thompson Comm. Report at 2913 n.46 (quoting

page 63 of Mr. Tamraz’s testimony before the committee).

236. Donor Peter Buttenwieser, a large donor to Democratic party committees, testified

that

[t]here is no question that those who, like me, make large soft money

donations receive special access to powerful federal office holders on the

basis of the donations. I am close to a number of Senators, I see them on a

very consistent basis, and I now regard the Majority Leader as a close

friend. I understand that the unusual access I have correlates to the millions

of dollars I have given to political party committees, and I do not delude

myself into thinking otherwise. Not many people can give soft money on

that scale, and it naturally limits the number of those with that level of

access.

Buttenwieser Decl. ¶ 22.

237. An Eli Lilly and Company memorandum states that its 1995-96 political

“contributions and the related activities we have participated in have been key to

our increased role and ability to get our views heard by the right policy makers on

a timely basis; in other words, a smart investment.” Eli Lilly and Company

Memorandum (Jan. 15, 1997), ODP0018-00481-86 [DEV 69-Tab 48].

238. Documents submitted indicate that a Fortune 100 company contributes nonfederal

money to national party committees with the expectation that its contributions will

cultivate or strengthen its “relationships” with particular Members of Congress. 
234

See internal Fortune 100 company memorandum titled “Senator Earnest

Hollings/South Carolina Democratic Party” (June 29, 2000) [citation sealed]

(requesting a “check for $10,000.00 on behalf of Senator Ernest ‘Fritz’ Hollings to

the South Carolina Democratic Party,” noting that “Senator Hollings has been a

friend to [our company] for many years and he has shown himself to be a

thoughtful voice regarding issues in our industry,” that “[h]e currently serves on

the Commerce, Science and Transportation Committee, the Budget Committee and

the Appropriations Committee,” and concluding “I feel this would be a great

opportunity to strengthen our relationship with Senator Hollings.”). An internal

Fortune 100 company memorandum entitled “Justification for donation to

[DSCC]” (October 25, 2000) [citation sealed], stated 

I am requesting a check for $50,000.00 to the Democratic Senatorial

Campaign Committee (DSCC). Senator Robert Torricelli is the chairman

for the DSCC and in a recent conversation with the Senator, he requested

the above amount from [our company]. Senator Torricelli has been a friend

to [our company] for many years and he has shown himself to be a

thoughtful voice regarding issues in our industry. He currently serves on

the Judiciary, Foreign Relations & Governmental Affairs and Rules and

Administration Committees. I feel this would be a great opportunity to

strengthen our relationship with Senator Torricelli and the DSCC.

One legislative advocate from this company described the benefits reaped from

contributing $100,000 to the NRCC: “I think we established some goodwill with

[Congressman] Tauzin, both by [our company] contributing at the $100,000 level

to the NRCC dinner he chaired last month and by my participation in the NRCC
235

Finance Committee for the dinner. Tauzin understood that [our company]

participated at the same level as [others in our industry] did, and he expressed

genuine interest in trying to begin to reach out to the competitive industry. In sum,

I think the event was a real positive for [our company].” Internal Fortune 100

company memorandum entitled “NRCC Leadership Winner 2000,” dated April 4,

2000, [citation sealed].

Effectiveness of Giving Nonfederal Donations as Opposed to Federal Donations

239. Some donors give nonfederal money, rather than federal money to parties or direct

contributions to a candidate's campaign, because they believe nonfederal money is

more effective than several small contributions in obtaining access. See, e.g.,

Hickmott Decl. Exhibit A. ¶ 47 (explaining that "[i]f you want to get to know

Members of Congress, or new Members of Congress, it is more efficient to write a

$15,000 check to the DSCC and to get the opportunity to meet them at the various

events than it would be to write fifteen $1,000 checks to fifteen different Senators,

or Senators and candidates."); Wright Andrews, a lobbyist, stated that

a properly channeled $100,000 corporate soft money donation to the

national Republican or Democratic congressional campaign committees can

get the corporate donor more benefit than several smaller hard dollar

contributions by that corporation's PAC. Although the donations are

technically being made to political party committees, savvy donors are

likely to carefully choose which elected officials can take credit for their

contributions. If a Committee Chairman or senior member of the House or

Senate Leadership calls and asks for a large contribution to his or her party's
197 Mr. Charles Geschke is Chairman of the Board of Adobe Systems, Inc., which

he co-founded in 1982. Geschke Decl. ¶ 1 [DEV 6-Tab 14]. Since 1994, Mr. Geschke

estimates that he has donated over $150,000 in federal funds to federal political

committees, and over $18,000 in nonfederal funds to national party committees. Id. ¶ 3.

236

national House or Senate campaign committee, and the lobbyist's client is

able to do so, the key elected official who is credited with bringing in the

contribution, and possibly the senior officials, are likely to remember the

donation and to recognize that such big donors' interests merit careful

consideration.

Andrews Decl. ¶ 14; Randlett Decl. ¶ 13 [DEV 8-Tab 32] (“[Soft money donors]

get a level of attention that a $1,000 hard money donor never will. Even someone

who wrote 25 $1,000 hard money checks but no soft money is going to get much

less attention and appreciation than someone who wrote one large soft money

check.”). Rozen, a lobbyist, stated that

Donors to the national parties understand that if a federal officeholder is

raising soft money—supposedly 'non-federal' money—they are raising it for

federal uses, namely to help that Member or other federal candidates in their

elections. Many donors giving $100,000, $200,000, even $1 million, are

doing that because it is a bigger favor than a smaller hard money

contribution would be. That donation helps you get close to the person who

is making decisions that affect your company or your industry. That is the

reason most economic interests give soft money, certainly not because they

want to help state candidates and rarely because they want the party to

succeed. . . . The bigger soft money contributions are more likely to get

your call returned or get you into the Member’s office than smaller hard

money contributions.

Rozen Decl. ¶¶ 12-13 [DEV 8-Tab 33]; Geschke197 Decl. ¶ 9 [DEV 6-Tab 14]

(“Corporations and individuals can use soft money donations to get special access

to federal office holders and at least the appearance of influence on issues that are
198 Mr. Donald Fowler from 1971 until 1980, he served as Chairman of the South

Carolina Democratic Party and from January 1995 until January 1997 he served as

Chairman of the Democratic National Committee. Fowler Decl. ¶ 2 [DEV 6-Tab 13].

237

important to them financially or politically. Hard money contributions do not

provide the same opportunities for influence on federal policy as soft money

donations do.”); Fowler198 Decl. ¶ 6 [DEV 6-Tab 13] (“Many contributors of large

sums of money—both Republicans and Democrats—gain access to party and

governmental officials that they otherwise would not have. With this access,

contributors are able to make their cases to people who make public policy and

take official governmental action. Those who contribute small amounts of money

do not have this advantage and thus are unable to influence government with the

same effectiveness.”).

240. In a memorandum to a high-level Fortune 100 company executive outlining a

proposed $1.4 million nonfederal fund budget for FY1999, members of the

Company’s governmental affairs staff noted that 

With both houses of Congress and the White House hotly contested

this cycle, the importance of soft money, and consequently the

efforts by the parties to raise even more soft money, is greater than

ever. On the Democratic side, [our company’s] advocates have

already fielded soft money calls from House Democratic Leader

Gephardt, House Democratic Caucus Chairman Frost, Democratic

Congressional Campaign Chairman Kennedy, and Democratic

Senatorial Campaign Chairman Torricelli. Similar contacts to soft

money have been made by Republican congressional leaders.

In addition to the increased pressure from party and congressional

leaders, it is clear that our direct competitors and potential

competitors are weighing in with big soft money donations.
238

Memorandum from a Fortune 100 company’s legislative advocate to a high-level

executive, dated March 4, 1999, [citation sealed]. 

Donors Often Times Give to Both National Parties in Order to Receive Access to

Members of Both Parties

241. Evidence presented shows that many “companies and associations that do give soft

money typically contribute to both parties . . . because they want access to

Members on both sides of the aisle.” Rozen Decl. ¶ 7 [DEV 8-Tab 33]; see also

Hiatt Decl. ¶ 12 [DEV 6-Tab 18] (testifying “[p]eople give soft money donations

to both parties because they want to make sure they have access regardless of

who’s in the White House, filling the Senate seat, or representing the

Congressional district.”); RNC OH 0418778 [IER Tab 1.H] (an Ohio Republican

Party document entitled “Why People Give,” including the observation: “many

people give to both sides so that they will have access to whoever is the winner”).

242. An Eli Lilly and Company memorandum indicates the company was worried about

a Washington Post article listing it as a significant donor to the Republican party. 

The memorandum discusses contributions being made at Democratic party events

occurring in the near future. The memorandum concludes with: “Jay has talked to

the White House and we can get back into this by giving $50—100,000 to the

DNC—says they would be pleased with this.” ODP0018-00463 [DEV 69-Tab

48]; see also id. at ODP0018-00461 (the Washington Post article), ODP0018-
239

00462 (photocopy of part of the article with handwritten note stating “Dems are

upset. Calls from employees about imbalance. White House says Dem we are in

trouble”).

243. CEO Randlett comments that “[a]s a donor with business goals, if you want to

enhance your chances of getting your issues paid attention to and favorably

reviewed by Members of Congress, bipartisanship is the right way to go. Giving

lots of soft money to both sides is the right way to go from the most pragmatic

perspective.” Randlett Decl. ¶ 11 [DEV 8-Tab 32]. He explains

[I]f you’re giving a lot of soft money to one side, the other side

knows. For many economically-oriented donors, there is a risk in

giving to only one side, because the other side may read through

FEC reports and have staff or a friendly lobbyist call and indicate

that someone with interests before a certain committee has had their

contributions to the other side noticed. They’ll get a message that

basically asks: “Are you sure you want to be giving only to one side?

Don’t you want to have friends on both sides of the aisle?” If your

interests are subject to anger from the other side of the aisle, you

need to fear that you may suffer a penalty if you don't give. First of

all, it’s hard to get attention for your issue if you're not giving. Then,

once you’ve decided to play the money game, you have to worry

about being imbalanced, especially if there’s bipartisan control or

influence in Washington, which there usually is. In fact, during the

1990's, it became more and more acceptable to call someone, saying

you saw he gave to this person, so he should also give to you or the

person’s opponent. Referring to someone’s financial activity in the

political arena used to be clearly off limits, and now it’s increasingly

common. 

Id. ¶ 12. See also Buttenwieser Decl ¶ 23 [DEV 6-Tab 11] (“I am aware that some

soft money donors, such as some corporations, give substantial amounts to both
240

major political parties. Based on my observations, they typically do this because

they have a business agenda and they want to hedge their bets, to ensure they get

access to office holders on the issues that are important to them. This occurs at the

national and state levels.”); Geschke Decl. ¶ 10 [DEV 6-Tab 14] (“In my view,

donors who give large amounts of soft money to both major parties are probably

hedging their bets in trying to get influence. They may feel that influence with one

party is not sufficient to achieve their financial or policy goals, especially now that

power in Congress is pretty evenly balanced.”).

Lobbying and Donations of Nonfederal Money

244. According to some national party officials and former Members of Congress,

lobbying is more effective in obtaining access to legislators than donations to

campaigns and parties.

245. According to the RNC Finance Director, lobbying is far more effective in securing

"access" to federal officeholders than donating campaign funds. See B. Shea Decl.

¶ 45 ("It is obvious why major donors to the RNC do not regularly use their

donations as a means to obtain 'access.' All or virtually all who have personal or

organizational business with the federal government retain or employ professional

lobbyists."); see also Primo Cross Exam. at 164.

246. As Former Senator Bumpers (who testified on behalf of the defendants in this
241

case) has testified previously, lobbying expenditures are more likely to obtain

nonincidental contact with a federal officeholder than are campaign donations. 

See RNC v. FEC, Civ. No. 98-CV-1207 (D.D.C.); Bumpers Dep. at 38-40.

247. Many entities and individuals who donate federal funds to political parties also

spend considerable sums of money lobbying federal officeholders. Indeed, the

amount of money spent by such organizations on lobbying is often geometrically

larger than the amount they donate to political parties. See Resp. of Intervenors to

RNC's First and Second Reqs. for Admis. at 23-24 (admitting that top five

corporate donors of nonfederal funds during 1995 and 1996 donated $9,009,155 to

national party committees and same five corporations spent $27,107,688 on

lobbying during 1996 along); see id. at 24-25 (admitting that top five corporate

donors of nonfederal funds during 1997 and 1998 donated $7,774,020 to national

party committees and same five corporations spent $42,000,000 on lobbying

during that same period).

248. Some of the lobbyists who testified in depositions and on cross examination state

that their corporate clients hire them in large part because of their contacts on

Capitol Hill and because they have access to federal officeholders whether or not

their clients have donated money to candidates, officeholders, or parties. See

Hickmott Dep. at 46-47, 50-51; Cross-Exam. of Andrews at 19-20. However, the

evidence clearly shows that some lobbyists believe that contributions help them
242

gain access to lawmakers. Lobbyist Andrews states:

The amount of influence that a lobbyist has is often directly

correlated to the amount of money that he or she and his or her

clients infuse into the political system. Some lobbyists help raise

large “soft money” donations and/or host many fundraising events

for key legislators. Some simply represent a single client with very

deep pockets and can easily reach into large corporate or union funds

for “soft money” donations or other allowable expenditures that may

influence legislative actions. Those who are most heavily involved in

giving and raising campaign finance money are frequently, and not

surprisingly, the lobbyists with the most political clout.

Andrews Decl. ¶ 12 [DEV 6-Tab 1]. Andrews testifies that it has become a

common practice for lobbyists to “host a number of fundraisers.” He explains that

“[w]hereas the political parties periodically organize ‘gala’ events in large

ballrooms filled with hundreds of donors, lobbyists now often prefer attending

smaller events hosted by other lobbyists, with only ten or fifteen people

participating, all sitting at a dinner or breakfast table with the invited guest elected

official. This type event allows lobbyists a better opportunity to build more

personal relationships and to exchange views.” Id. ¶ 16.

249. Some lobbyists maintain that “basic” or traditional lobbying activities are alone

insufficient to be effective in many instances in lobbying endeavors. To have true

political clout, the giving and raising of campaign money for candidates and

political parties is often critically important.” Andrews Decl. ¶ 5 [DEV 6-Tab 1]. 

Lobbyist Daniel Murray testified that 

[a]long with each . . . legislative plan [a plan to “advance the client’s
243

legislative agenda”], and essential to achieving the client’s goals, I develop

a parallel political financial support plan. In other words, I advise my clients

as to which federal office-holders (or candidates) they should contribute and

in what amounts, in order to best use the resources they are able to allocate

to such efforts to advance their legislative agenda. Such plans also would

include soft money contributions to political parties and interest groups

associated with political issues.

Murray Aff. in Mariani ¶¶ 6-7 [DEV 79-Tab 58]; see also Meehan Dep. in RNC at

40-41 [DEV 66-Tab 4] (“[P]ower and influence in Washington is not just the

amount of soft money an industry contributes to the political parties. I would say

that also it’s the amount of PAC money that they contribute to the political

candidates, it’s the amount of hard money they contribute, it’s the amount of

lobbying money that they expend in order to influence members of Congress.”).

Public Perception of Corruption

250. The defendants have offered substantial evidence that the public believes there is a

direct correlation between the size of a donor's contribution to a political party and

the amount of access to, and influence with, the officeholders of that party that the

donor enjoys thereafter.

251. The principal evidence submitted by the defendants in support of their contention

that the public perceives an appearance of corruption due to large nonfederal

donations to parties is a research poll of 1,300 adult Americans conducted by two
199 Mark Mellman is "CEO of The Mellman Group, a polling and consulting firm. .

. . Mellman has helped guide the campaigns of some fifteen U.S. Senators, over two

dozen Members of Congress, and three Governors, as well as numerous state and local

officials. In addition, Mellman works with a variety of public interest organizations

ranging . . . and corporate clients . . . He has served as a consultant on politics to CBS

News, a presidential debate analyst for PBS, a contributing analyst for The Hotline,

National Journal's daily briefing on politics, and is currently on the faculty of The George

Washington University's Graduate School of Political Management." Mellman and

Wirthlin at 2 [DEV 2-Tab 5].

200 Richard Wirthlin is “Chairman of the Board of Wirthlin Worldwide, a strategic

opinion research firm he founded in 1969, which now is one of the top companies in its

field. Wirthlin is perhaps best known as President Reagan’s strategist and pollster. . . . .

Id. at 2-3. He is widely respected in the “field of social science research and one of this

country’s most respected political and business strategists.” Id. Wirthlin “was chief

strategist for two of the most sweeping presidential victories in the history of the United

States. In 1981 he was acclaimed Adman of the Year by Advertising Age for his role in

the 1980 campaign and in 2001 was one of four Republicans awarded American

University’s ‘outstanding contribution to campaign consulting.’ In the same year, he was

designated ‘Pollster of the Year’ by the American Association of Political Consultants.” 

Id. at 3. The Washington Post named Wirthlin “the prince of pollsters” and George

Gallup, Jr. said Wirthlin is “one of the very best at our craft.” Id. 

244

prominent pollsters: Mark Mellman199 and Richard Wirthlin200 ("Mellman and

Wirthlin Report").

252. The survey was conducted over a period of five days (August 28, 2002, through

September 1, 2002), and the pollsters made an average of 4.58 dialings per

telephone number in the sample set in order to ensure that the sample was

representative. See Mellman and Wirthlin Report at 22-23.

253. The study's contact rate was 38 percent, more than double the industry average of

15 percent. See Mellman and Wirthlin Report at 23.
245

254. The rate of refusal of the respondents who refused to be polled was within the

normal range for a random telephone survey conducted in the United States. See

Mellman and Wirthlin Report at 23.

255. The pollsters took several steps to avoid bias. See Mellman and Wirthlin Report at

24. See also Wirthlin Cross Exam. at 40 (explaining that the pollsters took steps to

avoid bias by randomly ordering the questions, "so that there is no sequence

developed where one question may, if always asked in the same order, affect[] the

second question.").

256. The statistical margin of sampling error, that is, the error due to sampling versus if

the pollsters talked to every American in the United States, is 2.7 percentage

points: the actual opinions of Americans will be within 2.7 percentage points of

those reported in the study 95 percent of the time. See Mellman and Wirthlin

Report at 22. All regions of the United States were represented in the study, based

on 2001 Current Population Survey results. Id. at 24.

257. No evidence has been presented to show that the methodology used by Mellman

and Wirthlin is improper or invalid. See generally Wirthlin Cross Exam.

(demonstrating that while plaintiffs generally dispute the wording of the questions,

they do not contest the validity of the sampling or methodology for conducting the

poll).

258. The principal finding of the Mellman and Wirthlin Report relating to whether an 
246

appearance of corruption arises out of large contributions to political parties is

that: "A significant majority of Americans believe that those who make large

contributions to political parties have a major impact on the decisions made by

federally elected officials." In addition, Mellman and Wirthlin find that many

Americans believe that the "views of these big contributors sometimes carry more

weight than do the views of constituents or the best interests of the country." 

Mellman and Wirthlin Report at 6.

259. The Mellman and Wirthlin Report established that 77 percent of Americans

believe that big contributions to political parties have at least some impact on

decisions made by the federal government. Fifty-five percent thought big

contributions had a great deal of impact; 23 percent thought it had some impact. 

Id.

260. The Mellman and Wirthlin Report established that 71 percent of Americans "think

that members of Congress sometimes decide how to vote on an issue based on

what big contributors to their political party want, even if it's not what most people

in their district want, or even if it's not what they think is best for the country." Id.

at 7.

261. According to the Mellman and Wirthlin Report, a “large majority (84%) think that

members of Congress will be more likely to listen to those who give money to their

political party in response to their solicitation for large donations.” Id. at 8.
247

262. According to the Mellman and Wirthlin Report, "[o]ver two-thirds of Americans

(68%) . . . think that big contributors to political parties sometimes block decisions

by the federal government that could improve people's everyday lives." Id. at 8.

263. Further, the Mellman and Wirthlin Report found that "about four in five

Americans think a Member of Congress would be likely to give special

consideration to the opinion of an individual, issue group, corporation, or labor

union who donated $50,000 or more to their political party (81%) or who paid for

$50,000 or more worth of political ads on the radio or TV (80%). By contrast,

only one in four Americans (24%) think that a member of Congress is likely to

give the opinion of someone like them special consideration." Id. at 9.

264. The Mellman and Wirthlin Report did not measure the public's understanding of

the campaign finance system, and did not ask if the respondents understood the

difference between nonfederal and federal donations. See Cross Exam. of Mellman

at 31-35. Mellman testifies that the purpose of the poll was to measure the

public’s perceptions. Id. at 31.

265. The public does not understand the distinction between federal and nonfederal

donations and is not aware of campaign finance regulations. See Ayres Expert

Report ¶ 8(a).

266. The Mellman and Wirthlin Report did not show, nor is there any evidence to

suggest, that a correlation exists in the public's mind between the amount of a
248

donor's contribution to a party and the amount of access and influence the donors

enjoys thereafter with officeholders, exists independent of the use to which the

money is used by parties.

267. Moreover, there is no evidence, either in the Mellman and Wirthlin Report or

elsewhere in the record, that the public would hold to the same conclusion if it

believed that no portion of nonfederal donations could be either given to any

federal candidate, or used by the parties to directly affect the election of any

federal candidates. 

268. Robert Shapiro, a professor at Columbia University, also analyzed public

perception of soft money contributions to political parties, by reviewing all

publicly available opinion survey data sources. See Shapiro Expert Report at 7-8.

