QUESTIONS PRESENTED 

1. Whether the prohibition of certain broadcast communications by labor organizations and corporations in 

BCRA § 203(a) abridges the First Amendment insofar as it 

incorporates the “fallback” definition of the term “electioneering communications” set forth in BCRA § 201, with its 

last clause severed. 

2. Whether the provisions prohibiting coordinated expenditures in BCRA §§ 202 and 214(a) are constitutional in light 

of the statute’s mandate that no definition of “coordination” 

may require proof of “agreement or formal collaboration.” 

(i) 
ii 

PARTIES TO THE PROCEEDINGS 

This jurisdictional statement is filed on behalf of the 

American Federation of Labor and Congress of Industrial 

Organizations and its federally registered political committee, 

AFL-CIO Committee on Political Education Political Contributions Committee. Appellants were plaintiffs in AFL-CIO 

v. Federal Election Commission, Civ. No. 02-754 (D.D.C.), 

one of the eleven consolidated cases challenging the 

constitutionality of various provisions of the Bipartisan 

Campaign Reform Act of 2002. The appellees here, who 

were defendants or intervenor-defendants in the district court, 

are the Federal Election Commission; the Federal Communications Commission; the United States of America; Senator 

John McCain; Senator Russell Feingold; Representative 

Christopher Shays; Representative Martin Meehan; Senator 

Olympia Snowe; and Senator James Jeffords. 
TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED.......................................... (i) 

PARTIES TO THE PROCEEDINGS............................ ii 

TABLE OF AUTHORITIES ......................................... v 

OPINIONS BELOW...................................................... 1 

JURISDICTION ............................................................ 1 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED ...................................... 2 

STATEMENT OF THE CASE...................................... 2 

THE QUESTIONS PRESENTED ARE 

SUBSTANTIAL ........................................................ 9 

I. THE “FALLBACK” DEFINITION OF 

“ELECTIONEERING COMMUNICATIONS” 

AS SEVERED AND UPHELD BY THE 

DISTRICT COURT VIOLATES THE FIRST 

AMENDMENT ................................................... 10 

II. BCRA’S PROVISIONS PROHIBITING 

COORDINATED COMMUNICATIONS 

AND EXPENDITURES ARE UNCONSTITUTIONAL IN LIGHT OF THE 

STATUTE’S MANDATE THAT NO 

DEFINITION OF “COORDINATION” MAY 

REQUIRE PROOF OF AN “AGREEMENT 

OR FORMAL COLLABORATION” ................ 14 

CONCLUSION.............................................................. 18 

APPENDIX A: NOTICE OF APPEAL TO THE 

SUPREME COURT OF THE UNITED STATES .... 1a 

APPENDIX B: OPINIONS OF THE DISTRICT 

COURT...................................................................... 3a 

(iii) 
iv 

TABLE OF CONTENTS—Continued 

Page 

APPENDIX C: PERTINENT PROVISIONS OF 

THE BIPARTISAN CAMPAIGN REFORM ACT 

OF 2002, PUB. L. NO. 107-155, 116 STAT. 81 

(March 27, 2002) ....................................................... 4a 
v 

TABLE OF AUTHORITIES 

CASES Page 

Buckley v. Valeo, 424 U.S. 1 (1976)..............5, 11, 13, 16 


Clifton v. Federal Election Commission, 114 F.


3d 1309 (1st Cir. 1997), cert denied, 522 U.S. 

1108 (1998)........................................................ 6, 14 


Federal Election Comm’n v. Christian Coalition, 


52 F. Supp. 2d 45 (D.D.C. 1999)....................... 6 


Federal Election Comm’n v. Colorado Repub­


lican Fed. Campaign Comm., 518 U.S. 604


(1996)................................................................. 17 


Federal Election Comm’n v. Colorado Repub­


lican Fed. Campaign Comm., 533 U.S. 431


(2001)................................................................. 16-17 


Federal Election Comm’n v. Massachusetts Citi­


zens For Life, Inc., 479 U.S. 238 (1986)............ 11 


Federal Election Commission v. Public Citizen, 


Inc., 64 F. Supp. 2d 1327 (N.D. Ga. 1999),


rev'd on other grounds, 268 F.3d 1283 (11th 


Cir. 2001) ........................................................... 6 


Minnesota v. Mille Lacs Band of Chippewa


Indians, 526 U.S. 172 (1999)............................. 13 


STATUTES 

Bipartisan Campaign Reform Act of 2002, Pub. 

L. No.107-55, 116 Stat. 81 (2002)..................... passim


2 U.S.C. § 431(2)(A).............................................. 12 


2 U.S.C. § 441a(a)(7)(B)(i).................................... 6 


2 U.S.C. § 441b(a) ................................................. 8 


MISCELLANEOUS 

11 C.F.R. § 100.23(c)(2)(iii).................................. 6 


65 Fed. Reg. 76138 (December 6, 2000) ............... 6 


67 Fed. Reg. 65190 (October 23, 2002)................. 11 


147 Cong. Rec. S2704 (daily ed., March 22, 2001).. 13 


147 Cong. Rec. S3118 (daily ed., March 29, 2001).. 13 

IN THE 

�����������������������������������


———— 

No. 02-___ 

———— 

AMERICAN FEDERATION OF LABOR AND 

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

JURISDICTIONAL STATEMENT 

———— 

OPINIONS BELOW 

The district court’s May 2, 2003 opinions and final judgment are not yet reported. 

JURISDICTION 

The district court entered judgment on May 2, 2003. 

Appellants filed their timely notice of appeal on May 7, 2003. 

App. 1a. The jurisdiction of this Court is invoked under 

section 403(a)(3) of the Bipartisan Campaign Reform Act of 

2002 (“BCRA”), Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 

113-114. 
2 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

The First Amendment to the United States Constitution provides in pertinent part: 

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. 

BCRA is reproduced in full in the appendices to the 

jurisdictional statements in McConnell v. Federal Election 

Comm’n, No.02-1674, National Rifle Ass’n v. Federal Election Comm’n, No. 02-1675, and Federal Election Comm’n v. 

McConnell, No.02-1676. Sections 201, 202, 203 and 214 of 

BCRA are reproduced at App.4a, infra. 

