Nos. 06-969 & 06-970 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

———— 

FEDERAL ELECTION COMMISSION, 

Appellant,

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

———— 

SENATOR JOHN MCCAIN, et al., 

Appellants, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF OF THE AMERICAN FEDERATION OF 

LABOR AND CONGRESS OF INDUSTRIAL 

ORGANIZATIONS AS AMICUS CURIAE 

IN SUPPORT OF APPELLEE 

———— 

JONATHAN P. HIATT

LAURENCE E. GOLD * 

AFL-CIO

815 16th Street, N.W. 

Washington, DC 20006 

* Counsel of Record (202) 637-5130 
TABLE OF CONTENTS 

Page 

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

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

SUMMARY OF ARGUMENT..................................... 4 

ARGUMENT................................................................. 6 

 I. A Meaningful As-Applied Exception to 

Section 203 Must Be Defined By Bright-Line 

and Readily Determinable Characteristics ........ 6 

 II. The Appellants’ Analyses Effectively Preclude 

As-Applied Exceptions and Are Incoherent 

and Self-Contradictary....................................... 11 

 III. There Is No Governmental Interest in Suppressing Issue Advocacy Broadcast Messages.. 21 

 IV. The Appellants’ Arguments Concerning 

WRTL’s Separate Segregated Fund Should Be 

Rejected ............................................................. 24 

 V. The Court Should Not Foreclose the Possibility That Labor Organizations as a Class of 

Speaker Are Exempt From Section 203 ............ 29 

CONCLUSION ............................................................. 30

(i) 
ii 

TABLE OF AUTHORITIES 

CASES Page 

Abood v. Detroit Bd. of Education, 431 U.S. 209 

(1977)................................................................. 29 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2003)................................................................. 13 

Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990) ................................................. 6, 30 

BE&K Construction Co. v. NLRB, 536 U.S. 516 

(2002)................................................................. 22 

Brown v. Hartlage, 456 U.S. 45 (1982)................. 11 

Brown v. Socialist Workers ’74 Campaign Committee (Ohio), 459 U.S. 87 (1982)..................... 23-24 

Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) .............................. 27 

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

Buckley v. Valeo, 519 F. 2d 817 (D.C. Cir. 1975)... 8 

Christian Civic League of Maine v. Federal 

Election Commission (No. 06-589) ................... 3 

Consolidated Edison Co. v. Public Service 

Commission, 447 U.S. 530 (1980)..................... 23 

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) ........... 29 

Ellis v. Bhd. of Railway and Airline Clerks, 466 

U.S. 435 (1984) ................................................. 29 

Federal Election Commission v. Beaumont, 539 

U.S. 146 (2003) ................................................. 25 

Federal Election Commission v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986)....... 11, 12 

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ................................................. 22, 23 

Hurley v. Irish-American Gay, Lesbian and 

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

(1995)................................................................. 27 

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 

(1991)................................................................. 29 
iii 

TABLE OF AUTHORITIES—Continued 

 Page 

Machinists v. Street, 367 U.S. 740 (1961)............. 29 

McConnell v. Federal Election Commission, 540 

U.S. 93 (2003) ................................................... passim

McConnell v. Federal Election Commission, 251 

F. Supp. 2d 176 (D.D.C. 2003).......................... 10 

Meyer v. Grant, 486 U.S. 414 (1988).................... 27-28 

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

(1964)................................................................. 13, 23 

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .............. 13 

Pacific Gas & Electric Co. v. Public Utilities 

Commission, 475 U.S. 1 (1986)......................... 27 

Pipefitters Local Union No. 562 v. United States, 

407 U.S. 385 (1972) .......................................... 26, 29 

Regan v. Taxation With Representation of 

Washington, 461 U.S. 540 (1983) ..................... 26 

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

Inc., 487 U.S. 781 (1988) .................................. 27 

Thomas v. Collins, 323 U.S. 516 (1945) ............... 9, 12 

Thornhill v. Alabama, 308 U.S. 88 (1940) ............ 23 

United States v. Congress of Industrial 

Organizations, 335 U.S. 106 (1948).................. 27, 29 

United States v. United Auto Workers, 352 U.S. 

567 (1957).......................................................... 29 

Wisconsin Right to Life, Inc. v. Federal Election 

Commission, 546 U.S. 410 (2006)............... 2-3, 21, 25 

Wisconsin Right to Life, Inc. v. Federal Election 

Commission, 466 F. Supp. 2d 195 (D.D.C. 

2006).................................................................. 9, 21 

STATUTES 

2 U.S.C. § 431(2)(A) ............................................. 3 

2 U.S.C. § 431(18)................................................. 2, 21 

2 U.S.C. § 431(20)(A)(iii) ..................................... 15 
iv 

TABLE OF AUTHORITIES—Continued 

 Page 

2 U.S.C. § 434(f)(3)(A)(i) ..................................... 1 

2 U.S.C. § 434(f)(3)(A)(ii) .................................... 1 

2 U.S.C. § 434(f)(3)(B)(iv).................................... 3, 15 

2 U.S.C. § 441a(a)(5)............................................. 28 

2 U.S.C. § 441b(a)................................................. 25 

2 U.S.C. § 441b(b)(2) ............................................ passim

2 U.S.C. § 441b(b)(2)(A)....................................... 27 

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

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

2 U.S.C. § 441d(a)................................................. 27 

26 U.S.C. § 501(c)(3) ............................................ 26 

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

26 U.S.C. § 527(e)(2) ............................................ 28 

REGULATIONS 

11 C.F.R. § 100.3................................................... 3 

11 C.F.R. § 100.17................................................. 21 

11 C.F.R. § 100.29................................................. 3 

11 C.F.R. § 110.3(a)(2)(ii)..................................... 29 

11 C.F.R. § 110.3(a)(2)(iii).................................... 29 

26 C.F.R. § 1.527-2(b)(1)...................................... 28 

MISCELLANEOUS 

Detailed Comments of BCRA Sponsors Senator 

John McCain, Senator Russ Feingold, Representative Christopher Shays, Representative 

Marty Meehan, Senator Olympia Snowe, and 

Senator James Jeffords (Aug. 23, 2002), 

www.fec.gov/pdf/nprm/electioneering_comm/

comments/us_cong_members.pdf).................... 20 
v 

TABLE OF AUTHORITIES—Continued 

 Page 

FEC, “Exception for Certain ‘Grassroots Lobbying’ Communications from the Definition of 

‘Electioneering Communication,’” 71 Fed. 

Reg. 52295 (Sept. 5, 2006)................................ 3 

Internal Revenue Service, “Election Year Issues” 

(2003)................................................................. 26 

Letter from Donald J. Simon to Mai T. Dinh 

(Aug. 22, 2002), www.fec.gov/pdf/nprm/ 

electioneering_comm/comments/common_cau

se_and_democracy_21.pdf)............................... 20 

Petition for Rulemaking: Electioneering Communications and Grassroots Lobbying Exemption (Feb. 16, 2006), www.fec.gov/pdf/nprm/ 

lobbying/orig_petition.pdf................................. 3 

“Record-Keeping Under the Labor Management 

Reporting and Disclosure Act (LMRDA): Do 

DOL Reporting Systems Benefit the Rank and 

File?”, Joint Hearing Before the Subcommittee 

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

the House Committee on Education and the 

Workforce, 107th Cong., 2d Sess. (2002) ......... 28 

www.fec.gov/press/press2006/20060714paccount.

html.................................................................... 28 
The American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”), a federation of 54 national 

and international labor organizations with a total membership 

of 10 million working men and women, files this brief amicus 

curiae in support of Appellee with the consent of the parties 

as provided for in the Rules of this Court.1

 

INTEREST OF AMICUS 

As plaintiffs in McConnell v. Federal Election Commission, 540 U.S. 93 (2003) (No. 02-1755), the AFL-CIO and its 

connected federal political committee, AFL-CIO COPE PCC 

(together, “the AFL-CIO Plaintiffs”), brought a facial challenge, under the First Amendment to the United States 

Constitution, to § 203 of the Bipartisan Campaign Reform 

Act (“BCRA”) of 2002, 2 U.S.C. § 441b(b)(2) and (c) 

(amending the Federal Election Campaign Act (“FECA”), 2 

U.S.C. § 431 et seq.), which proscribes union and corporate 

funding of “electioneering communications.”2 The AFL-CIO 

 1

 No counsel for a party authored this brief amicus curiae in whole or 

in part, and no person or entity, other than the amicus, made a monetary 

contribution to the preparation or submission of this brief. 