[DEV 2, Tab 6]. The survey data Shapiro examined was comprised mostly of

telephone opinion polls. Id. at 8. Specifically, Shapiro focused on "public opinion

data based on responses to surveys that were fielded since 1990" to determine the

public's answers to several questions, including two questions which read: "To

what degree has the public perceived corruption in politics connected to the

influence of money and large campaign donations?" and "What have been the

public's perceptions and opinions toward the substantial political donations in the

form of soft money contributions to political parties?" Id. at 3, 8. According to

Shapiro, poll results show that the "public has opposed large unregulated soft
249

money contributions to political parties [and] that the public has been troubled by

large soft money donations." Id. at 13. In addition, Shapiro concluded that the

poll data showed "that a substantial proportion of the public has perceived

corruption in the political system, and that we have been losing ground." Id. at 11.

269. The defendants also submitted substantial, anecdotal evidence from former and

current Members of Congress that their constituents believe that these large

contributions to parties present an appearance of corruption. See Simpson Decl. ¶

14 (testifying that "[b]oth during and after my service in the Senate, I have seen

that citizens of both parties are as cynical about government as they have ever been

because of the corrupting effects of unlimited soft money donations"); Senator

Baucus, 144 S. Cong. Rec. S1041 (1998) (stating that "[p]eople tell me they think

that Congress cares more about 'fat cat special interests in Washington' than the

concerns of middle class families like theirs. Or they tell me they think the

political system is corrupt."); Senator Feingold, 146 Cong Rec. S4262 (2000)

(stating that "[t]he appearance of corruption.... We all know it's there. We hear it

from our constituents regularly. We see it in the press, we hear about it on the

news."); Letter from Representative Asa Hutchinson to RNC Chairman Nicholson

dated July 9, 1997, ODP0014-00003-4 (declining to support Nicholson’s proposed

campaign finance legislation because Hutchinson had to balance Nicholson’s

concerns “with a concern of my constituents which is that their influence in
250

politics is being diminished by the abuses of soft money . . . . If our party is unable

to enact meaningful campaign-finance reform while we’re in control of Congress,

then I believe this failure to act will result in more cynicism and create a growing

lack of confidence in our efforts.”); Senator Feingold stated that "[t]he appearance

of corruption is rampant in our system, and it touches every issue that comes

before us," 147 Cong. Rec. S2446 (Mar. 19, 2001), but also acknowledged that

soft money being used for generic campaign activity is less likely to create an

appearance of corruption, Feingold Dep. at 126-27; 147 Cong. Rec. S3248-49

(April 2, 2001) (Sen. Levin) ("[P]ermitting the appearance of corruption

undermines the very foundation of our democracy — the trust of people in the

system.").

270. The defendants have also submitted a substantial number of press reports which

suggest that large donations present the appearance of corruption. See, e.g., Jackie

Koszczuk, Soft Money Speaks Loudly on Capitol Hill This Season, Cong. Q., June

27, 1998, at 1736; Jill Abramson, Money Buys A Lot More Than Access, N.Y.

Times, Nov. 9, 1997, at 4; Jane Mayer, Inside the Money Machine, The New

Yorker, Feb. 3, 1997, at 32; Don Van Atta, Jr. and Jane Fritsch, $25,000 Buys

Donors 'Best Access to Congress', N.Y. Times, Jan. 27, 1997. at A1; Dan Morgan

and Juliet Eilperin, Campaign Gifts, Lobbying Built Enron's Power in Washington,

Wash. Post, December 25, 2001, at A01; R.G. Ratcliffe and Alan Bernstein,
251

Political Donors Have the Money, and Get the Time, Houston Chron., May 23,

1999, at 1; see also Rudman Decl. ¶ 11; Krasno and Sorauf Report at 19-20; Primo

Rebuttal at ¶ 7 (stating that "[t]he news media reinforces this view [that money

distorts the political process] by portraying the political process as being driven by

campaign contributions . . . ."). Senator Rudman has also commented on the

press's reporting that soft money donations create an appearance of corruption:

"Almost every day, the press reports on important public issues that are being

considered in Congress. Inevitably, the press draws a connection between an

outcome and the amount that interested companies have given in soft money . . . .

Even if a senator is supporting a position that helps an industry for reasons other

than that the industry gave millions to his party, it does not appear that way in the

public eye." Rudman Decl. ¶ 11.

271. Finally, the defendants have submitted no evidence that the public either believes,

or perceives, that federal officeholders are motivated by anything other than the

receipt of financial assistance for their own campaigns when they raise funds for

their respective parties.

As to BCRA's restrictions on noncandidate campaign expenditures, I find that

Issue Advocacy in Modern Campaigns

272. The record convincingly demonstrates that the overwhelming majority of modern
201 In MCFL, the Supreme Court held that the prohibition on corporations and labor

unions using general treasury funds on expenditures in connection with a federal election

was overbroad, narrowing the restriction to corporate and union spending on “express

advocacy.” MCFL, 479 U.S. at 249 (“We therefore hold that an expenditure must

constitute ‘express advocacy’ in order to be subject to the prohibition of § 441b.”). In

Buckley, the Supreme Court provided examples of express advocacy: “‘vote for,’ ‘elect,’

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” 

Buckley, 424 at 44 n.52. These examples have been referred to as the “magic words”

because if they are invoked by an organization, they trigger FECA’s limitations. See e.g.,

FEC v. Christian Action Network, 110 F.3d 1049, 1052-53 (4th Cir. 1997) (“[T]he court

declined to ‘strictly limit’ express advocacy to the ‘magic words’ of Buckley’s footnote

52”).

252

political advertisements do not use words of express advocacy,201 whether they are

financed by candidates, political parties, or other organizations. As a result of this

development, Congress found that FECA, as construed by the courts to only limit

independent expenditures containing express advocacy, as defined by Buckley, was

no longer relevant to modern political advertisement. See, e.g., 148 Cong. Rec.

S2117 (2002) (Senator James Jeffords) (“The ‘magic words’ standard created by

the Supreme Court in 1976 has been made useless by the political realities of

modern political advertising. Even in candidate advertisements, what many would

say are clearly advertisements made to convince a voter to support a particular

candidate, only 10 percent of the advertisements used the ‘magic words.’”).

Federal candidate ads appeared nearly 236,000 times in the top 75

media markets in 1998, 430,000 times in 2000. In 1998, just 4

percent of these spots used verbs like ‘vote for’, ‘elect’, or ‘defeat’;

in 2000, just 5 percent did. Including slogans like ‘Smith for

Congress,’ 10 percent of the candidate ads aired in 2000 would

qualify as electioneering using the magic words test. The remaining

90 percent could have been categorized as issue advocacy had a
202 In 1968, Bailey founded Bailey, Deardourff & Associates, which was among the

first national political consulting firms, working for Republican candidates for Governor,

Congress, Senate, and President. The firm’s clients included Gerald Ford’s Presidential

Campaign, and over fifty successful campaigns for governor or the United States Senate

in 17 states. Bailey Decl. ¶ 1 [DEV 6-Tab 2]. As campaign consultant, Bailey’s job was

“to plan the campaign and then create broadcast advertisements that would shape its

outcome.” Id. ¶ 2. In 2000, Bailey was among the first eight recipients of the American

University-Campaign Management Institute’s ‘Outstanding Contribution to Campaign

Consulting’ Award given to the consultants “who have best represented the ideals of the

profession and shown concern for the consequences of campaigns on public attitudes

about our democratic process.” Id. 

253

party or group sponsored them.

Krasno & Sorauf Expert Report at 53-54 [DEV 1-Tab 2] (citing Jonathan Krasno

& Kenneth Goldstein, “The Facts about Television Advertising and the

McCain-Feingold Bill,” (PS: Political Science and Politics, No. 2:207-212),

2002).

273. The absence of "magic words" does not impede the ability of media consultants to

create an electioneering message. "In fact, candidates rarely use the magic words

in their own ads.’” Magleby Expert Report at 15 [DEV 4-Tab 8]. Former Senator

Warren Rudman observed that “[m]any, if not most, campaign ads run by parties

and by candidates themselves never use . . . ‘magic words.’ It is unnecessary.”

Rudman Decl. ¶ 18 [DEV 8-Tab 34].

274. Political consultants clearly support the conclusion that modern political

advertisements rarely use the “magic words” to convey their message.

Republican Political Consultant Douglas L. Bailey 202
203 Strother is a political media consultant, and President and founder of

Strother/Duffy/Strother. Strother Decl. ¶ 1 [DEV 9-Tab 40]. He is also Chairman of the

Board of the American Association of Political Consultants, and last year served as its

President. Id. Since 1967, he has worked for more than 300 campaigns. Id. 

Representative clients at the presidential, congressional, and gubernatorial levels have

included Lloyd Bentsen, Paul Simon, Gary Hart, Bill Clinton, Al Gore, Mary Landrieu,

and Zell Miller. Id. In the last two decades alone, his firm has “helped elect candidates

in 44 states and five countries, including 13 Senators, 8 Governors, and scores of

Congress members. [His firm has] won more Democratic Primaries than any other firm.” 

Id.

254

In the modern world of 30 second political advertisements, it is

rarely advisable to use such clumsy words as “vote for” or “vote

against.” If I am designing an ad and want the conclusion to be the

number “20,” I would use the ad to count from 1 to 19. I would lead

the viewer to think “20,” but I would never say it. All advertising

professionals understand that the most effective advertising leads the

viewer to his or her own conclusion without forcing it down their

throat. This is especially true of political advertising, because people

are generally very skeptical of claims made by or about politicians.

 

The notion that ads intended to influence an election can easily be

separated from those that are not based upon the mere presence or

absence of particular words or phrases such as “vote for” is at best a

historical anachronism. 

Bailey Decl. ¶¶ 3-8 [DEV 6-Tab 2].

Democrat Political Media Consultant Raymond Strother203

[M]edia consultants prefer putting across electioneering messages

without using words such as “vote for.” Good media consultants

never tell people to vote for Senator X; rather, you make your case

and let the voters come to their own conclusions. In my experience,

it actually proves less effective to instruct viewers what you want

them to do. They have to come to their own conclusion. Americans

like to think they make up their own minds and determine their own

fate. Without even mentioning an upcoming election, the media

consultant can count on the electoral context and voters’ awareness

that the election is coming. Voters will themselves link your ad to
255

the upcoming election. When viewed months or years after the

election a particular ad might look like pure issue advocacy unrelated

to a federal election. However, during the election, political

ads–whether candidate ads, sham issue ads, true issue ads, positive

ads, negative ads or whatever–are each seen by voters as just one

more ingredient thrown into a big cajun stew. 

Strother Decl. ¶ 4 [DEV 9-Tab 40]; see also Strother Cross Exam. at 44

(observing that 90 percent of candidate advertisements Strother has put

together in his career have not used express advocacy).

The Distinction Between Candidate-Centered Advocacy and Pure Issue Advocacy Is

Not a Function of the Presence or Absence of the Buckley "Magic Words"

275. The presence or absence of "magic words," as defined in Buckley v. Valeo, does

not alone determine whether the advertisement was designed to, and will, support

or oppose a particular candidate. See Magleby Expert Report at 5 [DEV 4-Tab 8];

see also Krasno & Sorauf Expert Report at 58 [DEV 1-Tab 2] (“The magic words

test, however, does not distinguish between [candidate-oriented issue

advertisements and pure issue advertisements]; indeed it does not distinguish

between ads sponsored by candidates and any type of issue ad, or even between

political and commercial advertising. Whatever its utility might once have been,

this standard is now irrelevant to how political ads are designed.”).

276. Some current and former elected officials also believe that “magic words” no

longer help distinguish genuine issue advertisements from electioneering
256

advertisements. 147 Cong. Rec. S3072 (2001) (Senator Russ Feingold) (“People

didn’t need to hear the so-called magic words to know what these ads were really

all about.”); 147 Cong. Rec. S3036 (Senator John McCain) (“[W]e can

demonstrate that the Court’s definition of “express advocacy”–magic words–has

no real bearing in today’s world of campaign ads.”).

277. Indeed, Senator Carl Levin made the following statement on the floor of the

Senate in 1998:

To show the absurd state of the law, at least in some circuits, we can

just look at one of the 1996 televised ads that was paid for by the

League of Conservation Voters and which referred to House

Member Greg Ganske, a Republican Congressman from Iowa, who

was then up for reelection. This is the way the ad read:

It’s our land; our water. America’s environment must be protected. 

But in just 18 months, Congressman Ganske has voted 12 out of 12

times to weaken environmental protections. Congressman Ganske

even voted to let corporations continue releasing cancer-causing

pollutants into our air. Congressman Ganske voted for the big

corporations who lobbied these bills and gave him thousands of

dollars in contributions. Call Congressman Ganske. Tell him to

protect America’s environment. For our families. For our future.

The ad sponsor claimed that was an issue ad, an ad that discussed

issues rather than a candidate, and so could be paid for by unlimited

and undisclosed funds. If one word were changed, if instead of ‘Call

Congressman Ganske,’ the ad said, ‘Defeat Congressman Ganske,’ it

would clearly qualify as a candidate ad subject to contribution limits

and disclosure requirements. In the real world, that one word

difference doesn’t change the character or substance of that ad at all. 

Both versions unmistakably advocate the defeat of Congressman

Ganske.

144 Cong. Rec. S10073 (1998) (Senator Carl Levin) (advertisement text in italics);
204 After Bumpers retired from the Senate, he spent one year directing the Center

for Defense Information, a nonprofit think-tank based in Washington, D.C. Bumpers

Decl. ¶ 2. He currently practices law in Washington D.C. at the law firm Arent Fox

Kintner Plotkin & Kahn, PLLC. Id. ¶ 3.

257

see also Bloom Decl. ¶ 5 [DEV 6-Tab 7] (“In my experience in campaigns for

federal, state and local office, including my involvement in the television

advertising we ran in my race for Congress, no particular words of advocacy are

needed for an ad to influence the outcome of an election. Many so-called ‘issue

ads’ are run in order to affect election results.”).

278. In addition, former Senator Dale Bumpers testified:

Soft money also finds its way into our system through

so-called ‘issue advertisements’ sponsored by outside

organizations that mostly air right before an election. 

Organizations can run effective issue ads that benefit a

candidate without coordinating with that candidate. They have

experienced professionals analyze a race and reinforce what a

candidate is saying. These ads influence the outcome of

elections by simply stating “tell him [the opponent] to quit

doing this.” The “magic words” test is completely

inadequate; viewers get the message to vote against someone,

even though the ad may never explicitly say

“vote-against-him.”

Bumpers Decl. ¶ 26 [DEV 6-Tab 10];204 see also Chapin Decl. ¶ 7 [DEV 6-Tab 12]

(“Based on my experience in campaigns for federal and local office, including the

television advertising we ran in my races for County Chairman and Congress, I am

familiar with political campaign ads. No particular words of advocacy are needed

in order for an ad to influence the outcome of an election.”); see also Paul Dep. at
205 Shays has served in the House of Representatives since 1987 as a

Representative of the Fourth District of Connecticut. Shays Decl. ¶ 1 [DEV 8-Tab 35].

206 See supra Finding 274 n.203.

258

27-28 [JDT Vol. 25] (Plaintiff Congressman Ron Paul testified that the outside

group issue ads run in his 2000 Congressional campaign were intended to

influence the election.). Congressman Christopher Shays also testified:

Although the Supreme Court has identified a limited category

of “magic words” that make an advertisement a campaign

advertisement, my experience as a candidate and a Member of

the House is that this limited test is inadequate to identify

campaign ads. Campaign ads need not include phrases such

as “vote for,” “re-elect” or “vote against” to be effective

campaign tools, and the practice of large numbers of so-called

“issue ads” before an election proves it.

Shays Decl. ¶ 12 [DEV 8-Tab 35].205

279. Some political consultants believe that there is no difference between political

advertisements that contain words of express advocacy (i.e., "magic words") and

advertisements that are designed to influence federal elections but do not use the

“magic words” of Buckley.

Democrat Political Media Consultant Raymond Strother 206

Because it is so easy for consultants in my business to make ads that

will influence federal elections without triggering the need to use

hard dollars to pay for them, the difference between hard money and

soft money is a joke. If I want to use soft money to influence an

election, there is no real difference in what I do to create the ad. The

only thing that is different is the tag line at the end. From the point

of view of a media consultant, there is no real difference between

ending an advertisement with “Vote for Senator X” versus ending an
207 Senator Feingold, during his deposition indicated that he receives calls from

constituents in response to television advertisements. However, Senator Feingold was not

specifically asked if these advertisements were the type covered under Title II of BCRA. 

Feingold Dep. at 238-239 ("Q. . . . You mentioned ads, and I have shown you ads which

say call Senator so and so, contact Senator so and so. Your constituents sometimes do

call you and contact you, do they not? A. Yes, they do. Q. And they sometimes talk

about issues including abortion, right to life issues and other issues, do they not? A. Yes,

they do. Q. In your opinion, are they sometimes affected by advertisements that they have

seen on television? A. I'm sure they are.").

259

advertisement with “Tell Senator X to continue working hard for

America’s families.” The public simply does not differentiate

between ads that are otherwise identical, but contain these slightly

different tag lines at the very end.

Strother Decl. ¶¶ 3, 8, 11 [DEV 9-Tab 40].

Republican Political Consultant Rocky Pennington

Many soft money ads that avoid the magic words are clearly intended

to affect federal elections. Parties and interest groups would not

spend hundreds of thousands of dollars to runs [sic] these ads 15

days before an election if they were not trying to affect the result. 

These candidate-specific ads are not usually run the year before the

election or the week after. 

Pennington Decl. ¶ 10 [DEV 8-Tab 31]. 

207

Democrat Political Consultant Terry S. Beckett

I am aware of the idea that particular “magic words” might be

required in order for an advertisement to influence an election. 

However, in fact no particular words of advocacy are needed in order

for an ad to influence the outcome of an election. No list of such

words could be complete: if you list 50, savvy political actors will

find 100 more. For example, many so-called “issue ads” run by

parties and interest groups just before an election attack a candidate,

then end by supposedly urging the viewer to “tell” or “ask” the

candidate to stop being that way. These ads are almost never really

about issues. They are almost always election ads, designed to affect
208 Metaksa served as Chairman of the National Rifle Association Political Victory

Fund and as Executive Director of the NRA Institute for Legislative Action. She made

the statement above in her opening remarks to the American Association of Political

Consultants’ Fifth General Session on “Issue Advocacy.” INT 015987, Opening Remarks

at the American Ass’n of Political Consultants Fifth General Session on “Issue

Advocacy,” Jan. 17, 1997, at 2 [DEV 38-Tab 25]. During this litigation, NRA Executive

Vice President Wayne LaPierre testified that Ms. Metaksa is “someone who was

knowledgeable about NRA’s political strategies” and was someone who was “a reliable

and trustworthy employee of NRA.” LaPierre Dep. at 11 [JDT Vol. 14]. Plaintiffs have

not objected to Ms. Metaksa’s statement on hearsay grounds and given Mr. LaPierre’s

comments, I find it trustworthy and rely on it for purposes of these findings.

260

the election result. You can see this most clearly in the ones that

amount to personal attacks, or that criticize a candidate on several

unrelated “issues.” 

Beckett Decl. ¶ 8 [DEV 6-Tab 3].

Democrat Political Operative Joe Lamson

Based on my experience in managing many federal election

campaigns, I am familiar with campaign advertising. No particular

words of advocacy are needed in order for an advertisement to

influence the outcome of an election. When political parties and

interest groups run “issue ads” just before an election that say “call”

a candidate and tell her to do something, their real purpose is

typically not to enlighten the voters about some issue, but to

influence the result of the election, and these ads often do have that

effect. Parties and groups generally run these pre-election “issue

ads” only in places where the races are competitive. These “issue

ads” generally stop on the day of the election. For example, these

groups could run ads explaining Nancy Keenan’s position on the

issues after the November general election so that people could

discuss them over the Thanksgiving dinner table, but it doesn’t seem

to work that way.

Lamson Decl. ¶ 6 [DEV 7-Tab 26].

Former Chair of Plaintiff NRA Political Victory Fund Tanya K. Metaksa208
261

Today, there is erected a legal, regulatory wall between issue

advocacy and political advocacy. And the wall is built of the same

sturdy material as the emperor’s clothing.

Everyone sees it. No one believes it. It 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.

We engaged in issue advocacy in many locations around the country. 

Take Bloomington, Indiana, for example. Billboards in that city

read, 

“Congressman Hostettler is right.”

“Gun laws don’t take criminals off Bloomington’s streets.”

“Call 334-1111 and thank him for fighting crime by getting tough on

criminals.”

Guess what? We really hoped people would vote for the

Congressman, not just thank him. And people did. When we’re three

months away from an election, there’s not a dime’s worth of

difference between “thanking” elected officials and “electing” them.

INT 015987, Opening Remarks at the American Ass’n of Political Consultants

Fifth General Session on “Issue Advocacy,” Jan. 17, 1997, at 2 [DEV 38-Tab 25].

The Rise of "Issue Advocacy" Campaigns Funded by Corporate and Labor Union

General Treasuries

280. The Annenberg Center for Public Policy ("Annenberg Center") has been studying

"issue advocacy" since the early 1990s. See Annenberg Public Policy Center,

Issue Advocacy Advertising During the 1999-2000 Election Cycle (“Annenberg

Report 2001”) at 1 [DEV 38 Tab-22]. Based on their research, the Annenberg

Center concluded that “[o]ver the last three election cycles the numbers of ads,

groups, and dollars spent on issue advocacy has climbed.” Id.
209 The report the Annenberg Study produced following the 1997-98 election cycle

placed this estimate at between $275 million to $340 million. Annenberg Public Policy

Center, Issue Advocacy Advertising During the 1997-1998 Election Cycle (“Annenberg

Report 1998”) at 1 [DEV 6-Tab 6].

262

281. The Annenberg Center estimated that, during the 1996 election cycle, $135 million

to $150 million was spent on multiple broadcasts of about 100 advertisements. 