STATEMENT OF THE CASE 

1. The AFL-CIO’s complaint in the district court presented 

First Amendment challenges to a number of provisions in 

Title II of BCRA: the outright prohibition on “any applicable 

electioneering communication” by labor organizations and 

corporations in § 203, which incorporates the primary and 

fallback definitions of “electioneering communication” in 

§ 201; the requirement of advance disclosure of electioneering communications in § 201; the requirement of advance 

disclosure of independent expenditures in § 212; and various 

provisions addressing coordinated communications and expenditures in §§ 202 and 214. The complaint also challenged 

the requirement in § 504 directing broadcast licensees to 

maintain and make available for public inspection any request 

to purchase broadcast time for “communicat[ing] a message 

relating to any political matter of national importance . . . .” 

The three-judge court, by a 2-1 vote, sustained the AFLCIO’s challenge to the primary definition of “electioneering 

communication.” See Henderson op. 201-28; Leon op. 
3 


73-87. However, in an opinion by Judge Leon that was 

joined by Judge Kollar-Kotelly “solely as an alternative to 

this Court’s finding that the primary definition is unconstitutional,” Per Curiam op. 8, the court partially upheld 

the fallback definition of an electioneering communication 

after severing its final clause as unconstitutionally vague. 

Leon op. 88-95. The district court also unanimously struck 

down BCRA § 201’s advance disclosure requirement for 

electioneering communications, Per Curiam op. 115-124; 

Henderson op. 228-42; unanimously struck down BCRA § 

504’s record-keeping requirement for broadcast licensees, 

Henderson op. 228-42; Kollar-Kotelly op. 614; Leon op. 111-

15; and held non-justiciable the challenge to BCRA § 212’s 

advance disclosure requirement for independent expenditures. 

Per Curiam op. 140-45. Finally, the district court rejected the 

AFL-CIO’s challenge to two of BCRA’s coordination provisions, § 202 and § 214(a), while finding that its challenges 

to §§ 214(b) and (c) were not justiciable at the present time. 

Per Curiam op. 138-69. 

Under section 403(a)(3) of BCRA, the final decision of the 

district court in this case is “reviewable only by appeal 

directly to the Supreme Court of the United States.” 116 Stat. 

114. This Court is directed “to advance on the docket and to 

expedite to the greatest extent possible the disposition of the 

. . . appeal.” Id. In addition to defending the appeals of the 

defendants and the intervenor-defendants from the district 

court’s decision striking down BCRA § 203 insofar as it 

incorporates the primary definition of “electioneering communications” in section 201, its decision invalidating section 

201’s advance disclosure requirement for electioneering 

communication, and its decision invalidating section 504, the 

AFL-CIO submits this jurisdictional statement in order to 

appeal the district court’s ruling upholding the fallback 

definition of “electioneering communication” as modified by 
4 

Judge Leon’s opinion. The AFL-CIO also appeals the decision of the district court sustaining under the First Amendment the coordination provisions in BCRA §§ 202 and 214. 

2. The AFL-CIO’s claims in this litigation concerning 

BCRA’s proscription of speech through broadcast media 

arise from its longstanding program, including through paid 

broadcast communications, to inform and engage union 

members and the general public concerning public policy 

issues affecting the lives of working families. In recent years, 

the AFL-CIO has spent millions of dollars on television and 

radio advertisements addressing issues such as the minimum 

wage, Medicare benefits, Social Security, health care, tax 

fairness, rights in the workplace, and trade policy, all in an 

effort to influence on-going policy and legislative debates on 

these issues and to hold federal officeholders accountable for 

their positions. The AFL-CIO’s efforts reached an early 

zenith in 1995 and 1996 in response to the “Contract With 

America,” the legislative agenda advanced by then-House 

Speaker Newt Gingrich and other House Republicans following the 1994 election that sought drastic cut-backs in virtually 

every federal program and regulatory scheme benefitting 

workers and their families. The AFL-CIO’s broadcast 

advocacy program has continued throughout every nonelection and election year since 1996 as these and other issues 

of vital importance to the labor movement and working 

families have persisted in the forefront of congressional and 

public debate. 

In seeking to defend BCRA’s limits on broadcast communications, defendants attempted to show that the statute’s 

restrictions will not impede the AFL-CIO’s advocacy 

program, but these arguments were rejected by both Judge 

Henderson and Judge Leon. Thus, Judge Henderson found 

that “BCRA’s ban on corporate and labor disbursements for 

electioneering communications and the statute’s disclosure 

and reporting requirements significantly interfere with the 
5 

AFL-CIO’s missions” of providing “an effective political 

voice to workers on public issues that affect their lives and to 

fight for an agenda at all levels of government for working 

families.” Henderson op. 116 (Finding of Fact 53). Judge 

Henderson also made detailed findings of fact regarding the 

AFL-CIO’s television and radio advertisements from 1995 

through 2001, Henderson op. 116-28, including, inter alia, 

that numerous ads run by the AFL-CIO would be banned 

under BCRA, Henderson op. 120 (Finding 53c), and that they 

would be “significantly less effective” if they did not mention 

legislative events or had to be aired outside of the weeks 

immediately preceding primary and general federal elections. 

Henderson op. 121 (Finding 53d). 

In finding that BCRA’s primary definition of electioneering communication is unconstitutionally overbroad, Judge 

Leon similarly cited as “a classic example of a legislationcentered genuine issue advertisement,” Leon op. 78, an AFLCIO ad from 1998 entitled “Barker,” id., and his findings of 

fact identify numerous other “genuine issue ads” run by the 

AFL-CIO that would have been prohibited under the primary 

definition. Leon op. 337-44. Most significantly with respect 

to this appeal, Judge Leon relied exclusively on AFL-CIO 

advertisements as examples of ads that, in some cases, would 

be protected under his revised fallback definition of electioneering communications and, in other cases, would be 

prohibited under that definition because they are not “neutral 

as to a federal candidate,” Leon op. 92, 344-346, although 

Judge Leon failed to explain the basis for his conclusion that 

these ads are entitled to less protection under the First 

Amendment than are the ads he approved. 

