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No. 02-___ 

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

In The 

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

CALIFORNIA DEMOCRATIC PARTY, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States 


District Court For The District Of Columbia 


----♦-- -

JURISDICTIONAL STATEMENT 

----♦-- -

JAN WITOLD BARAN


THOMAS W. KIRBY


LEE E. GOODMAN


WILEY, REIN & FIELDING, LLP 


1776 K Street, N.W.


Washington, D.C. 20006 


(202) 719-7000 


CHARLES H. BELL, JR. 


BELL, MCANDREWS, HILTACHK


& DAVIDIAN, LLP 

455 Capitol Mall, Suite 801 

Sacramento, CA 95814 

(916) 442-7757 

Attorneys for California 

Republican Party, Shawn 

Steel, Timothy Morgan, 

Barbara Alby, Santa Cruz 

Republican Central 

Committee, and 

Douglas R. Boyd, Sr. 

LANCE H. OLSON 

Counsel of Record 

DEBORAH CAPLAN 

OLSON, HAGEL & 

FISHBURN, LLP 

555 Capitol Mall, Suite 1425 

Sacramento, CA 95814 

(916) 442-2952 

JOSEPH E. SANDLER 

NEIL P. REIFF 

JOHN HARDIN YOUNG 

SANDLER, REIFF & 

YOUNG, P.C. 

50 E Street, S.E. # 300 

Washington, D.C. 20003 

(202) 479-1111 

Attorneys for California 

Democratic Party, Art 

Torres, and Yolo County 

Democratic Central 

Committee 

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

OR CALL COLLECT (402) 342-2831 
i 

QUESTION PRESENTED 

Do the restrictions imposed upon state and local 

political parties and party officers by Title I of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) violate Article 

I, section 4 of the U.S. Constitution, the First, Fifth, and 

Tenth Amendments, and principles of federalism? 
ii 

PARTIES TO THE PROCEEDING 

The following state and local political party committees, and officers of those committees, were plaintiffs in 

the District Court and are appellants in this Court: California Democratic Party; California Republican Party; Yolo 

County Democratic Central Committee; Santa Cruz 

County Republican Central Committee; Art Torres; Shawn 

Steel; Timothy J. Morgan; Barbara Alby; Douglas R. Boyd, 

Sr. 

The following were defendants or defendant-intervenors 

in the District Court and are appellees in this Court: 

Federal Election Commission; United States Department 

of Justice; Federal Communications Commission; Senator 

John McCain; Senator Russell Feingold; Representative 

Christopher Shays; Representative Marty Meehan; Senator Olympia Snowe; Senator James Jeffords. 

STATEMENT PURSUANT TO RULE 29.6 

None of the appellants has a parent corporation, and 

no publicly held company owns 10% or more of the stock of 

any of the appellants. 
iii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ......................................... i 


PARTIES TO THE PROCEEDING ............................ ii 


STATEMENT PURSUANT TO RULE 29.6................ ii 


OPINIONS BELOW ................................................... 1 


JURISDICTION.......................................................... 1 


RELEVANT STATUTES AND CONSTITUTIONAL


PROVISIONS.......................................................... 1 


STATEMENT OF THE CASE .................................... 2 


SUBSTANTIAL QUESTIONS ARE PRESENTED .... 9 


CONCLUSION............................................................ 18 

iv 

TABLE OF AUTHORITIES 

Page 

CASES 

Buckley v. Valeo, 424 U.S. 1 (1976)........................ 10, 12, 16 


California Democratic Party v. Jones, 530 U.S. 567 


(2000) .........................................................................11, 13 


Citizens Against Rent Control/Coalition For Fair 


Housing v. Berkeley, 454 U.S. 290 (1981)...................... 14 


Eu v. San Francisco County Democratic Cent. 


Comm., 489 U.S. 214 (1989) .......................................... 15 


First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) .............. 14 


NAACP v. Alabama, 357 U.S. 449 (1958) ......................... 15 


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


(2000) .............................................................................. 12 


Oregon v. Mitchell, 400 U.S. 112 (1970) .............................11 


Police Dep’t of Chicago v. Mosely, 408 U.S. 92 (1972)....... 17 


Tashjian v. Republican Party of Conn., 479 U.S. 208


(1986) ...............................................................................11 


STATUTES 

28 U.S.C. § 2284 ................................................................... 1 


29 U.S.C. § 1253 ................................................................... 1 


Bipartisan Campaign Reform Act of 2002, Pub. L. 

