Nos. 06-969 and 06-970

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, APPELLANT

v.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

v.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR THE 

FEDERAL ELECTION COMMISSION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

TABLE OF CONTENTS

 Page

A. Appellee’s as-applied challenge is moot . . . . . . . . . . . . . . 1

B. Appellee’s argument is fundamentally inconsistent

with this Court’s decision in McConnell v. FEC .......4

C. Appellee’s reliance on MCFL is misplaced . . . . . . . . . . 12

D The district court erred in refusing to consider 

evidence outside the four corners of appellee’s 

ads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E. Appellee offers no sound reason for this Court to

reconsider McConnell . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TABLE OF AUTHORITIES

Cases:

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ............................... 5

Brown v. Socialist Workers’74 Campaign Comm.,

459 U.S. 87 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . . . . . . 5, 10

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . 2, 12, 13, 14

FEC v. National Right to Work Comm., 459 U.S. 197

(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ......... 3

McConnell v. FEC:

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

251 F. Supp. 2d 176 (D.D.C. 2003) ................. 8

Randall v. Sorrell, 126 S. Ct. 2479 (2006) . . . . . . . . . . . . . . 18

Storer v. Brown, 415 U.S. 724 (1974) .................. 2

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410

(2006) ........................................... 4
II

Statute: Page

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155, § 203, 116 Stat. 91 .................. passim
(1)

REPLY BRIEF FOR THE 

FEDERAL ELECTION COMMISSION

A. Appellee’s As-applied Challenge Is Moot

The Commission’s opening brief explains (at 21-25) that

this case is moot because (1) no live controversy exists with

respect to the specific ads that appellee proposed to run in

2004, and (2) appellee has neither alleged nor demonstrated

an intent to run ads having the characteristics that the district court found dispositive for purposes of the constitutional

analysis. Appellee contends (Br. 28) that, for purposes of the

“capable of repetition, yet evading review” exception to general mootness principles, “[t]he alleged illegal action will recur when [appellee] wishes to run a targeted broadcast ad

mentioning a candidate within the prohibition period,”

whether or not the future ad is otherwise comparable to the

ads that are the subject of this suit. That is incorrect.

Appellee has brought and preserved an as-applied challenge to the application of Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116

Stat. 91, to three specific ads. In upholding that challenge,

moreover, the district court articulated a test that focused on

the text of the ads and implied that the statute would be valid

as applied to ads that differed in their particulars, for example, by promoting or attacking a candidate. See J.S. App. 22a.

Accordingly, appellee must show that the “same controversy”

will recur. See Gov’t Br. 22-24. A vague intent to broadcast

ads subject to BCRA § 203 does not suffice.

If appellee had alleged and demonstrated an intent to engage in express advocacy during a future pre-election period,

that prospect would not give rise to the same controversy that

is presented here. Appellee is therefore wrong in arguing

(Br. 28) that the “capable of repetition” prong of the exception
2

can be satisfied simply by evidence that appellee “wishes to

run a targeted broadcast ad mentioning a candidate within the

prohibition period.” That general averment might be enough

if this case involved a facial challenge, since such evidence

would demonstrate appellee’s continuing practical interest in

the question whether BCRA § 203 can be enforced at all.

Evidence at that level of generality, however, is insufficient to

establish the requisite ongoing case or controversy with respect to the as-applied challenge presented here.

Appellee notes (Br. 26 n.32) that this Court in Storer v.

Brown, 415 U.S. 724, 737 n.8 (1974), while acknowledging that

the “capable of repetition, yet evading review” exception is

“typical[ly]” implicated only in facial challenges, held that the

doctrine can be invoked in as-applied challenges. The doctrine’s invocation in as-applied challenges remains the exception rather than the rule, however, precisely because an asapplied challenge is more likely to turn on factors particular

to a specific application of the statute, making it unlikely that

the “same controversy” will recur. Moreover, the nature of

the as-applied challenge will affect the likelihood of such a

recurrence. For example, while the as-applied challenge in

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

251-263 (1986) (MCFL), arose in the more traditional enforcement context and therefore posed no mootness problem, the

challenge there, which turned on the nature of the organization rather than on the content of particular ads, was relatively likely to recur. An organization’s structure and willingness to accept corporate contributions may not change from