3. In Buckley v. Valeo, 424 U.S. 1, 47 (1976), this Court 

held that “prearranged or coordinated expenditures amounting 

to disguised contributions,” are subject to federal prohibitions 

and limitations on contributions rather than the more lenient 

rules applicable to independent expenditures. Congress 
6 

responded to the Court’s decision by amending the Federal 

Election Campaign Act (“FECA”) to provide that “expenditures made by any person in cooperation, consultation, or 

concert with, or at the request or suggestion of, a candidate, 

his authorized political committees, or their agents, shall be 

considered to be a contribution to such candidate.” Pub. L. 

No. 94-283, § 112 (May 11, 1976), 90 Stat. 486, codified as 

2 U.S.C. § 441a(a)(7)(B)(i) (2001). 

Although the language of this provision was extremely 

broad, it still left room for the federal courts to narrow the 

definition of “coordination” on a case-by-case basis by 

requiring more than mere consultation or discussion with a 

candidate. See, e.g., Clifton v. Federal Election Commission, 

114 F. 3d 1309, 1311 (1st Cir. 1997) (holding that coordination in the context of voter guides “implie[s] some measure 

of collaboration beyond a mere inquiry as to the position 

taken by a candidate on an issue”), cert. denied, 522 U.S. 

1108 (1998); Federal Election Commission v. Public Citizen, 

Inc., 64 F. Supp. 2d 1327 (N.D. Ga. 1999), (finding that 

contacts between a public interest group and a candidate in 

connection with an advertising campaign were not coordinated because of the absence of “collaboration”) rev’d on 

other grounds, 268 F.3d 1283 (11th Cir. 2001); Federal 

Election Comm’n v. Christian Coalition, 52 F. Supp. 2d 45, 

92 (D.D.C. 1999) (holding that substantial discussion with a 

candidate may be prohibited only where “the candidate and 

spender emerge as partners or joint venturers in the 

expressive expenditure. . . .”). And, taking its lead from these 

decisions, the Federal Election Commission issued regulations that defined coordination with some particularity to 

include, inter alia, “substantial discussion or negotiation . . . 

the result of which is collaboration or agreement.” See 11 

C.F.R. § 100.23(c)(2)(iii); 65 Fed. Reg. 76138, 76146 

(December 6, 2000). 

Dissatisfied with the measured approach to coordination 

taken by the courts and the FEC, Congress in BCRA 
7 

mandated a more expansive definition of “coordination” to be 

applied without regard to the facts in individual cases. 

Specifically, BCRA § 214(b) repeals the regulations issued 

by the FEC in December 2000. BCRA § 214(c), in turn, 

mandates that the Commission “promulgate new regulations 

on coordinated communications paid for by persons other 

than candidates, authorized committees of candidates, and 

party committees,” and directs that these regulations “shall 

not require agreement or formal collaboration to establish 

coordination.” Finally, BCRA § 214(a) amends section 315 

of FECA to add a provision making clear that expenditures 

made in cooperation or consultation with a political party 

committee shall constitute a contribution in the same manner 

as expenditures that are coordinated with candidates 

constitute contributions to the candidates, and BCRA § 202 

provides that expenditures for “electioneering communications” are contributions if they are coordinated with either a 

candidate or a political party. Although by its terms section 

214(c) is a limitation only on the FEC’s rulemaking power, 

Congress plainly intended also to bar the courts from 

interpreting sections 202 and 214(a) to require “agreement or 

formal collaboration” as a predicate to finding prohibited 

coordination under those provisions. 

In their per curiam opinion Judges Kollar-Kotelly and 

Leon held that plaintiffs, including the AFL-CIO, lacked 

standing to challenge BCRA § 214(c) because they were not 

injured by the statutory direction to issue new regulations, 

even if those regulations are mandated not to require 

“agreement or formal collaboration,” Per Curiam op. 156-58 

(“Plaintiffs’ allegation that they will be injured by regulations 

which by Congressional direction will be constitutionally 

overbroad, is not injury-in-fact”), and because plaintiffs’ 

claims could not be redressed by striking section 214(c) in 

any event. Per Curiam op. 158-59. In the alternative, the 

majority ruled that plaintiffs’ challenge to BCRA § 214(c) 

was not ripe for judicial review at this time because any 
8 

vagueness in the statutory definition of “coordination” might 

be cured by FEC regulations that were not before the court 

and that could only be considered in an action brought before 

a single district judge pursuant to the Administrative 

Procedure Act. Per Curiam op. 159-67.1 

While the district court refused to reach plaintiffs’ challenges to BCRA §§ 214(b) and (c), it did decide their 

challenge to BCRA § 214(a) on the merits, holding that 

BCRA’s provision expanding the prohibition on coordinated 

expenditures to reach expenditures coordinated with a 

political party committee was neither unconstitutionally 

vague nor overbroad.2 Per Curiam op. 146-54. With respect 

to vagueness, the court held that “[i]t is . . . possible that 

many, perhaps all, of Plaintiffs’ vagueness concerns have 

been remedied by the [FEC] regulations’ contents.” Per 

Curiam op. 148. And, with respect to overbreadth, the court 

held that the statute’s failure to require the existence of an 

“agreement” as a predicate to the finding of coordination was 

not required by the Constitution as interpreted in this Court’s 

prior decisions. Per Curiam op. 149-54. Similarly, the 

1

 The majority also held that the challenge to BCRA § 214(b) was 

moot because the FEC issued regulations on January 3, 2003, thereby 

obviating any injury caused by the absence of agency regulations defining 

coordination after the December 2000 regulations were repealed. Per 

Curiam op. 154-55. 

2

 The majority opinion is plainly wrong when it states that section 

214(a) does not establish a ban on coordination. Per Curiam op. 146 n. 