Annenberg Report 2001 at 1 [DEV 38-Tab 22]. In the next election cycle (1997-

98), the Annenberg Center found that 77 organizations aired 423 advertisements at

a cost of between $250 million and $340 million. Id.

209 In the 1999-2000 election

cycle, the Annenberg Center found that 130 groups spent over an estimated $500

million on 1,100 distinct advertisements. Id.

282. After studying "issue advocacy" over a seven year period, the Annenberg Study,

which was relied on by Congress in drafting BCRA, concluded inter alia that:

1) The amount of money spent on “issue advocacy” is rising rapidly.

2) Instead of creating the number of voices Buckley v. Valeo had

hoped, "issue advocacy" allowed groups such as the parties, business

and labor to gain a louder voice.

3) The distinction between "issue advocacy" and express advocacy

is a fiction.

4) "Issue advocacy" masks the identity of some key players and by so

doing, it deprives citizens of information about source of messages

which research tells us is a vital part of assessing message

credibility.

Annenberg Report 2001 at 1 [DEV 38-Tab 22]. As plaintiffs’ expert Raymond J.

La Raja stated, “‘Over the last three election cycles, the number of groups

sponsoring ads has exploded, and consumers often don’t know who these groups
263

are, who funds them, and whom they represent.’” La Raja Decl. ¶ 24(h) (quoting

Annenberg Report 2001 at 1).

283. The Annenberg Center estimated that in the 1999-2000 election cycle, more than

$509 million was spent on television and radio "issue advocacy." Annenberg

Report 2001 at 4-5 [DEV 38-Tab 22]. The Republican and Democratic parties

accounted for almost $162 million (31%) of this spending; Citizens for Better

Medicare, $65 million (13%); Coalition to Protect America’s Health Care, $30

million (6%); U.S. Chamber of Commerce, $25.5 million (5%); AFL-CIO, $21.1

million (4%); National Rifle Association, $20 million (4%); U.S. Term Limits, $20

million (4%). Id. These groups and the two parties accounted for two out of every

three (67%) dollars spent on issue ads in the 2000 cycle. Id. (noting that other

groups spent a combined $166.2 million (33%) on issue advocacy during the 1999-

2000 election cycle); see also La Raja Decl. ¶ 20(b) & fig. 10 (quoting Annenberg

data and noting that “[t]hese figures . . . closely match my own data on party-based

issue ads collected by examining financial reports filed with the FEC”).

284. Interest groups developed a strategy "by the early 1990s, and especially by 1996. . . 

to effectively communicate an electioneering message for or against a particular

candidate without using the magic words and thus avoid disclosure requirements,

contribution limits and source limits.” Magleby Expert Report at 10 [DEV 4-Tab

8]. Indeed, defendants' witness and political consultant Douglas L. Bailey noted
264

that it was not until the 1996 election cycle that corporations and labor unions

began to make heavy use of "issue advocacy" as a tool of electioneering. Bailey

Decl. ¶ 14 [DEV 6-Tab 2]. 

Explaining the Shift Toward "Issue Advocacy"

285. According to defense expert Magleby, the shift toward using "issue advocacy" can

be explained by three phenomena. “First, it permits groups and individuals to

avoid disclosure. Second, it allows them to avoid contribution limits. Third, it

permits some groups (such as corporations and labor unions) to spend from

generally prohibited sources.” Magleby Expert Report at 18-19 [DEV 4-Tab 8];

see also Krasno & Sorauf Expert Report at 50 [DEV 1-Tab 2] ("Avoiding FECA

allows advertisers to collect any sum of money from any source they can. 

Avoiding FECA allows advertisers to conduct their operations without disclosing

their activities to the public.”).

286. The corresponding rise in "issue advocacy" between the 1996 and 2000 election

cycles highlighted the fact that disclosure information relating to the organization

purchasing the advertisement was not available because the advertisement was not

subject to FECA’s restrictions. Magleby Expert Report at 18 [DEV 4-Tab 8]

(“The 1996, 1998 and 2000 election cycles all saw examples of groups who sought

to avoid accountability for their communications by pursuing an electioneering

advertising/election advocacy strategy rather than limiting their activities to
265

independent expenditures or other activities expressly permitted by the FECA.”).

287. Groups can raise larger amounts of money in a shorter time frame if they are not

bound by FECA’s contribution limitations. Magleby Expert Report at 19 [DEV 4-

Tab 8] (stating, for example, “groups like Citizens for Better Medicare,

Pharmaceutical Research and Manufacturers of America, NAACP National Voter

Fund, and NARAL, were able to far exceed what individuals, PACs or parties

could do through hard money contributions.”).

Candidate-Centered "Issue Advertisements" That Do Not Contain Words of

Express Advocacy Are Distinguishable from “Genuine” Issue Advertisements

288. "Issue advertisements," according to one study, fall into three categories:

candidate-centered, legislation-centered, and general image-centered. Annenberg

Report 2001 at 13 [DEV 38-Tab 22]. “Candidate-centered advertisements make a

case for or against a candidate but do so without the use of the ten words

delineated in Buckley.” Id. (noting that these advertisements “usually present a

candidate in a favorable or unfavorable light and then urge the audience to contact

the candidate and tell him or her to support the sponsoring organization’s policy

position.”). Legislation-centered advertisements “seek to mobilize constituents or

policy makers in support of or in opposition to pending legislation or regulatory

policy.” Id. (noting that these advertisements usually mention specific, pending

legislation). Finally, general image-centered advertisements are “broadly written
266

to enhance the visibility of an organization or its issue positions, but are not tied

directly to a pending legislative or regulatory issue.” Id.

289. Other commentators separate "issue advertisements" into two types of categories: 

candidate-centered (also called electioneering) issue advertisements and genuine

issue advertisements. Advertisements designed to genuinely influence debate over

a particular issue are known as “true” or “genuine” issue advertisements, while

those issue advertisements designed to influence a federal elections are known as

“electioneering” or “candidate-centered” issue advertisements. Krasno & Sorauf

Expert Report at 65 [DEV 1-Tab 2] (“Advertising data show that there are two

distinct types of issue ads, those that are basically candidate-oriented and

electioneering in nature, and those that only present or urge action on an issue. 

The former are nearly identical in format, structure, and timing to ads produced by

candidates, while the latter bear little or no resemblance to electioneering.”).

290. Defendant's expert Magleby testified, in effect, that although mentioning a

candidate's name is an indicia of an electioneering advertisement, it is not per se

determinative, as some advertisements that refer to a candidate by name are

nonetheless genuine issue advocacy. Defense expert David Magleby wrote:

A number of indicia make clear that the ads run by individuals and

interest groups are in reality electioneering ads that are meant to

influence, and do influence, elections: These electioneering ads

generally name a candidate, run close in time to the election, target

the named candidate’s district, are run primarily in competitive

races, and generally track the themes in the featured candidate’s
267

campaign.

Magleby Expert Report at 6 [DEV 4-Tab 8] (emphasis added). Later, when

questioned about whether the "presence of the name or likeness of a candidate [in

an ad] preclude[s] it from being treated a as . . . genuine issue" advocacy in his

study, Magleby stated that he and his team of academics would "presume [an ad]

was electioneering" if it referred to a candidate by name or by image and was aired

"within the district or state in which the person named or whose image is

represented is the incumbent" and "that person is running for office." Magleby

Cross Exam. at 79-80. Upon further questioning, however, it became clear that the

type of reference to a candidate to which Magleby was referring was not the type

exclusively contained in a call-to-action line at the end of an advertisement, but

rather one or more references to the candidate in the "body of the ad" in connection

with either what the candidate has said about an issue, or how the candidate has

voted on an issue. See Magleby Cross Exam. at 103-105. 

Q. Didn't you tell me a few minutes ago that there is no such thing as an

election issue ad that—well, first of all, haven't you told me that a genuine

issue ad, to be characterized as a genuine issue ad, you cannot mention a

name of a candidate? A. No. In the context of the ad, not the call lines and

so forth. It doesn't mention how [the candidate] voted. It doesn't represent

what [the candidate] has said about the issue. The body of the ad has no

referent to [the candidate] whatsoever. The only referent to [the candidate]

is the call line.

291. Defendants' political consultant Raymond Strother testifies, in effect, that it is very

difficult to determine the objective behind an advertisement, particularly when that
268

advertisement is viewed outside the context and time of the election:

None of us, without understanding the context and the time, can tell you

what a sham ad is and a nonsham ad. You can't do that by looking at

pictures or even looking at the ads. When I was teaching at Harvard, I

brought Doug Bailey up to lecture my class. He showed series of

commercials, and he said, “Okay, which is the best commercial,” and

everybody voted. “The worse commercial,” and everybody voted. He said,

“You’re all wrong. There is no best or worse commercial because none of

you are qualified to judge these commercials because you don’t know the

context in which they were run or the problems they were to solve.” When

I look at storyboards, I have no way of knowing if they’re fake, real, et

cetera, because I don't know the time— I don’t know anything about them.

Strother Cross Exam. at 90-91.

292. While electioneering issue advertisements almost always refer to specific

candidates by name, especially those seeking to influence an officeholder's

upcoming vote on pending legislation, genuine issue advertisements are less likely

to refer to a federal candidate by name. 

Raymond Strother testified:

In addition to our work for candidates, my firm has also done some

(though limited) advertising work for the political parties and for

third parties. I would characterize these ads as falling into two

distinct categories: true issue ads and electioneering or “sham” issue

ads.

True issue advocacy does exist. Over the years, I have

designed issue advertising campaigns for, among other issue,

tightening seat belt laws, education reform, and the removal

of the confederate battle cross from the Mississippi state flag. 

The education reform ads promoted policies such as reducing

class sizes and loosening the protections afforded by tenure so

that bad teachers could be more easily fired. These ads were

run all across the South; and their sole purpose was simply to
210 Moreover, Mr. Strother went on to characterize an interest group's need to refer

to a candidate in a legislation-centered advertisement during that time as a "loophole,"

through which interest groups would evade campaign laws. Id. at 119-120. Mr. Strother

candidly revealed his personal belief that "independent groups" should be taken "out of

our election process" because they "taint it with our money." Id. at 120-21. He observes:

269

educate the public. In Mississippi, my client wanted to

change attitudes about the confederate cross on the flag, and

explain how it was holding back the state economically. 

These advertisements were not made to elect or defeat

anyone. 

These true issue ads did not mention any candidates by name. 

Indeed, there is usually no reason to mention a candidate’s

name unless the point is to influence an election.

Strother Decl. ¶¶ 5-7 [DEV 9-Tab 40]. During Strother’s cross examination, he

candidly admitted that during the course of his 35 year career, less than 10 percent

of his work was for issue organizations as opposed to candidates, Strother Cross

Exam. at 48 [JDT Vol. 15], and that he had never spent much time working for an

ideological organization. Id. at 56-59. Indeed, he admitted on cross examination

that he did not think he had "ever advised a client who wanted to run an

advertisement campaign of some kind that spoke to pending legislation before a

sitting legislature." Strother Cross Exam. at 119.

293. Political consultant Raymond Strother, further acknowledged when questioned

regarding advertisements that specifically encourage voters to call their legislators

regarding pending legislation that a candidate's name would be mentioned in the

context of this type of advertisement.210
Q. What I'm getting at here is just that there is a possibility, isn't there, that

there will be pending legislation, in a period immediately before a federal

election, where a group would like to run a campaign targeted at the

legislation and not at the election. But, in order for them to do that, they

have to refer to the politician who is also a candidate. Isn't that true? A. I

think it's a great loophole. Q. Have you thought about this issue before

today's cross examination? A. In the context of what I do for a living, you

think about things like that, sure. Q. Given that you've never advised a

client who has had a legislative initiative that they were trying to oppose or

support, have you given concrete thought to the specific problem that, when

there's a legislative initiative pending right before an election issue groups

need to refer to the candidates, because they are also the office holders, in

advocating for or against that pending legislation? A. There are a lot of

ways I can look at that considering my opinion on the First Amendment, et

cetera. I would like to see those groups out of our of election process. Q. 

Why is that? A. Because I think they taint it with their money. I think

they can come in and overwhelm an election. I give you the example of

somebody sending $1,000 and someone else comes in and spends $1

million on the other side. No matter what you want to call it, they have

tainted that election. They have influenced that election. They are going to

win that election. I don't care if you call it issue advocacy or what you call

it. They're going to overwhelm their opponent with the shear volume of

what they're doing. I would rather see these independent groups stay out of

our elections completely. I wish there was a law that would keep them from

interfering, and I wish there was a law that would keep these night riders,

which I would call the Triad and people like that, out of our elections. They

sweep in with no address but a fax machine, and spread anti-Semitism and

then leave and hide. I think it's insidious. I think there ought to be a law

against it. I think candidates should run their own ads. Their names should

be on the bottom of them. They should spend their own money. If we have

to, let's raise the limit so they can raise money, appreciable money.

270

Q. Have you ever advised a client who wanted to run an advertisement

campaign of some kind that spoke to pending legislation before a sitting

legislature? A. I don't think so, but I could be wrong. Maybe my memory

isn't good, but I don't think so. Q. Do you have any reason to believe, if

you were to do that, that you would not want to run advertisements that
271

specifically encourage the voters to call their member and to tell them

which way they should vote on that pending legislative initiative? A. Yes,

there's a good chance we would say, "Call Candidate X and let your views

be known."

Strother Cross Exam. at 119. See also Huard Decl. ¶ 12 ("There are many reasons

that an issue ad may need to refer to the name of an elected official or candidate. 

Many bills are identified with particular sponsors and may be known by the

sponsors' names. Also, both incumbents and candidates may be prominent people

whose support or opposition to a bill or policy may have important persuasive

effect. . . . Also, if an issue ad is used to explain why a legislative position of a

particular Member of Congress is good for his or her district or state, the member

generally must be mentioned. The same is true if the purpose of the ad may be to

induce viewers to contact the Member and communicate a policy position.")

(emphasis added); Mitchell Decl. ¶ 11 (stating that "[t]he express or implied urging

of viewers or listeners to contact the policymaker regarding [an] issue is . . .

especially effective by showing them how they can personally impact the issue

debate in question.").

294. Political consultant Doug Bailey testifies: 

In addition to the work we did for candidates at Bailey, Deardourff,

we also did political ads for political parties and issue groups. When

we were creating true issue ads (e.g, for ballot initiatives or more

general issues such as handgun control), and when we were creating

true party building ads, it was never necessary for us to reference

specific candidates for federal office in order to create effective ads. 

For instance, we created a serious [sic] of ads opposing a gambling
272

referendum in Florida which made no reference to any candidates. 

We were successful in conveying our message, and the referendum

failed two to one.

Bailey Decl. ¶¶ 9-11 [DEV 6-Tab 2] (emphasis added).

295. In contrast, expert testimony in the record also indicated that candidate-centered

issue advertisements almost always mention the name of the federal candidate. 

Krasno & Sorauf Expert Report at 55-56 (“The most obvious characteristic shared

by candidate ads and candidate-oriented issue ads is their emphasis on candidates.

Candidate names appear in virtually all of these spots, with candidates most likely

to identify themselves in their ads and candidate-oriented issue ads most likely to

identify the opposing candidate (in some pejorative way).").

The Use of Issue Advocacy by Organizations For Electioneering Purposes

296. Defense experts Krasno and Sorauf stated:

Many of [the sponsors of issue advocacy designed to influence

federal elections] have been frank about their intent to influence

elections. For example, the AFL-CIO in the first issue ad campaign

in House elections in 1996 acknowledged its intent to help

Democratic candidates, and its results were measured accordingly. 

The Club for Growth, a conservative Republican group, bluntly

discusses its electioneering activities on its website; they include

direct contributions, bundled contributions, and issue ads. The goals

of the parties, especially in presidential elections where candidates

and their agents have been intimately involved in planning and

paying for their party’s ads, can hardly be doubted. Survey results

show that citizens overwhelmingly view these advertisements as

intended to influence their support or opposition to particular federal

candidates.
273

Krasno & Sorauf Expert Report at 65 [DEV 1-Tab 2]. 

297. Defense expert Magleby explains in his expert report that both labor unions and

corporations engaged in extensive electioneering communications during the 1996

election cycle. 

The 1996 initiative by labor into unregulated and unlimited electioneering

communications was substantial. The AFL-CIO spent a reported $35

million dollars, much of it on television, aimed at defeating 105 members of

Congress, including 32 heavily targeted Republican freshmen. Labor

broadcast television commercials in forty districts, distributed over 11.5

million voter guides in twenty-four districts and ran radio ads in many

others. The labor campaign triggered a complaint to the Federal Election

Commission by the National Republican Congressional Committee, which

charged that when the AFL-CIO's ads are "heard, read, and seen" as a

whole "a reasonable person can only view them as advocating the defeat of

a clearly identified candidate in the 1996 Congressional election." See In

the Matter of AFL-CIO Project '95 (complaint filed with the Federal

Election Commission Feb. 13, 1996).

The business community responded to this major effort by labor with their

own unlimited and undisclosed communications, again avoiding any of the

magic words. Partners in the business response were the National

Federation of Independent Business (NFIB), U.S. Chamber of Commerce,

the National Association of Wholesaler-Distributors, the National

Restaurant Association and the National Association of Manufacturers. 

Their group, called the “Coalition–Americans Working for Real Change,”

was active in thirty-seven House races, spent an estimated $5 million on

over thirteen thousand television and radio commercials, and mailed over

two million letters mainly in support of Republicans, to owners of small

business. Others using this tactic in 1996 included Triad Management

Services. The activity of Triad Management Services is documented at

Center for Public Integrity, "The 'Black Hole' Groups," The Public-I, at

<www.public-i.org/watch_04_033000.htm>. 

Magleby Expert Report at 10 n.7 [DEV 4-Tab 8] (citations omitted); see also

Mitchell Dep. at 96-97 [JDT Vol. 23] (stating that in 1996, in the 60 days before
274

the election, in terms of dollars spent by the AFL-CIO on broadcast advertising,

the substantial majority of that money was spent on ads that mentioned members of

the House of Representatives).

298. Evidence presented in the record demonstrates that electioneering advocacy is, at

times, a consideration of the AFL-CIO. For example:

1) Mitchell testified that after Congress adjourned on October 3, 1996, the

AFL-CIO discontinued its broadcast advertisements “aimed at immediately

pending legislative issues.” Mitchell Decl. ¶ 42 [PCS 6]. The AFL-CIO

then began to run “electronic voter guides” which compared the positions of

congressional candidates on various issues. Id.; see also FEC MUR No.

4291, General Counsel’s Report, June 9, 2000, at 6, INT003838 [DEV

52-Tab 3].

2) A September 18, 1996, memorandum from a polling firm analyzed the

likely impact of five issue advertisements in terms of their likely effect on

voters. Memorandum from Guy Molyneux and Molly O’Rourke of the

polling firm Peter D. Hart Research Associates, Inc., to the AFL-CIO’s

Special Assistant for Public Affairs, Denise Mitchell, “Ad Targeting” (Sept.

18, 1996), AFL-CIO 001614–16 [DEV 124] (“[The advertisement] Taxes

appears to be the single strongest spot, in terms of reaching the widest

range of voters and affecting people’s impression of the incumbent’s Issue

position. It should especially be directed to younger voters. [The

advertisement] Kids is also very strong, and again should be directed to

young people. [The advertisements] Medicare, Homes, and Retire are most

effective with older audiences. If you can only run 4 spots, [the

advertisement] Retire is probably the one to drop.”) (emphasis added); see

also Memorandum from Geoff Garin and Guy Molyneux of Peter D. Hart

Research Associates, Inc. to Denise Mitchell, “AFL-CIO Mall Intercepts

Survey” (Sept. 13, 1996), AFL-CIO 001582-84 [DEV 124] (Mall Intercept

Survey of individuals’ reactions to these advertisements including how the

advertisements made the respondents feel about fictitious congressman’s

position on each issue); see also Mitchell Cross Exam. at 66-75 [JDT Vol.

23]. But see Proposed Findings of Fact of the AFL-CIO and AFL-CIO

COPE PCC ¶ 19 (“[t]he selection of these subjects [for its broadcast

advertising campaign between 1995 and 2001] was not motivated by
275

partisan political considerations”); Mitchell Decl. ¶ 70 [6 PCS] (“[The

indirect effect on election outcomes] has never been the point of our

broadcast advertising program, within or outside the 30-and 60-day

periods.”).

3) On March 29, 1996, Mitchell received a memorandum from a campaign

consultant who analyzed political media consultants for the AFL-CIO. The

memorandum stated:

Political campaigns are superheated environments where the

objective is not, always, to make the best looking spot. The

objective is to communicate with the persuadables at the time they

are making their decision. Being able to pivot the entire campaign at

exactly the right time is the real talent of a media consulting firm. 

Consequently, there is little reward for great spots.

No one knows better than you how consuming this can be. . . . 

[These advertisements can be done], but you must understand

that you will be asking these political consultants to do it

under rules they have never had to follow before. . . .

What [all of these firms can do] is manage the political

message in a volatile environment.

Memorandum from Joe Cowart of Joseph Cowart Campaign Consulting to

Denise Mitchell, “Political Media Consultants” (Mar. 29, 1996), AFL-CIO

001702–04 [DEV 124]. But see Proposed Findings of Fact of the AFL-CIO

and AFL-CIO COPE PCC ¶ 19 (“[t]he selection of these subjects [for its

broadcast advertising campaign between 1995 and 2001] was not motivated

by partisan political considerations”); Mitchell Decl. ¶ 70 [6 PCS] (“[The

indirect effect on election outcomes] has never been the point of our

broadcast advertising program, within or outside the 30-and 60-day

periods.”).

4) An October 9, 1996, internal memorandum from the AFL-CIO’s Brian

Weeks to AFL-CIO’s Mike Klein discussed where media buys might be

placed to help Dick Durbin in his Illinois Senate race, based on Mr.

