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No. 02-1675 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

NATIONAL RIFLE ASSOCIATION, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

----♦-- -

On Appeal From The United States 


District Court For The District Of Columbia 


----♦-- -

REPLY BRIEF FOR APPELLANTS 


THE NATIONAL RIFLE ASSOCIATION, ET AL.


----♦-- -

CLETA MITCHELL


FOLEY & LARDNER


3000 K Street, N.W.


Suite 500 


Washington, D.C. 20007 


(202) 295-4081 


August 21, 2003 

CHARLES J. COOPER 

Counsel of Record 

DAVID H. THOMPSON


HAMISH P.M. HUME


DEREK L. SHAFFER


COOPER & KIRK, PLLC


1500 K Street, N.W.


Suite 200 


Washington, D.C. 20005 


(202) 220-9600 


BRIAN S. KOUKOUTCHOS


COOPER & KIRK, PLLC


28 Eagle Trace 


Mandeville, LA 70471 


(985) 626-5052 


================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 


TABLE OF AUTHORITIES........................................ ii 


INTRODUCTION ....................................................... 1 


I. THE WELLSTONE AMENDMENT IS UNCON­


STITUTIONAL................................................. 3 


II. TITLE II WAS ENACTED TO STIFLE


SPEECH .......................................................... 6 


III. DEFENDANTS’ JUSTIFICATIONS FOR TITLE 


II CANNOT SURVIVE STRICT SCRUTINY...... 9 


IV. TITLE II IS OVERBROAD.............................. 17 


V. TITLE II’S MEDIA EXCEPTION IS INVALID... 19


CONCLUSION............................................................ 20 

ii 

TABLE OF AUTHORITIES 

Page 

CASES 

Austin v. Michigan State Chamber of Commerce, 


494 U.S. 652 (1990) .................................. 1, 4, 6, 9, 10, 19 


Buckley v. Valeo, 424 U.S. 1 (1976)................................ 1, 15 


FEC v. Beaumont, 123 S. Ct. 2200 (2003)..........5, 10, 11, 15


FEC v. Colorado Republican Fed. Campaign Comm.,


533 U.S. 431 (2001) ........................................................ 13 


FEC v. MCFL, 479 U.S. 238 (1986) ......................... 1, 4, 5, 6 


FEC v. NCPAC, 470 U.S. 480 (1985) ............................. 1, 12 


Minneapolis Star & Tribune Co. v. Minnesota 

Comm’r of Revenue, 460 U.S. 575 (1983) ........................ 7 


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


(2000) ...............................................................................11 


REGULATIONS 

11 C.F.R. § 114.1(e)............................................................. 16 


11 C.F.R. § 114.5(g)............................................................. 16 


11 C.F.R. § 114.7(a)............................................................. 16 

1 

INTRODUCTION 

The central thesis of Defendants’ Title II argument is 

that Congress has merely taken an “evolutionary step” to 

“plug a loophole” in the regulation of corporate participation in federal elections. Brief for Federal Election Commission, et al. (filed Aug. 5, 2003) (“SG Br.”) 72-85; Brief 

for Intervenor-Defendants (filed Aug. 5, 2003) (“Int. Br.”) 

42-54. This defense rests on the premise that Congress 

may constitutionally prohibit any corporation from using 

general treasury funds to pay for electioneering through 

express advocacy: if that is so, Defendants argue, Congress 

must necessarily be able to prohibit any corporation from 

using general treasury funds to pay for communications 

that Congress has deemed to be substantively equivalent 

to express advocacy. 

The fundamental flaw in Defendants’ premise is that 

this Court has thrice rejected legislative restrictions on 

corporate political speech funded purely through individual 

donations. See FEC v. MCFL, 479 U.S. 238 (1986); FEC v. 

NCPAC, 470 U.S. 480 (1985); Buckley v. Valeo, 424 U.S. 1 

(1976). And the only governmental interest ever held 

sufficiently compelling to justify a restriction on corporate 

independent expenditures was that of preventing the “use 

[of corporate] resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.” Austin v. Michigan State Chamber of Commerce, 494 

U.S. 652, 658-59 (1990) (internal quotations omitted). This 

Court’s campaign finance cases thus make clear that there 

is a fundamental constitutional line between the independent political expenditures of certain types of corporations: 

the electioneering expenditures of the Massachusetts 

Citizens for Life cannot be regulated, while those of the 

Michigan Chamber of Commerce can. 

The question raised by the NRA here is where along 

that line it and other grassroots advocacy groups fall. We 

respectfully submit that it is clear from the reasoning that 

protected MCFL and doomed the Michigan Chamber of 

Commerce that the line falls between, on the one hand, 

corporate organizations funded by individual members 
2 

and defined by a political mission (e.g., NRA, ACLU, 

Sierra Club), and, on the other, corporate organizations 

funded by business profits and defined by an economic 

mission (e.g., business corporations, trade associations). 

The First Amendment guarantees individuals an unfettered right to engage in political discourse. Given the 

practical realities of modern mass media, however, individuals of ordinary means must pool their resources in 

order to exercise their speech rights in a meaningful way, 

and grassroots advocacy organizations spanning the 

political spectrum serve a vital role in allowing the voices 

of like-minded individuals to be joined, and heard. 

BCRA’s principal sponsors attempted in Section 203(b) 

to exempt 501(c)(4) organizations from Title II because 

they thought that such an exemption was likely required 

by this Court’s decisions. See Brief for Appellants the 

National Rifle Association, et al. (filed July 8, 2003) (“NRA 

Br.”) 6, 29-30. Their constitutional warnings against the 

Wellstone Amendment, however, were ignored (primarily 

by BCRA’s opponents), and Section 203(b) was nullified 

(but preserved in the statute to ensure the severability of 

the Wellstone Amendment). We submit that the initial 

constitutional judgment of BCRA’s main sponsors was 

sound, and that narrow tailoring requires the invalidation 

of the Wellstone Amendment and the restoration of Section 203(b). 

But even if this Court accepts the premise that Congress may restrict the independent electioneering speech 

of individually funded advocacy groups like the NRA, Title 

II cannot survive. First, Defendants cannot rebut the 

overwhelming evidence demonstrating that the animating 

purpose of Title II was the impermissible desire to suppress speech because of its substantive content – the 

“negative attack ads” that Members of Congress denounced as a “nightmare.” See NRA Br. 7-14; NRA Br. 

Appendix of Legislative History (“LH App. _a”) 1a-57a. 

And while this impermissible purpose infects all of Title II, 

it is nowhere more evident – and nowhere more fatal – 

than it is in explaining why Congress passed the Wellstone 

Amendment. Second, the political speech that Title II 
3 

sweeps within its definition of “electioneering communications” includes a substantial quantity of speech that is not 

“electioneering.” Using Defendants’ own methodology, fully 

one-third of the speech that would have been covered by 

BCRA had it been in effect in 2000 was genuine issue 

advocacy – speech that even Defendants have never 

suggested may be constitutionally regulated. Accordingly, 

whatever regulations may be permissible with respect to 

express advocacy, Defendants cannot carry their heavy 

burden of sustaining Title II. 

I. THE WELLSTONE AMENDMENT IS UNCONSTITUTIONAL. 

Strikingly, the Government says nothing in defense of 

the Wellstone Amendment’s curtailment of 501(c)(4) 

organizations’ ability to run electioneering communications funded by individuals. Indeed, the Government does 

not disavow its representation below that the amendment 

was designed to “prevent large soft-money donations from 

individuals” from going toward independent electioneering 

communications. Reply Brief for Federal Election Committee, et al. (filed Nov. 27, 2002) 58-59, McConnell v. FEC, 

251 F. Supp. 2d (D.D.C. 2003) (No. 02-582). Nor does the 

Government deny that such a purpose is patently impermissible and in any event readily achieved through the 

less restrictive alternative of capping the amount of an 

individual donation that may be used to fund such political speech. See NRA Br. 31 & n.27; see also NRA Br. 28-29. 

It likewise offers no account of why the original SnoweJeffords provision (Section 203(b)), by limiting the electioneering communications of advocacy organizations to 

the amount of their support from individuals, is not the 

less restrictive and thus constitutionally requisite means 

of addressing any genuine corruption concern behind Title 

II. See NRA Br. 31-33. The Wellstone Amendment is 

therefore unconstitutional on its face, both because it has 

an impermissible purpose and because it is not narrowly 

tailored. 
4 

Rather than defend the Wellstone Amendment, the 

Government seeks to avoid consideration of it. It reasons 

that MCFL-qualified entities remain free to speak and 

that the arguments of particular nonprofits that they so 

qualify should be resolved via separate, as-applied challenges. See SG Br. 112-13; see also Int. Br. 74-75. That is 

true, but irrelevant. The NRA agreed below to stay its asapplied arguments that, notwithstanding the FEC’s 

contrary position, it qualifies for a special exemption 

under MCFL. See S.A. 833.1

 But the NRA did not thereby 

abandon its facial arguments that the Wellstone Amendment has an impermissible purpose and is not narrowly 

tailored. 

Section 204 on its face restricts, in any conceivable 

application, the ability of all 501(c)(4) advocacy groups to 

fund independent expenditures with individual contributions – that is its raison d’etre. The question before this 

Court is whether that restriction, which deprives all such 

corporations of the ability they would otherwise have 

under Section 203(b) to draw upon individual donations in 

order to fund electioneering communications, satisfies 

strict scrutiny. Far from preserving the proper course of 

judicial review, upholding the Wellstone Amendment 

without rigorous analysis of its ends and means would be 2 an abdication of strict scrutiny. 

1 Although the NRA has briefed its specific features as a political 

speaker, it has done so simply to illustrate the facial overbreadth and 

impermissible purpose of Title II, whose supporters trumpeted the NRA 

as the prototypical speaker they sought to muzzle. See LH App. 52a-59a. 

2 Contrary to half-hearted suggestions from the Defendants, see SG 

Br. 113; Int. Br. 73-75, this Court has never had occasion to undertake 

this analysis. MCFL did not offer a less restrictive alternative, as it 

mounted an as-applied challenge (in response to an enforcement action) 

and prevailed on narrower grounds, without regard for the rights of 

other nonprofits or alternatives for regulating them. See 479 U.S. at 

245. Nor did the Michigan State Chamber of Commerce present the 

issue in Austin, for its challenge turned on its specific facts as a 

501(c)(6) trade association funded overwhelmingly by business profits. 

(Continued on following page) 
5 

The Intervenors, having been abandoned by the 

Government’s lawyers, thus stand alone in attempting to 

justify the Wellstone Amendment.3 See Int. Br. 74. None of 

their post hoc, hypothesized justifications for the statute is 

cognizable under strict scrutiny. See NRA Br. 15-16. And, 

in any event, each of the Intervenors’ purported justifications for the Wellstone Amendment is substantively 

meritless, as explained in the NRA’s opening brief. See 

NRA Br. 31-33. The Intervenors assert that “individuals 

who support a nonprofit’s basic mission . . . do not necessarily want their funds to be used to support or oppose 

candidates,” Int. Br. 73-74, but fail to answer any of the 

NRA’s points that (i) there is no indication in the legislative record that Congress shared this concern, (ii) there is 

no evidence in the litigation record to substantiate it, (iii) 

it would apply equally to PACs and political parties, and 

(iv) it would enable Congress to deprive individuals of 

modest means of their ability to gain an effective voice in 

our democracy by “delegat[ing] authority” to nonprofit 

organizations that spend their donations “in a manner 

that best serves the shared political purposes of the 

organization and contributor,” MCFL, 479 U.S. at 261; see 

NCPAC, 470 U.S. at 494-95. See NRA Br. 32-33, 29. Moreover, even if this concern had truly motivated Congress, it 

could “be met . . . by . . . simply requiring that contributors 

be informed that their money may be used for such a[n 

electioneering] purpose.” MCFL, 479 U.S. at 261. 

