No. 02-1674 

IN THE 

Supreme Court of the United States 

MITCH MCCONNELL, SENATOR, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. _______________________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BRIEF OF AMICUS CURIAE

AMERICAN CIVIL RIGHTS UNION

IN SUPPORT OF THE APPELLANTS

Of Counsel: 

PETER FERRARA 

Executive Director, ACRU 

1232 Pine Hill Road 

McLean, VA 22101 

(703) 917-4247 

JOHN C. ARMOR 

Counsel of Record 

“KettleRock”

Box 243

Highlands, NC 28741

(828) 526-3149

Attorneys for the Amicus Curiae 

181559 

(800) 274-3321 • (800) 359-6859 

A
i 

TABLE OF CONTENTS 

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . 

Page 

Interest of Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . 2 

I. Are the prohibitions of certain types of media 

advertising by organizations other than 

political parties themselves, a violation of the 

First Amendment? . . . . . . . . . . . . . . . . . . . . . 3 

II. Are the restrictions on certain types of 

materials and spending by state political 

parties and state candidates a violation of both 

the First Amendment rights of those groups and 

candidates, and of the Tenth Amendment? 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

III. Do the Bipartisan Campaign Reform Act’s 

(BCRA) three different levels of permissible 

contributions to federal candidates necessarily 

contradict each other under the Fifth 

Amendment, and if so, which of those levels 

should be ruled constitutional? . . . . . . . . . . . . . 15 

IV. Are so many parts of BCRA unconstitutional 

that the entire law should be declared 

unconstitutional? If so, how should the 

remedy be fashioned? . . . . . . . . . . . . . . . . . . 20 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 

ii 
ii 

TABLE OF CITED AUTHORITIES 

Cases: 

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

Page 

Eu v. San Francisco County Democratic Central 

Committee, 489 U.S. 214 (1989) . . . . . . . . . . . . . 4 

First National Bank of Boston v. Belotti, 435 U.S. 

765 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

Garcia v. San Antonio Transit Authority, 469 U.S. 

528 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Illinois Elections Board v. Socialist Workers Party, 

440 U.S. 173 (1979) . . . . . . . . . . . . . . . . . . . . . . . 18, 19 

Lubin v. Panish, 415 U.S. 709 (1974) . . . . . . . . . . . 14 

Miami Herald v. Tornillo, 418 U.S. 241 (1974) . . . 11 

New York Times v. Sullivan, 376 U.S. 254 (1964) . . . 11, 12 

Perry v. Sinderman, 408 U.S. 593 (1972) . . . . . . . . 17, 18 

Spencer Williams, et al. v. United States, U.S. Federal 

Circuit, Case No. 99-1572, February 16, 2001 . . 15 

Sweezy v. New Hampshire, 354 U.S. 234 (1957) . . 7 

Virginia State Board of Pharmacy v. Virginia Citizens 

Consumer Council, Inc., 425 U.S. 748 (1976) . . 12 
iii 

Cited Authorities 

Page 

United States Constitution: 

First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .2, 12, 14 

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 18 

Statutes: 

Sedition Act of 1798 . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Bipartisan Campaign Reform Act of 2002, Pub. L. 

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

Texts: 

Congressional Record, 107th Congress, 13 February 

and 20 March, 2002 . . . . . . . . . . . . . . . . . . . . . . . 5, 6 

Other Materials: 

Library of Congress, Periodicals Collection, 

microfilm collection, Colonial and early American 

newspapers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9 

Thomas Jefferson, letter to Col. Edward Carrington, 16 

January, 1787 The Writings of Thomas Jefferson, 

Lipscomb and Bergh, Editors, Washington, 

Thomas Jefferson Memorial Association, 1905; 

M.E. Vol. 6, p. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . 7 
1

INTEREST OF AMICUS* 

The American Civil Rights Union (ACRU) was 

established in 1998 as a Section 501(c)(3) educational and 

legal charity dedicated to basic constitutional issues. 

Its purpose, as stated on its Internet webpage, is to advance 

civil rights because “Civil rights are the fundamental liberties 

that all Americans should enjoy as a matter of basic morality, 

as well as constitutional protection.” 

The Policy Board of the ACRU consists of: Hon. Robert 

B. Carleson, Chairman; Hon. Edwin Meese, III; Judge Robert 

Bork; Hon. Linda Chavez (Emerita); Mr. Joseph Perkins; 

Hon. William Bradford Reynolds; Professor James Q. 