No. 107-155, 116 Stat. 81 ........................................passim 
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1 

OPINIONS BELOW 

The opinions of the District Court are reported at 

2003 WL 2010983, 21003118, 21003103, and 21003124 

(D.D.C. May 1, 2003). Pursuant to this Court’s May 15, 

2003 Order, the California Appellants anticipate filing a 

jointly prepared appendix with other Appellants containing the opinions of the District Court. 

----♦-- -

JURISDICTION 

The decision of the District Court was entered on May 

2, 2003, by a three-judge court convened pursuant to 28 

U.S.C. § 2284 and BCRA Section 403(a)(1). California 

Appellants timely filed their Notice of Appeal on May 12, 

2003. App. 1a. This Court has jurisdiction under 29 U.S.C. 

§ 1253 and BCRA § 403(a)(3). 

----♦-- -

RELEVANT STATUTES AND 

CONSTITUTIONAL PROVISIONS 

The Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 is reproduced 

at App. 8a. Also reproduced in the Appendix are the 

following provisions from the U.S. Constitution: Article I, 

section 4 (App. 4a), the First Amendment (App. 5a), the 

Fifth Amendment (App. 6a), and the Tenth Amendment 

(App. 7a). 

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2 

STATEMENT OF THE CASE 

Appellants in California Democratic Party, et al. v. 

Federal Election Commission, et al. (No. 02-875) are state 

and local party committees, and officers of those committees, who have challenged the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”) on the grounds that BCRA 

violates the constitutional rights of the state and local 

parties under the First, Fifth and Tenth Amendments, and 

that it exceeds Congress’ authority under the Elections 

Clause (Article I, Section 4) and violates principles of 

federalism. 

According to its sponsors, BCRA is designed to close 

“loopholes” that have allowed non-federal (or “soft” money) 

to intrude into federal elections and permitted political 

parties and organizations to disseminate “sham” issue ads. 

In the name of closing these “loopholes,” and in order to 

prevent the possibility of future harms (many of which are 

simply conjectural), BCRA prohibits a broad range of 

speech, conduct and associational activity. With respect to 

the political parties, it is designed to isolate the various 

units of the parties and ensure that their collective activities are limited. In fact, many of these “loopholes” exist 

precisely because certain speech and association activities 

are entitled to constitutional protection. See, e.g., Op. Henderson, J. at 293: “[D]efendants’ assertions and BCRA’s 

restrictions reflect little more than the frustration with 

First Amendment principles firmly rooted in Buckley, 

Citizens Against Rent Control, and Colorado Republican 

I.” 

The key provisions of BCRA are contained in Titles I 

and II. Title I, which is the focus of the California Appellants, contains a host of new restrictions on the political 
3 

parties at the national, and state and local level.1

 The 

heart of Title I is Section 101, which creates new sections 

323(a)-(f) and the definition of “federal election activity” at 

FECA § 301(20). 

New FECA § 323(a) prohibits the national political 

parties from soliciting, directing or spending non-federal 

money for either federal elections or for state or local 

elections. New FECA § 323(b) similarly prohibits state and 

local political parties from soliciting, directing or spending 

non-federal money on any “federal election activity.” New 

FECA §§ 323(c)-(f) contain related restrictions on fundraising for “federal election activities;” restrictions on donations to tax exempt organizations that engage in “federal 

election activities;” restrictions on federal candidates and 

officeholders raising, spending or directing money for 

“federal election activities;” and restrictions on state 

candidates engaging in certain “public communications” 

that refer to federal candidates. 

Despite the name, the only connection between many 

of the activities that are included in the statutory definition of “federal election activity” and a federal candidate is 

the actual date of the election. “Federal election activity” 

includes any voter registration activity within 120 days of 

an election that includes a federal candidate; any voter 

1 Appellants also challenged BCRA section 213, which prohibits 

any political party committee from making independent expenditures 

on behalf of a candidate if any unit of the party has made a coordinated 

expenditure and, conversely, prohibits a party committee from making 

a coordinated expenditure if any unit of the party has made an independent expenditure. The court below unanimously found this provision 

unconstitutional and enjoined its enforcement. Appellants do not seek 

review of this finding. 
4 

identification, get-out-the-vote or generic party promotional 

activity conducted “in connection with” such election 

(regardless of whether it is actually directed at a state or 

local candidate); the services of any employee who spends 

more than 25% “in connection with” such election; and any 

public communication that refers to a federal candidate, 

and that “promotes,” “supports,” “attacks” or “opposes” 

that candidate “regardless of whether the communication 

expressly advocates a vote for or against a candidate.” 

