No. 02-1674 et al. 

IN THE 

Supreme Court of the United States 

SENATOR MITCH MCCONNELL ET AL., 

Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION ET AL., 

Appellees/Cross-Appellants. 

On Appeal From The United States 

District Court For The District of Columbia

REPLY BRIEF FOR APPELLANTS/CROSS-APPELLEES 

SENATOR MITCH McCONNELL ET AL. 

FLOYD ABRAMS KENNETH W. STARR 

SUSAN BUCKLEY Counsel of Record 

BRIAN MARKLEY EDWARD W. WARREN 

CAHILL GORDON & KANNON K. SHANMUGAM 

REINDEL LLP KIRKLAND & ELLIS LLP 

80 Pine Street 655 Fifteenth Street, N.W. 

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(additional counsel on inside cover) 

August 21, 2003 
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TABLE OF CONTENTS 

Page 

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

INTRODUCTION ..................................................................1 

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

I. THE “SOFT MONEY” PROVISION OF BCRA

IS UNCONSTITUTIONAL........................................2 

II. THE “ELECTIONEERING 

COMMUNICATIONS” PROVISIONS OF 

BCRA ARE UNCONSTITUTIONAL. ....................10 

III. OTHER PROVISIONS OF BCRA ARE

UNCONSTITUTIONAL. .........................................18 

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

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990) ............................................ 13, 14, 15 

Blount v. SEC, 

61 F.3d 938 (D.C. Cir. 1995) ............................................ 7 

Buckley v. Valeo, 

424 U.S. 1 (1976) ..................................................... passim 

Burroughs v. United States, 

290 U.S. 534 (1934) .......................................................... 7 

Citizens Against Rent Control/Coalition for Fair Housing 

v. City of Berkeley, 

454 U.S. 290 (1981) .................................................... 3, 12 

Cohen v. California, 

403 U.S. 15 (1971) .......................................................... 15 

Colorado Republican Federal Campaign Committee v. 

FEC, 

518 U.S. 604 (1996) .......................................... 4, 5, 13, 20 

Ex parte Siebold, 

100 U.S. 371 (1879) .......................................................... 7 

Ex parte Yarborough, 

110 U.S. 651 (1884) .......................................................... 7 

FEC v. Beaumont, 

123 S. Ct. 2200 (2003) .............................................. 13, 15 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................ 11, 12, 14 

FEC v. National Right to Work Comm., 

459 U.S. 197 (1982) .......................................................... 3 

LaFalce v. Houston, 

712 F.2d 292 (7th Cir. 1983)............................................. 4 
iii 

Mills v. Alabama, 

384 U.S. 214 (1966) ........................................................ 11 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) .................................................... 1, 11 

Nike, Inc. v. Kasky, 

123 S. Ct. 2554 (2003) ...................................................... 3 

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000) .................................................... 1, 13 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992) ........................................................ 16 

Reno v. ACLU, 

521 U.S. 844 (1997) ........................................................ 16 

Republican Party of Minn. v. White, 

536 U.S. 765 (2002) ........................................................ 16 

Speiser v. Randall, 

357 U.S. 513 (1958) ........................................................ 14 

Thornhill v. Alabama, 

310 U.S. 88 (1940) .......................................................... 13 

United States v. Playboy Entm’t Group, Inc., 

529 U.S. 803 (2000) ........................................................ 16 

Virginia v. Black, 

123 S. Ct. 1536 (2003) .................................................... 15 

Virginia v. Hicks,

123 S. Ct. 2191 (2003) .................................................... 15 

CONSTITUTION AND STATUTES 

U.S. Const. art. I, § 4, cl. 1 ............................................ 6, 7, 9 

U.S. Const. amend. I..................................................... passim 

2 U.S.C. § 431 ....................................................................... 6 

Bipartisan Campaign Reform Act of 2002, 

Pub L. No. 107-155, 116 Stat. 81............................. passim 
iv 

§ 101......................................................................... passim 

§ 201................................................................................ 18 

§ 212................................................................................ 18 

§ 213................................................................................ 19 

§ 214.......................................................................... 18, 19 

§ 302.................................................................................. 6 

§ 303.................................................................................. 6 

§ 305................................................................................ 19 

§ 318................................................................................ 20 

§ 504................................................................................ 20 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3................................... 11, 12 

OTHER AUTHORITIES 

Electioneering Communications, 

67 Fed. Reg. 65,190 (Oct. 23, 2002) ............................... 17 

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 (2001)......................................... 13 

Bradley A. Smith, 

Soft Money, Hard Realities: The Constitutional 

Prohibition on a Soft Money Ban, 

24 J. Legis. 179 (1998).................................................... 13 

Kathleen M. Sullivan, 

Against Campaign Finance Reform, 

1998 Utah L. Rev. 311 .............................................. 13, 15 
INTRODUCTION 

Defendants constantly seek to reassure the Court that BCRA 

represents nothing more than an incremental “adjustment” or 

“refinement” of our Nation’s already labyrinthine campaign 

finance regulations. That claim, however, is utterly belied by 

the sprawling nature of the law, and indeed by the extraordinary 

nature of this litigation. Just as BCRA radically revamps our 

campaign finance laws, so too would upholding BCRA require 

this Court to overhaul settled constitutional jurisprudence. In 

order to uphold BCRA’s central provisions, this Court would 

have to overturn the two cornerstone holdings of Buckley v. 

Valeo, 424 U.S. 1 (1976): its distinctions between contribution 

and expenditure limits, and between express advocacy and other 

types of political speech. The Court would also have to betray 

its commitment to the bedrock and uniquely American principle 

of dual sovereignty, in a context in which the States’ competing 

regulatory interest could not be more fundamental. And the 

Court would have to create broad exceptions to the basic 

precept that similarly situated speakers be treated alike. 