2

 2 U.S.C. § 434(f)(3)(A)(i), contains what is generally termed the “primary definition” of this term, and 2 U.S.C. 434(f)(3)(A)(ii) contains a 

“backup definition” that would apply instead if the primary definition 

were held to be unconstitutional. The primary definition includes a 

transmission element (“any broadcast, cable or satellite communication”); 

a content element (“refers to a clearly identified candidate for federal 

office”); a temporal element (within 60 days before “a general, special or 

runoff election,” or within 30 days before “a primary or preference 

election” or nominating “convention or caucus” “for the office sought by 

the candidate”) and an audience element (“can be received by 50,000 or 

more persons” in the relevant electoral jurisdiction). See McConnell, 540 

U.S. at 189-90. The term “clearly identified” means the candidate’s 

“name,” “photograph” or “drawing,” and where “the identity of the 

candidate is apparent by unambiguous reference” otherwise. See 2 U.S.C. 

§ 431(18). As elaborated by an FEC regulation, “the identity of the 

candidate is otherwise apparent through an unambiguous reference such 

as ‘the President,’ ‘your Congressman,’ or ‘the incumbent’”, or through 
2 

Plaintiffs did so because this provision threatened to impair 

the AFL-CIO’s use of the broadcast medium as a legislative 

and policy advocacy tool, marked an unprecedented legislative incursion on labor organizations’ ability to speak out on 

matters of public concern by treating substantial portions of 

their public advocacy as electoral in nature, and would 

impose a substantial and unwarranted burden on AFL-CIO 

COPE PCC. 

The AFL-CIO Plaintiffs placed in the record of that case 

compact discs and videotapes of approximately 85 different 

television and radio advertisements that the AFL-CIO had 

sponsored throughout every year from 1995 through 2001; 

virtually every ad in turn had numerous versions, the difference in almost every case being the name of the incumbent 

Member of Congress to whom the ad referred. See Joint 

Appendix (“J.A.”), Vol. I, pgs. 440-62 (Declaration of Denise 

Mitchell); J.A. Vol. II, pgs. 464-587 (Index of AFL-CIO Issue 

Advertising, 1995-2001); Brief of AFL-CIO Appellants/ 

Cross-Appellees at 1-7. McConnell v. FEC, No. 02-1674, et 

al. Without specifically addressing the AFL-CIO Plaintiffs’ 

evidentiary submission, however, the Court held that the 

various McConnell plaintiffs had not “carried their heavy 

burden of proving that [§ 203] is overbroad.” See 540 U.S. at 

203-11. 

The AFL-CIO subsequently filed a brief amicus curiae in 

support of the appellant in Wisconsin Right to Life, Inc. v. 

 

an unambiguous reference to his or her status as a candidate such as ‘the 

Democratic presidential nominee’ or ‘the Republican candidate for Senate 

in the State of Georgia.’” See 11 C.F.R. § 100.29. A person becomes a 

“candidate” under FECA upon receiving contributions or making 

expenditures in excess of $5,000, see 2 U.S.C. § 431(2)(A), a threshold 

routinely met by incumbent Members of Congress almost immediately 

after winning their most recent election. See also 11 C.F.R. § 100.3. As a 

practical matter, only a Member of Congress who has announced retirement or lost a nomination contest is not a “candidate” at all times, including those periods during which § 203 applies. 
3 

FEC, 546 U.S. 410 (2006) (per curiam) (“WRTL I”), arguing 

both that as-applied challenges to § 203 were justiciable and 

that the advertisements at issue were entitled to protection 

under the First Amendment. In January 2006, the Court 

unanimously held that its decision in McConnell “did not 

purport to resolve future as-applied challenges,” 546 U.S. at 

____, 126 S. Ct. 1016, 1018, and observed that “[a]lthough 

the [Federal Election Commission] has statutory authority 

to exempt by regulation certain communications from 

BCRA’s prohibition on electioneering communications, 

§ 434(f)(3)(B)(iv), at this point, it has not done so for the 

types of advertisements at issue here.” Id. at ___, 126 S. Ct. 

at 1017. 

The following month, the AFL-CIO joined with a usual 

policy adversary, the Chamber of Commerce of the United 

States, and three other organizations in a petition asking the 

Federal Election Commission (“FEC”) to initiate a rulemaking to exempt “at least some forms of grassroots lobbying” 

from that prohibition, in effect a safe harbor for messages that 

bore particular characteristics. See Petition for Rulemaking: 

Electioneering Communications and Grassroots Lobbying 

Exemption (Feb. 16, 2006), www.fec.gov/pdf/nprm/lobbying/

orig_petition.pdf. However, after considering 192 comments 

on the petition (all but one of which supported it), the FEC 

declined to undertake such a rulemaking, pointing to the 

pendency of both the case at bar and another pending asapplied challenge (No. 06-589, Christian Civic League of 

Maine v. FEC), and expressing concern that any exemption 

might become the subject of “new litigation.” FEC, “Exception for Certain ‘Grassroots Lobbying’ Communications from 

the Definition of ‘Electioneering Communication,’” 71 Fed. 

Reg. 52295, 52296 (Sept. 5, 2006). The AFL-CIO has a 

considerable stake in judicial recognition of a meaningful 

standard for as-applied exceptions to § 203’s otherwise absolute prohibition. 
4 

SUMMARY OF ARGUMENT 

1. In McConnell v. FEC, 540 U.S. 93, 206 (2003), the 

Court upheld the BCRA § 203 prohibition of corporate- and 

union-financed so-called “electioneering communications” 

“to the extent that the issue ads broadcast during the preelection periods...are the functional equivalent of express 

advocacy.” In so holding, the Court focused on one advertisement in the record and posited a hypothetical message that 

satisfied that standard, neither of which included a reference 

to a candidate acting in the capacity of an incumbent officeholders. The Court acknowledged that the compelling governmental interests underlying § 203 might not apply to 

“genuine issue ads” pertaining to “political policy or advocacy of the passage or defeat of legislation,” whose existence 

during the § 203 timeframes it acknowledged. Id. at 205. 

As the Court aptly observed in Buckley v. Valeo, 424 U.S. 

1, 42 (1976), discussion of issues “naturally and inexorably . . . 

exert[s] some influence on voters’ choices.” A meaningful 

opportunity to make an as-applied challenge to § 203 must 

include reliance upon the presence or absence of characteristics that preserve § 203 insofar as it is constitutional, that are 

readily and objectively determinable, and that cabin a class of 

communications least likely to be electorally focused. The 

WRTL advertisements reflect six such characteristics and 

should be protected. 

2. In contrast, the Government and the Intervenors treat 

the innate fluidity of electoral and non-electoral speech as 

justification to resist any meaningful protection for issue 

speech. While the Government correctly acknowledges the 

problems with a wide-ranging inquiry into a particular advertisement, its analysis of the WRTL’s ads belies its sensible 

cautions. The Government’s strict adherence to § 203’s 

“bright line” effectively deprives speakers of any meaningful 

exception. In conferring discretionary exemption authority 
5 

on the FEC in § 203, Congress itself did not envision that 

§ 203’s bright line would be absolute. 