Wilson; Ambassador Curtin Winsor, Jr.; Dean J. Clayburn 

LaForce; Professor Walter Williams; and the Hon. Ken 

Tomlinson (Emeritus). 

The interest of the ACRU in this case is primarily the 

First Amendment rights of both individuals and private 

organizations, which are affected by the Bipartisan Campaign 

Reform Act. 

This case represents the most extensive change in, and 

the most extensive judicial review of, the conduct and funding 

of federal elections since the bulk of the existing law was 

written in 1974 and reviewed in 1976 by this Court in the 

longest and most complex decision in its history. There are 

two basic reasons for ACRU’s interest in this case: First, 

it concerns largely the First Amendment, and most of the 

* This amicus curiae brief filed in support of the Appellants 

was funded solely by the ACRU and is authored entirely by counsel 

for the ACRU. 
2 

briefs filed by the ACRU in all courts have been on basic 

First Amendment issues. Second, the ACRU is especially 

interested in the freedoms of association and of speech and 

press of private organizations both secular and religious. 

The ability of such groups and their members to participate 

as they deem appropriate in the political process is affected 

by BCRA in critical ways. 

SUMMARY OF ARGUMENT 

The Court entered an unusual Order in this case, saying 

that the parties “are to address the questions presented in the 

jurisdictional statements. . . .” and there are eleven such 

statements presenting a plethora of issues. Therefore it is 

incumbent on the American Civil Rights Union to make clear 

the few issues that it will address. 

The first issue that ACRU will address concerns the 

various provisions that ban certain types of electronic 

advertising by certain organizations. In the view of ACRU, 

these provisions are the most obvious and noxious affronts 

to the First Amendment of the Constitution and should be 

specially addressed in the remedies that this Court applies. 

The second ACRU issue deals with the provisions 

of BCRA which bar certain types of fund raising and 

communications — especially the tradition of forming tickets 

combining candidates for office at several levels — which 

has been part of American politics longer than the 

Constitution itself has been in effect. Such provisions, in the 

view of the ACRU, violate the First Amendment rights 

of those organizations and their members or adherents. 

They also violate the Tenth Amendment rights of the states 

and the citizens thereof. 
3 

The third issue that ACRU will address is the differing 

levels of permissible contributions to federal candidates. 

Section 305 sets limits of $2,000 in both primary and general 

elections, for a total of $4,000 for all congressional 

candidates. But Section 304 sets limits of up to “6 times the 

applicable limit” for senatorial candidates only, depending 

on how much self-financing the opposing candidate provides 

for his/her own campaign. That multiplies the maximum limit 

for personal contributions for senatorial candidates to 

$12,000 in both the primary and the general elections, for a 

total of $24,000. 

For the reasons stated below, these differences are 

themselves a violation of the Fifth Amendment, and the 

lowest of these limits should be struck as unconstitutional. 

Because of the urgency of the impending election of 2004 

for which fund raising is well underway, this too should be 

dealt with specially in the remedies the Court applies. 

The final issue is the question of remedy, should this 

Court find as many, or even more, of the provisions of BCRA 

unconstitutional as did the special, three-judge District Court. 

If so, the ACRU argues that the Swiss cheese remnant of the 

law would not have been passed by Congress in that form, 

and that therefore the entire law should be declared 

unconstitutional. 

ARGUMENT 

I. Are the prohibitions of certain types of media advertising by organizations other than political parties 

themselves, a violation of the First Amendment? 

This argument concerns the bans on electronic media 

advertising, which appear two places in BCRA. One of those 

provisions, Section 203, was upheld in part by the lower 
4 

court. The other, Section 201, concerned advertising by 

organizations of private citizens, thirty days before a federal 

primary election and sixty days before a federal general 

election. This ban was unanimously ruled unconstitutional 

by the trial court. 

Most of the nations of the world, including England from 

which the United States borrowed the bulk of its laws, 

are unitary governments. The United States is, instead, 

a federal government. State political parties here, unlike 

local party groups in most nations, are not merely appendages 

of the national political parties. State parties (and their local 

affiliates) have separate interests, and separate First 

Amendment rights. This Court recognized such distinctions 

in Eu v. San Francisco County Democratic Central 

Committee, 489 U.S. 214 (1989). 

Even clearer than those are the independent political 

and First Amendment interests of the 25,000 national 

organizations that have offices in Washington, D.C., to 

represent the joint interests of groups ranging from actuaries 

to zoologists. In addition to the organizations that are 

national, there are statewide organizations of many interests 

and occupations, ranging from farmers to bankers to motorists 

— all interests, all professions. 

Some of those organizations choose to be apolitical. 