Defendants’ submissions positively bristle with hostility 

toward any role for money in politics — and therefore toward 

the speech that money indisputably enables. What defendants 

derisively and pervasively characterize as “evasion” or 

“circumvention,” however, is in fact nothing less than the 

exercise of one of our most cherished rights. The net effect of 

defendants’ position, if accepted, will be to make regulation of 

political speech the rule, rather than the exception, and to 

“force[] a substantial amount of political speech underground,” 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 406 (2000) 

(Kennedy, J., dissenting) — a result directly at odds with our 

Nation’s unrivaled constitutional commitment to robust and 

uninhibited debate. See New York Times Co. v. Sullivan, 376 

U.S. 254, 270 (1964). That debate sometimes may be 

unpleasant and undignified, but never is it unprotected. The 

challenged provisions of BCRA should be invalidated. 
2 

ARGUMENT 

I. THE “SOFT MONEY” PROVISION OF BCRA IS 

UNCONSTITUTIONAL. 

A. In attempting to sustain section 101 against First 

Amendment challenge, defendants would trivialize the speech 

and associational rights at issue, urge the most deferential level 

of scrutiny, and define the governmental interests in regulation 

in the most amorphous and unbounded terms. This Court’s 

First Amendment jurisprudence rebukes them at every turn. 

1. Defendants do not seriously question that section 101 

burdens the speech and associational rights of donors and 

political parties much like the restrictions at issue in Buckley. 

Instead, defendants attempt to minimize the additional 

associational burdens that section 101 imposes on political 

parties. See, e.g., FEC Br. 69-70; McCain Br. 22-23. 

Although it is true that section 101 does not ban associations 

between party committees altogether, the associational burdens 

on party committees are far more than merely incidental. 

Section 101 imposes numerous restrictions on the ability of 

party committees to engage in coordinated fundraising, and thus 

to structure their affairs as they see fit. And, as defendants fail 

to recognize, section 101 also severely impairs the ability of 

party committees to associate with others — including, most 

notably, the parties’ own federal officeholders and candidates. 

Those associational burdens are substantial and unprecedented. 

2. Defendants next suggest that section 101 should be 

subject to the lower degree of scrutiny applicable to limitations 

on contributions. See, e.g., FEC Br. 35-36, 45-46. In our view, 

section 101, which contains disparate restrictions, inter alia, on 

expenditures and solicitations,1 should be treated as an 

1

 Defendants suggest that limitations on solicitations should be subject to 

lesser scrutiny. See, e.g., FEC Br. 51-52; McCain Br. 21-22. This Court has 

repeatedly noted, however, that a restriction on solicitations is the most 

direct form of restriction on speech. See McConnell Br. 15. The Court’s 
3 

integrated whole and subject to strict scrutiny — the baseline 

level of scrutiny for restrictions on political speech. See, e.g., 

Nike, Inc. v. Kasky, 123 S. Ct. 2554, 2565 (2003) (Breyer, J., 

joined by O’Connor, J., dissenting). 

Defendants nevertheless urge that the subsection of section 

101 applicable to national party committees should be reviewed 

under lesser scrutiny simply because it contains a limitation on 

contributions. See, e.g., FEC Br. 35-36. But defendants 

virtually ignore Citizens Against Rent Control/Coalition for 

Fair Housing v. City of Berkeley, 454 U.S. 290 (1981), which 

treated limits on the amount of contributions to third parties as 

the equivalent of limits on the amount of expenditures by those 

third parties. See id. at 299. Moreover, notwithstanding 

defendants’ claim that the subsection “is directed solely at the 

acquisition of funds,” FEC Br. 13, it plainly regulates both 

contributions to, and expenditures by, national party 

committees. And it does not impose any new limits on the 

amounts of contributions to national committees, but instead 

merely regulates the uses for which money is raised and spent. 

Buckley and its progeny hold only that a regulation that limits 

the amount of contributions, not any regulation that does not 

limit the amount of expenditures, is subject to lower scrutiny. 

Defendants’ position would therefore turn Buckley on its head, 

and render meaningless Buckley’s bedrock distinction between 

contribution and expenditure limits.2 

decision in FEC v. National Right to Work Committee, 459 U.S. 197 (1982), 

is readily distinguishable, because the solicitation restriction at issue there 

(the restriction on solicitations for corporate and union PACs) was directly 

intertwined with an underlying contribution restriction (the ban on 

contributions by corporations and unions). 

2

 Defendants urge that even the subsection of section 101 applicable to state 

party committees should be subject to lesser scrutiny, even though it plainly 

regulates only expenditures, on the ground that the provision, by restricting 

the uses of certain types of contributions, is “functionally identical” to a limit 

on those contributions. McCain Br. 28 n.19; see also FEC Br. 45-46 (same). 

That reasoning, too, would gut Buckley’s distinction between contribution 
4

3. Defendants make no serious effort to suggest that section 

101 is sufficiently tailored to prevent actual or apparent quid 

pro quo corruption. See FEC Br. 39 n.15. Instead, defendants 

claim, notwithstanding the utter absence of legislative findings, 

that the core restriction on donations of state-regulated funds to 

national committees is necessary because large donations of 

such funds allow donors to buy “access” to officeholders, which 

can eventually be converted into influence over “policy” even if 

particular votes are not affected. See id. at 11, 22, 37-41; 

McCain Br. 1-2, 12-17.3 Defendants then seek to justify the 

manifold other restrictions in section 101 on the ground that 

they are necessary to prevent hypothesized circumvention of the 

core restriction on donations to national committees. See FEC 

Br. 22-23, 51-60; McCain Br. 31, 39. 

Defendants do not, because they cannot, articulate any 

limiting principle for these novel and breathtakingly broad 

governmental interests for campaign finance regulation. 