The Intervenors offer a variety of vague and unworkable 

standards for identifying what speech § 203 may constitutionally capture. They too intrusively parse the language of the 

WRTL ads and reach speculative and unjustifiable conclusions from contextual factors whose consideration they erroneously contend should be unlimited, and their comparative 

examples of speech that merit protection cannot be coherently 

distinguished from the WRTL advertisements. Their argument also marks an unexplained reversal of the position they 

urged upon the FEC in its 2002 BCRA rulemaking, when 

they advocated a virtually entirely content-based exemption 

to § 203 because it would “assure that the communication 

plainly and unquestionably is ‘wholly unrelated to any election,’” a standard that appears even more exacting than those 

they urge the Court to apply to the WRTL ads that in all 

relevant respects fully satisfy their 2002 formulation. 

3. In contrast to express advocacy and its “functional 

equivalent,” the Court has never recognized a governmental 

interest in suppressing the issue speech that merits an asapplied exemption to § 203. That speech serves the First 

Amendment right to petition the Government, and it is core 

protected speech regardless of the identity of the speaker. 

And, the § 203 prohibition is particularly inappropriately 

applied where, as here, the referenced candidate was running 

unopposed in a political party primary. 

4. The Court should reject the appellants’ argument that 

WRTL’s ads should be construed as electoral due to the 

distinct activities of WRTL’s federal PAC. The PAC is a distinct legal entity, and it would effectively impose an unconstitutional forced choice, akin to one the Court rejected in 

McConnell, if the PAC’s speech were treated as tainting that 

of WRTL. Concluding otherwise would disrupt dual organizational structures that both the Federal Election Campaign 
6 

Act and the Internal Revenue Code have long protected and 

encouraged. 

Requiring a corporation’s separate segregated fund to 

finance issue speech also unconstitutionally compels the 

speaker to assert an electoral character to speech against its 

wishes. And, due to a longstanding Internal Revenue Service 

rule, the PAC could lose its tax exemption as a result. Requiring groups, particularly in hierarchical structures, to rely 

upon a PAC for issue speech is also unduly burdensome. 

5. Finally, in deciding this case the Court should not 

foreclose the opportunity for a union or other speaker that is 

not now before it to make out a class-based exception from 

§ 230. McConnell predicated its holding on cases involving 

corporations and did not specify why § 203 is constitutional 

as to unions, which have “crucial differences” from corporations that are directly relevant to the justifications underlying 

laws restricting corporate electoral speech. Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652, 655-56 (1990). 

ARGUMENT

I. A Meaningful As-Applied Exception to Section 203 

Must Be Defined By Bright-Line and Readily 

Determinable Characteristics 

BCRA’s “electioneering communications” provision imposes “stringent restrictions on all election-time advertising 

that refers to a candidate because such advertising will often 

convey messages of support or opposition.” McConnell v. 

FEC, 540 U.S. at 239 (emphasis in original). In upholding 

§ 203 against plaintiffs’ overbreadth challenges, the Court 

stated that the constitutionally sufficient justifications for 

§ 203 applied only “to the extent that the issue ads broadcast 

during the [pre-election] periods . . . are the functional 

equivalent of express advocacy,” that is, “if the ads are 

intended to influence the voters’ decisions and have that 

effect.” Id. at 206; see also id. at 126-27. The Court deter-
7 

mined that “the vast majority of ads” reflected in the record 

before it “clearly had such a purpose”; and, in contrast, 

§ 203’s application to “pure issue ads” was not “substantial.” 

Id. at 206, 207 (emphasis added). While the Court noted the 

“dispute” among the parties and within the three-judge court 

in that case as to “the precise percentage” of electionproximate ads in the record that were “genuine issue ads,” id. 

at 206, every party and district judge in McConnell acknowledged that some ads run during the § 203 blackout periods 

were “genuine issue ads.” 

However, the Court eschewed a detailed treatment of the 

substantial record of broadcast advertising that was before it. 

Instead, the Court generally referred to ads that “although . . . 

not urg[ing] the viewer to vote for or against a candidate in so 

many words, . . . are no less clearly intended to influence the 

election.” Id. at 193 (footnote omitted). The Court illustrated 

this concept with a single “striking example”: a 1996 Montana ad consisting of an ad hominem statement that compared 

a non-incumbent congressional candidate’s alleged assault of 

his wife and failure to pay child support with the candidate’s 

state legislative voting record, and asked listeners to “[c]all 

Bill Yellowtail. Tell him to support family values.” Id. 

at 193 n. 78. The Court otherwise attributed a “votefor” message only to ads that it hypothetically described as 

solely “condemn[ing] Jane Doe’s record on a particular issue 

before exhorting viewers to ‘call Jane Doe and tell her what 

you think.’” Id. at 127 (footnote omitted). Like the Montana 

ad, this generic ad did not include a plea that listeners call 

upon the candidate as an officeholder either to cast a legislative vote or take any other official action, and it could have 

been directed at a candidate who was a non-incumbent. The 

Court discussed no other particular advertisement or specific 

formulation of advertisements. 

By the same token, the McConnell majority did not elaborate about what makes ads “genuine,” other than by describ-
8 

ing in the manner quoted above what does not. But the Court 

plainly had in mind at least “discussion of political policy 

or advocacy of the passage or defeat of legislation”; for, it 

quoted its previous comparison—for purposes of entitlement to First Amendment protection—of that speech with 

‘“[a]dvocacy of the election or defeat of candidates for 

federal office”‘ in Buckley v. Valeo, 424 U.S. 1, 48 (1976), 

before explaining why the government had a compelling 

interest in regulating certain sources of the latter. See 

McConnell, 540 U.S. at 205. 

Because § 203 may be constitutionally applied only to the 

“functional equivalent” of express advocacy, at the core of 

this case is the question of how to identify candidatereferential messages that do not so qualify. The difficulty in 

distinguishing the broadcast electoral advertising about which 

Congress was concerned from other messages arises from 

inevitable circumstances that this Court aptly described in 

Buckley: 

[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates 

may often dissolve in practical application. Candidates, 

especially incumbents, are intimately tied to public 

issues involving legislative proposals and governmental 

actions. Not only do candidates campaign on the basis 

of their positions on various public issues, but campaigns themselves generate issues of public interest.50

50 “. . . Discussions of those issues, as well more positive 

efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at 

elections.” 

424 U.S. at 42 and n.50 (emphasis added), quoting Buckley v. 

Valeo, 519 F. 2d 817, 875 (D.C. Cir. 1975). 

The district court below undertook a careful and practical 

review in concluding that the as-applied analysis should proceed almost entirely on the basis of the “four corners of the 
9 

. . . ads” themselves, rather than an unbounded consideration 

of other material and analysis in order to ascertain a speaker’s 

“subjective intent” or a broadcast message’s “likely effect”—

matters that, it concluded, were “too conjectural and wholly 

impractical [to determine] if future as-applied challenges are 

going to be evaluated on an emergency basis by three-judge 

panels,” as BCRA commands. Wisconsin Right to Life, Inc. 

v. FEC, 466 F. Supp. 2d 195, 205 (D.D.C. 2006). In evaluating whether or not the Wisconsin Right to Life, Inc. (“WRTL”) 

ads merit First Amendment protection from the application of 

§ 203, this Court too should consider what characteristics of a 

constitutionally protected advertisement will preserve the 

reach of § 203 insofar as McConnell upheld it, and enable 

speakers, often in exigent circumstances, to proceed without 

having to “‘hedge and trim’” their speech. See Buckley, 424 

U.S. at 43, quoting Thomas v. Collins, 323 U.S. 516, 535 

(1945). These factors should supply as bright a line as 

possible and cabin a class of communications that are least 

likely to be electorally focused, and their presence or absence 

should be readily determinable without entailing the kind of 

intrusive discovery and litigation donnybrook that ensued 

when WRTL sought preliminary relief below, and that would 

risk an irreparable loss of First Amendment rights.3

 

The WRTL ads that are actually before the Court for decision satisfy the six characteristics enumerated below, and 

because they do the § 203 prohibition must yield.4

 More 

objective than several of the considerations enumerated by 

the district court, these characteristics mark communications 

 3

 If the Court determines that there is no constitutionally sufficient 

means to enable meaningful as-applied challenges to § 203, then it should 

reconsider its decision in McConnell that the § 203 prohibition is itself 

constitutional, either in deciding the case at bar on the current record, or 

following supplemental briefing on that question. 