87. It is section 214(a) that causes expenditures that are coordinated with 

a party committee to be treated as contributions to that candidate, which in 

the case of corporations and labor organizations are flatly banned under 

2 U.S.C. § 441b(a). Similarly, BCRA § 202 causes electioneering communications that are coordinated with candidates or parties to be treated as 

contributions. It is sections 202 and 214(b) that extend the ban on corporate and union contributions to reach coordinated communications and 

expenditures. 
9 

district court determined that BCRA § 202 was not unconstitutional insofar as it incorporates the definition of “coordination” mandated in BCRA § 214. Per Curiam op. 138-40.3 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL 

The questions presented by the AFL-CIO in this jurisdictional statement have already been raised in jurisdictional 

statements submitted by the plaintiff-appellants in McConnell 

v. Federal Election Comm’n, No. 02-1674, National Rifle 

Ass’n v. Federal Election Comm’n, No. 02-1675, Republican 

Nat’l Comm. v. Federal Election Comm’n, No. 02-___, and 

Nat’l Right To Life Comm., Inc. v. Federal Election Comm’n, 

No. 02-___, Additional plaintiffs are expected to file 

jurisdictional statements presenting similar issues as well. In 

addition to the number of parties seeking review, the multiplicity and complexity of the opinions below support plenary 

review in order to provide badly needed guidance regarding 

the conduct and financing of federal elections. Finally, for 

the following reasons, the issues presented for review in this 

jurisdictional statement raise substantial constitutional issues 

involving the right of citizens to participate freely in the 

political process. 

3

 The Per Curiam opinion’s treatment of section 202 is unclear as to the 

basis for its decision. In its summary of the positions taken by the three 

judges, the opinion states that Judges Kollar-Kotelly and Leon “find this 

section constitutional.” Per Curiam op. 8. Elsewhere, these judges similarly stated that “Plaintiffs’ arguments are unavailing and the Court has 

been presented with no basis for finding Section 202 unconstitutional.” 

Per Curiam op. 140. However, the majority also indicated that section 

202 was not ripe for review “to the extent that the AFL-CIO challenges 

the scope of activities covered by BCRA’s definition of coordination.” Id. 

The majority did not further explain why some aspects of section 202 

were ripe while others were not, and, in any event, the court’s decision on 

ripeness was incorrect as set forth in the text. 
10 


I. 	THE “FALLBACK” DEFINITION OF “ELECTIONEERING COMMUNICATIONS” AS 

SEVERED AND UPHELD BY THE DISTRICT 

COURT VIOLATES THE FIRST AMENDMENT 

The district court agreed with the AFL-CIO and other 

plaintiffs that the primary definition of “electioneering communications” in BCRA §201 is unconstitutionally overbroad, 

and that one of the two operative elements of the so-called 

“fallback” definition—that a union- or corporate-financed 

broadcast be “suggestive of no plausible meaning other than 

an exhortation to vote for or against a specific candidate”—is 

unconstitutionally vague. The governmental and congressional-intervenor appellants have asked this Court to reverse 

those judgments. The AFL-CIO believes those judgments 

were correct, but concurs that the questions presented concerning those provisions are substantial and that this Court 

should note probable jurisdiction over them. 

The AFL-CIO’s appeal addresses the correctness of the 

district court’s judgment to sever and uphold the other 

operative element of the fallback definition, namely, that a 

union- or corporate-paid broadcast “promote[] or support[] a 

candidate for that office, or attack[] or oppose[] a candidate 

for that office (regardless of whether the communication 

expressly advocates a vote for or against a candidate). . . .” 

This element of the definition is itself unconstitutionally 

vague and overbroad and, as severed, actually enlarges the 

reach of the fallback definition in a manner that is plainly 

contrary to congressional intent. 

The fallback definition (both in its original form and as 

broadened by the district court) applies to all broadcast 

communications without regard to temporal or geographic 

considerations, unlike the primary definition (whose overbreadth derives principally from the scope of the content of 

the communications that it covers). As judicially enlarged, 

the fallback definition, through the interplay of BCRA §§ 201 
11 

and 203, proscribes a union or a corporation from paying for 

any broadcast, any time and anywhere, that “promotes,” 

“supports,” “attacks” or “opposes” an individual who is a 

federal candidate; and, the definition explicitly eschews any 

limitation to “express advocacy.” Thus Congress has enacted 

a prohibition, enforceable either civilly or criminally, that is 

directly at odds with the teachings of Buckley v. Valeo, 424 

U.S. 1, (1976), FEC v. Massachusetts Citizens for Life, 479 

U.S. 238 (1986), and a host of circuit courts of appeal 

decisions that identify express advocacy alone as the content 

standard that is narrowly tailored and serves a compelling 

governmental interest sufficient to justify prohibitory regulation of election-related speech in some circumstances. 

It is our view that the express advocacy jurisprudence 

establishes a constitutional line that BCRA and the court 

below have eviscerated. The four-word formulation in the 

enlarged fallback that establishes a new zone of criminalized 

speech is undefined in the statute, and the FEC itself, which 

is defending this statute in its entirety in this Court, 

acknowledged in its pertinent rulemaking proceeding last fall 

that it could not be certain that any reference to a candidate 

would fall outside that formulation. See “Electioneering 

Communications,” 67 Fed. Reg. 65190, 65200-02 (Oct. 23, 

2002). Notably, none of the appellees as to this issue 

have suggested in their jurisdictional statements that this 

formulation satisfies the First Amendment. 

Judge Leon’s explanation of this standard included the 

observation that it pertains to any comment that is “not 

neutral” about a candidate, Leon op. 92, and his discussion 

and examples eschew any requirement that broadcast content 

even pertain to the candidate qua candidate in order to fall 

within the prohibition. While such a restriction would not 

save the formulation from a finding of substantial overbreadth, its absence underscores that it comprises a chilling 

and sweeping prohibition on both factual and opinion 
12 


commentary on the behavior of federal officeholders, 

virtually all of whom are candidates at all times.4 Indeed, it is 

notable that on Friday, May 16, 2003, President Bush took 

actions that legally rendered him a “candidate” for 

reelection—for, from that moment until the district court’s 

issuance on Monday, May 19, of its order staying its May 2 

judgment below, it was a crime for the AFL-CIO, any other 

labor organization, any for-profit corporation and virtually 

any incorporated non-profit organization to broadcast anything about the President that was “not neutral,” irrespective 

of its subject matter or its urgency to a policy or legislative 

goal of the organization. 

That example resonates against a substantial record 

amassed in this litigation concerning the broadcast advocacy 

of the AFL-CIO and that of many other entities. While the 

imprecision of the enlarged fallback, notwithstanding Judge 

Leon’s various examples, makes it hazardous to declare 

which AFL-CIO advertisements since 1995 would have been 

prohibited had that formulation been in effect, certainly a 

very considerable number of them would have been banned, 

including, of course, many that were broadcast a year or more 

before the next election. And, equally to the point, the 

AFL-CIO would have been chilled by the prohibition itself 

from undertaking much of its broadcast communications. A 

federal law that silences the ability of unions, corporations 

and non-profit groups from broadcasting views, and even 

simply objective facts, that stray from “neutral[ity]” about 

elected officials is wholly foreign to the First Amendment 

and fundamental principles of a democratic society. 

