No. 02-1756 et al. 

IN THE 

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———— 

CHAMBER OF COMMERCE OF THE UNITED STATES, NATIONAL 

ASSOCIATION OF MANUFACTURERS, AND ASSOCIATED 

BUILDERS AND CONTRACTORS, INC. et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees. 

———— 


On Appeal from the United States 


District Court for the District of Columbia


———— 


OPENING BRIEF OF THE “BUSINESS PLAINTIFFS” 


CHAMBER OF COMMERCE OF THE UNITED 


STATES, NATIONAL ASSOCIATION OF


MANUFACTURERS, AND ASSOCIATED BUILDERS


AND CONTRACTORS, INC. 


———— 


Of counsel 

STEPHEN A. BOKAT 

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

JAN AMUNDSON


NATIONAL ASSOCIATION OF


MANUFACTURERS 

1331 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

(202) 637-3055 

July 8, 2003 

JAN WITOLD BARAN 

Counsel of Record 

THOMAS W. KIRBY


LEE E. GOODMAN


CALEB P. BURNS


WILEY REIN & FIELDING LLP


1776 K Street, N.W. 


Washington, D.C. 20006 


(202) 719-7000 


Counsel for Appellants Chamber of 

Commerce of the United States, 

National Association of 

Manufacturers, Associated 

Builders and Contractors, Inc. 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
QUESTIONS PRESENTED 

1. Whether the “coordination” provisions of the Bipartisan 

Campaign Reform Act (“BCRA”) (§§ 202 and 214), violate 

the First Amendment rights of business corporations and 

those who wish to hear their speech and associate with them. 

2. Whether the “electioneering communications” provisions of BCRA (§§ 201, 203, 204, and 311), violate the right 

of business corporations and those who wish to hear their 

independent speech and associate with them under the First 

Amendment. 

(i) 
ii 

PARTIES TO THE PROCEEDINGS 

The Appellants here, Plaintiffs in two of the eleven cases 

consolidated in the district court, represent the interests of 

American business and business corporations. The Appellants are the Chamber of Commerce of the United States, the 

National Association of Manufacturers, and the Associated 

Builders and Contractors, Inc. They are referred to herein as 

the “Business Plaintiffs.” 

• The Chamber of Commerce of the United States 

(“Chamber”) is the world’s largest not-for-profit 

business federation. Founded in 1912, the Chamber 

represents over 3,000,000 businesses and business 

associations. The Chamber is a corporation, as are 

many of its members and supporters, and it is exempt 

from taxation under section 501(c)(6) of the Internal 

Revenue Code. 

• The National Association of Manufacturers (“NAM”) 

is the oldest and largest broad-based industrial trade 

association in the United States. Its membership 

comprises 14,000 companies and 350 member associations, meaning that NAM represents about 18 

million individuals. Like many trade associations, 

NAM is incorporated and is exempt from taxation 

under section 501(c)(6). 

• The Associated Builders and Contractors, Inc. 

(“ABC”) represents more than 23,000 contractors and 

related firms in the construction industry, both unionized and non-unionized, who share the view that work 

should be awarded and performed on the basis of 

merit, regardless of labor affiliation. ABC is funded 

primarily by membership dues and is exempt from 

taxation under section 501(c)(6).∗

∗ The Associated Builders and Contractors Political Action Committee 

(ABC PAC) and the U.S. Chamber Political Action Committee (U.S. 
iii 

The Appellees here, who collectively were Defendants in 

the district court, fall into two categories: the Government 

Defendants, comprising the Federal Election Commission, the 

Federal Communications Commission, and the United States 

of America; and the Intervenor Defendants, comprising 

Senator John McCain; Senator Russell Feingold; Representative Christopher Shays; Representative Martin Meehan; 

Senator Olympia Snowe; and Senator James Jeffords. They 

are referred to collectively herein as Defendants. 

CORPORATE DISCLOSURE STATEMENT 

The Corporate Disclosure Statement is included on page iii 

of the Business Plaintiffs’ Jurisdictional Statement. 

Chamber PAC) are separate segregated funds of their respective 

organizations under 2 U.S.C. § 441b(b)(2)(C), and are political 

organizations under section 527(e)(1) of the Internal Revenue Code. They 

receive contributions from individuals as authorized by federal law and 

make contributions to or expenditures in support of federal candidates. 

Because of the associated burdens and risks, NAM does not have a PAC. 

The two business PACs are relying upon arguments by other allied parties 

at this stage of the briefing. 
TABLE OF CONTENTS 

Page 

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

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

CORPORATE DISCLOSURE STATEMENT ............. iii 

TABLE OF AUTHORITIES ......................................... viii 

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

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

PERTINENT CONSTITUTIONAL AND 

STATUTORY PROVISIONS ................................... 1 

INTRODUCTION ......................................................... 4 

STATEMENT OF THE CASE...................................... 6 

BCRA’s “Coordination” and “Electioneering Com­


munication” Provisions.............................................. 7 


The Process Of Developing National Legislation 


And Policy Requires Ongoing Close Contacts With 


Candidates And Party Officials ................................. 13 


Legislative And Policy Development Requires 


Business Corporations To Communicate To The


Public During Pre-Election Periods........................... 16 


The Experience Of “The Coalition” Illustrates The


Risk That A Broad “Coordination” Definition Poses 


To Corporate Involvement In Federal Legislation


And Speech ................................................................ 19 


To The Extent A Speaker’s Purpose Is Relevant 


And Can Be Discerned, The Coalition’s Speech 


Was Not Exclusively Or Primarily Electoral, And


Many Who Contributed To The Speech Had No 


Electoral Intent........................................................... 25


(v) 
vi 

TABLE OF CONTENTS—Continued 

Page 

SUMMARY OF ARGUMENT ..................................... 27 

ARGUMENT................................................................. 30 

I. LAWS THAT SIGNIFICANTLY BURDEN FIRST AMENDMENT POLITICAL 

ACTIVITIES OF CORPORATIONS MUST 

SATISFY STRICT SCRUTINY........................ 30 

II. BCRA’S “ELECTIONEERING COMMUNICATION” PROVISIONS FAIL STRICT 

SCRUTINY........................................................ 33 

A. 	 The First Amendment Forbids Campaign Finance Regulation Of Independent 

Speech That Does Not Expressly Advocate 34 

B.	 The Electioneering Communication Standard Is Not Narrowly Tailored....................... 36 

C. Corporate Speech Does Not Warrant The 

Overbreadth Of The Electioneering Communication Standard .................................... 38 

D. 	The Untailored And Vague Backup Definition Cannot Be Saved By Broadening It 

To Burden Speech That Congress Intended 

To Leave Free .............................................. 41 

III. BCRA’S COORDINATION PROVISIONS 

FAIL STRICT SCRUTINY BECAUSE THEY 

ARE NEITHER NARROWLY TAILORED 

NOR CLEAR ..................................................... 44 

A. 	 BCRA’s Definition Of Coordination, 

Which Excludes Any Element Of 

Agreement, Is Not Narrowly Tailored......... 44 
vii 

TABLE OF CONTENTS—Continued 

Page 

B.	 BCRA’s Coordination Provisions Are 

Unconstitutionally Vague ............................ 46 

C. 	The Constitutional Challenge To BCRA’s 

Coordination Provisions Can And Should 

Be Decided Now, As BCRA Itself 

Mandates...................................................... 48 

CONCLUSION.............................................................. 50 
viii 

TABLE OF AUTHORITIES 

CASES Page 

Abbott Laboratories v. Gardner, 387 U.S. 136 


(1967)................................................................. 49 


AFL-CIO v. FEC, No. 02-5069, 2003 WL


21414308 (D.D.C. June 20, 2003) .................22, 24, 48 


Anderson v. Green, 513 U.S. 557 (1995)............... 49 


Austin v. Michigan Chamber of Commerce, 494


U.S. 652 (1990).................................................. passim 


Bose Corp. v. Consumer Union of United States,


Inc., 466 U.S. 485 (1984)................................... 


Brockett v. Spokane Arcades, Inc., 472 U.S. 491


(1985)................................................................. 34 


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


CFTC v. Schor, 478 U.S. 833 (1986)..................... 43 


California Motor Transport Co. v. Trucking 


Unlimited, 404 U.S. 508 (1972)......................... 31 


California Pro-Life Council, Inc. v. Getman, 328


F.3d 1088 (9th Cir. 2003) .................................. 11 


Chamber of Commerce of the United States v.


Moore, 288 F.3d 187 (5th Cir. 2002)................. 10 


Citizens for Responsible Government State PAC


v. Davidson, 236 F.3d 1174 (10th Cir. 2000) .... 10 


City of Lafayette v. Louisiana Power & Light, 


435 U.S. 389 (1978)........................................... 31 


Clifton v. FEC, 927 F. Supp. 493 (D. Me. 1996)... 44 


Colorado Republican Federal Campaign


Committee v. FEC, 518 U.S. 604 (1996) ....... 22, 44-45 


Consolidated Edison Co. v. Public Service Com­


mission of New York, 447 U.S. 530 (1980)........ 30, 35 


Department of Commerce v. United States House 


of Representatives, 525 U.S. 316 (1999) ........... 50 


FEC v. Beaumont, 123 S. Ct. 2200 (2003) ............ 31 


6 
ix 

TABLE OF AUTHORITIES—Continued 

Page 

FEC v. Central Long Island Tax Reform Im­


mediately Committee, 616 F.2d 45 (2d Cir. 


1980) .................................................................. 11 


FEC v. Christian Action Network, Inc., 110 F.3d 


1049 (4th Cir. 1997)........................................... 11 


FEC v. Christian Coalition, 52 F. Supp. 2d 45


(D.D.C. 1999) .................................................... passim 


FEC v. Furgatch, 807 F.2d 857 (9th Cir.


1987) .................................................................. passim


FEC v. Massachusetts Citizens for Life, Inc., 479 


U.S. 283 (1986).................................................. passim 


Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991)...... 11 


First National Bank of Boston v. Bellotti, 435 


U.S. 765 (1978).................................................. 30, 35 


Florida Right to Life, Inc. v. Lamar, 238 F.3d 


1288 (11th Cir. 2001)......................................... 11 


Greater New Orleans Broadcasting Association,


Inc. v. United States, 527 U.S. 173 (1999) ........ 35 


Hustler Magazine v. Falwell, 485 U.S. 46


(1988)................................................................. 36 


Iowa Right to Life Committee, Inc. v. Williams, 


187 F.3d 963 (8th Cir. 1999) ............................. 10 


Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C. 


Cir. 1980) ........................................................... 49-50 


Maine Right to Life Committee, Inc. v. FEC, 98


F.3d 1 (1st Cir. 1996)......................................... 10-11 


Mills v. Alabama, 384 U.S. 214 (1966) ................. 37 


North Carolina Right to Life, Inc. v. Bartlett, 168


F.3d 705 (4th Cir. 1999) .................................... 11 


Pacific Gas & Electric Co. v. Public Utilities


Commission of California, 475 U.S. 1 (1986) ... 30, 35 


Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000) ..... 11, 36 

x 

TABLE OF AUTHORITIES—Continued 

Page 

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 


(1987)................................................................. 46 


Professional Real Estate Investors v. Columbia 

Pictures Industrial, Inc., 508 U.S. 49 (1993)..... 31 


R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ..... 34 


Secretary of State of Maryland v. Joseph H. 