election to election, but the nature of ads concerning a diverse

range of public issues that may gain salience during future

elections almost certainly will change. In light of the number

of forms that future ads could take—from avoiding invoking

a candidate’s name altogether to criticizing the candidate
3

1 Appellee also relies (Br. 27-28) on the Court’s conclusion that the issue in

First National Bank v. Bellotti, 435 U.S. 765 (1978), was capable of repetition

yet evading review. But the differences between this case and Bellotti are

revealing. The challenge in Bellotti did not turn on the text of the particular

ads, but was directed at the complete ban on corporate participation in most

referenda campaigns. See id. at 767-770. Any effort by the corporations to

take part in the next tax referendum—through any kind of ad in any medium

—would have triggered the ban. Moreover, the plaintiffs in Bellotti were

explicit about their continued interest in participating in elections. Here, by

contrast, appellee’s challenge is premised on a lack of intent to influence

elections as such. Appellee’s stated interest is in legislative issues that may or

may not arise in close conjunction with candidate campaigns. It is speculative

whether appellee’s desire to address such issues will prompt it to run ads that

directly, or even including express advocacy—it is purely

speculative that the same controversy will recur.

In addition to its as-applied challenge with respect to three

specific ads, appellee also brought a broader challenge to

BCRA’s application to so-called “grassroots lobbying.” While

that broader challenge might have been more likely to recur,

the district court found it non-justiciable on other grounds,

see J.S. App. 15a-16a, and appellee did not cross-appeal that

ruling. Having declined to cross-appeal, appellee cannot invoke its general interest in continuing to engage in grassroots

lobbying to keep alive a controversy that is limited to three

ads that will almost certainly never run again. Subsequent

issues may arise in close proximity to a future election; in

addressing those issues, appellee may decide it is necessary

to refer to a candidate in the election, and it may further decide to use a targeted broadcast ad. But adding the further

speculation that those ads will share the same textual features

that the district court found dispositive here is far too speculative. Under these circumstances, the as-applied challenge

that appellee has brought and preserved is moot and does not

fall within the exception for cases capable of repetition yet

evading review.1
4

trigger BCRA, let alone ads that share the textual features that the district

court found dispositive here. See Gov’t Br. 24-25. 

B. Appellee’s Argument Is Fundamentally Inconsistent With

This Court’s Decision In McConnell v. FEC

In McConnell v. FEC, 540 U.S. 93 (2003), this Court held

that BCRA § 203 is constitutional on its face, 540 U.S. at 203-

209, and the Court indicated that the financing restrictions

imposed by that provision are valid at least in the “vast majority” of their applications, see id. at 206. Although this Court

subsequently clarified that McConnell did not foreclose asapplied challenges, see Wisconsin Right to Life, Inc. v. FEC,

546 U.S. 410, 411 (2006) (WRTL I) (per curiam), the Court in

WRTL I did not cast doubt on any aspect of McConnell’s reasoning. Appellee’s argument in support of its as-applied challenge is fundamentally inconsistent with this Court’s analysis

in McConnell.

1. Appellee asserts (Br. 29) that “this case involves a prohibition that substantially burdens the people’s rights to selfgovernment using their liberties of expression, association,

and petition” (footnote omitted). The Court in McConnell

explained, however, that “Congress’ power to prohibit corporations and unions from using funds in their treasuries to

finance ads expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our

law.” 540 U.S. at 203; see Gov’t Br. 3-4. The Members of this

Court divided on the question whether Congress’s authority

to regulate corporate campaign spending encompasses “electioneering communications,” as defined in BCRA, when those

ads do not contain express electoral advocacy. An unchallenged premise of the Court’s decision, however, was that

Congress has greater power to regulate corporate electoral

spending than to regulate comparable advocacy by individuals

or unincorporated entities. Appellee’s effort (e.g., Br. 1) to
5

2 The Court also noted that, “whatever the precise percentage may have

been in the past,” corporations and unions that do not seek to affect electoral

results can adjust their advertising practices to BCRA’s requirements by

“simply avoiding any specific reference to federal candidates.” McConnell, 540

U.S. at 206. The Court’s evident expectation was that, now that BCRA is in

analogize BCRA § 203 to past restrictions on the speech of

individuals is therefore misconceived.

Appellee’s characterization (Br. 29) of BCRA § 203 as a

“prohibition” on speech is, to use the Court’s words in McConnell, “simply wrong.” As the Commission’s opening brief

explains (at 7), corporations are permitted under BCRA (as

under prior law) to finance electoral advocacy through a separate segregated fund, commonly known as a political action

committee or PAC. The Court in McConnell therefore observed that “it is ‘simply wrong’ to view * * * [BCRA § 203]

as a ‘complete ban’ on expression rather than a regulation.”