4

 These characteristics track those that the AFL-CIO and others proposed that the FEC adopt in 2006. 
10 

that in substantial measure belie electoral advocacy and 

are very far removed from the Court’s two exemplars—the 

Montana ad and the Jane Doe ad—of communications that 

are electoral in nature: 

1. The “clearly identified federal candidate” is an incumbent public officeholder; 

2. The communication discusses a particular current 

legislative or executive branch matter; 

3. The communication either (a) calls upon the candidate to take a particular position or action with respect to 

the matter in his or her incumbent capacity, or (b) calls 

upon the general public to contact the candidate in that 

capacity and urge him or her to do so; 

4. If the communication discusses the candidate’s position or record on the matter, it does so only by quoting 

the candidate’s own public statements or reciting the 

candidate’s official action, such as a vote, on the matter; 

5. The communication does not refer to an election, the 

candidate’s candidacy or a political party; and 

6. The communication does not refer to the candidate’s 

personal character, or qualifications or fitness for office.5

We acknowledge that an ad that reflects all of these elements nonetheless conceivably could exert some impact under 

some circumstances on an election, as Buckley, 424 U.S. at 

42, generally observed. While it is possible to define the sort 

 5

 The texts and circumstances of six exemplars of broadcast advertisements that also would satisfy this test are detailed in District Judge 

Leon’s opinion in McConnell v. FEC, 251 F. Supp. 2d 176, 488-96 

(D.D.C. 2003), as “[r]epresentative [e]xamples of [g]enuine [i]ssue 

[a]dvertisements” that unconstitutionally would have been subject to § 

203 had it been in effect; all are AFL-CIO ads from 1998 or 2000. Each 

ad discussed a current legislative issue and referred to a “candidate” (each 

an incumbent Member of Congress) only in calling on him or her to take 

particular action on the issue. See id. 
11 

of speech that necessarily will influence an election—express 

advocacy, which is “unambiguously related to [a] campaign,” 

id. at 80—it is not possible to devise a definition of speech 

that necessarily will not. We believe that the above characteristics, relevant to deciding the case at bar, carefully “identify[] 

cases far from the troublesome border,” Brown v. Hartlage, 

456 U.S. 45, 56 (1982), and appropriately balance the competing constitutional considerations at hand, while not foreclosing consideration of other factual circumstances, many of 

which might not now be easily foreseeable. 

II. The Appellants’ Analyses Effectively Preclude AsApplied Exceptions and Are Incoherent and SelfContradictary 

1. In sharp contrast to the district court and the proposed 

analysis above, the Government and the Intervenors treat the 

innate fluidity of electoral and non-electoral speech as justification to subject virtually all of the latter to the prohibition 

that § 203 was intended to and constitutionally may impose 

only on the former. While the Government calls upon WRTL 

to supply “a legal test that avoids the pitfalls of undue 

complexity and susceptibility to evasion,” FEC Br. at 27 

(emphasis in original), the Government proposes a standard 

for an as-applied challenge that simply cannot be met, if 

indeed it can be understood. Surprisingly, the Government 

rejects “functional equivalence” to express advocacy as a 

“workable or administrable” standard for as-applied challenges, terming it a “useful concept” only for “upholding the 

bright-line limitations” of § 203. Id. at 29 n.7. Relying upon 

the Court’s exemption of certain ideological corporations 

from FECA’s independent expenditure ban in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263 (1986) 

(“MCFL”), the Government instead asserts that an ad is 

protected only if it “do[es] not pose the danger at which § 203 

is directed,” FEC Br. at 40, “at all, rather than [presenting] 

differences of degree.” Id. at 27 (emphasis added). 
12 

The Government’s analysis does not acknowledge that, at 

some point, the § 203 “danger” is far too attenuated to justify 

application of the prohibition. Its analogy to MCFL fails 

because the Court there identified a precisely and objectively 

determinable class of speaker that would be exempt from the 

ordinary strictures against corporate independent expenditures. See MCFL, 479 U.S. at 262-65. But in describing 

what should be exempted from the § 203 bright-line, the 

Government suggests no similar precision as to what circumstances—either textually or contextually—do not “pose” the 

§ 203 “danger” “at all.” This poses the problem that § 203 

was supposedly drafted to solve: avoiding “the vagueness 

concerns that drove [the] analysis in Buckley.” McConnell, 

540 U.S. at 194. Instead, the Government’s approach “blankets with uncertainty whatever may be said. It compels the 

speaker to hedge and trim.” Buckley, 424 U.S. at 43, quoting 

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

The Government does claim to agree with the district court 

that “requir[ing] examination of all facts that are potentially 

relevant to the ascertainment of an advertisement’s purpose or 

effect” is infeasible, FEC Br. at 27 (emphasis in original), as 

is any “ad hoc, case by case basis” for doing so, id. at 30, and 

it disclaims on First Amendment grounds “close parsing 

of the nuances of an advertisement’s text.” Id. at 27. The 

Government also correctly recognizes that “potential speakers 

may be chilled if the legality of particular communications or 

financing arrangements turns on an unstructured post hoc 

inquiry into the speaker’s likely intent.” Id. at 42. But the 

Government then ignores its own wise counsel. 

First, the Government agrees with the dissenting judge 

below that WRTL’s advertisement that, on its face, complained about judicial filibusters would be “logically directed 

only at the legislators who have already supported or employed the device,” so “‘even a textual approach could 

suggest that . . . [the advertisements] might have implicitly 
13 

discouraged Sen. Feingold’s election.’” FEC Br. at 37, quoting 466 F. Supp. 2d at 216 (Judge Roberts, dissenting). This 

reading certainly “close[ly] pars[es] the nuances” of the ad, 

and if a circumlocution that “might have implicitly discouraged” a candidate’s election “pose[s] the danger at which 

§ 203 is directed” then the Government’s standard both “disserve[s] First Amendment values,” id. at 27, and sets the asapplied bar unreachably high for a speaker to surmount. 

Second, despite its rhetorical rejection of a wide-ranging 

contextual inquiry, the Government urges the Court to consider and evaluate the significance of numerous contextual 

factors, including the timing of the WRTL ads, the content of 

WRTL’s website, WRTL’s conduct over the subsequent year, 

and both prior and contemporaneous speech and activities by 

WRTL and its federal PAC with respect to Sen. Feingold. Id. 

at 40-48. 

By effectively depriving corporations and unions of any 

opportunity to fund “genuine” broadcast issue advertising 

during the § 203 timeframes, the Government’s test does not 

comport with our constitutional jurisprudence. “[T]he argument . . . that protected speech may be banned as a means to 

ban unprotected speech . . . turns the First Amendment upside 

down. The Government may not suppress lawful speech as 

the means to suppress unlawful speech. Protected speech 

does not become unprotected merely because it resembles the 

latter. The Constitution requires the reverse.” Ashcroft v. 

Free Speech Coalition, 535 U.S. 234, 255 (2003).6

 6

 Similarly, precisely because “speech on matters of public concern 

needs ‘breathing space’ . . . in order to survive,” Nike, Inc. v. Kasky, 539 

U.S. 654, 676 (2003) (Breyer J., dissenting), quoting New York Times Co. 

v. Sullivan, 376 U.S. 254, 272 (1964), where a corporation’s regulable 

“purely commercial” speech is “inextricably intertwined” with “non-commercial” (public issue-oriented) speech, it must not be subject to state 

“false advertising” and related “unfair competition” regulation because 

that would chill corporations from “issu[ing] significant communications 
14 

2. Nonetheless, the Government touts the § 203 “bright 

line” as justification in itself to resist recognizing WRTL’s, 

and likely any, as-applied challenge. See FEC Br. at 42-43. 

But in MCFL the Court squarely rejected the same argument, 

holding that where “the rationale for restricting core political 

speech is simply the desire for a bright-line rule[, t]his hardly 

constitutes the compelling state interest necessary to justify 

any infringement on First Amendment freedom.” 479 U.S. at 

263 (first emphasis in original; second emphasis added). 