But many have a direct interest in decisions that can or will 

be made by Congress, and wish to express their support for 

the positions taken by some incumbents (and challengers), 

or opposition to those positions. It is self-evident that the 

expressions of such group opinions are most effective in the 

final weeks before an election, which is the precise period in 

which Congress sought to make such broadcast advertising 
5 

illegal unless such organizations placed themselves under 

the jurisdiction and control of the Federal Election 

Commission. All candidates for all offices demonstrate the 

fact that advertising close to any election is the most effective, 

by their choices to run most of their own ads at such times. 

Why did a majority of both Houses of Congress choose 

to restrict the speech of these many and diverse voices of the 

American people close to the elections? Congress said why 

it was doing that, in the floor debates leading up to the passage 

of BCRA. 

The following statements are taken from the floor debates 

immediately prior to final passage in each House, with the 

House of Representatives first, on 13 February, 2002. From 

Rep. Steny Hoyer, D-Md. (Congressional Record , 107th 

Congress, p. H340), “This legislation, in short, will ban 

so-called soft money contributions to the national political 

parties and prohibit soft money from being used for sham 

issue ads by third-party groups that most of us would agree 

are nothing more than campaign ads.” From Rep. Christopher 

Shays, R-NY (id., p. H342 ), “We limit no speech. We just 

say you cannot do it with corporate treasury money, 

union dues money, or unlimited money from individuals.” 

From Rep. Jose Serrano, D-NY (id., p. H347), “Campaign 

advertisements masquerading as issue advocacy must be 

regulated. Shays-Meehan will require that broadcast 

communications that mention a Federal candidate must be 

paid for with hard money — which includes corporate and 

union PAC funds — within 60 days of a general or 30 days 

of a primary election.” 
6 

The Senate quotes are all from 20 March, 2002. From 

Senator Barbara Boxer, D-Calif. (Congressional Record , 

107th Congress, p. S2101), 

Another good thing about McCain-Feingold: 

Those vicious attacks that have come from large 

soft money contributions will not be able to come 

60 days before your election. That is a big plus 

because that is what we find — that candidates at 

the end simply cannot respond to this barrage of 

activity. 

From Senator Paul Wellstone, D-Minn. (id., p. S2097), 

If we had less of this money going to the parties 

but more of it going to all kinds of independent 

groups and organizations — “Americans For 

This” and “Americans For That” — that could 

raise $200,000, $300,000, $400,000, $500,000 at 

a crack and put it into these sham issue ads, I do 

not think we would be any better off. 

From Senator Phil Gramm, R-Texas (id., p. S2102), 

When did God decree freedom of speech existed 

only if one owns a newspaper or a television 

station or if they are a commentator? What about 

people who work for a living and who want to be 

heard? How can we write a law that treats the New 

York Stock Exchange differently from the New 

York Times? What this bill provides is unequal 

speech, privileged speech. So I am opposed to this 

bill because it is patently unconstitutional. 
7 

There is no doubt that most Members of Congress 

consider the presence of such independent voices in the 

process of federal elections to be an impediment to them 

and their parties in presenting their chosen messages as they 

run for reelection. Proponents of BCRA were consistent on 

that. But that reality offers zero justification for Congress to 

adopt this provision for the joint convenience of its Members. 

The First Amendment contains no exception clause, 

“Congress shall make no law respecting . . . freedom of 

speech (unless a majority of Members consider it really, really 

important) . . .” 

This Court has recognized that the citizens’ freedoms 

under the First Amendment are the most basic guarantees in 

the Constitution, because the preservation of all other rights 

depends on those. See Sweezy v. New Hampshire, 354 U.S. 

234 (1957). 

Thomas Jefferson described the essence of press freedom 

better than anyone else when he wrote, “Were it left to me to 

have a government without newspapers, or newspapers 

without government, I would not hesitate for a moment 

to prefer the latter.” (Letter to Col. Edward Carrington, 

16 January, 1787. M.E. 6:57.) His point was that with freedom 

of the press, the errors or even the absence of government 

could be corrected; but without a free press, the errors of 

government would accumulate to general, national failure. 

What was the nature of the press whose freedom the Framers 

sought to assure through the First Amendment? 

[The Editor] hopes, by a constent and strict 

adherence to the freedom of the press, and a 

vigilant attention to the interests of his fellowcitizens, to gain their esteem, and receive an ample 
8 

recompense for his labours. This paper shall (as 

far as possible) contain everything that shall offer 

which may be of service to the public: at the same 

time it will be constantly shut against everything 

of a scurrilous, or that may hurt the feeling of 

innocense. . . . 

