50986/2059557.1

Nos. 06-969 & 06-970

In the Supreme Court of the

United States

FEDERAL ELECTION COMMISSION, Appellant

v.

WISCONSIN RIGHT TO LIFE, Appellee

SENATOR JOHN MCCAIN ET AL., Intervenor-Appellants

v.

WISCONSIN RIGHT TO LIFE, Appellee

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF FAMILY RESEARCH COUNCIL, FREE

MARKET FOUNDATION, AND HOME SCHOOL

LEGAL DEFENSE ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF APPELLEE

STEPHEN W. REED

MATTHEW A. REED

REED & BROWN, LLP

35 North Lake Avenue

Suite 960

Pasadena, CA 91101

(626) 449-4521

March 23, 2007

KATHLEEN M. SULLIVAN

Counsel of Record

DEREK L. SHAFFER

STANFORD CONSTITUTIONAL

LAW CENTER

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 725-9875

Counsel for Amici Curiae
50986/2059557.1

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................iv

INTERESTS OF AMICI CURIAE .........................................1

SUMMARY OF ARGUMENT..............................................3

ARGUMENT .........................................................................4

I. SECTION 203 OPERATES IN PRACTICE AS

AN EFFECTIVE BAN ON GRASSROOTS

ADVOCACY BY MANY NONPROFIT

GROUPS IN KEY MEDIA DURING KEY

PERIODS OF LEGISLATIVE ACTIVITY.....................4

A. Section 203 Effectively Bans Grassroots

Advocacy in Key Media During Key Time

Periods........................................................................6

B. Few Grassroots Advocacy Groups Can

Benefit in Practice fromtheFEC’sMCFL

Exception....................................................................8

C. PACs Are Not a Realistic Alternative for

Many Grassroots Advocacy Organizations..............12

1. PACs Are Foreclosed to § 501(c)(3)

Organizations......................................................12

2. PAC Formation Imposes Significant

Regulatory Burdens and Costs...........................14

3. Forming a PAC Contradicts the Mission

of Some Apolitical Grassroots Groups...............15

D. As-applied Challenges to Section 203 Cannot

Adequately Protect Grassroots Advocacy................15
iii

TABLE OF CONTENTS –continued

Page

50986/2059557.1

II. NO COMPELLING INTEREST JUSTIFIES

SECTION203’SEFFECTIVEBANONPREELECTION BROADCAST ISSUE ADVOCACY

BY NONPROFIT GRASSROOTS GROUPS ...............16

A. Broadcast Advocacy By Nonprofit Grassroots

Advocacy Groups Does Not Corrupt

Candidates................................................................17

B. Broadcast Advocacy By Nonprofit Grassroots

Advocacy Groups Does Not Distort the

Political Marketplace................................................18

C. Any Congressional Interest In Preventing

Negative Advertising is Illegitimate.........................20

III. EVEN IF § 203 SERVES COMPELLING

INTERESTS, IT IS NOT NARROWLY

TAILORED TO ANY SUCH INTEREST ....................21

A. In § 203 of BCRA, Congress Expressly Set

Forth a Less Restrictive Alternative That

McConnell Incorrectly Ignored ................................22

B. The Ban On Electioneering Communications

Is Overinclusive In Regulating Too Many

Issue Ads By Grassroots Advocacy Groups.............26

C. The Ban On Electioneering Communications

Is Underinclusive In Permitting Unfettered

Pre-Election Advocacy by Wealthy

Individuals and Media Corporations........................28

CONCLUSION ....................................................................29
iv

50986/2059557.1

TABLE OF AUTHORITIES

Page(s)

CASES

Almendarez-Torres v. United States, 523 U.S.

224(1998).......................................................24

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

652(1990)...................................................18-19

Beaumont v. FEC,278F.3d261(4thCir.2002)..............11

Buckley v. Valeo, 424 U.S.1(1976)...............17,18,19,21

Chevron U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984).............................................24

Christian Civic League of Maine v. FEC,

No. 06-0614,slip.op.(D.D.C.Sept.27,2006)............16

Colorado Republican Federal Campaign

Comm. v. FEC, 518 U.S. 604 (1996).........................16

FEC v. Colorado Republican Federal Campaign

Committee,518U.S.431(2001)..............................17

FEC v. Massachusetts Citizens for Life, Inc.,

479U.S.238(1986).......................................passim

FEC v. Nat’l Rifle Ass’n, 254 F.3d

173(D.C.Cir.2001)............................................11

FEC v. Survival Educ. Fund, Inc., 65 F.3d

285(2dCir.1995)...............................................11

First Nat’l Bank of Boston v. Belotti,

435U.S.765(1978)....................................17-18, 19

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

Minnesota Citizens Concerned for Life v. FEC,

113F.3d129(8thCir.1997)..............................11,12

Nixon v. Shrink Missouri Gov’t PAC,

528U.S377(2000)........................................17,21

NAACP v. Button,371U.S.415(1963)........................21

Randall v. Sorrell, 126S.Ct.2479(2006).....................16

Reno v. ACLU,521U.S.844(1997)...........................21

Sable Communications v. FCC,492U.S.115(1989)........21

Schaumburgv.CitizensforBetterEnv’t, 444 U.S.
v

TABLE OF AUTHORITIES –continued

Page(s)

620(1980)........................................................21

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C.2004)............14

Shays v. FEC,414F.3d76(D.C.Cir.2005)...................14

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

567(1957)........................................................18

United States v. Jin Fuey Moy,241U.S.394(1916).........24

UnitedStatesv.PlayboyEntm’tGroup, 529 U.S.

803(2000)........................................................21

Wisconsin Right to Life v. FEC, 2004 WL 3622736

(D.D.C.2004).....................................................7

STATUTES, RULES AND REGULATIONS

2U.S.C.§433.....................................................14

2U.S.C.§439......................................................14

2U.S.C.§434(f)...................................................19

2U.S.C.§434(f)(3).................................................5

2 U.S.C. § 434(f)(3)(B)(i)........................................28

2U.S.C.§441(c)(6)(A).......................................5,23

2U.S.C.§441(c)(6)(B)..........................................23

2U.S.C.§441b(a)..................................................4

2U.S.C.§441b(c)(2)..........................................5, 26

2U.S.C.§441b(c)(6).............................................22

Bipartisan Campaign Reform Act of 2002 (BCRA)

§ 201, Pub. L. No. 107-155,116Stat.81(2002)...........19

Bipartisan Campaign Reform Act of 2002 (BCRA)

§ 203, Pub. L. No. 107-155,116Stat.81(2002).....passim

Bipartisan Campaign Reform Act of 2002 (BCRA)

§ 204, Pub. L. No. 107-155,116Stat.81(2002).....passim

Bipartisan Campaign Reform Act of 2002 (BCRA)

§ 401, Pub. L. No. 107-155,116Stat.81(2002)...........25

Federal Election Campaign Act of 1971 (FECA),

§ 304(f)(3)(B)(i), Pub. L. 92-255,86Stat.3(1972).......28

Federal Election Campaign Act of 1971 (FECA),
vi

TABLE OF AUTHORITIES –continued

Page(s)

§ 316(c)(6), Pub. L. 92-255,86Stat.3(1972)...............24

I.R.C.§501(c)(3)............................................passim

I.R.C. § 501(c)(3)-1(c)............................................13

I.R.C.§501(c)(4)............................................passim

I.R.C.§527(e)(1)...............................................5,22

I.R.C.§4955.......................................................13

I.R.C.§6852(a)(1)................................................13

11C.F.R.§102.2(a)................................................14

11C.F.R.§102.2(a)(1)(iv).......................................14

11 C.F.R. § 102.7(c)...............................................14

11 C.F.R. § 102.9..................................................14

11 C.F.R. § 103.3(a)..............................................14

11C.F.R.§104.1(a)..............................................14

11C.F.R.§104.14(a).............................................14

11 C.F.R. § 110.1(k)(3)..........................................14

11 C.F.R. § 114.1(j)...............................................14

11 C.F.R. § 114.5..................................................12

11C.F.R.§114.10..................................................9

11 C.F.R. § 114.10(b)(3)(ii)......................................10

11C.F.R.§114.10(c)...............................................9

11C.F.R.§114.11................................................12

Treas. Reg. § 1.501(c)(3)-1(b)(3)(ii)...........................13

Treas. Reg. § 1.501(c)(3)-1(c)(3)(iii)............................13

Treas. Reg. § 1.527-6(g)..........................................13

SupremeCourtRule37.6..........................................1

Electioneering Communications, 70 Fed. Reg.