Defendants’ anti-access and anti-circumvention rationales 

would support virtually any form of campaign finance 

regulation. See McConnell Br. 20-23. Moreover, in contending 

that section 101 is sufficiently tailored to these interests, 

defendants hardly so much as cite this Court’s pathmarking 

decision in Colorado Republican Federal Campaign Committee 

v. FEC, 518 U.S. 604 (1996) (Colorado I), which recognized, in 

the context of independent expenditures by political parties (and 

and expenditure limits. Indeed, under defendants’ position, the application 

of strict scrutiny even to the expenditure limit at issue in Buckley would have 

been erroneous, since that provision, contrary to defendants’ assertion, see 

id., similarly limited only certain types of expenditures and not others, see 

Buckley, 424 U.S. at 41. 

3

 The mere fact that some donors give to both parties, see, e.g., FEC Br. 38-

39; McCain Br. 15, is not surprising. As Judge Posner has noted, many 

“political hermaphrodites” support both parties because “the pervasive role 

of government in modern American life has made it important for business 

firms to be on good terms with the major political groupings in the society.” 

See LaFalce v. Houston, 712 F.2d 292, 294 (7th Cir. 1983). 
5 

thus, by logical extension, contributions to political parties) that 

political parties serve as buffers between contributors and 

candidates, and squarely rejected the argument that there are 

“any special dangers of corruption associated with political 

parties” justifying the regulation of independent expenditures 

by those parties. See id. at 616 (plurality opinion). This Court 

has since recognized that political parties may act as “agents” of 

contributors, see FEC Br. 32, but only in the context of 

expenditures that are coordinated with candidates, see FEC v. 

Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 

452 (2001) (Colorado II). And in Colorado I, the plurality 

observed that the opportunity for corruption posed by donations 

of state-regulated funds “is, at best, attenuated.” 518 U.S. at 

616. Because state-regulated funds may concededly be spent 

only on activities that have “less tangible benefits to a federal 

candidate or office-holder,” FEC Br. 43, donations of stateregulated funds naturally will have less potential to corrupt than 

contributions of federally regulated funds. 

Finally, defendants pointedly ignore the availability of more 

narrowly tailored alternatives. Defendants and their amici 

repeatedly state that section 101 was primarily targeted at large 

donations of state-regulated funds to national party committees. 

Whether the problem lay in donations over $50,000 (CED Br. 

13), $100,000 (McCain Br. 30), or $1 million (Common Cause 

Br. 10), Congress could have merely imposed a cap on the 

amount of such donations, like the $60,000 aggregate cap 

proposed in the Hagel Amendment. See McConnell Br. 25. 

Alternatively, Congress could have limited donations of stateregulated funds only when a contributor had “maxed out” on 

federally regulated contributions to the same party committee 

— a situation in which, according to defendants, the potential 

for corruption is “magnified.” See FEC Br. 43. And to the 

extent Congress was concerned about the transfer of stateregulated funds from national party committees to state 

committees in order to take advantage of the more generous 
6 

allocation formulas available to those committees, see id. at 11; 

McCain Br. 5, 29, Congress could have subjected state and 

national committees to the same allocation formulas. Congress 

did none of these things, but instead banned all donations of 

state-regulated funds to, and disbursements by, national party 

committees, and imposed a bewildering array of other 

restrictions with no evident nexus to Congress’ supposed 

concern about large donations. Given the ready availability of 

more narrowly tailored alternatives, section 101 violates the 

First Amendment.4 

B. Section 101 goes well beyond Congress’ power to 

regulate the financing of federal elections. 

1. Defendants almost entirely ignore the history of the 

Elections Clause and the long line of cases interpreting it, 

which make clear that the Elections Clause gives Congress the 

power to regulate the financing of only federal, not state, 

elections. Defendants contend that the Elections Clause gives 

Congress plenary power to regulate campaign financing 

whenever federal elections are being held, even if the activity 

4 Amicus former Senator Fred Thompson contends that section 101 of BCRA 

was justified by the notorious abuses uncovered by a congressional 

investigation in the wake of the 1996 presidential election. See Thompson 

Br. 6-27. Those abuses, however, were fully addressed by a number of other 

features of BCRA not challenged in this litigation, including the 

strengthened ban on foreign contributions, see BCRA § 303; the prohibition 

against fundraising on federal property, see BCRA § 302; and the extension 

of the concept of “coordination” to political parties, see BCRA § 214(a). 

Defendants repeatedly claim that state-regulated funds were solicited and 

donated for the purpose of influencing federal elections. See, e.g., McCain 

Br. 17-20, 25-26 & n.16, 27. In fact, amici quote at least one donor who 

freely admitted that he gave money for that purpose. See CRP Br. 16. 

Under preexisting federal law, however, any donation made “for the purpose 

of influencing any [federal] election” constitutes a “contribution” subject to 

FECA’s source-and-amount limits. See 2 U.S.C. § 431(8)(A)(i). To the 

extent that donors were giving “non-federal” funds expressly for the purpose 

of influencing federal elections, or were asked to do so, the proper remedy is 

stricter enforcement of that requirement. 
7 

being financed affects both federal and state elections. See, 

e.g., FEC Br. 66-67; McCain Br. 32-33. The few cases 

defendants cite, however, do not support that view. Most 

notably, in Ex parte Siebold, 100 U.S. 371 (1879), and Ex parte 

Yarborough, 110 U.S. 651 (1884), the Court recognized only 

that, when a State held simultaneous elections for state office, 

Congress retained its power to regulate federal elections — not 

that Congress thereby acquired the power to regulate both 

federal and state elections. See Siebold, 100 U.S. at 393; 

Yarborough, 110 U.S. at 662.5 

While defendants wistfully maintain that the Elections 

Clause provides a “fully sufficient constitutional basis” for the 

enactment of section 101, they alternatively (and somewhat 

inconsistently) claim that Congress has a “more general power 

to superintend and protect the integrity of the federal work 

force.” FEC Br. 30. Defendants, however, locate no 

constitutional home for this free-floating power.