4 Under FECA, a “candidate” is any individual who, among other 

actions, has received contributions or made expenditures in excess of 

$5,000.00. See 2 U.S.C. § 431(2)(A). Incumbent officeholders routinely 

raise and spend money from the very beginning of each election cycle in 

pursuit of reelection. 
13 

Although the AFL-CIO’s appeal must focus on the portion 

of the fallback that the district court upheld, it is important to 

place it in the context Congress intended, that is, the full 

fallback that included the last clause, which can only be read 

to have been intended to narrow the definition as a whole. 

While the district court correctly held that this clause was 

unconstitutionally vague, its further significance is that it is, 

in fact, not severable from the clause that was upheld, so the 

infirmities in the final clause invalidate all of the fallback. 

There is neither legal authority nor constitutional warrant for 

a court to cure statutory vagueness by excising language with 

the result that the statute more broadly prohibits speech than 

did the original provision in full. Moreover, severability is a 

function of legislative intent. Minnesota v. Mille Lacs Band 

of Chippewa Indians, 526 U.S. 172, 190 (1999); Buckley v. 

Valeo, 424 U.S. at 108. One cannot discern legislative intent 

from the statutory text that the first clause take effect alone. 

And, that analysis is fully confirmed by the congressional 

debate over the fallback. See 147 Cong. Rec. S3118-20, 

3122-23 (daily ed., March 29, 2001); 127 Cong. Rec. 

S2704-13 (daily ed., March 22, 2001). Accordingly, if either 

the first operative element or the second and last operative 

element of the fallback definition is unconstitutional, then the 

other element must fall as well. 

In sum, BCRA’s novel and aggressive carving-out of a 

category of speech subject to civil and criminal sanction 

presents a question of substantial importance under the 

Constitution, with significant ramifications for the role and 

participation of thousands of organizations in civic life, and 

the accountability of federal elected officials and of individuals who aspire to their offices. This Court should note 

probable jurisdiction. 
14 


II. 	BCRA’S PROVISIONS PROHIBITING COORDINATED COMMUNICATIONS AND EXPENDITURES ARE UNCONSTITUTIONAL IN 

LIGHT OF THE STATUTE’S MANDATE THAT 

NO DEFINITION OF “COORDINATION” MAY 

REQUIRE PROOF OF AN “AGREEMENT OR 

FORMAL COLLABORATION” 

In prohibiting any corporate or union expenditure that is 

made “in cooperation, consultation, or concert, with, or at the 

request or suggestion of, a national, State or local committee 

of a political party,” BCRA § 214(a) imposes an overbroad, 

indeterminate and highly subjective set of conduct standards 

that can only chill protected speech and association. In 

particular, prohibiting or regulating political speech if it has 

been made in “consultation” with a candidate, without more, 

will, as noted by Judge Henderson, “inevitably deter contact 

between independent spenders and their elected representatives, a result ‘patently offensive to the First Amendment.’” 

Henderson op. 253, quoting Clifton v. Federal Election 

Comm’n, 114 F.3d at 1314. As the district court recognized 

in ruling on the merits of section 214(a), see Per Curiam op. 

154-167, the statutory definition of “coordination” set forth in 

this provision is subject to immediate challenge on both 

vagueness and overbreadth grounds, and plaintiffs have 

standing to raise that challenge because their conduct is presently being chilled by the statute’s conduct standards.5 

5

 In urging this Court to dispose of the coordination issues summarily, 

intervenor-defendants focus almost entirely on BCRA §§ 214(b) and (c), 

rather than BCRA §§ 202 or 214(a). See Intervenor-Appellees’ Response 

To Jurisdictional Statements in Nos. 02-1674 and 02-1675, 5-11. 

Referring to BCRA § 214(a) as a “minor” change, id. at 12, does nothing 

to limit the scope or effect of that provision on persons, such as the AFLCIO, that are now subject to its broad prohibition. Similarly, as discussed 

in the text, the fact that section 214(a) draws on the pre-BCRA language 

prohibiting coordination with candidates is of no significance given the 

latitude afforded to agencies and courts to construe the candidate pro-
15 


In rejecting plaintiffs’ challenge to section 214(a) as 

unconstitutionally vague, the district court found that some of 

the statute’s vagueness might be cured by regulations to be 

issued by the FEC pursuant to Congress’ direction in section 

214(c). Per Curiam op. 146, 148. The majority, however, 

ignored the undeniable fact that BCRA § 214(c) bars the 

agency from re-issuing a narrow definition of “coordination” 

that requires a showing of “agreement or formal collaboration” as a precondition to a violation of section 214(a). 

Thus, the major defect in section 214(a)’s prohibition on 

coordination with parties cannot be saved by agency 

regulations, as the majority concluded, because Congress 

explicitly prohibited the agency from providing such a cure.

6 

In the words of Judge Henderson, who dissented from the 

majority opinion on this point, “sections 202 and 214 will 

violate the First Amendment no matter what the Commission 

does, for no regulation it promulgates may depart . . . from 

the provision’s plain text.” Henderson op. 254; see also id. at 

255 (“. . .the outcome of any further FEC rule-making will 

not affect the court’s merits analysis.”). 

Similarly, the district court’s reliance on the pre-BCRA 

definition of coordination as applied to candidates to suggest 

that the identical definition in section 214(a) is not vague or 

overbroad, see Per Curiam op. 148 (“Plaintiffs have provided 

vision narrowly to require a showing of “agreement or formal collaboration,” an interpretation now barred by BCRA. The significance of 

BCRA §§ 214(b) and (c) to the present litigation is that they repeal the 

narrowing regulations previously issued by the FEC, and they bar the 

FEC and the courts from adopting any new construction of sections 202 

or 214(a) that would require the elements of “agreement or formal 

collaboration.” 

