No. 02-1674 

IN THE 

�����������������������������������


———— 

MITCH MCCONNELL et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees. 

———— 

On Appeal from the United States 


District Court for the District of Columbia


———— 

BRIEF OF THE HONORABLE J. DENNIS HASTERT, 


SPEAKER OF THE UNITED STATES HOUSE OF


REPRESENTATIVES, AS AMICUS CURIAE 


IN SUPPORT OF THE APPELLANTS 


———— 

J. RANDOLPH EVANS * 


STEFAN C. PASSANTINO


SETH F. KIRBY


ARNALL GOLDEN GREGORY LLP


2800 One Atlantic Center


1201 West Peachtree Street 


Atlanta, Georgia 30309-3450 


(404) 873-8500 


Counsel for J. Dennis Hastert, 

Speaker of the United States 

* Counsel of Record House of Representatives 

July 8, 2003 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
TABLE OF CONTENTS 

Page 

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


INTEREST OF AMICUS ............................................... 2 


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


THE ROLE OF THE SPEAKER IN AMERICAN 


POLITICS ...................................................................... 6 


ARGUMENT................................................................. 9 


I. THE BCRA VIOLATES THE CONSTI­


TUTION BY IMPERMISSIBLY RESTRICT­


ING THE SPEAKER’S ABILITY TO


PARTICIPATE IN STATE AND LOCAL 


POLITICAL ACTIVITIES................................ 9 


A. 	The Speaker Will be Prohibited from 


Taking Any Significant Role in the Activ­


ities of His State Party or the Campaign


Committees of State Candidates .................. 11 


B.	 The BCRA Unconstitutionally Discrimi­


nates Against the Speaker and Other


Members of Congress by Preventing Them


From Raising Money For State Candidates


as Permitted by State Law............................ 18 


C. 	The BCRA as Adopted Unconstitutionally


Limits the Speaker’s Ability to Participate 


in Other State and Local Organizations....... 21 


II. THE BCRA AS ADOPTED VIOLATES THE


CONSTITUTION BY IMPERMISSIBLY


RESTRICTING THE SPEAKER’S ROLE IN


HIS NATIONAL PARTY ................................. 22 


CONCLUSION.............................................................. 25


(i) 
ii 

TABLE OF AUTHORITIES 

CASES Page 

Buckley v. Valeo, 424 U.S. 1 (1976)............12, 17, 19, 20 


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


567 (2000).......................................................... 16, 24 


Eu v. San Francisco County Democratic Central 


Comm., 489 U.S. 214, 230 (1989) .................16, 17, 19 


FEC v. Nat’l Conservative Political Action


Committee, 470 U.S. 480, 496-97 (1985) .......... 17 


Kusper v. Pontikes, 414 U.S. 51, 57 (1973)........... 16 


Oregon v. Mitchell, 400 U.S. 114, 125 (1970) ...... 12, 19 


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


208, 214 (1986).................................................. 16, 24 


Timmons v. Twin Cities Area New Party, 520


U.S. 351, 358 ..................................................... 16 


UNITED STATES CONSTITUTION 

Tenth Amendment ................................................. 12 


STATUTES AND REGULATIONS 

Bipartisan Campaign Reform Act of 2002, Pub. 

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


§ 101(a) (adding new FECA § 323(a)(1)).......... 9 


§ 101(a) (adding new FECA § 323(a)(2)).......... 10, 14 


§ 101(a) (adding new FECA § 323(e)(1)(A)).... 11 


§ 101(a) (adding new FECA § 323(e)(1)(B)) .... 11, 18 


§ 101(a) (adding new FECA §§ 323(b) & 323(f)).. 12 


§ 101(a) (adding new FECA § 323(a)(2)).......... 14 


§ 101(a) (adding new FECA § Sec. 323 (e)(3)). 19 


§ 101(a) (adding new FECA § 323(e)(4)).......... 21 


Federal Election Campaign Act of 1971, 2 


U.S.C. § 431 et. seq....................................9, 11, 18, 20 


11 C.F.R. § 300.2(b)(2002).................................... 10 


11 C.F.R. § 300.2(c)(2002).................................... 14, 15 

iii 

TABLE OF AUTHORITIES—Continued 

Page 

10 ILL. COMP. STAT. 5/1-1 et seq............................ 13, 18 


10 ILL. COMP. STAT. 5/2A-1.2(c) ........................... 8 


OTHER AUTHORITIES 

FEC Advisory Opinion No. 2003-3....................... 20 


Rules of the United States House of 


Representatives 


Rule I, clause 1................................................... 6 


Rule I, clause 2................................................... 6 


Rule I, clause 5................................................... 6 


Rule I, clause 6................................................... 6 


Rule XII, clause 2 .............................................. 6 

IN THE 

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———— 

No. 02-1674 

———— 

MITCH MCCONNELL et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees. 

———— 

On Appeal from the United States 


District Court for the District of Columbia


———— 

BRIEF OF THE HONORABLE J. DENNIS HASTERT, 


SPEAKER OF THE UNITED STATES HOUSE OF


REPRESENTATIVES, AS AMICUS CURIAE 


IN SUPPORT OF THE APPELLANTS 


———— 

J. Dennis Hastert, Representative of the 14th Congressional 

District of Illinois and Speaker of the United States House of 

Representatives (hereinafter referred to as “the Speaker” or 

“Speaker Hastert”), submits and files this brief with the 

consent of the parties.1 

1 All parties have filed blanket consent forms with the Clerk of Court. 

Amicus states that no party to this case authored any portion of this brief 

and counsel for the Speaker received no monetary contribution toward the 

preparation of this brief from any person or entity other than the Speaker 

and the Republican National Committee. 
2 

INTEREST OF AMICUS 

Speaker Hastert has served as Speaker of the United States 

House of Representatives since the 106th Congress. As such, 

Congress passed the Bipartisan Campaign Reform Act of 

20022 (hereinafter referred to as the “BCRA”) during his 

tenure. It is with an appreciation of the gravity of this action 

that the Speaker submits this amicus curiae brief in support of 

the appellants’ constitutional challenge to the BCRA. 