540 U.S. at 204 (quoting FEC v. Beaumont, 539 U.S. 146, 162

(2003)); see Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 658 (1990). The Court in McConnell further

explained that “corporations and unions may finance genuine

issue ads during [pre-election] timeframes by simply avoiding

any specific reference to federal candidates, or in doubtful

cases by paying for the ad from a segregated fund.” 540 U.S.

at 206. Although appellee contends (Br. 33-35) that the PAC

alternative is burdensome and inadequate, it makes no effort

to reconcile that position with the McConnell Court’s evident

conclusion that the availability of that option substantially

affects the constitutional analysis.

2. Appellee’s arguments are inconsistent with McConnell

at more fundamental levels as well. Based on an extensive

evidentiary record, the Court in McConnell concluded that

the “vast majority” of pre-BCRA ads falling within the statutory definition of “electioneering communication” had an

“electioneering purpose.” 540 U.S. at 206.2

 The Court re-
6

effect, an even larger percentage of ads falling within the statutory definition

of “electioneering communication” will reflect an electoral purpose. 

3 Of course, the clearest example of an election-oriented ad is one that

expressly advocates the election or defeat of an identified candidate. At the

time of BCRA’s enactment, however, “very few ads—whether run by candidates, parties, or interest groups—used words of express advocacy. In the

1998 election cycle, just 4% of candidate advertisements used magic words; in

2000, that number was a mere 5%.” McConnell, 540 U.S. at 127 n.18 (citations

omitted); see id. at 193 & n.77. Thus, the fact that appellee’s ads contained no

express electoral advocacy does not take them out of the heartland of Congress’s concern. As the McConnell Court clearly recognized, the fact that the

“express advocacy” test failed to capture the large majority of candidates’ own

ads made it woefully underinclusive. But as amici League of Women Voters,

et al., explain (Br. 15-25), appellee’s proposed test would allow corporations to

jected the plaintiffs’ overbreadth challenge to BCRA § 203

and concluded that, “[f]ar from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute

sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.”

540 U.S. at 207. Obviously, any constitutional exemption from

BCRA § 203 that encompasses a substantial percentage of ads

falling within the statutory definition of “electioneering communication” would be irreconcilable with this Court’s determination that BCRA § 203 is valid in the “vast majority” of its

applications.

But appellee’s proposed test, like that adopted by the district court, would have precisely that forbidden effect. Appellee does not demonstrate that its own ads are atypical of

“electioneering communications” generally, or that the exemption it seeks would encompass only an insubstantial percentage of communications falling within the statutory definition. To the contrary, appellee’s own ads, as well as the

broader class of ads that appellee seeks to exempt, closely

resemble ads that the Court in McConnell identified as paradigmatic abuses under pre-BCRA law.3
7

run ads that are functionally equivalent to some of the most famous and

effective candidate ads ever produced.

4 Appellee contends that BCRA § 203’s financing restrictions cannot constitutionally be applied to an ad that (1) “focuses on a current legislative branch

matter, takes a position on the matter, and urges the public to ask a legislator

to take a particular position or action with respect to the matter in his or her

official capacity”; and (2) “does not mention any election, candidacy, political

party, or challenger, or the official’s character, qualifications, or fitness for

office.” Appellee Br. 56 (footnote omitted). Appellee states that, so long as

those criteria are satisfied, the ad is entitled to a constitutional exemption even

if it “states the position of the candidate on the matter * * * and praises or

criticizes the candidate for that position.” Id. at 57. Appellee asserts (id. at 56

n.66) that, because its proposed constitutional test requires a reference to a

“current” legislative matter, the test is consistent with the McConnell Court’s

recognition that the “Jane Doe” ad had an electioneering purpose. The Court

in McConnell, however, did not describe the “Jane Doe” ad as referring to a

stale legislative issue, let alone suggest that this was the only feature that

marked the hypothetical ad as election-oriented.

As a core example of the types of ads that had been used

to circumvent pre-BCRA restrictions on corporate electioneering, the Court described a hypothetical ad that “condemned Jane Doe’s record on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you

think.’” 540 U.S. at 126-127. Appellee’s ads differ from the

“Jane Doe” hypothetical only in that those ads, rather than

explicitly condemning Senator Feingold’s record on the issue

of judicial filibusters, criticize a “group of Senators” (see J.S.