49,508 (Aug. 24, 2005)..........................................10

Express Advocacy; Independent Expenditures;

Corporate and Labor Organization Expenditures,

60 Fed. Reg. 35,300 (July 6, 1995)............................12

MISCELLANEOUS

Ben&Jerry’sFoundationHomePage,
vii

TABLE OF AUTHORITIES –continued

Page(s)

http://www.benjerry.com/foundation.................................9

Patricia Ward Biederman & Jason Felch, Antiwar Sermon

Brings IRS Warning, L.A. Times, Nov.7,2005.............13

Stephen Breyer, Active Liberty: Interpreting Our

Democratic Constitution (2005)................................2

Brief of Intervenor-Appellants, Senator

John McCain et al. v. Wisconsin Right to Life,

No. 06-970(2007).....................................12,27,28

Brief of Appellant, FEC v. Wisconsin Right to

Life, No. 06-969(2007)........................................12

144 Cong. Rec. H4,787 (daily ed. June 18, 1998)

(statement of Rep. Wamp).....................................18

144 Cong. Rec. H10,096 (dailyed.Oct.8,1998)..............7

147 Cong. Rec. S2,846 (daily ed. Mar. 26, 2001)

(statementofSen.Wellstone).............................23,25

148 Cong. Rec. S8,155 (dailyed.Sept.4,2002)...............7

Federal Election Commission, Electioneering

Communications Reports,

http://www.fec.gov/finance/disclosure/ec_table.shtml......10

Federal Election Commission, FEC Disclosure Reports

Advanced Search,

http://www.fec.gov/finance/disclosure/adv-search.shtml..11

Google.org Home Page, http://www.google.org/.................10

Carl Hulse, As Deadline Nears, Congress Slogs in

a Fiscal Quagmire, N.Y. Times, Sept. 5,2002,atA19.....7

Bringing Radio Advertising to Google Advertisers: An

Update, Inside Adwords, Dec. 17, 2006,

http://adwords.blogspot.com/2006/12/bringing-radioadvertising-to-google.html ......................................8

Internal Revenue Service, Election Year Activities

and the Prohibition on Political Campaign

Intervention for Section 501(c)(3) Organizations

(FS-2006-17) (2006)............................................13
viii

TABLE OF AUTHORITIES –continued

Page(s)

Internal Revenue Service, Project 302: Political

Activities Compliance Initiative 25 (Final Report

(2006)............................................................................13

I.R.S. Tech. Adv. Mem. 200446033 (Nov. 12, 2004)..........13

Troy Janish, See How They Run: Radio Ads and Google,

Wisconsin Technology Network, Mar. 13, 2007,

http://wistechnology.com/article.php?id=3768...............8

Library of Congress, Thomas, Advanced Bill

Summary & Status Search for the 108th Congress,

http://thomas.loc.gov/bss/d108query.html.....................7

Madeline Stanionis, When Only an Online Appeal

Will Do, Mal Warwick Assoc. E-Newsl.

(Mal Warwick Assoc., Berkeley, Cal.), July 2003,

http://www.malwarwick.com/learningresources/e newsletters/jul03.html...............................14-15

Target Corporation, Target Grants,

http://sites.target.com/site/en/corporate/

page.jsp?contentId=PRD03-004090........................9-10

Alexis de Tocqueville, Democracy in America (Harvey C.

Mansfield&DelbaWinthropeds.2000)(1840)...............2

Votes in Congress, N.Y. Times, Sept. 20, 1998,

Section 1, at 48...................................................................7
INTERESTS OF AMICI CURIAE1

The Family Research Council is a nonprofit, research and

educational organization dedicated to advancing a familycentered philosophy of public life through policy research

and outreach to the news media, the academic and business

communities and the general public. As part of its educational activity, the Council frequently urges its constituents to

contact their elected representatives to request that they vote

in favor of or opposition to pending legislation on family and

religious liberty issues of interest to the constituency.

The Free Market Foundation is a nonprofit, research and

advocacy organization committed to protecting freedom in

the marketplace and freedom in the exchange of ideas in a

democratic republic. As a core aspect of its mission, the

Foundation regularly engages in grassroots lobbying in support of these principles.

The Home School Legal Defense Association is a nonprofit advocacy organization that promotes families’freedom

to homeschool their children. As an essential element of its

mission, the Association engages in significant grassroots

advocacy at both the state and federal levels. Such advocacy

requires the ability to communicate with members whenever

an issue arises, without regard to the proximity of federal

elections.

Organizations like Amici have long been the lifeblood of

thenation’sdemocracy, enabling ordinary Americans to en1

The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. In accordance

with Rule 37.6, Amici state that this brief was not written in whole

or in part by counsel for any party, and no persons other than

Amici have made a monetary contribution to the preparation or

submission of this brief.
2

gage in civic life and political speech. Tocqueville noted

uponvisitingtheUnitedStatesthat“themostdemocratic

country on earth is found to be, above all, the one where men

. . . have most perfected the art of pursuing the object of their

commondesiresincommon.”Alexis de Tocqueville, Democracy in America 490 (Harvey C. Mansfield & Delba

Winthrop eds. 2000) (1840).Heobservedfurtherthat“freedom of association has become a necessary guarantee against

the tyrannyofthemajority,”id. at 183, and that, “[i]f men

who live in democratic countries had neither the right nor the

taste to unite in political goals, their independence would run

great risks,”id. at 490.

Amici believe that permitting the Government to restrict

core political speech by nonprofit, citizen advocacy organizations during fixed pre-election time periods gravely undermines political liberty and democracy:

[A]ctive liberty is particularly at risk when law restricts speech directly related to the shaping of public

opinion, for example, speech that takes place in areas

related to politics and policy-making by elected officials. That special risk justifies especially strong prospeech judicial presumptions. It also justifies careful

review whenever the speech in question seeks to

shape public opinion, particularly if that opinion in

turn will affect the political process and the kind of

society in which we live.

Stephen Breyer, Active Liberty: Interpreting Our Democratic

Constitution 42 (2005).

Amici have been chilled in their grassroots advocacy during periods preceding elections for fear of running afoul of

the legal provisions challenged in this case. Indeed, one

Amicus, the Family Research Council, has specifically curtailed pre-election broadcast advertising in which it previously had engaged. Amici respectfully urge the Court to

affirm the judgment below.
3

SUMMARY OF ARGUMENT

Appellants suggest that the prohibition in Section 203 of

theBipartisanCampaignReformAct(“BCRA”)againstcorporate“electioneeringcommunications”is something other

than a ban on core political speech warranting strict scrutiny

under the First Amendment. Amici respectfully submit that

this is incorrect. As experience since this Court's decision in

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

BCRA effectively forecloses Amici and other small, nonprofit, grassroots advocacy groups altogether from running

pre-election broadcast issue ads. The MCFL exception is so

grudgingly administered by the FEC that virtually no group

engaged in “electioneering communications”qualifies for

this exception in practice. Political action committees

(“PACs”) are unavailable to § 501(c)(3) corporations as a

matter of law, and are so costly and difficult to maintain that

only large, sophisticated corporations can employ them.