In its review of this case, the United States District Court 

for the District of Columbia found significant portions of 

Title I of the BCRA to be constitutional. (Memorandum 

Opinion, D. D.C. May 1, 2003). Specifically, the District 

Court upheld those portions of Title I which prohibit federal 

candidates from having any involvement in the solicitation of 

“soft money”. Id. These provisions directly impact the ability 

of Members of Congress to participate in the political 

process. Yet, despite devoting over 1,600 cumulative pages 

to its analysis of the constitutionality of the BCRA, the lower 

court’s opinion provides precious little, if any, substantive 

analysis of the degree to which the new law curtails the 

constitutional rights of Members of Congress. For this 

reason, Speaker Hastert has a direct interest, both in his own 

capacity, and on behalf of other Members of Congress, in 

ensuring that those portions of the BCRA most affecting the 

Members receive the constitutional scrutiny which, heretofore, has been lacking. 

The Speaker occupies a unique position in American government. His position allows him to set the agenda of the 

House of Representatives, assign Members to House Committees, and, like other Members of the House, actively 

participate in the legislative process. Speaker Hastert is also 

a member of the Republican Party, and by virtue of his 

position in Congress, serves as de facto head of the 

2

 Pub. L. No. 107-155, 116 Stat. 81. 
3 

Republican Party when his party does not control the White 

House. Speaker Hastert’s role in American government, 

however, is neither limited to federal office nor national 

politics. The Speaker is also a politically active citizen of the 

State of Illinois and an active member and leader in the 

Illinois Republican Party. In each of these roles, provisions 

of the BCRA directly and impermissibly harm the Speaker. 

The Speaker is elected from, and by, the Members of the 

majority party in the United States House of Representatives. 

The Speaker actively campaigns for Republican Members 

throughout the nation. Furthermore, as a citizen with a 

commitment to a political ideology, Speaker Hastert has a 

vested personal interest in ensuring that his views are represented at all levels of government. Consequently, Speaker 

Hastert has actively participated in state and local elections, 

particularly in his home State of Illinois. Although the 

BCRA does not directly impact the Speaker’s legislative role, 

it does seek to curtail the Speaker’s ability to participate 

meaningfully in the political process, thereby altering the role 

of the Speaker in American government. Furthermore, it 

prevents the Speaker, and other Members of Congress, from 

participating fully in state and local government elections or 

civic organizations. 

In the purported interest of eliminating an “appearance” of 

impropriety in the manner in which citizens and organizations 

participate in the political process, the BCRA imposes 

unwarranted and unconstitutional barriers between federal 

candidates, their parties, and the individuals they hope to 

serve. The BCRA infringes upon the rights of the Speaker 

and other Members of Congress without achieving, or even 

helping to achieve, its purported goals. Consequently, the 

Speaker is compelled to support a judicial declaration striking 

down Title I of the BCRA as unconstitutional. 
4 

SUMMARY OF ARGUMENT 

The stated purpose of the BCRA is to preserve the 

confidence the American people have in their Federal government by eliminating the purported appearance of corruption supposedly created by excessive political contributions to 

elected officials. The BCRA fails to achieve this purpose 

while simultaneously doing significant harm to the political 

process. The BCRA directly prevents the Speaker, and other 

Members of Congress, from participating fully in state 

political activities to the extent permitted by their state’s laws 

and prevents them from actively participating in many types 

of local civic and business organizations. As drafted and 

interpreted by the District Court, by mere qualification for 

federal office, the BCRA restricts the Speaker’s (and any 

other federal candidate’s) speech and participation in activities that are totally permissible for other citizens. In essence, 

the BCRA operates as a forfeiture of civic rights provided by 

states to their citizens with regard to state and local political 

activities by doing nothing more than qualifying for federal office. 

Subsequent to the District Court’s holding, Title I of the 

BCRA also prohibits all federal candidates and office holders 

from soliciting or directing money in excess of the BCRA 

limits to be used in non-federal elections even if permitted by 

the state where the candidate is seeking office. This prohibition prevents the Speaker, and other federal candidates 

and officeholders, from full participation in the fundraising 

campaigns of state and local candidates even where the state 

regulating the fundraising would authorize more. Indeed, as 

drafted and approved by the District Court, the BCRA 

prohibits a federal candidate from even talking about soft 

money under some circumstances. The Speaker, as a citizen 

of the State of Illinois, is denied the same rights and privileges as other citizens of the State under the BCRA solely 
5 


because he is a federal officeholder. This burden lacks 

rational basis and consequently violates the Fifth and Tenth 

Amendments. 

If the Speaker, or any Member, seeks to fully participate in 

state political activities or in other organizations that do not 

wish to be restricted by the BCRA’s “soft money” ban, those 

Members are arguably obligated to limit, if not eliminate, 

their involvement with their party’s national committee. In 

reality, this is not an option for many Members who must 

remain actively involved in their national party committee to 

satisfy political obligations. The mere fact that the BCRA 

presents this choice to Members reveals the unconstitutional 

burden imposed by the new law upon the Members’ constitutionally protected freedom of association with their 

national parties and congressional campaign committees. 