Munson Co., 467 U.S. 965 (1984) ..................... 34 


Smith v. Goguen, 415 U.S. 566 (1974) .................. 32 


Thomas v. Collins, 323 U.S. 516 (1945)................ 41 


Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 30 


United Mine Workers v. Gibbs, 383 U.S. 715


(1966)................................................................. 50 


United States v. Playboy Entertainment Group, 


Inc., 529 U.S. 803 (2000)................................... 31 


Vermont Agency of Natural Resources v. United


States ex rel. Stevens, 529 U.S. 765 (2000) ....... 49 


Vermont Right to Life Committee, Inc. v. Sorrell, 


221 F.3d 376 (2d Cir. 2000)............................... 10 


Village of Hoffman Estates v. Flipside, Hoffman 


Estates, Inc., 455 U.S. 489 (1982) ..................... 32 


Virginia Society for Human Life, Inc. v.


Caldwell, 152 F.3d 268 (4th Cir. 1998)............. 11 


Virginia Society for Human Life, Inc. v. FEC, 


263 F.3d 379 (4th Cir. 2001) ............................. 10 


Virginia State Board of Pharmacy v. Virginia


Citizens Consumer Council, Inc., 425 U.S. 748


(1976)................................................................. 30 


CONSTITUTION, STATUTES, REGULATIONS 

Bipartisan Campaign Reform Act of 2002, Pub. 

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

Constitution	 of the United States Article I,


Section 2............................................................. 15 

xi 

TABLE OF AUTHORITIES—Continued 

Page 

Constitution of the United States Article I,


Section 3............................................................. 15 


Constitution of the United States Article II,


Section 1............................................................. 15 


Constitution of the United States Amendment I.... passim 


Constitution of the United States Amendment 


XVII ................................................................... 15 


Federal Election Campaign Act of 1971, 2 


U.S.C. §§ 431 et seq........................................... passim 


2 U.S.C. § 434........................................................ 1 


2 U.S.C. § 437f(a)(1) ............................................. 47 


2 U.S.C. § 437f(d).................................................. 47 


2 U.S.C. § 437g(a)(12)........................................... 21 


2 U.S.C. § 441a(a).................................................. 11 


2 U.S.C. § 441a(a)(7)(B)........................................ 2, 11 


2 U.S.C. § 441b(a) ................................................. 11 


2 U.S.C. § 441b(b)(2)(C) ....................................... iii 


I.R.C. § 501(c)(6)................................................... ii 


I.R.C. § 527(e)(1)................................................... iii 


Public Company Accounting Reform and Inves­


tor Protection Act, 15 U.S.C. §§ 7201 et seq..... 17 


11 C.F.R. § 100.23................................................. 11, 23 


11 C.F.R. § 100.23(c)(2)........................................ 23 


11 C.F.R. § 100.23(c)(2)(iii).................................. 12, 45 


11 C.F.R. § 100.29(a)(2)........................................ 8 


11 C.F.R. § 100.29(b)(2)........................................ 17-18 


11 C.F.R. § 100.29(b)(3)(ii)................................... 8 


11 C.F.R. § 109.21(c)............................................. 13, 47 


11 C.F.R. § 109.21(d) ............................................ 46, 47 


11 C.F.R. § 109.21(d)(1)(i).................................... 12-13 


11 C.F.R. § 109.21(d)(3)........................................ 12-13 


11 C.F.R. § 109.21(e)....................................12-13, 45-47 


11 C.F.R. § 109.21(f)............................................. 13 

xii 

TABLE OF AUTHORITIES—Continued 

MISCELLANEOUS Page 

Aaron R. Gary, First Amendment Petition Clause


Immunity From Tort Suits, 33 Idaho L. Rev.


67 (1996)............................................................ 31 


Audio Division, Federal Communications 


Commission, Why AM Radio Stations Must 


Reduce Power, Change Operations, or Cease 


Operations at Night, at http://www.fcc.gov/


mb/audio/bickel/daytime.html (last visited July


1, 2003) .............................................................. 10 


Black’s Law Dictionary 326 (7th ed. 1999)........... 46 


Charles A. Wright & Arthur R. Miller, Federal


Practice & Procedure § 3532.3 (2d ed. 1984)... 48 


Craig B. Holman & Luke P. McLoughlin, Buying


Time 2000: Television Advertising in the 2000


Federal Elections (Brennan Center for Justice 


2001) .................................................................. 39-40 


2001 FCC LEXIS 4931 (Sept. 17, 2001)............... 10 


FEC General Counsel’s Report in FEC MUR


4624 (Apr. 23, 2001)......................................21, 23, 26 


Michael Cooper, At $92.60 a Vote, Bloomberg


Shatters An Election Record, N.Y. Times,


Dec. 4, 2001 ....................................................... 40 


Norman J. Singer, Sutherland Statutory 


Construction §§ 47:23, 47:24, 47:33 (6th ed.


2001) .................................................................. 45 


Richard W. Stevenson, A Campaign to Build


Influence, N.Y. Times, Oct. 29, 1996 ................ 19 


Statement For the Record by Commissioner


Bradley A. Smith in FEC MUR 4624 (Nov. 6,


2001) ...................................................11-12, 23-24, 47 

xiii 

TABLE OF AUTHORITIES—Continued 

Page 

United States House of Representatives and 

United States Senate Roll Call Votes for the 

104th, 105th, 106th, and 107th Congresses, at 

http://clerk.house.gov/histHigh/Congressional 

_History/index.php (House) and 

http://www.senate.gov/pagelayout/legislative/a 

_three_sections_with_teasers/votes.htm (last 

visited July 1, 2003)........................................... 16-17 


Warren Communications News, Television &


Cable Fact Book (2002)..................................... 8 


146 Cong. Rec. H11754 (daily ed. Nov. 1, 2000) . 14 


146 Cong. Rec. H11803 (daily ed. Nov. 2, 2000) . 14 


146 Cong. Rec. S11521 (daily ed. Nov. 14, 2000) 14 


147 Cong. Rec. S2706 (daily ed. Mar. 22, 2001) .. 11, 43 


147 Cong. Rec. S2710 (daily ed. Mar. 22, 2001) .. 11, 43 


147 Cong. Rec. S2712-13 (daily ed. Mar. 22,


2001) .................................................................. 11, 43 


147 Cong. Rec. S3184 (daily ed. March 30,


2001) .................................................................. 48 


147 Cong. Rec. S3189 (daily ed. March 30,


2001) .................................................................. 48 


147 Cong. Rec. S3190 (daily ed. March 30,


2001) .................................................................. 48 


147 Cong. Rec. S3194 (daily ed. March 30,


2001) .................................................................. 48 


65 Fed. Reg. 76138 (Dec. 6, 2000)........................ 23 


67 Fed. Reg. 65190 (Oct. 23, 2002).........................11, 42 


67 Fed. Reg. 65212 (Oct. 23, 2002)....................... 8 


68 Fed. Reg. 421 (Jan. 3, 2003) ............................. 12, 13 


H.R. 1, 108th Cong. (2003).................................... 15 


H.R. 339, 107th Cong. (2001)................................ 15 


H.R. 3626, 107th Cong. (2002).............................. 15 

xiv 

TABLE OF AUTHORITIES—Continued 

Page 

H.R. 3684, 107th Cong. (2002).............................. 15 


H.R. 4607, 106th Cong. (2000).............................. 14 


H.R. 4680, 106th Cong. (2000).............................. 14 


H.R. Conf. Rep. No. 94-1507 (1976)..................... 34 


S. 1, 108th Cong. (2003)........................................ 15 


S. 2, 107th Cong. (2002)........................................ 15 


S. 357, 107th Cong. (2001).................................... 14 


S. 358, 107th Cong. (2001).................................... 14 


S. 2625, 107th Cong. (2002).................................. 14 


S. 2753, 106th Cong. (2000).................................. 14 


S. Res. 269, 107th Cong. (2002)............................ 15 

OPINIONS BELOW 

The district court’s opinions are reported at 251 F. Supp. 

2d 176 (D.D.C. 2003), and may be found in the Supplemental 

Appendix to Jurisdictional Statements that has been filed with 

the Court. See Supp. App. 1sa-1382sa. The district court’s 

Order staying the effect of its decision and the accompanying 

Memorandum Opinions are reported at 253 F. Supp. 2d 18 

(D.D.C. 2003), and are reprinted in the Appendix to the 

Business Plaintiffs’ Jurisdictional Statement (“J.S. App.”) at 

J.S. App. 4a-20a. 

JURISDICTION 

The district court entered judgment on May 2, 2003. 

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

Appellants’ notice of appeal is reprinted at J.S. App. 1a-2a. 

This Court noted probable jurisdiction on June 5, 2003. This 

Court has appellate jurisdiction pursuant to section 403(a)(3) 

of BCRA. 

PERTINENT CONSTITUTIONAL AND STATUTORY 

PROVISIONS 

1. The Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 (2002), is 

reprinted at J.S. App. 22a-85a. Sections 201, 202, 203, 204, 

and 311 of BCRA all are relevant to this brief, but the two 

provisions on which this brief focuses are the following: 

Electioneering Communications 

Section 201(a) of BCRA amends the Federal Election 

Campaign Act of 1971, 2 U.S.C. §§ 431 et seq. (“FECA”) 

by adding the following to 2 U.S.C. § 434 as part of subsection (f): 

(3) ELECTIONEERING COMMUNICATIONS. – For 

purposes of this subsection – 

[PRIMARY DEFINITION] 

(A) IN GENERAL. – (i) The term “electioneering 

communication” means any broadcast, cable, or satellite 

communication which – 
2 


(I) refers to a clearly identified candidate for 


Federal office; 


(II) is made within – 


(aa) 60 days before a general, special, or runoff 

election for the office sought by the candidate; or 

(bb) 30 days before a primary or preference 

election, or a convention or caucus of a political 

party that has authority to nominate a candidate, 

for the office sought by the candidate; and 

(III) in the case of a communication which refers to a 

candidate for an office other than President or Vice 

President, is targeted to the relevant electorate. 

[BACKUP DEFINITION] 

(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation 

provided herein, then the term “electioneering 

communication” means any broadcast, cable, or satellite 

communication which promotes or supports a candidate 

for that office, or attacks or opposes a candidate for that 

office (regardless of whether the communication 

expressly advocates a vote for or against a candidate) and 

which also is suggestive of no plausible meaning other 

than an exhortation to vote for or against a specific 

candidate. 

Coordination 

Section 214(a) of BCRA amended FECA, 2 U.S.C. 

§ 441a(a)(7)(B), by inserting after existing clause (i) and 

before the former clause (ii) – redesignated as clause (iii) – 

the following new clause (ii): 

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

candidate or candidate’s authorized committee) in 

cooperation, consultation, or concert with, or at the 

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

committee; and 
3 

Section 214(b), (c), and (d) of BCRA provide as follows: 

(b) REPEAL OF CURRENT REGULATIONS. – The 

regulations on coordinated communications paid for by 

persons other than candidates, authorized committees of 

candidates, and party committees adopted by the Federal 

Election Commission and published in the Federal 

Register at page 76138 of volume 65, Federal Register, on 

December 6, 2000, are repealed as of the date by which 

the Commission is required to promulgate new 

regulations under subsection (c) (as described in section 

402(c)(1)). 