6

 The district court’s suggestion, Per Curiam 149, that any vagueness in 

the statutory language is also of no consequence because the statute can be 

“clarified” through the FEC’s advisory opinion procedure ignores the fact 

that the agency itself is now prohibited from approving conduct because 

it does not involve agreement or formal collaboration. 
16 

no explanation as to why the application of this coordination 

formula to the context of political parties chills political 

speech any more than when applied to expenditures coordinated with political candidates.”), fails to recognize that, 

prior to BCRA, neither the FEC nor the courts were barred 

from requiring agreement or collaboration as a precondition 

to finding prohibited coordination with candidates, and, as 

noted above, both the agency and the courts did exactly that. 

Without the saving element of “agreement or formal collaboration,” now barred by BCRA § 214(c), the pre-BCRA 

prohibition on coordination with candidates is as vague and 

overbroad as BCRA § 214(a)’s prohibition on coordination 

with political parties, although a challenge to the candidate 

provision could not be brought before the three-judge court 

and therefore is not part of this case.7 

Finally, the district court’s legal conclusion that BCRA §§ 

202 and 214(a) need not include “agreement or formal 

collaboration” as a required element of “coordination” in 

order to meet constitutional requirements is not supported by 

the decisions of this Court on which the court below 

relied. In Buckley v. Valeo, 424 U.S. at 47, for example, the 

Court extended the definition of contributions to include 

“prearranged or coordinated expenditures,” in order to avoid 

“the danger that expenditures will be given as a quid pro quo 

for improper commitments from the candidate.” Third party 

expenditures present a danger of corruption, however, only if 

they are “potential alter egos for contributions . . . not 

functionally true expenditures.” Federal Election Comm’n v. 

Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 

7

 The fact that the plaintiffs did not challenge in this case the definition 

of coordination as applied to candidates is fully explained by the statutory 

provision limiting jurisdiction of the three-judge court to challenges to 

BCRA. See BCRA § 403. But it does not provide a basis for finding § 

214(a) to be constitutional, as the district court suggested. See Per 

Curiam op. 148. 
17 

463 (2001). And, while this Court has recognized that “general . . . understanding[s]” and “wink or nod” arrangements 

may be regulated, id. at 442; Federal Election Comm’n v. 

Colorado Republican Fed. Campaign Comm., 518 U.S. 604, 

614 (1996) (plurality opinion), as Judge Henderson correctly 

recognized, neither of these decisions approved a coordination standard that does not require some form of “agreement or formal collaboration.” Henderson op. 253. 

In contrast to BCRA’s provisions limiting soft-money and 

electioneering communications, the statute’s coordination 

provisions have received little public attention. The coordination rules mandated by BCRA are, however, at least as 

pernicious as the more widely recognized restrictions. Not 

only do sections 202 and 214(a) present the very real threat of 

limiting protected speech, they also infringe on the right of 

citizens to associate with candidates and political parties in 

carrying out that speech. Moreover, as demonstrated in the 

record of this case and as recognized by Judge Henderson, 

“the statutory definition of ‘coordination’ . . . is critically 

important . . . [b]ecause a bare allegation of coordination can 

subject any given spender to a series of costly and intrusive 

enforcement proceedings—whether the spender is in 

compliance with the law or not . . . .” Henderson op. 245 

(emphasis in original). 

This Court’s prior decisions explaining the meaning of 

coordination have provided only partial guidance concerning 

the reach of prohibited “coordination.” Prior to BCRA, the 

FEC and the lower federal courts had attempted to fill the 

gaps in this definition by carefully constructing a workable 

definition of prohibited coordination that, as instructed by this 

Court, was sensitive to both the danger of quid pro quo 

corruption and the need to protect political speech against 

unnecessary intrusion. BCRA throws out that definition, 

replaces it with a vague and overbroad statutory standard, and 

mandates that neither the Commission nor the courts develop 
18 

a narrower definition in the future. Whether this unfortunate 

action comports with the First Amendment presents more 

than a substantial question and should receive plenary review 

by this Court. 

CONCLUSION 

For the reasons set forth above, the Court should note 

probable jurisdiction. 

LARRY P. WEINBERG


1101 17th Street, N.W. 


Suite 900 


Washington, D.C. 20036 


(202) 775-5900 


Of Counsel 

June 2, 2003 

Respectfully submitted, 

LAURENCE E. GOLD 

Counsel of Record 

AFL-CIO 

815 Sixteenth Street, N.W. 

Washington, D.C. 20006 

(202) 637-5130 

MICHAEL B. TRISTER 

LICHTMAN, TRISTER & ROSS 

1666 Connecticut Ave., N.W. 

Washington, D.C. 20009 

(202) 328-1666 

Counsel for Appellants 
1a 

APPENDIX A 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

———— 

Civ. No. 02-582 (CKK, KLH, RJL) 

All consolidated cases. 

———— 

SENATOR MITCH MCCONNELL, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Defendants. 

———— 

NOTICE OF APPEAL TO THE 


SUPREME COURT OF THE UNITED STATES 


————


Notice is given that the following plaintiffs appeal to the 

Supreme Court of the United States from any and all adverse 

rulings incorporated in, antecedent to, or ancillary to the final 

judgment of the three-judge district court entered in this 

action on May 2, 2003: American Federation of Labor and 

Congress of Industrial Organizations and its federally 

registered political committee, AFL-CIO Committee on 

Political Education Political Contributions Committee. 

This appeal is taken pursuant to section 403(a)(3) of the 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-

155, 116 Stat. 81, 114. 

1 
2a 

LARRY P. WEINBERG 

(DC Bar No. 129619) 

ROBERT D. LENHARD 

(DC Bar No. 406930) 

1101 17th Street, N.W. 

Washington, D.C. 20036 

(202) 775-5900 

Of Counsel 

Dated: May 7, 2003 

Respectfully submitted, 

/s/ ________________ 

LAURENCE E. GOLD 

(DC Bar No. 336891) 

Associate General Counsel 

AFL-CIO 

815 Sixteenth Street, N.W. 

Washington, DC 20006 

(202) 637-5130 

/s/ ________________ 

MICHAEL B. TRISTER 

(DC Bar No. 54080) 

LICHTMAN, TRISTER & ROSS 

1666 Connecticut Ave., N.W. 

Washington, D.C. 20009 

(202) 328-1666 

Attorneys for Plaintiffs 

2 
3a 

APPENDIX B 

OPINIONS OF THE DISTRICT COURT 

In accordance with the Court’s May 15, 2003 order, an 

appendix containing the district court’s opinions dated May 2, 

2003, will be filed in coordination with other appellants. 
4a 

APPENDIX C 

PERTINENT PROVISIONS OF THE 


BIPARTISAN CAMPAIGN REFORM ACT OF 2002, 


PUB. L. NO. 107-155, 116 STAT. 81 (March 27, 2002) 


SEC. 201. DISCLOSURE OF ELECTIONEERING COMMUNICATIONS. 

