Nos. 06-969 and 06-970

444444444444444444444444444444444444444444

In The Supreme Court of the United States

FEDERAL ELECTION COMMISSION, APPELLANT,

v.

WISCONSIN RIGHT TO LIFE, INC., APPELLEE.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS,

v.

WISCONSIN RIGHT TO LIFE, INC., APPELLEE.

On Appeal from the United States District Court

for the District of Columbia

BRIEF AMICUS CURIAE OF CITIZENS UNITED,

CITIZENS UNITED FOUNDATION, GUN OWNERS

OF AMERICA, INC., GUN OWNERS FOUNDATION,

JOYCE MEYER MINISTRIES, CONSERVATIVE

LEGAL DEFENSE AND EDUCATION FUND, FREE

SPEECH COALITION, INC., FREE SPEECH

DEFENSE AND EDUCATION FUND, INC., LINCOLN

INSTITUTE, PUBLIC ADVOCATE OF THE UNITED

STATES, DOWNSIZEDC.ORG, AND DOWNSIZE DC

FOUNDATION IN SUPPORT OF APPELLEE

MICHAEL BOOS HERBERT W. TITUS*

4101 Chain Bridge Road WILLIAM J. OLSON

Fairfax, VA 22030 JOHN S. MILES

(co-counsel for Citizens United JEREMIAH L. MORGAN

& Citizens United Foundation) WILLIAM J. OLSON, P.C.

8180 Greensboro Drive

Attorneys for Amici Curiae Suite 1070

*Counsel of Record McLean, VA 22102

March 23, 2007 (703) 356-5070

(Counsel continued on inside front cover)

444444444444444444444444444444444444444444
MARK B. WEINBERG

WEINBERG & JACOBS, LLP

11300 Rockville Pike

Suite 1200

Rockville, MD 20852

(co-counsel for Free Speech Coalition, Inc. &

Free Speech Defense and Education Fund, Inc.)
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................... iii

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

SUMMARY OF ARGUMENT .......................... 2

ARGUMENT

I. THE ARGUMENTS OF APPELLANTS ARE

MISGUIDED, AND SHOULD BE REJECTED ......... 4

A. CONGRESS DOES NOT HAVE PLENARY POWER TO

PROTECT THE INTEGRITY OF THE NATION’S

“POLITICAL PROCESS” ....................... 4

B. THE FIRST AMENDMENT SECURES THE INTEGRITY

OF THE NATION’S “POLITICAL PROCESS” ......... 6

C. MCCONNELL AND BUCKLEY SHOULD BE

RECONSIDERED ............................. 8

II. AS APPLIED, BCRA SECTION 203 ABRIDGES THE

RIGHT OF WRTL TO PETITION THE GOVERNMENT

FOR REDRESS OF GRIEVANCES ................. 9

A. THE RIGHT TO PETITION SECURES THE RIGHT OF

THE PEOPLE TO INFLUENCE THEIR ELECTED

GOVERNMENT OFFICIALS ON SPECIFIC POLICY

MATTERS BEFORE THEM .................... 10

B. THE WRTL ADS ARE GENUINE PETITIONS TO THE

GOVERNMENT FOR REDRESS OF GRIEVANCES .... 13
ii

C. WRTL’S RIGHT TO PETITION THE GOVERNMENT

HAS BEEN UNCONSTITUTIONALLY ABRIDGED .... 15

III. AS APPLIED, BCRA SECTION 203 ABRIDGES THE

RIGHT OF WRTL PEACEABLY TO ASSEMBLE ..... 20

IV. AS APPLIED, BCRA SECTION 203 ABRIDGES

WRTL’S FREEDOM OF SPEECH ................ 22

V. AS APPLIED, BCRA SECTION 203 ABRIDGES 

WRTL’S FREEDOM OF THE PRESS ............. 25

CONCLUSION ................................... 30
iii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Amendment I ............................. 1, passim

STATUTES

Bipartisan Campaign Reform Act of 2002 (Pub. L.

No. 107-155, 116 Stat. 81) ................ 2, passim

2 U.S.C. § 431 .................................. 26

2 U.S.C. § 432 .................................. 30

2 U.S.C. § 434 ................................... 6

2 U.S.C. § 437g ................................. 21

REGULATIONS

11 C.F.R. § 100.29(c) ............................. 26

11 C.F.R. § 100.73 ............................... 26

11 C.F.R. § 100.132 .............................. 26

70 Fed. Reg. 75,713 (Dec. 21, 2005) .................. 2

CASES

Austin v. Michigan State Chamber of Commerce, 494

U.S. 652 (1990) .............................. 27

Buckley v. Valeo, 424 U.S. 1 (1976) ........... 3, passim

CBS v. Dem. Nat’l.Comm., 412 U.S. 94 (1973) ........ 29

DeJonge v. Oregon, 299 U.S. 353, at 366 (1937) ....... 21

Dun & Bradstreet v. Greenmoss Builders, 472 U.S.

749 (1985) .................................. 27

Eastern R.R. Conference v. Noerr Motor Freight,

Inc., 365 U.S. 127 (1961) ....................... 12

Edwards v. South Carolina, 372 U.S. 229 (1963) .... 12, 20

FEC v. Phillips Publishing Co., 517 F. Supp. 1308

(D.D.C. 1981) ................................ 26
iv

First National Bank v. Bellotti, 435 U.S. 765 

(1978) ....................................... 9

Freedman v. Maryland, 380 U.S. 51 (1965) ........ 23, 24

Konigsberg v. State Bar of Calif., 366 U.S. 36 (1961) ... 17

Korematsu v. U.S., 323 U.S. 214 (1944) .............. 16

McConnell v. Federal Election Commission, 540 

U.S. 93 (2003) ......................... 2, passim

McConnell v. Federal Election Commission, 251

F. Supp. 2d 176 (D.D.C. 2003) .................. 14

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819) ....................................... 6

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241 (1974) ............................... 27, 29

Near v. Minnesota, 283 U.S. 697 (1931) .............. 29

New York Times v. United States, 403 U.S. 713 (1971) . . 29

Pacific Gas & Electric Co. v. Public Utilities

Commission, 475 U.S. 1 (1986) ............... 27, 28

Pennekamp v. Florida, 328 U.S. 331 (1946) ........... 27

Richfield Oil Corp. v. State Board of Equalization,

329 U.S. 69 (1946) ............................. 8

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ........ 2

Terminiello v. Chicago, 337 U.S. 1 (1949) ............. 7

Thomas v. Collins, 323 U.S. 516 (1945) ........... 10, 25

United States v. Cruikshank, 92 U.S. 542 (1875) ....... 20

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

163 L.Ed.2d 990 (2006) .................... 2, 4, 10

MISCELLANEOUS

J. Barzun, From Dawn to Decadence

(Harper/Collins, N.Y.: 2000) ..................... 8

Lillian BeVier, “Campaign Finance Regulation: 

Less, Please,” 34 Ariz. St. L.J. 1115 (2002) ......... 27

W. Blackstone, Commentaries on the Laws of England

(U. of Chi. Press, Facsimile. Ed.: 1769) ......... 26, 30
v

Congressional Globe, 26th Congress, 1st Session

(Jan. 28, 1840) ............................... 19

III Cyclopedia of Political Science, Political Economy,

and the Political History of the United States, § 53

(J.J. Lalor, ed., New York: 1899) ................. 19

FEC, Advisory Opinion 2005-16 .................... 28

FEC, Matter Under Review 2607 ................... 28

FEC, Matter Under Review 5315 ................... 28

The Federalist (G. Cary and J. McClellan, eds.,

Indianapolis: 2001) ............................ 19

Richard L. Hasen, “Campaign Finance Laws and 

the Rupert Murdoch Problem,” 77 Tex. L. Rev.

