Nos. 06-969 & 06-970

In The

Supreme Court of the United States

____________

FEDERAL ELECTION COMMISSION, Appellant

v.

WISCONSIN RIGHT TO LIFE, INC., Appellee

____________

SEN. JOHN MCCAIN ET AL., Intervenor-Appellants

v.

WISCONSIN RIGHT TO LIFE, INC., Appellee

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief for Appellee

____________

M. Miller Baker

Michael S. Nadel

MCDERMOTT WILL & EMERY LLP

600 Thirteenth Street, NW

Washington, DC 20005-3096

202/756-8000 

202/756-8087 (facsimile)

Counsel for WRTL

March 2006

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Raeanna S. Moore 

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

812/235-3685 (facsimile)

Lead Counsel for WRTL
i

QUESTIONS PRESENTED

1. Whether this case is within the exception to mootness for

matters capable of repetition yet evading review.

2.Whether the electioneering communication prohibition at

2 U.S.C. § 441b is unconstitutional as applied to the facts of

this case, and particularly

(a) the three specific grassroots lobbying broadcast communications sponsored by Wisconsin Right to Life, Inc.

(“WRTL”) here and/or

(b) genuine grassroots lobbying communications,

with any communications to be funded from a general corporate

account or, alternatively, from a separate bank account to which

only qualified individuals may donate, as defined in 2 U.S.C.

§ 434(f)(2)(E).

3. Whether this Court’s facial upholding of the electioneering communication prohibition in McConnell v. FEC, 540 U.S.

93 (2003), must be overturned because (a) Appellants insist that

WRTL’s ads are in the “heartland” or “core” of what Congress

intended to restrict with the electioneering communication

prohibition and (b) in practice the remedy of as-applied

challenges to protect genuine issue ads has proven inadequate.
ii

CORPORATE DISCLOSURE STATEMENT

Wisconsin Right to Life, Inc. has no parent corporation and

is a nonstock corporation, so no publicly held company owns

ten percent or more of its stock. Rule 29.6.
iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................ i

CORPORATE DISCLOSURE STATEMENT ........... ii

TABLE OF AUTHORITIES ....................... vi

STATEMENT .................................... 1

1. Roots of This Case ........................... 1

2. Present Appeals ............................. 8

SUMMARY OF THE ARGUMENT ................. 24

ARGUMENT ................................... 25

I. This Case Is Within the Mootness Exception. ........ 25

II. Strict Scrutiny Applies. ......................... 29

A. Self-Government Right. ...................... 30

B. Expression Right. ........................... 30

C. Expressive Association Right. ................. 30

D. Petition Right. ............................. 31

E. PAC Mandates Trigger Strict Scrutiny. .......... 33

F. McConnell Employed Strict Scrutiny. ........... 35
iv

G. McConnell Did Not Create an Intent-and-Effect

Test. .................................... 36

H. McConnell Did Not Shift the Burden of Proof. .... 39

I. The Avoidance-Option Is Inadequate. ........... 43

1. Not Broadcasting Is Inadequate. ............ 44

2. Non-Incorporation Burdens the Association

Right. ................................ 44

3. Other Times Are Inadequate. ............... 45

4. Not Naming a Candidate Is Inadequate. ....... 45

5. Not Targeting Is Inadequate. ............... 46

III. The Prohibition Fails Strict Scrutiny as Applied. ..... 46

A. Asserted Interest. ........................... 46

B. Narrow Tailoring. .......................... 47

C. Less Restrictive Means. ...................... 48

D. McConnell’s Other Concerns Not Implicated. .... 49

IV. Genuine Issue Ads Can Be Adequately Identified

and Exempted from the Prohibition. ........... 50

A. The Unfulfilled Promise. ..................... 50

B. The Concession. ........................... 53
v

C. Cognizable Effect. .......................... 54

D. The Prototype. ............................. 55

E. WRTL’s Ads Meet the PBA Ad Test. ............ 57

F. The FEC’s Erroneous Subjective Intent Test. ..... 59

V. McConnell’s Facial Upholding Should Be Overturned. 62

A. Appellants Put McConnell at Issue. ............ 62

B. The As-Applied Remedy Is Inadequate. .......... 65

C. Absent Clear Protection for Grassroots Lobbying,

McConnell’s Facial Upholding Should Be Overturned. .................................. 68

CONCLUSION ................................. 69
vi

TABLE OF AUTHORITIES

Cases

 Abrams v. United States, 250 U.S. 616 (1919) .......... 2

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

........................................... 68

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652

(1990) ................................... 35, 47

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289

(1979) ...................................... 27

BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) ... 31, 61

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731

(1983) ...................................... 61

Boy Scouts of America v. Dale, 530 U.S. 640 (2001). .... 31

Bridges v. California, 314 U.S. 252 (1941) ............. 4

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .... 41, 63, 65

Brown v. Socialist Workers ’74 Campaign Comm. (Ohio),

459 U.S. 87 (1982) ............................ 43

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

Cal. Med. Assoc’n v. FEC, 453 U.S. 182 (1981) ..... 18, 59

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S.

508 (1972) ............................... 32, 61
vii

Carroll v. President & Comm’rs of Princess Anne, 393 U.S.

175 (1968) .................................. 67

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)

........................................... 28

Christian Civic League of Maine, Inc. v. FEC (No. 06-589)

.................................... passim

Christian Civic League of Maine, Inc. v. FEC, 433 F. Supp.

2d 81 (D.D.C. 2006) ....................... 58, 66

Coates v. City of Cincinnati, 402 U.S. 611 (1971) .... 62, 64

Dombroski v. Pfister, 380 U.S. 479 (1965) ............ 66

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

Inc., 365 U.S. 127 (1961) .............. 31-32, 48, 61

FECv. Massachusetts Citizens for Life, 479 U.S. 238 (1986)

....................... 6, 33, 34, 43, 47, 49, 58, 61

FEC v. National Conservative PAC, 470 U.S. 480 (1985)

........................................... 33

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

.......................... 5, 18, 27-30, 32, 47, 49

Healy v. James, 408 U.S. 169 (1972) ................. 60

Helvering v. Hallock, 309 U.S. 106 (1940) ............ 69

Lawrence v. Texas. 539 U.S. 558 (2003) ........... 69-70
viii

Liberty Lobby, Inc. v. Pearson, 390 F. 2d 489 (D.C. Cir.

1968) ...................................... 31

Los Angeles v. Lyons, 461 U.S. 95 (1983) ............. 28

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) 

................. 7, 9, 22, 39, 41, 44- 46, 49, 56, 57

McConnell v. FEC, 540 U.S. 93 (2003) ........... passim

Members of City Council v. Taxpayers for Vincent, 466

U.S. 789 (1984) .............................. 64

Meyer v. Grant, 486 U.S. 414 (1988) ................. 45

Mine Workers v. Pennington, 381 U.S. 657 (1965) ...... 61

Murphy v. Hunt, 455 U.S. 478 (1982) ................ 27

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)

........................................... 43

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .... 67

New York Club Ass’n, Inc. v. City of New York, 487 U.S. 1

(1988) ...................................... 65

New York Times v. Sullivan, 376 U.S. 254 (1964) ... 2-5, 32

New York v. Ferber, 458 U.S. 747 (1982) ............. 65

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

........................................... 31

Payne v. Tennessee, 501 U.S. 808 (1991) ............. 69
ix

Randall v. Sorrell, 126 S. Ct. 2479 (2006) ............. 69

Republican Party of Minn. v. White, 536 U.S. 765 (2002)

........................................ 33, 47

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980) ...................................... 68

Roberts v. United States Jaycees, 468 U.S. 609 (1984) ... 31

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

........................................ 68, 69

Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147

(1969) ...................................... 68

Smith v. Allwright, 321 U.S. 649 (1944) .............. 69

Speiser v. Randall, 357 U.S. 513 (1958) .............. 60

Storer v. Brown, 415 U.S. 724 (1974) ................ 26

Thomas v. Collins, 323 U.S. 516 (1945) ............... 6

Vance v. Universal Amusement Co., 445 U.S. 308 (1980) . 67

Vasquez v. Hillery, 474 U.S. 254 (1986) .............. 69

Virginia v. Hicks, 539 U.S. 113 (2003) ............ 63, 66

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 126 S.

Ct. 1016 (2006) ................ 7, 10, 36, 40, 41, 53
x

Constitution, Statutes, Regulations & Rules

1 Stat. at Large 596 ............................... 2

2 U.S.C. § 431(8) ................................. 9

2 U.S.C. § 434(f) ................................ 39

2 U.S.C. § 434(f)(2)(E) ........................... 48

2 U.S.C. § 434(f)(3) .............................. 61

2 U.S.C. § 434(f)(3)(B)(iv) ........................ 52

2 U.S.C. § 441b .......................... i, 5, 43, 60

26 U.S.C. § 501(c)(3) ............................. 35

26 U.S.C. § 501(c)(4) ............................. 51

26 U.S.C. § 527 .............................. 34, 51

11 C.F.R. § 100.29 ............................... 61

11 C.F.R. § 114.1(e)(1) ............................ 34

11 C.F.R. § 114.1(e)(2) ............................ 34

11 C.F.R. § 114.6 ................................ 35

11 C.F.R. § 114.7(a) .............................. 34

26 C.F.R. § 1.501(c)(3)-1(a)(i) ...................... 34

67 Fed. Reg. 51131 .............................. 52
xi

Alaska Stat. § 15.13.400(5) ........................ 69

Ariz. Civ. Stat. Ann. § 16-901.01 ................... 69

BCRA § 203 ..................................... 5

BCRA § 403(a)(4) ............................... 27

Bipartisan Campaign Reform Act of 2002 ........ passim

Cal. Gov. Code § 85310 ........................... 69

Colo. Const. Art. XXVIII, § 2(7) .................... 69

Conn. Gen. Stat. § 9-333c ......................... 69

Electioneering Communications, 67 Fed. Reg. 65190 (Oct.

23, 2002) ................................... 52

Federal Election Campaign Act of 1971 ............... 1

Fl. Stat. § 106.011(18) ............................ 69

Guam Code Ann. tit.3, § 19112.1 ................... 69

Hi. Code R. § 11-207.6 ........................... 69

Idaho Code Ann. § 67-6602(f)10 .................... 69

Ill. Comp. Stat. 5/9-1.14 ........................... 69

N.C, Gen. Stat. § 163-278.80(2) .................... 69

Okla. Stat. tit. 74, § 257:1-1-2 ...................... 69
xii

S.C. Code Ann. § 8-13-1300(31)(c) .................. 69

Taft-Hartley Act of 1947 ........................... 1

Tillman Act of 1907 ............................. 1, 6

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

U.S. Const. amend. X. ............................ 30

U.S. Const. amend XIV ........................... 30

U.S. Const. amend. XVII. ......................... 30

U.S. Const. art. I, § 1 ............................. 30

U.S. Const. art. I , § 1 ............................. 30

U.S. Const. art. IV, § 4 ............................ 30

Vt. Stat. Ann., Titl 17 § 2891 ....................... 69

Wash. Rev. Code § 42.17.020(20) ................... 69

W. Va. Code § 3-8-1A(10) ......................... 69

Other Authorities

147 Cong. Rec. S2458 ............................ 51

147 Cong. Rec. S2813 ............................ 51

147 Cong. Rec. S2846 ............................ 51
xiii

The American National Election Studies, “Trust in Government Index 1958-2004” http://www.electionstudies.org/nesguide/toptable/tab5a_5.htm. ............ 6

William Blackstone, Commentaries on the Laws of England, Book IV (T. Cooley, ed.: 2d ed., rev. ed. 1872) . . 2

James Bopp, Jr. & Richard E. Coleson, Distinguishing

“Genuine” from “Sham” in Grassroots Lobbying:

Protecting the Right to Petition During Elections, 29

Camp. L. Rev. 353 (2007), http://www.law.campbell.edu/pubs/articles.cfm. ........ 8, 23, 39, 42, 51-57

Detailed Comments of BCRA Sponsors Senator John

McCain, Senator Russ Feingold, Representative Christopher Shays, Representative Marty Meehan, Senator

Olympia Snowe, and Senator James Jeffords (attached

to Letter from Sen. John McCain, Sen. Russell D.

Feingold, et al. to Mai T. Dinh of the FEC (Aug. 23,

2002)), http://www. fec.gov/pdf/nprm/electioneering_comm/comments/us_cong_members.pdf. . 52, 54

FEC Advisory Opinion 2004-31 .................... 53

Richard L. Hasen, Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of

Campaign Finance Laws Targeting Sham Issue Advocacy, 85 Minn. L. Rev. 1773 (2001) .............. 48

Helen Devar, Senate Democrats Block 3 More Bush Judicial Nominees, Washington Post, July 23, 2004 ...... 8

IRS Rev. Rul 2004-6 ............................. 34

John C. Jeffries, Jr., Rethinking Prior Restraint, 92 Yale L.
xiv

J. 409 (1983) ................................ 68

Paul Kane, Fall Showdown Seen on Judges, Roll Call, July

21, 2004, at 1 .............................. 8, 15

Paul Kane, GOP Cools to Judicial Gambit, Roll Call, Sep.

13, 2004 .................................... 15

Paul Kane & Mark Preston, Fourteen Senators Sign Off on

Compromise, Roll Call, May 23, 2005 ............ 16

John Milton, Aeropagitica (John W. Hales, ed., 3d. ed.

1882) ....................................... 1

John E. Nowak, Ronald R. Rotunda & J. Nelson Young,

Constitutional Law (3d ed. 1986) ............... 1, 2

‘Nuclear’ Truce, Roll Call, Nov. 17, 2004 ............. 16

Bradley A. Smith & Jason Robert Owen, Boundary Based

Restrictions in Unbounded Broadcast Media Markets:

McConnell v. FEC’s Underinclusive Overbreadth

Analysis, 20 Stan. L. & Pol’y Rev. 101 (2007) ... 30-31
1

In the Middle Ages, religious authority established political authority,

and religious and governmental authorities who believed that they ruled

infallibly by divine right sought to suppress popular opinion. John E. Nowak,

Ronald R. Rotunda & J. Nelson Young, Constitutional Law at 830 (3d ed.

1986) [hereinafter Nowak, Rotunda & Young, Constitutional Law]. “Dissent

from this authority meant not only to be wrong, but to be damned.” Id. As

governments became less accountable to religious authorities, government

officials yet felt it “essential . . . that the popular opinion of the government

be preserved” to facilitate taxation and conscription. Id. (citation omitted).

2A leading light in the reform effort that ultimately led to the First

Amendment was John Milton, who battled English censors and wrote this

eloquent defense of liberty in 1644: “[T]hough all the windes of doctrin were

let loose to play upon the earth, so Truth be in the field, we do injuriously,

by licencing and prohibiting, to misdoubt her strength. Let her and Falshood

grapple; who ever knew Truth put to the wors in a free and open encounter?”

John Milton, Aeropagitica 51-52 (John W. Hales, ed., 3d. ed. 1882).

STATEMENT

1. Roots of This Case. The deep roots of this case lie not in

the Bipartisan Campaign Reform Act of 2002, the Federal

Election Campaign Act of 1971, the Taft-Hartley Act of 1947,

the Tillman Act of 1907, nor even the First Amendment, but in

the struggle of the Anglo-American people to (a) establish

themselves as sovereign and (b) curb the power of government

officials to prevent the people from criticizing official actions.1

“[I]n the three centuries prior to the Declaration of Independence, the King required the suppression of ideas antagonistic to the Crown” by sedition laws, control of the press, and

constructive treason. Nowak, Rotunda & Young, Constitutional

Law at 830. The Star Chamber developed the doctrine that the

King originated justice and was above criticism, without regard

to truth (truth merely enhanced the libel). Id. at 831 (citations

omitted). There was also the prior restraint of government

licensing before publication could be lawful. Id.2
2

3By 1765, when Blackstone first published his Commentaries, the battle

against prior restraints had been largely won, but publishers were yet subject

to seditious libel laws. Nowak, Rotunda & Young, Constitutional Law at

832-33 (citing Commentaries on the Laws of England, Book IV pp. *151-52

(T. Cooley, ed.: 2d ed., rev. ed. 1872)).

4These visionaries saw that “a central value of the free press, speech,

and assembly lies in ‘checking’ the abuse of power by government officials”

and it is necessary to avoid the “slippery slope” of giving government power

to restrict speech “when a government’s natural inclination is moving the

line towards more suppression of criticism and unpopular ideas.” Nowak,

Rotunda & Young, Constitutional Law at 836.

5The Act barred “publishing any false, scandalous and malicious writing

. . . against the government . . . , or . . . Congress . . . or the President

. . . with intent to defame . . . or to bring them . . . into contempt or disrepute

. . . .” 1 Stat. at Large 596 (truth was a defense).

These oppressive practices were carried into the American

colonies, as was the original reform movement, which was the

effort to restrict the government’s ability to prevent the people

from discussing public issues and public officials’ conduct of

their office. Id. at 832.3

 The Framers of the American Constitution protected the people by limiting government powers, and

in 1791 the people ratified the First Amendment, mandating

that “Congress shall make no law . . . abridging the freedom of

speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of

grievances.” U.S. Const. amend. I. This great reform victory

was aimed directly at halting incumbent politicians’ efforts to

silence criticism about their actions.4 America had adopted the

marketplace of ideas. See Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting) (“the best test of truth

is the power of the thought to get itself accepted in the competition of the market”).

DespitetheFirst Amendment, politicians persisted in efforts

to silence criticism with enactment of the Sedition Act of 1798.5

The Sedition Act “first crystallized a national awareness of the

central meaning of the First Amendment.” New York Times v.
3

6The Report noted the lack of accountability that would result if officials

were free of ongoing public scrutiny and discussion of their actions:

It is manifestly impossible to punish the intent to bring those who

administer the government into disrepute or contempt, without

striking at the right of freely discussing public characters and

measures; . . . which, again, is equivalent to a protection of those

who administer the government, if they should at any time deserve

the contempt or hatred of the people, against being exposed to it,

by free animadversions on their characters and conduct. Nor can

there be a doubt . . . that a government thus intrenched in penal

statutes against the just and natural effects of a culpable administration, will easily evade the responsibility which is essential to a

faithful discharge of its duty.

New York Times, 376 U.S. at 275 n.15 (quotation marks and citation

omitted) (emphasis added).

Sullivan, 376 U.S. 254, 273 (1964). The Act was attacked as

unconstitutional by Jefferson, Madison, and the Virginia

General Assembly, the latter condemning it for restricting “‘the

right of freely examining public characters and measures, and

of free communication among the people thereon, which has

ever been justly deemed the only effectual guardian of every

other right.’” Id. at 274 (citation omitted). Madison wrote the

protest Report,6 founding his argument on the fact that the

“Constitution created a form of government under which ‘The

people, not the government, possess the absolute sovereignty,’”

id. at 274 (citation omitted), and in the House of Representatives Madison also observed: “‘If we advert to the nature of

Republican Government, we shall find that the censorial power

is in the people over the Government, and not in the Government over the people.’” Id. at 275. “The right of free public

discussion of the stewardship of public officials was thus, in

Madison’s view, a fundamental principle of the American form

of government.” Id. at 275. As a result, “the court of history”

had reached a “broad consensus that the Act, because of the

restraint it imposed upon criticism of government and public

officials, was inconsistent with the First Amendment.” Id. at
4

276. The Act expired in 1801, and those convicted under it

were pardoned and their fines remitted by President Jefferson.