Durbin’s lack of resources to air advertisements in certain markets. 

Memorandum from Brian Weeks to Mike Klein, “Electronic Buy for

Illinois Senator” (Oct. 9, 1996), AFL-CIO 005244 [DEV 125]. But see

Proposed Findings of Fact of the AFL-CIO and AFL-CIO COPE PCC ¶ 19

(“[t]he selection of these subjects [for its broadcast advertising campaign
276

between 1995 and 2001] was not motivated by partisan political

considerations”); Mitchell Decl. ¶ 70 [6 PCS] (“[The indirect effect on

election outcomes] has never been the point of our broadcast advertising

program, within or outside the 30-and 60-day periods.”).

5) Denise Mitchell indicated that in 1996, in the 60 days before the election,

in terms of dollars spent by the AFL-CIO on broadcast advertising, the

substantial majority of that money was spent on ads that mentioned

members of the House of Representatives. Mitchell Dep. at 96-97 [JDT

Vol. 23].

299. Bruce Josten, Executive Vice President for Government Affairs for the U.S.

Chamber of Commerce, testified repeatedly that the purpose of the electioneering

communications aired during the 1996 federal election was not to influence the

election of any federal candidate, but to respond to attack ads paid for by the AFLCIO and organized by its president, Mr. John Sweeney. Mr. Josten explained that

there "were TV markets where John Sweeney ran an ad accusing a member of

Congress about their votes on the issues that I mentioned earlier, and in the spring

he started running ads that were not true, and we would follow him" with

television ads paid for by the Coalition. Josten Cross Exam. at 44. According to

Mr. Josten, the AFL-CIO ads attacked Members of Congress who had supported

pro-business initiatives and legislation favored by the Coalition. "My objective was

to knock down impressions that Mr. Sweeney and his advertisers and campaigns

were trying to undertake and express our viewpoints exactly the opposite of that

and let the viewers make their own decision about that dialogue that was being

imposed on them." Id. at 88. See also Proposed Findings of Fact of Chamber,
277

NAM, Associated Builders and Contractors, et. al. ¶ 24 (“Defendants’ assertion

that The Coalition’s 1996 activities show that preelection issue ads are merely

candidate ads in disguise is mistaken. Participants in The Coalition were

unanimous that its ads were intended to respond to issue ads being run by the AFLCIO.”).

300. There is other probative evidence presented in the record, however, that

influencing the elections of federal candidates was also a consideration for the

U.S. Chamber of Commerce when crafting "issue advertisements."

In 1996, the Coalition sought proposals from advertising firms for a

“campaign to re-elect a pro-business Congress.” TC00698 [DEV 121]. 

Media consultant Alex Castellanos of National Media, Inc. opened his

proposal to the Coalition by stating, “Thank you for the opportunity to

present two 30 second television and one 60 second radio scripts, as

requested, to your campaign to re-elect a pro-business Congress.” Id.; 

The Coalition commissioned firms to conduct polls and focus groups to

measure voter responses to their advertisements. AV0024-40, 0046-47,

0060-64, 0106-118, 0139-41 [DEV 121]. The Coalition retained two

polling organizations in 1996, the Tarrance Group and American

Viewpoint, to test whether specific Coalition and AFL-CIO advertisements

would make participants more or less likely to vote for particular federal

candidates. FEC MUR No. 4624, General Counsel’s Report, April 20,

2001, at 22-23 [DEV 53-Tab 6]; Josten Dep. at 68-114 [JDT Vol. 12]. One

firm surveyed “voter attitudes nationwide,” TC 00513-37 [DEV 121], and

another survey tested possible Coalition ads on focus groups, including one

of “Swing Voters.” AV0139-41, AV0037-40 [DEV 121].

A June 28, 1996, Tarrance Group memorandum to the Coalition stated that

“The net result among swing voters in Cleveland was that 25% of

participants were moved closer to voting for a Republican candidate for

Congress and about half of the participants were moved against national

labor leaders. In other words, the response ads not only leveled the playing
278

field, but put some points on the board for Republican candidates as well.” 

AV139 [DEV 121] (stating that Republican Members of Congress are

“currently under attack by AFL-CIO advertising” and are “outgunned and

outclassed” and if “targeted Republicans ever hope to be operating on an

even playing field during the 1996 election, it will require that an outside

voice come to their defense.”).

A July 12, 1996, memorandum to the Coalition from American Viewpoint

on “Key Findings of the Pre-Test in Des Moines Media Market of Iowa 4”

concludes that Congressman “Greg Ganske is in deep trouble in the Des

Moines Market,” stating that “this is one of the most challenging districts

that could have been chosen to assess the impact of your advertising. . . . If

advertising can move numbers in this district, it should be effective in most

other districts. Voters have not yet focused on the union’s campaign as only

25% has seen the commercials. As a result, there is still time to reach them

with a substantial buy.” Memorandum from Gary Ferguson to the Coalition

Steering Committee, “Key Findings of the Pre-Test in the Des Moines

Market of Iowa 4” (July 12, 1996), NAW0002, 05 [DEV 121].

In late 1996, the Coalition commissioned the Tarrance Group to conduct a

detailed post-election analysis. The Tarrance Group, Coalition

Post-Election Survey Analysis, NAM0206-27, at NAM0213 [DEV 121]. 

The Tarrance Group reported:

The Coalition commissioned this research to assess the impact of

their two-month advertising campaign and its relative effect on

voters in the face of the very aggressive, year-long campaign

sponsored by the AFL-CIO. Given that four of the six Republican

candidates tested in this research won their respective races, one

could conclude that the Coalition’s efforts were a success–as they

were in the vast majority of the targeted districts in which the

Coalition was involved. 

301. There is substantial evidence in the record which shows that candidate advocacy

was also a consideration for Citizens for Better Medicare ("CBM"), an

organization that was primarily financed by major drug companies and sponsored

by PhRMA, an industry trade association. Ryan Dep. at 13 [JDT Vol. 27] (“We
279

solicited funding from the pharmaceutical companies to underwrite our efforts.”);

id. at 10-11 (“PHRMA was really the leading organization to organize and fund

CBM.”); PH 0379 [DEV 128-Tab 2]; CBM 0029 [DEV 128-Tab 1] (tally of

donations from major drug companies to CBM in FY 2001, totaling

$39,586,892.32). CBM describes itself as “a grassroots organization representing

the interests of patients, seniors, disabled Americans, small businesses,

pharmaceutical research companies and many others concerned with Medicare

reform.” According to the Annenberg Report, CBM spent $65 million on

broadcast advocacy in the 60 days prior to the 2000 general election. Annenberg

Report 2001 at 4, 20-22 [DEV 38-Tab 22]. There is substantial evidence in the

record that this advocacy was candidate-centered. Alex Castellanos, a political

consultant with National Media, testified that CBM advertisements often

mentioned Members’ names. Castellanos Dep. at 63–66; see also Ryan Dep. at

68–72, 79–85. Timothy Ryan, former executive director of CBM, testified that

much of CBM’s ad strategy leading up to the 2000 election was aimed at

supporting candidates attacked in AFL-CIO advertising. Ryan Dep. at 68-72;

Castellanos Dep. at 63-66.

302. The NRA’s media consultant noted that the first objective of its advertising

campaign was to “influence outcome of presidential election and other key

congressional seats in 10 ‘battle ground’ states.” McQueen Cross Exam. Exhibit
280

2, NRA-ACK 17913-15 [JDT Vol. 22].

303. According to its mission statement, the Club for Growth “is primarily dedicated to

promoting the election of pro-growth, pro-freedom candidates through political

contributions and issue advocacy campaigns.” CFG 000217 [DEV 130-Tab 5]. In

a brochure soliciting donations, the Club for Growth noted that “Before the

elections, the Club plans to invest $1 million in television advertising in key

congressional districts to advance our pro-growth issues. This is a tactic the

unions have used so effectively against pro-growth candidates. These issue

advocacy campaigns can make all the difference in tight races.” CFG 000223

[DEV 130-Tab 5]; cf. NRW-02814 [DEV 129-Tab 2] (January 2, 2001,

fundraising letter from the National Right to Work Committee noted that it had run

“more than 1,000 television ads in Virginia, Nevada, Florida and Nebraska shining

a spotlight on the differences between the candidates in those states on Right to

Work”).

304. More than two-dozen organizations, including “political parties, labor unions,

trade associations and business, ideological and single-issue groups” spent an

estimated $135 million to $150 million worth of "issue advertisements" during the

1995-96 campaign, compared to the $400 million spent on advertising by the

federal candidates running for office. See Annenberg Report 1997 at 3 [DEV 38

Tab-21]. Almost 86.9 percent of these advertisements mentioned a candidate for
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office or public official by name. Id. at 8. “Most” of the groups running these

advertisements “declined to make known the identities of their donors.” Id. at 4.

305. The Annenberg Center reported in 1998 that at least 77 groups ran issue

advertisements during the 1997-1998 election cycle costing between $275 and

$340 million.” Annenberg Report 1998 at 1 [DEV 66-Tab 6]. Overall, 53.4

percent of these advertisements mentioned candidates by name, although 80.1

percent of those advertisements run in the final two months of the campaign

mentioned candidates. Id.

306. The Annenberg Center further finds that during the 1999-2000 election cycle 130

groups aired 1,100 distinct advertisements, at an estimated cost of over $500

million. Annenberg Report 2001 at 1 [DEV 38-Tab 22]. The report found that 60

percent of distinct radio and television issue advertisements (689 out of 1,139)

aired from January 1, 1999, to November 7, 2000, were broadcast for the first time

during the final two months of the election cycle. Id. at 12. In addition, 73 percent

of all the distinct advertisements mentioned a candidate. Id. at 14. In terms of

television advertisements, the closer the advertisement was aired to election day,

the more likely it contained a candidate mention. Id. at 15. Between March 8 and

August 31, 2000, candidates were mentioned in 72 percent of the television issue

advertisements aired. Id. After August, 95 percent of the television commercials

broadcast mentioned a candidate. Id. The report found that during the 2000
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election cycle, 89 percent of unique advertisements were “candidate-centered,”

meaning they made “a case for or against a candidate” without using express

advocacy. Id. at 13, 14.

Electioneering Advertisements Have Been Run About Issues 

In Which the Group Running Them Has No Particular Interest

307. Candidate-centered issue advertisements, designed to directly affect federal

elections but not employing the "magic words" of express advocacy, have been run

about issues not pending before Congress. See Chapin Decl. ¶ 13 [DEV 6-Tab 12]

(testifying that “[t]he Florida Women’s Vote project of EMILY’s List also ran a

television ad in the [2000 Florida Eighth district Congressional] campaign[,] which

as I recall was run in the two months prior to the general election[.] The ad praises

my record on gun safety and ends with the line: ‘Tell Linda Chapin to continue

fighting.’ This ad is clearly intended to influence the election result. Based on my

observations, EMILY’s List is not particularly interested in gun control issues. 

However, they are interested in supporting pro-choice female candidates like me,

and this ad serves that purpose.”). The Associated Builders and Contractors

("ABC") have also run advertisements that discuss issues that are not of concern to

its members. See Monroe Dep. at 65-67, 90-91 [JDT Vol. 23] (answering a

question regarding advertisements run by the Associated Builders and Contractors

which discussed penalties for child molesters, Monroe stated "no, [stronger
283

penalties for child molesters] is not a particular concern to the general public of

contractors or general group of contractors.” Id. at 91; but see Proposed Findings

of Fact of Chamber, NAM, Associated Builders and Contractors, et. al. ¶ 26 (“In

fact, ABC’s witness explained that the cited ABC ads [that Defendants assert

address subjects distant from the policy concerns of the ABC] reflected public

policy concerns of ABC’s membership.”).

308. During the 2000 election cycle, the Club for Growth gave $20,000 to the American

Conservative Union to support an issue advertisement which discussed Senate

candidate Hillary Clinton’s residency in New York. Keating Dep. at 59 [JDT Vol.

12] (“Q. Whether or not Hillary Clinton is a resident of New York State really

doesn’t have anything to do with the Club for Growth’s interest in pro-growth

conservative Republican elected officials, does it? A. It doesn’t seem to directly,

no.”).

The Buying Time Studies

309. The Brennan Center for Justice at New York University Law School (“Brennan

Center”) produced two studies entitled Buying Time 1998 and Buying Time 2000

which examined television advertising during the 1998 and 2000 election cycles. 

See BT 1998; BT 2000. Both Buying Time studies were funded by the Pew

Charitable Trust. See BT 1998; BT 2000. The Brennan Center is “primarily a law
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firm that also does research on a variety of social science issues that includes

campaign finance along with criminal justice and other electoral issues and poverty

issues.” Holman Dep. at 10. The Brennan Center was also involved in the crafting

of BCRA and providing analysis of issues being debated in Congress to legislators,

the media, and the public. Id. at 11. Representatives of the Brennan Center

testified in favor of the McCain-Feingold bill, id. at 22, and during Senate debate

on the legislation, Senators cited to Buying Time data and Brennan Center

analyses. Holman Dep. Exhibit 3 at 2 [JDT Vol. 10].

310. While the Brennan Center’s funding proposal for Buying Time 1998 states that the

study had an academic purpose, evidence in the record demonstrates that the

primary purpose was “to fuel a continuous and multi-faceted campaign to propel

reform forward.” Holman Dep. Exhibit 4 at 2 [JDT Vol. 10]. The proposal

reveals that the study was part of a larger strategy to overcome the “obstacles to

reform,” and notes that the first step in achieving the goal was “to develop a

reliable source of information on the nature of the problem.” Id. at 7. The study

had two phases, and it would not even proceed to the second phase if it did not

"provide a sufficiently powerful boost to the reform movement.” Id. at 6; Krasno

Cross Exam. Exhibit 4 at 1, 3, 6 [JDT Vol. 14] (explaining that the first phase was

to acquire data "and use it to develop a strategy for responding to the threat posed

by issue advocacy,” and the second phase was to "create policy recommendations
285

and reports, as well as . . . publiciz[ing] these activities on Capitol Hill and

beyond”).

311. In April or May of 2000, Dr. Kenneth Goldstein of the University of Wisconsin,

who had worked on the data set for Buying Time 1998, indicated in a request to the

Pew Center for another grant that the purpose of the Buying Time studies was to

further campaign finance reform. Goldstein Dep. (Vol. 1) at 29 [JDT Vol. 8]. 

Goldstein's request stated that he was “happy to work with others in the policy

community to make sure that our study is designed and executed in ways that help

move the reform ball forward.” Goldstein Dep. (Vol. 1) at 37 & Exhibit 6 at 5

[JDT Vol. 8]. Mr. Seltz, co-author of Buying Time 1998, states that while there

were a number of purposes behind the study, “the primary purpose was to

contribute to the body of knowledge about campaign finance reform and

specifically issue advocacy . . . and to fill what we viewed to be an empirical void

in the literature about issue advocacy." Seltz Dep. at 22 [JDT Vol. 28]. “An

independent but related purpose . . . was indeed to provide information to . . .

proponents of campaign finance reform to help them fashion new and better

arguments for reform, but arguments that would be based on research that was

verifiable, checkable, transparent, reproducible.” Id. Mr. Holman, a principal coauthor of Buying Time 2000, did not approach the project with the purpose of

producing results that would support campaign reform and had never seen the
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grant proposal. Holman Dep. at 25-26; see also id. at 29-30 (“I was mostly excited

about the political science aspect of [the study] . . . . It was not clear at any point

and never explained to me exactly what sort of policy direction that would go in.”).

312. Dr. Kenneth Goldstein provided assistance in processing and coding data for the

Buying Time studies. Goldstein Rebuttal Report at 6. In addition to assembling

data sets used in the Buying Time studies, Dr. Goldstein also produced an expert

report for the purpose of this litigation. See Amended Expert Report of Kenneth

M. Goldstein (Oct. 2, 2002) (“Goldstein Expert Report”). As part of processing

and coding data for the studies, he merged CMAG’s two data sets to produce “a

single, comprehensive data set.” Id. He also had university students (at the

University of Arizona for Buying Time 1998 and the University of Wisconsin for

Buying Time 2000) “assess[] the content, tone, issues addressed, whether the ads

mentioned a political candidate or provided a toll-free number to call, etc. . . . In

addition to collecting certain specific information concerning each storyboard

reviewed, the study also asked coders: ‘In your opinion, is the purpose of the ad to

provide information about or urge action on a bill or issue, or is it to generate

support or opposition for a particular candidate?’” Goldstein Expert Report at 7. 

Advertisements that provided information or urged action on a bill or issue were

labeled “genuine issue ads” in both studies, whereas those communications that

generated support or opposition for a particular candidate were referred to as
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“sham issue ads” in Buying Time 1998, see e.g. Buying Time 1998 at 87; and

“electioneering issue ads” in Buying Time 2000, Buying Time 2000 at 30. Each

Buying Time database consists of 40 million data points. Id. at 37.

313. As noted in Findings 316-317, infra, Dr. Gibson criticizes the CMAG data

underlying both reports. Dr. Arthur Lupia was asked by the Brennan Center to

evaluate Dr. Gibson’s Expert Report and provided a report detailing his findings. 

See Rebuttal Expert Report of Dr. Arthur Lupia (Oct. 14, 2002) (“Lupia Rebuttal 

Report”).

CMAG Data Set

314. The CMAG data set is the basis of the Buying Time studies as well as the expert

report of Dr. Kenneth Goldstein, which was produced for the defendants.

315. CMAG tracks political television advertising in the top 75 media markets,

containing more than 80 percent of U.S. residents. BT 1998 at 6-7; BT 2000 at 18;

Gibson Expert Report at 7; see also Goldstein Dep. (Vol. 1) at 47-49 [JDT Vol. 8]

(describing how CMAG compiles its data). These 75 markets are geographically

dispersed. Goldstein Rebuttal Report at 23; see also Goldstein Expert Report App.

G at 1-2 (listing the 75 markets monitored by CMAG). In 1998-99 New York was

the largest media market with 6,812,540 television households representing 6.854

percent of all television households. Gibson Rebuttal Report Exhibit 2 at 1 (listing
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1998-99 Nielson estimates of media markets in order of size). Shreveport was the

seventy-fifth largest media market, with 370,990 television households, or 0.373

percent of all television households. Id. at 2. For each market, CMAG monitors

the four major broadcast networks (ABC, CBS, NBC, and Fox), as well as 42

national cable networks. Goldstein Expert Report App. G at 2-3. The CMAG data

sets include two types of data. First, for every political advertisement aired,

CMAG provides a transcript of the audio portion of the advertisement and a

storyboard consisting of a still capture of every fourth second of the video portion

of the advertisement. Goldstein Expert Report at 6. Second, CMAG provides data

on each airing of an advertisement, including time, length, station, show, and

estimated cost. Id. 

316. The CMAG data is underinclusive in that it does not track every political

advertisement that is aired. Goldstein Dep. (Vol. 1) at 52 & Exhibit 9 at 16. 

1) The CMAG does not monitor local cable advertising in the 75 markets it

covers. Gibson Expert Report at 8; Gibson Rebuttal Report at 24. 

2) The 1998 and 2000 CMAG data sets did not cover advertisements

broadcast in the nation’s 140 smallest media markets, which are more rural

than the 75 captured by CMAG. Goldstein Dep. (Vol. 2) at 9-10 & Exhibit

9 at 16 [JDT Vol. 8]. For those markets covered, the evidence shows not all

advertisements are captured by CMAG. Dr. Goldstein participated in a
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validity study of the CMAG data by comparing the CMAG data with a

sampling of invoices from eight television stations. Id. Exhibit 9 at 16. The

results show that for seven of the stations, 97 percent or more of the

advertisements listed on their invoices correlated with the CMAG data. Id.

at 16-17 & 28 (tbl. 2). For one station, however, 20 percent of the

advertisements accounted for in the station’s invoices could not be found in

the CMAG data. Id. 

3) Another shortcoming of the CMAG data is that although it provides 100

percent of the advertisements’ audio, it only provides snapshots at four

second intervals of the advertisements’ video. As such, 25 percent of the

advertisement storyboards for the 1998 data set do not display the name of

the group sponsoring the advertisement. Goldstein Dep. (Vol. 2) at 21 [JDT

Vol. 8]; Gibson Expert Report at 8. 

4) Another perceived shortcoming of CMAG is that it tracks markets not

electoral districts, and is unable to distinguish between different versions of

ads that are identical with the exception of the candidate or officeholder’s

name (also known as “cookie cutter” advertisements). Gibson Expert

Report at 7; Gibson Rebuttal Report at 7; Goldstein Dep. (Vol. 2) at 113

[JDT Vol. 8]. 

5) The CMAG Data Set does not measure advertisements aired in the 30-
211 CMAG gets [its] data from Competitive Media Reporting, a company that

tracked advertising in the top 75 markets in 1998 and 2000, but now tracks advertising in

the top 100 markets. Goldstein Dep. (Vol. 1) at 47

290

day period preceding primary elections. See Krasno Rebuttal Report at 13.

317. In regard to the gaps in station invoices when compared to the number of

advertisements captured by CMAG, see supra Finding 316, Dr. Goldstein believes

it could be the result of inadequate record keeping by the station as well as CMAG

omissions. See Goldstein Dep. Exhibit 9 at 17 n.3. Dr. Gibson, however, finds

this to be a major shortcoming of the CMAG data. Gibson Rebuttal Report at 5-6. 

He deduces from these missed advertisements that CMAG “likely missed 1,764

ads,” or 5.04 percent of these eight stations’ airings, and using these figures

estimates “that 48,864 airings that in fact were broadcast [nationwide]. . . were not

captured by the CMAG methodology.” Id. (applying the 5.04 percent figure to the

total number of advertisements captured by CMAG). Dr. Gibson assumes that

CMAG has missed the same percentage of advertisements in all the covered media

markets. Moreover, although “we do not know any of the characteristics of these .