App. 67a, 69a), which many listeners would know included

Senator Feingold, and direct viewers and listeners to a

website that makes that link explicit and contains such criticisms. See Gov’t Br. 45. Under appellee’s proposed constitutional test, moreover, a purported “issue ad” can be exempt

from BCRA § 203 even if the ad itself explicitly criticizes a

candidate’s position. See Appellee Br. 56-57.4

 Because the

constitutional exemption that appellee advocates would encompass a substantial percentage—probably the vast major-
8

5 Appellee places substantial weight on the alleged similarities between the

ads at issue here and an ad that appellee refers to as the “PBA ad,” which was

mentioned by the district court in McConnell but was never addressed by this

Court. Contrary to appellee’s contention (Br. 56), the “PBA ad” is not a “logical prototype” for an as-applied constitutional exemption. The much more

logical prototype for consideration of appellee’s as-applied challenge is the

“Jane Doe” ad that was specifically referenced in this Court’s opinion, which

the Court clearly understood to have an electioneering purpose. If anything,

the PBA ad is an example of ads that serve more than one purpose and was

difficult to classify under a binary methodology. Two defense witnesses in

McConnell, asked to consider the text of the “PBA ad” without reference to

context, expressed differing views about whether the ad was primarily

electoral or primarily legislative. See McConnell v. FEC, 251 F. Supp. 2d 176,

312 (D.D.C. 2003) (Henderson, J.); id. at 748 (Kollar-Kotelly, J.). Neither witness opined that the ad wholly lacked an electioneering component. Now that

BCRA is on the books, corporations that intend to influence both elections and

issues can either avoid the temptation to link the issue to an identified candidate or finance the ad through a PAC.

ity going forward—of ads falling within BCRA’s definition of

“electioneering communication,” including ads indistinguishable from the Court’s “Jane Doe” example, it cannot be reconciled with the McConnell Court’s rejection of plaintiffs’ facial

challenge to BCRA § 203.5

Moreover, the inconsistency between appellee’s position

and the Court’s conclusion in McConnell that the “vast majority” of BCRA § 203’s applications are valid becomes even

clearer when the prospective effects are considered. In

McConnell, the Court recognized that, due to the bright-line

nature of BCRA’s definition of “electioneering communication,” corporations interested in running “pure issue ads”

could avoid the application of BCRA § 203 prospectively. See

540 U.S. at 206-207. Conversely, any bright-line “magic feature” exception, like the district court’s, that places no weight

on contextual indicators of electioneering purpose would open

the door for massive circumvention of BCRA’s financing restrictions. The Court’s experience with the “express advo-
9

cacy” test amply demonstrates the willingness and ability of

corporations and unions to take advantage of loopholes or

underinclusive bright-line rules. Going forward, the “vast

majority” of ads with an electioneering purpose and effect

could be designed to fall within the as-applied exceptions recognized by the district court and proposed by appellee. That

would clearly turn McConnell on its head.

3. Based on a voluminous record, the Court in McConnell

rejected the plaintiffs’ overbreadth challenge. Despite that

holding, appellee argues (e.g., Br. 29, 32, 33) that the government bears the burden of proving the electoral focus of the

specific ads at issue here. By contending that the application

of BCRA § 203’s financing restrictions to particular “electioneering communications” cannot be treated as presumptively

constitutional, appellee argues in effect that its as-applied

challenge should be adjudicated as if McConnell had never

happened. The Court surely did not intend that its analysis

and holding in McConnell would be disregarded in such a

manner.

It is also unclear how the government could satisfy its burden under appellee’s theory of the case. Until Congress enacted BCRA’s “electioneering communications” provisions,

which identify specific objective criteria that indicate electoral intent and effect, this Court had addressed potential

vagueness concerns by construing prior campaign-finance

laws as reaching only express electoral advocacy. See McConnell, 540 U.S. at 190-192. The Court in McConnell made

clear that “the express advocacy restriction was an endpoint

of statutory interpretation, not a first principle of constitutional law,” id. at 190, and that Congress may adopt a different standard so long as its test is neither vague nor

overbroad, see id. at 192. But if the government in each asapplied challenge must prove the electioneering character of

the particular ad at issue, without reference to the congres-
10

sional judgment reflected in BCRA’s definition of “electioneering communication” and without reintroducing vagueness

concerns, it is difficult to see what standard other than the

“express advocacy” test a reviewing court could employ.

Adoption of appellee’s proposed approach would therefore

effectively negate this Court’s holding in McConnell that Congress’s power to restrict corporate electioneering extends

beyond regulation of express advocacy.