Id. & n.16.

Bridges v. California, 314 U.S. 252 (1941), dealt with

another effort to silence criticism, this time of judges, where

individuals, who had published stories about pending cases

were fined for contempt of court. Id. at 258. This Court rejected

reliance on English common law allowing such speech suppression because “‘one of the objects of the Revolution was to get

rid of the English common law on liberty of speech and of the

press.’” Id. at 264 (citation omitted). The Court noted the

asserted “substantive evil” of “disrespect for the judiciary,” id.

at 270, which included “criticism of the decision of the court,”

id. at 270 n.15 (emphasis added), and rejected the “assumption

that respect for the judiciary can be won by shielding judges

from published criticism.” Id. at 270 (emphasis added). The

Court said “it is a prized American privilege to speak one’s

mind, although not always with perfect good taste, on all public

institutions,” id. (footnote omitted), and concluded that “an

enforced silence, however limited, solely in the name of

preserving the dignity of the bench, would probably engender

resentment, suspicion, and contempt much more than . . .

enhance respect. Id. at 270-71.

In 1964, New York Times v. Sullivan, 376 U.S. 254, dealt

with another effort by politicians to silence criticism. Despite

the libel immunity that public officials enjoy for their public

debate (in order to encourage robust debate), Alabama’s libel

law provided no similar immunity to the people’s discussion of

public officials’ actions. A group supporting Dr. Martin Luther

King, Jr. took out a New York Times ad criticizing the actions

of police in Montgomery, Alabama against civil-rights demonstrators. The city commissioner in charge of police claimed that

the ad libeled him by implication. Id. at 288. This Court

established the “actual malice” standard for discussing public

officials, reaffirming “a profound national commitment to the
5

7

“Prohibition” herein refers to 2 U.S.C. §§ 441b(a)-(b)(2) (2004) (“It is

unlawful for any . . . corporation whatever, or any labor organization, to

make a contribution or expenditure in connection with any election . . . .

‘[C]ontribution or expenditure’ includes . . . any applicable electioneering

communication.”). “Prohibition” is an appropriate term because it was used

by Congress, BCRA § 203 (entitled “Prohibition of Corporate and Labor

Disbursements for Electioneering Communications”), and this Court.

McConnell, 540 U.S. at 203 (same). Despite the possibility of a PAC-option,

a corporation is still prohibited from using its own general funds.

principle that debate on public issues should be uninhibited,

robust, and wide-open, and that it may well include vehement,

caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270.

This struggle of the government to silence the people

continues here as BCRA sponsors, Intervenors herein, defend

the “electioneering communication” prohibition7 by declaring

that quashing criticism is the true intent behind the provision

and thus argue that broadcast ads are sham, not genuine, if the

ads (a) “took a critical stance regarding a candidate’s position

on an issue” and (b) “referred to the candidate by name.”

Intervenors’ Br. at 22 (emphasis added). Intervenors’ Brief is

replete with complaints about Senators being criticized for their

positions on a current legislative matter. See id. at 3, 10, 11, 15,

16, 22, 23 n.11, 24, 25 n.14, 27, 28, 36. So is the FEC’s Brief.

See FEC Br. at 10, 11, 19, 20, 33, 44, 48.

The roots of this case also lie in the right of the people to

engage in self-governmentbyemploying their First Amendment

liberties to amplify their voices through associating, seeBuckley

v. Valeo, 424 U.S. 1, 15 (1976) and in the unquestioned right of

corporations to freely advocate issues. See First Nat’l Bank of

Boston v. Bellotti, 435 U.S. 765, 774 (1978). So with respect to

“genuine issue ads,” McConnell v. FEC, 540 U.S. 93, 206 n.88

(2003) (emphasis added), there is no corporate-form interest to

justify a prohibition. Historically, the Constitution and this

Court have protected corporate expression about public policy

generally and about the adoption of laws specifically. Thus, pro-
6

8The Tillman Act only restricted corporate “contributions in connection

with any election to public office,” 34 Stat. 864-65 (emphasis added), so it

has nothing to do with the present case, which is about WRTL’s own

expression. Not until 1947 did Congress try to limit corporate expenditures

in the Taft-Hartley Act, which limitation was only in full effect until this

Court had an opportunity to address it in Buckley. 424 U.S. 1. Then this

Court noted (a) the vagueness of regulating “any expenditure . . . relative to

a clearly identified candidate,” id. at 42, (b) the fact that “incumbents[] are

intimately tied to public issues involving legislative proposals and governmental actions,” id. at 43, and (c) the rejection of any “‘intent and

. . . effect’” test in Thomas v. Collins, 323 U.S. 516, 535 (1945), and

imposed the express advocacy construction to protect a speaker from being

“‘at the mercy of the varied understanding of his hearers and consequently

of whatever inference may be drawn as to his intent and meaning.’” Buckley,

424 U.S. at 42 (quo ting Thomas, 323 U.S. at 535). The prohibition on

corporate independent expenditures was also restricted to express advocacy

in FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 249 (1986)

(“MCFL”). Under the express advocacy test, WRTL is completely free to

run its grassroots lobbying ads. Only in 2002, did Congress again seek to

limit such legislative advocacy with its electioneering communication

prohibition in BCRA, and even then there was a recognition of the constitutional need to protect the people’s right to petition through grassroots

lobbying, see infra at Part IV.A and this Court in McConnell “assume[d]”

that as to “genuine issue ads” the prohibition might not survive challenge.

540 U.S. at 206 n.88.

9BCRA was supposed to restore the people’s trust in government, but

instead it declined. See The American National Election Studies, “Trust in

Government Index 1958-2004” (2002 score of 43 down to 37 in 2004),

available at http://www.electionstudies.org/nesguide/toptable/tab5a_5.htm.

hibiting corporations from effective grassroots lobbying has no

hoary heritage. Rather, banning corporate grassroots lobbying

in “genuine issue ads” is a recent innovation that was spawned

in 1947, halted by this Court in 1976, respawned in 2002, and

identified by this Court as likely unconstitutional in 2003.8

Roots of this case also lie in the passage of BCRA,9 wherein

sponsors of the provision that became the present prohibition

promised to protect “genuine issue ads” and particularly

grassroots lobbying. See infra at Part IV.A. And on the floor,

sponsors promoted a provision to authorize the FEC to make
7

10BCRA prime sponsors and campaign finance reform lobby groups

joined in proposing rules to distinguish genuine issue ads from sham ads by

focusing on the content of the ads without any investigation into intent-andeffect context. See infra at Part IV.B Yet the FEC rejected their rules, along

with their rationale, and refused to make a rule. See infra at Part IV.A. In

2006, the FEC was twice more asked to make a rule and twice refused,

id.—even after the Solicitor General was asked at oral argument why the

FEC had not made a rule to protect grassroots lobbying, Transcript of Oral

Arg. at 43-44 Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 126 S. Ct.

1016 (2006) (“WRTL I”) (No. 04-1581), and the unanimous opinion of the

Court took note of its ability to do so. 546 U.S. 410, 126 S. Ct at 1017.

11McConnell v. FEC, 251 F. Supp. 2d 176, 312 (D.D.C. 2003) (Henderson, J.), 905 (Leon, J.), 748 (Kollar-Kotelly, J.). This “genuine issue ad” was

originally called the “Feingold Kohl Abortion 60 Ad” but for ease of

memory is called the “PBA Ad” because its topic is partial-birth abortion

(“PBA”). Furthermore, the Brennan Center’s Buying Time reports, which

played a central role in McConnell and were based on Goldstein’s work,

acknowledged that the prohibition swept in “genuine issue ads.” The key

question by which Goldstein’s student coders distinguished genuine from

sham issue ads was Question 6: “‘In your opinion, is the purpose of this ad

to provide information about or urge action on a bill or issue, or is to

generate support or opposition for a particular candidate.’” McConnell, 251

F. Supp. 2d at 308-09 (Henderson, J.) (citation omitted) (emphasis in

original question). 

exemptions in order to protect “genuine issue ads,” id., which

led to a 2002 FEC rulemaking on the prohibition, in which the

FEC solicited comments on proposed language for a rule

exempting grassroots lobbying and then refused to make a rule.

See infra at Part IV.A-B.10

Roots lie in the McConnell litigation where genuine issue

ad was a term of art and specific ads were identified as

“genuine issue ads” or sham ads. For example, all three district

court judges noted that a grassroots lobbying ad—called herein

the “PBA Ad”—was recognized by key defense expert Prof.

Goldstein as a “genuine issue ad.”11

 As set out below, infra at

Part IV, this PBA Ad is remarkably like WRTL’s ads, proving

that they are also “genuine issue ads.” Judge Leon also listed

“representative examples” of both “genuine issue advertise-
8

12Id. at 914-18. For analytical convenience, a number of ads (including

all five of WRTL’s grassroots lobbying ads in the record and the ad at issue

in Christian Civic League of Maine, Inc. v. FEC (No. 06-589 in this Court)

(“CCLM”)) have been collected in the Appendix to James Bopp, Jr. &

Richard E. Coleson, Distinguishing “Genuine” from “Sham” in Grassroots

Lobbying: Protecting the Right to Petition During Elections, 29 Camp. L.

Rev. 353 (2007) [hereinafter Bopp & Coleson, Distinguishing] (print version

forthcoming 2007) (Article currently accessible online at www.law. campbell.edu/lawreview, by following the “Issue – Full text” link, then following

the “Volume 29, Number 3 – Spring 2007” link.). The Appendix also assists

analysis by collecting several proposed tests—including by Intervenors and

their counsel—to distinguish genuine issue ads from sham ads.

13On July 21, the Senate failed to invoke cloture on the ongoing

filibuster of the nomination of William Gerry Myers III as a judge on the

U.S. Court of Appeal for the Ninth Circuit. Record 30:3 (Amended Verified

Complaint ¶ 8 (“AVC”)); 150 Cong. Rec. S8459-60. A fall showdown was

predicted. Record 30:3 (AVC ¶¶ 8-11); Paul Kane, Fall Showdown Seen on

Judges, Roll Call, July 21, 2004, at 1.

14On July 26, 2004, WRTL began broadcasting a radio advertisement

ments” and “candidate-centered issue advertisements.”12 So

when this Court in McConnell “assume[d] that the interests that

justify the regulation of campaign speech might not apply to the

regulation of genuine issue ads,” 540 U.S. at 206 n.88, these

genuine issue ads were before the Court. The whole McConnell

facial analysis of the prohibition was to determine whether it

swept in too many of these “genuine issue ads.”Id. at 203-07.

2. Present Appeals. The present appeals arise from a

constitutional challenge to the electioneering communication

prohibition as applied to WRTL’s grassroots lobbying ads. In

July 2004, Senate filibustering of President Bush’s judicial

nominees had reached unprecedented, double-digit levels and

was coming to a head. Helen Devar, Senate Democrats Block

3 More Bush Judicial Nominees, Washington Post, July 23,

2004, at A05; Record 30:3 (AVC ¶ 10).13 WRTL launched a

grassroots lobbying campaign to encourage its Senators to

oppose the filibuster. Record 30:3-4, 7-8 (AVC ¶¶ 12-13, 25-

33).14 From August 15 to November 2, 2004 (80 days, including
9

entitled “Wedding,” Record 30:3 (AVC ¶ 12), JS App.3a, and also broadcast

two other ads before all broadcasting was halted by the prohibition. (The text

of “Wedding” and the other two ads broadcast, “Loan” and “Waiting” are at

JS App. 3a n.3, 4a n.4, and 5a n.5, respectively). WRTL intended to continue broadcasting its grassroots lobbying ads, and materially similar ads,

throughout August 2004 and until the matter was voted on in the fall. Record

30:3-4, 7 (AVC ¶¶ 12-13, 28-29); JS App. 6a.

15Record 30:2, 4, 6 (AVC ¶ 6, 13-14, 23-34); JS App. 6a-7a. From

August 15 to September 3 (30 days before the primary election), the

prohibition existed solely because of Wisconsin’s September primary, during

which Sen. Feingold ran unopposed, as noted by Appellants’ amici curiae

Briffault and Hassen. See Briffault & Hasen A.C. Br. at 25 n.9. These amici

suggest that an exemption might be appropriate where a candidate is running

unopposed, and note that, in the CCLM case (No. 06-589), Sen. Snowe was

running unopposed in her primary. Id. Judge Kollar-Kotelly apparently

agreed, claiming that the “uncontroverted record” in McConnell showed that

genuine issue ads could be distinguished from “candidate-centered issue

advocacy” on three criteria, the third being “if the advertisement is run in a

competitive race.” McConnell, 251 F. Supp. 2d at 567.

16Non-broadcast communications would not have provided WRTL with

sufficient ability to reach people with WRTL’s message. Record 30:10 (AVC

¶ 51). In McConnell, Judge Kollar-Kotelly expressly found that other means

of communication were less effective (and some were more expensive) than

broadcasting. 251 F. Supp. 2d at 569-73 (citing various experts).

17As of August 6, 2004, WRTL-PAC had $13,766.90 in its account. And

these were the only funds that WRTL could use for federal candidate

contributions and independent expenditures. 2 U.S.C. § 431(8) and (17)

(definitions). If these funds were used for the grassroots lobbying ads, they

would not have been available for the contributions and independent

expenditures that WRTL-PAC intended to make, Record 76, Attachment 1

November 2), WRTL’s ads would have been prohibited

electioneering communications.15

Broadcast advertisements are the most effective form of

communication for a grassroots lobbying campaign.16 While

WRTL did not believe that it was constitutionally required to

use PAC funds for what it regards as constitutionally protected

“genuine issue ads,” using funds from WRTL’s federal political

committee fund (“WRTL-PAC”) was an inadequate option.17
10

at 3-4 (Lyons Affid. ¶¶ 1-7), and were not sufficient for the planned

grassroots lobbying advertising expenditures of $100,000. Id. at 6 (Lyons

Affid. ¶ 14). PAC money is also difficult to raise, being subject to source,

amount, and disclosure requirements, and WRTL believed it could not raise

sufficient funds in its PAC to fund the grassroots lobbying campaign. Id. at

4-5 (Lyons Affid. ¶¶ 8-10).

18Full disclosure of WRTL’s identity and activities as required by law

would have been forthcoming. Record 30:8-9 (AVC ¶¶ 35-37). WRTL’s ads

contained the disclaimers required by 11 C.F.R. § 110.11. Record 30:9 (AVC

¶ 36); see JS App. 3a-5a (transcripts). WRTL’s electioneering communication activity would have triggered a “disclosure date” of August 15,

requiring it to file a report of electioneering communication activity by 11:59

p.m. on August 16. Record 30:8 (AVC ¶ 34).

19On remand, WRTL argued that the district court should reinstate and

decide cross-motions for summary judgment that had been completed before

the district court dismissed the case, but the court permitted extensive

discovery and ordered new summary judgment briefing. WRTL argued that

So on July 28, 2004,WRTL filed its verified complaint and

sought a preliminary injunction to permit continued running of

its ads past the August 15th beginning of the prohibition period.

WRTL challenged the prohibition, not disclosure, and was

prepared to provide the full disclosure required under BCRA.18

The preliminary injunction was denied on August 12, 2004,

and WRTL ceased broadcasting because its ads were prohibited. The district court dismissed the case on the basis that the

language and logic of McConnell precluded as-applied challenges and added that “‘WRTL’s advertisements may fit the

very type of activity McConnell found Congress had a compelling interest in regulating,’” WRTL I, 546 U.S. 410, 126 S. Ct.

at 1018 (citation omitted).

In WRTL I, the FEC argued that McConnell’s approval of

the “bright-line” “electioneering communication” precluded asapplied exemptions and that WRTL’s ads were not genuine

issue ads. Id. Despite these arguments, this Court unanimously

remanded the case for consideration of the merits of the asapplied challenge.19
11

any proper rule would focus on the communication’s text and the relevant

context (see infra at n.30), but the court permitted discovery on the intentand-effect context that the FEC and Intervenors said was necessary to their

theory of the case. As a result, even in this (statutorily-mandated) “expedited” case, WRTL was subjected to depositions of its executive director and

its legislative and PAC director. Even the lead communications consultant

at its outside advertising agency was deposed, as was a woman who did

fundraising for WRTL. WRTL was required to produce a substantial volume

of documents about its inner workings, plans, and finances—all information

that an ideological group would otherwise keep private. Since the FEC

retained two experts, WRTL attorneys needed to depose them. Since Sen.

McCain et al. were permitted to intervene, WRTL has been required to

respond to double briefing and extra discovery requests. The docket below

shows that the FEC had 10 attorneys working on the case and the Intervenors

have enjoyed the full support of the campaign finance reform lobby and

counsel associated with them. See, e.g., Intervenors’ Br. (listing 19

attorneys). In sum, there has been a substantial investment of time and

money by WRTL in this case that could have been put to advancing

ideological causes by speech and petition had it not been required to

vindicate constitutional rights to do so. No attorneys fees are awarded in

lawsuits against the FEC, as would be the case when states violate constitutional rights.

Since this Court has rejected any intent-and-effect test,

Buckley, 424 U.S. at 42, Appellants’ reliance on a voluminous

record purporting to attempt to prove WRTL’s intent in running

the ads and the ad’s speculative effect on the 2004 election is

misplaced. WRTL vigorously disputed many of Appellants’

factual allegations below. For example, the FEC cites a swatch

of its proposed findings of fact allegedly supporting the

assertion that WRTL had “intended from the outset to air the

advertisements during the BCRA pre-election period, even

though the agency was generally capable of creating a radio

advertisement in a week and television advertisements in two

weeks.” FEC Br. at 11, n.3; see also id. at 11, 13 (citing and

quoting, respectively, Judge Roberts’s dissent in the lower court

criticizing the timing of the ads and the lack of ads after the

2004 election (which cites, in turn, Appellant’s limited excerpts

of deposition testimony)).
12

20Ample evidence shows that WRTL’s ads were not intended to affect

the 2004 election. For example, Defendants’ expert Franklin agreed that the

ads’ target demographic, “public policy aware adults, ages 45+ with male

skew,” Record 81-2:44 (Franklin Exp. Rep. at 36), meant the ads were effective with people “less likely [to] change [their] mind” or “convert,” but

“more likely to make the call [to a senator about the issue].” JA 196-97. See

also Record 81-2:78, 79 (Lyons Dep. at 26:6-17,31:17, 33:5-11) (WRTL did

not discuss any other purpose for or any impact on elections from the ads

and had no reason to think that the ads would affect the election); Record 81-

2:163-64, 166, 168, 185-86) (Vanderground Dep. at 45:25-46:2, 54:11-14,

63:14-64:2, 133:11-134:8) (ad consultant never told purpose of campaign

was to affect election, never researched or considered affecting election, and

never discussed with anyone or remembered “even an offhand comment

anywhere” that purpose was, or “likely impact” would be, to affect election

and did not believe ads impacted race); Record 81-2:196-97, 199 (Weiss

Dep. at 14:10-20, 15, 23:11-25) (fundraiser told purpose was “to deal with

the issue of filibustering,” no candidates were mentioned, and when contacting possible donors she never mentioned any other reason for giving).