Finally, absent the District Court’s holdings, the BCRA’s 

infringement upon the Speaker’s ability to participate in state 

political activities and with other organizations contains an 

outright ban on the receipt or expenditure of “soft money” by 

national committees of political parties. This ban extends not 

only to the national political party committees themselves, 

but to their agents and any entities they control. The 

Speaker’s role in the National Republican Congressional 

Committee almost certainly renders him an agent of a 

national committee of a political party under the BCRA. 

Therefore, under this law, as drafted, any organization that 

allows, or arguably allows, or tacitly permits, the Speaker to 

take an active role in its governance or fundraising activities 

could be subjected to the same “soft money” ban imposed on 

the national party committees. Any organization not wanting 

to incur the fundraising and expenditure limitations placed on 

the national committees by the BCRA will be forced to 

exclude the Speaker from active participation, limiting him 

instead to “honorary” positions or as their “special guest” at 
6 

events. These intrusive and unnecessary restrictions will chill 

the ability of the Speaker, and all Members of Congress, to 

freely associate. 

THE ROLE OF THE SPEAKER IN 

AMERICAN POLITICS 

The position of the Speaker combines several roles: the 

institutional role of presiding officer and administrative head 

of the House of Representatives, the partisan role of leader of 

the majority party in the House, and the representative role of 

an elected Member of the House. As the “elect of the elect”, 

the Speaker has perhaps the most visible job in Congress. 

Although the Constitution mentions the Office of the 

Speaker, it is silent as to his duties. The Speaker possesses 

substantial powers under House rules. Among his duties are: 

calling the House to order (Rule I, clause 1); preserving order 

and decorum within the chamber and in the galleries (Rule I, 

clause 2); recognizing Members to speak and make motions 

(Rule XVII); deciding points of order (Rule I, clause 5); 

presenting the pending business to the House for vote (Rule I, 

clause 6); appointing select and conference committees (Rule 

I, clause 2); and referring measures to committee(s) (Rule 

XII, clause 2). The Speaker frequently is authorized by statute to appoint Members to various boards and commissions, 

and it is typically the Speaker who is the formal recipient of 

reports or other communications from the President, government agencies, boards, and commissions. 

Although it is not prescribed in any formal way, the 

elevated profile of the Office of the Speaker often means he 

must take a leading role in negotiations with the Senate or 

President. Under both Republican and Democratic majorities, 

Speakers have played similar roles as leaders of their parties; 

both within the party conference or caucus and on the House 

floor. Within the Republican Party conference, Speaker 

Hastert acts as the chairman of the party’s Steering Com-
7 


mittee and thus plays a major part in the committee 

assignment process. In addition, the Speaker is empowered to 

make nominations directly for the Republican Conference’s 

consideration for membership (including chairs) on the Rules 

Committee and the House Administration Committee, as well 

as the chair and one Member (to serve as the second ranking 

Republican) on the Budget Committee. House Republican 

Conference rules also provide for the Speaker to serve on the 

National Republican Congressional Committee (“NRCC”). 

Beyond the formalities of the Speaker’s official duties, 

every Speaker is called upon to exercise his personal prestige, 

and his powers of persuasion and bargaining, to enunciate and 

advance his party’s vision and legislative agenda nationally. 

The Speaker also works to retain majority control of the 

House. To accomplish these objectives, modern Speakers 

engage in a variety of activities, not just in Congress and their 

party conference, but on the national stage as well. This is 

primarily accomplished by helping to set party policy and 

legislative agenda, publicizing those policies and achievements and assisting party members who are seeking election 

to the United States House of Representatives. 

While the Speaker does not serve the NRCC in an official 

capacity, Speaker Hastert serves the NRCC as its titular head 

and as a member, ex officio, of its Executive Committee. In 

addition, and particularly when the Republican Party does not 

control the White House, the Speaker maintains a close 

working relationship with the Republican National Committee. In these roles, the Speaker is deeply involved in the 

development and implementation of Republican strategy in 

the House of Representatives and across the nation. Speaker 

Hastert further assists with the implementation of Republican 

strategy through fundraising activities and by acting as a 

party spokesman and communicator of the party message. 

Moreover, Speaker Hastert’s activities as Speaker extend 

well beyond his role with the United States House of Repre-
8 

sentatives and national party politics. After sixteen years of 

teaching and coaching at Yorkville High School in Illinois, 

Speaker Hastert served in the Illinois House of Representatives for six years before being elected to the United States 

House of Representatives in 1986. Entirely separate and 

apart from his duties as Speaker, Speaker Hastert remains 

active in Illinois politics to this day. Speaker Hastert has 

campaigned and raised funds for local candidates to the 

Illinois House of Representatives, county Republican parties, 

as well as local and municipal elected officials throughout the 

state. Speaker Hastert has appeared for, and supported, 

numerous candidates for local and statewide office and plays 

an active role in the identification and recruitment of 

promising candidates for state and local office. 

Speaker Hastert’s considerable activities for state candidates include participation in fundraising events and the 

lending of his name to local solicitations for campaign 

contributions. Even in non-federal election years, Speaker 

Hastert is an active participant in Illinois politics and in the 

formation of the Republican message in Illinois.3 As an 

Illinois citizen who has never abandoned his primary residence in that state, Speaker Hastert shares the same personal 

interest in the local candidates and municipal issues as any 

other state resident. As is the right and privilege of any 

Illinois citizen, Speaker Hastert participates actively in the 

political debate, fundraising, and election process crucial to 

those issues. 