And while as-applied challenges remain available in theory,

they have proved, as in this case, to be protracted battles that

cannot be won until long after the relevant election.

Contrary to Appellants' arguments, the“electioneering

communications”provisioncannot satisfy strict scrutiny, at

least with respect to nonprofit, grassroots advocacy groups

like Appellee and Amici. To begin with, there is no compelling interest to support it. Speech by nonprofit advocacy

groups on behalf of their members does not “corrupt”candidates or “distort”thepoliticalmarketplace.Instead, it is Section 203 that distorts, leaving wealthy individuals and

corporate media conglomerates unfettered in their preelection broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have

banded together in grassroots groups to express their views.

But even if Section 203 did serve some compelling interest, it still would not be adequately tailored to achieving
4

it. Nonprofit advocacy groups funded by individuals are

readily distinguished from for-profit corporations funded by

general treasuries. Indeed, Section 203 as passed by Congress initially contained a less restrictive alternative that

would have reached only the latter: BCRA’s original

“Snowe-Jeffords exception”would have permitted nonprofit groups to fund electioneering communications with

contributions from individual supporters. Yet Congress

eliminated that exception by enacting the “Wellstone

Amendment.” Amici respectfully submit that this Court

should now hold that provision unconstitutional, severing it

from BCRA, restoring the less restrictive Snowe-Jeffords

exception, and giving grassroots advocacy at election time

the breathing room the First Amendment requires.

ARGUMENT

I. SECTION 203 OPERATES IN PRACTICE AS AN

EFFECTIVE BAN ON GRASSROOTS ADVOCACY BY MANY NONPROFIT GROUPS IN KEY

MEDIA DURING KEY PERIODS OF LEGISLATIVE ACTIVITY

Section 203 of BCRA prohibits any mention of a federal

candidate in a broadcast advertisement during specified preelection“blackout”periods—even by nonprofit, grassroots

advocacy groups that are vital contributors to the nation’s

political discourse.2In upholding § 203 against facial chal2

Section 203 of BCRA prohibits corporations and labor unions

from funding “electioneering communications.” 2 U.S.C. §

441b(a) (2000). Section 201defines“electioneeringcommunications”as“any broadcast, cable, or satellite communication which

(I) refers to a clearly identified candidate for Federal office; (II) is

made within (aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or (bb) 30 days before a

primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and (III) in the case of a
5

lenge, this Court downplayed its adverse effects on grassroots democracy, characterizing it as a mere burden, not a

ban, that simply displaces core political speech into other

time periods or other vehicles such as PACs. See McConnell v. FEC, 540 U.S. 93, 204 (2003). The FEC and the Intervenors similarly downplay the practical force of § 203 in

limiting grassroots democracy. See, e.g., Brief of IntervenorAppellants (“Int. Br.”) at 29, Senator John McCain et al. v.

Wisconsin Right to Life, No. 06-970 (2007).

The practical reality since McConnell demonstrates otherwise. In fact, for many nonprofit advocacy organizations

like Amici, pre-election blackoutson“electioneeringcommunications”are tantamount to a ban on core political

speech, disabling grassroots issue advocacy at precisely the

times when it might be most pressing. Under § 203, for example, grassroots nonprofits like Amici would be unable to

broadcast messages informing listeners of their Representative’sposition on a particular legislative proposal—even one

as significant as a possible constitutional amendment regarding marital status or a statutory ban on late-term abortion—

simply because incumbent officeholders chose to introduce it

after the blackout period had begun.

communication which refers to a candidate for an office other than

President or Vice President, is targeted to the relevant electorate.”

2 U.S.C. § 434(f)(3) (Supp. IV 2004).

Section 203(b) of BCRA would have exempted electioneering

communications by nonprofit advocacy groups incorporated under

§ 501(c)(4) and § 527(e)(1) of the Internal Revenue Code so long

astheywere“paidforexclusivelybyfundsprovideddirectlyby

individuals.”2U.S.C.§441b(c)(2).Butthatexemptionwas designedly negated by § 204 of BCRA, which withdraws the exception for § 501(c)(4) and § 527(e)(1) corporations in the case of

expendituresfor“targetedcommunications”—which, by definition, include all “electioneeringcommunications.”See 2 U.S.C. §

441b(c)(6)(A) (Supp. IV 2004).
6

None of the exceptions or alternatives that § 203 supposedly leaves open in fact suffices, as a practical matter, to give

relief from this effective ban on core grassroots advocacy.

First, while the FEC has interpreted thisCourt’sdecisionin

FEC v. Massachusetts Citizens for Life, Inc. (“MCFL”),479

U.S. 238 (1986), to require § 203 exemptions for some grassroots organizations, such exceptions are, under current FEC

practice, unavailable to the overwhelming majority of grassroots advocacy groups. Second, while this Court has suggested that PACs might provide an alternative vehicle for

issue advocacy, the daunting legal, financial and administrative difficulties of forming a PAC are prohibitive for most

smallgrassrootsadvocacygroups.Third,asWRTL’sown

experience in this case demonstrates, as-applied judicial challenges have proved ineffective in protecting grassroots

broadcasts in the relatively short time periods before their

political relevance evaporates. For these reasons, § 203 merits strict scrutiny under the First Amendment.

A. Section 203 Effectively Bans Grassroots

Advocacy in Key Media During Key Time

Periods

Section 203 imposes political broadcast blackouts of dizzying temporal and geographic scope. These blackouts in

fact span much of the map during much of the political calendar by virtue of the timing of primary elections in the several States. For example, a primary election may be run in a

single State but nonetheless force a blackout on a broadcast

media market that overlaps state lines, depriving voters in

adjacent states of broadcasts even outside the period preceding their own primary elections.

But even if the 60-day blackout period preceding the

general election is considered on its own, it is clear that it

blocks vital political advocacy by grassroots groups. The

United States Congress, unlike the British Parliament and

other legislatures, remains in session during the election sea-
7

son. Thus, the period preceding an election is a time in

which legislative activity typically increases and incumbent

legislators are more likely to listen to their constituents.

Within the 60 days preceding the 2004 general election,

for example, there were 499 bills and resolutions introduced

in the House of Representatives, see

http://thomas.loc.gov/bss/d108query.html (select “Introduced

inHouse”under“Stage in Legislative Process”for dates

9/2/2004 to 11/2/2004), which marked a 156% increase over

the 320 introduced in the previous two-month period, id. (select“IntroducedinHouse”under “StageinLegislativeProcess”for dates 7/2/2004 to 9/2/2004). Six of these bills were

proposed amendments to the Constitution;one,the“Marriage Protection Amendment,”wasboth introduced and sent

to a vote during the period.

Within the 60-day blackout period, the House and Senate

in recent years have also debated such issues as impeachment

of the President, see Authorizing the Committee on the Judiciary to Investigate Whether Sufficient Grounds Exist for the

Impeachment of William Jefferson Clinton, President of the

United States, 144 Cong. Rec. H10,096 (daily ed. Oct. 8,

1998); limitationson“partialbirth”abortion, see Votes in

Congress, N.Y. Times, Sept. 20, 1998, section 1, at 48; judicial nominations, see Wisconsin Right to Life v. FEC, 2004

WL 3622736, at *1 (D.D.C. 2004), vacated, 546 U.S. 410

(2006); creation of the Department of Homeland Security,

see Homeland Security Act of 2002, 148 Cong. Rec. S8,155

(daily ed. Sept. 4, 2002); and appropriation bills, see, e.g.,

Carl Hulse, As Deadline Nears, Congress Slogs in a Fiscal

Quagmire, N.Y. Times, Sept. 5, 2002, at A19.