(c) REGULATIONS BY THE FEDERAL ELECTON 

COMMISSION. – The Federal Election Commission 

shall promulgate new regulations on coordinated communications paid for by persons other than candidates, 

authorized committees of candidates, and party committees. The regulations shall not require agreement or 

formal collaboration to establish coordination. In addition 

to any subject determined by the Commission, the 

regulations shall address – 

(1) payments for the republication of campaign 

materials; 

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

(3) payments for communications directed or made by 

persons who previously served as an employee of a 

candidate or a political party; and 

(4) payments for communications made by a person 

after substantial discussion about the communication 

with a candidate or a political party. 

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

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

of 1971 (2 U.S.C. § 441b(b)(2)) is amended by striking 

“shall include” and inserting “includes a contribution or 

expenditure, as those terms are defined in section 301, 

and also includes”. 
4 


2. The First Amendment of the United States Constitution is reprinted at J.S. App. 21a. 

INTRODUCTION 

The success and vitality of American business, and of the 

corporations by which most of America’s business is 

conducted, are central to the welfare and happiness of the 

American people, and to the security and stability of our 

nation. Corporations are primary employers, providing jobs, 

salaries, healthcare, retirement, and other benefits to most 

Americans; they produce much of our nation’s goods and 

wealth; and their securities are central to retirement and 

investment plans. 

Business corporations are profoundly affected by federal 

legislation, policy, and executive action on a wide range of 

issues, from tort reform to taxes, intellectual property to 

import controls, and employment standards to environmental 

protection. As a result, corporations are critically interested 

in the formulation and implementation of federal legislation 

and policy and in arguing that their knowledge and concerns 

are fully and effectively communicated to the public, federal 

legislators and other government officials, as well as to 

candidates and officials of the national political parties. At 

the same time, all Americans, including American voters and 

government officials, have a vital interest in hearing what 

corporations have to say on the key issues of the day. 

The premise of the First Amendment is that we govern 

ourselves best when interested and informed parties are free 

to speak, associate, and petition, especially as to matters of 

legislation and public policy. This Court repeatedly has 

recognized the constitutional as well as the practical 

importance of corporate participation in the shaping of 

legislation and public policy. Although it has sustained some 

limits on express candidate advocacy, it has imposed a 

stringent standard of review, and has insisted that such limits 

be narrowly tailored and precisely defined, and has flatly 

rejected attempts to regulate corporate speech on matters of 
5 

public policy that does not expressly advocate the election or 

defeat of candidates. 

BCRA threatens broad and vague new restrictions on the 

ability of corporations (and labor unions) to speak, associate, 

and petition the government. This brief focuses on two of 

BCRA’s most damaging provisions. 

First, BCRA seeks to expand the narrow and precise 

“express advocacy” standard, under which the First 

Amendment tolerates regulation of speech that explicitly 

advocates the election or defeat of clearly identified 

candidates. BCRA creates sweeping regulation of so-called 

“electioneering communications” that merely refer to a 

candidate or, alternatively, that may be thought to support or 

oppose a candidate. This new standard – intended to expand 

the “express advocacy” standard that this Court derived from 

the First Amendment – is applied throughout BCRA to 

impose disclosure, reporting, contribution and expenditure 

limits on individuals, unincorporated groups, corporations, 

political parties, and others. But it has particular effect on 

corporations and unions since the ban on their express 

advocacy is converted into a sweeping ban on a wide range of 

public speech. Incredibly, BCRA would forbid corporations 

to so much as mention President Bush, Vice President 

Cheney, or their Democratic rivals in broadcasts on the major 

television or radio stations in Washington, D.C., New York 

City, St. Louis, Chicago, and elsewhere during much of 2004! 

Second, BCRA perverts the common sense “coordination” 

rule that agreeing with a candidate to finance specified speech 

in support of his or her campaign may constitute a forbidden 

contribution. By eliminating any requirement of agreement, 

BCRA imposes a vague coordination standard under which, 

on pain of criminal liability, corporations and others must 

choose between the types of routine communication and 

association with members of Congress and other allies by 

which federal legislation and policy is developed versus their 

core right to speak freely on legislative and policy issues. 
6 


The Business Plaintiffs who join in this brief – the 

Chamber, NAM, and ABC – are three of the major incorporated associations through which American business and 

business corporations communicate with Americans and 

American government officials and participate in the formulation of federal legislation and policy. For themselves and 

their members, and ultimately for the good of our democracy, 

the Business Plaintiffs urge the Court to adhere to the First 

Amendment limits it has set and to reject the coordination and 

electioneering communication provisions of BCRA. 

STATEMENT OF THE CASE 

The district court was deeply divided. Over Judge 

Henderson’s strong dissent, Judges Leon and Kollar-Kotelly 

ruled that: (1) Neither of BCRA’s alternative definitions of 

electioneering communication is valid, but the ambiguous 

Backup Definition could be made constitutional by severing a 

clause that narrows its scope, Per Curiam, Supp. App. 6sa; 

Leon, J., Supp. App. 1164sa-66sa; Kollar-Kotelly, J., Supp. 

App. 885sa-86sa; and (2) BCRA’s coordination standard is 

not void for lack of tailoring, and whether it is vague cannot 

be decided until after judicial review of the FEC’s new 

coordination regulations before a single-judge district court, 

Per Curiam, Supp. App. 134sa-56sa. However, when the 

district court stayed its rulings pending this Court’s decision, 

Judge Leon announced that the broadened Backup Definition 

does not provide enough “guidance” to be enforced. J.S. 

App. 19a. 

The district court compiled only a paper record, receiving 

no live testimony. The three judges sharply disagreed as to 

the meaning of that record. In any event, in First Amendment 

cases, this Court makes an “independent examination of the 

whole record [to prevent] a forbidden intrusion on the field of 

free expression,” as well as deciding all legal issues de novo. 

Bose Corp. v. Consumer Union of U.S., Inc., 466 U.S. 485, 

499 (1984). In these circumstances, and in light of this 

Court’s Order of June 5, 2003, directing plaintiffs to submit 
7 

opening briefs on all of their claims, regardless of how they 

fared in the district court, the Business Plaintiffs focus on the 

record below, citing the district court opinions where 

relevant. 

BCRA’S “Coordination” and “Electioneering Communication” Provisions. 

BCRA is a complex and lengthy statute that amends the 

equally complex FECA. This brief focuses on BCRA’s 

“electioneering communication” and “coordination” provisions, quoted supra at 1-4, because they directly and substantially burden core First Amendment activities of corporations. 

Electioneering Communication: Buckley v. Valeo, 424 

U.S. 1 (1976), construed the First Amendment to prohibit 

campaign finance regulation that restricts independent speech 

that does not use explicit words to expressly advocate 

election or defeat of clearly identified candidates. This same 

“express advocacy” standard was employed across the board 

to set constitutional bounds to expenditure limits, reporting 

and disclosure requirements, and other burdens on 

individuals, groups, and corporations. Id. BCRA rejects 

Buckley’s “express advocacy” standard and instead introduces 

a new category of “electioneering communications.” BCRA 

§ 203. BCRA provides a Primary Definition of electioneering communication and a very different Backup Definition, which takes effect only if the Primary Definition is 

struck down. 

Primary Definition: Under the Primary Definition, an 

electioneering communication is any broadcast, cable, or 

satellite communication that (a) “refers to a clearly identified 

[federal] candidate,” (b) is made within 30 days before a 

nominating caucus, convention, or primary or 60 days before 

any general, special, or runoff election for the office the 

candidate seeks, and, in the case candidates for Congress, (c) 

is “targeted” in the sense that it “can be received by 50,000 or 

more persons” in the relevant district or State. BCRA § 201. 

The FEC’s new regulations provide that communications 
8 

referring to candidates for presidential and vice presidential 

nominations during state nominating events (e.g., a primary 

or convention) trigger a 30 day blackout period only in the 

involved state and only as to candidates seeking nomination 

by the involved party. 11 C.F.R. § 100.29(a)(2), (b)(3)(ii). 

The FEC directed the Federal Communications Commission to create a database to answer the complex question of 

which broadcast, cable, and satellite signals can be received 

by 50,000 persons in particular jurisdictions. See FCC 

Database on Electioneering Communications, 67 Fed. Reg. 

65,212, 65,215-16 (Oct. 23, 2002). This is necessary because 

electronic signals are not affected by political boundaries and 

often reach substantial audiences in multiple districts or 

states. 

For example, major television stations in Washington, 

D.C., southern Maryland, and northern Virginia reach more 

than 50,000 persons in all three jurisdictions. See, e.g., 

Warren Communications News, Television & Cable Fact 

Book (2002). Similarly, the principal New York City 

television stations reach more than 50,000 people in New 

Jersey, Pennsylvania, and Connecticut. Id.1 Since radio and 

television broadcast signals often extend for a radius of 80 to 

100 miles, there are many similar situations, ranging from 

large urban centers such as St. Louis, Missouri and East St. 

Louis, Illinois, or Chicago, Illinois and nearby Indiana 

communities, to population clusters such as Lake Charles and 

Sulfur, Louisiana which share radio and television coverage 

with Port Arthur and Beaumont, Texas, or Fargo, North 

Dakota and Morehead, Minnesota which lie on either side of 

the Red River. Id. And so on. 

BCRA section 203 expands the former prohibition of 

express advocacy by corporations into a prohibition of 

electioneering communications. This means that in any given 

1 The coverage of at least 50,000 people in each such state can be confirmed by summing the population of towns within the stations’ grade “B” 

contour, e.g., Levittown and Easton, Pa.; Greenwich and Stamford, Conn. 
9 

state, BCRA’s Primary Definition blacks out any corporate 

broadcast reference to the presidential candidates for at least 

120 days during an election year: 30 days before the state 

primary or other nominating event; 30 days before the 

relevant national convention; and 60 days before the general 

election. For congressional candidates, the minimum period 

is 90 days since there is no national convention. But because 

broadcast, satellite, and cable signals often reach more than 

50,000 persons in multiple jurisdictions, blackouts can be 

much longer. 

The 2004 primary schedule is not complete, but if the 2000 

dates were followed, the audience of major television and 

radio stations in the nation’s capital could not receive 

corporate references to President Bush or Vice President 

Cheney for 157 days during 2004, and residents of New York 

City would be deprived of such speech for 176 days.

2 

References to Democratic challengers also would be blacked 

out for 176 days in New York, but in D.C. the period would 

be 187 days.

3 Of these half-year blackout periods, 56 days of 

the New York City blackout, 37 days of the D.C. Republican 

blackout, and 60 days of the D.C. Democratic blackout would 

be due to primaries in adjacent jurisdictions.4 

2

 But for overlaps in some of the blackout periods, the blackout periods 

would be longer. With respect to New York City, the relevant primary 

dates are: N.Y. and Conn. 3/7; Pa. 4/4; and N.J. 6/6. With respect to 

D.C., the relevant primary dates are: Va. Rep. 2/29; Md. 3/7; and D.C. 

5/2. The Republican National Convention started 7/31, and the general 

election was 11/7. These dates can be verified at the FEC’s website, 

www.fec.gov. That site does not list minor party nominating dates. 