Bright-line rules are necessary in areas implicating First 

Amendment freedoms in order to protect speech from governmental interference, not to facilitate governmental restrictions on speech. Thus, in Buckley, the Court fashioned the 

bright line of express advocacy in order to clarify and narrow 

a vague and overbroad statute that otherwise would have 

trammeled upon non-electoral issue speech and unduly inhibited speakers uncertain about how their speech might be 

perceived. See 424 U.S. at 42-44. And, having done so, the 

Court then invalidated FECA’s $1,000 expenditure limit, both 

because independent express advocacy did not “presently 

appear to pose dangers of real or apparent corruption,” id. at 

46, and because a great deal of other speech could be devised 

that “skirted the restriction on express advocacy of election or 

defeat but nonetheless benefited the candidate’s campaign,” 

id. at 457—rationales that McConnell explicitly reaffirmed. 

See 540 U.S. at 190-92. 

Moreover, Congress itself did not seek to maintain a “bright 

line” where the application of § 203 would have inappropriate 

consequences. Thus, BCRA authorizes the FEC by regulation to exempt from the definition of “electioneering communications” “any . . . communication . . . to ensure the ap- 

 

relevant to public debate” and “thereby limit the supply of relevant information available to those, such as journalists, who seek to keep the public 

informed about important issues.” Id. at 682-83 (interim quotation marks 

omitted). See also id. at 663-65 (Stevens J., concurring). 
15 

propriate implementation” of the law, so long as the communication does not “promote[] or support[]” or “attack[] or 

oppose[]”7

 a “clearly identified federal candidate.” See 2 

U.S.C. § 434(f)(3)(B)(iv), incorporating by reference 2 U.S.C. 

§ 431(20)(A)(iii). The need for a “bright line” standard can 

hardly be regarded as compelling when Congress itself 

explicitly allowed the FEC to create exceptions that would 

breach one. 

3. The Intervenors, who were the primary congressional 

sponsors of BCRA, describe numerous formulations of what 

§ 203 constitutionally covers that are even vaguer and less 

workable than the Government’s: “[a]ny ad that is likely to 

influence voters’ decisions, based on an examination of the 

ad’s objective content and context, sufficiently evinces an 

electioneering purpose and implicates the legitimate goals of 

BCRA,” Int. Br. at 16; “whether Congress may regulate an 

ad’s financing turns not on whether it uses particular words, 

or whether it makes its election-related nature explicit, but 

whether it is likely to function as election advocacy by 

affecting voters’ decisions,” id. at 23; “an as-applied 

challenge should succeed only if the plaintiff can show that 

the ad itself and the circumstances of its creation and airing 

 7

 The quoted phrases (sometimes abbreviated as “PASO”) are undefined in the statute. In McConnell, the Court concluded that these terms, 

as used in § 431(20)(A)(iii) with respect to political parties, were not 

unconstitutionally vague. See 540 U.S. at 170 n.64. But the same conclusion would not be appropriate if these terms are applied to the speech of 

entities, like corporations and unions, that are neither parties, candidates 

nor political committees. Accordingly, that phrase should not demarcate a 

constitutional line for an as-applied challenge. Neither the Government 

nor the Sponsors suggest otherwise, and various of their amici rightly 

caution against doing so. See Brief for Amicus Curiae The League of 

Women Voters of the United States et al. (“LWV Br.”) at 10-13. See also 

McConnell, 540 U.S. at 337-38 (Kennedy, J., dissenting). The district 

court thus erred in recognizing PASO as an element in evaluating as a 

constitutional matter the merits of an as-applied challenge to § 203. 
16 

demonstrate that there is no reasonable prospect the ad is 

likely to influence the election,” id. at 39; “any ad whose 

objective characteristics and context indicate that it is likely 

to have a material effect on voters’ choices—and thus to 

function as the equivalent of express advocacy . . .” Id. at 41. 

And, the Intervenors urge, there should be no restriction on 

contextual considerations. Id. at 31-42. 

It is the Intervenors, then, who have drawn “a line in the 

sand . . . on a windy day.” Id. at 35. And, not surprisingly, 

under their analysis “electioneering”—and only “electioneering”—lurks everywhere in the WRTL ads. First, the Intervenors emphasize regarding the ads’ content: 

1. Because the ads call on listeners to lobby Sen. 

Feingold to oppose filibusters, he must be one of the 

“group of Senators” referred to in the ads who supports them; otherwise, the plea would be “gratuitous.” 

Id. at 23. (But this interpretation, like the Government’s textual approach, excessively “pars[es] . . . 

nuances” to discern suspect intent.) 

2. Asking listeners also to contact non-candidate Sen. 

Kohl is simply a “tactic . . . [to] shield . . . otherwise 

obvious electioneering.” Id. at 23. (But if objectively 

non-electoral characteristics of issue advocacy are 

simply tricks, no message could pass muster.) 

3. The ads provide “no contact information” for Sens. 

Feingold or Kohl. Id. at 27. (But in the Internet age, 

such information may be unnecessary.) 

Second, they emphasize regarding the ads’ context: 

1. The website to which the ads directed listeners did

contain contact information for the two Senators but 

also material “criticizing [Sens.] Feingold and Kohl 

for their role in the filibusters.” Id. at 27. (But even if 

that website excerpt were relevant to the ad itself, a 
17 

website is too dynamic and dense with material to 

attribute everything on it to a message that simply 

refers to its URL.) 

2. Because Sen. Feingold had “publicly defended the 

filibusters,” listeners would associate him with the 

“group of Senators” mentioned in the ad. Id. at 23. 

(But this opens the door to speculative and unpredictable considerations of context and general listener 

awareness.) 

3. The ads were broadcast immediately after four Senate 

cloture votes on judicial nominations and then continued for one week during a Senate recess, and they did 

not resume later, including the next year when “the 

filibuster controversy peaked.” Id. at 28. (But a 

variety of legitimate tactical considerations influence 

the timing of advertising, and the determination as to 

whether a particular broadcast message is constitutionally protected must be made immediately, not in 

light of what transpires in the future.) 

4. WRTL and its PAC previously criticized Sen. 

Feingold on the filibuster issue. Id. at 24. (But see 

pp. 25-27, infra.) 

5. WRTL and its PAC opposed Sen. Feingold’s 2004 

reelection. Id. at 24. (But see pp. 25-27, infra.) 

6. WRTL and its PAC had opposed Sen. Feingold’s 

election in 1992 and reelection in 1998. Id. at 24 n.8. 

But see pp. 25-27, infra.) 

7. Others, including the Wisconsin Republican Party 

and Republican Senate primary candidates, “invoked 

[Sen.] Feingold’s participation in the filibuster as a 

central reason he should be defeated,” as shown in a 

newspaper article “a year before the election.” Id. at 

26. (But a group’s right to speak cannot be condi-
18 

tioned on the distant actions of others over which the 

group has no control.) 

The Intervenors then contrast the WRTL ads with ads that, 

they say, would be “truly different in kind” and “might well 

be deemed to have no realistic connection with the election or 

the candidate’s fitness for public office.” Id. at 40 n.27. But, 

in fact, applying the Intervenors’ own analysis, those examples cannot be distinguished from the WRTL ads, and they 

only underscore that the Intervenors offer no workable 

standard at all. 

First, they posit an ordinary commercial ad by an automobile dealership whose founder and namesake is a candidate. 

Id. But it seems plain that, by the Intervenors’ logic, such an 

ad would promote that candidate’s name and inherently 

remind voters of his business acumen and success; indeed, 

these could be qualifications that his campaign emphasizes. 

Second, they posit a consulting firm that is in the business 

of ensuring compliance with the Sarbanes-Oxley law running 

an ad mentioning that statute where Rep. Oxley is a candidate. Id. But again, under the Intervenors’ approach, such an 

ad surely would remind voters of Rep. Oxley’s signature 

legislative achievement, which his campaign and others likely 

are emphasizing as a reason to reelect him. 