See 494 U.S. at 664. The Court’s suggestion in FEC v. Beaumont, 123 

S. Ct. 2200 (2003), that advocacy groups like the NRA may warrant 

regulation merely because they are “politically powerful organizations,” 

id. at 2209, relates specifically to contribution limits, does not contemplate strict scrutiny, and therefore is untethered to a particular 

regulatory purpose or alternative means of achieving it. 

3 The irony of their predicament is exquisite: all four of the 

Senator-Intervenors voted against the Wellstone Amendment, see LH 

App. 41b-42b (appended hereto), and Senator Feingold expressly did so 

on constitutional grounds. See NRA Br. 29-30; LH App. 58a, 63a. 
6 

The Intervenors similarly posit that the Wellstone 

Amendment responds to the prospect that, under Section 

203(b), “corporate . . . contributions could be used to fund 

all the organization’s non-campaign activities, freeing 

individual contributions for electioneering communications.” Int. Br. 74. Again, nothing in the legislative record 

suggests that this concern occurred to Congress. And 

Intervenors ignore that this “fungibility” phenomenon is 

built into existing law. See NRA Br. 31-32. Nor do they 

deny that, by limiting nonprofits’ funding of electioneering 

communications to no more than the amount voluntarily 

donated by individuals, Section 203(b) would ensure the 

appropriate “correlation” between political expenditures 

and support from individuals, and wholly foreclose nonprofits from becoming mere “conduits” through which 

business corporations might spend their own general 

treasuries on electioneering. Austin, 494 U.S. at 660, 664; 

see NRA Br. 32; LH App. 15b-18b (appended hereto). 

Finally, the Intervenors attempt to invent a compelling interest in avoiding the complexity of administering 

and enforcing Section 203(b). See Int. Br. 74. This hypothesized rationale would likewise suffice for Congress to 

abolish separate segregated funds, with all of the intricate 

and nettlesome rules that attend them; or the MCFL 

exception, with its much-controverted criteria; or, for that 

matter, any inconvenient aspect of a tailored speech 

restriction that could more simply and surely be replaced 

with an across-the-board ban on speech. Suffice it to say 

that if this rationale, without more, indeed satisfied strict 

scrutiny, it would be ruinous of First Amendment protections. 

II. TITLE II WAS ENACTED TO STIFLE SPEECH. 

Defendants do not dispute that, because Title II 

demands strict scrutiny, defense of it must be confined to 

Congress’s actual purpose and cannot rest upon hypothesized or post hoc justifications. See NRA Br. 15-16. They 

nonetheless concoct a stew of purported rationales for Title 

II – see Part III, infra – that Congress never contemplated, 
7 

while eliding Congress’s avowed and plainly impermissible 

objective: suppressing “negative attack ads” that criticize 

candidates and otherwise disrupt their well orchestrated 

campaigns. See NRA Br. 3-4, 7-14; LH App. 1a-51a.4 

The Government does not deny that the legislative 

record manifests the impermissible intent behind Title II. 

Evidently, the Government’s theory is that its recitation of 

the purposes behind different statutes regulating campaign finance by itself suffices, under strict scrutiny, to 

justify any law that might expand existing regulations. 

But a crucial role of strict scrutiny is to root out an impermissible purpose of the specific speech restriction 

under review. See Minneapolis Star & Tribune Co. v. 

Minnesota Comm’r of Revenue, 460 U.S. 575, 580 (1983). 

And here there is no doubt that the animating purpose of 

Title II was to insulate candidates against attack and 

thereby protect incumbents. See NRA Br. 7-11; LH App. 

49a-51a. Title II can no more be justified as an anticorruption measure than could the Sedition Act. 

The Intervenors at least mention the legislative 

history of Title II. But they do not grapple with the litany 

of floor statements demonstrating Title II’s impermissible 

purpose, see LH App. 1a-51a, apart from offering their own 

relatively meager selection of legislative statements said 

to be more “representative” of congressional intent. Int. Br. 

59 n.48. In particular, they do not deny that Members of 

Congress passed Title II with the express intention of 

getting “ ‘poison politics off television’ ” and “ ‘making sure 

the flow of negative attack ads by outside interest groups 

does not continue to permeate the airwaves.’ ” NRA Br. 9 

4 The underinclusiveness of Title II confirms that Defendants’ post 

hoc purposes did not animate Congress. Unlike the laws at issue in 

Buckley and Austin, Title II regulates electioneering only at certain 

times and in certain media, inexplicably leaving corporations free in all 

other respects to spend their treasuries on electioneering speech that 

may contravene contributors’ wishes. See NRA Br. 8-9 n.5. 
8 

(citing LH App. 8a-9a); see also NRA Br. 10 n.6; LH App. 

1a-45a, 49a, 56a.5 

The scraps of legislative history cited by Intervenors 

are not remotely “representative” of a legitimate, let alone 

compelling, purpose for Title II. First, most of the 21 

Members of Congress whose floor statements are carefully 

excerpted by the Intervenors expressly avow an impermissible purpose for Title II – be it the suppression of negative 

attack ads or the equalization of voices by restricting 

wealthy individuals from funding independent expenditures.6

 Second, only some four Members of Congress 

quoted by Intervenors specifically connected Title II’s 

prohibition of corporate electioneering to an attempt to 

combat corruption as identified by this Court.7

 Those 

isolated remarks are overwhelmed by the chorus of impassioned speeches detailing how and why Title II would rid 

the airwaves of the negative attack ads that are the bane 

of incumbent politicians. Third, virtually all of the floor 

5 Indeed, the Intervenors themselves have been quite clear about 

this. See, e.g., J.A. 915 (“if [critical ads are] run and you can’t respond, 

which is one of the big purposes of our law, then you’re defenseless”) 

(Sen. Jeffords); J.A. 936 (“Candidate after candidate has said, ‘We lost 

control of our campaigns.’ . . . And that’s what we’re trying to take care 

of.”) (Sen. McCain); LH App. 1a-6a. 

6 Appended to this brief are many of the relevant floor statements, 

including excerpts tellingly omitted by Intervenors, which, combined 

with the legislative history appended to the NRA’s opening brief, offer a 

complete sense of the unconstitutional intendment they reflect. 

Portions of legislative history specifically appended to this brief are 

cited as “LH App. _b” as opposed to “_a.” See Sen. Bryan at LH App. 1b2b; Sen. Collins at LH App. 22a-23a, 2b-3b; Sen. Dodd at LH App. 24a27a, 3b-5b; Sen. Dorgan at LH App. 18a-22a, 5b-12b; Sen. Edwards at 

LH App. 12b-13b; Sen. Feinstein at LH App. 19b-22b; Sen. Glenn at LH 

App. 42a; Sen. Jeffords at LH App. 4a-6a, 25b-29b; Sen. Kennedy at LH 

App. 15a; Sen. Lieberman at LH App. 15a, 31b-32b; Sen. McCain at LH 

App. 1a-4a; Rep. Borski at LH App. 35b-36b; Rep. Nadler at LH App. 

37b-38b. 

7 See Sen. Snowe at Int. Br. 12a-13a; Sen. Feingold at Int. Br. 15a16a; Sen. Jeffords at Int. Br. 16a; Sen. Edwards at Int. Br. 17a-18a. 
9 

statements subvert Defendants’ case in at least one of two 

crucial respects: they focus on a need to require disclosure, 

which Title II does wholly apart from, and presumptively 

as a less restrictive alternative to, prohibiting corporate 

electioneering communications, see NRA Br. 16 n.12, 

and/or they identify an interest in suppressing the overall 

volume of electioneering communications, thereby belying 

Defendants’ characterization of Title II as a source restriction indifferent to the quantity of speech.8 

Finally, none of the statements compiled by the Intervenors even purports to justify the Wellstone Amendment, 

the impermissible purpose of which goes undisputed. See 

supra at 3-4; see also NRA Br. 28-31; LH App. 65a-68a. 

Nine of the twelve Senators quoted by the Intervenors, 

including all four relevant sponsors of BCRA (Senators 

Feingold, Jeffords, McCain, and Snowe), voted against the 

Wellstone Amendment. See LH App. 41b-42b. Indeed, 

Senator Feingold explained in the very statements quoted 

by Intervenors that Section 203(b), in contradistinction to 

the Wellstone Amendment, was the constitutionally 

requisite approach to addressing any corruption concerns. 

See LH App. 13b-19b. In sum, whatever purpose the 

Intervenors may drape over Title II generally, the unconstitutional design of the Wellstone Amendment remains 

naked before this Court. 

III. DEFENDANTS’ JUSTIFICATIONS FOR TITLE 

II CANNOT SURVIVE STRICT SCRUTINY. 

A. The Government’s main defense of Title II is 

that it protects the electoral process from Austin-style 

8

 Although the Intervenors also cite some congressional reports 

and hearings, they cite no evidence that any Member of Congress relied 

upon those hearings and reports in addressing Title II. With respect to 

the Thompson Committee Report, its role in the legislative debates over 

BCRA was strictly limited to Title I and its regulation of parties’ use of 

soft money, as apparent from Sen. Thompson’s own amicus brief. See, 

e.g., Thompson Br. 28-30 & n.24; see also LH App. 22b-25b. 
10 

“corruption.” SG Br. 73-78, 86-87; see also Int. Br. 57, 73. 

This rationale was anticipated and answered in the NRA’s 

opening brief. See NRA Br. 20-23. Defendants’ principal 

authority for extending Austin’s rationale from businesses 

or trade associations funded by corporate earnings (e.g., 

the Chamber of Commerce) to ideological nonprofit groups 

funded by small individual membership dues (e.g., NRA, 

ACLU, Sierra Club), is this Court’s recent decision in 

Beaumont. But Beaumont itself reaffirmed that Austin’s 

rationale for restricting independent political expenditures 

was limited to preventing businesses from “ ‘us[ing] resources amassed in the economic marketplace to obtain an 

unfair advantage in the political marketplace.’ ” 123 S. Ct. 

at 2206 (quoting Austin, 494 U.S. at 659) (emphasis 

added). See NRA Br. 21-22. 

Defendants offer three grounds for rehabilitating their 

Austin argument. First, they retreat to the proposition 

that even if 501(c)(4) advocacy groups lack businessgenerated wealth, they still enjoy a tax exemption. See SG 

Br. 75 n.34 (citing Beaumont, 123 S. Ct. at 2209). Regardless of whether that attenuated post hoc rationale might 

satisfy the minimal judicial scrutiny appropriate to laws 

restricting contributions, it cannot survive the strict 

scrutiny required for Title II’s limits on independent 

expenditures. See NRA Br. 21-22 & n. 17. Title II makes no 

effort to connect the speech restrictions it imposes on 

501(c)(4) corporations to the amount of their tax savings, 

nor permits them to forego their tax exemption in order to 

fund electioneering communications. That is, the one 

simply has nothing to do with the other. 

Second, Defendants assert (again, without offering 

any evidence) that advocacy groups “could quickly become 

easy-to-use . . . conduits for unlimited campaign spending 

by unions and for-profit corporations.” Int. Br. 73. But 

Title II itself, as previously detailed, contains a much less 

restrictive alternative for shutting down these supposed 

“conduits”: Section 203(b) requires advocacy groups to 

fund their political speech exclusively with individual 

contributions. See NRA Br. 28; supra at 3-4; see also LH 

App. 15b-18b. 
11 

Third, Defendants assume (without explanation, let 

alone support in the legislative record) that grassroots 

advocacy groups like the NRA present the same danger as 

business corporations simply because the former, too, 

share the corporate form of organization. But the money 

that the NRA spends on political advocacy does not flow 

from the “ ‘special advantages’ ” of incorporation such as 

“ ‘perpetual life’ ” or “ ‘favorable treatment of the accumulation and distribution of assets’ ” that allows the aggregation and transmission of wealth. SG Br. 74-75 (quoting 

Beaumont, 123 S. Ct. at 2206). Rather, the NRA annually 

receives voluntary donations from millions of individual 

members to support its efforts to protect their Second 

Amendment rights. If mere use of the corporate form, with 

its “special advantages,” indeed sufficed to justify regulation, then the electoral speech of either NCPAC or MCFL 

could be silenced as well. 