4. Appellee appears to contend (e.g., Br. 59-61) that, because of the importance of “grassroots lobbying” to a functioning democracy, BCRA § 203 cannot constitutionally be

applied to appellee’s ads even if those ads were intended to

influence federal elections. That claim is also foreclosed by

McConnell. Corporate electioneering has historically been

subject to greater restrictions than other corporate speech,

not because speech concerning candidate elections is entitled

to reduced constitutional protection, but because corporate

electoral advocacy poses distinct dangers to the democratic

process. See McConnell, 540 U.S. at 115-117, 205; accord,

e.g., Beaumont, 539 U.S. at 152-156; FEC v. National Right

to Work Comm., 459 U.S. 197, 208-209 (1982). The interest in

preventing corporate wealth from exercising untoward influence on candidate elections has consistently been recognized

as compelling, see McConnell, 540 U.S. at 205, and it is not

diminished by the fact that a particular effort at electoral

influence also contains a “grassroots lobbying” component.

See id. at 206 (“The justifications for the regulation of express advocacy apply equally to [issue] ads aired during [the

30- and 60-day pre-election] periods if the ads are intended to

influence the voters’ decisions and have that effect.”).

5. Appellee contends (Br. 45-46) that effective “grassroots

lobbying” requires that an ad name the candidate to whom

constituents’ communications should be addressed, and that

BCRA § 203 therefore renders corporate “grassroots lobby-
11

ing” infeasible during the 30- and 60-day pre-election periods.

That argument is not new. In McConnell, various plaintiffs

similarly contended that BCRA’s “electioneering communications” provisions are unconstitutional because BCRA’s definition of that term would encompass ads urging citizens to contact their elected representatives regarding pending legislative issues. See, e.g., Br. of AFL-CIO at 19 (No. 02-1755); Br.

of Senator Mitch McConnell et al. at 50-52 (No. 02-1674 et

al.). In response to the government’s contention that effective issue advocacy does not require references to specific

candidates, the AFL-CIO’s reply brief in that case relied (at

2-3) on testimony from the organization’s public affairs director that “naming a federal officeholder * * * in broadcast

advertisements is often necessary in order effectively to influence his or her conduct and the issue debate.”

Despite those arguments, this Court held in McConnell

that any overbreadth in the statutory definition of “electioneering communication” was unproblematic because, inter

alia, an advertiser who does not seek to influence federal

elections “may finance genuine issue ads during [the pre-election] timeframes by simply avoiding any specific reference to

federal candidates.” 540 U.S. at 206. The Court thus evidently concluded that, at least as a general matter, omission

of references to identified federal candidates will not preclude

effective issue advocacy. Because appellee does not contend

that its own circumstances were unique in that respect—i.e.,

that appellee had a particular need to identify Senator Feingold in its broadcast ads—appellee’s argument adds nothing

to what was before this Court in McConnell. Moreover, the

reality that other organizations’ efforts to engage in grassroots lobbying on the filibuster issue outside the context of

pending candidate elections did not, in fact, refer to specific

federal officeholders, J.A. 45-46, underscores that the Court’s

conclusion in McConnell is fully applicable here.
12

6. Appellee contends (Br. 47-48) that Congress might have

employed the “less restrictive means” of requiring “electioneering communications” to be financed from a “segregated

bank account” containing only funds raised from individuals,

rather than from a PAC (which is subject to additional restrictions). Appellee did not finance the ads at issue here

through such an account, however, and instead used substantial donations from business corporations. See Gov’t Br. 11.

Appellee’s contention that Congress ought to have made the

segregated-account alternative available is therefore irrelevant to the question whether BCRA § 203 is constitutional as

applied to appellee’s own conduct. For that reason, appellee

is not even in a position to advance the argument urged by a

number of its amici that the Court should strike down BCRA

§ 203 in favor of the segregated-account approach. In any

event, Congress chose to require nonprofit corporations other

than “MCFL organizations” (see Gov’t Br. 4-5) to finance

“electioneering communications” through a PAC. Congress

specifically rejected the alternative that appellee proposes,

and this Court upheld that choice in McConnell. See 540 U.S.

at 209-211.

C. Appellee’s Reliance On MCFL Is Misplaced

Appellee states (Br. 43) that “this case is like” MCFL, in

which the Court held that a narrowly defined class of nonprofit corporations (see Gov’t Br. 4-5) were entitled to a constitutional exemption from the federal ban on the use of corporate treasury funds to finance express electoral advocacy.

Appellee’s reliance on MCFL is misplaced.

Appellee suggests (Br. 42-43) that the Court in MCFL

placed on the government the burden of establishing that the

challenged financing restriction was constitutional as applied

to MCFL’s communications. As the Commission’s opening

brief explains (at 34-35), MCFL in fact stands for the opposite
13

proposition. The Court in MCFL stated that it would “not

second-guess a decision to sweep within a broad prohibition

activities that differ in degree, but not kind,” and it sustained

the organization’s as-applied challenge only after concluding

that “the concerns underlying the regulation of corporate

political activity are simply absent with regard to MCFL.”