Third, they posit “a candidate’s business enterprise, named 

after him or her, sponsor[ing] a fall charity event every year 

and want[ing] to publicize it during an election year.” Id. 

But, again, that public reminder of the candidate’s business 

success, coupled here with a charitable good work, could be 

said to be highly influential to a prospective voter.8

 8

 Appellants’ amici posit a similar ad that they deem to be acceptable 

under their equally vague proposed standard, namely, whether or not “[a] 

communication is unlikely to have any appreciable effect on voters’ 

choices in an election.” Brief Amicus Curiae of Richard Briffault and 

Richard L. Hasen in Support of Appellant and Intervenor-Appellants at 24 
19 

4. The Intervenors’ approach is not only self-contradictory 

and incoherent, but also marks a notable and unexplained 

reversal. In the case at bar, the Intervenors acerbically 

characterize the district court’s principal reliance on the text 

of the WRTL ads as a “‘see-no-evil’ approach” that “threatens 

to open the floodgates to renewed evasion of BCRA’s regulations.” Id. at 32. But in the FEC’s rulemaking to implement 

§ 203, the Intervenors urged the agency to adopt the following virtually content-only exemption from that prohibition: 

The term “electioneering communication” does not 

include any communication that: (x)(A) Meets all of the 

following criteria: (i) the communication concerns only 

a legislative or executive branch matter; (ii) the communication’s only reference to the clearly identified 

federal candidate is a statement urging the public to 

contact the candidate and ask that he or she take a particular position on the legislative or executive branch 

matter; and (iii) the communication refers to the candidate only by use of the term “Your Congressman,” 

“Your Senator,” “Your Member of Congress” or a similar reference and does not include the name or likeness 

of the candidate in any form, including as part of an 

Internet address; and (iv) the communication contains no 

reference to any political party. (B) The criteria in Para-

 

(emphasis deleted) (“Hasen/Briffault Br.”). See also id. at 27 (“it is quite 

plausible the [WRTL] ads could affect voters’ choices”). These amici

describe a baseball card corporation advertising its product by using “the 

name and likeness of a former baseball star who also happens to be the 

incumbent Senator running for reelection.” Id. at 26. They say “it is 

highly unlikely that voters would use an ad so far removed from anything 

relevant to the candidate or his or her performance in assessing the 

candidate.” Id. at 25-26. But celebrity in non-political fields is a demonstrably potent aspect of many successful candidacies— for example, Sen. 

Jim Bunning (baseball), Rep. Heath Shuler (football), and, of course, Gov. 

and President Ronald Reagan and Gov. Arnold Schwarzenegger (acting). 

Accordingly, these amici offer no objective and administrable mode of 

analysis either. 
20 

graph (A) are not met if the communication includes any 

reference to: (i) the candidate’s record or position on any 

issue; (ii) the candidate’s character, qualifications or fitness for office; or (iii) the candidate’s election or 

candidacy. 

Detailed Comments of BCRA Sponsors Senator John McCain, 

Senator Russ Feingold, Representative Christopher Shays, 

Representative Marty Meehan, Senator Olympia Snowe, and 

Senator James Jeffords at 10 (Aug. 23, 2002), www.fec. gov/ 

pdf/nprm/electioneering_comm/comments/us_cong_members.

pdf). As the Intervenors then explained, “[t]his formulation 

allows individuals and entities concerned about legislation to 

run true issue ads with a legislative objective and a request to 

contact an elected official during the 30 or 60 day windows,” 

because it “assure[s] that the communication plainly and 

unquestionably is ‘wholly unrelated’ to any election.” Id. at 

11 (emphasis added). The Intervenors also urged the FEC to 

“preserve the ‘bright line’ quality” of the electioneering 

communication definition with respect to “entities other than 

parties or candidates” because it must “give clear guidance,” 

and “[a]n exemption that creates uncertainty about whether a 

communication will be covered by the law undermines that 

crucial aspect of the definition . . .” Id. at 6.9

All of the WRTL ads at issue here satisfy the Intervenors’ 

2002 proposed exemption, save for their utterances of Sen. 

Feingold’s actual name.10 Nothing has changed since these 

 9

 Appellants’ current amicus curiae Common Cause also supported this 

exemption because it “protect[s] against the possibility that sham 

communications that are in fact campaign ads continue to escape [§ 203’s] 

coverage.” See Letter from Donald J. Simon to Mai T. Dinh at 12 (Aug. 

22, 2002), www.fec.gov/pdf/nprm/electioneering_comm/comments/comm

on_cause_and_democracy_21.pdf. Now, however, Common Cause excoriates the district court’s similar analysis as a “magic features test” that 

would “eviscerate” § 203. LWV Br. at 6-8 and n.2. 

10 In their 2002 comments to the FEC, the Intervenors asserted that 

“prohibit[ing] use of a candidate’s name makes it less likely that the ex-
21 

2002 comments to require or warrant a different analysis—

certainly not this Court’s decision in McConnell, which 

essentially embraced the analysis that the Intervenors, as 

intervenors in that litigation as well, urged the Court to adopt. 

To be sure, while one’s support of a discretionary regulatory 

exemption does not necessarily mean that one believes that 

it is constitutionally mandated, as noted above the Intervenors contended in 2002 that the exemption they supported 

‘“plainly and unquestionably’ is wholly unrelated to an 

election”—so, surely, it must neither have any “reasonable 

prospect . . . to be likely to influence the election,” Int. Br. 

at 39, nor be “likely to have a material effect on voters’ 

choices.” Id. at 41. The Intervenors, who assured this Court 

in McConnell that as-applied challenges to § 203 would be 

justiciable, see Brief for Intervenor–Defendant Senator John 

McCain, et al. at 64, 74-75, McConnell, Nos. 02-1674, et al., 

and then vigorously argued the opposite in WRTL I, have 

reversed field again in order to render the as-applied option 

that this Court recognized in WRTL I effectively a null set. 

III. There Is No Governmental Interest in Suppressing 

Issue Advocacy Broadcast Messages 

The Intervenors also contend that in McConnell the Court 

determined that issue advocacy “is entitled to no greater pro-

 

emption will be used to accomplish an electoral objective.” Id. at 11. 

Surely, that one circumstance has no legal salience. Since well before 

BCRA, a “clearly identified candidate” has been defined in part to include 

one who is referred to, without name or image, as “your Congressman” or 

“the incumbent.” 2 U.S.C. § 431(18); 11 C.F.R. § 100.17. As Judge Leon 

stated below, the record in McConnell, including testimony by the AFLCIO’s communications director, demonstrated that actually naming an 

official was crucial to motivating constituents to contact him or her in response to an ad. Wisconsin Right to Life, Inc. v. FEC, 466 F. Supp. 2d at 

207 n.19. That evidence was uncontested in McConnell. Moreover, if, as 

the Intervenors now say, the constitutionally significant context includes 

the fact that listeners may be assumed to know that Sen. Feingold supported judicial filibusters, see Int. Br. at 23, then surely they can be 

assumed to know the more elementary fact of his name. 
22 

tection under the First Amendment” than express advocacy, 

so § 203 may be applied where it is “impossible to disentangle” them. See Int. Br. at 42 n.28; see also id. at 19-20. 

Again, however, that inverts the teaching of Buckley that in 

such circumstances the First Amendment requires the censor 

to desist. And, while the Court has recognized a compelling 

governmental interest in regulating express advocacy and its 

“functional equivalent,” it has never recognized any governmental interest at all in prohibiting corporate or union funding 

of other advocacy; and, the Government does not suggest any 

such interest now. 