The reality, of course, is that Congress did not pass 

Title II (let alone the Wellstone Amendment) because it 

was concerned that the electioneering communications of 

advocacy groups might be amplified by business profits, 

but because it resented the political speech of such corporations and the individuals who support them. See supra 

at 7-9. Defendants nonetheless urge deference to the 

expert judgment of the Members of Congress, who are 

“uniquely positioned,” we are told, by their personal 

experience as political candidates to determine the proper 

scope of regulation of electioneering speech. SG Br. 92; Int. 

Br. 56. But what Members of Congress are truly “expert” 

at is protecting their incumbencies. See NRA Br. 10-13. 

Title II is not about “corruption.” It is about shutting down 

paid political ads that focus the electorate’s attention, and 

that incumbents consequently loathe. NRA Br. 9-10 & n.6. 

Courts may not defer to legislators where such deference 

risks the “constitutional evil[ ]” of “permitting incumbents 

to insulate themselves from effective electoral challenge.” 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 402 

(2000) (Breyer, J., concurring). 
12 


B. Defendants’ second rationale for Title II is the 

supposed need to protect members of advocacy organizations from having their dues “misused” for political purposes. SG Br. 86; Int. Br. 57, 73-74. Once again, this 

argument was anticipated and has been answered. See 

NRA Br. 23-24 & n.19, 32-33; supra at 5. 

C. Defendants’ third rationale for Title II is the “risk 

of real or apparent quid pro quo corruption” that supposedly arises if a candidate is “ ‘appreciative’ ” of favorable 

independent electioneering communications by a nonprofit 

advocacy group. SG Br. 89, 83 (quoting S.A. 837); see also 

Int. Br. 57. Defendants acknowledge that this rationale 

has never been held to justify restrictions on independent 

expenditures as opposed to contributions. See SG Br. 88 

(discussing NCPAC). And they do not deny that this 

rationale would apply equally to such political speech as 

candidate endorsements and fundraisers, and to such 

political speakers as PACs and wealthy individuals. A 

politician who is benefited is obviously as grateful for one, 

or to one, as the other. See NRA Br. 17-18 & n.13. The 

terms and stakes of this dispute are thus starkly laid out; 

either the ever-expanding notion of “corruption” or the 

tenets of our democracy must yield, for if Defendants’ line 

of argument is accepted the former will inexorably engulf 

the latter. 

Although the Government correctly observes that 

“gratitude for political support in the form of contributions 

directly from a corporate or union treasury has long been 

viewed as corruption,” it is quite disingenuous in adding, 

“as has gratitude for political support in other forms.” SG 

Br. 89. This “gratitude for political support in other forms” 

to which the Government refers in fact encompasses such 

things as “gifts,” “bribes,” or “illegal gratuities” – that is, 

money or its functional equivalent – given directly to 

candidates. See SG Br. 28-29. But this Court’s jurisprudence establishes that the independent expenditures of 

outside groups cannot be equated with “bribes” or even 

contributions, either in terms of their corruption potential 

or their associational and expressive value under the First 
13 

Amendment. See, e.g., FEC v. Colorado Republican Fed. 

Campaign Comm., 533 U.S. 431, 440-41 (2001). 

If independent political speech could ever be treated as 

direct contributions for purposes of government 

regulation, the requisite showing assuredly has not been 

made here. The “evidence” cited by Defendants to show the 

supposedly corrupting effect of independent expenditures 

consists of nothing more than conclusory generalizations 

that candidates “appreciate” issue ads that praise their 

positions or denigrate those of their opponents. See Int. Br. 

55 & n.42. Title II obviously was not designed to combat 

this phenomenon, since candidates will “appreciate” issue 

ads whether they are paid for by PACs, by wealthy 

individuals, or by general treasury funds. See NRA Br. at 

25 & n.20. The Congress that passed Title II was 

motivated not by a desire to curb “appreciation,” but 

rather by its distaste for “negative” issue ads. See NRA Br. 

7-10; LH App. 1a-3a, 35a, 40a-45a, 57a. And far from 

sharing the Defendants’ supposed concern that gratitude 

and political debts would follow from these outside issue 

ads, Congress was convinced that “all of us should hate 

them,” LH App. 8a, because the “candidates themselves 

disapprove of [them],” LH App. 1a, and they tend to 

“bring[ ] in other issues that the two candidates 

themselves do not even want to talk about.” LH App. 40a. 

Therefore, when Defendants try to justify Title II with 

their notion that Congress deemed politicians unduly 

grateful for the independent expenditures of outside 

groups, they are not only departing from the legislative 

record, but affirmatively contradicting it. 

The evidentiary record compiled in the district court 

bears out the fundamental difference between contributions 

and expenditures in terms of their corruption potential. See 

NRA Br. 18-19 & n.14. Defendants’ briefs only further 

highlight this difference by touting the evidence of corruption that they claim supports their defense of Title I’s soft 

money contribution limits. See SG Br. 22, 37-42; Int. Br. 8-9, 

12-16. But there is no evidence – none – demonstrating 

even a remotely comparable system of gaining “more access 

and influence” in exchange for “more issue ads.” 
14 


Votes may be influenced by large contributions to 

parties, see Int. Br. 15, but issue ads can be effective only 

through the political accountability that lies at the heart 

of democracy. Such ads “fan the flames,” J.A. 1017-19, and 

appeal to the “grassroots.” J.A. 837-39. Thus, where 

“candidates as well as elected officials would prefer not to 

have th[e] campaign focus on a particular hot button issue 

. . . a campaign of issue ads may have the effect of forcing 

them to talk about it,” thereby “serv[ing] to inform voters 

about the particular office holders’ or candidates’ voting 

record on a particular issue.” J.A. 850-52; see also Deposition Transcripts Unified Filing at Chapin Dep. 57 (admitting that issue ads about taxation and crime “changed the 

focus of the main issues that were being discussed between the candidates”); see NRA Br. 19-20 n.16. Thus, 

issue advocacy groups have power precisely because they 

speak to the voters, not because they add to partisan 

coffers. In contrast, Title I soft money is corrupting precisely because it does not have “an ideological motivation,” 

but instead is explicable solely as an effort to “buy[ ] 

access.” SG Br. 38 (quoting S.A. 621).9 

In short, while Defendants must satisfy far stricter 

scrutiny in defending Title II than in defending Title I, 

they have far less in the way of concrete evidence. Their 

post hoc, generalized claim that politicians may be “grateful” for broadcasts aired by advocacy groups is sorely at 

odds with Congress’s own view and cannot in any event 

suffice to meet the strict scrutiny applicable to Title II. 

D. Defendants’ fourth and final justification for Title 

II is that its limits on independent expenditures “prevent[ ] the circumvention of existing statutory limits.” SG 

Br. 89-90; see also Int. Br. 58 & n.46. But this justification 

9 According to Defendants, the proof positive that soft money is 

intended solely to buy favors rather than to promote ideological causes 

is that most major donors systematically give to both parties. See SG 

Br. 38; Int. Br. 15. No comparable practice exists with respect to issue 

advocacy. 
15 

cannot stand by itself with respect to the independent 

expenditures that Title II would regulate. See Buckley, 424 

U.S. at 44-47. And the Defendants have not identified a 

compelling corruption rationale for regulating the independent political speech, be it electioneering or otherwise, 

of nonprofit advocacy groups funded by individuals.10 

E. The pretextual nature of the interests hypothesized by the Government is further confirmed by Title II’s 

failure to regulate PACs, notwithstanding that their 

helpful ads would be no less appreciated by candidates, 

they enjoy the “ ‘special advantages’ ” of the corporate 

form, SG Br. 74-75 (quoting Beaumont, 123 S. Ct. at 2206), 

and they are no less likely than advocacy organizations to 

fund political speech that may not reflect the views of 

every last contributor. See NRA Br. 25. 

Conversely, the genuine purpose behind Title II, that 

of speech suppression, is reflected in the obvious reality 

that requiring issue advocacy organizations to fund 

electioneering communications through their PACs will 

muffle the collective voice of their members to a whisper. 

Defendants offer no answer to our demonstration that 

Title II’s PAC requirement will significantly diminish the 

collective voice of the NRA’s members. See NRA Br. 25-26. 

Defendants simply ignore Judge Henderson’s finding, 

which was not contested by either of the other members of 

the panel below, that many of the NRA’s members are 

unable both to pay membership fees and to contribute to 11 the PAC. See S.A. 259. Thus, the “individuals who . . . 

10 The Intervenors offer as an aside that “Title II’s rules help 

prevent circumvention of Title I,” Int. Br. 58 n.46, but ignore inherent 

differences between political parties and outside groups in terms of 

their corruption potential that obviate any such interest. See, e.g., SG 

Br. 32, 36-37, 71-72; Int. Br. 8-9. 

11 As for the Intervenors’ suggestion that “nothing prevents the 

NRA from reducing its membership dues by some amount,” such a 

response to Title II would diminish the funds available for the NRA’s 

speech in two ways. First, under the FEC’s regulations, the NRA would 

have to incur additional expenses to make a separate solicitation for 

(Continued on following page) 
16 


remain free to use their own funds for electioneering 

communication,” SG Br. 99, are not the millions of ordinary Americans who belong to the NRA and other grassroots organizations, but rather the few wealthy elite who 

can afford to purchase airtime on the mass media. 

Wholly apart from the financial burden that the PAC 

requirement places on the speech rights of citizens of 

modest means, the limitations on PACs’ fundraising 

activities will artificially diminish the political voices of 

grassroots organizations. The Government touts the fact 

that “the NRA is free to solicit funds from its members,” 

SG Br. 98 (citing 2 U.S.C. 441b(b)(4)(C)), but this is a 

draconian limitation on the NRA’s nationwide solicitation 

practices. And it entails a perverse Catch-22 whereby the 

NRA itself is foreclosed from running electioneering 

communications that proved so successful throughout 

1999 and 2000 in attracting new members and raising 

funds, see J.A. 1964, while its PAC (which can run electioneering communications) is foreclosed from appealing to 

a national audience to fund this speech. Not surprisingly, 

the NRA is able to generate only a fraction – some five 

percent – of the amount of funds for its PAC that it generates for its general treasury. See S.A. 259; see also S.A. 656 

(noting that non-PAC interest groups ran twenty times 

more ads than did interest group PACs).12 

By artificially deflating the resources available to the 

NRA and other issue advocacy groups, Title II tilts the 

contributions to the PAC. See 11 C.F.R. §§ 114.5(g), 114.7(a), 114.1(e). 

Second, in response to the separate solicitation, an NRA member of 

modest means, who fully supports the NRA’s political speech, might 

nevertheless naturally limit his support to the annual membership fee. 

12 Despite the Intervenors’ unsubstantiated suggestion to the 

contrary, see Int. Br. 73, it is clear that the NRA’s PAC could have 

funded only a fraction of the NRA’s “electioneering communications,” 

even if the NRA had paid the PAC’s administrative expenses. See, e.g., 

J.A. 2096, 2115. 
17 

playing field sharply in favor of politicians, who remain 

free to fundraise from any citizens who agree with their 

message, may spend unlimited amounts of their own 

money broadcasting references to outside groups in the 

periods preceding elections, and will invariably leverage 

their special access to media corporations that are left 

unfettered in their electioneering. Likewise, Title II cedes 

the airwaves to those wealthy individuals who can afford 

the steep price of admission, while impeding Americans of 

modest means from banding together into advocacy groups 

that would otherwise channel their collective voice. 

IV. TITLE II IS OVERBROAD. 

A. Defendants’ discussion of overbreadth fails to 

come to grips with the central defect in all of their objective and subjective evidence: none of their studies takes 

into account the NRA’s 30-minute news magazines, which 

totaled more than twice the amount of speech of all other 

groups combined. See NRA Br. 42. Nor do Defendants cast 

doubt on Judge Henderson’s finding that if Defendants’ 

studies had accounted for the NRA’s speech, they would 

have demonstrated that 34 percent of the speech covered 

by Title II was “genuine” issue advocacy. See S.A. 257-58. 