1627 (1999) ................................. 27

G. Lawson and G. Seidman, “Downsizing the Right to

Petition,” 93 Nw. U. L. Rev. 739 (1999) ............ 11

G. Mark, “The Vestigal Constitution: The History and

Significance of the Right to Petition,” 66 Fordham

L. Rev. 2153 (1998) ..................... 11, 13, 17

Joshua L. Shapiro, “Corporate Media Power, 

Corruption, and the Media Exemption,” 55 Emory

L.J. 161 (2006) ............................... 27

Sources of Our Liberties (R. Perry, ed., ABA Found,

Rev. Ed. 1978) ............................ 11, 12

N. Smith, “‘Shall Make No Law Abridging ...’ An

Analysis of the Neglected, but Nearly Absolute

Right of Petition,” 54 U. Cin. L. Rev. 1153

(1986) ................................ 11, 13, 17

J. Spanbauer, “The First Amendment Right to 

Petition Government for a Redress of Grievances: 

Cut from a Different Cloth,” 21 Hastings Const.

L. Q. 15 (1993) ............................... 12

J. Story, Commentaries on the Constitution (5th ed.

1891) ....................................... 20
vi

Noah Webster, An American Dictionary of the

English Language (photo. reprint 1996) (First edition,

1828) ....................................... 16

Webster’s Third International Dictionary

(Merriam & Co., Springfield, Mass.: 1964) .......... 5
1

 Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel

for a party authored this brief in whole or in part, and that no person or

entity other than these amici curiae made a monetary contribution to the

preparation or submission of this brief.

2

 Amici requested and received the written consents of the parties to the

filing of this brief amicus curiae. Such written consents, in the form of

letters from counsel of record for the parties, have been submitted for filing

to the Clerk of Court.

INTEREST OF AMICI CURIAE

The amici curiae, Citizens United (“CU”), Citizens United

Foundation (“CUF”), Gun Owners of America, Inc. (“GOA”),

Gun Owners Foundation (“GOF”), Joyce Meyer Ministries

(“JMM”), Conservative Legal Defense and Education Fund

(“CLDEF”), Free Speech Coalition, Inc. (“FSC”), Free Speech

Defense and Education Fund, Inc. (“FSDEF”), The Lincoln

Institute for Research and Education (“Lincoln”), Public

Advocate of the United States (“PA”), DownsizeDC.org, Inc.

(“DDC”), and Downsize DC Foundation (“DDCF”), are

nonprofit organizations sharing a common interest in the proper

construction and application of the Constitution and laws of the

United States.1 Each of the amici was established, inter alia,

for education and related purposes concerning the public policy

process, and are tax-exempt under Section 501(c)(3) or Section

501(c)(4) of the Internal Revenue Code (“IRC”).2 For each of

the amici, such purposes include programs to conduct research,

and to inform and educate the public, on important issues of

national concern,including questions related to the original text

of the United States Constitution. 

The First Amendment issues presented in this case directly

impact the rights of individuals and organizations to express

views on educational, social, political, and related topics and

issues, as well as to petition and assemble, as guaranteed by the

First Amendment, and are of extreme interest and importance

to these amici. In the past, these amici have filed amicus curiae
2

3

 Three of these amici — CU, GOA and DDC (then Real Campaign

Reform.org) — were plaintiffs in the litigation that culminated in this

Court’s upholding challenged provisions of the Bipartisan Campaign

Reform Act of 2002 (“BCRA”) (Pub. L. No. 107-155, 116 Stat. 81). See

McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

Furthermore, two of these amici — CU and CUF — were amici before this

Court in support of the successful claim of appellee Wisconsin Right to Life,

Inc. (“WRTL”) that McConnell did not foreclose “as applied” challenges to

the constitutionality of BCRA’s “electioneering communications”

provisions. See Wisconsin Right to Life, Inc. v. FEC, 546 U.S. ___, 163

L.Ed.2d 990 (2006) (“WRTL I”).

4

 Although the prohibition against electioneering communications by IRC

Section 501(c)(4) organizations, such as CU, GOA, FSC, DDC, and PA, has

been in force since the passage of BCRA, until recently, IRC Section

501(c)(3) organizations, such as CUF, GOF, JMM, CLDEF, FSDEF,

Lincoln and DDCF were specifically exempted from the prohibition by

regulation. That exemption, however, was found lacking by the district

court in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), and subsequently

repealed. See FEC Final Rules, 70 Fed. Reg. 75,713 (Dec. 21, 2005).

briefs in such matters before this Court.3

In carrying out their respective tax-exempt missions, all of

these amici may be directly impacted by this Court’s resolution

of the issues in this case. In the publication and dissemination

of educational materials concerning public policy issues, it is

often appropriate, if not necessary, for such materials to include

the names of current legislators who happen to be candidates

for reelection. According to the Federal Election Commission

(“FEC”), none of these amici would be permitted to broadcast

on television or radio any such materials during portions of a

federal election cycle.4

SUMMARY OF ARGUMENT

Appellants’ arguments rest upon the erroneous premise that

Congress enacted BCRA pursuant to an alleged power to
3

regulate the federal “political process.” Instead, as this Court

held in Buckley v. Valeo, and reaffirmed in McConnell v. FEC,

BCRA rests upon the claim that Congress may enact campaign

finance laws as a means to ensure the integrity of the “electoral

process.” Having failed to show that applying BCRA to

WRTL’s legislative-issue ads is an appropriate means to secure

the integrity of a federal election, Appellants’ arguments that

BCRA applies even to genuine issue ads should be rejected.

Moreover, the First Amendment petition, assembly, speech,

and press guarantees prohibit applying BCRA Section 203 to

to WRTL’s genuine issue ads. First, WRTL’s right to petition

the government for redress of grievances would be abridged

because the the ads at issue target the people of Wisconsin as

constituents, not as electors, urging them to contact their two

senators to obtain specific relief on a public policy matter

before them. 

Second, WRTL’s right of peaceable assembly would be

abridged because BCRA Section 203 imposes upon WRTL an

organizational and financial structure as a condition precedent

to its sponsoring an assembly which is both peaceful and for a

lawful purpose. 

Third, WRTL’s freedom of speech would be abridged by the

failure of the FEC to provide adequate procedures whereby

WRTL may obtain a timely and effective judicial

determination that its ads are protected core political speech.

Fourth, WRTL’s freedom of press would be abridged by the

FEC’s intrusion upon the editorial freedom secured to all

Americans, not limited to the institutional media, as

discriminatorily provided in BCRA Section 201(a). 
4

ARGUMENT

I. THE ARGUMENTS OF APPELLANTS ARE

MISGUIDED, AND SHOULD BE REJECTED

The Appellants claim that the critical issue in this case is

whether the WRTL television and radio “issue ads” are “the

functional equivalent” of “express advocacy” regarding the

election of a candidate for federal office. See Brief for

Appellant FEC (“FEC Br.”), 18-20, 28, 32; Brief for Appellants

McCain, Baldwin, Shays, and Meehan (“Interv. Br.”), pp. 3-4,

14-16, 19-21. Conspicuously absent from both briefs, however,

is any effort to demonstrate that the WRTL ads were “sham

issue ads,” functioning as “express [election] advocacy,” like

those found in McConnell, 540 U.S. at 206. In effect, both the

FEC and the Intervenors have contended that any issue ad,

genuine or not, broadcast during the 30-day and 60-day periods

specified in BCRA Section 203 is subject to BCRA’s

“electioneering communication” limitations. See FEC Br., p.