New FECA § 301(20)(A). 

BCRA requires that all “federal election activity” be 

funded with federal money, even if that activity is, in fact, 

directed at state or local candidates. This means that 

money lawfully raised under state law (i.e., non-federal 

money) cannot be used for most state and local election 

activity. As a practical matter, FECA § 323(b) results in 

the vast majority of state and local election activity being 

subjected to federal regulation and federal financial 

restrictions. Some activities may be funded, in part, with 

“Levin funds,” a new category of federally regulated 

money. Contributions of Levin funds may be made from 

sources prohibited by federal law (e.g., unions or corporations), but the limit on the amount that may be contributed is exactly the same as the limit on federal 

contributions. 

Both the legislative history and the actual language 

used demonstrate clearly that Congress intended the 

definition of “federal election activity” to encompass most 

of the campaign activities traditionally performed by the 

state and local political parties – activities such as voter 

registration, walking precincts, and calling prospective 

voters to remind them to turn out on election day – even 
5 

when a federal candidate is not promoted, or even mentioned. In fact, even activities expressly advocating the 

support or defeat of state or local candidates are transformed by the BCRA into “federal election activity” on the 

theory that encouraging voters to vote for a state or local 

candidate may “affect” a federal race on the same ballot. 

The price that state and local parties have to pay 

under BCRA in order to use their own state-regulated 

funds to engage in ordinary campaign activities such as 

voter registration or get-out-the-vote activity in their own 

elections is substantial. First, they must raise all the 

funds themselves; they cannot make or receive transfers of 

federal or non-federal money – even between state or local 

party committees within the same state – for these activities. FECA § 323(b)(2)(B)(iv). Second, the cost of fundraising to raise money for these activities may be paid only 

with federally regulated money. FECA § 323(c). Third, 

they may not engage in joint fundraising activities with 

other state or local parties. FECA § 323(b)(2)(B)(ii). 

Fourth, they may not spend any non-federal money that 

has been “solicited” or “directed” to them by any federal 

candidate or officeholder, or any national party committee 

officer or agent. FECA §§ 323(b)(2)(C)(i); 323(a); 323(e). 

Even if a state or local party does not choose to engage 

in any “federal election activity,” BCRA imposes additional 

restrictions on that party. A state or local political party 

may not donate to, or solicit money for, any 501(c) organization that engages in “federal election activity,” including 

nonpartisan voter registration, get-out-the-vote activity, or 

ballot measure activity, or any “527” committee, including 

“political committees” under state law. FECA § 323(d). 
6 

The Proceedings Below 

The California Appellants challenged the provisions of 

FECA §§ 323(b)-(f), and the new definition of “federal 

election activity” at FECA § 301(20). It is their position 

that these provisions impermissibly subject an enormous 

amount of state and local election activity – indeed, the 

lion’s share – to federal regulation and federal financial 

restrictions despite the fact that these activities are 

neither directed at federal candidates nor have any significant effect on federal races. The effect of subjecting 

these activities to federal regulation and at the same time 

limiting the amount of state-regulated money that can be 

used for those activities is to dramatically reduce the 

amount of money available and the ability of the state and 

local parties to participate meaningfully in their own state 

and local elections. This substantial interference with the 

rights of the state and local parties is not narrowly tailored to reach only activities that have the purpose of 

influencing federal elections and is not justified by any 

other important governmental interest. 

In addition, the California Appellants submit that the 

various limitations on the parties’ speech and activities 

interfere with their ability to act collectively in support of 

candidates or an ideological message. Specifically, the 

restrictions on joint fundraising and transfers unconstitutionally limit their ability to set organizational priorities. 