Thus, it is a fallacy to suppose that § 203 limits political

speech in only a narrow or inconsequential window of time.

Nor does § 203 limit the speech of only a narrow class of

speakers. Some might suppose that the impact of § 203 is

felt only by large, sophisticated corporations that can afford
8

to pay the extravagant costs associated with purchasing television airtime. To the contrary, however, § 203 sweeps

within its prohibitions even inexpensive methods of grassroots advocacy by small nonprofit corporations supported by

persons of ordinary income.

Prohibited“electioneeringcommunications”include,for

example, radio broadcasts that provide a cheaper, simpler

alternative to television broadcasting.

3

Section 203 thus impairs a relatively inexpensive means for grassroots groups to

communicate with the public in numerous markets. It also

prevents grassroots organizations that do amass funds to run

a single or limited number of television ads from targeting

those scarce resources to the most relevant time period.

B. Few Grassroots Advocacy Groups Can Benefit

inPracticefromtheFEC’sMCFL Exception

Because this Court has long recognized that“[s]omecorporations have features more akin to voluntary political associations than business firms, and therefore should not have to

bear burdens on independent spending solely because of their

incorporated status,” MCFL, 479 U.S. at 263, the FEC has

made theoretically available a so-called MCFL exception to

the strictures of § 203. As administered on the ground, however, the MCFL exception has proved all but illusory. Only a

scant few of the nonprofit, grassroots advocacy groups whose

3 Forexample,Googlehasan“AudioAds”program through

which organizations can upload radio ads and select target audience demographics; Google, in turn, bids out such ads to radio stations. See Bringing Radio Advertising to Google Advertisers: An

Update, Inside Adwords, Dec. 7, 2006,

http://adwords.blogspot.com/2006/12/bringing-radio-advertisingto-google.html. The cost of broadcasting a national 30-second radioadthroughGoogle’sbiddingprogram is as low as $500 per

week. See Troy Janish, See How They Run: Radio Ads and Google,

Wisconsin Technology Network, Mar. 13, 2007,

http://wistechnology.com/article.php?id=3768.
9

speech § 203 limits have obtained the exception, often only

after great difficulty, delay and expense.

Tobeginwith,theFEC’sdefinitionofanMCFL organization is narrower than that of this Court. MCFL itself was

permitted to make independent expendituresbecauseit“was

formed for the express purpose of promoting political ideas,”

had “no shareholders or other persons affiliated so as to have

a claim on its assets or earnings,”and“wasnotestablished

by a business corporation or a labor union.”Id.

The FEC, by contrast, requires “qualifiednonprofitcorporations”(“QNCs”)to meet more stringent criteria in order

to qualify for the MCFL exception. See 11 C.F.R. § 114.10

(2006). Corporations organized under § 501(c)(3) of the Internal Revenue Code are categorically disqualified. And in

order be MCFL-exempt, a nonprofit must prove to the FEC

that its “only express purpose is the promotion of political

ideas,”that it never“directly or indirectly accept[s] donations

of anything of value from business corporations,”and that its

members receive no benefits that might providea“disincentive for them to disassociate themselves with the corporation

on the basis of the corporation's position on a political issue.”

Id. §§ 114.10 (c)(1)-(5) (2006) (emphasis added).

These procrustean requirements make it very difficult in

practice for nonprofit corporations to obtain MCFL status

from the FEC. Grassroots advocacy organizations like Amici

may not run broadcast ads mentioning candidates during

blackout periods if they have received a single dollar in corporate or labor contributions,4

devoted themselves to ideo4 Acceptance of corporate contributions in relatively small

amounts by nonprofit, grassroots groups is commonplace. For instance,theBen&Jerry’sicecreamcompanymakes donations at

its board’sdiscretionofover$1.1million annually to § 501(c)(3)

and other nonprofit groups. See Ben &Jerry’sFoundationHome

Page, http://www.benjerry.com/foundation/. Hundreds of other

corporations have similar giving programs. See, e.g., Target Cor-
10

logical but apolitical purposes, extended a credit-card program to their members, or raised any money (for example,

through bake sales, t-shirt sales, or paid advertising in newsletters) that was not specifically and expressly denominated

as for a political purpose. See 11 C.F.R. § 114.10(b)(3)(ii).

5

Not surprisingly, very few nonprofits ever qualify as

MCFL organizations under these draconian rules. Since

2003, only fourteen nonprofit groups broadcasting political

ads have qualified for the MCFL exception; most of these are

organizations with a sizeable infrastructure like the League of

Conservation Voters, the National Resources Defense Council, and Swift Boat Veterans for Truth.6 Of the approximately 70 organizations filing with the FEC as MCFLexempt, only about twenty were not affiliated with Planned

Parenthood, and most of these had sizeable parent organizaporation, Target Grants,

http://sites.target.com/site/en/corporate/page.jsp?contentId=PRD03

-004090 (noting that Target sets aside 5% of annual profits for distribution to § 501(c)(3) nonprofits through grants in $1000-$3000

amounts); Google.org, http://www.google.org (describing “Google

Grants”program through which Google, Inc. has donated $33 million in advertising to § 501(c)(3) organizations).

5

See also Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed. Reg. 35,300

(July 6, 1995) (stating that “creditcards. . . will be considered disincentives to disassociate. Consequently, corporations that offer

such things as affinity credit cards . . . will not be qualified nonprofitcorporations”);id. at 35,298(explainingthat“acorporation

that publishes a newsletter or magazine and sells advertising space

in that publication will be engaging in business activities, and will

not be a qualified nonprofitcorporation”).

6

See Federal Election Commission, Electioneering Communications Reports,

http://www.fec.gov/finance/disclosure/ec_table.shtml (listing organizations engaged in electioneering communications).
11

tions like the National Abortion Rights Action League or Defenders of Wildlife.7

Four circuits have recognized that the MCFL exemption

as codified by the FEC is too grudging. The Fourth Circuit

held that a nonprofit corporation was entitled to the MCFL

exemption when it received corporate contributions comprising less than eight percent of its overall revenue. Beaumont

v. FEC, 278 F.3d 261, 273 (4th Cir. 2002), rev’donother

grounds, 539 U.S. 146 (2003). The D.C. Circuit held that the

NRA’s$1,000incorporate receipts was de minimis and

therefore did not disqualify the organization from classification as MCFL-exempt. FEC v. Nat’lRifle Ass’n, 254 F.3d

173, 192 (D.C. Cir. 2001). The Eighth Circuit held that an

organization was entitled to the MCFL exemption even

thoughitengagedin“minorbusiness activities”andreceived

“insignificant contributionsfrom businesscorporations.”

Minnesota Citizens Concerned for Life v. FEC (“MCCL”),

113 F.3d 129, 130 (8th Cir. 1997). And the Second Circuit

has held that “a nonprofit political advocacy corporation,

which in fact receives no significant funding from unions or

business corporations, does not surrender its First Amendment freedoms.”FEC v. Survival Educ. Fund, 65 F.3d 285

(2d Cir. 1995).

Each of these court of appeals decisions recognized that,

when an incorporated group is “formedtodisseminatepoliticalideas,nottoamasscapital,”then the mere receipt of a

“smallamountofcorporatecontributions”willnotmake

suchagroup“a conduit for the type of direct spending [by

for-profit corporations] that creates a threat to the political

marketplace.” Beaumont, 278 F.3d at 266 & n.2 (internal

7

See Federal Election Commission, FEC Disclosure Reports Advanced Search, http://www.fec.gov/finance/disclosure/advsearch.shtml (select“IndependentExpenditure (Person or Group,

NotaCommittee)”under “CommitteeType”; compare groups

with a nine-digit“CommitteeID”that begins“C9000”).
12

quotations omitted). In seeking to limit these decisions, however, see MCCL, 113 F.3d at 130, the FEC has stated that

“knowingly accepted prohibited donations will void a corporation’s[MCFL] exemption, even if the corporation accepts

only a de minimis amount.”60 Fed. Reg. at 35,301.