However, in a state such as New York where multiple minor parties also 

often nominate major party candidates, the blackout period actually could 

be 60 to 90 days longer than stated. 3

 This greater length is because Virginia’s Republican primary overlaps 

with Maryland’s primary, while Virginia’s June 6 Democratic convention 

does not overlap any D.C. or Maryland event. 4

 The blackout would not merely affect residents of D.C. or New York, 

but would burden the entire audience of affected stations. For example, 
10 

Backup Definition: Alternatively, if the Primary Definition 

is “held to be constitutionally insufficient,” then the Backup 

Definition defines electioneering communication as (a) any 

broadcast, cable, or satellite communication that “promotes or 

supports . . . or attacks or opposes” a candidate for federal 

office, (b) “regardless of whether the communication 

expressly advocates a vote for or against a candidate,” so long 

as it (c) “is suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific candidate.” 

BCRA § 201. The “suggestive of no plausible meaning” 

clause derives from FEC v. Furgatch, 807 F.2d 857 (9th Cir. 

1987), the only court of appeals decision to arguably relax 

Buckley’s “express advocacy” standard.5 In Senate debates, 

residents of Northern Virginia would suffer blackouts due to D.C. and 

Maryland nominating events. For the AM radio nighttime audience, the 

situation is much worse. Because AM radio waves bounce off of the 

ionosphere, which shifts after sunset, many local AM stations are required 

to sharply reduce power, or even to cease broadcasting, to clear the way 

for about fifty “clear channel” stations that use increased power and 

reflection from the ionosphere to serve wide regions – a range of 

approximately 750 miles in radius. See Audio Division, Federal Communications Commission, Why AM Radio Stations Must Reduce Power, 

Change Operations, or Cease Operations at Night, at http://www. 

fcc.gov/mb/audio/bickel/daytime.html (last visited July 1, 2003). Because 

these stations can be received in many states with different primary dates, 

their references to the president, vice president, and challengers may be 

banned for almost the entire election year. Listeners to subscription 

satellite radio, a newly emerging medium that reaches nationwide 

audiences and is required to use system-wide advertisements, face similar 

restrictions. See 2001 FCC LEXIS 4931, Para. 11 (Sept. 17, 2001). 5 Furgatch overlooked this Court’s then-recent decision in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 283 (1986) (“MCFL”). 

Furgatch was rejected by all other Courts of Appeals. See Chamber of 

Commerce of the United States v. Moore, 288 F.3d 187 (5th Cir. 2002), 

cert. denied, 123 S. Ct. 536 (2002); Va. Soc’y for Human Life, Inc. v. 

FEC, 263 F.3d 379 (4th Cir. 2001); Citizens for Responsible Gov’t State 

PAC v. Davidson, 236 F.3d 1174 (10th Cir. 2000); Vt. Right to Life 

Comm., Inc. v. Sorrell, 221 F.3d 376 (2d Cir. 2000); Iowa Right to Life 

Comm., Inc. v. Williams, 187 F.3d 963 (8th Cir. 1999); Me. Right to Life 
11 

the Backup Definition was frequently referred to as the 

“Furgatch” standard. 147 Cong. Rec. S2706, S2710, S2712-

13 (daily ed. Mar. 22, 2001) (statements of Sen. Specter). 

The FEC declined to issue regulations dealing with the 

Backup Definition. See Electioneering Communications, 67 

Fed. Reg. 65,190, 65,191 (Oct. 23, 2002) (Explanation and 

Justification). See also J.S. App. 19a (Leon, J.). 

The Backup Definition applies at all times and in all states 

whether or not any election is pending there. It applies to 

speech that does not expressly advocate an electoral outcome. 

Because many members of the House of Representatives are 

nearly perpetual federal candidates, the Backup Definition 

would regulate corporate references to them year-round. 

Coordination: Since Buckley, spending for speech that 

was sufficiently “coordinated” with a federal candidate or 

campaign was classified as a “contribution.” See Buckley, 

424 U.S. at 46-47; see also 2 U.S.C. § 441a(a)(7)(B); 11 

C.F.R. § 100.23 (repealed by BCRA section 214). 

Corporations were forbidden to contribute to federal 

candidates, campaigns, and political parties on pain of civil 

and criminal penalties. 2 U.S.C. § 441b(a). Individuals were 

allowed to contribute only limited amounts. Id. § 441a(a). 

Thus, a charge that an issue ad was coordinated with a 

candidate translated into a charge of making an unlawful 

contribution. This contribution doctrine arguably applied 

only to speech that contained “express advocacy,” though 

such a limitation was controversial at best. See Statement For 

Comm., Inc. v. FEC, 98 F.3d 1 (1st Cir. 1996). See also Perry v. Bartlett, 

231 F.3d 155 (4th Cir. 2000); N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 

705 (4th Cir. 1999); Va. Soc’y for Human Life, Inc. v. Caldwell, 152 F.3d 

268 (4th Cir. 1998); FEC v. Christian Action Network, Inc., 110 F.3d 

1049 (4th Cir. 1997); Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); FEC 

v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d 

Cir. 1980); see also Fla. Right to Life, Inc. v. Lamar, 238 F.3d 1288 (11th 

Cir. 2001) (affirming preliminary injunction). In addition, the Ninth Circuit recently gave its Furgatch opinion a sharply narrow meaning. See 

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003). 
12 

the Record by Commissioner Bradley A. Smith in FEC MUR 

4624 (Nov. 6, 2001), J.A. 1822, 1827-29. 

As issue ads became more common, so did charges of 

coordination, and the meaning of coordination received more 

attention. By the late 1990’s, constitutional precedent and 

FEC regulation required some element of agreement between 

speaker and candidate before otherwise permissible 

independent speech was converted into a forbidden 

contribution. See FEC v. Christian Coalition, 52 F. Supp. 2d 

45, 91-92 (D.D.C. 1999); 11 C.F.R. § 100.23(c)(2)(iii) 

(repealed by BCRA section 214). BCRA section 214 rejects 

the constitutionally-based narrowing construction under 

which agreement was necessary, repeals the FEC regulations 

embodying the requirement of agreement, extends the 

coordination concept to political parties as well as candidates 

and campaigns, defines coordination as acting “in 

cooperation, consultation, or concert with, or at the request or 

suggestion of” a federal candidate, campaign, or party, and 

forbids construing this standard to require “agreement or 

formal collaboration.” 

The FEC has issued regulations implementing BCRA’s 

coordination directives. See Coordinated and Independent 

Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003). They provide 

that “[a]greement or formal collaboration between the person 

paying for the communication and the candidate [or] political 

party” is not required to establish coordination. 11 C.F.R. 

§ 109.21(e). “Agreement means a mutual understanding or 

meeting of the minds on all or any part of the material aspects 

of the communication or its dissemination.” Id. Thus, speech 

is coordinated if it is “created, produced, or distributed at the 

request or suggestion of” or “after one or more substantial 

discussions about [it]” with, a candidate or political party or 

their agents, even if there is no “mutual understanding or 

meeting of the minds on all or any part of the material 

aspects of the communication or its dissemination” between 
13 

speaker and candidate or political party. Id. §§ 109.21(d) 

(1)(i), 109.21(d)(3), 109.21(e) (emphasis added).

6 

Under the FEC regulations a broad range of speech may be 

deemed coordinated, including: (i) express advocacy, (ii) 

electioneering communications, and (iii) any “refer[ences] to 

a political party or to a clearly identified candidate for federal 

office” that is “directed to voters in the jurisdiction” where 

the candidate or the party’s candidates are running, and is 

“publicly disseminated 120 days or fewer before” either a 

nominating event or election. Id. § 109.21(c). 

The Process Of Developing National Legislation And 

Policy Requires Ongoing Close Contacts With Candidates 

And Party Officials. 

Federal legislation and policy arises from the complex, 

ever shifting, and often long-term efforts of individual citizens or businesses, associations representing interested 

groups, federal legislators and their staffs, federal executive 

officers at all levels, and the national political parties. Ad hoc 

alliances are formed, compromises are hammered out, drafts 

and position statements are circulated, resources are pooled, 

the public is informed and persuaded, and, ultimately, legislation or policy is made. Huard Test. ¶¶ 3, 6, 7, J.A. 285-87; 

Josten Test. ¶ 4, J.A. 328; Monroe Test. ¶ 3, J.A. 592. 

A prototypical example of the formulation of federal policy 

and legislation was the Thursday Group that met weekly in 

the offices of Congressman John Boehner in 1995 and 1996 

to advance pro-business aspects of the “Contract with 

6

 To facilitate preparation of accurate voter guides, see 68 Fed. Reg. 

421, 440 (Jan. 3, 2003), the FEC carved out a narrow “safe harbor” under 

which a “response to an inquiry about that candidate’s or political party 

committee’s positions on legislative or policy issues,” standing alone, 

does not establish coordination. 11 C.F.R. § 109.21(f) (emphasis added). 

Reflecting its limited purpose, if the information is volunteered or arises 

from anything other than the specified type of inquiry, or if a response 

includes any “discussion of campaign plans, projects, activities, or needs,” 

then the safe harbor does not apply. Id. 
14 


America.” Henderson, J., Supp. App. 282sa-83sa. Congressman Boehner was the fourth-ranking Republican House 

member – the Republican Conference Chair, ex officio board 

member of the National Republican Congressional Committee (NRCC), and a candidate for re-election. Henderson, J., 

Supp. App. 283sa. Regular participants included the 

Chamber and NAM and other similar organizations, along 

with Congressman Boehner and his staff. Henderson, J., 

Supp. App. 282sa-83sa. Other members of Congress would 

be invited to explain relevant activities or insights. Huard 

Test. ¶ 7, J.A. 287. The focus was on legislative strategy and 

policy, but of course that involves identification and 

evaluation of friends, foes, options, strategies, public opinion 

and the like. Henderson, J., Supp. App. 283sa. 

Another example is the participation of the Chamber in 

long-term efforts regarding prescription drug benefits and 

Medicare. District Judge Kollar-Kotelly opined that ads by 

the Chamber addressing the prescription drug benefit issue 

that ran in the fall of 2000 could not have a legislative 

purpose because “the prescription drug issue ... was not 

pending before Congress at the time the advertisement was 

aired.” Kollar-Kotelly, J., Supp. App. 705sa. In fact, many 

conflicting proposals for comprehensive Medicare prescription drug coverage remained pending in Congress during the 

last half of the 2000 session.7 When it became clear that a 

prescription drug benefit would not be enacted, involved 

legislators made clear that they would continue to press the 

issue.8 And they did. Following the 2000 elections rival bills 

proposed by Senator Graham9

 and Senators Breaux and Frist10 

7 See, e.g., H.R. 4607, 106th Cong. (2000); S. 2753, 106th Cong. 

(2000); H.R. 4680, 106th Cong. (2000). 8 See 146 Cong. Rec. S11521 (daily ed. Nov. 14, 2000); see also 146 

Cong. Rec. H11754 (daily ed. Nov. 1, 2000); 146 Cong. Rec. H11803 

(daily ed. Nov. 2, 2000). 9 See S. 2625, 107th Cong. (2002). 10 See S. 357, 107th Cong. (2001) and S. 358, 107th Cong. (2001). 
15 

were debated but failed to pass, along with other reform 

plans.11 In June, 2003, Medicare prescription drug benefit 

bills passed both the House and the Senate.