The prohibitions on the national parties and federal 

candidates being able to “spend” or “direct” non-federal 

money mean that those persons cannot join with the state 

parties in planning a unified campaign. Since many state 

party officers also hold offices in their national parties, 

these restrictions essentially remove key members of the 

party from direct decision-making within their party. The 
7 

restrictions on contributions to tax exempt 501(c) and 527 

organizations, particularly in California, mean that the 

parties cannot become involved in ballot measure campaigns, and cannot provide financial support to the local 

Democratic and Republican clubs that do much of the 

grass-roots campaign work. None of these provisions are 

narrowly tailored to meet the asserted goals of preventing 

corruption of federal officeholders or circumvention of 

existing federal contribution limits. Moreover, they place 

the parties at a distinct disadvantage relative to other 

non-party participants in the political process who are not 

subject to the same associational and financial constraints. 

The District Court issued its decision May 2, 2003. 

Each member of the Court issued his or her own opinion 

and separate findings of fact. Judges Kollar-Kotelly and 

Leon also joined a per curiam opinion (which focused 

largely on disclosure provisions not challenged by the 

California Appellants). Because Judge Henderson would 

have stricken most of BCRA’s provisions as unconstitutional, and Judge Kollar-Kotelly would have upheld most 

of the provisions, the opinion of Judge Leon determines, in 

most instances, whether a particular provision was upheld 

or invalidated. 

Judges Henderson and Leon both concluded that the 

most significant sections of Title I were unconstitutional. 

Judge Leon analyzed FECA §§ 323(a) and (b) under 

intermediate scrutiny. Although he erred in failing to 

apply strict scrutiny, he nonetheless found that these 

provisions were not “closely drawn” to meet an important 

federal objective. Op. Leon, J. at 26-37, 45-50. He also 

concluded that the definition of “federal election activity” 

at FECA § 301(20) was unconstitutionally overbroad, with 

the exception of the portion of that definition pertaining to 
8 

a “public communication” that “promoted,” “supported,” 

“opposed” or “attacked” a federal candidate. Op. Leon, J. at 

44-45. Judge Leon concluded that the “public communication” portion of the provision is constitutional because it 

“directly affects federal elections and gives rise to the 

appearance of corruption.” Op. Leon, J. at 45. He also 

concluded that the evidence failed to demonstrate the 

effect of activities such as voter registration and get-outthe-vote efforts on federal elections, or created any sense 

of indebtedness on the part of federal officeholders that 

would create an appearance of corruption. Op. Leon, J. at 

48. He joined with Judge Henderson in striking down the 

restrictions on contributions to tax exempt organizations, 

but voted with Judge Kollar-Kotelly to uphold the restrictions on state candidates in 323(f). Judge Leon would have 

stricken 323(e), the restriction on non-federal fundraising 

by federal candidates or officeholders, a provision upheld 

by Judges Henderson and Kollar-Kotelly. 

Judge Henderson would have stricken most of BCRA, 

finding it “unconstitutional in virtually all of its particulars” and describing it as “break[ing] faith” with fundamental First Amendment principles. Op. Henderson, J. at 

5. Because Judge Henderson concluded that the restrictions on speech and association could not properly be 

characterized as “contribution limits,” she applied strict 

scrutiny. Finding that the provisions of FECA §§ 323(a) 

and (b) were not narrowly tailored to serve a compelling 

government interest, she would have invalidated both. Op. 

Henderson, J. at 172-175, 285-306. In so doing, Judge 

Henderson specifically rejected as insufficient the government’s argument that state activities could be regulated 

because they might have some effect on a federal race taking 

place at the same time. She also found unconstitutional 
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9 


FECA § 323(c), the restrictions on fundraising, FECA 

§ 323(d), the restrictions on contributions to tax exempt 

organizations, and FECA § 323(f), the restrictions on state 

candidates’ use of non-federal funds for “public communications” that mentioned federal candidates. 

Judge Kollar-Kotelly would have upheld Title I in its 

entirety. Reasoning that all of Title I was a “contribution 

limit,” she applied intermediate scrutiny. She then concluded that the provisions were “closely drawn” to achieve 

the governmental interests in preventing the corruption of 

federal officeholders or circumventing the federal contribution limits. As Judge Leon correctly observed, Judge 

Kollar-Kotelly’s interpretation and application of this 

Court’s circumvention cases “dictates a novel application 

of that precedent.” 

----♦-- -

SUBSTANTIAL QUESTIONS ARE PRESENTED 

As acknowledged by the majority of the court below, 

BCRA significantly limits the fundamental ability of the 

state and political parties to participate in the political 

process, including their own state and local elections. 