Indeed, in McConnell 540 U.S. at 206 n. 88, the Court 

stated that, “[a]s Justice Kennedy emphasizes in dissent, post, 

at 326-328, we assume that the interests that justify the 

regulation of campaign speech might not apply to the regulation of issue ads,” for “unusually important interests underlie 

the regulation of corporations’ campaign-related speech,” and 

“BCRA’s fidelity to these imperatives sets it apart from the 

statute in [First National Bank of Boston v.] Bellotti [,435 

U.S. 765 (1978)] . . . ,” namely, a state criminal provision that 

barred corporations from making contributions or expenditures in connection with ballot measures other than those that 

materially affected themselves. In striking down that prohibition, the Bellotti Court reasoned that “[t]he risk of corruption perceived in cases involving candidate elections . . . 

simply is not present in a popular vote on a public issue,” id.

at 790, and corporate advocacy “affords the public access to 

discussion, debate, and the dissemination of information and 

ideas.” Id. at 783 (footnote omitted). 

That kind of advocacy exercises the right to petition the 

government, which is “one of the most precious of the liberties safeguarded by the Bill of Rights, . . . and . . . implied by 

the very idea of a government, republican in form,” BE&K 

Construction Co. v. NLRB, 536 U.S. 516, 524-25 (2002) 

(interior quotation marks, citations and brackets omitted), and 
23 

is entitled to “a wide measure of ‘breathing space’ protection,” id. at 531, quoting New York Times Co. v. Sullivan, 376 

U.S. at 279. “At the heart of the First Amendment’s protection” is speech on ‘“issues about which information is needed 

or appropriate to enable the members of society to cope with 

the exigencies of their period.”’ First National Bank of 

Boston v. Bellotti, 435 U.S. at 776, quoting Thornhill v. 

Alabama, 308 U.S. 88, 102 (1940). See also Consolidated 

Edison Co. v. Public Service Comm., 447 U.S. 530 (1980) 

(state cannot preclude corporation from including with customer bills its own newsletter that discusses public policy 

matters). 

And, where a speaker on non-electoral matters of public 

concern is a labor union, a corporation or some other organized group, no lesser or different First Amendment protection 

is at stake than it would be for a different speaker. “[T]he 

inherent worth of the speech in terms of its capacity for 

informing the public does not depend upon the identity of its 

source, whether corporation, association, union, or individual.” First National Bank of Boston v. Bellotti, 435 U.S. at 

777. 

It bears emphasis on this point that absent a meaningful asapplied exception, § 203 proscribes all union- and corporatefinanced broadcast references to all Members of Congress 

who are also candidates, even if they are literally unopposed 

for reelection or, as is the case for so many of them due to 

partisan gerrymandering, the “functional equivalent” of being 

so. Notably, the application of § 203 against WRTL that is at 

issue here concerns a primary election in which Sen. Feingold 

was unopposed. Under no formulation of an election-influencing standard could the “dangers” that inspired § 203 be 

considered to arise under that circumstance, as even some of 

the appellants’ amici acknowledge. See Hasen/Briffault Br. 

at 25 and n.9. In Brown v. Socialist Workers ‘74 Campaign 

Committee (Ohio), 459 U.S. 87, 95 (1982), the Court stated 
24 

that “because minor party candidates are unlikely to win 

elections, the government’s general interest in ‘deterring the 

“buying” of elections’ is ‘reduced’ in the case of minor 

parties,” quoting Buckley, 424 U.S. at 70; and, that fact, 

coupled with evidence of past harassment, warranted under 

the First Amendment an exemption for a minor party from the 

State of Ohio’s campaign contribution and expenditure disclosure requirements. Brown, 459 U.S. at 420-25. By a 

similar token, because a candidate who is unopposed in a 

primary election is certain to win, the governmental interest 

in regulating election-”influencing” speech is not just 

“reduced,” but entirely absent. 

The § 203 prohibition also applies to broadcast references 

to the incumbent elected leaders of the Executive Branch, the 

President and the Vice President, whenever either is a 

candidate for reelection or the Vice President is a candidate 

for the presidency, as was the case in every election from 

1932 to 2004 (and in only 1952 was the incumbent President 

or Vice President not one of the eventual major-party presidential nominees). As both history and contemporary circumstances make clear, the official conduct of the President 

and the Vice President is a matter of the most acute public 

concern irrespective of their electoral ambitions and prospects. Yet § 203 uniquely insulates them from broadcast 

issue commentary.11 There is no governmental interest, let 

 11 During the 2003-04 election cycle, the first to which BCRA applied, 

it was a federal crime for union- or corporate-financed broadcast advertising to refer in any manner to President Bush during substantial periods of 

time and locations while he was an unopposed candidate in primaries and 

caucuses for the Republican Party nomination; that prohibition continued 

throughout the 50 states with respect to both President Bush and Vice 

President Cheney during the 30-day period prior to the August 30 – 

September 2, 2004, Republican National Convention, even though their 

nominations were likewise uncontested; and, it then continued without 

pause during the 60 days remaining before the November 2 general 

election. Notably, in 2008 the two major-party conventions will be held 
25 

alone a compelling one, in barring genuine issue communications referring to the President, the Vice President or 

Members of Congress during those periods. 

IV. The Appellants’ Arguments Concerning WRTL’s 

Separate Segregated Fund Should Be Rejected 

There is also no constitutional basis for compelling unions 

and corporations to finance their genuine issue advocacy 

through a separate segregated fund.12 The Government’s 

and the Intervenors’ arguments regarding the significance of 

WRTL’s connected federal political committee should be 

rejected for three principal reasons. 

First, accepting their arguments would impose a substantially disruptive burden on long-established and widespread 

organizational structures developed in reliance upon both 

FECA and the Internal Revenue Code. Appellants contend 

that the WRTL ads are tainted in purpose and effect by the 

distinct electoral activities of WRTL’s PAC. However, that 

separate segregated fund is a distinct legal entity from its 

 

just before the 60-day pre-November 4 Election Day “blackout” period 

begins on September 4 – during August 25-28 (Democratic Party) and 

September 1-4 (Republican Party). Although it appears that no incumbent 

President or Vice President will then be a candidate, if this timing 

becomes the norm then in future elections then the 2004 experience is sure 

to be repeated. 

12 Although the Court has rejected the characterization of the segregatedfund requirement as a “complete ban” on corporate or union political 

activity, see FEC v. Beaumont, 539 U.S. 146, 194 (2003), it is most certainly fair to characterize § 203’s proscription of union- and corporatepaid independent speech as a “prohibition,” as this Court has done on both 

occasions that it has considered it. See WRTL I, 546 U.S. at ___, 126 S. 

Ct. at 1017; McConnell, 543 U.S. at 203. Section 203 itself was entitled 

“Prohibition of Corporate and Labor Disbursements for Electioneering 

Communications,” 116 Stat. 81, 91, and, as codified, 2 U.S.C. § 441b(a), 

provides that unions and corporations are “prohibited” from making any 

“contribution or expenditure,” including an “applicable electioneering 

communication.” 2 U.S.C. § 441b(b)(2). 
26 

corporate sponsor, and the sponsor’s control over it does not 

render the sponsor or its officers subject to the enforcement of 

laws barring the sponsor from making political contributions 

or expenditures. See Pipefitters Local Union No. 562 v. 

United States, 407 U.S. 385, 401-32 (1972). FECA incorporates these principles. 2 U.S.C. § 441b(b)(2)(C). 

Similarly, while the Internal Revenue Code precludes a 

§ 501(c)(3) charitable organization from engaging in any partisan political activity, see 26 U.S. C. § 501(c)(3), it is wellestablished that a charity does not violate that prohibition 

simply because it is affiliated with a § 501(c)(4) entity that 

sponsors and administratively supports a federal political 

committee. See Internal Revenue Service (“IRS”), “Election 

Year Issues” 365-69, 473-80 (2003). Indeed, the Court has 

recognized the utility of the “dual structure” of § 501(c)(3) 

and § 501(c)(4) arms to enable an organization to pursue 

distinct objectives. See Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544 (1983). For these 

reasons, innumerable organizations maintain multi-affiliate 

structures. But appellants’ “taint” argument would render 

these various affiliation arrangements traps for the unwary. 