6 Even 

assuming that Congress has the power to enact laws regulating 

the improper personal enrichment of government officials, there 

is no reason to think that such a power extends to laws 

regulating the conduct of federal officeholders and candidates 

even in connection with state elections — much less the 

conduct of political parties and state officeholders and 

candidates. 

2. Section 101 impermissibly infringes on the ability of 

States to regulate their own elections. 

5

 In Burroughs v. United States, 290 U.S. 534 (1934), the Court suggested 

only that Congress had discretion to choose the appropriate means of 

protecting federal elections from corruption, not that it had the power to do 

so in a way that reached state elections as well. See id. at 547-48. 

6

 The federal defendants cite a number of provisions of federal law that 

restrict contributions to state as well as federal candidates. See FEC Br. 67. 

Those provisions, however, can readily be justified on other constitutional 

grounds. See, e.g., Blount v. SEC, 61 F.3d 938, 949 (D.C. Cir. 1995) 

(upholding restriction on securities professionals under Commerce Clause). 
8 

As to national party committees, defendants do not deny that 

section 101 prohibits those committees from receiving or 

spending any state-regulated funds, even if they are to be used 

solely for state and local elections (as in the case of “off-year” 

election activity). The primary argument defendants advance to 

justify this plain regulation of state election activity is that 

money is fungible, and therefore that a donation of stateregulated funds for activity relating to state elections “free[s] 

up” funds for activity relating to federal elections. See, e.g., 

FEC Br. 42-43; McCain Br. 27-28. But the mere fact that 

national committees could spend more of their already federally 

regulated funds (which, by definition, are contributed “for the 

purpose of influencing [federal] election[s]”) on activities 

affecting federal elections does not somehow give Congress the 

power to regulate the donation of state-regulated funds for 

activities that affect only state elections.7 

As to state party committees, defendants freely concede that 

many activities defined as “federal election activity” have 

effects on both federal and state elections. See, e.g., FEC Br. 8, 

46. However, with their repeated claims that “federal election 

activity” “by its nature” affects federal elections, e.g., id. at 22, 

and only “incidentally” affects state elections, see, e.g., id. at 

66, defendants willfully overlook the fact that many activities 

labeled as “federal election activity” either have no practical 

effect on federal elections at all, or are directed only toward 

state and local elections — as in the vast number of districts in 

which federal elections are actually or practically uncontested 

(because of redistricting, the advantages of incumbency, or 

both, see Ornstein Br. 11-12; Community Orgs. Br. 15). And 

even with regard to activities that affect both federal and state 

7

 Defendants also suggest that Congress can regulate state elections because 

the activities of state officials, such as redistricting, can have an impact on 

subsequent federal elections. See FEC Br. 42-43. But any such effect on 

federal elections is surely too attenuated to allow Congress entirely to 

displace the competing state interest in regulating state election activity. 
9 

elections, section 101, by requiring state parties to pay for these 

activities solely with federally regulated funds, impermissibly 

overrides the laws of numerous States that had allowed 

unlimited donations, or donations from corporations and 

unions, to be used for those activities. See McConnell Br. 33.8 

Finally, as to federal officeholders and candidates, section 

101 plainly regulates their fundraising activities even solely in 

connection with state and local elections. The Elections Clause, 

however, gives Congress the power only to regulate federal 

elections — not plenary power to regulate the activities of 

federal officeholders or candidates even in connection with 

state elections. Here, as elsewhere, the Court should reject 

defendants’ unbridled theory of Congress’ Elections Clause 

power, and invalidate section 101 in full. 

C. Defendants’ arguments in response to our equal 

protection challenge are similarly unavailing. 

Defendants seek to justify section 101’s disparate treatment 

of political parties on the ground that the parties were treated 

more favorably than other groups in the pre-BCRA regime. 

See, e.g., FEC Br. 71. Although that was true in some respects, 

it was not in others: party committees, for instance, were 

required to use an allocation of federally regulated and stateregulated funds for certain activities, whereas interest groups 

other than “political committees” were not. Even assuming, 

8

 Although defendants characterize the Levin amendment as restoring to the 

States some ability to regulate certain election activities by state party 

committees, see FEC Br. 49-51; McCain Br. 31-32 & n.24, that provision, 

like the rest of section 101, overrides state law, by imposing a new federal 

limit ($10,000) for funds used for the specified activities. 

Remarkably, amici Iowa et al. contend that States can avoid the 

regulation of “federal election activity” simply by holding elections for state 

elections in off years. See Iowa Br. 18 n.7. There is no reason, however, 

that the ability of States to regulate their own elections should be conditioned 

on their willingness to forgo the many advantages of holding simultaneous 

state elections (most notably, higher voter turnout). 
10 

however, that the parties were treated more favorably than 

interest groups under the pre-BCRA regime, those advantages 

will be overwhelmed by the disadvantages imposed by section 

101. Whether or not Congress’ purpose in enacting section 101 

was to “destroy” the party system, see McCain Br. 20, 

defendants (and their amici with responsibility for the equal 

protection issue, see Ornstein Br. 22-23) do not dispute that the 

effect of section 101 will be to divert the massive amount of 

state-regulated funds previously raised by the parties to interest 

groups, which will be able to use those funds for virtually all 

the same purposes that the parties did. Section 101 will thus 

empower narrowly focused interest groups at the expense of the 

parties, and indeed render officeholders and candidates more 

beholden to those groups. As defendants themselves recognize, 

“the parties’ distinct role * * * demands distinct treatment.” 

FEC Br. 71. By impermissibly disadvantaging our venerable 

political parties, section 101 is unconstitutional. 