(a) IN GENERAL.—Section 304 of the Federal Election 

Campaign Act of 1971 (2 U.S.C. 434), as amended by section 

103, is amended by adding at the end the following new 

subsection: 

“(f) DISCLOSURE OF ELECTIONEERING COMMUNICATIONS.— 

“(1) STATEMENT REQUIRED.—Every person 

who makes a disbursement for the direct costs of 

producing and airing electioneering communications 

in an aggregate amount in excess of $10,000 during 

any calendar year shall, within 24 hours of each 

disclosure date, file with the Commission a statement 

containing the information described in paragraph (2). 

“(2) CONTENTS OF STATEMENT.—Each statement required to be filed under this subsection shall 

be made under penalty of perjury and shall contain the 

following information: 

“(A) The identification of the person making the 

disbursement, of any person sharing or exercising 

direction or control over the activities of such person, and of the custodian of the books and accounts 

of the person making the disbursement. 

“(B) The principal place of business of the person making the disbursement, if not an individual. 
5a 

“(C) The amount of each disbursement of more 

than $200 during the period covered by the statement and the identification of the person to whom 

the disbursement was made. 

“(D) The elections to which the electioneering 

communications pertain and the names (if known) 

of the candidates identified or to be identified. 

“(E) If the disbursements were paid out of 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 (as defined in section 

101(a)(20) of the Immigration and Nationality Act 

(8 U.S.C. 1101(a)(20))) directly to this account for 

electioneering communications, the names and 

addresses of all contributors who contributed an 

aggregate amount of $1,000 or more to that account 

during the period beginning on the first day of the 

preceding calendar year and ending on the disclosure date. Nothing in this subparagraph is to be 

construed as a prohibition on the use of funds in 

such a segregated account for a purpose other than 

electioneering communications. 

“(F) If the disbursements were paid out of funds 

not described in subparagraph (E), the names and 

addresses of all contributors who contributed an 

aggregate amount of $1,000 or more to the person 

making the disbursement during the period beginning on the first day of the preceding calendar year 

and ending on the disclosure date. 

“(3) ELECTIONEERING COMMUNICATION.— 

For purposes of this subsection— 

“(A) IN GENERAL.—(i) The term ‘electioneering communication’ means any broadcast, cable, 

or satellite communication which— 
6a 

“(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 communication which 

refers to a candidate for an office other than 

President or Vice President, is targeted to the 

relevant electorate. 

“(ii) If clause (i) is held to be constitutionally 

insufficient by final judicial decision to support the 

regulation provided herein, then the term ‘electioneering communication’ means any broadcast, 

cable, or satellite communication which promotes 

or supports a candidate for that office, or attacks or 

opposes a candidate for that office (regardless of 

whether the communication expressly advocates a 

vote for or against a candidate) and which also is 

suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific 

candidate. Nothing in this subparagraph shall be 

construed to affect the interpretation or application 

of section 100.22(b) of title 11, Code of Federal 

Regulations. 

“(B) EXCEPTIONS.—The term ‘electioneering 

communication’ does not include— 
7a 

“(i) a communication appearing in a news 

story, commentary, or editorial distributed 

through the facilities of any broadcasting station, 

unless such facilities are owned or controlled by 

any political party, political committee, or 

candidate; 

“(ii) a communication which constitutes an 

expenditure or an independent expenditure under 

this Act; 

“(iii) a communication which constitutes a 

candidate debate or forum conducted pursuant to 

regulations adopted by the Commission, or 

which solely promotes such a debate or forum 

and is made by or on behalf of the person 

sponsoring the debate or forum; or 

“(iv) any other communication exempted 

under such regulations as the Commission may 

promulgate (consistent with the requirements of 

this paragraph) to ensure the appropriate implementation of this paragraph, except that under 

any such regulation a communication may not 

be exempted if it meets the requirements of 

this paragraph and is described in section 

301(20)(A)(iii). 

“(C) TARGETING TO RELEVANT ELECTORATE.—For purposes of this paragraph, a 

communication which refers to a clearly identified 

candidate for Federal office is ‘targeted to the 

relevant electorate’ if the communication can be 

received by 50,000 or more persons— 

“(i) in the district the candidate seeks to represent, in the case of a candidate for Representative 

in, or Delegate or Resident Commissioner to, the 

Congress; or 
8a 

“(ii) in the State the candidate seeks to represent, in the case of a candidate for Senator. 

“(4) DISCLOSURE DATE.—For purposes of this 

subsection, the term ‘disclosure date’ means— 

“(A) the first date during any calendar year by 

which a person has made disbursements for the 

direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000; 

and 

“(B) any other date during such calendar year by 

which a person has made disbursements for the 

direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000 

since the most recent disclosure date for such 

calendar year. 

“(5) CONTRACTS TO DISBURSE.—For purposes of this subsection, a person shall be treated as 

having made a disbursement if the person has executed a contract to make the disbursement. 

“(6) COORDINATION WITH OTHER REQUIREMENTS.—Any requirement to report under this 

subsection shall be in addition to any other reporting 

requirement under this Act. 

“(7) COORDINATION WITH INTERNAL REVENUE CODE.—Nothing in this subsection may be 

construed to establish, modify, or otherwise affect the 

definition of political activities or electioneering 

activities (including the definition of participating in, 

intervening in, or influencing or attempting to influence a political campaign on behalf of or in opposition 

to any candidate for public office) for purposes of the 

Internal Revenue Code of 1986.” 
9a 

(b) RESPONSIBILITIES OF FEDERAL COMMUNICATIONS COMMISSION.—The Federal Communications 

Commission shall compile and maintain any information the 

Federal Election Commission may require to carry out section 

304(f) of the Federal Election Campaign Act of 1971 (as 

added by subsection (a)), and shall make such information 

available to the public on the Federal Communication 

Commission’s website. 