Rather, Defendants now disavow the methodology of the 

very studies that form the centerpiece of their defense on 

the ground that they are “subjective” and the Court should 

assess the likely effects of the speech. See SG Br. 92-94, 

106-07. 

Even under this newly-minted “objective” inquiry, it is 

clear that Judge Henderson’s finding is correct. Put 

simply, the undisputed evidence demonstrates that the 

vast majority of the airings of NRA’s 30-minute programming in 2000 was not “likely to influence the outcome of 

federal elections.” SG Br. 94. Specifically, it is uncontested 

that the “California” and “It Can’t Happen Here” news 

magazines aired more than a thousand times during the 

two months prior to the 2000 presidential election. See 

S.A. 256-57. As the Intervenors effectively concede, the 

references to Vice-President Gore were “incidental.” Int. 
18 

Br. 72. These incidental references in a 30-minute program plainly had no effect on the outcome of the presidential election in California, which was never competitive. 

See J.A. 367-68. Not surprisingly, there is no evidence that 

any of these airings in a landslide state in any way gave 

rise to “indebtedness” or “appreciation” on the part of any 

candidate, as the outcome plainly had nothing to do with 

this speech. Although Defendants focus considerable 

attention on the NRA’s program detailing Vice President 

Gore’s interpretation of the Second Amendment, this is a 

straw man – the NRA conceded that one of the purposes 

behind “Heston/Union” was electioneering, and thus Judge 

Henderson counted these airings as such. See S.A. 257-58; 

NRA Br. 42-43 n.34.13 In short, a comprehensive analysis of 

the overbreadth of Title II conclusively demonstrates that 

it criminalizes speech that has neither the purpose nor the 

effect of influencing federal elections. 

B. Defendants suggest that Title II’s sweep is permissible because speakers “may easily avoid [its restrictions] by simply not referring to a candidate for federal 

office.” SG Br. 92. In other words, government censorship 

of political speech is tolerable because of the “ease” of selfcensorship. BCRA’s removal of candidates’ names from the 

political lexicon is a particularly acute form of censorship 

for a speaker such as the NRA, which constantly refers to 

federal officeholders, whether they are standing for reelection or not, for reasons wholly unrelated to electioneering. 

See NRA Br. 38-41. And Defendants do not dispute that 

13 Judge Henderson’s overbreadth analysis did not quantify the 

effects of two other NRA 30-minute news magazines, “Million Mom 

March” and “Tribute.” See NRA Br. 40-41 & n.33. Defendants do not 

deny that the airings of “Million Mom March” that would have been 

covered by Title II occurred in noncompetitive races and thus would not 

have had an effect on the outcome of those elections. See NRA Br. 41. 

Likewise, although Defendants argue that “Tribute” had electioneering 

content, a claim we dispute, Defendants fail to explain how the airing of 

this fundraising program in Texas and California in 2000 could possibly 

have effected the results of the elections in these two landslide states. 
19 

implementation of Title II will be a practical nightmare for 

the NRA as it attempts to sift through its unscripted 

footage for any reference to one of the thousands of candidates for federal office in an election year. See NRA Br. 43 

& nn.35-36. 

Moreover, a moment’s reflection refutes Defendants’ 

suggestion that the NRA’s issue advocacy “would [not] be 

materially impeded” were it stripped of references to 

federal candidates. Int. Br. 72 n.57. In educating the 

public about threats to individual liberties, the NRA and 

other issue advocacy groups seek to identify officeholders 

that personify such threats. The First Amendment does 

not condemn Americans to the world of Harry Potter, 

where those who threaten liberty must be referred to as 

“He Whose Name Cannot Be Spoken.” Nor would a response to an attack on the NRA be effective if the NRA 

could not reference the attacker by name. See S.A. 256-57; 

J.A. 420-21. And generic references to abstract threats to 

the Second Amendment are far less effective in fundraising messages than are references to specific politicians 

that openly espouse legislative restrictions on guns. See 11 

PCS/NRA 42. 

BCRA itself provides perhaps the best answer to the 

Government’s ease of censorship defense. There would be 

no need for a media exception if wide-open discussion of 

political issues could be accomplished without naming 

particular federal candidates. Yet it was universally 

understood even by BCRA’s supporters that the media 

companies could not perform their functions without 

naming candidates for federal office, and funding such 

speech out of their general treasuries. So too with the NRA 

and like advocacy groups. 

V. TITLE II’S MEDIA EXCEPTION IS INVALID. 

Defendants insist that “[n]othing has changed” in the 

media marketplace since this Court’s decision in Austin, 

and that Title II therefore does not unconstitutionally 

discriminate in favor of media companies. In addition to 

defying the undisputed record, see NRA Br. 44-50, this 
20 

assertion contradicts the Government’s own conclusions as 

set forth in a recent FCC decision, overhauling a variety of 

longstanding media regulations because “[t]he modern 

media marketplace is far different than just a decade ago,” 

when “the world wide web was still nascent” and “there 

were far fewer choices for news and entertainment than 

there are today.” FCC 03-127, Report and Order and 

Notice of Proposed Rulemaking (July 2, 2003) (“FCC 

Order”), at ¶ 87, ¶¶ 86-128. One Commissioner observed 

that the FCC was treating the media “like any other big 

business” and that broadcasters have become “more and 

more captives to Wall Street and Madison Avenue expectations.” Statement of Michael J. Copps, Dissenting from 

FCC Order (June 2, 2003) at 1, 15. The evolving realities 

of the political marketplace emphasized by Defendants are 

thus equally observable with respect to media corporations; and if Congress’s decision to specially exempt them 

from Title II is upheld in this case, it follows that, “[i]f and 

when” Congress reaches a contrary decision, Int. Br. 64 

n.52, it may force, say, the NEW YORK TIMES and CBS to 

fund references to federal candidates in the periods preceding elections out of separate PACs.14 

CONCLUSION 

For the foregoing reasons, this Court should enjoin 

enforcement of Title II’s prohibition of electioneering 

communications or, alternatively, the Wellstone Amendment. 

14 Given the undisputed fact that “the media industry is widely 

regarded as perhaps the most powerful special interest today in 

Washington,” J.A. 1998, it is simply disingenuous to suggest, as 

Intervenors do, Int. Br. 64 n.52, that applying Title II to media companies could create an overbreadth problem that Title II itself does not. 

See generally J.A. 1997-99. 
CLETA MITCHELL


FOLEY & LARDNER


3000 K Street, N.W.


Suite 500 


Washington, D.C. 20007 


(202) 295-4081 


Respectfully submitted, 

CHARLES J. COOPER 

Counsel of Record 

DAVID H. THOMPSON


HAMISH P.M. HUME


DEREK L. SHAFFER


COOPER & KIRK, PLLC


1500 K Street, N.W.


Suite 200 


Washington, D.C. 20005 


(202) 220-9600 


BRIAN S. KOUKOUTCHOS


COOPER & KIRK, PLLC


28 Eagle Trace 


Mandeville, LA 70471 


(985) 626-5052 

1b 

SELECTED FLOOR STATEMENTS 

EXCERPTED BY INTERVENORS* 

Statement of Sen. BRYAN: 

“The McCain-Feingold proposal addresses two important issues that could begin to turn our campaign system 

around. The legislation proposes to ban soft money 

contributions to our national political parties and to curb 

the use of attack advertisements hidden behind socalled ‘issue advocacy’ campaigns. 

. . . . 

Mr. President, the recent explosion in the so-called 

‘independent expenditure or issue ads’ also causes me 

great concern. Independent expenditure ads are one of the 

very reasons the campaign system is out of control. During 

the last election cycle, a large number of television 

ads that saturated the media weeks before the 

elections were attack ads on candidates, challengers 

and incumbents. No one is accountable for sponsoring the 

ad. There is no disclosure requirement which is 

what I find most frustrating. We all know that these 

ads are really intended to defeat a candidate and are often 

coordinated with the opposition campaign. Simply put, 

these ads are not genuinely independent nor are they 

strictly concerned with issue advocacy. 

. . . . 

While I am a cosponsor and a strong supporter of the 

McCain-Feingold legislation, I wish it included other 

* All portions of a selected floor statement that Intervenors’ quote 

in their appendix are italicized herein; salient portions are emphasized 

in bold. 
2b 

important reforms. It does not include what I believe 

is one of the most critical components of reform 

which is overall spending limits. I have consistently 

supported legislation to limit the amount candidates 

can spend and have been a cosponsor since coming to the 

Senate of a proposal to limit spending offered by my good 

friend Senator Hollings. I believe this should be included 

in any effort to reform our campaign laws. 

Last year, my distinguished colleague, the senior 

Senator from Arkansas, announced on the floor of the 

Senate that he too would now support Senator Hollings’s constitutional amendment to limit campaign 

spending despite his reservations about amending 

the Constitution.” 

144 CONG. REC. S1038-39 (Feb. 26, 1998). (Int. App. 20a). 

Statement of Sen. COLLINS: 

“Why should this matter, we are asked by those 

all too eager to equate freedom of speech with 

freedom to spend? It should matter because political 

equality is the essence of democracy, and an electoral system driven by big money is one lacking in 

political equality. 

. . . . 

To explain this aspect of the bill in more detail, and to 

share with my colleagues an experience that contributed 

to my becoming a cosponsor, I need to go back to the 1996 

race for Maine’s First Congressional District in the House 

of Representatives. In the course of that election, 

the AFLCIO spent $800,000 to defeat the Republican 
3b 

candidate. They did this by running a steady barrage 

of blatantly negative ads. 

. . . . 

Mr. President, the situation I have described has led to 

the biggest sham in American politics. Nobody in Maine 

believed that the AFLCIO’s negative ads were for any 

purpose other than the defeat of a candidate. Indeed, at 

least one newspaper which endorsed the Democratic 

candidate blasted the union ads against his opponent. Ads 

of that nature make an absolute mockery out of the prohibition against unions and corporations spending money on 

Federal elections. 

The ‘express advocacy’ provision in McCain-Feingold is 

designed to do away with this sham. Contrary to what 

some have said, it would not affect independent ads 

financed other than by a union or corporation, except to 

enhance the reporting requirements, which everyone in 

this body purports to favor. It also would not stop unions 

and corporations from running the issue ads.” 

143 CONG. REC. S10,125 (Sept. 29, 1997). (Int. App. 22a). 

Statement of Sen. DODD: 

“[N]o democracy can thrive – if indeed survive – if it is 

awash in massive quantities of money: 

Money that threatens to drown out the voice of 

the average voter of average means; money that 

creates the appearance that a wealthy few have a disproportionate say over public policy; and money that places 

extensive demands on the time of candidates – time that 
4b 

they and the voters believe is better spent discussing and 

debating the issues of the day. The McCain-Feingold 

legislation before the Senate today is a good first start 

toward reform of a campaign system that is broken, plain 

and simple. I, for one, would like to have public financing 

of our Federal Campaigns. I would like to see free or 

reduced-rate TV and radio time for candidates during the 

peak of the campaign season. I would like for any negative 

ad to display the face and voice of the candidate on whose 

behalf that ad is aired. 

The McCain-Feingold legislation is not as comprehensive as some of us would prefer. But it does address two of 

the most pressing deficiencies in our system of campaign 

finance: Undisclosed soft money contributions, and sham 

issue ads. 

. . . . 

Let me be clear – I cannot agree more that political 

speech should be unlimited. The free flow of information 

and ideas is the hallmark of a democracy. But to equate 

speech with money is not only a false equation, it is 

also a dangerous one to our democracy. 

When that speech and those ideas are paid for 

overwhelmingly by a few wealthy individuals or 

groups or foreign nationals or anonymous groups or by 

undisclosed contributors, the speech is neither free nor 

democratic. It is encumbered by the unknown special 

interests who have paid for it. And it minimizes or 

excludes the speech of those who lack substantial 

resources to counter it. 