(Opening editorial, S. Arnett, Editor, New Brunswick Gazette, 

5 October, 1786. Library of Congress, Periodical Collection, 

microfilms of early American newspapers.) [All spelling and 

punctuation are per the originals, except replacing the oldstyle “f” with “s.”] 

Later in the same issue, the Gazette printed this: “Why, 

Sir, Lawyers are a CONSEQUENCE and not a CAUSE of 

public evils. They grow out of laziness, dilatoriness in 

payment of debts, breaches of contract, and other vices of 

the people, just as mushrooms grow out of dunghills after a 

shower.” [Emphasis in the original.] (Ibid.) 

If ever there was a devoted tool to a faction, the 

editor of the New York Minerva may safely be 

said to be one. If ever a man prostituted the little 

sense that he had, to serve the purposes of a 

monarchic and aristocratic junto, Noah Websters, 

Esq., must be the man. 

(Aurora General Advertiser, 2 December, 1796. Ibid.) 

All those laws, which have disgraced probity, and 

stained national character, originated with men 

whose debts made them desperate, and disqualified 

them for any office of Government. . . . Will not 

Government and the most perfect constitution be 
9 

considered a farce, when mean, low and worthless 

personage, who should act as candle-snuffers, strut 

o’er the public stage as Judges, Members, 

Representatives and Governors? 

(New York Daily Advertiser, quoted in Brunswick Gazette, 

4 September, 1787. Ibid.) 

“To the Antifederal Junto in Philadelphia — With great 

regard, and sincere wishes for your success in everything 

that tends to anarchy, distress, poverty and tyranny, I am your 

friend and humble servant. Daniel Shays, Franklin State.” 

(Brunswick Gazette, 2 October, 1787. Ibid.) 

“If ever a nation was debauched by a man, the American 

nation has been debauched by Washington . . . the masque 

of patriotism may be worn to conceal the foulest designs 

against the liberties of the people.” (Aurora General 

Advertiser, 23 December, 1796. Ibid.) This newspaper was 

located in New York state, which was a hotbed of AntiFederalist sentiment. As atypical as this comment might 

appear to modern minds, the Advertiser was speaking both 

to and for its readers with this statement. 

The ACRU asks this Court to examine the fractious, 

partisan and harsh press that existed when the First 

Amendment was demanded by the states, drafted by 

Congress, and ultimately ratified. Often the papers were 

founded by individuals for the precise purpose of supporting 

their favored political positions and candidates. That tradition 

continued for more than a century, which is why some of the 

nation’s oldest surviving papers contain the word “Democrat” 

in their names. 
10 

All of the complaints that Members of Congress 

expressed about advertising by independent groups today, 

would have applied with even greater force to those 

newspapers. Additional proof of the highly partisan nature 

of the “press,” for whose protection the First Amendment 

was drafted, is available. Several hundred issues of early 

American newspapers survive in the microfilm collection of 

the Library of Congress. Almost all were “broadsheets,” 

printed on both sides of a sheet then folded to create a fourpage newspaper. For a fast reader, reading them all is a single 

day’s task. 

The early American newspapers wore their politics on 

their sleeves, rather than up their sleeves. There could hardly 

be a better proof that these two provisions of BCRA are 

unconstitutional than that the kinds of public communications 

the Framers sought to protect in drafting and ratifying the 

First Amendment are the same kinds that Congress sought 

to stifle through BCRA. 

The last time that Congress sought to silence critical 

voices in the press was the Sedition Act of 1798 (known 

as part of the collective “Alien and Sedition Laws”). 

The Federalists passed this Act, which provided even for 

jailing publishers who criticized the government (note that 

BCRA also provides for criminal penalties). This Court 

lacked the institutional strength to strike those laws down at 

the time. After the Democrat-Republican candidate, Thomas 

Jefferson, came into office as President in 1801, he pardoned 

and released the imprisoned newspaper editors, most of 

them supporters of his Party, concluding that the law was 

unconstitutional. 
11 

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

at pps. 274-276, the Court finally stated that the Alien and 

Sedition Laws were clearly unconstitutional for seeking to 

silence independent voices of and for the people. In reviewing 

the history of those laws, the Court wrote, “The right of free 

public discussion of the stewardship of public officials was 

thus, in Madison’s view, a fundamental principle of the 

American form of government.” 