SEC. 202. COORDINATED COMMUNICATIONS AS 

CONTRIBUTIONS. 

Section 315(a)(7) of the Federal Election Campaign Act of 

1971 (2 U.S.C. 441a(a)(7)) is amended— 

(1) by redesignating subparagraph (C) as subparagraph (D); and 

(2) by inserting after subparagraph (B) the following: 

“(C) if— 

“(i) any person makes, or contracts to make, any 

disbursement for any electioneering communication 

(within the meaning of section 304(f)(3)); and 

“(ii) such disbursement is coordinated with a 

candidate or an authorized committee of such candidate, a Federal, State, or local political party or 

committee thereof, or an agent or official of any 

such candidate, party, or committee; 

such disbursement or contracting shall be treated as a 

contribution to the candidate supported by the electioneering 

communication or that candidate’s party and as an 

expenditure by that candidate or that candidate’s party; and”. 
10a 

SEC. 203. PROHIBITION OF CORPORATE AND LABOR 

DISBURSEMENTS FOR ELECTIONEERING COMMUNICATIONS. 

(a) IN GENERAL.—Section 316(b)(2) of the Federal 

Election Campaign Act of 1971 (2 U.S.C. 441b(b)(2)) is 

amended by inserting “or for any applicable electioneering 

communication” before “, but shall not include”. 

(b) APPLICABLE ELECTIONEERING COMMUNICATION.—Section 316 of such Act is amended by adding at the 

end the following: 

“(c) RULES RELATING TO ELECTIONEERING COMMUNICATIONS.— 

“(1) APPLICABLE ELECTIONEERING COMMUNICATION.—For purposes of this section, the term 

‘applicable electioneering communication’ means an 

electioneering communication (within the meaning of 

section 304(f)(3)) which is made by any entity described 

in subsection (a) of this section or by any other person 

using funds donated by an entity described in subsection 

(a) of this section. 

“(2) EXCEPTION.—Notwithstanding paragraph (1), 

the term ‘applicable electioneering communication’ does 

not include a communication by a section 501(c)(4) 

organization or a political organization (as defined in 

section 527(e)(1) of the Internal Revenue Code of 1986) 

made under section 304(f)(2)(E) or (F) of this Act 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 

(as defined in section 101(a)(20) of the Immigration and 

Nationality Act (8 U.S.C. 1101(a)(20))). For purposes of 

the preceding sentence, the term ‘provided directly by 

individuals’ does not include funds the source of which 

is an entity described in subsection (a) of this section. 
11a 

“(3) SPECIAL OPERATING RULES.— 

“(A) DEFINITION UNDER PARAGRAPH (1).— 

An electioneering communication shall be treated as 

made by an entity described in subsection (a) if an 

entity described in subsection (a) directly or indirectly 

disburses any amount for any of the costs of the 

communication. 

“(B) EXCEPTION UNDER PARAGRAPH (2).— 

A section 501(c)(4) organization that derives amounts 

from business activities or receives funds from any 

entity described in subsection (a) shall be considered 

to have paid for any communication out of such 

amounts unless such organization paid for the 

communication out of a segregated account to which 

only individuals can contribute, as described in 

section 304(f)(2)(E). 

“(4) DEFINITIONS AND RULES.—For purposes of 

this subsection— 

“(A) the term ‘section 501(c)(4) organization’ 

means— 

“(i) an organization described in section 

501(c)(4) of the Internal Revenue Code of 1986 and 

exempt from taxation under section 501(a) of such 

Code; or 

“(ii) an organization which has submitted an 

application to the Internal Revenue Service for 

determination of its status as an organization 

described in clause (i); and 

“(B) a person shall be treated as having made a 

disbursement if the person has executed a contract to 

make the disbursement. 
12a 

“(5) COORDINATION WITH INTERNAL REVENUE CODE.—Nothing in this subsection shall be 

construed to authorize an organization exempt from 

taxation under section 501(a) of the Internal Revenue 

Code of 1986 to carry out any activity which is 

prohibited under such Code.” 

SEC. 214. COORDINATION WITH CANDIDATES OR 

POLITICAL PARTIES. 

(a) IN GENERAL.—Section 315(a)(7)(B) of the Federal 

Election Campaign Act of 1971 (2 U.S.C. 441a(a)(7)(B)) is 

amended— 

(1) by redesignating clause (ii) as clause (iii); and 

(2) by inserting after clause (i) the following new 

clause: 

“(ii) expenditures made by any person (other than a 

candidate or candidate’s authorized committee) in 

cooperation, consultation, or concert with, or at the 

request or suggestion of, a national, State, or local 

committee of a political party, shall be considered to 

be contributions made to such party committee; and”. 

(b) REPEAL OF CURRENT REGULATIONS.—The regulations on coordinated communications paid for by persons 

other than candidates, authorized committees of candidates, 

and party committees adopted by the Federal Election 

Commission and published in the Federal Register at page 

76138 of volume 65, Federal Register, on December 6, 2000, 

are repealed as of the date by which the Commission is 

required to promulgate new regulations under subsection (c) 

(as described in section 402(c)(1)). 

(c) REGULATIONS BY THE FEDERAL ELECTION 

COMMISSION.—The Federal Election Commission shall 

promulgate new regulations on coordinated communications paid for by persons other than candidates, authorized 
13a 

committees of candidates, and party committees. The regulations shall not require agreement or formal collaboration to 

establish coordination. In addition to any subject determined 

by the Commission, the regulations shall address— 

(1) payments for the republication of campaign 

materials; 

(2) payments for the use of a common vendor; 

(3) payments for communications directed or made by 

persons who previously served as an employee of a 

candidate or a political party; and 

(4) payments for communications made by a person 

after substantial discussion about the communication 

with a candidate or a political party. 

(d) MEANING OF CONTRIBUTION OR EXPENDITURE FOR THE PURPOSES OF SECTION 316.—Section 

316(b)(2) of the Federal Election Campaign Act of 1971 (2 

U.S.C. 441b(b)(2)) is amended by striking “shall include” and 

inserting “includes a contribution or expenditure, as those 

terms are defined in section 301, and also includes”.