II. THE “ELECTIONEERING COMMUNICATIONS” 

PROVISIONS OF BCRA ARE UNCONSTITUTIONAL. 

A. Attempting to uphold BCRA’s sweeping prohibition on 

“electioneering communications,” defendants have largely 

abandoned their approach below in favor of a new theory. They 

make little of their former claim — inaccurate as it was — that 

Title II will prohibit only a modest amount of supposedly 

“genuine” issue advertisements. Instead, defendants now seek 

to sustain the statute on the ground that no corporate- or unionsponsored speech broadcast in proximity to an election that 

contains the name of a candidate is worthy of First Amendment 

protection, whatever it says, since such speech by its nature 

“may influence,” is “likely to influence,” or “will in all 

likelihood have the effect of influencing” a federal election. 

See FEC Br. 14, 24, 84, 92-93, 94; McCain Br. 42-43. 

Defendants make little effort to demonstrate that Title II will 

not significantly limit speech about “issues and candidates” — 
11 

speech that this Court has repeatedly insisted is entitled to the 

fullest protection of the First Amendment. See McConnell Br. 

39-41. Instead, defendants urge that an entire category of closeto-election broadcast advertisements relating to “issues and 

candidates” may be criminalized. This is not only directly 

inconsistent with Buckley and FEC v. Massachusetts Citizens 

for Life, Inc., 479 U.S. 238 (1986) (MCFL), but also with first 

principles of the First Amendment that have formed the basis of 

this Court’s campaign finance decisions. 

It was no accident that Buckley itself began with a discussion 

of core constitutional principles: namely, that FECA’s 

“limitations operate in an area of the most fundamental First 

Amendment activities” because “[d]iscussion of public issues 

and debate on the qualifications of candidates are integral to the 

operation of the system of government established by our 

Constitution,” Buckley, 424 U.S. at 14; that “‘a major purpose’” 

of the First Amendment “‘was to protect the free discussion of 

governmental affairs * * * of course includ(ing) discussions of 

candidates,’” id. (quoting Mills v. Alabama, 384 U.S. 214, 218 

(1966)); and that we have a “‘profound national commitment to 

the principle that debate on public issues should be uninhibited, 

robust, and wide-open,’” id. (quoting New York Times Co. v. 

Sullivan, 376 U.S. at 270). From beginning to end, Buckley, 

particularly in its analysis of restrictions on independent 

expenditures, is rooted in the principle that “[i]n the free society 

ordained by our Constitution it is not the government, but the 

people individually as citizens and candidates and collectively 

as associations and political committees who must retain 

control over the quantity and range of debate on public issues in 

a political campaign.” Id. at 57. 

Defendants nonetheless insist that express advocacy is, after 

all, core political speech. If it can be regulated, the argument 

proceeds, so too can all other advocacy that might influence a 

federal election. See FEC Br. 85-86; McCain Br. 62-63. But 

that turns the constitutional principles that have driven this 
12 

Court’s campaign finance jurisprudence on their head. Buckley 

did not offer a broad “roadmap” for restricting political speech. 

See McCain Br. 62. Instead, Buckley crafted a single and 

intentionally narrow exception to the otherwise indisputable 

proposition that, since speech about candidates and issues lies at 

the very heart of the First Amendment, it is not subject to 

governmental restriction. See, e.g., Citizens Against Rent 

Control, 454 U.S. at 296-97. 

B. In defense of their newly proffered standard, defendants 

and their amici criticize the express-advocacy test first adopted 

in Buckley and reaffirmed by this Court since. The formulation 

is, we are told, “impractical” (FEC Br. 103), “inflexible” (id.), 

and “worse than irrelevant” (McCain Br. 42). According to 

defendants, it simply fails adequately to identify speech that is 

“likely to influence” elections. See, e.g., FEC Br. 14, 73, 80; 

McCain Br. 42-43, 58. Such arguments, however, cannot 

survive any fair reading of Buckley. Buckley is a decision about 

limiting governmental power to regulate expenditures, not 

expanding it. It is about protecting independent advocacy, not 

restricting it. And it most certainly did not reflect an effort to 

“identify” (much less criminalize) all speech engaged in “for 

the purpose of influencing a federal election”; indeed, that was 

precisely the statutory formulation that the Court narrowed in 

Buckley in order to comport with First Amendment principles, 

with full knowledge that doing so would permit speech that was 

virtually indistinguishable from express advocacy to flourish. 

See 424 U.S. at 45.9 If Buckley is wrong, as defendants insist, it 

9 The Court adopted the express-advocacy test as its means of narrowing 

FECA’s definition of “expenditures” as those made “for the purpose of * * * 

influencing” a federal election. See Buckley, 424 U.S. at 79-80 (narrowing 

FECA § 431(f)); cf. MCFL, 479 U.S. at 245-46, 249 (narrowing definition of 

“expenditure” under FECA § 441b). Defendants’ effort to dispose of MCFL 

by urging that it was simply a case about statutory construction, see FEC Br. 

101-02; McCain Br. 60-61, is disingenuous. Without even a mention of 

vagueness, the MCFL Court applied the express-advocacy test “in order to 

avoid problems of overbreadth.” 479 U.S. at 248-49. 
13 

is because it restricts too much speech, not too little.10 At the 

very least, it is no authority for restricting more. 

C. Defendants’ reliance on Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652 (1990), in support of their new 

formulation is also misplaced. Although defendants choose to 

ignore the point altogether, there can be no dispute that Austin 

was a case upholding restrictions on express advocacy and 

nothing more, see McConnell Br. 48-49, and that it has always 

been understood to be so.11 There can also be no dispute that 

this Court has drawn an impregnable line between contributions 

and express advocacy on the one hand and all other independent 

expenditures on the other. See FEC v. Beaumont, 123 S. Ct. 

2200, 2208-09 (2003); Shrink Missouri, 528 U.S. at 386-88; 

Colorado I, 518 U.S. at 614-15. 