31; Interv. Br., pp. 19-21. According to the FEC and the

Intervenors, such an ad must either contain no reference to the

elected official who is such a candidate or be funded by a PAC.

See FEC Br., pp. 30-32, 35; Interv. Br., pp. 29-31. In taking

this position, the FEC and the Intervenors have contended, in

effect, that McConnell leaves no room for an as-applied

challenge, an interpretation unanimously rejected by this Court.

WRTL v. FEC (“WRTL I”), 546 U.S. ___, 163 L.Ed.2d 990

(2006). Moreover, their claim is based upon an erroneous

reading of McConnell.

A. Congress Does Not Have Plenary Power to Protect

the Integrity of the Nation’s “Political Process.”

The Intervenors have claimed that “[f]or a century, Congress

has worked to protect the integrity of the political process by
5

5

 See generally the definition of “political process” in Webster’s Third

International Dictionary, p. 1755 (Merriam & Co., Springfield, Mass.:

1964). 

6

 See 424 U.S. 1, 10, 25-29 (1976) (emphasis added).

regulating the use of corporate funds to influence federal

elections,” and that “[t]his Court reaffirmed in McConnell what

is now well-established: that Congress has a compelling

interest in preventing the ‘corrosive and distorting effects’ of

corporate and union treasuries on the integrity of the political

process.” Interv. Br., pp. 4, 17 (emphasis added). The FEC

has echoed this view, asserting that the McConnell Court

deferred to Congress’s definition of “electioneering

communication,” because of the “substantial experience of its

Members as participants in the political process....” FEC Br.,

p. 30 (emphasis added). Thus, according to Appellants,

BCRA’s “electioneering communications” restrictions are

constitutionally justified as a subset of Congress’s broad power

to regulate the “political process” — the process by which

public policy is formulated and administered through the

interaction between political leadership and public opinion.

5

But neither the Constitution nor this Court has ever

countenanced such an extravagant view of plenary

congressional power over the nation’s political life.

In Buckley v. Valeo, this Court found congressional

regulation of campaign finance to be constitutionally

“appropriate” only as a means to ensure “the integrity of the

electoral process,”6 not as a means of protecting the integrity

of the political process. Indeed, the Buckley Court stated that

Congress’s authority to regulate the financing of campaigns for

federal office was derived from “[t]he [enumerated]

constitutional power of Congress to regulate federal

elections,” as recognized by previous courts dating back to the
6

early 20th century. Id., 424 U.S. at 13 (emphasis added). The

McConnell Court did not departfromthis historical foundation;

rather, it reinforced the proposition that campaign finance

regulations have always been understood as a “necessary and

proper” means available to Congress to protect the electoral

process from “corruption and the appearance of corruption.”

See McConnell, 540 U.S. at 114-132. Thus, the McConnell

Court concluded that “BCRA’s central provisions are designed

to address Congress’s concerns about the increasing use of soft

money and issue advertising to influence federal elections.”

Id., 540 U.S. at 132 (emphasis added). 

Notwithstanding this clear directive, neither the FEC nor the

Intervenors have made any effort to demonstrate that

application of BCRA Section 203 (2 U.S.C. § 434(f)(3)) in this

case is “plainly adapted” to secure the integrity of the federal

electoral process from corruption or the appearance of

corruption. Yet, this Court always has insisted that, to justify

a statute enacted pursuant to Congress’s power “to make ...

laws which shall be necessary and proper for carrying into

execution” the federal government’s enumerated powers,

Congress must demonstrate not only that the end is

“legitimate,” but also that the means chosen to achieve that end

must be “appropriate ... plainly adapted to that end ... not

prohibited, but consist with the letter and spirit of the

constitution....” McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 421 (1819) (emphasis added). 

B. The First Amendment Secures the Integrity of the

Nation’s “Political Process.”

Having no regard for the role of the First Amendment to

secure the integrity of the nation’s political process, the FEC

and the Intervenors have unconstitutionally assumed that the

application of BCRA Section 203 to WRTL’s ads is “not
7

prohibited,” but rather “consist[s] with the letter and spirit of

the constitution.” Thus, the FEC and the Intervenors have

placed a heavy burden upon WRTL to show that its three

broadcast issue ads did not function as election advocacy and,

therefore, are not governed by BCRA Section 203. See FEC

Br., pp. 32-36; Interv. Br., pp. 19-21. By attempting to foist

this burden upon WRTL, the FEC and the Intervenors virtually

have ignored the fact that the First Amendment freedoms of

speech, press, assembly, and petition were ratified as part of the

United States Constitution to keep Congress’s hands off the

“political process,” forbidding it to make any law “abridging

the freedom of speech, or of the press, or of the right of the

people peaceably to assemble, and to petition the Government

for redress of grievances.” As this Court observed over a half

century ago:

The vitality of civil and political institutions in

our society depends on free discussion.... [I]t is

only through free debate and free exchange of

ideas that governmentremains responsive to the

will of the people.... The right to speak freely ...

is therefore one of the chief distinctions that

sets us apart from totalitarian regimes.... That

is why freedom of speech ... is ... protected

against censorship or punishment, unless

shown likely to produce a clear and present

danger of a serious substantive evil.... There

is no room under our Constitution for a more

restrictive view. [Terminiello v. Chicago, 337

U.S. 1, 4 (1949) (emphasis added).]

Having neglected to show that a failure to apply BCRA’s

Section 203 to WRTL’s three ads would create a “clear and

present danger” to the integrity of the electoral process, the

FEC and the Intervenors have relegated the freedoms of speech,
8

7

 See Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 77

(1946).

8

 As Jacques Barzun has observed: “In any context the word values is

surely the emptiest in current use.” J. Barzun, From Dawn to Decadence,

p. 769 (Harper/Collins, N.Y.: 2000) (italics original).

press, assembly, and petition to near obscurity in their briefs.

Neither brief contains quotes from, or even paraphrases, the

First Amendment text, and each dispenses completely with any

analysis based upon that text — notwithstanding this Court’s

salutary rule of construction that “every word [of the

Constitution] must have its due force, and appropriate

meaning....”7 The 50-page FEC brief mentions the “First

Amendment” only four times, twice invoking it in descriptive

quotes from the district court opinion (FEC Br., pp. 37, 41) and

twice more alluding to unnamed “First Amendment values.”8

FEC Br., pp. 27 and 41. While the 43-page Intervenors’ Brief

refers to the “First Amendment” six times, those references

serve primarily to rehearse what this Court wrote in a prior

case, rather than to apply the First Amendment’s constitutional

principles to this case. See Interv. Br., pp. 19, 21, 29, and 35.

Having neglected the relevant constitutional language, the FEC

and the Intervenors have failed to recognize how the

application of BCRA’s Section 203 to WRTL’s television and

radio ads violates the freedoms secured by the First

Amendment.

C. McConnell and Buckley Should Be Reconsidered.

Instead of relying upon the First Amendment to secure the

integrity of the political process, the Intervenors have staked

their claim on a proposition gleaned from isolated passages

from the McConnell and Buckley cases to support their novel

proposition that “‘[i]ssue ads’ are entitled to no greater
9

9

 See, e.g., McConnell, 540 U.S. at 205; Buckley, 424 U.S. at 48.