This special interest speech – paid for with unlimited, 

undisclosed soft money – creates, at a minimum, the 
5b 

appearance of undue influence, if not an implied quid pro 

quo by the contributor.” 

147 CONG. REC. S2435-36 (Mar. 19, 2001). (Int. App. 18a). 

Statement of Sen. DORGAN: 

“Some say money is speech and we like free 

speech. That is the political golden rule. I guess 

those who have the gold make the rules. 

I suppose if I was part of a group that had a lot 

more money than anybody else I suppose there 

would be an instinct deep inside to try to persuade 

you to say this situation is great. We not only have 

more money but we have access to more money than 

anyone else in the history of civilization. Why would we 

want to change the rules? We ought to change the 

rules because this system is broken and everybody in this 

country knows it and understands it. 

Let me go through some examples to describe what is 

happening in this system. And both political parties have 

had problems in these areas, both parties. Let me give one 

example. In 1996, $4.6 million of soft money went from the 

Republican National Committee to an organization called 

Americans for Tax Reform, $4.6 million. This soft money, 

then, comes from contributors whose identities are often 

unknown – they often do not need to be disclosed – contributing money in amounts that would be prohibited 

under our federal election laws, to influence a Federal 

election. $4.6 million from a major political party to this 

organization, Americans for Tax Reform. That was four 

times the total budget of this organization in the previous 

year. 
6b 

How was the money spent, this soft money raised in 

large undisclosed chunks from sources in many cases 

prohibited from trying to spend money to influence Federal elections? How was it used? To influence Federal 

elections, 150 of them, to be precise – 17 million pieces of 

mail to 150 congressional districts. 

You say the system isn’t broken? Mr. President, $4.6 

million? This is the equivalent of a political Swiss bank 

account. Large chunks of money, blowing into the system 

to a group that never has to disclose what it does with it. 

And what about the issue ads which Senator Durbin 

mentioned as well? These issue ads – are they ads that 

contribute to this political process? Eighty-one 

percent of them are negative. They represent the 

slash, burn and tear faction of the political system. 

Get money, get it in large chunks from secret sources and 

put some issue ads on someplace and try to tear somebody down. 

Let’s discuss one group, and one ad in particular. Look 

at this scenario. 

The Citizens for Republic Education Fund is a taxexempt organization incorporated June 20, 1996, that 

raised more than $2 million between June and the end of 

the year in this election year – $1.8 million of which was 

raised between October 1 and November 15. They spent 

$1.7 million after October 11 and before the election in a 

matter of a couple of weeks. Remember, these funds are 

not intended to influence Federal elections, but here’s all 

this money being spent in just three weeks before the 

election. 
7b 

You be the judge. Consider the following, and then you 

tell me whether these were intended to influence a Federal 

election. The vast majority of the money was spent after 

October 11 in an election year. The group didn’t come into 

existence until June of the election year. The group never 

had any committees or programs, had no offices, no staff, 

no chairs, no desks and no telephones. All it had was 

millions of dollars to pump into attack ads. 

The ads did not advocate on behalf of any one set of 

issues. Instead, the ads were almost universally 

tailored to a particular unfavored candidate’s 

perceived flaws, just like any campaign attack ad 

would be. In fact, you could ask whether they advocate 

any issues at all. 

. . . . 

A political ad, paid for with soft money from a political 

Swiss bank account. It’s like a Swiss bank account because 

it is from a secret source, designed to be used to create 

attack ads, to be used at election time to influence 

Federal elections, something that, frankly, is supposed to 

be prohibited by law. But this has now become the legalized 

form of cheating. In fact, we are not even sure it is legal, 

but it is being done all across this country and it is being 

done with big chunks of secret money. 

In fact, one secret donor put up, I’m told, $700,000 to 

spend on so-called issue ads to influence federal campaigns. We don’t even know for certain the identity of that 

person. And that soft money, that big chunk of money 

prohibited from ever affecting Federal races was used in 

this kind of advertising to directly try and influence Federal campaigns. 
8b 

Now, I just ask the question, is there anyone here who 

will stand in the Senate with a straight face and say that 

this isn’t cheating? Anyone here who will stand with a 

straight face and say this isn’t designed to affect a Federal 

election? Anybody think this is fine? Go to a friend someplace that has $40 million and say, will you lend us $1 

million, we have these two folks we don’t like – one in one 

State up north and one in a State down south. We want 

to put half a million into each State and defeat them 

because they happen to be of a political persuasion 

we don’t like, and we don’t want them serving in the 

U.S. Senate. If you give us $1 million we will package it 

in two parts, half a million into each State. Your name will 

never be used. No one will know you did it. We will 

package up these kind of 30-second slash, tear and 

burn political ads and claim they are issue ads and they 

can be paid for with soft money. 

Does anybody in this body believe this is a 

process that the American people ought to respect? 

That this is a process the American people think makes 

sense? Do we really believe that money is equal to 

speech and that anything that we would do to 

change the amount and kind of money spent in the 

pursuit of any campaign is somehow inhibiting the 

political process?” 

144 CONG. REC. S880-81 (Feb. 24, 1998). (Int. App. 21a). 

Statement of Sen. DORGAN: 

“This nearly $1 million, with other funds included, was 

brought into the system in the form of issue ads – sham 
9b 

ads that were clearly direct 30-second advertisements expressly waged for one purpose, and that 

was to attack and destroy a candidate of the other 

party. This was done, by the way, with a legal form of 

cheating made possible by today’s campaign finance law 

and current court decisions permitting issue ads, not so 

thinly disguised, to be waged in unlimited quantity using 

unlimited corporate money, unlimited individual money 

and undisclosed so that no one, no one in this country, will 

discover where the money came from. That is what is 

wrong with this current system. 

. . . . 

We are told somehow that money is speech in 

politics: The more money you have, the more speech 

you have, the more you are able to speak. Some of 

us believe that there ought to be in politics campaign finance reform that begins to set some reasonable limits on what kind of money is spent in 

political campaigns. We think that the current regime of 

campaign finance is just completely spiraling out of 

control, and we think the McCain-Feingold bill, while 

not perfect, is a good piece of legislation for this 

Congress to enact. 

Mr. President, I also intend to offer, if I am allowed in 

the context of these debates, one additional piece of legislation I would like to mention just for a moment. Federal 

law currently provides that all television stations must 

offer candidates for Federal office the lowest rate on their 

advertising rate card for commercials for a certain amount 

of time preceding the election. To repeat, under current 

law, we say candidates are entitled to the lowest rate on 
10b 

the rate card for political advertising for a certain period 

prior to the election. 

Everyone has a right to put on the air what they 

wish to put on the air about their opponent. In 

politics, unlike most other forms of competition, the 

normal discourse is to say, ‘There’s my opponent. 

Look at what an awful person that opponent is. Let 

me tell you 18 awful things about my opponent.’ Is 

that the way you see airlines advertise? ‘Look at my 

competing airline over here. Let me tell you about how 

awful they are, how awful their maintenance record is.’ I 

don’t think so. Is that the way automobile companies 

advertise? No. It is the way people in politics advertise 

because it has worked. 

My point is this. I am going to offer an amendment 

that says we will change the Federal law that requires the 

lowest rate on the rate card for the 60 days prior to elections. We will say that the television stations are required 

to offer that lowest rate only to television commercials 

that are 1 minute in length and only in circumstances 

where the candidate appears on the commercial 75 percent 

of the time. 

Why do I do that? Because I would like candidates to 

start taking some ownership of their commercials instead 

of the 30-second slash-and-burn commercial that the 

candidate never appears on. Oh, everybody has a right to 

continue to run those. However, we are not required, in my 

judgment, to tell television studios they must offer the 

lowest rate for these kinds of ads. 

Air pollution in this country is a problem. We 

have been concerned about air pollution for some 

long while. One form of air pollution in this country 
11b 

is the kind of political commercial that has been 

very successful. I don’t deign to suggest now we can ban 

it. We can’t. Free speech in this country and free political 

speech allows anybody to do anything they want in their 

campaigns in a 30- or 60-second ad. 

But I believe we ought to give an incentive for 

those who put commercials on the air during political 

campaigns that say to the American people, ‘Here’s what I 

stand for, here’s what I believe, here’s what I want to fight 

for as we debate the future of this country,’ in which the 

candidate himself or herself asserts positions that 

they think ought to be a part of public discourse 

and public debate. It seems to me we ought to try to 

provide incentives for that by saying the lowest rate card 

in campaigns, the lowest rate on the bottom of the card, 

will go to commercials that are at least 1 minute in length 

and on which the candidate appears 75 percent of the 

time. 

I don’t know if we are going to get to that. I intend to 

offer it as an amendment. 

First and foremost, I rise to say I support the McCainFeingold bill. I think Senator McCain and Senator Feingold have done a good job. Is it perfect? No. It is an awfully 

good start to try to bring some order and establish some 

thoughtful rules to a campaign finance system that is now 

a mess. 

I want to be involved in the debate in the coming 

hours, when I hear people stand on the floor of the Senate 

and say, ‘Gee, we think the campaign finance system is 

wonderful,’ because I want to ask them what they have 

been reading, what they have been watching. Not the 

campaigns that I have seen, not the reports that I have 
12b 

seen about campaign finance awash in soft money, awash 

in issue ads financed by soft money flying all over 

the country to pollute the air waves, that never allow 

the American people to understand who was the donor, 

who put in half a million dollars to go after this or that 

candidate. That has become a perversion of fair rules and 

fair standards in campaign finance reform, and I hope 

when we pass McCain-Feingold we will finally begin to 

make some order and some thoughtful response to campaign finance reform.” 

144 CONG. REC. S805-06 (Feb. 23, 1998). (Int. App. 21a22a). 

Statement of Sen. EDWARDS: 

“The second issue is these bogus sham issue ads. In 

addition to the fact folks see all this money flowing into 

the system, they feel cynical, they feel they do not own 

their Government anymore, and that they have no voice in 

democracy. 

In addition to that, they turn on their televisions 

in the last 2 months before an election and see 

mostly hateful, negative, personal attack ads posing 

as issue ads. Any normal American with any common 

sense knows these are pure campaign ads. Those are the 

ads we are trying to stop. 

Senator Snowe actually said it very well when she 

said these ads are a masquerade. In fact, they are more 

than a masquerade, they are a sham, they are a fraud on 

the American people, and they are nothing but a means to 

avoid the legitimate election laws of this country. 
13b 

. . . . 

We will talk about this issue later, but it is also clear 

that Snowe-Jeffords, under the constitutional test established in Buckley v. Valeo, is constitutional. There are only 

two requirements that have to be met: One, that there be 

compelling State interest under Buckley. The Court has 

already held that what we are doing in these sham issue 

ads and with soft money is a compelling State interest 

because of the need to avoid corruption or, more importantly, in this case, the appearance of corruption.” 147 

CONG. REC. S2636 (Mar. 21, 2001). (Int. App. 17a-18a). 

Statement of Sen. FEINGOLD: 

“I believe this is an extremely valuable addition to the bill. 

It is the second big loophole in the system. No. 1 is the soft 

money loophole. No. 2 is the phony issue ads. . . . 

. . . . 

Snowe-Jeffords gets at the heart of the issue ad loophole. Right now wealthy interests are abusing this loophole 

at a record pace. They are flouting the spirit of the law, 

there is no question about it. They advocate for the election 

or defeat of a candidate, even though they don’t say those 

‘magic words,’ such as ‘vote for,’ ‘vote against,’ ‘elect’ or 

‘defeat.’ These ads might side-step the law, Mr. President, 

but they certainly don’t fool the public. . . . 

. . . . 

. . . The magic words test is completely helpless to 

stem the tide of sham issue ads, ads from the parties, ads 

from unions or corporations, or ads from outside groups 
14b 

that are acting on behalf of those unions or corporations. We need to close the loophole, and SnoweJeffords does just that. 