The district court ultimately found Appellants’ approach—an investigation attempting to establish the intent of

the would-be speaker and the likely effect of its communication

on the election—to be practically and theoretically inappropriate and so made no findings as to an external intent-and-effect

context.. Even the dissent thought that key facts were not

established and would require a trial to resolve. See JS App. at

30a, 45a, 46a, 47a-48a (references herein are to the FEC’s JS

App.). And because WRTL objected to many alleged facts, see

Record 88, Attachment 2; Record 89, Attachment 1, and

proposed countering findings of fact, see Record 103, Appellants may not portray their version of the alleged intent and

effect of the ads as established. In fact, WRTL did not intend to

affect the election,20 and defense expert Bailey expressly stated

at his deposition that WRTL’s Waiting Ad might not have any

effect on the election. JA 148.

A prime example of the two views of the facts is the timing

of WRTL’s ads. Since this is a centerpiece of Appellants

“intent” argument it will be addressed. The record evidence
13

21The snippet of testimony that the FEC cites as “indicat[ing]” that

WRTL intended to air the Ads during the prohibition period so that “the

advertising campaign would result in litigation” FEC Br. at 11 n.3, was from

Jason Vanderground, the experienced lead consultant employed by Hanon

McKendry, the advertising and brand consulting firm hired by WRTL to

prepare its grassroots lobbying campaign. When read as a whole,

Vanderground was recalling WRTL’s Executive Director, Barbara Lyons,

explaining how the electioneering communication prohibition might affect

the broadcast schedule for the ads: “She felt like that she understood that

Campaign Finance Reform [sic] said that there was a certain time when the

ads couldn’t run . . . .” Record 81-2:162-63 (Vanderground Dep.). WRTL’s

explanation of the law’s effect was accurate and offering it to the person

responsible for the planning and broadcast of the ads was unremarkable. To

Vanderground’s recollection, the point Barbara Lyons made was that WRTL

understood that unless an injunction were granted, the ads couldn’t run at a

certain time because the electioneering communication prohibition would

apply, not that W RTL intended to run them when they were prohibited or

wanted to plan the ads’ broadcast to result in a lawsuit. When counsel for the

FEC asked Vanderground if Lyons “or other people from [WRTL]”

indicated that she expected the ad campaign to result in a court case, he

answered “she told me that she was hopeful that we would be able to

continue to running the campaign.” Id. Contrary to the FEC’s characterizations, the record shows that WRTL’s focus was on running the ads effectively and that it was hopeful that the broadcasts would not have to be

interrupted. Vanderground did not understand Lyons or anyone at WRTL to

communicate or give the impression that the ads or their broadcast were to

be developed so as to lead to a court challenge to the prohibition. Id.

22The project could not be launched earlier because it was a large, inteshows that WRTL ran the ads when public interest in the

filibustering issue, actual and projected filibuster votes, and the

ability to create and fund the ads and website coincided.21

Barbara Lyons had advised media consultant Vanderground that

she would like to get the anti-filibuster campaign started as

soon as possible. Vanderground looked at how long it would

take to develop TV and radio ads, along with the BeFair.com

website that he recommended as most effective for contact and

background information, and said that July 26, 2004, was the

first date possible to launch the campaign—based on making all

the preparations. Record 81-2:174.22 As for whether it is
14

grated campaign and there just wasn’t enough time to make preparations

earlier, especially during the summer months with vacations. Based on its

schedule and the work Hanon McKendry had to do, the campaign could not

be launched earlier. Record 81-2:174. In urgent circumstances Hanon

McKendry can create and air radio ads in about a week and television ads in

about two weeks, id. at 158, 174, but WRTL’s campaign required significantly more time because of the planned quality of the spots, and the

required time for strategy writing, developing creative concepts, refining

ideas, planning production, and producing the ads. Id. at 174-75. Lyons

never indicated to Vanderground that the timing had anything to do with

when the prohibition would begin or that potential litigation played any role

in the timing, rather he said that the primary reason for the timing was the

prominence of the filibuster issue then and W RTL’s desires to address it

while it was in the media and as soon as possible. Id. at 175. 

23When asked by counsel for FEC whether it was generally preferable

to run advertising “like the filibuster advertising” close in time to when the

legislative vote is to occur, Mr. Vanderground said “[i]t could be . . .[but]

[n]ot necessarily.” Record 81-2:167. He explained:

 . . . a lot of times you’re timing it more around when the issue has

some attention, when it’s a natural time to direct people’s attention

to it, and so it would—if it was an issue that was being addressed

in the public sector, it would make sense to have the campaign run

then irregardless of whether or not there was a specific vote on a

specific day or a specific week. . . . We have an issue, people are

talking about that issue, and so it makes sense to address that issue

right now, and just because an environmental situation may change

and then may change and then may change again, that doesn’t

necessarily mean that you would completely change what you’re

doing as a campaign just because one element of that may take a

different shape.

Id. at 167-68. When asked why it wasn’t important in scheduling the

campaign to track when the votes were going to occur, Vanderground

answered that he was “thinking much more about—the public opinion arena

and . . . looked more at that it was a topic of significant conversation and less

important to run grassroots lobbying advertising shortly before

legislative votes occur, see FEC Br. at 11; Intervenors’ Br. at

27, according to WRTL’s experienced consultant, timing the

ads to coincide with existing public interest was as important as

timing them to run “shortly before” legislative votes.23 The
15

on the specific dates in the actual Senate schedule.” Id. at 167. And while

Sue Armacost, WRTL’s on-staff legislative lobbyist, agreed in her deposition with the unremarkable proposition that grassroots efforts should occur

“fairly close in time to when the votes actually would occur” as opposed to

after those votes, Record 81-2:145, this does not conflict with the view that

the timing of the ads should be steered mainly by public interest, as advised

by Vanderground. Such interest did, in fact, drive the timing of the ads.

24Contrary to predictions, the anticipated “fall showdown” did not

materialize and no more judicial filibuster votes occurred in 2004, FEC Br.

at 11, although WRTL had no way of predicting that when it decided to

prepare and run its ads. Senate Republican leaders decided in November

2004 not to press the predicted confrontation at that time. See Paul Kane,

GOP Cools to Judicial Gambit, Roll Call, Sep. 13, 2004. Majority reelection

of President George W. Bush and Republican increases in both houses of

record shows that the level of public interest in judicial filibusters coincided with WRTL’s running the ads. From March 2003

to June 2004, when WRTL decided to run the anti-filibuster

ads, Senate Democrats had blocked confirmation votes sixteen

times, JA 223 (Franklin Expert Rep. at 7), creating strong

public interest at that time. And as events unfolded, there was

no reason to suppose that public interest had waned, nor,

accordingly, to adjust the schedule for the ads. During July and

August of 2004, the publicity surrounding judicial filibustering

was at a crescendo. The Republican leadership held four votes

on stalled nominations between July 20 and 22, ending with the

twentieth failed attempt. Id. On July 21, 2004, the U.S. Senate

voted 53 to 44 in favor of a motion to invoke cloture, but the

motion failed to garner the required three-fifths vote to invoke

cloture. 150 Cong. Rec. S8459-60; Record 30 (AVC ¶ 8). The

Senate Judiciary Chairman publicly predicted that judicial

filibusters would mount before fall adjournment. Paul Kane,

Fall Showdown Seen on Judges, Roll Call, July 21, 2004, at 1.

Record 30 (AVC ¶ 9). Thus, there was no reason to adjust the

schedule for the ads, and the fact that WRTL did not do so suggests, if anything, only that WRTL took the advice of its

advertising agency.

24
16

Congress in the November 2004 election minimized the Democrat argument

for filibusters somewhat, see ‘Nuclear’ Truce, Roll Call, Nov. 17, 2004, and

the filibuster problem was at least temporarily put to rest by an agreement

among a bipartisan coalition of Senators. See Paul Kane & Mark Preston,

Fourteen Senators Sign Off on Compromise, Roll Call, May 23, 2005. As

counsel for WRTL explained in oral argument before this Court in WRTL I,

“the filibuster issue, as it related to that session of Congress, it was thought

that it was going to come to a head in—in October . . . but it did not.”

Transcript of Oral Arg. at 9, WRTL I, 546 U.S. 410 (No. 04-1581). It was

fully appropriate to run WRTL’s ads while the Senators were in their home

state for recess because they were then more readily accessible to the people

back home who would want to lobby them in person on the issue.

25Running anti-filibuster ads in the spring of 2005 was also inadvisable

In the spring of 2005, the filibuster issue was different than

it had been in 2004. So there was no reason for WRTL to run

ads then. The spring-2005 debate was whether the Senate

leadership could garner enough Republican votes to change

Senate rules to preclude judicial nominee filibusters, not

whether judicial filibusters were good or bad per se or whether

the Wisconsin Senators should be supporting them. Record 76,

Attachment 1 at 12 (2d Lyons Affid. ¶ 9). The central question

was whether Senate Majority Leader Frist could get fifty

Republican senators to support the rule change because it was

certain that no Democrat senators would support it. Since

Wisconsin had no Republican senators, there was no senator to

lobby in Wisconsin. Id. Defense expert Charles H. Franklin, III

agreed that what “came to a head” then was the debate over the

use of the so-called “nuclear option”:

The Republican leadership had signaled clearly that it

was ready to bring an end to the democratic filibuster

through the so-called nuclear option, to change the rules

to require only 51 votes to end debate on judicial

nominations. . . . [I]n the March to May time frame, it

was clear that it was going to be scheduled. . . . [I]t was

clear that it was coming to a head . . . .

JA 205-06 (Franklin Dep. 27:10-20).25 Finally, the record shows
17

because as communication consultant Jason Vanderground testified, it was

doubtful whether public interest in the judicial filibuster issue had reached

a suitable level then to make an ad campaign viable. Record 81-2:189. Even

when instructed by counsel for the FEC to assume that at that time, “the

country was paying . . . a lot of attention to the issue,” id., Vanderground was

still unable to agree that it “would . . . have made sense” to “resurrect”

WRTL’s campaign. Id. When FEC counsel suggested that the attention the

issue garnered in the spring of 2005 should have matched that of August of

2004, Vanderground did not agree that it had necessarily reached a comparable crescendo: “My . . . recollection of the situation that you’re

describing was that it became an issue, very quickly it heated up, and then

there was an agreement, and then it really—it became an issue with much

less focus, and that the whole scenario happened relatively quickly.” Id. at

189. It was Vanderground’s opinion that public interest in the issue in the

spring of 2005 reached a suitable level only for a very short time, making it

a poor candidate for an ad campaign that could take considerable time and

expense to mount. Id. As counsel for WRTL explained in the January, 2006

oral argument in WRTL I, “each organization has to make an assessment with

respect to the different issues that they want to be lobbying on and the—their

pressing nature.” Transcript of Oral Arg. at 9, WRTL I, 546 U.S. 410 (No.

04-1581).

26WRTL ran an anti-filibuster grassroots lobbying ad in January, 2006,

when a filibuster of Supreme Court nominee Samuel Alito was threatened.

It is the opinion of WRTL and of Barbara Lyons, based on her many years

of experience in legislative matters, that the ad affected Senator Kohl’s

subsequent vote in favor of cloture. Record 76, Attachment 1 at 11 (2d

Lyons Affid. ¶ 7).

that when sufficient public interest was sustained long enough

to allow preparation time, and its available resources allowed,

WRTL has run anti-filibustering ads.26

This extended discussion of the temporal context of

WRTL’s ads demonstrates that Appellants’ assertions of “fact”

and repeated mantra of “undisputed facts” must be viewed with

extreme caution because (1) much of what they allege as to

facts indicating WRTL’s intent is in fact disputed and (2) the

undisputed, statutorily and constitutionally cognizable facts are

quite limited. See infra at n.30 (relevant context) and infra at

Part IV.C, n.68, n.70.(scope of statutory and constitutional
18

27Franklin considers grassroots lobbying as “for the most part” a

subcategory of issue advocacy. JA 177. Franklin agrees that organizations

that want to influence government policy often engage in grassroots

lobbying, JA 180, and do so as a means to influence current office holders

and how they vote in Congress. Record 81-2:215 (Franklin Dep. 43:3).

Franklin agrees that communications that have three elements – they relate

to specific legislation, reflect a point of view on the legislation’s merits, and

encourage the general public to contact legislators – “appear within

grassroots lobbying,” JA 178, 206, and offers that a definition should include

“efforts to mobilize supporters” and “efforts to persuade the public” on a

specific issue as grassroots lobbying as well. Record 81-2:214 (Franklin

Dep. at 37:9-11). According to Franklin, a significant number of the ads in

the spring of 2005 for and against judicial filibusters were designed to affect

cognizability).

WRTL has acknowledged from the beginning that, in

communications other than its grassroots lobbying ads, both it

and WRTL-PAC have made prior statements opposing Sen.

Feingold, both as to his position on the filibusters and as a

candidate, but as noted below, these separate statements by

WRTL and by the legally distinct WRTL-PAC, Cal. Med.

Assoc’n v. FEC, 453 U.S. 182, 196 (1981) (PAC is “is a

separate legal entity that receives funds from multiple sources

and that engages in independent political advocacy.”), are

neither statutorily nor constitutionally cognizable in evaluating

whether the ads at issue are “genuine issue ads.” See infra at

Part IV.C, n.68, n.70. WRTL has acknowledged from the

beginning that it accepts some corporate funds. Some corporate

funds were donated for the anti-filibuster campaign. However,

this does not give rise to any corporate-fund conduit interest

because corporations can do petitioning by genuine issue ads.

Bellotti, 435 U.S. at 774.

As with the extended discussion of the timing of WRTL’s

ads, a discussion of the opinions of the defense experts is

pertinent because it is a centerpiece of Appellants’ argument as

to “effect” of the ads on the election. Both of the FEC’s expert

witnesses recognize grassroots lobbying as discernible from

electioneering.27 While conceding the legitimacy of grassroots
19

or influence the vote in the Senate on the filibuster issue, while some may

have been more aimed at public opinion generally. Those ads that were

directed or aimed at influencing the vote in the Senate mentioned a specific

senator by name, pointed to his or her role in the debate, and were broadcasted primarily in the states where those senators were from. JA 174. 

Douglas L. Bailey admits that groups can do grassroots lobbying, which

he calls “public lobbying advertising,” JA 139, when the position of an

officeholder is undecided, JA 148, that it is customarily done when a bill or

issue is before Congress, id. 142, that “increasingly” such ads mention the

names of officeholders to be lobbied, generally in order to enable the public

“to weigh in with” an undecided officeholder or to sway her position, id.;

that they are targeted to districts or states, id.; and that WRTL’s 2004 ads

were public lobbying advertising. JA 151 (exhibits 5, 6 and 7 were scripts

of the three 2004 ads). Bailey also acknowledged that the PBA ad was public

policy advertising, JA 150-51 (Exhibit GIA 6 was the PBA Ad), and that the

2006 Filibuster Radio Ad concerning the Alito nomination filibuster was

public policy advertising. JA 156 (Exhibit 9 was the 2006 Filibuster Radio

Ad). Bailey acknowledged that public lobbying advertising “can be”

successful in persuading a public official to change his position, adding that

“[g]enerally, frankly, it’s not, but it can be.” JA 152. 

lobbying advertisements, these experts drew broad conclusions

about the admittedly unintended effects of such ads. See Record

81:38 (FEC Mem. Supp. S.J. at 30) (Experts “provided unrebutted testimony that, regardless of WRTL’s effort to avoid overt

electioneering in the actual ad text, WRTL’s ads would likely

have influenced the election if broadcast during the 2004

electioneering communication periods.”).

But the district court found no practical or legal basis for

accepting the “highly questionable assumption” that the

“speculative conjecture” of such experts “can actually project

the ‘likely’ impact of a given ad on the electoral process.” JS

App. 19a-20a. Among the experts’ conjectures were that

WRTL’s grassroots lobbying would have had an electoral effect

because of circumstances external to the ads or WRTL’s plans,

that any communication (regardless of mode or whether it even

mentions a candidate) can have an electoral effect, and that the

less a communication resembles express advocacy, the more

effective it is as an electioneering communication.
20

28According to Franklin, the effect of grassroots lobbying “would depend in part on the setting and the nature of the effort,” JA 206, and “one can

imagine the same elements being literally present in one context and having

a very different impact or effect or purpose than having the same elements

in another.” Id. A fair summary of his report is that “the discussion of public

policy issues can affect an election.” JA 185. He offered that any communication to the public through any means can affect an election: telemarketing,

phone calls, newspaper advertising, direct mail, web site information, radio

and television advertising, even radio talk shows or news broadcasts, even

when not mentioning a candidate or officeholder, can have an electoral

impact, JA 186-87, but “[w]ithout empirical research, it’s difficult to say

how much [effect] any one of [these communications] would [have].”). JA

187. Franklin offered that a communication has an electoral effect or

“electorally relevant impact” whenever it “deals with politically relevant

issues,” JA 187, and that a sincere intent to affect a policy position can still

have an “overt . . . electioneering consequence.” JA 210.

Franklin could not determine that any given ad was intended

to or would in fact affect an election.28 He believes that the

effect of grassroots lobbying on an election depends in large

part on characteristics of the voters’ attentiveness to politics and

their predispositions, partisan or ideological. JA 191, and that

if an ad is not countered by an opposing view, it is more likely

that its message “will have a net effect on public opinion or

vote choice.” JA 207. In Franklin’s opinion, the press releases

of state Senator Bob Welch and comments of two other

candidates and the Wisconsin State Republican Chairman, as

reported in a news articles, made the subject of judicial nominations a “partisan issue.” JA 226-27. He believes that the net

effect of grassroots lobbying depends on the “baseline” or

“salience” established by earlier communications. JA 175. He

testified that if “issues are linked to the considerations” that

voters have on their mind when going to vote, “then that topic

or issue is likely to have a greater impact on their voting choice

than if it is not salient to them at the moment.” Record 81-2:223

(Franklin Dep. at 78:10-17). So under his view, regardless of a

communication’s content or medium, or whether it mentions a

candidate, a speaker must ascertain the opposition to his
21

29The six ads, herein referred to as the “genuine issue ads” or “GIA”

ads, were identified in the report of McConnell Intervenor Defendants’

expert, Kenneth M. Goldstein, as “Genuine Issue Ads” (defined by Goldstein

as “ads coded as providing information or urging action”as opposed to

“Electioneering Ads,” defined as “generating support or opposition for a

particular candidate”), Amended Expert Report of Kenneth M. Goldstein on

Behalf of Intervenor Defendants at 7. The six ads were considered genuine

message and ascertain the voters’ predispositions and how

salient the issue he wishes to address has become to them in

order to gauge whether his communication is electorally

effective and therefore regulable.