479 U.S. at 263. Far from requiring the government to establish the law’s validity as applied to a particular entity, the

Court required MCFL to show that its campaign spending

would not implicate the concerns at which the challenged

statutory provision was addressed.

Appellee relies in particular (Br. 43, 49) on this Court’s

statement in MCFL that “the desire for a bright-line rule”

was not a sufficient justification for declining to recognize a

constitutional exception to the statutory ban on corporate

express advocacy. See 479 U.S. at 263. But the Court made

that statement only after finding that MCFL posed none of

the concerns that motivated the statutory prohibition, and the

Court made clear that it would uphold the bright-line approach if the difference were a matter of degree, not kind.

Taken as a whole, the Court’s opinion in MCFL establishes

that appellee bears the burden of showing that there exists a

class of “electioneering communications” for which electoral

intent and effect are demonstrably lacking, and that its own

ads fall within that category. Cf. Brown v. Socialist Workers

’74 Campaign Comm., 459 U.S. 87, 88 (1982) (allowing as-applied challenge for “minor political party that can show” atypical hardship from compelled disclosures).

D. The District Court Erred In Refusing To Consider Evidence

Outside The Four Corners Of Appellee’s Ads

Contrary to appellee’s suggestion (Br. 36), the government does not advocate “an intent-and-effect test warranting

a broad contextual investigation into the speaker’s alleged
14

true purpose.” The Commission’s opening brief explains (at

19, 42-43) that, in light of the difficulties inherent in an unstructured post hoc inquiry into an advertiser’s likely purpose, courts should adhere as closely as possible to the

bright-line definition of “electioneering communication” that

Congress adopted. Because appellee bears the burden of

showing that Congress’s generalization is inaccurate with

respect to appellee’s own ads—i.e., that those ads demonstrably lack an electioneering purpose—appellee cannot prevail

on the theory that electoral intent is unknowable. See Gov’t

Br. 42.

In any event, appellee, like the district court, is wrong to

posit a stark choice between an inquiry strictly limited to the

text of the ads and a full-blown and far-reaching inquiry into

intent. That is a false dichotomy. It ignores a reasonable

middle ground that this Court itself has repeatedly invoked

in its campaign-finance decisions—viz., a focused and limited

consideration of not just text, but context. Among the most

important contextual features is the timing of an ad vis-a-vis

an election. Not only is that contextual factor central to

BCRA’s definition of “electioneering communication,” but

this Court in McConnell pointed to the timing of so-called

issue ads pre-BCRA—almost all within 60 days of an election—as “confirm[ing]” the Court’s “conclusion that such ads

were specifically intended to affect election results.” 540 U.S.

at 127. In other contexts as well, the Court has pointed to

contextual factors in applying the campaign-finance laws. In

MCFL, for example, the Court relied on the extraordinary

circulation of the voter guide at issue to conclude that it did

not qualify as an internal newsletter. 479 U.S. at 250-251.

1. This case does not require the Court to fashion a general standard for assessing as-applied constitutional challenges to BCRA § 203, or to adopt a test that makes any particular contextual factors determinative. Indeed, the primary
15

6 The Commission’s opening brief explains (at 43-45) that appellee’s ads

repeatedly urged viewers and listeners to visit the “BeFair.org” website, which

contained materials disparaging Senator Feingold’s record on the issue of

judicial filibusters. That brief observes (at 44) that “[a] court could not cogently

assess the likely purpose and effect of a broadcast advertisement urging

viewers to ‘look at the billboard on Main and First Streets’ without examining

the billboard’s message.” Although appellee does not specifically address that

hypothetical, the logic of its position suggests that the court in an as-applied

challenge involving a broadcast ad that cross-referenced such a billboard

should ignore the billboard’s content. See Appellee Br. 58 n.68. Of course, the

position of the district court is even more ambitious because it treats the absence of language from the ad itself as an affirmative virtue, see J.S. App. 22a23a, but then would ignore the fact that the thrice-referenced website supplies

the missing language. Appellee contends (Br. 58 n.68) that its own ads are

analogous to ads that simply urge individuals not to vote until they have visited

a website that discusses candidates’ positions on issues of concern. But unless

a broadcast ad itself refers to a clearly identified candidate for federal office,

it does not fall within the statutory definition of “electioneering communication,” and a court will have no occasion to decide whether BCRA § 203 is constitutional as applied, regardless of what non-broadcast communications the ad

references. Likewise, if appellee had avoided the reference to Senator Feingold and had directed listeners and viewers to visit its website to find out how

to stop the filibusters, it would have avoided the application of BCRA § 203

altogether.

relevance of the strong contextual indications of electioneering purpose here is to make clear that any tests—like those

adopted by the district court and proposed by appellee—that

exempt ads without regard to such contextual indications will

open up the statute to massive circumvention. See pp. 17-18,

infra. In any event, three readily administrable contextual

factors weigh strongly against appellee’s as-applied challenge

here.