To obtain even these limited judicial victories, each

grassroots group had to go to painstaking lengths in litigating

against the FEC. And, despite these holdings,theFEC’s

regulations have not relented. Thus, the MCFL exception

remains illusory from the perspective of groups like Appellee

and Amici, available if at all only through costly, protracted

and hard-fought battles against the Government’sregulators.

C. PACs Are Not a Realistic Alternative for

Many Grassroots Advocacy Organizations

This Court suggested in McConnell that advocacy groups

like Appellee and Amici, when unable to qualify for MCFL

status, can simply form PACs in order fund political ads. See

540 U.S. at 105-06, 204.8The FEC and Intervenors likewise

trumpet PACs as ready alternatives for grassroots advocacy.

See BriefofAppellant(“FECBr.”)at3-4, FEC v. Wisconsin

Right to Life, No. 06-969 (2007); Int. Br. 29-30. But the

PAC alternative is in fact legally foreclosed to many nonprofit organizations, and prohibitively burdensome, expensive, or unsavory to many others.

1. PACs Are Foreclosed to § 501(c)(3)

Organizations

Nonprofit advocacy corporations that qualify for tax exemption under Internal Revenue Code § 501(c)(3) are categorically forbidden from forming PACs, because they are

barred from conducting all political activities. Specifically,

8 A corporation is permitted to fund electioneering communications and express advocacy through a PAC. See 11 C.F.R. §§

114.5 & 114.11.
13

they are prohibited from “political campaign intervention,”

which includes “any and all activities that favor or oppose

oneormorecandidatesforpublicoffice.”9For this reason,

the IRS simply will not permit a § 501(c)(3) corporation to

form a PAC. See Treas. Reg. § 1.527-6(g) (prohibiting §

501(c)(3) organizations from forming PACs); I.R.S. Tech.

Adv. Mem. 200446033 (Nov. 12, 2004) (stating that a

501(c)(3) will be deemed to have intervened in a political

campaign if it supports the establishment of a PAC).10

The FEC sought by rule to preserve the ability of §

501(c)(3) organizations to broadcast genuine issue ads that

might technically fall within the definition of “electioneering

communications.” See Electioneering Communications, 70

Fed. Reg. 49508 (proposed Aug. 24, 2005). But that effort

9

Internal Revenue Service, Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3)

Organizations (FS-2006-17) (2006). The prohibition covers both

“direct”and“indirect”formsofintervention, Treas. Reg. §

1.501(c)(3)-1(b)(3)(ii)(2006),incampaigns,andprevents“the

publication or distribution of written or printed statements or the

making of oral statements on behalf of or in opposition to such a

candidate,”Treas.Reg.§1.501(c)(3)-1(c)(3)(iii) (2006). Penalties

for political intervention can include revocation of the organization’stax-exempt status or in extreme circumstances, retroactive

tax liability. See I.R.C. §§ 4955, 6852 (2006).

10 Although the IRS has historically given § 501(c)(3) organizations some leeway to engage in communications technically considered“electioneering”undertheFECdefinition, it has recently

begun aggressively enforcing the prohibition. See, e.g., Internal

Revenue Service, Project 302: Political Activities Compliance Initiative 25 (Final Report) (2006) (noting an increase in resources

available to pursue proactive investigations). The IRS even investigated one California church because its rector encouraged his

congregationto“voteyourdeepestvalues”duringaSundaysermon. See Patricia Ward Biederman & Jason Felch, Antiwar Sermon Brings IRS Warning, L.A. Times, Nov. 7, 2005.
14

was ultimately invalidated in light of BCRA. See Shays v.

FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), af’d414 F.3d 76

(D.C. Cir. 2005).

2. PAC Formation Imposes Significant Regulatory

Burdens and Costs

While PACs are in theory available to some nonprofits

devoted to issue advocacy, the battery of regulations governing the formation and operation of PACs impose often prohibitive difficulty, expense, and delay.

First, a PAC must assume a cumbersome array of, reporting and accounting obligations.

11 Second, a PAC’sfundraising ability is severely limited. A PAC may solicit donations

only from a “restrictedclass,”11C.F.R.§114.1(j),whichin

the case of a nonprofit advocacy group, typically includes its

members, its administrative personnel, and their respective

families. See id. Thus, a nonprofit PAC may not enlist all

potential supporters for a particular issue, but only those previously enlisted as members. Like an airline that advertises

not to all travelers, but only to those already signed up as frequent flyers, a PAC can receive only a fraction of its potential financial support. Third, PAC formation involves timeconsuming procedures that retard the ability of grassroots

advocacy groups to respond quickly to legislation that might

crop up suddenly.12 These regulatory burdens make PAC

11 See 11 C.F.R. § 102.2(a)(1)(iv) (appointment of treasurer); 11

C.F.R. § 104.1(a) (who must report); 11 C.F.R. §§ 102.2(a) &

104.14(a) (signing reports); 11 C.F.R. § 103.3(a) (depositing receipts); 11 C.F.R. § 102.7(c) (authorizing contributions and expenditures); 11 C.F.R. § 110.1(k)(3) (monitoring contributions); 11

C.F.R. §§ 102.9 & 104.14 (keeping records). Additional reporting

requirements apply at the state level. See 2 U.S.C. §§ 433, 439.

12 Unlike the large labor union or corporate parents of many PACs,

grassroots advocacy groups often must rely upon contributions

spawned by a particular political event like the introduction of a

specific bill. See, e.g., Madeline Stanionis, When Only an
15

formation infeasible for all but large, well-financed corporations.

3. Forming a PAC Contradicts the Mission of

Some Apolitical Grassroots Groups

Even if PACs were in practice a viable alternative mode

of speech, for many groups, PACs are anathema. As Justice

Kennedy recognized in McConnell,“[a] requirement that coerces corporations to adopt alter egos in communicating with

the public is, by itself, sufficient to make the PAC option a

false choice for manycivicorganizations.”McConnell, 540

U.S. at 332-33. The mission of many nonprofit advocacy

groups like Amici is not to influence elections, but to advocate on issues. They therefore should not be required to operate as if they are essentially partisan, political committees.

D. As-applied Challenges to Section 203 Cannot

Adequately Protect Grassroots Advocacy

Grassroots advocacy groups who seek to broadcast issue

ads before elections can take little comfort in the possibility

of bringing as-applied challenges to § 203. As the record in

this case vividly illustrates, such challenges are expensive,

protracted and uncertain—and, in any event, may be mooted

altogether by the passage of time. In this case, WRTL still

awaits judgment on the permissibility of ads it sought to

broadcast in 2004.

Other grassroots advocacy groups have faced similar dilemmas. The Christian Civic League of Maine sought a preliminary injunction in April 2004 asking a district court to

Online Appeal Will Do, Mal Warwick Assoc. E-Newsl.

(Mal Warwick Assoc., Berkeley, Cal.), July 2003,

http://www.malwarwick.com/learning-resources/enewsletters/jul03.html (describing NARAL’sonlinefundraising

drivetriggeredbythe“partial-birth”abortionlegislation of 2003, a

drive that garnered its highest-ever return rate).
16

allow it to run a radio ad mentioning Maine Senators Snowe

and Collins in connection with a federal marriage protection

bill notwithstanding the blackout period. Not until September 2006 did the court issue a final decision, at which point it

deemed the case moot. Christian Civic League of Maine v.