In the opinion of Bailey, the other defense witness, an issue

ad is “something that is hopefully going to have an impact on

issues,” JA 133. He believes that campaign ads include ads that

do not mention the names of candidates, JA 134, and “an issue

ad run in a campaign is a campaign ad,” JA 133, because

“[a]nything that happens in the course of a campaign . . .

potentially has some impact on the campaign so that any ad run

that relates to candidates or the issues in a campaign is going to

have some impact on the campaign.” JA 134. See also JA 132,

133 (campaign ad and issue ad can be the same thing), 157

(“ads that raise issues in relation to candidates . . . are putting

in the minds of the voters, candidates and issues which potentially has an impact on elections, so it becomes a campaign

ad.”). He said that the “timing, . . . content and . . . obvious

intent” of WRTL’s Waiting Ad “obviously” made it a campaign

ad, JA 148-49, despite agreeing that it (a) referenced a specific

current legislative matter, JA 154, (b) only “implied” the

Senators’ position on the issue, and (c) was consistent with the

possibility that one or both Senators were undecided, JA 148,

(d) did not identify the Senators as candidates, JA 155, (e)

contained no reference to Sen. Feingold’s character, qualifications or fitness for office, JA 155, and (f) contained no words

that promoted, supported, attacked or opposed him. JA 156. 

In Bailey’s view, six ads found to be genuine issue advocacy in the McConnell litigation,29 which included the PBA Ad,
22

issue ads by Goldstein’s coders and he decided they were genuine issue ads.

McConnell, 251 F. Supp. at 747-48 (opinion of Judge Kollar-Kotelly). 

30The relevant context consists of the elements of the “electioneering

communication” definition and prohibition, i.e., whether (a) the public official named is a candidate, (b) the communicator is a corporation (or union),

were “all campaign ads” and would “inevitably . . . have some

impact, maybe a little, maybe a lot, on an election . . . .” JA

145;159-67. He found that WRTL’s ads “are probably more

effective campaign ads” than the McConnell genuine issue ads

because WRTL’s ads “are not so obvious” and “are a little more

subtle.” JA 146.

Bailey was then presented with the sham Yellowtail Ad, Record 76:6, taken from McConnell, 540 U.S. at 193, n.78. JA

152. He concluded that, compared to the Yellowtail Ad,

WRTL’s Waiting Ad is “subtle[,] [i]mplies the position of the

candidates . . . and is, therefore, more likely to be an

effective . . . campaign communication.” JA 154. The fact that

the Waiting Ad referenced a specific legislative matter and

urged contact with the referenced candidate to take a particular

position on the matter while the Yellowtail Ad did not refer to

any legislative matter and contained references to the character

and integrity of the candidate led Mr. Bailey to opine that “I

think that [the Waiting Ad] is a more effective campaign ad.”

JA 154. On a moment’s reflection, these statements yield the

remarkable proposition that, according to Bailey, the less an ad

is like express advocacy, the more it is the functional equivalent

of express advocacy and regulable. This stands McConnell’s

narrow-tailoring functional equivalence test on its head.

The district court held the prohibition unconstitutional as

applied to the three WRTL ads. JS App. 29a. While the court

listed five factual topics that it would “at a minimum” examine

“within the four corners of” an ad, JS App. 22a, those five

topics were not in any way a general test. While the focus was

on the four corners, there was a relevant context that was before

the court.30 Instead, the court found that: “the common denomi-
23

(c) the ad is broadcast, (d) the ad is targeted, and (e) the ad is broadcast

within a prohibition period. In addition, as to grassroots lobbying there is the

question of whether the communication concerns a current legislative or

executive branch matter. The district court treated these relevant context

facts as given, on the facts of this case, and so did not discuss them. By its

“four corners” statement it indicated its rejection (on both practical and

constitutional grounds) of any intent-and-effect context.

nator between express advocacy and its functional equivalent,

as the Supreme Court defined it in McConnell, is the link

between the words and images used in the ad and the fitness, or

lack thereof, of the candidate for public office.” JS App. 27a

(emphasis added). “[T]he absence of that link . . . enables an

issue ad to be fairly regarded as a genuine issue ad.” Id. The

district court’s test focused on identifying genuine issue ads, of

which grassroots lobbying is a subcategory with the additional

constitutional protection of the right to petition.

During the prohibition period before the fall 2006 Wisconsin elections, WRTL sought another preliminary injunction to

broadcast another grassroots lobbying ad. The “CCPA Ad”

asked Wisconsin citizens to call Senators Kohl and Feingold

about helping to finalize enactment of the Child Custody

Protection Act (which had passed by wide margins in both

houses but was then stalled by parliamentary maneuvering

before finalization). That time Sen. Kohl was a candidate. This

ad clearly stated the record of the candidates on the issue as

follows: “Fortunately, Senator Kohl voted for the rights of

parents. But, sadly, Senator Feingold did not.” See Bopp &

Coleson, Distinguishing at 404 (“CCPA Ad” in Appendix)

(emphasis in original). A preliminary injunction was denied and

the district court declined to consider the ad along with the three

anti-filibuster ads that it considered in the opinion now before

this Court. Given the denial of WRTL’s request to consider the

ads together, WRTL filed another summary judgment motion

as to the CCPA Ad, but the defendants have insisted to the

court that they must have another round of intent-and-effect

discovery of WRTL before they can proceed to respond. Record
24

132:5. The court has not ruled on their motion.

SUMMARY OF THE ARGUMENT

While WRTL has forever lost the opportunity to broadcast

its 2004 grassroots lobbying ads, it seeks recognition of

constitutional protection for its ads so that the next opportunity

will not be lost as well. This case is well within the exception

to mootness because there is a reasonable likelihood that WRTL

will again want to broadcast grassroots lobbying ads that qualify

as electioneering communications. The experiences of this case

and CCLM (06-589) demonstrate that such cases will evade

review. The short-notice nature of grassroots lobbying makes it

certain.

Appellants and their amici seek to shift the burden to

WRTL to justify its ads. But the strict scrutiny burden is on the

government because paying for grassroots lobbying from a

PAC, or communicating with less effective means at less

effective times, is a heavy burden on the right of the sovereign

people to participate in self-government through their liberties

of expression, association, and petition. Precedent specifically

requires strict-scrutiny justification in such circumstances.

McConnell employed strict scrutiny by (1) stating that the

corporate-form interest is compelling as to restricting corporate

express advocacy and (2) doing narrow tailoring by stating that

sham ads were “the functional equivalent of express advocacy.”

But McConnell recognized that this analysis “might not apply

to the regulation of genuine issue ads.”

Strict scrutiny requires that the prohibition is narrowly

tailored, in the least restrictive manner, to a compelling interest.

However, WRTL’s grass roots lobbying ads are not the

“functional equivalent of express advocacy,” because they are

materially identical to the PBA ad, identified in McConnell as

a genuine issue ad. Furthermore, grass roots lobbying has only

a remote and speculative effect on elections and corporations

have an independent First Amendment right to engage in such

communications.
25

31In the district court, both Appellants claimed that this controversy was

neither capable of repetition nor would evade review. JS App. 11a-12a. In

April 2006, when asked to address mootness, the FEC characterized the

issue as “a close question,” Record 73:3 (FEC Resp. Court’s Apr. 17 2006

Order at 3), while the Intervenors insisted that the controversy failed both

prongs. Now the Intervenors concede justiciability, Intervenors’ Br. at 13

n.7, and the FEC asserts mootness. FEC Br. at 24.

Furthermore, there are two less restrictive means that

Congress could have employed, so that the prohibition fails

strict scrutiny. One would be to require that electioneering

communications be funded from a separate bank account (with

no corporate funds) instead of from a PAC. WRTL offered to

funds its ads from such an account, which would have eliminated the corporate-form interest. A second less restrictive

means would be a test distinguishing grassroots lobbying that

is not functionally equivalent to express advocacy.

Alternatively, the facial upholding of the prohibition in

McConnell should be overturned because (1) the FEC and

Intervenors contend that WRTL’s genuine issue ads are in the

“heartland” or “core” of what Congress intended to eliminate

with the prohibition and (2) the experiences of this case and

CCLM (No. 06-589) have demonstrated that as-applied challenges are an inadequate remedy to protect genuine issue ads

ARGUMENT

I. This Case Is Within the Mootness Exception.

The FEC claims that the 2004 ads are moot and not “‘capable of repetition, yet evading review.’” See FEC Br. at 21

(citation omitted).31 WRTL set the answer to this assertion

before the Court in WRTL I, so that the issue was before this

Court when it considered the case in January 2006. See Jur.

Stmt. at 7 & nn.2 & 3; Br. of Appellant at 9 n.8, WRTL I, 546

U.S. 410 (No. 04-1581). Since “the case or controversy

requirement subsists through all stages of federal judicial

proceedings, trial and appellate,” FEC Br. at 21, this issue was

before this Court in January 2006, long after the facts that the
26

32“The ‘capable of repetition, yet evading review’ doctrine, in the

context of election cases, is appropriate when there are ‘as applied’

challenges as well as in the more typical case involving only facial attacks.”

Storer v. Brown, 415 U.S. 724, 737 n.8 (1974). It is “appropriate” because

“[t]he construction of the statute, an understanding of its operation, and

possible constitutional limits on its application, will have the effect of

simplifying future challenges, thus increasing the likelihood that timely filed

cases can be adjudicated before an election is held.” Id.

33As of January, 2007, challenges to BCRA’s provisions can be brought

in district courts other than the District of Columbia’s, and the expedition

requirement applies only to those actions plaintiffs elect to bring in the

District of Columbia. BCRA § 403(a) & (d), 116 Stat. 113-114. Accordingly, for those cases brought outside the District, the statutory expedition,

FEC now claims prove this controversy moot. See FEC Br. at

23-24. After remand, with the benefit of full briefing on the

question, the district court ruled that WRTL’s “predicament”

was “a classic example of [this] well-established exception to

the mootness doctrine.” JS App. 12a.

As to “evading review,” the relevant period has proved to

be a “wholly unrealistic” window in which to reach final

resolution of an as-applied challenge to the electioneering

communication prohibition. JS App. 13a. This negates Appellants’ contention that “[t]here is no reason to assume” that the

controversy’s recurrence will not evade review. FEC Br. at 24

n.6. Nor is presuming that a suit could be brought “well in

advance” of the prohibition period warranted. Id. In fact, the

controversy will likely only arise when it cannot be fully

reviewed. As the district court pointed out,“legislation typically

arises in the 30- and 60-day periods before a federal primary or

general election.” JS App. 15a (citing McConnell, 251 F. Supp.

2d at 793 (Leon, J.)). As-applied challenges32 to the prohibition

will therefore be brought on an emergency basis during the

closing days of a campaign. Id. at 18a,19a. This case was filed

before the electioneering communication prohibition period in

2004. Despite statutorily-required expedition “to the greatest

extent possible,” BCRA § 403(a)(4),33 “[WRTL’s] claims have
27

as insufficient as it has proved here, is not even required.

34To suggest, as the FEC does, that plaintiffs could obtain full review by

forgoing a preenforcement challenge and instead subject themselves to

enforcement actions and risk criminal prosecution, FEC Br. 24 n.6, flies in

the face of the preenforcement doctrine. This Court has held repeatedly

“[w]hen contesting the constitutionality of a criminal statute, ‘it is not

necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise

of his constitutional rights.’” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979) (quoting Steffel v. Thompson, 415 U.S. 459, 459

(1974)). “When the plaintiff has alleged an intention to engage in a course

of conduct arguably affected with a constitutional interest, but proscribed by

a statute, and there exists a credible threat of prosecution thereunder, he

‘should not be required to await and undergo a criminal prosecution as the

sole means of seeking relief.’” Id. at 298 (quoting Doe v. Bolton, 410 U.S.

179, 188 (1973)).

yet to be ‘fully litigated.’” Id. at 13a. The two-year election

cycle has “proved too short a period of time for appell[ee] to

obtain complete judicial review, and there is every reason to

believe that any future suit would take at least as long.” Bellotti,

435 U.S. at 774. So “it is entirely unreasonable, if not fanciful,

to expect that a plaintiff could have obtained complete judicial

review of its claims in time for it to air its ads during the 30 and

60-day . . . [prohibition period],” JS App. 13a, and “a decision

allowing the desired expenditures would be an empty gesture

unless it afforded appellants sufficient opportunity prior to the

election date to communicate their views effectively.” Bellotti,

435 U.S. at 774.34

As to “capable of repetition,” this case readily fits within the

exception to mootness because there is a “‘reasonable expectation’ . . . that the same controversy will recur involving the

same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482

(1982) (per curiam) (emphasis added) (quoting Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam)). The FEC

misstates what “similar factual circumstances,” Bellotti, 435

U.S. at 774, must be shown to be reasonably expected to recur,

and ignores record evidence establishing that the relevant
28

35As was the case in Bellotti, “there is no reason to believe that the

[enforcing agency] will refrain from prosecuting violations of [the prohibition].” 435 U.S. at 775. The prohibition is plainly applicable to the 2004 Ads

and any “targeted” broadcast ad aired during the prohibition periods. There

are no regulatory exceptionsto the electioneering communication prohibition

for grassroots lobbying, and WRTL “is subject to litigation challenging the

legality of [its] actions if contrary to the Commission’s rule” by a private

party and without an FEC enforcement decision.” Chamber of Commerce v.

FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (noting that 2 U.S.C. § 437g(a)(8)

so provides). “Meanwhile, [the prohibition] remains on the books as a

complete prohibition of corporate expenditures” for grassroots lobbying

during the prohibition period, and “the effect of the statute on arguably

protected speech will persist.” Bellotti, 435 U.S. at 775.

factual circumstances will likely recur. The same controversy

will arise when WRTL will again be subject to the “electioneering communication” prohibition when it needs to engage in

grassroots lobbying, because then it “will again be subjected to

the alleged illegality.” Los Angeles v. Lyons, 461 U.S. 95, 109

(1983) (emphasis added). See also Bellotti, 435 U.S. at 774-75

(holding the capable of repetition prong satisfied where there

was “no serious doubt that there is a ‘reasonable expectation’

that appellants again will be subject to the threat of prosecution” under the challenged law (emphasis added) (quoting

Weinstein, 423 U.S. at 149)). The controversy will recur when

the alleged illegality—an unconstitutional application of the

prohibition and the coinciding threat of prosecution—recurs.

The alleged illegal action will recur when WRTL wishes to run

a targeted broadcast ad mentioning a candidate within the

prohibition period, regardless of whether such an ad shares “the

five characteristics that the district court found dispositive in

sustaining [WRTL’s] as-applied challenge.” FEC Br. at 24. As

in Bellotti, it is uncontroverted that the situation giving rise to

the need to violate the prohibition will regularly recur. 435 U.S.

at 774-76.35 Legislative issues will typically arise in the

prohibition period. JS App. 15a. WRTL intends to run materially similar grass-roots lobbying ads during those periods as

necessary, and WRTL is concerned about a range of issues that
29

36Availability of PAC funds does not control the capable of repetition

prong because WRTL challenges the very necessity of using them.

37The district court’s reliance on “election-related challenges in which

[the capable of repetition, yet evading review] exception was applied,” JS

App. 12a, is not misplaced. Controversies over “electoral processes,”FEC

Br. at 24, recur because electoral processes are part of elections, and

elections recur. The transferable concept is that a process or activity

inherently surrounding an election will recur. The controversy here will recur

because elections, without which there is no prohibition period, will recur.

In other words, if the controversy recurs at all, it will be in proximity to an

election, and elections undeniably recur.

38See, e.g., FEC Br. at 19, 28, 32-35; Intervenors’ Br. at 30 (WRTL

must prove PAC-option inadequate), 39 (WRTL must show “no reasonable

prospect the ad is likely to influence the election,” i.e., “differen[ce] in kind”

(emphasis in original); Brifault & Hasen A.C. Br. at 24 (WRTL must

“prove[] that the communication is unlikely to have any appreciable effect

on voter’s choices”); Dorsen et al. A.C. Br. at 13 (four elements of

electioneering definition “satisf[y] government’s burden [as to] purpose and

perceived effect” so burden shifted to WRTL).

39WRTL did not challenge the electioneering communication disclosure

requirements. See supra at n.18. But Appellants’ amici curiae League of

Women Voters et al. erroneously believe that this case is about disclosure.

LWV et al. A.C. Br. at 14 (“all without disclosure”), 18 (same).

regularly have and will become issues in the legislative and

executive branch. Record 30 (AVC ¶ 16)36 The relevant facts are

capable of repetition and, therefore, the exception applies.37

II. Strict Scrutiny Applies.

Appellants and their amici attempt to shift their strict

scrutiny burden to WRTL.38 But this case involves a prohibition39 that substantially burdens the people’s rights to selfgovernment using their liberties of expression, association, and

petition. A politician who chooses to run for reelection wears

two hats, the hat of office as the people’s representative and

servant and the campaign hat. Government continues to

function during elections, and where a law burdens the people’s

right to participate in that government by petitioning the
30

40“[T]he First and Fourteenth Amendments guarantee freedom to

associate with others for the common advancement of political beliefs and

ideas . . . .” Buckley, 424 U.S. at 16 (citations and quotation indicators

omitted).

41The true temporal and geographic effect of the prohibition is broader

than may first appear. See Bradley A. Smith & Jason Robert Owen, Boundincumbent, the government bears the strict-scrutiny burden.

A. Self-Government Right. The prohibition burdens the

self-government rights of the people. The people are sovereign.

U.S. Const. preamble; Buckley, 424 U.S. at 14 (“In a republic

. . . the people are sovereign . . . .”). In a constitutional republic,

government is restricted to the powers expressly granted by the

people. U.S. Const. amend. X. The people created legislators to

represent them, U.S. Const. art. I, § 1; art. IV, § 4, and amended

the Constitution to elect Senators directly. U.S. Const. amend.

XVII. They mandated Congress not to restrict the peoples’

rights to speak, associate,40 and petition in exercising their

sovereign rights. U.S. Const. amend. I.

B.ExpressionRight. The First Amendment is designed “‘to

assure [the] unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.’”

Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354

U.S. 476, 484 (1957)). “‘[S]peech concerning public affairs is

more than self-expression; it is the essence of self-government.’” Bellotti, 435 U.S. at 777 n.12 (citation omitted). “It is

the type of speech indispensable to decisionmaking in a

democracy, and this is no less true because the speech comes

from a corporation rather than an individual.” Id. at 777.

C. Expressive Association Right. While the individuals

who make up WRTL could engage in electioneering communication, 2 U.S.C. § 434(f) (requiring only disclosure if spending

exceeds $10,000 in a calendar year), when they form themselves into an effective advocacy group for lobbying, their

lobbying through broadcast ads is prohibited for some 90 days

during an election year.

41 Citizen groups formed under the right
31

ary Based Restrictions in Unbounded Broadcast Media Markets: McConnell

v. FEC’s Underinclusive Overbreadth Analysis, 20 Stan. L. & Pol’y Rev.