As for the nature of the public discourse that the First 

Amendment protects, the Sullivan Court (at p. 268) cited 

with approval Judge Learned Hand’s conclusion, “The First 

Amendment presupposes that right conclusions are more 

likely to be gathered out of a multitude of tongues that 

through any kind of authoritative selection. To many, that is, 

and always will be, folly, but we have staked upon it 

our all.” 

The ACRU submits that exactly the same conclusion 

should be reached concerning the attempts to silence certain 

types of speech in the electronic press today. And it should 

be noted that most of the proponents of BCRA spoke about 

its advertising bans applying only to the broadcast media, 

but assumed such restraints could not be applied to the print 

media. 

The proponents are right about the print media. As this 

Court recognized in Miami Herald v. Tornillo, 418 U.S. 241 

(1974), a right of reply could not be imposed on any print 

media, as it then did apply to the broadcast media. Since 

most Americans now get the bulk of their political information 

from broadcast media rather than print media, the ACRU 

hopes and trusts that this Court in this case will not give 

second-class citizenship to the First Amendment rights of 
12 

the broadcast media. As the Sullivan Court noted at the outset 

of its analysis (p. 265), the First Amendment protects 

“the freedom of communicating information and 

disseminating opinion.” [Citation omitted.] Defining “the 

press” by its public purpose as just described leaves no room 

for a lesser protection for those who would “publish” ads in 

broadcast media, rather than in print. 

Also, corporate entities that wish to speak on public 

issues have First Amendment protection. See First National 

Bank of Boston v. Belotti, 435 U.S. 765 (1978). In addition, 

those who publish paid advertisements even without political 

content have First Amendment protection. See Virginia State 

Board of Pharmacy v. Virginia Citizens Consumer Council, 

425 U.S. 748. So it should follow as a matter of course that 

the organizations that would broadcast advertisements 

concerning positions taken by Members of Congress should 

also have full First Amendment rights against the restrictive 

provisions of BCRA. 

II. Are the restrictions on certain types of materials and 

spending by state political parties and state 

candidates a violation of both the First Amendment 

rights of those groups and candidates, and of the 

Tenth Amendment? 

Cooperative efforts to support local, state and national 

candidates at the same time have a history in the United States 

older than the Constitution. The first political machine that 

developed such joint efforts was the Tammany Society in 

New York, founded in 1786, which Aaron Burr shortly turned 

into Tammany Hall, a dominant political power in the state 

and nation. 
13 

Such efforts involve creating tickets and raising and 

spending money for the tickets. Under Section 101, such 

funding and spending by state and local parties is inhibited. 

This Section also prevents federally-regulated money from 

being combined for materials that show federal candidates 

at the top of a ticket including state and local officials. 

The only possible basis for such a restriction is a presumption 

is that ticket materials constitute “gifts” to federal candidates’ 

campaigns. This presumption is dead wrong, as can be seen 

from public records. 

Election results are public records, of which this Court 

or any other court can take judicial notice. With a consistency 

above 99%, election results in every state and every 

congressional district in every even-numbered year in the 

20th century show the same pattern. In every district, the top 

of the ballot — a federal candidate — receives the largest 

number of total votes. The bottom of the ballot, the local 

candidates, receives the lowest number of votes. Generally, 

the lower any race appears on the ballot, the lower number 

of total votes are cast in that race. 

There are two sound reasons for this pattern. Federal 

candidates receive more “free ink,” meaning press coverage 

of them and their positions without charge. State and local 

candidates cannot make up for the lesser amount of free ink 

by purchasing paid advertisements because they raise less 

money, both in gross dollars and in dollars per voter, than do 

the federal candidates. 

The public record therefore shows that the “gift” from 

the inclusion on a ticket runs in the opposite direction. It is 

the state representative and the local sheriff who gain if a 

congressional or senatorial candidate agrees to put his or her 
14 

name at the top of a ticket, not the other way around. And 

there is no legitimate, or even arguable, justification for 

Congress telling a candidate for Congress that he cannot 

benefit state or local candidates by joining a ticket with them. 

There is a First Amendment issue here, because the 

association of citizens, or candidates, or both together is how 

this Court interpreted the meaning of “freedom of 

association” under that amendment. See Lubin v. Panish , 

415 U.S. 709 (1974). 

Lastly, to the extent that the Tenth Amendment has any 

legal validity after Garcia v. San Antonio Transit District, 

469 U.S. 528 (1985), it also militates against BCRA’s attempt 

to bar joint funding of federal-state combined tickets. 

The Tenth Amendment’s reservation of powers to the states 

and the citizens thereof, at minimum must apply to the central 

legislative decisions within each state about how election 

campaigns for its state and local officials should be funded 

and run. 