Here is how Snowe-Jeffords navigates the difficult political and constitutional terrain of this debate. 

Here I am talking about the original Snowe-Jeffords 

provision, before adoption of the Wellstone amendment. The first thing that the provision does is define a 

new category of communications in the law – we call them 

electioneering communications. . . . 

The original Snowe-Jeffords provides that for-profit 

corporations and labor unions cannot make electioneering communications using their treasury funds. If they 

want to run TV ads mentioning candidates close to the 

election, they must use voluntary contributions to their 

political action committees. We believe that this approach 

will withstand constitutional scrutiny, because corporations and unions have long been barred from spending 

money directly on Federal elections. 

. . . . 

We are merely saying through this provision that that 

actual public support, shown by voluntary contributions 

to a PAC, must be present when corporations and unions 

want to run ads mentioning candidates near in time to an 

election. 

The Snowe-Jeffords provision goes on to permit 

spending on these kinds of ads by non-profit corporations that are registered as 501(c)(4) advocacy 

groups, by 527 organizations, and by other unincorporated groups and individuals. But it requires disclosure 

of the spending and of the large donors whose funds are 
15b 

used to place the ads once the total spending of the group 

on these ‘electioneering communications’ reaches $10,000. 

. . . . 

Mr. President, I believe that these disclosure 

provisions will pass constitutional muster. The 

Buckley case, it should be remembered, rejected limits on 

independent expenditures but upheld the requirement 

that the expenditures be disclosed. Rules that merely 

require disclosure are less vulnerable to constitutional 

attack than outright prohibitions of certain speech. The 

information provided by these disclosure statements will 

help the public find out who is behind particular candidates. This disclosure can help prevent the appearance of corruption that can come from a group 

secretly spending large amounts of money in support of a candidate. 

. . . . 

The incorporation of the Snowe-Jeffords amendment 

into the McCain-Feingold Bill is a well-reasoned attempt 

to define electioneering in a more realistic manner while 

remaining faithful to First Amendment vagueness 

and overbreadth concerns. . . . While no one can predict 

with certainty how the courts will finally rule if any of the 

these provisions are challenged in court, we believe that 

the McCain-Feingold Bill, as current drafted, is consistent 

with First Amendment jurisprudence. 

. . . . 

It is important to note that Snowe-Jeffords 

contains provisions designed to prevent the laundering of corporate and union money through 

non-profits. Groups that wish to engage in this 
16b 

particular kind of advocacy must ensure that only 

the contributions of individual donors are used for 

the expenditures. 

. . . . 

I have discussed here the original SnoweJeffords provision. The Wellstone amendment, in 

effect, broadens that provision to cover ads run by 

corporations and unions. I voted against adding that 

amendment. I thought and still think that it makes 

Snowe-Jeffords more susceptible to a constitutional 

challenge, but it passed when many Senators who 

oppose the bill and the Snowe-Jeffords provision 

voted for it. In any event, the Wellstone amendment was 

written to be severable from the remainder of the SnoweJeffords provision. That gives even more significance to 

the vote we will have today on severability. But if we win 

that vote, Snowe-Jeffords will survive even if the 

Wellstone amendment is held to be unconstitutional.” 

148 CONG. REC. S3071-73 (Mar. 29, 2001). (Int. App. 14a). 

Statement of Sen. FEINGOLD: 

“Let me talk for a moment how the SnoweJeffords amendment navigates the difficult political 

and constitutional shoals that face us in this debate. 

The first thing the amendment does is more clearly 

define a category of communications in the law. We call 

them electioneering communications. 

. . . . 
17b 

The Snowe-Jeffords amendment provides that forprofit corporations and labor unions cannot make 

electioneering communications using their treasury 

funds. If they want to run TV ads mentioning candidates 

close to the election, they must use voluntary contributions to their political action committees. We firmly believe 

that this approach will withstand constitutional scrutiny 

because corporations and unions have for a very long time 

been barred from spending money directly on Federal 

elections. 

The Senator from Kentucky suggested we lack case law 

for these propositions, but the Supreme Court upheld the 

ban on corporate spending in the Austin v. Michigan 

Chamber of Commerce case. Mr. President, it is noted that 

a Michigan regulation that prohibited corporations from 

making independent expenditures from treasury funds 

prevented ‘corruption in the public arena: the corrosive and 

distorting effects of immense aggregations of wealth that 

are accumulated with the help of the corporate form and 

that have little or no correlation to the public’s support for 

the corporation’s political ideas.’ According to the Court, 

the Michigan regulation ‘ensured that the expenditures 

reflect actual public support for the political ideas espoused 

by the corporations.’ 

We are merely saying through this amendment that 

actual public support, shown by voluntary contributions to 

a PAC, must be present when corporations and unions 

want to run ads mentioning candidates near in time to an 

election. 

The Snowe-Jeffords amendment goes on to 

permit spending on these kinds of ads by nonprofit 

corporations, if they are registered as 501(c)(4) 

advocacy groups, and other unincorporated groups and 
18b 

individuals. The rules about corporations and unions 

do not apply in the same way to these groups, but 

the amendment, but it makes one requirement. It 

requires disclosure of the groups’ large donors whose funds 

are used to place the ads once the total spending of the 

group on the electioneering communications reaches 

$10,000. It only applies if the total spending over a total 

amount of $10,000. 

. . . . 

Mr. President, it is also important to note that the 

Snowe-Jeffords amendment contains provisions 

designed to prevent the laundering of corporate and 

union money through nonprofits. Groups that wish to 

engage in this particular kind of advocacy must ensure 

that only the contributions of individual donors are 

used for the expenditures. 

Because the prohibition in the Snowe-Jeffords 

amendment is limited to unions and corporations 

spending money from their treasuries on these 

kinds of ads, many of the concerns that opponents 

of McCain-Feingold voiced about the effect of the 

bill on speech by citizens groups are eliminated. 

Keep that in mind. One of the things people claimed was 

the real problem of McCain-Feingold – there has been 

sort of a shifting bottom line of what the real problem is – 

but that portion has been modified in Snowe-Jeffords. 

Senators who oppose this amendment must be willing 

to stand on two positions now that I think are both unsupportable. First, Mr. President, those who still oppose 

McCain-Feingold, if it is amended by Snowe-Jeffords, 

must defend the rights of unions and corporations using 

treasury money – not citizens groups like the 
19b 

National Right to Life Committee or the Christian 

Coalition or the Sierra Club – to run essentially campaign advertisements that dodge the Federal election laws 

by not using the magic words ‘vote for;’ or ‘vote against’ or 

to finance those ads through other groups. So that is the 

conclusion: Corporations and unions, apparently, should 

just be allowed to do this freely, despite the almost unanimous complaints by Members of the Senate with regard to 

this question. 

Secondly, those who are still holding out, even though 

they represent a minority of the Senate, in terms of 

supporting McCain-Feingold as it will be amended, argue 

that the public is not entitled to know, in the case of 

advocacy groups that run these ads close to an 

election, what the identities of these people are. They say 

that they should not be known to those who are about to 

vote. Many opponents of McCain-Feingold have trumpeted 

the virtues of full disclosure and say that is what we need 

– disclosure; not McCain-Feingold. I have, at times, 

doubted how serious they were about disclosure because 

they would never acknowledge the important advances 

our bill provides with regard to disclosure.” 

144 CONG. REC. S984-86 (Feb. 25, 1998). (Int. App. 15a16a). 

Statement of Sen. FEINSTEIN: 

“Campaigns simply cost too much and it is long 

past time that Congress does something about it. 

I believe very strongly that this will be the final real 

opportunity this millennium to make significant structural 

reforms to our campaign finance system. Two of the 
20b 

fundamental changes that I believe must be made 

are a complete ban on soft money contributions to political 

parties and making independent campaign ads 

subject to contribution limits and disclosure requirements as are a candidate’s campaign ads. 

While I have a great deal of respect for the persistence 

the Senators from Arizona and Wisconsin have demonstrated in pushing the Senate to act on campaign finance 

reform, I am concerned that the underlying bill, S. 1953, is 

too narrow to constitute a real reform of the campaign 

finance system. Banning soft money without addressing 

issue advocacy will simply redirect the flow of undisclosed 

money in campaigns. Instead of giving soft money to 

political parties, the same dollars will be turned into 

‘independent’ ads. 

The issues of soft money ban and independent advertisements go hand in hand and one cannot be addressed 

without the other. 

. . . . 

The ability of corporations, unions, and wealthy 

individuals to give unlimited amounts of soft money to 

political parties is the largest single loophole in the current campaign finance structure. The lack of restrictions 

on soft money enables anonymous individuals and 

anonymous organizations to play a major role in 

campaigns. They can hit hard and no one knows from 

where the hit is coming. The form that soft money is 

increasingly taking is negative, attack ads that 

distort, mislead, and misrepresent a candidates 

position on issues. These ads have become the 

scourge of the electoral process. 
21b 

. . . . 

At some point this escalation of campaign 

spending has got to stop. We simply cannot continue 

down this path. A complete ban on soft money contributions to political parties is the first and most basic way to 

reduce the amount of money in our campaigns. 

. . . . 

That brings me to the other disturbing trend in the 

American political system: the rise of issue advocacy. This 

campaign loophole allows unions, corporations, and 

wealthy individuals to influence elections without being 

subject to disclosure or expenditure restrictions. 

During last year’s debate, I mentioned a study released by the Annenberg Public Policy Center that estimated that during the 1995-96 election cycle independent 

groups spent between $135 and $150 million on issue 

advocacy. 

The Center has done a similar study for the 1997-98 

cycle and the result is quite disturbing. They estimate that the amount spent on issue advocacy more 

than doubled to between $275 million and $340 

million. 

These ads do not use the so-called ‘magic words’’ that 

the Supreme Court identified as express advocacy and, 

therefore, are not subject to FEC regulation. The Annenberg study found, however, that 53.4 percent of the issue 

ads mentioned a candidate up for election. 

The Center found another unfortunate twist to issue 

advocacy. Prior to September 1, 1998, that is in the first 22 

months of the election cycle, only 35.3 percent of issue ads 
22b 

mentioned a candidate and 81.3 percent of the ads referred to a piece of legislation or a regulatory issue. 

After September 1, 1998, during the last 2 months of 

the campaign, a dramatic shift occurred. The proportion of 

ads naming specific candidates rose to 80.1 percent and 

those mentioning legislation fell to 21.6 percent. 

A similar shift can be seen in terms of attack 

ads. Prior to September 1, 33.7 percent of all ads were 

attack oriented. After September 1, over half were. 

These findings clearly demonstrate that as election 

day gets closer, issue ads become more candidate 

oriented and more negative. This kind of unregulated attack advertisements are poisoning the 

process and driving voters away from the polls.” 

145 CONG. REC. S12,661-62 (Oct. 15, 1999). (Int. App. 18a19a). 

Statement of Sen. GLENN: 

“It is beyond question that raising soft money and 

broadcasting issue ads are not, in themselves, unlawful. 

The evidence suggests that much of what the parties and 

candidates did during the 1996 elections was within the 

letter of the law. But no one can seriously argue that it is 

consistent with the spirit of the campaign finance laws for 

parties to accept contributions of hundreds of thousands – even millions – of dollars, or for corporations, 

unions and others to air candidate attack ads without 

being required to meet any of the federal election law 

requirements for contribution limits and public disclosure. 

The evidence indicates that the soft-money loophole is 
23b 

fueling many of the campaign abuses investigated by the 

Committee. It is precisely because parties are allowed to collect large, individual soft-money donations that fundraisers are tempted to cultivate big donors 

by, for example, providing them and their guests with 

unusual access to public officials. In 1996, the softmoney loophole provided the funds both parties 

used to pay for televised ads. Soft money also supplied 

the funds parties used to make contributions to taxexempt groups, which in turn used the funds to pay for 

election-related activities. The Minority Report details, in 

several instances, how the Republican National Committee deliberately channeled funds from party 

coffers and Republican donors to ostensibly ‘independent’ groups which then used the money to conduct ‘issue 

advocacy’ efforts on behalf of Republican candidates. 