First, the ads’ specific and repeated cross-reference to a

website that explicitly criticized Senator Feingold’s position

on judicial filibusters is relevant to this as-applied constitutional challenge.6

 That is particularly true here because the

“BeFair.org” website was the only source referenced in the
16

7 As Judge Roberts’s dissent in the district court explained, appellee had

“made the defeat of [Senator] Feingold a priority” during the 2004 election

cycle; had “endorsed through its PAC three of Senator Feingold’s main

opponents”; and had treated “Senator Feingold’s participation in judicial filibustering” as “a particular focus of criticism.” J.S. App. 41a-42a (internal

quotation marks omitted). That pattern of advocacy does not wholly foreclose

the possibility that appellee could run a different ad that named Senator

Feingold but was not intended to influence the election. Appellee’s sustained

opposition to Senator Feingold’s reelection effort, however, is directly relevant

to the determination whether appellee has proved the absence of electioneering

intent with respect to the ads at issue here.

8 Appellee began its advertising campaign shortly after the Senate had

departed for a lengthy recess, and it did not resume its anti-filibuster ads after

the 2004 election, even though the issue gained even greater public prominence

during the first half of 2005. See Gov’t Br. 45-46. It is undisputed that no

judicial filibuster votes occurred between the commencement of appellee’s

advertising campaign and the 2004 general election. See J.A. 30. Although

appellee asserts that additional filibuster votes were anticipated during the fall

of 2004 (Br. 15 & n.24), the evidence indicates that the timing of the ads was

determined well in advance without reference to the legislative schedule (see

Gov’t Br. 11 n.3), and the district court made no effort to determine whether

the ads were reasonably timed to achieve their purported lobbying objective.

Appellee further contends (Br. 16) that “there was no reason for [it] to run ads”

during early 2005 because the relevant issue then was whether Senate rules

should be changed, not whether Wisconsin’s Senators should support individual

filibusters. But appellee used non-broadcast communications in March 2005

to encourage supporters to “contact Senators Kohl and Feingold and urge them

to allow an up and down vote on ALL judicial nominees.” J.A. 92. Moreover,

ads that provided contact information for the Senators, even

though such information is a logical component of any grassroots lobbying ad. Second, it is relevant that appellee itself,

during the same election cycle, had opposed Senator Feingold’s reelection and had identified filibusters as a campaign

issue. 7

 Third, just as the proximity of ads to elections provides contextual evidence of an electioneering purpose, the

timing of appellee’s ads vis-a-vis legislative votes undermines

appellee’s claim of a lobbying rather than electoral motive.8
17

other organizations spent significant sums on issue advertising related to

judicial filibusters during the spring of 2005. See J.A. 32.

If appellee’s ads were intended to affect congressional votes that ultimately

did not occur, the fortuitous effect of BCRA § 203’s financing restrictions (and

of the district court’s denial of preliminary injunctive relief, see J.S. App. 57a71a) was to prevent appellee from wasting corporate funds on a fruitless

endeavor. Appellee evidently does not regard the matter in that light, however,

since it states (Br. 24) with apparent regret that it “has forever lost the opportunity to broadcast its 2004 grassroots lobbying ads.” 

Consideration of such factors would not complicate the inquiry unduly and would significantly reduce the danger that

a constitutional exception to BCRA § 203 will facilitate corporate electioneering.

2. Although BCRA’s definition of “electioneering communication” is simple and objective, Congress in formulating

that definition conducted extensive hearings and considered

a wealth of evidence. In identifying the characteristics that

would trigger BCRA § 203’s financing restrictions, Congress

considered the advertising practices used to circumvent preBCRA restrictions on corporate electioneering. This Court

likewise reviewed a voluminous record before concluding that

BCRA’s “electioneering communication” provisions are valid

on their face.