101 (2007).

42When only an associational interest is involved, as with limits on cash

contributions to candidates, the government need only demonstrate that the

“contribution regulation was ‘closely drawn’ to match a ‘sufficiently

important interest.”’ Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377,

387-88 (2000). But when speech is limited, as here, the statute is subject to

strict scrutiny, requiring the government to demonstrate that the regulation

is narrowly tailored to advance a compelling governmental interest, Buckley,

424 U.S. at 64-65, the standard employed for expressive association. Roberts

v. United States Jaycees, 468 U.S. 609, 623 (1984); Boy Scouts of America

v. Dale, 530 U.S. 640, 657-59 (2001).

of association are an essential component of democracy in

action. In Buckley, this Court reaffirmed the constitutional

protection for association: “[E]ffective advocacy of both public

and private points of view, particularly controversial ones, is

undeniably enhanced by group association. [Consequently,] the

First and Fourteenth Amendments guarantee freedom to

associate with others for the common advancement of political

beliefs and ideas.” Buckley, 424 U.S. at 15.“[A]ction which

may have the effect of curtailing the freedom to associate is

subject to the closest scrutiny.” Id. at 25.42 This highest level of

constitutional protection flows from the essential function of

associations in allowing effective participation in our democratic republic by amplifying individual speech. Id. at 22.

D. Petition Right. Grassroots lobbying is also protected by

a right not considered in McConnell, i.e., the right to petition.

The right to petition is “one of ‘the most precious of the

liberties safeguarded by the Bill of Rights.’” BE & K Constr.

Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine

Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967)).

Grassroots lobbying is a quintessential exercise of the right to

petition. Eastern R.R. President Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 137-138 (1961); Liberty Lobby,

Inc. v. Pearson, 390 F. 2d 489, 491 (D.C. Cir. 1968). The right
32

of corporations to petition both the legislative and executive

branches was recognized in Noerr, 365 U.S. at 135. This Court

held that attempts to influence the passage or enforcement of

laws were constitutionally protected, essential to representative

government, and could not be a violation of the Sherman Act:

In a representative democracy such as this, these [legislative and executive] branches of government act on

behalf of the people and, to a very large extent, the

whole concept of representation depends upon the

ability of the people to make their wishes known to their

representatives. . . . The right of petition is one of the

freedoms protected by the Bill of Rights, and we cannot,

of course, lightly impute to Congress an intent to invade

these freedoms.

Id. at 137-38. See also Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972) (“the right to petition

extends to all departments of the government”).In Bellotti, 435

U.S. 765, this Court applied the right of petition to corporations

which sought “to publicize their views on a proposed constitutional amendment . . . to be submitted . . . as a ballot question,”

id. at 769, holding that it was constitutionally protected. Id. at

776-78, 790-96. Bellotti noted that “the First Amendment

protects the right of corporations to petition legislative and

administrative bodies,” and concluded that “there hardly can be

less reason for allowing corporate views to be presented openly

to the people when they are to take action in their sovereign

capacity.” Id. at 791 n.31. And as general advocacy of public

issues, grassroots lobbying is protected under the First Amendment as part of our “profound national commitment to the

principle that debate on public issues should be uninhibited,

robust, and wide open.” New York Times, 376 U.S. at 270.

The government bears the burden of justifying statutes that

target speech based on its content—especially speech at the core

of our constitutional system of government—under the strictscrutiny test. See, e.g., Buckley, 424 U.S. at 39, 44-45 (“exact-
33

43McConnell held that the PAC-option “provide[s] corporations and

unions with a constitutionally sufficient opportunity to engage in express

advocacy,” 540 U.S. at 203 (emphasis added), but McConnell never held

that “genuine issue advocacy” is express advocacy, indicating rather by its

substantial overbreadth analysis that the prohibition was facially constitutional because it did not sweep in a “substantial” number of “genuine issue

ads.” Id. at 205-07. In MCFL , this Court said that the PAC-option was not

adequate with respect to independent expenditures (containing express

advocacy) for MCFL-type corporations and catalogued some of the burdens

inherent in PAC funding. MCFL, 479 U.S. at 252-55. Justice O’Connor

concurred, highlighting especially the PAC-option burdens on MCFL. Id. at

265 (O’Connor, J., concurring). In MCFL, the FEC clearly had the strictscrutiny burden and advanced three interests that the Court rejected as not

compelling or which could be met with less-restrictive, more narrowlytailored means. Id. at 256 (corporate-form interest), 260 (protecting donors),

and (“massive undisclosed spending” and “conduits” necessitating a “brighting scrutiny”); FEC v. National Conservative PAC, 470 U.S.

480, 496 (1985). “Under the strict-scrutiny test, [the government has] the burden to prove that the [challenged provision] is

(1) narrowly tailored, to serve (2) a compelling state interest.

Republican Party of Minn. v. White, 536 U.S. 765, 774-75

(2002) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982), and

citing Eu v. San Francisco County Democratic Central Comm.,

489 U.S. 214, 222 (1989)). “In order to show that a given

statute is narrowly tailored, the State must demonstrate that it

does not “unnecessarily circumscrib[e] protected expression,”

id., so that it is the least restrictive means to further a compelling interest. See, MCFL, 470 U.S. at 262 (“interest . . . can be

met in a manner less restrictive”).

E. PAC Mandates Trigger Strict Scrutiny. Specifically,

where the government imposes a PAC mandate, as does the

electioneering communication prohibition, the government

bears the strict scrutiny burden of justifying this infringement

on the peoples’ liberty. The PAC-option is a serious burden and

is inadequate, constitutionally and factually, as a means for

communications that do not contain express advocacy or its

functional equivalent.43 In fact, where a corporation must use
34

line rule”).

44The expenditure for a grassroots lobbying electioneering communication done by a PAC is subject to tax (at the highest rate). See IRS Rev. Rul

2004-6, 26 U.S.C. § 527. If the PAC does enough lobbying that lobbying becomes its major purpose, the PAC loses its tax exempt status and its connected corporation must pay a tax on all of the PACs expenditures (at the highest

rate). Moreover, communications attributed to a PAC may not be distributed

in churches, as doing so would affect their nonprofit status under federal law.

26 C.F.R. § 1.501(c)(3)-1(a)(i), 26 C.F.R. § 1.501(c)(3)-1(a)(ii)).

45A “membership corporation,” 11 C.F.R. § 114.1(e)(1), such as WRTL,

may not solicit contributions to its PAC from non-members (unless they are

“executive or administrative personnel, and their families”). 11 C.F.R.

§ 114.7(a). To acquire “members,” a membership corporation must comply

with 11 C.F.R. § 114.1(e)(1), i.e., have a prescribed organizational structure,

have prescribed language in its organic documents, “expressly solicit[]

persons to become members,” and “expressly acknowledge[] the acceptance

of membership,” and comply with § 114.1(e)(2), i.e., the member must have

“some significant financial attachment to the membership organization”

(described), or “pay membership dues at least annually,” or “have a

significant organizational attachment to the membership organization”

(described). While a membership corporation may solicit members as

PAC funds for grassroots lobbying there is a tax on the expenditure.44 And on the facts of this case, the PAC alternative was

inadequate. WRTL had only a limited time to engage in

grassroots lobbying in favor of an up-or-down vote on judicial

nominees. A lost opportunity at the critical time is an opportunity lost forever. These were highly important matters to WRTL

and its members, not “mere” theoretical deprivations of First

Amendment rights to speak on matters of public concern. When

a legislative issue arises on short notice, as here, there is no

time for corporations without a PAC to organize one, go

through the time-consuming, cumbersome process of first

acquiring FECA-compliant “members” (who must fit certain

criteria to qualify for solicitation and may not be solicited for

PAC money until they respond to a prior solicitation to become

members of the organization and the organization responds

indicating acceptance)45 and then raise PAC money from the
35

desired, other corporations may only solicit their employees for a PAC

contribution twice a year. 11 C.F.R. § 114.6.

members through the multiple appeals required for fundraising.

Record 76, Attachment 1:5 (Lyons Affid. ¶ 9). Nonprofit

corporations organized under IRC § 501(c)(3) are not permitted

to have a PAC. Where a corporation has a PAC, the PAC

alternative is untenable where there is inadequate time to raise

sufficient funds by appeals to existing members through the

multi-step process of recruiting new members and then soliciting statutorily-limited contributions. See supra at n.46. The

PAC requirement in such situations is a complete ban. But the

presence or absence of PAC funds does not alter the fact that

requiring the PAC-option mandates strict scrutiny, as this Court

decided in Austin, noting that the Michigan Chamber of

Commerce had raised substantial PAC funds but still mandating

strict scrutiny. Austin v. Mich. State Chamber of Commerce,

494 U.S. 652, 658 (1990).

F. McConnell Employed Strict Scrutiny. Where a First

Amendment facial overbreadth challenge is brought, this Court

still requires a compelling interest and narrow tailoring.

McConnell employed the strict-scrutiny analysis by first setting

out the only compelling interest that justifies a prohibition, i.e.,

the corporate-form interest (only corporations are prohibited

from paying for electioneering communications, as are unions

for parity). See 540 U.S. at 205. The narrow tailoring analysis

was done by analogy, which began by framing the corporateform interest as an interest in regulating express advocacy, id.

then stated the issue as whether “the justifications that adequately support the regulation of express advocacy do not apply

to significant quantities of speech encompassed by the definition of electioneering communications.” Id. at 206. The Court

held that this “argument fails to the extent that the issue ads

broadcast during the 30- and 60-day periods preceding federal

primary and general elections are the functional equivalent of

express advocacy.” Id. Only at this point did the Court begin the
36

46The Intervenors actually engaged in prestidigitation to make it appear

that McConnell employed an intent-and-effect test instead of a functionalequivalence narrow-tailoring analysis by cut-and-paste rearrangement of

what this Court actually said in McConnell. See Intervenors’ Br. at 2, 9, 19

(substituting McConnells intent-and-effect language where the functional

equivalence language belongs in an apparent effort to substitute an intentand-effect test for the functional-equivalence narrow-tailoring analysis).

Where Intervenors do speak of functional equivalence, they repeatedly

precede it with “likely,” see, e.g., id. at 23 (“likely to function as express

advocacy”), trying to substitute the weaker idea of “likely” functional

equivalence for McConnell’s more demanding concept: “are the functional

equivalent of express advocacy.” 540 U.S. at 206 (emphasis added). 

47If the application of the prohibition to a communication depends on

the results of an external intent-and-effect investigation, then the prohibition

is unconstitutionally vague as applied. No one could know when speech is

protected. It should also be noted that the FEC in WRTL I expressly

overbreadth analysis, holding that plaintiffs failed to prove that

the prohibition reached a substantial number of “genuine issue

ads” as compared to the sham ads that were the “functional

equivalent of express advocacy.” Id. at 206-207. McConnell

decided only a facial challenge to the prohibition so that no asapplied issues could have been resolved, and the Court held in

WRTL I, 546 U.S. 410 (2006), that neither the language nor the

logic of McConnell precluded a challenge to the prohibition as

applied to grassroots lobbying. McConnell did not recognize

that the government had met its strict-scrutiny burden as applied

to the “genuine issue ads” that McConnell recognized. See 540

U.S. at 206 & n.88.

G. McConnell Did Not Create an Intent-and-Effect Test.

The centerpiece of Appellants’ argument is that McConnell

approved an intent-and-effect test warranting a broad contextual

investigation into the speaker’s alleged true purpose. FEC Br.

at 43; Intervenors’ Br. at 21.46 Their approach treats the actual

text of the communication as essentially irrelevant. It is an

empty vessel into which they pour discovered intent from an

external context that is often beyond the speaker’s control or

even knowledge.47 As shall be shown, the external context they
37

eschewed an intent test. Br. for Appellee at 39, WRTL I, 546 U.S. 410 (No.

04-1581) (“A constitutional standard that turned on the subjective sincerity

of a speaker’s message would likely be incapable of workable application;

at a minimum, it would invite costly, fact-dependent litigation.”).

48There is, of course, the relevant context of the elements of an

electioneering communication and whether the communication focuses on

a current legislative or executive branch matter. See supra n.30.

49The district court expressed skepticism about expert prognostication

after considering the efforts of two defense experts in this case. JS App. 19aurge is statutorily and constitutionally non-cognizable. But for

present, note that McConnell created no intent-and-effect test.

It is, of course, true that after establishing functional

equivalence as its narrow-tailoring analysis McConnell went on

to say, “The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads

are intended to influence the voters’ decisions and have that

effect.” 540 U.S. at 206. This intent-and-effect language was

merely descriptive of the sham ads that had just been declared

to be “the functional equivalent of express advocacy” and is not

(nor could it be) a constitutionally-permissible test in and of

itself. The district court correctly held that the proper functional

equivalence analysis is limited to “consideration [of] language

within the four corners of the . . . ads.” JS App. 22a.48 It said

that an intent-and-effect test is “practically unacceptable

because as-applied challenges . . . must be conducted during the

expedited circumstances of the closing days of a campaign

when litigating contextual framework issues and expert

testimony analysis is simply not workable.” JS App.19a. “More

importantly,” the court added, “it is theoretically unacceptable

because it proceeds on the highly questionable assumptions

that: (1) any subjective intent to affect the election, regardless

of its degree of importance, should negate an otherwise genuine

issue ad; and (2) . . . experts can actually project the ‘likely’

impact of a given ad on the electoral process.” JS App. 19a20a.49 It wrote that the Supreme Court had already recognized
38

20a, See supra at 18-22 (discussing experts’ opinions).

50Goldstein’s report, as presented to this Court in Vol III of the Joint

Appendix is available at http://www.law.stanford.edu/publications/ projects/campaignfinance/. In this Court’s McConnell records, the report was

in Defendants’ Exhibits, Vol. 3, Tab 7.

that “delving into a speaker’s subjective intent is both dangerous and undesirable when First Amendment freedoms are at

stake.” JS App. 20a. The district court pointed to the Supreme

Court’s rejection of an intent-and-effect test in Buckley, 424

U.S. at 43 (citing with approval Thomas, 323 U.S. at 535). JS

App. 20a-21a.

McConnell did not purport in any way to overrule Buckley

on this point, which is central to free expression, by referring to

“intent” and “effect.” 540 U.S. at 206. McConnell had already

specifically connected this “intent” language to the sham

“Yellowtail Ad” as being an ad “no less clearly intended to

influence the election” than an express advocacy ad. 540 U.S.

at 193 & n.78. So it was not creating a new “intent and effect”

testfor determining whether a communication is “the functional

equivalent of express advocacy.”

Rather, McConnell was simply citing language used by

defense expert Kenneth Goldstein, who used student coders to

separate ads provided to them into the categories of “Genuine

Issue Ads” or “Electioneering Ads.” Amended Expert Report of

Kenneth M. Goldstein on Behalf ofIntervenor Defendants at 24,

McConnell, 251 F. Supp. 2d 176, 2002 WL 33100340 (No.

02-581 and consolidated cases).50 “Specifically, coders were

asked whether the purpose of the ad was to ‘generate support or

opposition for candidate,’ or to ‘provide information or urge

action.’” Id. at n.20. Based on the coders’ perceptions and his

analysis, Goldstein argued “thatBCRA’s definition of Electioneering Communications accurately captures those ads that have

the purpose or effect of supporting candidates for election to

office.” Id. at 26 (emphasis added). McConnell was plainly

echoing that conclusion for purposes of its broad-brush facial-
39

51It should be recalled that the FEC and intervenors in McConnell urged

the Court not to consider any as-applied challenges in that facial challenge,

and then the FEC insisted in WRTL I that no as-applied challenges were

permitted, which the Chief Justice termed “a classic bait and switch.”

Transcript of Oral Arg. at 25, WRTL I, 546 U.S. 410 (No. 04-1581). So

McConnell could not have decided as-applied challenges, and especially not

in the midst of a facial substantial overbreadth analysis.

challenge analysis as a mere description of those ads that were

the “functional equivalent of express advocacy,” not creating a

new and constitutionally problematic test based on criteria this

Court had already rejected.

Moreover, McConnell’s expert-endorsed PBA Ad, infra at

n.65, was declared a “genuine issue ad” based on its content,

not contextual probing into intent and effect. The same was true

of all the ads coded by Dr. Goldstein’s student coders for the

Buying Time studies that were central to the McConnell

evidence. See, e.g., McConnell, 251 F. Supp. 2d at 307

(Henderson, J.) (“The students were asked to ‘code’ the ads

based on their content.”). And the Prime Sponsors Rule, a

grassroots lobbying exemption rule proposed to the FEC in

2002 by Senators McCain and Feingold and other prime BCRA

sponsors, likewise examined the four corners of a communication and required no contextual investigation into intent and

effect. See Bopp & Coleson, Distinguishing at 407-08 (Appendix). So based on practicality, constitutional imperative, and the

Appellants’ failed effort to prove cognizable intent and effect

through discovery and expert testimony, the district court

rightly rejected any reliance on an intent-and-effect test to

distinguish genuine from sham issue ads.

H. McConnell Did Not Shift the Burden of Proof. Another

effort to shift the burden to WRTL attempts to extract from

McConnell’s facial overbreadth analysis (i.e., how substantial

was the prohibition’s impingement on “genuine issue ads”) a

rule governing as-applied challenges (which were not at issue

and not the topic).51 The locus of this argument is McConnell’s

statement about how substantial the prohibition of genuine issue
40

ads might be in the future: “Moreover, whatever the precise

percentage may have been in the past, in the future corporations

and unions may finance genuine issue ads during those time

frames 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 (emphasis added).

The reference to “precise percentage” at the beginning of

thissentence (often excluded by those attempting to convert this

facial overbreadth analysis into an as-applied statement)

indicates that this sentence is about the facial challenge question

of how substantial was the alleged overbreadth. This sentence,

within the discussion of just how many genuine issue ads were

captured by the prohibition as compared to sham issue ads,

began by noting that “[t]he precise percentage of issue ads that

clearly identified a candidate and were aired during those

relatively brief preelection time spans but had no electioneering

purpose is a matter of dispute between the parties and among

the judges on the District Court.” id. (emphasis added), and

concluded that the “vast majority” of ads were not genuine

issue ads. Id. (emphasis added). The italicized words about

“percentage” and “majority” clearly indicate that the “in the

future” comment was only about the substantiality of the

alleged overbreadth. It could not have been about future asapplied challenges in any event, because neither future cases

nor as-applied challenges were before the Court.

So the “in the future” comment, in context, was about lack

of overbreadth in the future. The Court was considering the

“percentage” of “genuine issue ads” that would be captured by

the prohibition (as compared to the “sham issue ads” that

McConnell recognized were the intended target of the prohibition) in order to determine whether the overbreadth was

sufficiently broad for facial invalidation. After noting that the

experts had fought over the “precise percentage,” the Court

declared that prospectively the overbreadth could be reduced in

any event because, with knowledge of the prohibition, speakers
41

52Judge Leon used nearly identical “future” language in holding that the

primary definition of electioneering communication was unconstitutionally

overbroad and likely to be higher in a “particularly contentious, or active,

legislative period.” 251 F. Supp. 2d at 798-99. “[T[here is reason to believe

that the amount of issue advocacy likely to be generated in future election

cycles will be at least as substantial as it was during those years,” he

continued. Id. at 799 (emphasis added). The Supreme Court was simply

answering Judge Leon’s argument by saying that “in the future” percentages

might actually drop in light of people’s knowledge of the elements of the

prohibition, making overbreadth less substantial.