12 

The long-term prescription drug benefit struggle illustrates 

why the Business Plaintiffs and thousands of similar 

incorporated associations, as well as individual business 

corporations, must be in ongoing contact and communication 

with members of Congress, their staffs, other federal and 

national party officials, and with one another as they 

participate in the formulation of federal legislation and 

policy. Josten Test. ¶ 4, J.A. 328; Huard Test. ¶ 3, J.A. 285-

86; Monroe Test. ¶ 3, J.A. 592. Unavoidably, this requires 

contact with candidates and representatives of political 

parties, often on the issues with which they are closely 

identified and that may become prominent in future elections. 

Huard Test. ¶ 7, J.A. 287. 

In a democracy, many officials and others who play 

leading roles in legislation and policy formation also are 

candidates much of the time. Every member of the House of 

Representatives who wants to retain office must stand for 

reelection every two years. U.S. Const., art. I, § 2. Similarly, 

a third of the Senate must seek reelection every two years. Id. 

art. I, § 3; amend. XVII. Every four years there is a 

presidential election, id. art. II, § 1, in which the President 

and Vice President often run. Other presidential candidates 

typically include leading members of the House and Senate 

and other politically prominent Americans. Similarly, members of the House and Senate, particularly those in leadership 

positions, often hold positions with national and state political 

party committees. See, e.g., McConnell Test. ¶¶ 2-8, J.A. 

401-03. The same is true of the President and Vice President. Thus, the close contacts and communication with 

11 See, e.g., H.R. 339, 107th Cong. (2001); H.R. 3626, 107th Cong. 

(2002); H.R. 3684, 107th Cong. (2002); S. Res. 269, 107th Cong. (2002); 

S. 2, 107th Cong. (2002). 12 See H.R. 1, 108th Cong. (2003); S. 1, 108th Cong. (2003). 
16 

members of Congress and other leaders that are necessary to 

participation in formulating and implementing legislation and 

policy unavoidably involves close contacts and ongoing communications with candidates and political party leaders. 

Legislative And Policy Development Requires Business 

Corporations To Communicate To The Public During 

Pre-Election Periods. 

In addition to working closely with federal candidates and 

party officials, the Business Plaintiffs and similar incorporated associations and businesses, singly or in various 

groups or coalitions, regularly use television and radio 

advertisements to communicate with the American people 

about legislative and policy concerns. Henderson, J., Supp. 

App. 260sa-61sa. Such ads are broadcast year round, but are 

more common during election periods. Henderson, J., Supp. 

App. 234sa. 

Judge Kollar-Kotelly suggested that “true” issue ads would 

not be run in the months leading up to elections, noting that 

broadcasters charge higher rates then and suggesting that 

candidate and other overtly electoral ads might prove 

distracting. Kollar-Kotelly, J., Supp. App. 757sa-58sa. However, as Judges Henderson and Leon observed, Americans 

tend to be most focused upon and receptive to discussions of 

public policy issues during the election period, and after 

elections there is a period of fatigue during which the public 

will pay little attention to such ads. Henderson, J., Supp. 

App. 236sa, 269sa; Leon, J., Supp. App. 1149sa. Public 

attention is even more focused in jurisdictions that are 

holding closely contested elections. Henderson, J., Supp. 

App. 266sa-67sa. 

Furthermore, there often is a flurry of important legislative 

activity during the closing months of legislative sessions, 

which typically fall in the nomination and election period. 

Henderson, J., Supp. App. 263sa; Leon, J., Supp. App. 

1148sa; see also United States House of Representatives and 

United States Senate Roll Call Votes for the 104th, 105th, 
17 

106th, and 107th Congresses, at http://clerk. house. gov/ 

histHigh/Congressional_ History/index.php (House) and http: 

//www.senate.gov/ pagelayout/legislative/ a_three_ sections_ 

with_teasers/votes.htm (last visited July 1, 2003) (Senate) 

(indicating 570 roll call votes taken within sixty days of the 

1996, 1998, 2000, and 2002 November elections). 

Issues of vital concern to business corporations arise 

during election periods. Major legislation often remains 

pending until the end of a session and, indeed, controversial 

legislation often is kept alive precisely to provide a campaign 

advantage. International and domestic crises that lead to seizure of steel mills, takeover of ports or transportation systems, 

enactment of draconian price or allocation controls, concessions relating to imports, exports, and assets and operations 

abroad, and so on are not excluded from election periods. 

Effective issue ads often must refer to persons who happen 

to be candidates. Legislative and policy proposals often are 

publicly known by the names of leaders who are also 

candidates. Leon, J., Supp. App. 1150sa. For example, the 

Public Company Accounting Reform and Investor Protection 

Act was popularly known as “Sarbanes-Oxley.” Representative Michael Oxley introduced Sarbanes-Oxley on February 

14, 2002, and it was enacted on July 30, 2002. Pub. L. No. 

107-204, 116 Stat. 745 (codified as amended at 15 U.S.C. §§ 

7201 et seq. (2002)). During the period leading up to the 

enactment of Sarbanes-Oxley, Representative Oxley was a 

candidate in the Ohio Republican Primary held on May 7, 

2002. Indeed, the bills that became BCRA were popularly 

known as “McCain-Feingold” and “Shays-Meehan.” 

Americans often understand issues based on their relationship to prominent leaders who also may be candidates. 

Identifying a tax or budget proposal as one supported by Gore 

or Gingrich gives many Americans information that they 

consider important. Henderson, J., Supp. App. 263sa; Leon, 

J., Supp. App. 1150sa; see also 11 C.F.R. § 100.29(b)(2) 

(including the phrases “the President” and “your Congress-
18 

man” as examples of references to federal officeholders that 

are regulated as electioneering communications). Referring 

to such names also can be persuasive. For example, 

identifying legislation as supported by Gore or Gingrich may 

lead members of the public to support or oppose it. Henderson, J., Supp. App. 263sa; Leon, J., Supp. App. 1150sa. 

An important purpose of issue ads is to persuade candidates, who are existing or potential officeholders, that an 

issue is of importance to their constituents and, hence, merits 

their attention. Josten Test. ¶ 13, J.A. 331; Huard Test. ¶ 9, 

J.A. 287. Thus, many issue ads conclude by asking viewers 

to contact candidates and express support for or opposition to 

legislation or policy positions. Leon, J., Supp. App. 1372sa77sa (examples of ads). In fact, viewers do call in response to 

these ads. Kollar-Kotelly, J., Supp. App. 671sa (quoting 

deposition testimony of Senator Feingold). 

The record contains many examples of corporate broadcasts that refer to candidates in the course of discussing 

public issues without express advocacy. One widely 

discussed series of such ads was broadcast in 1996 by a group 

of pro-business associations known as The Coalition which 

included the Chamber and NAM. Henderson, J., Supp. App. 

260sa-61sa. Another example discussed in the district court 

opinions is the series of ads that the Chamber supported 

during the 2000 election concerning whether Medicare should 

include a prescription drug benefit. This question is 

important to business corporations that provide health care 

coverage for employees and retirees. An example of these 

ads includes the following: 

[Announcer] Senator Robb supports a big-government 

prescription drug plan that could be costly for seniors. 

This plan requires seniors to pay up to $600 a year plus a 

50/50 co-payment. In this big-government plan, seniors 

have a one time chance to sign up, otherwise they face 

penalties to join later. And who would decide which 

medicines are covered and which aren’t? Tell Senator 
19 

Robb to stop supporting a big-government prescription 

drug plan. [Paid for by: The U.S. Chamber of Commerce]. 

Josten Dep. Ex. 23 (cited by Kollar-Kotelly, J., Supp. App. 

705sa). Similarly, ABC and NAM regularly run ads discussing issues and candidates. Monroe Test. ¶¶ 3, 7, 8, J.A. 592-

94; Huard Test. ¶ 4, J.A. 286. 

The Experience Of “The Coalition” Illustrates The Risk 

That A Broad “Coordination” Definition Poses To 

Corporate Involvement In Federal Legislation And 

Speech. 

In 1996 while the Business Plaintiffs and others were 

active in the Thursday Group and similar alliances, the AFLCIO announced that it intended to spend up to $35 million on 

advertising to defeat the Contract With America and win 

control of the House for the Democrats. Henderson, J., Supp. 

App. 260sa-61sa. Pro-business groups, including the Business Plaintiffs, immediately recognized that the business 

community would have to respond. Henderson, J., Supp. 

App. 260sa. Accordingly, five prominent business associations, including the Chamber and NAM, organized “The 

Coalition: Americans Working for Real Change.” Henderson, J., Supp. App. 260sa-61sa. Ultimately about 30 associations and similar groups became public members; many 

others provided support on condition that they would not be 

publicly identified due to fear of retaliation from organized 

labor or government officials who might not approve of the 

ads. Henderson, J., Supp. App. 261sa-62sa.13 

Members agreed that the purpose of The Coalition would 

be to raise funds from pro-business sources to create and 

broadcast responses to the AFL-CIO ads. Kollar-Kotelly, J., 

13 Judge Kollar-Kotelly erroneously found that The Coaltion was incorporated. Kollar-Kotelly, J., Supp. App. 817sa-18sa. Its money was 

largely corporate, however. The public members of The Coalition were 

identified on stationery and in press reports. See, e.g., Richard W. Stevenson, A Campaign to Build Influence, N.Y. Times, Oct. 29, 1996, at A24. 
20 

Supp. App. 685sa-86sa (quoting deposition testimony of 

Bruce Josten). Because the AFL-CIO ads were run starting in 

1995 and during the 1996 nomination and election period, the 

responding ads of The Coalition necessarily were to air 

during that same time. 

Members of The Coalition also agreed that the ads were to 

be created and broadcast independently of any candidate or 

campaign, and that no participant in The Coalition was to 

discuss planned ads or broadcasts with any candidate or 

campaign or do anything else that might be thought to amount 

to “coordination” of the ads within the meaning of the federal 

election laws. Henderson, J., Supp. App. 282sa. 

The Coalition raised and spent about $5 million in 

corporate funds to respond to the approximately $35 million 

spent by the AFL-CIO and its allies. Henderson, J., Supp. 

App. 260sa-61sa. Its ads endeavored to respond directly to 

the AFL-CIO’s ads. Henderson, J., Supp. App. 260sa-61sa. 

The ads referred to candidates and issues, but did not 

expressly advocate the election or defeat of any candidate. 

Kollar-Kotelly, J., Supp. App. 685sa; Josten Test. ¶ 8, J.A. 

329. They ran before the November election. Kollar-Kotelly, 

J., Supp. App. 685sa. 

Despite The Coalition’s care to avoid coordinating, the 

Democratic National Committee filed a complaint with the 

Federal Election Commission (FEC) charging that the ads had 

been coordinated and, as a result, the corporate funds spent on 

the ads constituted unlawful contributions. Henderson, J., 

Supp. App. 282sa-83sa. The DNC complaint offered no 

evidence of any element of agreement between The Coalition 

and any candidate or campaign. Instead, the charges of 

coordination were based primarily upon two things: first, 

founding members of The Coalition also were participants in 

the Thursday Group, which regularly met with Congressman 

Boehner, who himself was a candidate and who was an ex 

officio board member of the NRCC which was interested in 

assisting Republican candidates for election to the House; and 
21 

second, near the time The Coalition was being organized, 

Congressman Boehner was reported to have given a speech in 

which he stated that pro-business interests needed to respond 

to the AFL-CIO. Henderson, J., Supp. App. 283sa; Josten 

Test. ¶ 9, J.A. 329-30. 