Each state has established its own election laws 

concerning corruption, lobbying, public and private funding 

and campaigning. No two states have identical patterns, and 

none of them exactly match the federal provisions. Under a 

federal system of government, this diversity is to be expected. 

For all these reasons, the American Civil Rights Union 

submits that all the provisions of BCRA which reach inside 

the states and seek to control state candidates and parties in 

their fund raising, campaigning, and campaign materials 

should be struck as beyond the power of Congress to enact. 
15 

III. Do the Bipartisan Campaign Reform Act’s (BCRA) 

three different levels of permissible contributions to 

federal candidates necessarily contradict each other 

under the Fifth Amendment, and if so, which of those 

levels should be ruled constitutional? 

As this Court made abundantly clear in Buckley, supra 

at p. 25, the legitimate purpose of federal election campaign 

laws is “the prevention of corruption and the appearance of 

corruption.” This Court accepted in 1976 that Congress could, 

under that standard, adopt private contribution limits of 

$1,000 per election, or a total of $2,000 for a primary and 

general election. 

When this limit remained unchanged for many years, 

a challenge was brought that inflation had diminished the 

value of the dollar and the limit should be judicially raised 

to keep pace with inflation. That argument failed, as did a 

similar case on the issue which sought to raise judicial salaries 

to keep pace with inflation. The most recent, detailed discussion 

of this subject appears in Spencer Williams, et al., v. United 

States, U.S. Federal Circuit, Case No. 99-1572. That court, 

following a clear precedent from this Court, concluded that 

courts have no power to allow for inflation unless Congress 

has acted finally by law. (Note that BCRA, for the first time, 

provides an inflation index for individual gift limits.) 

In BCRA, Congress has made three decisions about the 

levels of private giving which do not involve “corruption or 

the appearance of corruption.” In Section 305 it sets the level 

generally at $2,000 per election or $4,000 total. In Section 

304 it sets that level for senatorial candidates only, at $12,000, 

or $24,000 total, depending on the fund-raising actions of 

the opponent. A similar provision for House candidates 
16 

appears in Section 319, allowing their maximum individual 

contributions to rise to $6,000 per election, and $12,000 total. 

What is the difference between these three provisions, 

the general flat rates and the two sets of rising rates? The up 

to $6,000 senatorial limit applies to candidates “. . . if the 

opposition personal funds amount is over — (i) 2 times the 

threshold amount, but not over 4 times that amount — (I) 

the increased limit shall be 3 times the applicable limit; . . .” 

The threshold amounts are defined state by state, and the 

personal funds account is defined by how much money one’s 

opponent contributes to his/her own campaign from 

personally controlled sources. If the opponent exceeds 

“4 times that amount,” the candidate’s limit rises to the 

maximum $12,000 per election. The House rate is similar, 

but jumps only once to $6,000. 

But what are candidates who spend their own money in 

their own campaigns doing? According to this Court in 

Buckley, supra at p. 53, 

The primary governmental interest served by the 

Act — the prevention of actual and apparent 

corruption of the political process — does not 

support the limitation on the candidate’s 

expenditure of his own personal funds. . . . Indeed, 

the use of personal funds reduces the candidate’s 

dependence on outside contributions, and thereby 

counteracts the coercive pressures and attendant 

risks of abuse to which the Act’s contribution 

limitations are directed. 

After rejecting the rationale of “equalizing the relative 

financial resources of candidates competing for elective 
17 

office,” the Buckley Court concluded, “Second, and more 

fundamentally, the First Amendment simply cannot tolerate 

§ 608(a)’s restriction upon the freedom of a candidate to 

speak without legislative limit on behalf of his own 

candidacy. We therefore hold that § 608(a)’s restriction on a 

candidate’s personal expenditures is unconstitutional.” 

There is a practical question here, also. It is equally 

impossible for a candidate to bribe himself as it is for him to 

tickle himself. It cannot happen. So the justification for the 

limit on self-financing falls. 

In BCRA, Congress is attempting to give a special fund 

raising benefit to candidates whose opponents are highly selffinanced. But since the Buckley Court has said that selffinancing is a constitutional right, the special benefit for 

opponents of such candidates becomes a violation of the Fifth 

Amendment. The Constitution bars the government from 

acting against a citizen for exercising his or her constitutional 

rights. See Perry v. Sinderman, 408 U.S. 593 (1972), which 

concerned a college professor whose contract was not 

renewed because he made statements of which the 

administrators strongly disapproved. As the Perry Court 

wrote, 

[E]ven though a person has no “right” to a 

valuable government benefit and even though the 

government may deny him the benefit for any 

number of reasons, there are some reasons upon 

which the government may not rely. It may not 

deny a benefit to a person on a basis that infringes 

his constitutionally protected interests — 

especially his interest in freedom of speech. 