Section 101 defines “federal election activity” as virtually 

any activity that takes place in proximity to an election 

which includes a federal office, without regard to the 

purpose of the expenditure. In doing so, it brings within its 

regulatory sphere the vast majority of state and local 

election activity, including activities that are intended to 

influence only state and local elections. In the name of 

“regulating” the parties’ “federal” election activity, BCRA 

imposes significant and constitutionally unprecedented 
10 

barriers to normal communication and traditional associational activities. In imposing such restrictions, it also 

impermissibly singles out the political parties while 

allowing and even encouraging similar conduct by other 

groups in the political arena. 

Although the court below invalidated FECA §§ 323(a), 

(b), (c) and (d), it upheld 323(e) and (f). In addition, while 

the court found that the definition of “federal election 

activity” at FECA § 301(20) was unconstitutional, it 

severed out and saved the “public communication” portion 

of that definition which is itself unconstitutionally overbroad. Because of the constitutional questions raised by 

virtually every provision in new FECA §§ 323(a)-(f), and 

the related definition of “federal election activity” at FECA 

§ 301(20), this Court should note probable jurisdiction to 

review those provisions and the District Court’s failure to 

declare them unconstitutional in their entirety. 

I. The Extensive Regulation of State and Local 

Election Activity Exceeds Congress’ Authority 

to Regulate Federal Elections 

Although Congress did not expressly identify the 

authority under which it enacted BCRA, it has been 

assumed that authority is asserted under the Elections 

Clause of the Constitution (Article I, § 4). See, e.g., Buckley 

v. Valeo, 424 U.S. 1, 13 & n.16 (1976) (noting that Congress’ authority to regulate federal elections is well established). The Elections Clause on its face gives Congress 

authority to regulate the “time, places and manner” of 

federal elections. 

BCRA, however, goes well beyond the regulation of 

federal elections and comprehensively regulates election 
11 

activity at the state and local level if those elections are 

held at the same time as any federal election. The Federal 

Elections Clause has never been construed to provide such 

authority to Congress, and principles of federalism preclude any such construction. In striking down a Congressional enactment lowering the voting age for state 

elections, but upholding it with respect to federal elections, Justice Black cautioned that although Congress had 

broad supervisory authority over federal elections, the 

Constitution made clear that equivalent power to regulate 

state elections was left to the states as sovereign entities. 

Oregon v. Mitchell, 400 U.S. 112, 124-25 (1970) (opinion of 

Black, J.); see also Tashjian v. Republican Party of Conn., 

479 U.S. 208, 217 (1986) (power given to Congress by 

Article I, § 4 over federal elections matched by state 

control over election process for state offices); and California Democratic Party v. Jones, 530 U.S. 567, 590 (2000) 

(Stevens, J., dissenting) (“[a] State’s power to determine 

how its officials are to be elected is a quintessential 

attribute of sovereignty”). 

The states, in exercising this sovereignty, have come 

up with a range of campaign finance regimes – some less 

restrictive than the federal system, some more restrictive. 

California, for example, allows unrestricted contributions 

for non-candidate expenditures and allows contributions of 

up to $25,000 for candidate-related expenditures because 

the voters believed that the parties “play an important 

role . . . and help insulate candidates from the potential 

corrupting influence of large contributions.” Op. Henderson, J. at 164, Finding ¶ 72. BCRA defines typical state 

and local party activities such as voter registration, get-outthe-vote communications (even for state or local candidates), 

and generic party promotion as “federal election activity” 
12 

and then subjects these activities to federal regulation, 

including spending limits. Such action on the part of 

Congress effectively (and impermissibly) nullifies the 

considered decisions of the states on these matters, and it 

does so without requiring any nexus between the activity 

or communication regulated and a federal candidate other 

than proximity to a particular election. 

Because Judges Henderson and Leon invalidated most 

of the restrictions of FECA § 323(b) on First Amendment 

grounds, they did not reach the question of whether Article 

I, § 4 confers authority on Congress to regulate state and 

local elections, although Leon termed the issue “considerable.” Op. Leon, J. at 45. Judge Kollar-Kotelly concluded 

that none of the plaintiffs below had standing to raise the 

issue. Op. Kollar-Kotelly, J. at 600-608. 