Speaker Hastert is also politically active in numerous states 

other than Illinois. In the past election cycle, Speaker Hastert 

appeared in forty-nine of the fifty states of the Union in 

support of local candidates for federal office. The Speaker 

does not limit his activities in other states to candidates for 

federal office, however. At virtually every appearance in the 

3 e.g. In the State of Illinois, elections for township and local offices 

are held in non-federal election years. 10 ILL. COMP. STAT. 5/2A-1.2(c). 
9 

United States, individuals and organizations, from the highest 

echelons of the Republican Party to the smallest and most 

local of grass-root associations, approach Speaker Hastert and 

solicit his advice and counsel regarding issues of political 

strategy and legislation. 

The Speaker respectfully submits that these activities are a 

necessary and laudable element of American politics. Few, if 

any, would argue that these activities represent anything less 

than quintessential participation in representational democracy in its purest form. Yet, under the BCRA scheme, 

however well intentioned, the Speaker’s participation in these 

activities is severely, and unconstitutionally, curtailed. 

ARGUMENT 

I. 	THE BCRA VIOLATES THE CONSTITUTION 

BY IMPERMISSIBLY RESTRICTING THE 

SPEAKER’S ABILITY TO PARTICIPATE IN 

STATE AND LOCAL POLITICAL ACTIVITIES. 

Absent the District Court’s ruling, the BCRA painted with 

a broad brush, banning national committees of political 

parties from soliciting, receiving, or directing any funds that 

are not subject to the restrictions imposed by the Federal 

Election Campaign Act of 19714

 (hereinafter referred to as 

“FECA”), as amended by the BCRA. BCRA § 101(a) 

(adding new FECA § 323(a)(1)). This restriction explicitly 

included the national congressional campaign committees of 

a political party in the “soft money” ban. Id. The District 

Court found these broad restrictions to be unconstitutional. 

Not only did the ban apply to party national committees 

and national congressional campaign committees, it also 

applied to “any officer or agent acting on behalf of such a 

national committee, and any entity that is directly or 

4

 2 U.S.C. § 431 et. seq. 
10 

indirectly established, financed, maintained, or controlled by 

such a national committee.” BCRA § 101(a) (adding new 

FECA § 323(a)(2)). 

The BCRA does not define the term “agent”, but instead 

leaves the term open to interpretation by the Federal Election 

Commission (“FEC”). Recent FEC regulations implementing 

the BCRA define “agent” as any person who has actual 

authority, either expressed or implied, to perform certain 

activities on behalf of their principle. 11 C.F.R. § 300.2(b) 

(2002). This regulation reads as follows: 

(b) Agent. For the purposes of part 300 of chapter I, 

agent means any person who has actual authority, either 

express or implied, to engage in any of the following 

activities on behalf of the specified persons: 

(1) In the case of a national committee of a political 

party: 

(i) 	To solicit, direct, or receive any contribution, 

donation, or transfer of funds; or, 

(ii) To solicit any funds for, or make or direct any 

donations to, an organization that is described in 

26 U.S.C. 501(c) and exempt from taxation 

under 26 U.S.C. 501(a) (or has submitted an 

application for determination of tax exempt 

status under 26 U.S.C. 501(a)), or an organization described in 26 U.S.C. 527 (other than a 

political committee, a State, district, or local 

committee of a political party, or the authorized 

campaign committee of a candidate for State or 

local office). . . . 

Id. 

Given the Speaker’s duties for, and responsibilities to, the 

National Republican Congressional Committee, the Speaker’s 

position would appear to place him squarely within the 

definition of an “agent” of the Committee as defined by the 

BCRA and federal regulation. Consequently, the BCRA as 
11 

drafted will undoubtedly be applied to him as an agent of a 

national party and therefore subject him to all limitations the 

BCRA imposes on national parties. 

The Speaker is also a “federal candidate” under the terms 

of the BCRA. As such, he is subject to specific BCRA 

prohibitions against soliciting, receiving, directing, transferring, or spending soft money in connection with a 

federal election. BCRA § 101(a) (adding new FECA 

§ 323(e)(1)(A)). Furthermore, as a “federal candidate,” the 

Speaker is prohibited from soliciting, receiving, directing, 

transferring, or spending funds in connection with state and 

local elections unless such funds are subject to the source and 

amount restrictions of the FECA. BCRA § 101(a) (adding 

new FECA § 323(e)(1)(B)). 

A.	 The Speaker Will be Prohibited from Taking 

Any Significant Role in the Activities of His 

State Party or the Campaign Committees of 

State Candidates. 

As applied by the District Court, the BCRA operates to 

supersede a state’s laws governing its own state citizens in 

connection with a state election if the person is a federal 

officeholder or candidate. As held by the District Court, 

federal candidates and officers lose their rights as afforded 

under the home state’s laws for home state elections. Instead 

of having the same rights and privileges afforded to every 

other citizen of the State of Illinois in connection with an 

Illinois election, under the BCRA as interpreted by the 

District Court, Speaker Hastert would have those rights 

except where the BCRA limits them. The sole basis for this 

difference is not that his conduct impacts a federal election 

(as it would not). Instead, the sole basis for distinction is that 

he is a federal officeholder. 

Absent the modifications by the District Court, if state 

parties or candidates wish to engage in “federal election 
12 


activities”, they may do so, but only if they finance that 

activity exclusively with funds raised subject to BCRA 

restrictions. BCRA § 101(a) (adding new FECA §§ 323(b) & 

323(f)). Thus, while a state party or candidate may solicit 

campaign contributions without limitation under the applicable law of their home state, they are now prohibited from 

using that money to engage in “federal election activities” as 

defined by the BCRA. 