. . missing airings,” Dr. Gibson believes those airing were missed because they

“did not have a clear ‘political purpose’ that could be discerned by the CMAG

analysts.” Id. at 6; but see Goldstein Dep. (Vol. 2) at 12 [JDT Vol. 8] (stating that

commercials provided to CMAG by Competitive Media Reporting211 is “overly

inclusive,” including “ads for the Red Cross, [and] ads for electric companies”).
291

318. While acknowledging CMAG’s underinclusiveness, Dr. Lupia believes that Dr.

Gibson, “presents no evidence or reason to believe that . . . including

advertisements from the markets not covered would change [the] results [of studies

based on the data].” Lupia Rebuttal Report at 28; see also Goldstein Rebuttal

Report at 24 (“Moreover, Professor Gibson does not offer any reason to believe

that the ads run on local cable advertising are significantly different than the

broadcast ads captured by CMAG.”). According to Dr. Goldstein, Dr. Gibson did

not suggest that “CMAG’s inability to capture local cable spots introduced any

systematic bias into the data.” Goldstein Rebuttal Report at 24. According to Dr.

Goldstein, the “snapshot” style of the CMAG storyboards does not compromise the

“ability to accurately analyze the content of ads, especially because CMAG

provides a complete transcription of the audio portion of the ad along with the

video captures.” Goldstein Rebuttal Report at 24-25. Furthermore, Dr. Goldstein

states, “there is no reason to believe that there in [sic] any systematic bias

associated with the CMAG terminology capturing only one video frame every four

seconds.” Id. at 25. As for the 25 percent of 1998 storyboards which did not

indicate the advertisement’s sponsor, the Buying Time 1998 authors were able to

remedy this problem by referring to the “CMAG’s original coding (which

accurately provides the sponsor of the ad in well over 95 percent of cases),

examining the content of the ad, and, in a few cases, by phoning television
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stations.” BT 1998 at 8.

Buying Time Findings

319. Buying Time 1998 drew a number of conclusions with regard to the nature and

effect of political advertising in the United States. The study’s main findings

include:

1) Four percent of candidate advertisements used “express advocacy” terms. 

BT 1998 at 9. 

2) The proportion of issue advertisements mentioning a candidate rises as

the date of the election approaches. In July and August 1998, 61 percent of

issue advertisements mentioned a candidate. By September, the percentage

reached 82 percent and for the remainder of the campaign remained at 82

percent or higher, reaching a peak of 97 percent in the first half of October. 

Id. at 87, 103 (fig. 4.15). 

3) Forty-one percent of issue advertisements that provided information or

urged action appeared within 60 days of the election, but only 2 of those

advertisements, or seven percent, referred to a candidate. Id. at 109.

320. Buying Time 2000’s key findings from the 2000 election cycle included:

1) Seven percent of all political advertisements contained express advocacy

terms. BT 2000 at 73. Candidates used express advocacy terminology in 10

percent of their ads, id. at 15, 29, while political parties and interest groups

used such terms approximately two percent of the time, id. at 73. 

2) “Genuine issue ads” (those urging action on a public policy or legislative

bill) were “rather evenly dispersed throughout the year, while groupsponsored electioneering ads [which promote the election or defeat of a

federal candidate] make a sudden and overwhelming appearance

immediately before elections.” Id. at 56.

3) The study found that if BCRA had applied to the 2000 campaign, three

genuine issue ads (which aired 331 times) would have fallen within the
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Act’s definition of “electioneering communication.” Id. at 73. Put another

way, of the advertisements run within 60 days of the 2000 election which

also depicted a candidate, 99.4 percent constituted electioneering

advertisements, while 0.6 percent were genuine issue advertisements. Id. at

72 (fig. 8-2). 

321. Plaintiffs’ expert, Dr. James L. Gibson, while leveling various criticism at both

Buying Time studies, does not dispute that express advocacy words “are rarely

used in political advertising, or that group sponsored ads that mention candidates

tended to be concentrated before an election.” Goldstein Expert Report at 38-39;

see also Lupia Rebuttal Report at 9; see also Gibson Expert Report at 11 (“Entirely

objective characteristics of the ads . . . present few threats to reliability.”). Neither

does he challenge the findings that advertisements sponsored by parties and

interest groups comprise a significant and increasing portion of political

advertising broadcast in federal races. Lupia Rebuttal Report at 9.

Criticism of Buying Time 1998

322. Dr. Gibson raises several objections to Buying Time 1998 and Buying Time 2000

reports, and ultimately concludes that neither report can "be accepted as accurate

and valid descriptions of the nature of political advertising in the 1998 and 2000

elections." Gibson Expert Report at 66. While not listing every objection, Dr.

Gibson's chief objections are as follows: (1) Buying Time is not a product of

scientific inquiry as scientific principles of objectivity were not adhered to, see
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Gibson Expert Report at 3 & n.3, 45; (2) neither Buying Time study was subject to

peer review, id. at 4, 45; (3) the results of the Buying Time studies could not be

replicated, and social science "demand[s] that statistical analysis be replicable, id.

at 5. See also id. at 47-48; (4) the statistical techniques employed by the Buying

Time authors were questionable, id. at 5; (5) the shortcomings of the CMAG

database preclude reliance on the Buying Time results, id. at 5-9; (6) the student

coders were not trained, and steps were not taken to ensure their impartiality, id. at

9-10; (7) the reliability of the coded data due to the lack of guidelines for coders

answering questions and the coding of subjective characteristics of the

advertisements, id. at 11-12; (8) the results cannot be relied upon because the

miscoding of a single document can have "quite large consequences for the

statistical results," id. at 22-23; (9) inaccurate coding of questions, even if the

coding was consistent, id. at 17; (10) the wording and coding of Question 6 in

Buying Time 1998 is flawed, and Question 22 is superior, id. at 32-34; and (11)

"no single Buying Time 1998 Data Set exists" due to continual changes by Dr.

Goldstein, id. at 11. Defendants' witnesses Dr. Kenneth Goldstein, Dr. Jonathan

Krasno and Dr. Frank Sorauf, and Dr. Arthur Lupia each counter Dr. Gibson's

allegations in their expert reports and rebuttal reports. See generally Goldstein

Expert Report; Goldstein Rebuttal Report; Krasno & Sorauf Expert Report;

Krasno Rebuttal Report; Lupia Rebuttal Report. After reviewing the expert
295

reports, I find that although the Buying Time studies contain some flaws and

shortcomings, as pointed out by Dr. Gibson, those shortcomings do not detract

from the studies' credibility and reliability. I make the following findings in regard

to Dr. Gibson's objections:

323. First, while I agree that the primary purpose of the Buying Time studies was to

further campaign finance reform, I do not find that this fact has skewed the results

of the study. See Krasno Rebuttal Report at 2 (admitting that Buying Time 1998 is

an advocacy document, but stating that "[s]cholars rarely embark upon research

without some expectations as to its results. But more than most scholars, we had a

compelling reason to insure that our results could withstand allegations of bias”); 

Lupia Rebuttal Report at 10-11 (stating that Dr. Gibson’s claim that the policy

perspective of the Buying Time 1998 authors “may have undermined the integrity”

of the study “is pure speculation,” and that a “person’s political or ideological

beliefs need not prevent them from being an effective scientist,” and that he knows

of no “conventional canons of scientific objectivity”); Goldstein Rebuttal Report at

8 (denying the charge that he or anyone under his supervision “perverted” the

results of the databases, and maintaining that his approach to the coding was based

on nothing other than “the spirit of scientific inquiry and objectivity").

324. Second, I find that while the submission of statistical studies to peer review

processes is preferable, it does not "seriously limit[] the confidence one can place
296

in the Report," as Dr. Gibson alleges. Gibson Expert Report at 45; but see Lupia

Rebuttal Report at 13 (stating that the significance of the lack of peer-review is

"doubtful . . . at best"). 

325. Third, while Dr. Gibson maintains that his inability to replicate the Buying Time

1998 and Buying Time 2000 results "undermines . . . any confidence one should

place in the findings," Gibson Expert Report at 5, his inability seems attributable to

his using the incorrect data set. See Krasno Rebuttal Report at 6-7 & n.6, 8 n.10

(attributing Dr. Gibson's failure to replicate the results to Dr. Gibson's not using

“the original command files used to produce the numbers in Buying Time 1998,”

and maintaining that the original command files replicate the Buying Time 1998

results); see also Goldstein Rebuttal Report at 18, 19-20 (stating that the reason

Dr. Gibson could not replicate the results of Buying Time 2000 was because he

was using the wrong data set); id. at 20 (using the “federal.sav” data set produced

by the Brennan Center, Dr. Goldstein was “able to replicate key findings of the

Buying Time [2000] study,” and correlate others “within a fraction of a percentage

point”); Lupia Rebuttal Report at 17 (“It is also worth noting that the Plaintiffs and

their experts passed up the opportunity to resolve their concerns by replicating the

data collection procedure itself.”). Replication, as Dr. Krasno admits, "is a core

precept of science," but Dr. Gibson “overstates the case by insisting on ‘exact’

replication.” Krasno Rebuttal Report at 6. Notwithstanding the debate between the
297

experts on replication, Dr. Krasno finds, and I agree, that the discrepancy between

Dr. Gibson's findings using one data set and the findings of the Buying Time 1998

and Buying Time 2000 studies are statistically insignificant. See Krasno Rebuttal

Report at 7-8 (referring to Gibson Expert Report at 24); see also Goldstein Expert

Report at 18 n.10 (stating that the variances in Dr. Gibson’s results “are so small as

to suggest their own triviality”); Lupia Rebuttal Report at 43 (stating “the

demonstrated discrepancies are small” and the Gibson Expert Report “provides no

evidence that such changes affect any of Buying Time’s major claims”). 

326. Fourth, Gibson alleges that the statistical techniques used by the Buying Time

authors are questionable; despite this charge, Dr. Gibson does not specifically

identify how statistical procedure was misapplied. See Lupia Rebuttal Report at

18-19; see also id. at 19 (characterizing Dr. Gibson’s critique as a “difference in

point-of-view on how to categorize certain events that has nothing to do with

statistical techniques per se.”). 

327. Fifth, I find that although the CMAG database has some shortcomings, Dr. Gibson

has not demonstrated that these shortcomings undermine the conclusions of the

Buying Time studies. See Gibson Rebuttal Report at 5-7 (stating he has no basis

for verifying that the CMAG data base is accurate, that there is no way of knowing

the characteristics of the missing airings, but concluding that the “apparent[]”

errors caution against relying on the CMAG data for drawing conclusions on the
298

nature of political communications); see also Goldstein Rebuttal Report at 23

(stating that Dr. Gibson “does not even attempt to explain how these alleged

limitations undermine the validity of the conclusions set forth in Buying Time”);

Krasno Rebuttal Report at 5.

328. Sixth, I find that the failure to train the student coders is justified given Dr.

Krasno's concerns that a "training program would have caused complaints that Dr.

Goldstein and I were attempting to impose our standards on the coders" and that

the researchers "were hoping for a (reasonably informed) ordinary viewer’s

impression of the ads." Krasno Rebuttal Report at 5 n.4; see also id. (explaining

that "[l]imited pre-testing of the coding instrument showed that training was

unnecessary because coders were apparently able to understand and answer the

questions without further explanation.”); Goldstein Rebuttal Report at 32 (stating

that the lack of training was “a deliberate choice that is well-supported by social

science principles . . . . aimed at getting the untutored common-sense impression of

the coders, while minimizing the possibility of biasing coders with any

preconceived notions that might have been implicit in a set of instructions,” and

that formal training “would only undermine the independence of the coders’

assessments and possibly introduce systematic bias into the survey.”); id.

(contending that the lack of training also made it easier to “simulate . . . the

experience of a typical viewer watching the ads at home.”). Furthermore, although
299

Dr. Gibson is concerned with the training of the coders, his concerns are, as Dr.

Goldstein explains, speculative because Dr. Gibson did not "conduct his own

survey, using his own coders and his own training techniques, and compare it to

the results reached by the undergraduate coders.” Goldstein Rebuttal Report at 31;

see also Lupia Rebuttal Report at 33 (“In this case, such a replication would have

been relatively simple to conduct . . . and would have allowed the [Gibson] report

to rely less on speculation when alleging that measurable attributes of Goldstein’s

coders affected the data collection or analysis.”). Finally, I also find that evidence

has not been presented to substantiate Dr. Gibson's concern that the student coders

were unrepresentative of the general population, thereby threatening the accuracy

of the Buying Time results. See Lupia Rebuttal Report at 35 (stating that “only if

we had evidence that the way in which the undergraduates were unrepresentative

caused Buying Time’s claims to differ from what a representative population

would have produced” would there be a basis to believe the coders’

unrepresentativeness threatened the quality of the data, but the Gibson “report

presents no such evidence.”); Holman Dep. at 241-42 (noting “it’s common

practice to use students as survey respondents especially in political work”).

329. Seventh, I find that Dr. Gibson's objections regarding the reliability, or accuracy,

of the coded data due to the coding of “subjective and judgmental” characteristics

do not prevent this Court from relying on these studies as the Buying Time authors
212 The text of Question 6 in Buying Time 1998 is as follows: 

In your opinion is the purpose of this ad to provide information about or

urge action on a bill or issue, or is it to generate support or opposition for a

particular candidate?

1. Provide information or urge action (If so, skip to Question #19)

2. Generate support/opposition for candidate

3. Unsure/unclear

 Gibson Expert Report at 12 (citing Buying Time 1998) (emphasis in original).

300

were seeking to measure the coders' opinions and perceptions. Gibson Expert

Report at 12. Dr. Gibson uses Question 6 as an example.212 Question 6 appears in

Buying Time 2000 as Question 11, except that the Buying Time 2000 version does

not bold the words “particular candidate” and does not ask the coder to skip

Questions. See Goldstein Expert Report App. F [DEV 3-Tab 7]. Dr. Gibson

believes that it is not always readily apparent who the sponsor of the advertisement

is, making it difficult for the coder to know whose purpose he or she is supposed to

be evaluating. Gibson Expert Report at 12. According to Dr. Gibson, this problem

is exacerbated by the lack of “explicit guidelines for how to ascertain an ‘ad’s

purpose,’” and, given the subjective nature of this task, “certain procedures are

essential so that the reliability of the data collected can be assessed.” Gibson

Expert Report at 12, 16. Further, Dr. Gibson states that there is “no assessment

whatsoever of intercoder reliability [for Buying Time 1998]. Thus, unlike

academic research based on subjective coding, no empirical evidence exists to

indicate that the coders’ subjective assessments of these ads were accurate.” Id. at
301

18. Dr. Lupia responds arguing that the “practice of treating answers to opinion

questions as objective phenomena is common in science.” Lupia Rebuttal Report

at 38 (describing an article co-authored by Dr. Gibson, the main conclusion of

which is based on a survey where participants were asked about how they

described their own identities). He notes that Question 6 begins with “In your

opinion,” and seeks to understand how the advertisements are perceived. Id. at 37.

330. Eighth, while I acknowledge that the impact on the Buying Time 1998 results due

to miscoding hypothetically could have, in the words of Dr. Gibson, “quite large

consequences for the statistical results,” Gibson Expert Report at 22-23, Dr.

Gibson admits he is providing only an example of how one error could affect the

results. See id. (explaining that if Advertisement #11 was coded as promoting

issues rather than a candidate, the percentage of pure issue advertisements in the

Buying Time 1998 data set would rise six percentage points). As the evidence

regarding the impact of miscoding is hypothetical, or speculative, I find that it does

not undermine the conclusions of the study.

331. Ninth, I find that Dr. Gibsons' argument that even though the coders may be

consistent in their coding, their coding could still be incorrect, misrepresents the

purpose of the Buying Time studies and what the coders were asked to do. Gibson

contends that: 

coders must seek easily discernable ‘cues’ in the advertisements as a means

of making the required judgment. Since the presence of a political figure
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who seems to be a candidate is a readily accessible cue, the coders then

develop an implicit decision rule that says: ‘when a political figure is

depicted in the ad, the ad involves electioneering.’ Under this rule, the

variable might be reliably coded. But this does not mean that the data are

valid, since political figures appearing in ads could well be doing something

other than electioneering.

Gibson Expert Report at 17 (emphasis in original). While Dr. Gibson may be

correct that an advertisement may "be doing something other than electioneering,"

the study instead is seeking the coders’ perceptions of the purpose of the

advertisements, not the advertisements’ true purpose. See Lupia Rebuttal Report

at 39. Just because coders’ perceptions may not comport with reality does not

threaten the validity of the data, because the survey seeks the coders’ mental

impressions. Id. However, when codings were changed on Question 6, the mental

impressions of the coders, which were sought by the question, were overruled. 

Goldstein Dep. (Vol 2) at 208-209 [JDT Vol. 8].

332. Tenth, I reject Dr. Gibson's argument that Question 22 of Buying Time 1998 is

superior to Question 6, and that where the coding of Question 6 and Question 22

are inconsistent, Question 22 should be relied upon. The text of both questions is

listed below:

6. In your opinion is the purpose of this ad to provide information about or

urge action on a bill or issue, or is it to generate support or opposition for a

particular candidate?

1. Provide information or urge action (If so, skip to Question #19)

2. Generate support/opposition for candidate

3. Unsure/unclear
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 22. In your judgement, is the primary focus of this ad on the personal

characteristics of either candidate or on policy matters?

1. Personal characteristics

2. Policy matters

3. Both

4. Neither

Gibson Expert Report at 12 (citing Buying Time 1998) (emphasis in original), 31-

32. Dr. Gibson notes that, according to Question 6, 55.6 percent of the

advertisements were coded as "promoting candidates." Id. at 31. Dr. Gibson also

notes that, in response to Question 22, 98.1 percent of the advertisements "aired

within 60 days of the election and depicting a candidate were coded as having a

"primary focus" on policy matters." Id. at 32 (emphasis in original). While Dr.

Gibson finds these results contrary to what one might expect, he also finds it

"reasonable" that coders would conclude that almost all (98.1 percent)

advertisements have a "primary focus" on policy, but also conclude that half of

those same advertisements have the "purpose" of promoting a candidate. Id. at 32-

33. Nonetheless, Dr. Gibson argues that coding of Question 6 is "deeply flawed,"

and where Question 6 and Question 22 "clash . . . the coding of Question 22 should

be considered more valid and reasonable." Id. at 34, 35. Although I acknowledge

that Question 6 does not provide coders the option of finding that the

advertisement promotes both issues and candidates, and "does not ask the coder to

discern the ‘primary’ purpose of the ad" but instead asks coders to provide their
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opinion on the advertisement’s "purpose," id. at 33-34, I find that the coding of

Question 6 can be relied upon by this Court. As Dr. Krasno points out, “coders

rated 99 percent of candidate ads (and 93 percent of party ads) as generating

support or opposition for a candidate.” Krasno Rebuttal Report at 10 (citing BT

1998 at 41). This conclusion is bolstered in Dr. Krasno’s opinion by the fact the

coders were not asked to determine the sponsor of the advertisement and that the

disclaimers on the storyboards provided to the coders were often difficult to read. 

Id. at 10 n.14. An electioneering advertisement does not have to focus primarily

on personal characteristics of a candidate; in fact, “political scientists routinely

take the view that politicians frequently adopt and advertise policy positions in

order to appeal to voters." Id. at 10-11 (citing as an example Anthony Downs, An

Economic Theory of Democracy (1957)); see also Goldstein Rebuttal Report at 29

n.16 (citing four articles for the proposition that “policy issues in electioneering

ads is widely noted in the political science literature”); Seltz Dep. at 188 [JDT Vol.

28]. Moreover, as Dr. Lupia explains, an advertisement’s purpose (the question

posed in Question 6) and its primary focus (the question posed in Question 22) do

not have to be the same. Lupia Rebuttal Report at 46-48. To illustrate this point,

Dr, Lupia notes that many beer commercials do not focus on the product, but

rather people “engaged in a range of activities that we can call ‘wild nights out.’”

Id. at 47. It would not be unreasonable to “perceive that the purpose of the ad is
305

to get” the viewer to buy the beer, “but to judge its primary focus as wild times.”

Id. at 48. Further, I find that the evidence supports Dr. Lupia's argument that

individuals can make the same distinction for campaign advertisements, i.e., that

their purpose is to get the person to vote for candidate X, but their focus is on issue

Y. See id. In addition, I do not believe that Question 6 must include a qualifier,

such as the word "primary" in Question 22, in order to be valid. A study coauthored by Dr. Gibson based on a survey question on social identity does not

mention the word “primary,” but concludes that the initial responses given

revealed primary social identities. See Lupia Rebuttal Report at 51 (quoting James

L. Gibson & Amanda Gouws, Social Identities and Political Intolerance: Linkages

within the South African Mass Public, American Journal of Political Science 278-

92 (2000)). Dr. Gibson's report "provides no tangible evidence or scholarly

reference" that suggests that Question 6's failure to include a qualifier is

"inconsistent with standard scientific practice.” Lupia Rebuttal Report. at 52. 

Similarly, Dr. Gibson “offers no direct evidence on how answers to the questions

would have changed had we allowed the responses ‘both’ and ‘neither’ in Question

6 or the response ‘unsure/unclear’ in Question 22.” Id. at 48, 50. 

333. Finally, I do not find that the updating and changing of the Buying Time 1998 Data

Set invalidates the database, such that reliance on the Buying Time 1998

conclusions is unfounded. As Dr. Krasno explained, the short time frame of the
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study "inevitably meant that small changes to the data set would continue even

after the release of Buying Time 1998." Krasno Rebuttal Report at 4. 

Furthermore, the changes in the database reflect "the gradual filling in of missing

data and the discovery of internal contradictions. There is no evidence at all in Dr.