II. BCRA Violates The Political Parties’ First 

Amendment Rights of Speech and Association 

This Court has held that the government may lawfully impose limitations on political contributions without 

violating the First Amendment if those limits are “closely 

drawn” to match a “sufficiently important governmental 

interest.” Buckley, supra, 424 U.S. at 25; Nixon v. Shrink 

Missouri Gov’t PAC, 528 U.S. 377, 387-388 (2000). However, BCRA imposes several restrictions on solicitation and 

spending that are neither closely drawn nor justified by a 

sufficiently important governmental interest. Moreover, 

BCRA goes well beyond mere contribution limitations and 

imposes direct restrictions on speech and associational 

activities of the political parties and their officers. In fact, 

the court below found that these provisions were almost 
13 

entirely unconstitutional, although it erred in applying 

less than strict scrutiny in analyzing them. 

Fundamentally, BCRA prohibits the state and local 

parties from spending money lawfully raised under state 

law on state election activities such as voter registration 

or get-out-the-vote activities, even if directed at state or 

local candidates. Although it allows limited stateregulated funds to be used in some circumstances, the 

conditions imposed on the use of such money are extremely onerous and pose separate and independent 

restrictions on association: the state-regulated money 

cannot have been transferred to the party from another 

unit of the party and cannot have been jointly raised with 

another unit of the party. It must have been raised using 

only federally regulated money. The restrictions on transfers of any size and on joint fundraising directly interfere 

with the parties’ autonomy. See California Democratic 

Party v. Jones, supra, 530 U.S. at 582. All of these restrictions now exist for state-regulated money raised by state 

and local political parties for use in state and local elections. As the state parties demonstrated below, these 

restrictions have a direct and devastating effect on the 

ability of the parties to function effectively in support of 

their state and local candidates. The Court properly found 

that the restrictions imposed upon the parties were not 

sufficiently related to any interest in preventing corruption to be constitutionally permissible, although the court’s 

decision to leave the “public communications” provision 

intact forces the parties to continue to live with many of 

the associational restrictions still in place, at least as to 

those activities. This portion of the court’s decision was 

error and should be reversed. 
14 

Also prohibited outright are “donations” to, or solicitations for, tax exempt organizations under IRS Code section 

501(c) if they engage in “federal election activity,” including nonpartisan voter registration or get-out-the-vote 

activities. As the California Appellants demonstrated, 

ballot measure committees are normally 501(c) organizations. They engage in get-out-the-vote activities. The effect 

of BCRA is therefore to prohibit the political parties from 

making any direct contributions to, or soliciting on behalf 

of, ballot measures. This absolute restriction on the 

parties’ ability to become involved in important electoral 

issues in the state flies in the face of this Court’s holding 

in cases such as First Nat’l Bank v. Bellotti, 435 U.S. 765 

(1978) and Citizens Against Rent Control/Coalition For 

Fair Housing v. Berkeley, 454 U.S. 290, 299 (1981). 

Additionally, the parties are prohibited from contributing to, or soliciting for, state political committees registered under IRS Code § 527. Any organization that is 

supporting state or local candidates that is not a party 

committee is required to file under section 527. The local 

“Young Democrats Club” or “Lincoln Club” is typically a 

527 committee. Their main activities are usually voter 

registration or get-out-the-vote activities – often for state 

or local candidates. The effect of this restriction is to 

prohibit political parties from providing direct financial 

support to these clubs which are often the “grass-roots” 

component of the party structure. The court correctly 

invalidated these restrictions and California appellants do 

not seek review on this issue. 

In addition to the above restrictions, BCRA significantly limits the associational activities of the parties in 

additional ways. By making it a federal crime for federal 

candidates and officeholders (or their agents), or the 
15 

national parties (or their officers or agents) to “spend,” 

“solicit,” or “direct” non-federal money, BCRA essentially 

makes it illegal for these persons to engage in traditional 

campaign activity with their state or local counterparts. 

The Democrats’ “Coordinated Campaign” and the Republicans’ “Victory Plan” are efforts to bring all the various 

levels of the party together to plan and strategize, assess 

and allocate resources and set priorities for their campaign activities up and down the ticket. Critical state or 

local races can be an important focus of these campaign 

activities. If discussions take place about the raising, 

spending or directing of state-regulated resources, any 

federal candidate (or her representative) and any national 

party representative who is in the room is putting himself 

or herself at risk of prosecution. Since many state or local 

party officers are also national party officers, this prohibits these important party members from direct participation in decision-making. The chilling effect of such a 

possibility on the officers themselves is obvious and the 

existence of such restrictions forces the parties to significantly restructure or forego their traditional associational 

activities. These restrictions cannot withstand the “closest 

scrutiny” that must be given to such limitations on associational activity. See NAACP v. Alabama, 357 U.S. 449, 

460-61 (1958); see also Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989). 