53The “in the future” comment was part of the two-part facial overbreadth analysis for which McConnell cited 540 U.S. at 207, the leading case

of Broadrick v. Oklahoma, 413 U.S. 601 (1973). McConnell summarized its

holding under the two parts as follows: “Far 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 (emphasis added). The

discussion of “pure issue ads,” id., or “genuine issue ads,” id. at 206 & n.88,

was to establish that the prohibition was not overbroad in the context of

“election-related advertising,” id. at 207, which included both “electioneering ads” and “genuine issue ads,” to use the terminology of defense expert

Goldstein in his report in the McConnell litigation. Consequently, this Court

was required by its analysis to talk about “genuine issue ads” in its facial

overbreadth analysis. It was not gratuitously throwing in words about

“genuine issue ads” that were irrelevant to its analysis and intended to be

employed outside that context. Its “in the future” sentence had a distinct

meaning in the facial overbreadth analysis context, but none beyond it.

could take measures to avoid the prohibition’s reach in some

situations.

52 But this “in the future” statement could not apply

to all situations because the Court immediately left open asapplied challenges by recognizing the category of “genuine

issue ads” and expressly stating that it “assume[d] that the

interests that justify the regulation of campaign speech might

not apply to the regulation of genuine issue ads.” Id. at 206

n.88. See also WRTL I, 546 U.S. 410 (as-applied challenges

permitted despite argument based on “in the future” statement).53 So the meaning of the “in the future comment” is

confined to its context and simply means that prospectively the
42

54Another attempted burden-shifting argument is to the effect that once

a facial challenge has been rejected no exception may be granted that goes

to the core of what the prohibition sought to limit. FEC Br. at 18, 32, 38-39.

The BCRA legislative history, the 2002 FEC electioneering communication

rulemaking, and the McConnell litigation clearly reveal that (a) sham ads

were the target of the prohibition and “genuine issue ads” were to be

protected and (b) genuine issue ads can be distinguished from sham ads. See

infra at Part IV and Bopp & Coleson, Distinguishing at 365. Since WRTL’s

ads are clearly “genuine issue ads” like the PBA Ad, this burden-shifting

argument fails and, to the extent that these ads are at the “core” or “heartland” of the prohibition, then the facial upholding of the prohibition must be

overruled. See infra at Part V. Another attempt to shift the burden is based

on the notion that once a provision is upheld facially then all as-applied

challenges shift the burden to the challenger (on the notion that because a

communication here falls within the electioneering communication

prohibition it must be considered presumptively a sham ad and the burden

immediately shifts to WRTL to prove it is a genuine issue ad). See FEC Br.

at 33-34. This flies in the face of this Court’s unwavering requirement that

burdens on First Amendment liberties must be justified by the government.

overbreadth of the prohibition is not sufficiently substantial for

facial invalidation. The comment may not be ripped from its

context and forced to mean things entirely foreign to its plain

contextual meaning. The comment does not shift the strict

scrutiny burden from the government and force challengers to

prove that the mentioned options are inadequate. It does not say

that the other options are adequate for genuine issue ads. In fact,

the Court clearly held that the PAC option was “constitutionally

sufficient” only as to “express advocacy.” 540 U.S. at 203 (emphasis added). Only to the extent that an ad can be proven by

the government to be the “functional equivalent of express

advocacy,” see id. at 206, is the PAC option adequate. So

McConnell onlyemployedfacial overbreadth analysis to sustain

the prohibition and left for another day distinguishing “genuine”

from “sham.”54

There are also burden-shifting efforts to equate this case to

cases where groups to which a disclosure provision would

validly apply must demonstrate that they should be exempted
43

55Examples of such cases are NAACP v. Alabama ex rel. Patterson, 357

U.S. 449 (1958), and Brown v. Socialist Workers ’74 Campaign Comm.

(Ohio), 459 U.S. 87 (1982).

56Even under a balancing of harms test, however, “genuine issue ads”

must be protected because in a republic the people’s sovereign right to

participate in self-government through the express liberties of expression,

expressive association, and petition of their representatives clearly outweighs

the interest of incumbent politicians in avoiding (at most) being criticized for

their official actions near an election, in which they have chosen individually

to run for reelection and collectively to remain in session (and highly active

legislatively) in the periods preceding elections. And even if it were proper

to shift the burden of proof, WRTL has established that its “genuine issue

ads” pose no cognizable risk to the integrity of elections that would justify

the prohibition and that a judicial test may be stated for future ads. See infra

at Part IV.

from disclosure because it would put their members at risk.55

But such a balancing of harms is not appropriate to this case

because the prohibition does not validly apply to “genuine issue

ads,” of which WRTL’s are examples.56 As to such genuine

issue ads, the asserted interests are not compelling, and even if

they were, the prohibition is not a narrowly-tailored, leastrestrictive means of dealing with the asserted interest. See Part

III. So this case is like MCFL, where (a) the FEC’s asserted

corporate-form interest was held not compelling as to MCFLcorporations, (b) the FEC’s asserted interest in a bright-line test

was held not compelling at all, and (c) the FEC’s asserted

interest in protecting donors was held neither compelling nor

served by the prohibition when there were less restrictive

means. MCFL, 479 U.S. at 259, 263, 260-61 (respectively).

I. The Avoidance-Option Is Inadequate. As just demonstrated, McConnell’s “in the future” comment (a) was only

about the substantiality of asserted overbreadth, (b) could not

have decided any future as-applied case, and (c) did not shift the

burden to WRTL. See supra at Part II. And requiring WRTL to

avoid using grassroots lobbying communications that meet the

electioneering communication definition (the “avoidance-
44

option”) or to justify why those options are not suitable would

impose such a burden on WRTL’s constitutional rights that it

would itself trigger strict scrutiny because these alternatives are

all less effective and constitutionally inadequate.

1. Not Broadcasting Is Inadequate. Using alternative

means of communication, such as newspaper ads,isinadequate.

Judge Kollar-Kotelly found in McConnell that broadcasting is

the most effective means for the sort of communications at

issue here. 251 F. Supp. 2d at 569-73. The obvious reason why

Congress banned only broadcast ads is that they are the most

effective, which is why WRTL chose broadcast ads. Barbara

Lyons, the long-time executive director of WRTL, with many

years of experience in promoting WRTL’s issues, Record 76,

Attachment 1 at 10 (2d Lyons Affid. ¶ 1), verified that broadcast advertising is the most effective means of grassroots

lobbying for WRTL and that “non-broadcast communications

would not provide WRTL with sufficient ability to reach the

people of Wisconsin with WRTL’s message,” Record 30:10

(AVC ¶ 51), which WRTL’s advertising consultant confirmed.

Record 81-2:156 (Vanderground Dep. 14:21-17:8); Record 81-

2:171 (Vandergound Dep. 76:12-77:5). And it is not the role of

government to tell citizens how best to communicate: “The

First Amendment protects [WRTL’s] right not only to advocate

[it’s] cause but also to select what [it] believe[s] to be the most

effective means for doing so.” Meyer v. Grant, 486 U.S. 414,

424 (1988). 

2. Non-Incorporation Burdens the Association Right.

The most effective means of gathering, analyzing, and disseminating the necessary legislative information is through citizen

watchdog groups created by the people. See Buckley, 424 U.S.

at 22 (association permits amplified speech). The most effective

form for these groups is the nonprofit corporation, not to amass

business income, which nonprofits do not do, but to facilitate

capable leadership by protecting directors and officers from

individual liability for acts of the group. Conditioning one’s
45

57Judge Leon singled out grassroots lobbying as being of special

concern, providing a rationale from the record as to why it is necessary to

name a legislator in such situations:

The mere fact that these issue advertisements mention the name of

a candidate (i.e., the elected representative in whose district the

advertisement ran) does not necessarily indicate, let alone prove,

that the advertisement is designed for electioneering purposes. To

the contrary, the testimony of various plaintiffs’ witnesses indicates

that, in their experience, there are many reasons why it is helpful,

if not necessary, to mention a candidate’s name in these advertisements in order to focus the public’s attention on a particular

pending piece of legislation. For example, Paul Huard of NAM

right to do grassroots lobbying on not incorporating imposes a

significant obstacle to the group’s speech, association and

petition activities.

3. Other Times Are Inadequate. Requiring grassroots

lobbying to be conducted before the blackout periods severely

compromises the effectiveness of the lobbying. In this case, the

blackout period was for 80 days and it is important to run the

advertising up to the time of the vote. See supra at 12-17 (and

the level of public interest is a prime consideration, too).

Grassroots lobbying is customarily done when a bill or matter

or an issue is directly before the Congress and it tends to be run

in the period leading up to the scheduled votes. Id.

4. Not Naming a Candidate Is Inadequate. Grassroots

lobbying is ineffective without telling constituents to whom

their call should be made. Often, only one or two members of

Congress in a state have a position on legislation that differs

from others and so would be the object of grassroots lobbying.

And many citizens do not know the names of their members of

Congress, so would not know whom to call. A statute requiring

that grassroots lobbying ads ask listeners to simply “Call your

member of Congress,” without naming the legislator needing

calls, would render grass-lobbying ineffective. As the evidence

in this case shows, naming a candidate is typical in grassroots

lobbying and is needed. See supra at 18-19.57 So it would not
46

states “[t]here are many reasons that an issue ad may need to refer

to the name of an elected official or candidate. Many bills are

identified with particular sponsors and may be known by the

sponsors’ names. Also, both incumbents and candidates may be

prominent people whose support or opposition to a bill or policy

may have important persuasive effect. . . . Also, if an issue ad is

used to explain why a legislative position of a particular Member

of Congress is good for his or her district or state, the member

generally must be mentioned. The same is true if the purpose of the

ad may be to induce viewers to contact the Member and communicate a policy position.” Huard Decl. ¶ 12 (emphasis added); see

also Finding 293. Similarly, Denise Mitchell, Special Assistant for

Public Affairs to the AFL-CIO, concurred, explaining that it is

often necessary to refer to a federal candidate by name because

“[t]he express or implied urging of viewers or listeners to contact

the policymaker regarding [an] issue is . . . especially effective by

showing them how they can personally impact the issue debate in

question.” Mitchell Decl. ¶ 11; see also Finding 293. 

McConnell, 251 F. Supp. 2d at 794 (emphasis in original).

have been as effective for WRTL to simply direct recipients to

the Senate switchboard or to the BeFair.org website to find out

who to lobby.

5. Not Targeting Is Inadequate. Grassroots lobbying must

target the constituents in order to be effective because these

constituents are the members of the public to whom the public

official is responsible.

III. The Prohibition Fails Strict Scrutiny as Applied.

 For restricting activity at the core of the American system

of representative government, no blunt instruments are permitted. MCFL, 479 U.S. at 264-65. Appellants must establish that

the prohibition as applied is the narrowly tailored, least restrictive means, to further a compelling governmental interest. See,

e.g., White, 536 U.S. at 774-75; MCFL, 470 U.S. at 262.

A. Asserted Interest. McConnell pointed to the already

recognized “compelling interest in regulating advertisements

that expressly advocate the election or defeat of a candidate for

federal office,” 540 U.S. at 205, to which sham issue ads were
47

the “functional equivalent.” Id. at 206. But since only corporations are prohibited (and unions for parity) from funding

electioneering communications,the interest actually underlying

the prohibition is the corporate-form interest, which McConell

acknowledged: “The . . . question— whether the state interest

is compelling—is easily answered by our prior decisions . . . ,

which represent respect for the legislative judgment that the

special characteristics of the corporate structure require

particularly careful regulation.” Id. at 205 (quotation marks and

citations omitted). So the issue is whether (1) the corporateform interest is compelling here and (2) the prohibition is the

narrowly-tailored, least-restrictive way to protect the corporateform interest (if compelling) as to a “genuine issue ad,” such as

the WRTL’s ads.

B. Narrow Tailoring. As demonstrated in Part IV. WRTL’s

ads are not the “functional equivalent of express advocacy,” Id.

at 206, because they are “genuine issue ads,”Id. at 206 n.88, not

shams. Rather, they are grassroots lobbying. The concern about

such ads affecting elections, which is the corporate-form

interest identified in McConnell, is not present,see Austin, 494

U.S. at 678 (Stevens, J., concurring) (“[T]here is a vast difference between lobbying and debating public issues on the one

hand, and political campaigns for election to public office on

the other”), and so does not apply. There is no corruption

flowing from corporate efforts to lobby legislative or executive

branch officials. See Bellotti, 435 U.S. at 776-78, 790-96,

Noerr, 365 U.S. at 135, 137-38.

C. Less Restrictive Means. Strict scrutiny of the prohibition

readily reveals two less restrictive means of dealing with the

corporate-form concern and the overlaidfunctional-equivalence

concern. The first eliminates the corporate-form concern by

eliminating corporate money, which is discussed here. The

second, which is the focus of Part IV, retains corporate money

but eliminates the functional-equivalence concern by defining

grassroots lobbying narrowly. These are sufficient to show that
48

582 U.S.C. § 434(f)(2)(E). Congress said that an entity permitted to

broadcast electioneering communications and required to report disbursements for them, would only have to report contributors of $1,000 or more to

that account (as opposed to general fund donors) if it made its disbursements

for electioneering communications from such a segregated bank account.

59Yet another means that would be less restrictive on the people’s First

Amendment liberties would be for Congress to recess during elections along

the British model, e.g., Congress might recess for sixty days before general

elections and thereby reduce the need for grassroots lobbying during these

times. Two Appellants’ amici curiae have suggested a shorter prohibition

period. See, e.g., Richard L. Hasen, Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws

Targeting Sham Issue Advocacy, 85 Minn. L. Rev. 1773, 1802 (2001)

(“[n]arrow drafting may include shorter time periods (for example 30 days

rather than 60 days”). It must be remembered that part of the perceived

problem that is set out to justify the prohibition is based on matters out of the

hands of the people, namely, (a) Congress remains in session in prohibition

periods, (b) prohibition periods are particularly intense and important

legislative times, see 251 F. Supp. 2d at 911 (Leon, J.) (prohibition periods

“are often periods of intense legislative activity” and “[s]ome of the

the prohibition is not narrowly tailored as applied.

When it enacted BCRA, Congress had before it one less

restrictive means of eliminating any concerns about corporateform corruption, namely, “a segregated bank account which

consists of funds contributed solely by individuals who are

United States citizens or nationals or lawfully admitted for

permanent residence . . . directly to this account for electioneering communications . . . .”58 WRTL stated in its complaint that

it would make all disbursementsfor electioneering communications from such an account if the court would not grant relief

from the prohibition as to disbursements from its general

account. Had Congress enacted this segregated bank account

option in place of the prohibition, Congress would have entirely

eliminated corporate-form corruption concerns because the

corporation would not have been using any money from

business activity or receipts from other corporations. Therefore,

the prohibition is unconstitutional as applied.59
49

President’s or Attorney General’s boldest initiatives are advanced during

election years—often within 60 days of an election”), and (c) incumbents

become candidates because they choose to run for reelection.

D. McConnell’s Other Concerns Not Implicated. Grassroots lobbying does not implicate McConnell’s other expressed

concerns about “sham issue advocacy.” 540 U.S. at 132. First,

the Court noted that such ads “could be aired without disclosing

the identity of, or any other information about, their sponsors.”

Id. In fact, the Court noted, “sponsors of such ads often used

misleading names to conceal their identity.” Id. at 128 (providing examples), 196-97 (“concealing their identities,” “dubious

and misleading names”).

This case implicates none of these concerns. Because

WRTL does not challenge the disclaimer and disclosure

requirements, there will be no ads done under misleading

names. There will continue to be full disclosure of all electioneering communications, both as to disclaimers and public

reports. The whole system will be transparent. With all this

information, it will then be up to the people to decide how to

respond to the call for grassroots lobbying on a particular

governmental issue. And to the extent that there is a scintilla of

perceived support or opposition to a candidate, a remote

possibility necessitated by the people’s sovereign right to

participate in representative government, the people, with full

disclosure as to the messenger, can make the ultimate judgment.

“Government is forbidden to assume the task of ultimate

judgment, lest the people lose their ability to govern themselves.” Bellotti, 435 U.S. at 792 n.31. “The First Amendment

rejects the ‘highly ‘paternalistic’ approach . . . .” Id.

Furthermore, the desirability of a “bright-line rule” does not

defeat this as-applied challenge. This Court has already held

that where constitutional justification is absent, the “desire for

a bright-line rule. . . . hardly constitutes the compelling state

interest necessary to justify any infringement on First Amendment freedom.” MCFL, 479 U.S. at 263 (emphasis in origi-
50

60In any event, the Court could adopt a bright-line test for grassroots

lobbying that is every bit as bright as the exception for MCFL-type

corporations created in MCFL. 479 U.S. at 263-64. The sort of “genuine

issue ads” that constitute grassroots lobbying can be neatly cabined without

placing any burden on the courts or the FEC.

nal).60 However, a bright line favoring, rather than suppressing,

expression, association, and petition is helpful to the people,

and one can be developed, as shown next.

IV. Genuine Issue Ads Can Be Adequately Identified

and Exempted from the Prohibition.

As the district court correctly held, the prohibition may not

constitutionally be applied to WRTL’s ads because they are

neither “the functional equivalent of express advocacy,” JS

App. 26a (citing McConnell, 540 U.S. at 206), nor was there

any “link” between the ads and Sen. Feingold’s fitness for

office. JS App. 27a. Such genuine issue ads can be adequately

identified and exempted from the electioneering communication

prohibition. See also Bopp & Coleson, Distinguishing at 386

(setting out suggested test with analysis).

A. The Unfulfilled Promise. A promise was made by

BCRA’s sponsors, when Congress debated the electioneering

communication prohibition, that “genuine issue ads” and the

subset of grassroots lobbying would not be prohibited. “Genuine issue ad” was a term of art used throughout BCRA’s

enactment and the McConnell litigation, including by this

Court. 540 U.S. 206 n.88 (“[W]e assume that the interests that

justify the regulation of campaign speech might not apply to the

regulation of genuine issue ads.”). See supra at 7-8 (use as a

term of art by McConnell experts and lower court).

Senator Jeffords (who introduced the Snowe-Jeffords

amendment that became the prohibition) declared on the Senate

floor that the prohibition

will not affect the ability of any organization to urge

grassroots contacts with lawmakers on upcoming votes.

The Snowe-Jeffords provisions do not stop the ability of
51

any organization to urge their lawmakers on upcoming

issues or votes. That is one of the biggest distortions of

the Snowe-Jeffords provisions. Any organization can,

and should be able to, use their grassroots communications to urge citizens to contact their lawmakers. Under

the Snowe-Jeffords provision, any organization still can

undertake this most important task.