Gibson's report that any of the changes in the successive versions of the data that

he examined had any more than a trivial impact on his results or on those reported

in Buying Time 1998." Id. Dr. Goldstein attributes the changes in the database to

random error inevitable in a database, such as that used in Buying Time 1998,

which consists of 40 million data points, Goldstein Rebuttal Report at 37; "routine

'cleaning' of the data sets," id. at 10; and the "standard social science practice" of

cleaning "a data set by correcting apparent errors after the codes have been entered

in the database," id. (citing Herbert F. Weisberg, Jon A. Krosnick & Bruce D.

Bowen, An Introduction to Survey Research, Polling, and Data Analysis (3d ed.

1996)). Dr. Lupia reviewed the multiple databases and concludes that the changes

are transparent and he finds no reason to conclude that Dr. Goldstein has attempted

to hide anything. Lupia Rebuttal Report at 22. Lupia agrees that Dr. Gibson’s

concern is a legitimate one; however, large academic databases change for

legitimate reasons, so the mere existence of the relative small changes cited in the

[Gibson] report provide no basis to negate the project’s credibility.” Id. To Lupia,

the important question is “why and how the changes were made,” and Dr. Gibson’s
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suggestions of illegitimacy are, in Lupia’s opinion, “of varying and questionable

credibility.” Id. 

Buying Time 1998’s Calculation of the Percentage of Genuine Issue Advocacy Captured

by BCRA

334. Buying Time 1998’s claim that only seven percent of “genuine issue ads” in the

1998 campaign would constitute electioneering communications under BCRA is

disputed.

335. Buying Time 1998 found that seven percent of all pure issue advertisements aired

in 1998 identified a federal candidate and appeared within sixty days of the

campaign. Krasno Rebuttal Report at 13. This figure was determined by dividing

the number of airings of genuine issue advertisements mentioning a federal

candidate within 60 days of the election by the total number of genuine issue

advertisements run in 1998. Id.; see also Seltz Dep. at 115-16. According to Dr.

Jonathan Krasno, author of Buying Time 1998, the question he sought to answer

with this formula was “what is BCRA’s impact on pure issue ads?” Id. at 12. The

Brennan Center stands by the seven percent figure, although for a period of time in

2001 it had questioned its accuracy. Holman Dep. at 142-43. During that period

of time, the Brennan Center ran additional analyses and determined that seven

percent of “unique issue ads— or in other words . . . special interest groups

placing issue ads” produced in 1998 would be captured unfairly by BCRA, id. at
308

123, 144, and that 13.8 percent of all issue advertisement airings mentioning a

candidate and broadcast within 60 days of the 1998 election were genuine issue

advertisements, id. at 154-55. Dr. Gibson contends in his rebuttal report that the

number of genuine issue advertisements aired in 1998 that would have been

captured by BCRA represents affects the "communications with a staggering

number of household[s]— 30, 108, 857. Thus, were these ads . . . prohibited, over

30 million group-citizen communications would be affected." Gibson Rebuttal

Report at 25. Defendants' experts do not address this point in their expert and

rebuttal reports. 

336. Plaintiffs object to the use of the total number of genuine issue advertisement run

in 1998 as the denominator. Dr. Gibson finds:

using a denominator of all issue ads broadcast in 1998 for these

calculations is arbitrary and makes little sense. Why use January 1,

1998, as the starting date for the total pool of issue ads (i.e., the

denominator)? Why not include ads from December 1997, or even

the entire election cycle beginning in November 1996? Why not

limit the denominator to ads shown in the last half of 1998? The . . .

selected . . . denominator . . . has no theoretical meaning.

Gibson Expert Report at 38; see also id. at 41 (“I can see no justification for

making the denominator equal to all issue ads aired in 1998.”). Furthermore, he

argues that given his conclusion that more people are concentrating on political

issues as elections draw near, discussed infra Finding 357, Buying Time 1998’s

denominator, by using all issue advertisements run during the course of the year,
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makes “the assumption that ads aired anytime throughout the year are equally as

valuable as ads aired in proximity to the election.” Gibson Rebuttal Report at 27. 

Thus, Dr. Gibson concludes that the “damage of prohibiting an ad within 60 days

of an election cannot be ameliorated by allowing that ad to be broadcast at some

other point throughout the year.” Id. at 27-28.

337. Dr. Krasno explains that the Buying Time 1998 denominator reflects only

advertisements run in 1998 because “we had no data from 1997 or the last weeks

of 1996 to include in the denominator.” Krasno Rebuttal Report at 14. Dr. Krasno

believes that the addition of such data into the denominator would simply

“decrease the percentage of pure issue ads affected by BCRA” because all of those

advertisements would have aired more than 60 days before the election and would

therefore not increase the size of the numerator. Id. at 14-15 (emphasis in

original); see also Krasno & Sorauf Expert Report at 62 (“The data from which

these estimates are derived cover broadcasting only during the 1998 and 2000

calendar years, not the thirteen-plus months preceding them. Were we able to

factor in the total number of pure issue ads that appeared between elections, the

percentage of pure issue ads affected by BCRA would decline.”). 

338. Dr. Gibson suggests the better denominator, and one that is not arbitrary, is that

used in Buying Time 2000; namely, all airings of issue advertisements during the

last sixty days of the campaign which also depict a candidate. Gibson Expert
213 Dr. Gibson, using a different data set than Dr. Krasno, found that by taking

Buying Time 1998’s “flawed numerator and using the Brennan Center’s own figures for

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Report at 39. The Buying Time 2000 formula answers the question: If one were

to assume all issue advertisements mentioning a candidate in the last 60 days of an

election campaign had an electioneering purpose, what percentage of the time

would this assumption be erroneous? Id. at 38-39. By contrast, the Buying Time

1998 formula answers the question: “What percentage of total ads run throughout

the year that mentioned a candidate by name and were coded as providing

information or urging action appeared within 60 days of the election, rather than

earlier than 60 days before the election?” Id. at 39 (emphasis in original). Dr.

Krasno believes that Dr. Gibson’s denominator would vary in size “with the

amount of candidate-oriented issue advertising before an election. This is

particularly relevant because of the volume of candidate-oriented issue ads devoted

to presidential campaigns. The result . . . is highly unstable estimates of BCRA’s

impact from year to year.” Krasno Rebuttal Report at 15.

339. The effect of using the Buying Time 1998 denominator is that the percentage is

affected not only by the amount of genuine issue advertisements run within 60

days of the election, but also the number of electioneering advertisements run

during that time. Id. at 16 n.26. When Dr. Krasno applied Dr. Gibson’s

denominator to the Buying Time 1998 data he found 14.7 percent of genuine issue

advertisements would be unfairly captured.213 Id.; see also Krasno & Sorauf
calculating the proper denominator (airings within 60 days [of the election]), 16.5% of the

group ads were ‘genuine issue ads’ (as defined by the Brennan Center). . . .” Gibson

Expert Report at 42. He goes on to reject this figure because he “does not accept the

numerator.” Id. He also finds that by using the data set he believed was the “final”

version 25.7 percent of issue advertisements aired during 1998 mentioned a candidate and

were broadcast within 60 days of the election were “genuine” issue advertisements. Id. at

37. Dr. Krasno states that this figure is incorrect because the data set used is incorrect,

resulting in a numerator “four times too large,” and that based on his study with Sorauf,

he now calculates the correct figure to be 6.1 percent. Krasno Rebuttal Report at 19 &

Appendix [DEV 1-Tab 2]; see also Krasno & Sorauf Expert Report at 60. Dr. Gibson’s

problems with the numerator are discussed infra Findings 340-341. 

214 One of these advertisements, “HMO said No” was aired a total of 455 times

(118 times in Greensboro, 126 times in Raleigh-Durham, and 211 times in St. Louis). 

Krasno & Sorauf Expert Report App. at 3, 20. We were unable to find additional

information about the other two advertisements, “CCS/No Matter Who” and

“CENT/Breaux.” Id. In 1998, St. Louis had 1,110,290 television households, RaleighDurham had 834,260, and Greensboro had 584,900. Gibson Rebuttal Report Exhibit 2. 

311

Expert Report at 60 n.143; id. App. at 3 (providing the calculation: 713 airings of

three distinct genuine issue advertisements214 mentioning a candidate and aired

within 60 days of an election constitutes the numerator; the denominator is the

4847 airings of issue advertisements mentioning a candidate within 60 days of the

election). 

340. Dr. Lupia concludes that although the Buying Time 1998 and Buying Time 2000

denominators answer different questions, either formula is reasonable. “If I were

asked to assess the proposed regulation’s restrictiveness, the [Gibson] report’s

fraction could provide information about the impact during a particular time

period, while Buying Time 1998’s fraction could provide a better measure of the

regulation’s impact on issue advocacy more generally.” Lupia Rebuttal Report at
312

25. Lupia states that Dr. Gibson’s denominator is no less arbitrary than that of

Buying Time 1998. Id. at 26. Holman comments that the Buying Time 1998

denominator is “a justifiable way” of determining the impact of BCRA on genuine

issue advertisements, although he did not use the same one for Buying Time 2000. 

Holman Dep. at 140. For Holman, the Buying Time 1998 calculation is “not

incorrect. It’s a different way of assigning a number to measure a phenomenon.” 

Id; but see id. at 153-54 (stating that the text of Buying Time 1998 relating to the

seven percent figure is “[m]isleading” and “ambiguous” in that it did not identify

clearly to what it referred).

341. Plaintiffs’ and Defendants’ experts also disagree as to what the appropriate

numerator should be. Dr. Gibson rejected the Buying Time 1998 numerator

because based on the data he was provided he concluded that eight advertisements

aired 2,405 times in the last 60 days of the campaign were originally coded as

promoting an issue or urging action (genuine issue advertisements) but were

overruled by Dr. Goldstein and recoded as electioneering advertisements. Gibson

Expert Report at 42. When Dr. Gibson added in these advertisements he found

that “nearly two-thirds of the group ads that aired within 60 days of the 1998

election were coded by the students as ‘genuine issue ads.’” Id. at 43. Dr. Gibson

in his Rebuttal Report revises this figure based on information provided during the

course of the litigation, which indicated that over a quarter of the advertisements
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he added to the numerator did mention candidates, resulting in a figure of 50.5

percent. Gibson Rebuttal Report at 23; see also Krasno Rebuttal Report at 17-18

(describing this error). Dr. Gibson concludes that “this 50.5% figure represents the

statistical floor . . . the 64% figure cited in my report . . . provides the ceiling.”

Gibson Rebuttal Report at 24. Dr. Gibson, in his Supplement Report, states that

Dr. Krasno had produced additional data files which included an earlier version of

the data set upon which he had relied. Gibson Supplement to Rebuttal Expert

Report of October 7, 2002: 1998 Data (“Gibson Supplemental Report”) at 1. The

data showed that one of the eight advertisements Dr. Gibson alleged had been

recoded (from “genuine issue” to “electioneering”) had originally been coded as

promoting the election or defeat of a candidate, and that another was missing data

as to the nature of the commercial. Id. at 4. As a result of excluding the airings of

these two commercials, Dr. Gibson calculates that his “ceiling” fell to 60 percent,

and his “floor” remained unchanged. Id. at 5-6. 

342. Dr. Krasno rejects the inclusion of any of the airings of these eight advertisements

in the numerator. See Krasno Response to Professor Gibson’s Supplemental

Rebuttal (Nov. 13, 2002) (“Krasno Response”). He objects to the notion that the

recoding “reflects a deliberate effort to manipulate some of the results reported in

Buying Time 1998,” stating that the recoding aimed to “make the data set as

sensible and accurate as possible.” Id. at 1, 2. Dr. Krasno explains that the
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decision to recode five of the advertisements was based on their contradictory

codings. Id. at 2. The survey was constructed so that when a coder found that an

advertisement’s purpose was to “provide information or urge action” (in other

words, was a genuine issue advertisement) in Question 6, the coder was supposed

to skip the next 12 questions. Id. at 2; Gibson Supplemental Report Exhibit 7. For

five of these advertisements, student coders found the advertisement provided

information or urged action, but went on to answer the next 12 questions. Krasno

Response at 2. In addition, Dr. Krasno states that “all of these ads were scored in a

parallel process on another variable, ‘favcan,’ as favoring a Democratic or

Republican candidate. Again, the potential conflict between question 6 and favcan

should have attracted attention as the data set was being prepared.” Id. Dr. Krasno

contends that a review of the storyboards for these five advertisements, as well as

other contextual factors such as where and when they were aired, makes it clear

that they should be coded as “electioneering.” Id. at 2-4. Dr. Krasno believes that

the “notion that a small handful of mistakes must be perpetuated because they were

once made is both ludicrous and an extraordinary departure from the usual practice

of compiling data sets. Dr. Gibson’s argument would be more credible if he

offered any explanation for why these commercials really are pure issue ads.” 

Krasno Response at 5. 

343. Dr. Lupia weighs in on the fraction debate, contending that the Gibson and Buying
315

Time reports “are reasonable conceptualizations of the question about how the

proposed regulations will affect groups in the present and future if groups act

exactly as they did in the past. If, however, we want to evaluate the regulations’

likely future impact we should consider the possibility that groups will adapt to the

new regulations in different ways.” Lupia Rebuttal Report at 26. Both sides seek

to predict the impact BCRA will have if no one alters their behavior. Lupia

concludes that to “the extent that affected groups are able to choose [to alter their

behavior], both estimates in the denomination debate may exaggerate the extent to

which this aspect of the new regulation will restrict the groups’ abilities to express

themselves in the future. . . . To the extent that we agree that such groups will

adapt in various ways, the credibility of the high-percentage estimates of the likely

future impact of the proposed regulations on interest groups is severely

undermined.” Id. at 27.

Criticism of Buying Time 2000

344. Many of Dr. Gibson’s criticisms of Buying Time 2000 are similar to those made of

Buying Time 1998 and are addressed, supra.

345. Dr. Gibson states that the Buying Time 2000 data base “has numerous errors and

inconsistencies in it,” and comments that these changes preclude him from

replicating the findings of Buying Time 2000. Gibson Expert Report at 46, 47-
215 Dr. Goldstein testifies that he does not have the original student coding for this

study, explaining that his “political science department . . . mistakenly deleted a big chunk

of out files, including our access database.” Goldstein Dep. (Vol. 2) at 129 [JDT Vol. 8]. 

216 For example, Dr. Gibson challenges the Buying Time 2000 finding that “[o]f all

the group-sponsored issue ads that depicted a candidate within 60 days of the election,

99.4% were found to be electioneering issue ads. In absolute numbers, only three

genuine issue ads (which aired a total of 331 times in the 2000 elections) would have

been defined as electioneering communications . . . .” Gibson Expert Report at 61

(quoting BT 2000 at 73 (emphasis in original)). Dr. Gibson finds that according to the

database the three advertisements were only aired nine times, but the Buying Time authors

reported 331 airings and a different data base that Dr. Gibson determines is the “original,

student coded version” of Question 11 shows 1,082 airings.. Id. at 61-62. He declares

that he “has confidence in none of these” figures. Id. at 62. Dr. Goldstein claims that if

316

48.215 He is troubled by the fact that Dr. Goldstein changed the coded “purpose” of

62 out of 338 advertisements, id. at 52, questions the motivation behind the

changes, and asks what standards Dr. Goldstein employed in making the changes,

id. at 53. Dr. Goldstein states that “most of the 62 ‘changes’ [Gibson] identifies in

the 2000 database are not changes at all, but rather original student coding of

additional CMAG storyboards that had not previously been coded at all, and were

not part of the database used by the authors of Buying Time 2000.” Goldstein

Rebuttal Report at 4. The problem stems from Dr. Gibson’s use of the wrong

database; he does not analyze the Buying Time 2000 database, but rather “a later

iteration of [Dr. Goldstein’s] own version of the database containing [his] own

after-the-fact updates and re-codes, including additional ads later received from

CMAG. . . . [N]one of this re-coding ever made its way into the Buying Time 2000

report.”216 Id. at 14-15. Dr. Goldstein also takes exception to the charge that he
Dr. Gibson had used the correct database, “federal.sav,” he would have been able to

identify the three advertisements which comprise 331 airings. Goldstein Rebuttal Report

at 21 (finding advertisements #627 (172 airings), #1389 (81 airings), and #2862 (78

airings)). He also used the database to identify “all ads run by interest groups that

mentioned a candidate and aired within 60 days of the election,” and using that as the

denominator arrived at the same percentage as Buying Time 2000. Id. (dividing 331 by

53,840).

317

deliberately changed the data in order to decrease the number of pure issue

advertisements, calling it “baseless.” Id. at 4. In addition, Dr. Goldstein notes that

he reevaluated the coding of 30 advertisements in the 2000 database in his postBuying Time 2000 academic research having nothing to do with campaign finance

or the Buying Time studies and “[i]n 26 of these instances, [] changed the coding

from electioneering to genuine issue.” Id. at 5, 14-15. Dr. Lupia comments that

Dr. Gibson fails to connect his bias concerns with actual changes in the database or

demonstrate the effects directly. Lupia Rebuttal Report at 58. As such, Lupia

finds the charge that the investigators were committed to reaching a particular

outcome to be “at best, premature and, with certainty, not proven in the [Gibson]

report." Id.

346. Dr. Goldstein does find that three advertisements in the Buying Time 2000

database “were re-coded on Question 11 from ‘promoting a candidate’ to

‘providing information or urging action on an issue.’” Goldstein Rebuttal Report at

16. One was a version of a “cookie cutter” advertisement run by CBM (numbered

1269), which was “extremely similar” to a number of other CBM-sponsored
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advertisements that (Goldstein thought) had all been coded as “electioneering.” Id. 

This fact was brought to Dr. Goldstein’s attention by the Buying Time authors and,

concluding that it was not “meaningfully distinguishable from the other CBM ads,

. . . [he] recoded it as electioneering.” Id. at 17. The second was a National ProLife Alliance advertisement (numbered 2107) which mentioned Wisconsin

Senators Kohl and Feingold. Again, the Buying Time authors told Dr. Goldstein

that the advertisement was “virtually identical” to another advertisement run in

Virginia mentioning then-Senator Charles Robb. Id. Dr. Goldstein reviewed the

storyboards of the two advertisements and found them “not meaningfully

distinguishable, and resolved the inconsistency by re-coding [the commercial] as

electioneering.” Id. The final advertisement that was changed was sponsored by

the Rhode Island Women Voters (numbered 1367). The advertisement was

originally coded as a “genuine issue advertisement” but changed by Dr. Goldstein

after the Buying Time authors disagreed with the coding. Id. Dr. Goldstein

believes that the advertisement “is clearly electioneering.” Id. As noted infra,

Finding 356, Dr. Goldstein recently discovered that the six corresponding versions

of Advertisement #1269 were originally coded as “genuine issue advertisements”

by the students and later changed by the Buying Time 2000 authors to

“electioneering” commercials. Goldstein Dep. (Vol. 2) at 158-59 [JDT Vol. 8]. 

When these six advertisements are added to the analysis, which Dr. Goldstein
319

terms “the most conservative standard estimate,” one finds that 17 percent of the

advertisements aired within 60 days of the election which identified a candidate

were “genuine issue advertisements.” Id. at 169. Defendants’ experts personally

disagree that all of these commercials are “genuine issue advertisements.” See

Holman Dep. at 82-83 (stating he considers Advertisement #1367 to be his “poster

child of sham issue advocacy”); Goldstein Expert Report at 26 n.21 (noting that he

considers all the commercials with the exception of Advertisement # 2107 “were

clearly intended to support or oppose the election of a candidate”).

347. Dr. Gibson raises essentially the same concerns about Question 11 in Buying Time

2000 as he does for the practically identical Question 6 in Buying Time 1998,

discussed supra. Gibson Expert Report at 54-55. Dr. Goldstein states that “79.8

percent of the group-sponsored ads classified as electioneering were coded as

having run within 60 days of the election, compared to only 18.7 percent of nonelectioneering ads.” Id. at 28. As one “would expect . . . that ads designed to

promote or oppose a candidate would air relatively close to Election Day,” this

objective data, in Dr. Goldstein’s opinion, corroborates the coding in Question 11

and demonstrates that Dr. Gibson’s theory is incorrect. Id. at 28-29. 

348. The NRA criticizes the Buying Time 2000 study for not including two 30-minute

“news magazines” in the data which it claims are “genuine issue advertisements.” 

Proposed Findings of Fact of the NRA and the NRA PVF ¶ 9. “If these airings
217 One other NRA 30 minute “news magazine” would similarly would be

“captured” by BCRA due to the inclusion of the “First Freedom” cover. NRA App. 917,

920, 924, 929 (“It Can’t Happen Here) (also referring once to the “Clinton-Gore assault

weapons ban”).

320

had been considered, 34% of the total volume of speech that BCRA in 2000 would

have covered in the 60 days prior to the general election would have been genuine

issue advertisements.” Id. One of these “news magazines” was titled “California.” 

LaPierre Decl. ¶ 12 [NRA App. at 5]. “California” was aired 800 times in

California from August 29, 2002, to November 5, 2000. Id. ¶ 14. “During the

entirety of the 30-minute program, there was only one fleeting reference to a

federal candidate for office. Specifically, during a short segment urging viewers to

join the NRA and describing the benefits of membership, a cover of an issue of the

NRA’s magazine ‘First Freedom’ depicting Vice President Gore’s image, then a

presidential candidate, flashed on the screen for several seconds.” Id. ¶ 13.217 The

NRA does not allege that the study included other 30 minute advertisements, or

that the CMAG monitors such commercial broadcasts. It does not indicate how

other 30 minute “news magazines” it ran during 2000 would have affected the

results of Buying Time. See Proposed Findings of Fact of the NRA and the NRA

PVF at ¶¶ 3-7.