As those modes of analysis make clear, determining the

proper statutory or constitutional rule may involve a complex,

multi-faceted inquiry even when the resulting rule itself is

simple and objective. Similarly in the present setting, this

Court should consider the relevant contextual evidence in

determining whether appellee’s proposed test for resolving

as-applied constitutional challenges (see Appellee Br. 56-57)

will adequately prevent circumvention of BCRA’s financing

restrictions, whether or not the contextual factors described

above are ultimately incorporated into any constitutional test

this Court may fashion. If the proposed exception would al-
18

low massive circumvention of BCRA and McConnell’s overbreadth ruling (which was premised on the statute’s constitutionality in the “vast majority” of its applications) through

ads that, as contextual factors make clear, were intended to

influence a candidate election, then that is reason enough to

reject the proposed exception. The contextual factors are

thus relevant to rejecting this as-applied challenge even if

they are not incorporated into a new as-applied test.

E. Appellee Offers No Sound Reason For This Court To Reconsider McConnell

The breadth of appellee’s position regarding the circumstances under which as-applied challenges to BCRA § 203

should prevail leads it to the inevitable conclusion that the

Court should overrule McConnell’s holding that BCRA § 203

is facially constitutional. None of the considerations that support a departure from customary fidelity to precedent warrants dismantling the Court’s landmark decision in McCon.-

nell just three Terms after it was pronounced following an

extraordinary sitting. Indeed, appellee makes virtually no

effort to explain why McConnell should be overruled under

“the doctrine of stare decisis or the Court’s cases elaborating

on the circumstances in which it is appropriate to reconsider

a prior constitutional decision.” Randall v. Sorrell, 126 S. Ct.

2479, 2500 (2006) (Alito, J., concurring in part and concurring

in the judgment). After receiving a 20-page extension from

this Court, appellee dedicates less than two pages (Br. 68-69)

to its argument that McConnell is not entitled to stare decisis

effect. That “is reason enough to refuse” appellee’s extraordinary request to overrule McConnell. Ibid.

In sustaining BCRA § 203 against a facial constitutional

challenge, the Court in McConnell relied on three basic propositions. First, the Court reaffirmed its prior holdings that

corporations may constitutionally be prohibited from using
19

9 Contrary to appellee’s suggestion (Br. 62-63), that characterization of appellee’s ads in the Commission’s opening brief does not reflect a change from

the government’s prior litigating position. The government’s brief in WRTL

I contended (at 42 n.16) that the timing of appellee’s ads “reinforces the

inference that [those] advertisements were in the heartland of Congress’s concern.” Appellee nevertheless failed to urge the overruling of McConnell in

WRTL I, or even in its response to the jurisdictional statements in the current

appeals.

treasury funds for express electoral advocacy. See 540 U.S.

at 203. Second, the Court held that the “vast majority” of

prior ads covered by BCRA’s definition of “electioneering

communication” had an “electioneering purpose” and were

thus the “functional equivalent” of express advocacy, id. at

206, and that any overbreadth in the statute’s coverage was

therefore insubstantial, see id. at 207. Third, the Court held

that the alternatives available under BCRA to corporations

that wish to engage in issue advocacy but do not intend to

influence federal elections are sufficient to allay any remaining constitutional concerns. See id. at 206. Appellee has

identified no new evidence or other intervening development

that casts doubt on any of those propositions. There is consequently no basis for appellee’s contention (Br. 62-69) that

McConnell should be overruled.

Appellee contends (Br. 62) that the government has

“call[ed] into question McConnell’s facial upholding” of

BCRA § 203 by arguing that appellee’s ads are in the “heartland” of Congress’s concern.9

 That is not a legitimate basis

to revisit a precedent of this Court, especially one as recent

and important as McConnell. The arguments of a party

—which this Court is free to accept or reject—are simply not

the kind of intervening development that could justify overruling a precedent. As we explain above, ads like appellee’s

that took the form of appeals to viewers and listeners to contact their elected representatives were the paradigmatic
20

abuse at which BCRA’s “electioneering communication” provisions were directed. If this Court agrees, then BCRA § 203

is clearly constitutional as applied to those ads, since the

Court in McConnell held that the provision is not substantially overbroad. If the Court disagrees and concludes instead that appellee’s ads are atypical of “electioneering communications” as defined in BCRA, that determination may be

a basis for sustaining appellee’s as-applied challenge. But

either way, neither the government’s argument nor the

Court’s agreement or disagreement with that argument

would remotely call into question this Court’s prior holding

that BCRA § 203 is constitutional on its face.

* * * * *

For the foregoing reasons and those stated in our opening

brief, the judgment of the three-judge district court as to the

claims at issue in these appeals should be vacated on the

ground of mootness, and the case should be remanded with

instructions to dismiss as to those claims. In the alternative,

the judgment should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

APRIL 2007