Attempting to extend Austin beyond its express-advocacy 

context, defendants essentially contend that the government has 

an interest in regulating speech by corporations simply because 

they are corporations. See, e.g., FEC Br. 86-88; McCain Br. 57. 

There is no justification, however, for subjecting noncommercial speech by corporations to more stringent 

regulation, especially speech that is “indispensable to the 

effective and intelligent use of the processes of popular 

government to shape the destiny of modern industrial society.” 

Thornhill v. Alabama, 310 U.S. 88, 103 (1940). 

In addition, Austin’s supposed recognition of a governmental 

interest in regulating corporations qua corporations rests on a 

problematic premise: namely, that corporations benefit from 

10 See Kathleen M. Sullivan, Against Campaign Finance Reform, 1998 Utah 

L. Rev. 311, 314-15. 

11 See, e.g., 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, 1803 (2001); 

Bradley A. Smith, Soft Money, Hard Realities: The Constitutional 

Prohibition on a Soft Money Ban, 24 J. Legis. 179, 197 (1998). 
14 

“special advantages” conferred by state law which justify 

additional regulation. 494 U.S. at 658. The necessary 

implication is that the right to engage in unfettered expenditures 

for political speech must be sacrificed as a prerequisite of 

incorporating in the first place — a classic example of an 

unconstitutional condition. See, e.g., Speiser v. Randall, 357 

U.S. 513 (1958). And the specific advantages to which Austin 

refers — “limited liability, perpetual life, and favorable 

treatment of the accumulation and distribution of assets,” 494 

U.S. at 658-59 — are available to political committees and 

indeed to a wide range of other entities besides corporations, 

such as law firms and other partnerships. Whatever the 

continued viability of this rationale in the express-advocacy 

context at issue in Austin, the Court should not stretch it to 

apply here. 

It is also inaccurate for defendants to say that corporations 

and unions have been relegated to the burdensome alternative of 

funding their expenditures through PACs for decades. See FEC 

Br. 76, 78; McCain Br. 3. As a consequence of this Court’s 

holding in MCFL, corporations and unions (with the exception 

of certain non-profit corporations) have been forced to use 

PACs when they wish to engage in express advocacy, a 

difference in treatment that already takes into account the 

distinction defendants repeatedly seek to draw between MCFLprotected entities and other corporate and union speakers. This 

Court has never sanctioned spending through PACs as a 

constitutionally sufficient alternative to otherwise unhampered 

independent spending on speech. In fact, this Court has 

recognized that the PAC alternative significantly burdens the 

exercise of First Amendment rights and has only found that 

burden to be overcome in the context of contributions or their 

de facto equivalent, express advocacy. See Austin, 494 U.S. at 

657-59; id. at 707-09 (Kennedy, J., dissenting); MCFL, 479 

U.S. at 252 (plurality opinion); id. at 266 (O’Connor, J., 
15 

concurring in part and concurring in the judgment).12 

D. In a similar vein, defendants assert that BCRA’s 

proscriptives can simply be avoided by omitting any reference 

to a candidate’s name. See FEC Br. 92, 106; McCain Br. 64. 

Not only would such a limitation significantly limit the ability 

of organizations to have their say about “issues and candidates,” 

but it would be flatly at odds with long-established authority. 

See, e.g., Cohen v. California, 403 U.S. 15, 26 (1971) (“[W]e 

cannot indulge in the facile assumption that one can forbid 

particular words without also running a substantial risk of 

suppressing ideas in the process.”). It would be difficult to 

devise a more effective statutory scheme to protect incumbents 

from criticism than by criminalizing the use of their names. 

E. Having banished Buckley and its contribution/ 

expenditure distinction to the dustbin of legal history, 

defendants concede that the “electioneering communications” 

provisions are subject to strict scrutiny. See FEC Br. 85. At the 

same time, defendants eschew the burdens associated with that 

standard, urging that it is plaintiffs’ burden to demonstrate that 

the statute is “substantially overbroad.” See id. at 104-05; 

McCain Br. 62. In support of this argument, defendants cite a 

number of overbreadth cases in which litigants who engaged in 

unprotected activities were held to have standing to challenge a 

statute on the ground that it violated the rights of third parties. 

See, e.g., Virginia v. Hicks, 123 S. Ct. 2191, 2196-97 (2003).13 

However, the term “overbreadth” is also used to describe 

12 See also Sullivan, supra, at 312 (noting that expenditures for express 

advocacy are properly viewed as “de facto contributions”); cf. Beaumont, 

123 S. Ct. at 2208 (characterizing Austin in similar fashion). 

13 One such case not cited by defendants is Virginia v. Black, 123 S. Ct. 

1536 (2003), where the Court facially invalidated the prima facie evidence 

provision of a Virginia cross-burning statute, finding that it “would create an 

unacceptable risk of the suppression of ideas” because the “act of burning a 

cross * * * may mean only that [a] person is engaged in core political 

speech.” Id. at 1551 (internal quotation omitted). 
16 

challenges by litigants such as plaintiffs here, who are engaged 

in protected activity and are challenging statutes that are 

“‘overbroad’ in the sense of restricting more speech than the 

Constitution permits.” R.A.V. v. City of St. Paul, 505 U.S. 377, 

381 n.3 (1992). In such cases, even where (as here) the litigant 

brings a facial challenge, the government bears the burden of 

demonstrating that its restrictions survive constitutional 

scrutiny. See, e.g., Republican Party of Minn. v. White, 536 

U.S. 765, 774-75 (2002); United States v. Playboy Entm’t 

Group, Inc., 529 U.S. 803, 818 (2000); Reno v. ACLU, 521 U.S. 

844, 879 (1997). 