10

 See Amended Verified Complaint for Declaratory and Injunctive Relief,

¶¶ 63 and 69, R. 30.

constitutional protection than express electioneering.” See

Interv. Br., pp. 19-20; FEC Br., pp. 29-30. To the extent that

McConnell and Buckley could be so construed,9 then this Court

should reconsider those cases, determining that both issue and

electioneering communications are protected underthe freedom

of the press, as set forth in Part V, infra.

II. AS APPLIED, BCRA SECTION 203 ABRIDGES

THE RIGHT OF WRTL TO PETITION THE

GOVERNMENT FOR REDRESS OF

GRIEVANCES.

In its Response to Appellants’ Jurisdictional Statements,

WRTL focused primarily upon its First Amendment petition

claim,10 emphasizing that the three broadcast ads at issue in this

case were protected by the “right of corporations to petition

legislative and administrative bodies,” citing First National

Bank v. Bellotti, 435 U.S. 765, 791 n.31 (1978). See

Appellee’s Response to Appellants’ Jurisdictional Statements,

p. 6 (emphasis added). The district court essentially agreed,

finding that the ads did “not mention an election, a candidacy,

or a political party, nor ... comment on a candidate’s character,

actions, or fitness for office, [but rather] describe[d] an issue

that had been, and was likely to be, an ongoing issue of

legislative concern in the Senate... asking the listener to

contact both Senator Feingold [up for reelection] and Senator

Kohl [not running for office] to ask them to oppose judicial

filibusters.” See WRTL v. FEC, 466 F. Supp. 2d 195 at 207

(D.D.C. 2006) (emphasis added).
10

The FEC brief has taken issue with this finding, calling the

district court’s “distinction between issue advocacy and

electioneering... unrealistically sharp” and, therefore, a “critical

error,” claiming that there is no “clear divide between electoral

advocacy and ‘genuine issue advertisements.’” See FEC Br.,

p. 29. Relying on Buckley, the FEC has asserted that, because

“‘discussion of issues and candidates and advocacy of election

or defeat of candidates may often dissolve in practical

application,’” such political realities leave no room for the

enforcement of any constitutional distinction. See id., p. 30.

But that is not what the Buckley Court concluded. Instead,

citing Thomas v. Collins, 323 U.S. 516, 535 (1945) — the very

passage relied upon by the district court in drawing its “sharp

distinction” — the Buckley Court drew a precise line

differentiating communications targeting the people as

electors from those targeting people as constituents. See

Buckley, 424 U.S. at 42-43. Although the McConnell Court

discarded the Buckley bright-line test of “express words of

advocacy,” it did not adopt BCRA’s Section 203 definition of

“electioneering communications” as the new bright-line test,

sweeping even “genuine issue ads” into Congress’s regulatory

dust pan, thereby leaving no room for an as-applied challenge.

Compare WRTL I, 163 L.Ed.2d at 993, with FEC Br., pp. 30-

31. Thus, as the district court ruled, by appealing to the two

Wisconsin senators to act on a legislative issue before them, the

WRTL ads are not the kind of ads that BCRA Section 203 may

constitutionally regulate.

A. The Right to Petition Secures the Right of the People

to Influence Their Elected Government Officials on

Specific Policy Matters before Them.

As important as the right to influence public policy decisionmaking through the elective franchise has become, the right of

the people to influence the formulation and implementation of
11

11

 See The Magna Carta, ¶ 61, reprinted in Sources of Our Liberties

(hereinafter “Sources”) at 20-21 (R. Perry, ed., ABA Found, Rev. Ed. 1978).

See also N. Smith, “‘Shall Make No Law Abridging ...’ An Analysis of the

Neglected, but Nearly Absolute Right of Petition,” 54 U. Cin. L. Rev. 1153,

1154 (1986) (hereinafter “Neglected Right of Petition”). 

12

 See Bill of Rights, “Rights of the People,” ¶ 5, reprinted in Sources at

246. See also G. Lawson and G. Seidman, “Downsizing the Right to

Petition,” 93 Nw. U. L. Rev. 739, 747 (1999).

13

 See G. Mark, “The Vestigal Constitution: The History and Significance

of the Right to Petition,” 66 Fordham L. Rev. 2153, 2169, 2181 (1998)

(hereinafter “Significance of Petition”).

14

 Id. at 2191-2192. 

public policy did not begin at — nor is it limited to — the

ballot box. Rather, the practice of petitioning governing

authorities to act favorably on matters of public concern dates

back to the Magna Carta,11 and was firmly established as a right

of every Englishman by the English Bill of Rights of 1689:

“That it is the right of the subjects to petition the King, and all

commitments and prosecutions for such petitioning are

illegal.”12 Because the right of petition originated at a time in

English history when the elective franchise was severely

limited,13 America’s disenfranchised founders embraced the

right of petition as the very “capstone” of the Declaration of

Independence:

14

In every stage of these oppressions we have

petitioned for redress in the most humble

terms. Our repeated petitions have been

answered only by repeated injury. A prince,

whose character is thus marked by every act

which may define a tyrant, is unfit to be a ruler

of a free people. [Declaration of Independence,

reprinted in Sources at 321 (emphasis added).]
12

15

 See Sources at 422, 426. See also J. Spanbauer, “The First Amendment

Right to Petition Government for a Redre ss of Grievances: Cut from a

Different Cloth,” 21 Hastings Const. L. Q. 15 (1993).

This right of petition was affirmed as an inherent right of all

of the people in several of the early state constitutions and in

the first article of the federal Bill of Rights.15 And even though

the franchise has been enlarged by the 15th, 19th, 24th, and

26th Amendments, the right of petition remains unchanged,

securing to the people, in their capacity as constituents of their

elected officials, continuing access to those officials because

“the whole concept of representation depends upon the ability

of the people to make their wishes known to their

representatives.” See Eastern R.R. Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 137 (1961). Further, as this Court

has previously recognized, the right of petition extends to

publicity campaigns — such as WRTL’s grassroots lobbying in

this case — that are designed to stimulate others to

communicate their views on matters of public policy even

though the catalytic communication, itself, is not directed to the

appropriate government officials. See id., 365 U.S. at 129-30,

138. 

In times past, people who lacked ordinary access to their

elected representatives exercised their right of petition in its

“pristine and classic form,” appearing at the seat of government

in a direct personal appeal to those government officials who

had the power to redress their grievances. See, e.g, Edwards v.

South Carolina, 372 U.S. 229, 235 (1963). Today, grassroots

lobbying campaigns such as the one launched by WRTL’s

television and radio ads play an even more significant role in

enabling the people to communicate with their elected officials

by mail, telephone, facsimile, and e-mail. 
13

16

 See also WRTL v. FEC, 466 F. Supp. 2d at 3-5, 21-22.

17

 See id. 

18

 See id., 466 F. Supp. 2d at 200 n.3 and 200 n.4.

19

 See McConnell, 540 U.S. at 206 n.17.

B. The WRTL Ads Are Genuine Petitions to the

Government for Redress of Grievances.

Without question, each of the three WRTL ads qualifies as

a First Amendment petition. First, each is a “petition to the

government,” that is, each urged the viewers or listeners as

constituents of the two named senators to communicate to

those senators in their capacity as elected governmental

officials, not as electors to vote for or against either senator as

a candidate for election to federal office.16 Second, each ad

urged the people to seek “redress,”that is, specific action on an

issue currently before the Senate, the very body of government

that had the authority to influence the action necessary to

provide the remedy sought.17 Third, each ad concerned a

“grievance,” namely, a complaint against “a group of

Senators ... using the filibuster delay tactic to block federal

judicial nominees....”18 Thus, the content of the three ads

clearly satisfy the criteria by which a First Amendment petition

has historically been measured. See Mark, “Significance of

Petition,” 66 Fordham L. Rev. at 2173-74. See also Smith,

“Neglected Right of Petition,” 54 U. Cin. L. Rev. at 1178-79.