The Goldstein Expert Report

349. Although Dr. Goldstein was involved in assembling the data sets used in both
218 Dr. Goldstein notes “[t]hese figures . . . underestimate television expenditures

because CMAG estimates only cover markets serving 80 percent of the nation’s

population and make no attempt to measure the increased cost of advertising during the

peak seasons of political campaigns when the demand for television advertising time

pushes up spot prices.” Goldstein Expert Report at 8. 

321

Buying Time studies, he did not participate in the writing of either Buying Time

study or play a role in “selecting the conclusions that the authors of these reports

chose to draw from the database,” Goldstein Rebuttal Report at 3-4. His report,

therefore, constitutes a separate assessment of the data collected for the Buying

Time studies. The database he works from differs from that provided to the Buying

Time 2000 authors, as it has corrected omissions and errors discovered after

Buying Time 2000 was completed. Id. at 4-5. Dr. Goldstein’s study produces nine

principal conclusions. 

350. Scope of Political Advertising. In the 2000 election cycle (from January 1, 2000,

through election day), interest groups accounted for 16 percent of all political

television advertisements at an estimated cost of $93 million.218 Goldstein Expert

Report at 8. Political parties accounted for 27 percent of the political commercials

at an estimated cost of $162 million, while candidates accounted for the remaining

52 percent of advertisements at an estimated cost of $338 million. Id. Compared

to the 1998 campaign, the increase in interest group spending was the most

dramatic, “rising from approximately $11 million in 1998 to an estimated $93

million in 2000.” Id. at 9; see also id. at 10 (tbl. 1A-B) (showing the increase in
219 Dr. Goldstein determined what states constituted “battleground states” “based

on a professional review of various media sources,” such as CNN.com. Goldstein Expert

Report at 12 n.12. 

322

candidate spending (from approximately $136.6 million to approximately $338.4

million) and in political party spending (from approximately $25.6 million to

$162.3 million)). The majority of interest group advertising in 2000 was “not

sponsored by PACs, and fell outside FECA regulation.” Id. at 8. According to his

figures, interest group PACs spent roughly $2 million on 3,688 political

advertisements in federal races in 2000, while interest group non-PAC

expenditures constituted $90 million spent on 129,647 commercials. Id. at 10 (tbl. 

1B). 

351. The Role of Interest Groups and Political Parties in Political Television

Advertising for the 2000 Presidential Campaign: In terms of the presidential

campaign, political parties purchased 41 percent of television advertisements

aimed at the 2000 presidential race, while candidates accounted for 38 percent of

the commercials, and interest groups eight percent. Goldstein Expert Report at 11

& n.11 (the remaining advertisements were coordinated expenditures). Interest

group advertising in certain “battleground” states,219 however, “rivaled that of the

candidates or parties.” Id; see also id. at 12 (tbl. 2). In House elections, interest

group advertisements identifying a candidate and running in the last 60 days of the

campaign accounted “for 17 percent of total House ad broadcasts during the 2000
220 This assessment does not include the “tag lines” included in most

advertisements identifying the commercial’s sponsor that can include the party’s name. 

Goldstein Expert Report at 13 n.14. 

221 This result only reflects the 80 percent of households covered by CMAG, and

according to Dr. Goldstein “[n]o comprehensive information is available for the balance

of the markets or for ads airing on local cable stations.” 

323

election cycle,” while parties provided 22 percent of advertisements in these races,

and candidates 60.6 percent. Id. at 13. Dr. Goldstein finds that 99.8 percent of

political party-financed television advertising mentioned or depicted a candidate,

while only 1.8 percent of the ads “even mentioned the name of the party and many

fewer promoted the candidate by virtue of his or her party affiliation.” Id.

220

352. The BCRA Universe of Interest Group Electioneering: Dr. Goldstein finds that 35

interest groups broadcast commercials on television during the last 60 days of the

2000 election that mentioned a candidate. Goldstein Expert Report at 13. These

electioneering advertisements were aired 59,632 times at an estimated cost of

approximately $40.5 million. Id. at 14; see also id. at 14-15 (tbl. 3).221 The top ten

of these groups accounted for 87 percent of these expenditures. Id. at 13.

353. The “Magic Words” Test: The so-called “magic words” test derives from

Buckley’s legal standard for determining whether an advertisement is designed to

persuade citizens to vote for or against a particular candidate. Such advertisements

were termed characterized “express advocacy” by the Supreme Court, and defined

as containing words such as “elect,” “defeat” or “support.” See supra Finding ¶
324

272 n.57. Dr. Goldstein finds that 11.4 percent of the 433,811 advertisements

aired by candidates met the express advocacy test. Goldstein Expert Report at 16. 

Conversely, 88.6 percent of candidate advertisements in 2000 “were technically

undetected by the Buckley magic words test.” Id. This result demonstrates to Dr.

Goldstein “that magic words are not an effective way of distinguishing between

political ads that have the main purpose of persuading citizens to vote for or

against a particular candidate and ads that have the purpose of seeking support for

or urging some action on a particular policy or legislative issue.” Id. 

354. Temporal Distribution of Interest Group-Financed Television Advertisements

Which Mention a Candidate: Dr. Goldstein determines that the “CMAG database

provides empirical evidence of a strong positive correlation between

[advertisements’ reference to a candidate and the proximity in time of their

broadcast to the election] and consequently of their validity as a test for identifying

political television advertisements with the purpose or effect of supporting or

opposing a candidate for public office.” Goldstein Expert Report at 17. He finds

that interest group advertisements that “mention or depict a candidate tend to be

broadcast within 60 days of the election,” while those which do not “tend to be

spread more evenly over the year.” Id. In addition, Dr. Goldstein also finds the

distribution of those advertisements mentioning candidates for federal office to be

“closely correlated to the distribution of electioneering communications broadcast
325

by candidates and political parties.” Id. 

355. Geographic Distribution of Interest Group-Sponsored Advertisements Which

Mention a Candidate and are Aired within 60 Days of an Election: Dr. Goldstein

finds that interest group advertisements that mentioned a candidate and were

broadcast within 60 days of the 2000 election “were highly concentrated in states

and congressional districts with competitive races.” Goldstein Expert Report at

20. For Senate races, 89.2 percent of these commercials ran in competitive races.

Id. Political parties concentrated 90.6 percent of their ads in the competitive states. 

Id. at 21. House races demonstrated the same pattern, with 85.3 percent of interest

group “electioneering” advertisements, and 98.2 percent of political party

“electioneering” advertisements broadcast in competitive districts. Id. at 21.

356. Coders’ Perceptions of Interest Group Television Advertisements: Dr. Goldstein

had students code each interest group political television advertisement aired in the

2000 campaign. They could code the commercials’ purpose as either to “‘generate

support or opposition for candidate,’ or to ‘provide information or urge action,’”

and “were also given the option of ‘unsure/unclear.’” Goldstein Expert Report at

24 & n.20. The coders found 97.7 percent of the 60,623 interest group sponsored

television advertisements that mentioned a candidate and were broadcast within 60

days of an election as “electioneering,” or supporting or opposing a candidate. Id;

see also id. at 25 (tbl. 7). Dr. Goldstein finds this result particularly persuasive
222 Dr. Goldstein contends that this “percentage overstates the proportion of all

Genuine Issue Ads covered by BCRA, because it does not take into account the

unregulated ads run in non-election years during a single Congressional Term, such as

1999.” Goldstein Expert Report at 27 n.22. 

326

given the fact that the students coded one-third of all interest group television

advertisements run over the course of the 2000 campaign to be genuine issue

advertisements. Id.

357. Of the 45,001 advertisements deemed to be “genuine issue advertisements” by the

coders, 3.1 percent would have been covered by BCRA in that they were run

within 60 days of the election and identified a candidate. Goldstein Expert Report

at 27.222 Dr. Goldstein acknowledges that in Buying Time 2000 and an article he

co-authored with Dr. Jonathan Krasno fewer than six advertisements were said to

be unfairly captured by BCRA. Id. at 26 n.21. In those other publications,

“certain of these six ads–particularly those as to which there was disagreement

among the student coders–were ultimately treated as electioneering. In fact, [Dr.

Goldstein’s] own judgment is that five of these six ads were clearly intended to

support or oppose the election of a candidate . . . . However, in this report, [Dr.

Goldstein] chose[] to take the most conservative approach and count all six as

Genuine Issue Ads.” Id. However, Dr. Goldstein now acknowledges that a “most

conservative” estimate would include 6 more advertisements listed in footnote 8 of

his Rebuttal Report. Goldstein Dep. (Vol. 2) at 160 [JDT Vol. 8]. Adding these

six advertisements results in the finding that 17 percent of the advertisements run
223 But see Finding 358, infra. Edward Monroe, Director of Political Affairs for

the Associated Builders and Contractors, testified that "members of the public are

generally more receptive to and engaged in considering government policy ideas and

issues as elections near . . . ." Monroe Decl. ¶¶ 18-19. Paul R. Huard, Senior Vice

President for Finance and Administration of the National Association of Manufacturers

("NAM") testified that "[i]n broad terms ... Americans tend to have greater interest in

327

during the last 60 days of the 2000 campaign which identified candidates were

genuine issue advertisements. Id. at 169; see also Finding 354 supra. Dr. Gibson

objects to Dr. Goldstein's reliance “on the highly subjective coding” of the student

coders to determine the purpose of the issue advertisements (i.e., to promote a

candidate or to urge action on an issue). Gibson Rebuttal Report at 20; see also

Holman Dep. at 73 (noting that the question asks for a subjective assessment).

358. The Effectiveness of Broadcasting Issue Ads Close to an Election: Dr. Goldstein’s

final finding is that if an interest group is genuinely interested in promoting an

issue, the least desireable time to air such an advertisement is in the final 60 days

of an electoral campaign. Goldstein Expert Report at 32. This finding runs

counter to Plaintiffs’ argument that BCRA “may harm interest groups by

preventing them from advertising on their issues at a time when citizens are

supposedly paying the most attention to politics.” Id. Dr. Goldstein first

comments that “while there is evidence that interest in politics and elections rises

as Election Day approaches, there is absolutely no evidence to support the position

that interest in public policy issues rises as well during that time.” Id. (emphasis in

original).223 Dr. Goldstein notes that since the last two months of an election
political matters as an election approaches." Huard Decl. ¶ 10.

328

campaign is when most political advertisements are aired (64.2 percent of all

political advertisements run in 2000 were run in the campaign’s final 60 days), “an

individual interest group’s message on a public policy issue is likely to become

lost” if aired during that period. Id. Dr. Goldstein also posits that “partisan

attachments . . . harden during the last two months of a campaign” which makes it

“more difficult to persuade otherwise open-minded viewers of the merits of an

interest group’s policy stance.” Id. at 32-33 (citing John Zaller, Nature and

Origins of Mass Opinion (1992)). According to Dr. Goldstein's Expert Report, in

2000, 17.7 percent of such advertisements were aired in the final 60 days of the

election campaign, slightly more than the 16.4 percent “which would have run if

the ads had been equally distributed throughout the year.” Id. at 33; see also id. at

31 (tbl. 9). In contrast, during the months of April through June 2000, 45 percent

of such issue advertisements were aired, “as against an expected 25 percent if the

ads were spread evenly throughout the year.” Id. Dr. Goldstein believes this

concentration is “a likely result of groups turning on the heat to pass or defeat bills

before Congress adjourned for the summer.” Id. Dr. Gibson is critical of Dr.

Goldstein's finding. Gibson Rebuttal Report at 26. According to Dr. Gibson,

political psychologists, like William McGuire (whose work Dr. Goldstein cites),

have concluded “that to persuade someone involves two steps. First, one must get
329

the attention of the person one is attempting to persuade. Second, one must

overcome the strength of existing attitudes if the attempt at persuasive

communication is to result in attitude change.” Id. Given that “those with strong

attitudes tend to pay attention to political communications while those with weak

political attitudes tend to ignore them . . . . [t]hose most easily reached are least

easily changed; those most easily changed are those most difficult to reach.” Id. 

Since those with “weak attitudes” tend to pay attention during “the most extreme

circumstances,” the period leading up to the election provides the window in

which to communication with these difficult to reach, but easily persuaded

individuals. Id. at 27. Dr. Gibson also rejects the argument that issue advertising

close to an election is unproductive because partisan allegiances harden as

elections approach. Id. He states that this line of reasoning leads to the strange

conclusion that “candidates should abandon advertising as the election approaches

since these hardened attitudes are difficult to convert.” Id. Dr. Gibson points out

that “that does not happen, since, as the election approaches, candidates try to

reach an even greater percentage of marginal voters, who have little interest in

politics, and relatively pliable issue views.” Id. 

Genuine Issue Advertisements About Legislation and Public Policy Issues Are Run

During the Sixty Days Before A Federal Election Notwithstanding the Competition

for Air Time With Candidate-Centered Advertisements

359. Notwithstanding the disadvantages of running genuine issue advertisements during
224 Some political consultants believe there is limited utility in running a genuine

issue advertisement in the 60 days before a federal election. See Strother Decl. ¶7 [DEV

9-Tab 40]. (“[T]hese issue advertisements were run when there were no pending

elections. For these true issue ads, we specifically avoided the months right before the

election because (a) air time would be more expensive; and (b) each ad would just

become part of the election season gumbo and viewers would assume that it was just

another election-related ad.”); Strother Cross Exam. at 70-71; Bailey Decl. ¶12 [DEV

6-Tab 2]. Dr. Goldstein also believes that it is ineffective to run genuine issue

advertisements in the weeks leading up to an election. "Running genuine issue ads near

an election does not increase the effectiveness of those ads; in fact, it is likely that the

ads’ effectiveness actually decreases. . . . In addition to being less effective at conveying

their messages, issue ads run close to an election are also less cost-effective, since the

price of scarce television and radio air time is higher near an election than during the rest

of the year." Goldstein Expert Report at 32-33 [DEV 3-Tab 7]; Magleby Expert Report at

20 [DEV 4-Tab 8] (“In contrast, genuine issue ads are more likely to run earlier since

rates are cheaper and proximity to an election is less important.”); Krasno & Sorauf

Expert Report at 57 [DEV 1-Tab 2] (“Pure issue ads are more likely to respond to the

congressional calendar or an advertising strategy unrelated to an election.”).

330

the 60 day period leading up to a general election,224 plaintiffs have demonstrated

that it can be effective and necessary for them to run legislation-centered

advertisements in the weeks before an election. Monroe Decl. ¶¶ 18-19 [10 PCS]

(“The defendants in this proceeding have argued that ads run near the time of an

election are evidence that the association’s actual intent is to advocate the election

of one candidate or another. However, there are other, more valid, explanations

for the timing of our advertising. One is that serious legislative initiatives or

regulatory proposals often are considered near the time of elections. Also, it is

also clear that members of the public are generally more receptive to and engaged

in considering government policy ideas and issues as elections near. If that is the

time when people will listen, that is the time to speak. And once an election
331

occurs, there seems to be a period of fatigue during which political matters are of

less interest, making issue ads then less effective.”); Huard Decl. ¶ 10 [10 PCS]

(“NAM has run issue ads at times when no election was impending. In broad

terms, however, Americans tend to have greater interest in political matters as an

election approaches. At the same time, elected officials are most attuned to the

views of their constituents in the pre-election period. Thus, for many purposes, the

pre-election season is a critical time for issue ads. Conversely, after an election

public interest in public policy matters fades, perhaps due to fatigue. Then, few

issue ads are run soon after an election.”); Murphy Decl. ¶ 12 [3 PCS] (“Finally, it

is important to emphasize that the blackout periods imposed by the BCRA— 60

days before a general election and 30 days before a primary— are often periods of

intense legislative activity. During election years, the candidates stake out

positions on virtually all of the controversial issues of the day. Much of this

debate occurs against the backdrop of pending legislative action or executive

branch initiatives. Some of the President’s or Attorney General’s boldest

initiatives are advanced during election years–often within 60 days of a general

election. This year, for instance, legislation creating a new federal department of

Homeland Security is under consideration during this pre-election period.”). 

Plaintiffs’ expert Dr. Gibson agrees that running issue advertisements in proximity

to federal elections is effective. See Finding 357, supra.
332

360. The legislative calendar can necessitate the running of issue advertisements during

the final days of an election campaign. Edward Monroe states that “serious

legislative initiatives or regulatory proposals often are considered near the time of

elections,” without providing actual examples of advertisements run in response to

the legislative activity. Monroe Decl. ¶ 18 [10 PCS]; see also Huard Decl. ¶ 11

[10 PCS] (“[I]ssue ads supporting a particular tax bill may well be needed as the

bill approaches a vote. If it happens that primaries or elections are imminent, that

does not diminish the need to be able to speak out right then.”); Murphy Decl. ¶ 12

[3 PCS] (commenting that “the blackout periods imposed by the BCRA . . . are

often periods of intense legislative activity,” noting consideration of the Homeland

Security Department bill occurred within 60 days of the 2002 election, but listing

activities that would not be affected by BCRA). Some deponents provide concrete

examples of merging electoral and legislative calendars and their actions during

those periods. The AFL-CIO aired advertisements regarding an “upcoming budget

fight over education programs” in September 1996. Mitchell Decl. ¶ 41 & Exhibit

59 (“No Two Way”). The labor group ran another "genuine" issue advertisement

between September 21 and 25, 1998, in eight congressional districts opposing “fast

track” trade legislation which was scheduled for a vote in the House of

Representatives on September 25, 1998. Mitchell Decl. ¶ 52 & Exhibit 116

(“Barker”). During the same month, the AFL-CIO ran a legislation-centered
225 According to Defendants, “Deny” continued to run “well after the legislative

action the ad was supposedly timed to influence.” Gov’t Opp’n Br. at 93. The AFL-CIO

denies this point. AFL-CIO Reply Br. at 6 n.6.

333

advertisements aimed at a scheduled Senate vote on HMO legislation that the

AFL-CIO considered to be inadequate, id. ¶ 51 & Exhibits 105-07 (“Deny”),225 and

opposing the Taxpayer Relief Act which had been recently marked up by the

House Ways and Means Committee, Mitchell Decl. ¶ 52 & Exhibits 108-09 [PCS

6] (“Spearmint” and “Spear”); Shea Decl. ¶ 43 [PCS 7]. In 2002, the GOA ran a

radio advertisement in New Hampshire within 30 days of the primary election for

the New Hampshire Republican U.S. Senate nominee, which supported legislation

allowing airline pilots to be armed. Pratt Decl. ¶ 5. See also Mann Cross Exam. at

176 (explaining that a flurry of legislative activity occurs near the end of a

congressional session, therefore, often within the 60 day period preceding a

general election).

361. The ACLU seeks to influence how members vote on pending legislation by

educating the public about its concerns and using the public to communicate their

concerns to their elected representatives. Murphy Decl. ¶ 8 [3 PCS/ACLU 9]

(“Inevitably, many of the ACLU’s statements involving legislation or executive

branch policies, including print and broadcast communications, refer to a clearly

identified candidate, member or executive branch official.”). The ACLU cites as

an example an advertising campaign directed at Speaker Dennis Hastert, who
334

represents the fourteenth district of Illinois, in March of 2002 urging him to bring

the Employment Non-Discrimination Act ("ENDA") to a full vote in the House. 

Id. ¶ 10; see also Text of Advertisement, 3 PCS/ACLU 14-17. The ad was

broadcast on multiple Chicago and Aurora, Illinois radio stations throughout the

weekend of March 15-March 17, 2002. Id. Since the advertisement was run

within thirty days of a primary election, the commercial would have constituted an

electioneering communication under BCRA and would have violated BCRA

because it was paid for with the general treasury funds of a corporation. Id.

(observing that the “ACLU also hoped to highlight the constitutional flaws of

BCRA”).

362. The text of the Hastert ad is as follows:

Sound Effect: Long Tympani/Drum Roll

Male announcer – Master of Ceremonies (during sound effect): And now ...

Sound Effect: Drum Roll Ends with Cymbal Crash

Sound Effect: 2 Seconds of Silence

Male Announcer: ... ... We're waiting.

Sound Effect: Long Tympani/Drum Roll Starts Again

Sound Effect: Drum Roll Ends with Cymbal Crash

Sound Effect: 2 Seconds of Silence

Male Announcer: ... ... Still waiting.

Female Announcer: Waiting for our Congressman, (Sound Effect Music Up

– Pop Goes the Weasel or Circus Music) Dennis Hastert, to protect

everyone from discrimination on the job.

As speaker of the House, Representative Hastert has the power to stop the

delays and bring the Employment Non-Discrimination Act – ENDA – up for

a vote in Congress. It's about fairness. It's time to ensure equal rights for

all who work, including lesbians and gay men, and make sure that it's the

quality of our work that counts, and nothing else. (Music Out.)
335

Male Announcer: So Congressman Hastert

Sound Effect: Tympani/Drum Roll

Male Announcer — Master of Ceremonies (during sound effect): What will

it be?

Sound effect: Drum Roll Ends with Cymbal Crash

Male Announcer: Protecting Workers from discrimination, or more delays?

Female Announcer: Take action now. Send Speaker Hastert a letter urging

him to support fairness and bring ENDA to the floor by going to

www.aclu.org/enda.

Male Announcer: Paid for by the American Civil Liberties Union.

Murphy Decl. Exhibit 15 (script of ACLU radio ad, "ENDA Delays").

363. The ACLU’s purpose in running the advertisement was to create a commercial that

would violate BCRA and thereby provide standing to challenge the

constitutionality of the Act. A March 10, 2002, e-mail from Laura Murphy,

legislative director of the ACLU, to colleagues explained why the ACLU’s March

2002 Hastert ad was run:

Anthony wants the ACLU to be in a position to challenge

Shays-Meehan when it becomes law as early as during the Easter

recess. As you know the issue advocacy restrictions would select

groups like the ACLU if we want to take out and [sic] ad 30 days

before a primary or 60 days before a general election in broadcast,

satellite or cable outlets. These ads would have to reach 50,000

people or more and would have to mention the name of a candidate. 