147 Cong. Rec. S2813 (emphasis added).

Co-sponsor Sen. Snowe said: “[L]et’s look at the genuine

issue ad, . . . which this provision would not apply to.” 147

Cong. Rec. S2458 (emphasis added). Senator Paul Wellstone in

offering an amendment to the Snowe-Jeffords Amendment that

would eliminate an exemption from the prohibition for nonprofit organizations (under I.R.C. §§ 501(c)(4) or 527) declared

that genuine issue ads were not the target: “I am not talking

about ads . . . that are legitimately trying to influence policy

debates.” 147 Cong. Rec. S2846. He emphasized his point by

repetition, “I am not talking about legitimate policy ads. I am

not talking about ads that run on any issue.” Id.

From these statements by BCRA’s prime sponsors of the

electioneering communication prohibition, it is clear that the

congressional intent was to exclude grassroots lobbying ads.

But Congress left creation of the exemption to FEC rulemaking,

giving it authority to make exemptions, provided that no

exempted communication “promotes or supports . . . or attacks

or opposes a candidate” (called “PASO”). 2 U.S.C.

§ 434(f)(3)(B)(iv). So when the FEC did its 2002 electioneering

communications rulemaking it solicited comments on four

proposed alternatives for a grassroots lobbying exemption. 67

Fed. Reg. 51131. See Bopp & Coleson, Distinguishing at 407

(“FEC Proposed Rules for Comment” included in Appendix

collecting rule proposals).

The BCRA prime sponsors proposed specific wording for

a grassroots lobbying exemption and told the FEC that it had

authority to enact their rule under BCRA. Id. at 407-08 (Prime
52

61See also Detailed Comments of BCRA Sponsors Senator John

McCain, Senator Russ Feingold, Representative Christopher Shays, Representative Marty Meehan, Senator Olympia Snowe, and Senator James

Jeffords at 10 (attached to Letter from Sen. John McCain, Sen. Russell D.

Feingold, et al. to Mai T. Dinh of the FEC (Aug. 23, 2002)), available at

http://www.fec.gov/pdf/nprm/electioneering_comm/commen t s/

us_cong_members.pdf.

62One effect of the FEC’s refusal to make a rule was that it retained the

sole authority to make any exceptions through the advisory opinion

mechanism. The FEC made an exception to the prohibition when it said, in

FEC Advisory Opinion 2004-31, that candidate Russ Darrow, Jr.’s name

could be used in what were otherwise electioneering communications by the

automobile dealerships that he founded and that bore his name, but were now

under the day-to-day control of his son, Russ Darrow III. Of course, the selfgovernment rights at issue herein go far beyond such commercial speech.

Another effect is that grassroots lobbying during prohibition periods,

especially the highly active legislative period before general elections, seems

to have largely disappeared, likely due to the burdens of the PAC option. 

Sponsors Rule in Appendix).61 This lends weight to the

legislative history indicating that a grassroots lobbying exemption was intended, and it reveals that the prime sponsors

believed that a rule could be fashioned that would meet the

statutory PASO requirement.

But the FEC decided that the prime sponsors’ statement that

their rule complied with congressional intent as to the PASO

standard was wrong, “conclud[ing] that communications exempted under any of the alternatives for this proposal could

well be understood to promote, support, attack, or oppose a

Federal candidate.” Electioneering Communications, 67 Fed.

Reg. 65190, 65201 (Oct. 23, 2002). What governed under this

FEC statement was hearer perception, and the FEC’s apparent

belief that any reference to an issue and a candidate could be

viewed as influencing an election. As a reult, the FEC’s

understanding of PASO clearly encompassed communications

having only the remotest speculative possibility of some

minimal electoral effect.62 The FEC’s extremely broad PASO

interpretation was a precursor to the FEC’s position here that
53

63Prime Sponsors Rule: In the 2002 FEC rulemaking on electioneering

communications, the BCRA prime sponsors (Sen. McCain, Sen. Feingold,

Rep. Shays, Rep. Meehan, et al.—bolded names representing intervenors

in the present case) proposed the following rule for an exemption as being

within the FEC’s authority and properly distinguishing genuine from sham

grassroots lobbying:

The term “electioneering communication” does not include any

communication that:

 ****

(x)(A) Meets all of the following criteria: (i) the communication

concerns only a legislative or executive branch matter; (ii) the

communication’s only reference to the clearly identified federal

candidate is a statement urging the public to contact the candidate

and ask that he or she take a particular position on the legislative or

now (1) sees a genuine issue ad as an empty vessel into which

it can pour PASO intent based on an investigation into external

matters that are neither statutorily nor constitutionally cognizable and (2) believes it can regulate anything having some speculative, remote electoral effect. See supra at 19.

In 2006, the FEC twice rejected requests to make a rule

protecting genuine grassroots lobbying, see Bopp & Coleson,

Distinguishing at 360-61, even after this Court in January of

that year expressly pointed to the FEC’s authority to promulgate

a grassroots lobbying exception. WRTL I, 546 U.S. 410, 126 S.

Ct. at 1017. At the WRTL I oral argument, Justice Breyer noted

that “[Congress] told the FEC to go and produce a set of regs

that would, in fact, try to screen out that legitimate 7 percent [of

genuine issue ads],” and then asked the Solicitor General, “why

haven’t they done it?” Transcript of Oral Arg. at 43-44, WRTL

I, 546 U.S. 410 (No. 04-1581).

B. The Concession. Senator McCain and other BRCA

Prime Sponsors submitted a rule in the 2002 FEC rulemaking,

which was joined by counsel and groups briefing this case and

which focused on the text of the ad itself (along with the

relevant context, see supra at n.30, not on an external intentand-effect context.63 The Center for Responsive Politics
54

executive branch matter; and (iii) the communication refers to the

candidate only by use of the term “Your Congressman,” “Your

Senator,” “Your Member of Congress” or a similar reference and

does not include the name or likeness of the candidate in any form,

including as part of an Internet address; and (iv) the communication

contains no reference to any political party.

(B) The criteria in Paragraph (A) are not met if the communication

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

any issue; (ii) the candidate’s character, qualifications or fitness for

office; or (iii) the candidate’s election or candidacy.

Detailed Comments of BCRA Sponsors Senator John McCain [et al.] at 10.

The following participants in present briefing joined in proposing this

rule: The Campaign and Media Legal Center (Campaign Legal Center) ,

see Letter from Glen Shor to Mai T. Dinh at 10-11 (Aug. 21, 2002) (Trevor

Potter named therein as General Counsel); Common Cause and Democracy 21, Letter from Donald J. Simon to Mai T. Dinh at 12 (Aug. 22, 2002)

(adding that “this proposed exception properly balances the competing

concerns” and avoids “sham communications”). Comments available at

http://www.fec.gov (archive re electioneering communication rulemaking).

proposed a similar rule, only it allowed communicators to

actually name the person who was the target of the grassroots

lobbying. See Bopp & Coleson, Distinguishing at 408 (text of

CRP Ad). In light of these prior proposals conceding (a) that

genuine issue ads can be distinguished from sham ads and (b)

that the distinction can be made on the basis of a four-corners

rule (with relevant context) and without any intent-and-effect

investigation, it is surprising to see the Intervenors, their counsel, and amici now trying to switch sides. A distinction is

clearly possible, and it can be done on a four-corners rule. See

also Bopp & Coleson, Distinguishing at 381-84 (“Necessity of

Focusing on the Text”).

C. Cognizable Effect. In formulating a test for genuine

issue ads, the mere possibility of some incidental, de minimis

effect on an election would not be constitutionally cognizable

as a governmental interest. The FEC has already conceded this

before the Supreme Court inWRTL I when Justice Scalia asked:

“You think Congress has the power to prohibit any First
55

64See, e.g., Record 81:17 (FEC Mem. Supp. Mot. SJ at 9) (FEC argued

that the ads “would likely have had a significant electoral effect.”). But what

Bailey said at deposition was that WRTL’s “Waiting” ad “could have, could

have, it might have no impact, but could have substantial impact on the

election itself.” JA 148(emphasis added). Moreover, when called upon to

compare the Waiting Ad, JS App. at 5a n.5 to the PBA Ad, infra at n.65,

Bailey thought that WRTL’s ad was more subtle and so might be more

effective in influencing elections, JA 147-48, which, by logical extension,

yields the remarkable proposition that the less an ad is the functional

equivalent of express advocacy the stronger the government interest is in

regulating it.

65PBA Ad: This was called the “Feingold Kohl Abortion 60 Ad,” but

as its topic is partial-birth abortion (“PBA”), that name is more memorable:

America was outraged when two New Jersey teenagers checked

into a Delaware hotel and delivered and exposed [sic] of their

newborn baby in a dumpster. Most Americans couldn’t believe that

this defenseless human life could be so coldly snuffed out. But

incredibly, if a doctor had been present that day in Delaware and

delivered the infant, all but one inch from full birth and then killed

him it would have been perfectly legal. Instead of murder or

Amendment . . . conduct that might have an impact on the

election? I mean, is that the criterion for whether it . . . can be

prohibited?” Transcript of Oral Arg. at 31, WRTL I, 126 S. Ct.

1017 (No. 04-1581). The Solicitor General responded: “No,

Justice Scalia, it’s not.” Id. And after extensive discovery and

employing two experts, the FEC could only come up with the

possibility that WRTL’s ads might have some unquantifiable

“electoral effect.”64 The district court reviewed the FEC’s best

efforts to prove this electoral effect at summary judgment and

then rejected the “highly questionable assumption[] that . . . the

speculative conjecture of experts can actually project the ‘likely

impact’ of a given ad on the electoral process,” for which

assumption it did not find “sufficient evidence.” JS App. at 20a

(emphasis in original). So the government could not meet its

strict scrutiny burden to prove that it has a cognizable interest

in regulating WRTL’s ads.

D. The Prototype. Since the PBA Ad65 was identified by the
56

manslaughter, it would have been called a partial-birth abortion.

Killing late in the third trimester, killing just inches away from full

birth. Partial-birth abortion puts a violent death on thousands of

babies every year. Your Senators, Russ Feingold and Herb Kohl

voted to continue this grizzly [sic] procedure. Contact Senators

Feingold and Kohl today and insist they change their vote and

oppose partial birth abortion. Their number in W ashington is

202-224-3121.

McConnell v. FEC, 251 F. Supp. 2d 176, 312 (D.D.C. 2003) (Henderson, J.)

(“[sic]” included in Henderson opinion).

66Current requires that the ad not talk about a past issue, but one under

current consideration, which McConnell district court judges found to be a

useful way to distinguish genuine from sham issue ads. See, e.g., McConnell,

251 F. Supp. 2d at 577 (Kollar-Kotelly, J.) (rejecting ad as genuine for

“failing to note whether there was any upcoming legislation related to the

past votes that the advertisement might have been targeting”), 918 (Leon, J.)

(examples of “candidate-centered ads” cited past votes of legislators). This

requirement eliminates the “Jane Doe” ad cited in McConnell as being a

sham. 540 U.S. at 126-27.

FEC experts in McConnell as a “genuine issue ad,” and since it

was a grassroots lobbying ad run by a pro-life group that also

mentioned Senators Kohl and Feingold, it provides the logical

prototype for determining the factors that identify genuine issue

ads. See Bopp & Coleson, Distinguishing at 385-86 (more fully

discussing following proposal). It serves as both a good pattern

for creating a test and a benchmark for determining if other

elements are required.

In particular, the PBA Ad has three essential features that

establish that it is a grassroots lobbying ad that may not

constitutionally be prohibited under § 441b as an electioneering

communication. First, based on the content of the communication, it focuses on a current66 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. Second, the ad does not mention

any election, candidacy, political party, or challenger, or the

official’s character, qualifications, or fitness for office. Third,
57

67For example, in Christian Civic League of Maine, Inc. v. FEC, 433 F.

Supp. 2d 81 (D.D.C. 2006), the Crossroads Ad at issue said, “Unfortunately,

your senators voted against the Marriage Protection Amendment two years

ago.” See Bopp & Coleson, Distinguishing at 404 (text of Crossroads Ad in

Appendix), The district court, however, erroneously adopted the FEC’s

argument in stating that “the League’s advertisement – which characterizes

Senator Snowe’s past stance on the Marriage Protection Amendment as

“[u]nfortunate[]” – is the sort of veiled attack that the Supreme Court has

warned may improperly influence an election” and so pronounced it a

“sham.” CCLM, 433 F. Supp. 2d at 89 (opinion denying motion for

preliminary injunction). Even though Sen. Snowe was running unopposed in

a primary election, the district court insisted that “the advertisement might

have the effect of encouraging a new candidate to oppose Senator Snowe,

reducing the numbe r of votes cast for her in the primary, weakening her

support in the general election, or otherwise undermining her efforts to

gather such support, including by raising funds for her reelection.” Id.

as long as the ad follows this pattern, the fact that the ad states

the position of the candidate on the matter, which is objectively

accurate and based on publicly available means of verification,

and praises or criticizes the candidate for that position, does not

effect its genuineness.

Analytically, the first part makes the ad a grassroots

lobbying ad and, by its “focus,” eliminates cognizable electoral

effect. The second part further assures a lack of such cognizable

effect, by not mentioning anything about the election or “the

official’s character, qualifications, or fitness for office.” And

the third part allows a forceful discussion of the merits of the

matter, which merely say that the public official is wrong or

right on the issue, not wrong for office.67

E. WRTL’s Ads Meet the PBA Ad Test. WRTL’s ads are

materially indistinguishable from the PBA ad. First, WRTL’s

ads focus on a current legislative branch matter, take a position

on the matter, and urge the public to ask their two Senators to

take a particular action with respect to that matter in their

official capacity. Second, the ads do not mention any election,

candidacy, political party, or challenger, or the Senators’

character, qualifications, or fitness for office. Third, while
58

68Material at the website www.BeFair.Org cannot be incorporated by

reference into the WRTL ads because the FEC has never combined different

communications to create express advocacy and cannot now do so with

electioneering communications (although WRTL’s ads would remain

genuine issue ads even if the importation were permissible). Each communication stands on its own as to content, which means that other WRTL

communications (on the website or elsewhere) cannot be combined with the

ads to manufacture absent content in the ads. MCFL provides the example.

If one of MCFL’s newsletters had said “vote prolife” and another said

“candidate X is prolife” (as in a voter guide), no express advocacy would

have occurred, but if both things were said in the same communication then

it would contain express advocacy. See MCFL, 479 U.S. at 249. In the last

election, AARP ran its “Don’t Vote” campaign, which consisted of broadcast

ads telling people not to vote until they had visited AARP’s website to see

the position of the candidates on the issues. If the naming of candidates at

AARP’s website were incorporated by reference, then AARP’s broadcast ads

were electioneering communications. Until the FEC brings an enforcement

action against AARP, the argument that what is said at BeFair.org is

incorporated by reference in WRTL’s ads cannot be taken seriously. In any

event, the website contained no express advocacy, but did contain numerous

ways to contact the Senators (including emailing from within the website),

helpful information on federal courts, the judicial nomination process,

filibusters, and judicial emergencies. See http://web.archive.org/web/

20040729081130/http://www.befair.org/.

permissible, the ads do not state the position of the candidate on

the matter, nor do the ads praise or criticize the candidate for

that position.68

The sole focus of the ads was imminently pending, specific

legislative activity while Congress was in session, the timing of

which was beyond the control of WRTL. The ads asked for

calls to incumbent Senators who clearly had power to immediately affect the filibuster activity. These are unlike the “sham

issue ads” that ask hearers to call candidates, even non-incumbents, about something vague, abstract, unfocused, and/or

possibly in the past. The only reference to Sen. Feingold was in

the closing call to his constituents to contact him and ask him

to oppose the filibusters. As Judge Leon noted, even a

McConnell defense expert concluded that an ad mentioning a
59

69The fact that WRTL’s Ads asked people to call Senators Kohl and

Feingold about the filibustering implies nothing about the Senators’ positions

on the issue. Grassroots lobbying is used to firm up legislators’ positions as

well as to attempt to change them. So there can be no implication of criticism

of either Senator because judicial filibustering was criticized in the ads.

70As to PAC activity, the very statutory prohibition at issue in this case,

expressly excludes any consideration of PAC activity, activity of a separate

legal entity, Cal. Med. Assoc’n, 453 U.S. at 196, in determining whether a

candidate’s name is a genuine issue ad, if “the body of the ad

has no referent to [a candidate] whatsoever [and] the only

referent to [the candidate] is the call line.” 251 F. Supp. at 795.

WRTL’s ads asked constituents to call both Sen. Kohl and

Sen. Feingold, lessening the focus on Sen. Feingold even more

and indicating that the issue was filibustering, not Sen.

Feingold. The ads dealt with non-candidate Kohl and candidate Feingold equally, not singling Sen. Feingold out in any

way. The ads dealt with a long-time, natural concern for WRTL,

which would like President Bush’s judicial nominees to be

appointed, so there is no question of a made-up issue.

Defense expert witness Bailey, agreed that the ads were

grassroots lobbying ads, JA 151, referenced a specific current

legislative matter, JA 154, did not identify the Senators as a

candidates, JA 155, and contained no reference to Sen.

Feingold’s character, qualifications or fitness for office. JA 155.

At most, Bailey thought the ads only “implied” the Senators’

position on the issue, since the ads were consistent with the

proposition that one or both were undecided, JA 148,69

 and

contained no words that promoted, supported, attacked or

opposed them. JA 156.

F. The FEC’s Erroneous Subjective Intent Test. The

Appellants contend that the alleged subjective intent of WRTL

and the ads alleged electoral effect should be considered, not

just the content of the ads. In so doing, Appellants contend that

the court should look to external factors such as the activities of

WRTL’s PAC,70 statements in WRTL’s press releases and
60

corporation has made an independent expenditure or an electioneering

communication. 2 U.S.C. § 441b(b)(2)(C) (“shall not include . . . the

establishment, administration, and solicitation of contributions to a separate

segregated fund to be utilized for political purposes” (emphasis added)).

71This is an unconstitutional condition, i.e., if you want this benefit you

must give up that right, see, e.g., Healy v. James, 408 U.S. 169, 180-84

(1972); Speiser v. Randall, 357 U.S. 513, 518 (1958), in this case requiring

a tradeoff of constitutional rights instead of benefits.

72MCFL had a PAC, 479 U.S. at 255 n.8, but this Court never asked

what the PAC had said or done in its analysis of whether MCFL’s communication contained express advocacy. MCFL, 479 U.S. at 249. MCFL had

engaged in various legislation-oriented activities, including grassroots

lobbying. Id. at 242. But this Court never considered any such activity in

determining whether there was an independent expenditure. Instead the

newletters,71 and the campaign statements of opposing candidates, political parties and other public officials.