The FEC and Intervenors would have this Court believe

otherwise, likening the WRTL ads to an ad “exhorting viewers

to ‘call Jane Doe and tell her what you think.’”19 See FEC Br.,

pp. 31, 33; Interv. Br., pp. 22-24. But WRTL’s ads are a far cry

from the so-called sham issue ads upon which the
14

20

 See McConnell, 251 F. Supp. 2d at 304 (Henderson, J.), 532 (KollarKotelly, J.), and 875 (Leon, J.). 

21

 See 251 F. Supp. 2d at 304 (Henderson, J.). See, e.g., the Congressman

Ganske ad quoted in McConnell, 251 F. Supp. 2d at 532 (Kollar-Kotelly, J.)

and 876 (Leon, J.). 

22

 See McConnell, 251 F. Supp. 2d at 304 (Henderson, J.). See, e.g., the

Congressman Hostettler ad quoted in McConnell, 251 F. Supp. 2d at 879

(Leon, J.).

“paradigmatic ‘Jane Doe’ ads” were based. First, such “Jane

Doe” ads were found to be addressed to the people not as

constituents of the elected officials in a position of

governmental authority, but as electors of persons seeking

election to public office, the three-judge district court

determining that the “Jane Doe” paradigm was based upon

“candidate-centered issue advertisements,” not “legislativecentered” ones. See McConnell v. FEC, 251 F. Supp. 2d 176,

881 (D.D.C. 2003) (Leon, J., concurring).20 In contrast, the

WRTL ads were addressed not to Senator Feingold as a

candidate, but to Senators Feingold and Kohl as sitting

Senators, since the two of them, not just the one, were “the

government” to which the petition was directed and in whom

the power to provide the requested relief was vested.

Second, the “Jane Doe” ads did not contain specific requests

for “redress” of “grievances,” but rather generalized

“exhortations”21 or commendations22 directed at both office

holders and challengers. In contrast to such generalities, all

three WRTL ads focused on a specific grievance, coupled with

a specific call to action: 

[A] group of Senators is filibustering —

blocking qualified [judicial] nominees ....

Contact Senators Feingold and Kohl and tell
15

23

 See FEC Br., p. 35.

24

 See FEC Br., p. 36; Interv. Br., pp. 29-30. 

25

 See FEC Br., p. 36, n.9; Interv. Br., pp. 29-30.

26

 See FEC Br., pp. 6 n.2, 36; Interv. Br., p. 31 n.20.

27

 See FEC Br., p. 36; Interv. Br., p. 20.

28

 See FEC Br., pp. 35-36.

them to oppose the filibuster. [WRTL v. FEC,

466 F. Supp. 2d at 200 n.5.]

C. WRTL’s Right to Petition the Government Has

Been Unconstitutionally Abridged.

Both the FEC and the Intervenors have stressed that the

application of BCRA’s “electioneering communication” rules

to the WRTL ads does not impose a “‘complete ban’ on

[WRTL’s] speech.” See Interv. Br., p. 29; FEC Br., p. 7.

Instead, the FEC has claimed that application of BCRA Section

203 to the WRTL ads “imposes relatively minor burdens,”23

while the Intervenors see no “undue burden,” because BCRA

affords WRTL “ample alternative means to disseminate its

message” (see Interv. Br., p. 15), namely, paying for the ads out

of segregated funds,24 or restructuring itself as an “MCFL-type”

organization,25 or using media other than television or radio,26

or omitting any reference “clearly identifying” Senator

Feingold.27 Thus, the FEC has contended that WRTL would

“suffer no substantial impairment of its ability to engage in

issue advocacy,”28 and the Intervenors have claimed that the

“burden” placed by BCRA Section 203 on WRTL’s “First

Amendment rights” is “tolerable in view of the compelling

governmental interest at stake.” See Interv. Br., p. 29. 
16

29

 See Noah Webster, An American Dictionary of the English Language

(photo. reprint 1996) (First edition, 1828).

30

 See FEC Br., pp. 35-36.

31 Intervenors’ argument here is reminiscent of the wartime rationale found

in Korematsu v. U.S., 323 U.S. 214, 216 (1944), that “pressing public

necessity” justified the wholesale segregation of Japanese-Americans

because it was “impossible to bring about an immediate segregation of the

Not once has the FEC or the Intervenors claimed, however,

that the burden imposed by BCRA Section 203 did not

“abridg[e]” WRTL’s petition rights. Yet, that is the ultimate

legal issue in this case. The First Amendment does not secure

the freedoms of speech, press, assembly, and petition against

“complete bans,” or “substantial impairments” or “undue

burdens,” no matter how “tolerable.” Rather, the First

Amendment prohibits “Congress from making any law

abridging” those freedoms. At the time the First Amendment

was ratified, the word “abridging” meant “shortening” or

“lessening,” as well as “depriving” or “debarring.”29 And while

“depriving” and “debarring” connoted a “taking away,”both

terms also meant “hindering from enjoying.” In short, the word

“abridging” would appear to prohibit any “burden” upon the

exercise of one of the specified rights, without regard to

whether it was “undue,” or “substantial,” much less a

“complete ban.” Thus, the FEC’s contention that BCRA’s

Section 203 has placed only “minor burdens on corporate

speakers” or did not “substantial[ly] impair[] its ability to

engage in issue advocacy”30 should be disregarded as irrelevant,

unsupported by the text. 

Equally insupportable in light of the plain meaning of

“abridging” is the Intervenors’ assertion that if Congress has a

“compelling” enough reason, then it may “burden” one or more

of the named freedoms. See Interv. Br., p. 29.31 Rather, as
17

loyal from the disloyal....”

Justice Hugo Black once observed :

[T]he First Amendment’s unequivocal

command that there shall be no abridgment of

the rights of free speech and assembly shows

that the men who drafted our Bill of Rights did

all the “balancing” that was to be done in the

field. [I]t cannot be denied that the very object

of adopting the First Amendment ... was to put

the freedoms protected there completely out of

the area of any congressional control.

[Konigsberg v. State Bar of Calif., 366 U.S. 36,

61, 68 (1961) (Black, J., dissenting)].

Hence, he concluded, the right “to think, speak, or publish ...

cannot be taken away if the Government finds it sufficiently

imperative ... to do so.” Id. at 68.

While the right to petition the government for redress of

grievances is closely related to the freedoms of speech, press

and assembly, it secures a right that is distinct from the other

three and, as affirmed by the English Bill of Rights, absolutely

protected against any government-imposed impediments

upon its exercise. See Smith, “Neglected Right of Petition,” 54

U. Cin. L. Rev. at 1180. Indeed, because the very nature of a

First Amendment petition is addressed to the government, any

effort by the government to limit that right is not only suspect

as self-serving, but violative of the principle of “reciprocal

duties” between the people and their elected officials — the

petitioners, by the petition itself, having acknowledged the

legitimacy of the government, in exchange for their officials’

“listening” to the complaints of their constituents. See Mark,
18

32

 See FEC Br., p. 6 n.2; Interv. Br., p. 31 n.20. 