Finally, the very vagueness and/or overbreadth of 

many of BCRA’s terms render certain provisions unconstitutional. The “public communications” restriction upheld 

by the court illustrates the point. The court concluded that 

Congress could properly regulate one category of “federal 

election activity” – any “public communication that refers 

to a clearly identified candidate for Federal office . . . and 
16 

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) . . . ” As a “federal election activity,” 

all such public communications must be paid with 100% 

federal money. 

A “public communication” includes “a communication 

by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, 

mass mailing, or telephone bank to the general public . . . ” 

Because the definition includes mail and other written 

communications media, it is substantially broader in scope 

than the “back-up” definition of “electioneering communications” in Title II which is structured similarly to include 

communications that “support,” “promote,” “attack” or 

“oppose” a clearly identified federal candidate. Although 

the court apparently believed that the terms “promote” or 

“attack” were sufficiently precise, it is evident that these 

terms are, in fact, extremely subjective. In fact, an argument could be made that any mention of a candidate 

either serves to promote or attack that candidate, depending on the light in which he or she is cast. And the fact 

that it extends to many communications not included in 

the Title II definition makes it even more problematic for 

the parties who routinely send out party mail that refers 

to federal candidates in contexts that may be prohibited by 

this language, e.g., fundraising solicitations for the party 

itself, endorsements of state candidates or ballot measures, and even voter registration materials. 

This is precisely the kind of vague language rejected 

in Buckley, supra, 424 U.S. at 44 & n.52, 80. The Court 

erred in concluding that Congress could constitutionally 
----------------------------- ------------------------------

17 

restrict any “public communication” by a political party 

that falls within the broad definition provided by BCRA. 

III. The Provisions of BCRA Violate Equal Protection 

BCRA imposes restrictions on the speech and associational activities of the political parties that are not similarly imposed on other participants in the political process. 

Distinctions drawn in these areas must be given the most 

exacting scrutiny. See Police Dep’t of Chicago v. Mosely, 

408 U.S. 92 (1972). As the record well documents, the 

inevitable result of many of BCRA’s restrictions is that 

non-party organizations will begin performing many of the 

functions traditionally performed by parties without being 

subject to the substantial restrictions imposed on the 

parties themselves. To the extent that these organizations 

typically have a narrower focus than the parties and 

considerably less transparency than the parties, BCRA’s 

goals are likely to be frustrated rather than achieved by 

the restrictions imposed. 

----♦-- -
18 

CONCLUSION 

For the foregoing reasons, the Court should note 

probable jurisdiction. 

JAN WITOLD BARAN


THOMAS W. KIRBY


LEE E. GOODMAN


WILEY, REIN & FIELDING, LLP 


1776 K Street, N.W.


Washington, D.C. 20006 


(202) 719-7000 


CHARLES H. BELL, JR. 


BELL, MCANDREWS, HILTACHK


& DAVIDIAN, LLP 

455 Capitol Mall, Suite 801 

Sacramento, CA 95814 

(916) 442-7757 

Attorneys for California 

Republican Party, Shawn 

Steel, Timothy Morgan, 

Barbara Alby, Santa Cruz 

Republican Central 

Committee, and Douglas R. 

Boyd, Sr. 

Respectfully submitted, 

LANCE H. OLSON 

Counsel of Record 

DEBORAH CAPLAN 

OLSON, HAGEL & 

FISHBURN, LLP 

555 Capitol Mall, Suite 

1425 

Sacramento, CA 95814 

(916) 442-2952 

JOSEPH E. SANDLER 

NEIL P. REIFF 

JOHN HARDIN YOUNG 

SANDLER, REIFF & 

YOUNG, P.C. 

50 E Street, S.E. # 300 

Washington, D.C. 20003 

(202) 479-1111 

Attorneys for California 

Democratic Party, Art 

Torres, and Yolo County 

Democratic Central 

Committee