Steve thinks that the ads that we ran during the 2000 election cycle

would not qualify to give us clear standing to challenge the law.

Email Message Attached as Exhibit to Resps. of American Civil Liberties Union to

Defendant’s Second Set of Requests for Production of Documents, Exhibit B;

USA-ACLU-00003 [DEV 130-Tab 4] (italics added).

364. The ACLU asserts that it does not engage in any federal election activity as
226 Denise Mitchell was appointed to the position of Special Assistant for Public

Affairs to AFL-CIO President John J. Sweeney on November 1, 1995, shortly after

Sweeney was elected President of the AFL-CIO. Mitchell Decl. ¶ 1 [6 PCS]. Prior to

assuming this position, Mitchell had worked with Sweeney in a similar role for a number

of years when he was President of the Service Employees International Union and she

had assisted in his campaign for election to the position of AFL-CIO President. Id. 

Mitchell has worked in marketing and media relations for unions and other nonprofit

organizations on working family issues for more than 20 years. Id. In her current

position, Mitchell has the primary responsibility for overseeing all public relations

activities of the AFL-CIO including all AFL-ClO use of broadcast and print media. Id. ¶

2. Mitchell is responsible for making the operational decisions as to both the substance

and the method of communication of the AFL-CIO’s message to union members and to

the general public. Id. Mitchell makes the strategic and logistical decisions regarding the

AFL-CIO’s media buys, and, within policy guidelines, makes the editorial decisions

regarding the content of the AFL-CIO’s communications.

336

defined by the FECA. A. Romero Decl. ¶ 3, 3 PCS/ACLU 2. The ACLU likewise

asserts that it has never taken a position in a partisan political election in its

82-year history. A. Romero Decl. ¶ 3, 3 PCS/ACLU 2.

365. Krasno and Sorauf comment on the ACLU’s Hastert advertisement:

[T]he ACLU has demonstrated with a commercial about gay rights, aired in

House Speaker Dennis Hastert’s district last spring before the GOP primary,

that it is possible to deliberately create a pure issue ad that runs afoul of

BCRA. 

Krasno & Sorauf Expert Report at 62 [DEV 1-Tab 2]; see also Text of ads, 3

PCS/ACLU 16-17 (noting script of advertisement that the ACLU ran in the print

media over this issue).

366. The AFL-CIO's broadcast advertising campaigns were focused, in part, on issues

of importance to AFL-CIO members. In her testimony, Denise Mitchell,226 Special
337

Assistant for Public Affairs to AFL-CIO President John J. Sweeney, explains how

the AFL-CIO selected the particular issues discussed in the advertisements:

In both election and non-election years, my goal in selecting the issues to be

addressed in the AFL-CIO’s broadcast advertising has been to focus

attention on a series of national policy issues of importance to working

families. I have been guided in selecting these issues by input from the

Executive Council of the AFL-CIO, which regularly discusses and focuses

on a legislative and policy agenda for the organization, the AFL-CIO’s

ongoing lobbying program, polling and other opinion research, conducted

primarily by the Washington, D.C, firm of Peter Hart Associates, and the

views of affiliated unions. Most of the issues addressed in our

advertisements, such as budget priorities, tax fairness, Medicare, and health

care, recur in virtually every session of Congress; others, such as fast-track

trade legislation or the trade status of China, may be current for a period of

years and then become inactive for awhile.

Mitchell Decl. ¶ 10 [6 PCS]; see also id. ¶ 70 [6 PCS] (“[The indirect effect on

election outcomes] has never been the point of our broadcast advertising program,

within or outside the 30-and 60-day periods.”).

367. Plaintiff AFL-CIO has provided a number of examples of “genuine issue

advertisements” which relate to pending legislation that BCRA would capture

because the commercials ran on television and radio within 30 days of a primary

election. AFL-CIO Opening Br. at 10-11 (citing Mitchell Decl. ¶¶ 32, 34-36, 37-

39, 40, 50, 58-59). The advertisements cited to by the AFL-CIO ran in “flights,”

aimed at particular legislation pending at the time. Practically all of these flights

consisted of a variety of “cookie-cutter” advertisements, meaning advertisements

that are virtually identical except that they reference different candidates. See
227 The advertisements are: “Too Far,” Mitchell Decl. ¶ 32 & Exhibit 31; “1991,”

id. ¶ 34 & Exhibit 33; “Raise,” id. ¶ 35 & Exhibit 35; “Votes,” id. ¶ 35 & Exhibit 36;

“People,” id. ¶ 35 & Exhibit 38; “No,” id. ¶ 35 & Exhibit 39; “Minimum Wage,” id. ¶ 36

& Exhibit 42; “$5.15,” id. ¶ 36 & Exhibit 44; “Couple,” id. ¶ 37 & Exhibit 47; “Lady,” id.

¶ 37 & Exhibit 48; “Peace,” id. ¶ 37 & Exhibit 49; “Whither,” id. ¶ 37 & Exhibit 50;

“Another,” id. ¶ 38 & Exhibit 53; “Edith,” id. ¶ 40 & Exhibit 58; “Pass,” id. ¶ 50 &

Exhibit 94; “Support,” id. ¶ 50 & Exhibit 95; “Call,” id. ¶ 50 & Exhibit 98; “Failed,” id. ¶

50 & Exhibit 99; “Liable,” id. ¶ 50 & Exhibit 100; “Soon,” id. ¶ 50 & Exhibit 100;

“Basic,” id. ¶ 50 & Exhibit 102; “Label,” id. ¶ 57 & Exhibit 127; “Trust,” id. ¶ 57 &

Exhibit 128; “Endure,” id. ¶ 57 & Exhibit 129; “Stand,” id. ¶ 57 & Exhibit 130; “Block,”

id. ¶ 58 & Exhibit 137; “Help,” id. ¶ 58 & Exhibit 138; “Sky,” id. ¶ 59 & Exhibit 139;

and “Protect,” id. ¶ 59 & Exhibit 140.

228 These four advertisements are: “Job,” Mitchell Decl. ¶ 61 & Exhibits 1 (at 102),

141 (All airings of “Job” took place within 60 days of the 2000 general election);

“Barker,” id. ¶ 53 & Exhibit 116 (All airings of “Barker” took place within 60 days of the

2000 general election); “No Two Way,” id. ¶ 41 & Exhibit 59 (All airings of “Job” took

place within 60 days of the 2000 general election); and “Raiders,” id. Exhibit 1 at 36, 38-

39, Exhibit 58 at 10. “Job,” “Barker,” and “No Two Way” were captured by BCRA’s 60-

day window.

338

generally Mitchell Decl. Exhibit 1. Ms. Mitchell describes advertising campaigns

comprising 29 different sets of cookie-cutter advertisements, some of which were

run within 30 days of a named candidate’s primary election. Mitchell Decl. ¶¶ 32,

34-36, 37-39, 40, 50, 58-59.227 In addition, Exhibit 1 shows that four more

advertisements would have been captured by BCRA due to their airing within 30

days of the identified candidate’s primary, but since all of the airings of three of

these commercials would have been captured by BCRA’s 60 day-window as

well.228
229 "Barker" aired in the districts of Congressman Chris John (LA-07);

Congressman Scott Klug (WI-02); Congresswoman Jo Ann Emerson (MO-08);

Congresswoman Anne Northup (KY-03); Congressman Jack Kingston (GA-01); and

Congressman Rick White (WA-01). Mitchell Decl. Exhibit 1 at 86.

339

Representative Examples of Genuine Issue Advertisements Aired Within 30 Days of a

Primary Election, or 60 Days of a General Election, and Mentioning the Name of a

Federal Candidate

368. The AFL-CIO aired a radio advertisement entitled "Barker" within 60 days of the

1998 general elections.229 Mitchell Decl. Exhibit 1 at 86. The advertisement urged

the candidates to Fast Track trade legislation, and only mentions that candidate's

name with respect to asking the viewer to tell the candidate to "vote no on Fast

Track." The following is the audio of the ad:

 Paid for by the Working Men and Women of the AFL-CIO. [Barker

speaking]: Okay ladies and gents, step right up and see if you can follow the

ball. Is it here? Is it there? Where could it be? [Voice over]: They're

playing games again in Washington. Without discussion or debate, they're

planning another vote on the controversial Fast Track law — special powers

to ram through trade deals like NAFTA. Fast Track failed last year because

working families don't want more trade deals that put big corporations first;

deals that ignore our concerns about lost jobs; environmental problems on

our borders, and dangerous, imported foods. But Newt Gingrich and the

sponsors of Fast Track hope they can sneak it by this fall, while public

attention is focused on other issues. [Barker speaking]: Keep your eyes on

the ball now ... [Voice over]: Call Representative _____ at xxx-xxx-xxxx

and tell him to vote no on Fast Track. Tell him we're still paying attention. 

And Fast Track is still a bad idea.

Mitchell Decl. Exhibit 116. Defense Expert Magleby, examined "Barker" during

his cross examination and stated that he would rate it as a "genuine" issue ad. 

Magleby Cross Exam. at 108-109. Even though "Barker" mentioned the name of a
230 According to Ms. Mitchell, "Call" was one of "several flights of television and

radio advertisements designed to generate support for HMO reform legislation" that were

sponsored by the AFL-CIO. Mitchell Decl. ¶ 50. Seventeen versions of "Call" were

broadcast, two of which named federal candidates within 30 days of their primary. Id.

Exhibit 1 at 80-82. 

340

candidate, Magleby determined that it was a genuine issue advertisement because

it "doesn’t mention how [the candidate] voted. It doesn’t represent what [the

candidate] has said about the issue. The body of the ad has no referent to [the

candidate] whatsoever. The only referent to [the candidate] is the call line.” 

Magleby Cross Exam. at 103-105; see also id. at 106 (explaining that "a generic

call your Congressman, call your Senator, when then linked to a legislation and

call your Congressman or Senator about this legislation without a referent to their

position on the issue, seems to me substantively different than when they are 

mentioned in view of what their position is on that issue. Q. When you say

substantively different, are you referring to a difference with respect to whether the

advertisement communicates an electioneering message? A. Yes."). 

369. The AFL-CIO paid for the following television advertisement, entitled, "Call."

"Call" aired within 30 days of the 1998 primary elections of Congressman Jim

Tanner (TN-08) and Senator Kit Bond (MO). The ad urged the candidates to

support the Patient Bill of Rights Act.230

 See Mitchell Exhibit 1 at 80. The

following is the text of the advertisement:

Nurse at nursing station, direct-to-camera: I love nursing. But it's so much

harder that it's ever been. These bureaucrats from the insurance companies. 
341

They routinely deny care, and they make decisions that only the doctors

should be making." Today the insurance industry is spending millions to

block a law in Congress that would protect our rights—and our lives—in

the new world of HMOs and managed care. Call Congresswoman

Chenowith. Tell her to stand up for us and support the Patient Bill of

Rights Act. "If Congress would just do their job . . . then I can do mine."

Mitchell Exhibit 99 (while the script of "Call" produced by the AFL-CIO mentions

Congresswoman Chenowith's name, a version of "Call" was broadcast on July 15-

21, 1998, but using Congressman Tanner's name and Senator Bond's name).

370. The AFL-CIO paid for the following television advertisement, entitled, "Deny."

"Deny" aired within 60 days of the 1998 general elections of Senator Kit Bond

(MO), Senator Charles Grassley (IA), the late Senator Paul Coverdell (GA), and

Senator Lauch Faircloth (NC). Mitchell Decl. Exhibit 1 at 83-84. The

advertisement urges the candidates to oppose S, 2330, a patients' rights bill, and

only mentioned that candidate's name with respect to asking the viewer to tell the

candidate to vote "no" on the legislation. The following is the audio of the ad: 

A young cancer victim needs an outside specialist ... But the HMO says no. 

A man with chest pains goes to the nearest emergency room . . . But his

HMO won't pay. An elderly patient needs more hospital time . . . But her

doctors are over-ruled [sic] by bureaucrats. Still, Republicans in

Washington are pushing an empty HMO proposal that won't stop these

abuses. Tell Senator ____ to vote no on S. 2330 . . . . . . and demand a real

patient protection law. [Chyron showing 1-800 number for viewers to call].

Mitchell Decl. Exhibit 105.

371. The AFL-CIO paid for the following television advertisement, entitled,

"Spearmint." "Spearmint" aired within 60 days of the 1998 general elections of the
231 The AFL-CIO aired another advertisement entitled "Spear" that was virtually

identical to "Spearmint." "Spear" aired within 60 days of the 1998 general elections of the

following Members of Congress: Congressman Robert Aderholt (AL-04); Congressman

Mike Crapo (ID-02); Congresswoman Helen Chenoweth (ID-01); and Congressman John

Ensign (NV-01); Congressman Mark Neumann (WI-01). Mitchell Decl. Exhibit 1 at 85-

86. Like "Spearmint," "Spear" urged the candidate to protect Social Security, and only

mentioned the candidate's name with respect to asking the viewer to tell the candidate to

"vote no on this election-year tax scheme." Mitchell Decl. Exhibit 109.

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following Members of Congress: Congressman Rick White (WA-01);

Congressman Jim Leach (IA-01); Congressman Jim Nussle (IA-02);

Congresswoman Anne Northup (KY-03); Congressman Jim Bunning (KY-04);

Congressman Mike Parker (MS-04); Congressman Virgil Goode (VA-05);

Congressman Scott Klug (WI-02); Congressman Steve Chabot (OH-01). Mitchell

Decl. Exhibit 1 at 84-85. The advertisement urged the candidates to oppose tax

cuts and to protect Social Security, and only mentioned that candidate's name with

respect to asking the viewer to tell the candidate to "vote no on this tax scheme." 

The following is the audio of the ad:

After years of deficits, the politicians in Washington say we're rolling in

money. But here's something they're not saying. Virtually every dollar of

the budget surplus comes from Social Security. Now the Republican

Congress wants to spend this Social Security surplus on an eighty billion

dollar election-year tax cut ... ... even as there's talk about cutting Social

Security for future retirees. Call Congressman ______, and tell him to vote

no on this tax scheme. Tell _____ to put Social Security first!

Mitchell Decl. Exhibit 108.231

372. The AFL-CIO paid for the following television ad, entitled, "Label." "Label" aired

within 30 days of the 2000 primary elections of the following Members of
232 "Label," as well as the advertisements entitled "Trust" and "Endure," see infra

n.233, were run in February through June 2002 as part of "several flights of ads . . . in

opposition to President Clinton's proposal to provide permanent normal trade relations to

China." Mitchell Decl. ¶ 57. AFL-CIO ran 14 versions of "Label," two within 30 days of

a named candidate's primary. Id. Exhibit 1 at 92-93.

233 The AFL-CIO also aired two other advertisements that were similar to "Label": 

"Trust" and "Endure." Sixteen versions of "Trust" were aired, two within 30 days of the

2000 primary elections of Congressman Steve Buyer (IN-05) and Congresswoman Eva

Clayton (NC-01). Mitchell Decl. Exhibit 1 at 94-97. "Trust," like "Label," urged the

candidates to oppose the China trade bill, and only mentioned the candidate's name with

respect to asking the viewer to tell the candidate to "keep China on probation." Mitchell

Decl. Exhibit 128. "Endure" also aired within 30 days of the 2000 primary elections of

Members of Congress (Congressman Edward Whitfield (KY-01), Congressman Steve

Buyer (IN-05), and Congresswoman Eva Clayton (NC-01)), and urged candidates to

oppose a trade deal for China. Mitchell Decl. Exhibit 129.

343

Congress: Congressman Silvestre Reyes (TX-16) and Congressman Ron Paul (TX14). Mitchell Decl. Exhibit 1 at 92. The ad urged the candidates to oppose a trade

bill to benefit China.232 The following is the audio of the ad:

 Behind this label is a shameful story. Of millions herded into forced labor

camps, and average working wages of just thirteen cents an hour. Of a

nation that routinely violates trade agreements; flooding our markets with

low-wage imports; undercutting American jobs. Yet know Congress is

poised to reward China with permanent free trade status, instead of a oneyear deal. Call Congressman _____, and tell him to keep China on

probation. Until this label stands for fairness.

Mitchell Decl. Exhibit 127.233

373. The AFL-CIO paid for the following television advertisement, entitled, "Endure."

"Endure" aired within 30 days of the primary elections of the following Members

of Congress: Congressman Edward Whitfield (KY-01); Congressman Steve

Buyer(IN-05); and Congresswoman Eva Clayton (NC-01). Mitchell Decl. Exhibit
344

1 at 95-96. The advertisement urged the candidate to oppose a trade deal for

China. The following is the audio of the ad:

"I voiced my opinion that China ought to protect worker's rights, people

ought to have human rights .... For that, I spent 18 years in prison and was

very nearly executed." Wei Jingsheng endured years of torture for

challenging a brutal system of slave wages and sweat shops, through which

Chinese workers are exploited, and Americans lose jobs. But instead of

pressuring China to stop these practices, Congress is set to scrap its annual

review of China's record, and reward Beijing with a permanent trade deal ,,,

a permanent trade deal though China's broken every trade pact it's signed

with the U.S. for the past decade. "If you give China permanent trade

status, and don't talk about it once a year, every year, and evaluate how they

treat the Chinese people, they'll feel they can do whatever they want,

however they want. This will be incredibly detrimental to human rights in

China." Tell your member of Congress to keep China on probation ... until

China earns our trust. [Text on screen reads: Call Your Member of

Congress 800-378-1844].

Mitchell Decl. Exhibit 129.

Representative Examples of Candidate-Centered Issue Advertisements Aired Within 30

Days of a Primary Election or 60 Days of a General Election

374. The AFL-CIO paid for the following radio advertisement entitled "No Two Way,"

which aired in 35 congressional districts within 60 days of the 1996 general

election. Mitchell Decl. ¶ 41. "No Two Way" targeted those candidates who, as

Members of Congress, had voted "to cut the college loan program in October,

1995." Id.

CAROLYN: My husband and I both work. And next year, we'll have two

children in college. And it will be very hard to put them through, even with

the two incomes. [Announcer]: Working families are struggling. But

Congresswoman Andrea Seastrand voted with Newt Gingrich to cut college
345

loans, while giving tax breaks to the wealthy. She even voted to eliminate

the Department of Education. Congress will vote again on the budget. Tell

Seastrand, don't write off our children's future. CAROLYN: Tell her, her

priorities are all wrong.

Mitchell Decl. Exhibit 114.

375. The AFL-CIO paid for the following television advertisement entitled "Retire,"

which aired within 60 days of the 1996 general election. Mitchell Decl. ¶ 42. 

"Retire" was one of the "'electronic voter guide[]'" advertisements run by the AFLCIO "beginning in late September and continuing until the November election." Id.

What's important to America's families? [middle-aged man, interview

style]: "My pension is very important because it will provide a significant

amount of my income when I retire." And where do the candidates stand? 

Congressman Charlie Bass voted to make it easier for corporations to raid

employee pension funds. Arnie Arnesen opposes that plan. She supports

new safeguards to protect employee pension funds. When it comes to your

pension, there is a difference. Call and find out. 

Mitchell Decl. Exhibit 63.

376. The AFL-CIO paid for the following television advertisement entitled "Job,"

which aired in fourteen congressional districts within 60 days of the 2000 general

election. Mitchell Decl. ¶ 61 and Exhibit 1 at 101-102. The advertisement

targeted Members of Congress who had voted "to prevent an important OSHA

regulation intended to prevent repetitive motion injuries from being implemented." 

Id. at ¶ 61. The regulation was part of the Departments of Labor and Health and

Human Services budget bill, which President Clinton had threatened to veto if it

included a rider removing the OSHA regulation. Id. Initially, the House
346

leadership had agreed to a compromise, but then "backed out in October 2000." 

Id.

[Machine operator]: "Well when you're lifting 70 thousand pounds of

castings a day and you do this for 24 years, you're gonna hurt yourself. I

had surgery on both hands but I'll be in pain the rest of my life." Every

year, tens of thousands of Americans suffer permanent and crippling

repetitive motion injuries on the job. Yet Congressman ______ voted to

block federal safety standards that would help protect workers from this

risk. Tell _____________ his/her politics causes pain. [Machine operator]:

"We're all human beings we need to help each other so that this stuff doesn't

happen to us."

Mitchell Decl. Exhibit 141.

* * *

VI. Conclusion

For the reasons set forth in my opinion, with regard to Title I of BCRA, I find

constitutional: new FECA Section 323(a) only to the extent that it bans national parties

from using nonfederal funds for Section 301(20)(A)(iii) activities; new FECA Section

323(b) as applied to Section 301(20)(A)(iii) only; new FECA Section 323(e) except to the

extent that it prevents federal candidates from soliciting funds for their national parties;

and new FECA Section 323(f). I find unconstitutional: new FECA Section 323(a) except

to the extent it bans national parties from using nonfederal funds for Section

301(20)(A)(iii) activities; Section 323(b) as applied to Sections 301(20)(A)(i), (ii), and

(iv); new FECA Section 323(d); and new FECA Section 323(e) to the extent that it

prevents federal candidates from soliciting funds for their national parties. With regard to
347

Title II, for the reasons set forth in my opinion, I find constitutional: Section 201's

backup definition of electioneering communications as severed and Section 204 to the

extent that it applies to non-MCFL organizations. I find unconstitutional: Section 201's

primary definition; Section 204 insofar as it applies to MCFL organizations; and Section

213. For the reasons set forth in this opinion, I also find unconstitutional Section 318 and

and Section 504. All of my other judgments are set forth in the Per Curiam opinion. 

 

/s/ 

RICHARD J. LEON

United States District Judge

May 1, 2003