33

 See Interv. Br., p. 31. While the Intervenors now appear to concede that

the ads could be addressed to both senators, so long as Senator Feingold is

not named, their proposed textual compromise would not appear to satisfy

the FEC’s position that the ad would be permissible only if it “omitted any

reference to Senator Feingold.” See FEC Br., p. 36. 

34 FEC Br., p. 36; see Interv. Br., pp. 29-31.

“Significance of Petition,” 66 Fordham L. Rev. at 2169-70. 

Clearly, BCRA Section 203 impedes WRTL’s efforts to

petition the government. First, it prescribes the medium by

which WRTL may submit its request, having exempted the

“non-broadcast” media, such as “billboards, newspaper and

magazine advertisements, brochures, handbills, ... the telephone

and the Internet,”32 thereby depriving WRTL of access to the

most powerful means by which it may reach the constituents

who are in a position to influence the government action that it

seeks. Second, it prevents WRTL from identifying one of the

two government officials who are in a position to redress

WRTL’s grievance, requiring the ads to be addressed either to

one Senator only or, if to both, identifying Senator Feingold as

the unknown Senator.33 Third, it dictates how the citizens who

met to form WRTL are permitted to organize and finance their

efforts if they wish to participate fully in the give-and-take

process by which public policy decisions are made, requiring

it to participate in the on-going process of government in the

same way as it would be permitted to participate in the electoral

process alone.34

Efforts by Congress to impede input from citizens are not

new. In 1840, the U.S. House of Representatives adopted its

notorious Rule XXI, banning abolitionist or anti-slavery

petitions from being received or entertained. See
19

Congressional Globe, 26th Congress, 1st Session (Jan. 28,

1840). Spearheaded by the efforts of Congressman John

Quincy Adams, this rule was abolished on December 3, 1844,

in recognition of the reciprocal duty imposed upon the House

by the petition guarantee. See III Cyclopedia of Political

Science, Political Economy, and the Political History of the

United States, § 53 (J.J. Lalor, ed., New York: 1899).

Certainly Adams’s success in restoring the operative

principle of “reciprocal duty” to the popular petition process in

the House constituted a signal victory that government officials

do not stand in loco parentis over the people who put them

there. However, that principle now again is in jeopardy, put at

risk by Congressional Intervenors who chafe under the

limitations on their power imposed by the First Amendment,

and also threatened by the instrumentality that they created to

regulate the political process by which they may be challenged

for reelection. By this point in American history, it would be

naive indeed to assume that those who write the laws are not

tempted to tailor the rules of politics so as to minimize

unwanted criticismfromawell-organized and funded citizenry.

Indeed, the threat has become so great that it may well be that

the principal concern regarding corruption in government is

that which would inevitably follow Congress being given free

reign to regulate and even criminalize constitutionallypermitted participation in the political process. After popular

election, Members of Congress have a continuing duty at least

to tolerate any lawful input from their constituents and the

people by organizational and financial means not regulated by

Congress. Properly applied in this case, the petition guarantee

serves as an “external control” to guard against “the abuses of

government,” in recognition of the fact, as James Madison

reminded us, that men are not “angels.” See Federalist 51

reprinted in The Federalist, p. 269 (G. Cary and J. McClellan,

eds., Indianapolis: 2001). 
20

III. AS APPLIED, BCRA SECTION 203 ABRIDGES

THE RIGHT OF WRTL PEACEABLY TO

ASSEMBLE.

Historically, the right of the people to petition the

government for redress of grievances has been linked to the

right of the people to assemble. See 2 J. Story, Commentaries

on the Constitution Section 1893 (5th ed. 1891). After all, the

right to petition was usually exercised by a personal gathering

of people, physically assembled to submit the petition to the

government official(s) with authority to provide the requested

redress. See Edwards v. South Carolina, 372 U. S. at 235.

And, as Justice Story observed, the right of assembly when

coupled with the right of petition “results from the very nature

of [a republican government’s] structure and institutions.” J.

Story, Commentaries on the Constitution at Section 1894. 

As long as an assemblage is conducted in an orderly and

peaceful way, and as long as it promotes lawful change of

government policy — such as was the case involving the

WRTL ads — there is no constitutional justification for

interference with such an assemblage for the “very idea of a

government, republican in form, implies a right on the part of

its citizens to meet peaceably for consultation in respect to

public affairs and to petition for a redress of grievances.” See

United States v. Cruikshank, 92 U.S. 542, 552 (1875).

Neither the FEC nor the Intervenors have claimed that the

WRTL ads threatened a breach of the peace or called for

anything but peaceable political action. Yet, according to their

“constitutional” perspective, Congress may authorize

imposition of serious civil penalties — or in the case of an

allegedly knowing and willful violation, even criminal fines

and imprisonment — against any person or entity that would

broadcast an ad such as WRTL’s during the forbidden 30-day
21

35

 DeJonge v. Oregon, 299 U.S. 353, at 366 (1937).

and 60-day election periods. See generally 2 U.S.C. § 437g.

In essence, the FEC and the Intervenors would brand

organizations like WRTL as political outlaws, ineligible to

participate fully in the process by which public policy is

formulated and implemented.

The only justification provided by the FEC and the

Intervenors to thwart WRTL’s ads is the claim that the ads

really intended to influence, and will have the effect, of

influencing the 2004 Wisconsin election. See FEC Br., pp. 43-

49; Interv. Br., pp. 21-28. But neither claims that such

influence would corrupt or have the appearance of

corrupting that election. Instead, both assumed that, if the

election were influenced, necessarily it would be corrupted, or

at least give the appearance of corruption, because the ads were

paid for, in part, by monies drawn from the general treasuries

of some unnamed business corporations. 

According to the FEC and the Intervenors, the WRTL ads

could have been broadcast under different auspices, i.e., by

WRTL’s PAC or by a WRTL restructured as a “MCFL-type”

organization. See FEC Br. 36, and n. 9; Interv. Br., pp. 29-31.

However, the Intervenors’ and the FEC’s effort here to

disqualify WRTL fromfull participation in the political process

because its ads were funded, in part, by monies drawn from the

general treasuries of business corporations is reminiscent of

past unconstitutional efforts, such as that to prohibit the

Communist Party — an organization dedicated to the violent

overthrow of the government — from sponsoring a peaceful

assembly called “to discuss the public issues of the day ... in a

lawful manner, without incitement to violence or crime, to seek

redress of alleged grievances”35:
22

36

 See WRTL v. FEC, 466 F. Supp. 2d at 207-208.

The question, if the right[] of ... peaceable

assembly [is] to be preserved is not as to the

auspices under which the meeting is held, but

as to its purpose.... [Id. at 365 (emphasis

added).]

There is no question that, objectively, the purpose of the

WRTL ads, as found by the district court, was a lawful one,

namely, to seek legislative action to end the judicial filibuster

issue then before the Senate of the United States,36 not to

corrupt the electoral process as a conduit for the “funneling [of]

unregulated monies to an advocacy group to pay for ads that

will influence a federal election,” as the Intervenors have

erroneously presumed. See Interv. Br., p. 30. 

IV. AS APPLIED, BCRA SECTION 203 ABRIDGES

WRTL’S FREEDOM OF SPEECH. 