408 U.S., at 597 (quoting Speiser v. Randall, 357 U.S. 513 

(1958)). The Perry case involved state action and was decided 
18 

under the Fourteenth Amendment. The instant case concerns 

federal action, and the Fifth Amendment applies. The 

guarantee of “due process of law” is identical in these two 

amendments. Also, in elective politics there is no difference 

between a government denial of a benefit (as in Perry) and 

the granting of such a benefit to one’s opponent (in BCRA). 

What aids your opponent necessarily harms you. 

So far, it would seem that the $12,000 limit per election 

should be struck, leaving only the $2,000 limit. But what 

has Congress necessarily said by passing the $12,000 limit 

in the first place? It has reached a legislative judgment that 

$12,000 is the dividing line between “the appearance of 

corruption” and the lack thereof. 

Consider this Court’s decision in Illinois Elections Board 

v. Socialist Workers Party, 440 U.S. 173 (1979). That case 

concerned a special election to replace the late Mayor Daley, 

who had died in office. Under Illinois law, 35,947 signatures 

had to be filed to put a third party or independent candidate 

on the ballot for that election in Chicago. However, the law 

also provided that only 25,000 signatures were required to 

place such a candidate on the ballot in the entire state of 

Illinois for President, or for any statewide office. 

In all its ballot access cases including Socialist Workers 

Party, this Court has consistently held that each legislature 

can establish a minimum level of community support that a 

third party or independent candidate must demonstrate by 

petitions to earn a place on the ballot. The Court noted that 

Illinois had set a 25,000-signature minimum statewide. 

Therefore a higher limit solely within the confines of Chicago 

was necessarily too high, and the Court struck it. 
19 

The same logic applies in the instant case, except 

that limits on individual donations to federal candidates 

are maximums rather than minimums. Congress has 

demonstrated its legislative judgment in Section 304, that 

$12,000 per election is the total limit to avoid the “appearance 

of corruption.” Therefore, any lower limit set elsewhere in 

BCRA must be unconstitutionally low. (Occasional resort to 

the real world is appropriate — in 2002 all winning senatorial 

candidates exceeded or vastly exceeded $1 million in 

campaign spending, and the average of winning House 

candidates was more than $900,000. So the BCRA general 

limit of $2,000 per election is infinitesimal by comparison, 

and the $12,000 is still quite small.) 

The ACRU therefore submits that this Court should strike 

the $2,000 general limit and leave the $12,000 limit standing. 

This conclusion makes practical sense as well as comporting 

with this Court’s logic in Socialist Workers Party, supra. 

Given the inflation since 1974, when the $1,000 total limit 

on individual contributions to a candidate was first set, $6,000 

(the House limit) in 2003 represents about the same spending 

power in constant dollars, and given the much higher cost of 

senatorial campaigns, $12,000 (the Senate limit) should 

also stand. 
20 

IV. Are so many parts of BCRA unconstitutional that the 

entire law should be declared unconstitutional? If so, 

how should the remedy be fashioned? 

This Court is aware of the seven-year, tortured history 

of the passage of BCRA. The entire legislative history of the 

failure of many efforts to adopt such a law, and finally the 

passage of BCRA, is before the Court. Especially instructive 

is the back and forth bargaining that occurred both within 

the Senate and the House of Representatives, and between 

the leaders and Members of those Houses, in the final four 

months before the ultimate passage of this law. 

“Horse trading” in the passage of legislation is a process 

older than the United States itself. It was seen in the Colonial 

legislatures, such as the General Court in Massachusetts and 

the Assembly in Virginia, that seized a measure of 

independence from their Royal Governors who in theory had 

an absolute veto. In all legislatures, horse trading means the 

same thing. When any complex legislation is on the table, 

and does not at the beginning claim a substantial majority, 

bargaining occurs between those who support the legislation 

and those on the fence. Until final passage of any such piece 

of legislation, the horse trading involves the inclusion of 

various provisions, or the exclusion of others, with the 

purpose of assembling a majority. 