F. Defendants finally turn to the task of demonstrating that 

the “electioneering communications” provisions are not 

overbroad and suggest that only a modest amount of speech at 

the fringes will be prohibited by the statute. See FEC Br. 105-

06, 111; McCain Br. 10, 63.14 The claim is belied by 

defendants’ own behavior, their experts, and their examples. 

As the intervenors note, see id. at 65, BCRA’s sweep is so 

broad that even its sponsors petitioned the FEC in an effort to 

exempt speech that all would agree is prohibited by BCRA, but 

could not possibly be prohibited consistent with the 

Constitution. One request would have exempted any political 

communication that used a candidate’s name in the context of 

specific legislation, such as a reference to the Helms-Biden 

Amendment or the Kennedy-McCain Bill. Another would have 

provided a carve-out for advertisements that urge support of, or 

opposition to, pending legislation, and urge the listener to 

contact a named official. The FEC (correctly) concluded that it 

had no authority to create such carve-outs in the face of the 

14 Defendants’ solution to the problem presented by what they characterize 

as “marginal” ads is to invite plaintiffs to assert individualized claims 

through as-applied challenges. See FEC Br. 106; McCain Br. 64-65. To 

suggest that a speaker must commence litigation in the overheated pace of an 

election campaign anytime he or she may wish to criticize an elected official, 

however, is to offer little meaningful judicial recourse at all. 
17 

clear and contrary command of Congress. See Electioneering 

Communications, 67 Fed. Reg. 65,190, 65,200-65,202 (Oct. 23, 

2002). For the same reason, the FEC declined to exempt ads 

regarding ballot initiatives or referenda, ads promoting local 

tourism, or paid public service announcements, feeling obliged 

to leave BCRA as Congress had drafted it. See id. The denied 

exemptions alone reveal BCRA’s impermissible sweep. 

Although they were the linchpin of defendants’ failed effort 

in the district court to demonstrate that BCRA is not overbroad, 

defendants now largely abandon the two empirical studies relied 

on by Congress for that very proposition, and complain that 

plaintiffs should not now be permitted to rely on them 

affirmatively to demonstrate that BCRA is overbroad.15 See 

FEC Br. 109-12; McCain Br. 67-69. Defendants’ effort to flee 

from their own studies reveals more than any statistic can: as 

the district court concluded, these studies, biased as they are in 

favor of defendants, prove plaintiffs’ overbreadth case. See 

Supp. App. 367sa n.149 (Henderson), 1157sa (Leon). Whether 

the percentage of what defendants characterize as “genuine 

issue ads” prohibited by BCRA is 17%, as defendants’ expert 

conceded, or 64%, as their unadulterated data show, the studies 

themselves demonstrate that BCRA’s primary definition of 

“electioneering communications” is irredeemably overbroad.16 

Defendants also suggest that plaintiffs’ proffered examples of 

15 After criticizing the very question that formed the foundation of their 

flawed claims to Congress, see McCain Br. 68-70, the intervenor defendants 

urge that the studies could be read to suggest that many of the ads analyzed 

focused primarily on “electioneering,” see id. at 70. That claim, however, is 

flatly incorrect. The Buying Time data actually revealed that 98% of the ads 

had “policy matters” as their “primary focus.” See J.A. 1079. 

16 Even if one were to accept defendants’ wildly understated estimate of 

BCRA’s impact on what defendants characterize as concededly “genuine 

issue advocacy,” had BCRA been in effect during the 1998 election, it would 

have banned core political speech that was seen by more than 30 million 

American households. See Supp. App. 1158sa (Leon). 
18 

specific ads banned by BCRA are unpersuasive. To make their 

point, the intervenor defendants cite, among others, the ad 

featuring congressional candidate David Wu, see McCain Br. 

69-70, and the federal defendants cite the ad referring to 

senatorial candidate Debbie Stabenow, see FEC Br. 107. Both 

ads are included in the appendix to our opening brief, and both, 

along with many others in the record below, see Gibson decl., 

exhs. 10, 12, indisputably illustrate BCRA’s sweeping 

overbreadth, notwithstanding any debate about numerators and 

denominators. An ad urging a candidate for Congress to sign a 

term-limits pledge, and another criticizing a candidate for the 

Senate for her position on estate-tax reform, are precisely the 

type of political speech that has always been accorded the 

highest level of First Amendment protection. Defendants’ 

claim that this speech about issues may be banned because it 

“may,” “might,” or “in all likelihood” could influence an 

election simply indicates how far from the First Amendment 

BCRA has obliged its defenders to stray. 

III. OTHER PROVISIONS OF BCRA ARE UNCONSTITUTIONAL. 

Remarkably, the sponsors of BCRA have abandoned the field 

with respect to BCRA’s other provisions, leaving the Solicitor 

General dutifully to defend their constitutionality. These 

egregiously unconstitutional provisions scarcely merit 

additional comment. 

A. As to the “advance notice” provisions (section 201 and 

212), defendants do not contest that the FEC’s regulation 

“construing” section 212 so as not to require advance disclosure 

is flatly contrary to the language of the statute itself. See FEC 

Br. 122. And defendants offer no response to our argument 

that the governmental interests supporting disclosure 

requirements would be fully served simply by requiring 

disclosures after expenditures have actually been made. See id. 

B. On “coordination” (section 214), defendants virtually 
19 

ignore our primary argument that, when considered as a whole, 

section 214 impermissibly treats expenditures as “coordinated” 

even absent agreement between a spender and a candidate or 

party. See id. at 124-25. Defendants note that, in Colorado II, 

this Court held that coordinated spending includes even “wink 

or nod” arrangements. See 533 U.S. at 442. But as we have 

noted, section 214 sweeps well beyond even implicit “wink or 

nod” agreements, and includes even mere discussions with a 

candidate or political party. See McConnell Br. 66. As such, 

section 214 will immediately chill protected petitioning activity. 