The FEC and the Intervenors have asserted that, while the

WRTL ads on their face may appear to be issue advocacy —

presumably protected by the freedom of speech — if read in

context, subjectively they are electoral advocacy, outside First

Amendment protection. See FEC Br., 19-20, 36-48; Interv. Br.,

pp. 15-16, 21-28. Thus, the FEC and Intervenors have faulted

the district court for failure to inquire into the factual milieu

surrounding the broadcast of the ads, with special emphasis

upon WRTL’s PAC activities opposing the reelection of

Senator Feingold and documenting Senator Feingold’s support

of judicial filibusters. See FEC Br., pp. 8-11, 19-20, 40-43;

Interv. Br., pp. 2-3, 9-11, 13-14, 15-16, 21-28. However, the

FEC has failed to put in place the constitutionally-required free

speech procedures by which one might obtain review of a
23

37

 Id., 380 U.S. at 58.

proposed issue ad in a timely way, thereby ensuring that an

issue ad that was not intended to influence an election, nor have

such an effect, could be broadcast during the 30-day or 60-day

periods governed by BCRA’s Section 203.

Forty-two years ago, in Freedman v. Maryland, 380 U.S. 51

(1965), this Court faced a similar problem in the enforcement

of a Maryland motion picture obscenity censorship statute.

Prior to Freedman, this Court had rejected a facial challenge to

“a requirement of submission of motion pictures in advance of

exhibition,” similarto the requirement in the Maryland statute.”

Id., 380 U.S. at 53. In Freedman, however, the Court rejected

the claim that the prior facial ruling provided the standard by

which to measure the constitutionality of the Maryland statute,

as applied. Rather, the Court turned its attention to the

“procedure for an initial decision by the censorship board” to

ascertain whether that procedure “presents a danger of unduly

suppressing protected expression.” Id., 380 U.S. at 54. After

finding that the statute failed (a) to “put[] the [initial] burden of

proving that the film is unprotected expression ... on the

censor” and (b) to ensure a prompt “judicial determination in

an adversary proceeding [which alone] ensures the necessary

sensitivity to freedom of expression,”37 the Freedman Court

concluded that “the Maryland apparatus of censorship ...

operates in a statutory context in which judicial review may be

too little and too late,” because, in effect, it conferred upon the

censorship board “excessive administrative discretion.” Id.,

380 U.S. at 57 (emphasis added).

In like manner here, the procedure available to WRTL to

obtain review of its proposed ads before the 30-day and 60-day

periods expired would have been “too little and too late.” As
24

38 CU, one of the amici which produces and distributes documentary films

as an important part of its educational activities, has already experienced

such a deprivation of its First Amendment rights. With respect to the

broadcast of such a film produced in 2004 — Celsius 41.11 — CU sought

from the FEC recognition that the film (and advertising therefor), although

mentioning candidates for federal office, were not electioneering

communications because of the media exemption set forth in 11 C.F.R.

§ 100.29(c)(2). In Advisory Opinion (“AO”) 2004-30 (Sept. 10, 2004),

however, the FEC denied the exemption for the CU film on the grounds that

the broadcasts would meet all of the definitional elements of an

“electioneering communication” and CU “does not regularly produce

documentaries or pay to broadcast them on television.” Id. It would have

been virtually impossible to obtain a judicial review of that determination

within the next few weeks. As a consequence, CU was prohibited from

broadcasting either the film or advertising for the film in the weeks

preceding the 2004 presidential election with footage of President George

W. Bush and Senator John F. Kerry. Both CU and CUF have produced a

number of award-winning documentary films since that time, and other films

— some of which mention current as well as potential candidates for federal

office — are currently in production.

the district court found, “it is entirely unreasonable, if not

fanciful, to expect that [WRTL] could have obtained complete

judicial review of its claims in time for it to air its ads during

the 30 and 60-day periods leading up to federal primary and

general elections ... in 2004,” even “pursuant to BCRA section

403(a)(4) [which] expedited the disposition of this matter ‘to

the greatest possible extent....’” WRTL v. FEC, 466 F. Supp.

2d at 202. Even if WRTL had sought an advisory opinion from

the FEC, as provided in 2 U.S.C. Section 437f(a)(1), it would

have faced a 60-day period before the FEC would be obligated

to render such an opinion and, if adverse or indecisive, WRTL

would then have the burden of having to file for judicial review

under BCRA Section 403(a)(4).38 Thus, as was the case in

Freedman v. Maryland, BCRA “lacks sufficient safeguards for

confining [FEC’s] action to judicially determined

constitutional limits.” See id., 380 U.S. at 57 (emphasis

added). Without such safeguards in place, the FEC’s and
25

39

 See WRTL II, 466 F. Supp. 2d at 207.

40 In McConnell, one group of the party plaintiffs (which included three of

the amici filing this brief) relied expressly upon the freedom of the press in

its facial challenge to BCRA Section 203. See, e.g., Brief for Appellants

Congressman Ron Paul, et al., No. 02-1747 (S.Ct.), July 8, 2003, pp. 13-16.

Unfortunately, this claim was overwhelmed by the “overbreadth” claim

raised by the other parties, lost in the shuffle, not analyzed and summarily

dismissed in a footnote which did not even identify the party which had

Intervenors’ insistence upon a thorough contextual inquiry into

the intent and effect of WRTL’s ads would result in greater

constitutional protection being provided to the purveyors of

pornography than that available to the people engaged in core

political speech. 

V. AS APPLIED, BCRA SECTION 203 ABRIDGES

WRTL’S FREEDOM OF THE PRESS.

Additionally, BCRA Section 203 runs afoul of WRTL’s

rights under the freedom of the press. While WRTL did not

explicitly refer to the press freedom in its complaint, the district

court resolved WRTL’s claim according to “decades of First

Amendment jurisprudence,”39 relying heavily upon Thomas v.

Collins, which stated:

It was not by accident or coincidence that the

rights to freedom in speech and press were

coupled in a single guaranty with the rights of

the people peaceably to assemble and to petition

for redress of grievances. All these, though not

identical, are inseparable. They are cognate

rights.... [Id., 323 U.S. at 530.]

Thus, the freedom of the press, as well as the freedoms of

speech, assembly and petition, is properly before this Court.40
26

raised the issue, stating only that the issue “lacks merit.” 540 U.S. 93, 209

n.89. However, this as-applied challenge demonstrates the continuing

relevance of the press right in relation to the enforcement of campaign

finance law. 

41 For example, freedom of the press is referenced only twice in Buckley v.

Valeo, 424 U.S. at 92, 127 n.93.

42

 See FEC v. Phillips Publishing Co., 517 F. Supp. 1308, 1312 (D.D.C.

1981).

43

 See 2 U.S.C. § 431(9)(B)(i) and 11 C.F.R. §§ 100.73 and 100.132.

44

 See also 11 C.F.R. § 100.29(c).

Although frequently overlooked in campaign finance

litigation,41 the freedom of the press was recognized by

Congress to apply to the electoral process in the Federal

Election CampaignAct of 1971, as amended (“FECA”), having

exempted virtually all funds spent by the institutional media42

in relation to federal elections from FECA coverage.43 In

BCRA, Congress used similar language to exempt the

institutional media from its definition of “electioneering

communication,” excluding: “(i) a communication appearing

in a news story, commentary, or editorial distributed through

the facilities of any broadcasting station, unless such facilities

are owned or controlled by any political party, political

committee, or candidate....” BCRA Section 201(a); 2 U.S.C.

§ 434(f)(3)(B)(i) (emphasis added).44

Because the WRTL ads were neither broadcast as a news

story, commentary, or editorial nor distributed through the

facilities of any broadcasting station, they were not protected by

this exemption. But the constitutional press freedom is not

limited to the institutional press. Rather, it is a right belonging
27

45 See IV W. Blackstone, Commentaries on the Laws of England, pp. 151-

52 (U. of Chi. Press, Facsimile. Ed.: 1769) (“Every freeman has an

undoubted right to lay what sentiments he pleases before the public; to

forbid this, is to destroy the freedom of the press.”) (emphasis added). 