As an initial matter, it is clear that these intrusions into the 

ability of a state to regulate its own political process violate 

the Constitution. Traditionally, the Elections Clause of the 

Constitution has been relied upon to give Congress the 

authority to regulate the financing of federal elections. See 

Buckley v. Valeo, 424 U.S. 1 (1976). However, the Elections 

Clause does not allow Congress to intrude upon the way a 

state governs its own political affairs. “The powers not 

delegated to the United States by the Constitution, nor 

prohibited by it to the States, are reserved to the States 

respectively, or to the people.” U.S. CONST. amend. X. No 

one would argue that the states have ceded their power 

to control their own electoral process to the federal government. See Oregon v. Mitchell, 400 U.S. 114, 125 (1970) 

(“No function is more essential to the separate and independent existence of the States and their governments than 

the power to determine within the limits of the Constitution . . 

. the nature of their own machinery for filling local public 

offices.”). How then can it be permissible for a law such as 

the BCRA to place limits on the way that state citizens 

participate in state elections? 

The “federal election activity” definition provided by the 

BCRA is so broad that it limits the way state parties and state 

candidates may pay for purely state activities. These restrictions on state parties and state candidates violate the Tenth 

Amendment and should be declared unconstitutional. Moreover, even if this Court were to conclude that these provisions 

do not violate the Tenth Amendment, they remain uncon-
13 

stitutional restrictions on First Amendment rights of free 

speech and freedom of association and Fifth Amendment 

principles of equal protection. 

While implicating serious states’ rights issues, the BCRA 

has even greater personal impact on the Speaker. By imposing arbitrary limitations in a broad manner, the BCRA 

chills the Speaker’s ability to associate with local individuals 

and groups without rational basis. For example, after careful 

consideration, the citizens of the State of Illinois, through 

their legislature, have elected to place fewer restrictions on 

the financing of local campaigns than those imposed by 

federal election law. See 10 ILL. COMP. STAT. 5/1-1 et seq. 

While Illinois law requires parties and candidates to disclose 

campaign contributions, it does not place restrictions on 

either the source or amount of those contributions. Id. As 

noted above, however, the Speaker and other federal candidates forfeit their freedoms afforded by state law under the 

BCRA. Citizen Hastert could raise funds in excess of the 

BCRA limits for an Illinois candidate for state or local office 

under Illinois law. Under the BCRA, Speaker Hastert may 

not. As others can raise money, it is not the amount of the 

contribution that can serve as the justification for the 

restriction. Instead, to support the distinction, the record 

below would have to show that funds raised by federal 

officeholders for state elections were somehow more 

corrupting than funds raised by non-federal officeholders. 

There is no evidence in the record to support this position. 

The chill on participation at the state and local level is 

notable. Local candidates or entities cannot risk being limited 

from raising funds on unequal terms with their competitors. 

Accordingly, local Illinois parties, groups and candidates will 

likely avoid any activities or associations which could even 

arguably lead to the imposition of these fundraising restrictions upon them. For local Illinois parties and groups, the 

uncertainty concerning the Speaker’s status as a federal 

candidate and agent of a political party, and the risks of 
14 

severe additional regulations borne by groups and individuals 

who associate with the Speaker, now serve as the basis to 

blockade the Speaker from those he seeks to serve without 

rational basis or constitutional authority. 

In the absence of the rulings by the District Court, the 

ramifications would be even greater. The Speaker is the 

leader of the National Republican Congressional Campaign 

Committee and is therefore, arguably, an “agent” of that 

Committee under the BCRA scheme. If the Speaker were to 

take any role of significance with the Illinois Republican 

Party, his home state’s party, or with the campaign committee 

of a state candidate, under the BCRA’s definitions and 

scheme, the organization could arguably be deemed to be 

“directly or indirectly established, financed, maintained, or 

controlled by” an agent of the National Republican Congressional Committee. BCRA § 101(a) (adding new FECA 

§ 323(a)(2)). If so, then that state organization could automatically become subject to the source and amount restrictions imposed by the BCRA, thereby forfeiting its ability to 

raise unlimited funds as allowed by Illinois law. The specter 

of this possible result from mere association with the Speaker 

will undoubtedly have a chilling effect on the Speaker’s 

involvement with the Illinois Republican Party and with 

candidates for Illinois State and local government as well as 

other state and local political parties and candidates. 

Moreover, the BCRA does not define or limit the phrase 

“directly or indirectly established, financed, maintained, or 

controlled”. Id. Indeed, the language of the phrase implies 

that it should be construed as broadly as possible in an 

apparent attempt to close a perceived loophole in the law 

before it develops. The FEC has promulgated rules in an 

attempt to clarify the phrase. 11 C.F.R. § 300.2(c)(2002). 

This FEC regulation defines political parties, federal 

candidates, and the agents thereof as “sponsors” and then sets 

forth ten factors to be considered in determining whether 

a sponsor “controls” an entity. Id. Those factors include 
15 

whether the sponsor has the ability to participate in the 

governance of the entity; whether the sponsor has the ability 

to “hire, appoint, demote, or otherwise control the officers, or 

other decision-making employees or members of the entity”; 

and whether a sponsor has common or overlapping officers, 

members, or employees. Id. 

Unfortunately, these factors do not serve to limit the 

potential reach of the language employed by the BCRA. In 

the case of Speaker Hastert, almost any role that he assumes 

with the Illinois Republican Party or any local party or 

campaign could potentially subject that state party to full 

BCRA restrictions as if it were a national political party. For 

instance, under the BCRA, the Speaker could not assume a 

role as an officer or director of the state party because, under 

the scheme adopted by the BCRA, such a position would 

permit him to participate in the governance of the entity and 

potentially give him the ability to hire, appoint, demote, or 

otherwise control the employees of the state party. He may 

not even be allowed to serve on minor committees within the 

state party if such service would place him in charge of 

employees of the state party. Finally, and perhaps most 

egregiously, the BCRA scheme as adopted may prevent the 

Speaker even from being a member of the state party because 

his membership could be used to show that the Illinois 

Republican Party had overlapping members with the National 

Republican Congressional Committee. 