This Court explicitly recognized this process in Buckley 

v. Valeo, supra, at p. 108: “Unless it is evident that the 

Legislature would not have enacted those provisions which 

are within its power, independently of that which is not, the 

invalid part may be dropped if what is left is fully operative 

as a law.” [Citation omitted.] There, the Court used the 
21 

severability clause on Subtitle H, but declared that the makeup and appointment of the Federal Election Commission was 

unconstitutional across the board. So the Buckley Court left 

the remnants of Subtitle H standing, but ruled that the 

Commission could no longer exercise executive branch 

powers of any kind and gave Congress a month to reconstitute 

the Commission. 

The logic behind both of the Buckley Court’s conclusions 

is clear. In any law which contains a severability clause, 

Congress has recognized in advance that some provisions 

may not survive constitutional scrutiny, but the other parts 

of the law should remain. However, as this Court recognized 

in Buckley and cases there cited, beyond a certain point the 

Court has struck such an important part of a law that the 

remainder might never have been passed by Congress in 

that form. 

In that circumstance, the Court should do what Circuit 

Judge Henderson concluded in the District Court panel. 

So much of the law may be struck that this Court should not 

attempt to rewrite the law as if it were the legislature, but 

instead should place that task back in the hands of Congress. 

A special circumstance applies to this Court’s review 

now, as it did in Buckley in 1976. For major offices such as 

President and Senator, fund raising is well underway, and 

for House candidates it is not far behind. The Buckley Court 

concluded that the Federal Election Commission itself had 

to be declared unconstitutional, but it took the rare step of 

staying its final Order to that effect for thirty days, to give 

the legislative branch the opportunity to rewrite the law in 

accord with the conclusions reached by this Court. As the 

Buckley Court said, at p. 143, “This limited stay will afford 
22 

Congress an opportunity to reconstitute the Commission by 

law or to adopt other valid enforcement mechanisms without 

interrupting enforcement of the provisions the Court 

sustains, . . .” 

And given that opportunity in 1976, Congress did rewrite 

the law in accord with the Court’s findings under the First 

Amendment (and the separation of powers, which was also 

a critical issue in Buckley). In 2003, with a national election 

just around the corner — and already begun from the 

standpoint of fund raising and position-taking by candidates 

and national and state parties — this Court should afford 

Congress a similar opportunity to rewrite BCRA. 

CONCLUSION 

For the reasons above stated, and similar reasons that 

applied when this Court decided Buckley, the American Civil 

Rights Union submits that the Court should determine 

that too many of the original provisions of BCRA are 

unconstitutional for the balance of the law to remain standing, 

even considering its severability clause. For the same reasons, 

then as now, the ACRU submits that the Court should not 

simply strike BCRA immediately, but should stay its hand 

and its final Order for a limited period, perhaps more than 

the thirty days allowed in Buckley, to permit Congress to 

rewrite the law in accord with this Court’s decision. 

The broadcast media, especially television, are the 

principal means of communication in American elections 

today. The broadcast advertising bans are the most obviously 

unconstitutional provisions in BCRA. And broadcast 

advertising on issues and positions has already begun, looking 

forward to the elections of 2004. For these reasons, ACRU 
23 

submits that notwithstanding the thirty-day delay for 

Congress to reenact a corrected BCRA, this Court should 

make its Order striking the broadcast advertising provisions 

effective immediately. 

Fund raising for federal candidates has already well 

begun. All such fund raising will accelerate, as it always does, 

in the final months before the year of the election. 

Therefore, with respect to the question of $2,000 or 

$12,000 limits on individual contributions per election, the 

ACRU suggests that the Court make its Order on this effective 

immediately as well. For the benefit not just of hundreds of 

candidates for federal office, but of hundreds of thousands 

of citizens who wish to support such candidates, the ACRU 

urges the Court to strike the lower limit and leave the higher 

ones standing, now. 

This Court has taken unprecedented steps to convene 

on 8 September and hear this case on an accelerated basis. 

This Court recognizes, as it did in 1976, the critical 

First Amendment impact of laws that reshape the conduct of 

federal elections. Therefore, the ACRU urges the Court to 

speak thoroughly and clearly to Congress about the provisions 

of BCRA which are unconstitutional, and those which pass 

constitutional muster, so the rewriting of BCRA by Congress 

will become a solid and sustainable pattern for the conduct 

of the 2004 elections and, it is hoped, many elections to come. 
24 

Of Counsel: 

PETER FERRARA

Executive Director, ACRU

1232 Pine Hill Road

McLean, VA 22101

(703) 917-4247

Respectfully submitted, 

JOHN C. ARMOR 

Counsel of Record 

“KettleRock”

Box 243

Highlands, NC 28741

(828) 526-3149

Attorneys for the Amicus Curiae