46 It has been suggested that the reason the institutional press generally

supports campaign finance reform is that this would give them a speech and

press advantage over other communicators. See Joshua L. Shapiro,

Corporate Media Power, Corruption, and the Media Exemption, 55 Emory

L.J. 161 n.22 (2006); Lillian BeVier, Campaign Finance Regulation: Less,

Please, 34 Ariz. St. L.J. 1115 (2002); see generally Richard L. Hasen,

Campaign Finance Laws and the Rupert Murdoch Problem, 77 Tex. L.

Rev. 1627, 1664 (“There is no surer way to turn the press against campaign

finance reform than to subject the press to new restrictions.”).

47

 See also Austin v. Michigan State Chamber of Commerce, 494 U.S. 652

at 691 (1990) (Scalia, J., dissenting) (“We have consistently rejected the

proposition that the institutional press has any constitutional privilege

beyond that of other speakers.”).

48

 See Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).

“Wisely, in my view, Justice Powell does not rest his application of a

different rule here on a distinction drawn between media and nonmedia

defendants.” Id. at 773 (White, J., concurring). See also id. at 783-84

(Brennan, J., dissenting). 

to all of the people,45 and Congress is wholly without power to

discriminate in favor of that segment of the press which has the

most effective lobbyists and lawyers to ensure its protection.46

As Justice Frankfurter observed in Pennekamp v. Florida, 328

U.S. 331, 364 (1946) that “[T]he purpose of the Constitution

was not to erect the press into a privileged institution but to

protect all persons in their right to print what they will as well

as to utter it. ‘...the liberty of the press is no greater and no less

...’ than the liberty of every citizen of the Republic.”47 Id. at

802. Thus, outside the area of campaign finance, this Court has

refused to differentiate between media and nonmedia

defendants.48 Indeed, in Pacific Gas & Electric Co. v. Public
28

49 “The concerns that caused us to invalidate the compelled access rule in

Tornillo apply to appellant [a public utility corporation] as well as to the

institutional press.” Pacific Gas & Electric, supra, 475 U.S. 1, 11.

Utilities Commission, 475 U.S. 1 (1986), the Court applied to

a public utility company the freedom of the press principles it

had earlier applied to a newspaper in Miami Herald Publishing

Co. v. Tornillo (418 U.S. 241 (1974)).49

Even the FEC itself has applied the statutory press

exemption beyond the institutional press. In Matter Under

Review (“MUR”) 2607, the FEC determined that an in-flight

magazine distributed by Northwest Airlines, Inc. should be

dismissed due to the press exemption, even though it was not

part of the institutional press. Similarly, in MUR 5315, the

FEC decided to take no action against Wal-Mart Stores, Inc. for

publishing a magazine which appeared to reproduce certain

portions of the campaign literature of a candidate for the U.S.

Senate. At that time, three of the six commissioners issued a

Statement of Reasons which took the view that “the press

exemption should be broadly construed to insulate the content

of publications (and editorial judgment of publishers) from

regulation.” Statement of Reasons for MUR 5315, p. 5 (Aug.

25, 2003). Also, in AO 2005-16, the FEC applied a two-step

test to determine that the press exemption covered websites

owned by a corporation which disseminated stories,

commentary, or editorials, even if it evidenced “a lack of

objectivity” or even if it “expressly advocates the election or

defeat of a clearly identified candidate for federal office.” AO

2005-16, p. 6. 

Only if the freedom of the press were merely a discretionary

matter of legislative grace would the FEC have the latitude to

confer it solely upon the institutional press while regulating all

other publications. And, as Justice Thomas pointed out in his
29

50

 See CBS v. Dem. Nat’l.Comm., 412 U.S. 94, 148-70 (1973) (Douglas, J.,

concurring).

51

 See Near v. Minnesota, 283 U.S. 697, 712-14 (1931); New York Times

v. United States, 403 U.S. 713, 717-19, 723-25, 733 (1971).

52

 See Miami Herald v. Tornillo, 418 U.S. at 241, 247-54, 256, 258 (1974).

McConnell dissent, if the current press exemption in the

nation’s campaign finance law is not rooted in freedom of the

press, but rather based solely upon the wisdom and experience

of Congress, then even the institutional press exemption may

be in jeopardy:

Media companies can run procandidate

editorials as easily as nonmedia corporations

can pay for advertisements. Candidates can be

just as grateful to media companies as they can

be to corporations and unions.... Media

corporations are influential. There is little

doubt that the editorials and commentaries they

run can affect elections. [McConnell, 540 U.S.

at 283-84 (Thomas, J., dissenting).]

Under the current press exemption, the FEC could not

dictate to a radio or television station the content of its

editorials or commentaries on the ground that they were

intended to influence, and had the effect of influencing, an

election.50 Indeed, such an interference with the station’s

editorial judgment would violate the freedom of the press,

because this Court has insisted that the freedom of the press

protects the “editorial function” of the publisher or

disseminator from government censorship, whether the power

to censor be exercised to edit out,51 or to edit in.52 Additionally,

the autonomy of editorial control is also violated by a
30

53 Federal election law has long been employed to protect incumbents by

granting candidates an exclusive “trademark” on the use of their name by

prohibiting an entity other than a candidate’s authorized committees to use

a candidate’s name. 2 U.S.C. § 432(e)(A)(4). Therefore, today it is illegal

for citizens to organize themselves politically under a name which clearly

communicates their purpose to defeat an incumbent, such as “Citizens

Against John Smith,” even “Citizens For Jane Doe” being prohibited. 

regulation which impairs the financial ability of a person to

exercise editorial control. See Miami Herald, 418 U.S. at

255-58. The electioneering communication provisions of

BCRA as applied to WRTL violate WRTL’s editorial control

over the message it wants to communicate, by limiting the use

of a candidate’s name and by imposing financial conditions

upon its right as a “freeman ... to lay what sentiments he

pleases before the public.” See IV Blackstone’s

Commentaries, p. 151 (emphasis added).

Although the consequence of properly applying freedom of

the press beyond the institutional press to every “freeman”

would profoundly affect the area of campaign finance,53 it

would do no more than require the Congress to live within its

constitutional limitations while allowing the restoration of the

unfettered liberty of the people to participate in both choosing

and then influencing their elected officials. 

CONCLUSION

For the reasons stated in Parts I A. and B., and II through IV,

the ruling of the district court should be affirmed. For the

reasons stated in Parts I C. and V., McConnell and Buckley

should be reconsidered, and the ruling of the district court

should be affirmed on grounds that BCRA Section 203 violates

WRTL’s freedom of the press. 
31

Respectfully Submitted,

MICHAEL BOOS HERBERT W. TITUS*

 4101 Chain Bridge Road WILLIAM J. OLSON

 Suite 313 JOHN S. MILES

 Fairfax, VA 22030 JEREMIAH L. MORGAN

 (co-counsel Citizens United WILLIAM J. OLSON, P.C.

& Citizens United Found.) 8180 Greensboro Drive

MARK B. WEINBERG Suite 1070

WEINBERG & JACOBS, LLP McLean, VA 22102

11300 Rockville Pike (703) 356-5070

Suite 1200

Rockville, MD 20852 Attorneys for Amici Curiae

(co-counsel Free Speech *Counsel of Record

Coalition & Free Speech

 Defense & Education Fund)

March 23, 2007