One would hope that Speaker Hastert’s mere membership 

in the Illinois Republican Party would not result in the party 

being considered “directly or indirectly established, maintained, financed, or controlled” by a national party. However, 

the BCRA creates uncertainty regarding the Speaker’s 

continued active involvement in the Illinois Republican Party. 

This scenario illustrates the chilling effect that the BCRA has 

on the Speaker’s ability to associate with state political 

entities and their willingness to associate with the Speaker. 
16 

Although this analysis only focuses on the Speaker’s roles in 

the state party, it applies with equal effect to his role in 

district or local parties and to his role in campaign 

committees of state candidates. Of course, the BCRA does 

not explicitly state that the Speaker may not associate with 

state political entities. Doing so would be a blatant abrogation of the Speaker’s constitutional right to associate with 

like-minded individuals, which is precisely the type of association protected by the First Amendment. See, e.g., Tashjian 

v. Republican Party of Conn., 479 U.S. 208, 214 (1986). No 

court would uphold such a prohibition because it is extreme 

and serves no legitimate purpose, much less a compelling 

government interest. Instead, the BCRA attempts to cloak its 

assault on freedom of association by tacitly allowing the 

Speaker to associate as he sees fit, but imposing draconian 

limitations on entities in which he actively participates. 

In confirming the right of freedom of association, this 

Court has observed, “the right to associate with the political 

party of one’s choice is an integral part of this basic 

constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 57 

(1973). Although the freedom of association is an individual 

right, the freedom also extends to political parties. See, e.g., 

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

Thus, associations are free to organize and govern themselves 

as they choose, and the government has no right to interfere 

with such decisions. Eu v. San Francisco County Democratic 

Central Comm., 489 U.S. 214, 230 (1989); Timmons v. Twin 

Cities Area New Party, 520 U.S. 351, 358 (“[P]olitical parties’ government, structure, and activities enjoy constitutional 

protection.”). Here, the BCRA has the effect of preventing 

the Speaker from associating with the Illinois Republican 

Party by imposing severe restrictions on the party if the 

Speaker assumes any role of significance. In fact, the BCRA 

may result in such restrictions on the party if the Speaker 
17 

simply retains his membership in that organization. This is a 

significant burden on the Speaker’s individual rights and on 

the rights of the party. 

It is thus apparent that the BCRA significantly impairs the 

Speaker’s First Amendment right of freedom of association. 

For such an imposition to survive constitutional scrutiny, it 

must be narrowly tailored to achieve a compelling governmental interest. See Eu, 489 U.S. at 231-33 (applying strict 

scrutiny to a California law that controlled the way a state 

party was organized). The only governmental interest validly 

at issue here is the reduction of actual or apparent corruption 

in the federal government. See Buckley v. Valeo, 424 U.S. 1 

(1976) (accepting the prevention of actual or apparent 

corruption in the political process as the only valid basis for 

the FECA); FEC v. Nat’l Conservative Political Action Committee, 470 U.S. 480, 496-97 (1985). In Buckley, this Court 

recognized that large contributions given directly to a candidate could create the appearance of corruption, indicating 

that the candidate would vote a particular way in exchange 

for the contribution. Id. at 27. Although it is just as likely 

that such a contribution could be given to the candidate 

because he already shares similar views as the donor, the 

Court reasoned that the government’s interest in preventing 

the appearance of corruption was sufficient to warrant limitations on campaign contributions. Id. at 29. 

The BCRA’s infringement on the Speaker’s freedom of 

association cannot satisfy strict scrutiny because it will not 

achieve, nor even help to achieve, the government’s interest 

in reducing corruption or the appearance of corruption. The 

Speaker’s involvement in his state party in no way implies 

improper conduct. Much to the contrary, his active involvement in state politics indicates that he is concerned about the 

citizens and government of his home state. No logical 

argument can be advanced that restricting the Speaker from 

participating in state political activity will cause the American 
18 

people to have more trust in the federal government. These 

provisions plainly fail to satisfy any interest of the federal government and therefore must be struck down as 

unconstitutional. 

B. 	The BCRA Unconstitutionally Discriminates 

Against the Speaker and Other Members of 

Congress by Preventing Them From Raising 

Money For State Candidates as Permitted by 

State Law. 

The BCRA prohibits any federal candidate, including 

the Speaker, from raising or spending any money in 

connection with a state or local election that is not subject 

to the source and amount restrictions of the FECA. BCRA 

§ 101(a) (adding new FECA § 323(e)(1)(B)). Consequently, 

notwithstanding the fact that Illinois law permits any 

individual to raise an unlimited amount of money from 

individuals, corporations, and labor unions on behalf of a 

candidate for state office, the Speaker’s ability to raise money 

for state candidates in his home state will be restricted by 

the BCRA. See 10 ILL. COMP. STAT. 5/1-1 et seq. Under 

some circumstances, a federal candidate’s very speech can 

constitute a BCRA violation in clear contradiction of the 

First Amendment. 

The sole basis for these restrictions is the federal 

candidate’s status as a federal office holder. Because the 

BCRA will cause the Speaker to be treated differently than 

other citizens of his state, it violates Fifth Amendment 

principles of equal protection. This prohibition also violates 

Tenth Amendment principles of federalism because it 

intrudes upon the way a state conducts its electoral process. 

The State of Illinois has determined that it is best to allow its 

citizens to donate and solicit financial support for candidates 

in unlimited amounts and from unlimited sources. Id. The 

BCRA steps in and artificially limits the rights of certain 
19 

citizens of the State of Illinois, namely Speaker Hastert, and 

any other federal candidate who is an Illinois citizen. 