Much was made the other day on the floor about the 

same thing happening on the Democratic side. That 

doesn’t mean either one was excusable or right. But it 

happened, and it should not. 

Together, the soft-money and issue-advocacy loopholes 

have eviscerated the contribution limits and disclosure 

requirements in federal election laws and caused a loss of 

public confidence in the integrity of our campaign finance 

system. By inviting corruption of the electoral process, they 

threaten our democracy. If these and other systemic problems are not solved, the abuses witnessed by the American 

people in 1996 will be repeated in future election cycles. 

. . . . 

The Committee’s investigation also showed that the 

legal distinction between ‘issue ads’ and ‘candidate ads’ has 

proved to be largely meaningless. The result has been that 
24b 

millions of dollars, which otherwise would have been kept 

out of the election process, were infused into campaigns 

obliquely, surreptitiously, and possibly at times illegally. 

The issue of soft money abuses is inevitably tied 

to the question of how access to political figures is 

obtained through large contributions of soft money. 

It is also tied to the question of how tax-exempt organizations have been used to hide the identities of soft money 

donors. A system that permits large contributions to be 

made for partisan purposes, without public disclosure, 

invites subversion of the intent of our election law limitations. 

Despite a highly partisan investigation, the Committee has built a record of campaign fundraising 

abuses by both Democrats and Republicans. This 

record will hopefully be useful to the Federal Election 

Commission, the Internal Revenue Service and to the 

Department of Justice as they investigate the 1996 campaign. Most importantly, the Committee’s investigation 

should spur much-needed reform of the campaign finance 

laws and strengthening of the Federal Election Commission. Congress should provide the Federal Election Commission with the necessary resources to significantly 

enhance its investigative and enforcement staff. Ultimately, the most important lesson the Committee learned 

is that the abuses uncovered are part of a systemic problem, and that the system that encourages and permits 

these abuses must be reformed [if] not now, as a result of 

the legislative votes that we have had the last couple of 

days, sometime, and hopefully in the very near future. 

The McCain-Feingold legislation that we are considering here today goes a long way to address these abuses. The 
25b 

bill rids the system of soft money, and brings ‘issue advertising’ funded by corporate and union interests within the 

campaign finance system. . . . 

. . . . 

The ready availability soft money combined with the 

national party’s ability to air so called ‘issue ads’ 

also resulted in an explosion of advertising which 

clearly benefited both party’s Presidential candidates. This apparently legal activity will be halted if we 

simply act to get rid of the soft money that is raised to pay 

for these ads.” 

144 CONG. REC. S1048-49 (Feb. 26, 1998). (Int. App. 20a21a). 

Statement of Sen. JEFFORDS: 

“I can just imagine a candidate, and this happens now, I am sure, when they think they are running their campaign, they had it all organized and 

they are watching carefully the amount of money their 

opponent has, and then they wake up one morning 

thinking they are in fine shape and every channel 

they turn on on the television has this ad attacking 

them at the last moment, the last couple of weeks 

before the election, and they don’t know who it is 

coming from or what to do about it; they were not aware of 

it. 

. . . . 

That is the real world we are faced with. It 

happened last time. It happened to the tune of $135 
26b 

million. The least we could do, the very least, is to say at 

least you ought to know it is coming, first; and No. 2, 

where it is coming from so you have an idea when you 

get this last-minute flurry of advertising you are 

ready to do the best you can to protect yourself 

against it. 

. . . . 

. . . The last few election cycles have shown the 

spending has grown astronomically in two areas that 

cause me great concern: First, issue ads that have turned 

into blatant electioneering; second, the unfettered spending by corporations and unions to influence the outcomes 

of elections. 

As an example of how this spending has grown, a 

House Member from Michigan in 1996 faced nearly $2 

million in advertisements alone before the fall campaigning season had begun. Campaigning really starts early 

and then there is a big boost at the end. Early on 

you want to knock the candidate out before he has a 

chance to get on the scene, and at the end it is 

because you know a large percentage of the people 

who vote really don’t pay much attention until the 

last couple of weeks. The Snowe-Jeffords amendment 

addresses these areas in a reasonable, equitable, and, last 

but not least, constitutional way. 

Mr. President, citizens across this Nation have 

grown weary of the tenor of campaigns in recent 

years. This disappointment is reflected in low voter 

participation and the diminished role of individuals in 

electing their representatives. Increasing the information 

available to the electorate will help return the power of 

this democratic aspect to the people who should have it – 
27b 

the voters. Expanded disclosure will bring daylight 

to this process. Increased disclosure will rid corruption; 

more disclosure will protect the public and the candidates. 

. . . . 

The second part of our amendment considers an area 

Congress has long had a solid record on: imposing more 

strenuous spending restrictions on corporations and labor 

unions. Remember, under the law, these are not given the 

same freedom of speech rights that individuals are, and 

rightfully so. Corporations have been banned from electioneering since 1907; unions, since 1947. As the Supreme 

Court pointed out in United States v. UAW, Congress 

banned corporate and union contributions in order to 

‘avoid the deleterious influences on Federal elections 

resulting from the use of money by those who exercise 

control over large aggregations of capital.’ 

Our amendment would ban corporations and unions 

from using General Treasury funds to fund electioneering 

communications in the last 60 days of the general election 

and the last 30 days before a primary. They still have the 

right to foster and to approve PACs, organizations for their 

employees or members of the union, to contribute to, in 

order that they individually, working together in the PACs, 

can influence the election process. 

The Snowe amendment takes a reasoned, incremental 

and constitutional step to address the concerns many of 

my colleagues have voiced on campaign finance reform 

proposals. 

. . . . 

As the Court declared in Buckley, the governmental 

interests that justified disclosure of election-related 
28b 

spending are considerably broader and more powerful 

than those justifying prohibitions or restrictions on election-related spending. 

Disclosure rules, the Court said, enhance the information available to the voting public. Who can be against 

that? Disclosure rules, according to the Court, are 

‘the least restrictive means of curbing evils of campaign ignorance and corruption.’ ” 

144 CONG. REC. S974-75 (Feb. 25, 1998). (Int. App. 16a). 

Statement of Sen. JEFFORDS: 

“[T]he perseverance of Senators McCain and Feingold 

should be recognized as the reason we are here today. I 

would especially like to thank my colleague, Senator 

Snowe, for all her hard work and leadership in developing 

the language in this bill, the so-called Snowe-Jeffords 

provisions, which is a full and fair solution to the 

proliferation of electioneering communications. 

. . . . 

I am especially proud of the provisions in this legislation that reform the law concerning broadcast advertisements near an election that escape even minimal disclosure 

by not using the ‘magic words.’ These electioneering communications are cleverly and clearly seen by the electorate 

to be trying to influence their vote, but the true nature of 

the sponsors and funding for these advertisements 

remain cloaked in the veil of secrecy. The American 

public deserves to know who is trying to influence 

their vote, and the Snowe-Jeffords provisions will 

provide them this necessary information. 
29b 

. . . . 

. . . In the 2000 elections approximately$629 million 

was spent on television advertising for federal elections. 

This represents an all-time high. Even looking at the 

amount spent just on Congressional races, the $422 

million spent in 2000 overwhelms the $177 million 

spent just 2 years earlier. That gives you an idea of 

what is occurring. 

. . . . 

One of the most important findings of this comprehensive study of television advertising during the 2000 elections is that the Snowe-Jeffords provisions are 

exceptionally well crafted and not too broad.” 

148 CONG. REC. S2117 (Mar. 20, 2002). (Int. App. 13a). 

Statement of Sen. KERRY: 

“I commend Senators Snowe, Jeffords and Chafee for 

their courage and for their serious effort to keep hope for 

real campaign finance reform alive. In the context of 

McCain-Feingold, it deserves our support. Their amendment, offered to replace the Lott-McConnell proposal, 

would, in essence, prevent both labor unions and forprofit corporations from using their treasury funds 

to run any broadcast ads which mention candidates within 

30 days of a primary and within 60 days of a general 

election. The Snowe-Jeffords-Chafee amendment thereby 

places essentially the same limits on union and corporate 

spending as S. 25, the McCain-Feingold bill – but it takes 

the added step of specifically naming unions and corporations as the target of those limits. 
30b 

It is important to note that the Snowe amendment 

would not restrict unions or corporate PACs from using 

‘hard money’ – that is, funds regulated by federal campaign finance laws – to pay for such ads, but these PACs 

would be subject to all the reporting and contribution 

limits applying to all other PACs. 

The ads which are the targets of this legislation are 

ads paid for with union and corporate soft money, and 

which clearly identify candidates and are aired close to the 

election, despite the phony claim that they are ‘issue ads.’ 

They are not now subject to federal election laws and their 

greatly expanded use was a major new development in the 

1996 elections. The Annenberg Center for Public Policy 

estimates that all such soft money ads totaled at least 

$135 to $150 million. The political parties spent about $78 

million of this amount for such soft money ads in the 1996 

cycle. The AFL-CIO spent about $25 million. Big business 

groups, including the Coalition, the Coalition for Change, 

the Nuclear Energy Institute, the U.S. Chamber of Commerce and others, spent nearly $10 million dollars. If we 

were simply to ban soft money contributions to the parties, 

the soft money expenditures made by Labor and corporations would increase exponentially. 

The Snowe Amendment also makes it unlawful 

for corporations or unions to launder their treasury 

funds by contributing to the costs of such ads produced by outside groups, including the so-called 

non-profits which took a much more active, and 

largely negative, role in the last election. 

. . . . 

In considering what this amendment can achieve, we 

should remember that the McCain-Feingold substitute 
31b 

itself, with its soft money ban, would prohibit the 

national party ads for which payment is made with soft 

money (that is, contributions not subject to regulation 

under the federal campaign laws) that attack candidates. The recent special election to replace the retiring 

Congresswoman from the 13th District of New York 

featured $800,000 of such ads paid for by the Republican 

Party – and all of them were broadcast in the last ten days 

of that election.” 

144 CONG. REC. S1039-40 (Feb. 26, 1998). (Int. App. 20a). 

Statement of Sen. LIEBERMAN: 

“The law says that corporations and unions cannot 

contribute from their treasuries for political purposes to 

affect elections. Some might say that was an abridgement, 

a violation of their free speech, but that has been upheld 

as constitutional. 

But what has happened? Soft money, issue ads, which 

are clearly ads for or against candidates have been used to 

evade those clearly constitutional restrictions on contributions to political campaigns. The current ability of parties 

and outside groups to disguise candidate-focused electioneering ads as issue ads undermines these longstanding and 

important Federal elections policies. 

A study by the Annenberg Public Policy Center found 

that in 1996, 29 groups spent as much as $150 million on 

what the groups called issue ads, but which the Annenberg 

study leaves little doubt were mostly aimed at electing or 

defeating particular candidates. Mr. President, $150 

million, that is approximately one-third of the total spent 

for all ads by all candidates. That study found that over 85 
32b 

percent of those so-called issue ads mentioned a candidate 

by name, almost 60 percent used a candidate’s picture and, 

worst of all, more than 40 percent of those were 

pure attack ads.” 

144 CONG. REC. S973 (Feb. 25, 1998). (Int. App. 21a). 

Statement of Sen. SNOWE: 

“We can’t just shut off the flow of soft money to parties 

and call it a day. We also must close off the use of corporate 

and union treasury money used to fund ads influencing 

Federal elections. That’s the only way we can claim to have 

enacted truly balanced and fair reform. 

. . . . 

What we are talking about are broadcast advertisements that are influencing our Federal elections and, in 

virtually every instance, are designed to influence our 

Federal elections. Every focus group and every study group 

that has been conducted over the last few years proves this, 

and I’ll detail those studies later. And yet, no disclosure is 

required and there are none of the funding source prohibitions that for decades have been placed on other forms of 

campaigning. 