The FEC initiated Matter Under Review 4624 (MUR 4624) 

to investigate the DNC’s complaint. Henderson, J., Supp. 

App. 283sa. At the very outset the FEC served highly 

intrusive and burdensome discovery demands on The 

Coalition’s 28 Executive Committee members, Representative Boehner, his chief of staff Barry Jackson, Coalition 

consultants the Tarrance Group, National Media, Inc., 

Gannon, McCarthy and Mason, Ltd., American Viewpoint, 

Chuck Greener/Porter Novelli, Frank Luntz/Luntz Communications, and individual employees or principals of the 

consultants, the NRCC and the NRCC’s Mario Cino and Ed 

Brookover, 37 candidate committees and their treasurers, and 

others. FEC General Counsel’s Report at 4 (Apr. 23, 2001) 

(“General Counsel’s Report”) [DEV 53 Tab 6].

14 

The FEC’s discovery requests required extensive document 

production, and answers to intrusive questions concerning 

contacts with Congressman Boehner and other candidates.15 

14 Although most records relating to MUR 4624 are confidential under 

2 U.S.C. § 437g(a)(12), the FEC’s public file contains a General Counsel’s Report (Apr. 23, 2001), a Statement for the Record by Commissioner 

Scott E. Thomas and Chairman Danny L. McDonald (Sept. 7, 2001), and 

a Statement for the Record by Commissioner Bradley A. Smith (Nov. 6, 

2001). Henderson, J., Supp. App. 283sa. FEC General Counsel’s Reports 

include uncorroborated information and testimony that is not subject to 

cross-examination. Respondents are denied access to the Reports before 

public release, to third party testimony, and to any third party documents. 15 For example, item 64(a) to the Chamber demanded that it 

“identify all persons who were involved in any way ... in communications, conferences, meetings or discussions between the Coalition or 

any of its Management Committee members, and each of the following 

persons or entities between January 1, 1996 and December 31, 1996: (1) 

RNC; (2) Haley Barbour ... ; (3) NRCC; (4) Maria Cino ... ; (5) Edward 
22 


They also required the production of individuals for 

questioning under oath by FEC counsel. The full scope of the 

investigation is not known because it was conducted on a 

confidential ex parte basis. However, the D.C. Circuit 

recently gave some detail on the burden and intrusion 

suffered by the AFL-CIO during a parallel FEC investigation 

of coordination charges. AFL-CIO v. FEC, No. 02-5069, 

2003 WL 21414308 (D.D.C. June 20, 2003). 

Buckley had described the coordination concept as based 

on “prearrangement or coordination,” 424 U.S. at 46-47, and 

Colorado Republican Federal Campaign Committee v. FEC, 

518 U.S. 604, 614, 621-22 (1996) (“Colorado I”), had 

indicated that a “general or particular understanding” was 

necessary to constitute coordination “for constitutional 

purposes.” The FEC espoused a much broader view and the 

first full consideration of how the First Amendment limited 

the coordination concept occurred in FEC v. Christian 

Coalition, 52 F. Supp. 2d 45, 89-90 (D.D.C. 1999). That 

opinion held that, because the coordination standard marks 

the dividing line between protected and unprotected corporate 

speech and tends to chill legislative contacts, the definition 

“ultimately is drawn by reference to the First Amendment,” 

and must provide the “clearest possible guidance,” while 

balancing the competing interests. Id. at 90-91. Christian 

Coalition rejected the FEC’s unilateral “insider trading” 

theories, and formulated standards such as: a “corporation’s 

expressive expenditure becomes an illegal contribution when 

Brookover ... ; (6) The Republican Conference of the United States 

House of Representatives ... ; (7) Congressman John Boehner or any of 

his staff ... ; (8) Congressman Bill Paxon or any of his staff ... ; (9) Any 

candidate for United States Representative in the 1996 elections.” Item 

64(b) demanded a detailed description and summary of each such 

meeting, and item 64(c) demanded all related documents. Many other 

members of The Coalition received similar demands. Massive discovery 

disputes resulted. 
23 


the candidate ... becomes a partner in the corporation’s 

speech, though not necessarily an equal partner.” Id. at 92. 

The FEC elected not to appeal and, instead, attempted to 

codify Christian Coalition’s constitutional ruling. As 

paraphrased by Judge Henderson: 

Before BCRA became effective, an expenditure for a 

communication was “coordinated” under 11 C.F.R. 

§ 100.23(c)(2) if the communication was created, produced 

or distributed (1) “[a]t the request or suggestion of” the 

candidate or party; (2) after the candidate or party had 

“exercised control or decision-making authority” over the 

content or distribution of the communication; or (3) after 

“substantial discussion or negotiation” resulting in a 

“collaboration or agreement” between the creator, 

producer, distributor or payer of the communication and 

the candidate or party regarding the content or distribution 

of the communication. 

Henderson, J., Supp. App. 388sa; see also 65 Fed. Reg. 

76138 (Dec. 6, 2000) (codified at 11 C.F.R. § 100.23, though 

subsequently repealed pursuant to BCRA § 214(b)); Christian 

Coalition, 52 F. Supp. 2d at 91-92. 

After those regulations were promulgated, the FEC’s 

General Counsel recommended that MUR 4624 and similar 

MURs be dismissed because they rested on a theory of “loose 

coordination” that lacked any element of agreement and could 

not be squared with the law. General Counsel’s Report at 2. 

The FEC voted to dismiss, with various Commissioners 

writing to explain their votes. The Statement for the Record 

by Commissioner Bradley A. Smith (Nov. 6, 2001) (“Smith 

Statement”) observed: 

[D]espite the fact that the Commission has now found no 

violations in this case, I strongly suspect that the original 

complainant, the Democratic National Committee, 

considers its complaint to have been a success. The 

complaint undoubtedly forced their political opponents to 

spend hundreds of thousands, if not millions of dollars in 
24 


legal fees, and to devote countless hours of staff, 

candidate, and executive time to responding to discovery 

and handling legal matters. Despite our finding that their 

activities were not coordinated and so did not violate the 

[FECA], I strongly suspect that the huge costs imposed by 

the investigation will discourage similar participation by 

these and other groups in the future. 

Smith Statement at 2, J.A. 1824; see also Henderson, J., 

Supp. App. 284sa. 

Commissioner Smith’s observations about the use of FEC 

charges based on vague standards to hinder and deter political 

opponents parallel findings by the D.C. Circuit, which 

recently explained that FEC charges are regularly employed 

to harass and burden political opponents. “[P]olitical 

opponents . . . file charges against their competitors to serve the dual purpose of ‘chilling’ the expressive 

efforts of their competitor and learning their political strategy 

so that it can by exploited to the complainant’s advantage.” 

AFL-CIO, 2003 WL 21414308, at *9. 

The General Counsel’s Report expressed a series of 

judgments critical of the activities of The Coalition. The 

Business Plaintiffs to this day have not seen the body of 

information on which these statements rested and had no 

opportunity to see or to respond to the Report before the FEC 

acted. Henderson, J., Supp. App. 283sa. The post-dismissal 

response to the report has not been made public, despite 

Coalition members’ requests. The Coalition members dispute 

vast portions of the Report. The FEC did not adopt the 

General Counsel’s Report’s judgments and most are in the 

nature of obiter dicta based on one-sided secret files. The 

General Counsel’s Report is public, though the underlying 

data is not. 
25 

To The Extent A Speaker’s Purpose Is Relevant And Can 

Be Discerned, The Coalition’s Speech Was Not 

Exclusively Or Primarily Electoral, And Many Who 

Contributed To The Speech Had No Electoral Intent. 

Defendants argued, and Judge Kollar-Kotelly found, that 

one purpose of the examples of broadcast corporate speech 

discussed above was influencing federal elections. KollarKotelly, J., Supp. App. 820sa. Neither Defendants nor Judge 

Kollar-Kotelly discussed why motive matters in this context. 

They did not deny that the speech also had the purpose of 

discussing public issues and public figures. Nor did they 

discuss how to apply purpose tests when multiple persons or 

entities support speech for multiple purposes. 

Persons involved in The Coalition who testified in this 

proceeding were unanimous that the institutional purpose of 

its ads was to respond to and correct misperceptions being 

created by the AFL-CIO’s issue ads. Huard Test. ¶ 5, J.A. 

286; Josten Test. ¶ 9, J.A. 329-30; Sandherr Test. at AGC 

0004, J.A. 748. The Chamber’s representative, Mr. Josten, 

was unequivocal that this was The Coalition’s sole purpose, 

and no evidence from members of The Coalition contradicts 

that testimony. Kollar-Kotelly, J., Supp. App. 685sa-86sa 

(quoting Josten deposition testimony). Instead, Judge KollarKotelly discussed evidence deemed to suggest that “one 

purpose of the advertising campaign was to influence the 

1996 general election.” Kollar-Kotelly, J., Supp. App. 686sa89sa (emphasis added). This view was based on evidence 

that some vendors and some members displayed some 

electoral interest, as well as on the timing of the ads, a factor 

already discussed. 

When The Coalition was first being organized, a 

prospective advertising firm submitted a proposal stating 

“Thank you for the opportunity to present two 30 second 

television and one 60 second radio scripts, as requested, to 

your campaign to re-elect a pro-business Congress.” Kollar-
26 

Kotelly, J., Supp. App. 686sa. So far as appears, this was 

uninformed speculation by an outsider before it was retained. 

Outside consultants tested proposed Coalition ads for their 

effect on voter attitudes toward candidates. Kollar-Kotelly, 

J., Supp. App. 686sa-88sa. However, no one disputed that 

this was a logical way to assess the persuasiveness of the ads 

in countering the AFL-CIO ads. 

A memorandum from outside polling groups entitled “Key 

Findings from Post-Election Surveys in OH-6, IA-4, WA-1, 

WA-5, WA-9, and KY-1” was provided to The Coalition 

after the election. Kollar-Kotelly, J., Supp. App. 688sa-89sa. 

It claimed that the number of Republicans elected showed 

that the ads had been persuasive. 

After the election, some members of The Coalition 

suggested visiting Congressmen to take credit for the ads. 

Kollar-Kotelly, J., Supp. App. 712sa-13sa. However, other 

members opposed or had no interest in the visits, and only 

one apparently may have occurred. Huard Dep. at 86-87, 90, 

J.A. 899-901; Josten Dep. at 175-76, J.A. 920-21; General 

Counsel’s Report at 34 (the FEC claimed to have found one 

person – an aide – who had been visited). 

In sum, while some vendors and members had some 

electoral concerns, there was no basis for dismissing Mr. 

Josten’s sworn testimony that the only purpose of The 

Coaltion as an entity was to respond to the AFL-CIO. 

Business Plaintiff ABC also often broadcasts ads to 

educate people on issues of importance to it. Monroe Test. 