A state is free to conduct its election activity as it sees fit. 

Oregon, 400 U.S. at 125. Only narrowly tailored infringments to this right necessary to meet compelling government 

interests are permissible under the Constitution. Eu, 489 U.S. 

at 225. Once again, the BCRA falls well short of that mark. 

Limiting the Speaker’s ability to raise and spend money to 

help elect candidates in Illinois does not directly relate to his 

duties as a United States Representative from Illinois. It is 

true that Speaker Hastert’s role in national politics affords 

him an enhanced ability to raise money for state candidates. 

But it is also true that such money goes to the state candidate, 

not to the Speaker. As such, the alleged appearance of 

impropriety the BCRA purports to prevent becomes tenuous 

at best. The money received by the state candidate is of no 

benefit to the Speaker, other than to help ensure that his views 

are represented in state government. That ideological benefit 

is far too attenuated to give the appearance of the quid pro 

quo vote buying feared in Buckley. 

The natural counter-argument to this position is that the 

Speaker’s efforts to help get state candidates elected garner 

him political support in his own campaign activities. However, that is not the conduct the BCRA purports to curtail. 

The BCRA will still allow federal candidates to speak or be 

featured guests at fundraising events for state, district, and 

local political parties. BCRA § 101(a) (adding new FECA § 

Sec. 323 (e)(3)). Surely such appearances would engender 

the support of those in attendance. Since that activity is 

permitted by the BCRA, this counter-argument to the 

Speaker’s position must fail. 

Recently, in an apparent attempt to diminish the impact of 

Title I on a federal candidate’s ability to raise money for state 

and local candidates, the Federal Election Commission issued 

an Advisory Opinion that extends the “featured guest” safe 
20 

harbor mentioned above to other non-federal fundraising 

events. FEC Advisory Opinion No. 2003-3. However, 

the Advisory Opinion does not make Title I any less 

objectionable. It allows members to speak at non-federal 

fundraisers as long as they avoid “asking” for money, or in 

the alternative, if they choose to make any solicitations, they 

must affirmatively disclose that they are not asking for any 

donations that would violate the FECA. Requiring federal 

candidates to make magical incantations in order to solicit 

funds for a state candidate is an unconstitutional burden on 

their freedom of speech. 

The Advisory Opinion also provides that in the event a 

federal candidate is mentioned in any advertisement containing a solicitation of funds for a state or local candidate, 

the advertisement must contain a written explanation that 

“limit[s] the solicitation to funds that comply with the amount 

limitations and source prohibitions of the [FECA].” FEC 

Advisory Opinion No. 2003-3, p. 7. Thus, in any state which 

allows candidates to raise funds in excess of the limitations 

imposed by the FECA or from sources prohibited by the 

FECA, state and local candidates will be forced to exclude 

any mention of a federal candidate from their fundraising 

solicitations. Otherwise, the state or local candidate will be 

unable to take full advantage of their state’s campaign finance 

laws. The Advisory Opinion and its administratively created 

requirements do not remedy the constitutional infirmities of 

the BCRA. 

The simple truth is that the supporters and drafters of the 

BCRA view money as a great evil from which political 

candidates must be sanitized. Even if the fear that money 

corrupts politicians were somehow valid, which this Court 

has repeatedly recognized it is not, limiting the Speaker’s 

ability to raise money for state candidates is of no value to 

that end. See, e.g., Buckley, 424 U.S. at 19-22 (upholding the 

FECA’s contribution limits but recognizing that political 
21 

speech requires money). Therefore, the BCRA’s overwhelming intrusion into the Speaker’s participation in state 

politics fails to meet any compelling governmental interest. As a consequence, these provisions of the BCRA are 

unconstitutional. 

C. 	The BCRA as Adopted Unconstitutionally 

Limits the Speaker’s Ability to Participate in 

Other State and Local Organizations. 

Because the BCRA as adopted arguably defines the 

Speaker as an agent of the National Republican Congressional Committee, the Speaker must refrain from participating 

in any organization that does not wish to be subject to the 

restrictions imposed by the BCRA. It is easy to discern the 

types of organizations that would not wish to become subject 

to the soft money ban imposed on political parties. Churches, 

civic leagues, business leagues, conservation leagues, and 

social welfare organizations all prefer to preserve their ability 

to raise large contributions from individuals and corporations. 

While the BCRA does allow the Speaker to raise money for 

these types of organizations, it does not contain a provision 

specifically authorizing him to be a member of these groups, 

much less assume a leadership role in the groups without 

arguably imposing the restrictions of the BCRA upon them. 

BCRA § 101(a) (adding new FECA § 323(e)(4)). 

This severe and unwarranted potential intrusion is a 

concern of any federal candidate, but much more so for the 

Speaker due to his role in the National Republican Congressional Committee. If his role in an organization leads to a 

determination that it is controlled by the National Republican 

Congressional Committee, then federal law will prohibit the 

organization from soliciting donations beyond BCRA restrictions. Imagine a church not being able to accept a donation 

from a parishioner because it exceeds the limitation on 

donations to a political party, or being prohibited from 

receiving any contribution from a local business because 
22 

corporate contributions are not allowed by the FECA. Such a 

result is absurd, but entirely possible under the BCRA, as 

adopted, if the Speaker assumes a leadership role at the 

church. Similar fates could befall civic leagues or conservation societies if they allow the Speaker to participate 

meaningfully in their organizations. This is true even if the 

organization has no political objectives whatsoever. To avoid 

any possibility of such an outcome, the Speaker must exclude 

himself from such positions, which, quite obviously, violates 

his right and the right of the organization to freely associate. 