FEC, No. 06-0614, slip op. at 7 (D.D.C. September 27,

2006), 2006 WL 2792683.

While the district court suggested that a grassroots group

should simply sue earlier if it planned to broadcast an ad

mentioning a candidate during a blackout period, such advice

misconceives how issue advocacy works. Only groups that

exist solely to influence elections can know what they might

be saying before the next election; groups that respond to

breaking issues cannot predict as much without the services

of a soothsayer. Ironically, then, the groups most likely to

deserve as-applied exceptions are least likely to be able to

vindicate them in a timely fashion.

In sum,the“alternatives”supposedlyavailable to Amici

and like groups to fund “electioneering communications”despite § 203 are illusory. Section 203 operates in practice not

merely to channel core political speech in key media in key

time periods, but effectively to ban it. Accordingly, it merits

strict First Amendment scrutiny.

II. NO COMPELLING INTEREST JUSTIFIES SECTION 203’S EFFECTIVE BAN ON PREELECTION BROADCAST ISSUE ADVOCACY BY

NONPROFIT GRASSROOTS GROUPS

Because § 203 operates as an effective ban on independent expenditures for broadcast advocacy by nonprofit grassroots groups during election time, it should be subject to the

“exactingscrutiny”this Court has applied to other expenditure limitations in the campaign context. Randall v. Sorrell,

126 S.Ct. 2479, 2501 (2006); see Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 607 (1996);
17

Buckley v. Valeo, 424 U.S. 1, 16 (1976). Section 203 regulates independent expenditures, which is to say speech—as

opposed to the coordinated expenditures that would amount

to contributions. See FEC v. Colorado Republican Federal

Campaign Committee, 518 U.S. 431, 470, 476 (2001). Accordingly, the FEC and Intervenors must demonstrate a compelling interest to which § 203 is narrowly tailored.

“Thequantum ofempiricalevidenceneededtosatisfy

heightened judicial scrutiny of legislative judgments will

vary up or down with the novelty and plausibility of the justificationraised.” Nixon v. Shrink Missouri Gov’t PAC, 528

U.S. 377, 391 (2000). In this case, the government interests

asserted are novel indeed. No prior decision of this Court has

found upon record inquiry that“electioneeringcommunications”bynonprofitgrassrootsorganizationthreatenanygovernment interest so compelling as to warrant suppression.

Congress has, to be sure, attempted to regulate electionrelated corporate expenditures since the early twentieth century. It has done so to prevent the corrupt exaction of quid

pro quo favoritism more subtle than outright bribery with

suitcases full of corporate cash. And it has done so to prevent distortion of the political marketplace through use of

corporate war chests accumulated in the economic marketplace to fund express electoral speech. Nothing in these anticorruption or antidistortion rationales, however, warrants the

blackout of any broadcast by any nonprofit advocacy corporation that so much as references a candidate for federal office in the periods preceding elections.

A. Broadcast Advocacy By Nonprofit Grassroots

Advocacy Groups Does Not Corrupt

Candidates

The chief concern historically animating Congress’s

regulation of corporations’election-relatedspending“was

the problem of corruption of elected representatives through

thecreationofpoliticaldebts.”First Nat’l Bank of Boston v.
18

Bellotti, 435 U.S. 765, 788 n.26 (1978). As one Senate

leader explained in the debates preceding the Federal Corrupt

Practices Act of 1925: “Weallknow...thatoneofthegreat

political evils of the time is the apparent hold on political

parties which business interests and certain organizations

seek and sometimes obtain by reason of liberal campaign

contributions.” United States v. Automobile Workers, 352

U.S. 567, 576 (1957) (quoting Sen. Robinson, 65 Cong. Rec.

9507-08 (1924)) (ellipsis in original). This Court likewise

acknowledged the anticorruption rationale in Buckley, holding that, “[t]othe extent that large contributions are given to

secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracyisundermined....”424U.S.at 27.

This traditional anticorruption rationale, however, cannot

justify the strictures § 203 places upon pre-election broadcast

issue advocacy by nonprofit grassroots groups. This Court

has never held that prevention of quid pro quo corruption

was an interest warranting limits on independent expenditures. See id. at 45-46. Nor did concern with quid pro quo

surface in BCRA’slegislative history; to the contrary, Members of Congress complained that independent expenditures

imperiled their desired control over their campaigns, not that

issue ads made their rivals beholden to the advertisers. See,

e.g., Statement of Rep. Wamp, 144 Cong. Rec. H4787 (June

18,1998)(“Prettysoonweascandidateswillnotevenbe

able to control the message in our own campaigns.”).

B. Broadcast Advocacy By Nonprofit Grassroots

Advocacy Groups Does Not Distort the

Political Marketplace

In Austin v. Michigan State Chamber of Commerce, 494

U.S. 652 (1990), this Court for the first time upheld a restriction on independent political expenditures as satisfying strict

scrutiny under the First Amendment. In upholding a ban on

independent expenditures by a for-profit corporation, Austin
19

acknowledged a novel compelling interest—an interest in

combating“thecorrosiveanddistortingeffectsof[corporations’]immense aggregations of wealth.”Id. at 660-61. By

thisreasoning,corporatewealth“unfairly”influenceselections not by providing corrupt officials with reason to reward

their corporate benefactors at the expense of the public, but

rather by allowing corporations influence in the political

marketplace that is a function of their economic wealth rather

thantheirstakeholders’supportoftheideastheyespouse.

Amici respectfully submit that even on its own facts, involving a for-profit corporation, Austin’santidistortionrationale is difficult to reconcile with thisCourt’sfreespeech

traditions. In Buckley v. Valeo, for example, the Court stated

that “[t]heconceptthatthegovernment may restrict the

speech of some elements of our society in order to enhance

the relative voice of others is wholly foreign to the First

Amendment.”424U.S.at 48-49. Likewise, this Court long

heldthat“[t]heFirstAmendmentrejectsthehighlypaternalistic approach of statutes . . . which restrict what the people

mayhear.”Bellotti, 435 U.S. at 792 n.30. To the extent that

voters need to be better informed as to the source and bona

fides of a particular advertisement in order to evaluate it effectively, the disclosure requirements of BCRA, which are

not challenged in this case, serve that interest by means well

short of an effective ban. See, e.g., BCRA § 201, 2 U.S.C. §

434(f) (Supp. IV 2004).

But even if Austin were correctly decided with respect to

the distorting effects of political speech by a for–profit corporation, that conclusion is inapplicable to speech by nonprofit, grassroots advocacy groups like Appellee and Amici.

This Court acknowledged in Austin thegovernment’sconcernthat“expendituresreflectactual public support for the

politicalideasespousedbycorporations.” 494 U.S. at 660.

Of course, the expenditures of grassroots organizations do so.

As this Court noted in MCFL, individuals contribute to nonprofit advocacy groups because such groups provide “amore
20

effective means of advocacy than spending the money under

theirownpersonaldirection.”MCFL, 479 U.S. at 261. Limiting the ability of nonprofit, grassroots advocacy groups to

speak about issues of importance to them and to their individual supporters effectively silences people of modest

means who band together to amplify their ideas in the political marketplace.

Moreover, the speech that the Court held regulable in

Austin was express advocacy, a discrete and readily identified set that was, by definition, directed at influencing elections. Congress went much further in Title II of BCRA,

definingandforbidding“aclassofcommunicationsthatare

generally intended to influence electoral outcomes and are

likelytohavethateffect.” FEC Br. at 30. Even if Austin

correctly identified a compelling interest in reducing the distorting effects of the corporate form in express advocacy by

for-profit corporations, nothing in Austin presaged § 203’s

extension of this rationale to Amici or the ACLU alongside

General Electric or General Motors. As this Court cautioned

in MCFL, “[v]oluntary political associations do not suddenly

present the specter of corruption merely by assuming the

corporate form.”479 U.S. at 263.