¶ 8, J.A. 594. Many times these ads mention public officials 

and candidates during election periods. Monroe Test. ¶ 3, 

J.A. 592. ABC’s members are from the construction industry 

and tend to have “a distinctive ethos: ‘very strong patriotic 

red, white and blue God and country association.’” KollarKotelly, J., Supp. App. 701sa (quoting deposition testimony 

of Edward Monroe). On one occasion, ABC broadcast an ad 

near an election that discussed a public official having pushed 

for the “strongest possible penalties for child molesters who 
27 

attempt to lure children over the internet.” Kollar-Kotelly, J., 

Supp. App. 700sa-01sa. 

Because Mr. Monroe testified that child molestation was 

not a “particular concern” to ABC’s membership, Judge 

Kollar-Kotelly incorrectly concluded that ABC must have 

selected the issue solely to affect an election. Kollar-Kotelly, 

J., Supp. App. 700sa-01sa. But, “particular” commonly 

means “distinctive,” and Mr. Monroe’s point, as he made 

clear, was that the concern was one that he believed ABC 

shared with many others. Kollar-Kotelly, J., Supp. App. 

701sa. The fact that many people may share a common 

position about a particular issue does not diminish a particular 

person’s or group’s interest in the issue. According to Mr. 

Monroe’s testimony, ABC members feel a very strong “God 

and country association,” and are therefore likely to care 

about social issues like child molestation. 

SUMMARY OF ARGUMENT 

BCRA’s electioneering communication and coordination 

provisions violate the First Amendment and are invalid. 

Electioneering Communication: Congress cannot reverse 

this Court’s constitutional holdings in Buckley and FEC v. 

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

(“MCFL”), that only express advocacy may be limited by 

campaign finance laws. Thus, BCRA’s attempt to regulate all 

electioneering communications is flatly invalid. But if 

Congress could impose a new standard, the First Amendment 

would require it to be as narrowly tailored and clear as 

the express advocacy standard, and neither the Primary nor 

the Backup Definition of electioneering communication 

comes close. 

The Primary Definition’s prohibition of corporate and 

union broadcasts that merely mention a candidate during 

much of an election year facially restricts more speech than 

the First Amendment allows. Discussions of candidates and 

issues are inextricably intertwined. Candidates, many of 

whom are incumbent officials, must be mentioned to identify 
28 

proposed bills, communicate their basic nature, and to 

persuade – e.g, a “Kennedy tax bill” or a “Gingrich budget 

proposal.” Also, issue speech often asks the audience to 

communicate to named candidates – e.g., “tell candidate x to 

sign the term limit pledge.” Indeed, Defendants’ own data 

show that during the last two election cycles a substantial 

proportion of the political speech that the Primary Definition 

would have suppressed was “true” issue advocacy. 

The Primary Definition’s lack of tailoring is doubly 

impermissible because the minimum 90 to 120 day blackout 

period in each state and district is so lengthy, and the actual 

blackout periods are much longer in the many areas where 

major television and radio stations serve multiple 

jurisdictions with differing nominating dates, e.g., 187 days in 

the nation’s capital, 176 days in New York City, etc. 

Forbidding corporations and unions to broadcast any 

reference to President Bush or his challenger for nearly half 

of 2004 in population centers nationwide is not a narrowly 

tailored response to the interests said to justify the new 

standard. Nor is there anything about the modest proportion 

of independent corporate and union speech during election 

periods that might justify such a serious First Amendment 

burden on both listeners and speakers. 

The Backup Definition of electioneering communication is 

hopelessly vague and untailored. Speakers cannot be 

required, on pain of criminal penalty, to predict whether 

various audiences in changing circumstances will perceive 

broadcast communications (i) to “promote,” “support,” 

“oppose,” or “attack” a candidate, and (ii) as “suggestive” of 

an exhortation to vote in a particular way. Nor can 

participants in public discourse be required to await advance 

FEC approval, under these vague standards, for each new 

broadcast statement – or for the same statement as 

circumstances change. This vagueness cannot be cured by a 

“broadening construction” under which the key narrowing 
29 


clause is stricken, thus banning speech that is not even 

suggestive of an exhortation to vote. 

Coordination: BCRA’s coordination provisions are 

equally untailored and vague. No one questions that if a 

candidate is given sufficient influence and control, third party 

speech functions as a contribution and may be so classified to 

prevent circumvention of contribution limits. But because 

this doctrine converts highly protected independent speech 

into restricted or prohibited contributions, it is subject to strict 

scrutiny and must be narrowly tailored and clearly defined. 

BCRA’s provisions are neither. They reject prior 

constitutional holdings that some element of agreement is 

necessary, and they permit coordination to be found on the 

basis of a political candidate’s or party’s unilateral request, 

suggestion, or substantive communication or discussion, even 

if there is no mutual agreement of any kind as to any element 

of the speech or its creation and dissemination. Far from 

curing the problem, the FEC’s new coordination regulations 

simply confirm the overbreadth and vagueness. 

The broad and vague coordination provisions have bite 

right now. The Business Plaintiffs and many similar entities 

work on an ongoing basis with members of Congress and 

other government and political party officials to develop and 

implement federal legislation and policy. Yet, the Business 

Plaintiffs must curtail those speech, association, and 

petitioning activities now to avoid providing an arguable 

basis for claims that later public speech has been coordinated 

and, hence, constitutes an unlawful contribution. This is a 

classic controversy that is ripe for resolution, particularly in 

light of the command of BCRA section 403(a) that 

constitutional challenges to the statute be decided as 

expeditiously as possible. 

The electioneering communication and coordination 

provisions regulate a wide range of activity by individuals, 

associations, and corporations. They were not tailored to the 

specific characteristics of corporate speech, nor is there 
30 

anything about corporate speech that would warrant the broad 

and vague restrictions they impose. Although MCFL and 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 

(1990), allow corporate express advocacy to be regulated, 

they authorize nothing further. A long line of this Court’s 

holdings recognize the importance and highly protected status 

of corporate speech on matters of public policy that does not 

expressly advocate the election or defeat of a candidate. 

ARGUMENT 

I. 	 LAWS THAT SIGNIFICANTLY BURDEN 

FIRST AMENDMENT POLITICAL ACTIVITIES OF CORPORATIONS MUST SATISFY 

STRICT SCRUTINY. 

The First Amendment provides that “Congress shall make 

no law ... abridging the freedom of speech, or the press; or 

the right of the people peaceably to assemble and petition the 

Government for a redress of grievances.” U.S. Const. 

Amend. I. This strongly worded prohibition has its fullest 

and most urgent application to the political process. Buckley 

v. Valeo, 424 U.S. 1, 14-15 (1976) (collecting authority). 

Corporate speech on public issues is “indispensable to the 

effective and intelligent use of the processes of popular 

government to shape the destiny of modern industrial 

society,” Thornhill v. Alabama, 310 U.S. 88, 103 (1940), and 

contributes “to the free flow of information,” Va. State Bd. of 

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 

748, 765 (1976). Thus, strict scrutiny applies with full force 

to significant restrictions on First Amendment activities of 

corporations that are important to public policy formation. 

See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786 

(1978); Consol. Edison Co. v. Pub. Serv. Comm’n of N.Y., 

447 U.S. 530, 540 (1980); Pac. Gas & Elec. Co. v. Pub. Util. 

Comm’n of Cal., 475 U.S. 1, 19 (1986); Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652, 657, 699-701 (1990) 

(unanimous as to standard of review). As these cases hold, 

the defenders of a law that burdens politically important 
31 

corporate speech must prove that the specific restrictions 

imposed are “narrowly tailored” to a “compelling” government interest so that no less restrictive alternative will suffice. 

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 

813-15, 827 (2000). 

Contribution limits are an exception. Perceiving lesser 

“importance of the political activity at issue,” where only 

contributions are restricted, this Court applies a less strict but 

still “rigorous” requirement that they be “closely drawn to 

match a sufficiently important interest.” FEC v. Beaumont, 

123 S. Ct. 2200, 2210 (2003) (collecting authority; internal 

quotation marks omitted); Buckley, 424 U.S. at 20-21, 29 

(contribution limits receive “rigorous” review). That the 

lesser standard for contribution limits demands that the 

restrictions be “closely drawn” to serve an “important purpose” underscores how demanding full strict scrutiny is. 

Beaumont recently upheld a limit on contributions by 

corporations, applying the “less[] demand[ing]” standard of 

review established in prior cases. 123 S. Ct. at 2210. 

However, Beaumont stressed that “the level of scrutiny is 

based on the importance of the ‘political activity at issue’ to 

effective speech or political association,” rather than on the 

corporate nature of the speaker. Id. (emphasis added). The 

same logic clearly extends to corporate involvement in 

petitioning the government.16 

16 See Christian Coalition, 52 F. Supp. 2d at 91-92. Indeed, the NoerrPennington doctrine, which protects “the constitutionally protected right 

of petition,” City of Lafayette v. Louisiana Power & Light, 435 U.S. 389, 

399 (1978), has developed in cases involving corporations, and protects 

“groups” as well as individuals. Cal. Motor Transp. Co. v. Trucking 

Unlimited, 404 U.S. 508, 510 (1972). See Aaron R. Gary, First 

Amendment Petition Clause Immunity From Tort Suits, 33 Idaho L. Rev. 

67, 95 (1996) (collecting “innumerable” cases holding that Noerr-Pennington is grounded in the First Amendment’s right to petition). See Prof’l 

Real Estate Investors v. Columbia Pictures Indus., Inc. 508 U.S. 49, 60-62 

(1993) (establishing stringent objective showing necessary to defeat 

Noerr-Pennington). 
32 

In addition to being narrowly tailored, campaign finance 

legislation that “imposes criminal penalties in an area permeated by First Amendment interests” also must possess a 

high degree of clarity to assure that highly protected activity 

is not sacrificed to provide a margin of safety. Buckley, 424 

U.S. at 40-41, n.48 (collecting authority). The First Amendment demands a considerably “greater degree of specificity” 

than due process generally demands of criminal statutes, id. at 

77 (quoting Smith v. Goguen, 415 U.S. 566, 573 (1974)), 

because its goals extend beyond providing fair notice to 

avoiding chill and loss of protected speech as speakers hedge 

and trim to avoid doubtful areas, and to minimizing 

government discretion that may be used to favor some 

speakers or views over others.17 

The exceptional tailoring and clarity required of campaign 

finance statutes with criminal penalties is vividly illustrated 

by the “express advocacy” standard announced in Buckley 

and reaffirmed as to coporations in MCFL. In Buckley the 

Court of Appeals had narrowed an expenditure provision to 

regulate only speech “advocating the election or defeat of” a 

candidate. 424 U.S. at 42. But that standard required the 

speaker to predict what message others might perceive, with 

the result that FECA might chill “discussion of issues and 

candidates” that it could not regulate directly. Id. at 42-43. 

Both to cure vagueness and to achieve precise tailoring, this 

Court held that the “only” solution was an objective brightline standard regulating only “communications that include 

explicit words of advocacy [that] in express terms advocate 

the election or defeat of a clearly identified candidate for 

federal office.” Id. at 43-44. A decade later, MCFL ratified 

17 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 

U.S. 489, 497-99 (1982) (explaining that the minimum due process 

standard is that “person[s] of ordinary intelligence [have] a reasonable 

opportunity to know” what is forbidden, but that if a “law interferes with 

the right of free speech or of association, a more stringent vagueness test 

should apply”). 
33 

and followed that holding to limit a separate provision 

restricting the spending of corporate funds “in connection 

with any federal election” to express advocacy. 479 U.S. at 

248-51. 