What benefit is derived from this incursion? It is difficult, 

if not impossible, to determine how preventing the Speaker 

from assuming a leadership role in his church or in a civic 

league will engender more confidence in the federal 

government from American citizens. Indeed, the average 

citizen, perhaps even the average legislator, would not realize 

that the BCRA creates such restrictions. Consequently, they 

cannot engender confidence in the government. Nevertheless, these restrictions clearly exist under the BCRA and 

demonstrate that the Act is over-inclusive. This violates First 

Amendment guarantees of freedom of association and Fifth 

Amendment guarantees of equal protection. Thus, for yet 

another reason, this Court should declare Title I of the BCRA 

unconstitutional. 

II. 	 THE BCRA AS ADOPTED VIOLATES 

THE CONSTITUTION BY IMPERMISSIBLY 

RESTRICTING THE SPEAKER’S ROLE IN HIS 

NATIONAL PARTY 

If the constitutional violations highlighted above are 

allowed to occur, they will render one inescapable result: For 

the Speaker to participate in his state government, raise 

campaign funds for state candidates according to state law, 

and participate in other non-political organizations, he must 

relinquish his role as the leader of the National Republican 

Congressional Committee. Otherwise, he must give up cher-
23 

ished fundamental constitutional rights. This is a Hobbsian 

choice that the Speaker should not be forced to make. 

At the beginning of each session of Congress, the Speaker 

of the House is elected from, and by, its Members. Ballots 

are cast until an individual Member receives a majority of the 

votes cast. As a consequence of this process, the Speaker is 

always a member of the majority party. To be elected 

Speaker of the House, a Member must demonstrate the capacity to be a leader among leaders, and, naturally, the Member 

must show a strong allegiance to his party. Members choose 

a Speaker for many reasons, including his or her perceived 

ability to maintain the cohesiveness of the party during the 

legislative process and to ensure that their party maintains 

its majority. 

The importance of maintaining control of the House to a 

political party cannot be overstated. To achieve its political 

agenda, each party strives to gain and maintain a majority in 

the House of Representatives. This allows the majority party 

to elect a Speaker, who, in turn, controls the legislative 

agenda and exerts considerable influence on committee appointments. These powers allow the party, through the 

Speaker, to focus on enacting legislation that is consistent 

with the ideological goals of the party. 

The very purpose of the National Republican Congressional Committee is to maintain Republican control of the 

House. The Speaker must assume a leadership role with the 

NRCC in order to achieve the goals of his office. The NRCC 

provides the Speaker with the information and resources that 

are essential to maintaining control and achieving the 

Republican Party’s legislative agenda. It monitors congressional races throughout the United States and helps the 

Speaker target districts in which Republicans may gain or 

lose Congressional seats. It helps to unify the political 

message that Members are presenting to their constituents, 
24 

and it provides assistance to congressional candidates during 

their campaigns. 

As adopted, the BCRA will force the Speaker to make a 

choice: He may continue to serve as the de facto leader of the 

NRCC or he may terminate this role and engage in more 

significant participation with state political and non-political 

organizations. In reality, this is not a choice. If the Speaker 

wishes to retain his position, he must elect to continue his role 

in the NRCC. Failure to do so would render him unable to 

assist other Members effectively in their bids for reelection. 

Furthermore, his ability to assist fellow Members in presenting a unified message and to maintain cohesiveness 

within his party would be hampered. 

Nevertheless, the BCRA clearly punishes the Speaker for 

electing to associate with the NRCC. To assume his 

traditional role as a leader of his party, he must sacrifice his 

individual liberties. This burden on his association with his 

party is constitutionally impermissible and should not be 

countenanced by this Court. It should also be recognized that 

this is a significant attack on the way the NRCC chooses to 

organize and select its leadership, which, on its own, violates 

the Constitution. See California Democratic Party, 530 U.S. 

at 573; Tashjian, 479 U.S. at 224 (“The Party’s determination 

of the boundaries of its own association, and the structure 

which best allows it to pursue its political goals, is protected 

by the Constitution.”). Such prohibitions against political 

participation advance no legitimate ends and can only erode 

the confidence the American people have in their political 

process. By pursuing such prohibitions, the BCRA serves 

only to cause irreparable damage to the very confidences it 

seeks to preserve. 
25 

CONCLUSION 

For Members of Congress, the BCRA imposes a forfeiture 

of constitutional rights simply by virtue of one’s being a 

federal officeholder. The Speaker challenges the restrictions 

imposed, whether as signed into law or as interpreted by the 

District Court, on what Members can do for others, not on the 

limits to what Members can do for themselves. There are no 

challenges to the new BCRA limits for Congressional 

campaigns. However, the Speaker challenges the restrictions 

that tend to isolate Members from their parties and, most 

significantly, from their home states. It is a political process. 

Members do not stop being citizens of their home state by 

virtue of deciding to run for federal office. The BCRA 

ignores this fact and, as a result, it imposes unconstitutional 

restrictions unrelated to its purpose to the harm and detriment 

of Members’ fundamental constitutional liberties. 

For these reasons, J. Dennis Hastert, Speaker of the United 

States House of Representatives, respectfully asks the Court 

to declare Title I of the Bipartisan Campaign Reform Act of 

2002 unconstitutional. 

Respectfully submitted, 

J. RANDOLPH EVANS * 


STEFAN C. PASSANTINO


SETH F. KIRBY


ARNALL GOLDEN GREGORY LLP 


2800 One Atlantic Center


1201 West Peachtree Street


Atlanta, Georgia 30309-3450 


(404) 873-8500 


Counsel for J. Dennis Hastert , 

Speaker of the United States 

* Counsel of Record House of Representatives 

July 8, 2003