C. Any Congressional Interest In Preventing

Negative Advertising is Illegitimate

Because § 203 so poorly serves to prevent corruption or

distortion as applied to grassroots nonprofits, it might be

asked whether other motives may have been at work. To the

extent that Members of Congress aimed to protect themselves

from the unpleasant experience of “negative attack ads,”their

purpose was illegitimate. The public is entitled to hear negative advertisements, even around elections, no matter how

much Members of Congress dislike them. See generally

McConnell, 540 U.S. at 262-63 (Scalia, J., dissenting). Certainly deference to the judgment of the Legislature on election matters is inappropriate where it “risk[s] such
21

constitutional evils as, say, permitting incumbents to insulate

themselvesfromeffectiveelectoralchallenge.”Shrink Missouri, 528 U.S. at 402 (Breyer, J., concurring). Congress’

raw hostility to speech is not a legitimate interest, let alone a

compelling one.

III. EVEN IF § 203 SERVES COMPELLING INTERESTS, IT IS NOT NARROWLY TAILORED TO

ANY SUCH INTEREST

Were §203’ssupposed ends compelling, its means are

still far too ill-tailored to satisfy strict scrutiny. Strict scrutiny

demands that any regulation of independent expenditures,

even pursuant to a compelling interest, be pursued through

the least restrictive means. See, e.g., Buckley, 424 U.S. at 68;

United States v. Playboy Ent. Group, 529 U.S. 803, 813

(2000); Reno v. ACLU, 521 U.S. 844, 874 (1997); Sable

Communications Inc. v. FCC, 492 U.S. 115, 126 (1989);

Schaumburgv.CitizensforBetterEnv’t, 444 U.S. 620, 637

(1980); NAACP v. Button, 371 U.S. 415, 433 (1963).

Section 203 cannot satisfy this requirement. It is both

overinclusive, sweeping in grassroots speech like that of

Amici withoutpreventinganydemonstrable“corruption”or

“distortion,”andunderinclusive,leavingwideberthfor“corruption”and“distortion”ofpoliticalmarketsthroughunfettered pre-election broadcast advocacy by rich individuals and

media corporations and by the PACs that large and sophisticated corporations have the resources to form. These deficiencies could be avoided by restoring the original version of

§ 203, which would have permitted electioneering communications by nonprofit advocacy groups to the extent of their

individual donations—a plainly less restrictive alternative.
22

A. In § 203 of BCRA, Congress Expressly Set

Forth a Less Restrictive Alternative That

McConnell Incorrectly Ignored

The best evidence that the current version of § 203 fails

the narrow tailoring required by strict scrutiny is that Congress itself included within Title II a less restrictive alternative to an all-encompassing ban on “electioneering

communications”byallcorporations. Under the portion of

§ 203 known as the“Snowe-Jeffords amendment,”organizations incorporated under Internal Revenue Code § 501(c)(4)

and § 527(e)(1) would have been permitted to use their general treasury funds for “electioneeringcommunications”so

long as the communications were paid for exclusively with

funds from individuals who are U.S. citizens, nationals, or

lawfully admitted for permanent residence. 2 U.S.C. §

441b(c)(2). As Senator Jeffords explained, under the provision, “[a]ny 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 (daily ed. March 23, 2001). The SnoweJeffords amendment thus provided an “exception for nonprofit corporations,”representingaself-conscious“expansion of the law as it existed prior to BCRA.”McConnell v.

FEC, 251 F. Supp. 2d 176, 214 (D.D.C. 2003), af’dinpart

&rev’dinpart, 540 U.S. 93 (2003).

This exception was negated, however, by the addition of

§ 204 of BCRA, the so-called“WellstoneAmendment,”

which was inserted to override the Snowe-Jeffords exception

of § 203 in toto. Section 204, now codified at 2 U.S.C. §

441b(c)(6), withdraws the exception for § 501(c)(4) and §

527(e)(1)corporationsinthecaseofexpendituresfor“tar-
23

geted communications”—which, by definition, include all

“electioneeringcommunications.”13

As Senator Wellstone explained the purpose of his superseding amendment: “It is to ensure that the sham issue

ads run by interest groups fall under the same rules and prohibition that the McCain-Feingold legislation rightly imposes

on corporations and union sham[] ads.”BCRA, 147 Cong.

Rec. S2846 (daily ed. Mar. 26, 2001). As Senator Wellstone

further explained:

Snowe-Jeffords forces disclosure of all ads that fall

under this definition, but under this bill, only corporations and unions may not spend funds from their

treasury or soft money for this purpose. . . . . [E]very

other group and organization, pick and choose—it can

be the NRA, it can be the Christian right, it can be the

Sierra Club, it can be other organizations on the left,

other organizations on the right, organizations representing every other kind of interest imaginable—they

can continue to ... pour [money] into these sham ads.

Id. at S2846-47. InSenatorWellstone’sview,the SnoweJeffords amendment of § 203 was unacceptable precisely because it would exempt certain nonprofit corporate speakers

from the prohibition. The Wellstone Amendment aimed to

close this perceived“loophole”bywhichnonprofitadvocacy

groups, conspicuously referenced by name, could otherwise

13 Compare 2 U.S.C. § 441b(c)(6)(A) (withdrawing SnoweJeffordsamendment“inthecaseofatargetedcommunication”)

with 2U.S.C§441b(c)(6)(B)(defining“targetedcommunication”

ascoextensivewithstatutorydefinitionof“electioneering communication”).See McConnell, 540 U.S. at 339 (Kennedy, J., concurring); McConnell,251F.Supp.2dat185(“Section204(‘The

WellstoneAmendment’),ineffect,withdrawstheSnowe-Jeffords

exceptionofSection203.”).
24

continue to exercise their First Amendment rights unimpeded

byBCRA’selectioneering-communications provisions.

While this Court recognized in McConnell that § 204

“doesnot,onitsface,exemptMCFL organizations from its

prohibition,”540 U.S. at 211, the Court nevertheless construed § 204 as including an exception for MCFL organizations in order to avoid the serious constitutional issue

otherwise presented. See id. at 210-11. Amici respectfully

submit that this was error. The canon of constitutional avoidancereflectsapresumptionof“respectforCongress,”United

States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916), that serves

the “basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that

elected representativeshavemade,”Almendarez-Torres v.

United States, 523 U.S. 224,238 (1998). But to trigger the

canon, a “statute must be genuinely susceptible to two constructions.”Id. Here, the statute with the Wellstone Amendment was unambiguous, rendering application of the

avoidance canon inappropriate.

14

McConnell erred further by ignoring Congress’sspecific

prescription for reconciling BCRA with the First Amendment

should the Wellstone Amendment prove unconstitutional.

Congress went to extraordinary lengths to make the amend14 That“theGovernment itself concede[d] that § 316(c)(6) does not

applytoMCFLorganizations,”McConnell, 540 U.S. at 211, is

irrelevant. Neither the FEC nor the Solicitor General may cure the

constitutional infirmity of § 204 by rewriting the statute contrary to

Congress’s express language and intent. Cf. Chevron U.S.A., Inc.

v. NRDC, Inc., 467 U.S. 837, 842-43(1984)(“IftheintentofCongress is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent

ofCongress.”);id. at 843 n.9. And they certainly cannot cure it by

way of a speech restriction broader than that Congress itself provided by way of a less restrictive alternative, here the SnoweJeffords amendment of § 203.
25

ment severable and to provide a fallback scenario. As SenatorWellstoneputit,“Under the worst case scenario, if the

Supreme Court rules that groups covered by my amendment

cannot be constitutionally barred from using treasury funds

for these sham issue ads, then the rest of [BCRA] will be

completely unaffected.”147 Cong. Rec. at S2847; see BCRA

§ 401 (providing that BCRA is subject to severability).