C. Regarding BCRA’s “attack ad” provision (section 305), 

although it is true, as defendants observe, that the FCC has long 

required disclosures in candidate ads, no attempt has ever 

previously been made to deny a benefit (here, the lowest unit 

charge) merely because a candidate has engaged in speech that 

does nothing more than criticize an opponent. Defendants 

cannot connect the viewpoint-based requirements of section 

305 to any of its purported purposes. See McConnell Br. 68.17 

D. As to BCRA’s “forced choice” provision (section § 213), 

defendants repeatedly assert that the ability of political parties 

to make a greater amount of coordinated expenditures is not 

17 Defendants claim that section 305 is content-based, not viewpoint-based, 

because it applies to “all * * * broadcasts that make a ‘direct reference’ to a 

candidate’s opponent.” FEC Br. 130. This ignores not only the title of the 

provision, which announces that it regulates “attack ads,” but also common 

sense. As the NRA put it, “the world has never seen, and never will see, a 

law aimed at praise of the lawmakers.” NRA Br. 8. Nor does a single ad 

surveyed in preparation for the Buying Time studies contain praise by a 

candidate for an opponent. As amici members of Congress have conceded, 

section 305 is concerned with “negative advertising.” See Castle Br. 26. 

Defendants also contend that Senator McConnell, who testified that he 

intends to run ads critical of his opponents in the future, nevertheless lacks 

standing under traditional standing requirements to challenge section 305. 

See FEC Br. 130. Senator McConnell’s testimony, however, is at a 

minimum sufficient to satisfy this Court’s relaxed requirements for standing 

in First Amendment challenges. See McConnell Br. 67. 
20 

constitutionally required. See, e.g., FEC Br. 61. But it would 

be illogical to require that a “benefit” itself be constitutionally 

mandated before conditions on the ability to receive the 

“benefit” can be unconstitutional. Defendants’ analogy to the 

public financing of presidential campaigns, see id. at 61-62, is 

inapposite because those provisions place conditions on the 

receipt of public funds. And the mere fact that Congress 

originally intended that parties could not make independent 

expenditures, see id. at 62-63, does not allow Congress to 

burden what this Court has since recognized, in Colorado I, is a 

constitutionally protected right. 

E. On “minors” (section 318), it suffices to note that 

defendants offer no response to our arguments that Buckley 

itself requires that section 318 be subject to strict scrutiny, and 

that there were manifold more narrowly tailored alternatives 

short of an outright ban. See McConnell Br. 71-72. 

F. Finally, as to BCRA’s “broadcaster records” provision 

(section 504), defendants, in the face of a unanimous ruling 

concluding that this provision is unconnected to any valid 

government interest, still fail to identify a single valid 

government interest that justifies it. Instead, defendants’ only 

argument is that section 504 is similar (although by no means 

identical) to certain existing FCC regulations that have never 

been challenged. See FEC Br. 133. Even if that were a 

legitimate defense to section 504’s unconstitutionality, 

however, defendants’ claim that section 504 is no more 

intrusive than these pre-BCRA regulations is simply erroneous. 

In fact, section 504 imposes unprecedented obligations, 

requiring, among other things, detailed disclosures of even 

requests by private citizens and groups to run ads about 

important, often controversial, issues. As such, section 504 

cannot withstand exacting scrutiny, and should be struck down. 

CONCLUSION 

The challenged provisions of BCRA should be invalidated. 
FLOYD ABRAMS 

SUSAN BUCKLEY 

BRIAN MARKLEY 

CAHILL GORDON & 

REINDEL LLP 

80 Pine Street 

New York, NY 10005 

(212) 701-3000 

Attorneys for Senator Mitch 

McConnell and National 

Association of Broadcasters 

KATHLEEN M. SULLIVAN 

559 Nathan Abbott Way 

Stanford, CA 94305 

(650) 725-9875 

Attorney for Senator Mitch 

McConnell 

Respectfully submitted, 

KENNETH W. STARR 

Counsel of Record 

EDWARD W. WARREN 

KANNON K. SHANMUGAM 

KIRKLAND & ELLIS LLP 

655 Fifteenth Street, N.W. 

Washington, DC 20005 

(202) 879-5000 

Attorneys for Senator Mitch 

McConnell; Southeastern 

Legal Foundation, Inc.; 

Representative Bob Barr; 

Center for Individual 

Freedom; National Right to 

Work Committee; 60 Plus 

Association, Inc.; and U.S. 

d/b/a Pro English 

JAN WITOLD BARAN 

THOMAS W. KIRBY 

LEE E. GOODMAN 

WILEY, REIN & 

FIELDING LLP 

1776 K Street, N.W. 

Washington, DC 20006 

(202) 719-7000 

Attorneys for Senator Mitch 

McConnell 
VALLE SIMMS DUTCHER 

L. LYNN HOGUE 

SOUTHEASTERN LEGAL 

FOUNDATION, INC. 

3340 Peachtree Road, N.E. 

Suite 3515 

Atlanta, GA 30326 

(404) 365-8500 

Attorneys for Southeastern 

Legal Foundation, Inc.; 

Representative Bob Barr; 

Center for Individual 

Freedom; National Right to 

Work Committee; 60 Plus 

Association, Inc.; and U.S. 

d/b/a Pro English 

G. HUNTER BATES

FROST BROWN TODD LLC

400 West Market Street 

32nd Floor 

Louisville, KY 40202 

(502) 589-5400 

Attorney for Senator Mitch 

McConnell and Thomas E. 

McInerney 

August 21, 2003 

JACK N. GOODMAN 

JERIANNE TIMMERMAN 

NATIONAL ASSOCIATION OF 

BROADCASTERS 

1771 N Street, N.W. 

Washington, DC 20036 

(202) 429-5430 

Attorneys for National 

Association of Broadcasters