Adoption of appellants’ position would unconstitutionally 

burden WRTL and its PAC, for the PAC would no longer be 

available to provide “a constitutionally sufficient opportunity 

[for WRTL] to engage in express advocacy.” McConnell, 

540 U.S. at 203-05.13 In McConnell, the Court invalidated 

BCRA’s requirement that a political party forgo its First 

Amendment right to undertake express-advocacy independent 

expenditures if it (or an affiliated party committee) previously 

made coordinated expenditures with a party’s nominee for 

 13 The Court’s comment in McConnell that in “doubtful cases” such a 

fund may be used to pay for “genuine issue ads,” 540 U.S. at 206, cannot 

be construed as a command that such a fund be used to finance an ad 

that merits an as-applied exception; if it were, there could be no such 

exception. 
27 

federal office, because this forced choice placed an “unconstitutional burden” on that right. Id. at 213-14. The invalid 

choice there was between “a constitutional right and a statutory benefit,” 540 U.S. at 28; here, the invalid de facto forced 

choice is between two constitutional rights: a PAC’s right to 

make independent expenditures and an affiliated § 501(c) 

organization’s right to finance issue-oriented broadcast 

speech.14 Section 203 cannot constitutionally force a speaker 

to make that choice. 

Second, requiring a non-electoral entity like a union or a 

corporation to employ an electoral entity as the sponsor of its 

non-electoral message violates the First Amendment “principle of autonomy to control one’s own speech.” Hurley v. 

Irish-American Gay, Lesbian and Bisexual Group of Boston, 

Inc., 515 U.S. 557, 574 (1995). See generally Buckley v. 

American Constitutional Law Foundation, 525 U.S. 182, 197-

200 (1999); Riley v. National Federation of Blind of N.C., 

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

v. Public Utilities Commission, 475 U.S. 1, 11 (1986). For, 

whenever a federal political committee makes a communication, it must both identify itself and either affirm or disclaim 

“candidate” authorization of its speech. 2 U.S.C. § 441d(a). 

This deprives the organization and its members of the “right 

. . . to advocate their cause” by “what they believe to be the 

 14 Although it is unclear whether or not any of WRTL’s other communications about Sen. Feingold were confined to WRTL’s members, 

insofar as they were the appellants presumably would consider them to be 

pertinent and discoverable “context.” Yet the First Amendment precludes 

incursions by federal campaign finance laws on a union’s or other membership organization’s partisan internal communications, see United States 

v. Congress of Industrial Organizations, 335 U.S. 106, 121 (1948), and 

FECA explicitly provides that union and corporate internal communications “on any subject” are exempt from treatment as either “contributions” 

or “expenditures.” 2 U.S.C. § 441b(b)(2)(A). If the exercise of such protected internal speech and association effectively forfeits a group’s ability 

to undertake external issue speech, then that is also an unconstitutional 

condition on the exercise of those rights. 
28 

most effective means for so doing.” Meyer v. Grant, 486 

U.S. 414, 424 (1988). 

Moreover, under a longstanding IRS rule, if the separate 

segregated fund of a § 501(c) organization “expends more 

than an insubstantial amount . . . for activities that are not for 

an exempt function [that is, election-influencing activity, see 

26 U.S.C. § 527(e)(2)], during a taxable year, [then] the fund 

will not be treated as a segregated fund for such year,” and all 

of its receipts will be taxed to its § 501(c) sponsor. 26 C.F.R. 

§ 1.527-2(b)(1). Thus, compelling WRTL’s separate segregated fund to pay for non-electoral advertising subjects it to a 

substantial risk of loss of its tax exemption. 

Third, as applied to “genuine” issue speech, the segregatedfund requirement entails unduly complicated and burdensome 

administrative and other requirements. In MCFL the Court 

held that those burdens made it a “severely demanding task” 

for a nonprofit ideological corporation to engage in expressadvocacy independent expenditures. 479 U.S. at 256. That 

burden is at least as severe for organizations that wish to 

broadcast speech that poses no greater threat of corruption or 

its appearance than does an MCFL organization itself. And, 

for unions and corporations that operate in a hierarchical, 

affiliated structure, typically only the national affiliate sponsors and controls a federal PAC, because FECA treats all 

affiliates of a national organization as comprising a single 

entity for purposes of political committee sponsorship, fundraising and spending.15 See 2 U.S.C. § 441a(a)(5); 11 C.F.R. 

 15 So, for example, there are over 30,000 labor organizations in the 

private sector alone, most of which are small organizations with modest 

treasuries, see “Record-Keeping Under the Labor Management Reporting 

and Disclosure Act (LMRDA): Do DOL Reporting Systems Benefit the 

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

Protections and the Subcommittee on Employer-Employee Relations of 

the House Committee on Education and the Workforce, 107th Cong., 2d 

Sess. 115-16 (2002), but there are only 283 union-sponsored federal political committees. www.fec.gov/press/press2006/20060714paccount.html. 
29 

§§ 110.3(a)(2)(ii) and (iii). Absent meaningful as-applied 

recourse, a typical organization coping with an immediate 

and unforeseen legislative problem would have to either 

create its own PAC to fund “electioneering communications” 

or try to persuade its national parent affiliate, perhaps on very 

short notice, to spend its PAC money—which it raised for 

contributions and express-advocacy spending—for that 

affiliate’s non-electoral issue message. That consequence is 

constitutionally unacceptable. 

V. The Court Should Not Foreclose the Possibility 

That Labor Organizations as a Class of Speaker 

Are Exempt From Section 203 

The Court has long recognized and afforded protection to 

the vital role of labor organizations in the non-electoral public 

arena as advocates for legislation and public policies in the 

interests of both their members and all workers. See 

generally Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 516 

(1991); Ellis v. Bhd. of Railway and Airline Clerks, 466 U.S. 

435, 446 (1984); Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 

(1978); Abood v. Detroit Bd. of Education, 431 U.S. 209, 

227-32 (1977); Pipefitters Local Union No. 562 v. United 

States, supra; Machinists v. Street, 367 U.S. 740, 767 (1961); 

id. at 798, 800-03, 812-816 (Frankfurter, J., dissenting); 

United States v. United Auto Workers, 352 U.S. 567, 578-86 

(1957); United States v. Congress of Industrial 

Organizations, 335 U.S. at 115-21; id. at 143-46 (Rutledge, 

J., concurring). The case at bar provides no occasion to 

foreclose the question as to whether § 203 itself is 

constitutional with respect to labor organizations as a distinct 

class of speaker. 

With the sole exception of MCFL corporations, McConnell

did not distinguish among the various entities regulated by 

§ 203 in analyzing the record of their broadcast advertising 

practices. And, in upholding the prohibition, the Court recited 

only its “prior decisions regarding campaign finance regu- 
30 

lation, which represent respect for the legislative judgment that 

the special characteristics of the corporate structure require 

particularly careful regulation.” See 540 U.S. at 205 (emphasis 

added) (interior quotation marks and citations omitted). See 

also Hasen/Briffault Br. at 9 n.5. The Court did not explain 

why § 203 is constitutional as applied to unions. 

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

652, 665-66 (1990), the Court rejected the claim by a business trade association that the State of Michigan’s proscription of corporate-financed electoral independent expenditures 

was fatally under-inclusive because it did not also apply to 

unincorporated labor organizations, explaining that unions 

have “crucial differences” from corporations: although unions 

too “may be able to amass large treasuries, they do so without 

the significant state-conferred advantages of the corporate 

structure,” and “the funds available for a union’s political 

activities more accurately reflect members’ support for the 

organization’s political views than does a corporation’s 

general treasury.” In deciding the case at bar, the Court 

should not foreclose the ability of unions, or other entities 

regulated by § 203 whose claims are not now before the 

Court either, to make out a broader as-applied challenge on 

some future occasion. 

CONCLUSION

For the reasons stated above, the Court should affirm the 

judgment below. 

Respectfully submitted, 

JONATHAN P. HIATT

LAURENCE E. GOLD * 

AFL-CIO

815 16th Street, N.W. 

Washington, DC 20006 

* Counsel of Record (202) 637-5130