15

Congress therefore made clear that, were the Wellstone

Amendment’sbanonelectioneeringcommunicationsbyissue advocacy groups to be found unconstitutional, § 204

should be severed from the bill and the original SnoweJeffords provision of § 203 restored. By striking down the

Wellstone amendment of § 204 as contrary to the constitutional dictate of MCFL, without restoring the Snowe-Jeffords

exception of § 203 that was meant to serve in its stead, the

Court effectively rewrote the statute.

To the extent that, per Austin, a compelling interest exists

in avoiding distortion of the political marketplace through

corporate war chests amassed in the economic marketplace,

see Austin, 494 U.S. at 660, there is no doubt that exempting

nonprofit advocacy groups from the ban on electioneering

communications to the extent of their individual contributions would have been the less restrictive means of achieving

it. Snowe-Jeffords directly addresses the Austin interest of

preventing corporate money from distorting the contours of

political debate at election time. The Court has held that

15 See also McConnell, 540 U.S. at 339 (Kennedy, J., concurring);

McConnell, 251 F. Supp. 2d at 215 (“TheWellstoneAmendment

was codified in a separate section of BCRA in order to preserve

severability: hence, if the Court finds the inclusion of section

501(c)(4) organizations and section 527 organizations within the

ban on electioneering communications to be unconstitutional, the

Wellstone Amendment can be cleanly struck from the law and the

original Snowe-Jeffords exception for these groups will be restored.”).
26

Congress may require a corporation’sexpenditurestobeara

meaningful“correlation,”Austin, 494 U.S. at 660, or to constitutea“roughbarometer”of, thepublic’ssupportforits

political views. MCFL, 479 U.S. at 258. The Snowe-Jeffords

provision, by permitting electioneering communications of

nonprofitadvocacyorganizationsonly“if the communication

is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence,” 2 U.S.C.§

441b(c)(2), vindicates that interest. It prevents large accumulations of corporate wealth from distorting political debate in

ways“that have little ornocorrelationtothepublic’s support

for the corporation’s political ideas,”Austin, 494 U.S. at 660,

while permitting advocacy that does correlate with public

support because paid for exclusively by individual citizens.

Thus, this Court need only permit BCRA to have its congressionally intended effect in order to resolve this case and

others like it involving nonprofit advocacy groups.16

B. The Ban On Electioneering Communications

Is Overinclusive In Regulating Too Many

Issue Ads By Grassroots Advocacy Groups

By sweeping genuine issue ads into the same net as ads

intended to influence elections, § 203 regulates too many

speakers relative to its accepted ends as well as too much

16 Amici understand from counsel for Appellee that, in accordance

with the Snowe-Jeffords exception in § 203, WRTL has set up and

tracked a separate fund consisting of individual contributions that

mightbeusedtofund“electioneeringcommunications.” Thus,

invalidation of § 204 would suffice cleanly to dispose of this case.

Amici further submit, however, that to the extent that § 501(c)(3)

corporations are not expressly covered under the terms of the

Snowe-Jeffords exception, they are constitutionally entitled to such

exception no less than any other nonprofit funded by individuals.

.
27

speech. Nonprofit advocacy groups like Amici speak to issues of public policy and public values that naturally involve

reference to candidates for federal office, without striving to

swing any particular election result.

In McConnell, this Court discounted any notion that §

203, on its face, sweeps too broadlyinto“genuineissueads,”

concluding thatBCRA’sapplication to pure issue ads was

not substantial relative to its application to election-related

advertising. McConnell, 540 U.S. at 207. If that conclusion

appeared right at the time, then it has proved wrong since.

This case amply attests that, as applied following McConnell,

BCRA inhibits far more constitutionally protected speech,

including pure issue advocacy than the Court may have

originallysurmised.WRTL’sadsconcerned a filibuster issue that loomed large in 2004, in reference to one Senator

who was up for reelection and one who was not. Such ads

are just the tip of the iceberg, as other Amici well demonstrate.

If anything, the FEC and Intervenors now seek even

broader scope for § 203. Whereas this Court in McConnell

repeatedlytreatedabroadcastissueadvertisement’spurpose

as the touchstone, see 540 U.S. at 206, Appellants argue that

WRTL’sads areregulablemerelybecause“advertisements

suchasWRTL’swouldhaveanelectoraleffect in the context

oftheWisconsinsenatorialrace.”Int. Br. at 11 (emphasis

added). Indeed, as justificationforprohibitingWRTL’sissue

advertising, appellants offered testimony that, “within the

political context of an election campaign, any advertising that

addresses topics of current debate is very likely to have electioneering effects, regardless of the purported purpose of the

ad.”Id. (emphasis added). Setting aside any evidence about

whetherWRTL’sadswereintended to influence the election,

the FEC and Intervenors now insist that any effect on an election—irrespective of purpose—justifies suppression. In fact,

they argue that because the judicialfilibusterissue“played

animportantrole”inthe2004WisconsinSenaterace,any
28

advocacyrelatingtothejudicialfilibusterissue“wouldundoubtedlyinfluencetheelection”andthereforecouldbesuppressed under BCRA. Id. This argument suggests that § 203

may now sweep into its net issue-related political speech as

to which the only objection is that it may ultimately have an

effect on an election—a factor little more substantial than the

weather on Election Day. Such a broad mandate to suppress

issue advocacy that might influence public opinion exceeds

anything sanctioned by this Court in McConnell. Either the

interpretation of the law advanced by the FEC and Intervenors is wrong, or else, if it is right, then McConnell is due to

be revisited and §203’sschemeas a whole struck down.

C. The Ban On Electioneering Communications

Is Underinclusive In Permitting Unfettered

Pre-Election Advocacy by Wealthy

Individuals and Media Corporations

At the same time that nonprofits such as Amici and Appellee are restricted under § 203, wealthy individuals such as

George Soros and Rupert Murdoch are able to convey their

political views over the airwaves at unbridled strength.

Likewise, mega-corporations like General Electric, Time

Warner, Viacom, and Disney that happen to own broadcast

stations, even while operating them in the economic realm

for profit, can promote their political views, and others they

may see fit to license,overtheairwavesintheformof“news

stor[ies], commentar[ies], or editorial[s]”thatremainuncurbed in pre-election time periods. 2 U.S.C. §

434(f)(3)(B)(i); FECA § 304(f)(3)(B)(i) (BCRA electioneering communication media exemption). Finally, the most sophisticated and wealthy corporations can marshal their

resources to utilize PACs and to devise other end-runs

around BCRA.

The little guy is the biggest loser in all this. Small, organic, grassroots associations comprised of like-minded individuals of modest means are less likely to navigate the
29

daunting complexities and challenges of FEC regulations.

See MCFL, 479 U.S. at 255. The predictable and obvious

result—far better documented than the conjectural distortion

rationale of Austin and McConnell—is that § 203 deprives

the public of the voice of ordinary Americans relative to that

of the monied elite. What could be more distorting and antithetical to the First Amendment?

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

STEPHEN W. REED

MATTHEW A. REED

REED & BROWN, LLP

35 North Lake Avenue

Suite 960

Pasadena, CA 91101

(626) 449-4521

March 23, 2007

KATHLEEN M. SULLIVAN

Counsel of Record

DEREK L. SHAFFER

STANFORD CONSTITUTIONAL

LAW CENTER

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 725-9875

Counsel for Amici Curiae
1a

50986/2059557.1