Why is this so? Because they don’t contain the so-called 

‘magic words’ like ‘vote for candidate x’ or ‘vote against 

candidate x’ that make a communication what is called 

‘express advocacy,’ and therefore, subject to Federal law 

requiring disclosure and requiring that the ad be paid for 

with hard money. 
33b 

These ads must be extraordinarily effective, because 

their use has exploded within the last decade. 

According to a 2001 report from the Annenberg Public 

Policy Center, which has been studying this trend almost 

since its inception in the 1996 election cycle, in the past 

three cycles we have seen spending on issue ads go from 

about $150 million in 1996, to about $340 million in 1998, 

to over $500 million in 2000. One hundred million of that 

was spent in the last 2 months alone. And there is not 

one dime of disclosure required on any of it. 

It’s time we closed this loophole. It’s time to remove 

the cloak of anonymity. Otherwise, we are saying that it 

really doesn’t matter to the election process. That we should 

not know who is behind these types of commercials that are 

run 60 days before the election, 30 days before a primary, 

whose donors contribute more than $1,000. We ought to 

have disclosure on these ads where there currently is 

no disclosure. And that’s what the Snowe-Jeffords provision in this bill does, in simple, straightforward and 

unambiguous terms. 

. . . . 

And second, it prohibits the use of union or corporate 

treasury money to pay for these ads, in keeping with 

longstanding provisions of law. Corporations have been 

banned from direct involvement in campaigns since the 

Tillman Act of 1907. Unions were first addressed in the 

Smith-Connally Act of 1943 and the prohibition was 

finally made permanent in 1947 with the Taft-Hartley Act. 

And these laws have stood because the Court has 

recognized – as recently as 1990 as this quote from Justice 

Marshall in the Austin versus Michigan Chamber of 

Commerce decision shows – ‘the corrosive and distorting 
34b 

effects of immense aggregations of wealth that are accumulated with the help of the corporate form, and that have 

little or no correlation to the public’s support for the corporation’s political ideas.’ 

. . . . 

The most important, bottom line components to this 

legislation are disclosure, and a requirement that 

these so-called issue ads that are really campaign ads be 

funded from voluntary, individual contributions just 

like any other campaign ad.” 

148 CONG. REC. S2135 (Mar. 20, 2002). (Int. App. 12a). 

Statement of Sen. SNOWE: 

“At the same time we address the soft money issue, I 

also think it is critical that we address the ever burgeoning segment of electioneering popularly known as sham 

issue advertising. We do so in a way carefully constructed 

as to pass constitutional muster. I am speaking of advertisements influencing the Federal elections in this country 

but get off scot-free when it comes to any degree of disclosure or any degree of prohibitions normally associated with 

campaigning. 

Let there be no mistake. The record I intend to outline 

will show these advertisements constitute campaigning 

every bit as much as any advertisements run by candidates 

themselves or any ad currently considered to be express 

advocacy and therefore subject to Federal election laws. 

. . . . 
35b 

I have spoken of the exploding phenomenon of the 

so-called issue advertising in elections. That phenomenon continues unchecked and will continue unchecked if we turn a blind eye to reality.” 

147 CONG. REC. S2455 (Mar. 19, 2001). (Int. App. 14a). 

Statement of Rep. BORSKI: 

“Soft money is used to finance the second loophole in 

campaign finance law: sham issue advertisements. This 

loophole allows special interests to spend huge sums of 

money on campaign ads advocating either the defeat or 

election of a candidate. As long as these ads do not use the 

magic words ‘vote for’ or ‘vote against’ they are deemed 

‘issue advocacy’ under current law and therefore not subject 

to campaign spending limits or disclosure requirements. 

During the 1996 elections, the television and 

radio airwaves were flooded with these sham issue 

ads – many of which were negative attack ads. 

Americans who see or here [sic] these ads have no idea 

who pays for them because no disclosure is required. They 

drown out the voice of the average American citizen, and even sometimes of the candidates themselves. Without reform, we can certain expect a 

huge increase in these sham issue ads. 

. . . . 

In an effort to ban campaign advertisements that 

masquerade is [sic] ‘issue advocacy,’ Shays-Meehan tightens the definition of ‘express advocacy’ communications. 

Under the bill, any ad that is clearly designed to influence 

an election is deemed ‘express advocacy’ and must therefore 
36b 

abide by federal contribution and expenditure limits and 

disclosure requirements. . . . 

. . . . 

The Meehan-Shays proposal will not cure our campaign finance system of all its evils – and I certainly 

support more far reaching restrictions on campaign 

contributions and expenditures. However, the bill will 

take a modest but significant first step toward restoring integrity in our political system. It will limit the 

influence of wealthy special interests and help to 

restore the voice of average American citizens in 

our political process. In short, enactment of this legislation is essential to the survival of American democracy.” 

145 CONG. REC. E1888 (Sept. 15, 1999). (Int. App. 19a). 

Statement of Rep. KLECZKA: 

“H.R. 2356, the Bipartisan Campaign Reform Act of 2001, 

is necessary if we are to remove the undue influence of soft 

money on our political process and the unregulated issue 

advertisements that inundate our airwaves during 

each election season. 

. . . . 

An equally troubling aspect of today’s campaign 

system is the number of issue advertisements broadcast on the television and radio. Although these ads 

technically adhere to federal campaign regulations, they 

violate the spirit of the law.” 

148 CONG. REC. H410 (Feb. 13, 2002). (Int. App. 17a). 
37b 

Statement of Rep. NADLER: 

“Money does provide the ways and means for getting a 

candidate’s message out, but we should not live in a 

society where those with the most dollars can monopolize the debate. We should not live in a society 

where, in the name of free speech, one side has a 

megaphone with which to drown out everyone else. 

For those who are concerned about the proposals we 

have here before us, the onus is really on them, I think, to 

explain either why the current system is consistent with a 

healthy democracy, or else what other steps they would 

take to rectify the situation. Should we make greater 

demands on those who have been given control over the 

scarce public airwaves? Should we provide public financing to level the playing field? Should we reconsider the 

Supreme Court’s unfortunate decision in 1886 that 

corporations are persons under the meaning of the 

14th amendment, from which I think a lot of the 

problems in our system flow? What restrictions can we 

place on the use of money consistent with the first 

amendment to preserve the survival of our democracy? 

. . . . 

I must say parenthetically that I do not agree 

with the Supreme Court that the only justification 

for campaign finance regulation is to eliminate 

corruption or the appearance of corruption. It is 

also to preserve the ability of different voices to be 

heard so that the people, and not just those with 

huge amounts of money, can, in fact, be sovereign in 

our system. 

. . . . 
38b 

I just want to explore something you said a moment 

ago when in referring back to the question – to the ads 

that Mr. Meehan had talked about, you said that of course 

incumbent politicians, many of them, some of them don’t 

want to be criticized, so therefore there is an attempt to 

restrict the speech. 

But isn’t it the case that really this has nothing to do 

with criticism? This bill is not saying you can’t criticize the 

Congressman, or whatever; the bill is saying if you want to 

criticize the Congressman, one, do it with hard money and 

subject to the other – basically with hard money disclosure; 

and two, by implication, be honest about it and call him up 

and tell him to stop beating his wife, say don’t vote for 

him, although that is not the requirement. Isn’t the issue 

really not that you can’t criticize, but that if you want to 

criticize you can’t do it with multimillion-dollar contributions?” 

Constitutional Issues Raised by Recent Campaign Finance 

Legislation Restricting Freedom of Speech: Hearing Before 

the Subcomm. on the Constitution of the House Comm. on 

the Judiciary, 107th Congress 16-17, 151, 1st Sess. 

(2001). (Int. App. 17a). 

Testimony of Donald J. SIMON: 

“I appreciate the opportunity to testify on behalf of 

Common Cause regarding the role of so-called ‘issue 

advocacy’ in the 1996 campaign, and how advertisements 

run under the guise of ‘issue ads’ were used as a means to 

evade the federal campaign finance laws. Common Cause 

strongly believes there is a need for Congress to enact 

legislation to address this problem and to close what is 
39b 

emerging as a major loophole in the system of federal 

campaign finance regulation. 

This matter raises a question of fundamental importance to the continued viability of the Federal Election 

Campaign Act (FECA), as well as to the broader goal of 

regulating money in the political process: whether the 

Congress will permit the creation of a loophole in the FECA 

through which unlimited, unregulated and undisclosed 

money can flow into federal campaigns, thereby subverting 

the FECA’s purpose of protecting the integrity of the electoral process from corruption and the appearance of corruption – interests which the Supreme Court found to serve 

compelling public purposes in Buckley v. Valeo, 424 U.S. 1 

(1976). 

The mechanism of this subversion is electioneering for 

candidates that takes place in the form of so-called ‘issue 

advocacy.’ The purpose of the FECA is to regulate money 

spent to advocate the election or defeat of candidates in 

federal campaigns. The FECA is not intended to regulate 

or limit money spent on the discussion of public issues. 

. . . . 

These are not speculative or hypothetical fears – such 

evasion occurred in the 1996 elections, involving tens of 

millions of dollars spent outside the scope of the FECA, 

simply because the ads were carefully crafted to avoid the 

use of ‘magic words.’ The Annenberg Public Policy Center, 

in a study released earlier this week, estimated that the 

two political parties and other groups spent $135 to $150 

million on campaign ads in the guise of ‘issue advocacy’ 

during the 1996 campaign. Bluntly speaking, this spending 

represented a means of massive cheating on the federal 

campaign finance laws. 
40b 

But even more is at stake in this matter than the 

evasion of the Nation’s most fundamental anti-corruption 

laws. The rise of so-called issue advocacy as a means 

to evade the campaign finance laws is changing the 

basic nature of our political campaigns. It is making 

our political discourse less subject to public accountability. 

Indeed, candidates are losing the ability to 

control their own campaigns. As Paul Taylor notes in 

his introduction to the Annenberg report: 

‘This [spending on issue advocacy] is unprecedented, 

and represents an important change in the culture of 

campaigns. Candidates now share the election megaphone with a cacophony of other voices. . . . To the 

naked eye, these issue advocacy ads are often indistinguishable from ads run by candidates. But in a number of 

key respects, they are different. Unlike candidates, issue 

advocacy groups face no contribution limits or disclosure 

requirements. Nor can they be held accountable by the 

voters on election day.’ ” 

The First Amendment and Restrictions on Issue Advocacy: 

Hearing Before the Subcomm. on the Constitution of the 

House Comm. on the Judiciary, 105th Cong. 140-43, 1st 

Sess. (1997) (statement of Donald J. Simon, Executive Vice 

President and General Counsel, Common Cause). (Int. 

App. 27a). 
41b 

BIPARTISAN CAMPAIGN REFORM ACT OF 2001 K 

2001 Senate Vote No. 48 

107th Congress 

1st Session 

03/26/2001 

Amendment Sponsor: Senator Paul Wellstone D-MN 

DESCRIPTION: The Senate agreed to Wellstone Amendment No. 145, to apply the prohibition on electioneering 

communications to targeted communications of certain 

tax-exempt organizations. 

Tally 51-46 

Democrats: 27-21 

Republicans: 24-25 

. . . . 

VOTES BY STATE: 

ARIZONA: 

1 McCain (R) 

. . . . 

CALIFORNIA: 

1 Feinstein (D) 

. . . . 

CONNECTICUT: 

1 Dodd (D) 

2 Lieberman (D) 

. . . . 

NAY 

NAY 

NAY 

NAY 
42b 

MAINE: 

1 Snowe (R) NAY 

2 Collins (R) NAY 

. . . . 

MASSACHUSETTS: 

1 Kennedy (D) AYE 

2 Kerry (D) AYE 

. . . . 

NORTH CAROLINA: 

. . . . 

2 Edwards (D) NAY 

NORTH DAKOTA: 

. . . . 

2 Dorgan (D) AYE 

. . . . 

VERMONT: 

. . . . 

2 Jeffords (R) NAY 

. . . . 

WISCONSIN: 

. . . . 

2 Feingold (D) NAY