This Court has consistently rejected this argument. In

Buckley, express advocacy was to be found based on the

communication itself. Buckley, 423 U.S. at 43 (express advocacy “limited to communicationsthat include explicit words of

advocacy . . . .”). In so doing, Court rejected a test that depended on the hearers’ subjective judgment:

(W)hether words intended and designed to fall short of

invitation would miss that mark is a question both of

intent and of effect. No speaker, in such circumstances,

safely could assume that anything he might say upon the

general subject would not be understood by some as an

invitation. . . . Such a distinction offers no security for

free discussion. In these conditions it blankets with

uncertainty whatever may be said. It compels the

speaker to hedge and trim.

Id. (internal quotation marks and citation omitted). This Court

applied this analysis in MCFL by only looking to the text of

MCFL’s newsletter to find that it contained express advocacy.

479 U.S. at 249.72
61

Court noted that the “Special Edition” of MCFL’s newsletter said to vote

prolife and then identified which candidates were prolife. Id. at 249. The

sole focus was on the particular communication in the newsletter and what

its words said, not MCFL’s other communications.

73The protection for grassroots lobbying recognized in the NoerrPennington line of cases has been extended to “situations where groups

use . . . courts to advocate their causes and points of view,” Cal. Motor

Transport, 404 U.S. at 511, to the context of labor relations law, Bill

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737, 743 (1983), and

where groups used the court to advocate in the context of labor relations law.

BE & K, 536 U.S. 516.

As to the “electioneering communication” provision, the

law again requires examination of the communication itself and

the relevant context (i.e., the factual elements making up the

definition). “Electioneering communication” is defined as a

“communication” meeting certain criteria. 2 U.S.C. § 434(f)(3);

11 C.F.R. § 100.29. Nowhere in the definition is there any

instruction to see whether the organization’s PAC or press

releases said. And this Court in McConnell upheld the provision

based only on an examination of the texts of ads broadcast

during the black out period. 540 U.S. at 203-07.

Moreover, the Noerr-Pennington line of cases agrees that,

where the right to petition is involved, intent and effect cannot

be considered. Even in the context of federal antitrust and labor

relations law,

73 where no additional First Amendment rights

attach, the government cannot prohibit activities, that would

otherwise violate antitrust or labor law, when those actions are

“‘an attempt to persuade the legislature or the executive to take

particular action with respect to a law that would produce a

restraint or a monopoly.’” BE & K, 536 U.S. at 525 (quoting

Noerr, 365 U.S. at 136). These grass roots lobbying activities

were protected “regardless of intent or purpose.” Id. (quoting

Mine Workers v. Pennington, 381 U.S. 657, 670 (1965))

(emphasis added). Thus, in this grassroots lobbying case, the

alleged intent or purpose of WRTL is also irrelevant.
62

V. McConnell’s Facial Upholding Should Be Overturned.

In McConnell, this Court rejected a facial challenge to the

electioneering communication prohibition on the grounds that,

even though “the interests that justify the regulation of campaign speech might not apply to the regulation of issue ads,” the

statute’s application to genuine issue ads did not render it

facially overbroad. 540 U.S. at 206-07 & n.88. The arguments

raised by Appellants reveal that the McConnell’s facial upholding is incorrect for two separate and independent reasons. First,

becauseAppellants’ urge that the electioneering communication

prohibition directly targets genuine issue ads, such as WRTL’s,

it is now clear that the statute’s application to genuine issue ads

is substantial. See id. at 207-08. Second, even if the statute’s

overbreadth is still not substantial, the as-applied remedy has

proven to be inadequate to protect the exercise of core First

Amendment rights. This Court should therefore either render

the as-applied remedy meaningful by creating a test fully

protective of citizens’ right to engage in genuine issue ads, or

overturn McConnell’s facial upholding.

A. Appellants Put McConnell at Issue. Appellants themselves call into question McConnell’s facial upholding of the

prohibition by insisting that WRTL’s ads—which by any

reasonable test are “genuine issue ads” like the gold-standard

PBA Ad—are actually in the “heartland,” FEC Br. at 18, 28, 36

n.9 (emphasis added), or “core,” Intervenor’s Br. at 16, 21, 31

(emphasis added), of what Congress intended to ban with the

electioneering communication prohibition. If that claim by

BCRA sponsors and the FEC is to be taken seriously, then the

prohibition is facially unconstitutional. It is unconstitutional for

specifically targeting constitutionally protected “genuine issue

ads” with no strict-scrutiny justification and for seeking to

silence criticism of the government by the people. “[A]n

ordinance suspending unconditionally the right of assembly and

free speech” cannot stand. See Coates v. City of Cincinnati, 402

U.S. 611, 616 (1971).
63

74Although in McConnell Appellants argued percentages of genuine

issue ads that were affected versus sham issue ads, the FEC now only

mentions the word “sham” twice in its brief, neither time attempting to

distinguish “genuine issue ads” from “sham” ads, FEC Br. at 17, 48 n.14,

and the Intervenors’ Brief never mentions the word “sham.”

McConnell decided that the electioneering communication

prohibition was not facially unconstitutional, i.e., it was not

substantially overbroad. 540 U.S. at 207 (citing Broadrick v.

Oklahoma, 413 U.S. 601 (1973), and Virginia v. Hicks, 539

U.S. 113 (2003)). The substantial overbreadth doctrine is to

prevent chilling of protected speech, especially where, as here,

there are criminal sanctions. See, e.g., Hicks, 539 U.S. at 119

(and collected cases). The doctrine was developed to assure that

constitutionally protected speech would not go unprotected. See

id. (“reduces . . . social costs caused by the withholding of

protected speech”); Broadrick, 413 U.S. at 612 (“[I]t has been

the judgment of this Court that the possible harm to society in

permitting some unprotected speech to go unpunished is

outweighed by the possibility that protected speech by others

may be muted . . . .”). The Court’s facial upholding of the

prohibition was premised on the belief that the prohibition’s

application to protected “genuine issue ads” would be rare. See

540 U.S. at 206-07.

As now revealed by Appellants’ arguments, all of the

assertions made by the FEC, the prime sponsors and the

campaign finance reform lobby about how the prohibition is not

overbroad for capturing too many “genuine issue ads” were

themselvesshams74 because, under their present argument,there

really are no “genuine issue ads” that mention candidates. In

attacking as “sham” WRTL’s ads, which are in all material

ways like the Goldstein-endorsed PBA Ad, Appellants reveal

that all along they intended to restrict “genuine issue ads.” That,

of course, is apparent from the litigation in this case and in

CCLM (No. 06-589), in which the FEC and Intervenors have

made no effort to assist the courts and the people by identifying
64

the characteristics of “genuine issue ads.” Instead they have

made every effort to prove that their own experts in McConnell,

and this Court in McConnell, 540 U.S. at 206 n.88 (recognizing

“genuine issue ads”), were wrong and “genuine issue ads” do

not even exist.

Appellants attempt to justify the prohibition based on expert

opinion that WRTL’s ads might have some electoral effect. See

infra at 19. But these experts thought that any communication

during a prohibition period could influence an election, even if

it didn’t mention a candidate. See infra at 19-21. If that justification stands, then the prohibition is woefully underinclusive

and, if not overturned on that basis, Congress could use this

justification to expand the definition of electioneering communication to prohibit vast quantities of speech and activity.

Appellants essentially make a circular argument, namely, that

communications near elections affect elections so they may be

regulated, and then, when confronted with the necessity of

dealing with as-applied challenges for communications near

elections, they fall back on the argument that, since these

communications are near elections, they will affect elections

and so there can be no exceptions.

In light of Appellants’ new arguments, the McConnell

Court’s conclusion that application of the prohibition to genuine

issue ads would not be “substantial, either in an absolute sense

or relative to its application to election-related advertising,” 540

U.S. at 207, is now unsupportable. “[W]here [a] statute unquestionably attaches sanctions to protected conduct, the likelihood

that the statute will deter that conduct is ordinarily sufficiently

great to justify an overbreadth attack.” Members of City Council

v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). Thus,

concern for the chilling effect created by overbreadth should be

greatest where—as Appellants have now admitted is the present

case—the challenged statute is “aimed directly at activity

protected by the Constitution.” See Coates v. City of Cincinnati,

402 U.S. 611, 616 (1971). When a statute “‘does not aim
65

specifically at evils within the allowable area of state control

but, on the contrary, sweeps within its ambit other activities that

in ordinary circumstances constitute an exercise of the freedom

of speech,’” facial invalidation is appropriate. New York v.

Ferber, 458 U.S. 747, 771 & n.26 (1982) (quoting Thornhill v.

Alabama, 310 U.S. 88, 97 (1940)).

B.TheAs-Applied Remedy Is Inadequate. The overbreadth

doctrine assumes that, when a statute is upheld on its face, there

is an effective remedy for protected speech in the form of asapplied challenges. This Court assumes that “whatever

overbreadth may exist should be cured through case-by -case

analysis of the fact situations to which its sanctions, assertedly,

may not be applied.” Broadrick, 413 U.S. at 615-16 (emphasis

added). Thus, the as applied remedy must be “adequate to

assure that any overbreadth under the Law will be curable

through case-by-case analysis of specific facts.” New York Club

Ass’n, Inc. v. City of New York, 487 U.S. 1, 15 (1988) (emphasis added). 

But if an as-applied challenge is not “adequate,” then

“[m]any persons, rather than undertake the considerable burden

(and sometimes risk) of vindicating their rights through caseby-case litigation, will choose simply to abstain from protected

speech—harming not only themselves but society as a whole,

which is deprived of an uninhibited marketplace of ideas.”

Hicks, 539 U.S. at 119 (citation omitted). The problems

identified—considerable burden, risk of penalty, and risk of

silence—all exist here to a degree that the as applied remedy

does not cure the overbreadth.

The present case and CCLM (No. 06-589 in this Court)

reveal this. In both WRTL and CCLM, preliminary injunctions

were denied on the basis that neither group suffered any

cognizable harm because there was always the PAC-option

(although WRTL had insufficient PAC funds and CCLM had

no PAC) or the corporation could simply avoid the “electioneering communication” definition altogether. JS App. 63(a)-
66

75Or, as the FEC suggests, FEC Br. at 24 n.6, a citizen group could just

break the law and risk criminal penalties while still having to retain a lawyer,

endure an investigation that ties up its people and resources for extended

periods during the most crucial of times, reveal its otherwise private

documents and inner workings, and pay vast sums to fight the FEC and wellfunded Intervenors. Contra Dombroski v. Pfister, 380 U.S. 479, 486 (1965)

(“The assumption that defense of a criminal prosecution will generally assure

ample vindication of constitutional rights is unfounded . . . .”)

64(a), Christian Civic League of Maine v. FEC, 433 F. Supp.2d

81, 86 (D.D.C. 2006). The FEC fought expedition of CCLM’s

appeal. CCLM (No. 05-1447 in this Court) FEC Opp. to

Appellant’s Mot. to Expedite and Consolidate Briefing. Absent

a preliminary injunction, the opportunity for expression and

petition was forever lost. CCLM’s case was then held moot by

its district court. Christian Civic League of Maine v. FEC, No.

06-00614, 2006 WL 2792683 at *7 (D.D.C. Sept. 27, 2006).

WRTL finally obtained recognition from its district court that

its ads were constitutionally protected, but not in time to

actually broadcast them. JS App. 29a. But the district court

declined to state a general test to protect future ads, JS App.

22a-25a, so that this process must be gone through for each set

of ads.

So any citizen group having the temerity to want to run

future ads must (1) plan well in advance to allow ample

litigation time (problematic because the need for grassroots

lobbying frequently arises on short notice), (2) retain a lawyer,

(3) endure the invasion of its privacy by a discovery investigation at the hands of the FEC and Intervenors (which often will

include their political opponents), and (4) pay the legal expenses and costs to endure the scorched-earth litigation practices of the federally-funded FEC and the statutorily-permitted

Intervenors in order to get prior permission from a court to run

a constitutionally-protected communication at the core of our

system of self-governance by the people.75 After all that, they

may still run into the dead-end of having their case mooted for

lack of injunctive relief, as happened to CCLM. Groups like
67

76Prior restraint of speech, which is among “the most serious and the

least tolerable infringements on First Amendment rights,” Nebraska Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976), “suppresses the precise freedom

which the First Amendment sought to protect against abridgement,” Carroll

v. President & Comm’rs of Princess Anne, 393 U.S. 175, 181 (1968), which

“bear[s] a heavy presumption against its validity.” Vance v. Universal

Amusement Co., 445 U.S. 308, 317 (1980). Prior restraints are particularly

lethal when they deprives core political speech of its practical value. See

Carroll 393 U.S. at 180 (“It is vital to the operation of democratic government that the citizens have facts and idea on important issues before them.

A delay or even a day or two may be of crucial importance in some

instances.”); see also Shuttlesworth v. City of Birmingham, Ala., 394 U.S.

147, 163 (1969) (Harlan, J., concurring) (“[T]iming is of the essence in

politics. It is almost impossible to predict the political future; and when an

event occurs, it is often necessary to have one’s voice heard promptly, if it

is to be considered at all. To require Shuttlesworth to submit his parade

permit application months in advance would place a severe burden upon the

exercise of his constitutionally protected rights.”). Because the First

Amendment’s protection of political speech “has a structural role to play in

securing and fostering our republican system of self-government,” Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (Brennan, J.,

concurring), a prior restraint’s suppression of political speech, even if only

temporary until the putative speaker prevails in litigation, is “seriously

prejudicial to that system of government which the First Amendment, above

all else, should be thought to undergird.” John C. Jeffries, Jr., Rethinking

Prior Restraint, 92 Yale L. J. 409, 433 (1983).

WRTL and CCLM have to work very hard to raise money for

their ideological advocacy, and they do not have substantial

funds for litigation. Because such cases would be against the

FEC, citizen groups have no hope of recovering attorneys’ fees

and costs if they are a prevailing party. They must pay all of the

costs of obtaining court permission to run a “genuine issue ad.”

Thus, the proven pattern of opposition on the part of

Appellants to as-applied challenges reveals that they will not be

simple, quick, inexpensive little court visits whenever the need

for grassroots lobbying suddenly arises and citizens need to act.

Absent an adequate remedy to protect “genuine issue ads,” the

prohibition becomes like a burdensome prior restraint on core

political speech.76
68

C. Absent Clear Protection for Grassroots Lobbying,

McConnell’s Facial Upholding Should Be Overturned. How

may this problem be remedied? One option is to create a safeharbor for grassroots lobbying, as proposed herein, that will

eliminate the need for most future as-applied challenges. The

other option is to overturn the facial upholding of the prohibition in light of the real-world experience in WRTL and CCLM,

which have demonstrated that the as applied remedy for

protecting genuine issue ads is inadequate. In light of the

experience of these cases, WRTL believes that the better course

is to overrule the prohibition, and it specifically requests a

reversal. “Government may not suppress lawful speech as the

means to suppress unlawful speech. Protected speech does not

become unprotected merely because it resembles the latter. The

Constitution requires the reverse.” Ashcroft v. Free Speech

Coalition,535 U.S. 234, 255 (2002). This case is well within

this Court’s standards for reversal. 

This Court has provided standards for determining when it

is appropriate to overrule precedent. See Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 63 (1996). Stare decisis is a

“principle of policy,” not an “inexorable command.” Id.; Payne

v. Tennessee, 501 U.S. 808, 828 (1991); Vasquez v. Hillery, 474

U.S. 254, 266 (1986); Helvering v. Hallock, 309 U.S. 106, 119

(1940). The Court will overturn erroneous precedent. Smith v.

Allwright, 321 U.S. 649, 665 (1944). Two primary rationales

govern. First, “badly reasoned” or “unworkable” precedent will

be overturned. Seminole Tribe of Florida, 517 U.S. at 63.

Accord Payne, 501 U.S. at 827. Second, precedent is reversed

if an essential factual assumption of the prior case was inaccurate or becomes inaccurate. Vasquez, 474 U.S. at 266. This

Court applied these principles in Lawrence v. Texas. 539 U.S.

558 (2003). Justice Kennedy for the Court observed that stare

decisis deserves respect but is not “an inexorable command.”

Id. at 577. He noted that the prior decision relied on an essential

factual error. Id. at 571. Then he observed that it relied on
69

77In the recent election-law case of Randall v. Sorrell, 126 S. Ct. 2479

(2006), the Court addressed the issue of stare decisis in relation to Buckley

v. Valeo, 424 U.S. 1 (1976). Chief Justice Roberts and Justice Stevens

concluded that Buckley should not be overturned because there was no

subsequent change in the law, id. at 2489, there was no change in factual

assumptions, id., and state legislatures had relied on Buckley. Id. at 2490.

Four concurring justices left open the possibility of overturning Buckley. Id.

at 2501(Alito, J.) (“unnecessary to reach the issue”), 2501 (Kennedy, J.)

(regulation “may cause more problems than it solves.”), 2502 (Thomas and

Scalia, JJ.) (“no bar to overturing Buckley”).

78A number of states have adopted “electioneering communications,”

some of which reach all communications (not just broadcast), impose 

increased compliance burdens, and expand the time periods. See Alaska Stat.

§ 15.13.400(5); Ariz. Civ. Stat. Ann. § 16-901.01; Cal. Gov. Code § 85310;

Colo. Const. Art. XXVIII, § 2(7); Conn. Gen. Stat. § 9-333c; Fl. Stat.

§ 106.011(18); Hi. Code R. § 11-207.6; Idaho Code Ann. § 67-6602(f); 10

Ill. Comp. Stat. 5/9-1.14; N.C, Gen. Stat. § 163-278.80(2); Okla. Stat. tit. 74,

§ 257:1-1-2; S.C. Code Ann. § 8-13-1300(31)(c); Vt. Stat. Ann., Titl 17 §

2891; Wash. Rev. Code § 42.17.020(20); W. Va. Code § 3-8-1A(10); see

also Guam Code Ann. tit.3, § 19112.1.

flawed legal reasoning. Id. at 577. Therefore, the Court held that

it would not “remain binding precedent.”Id. at 578.77

Consistent with the above guideline, the experience in this

case and CCLM (No. 06-589) reveals that the assumption in

McConnell that as-applied challenges would be an adequate

remedy to protect genuine issue ads has proven inaccurate and

unworkable. And while a few state legislatures have adopted

electioneering communication prohibitions, they have viewed

McConnell as a blank check to impose regulations that go well

beyond those imposed by Federal law.

78 Therefore, there is clear

justification for partially overturning McConnell.

CONCLUSION

For the reasons stated, this Court should (a) overturn the

facial upholding of the prohibition in McConnell or (b) find the

electioneering communication prohibition unconstitutional as
70

applied to the three broadcast advertisements here, based on a

clear and workable test which protects genuine issue ads

generally. Alternatively, the prohibition should be declared

unconstitutional as applied if made with disbursements from a

segregated bank account as described in 2 U.S.C. § 434(f)(2)(E)

(donations only from individuals).

M. Miller Baker

Michael S. Nadel

MCDERMOTT WILL &

EMERY LLP

600 Thirteenth Street, NW

Washington, DC 20005

202/756-8000

202/756-8087 (facsimile)

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson 

Jeffrey P. Gallant

Raeanna S. Moore

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)