Buckley recognized that its objective, narrow, and precise 

“express advocacy” standard gave the statute less scope than 

Congress desired and that “[s]o long as persons and groups 

eschew expenditures that in express terms advocate the 

election or defeat of a clearly identified candidate, they are 

free to spend as much as they want to promote the candidate 

and his views.” 424 U.S. at 45. Yet the First Amendment’s 

twin imperatives of narrow tailoring and clarity had to be 

respected, even though one provision was rendered so 

ineffective that it lacked constitutional justification and was 

struck down. Id. at 45-51. 

II. 	BCRA’S “ELECTIONEERING COMMUNICATION” PROVISIONS FAIL STRICT SCRUTINY. 

The express advocacy standard for decades has marked the 

constitutional boundary between speech that campaign 

finance law may regulate and speech that it may not. BCRA 

introduces a new concept – “electioneering communication.” 

Like the express advocacy standard, the new electioneering 

communication standard applies across the board to BCRA’s 

provisions on disclosure, section 201; coordinated 

contributions, section 202; corporate and union speech, 

section 203; “targeted” communications, section 204; 

activities of foreign nationals, section 303; and sponsorship 

disclosure, section 311. The Business Plaintiffs challenge the 

application of this new concept to business corporations. 

This brief focuses on section 203 which forbids corporations 

to engage in electioneering communications, but the same 

flaws infect the use of “electioneering communication” in 

defining the types of speech that may be deemed coordinated 

communications under section 202. 
34 


A. The First Amendment Forbids Campaign 

Finance Regulation Of Independent Speech 

That Does Not Expressly Advocate. 

Buckley limited two different provisions of FECA to 

express advocacy, one restricting independent expenditures 

by individuals, 424 U.S. at 39-43,18 and one imposing 

reporting requirements, id. at 79-81. MCFL limited FECA’s 

ban on independent corporate speech to express advocacy. 

479 U.S. at 248-49. And the courts of appeals have applied 

the “express advocacy” standard to distinguish constitutional 

from unconstitutional restrictions under a range of state and 

federal campaign finance regulation.19 

Recognizing that Congress cannot reverse this Court’s 

construction of the First Amendment, defenders of BCRA 

have claimed that the express advocacy standard was simply 

one of many possible ways to clarify vague statutory language. However, Buckley was explicit that, in addition to 

achieving clarity, the express advocacy standard assured that 

FECA was “not impermissibly broad,” 424 U.S. at 80, saying 

that it was the “only” way to protect issue advocacy, id. at 43. 

Likewise, MCFL stressed that the express advocacy standard 

was adopted “to avoid problems of overbreadth.” 479 U.S. 

at 248.20 

18 When the FECA was subsequently amended, Congress explained 

that its purpose was “to conform the independent expenditure reporting 

requirement ... to the requirements of the Constitution set forth in Buckley 

v. Valeo.” H.R. Conf. Rep. No. 94-1507, at 38 (1976), reprinted in 1976 

U.S.C.C.A.N. 946, 954. 19 See supra note 5. 20 These references to “overbreadth” deal with a lack of narrow 

tailoring under strict scrutiny, rather than to the type of overbreadth 

analysis that grants expanded standing in some First Amendment cases. 

See R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992) 

(distinguishing types of overbreadth); Brockett v. Spokane Arcades, Inc., 

472 U.S. 491, 503-04 (1985) (same); Sec’y of State of Md. v. Joseph H. 

Munson Co., 467 U.S. 965, 966 (1984) (under strict scrutiny, defendants 

must disprove overbreadth). 
35 


Alternatively, BCRA’s defenders have asserted that the 

express advocacy standard was merely intended to preserve 

FECA against constitutional doubt and did not actually 

determine that a broader restriction would be invalid. Such 

an argument, of course, concedes that any regulation beyond 

express advocacy is constitutionally doubtful. But the 

argument fails because Buckley did not adopt the express 

advocacy standard to save FECA’s restriction on independent 

expenditures. To the contrary, having narrowed that 

restriction to express advocacy, Buckley held that it did so 

little to achieve its purpose that it was unconstitutional. 424 

U.S. at 45-51. If the First Amendment had permitted a 

broader standard that might have saved the provision, Buckley 

would have been obliged to adopt it. 

The express advocacy limit has been respected in this 

Court’s decisions concerning corporate speech. In MCFL the 

Court applied the “express advocacy” standard to narrow 

FECA’s ban on corporate speech “in connection with” an 

election. 479 U.S. at 248-49.21 Then, in Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652, 655 n.1 (1990), the 

Court upheld a state statute modeled on the FECA provision 

that MCFL had limited to express advocacy, holding that the 

state could forbid a corporate ad that expressly urged viewers 

to “Elect Richard Bandstra State Representative.” 494 U.S. at 

714.22 However, when faced with restrictions on independent 

corporate political speech that did not expressly advocate a 

candidate vote – in Bellotti, Consolidated Edison, and Pacific 

Gas & Electric – this Court struck them down each time. 

21 MCFL recognized that PAC speech does not substitute for free 

corporate speech. 479 U.S. at 252-56, 266. 22 Austin is in serious tension with the First Amendment’s prohibition 

on government regulation of “speakers who may address a public issue.” 

Bellotti, 435 U.S. at 784-85; see also Greater New Orleans Broad. Ass’n, 

Inc. v. United States, 527 U.S. 173, 194 (1999). This is doubly so since 

many may assume – however inaccurately – that corporations tend to 

favor particular viewpoints. 
36 

Because the electioneering communication provisions seek 

to legislatively reverse this Court’s authoritative construction 

of the First Amendment, they are void and there is no need 

for extended analysis. But even if Congress theoretically 

could enact a substitute standard, that new standard would 

have to be as narrowly tailored and as clear as the express 

advocacy standard it seeks to expand. And on these grounds 

as well, the electioneering communication standard fails. 

B. The Electioneering Communication Standard 

Is Not Narrowly Tailored. 

Consistent with the highly protected nature of the rights 

that it regulated, the express advocacy standard was precisely 

tailored. Inevitably, all speech that used explicit words to 

expressly advocate the election or defeat of a clearly identified candidate was directly and unequivocally related to an 

election. The electioneering communication standard, by 

contrast, eschews any such direct and unequivocal link. 

Instead, it uses factors such as timing, media, geography, and 

reference to a candidate as criteria that are supposedly 

associated with the type of speech that properly may be 

regulated. Obviously, those who seek to abandon a precisely 

tailored standard and regulate speech on the basis of such 

indirect and inferential criteria bear a heavy burden of 

demonstrating narrow tailoring – and defendants cannot carry 

that burden here. 

Proponents of BCRA claimed to have studies showing that, 

during the last two election cycles, most of the broadcast 

advertising that referred to candidates was sufficiently 

electoral that it should have been subject to regulation.23 Both 

studies were shown to be deeply flawed. Henderson, J., 

23 This judgment rests on the perceived subjective purposes of the 

speech, even though the motives of a speaker generally do not affect First 

Amendment protection. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 

46, 53 (1988). Moreover, trying to assess the subjective purposes of an 

organization is highly problematic. See Perry v. Bartlett, 231 F.3d 155, 

161-62 (4th Cir. 2000). 
37 

Supp. App. 237sa-48sa. Moreover, despite their determined 

attempts to understate the amount of so-called “true” issue 

ads, the authors of the studies ultimately conceded that 

between 7% and 64% of the speech during the 60 days before 

the 1998 elections were not “sham” at all. Henderson, J., 

Supp. App. 242sa-44sa. This Court has never sustained a 

statute that erroneously burdens such a proportion of core 

political speech. In Mills v. Alabama, the Court struck down 

a one-day ban on speech which arguably would have affected 

“only” 1/365th of all speech. 384 U.S. 214 (1966). 

More fundamentally, there have been and always will be 

periods of crisis and instability during which broadcast 

references to candidates will be critical. For example, 

presidents historically have seized basic industries, imposed 

wage and price controls, used armed federal employees as 

strike breakers, and entered into executive agreements with 

foreign countries concerning U.S. assets abroad. Nothing in 

nature excludes such periods from election years. Surely an 

industry whose assets are facing seizure by an incumbent 

president is entitled to independently broadcast its concerns to 

the American people without threat of criminal sanction. For 

that matter, an industry that faces confiscatory taxation under 

a bill or a campaign proposal being promoted by a member of 

Congress who is seeking re-election surely may 

independently tell the public why such taxation is a bad idea. 

Because the Primary Definition would prohibit such speech, 

it cannot satisfy First Amendment tailoring. 

For the reasons above, the Primary Definition also would 

not be narrowly tailored even if its blackout periods only 

affected jurisdictions in which a nomination event or election 

was imminent. However, because electronic signals do not 

respect political boundaries, the blackouts extend much 

further. For example, in the coming election residents of the 

Nation’s capital will find references to President/candidate 

Bush in certain ads excluded from their major television and 

radio stations not just during the 120 days attributable to D.C. 
38 

events, but also for a further 37 days because of primaries in 

Virginia and Maryland. See supra at 9. Similarly, residents 

of New York City will find such references excluded for 56 

additional days by primaries in Pennsylvania, New Jersey, 

and Connecticut. See supra at 9. And similar consequences 

will follow wherever television and radio stations have 

audiences in more than one jurisdiction. For all of these 

reasons, the Primary Definition fails strict scrutiny and is 

void. 

C. 	Corporate Speech Does Not Warrant The 

Overbreadth Of The Electioneering Communication Standard. 

The electioneering communication standard controls a 

wide range of BCRA restrictions applicable to individuals, 

unincorporated organizations, and corporations. It was not 

specially tailored to regulate independent corporate issue 

speech. Nothing in the record shows that the criteria relied 

upon by the electioneering communication standard – e.g., 

timing, geography, media, and candidate reference – are any 

more reliable when applied to corporate speech than when 

applied to the speech of individuals or unincorporated 

associations. Nor is there any hint that corporate speech on 

important public issues needs less precision and clarity to 

avoid hedging, trimming, and chill. 

BCRA’s defenders have suggested that Austin supports 

applying a broad definition of electioneering communication 

to corporations. But Austin sustained a state statute that was 

directly modeled on a federal provision that this Court had 

narrowed to regulate only express advocacy, and the specific 

corporate speech at issue in Austin explicitly and 

unambiguously urged a vote for an identified candidate. 494 

U.S. at 655 n.1, 714. Nothing in Austin suggests that 

regulation of corporate speech might properly extend beyond 

express advocacy, and certainly nothing there suggests the 

criteria used in the electioneering communication standard. 
39 

Nor does the record show that, under the express advocacy 

standard, independent corporate speech impairs the integrity 

of elections. Defendant’s principal exhibit in support of 

BCRA is the Brennan Center’s Buying Time 2000. See Craig 

B. Holman and Luke P. McLoughlin, Buying Time 2000: 

Television Advertising in the 2000 Federal Elections 

(Brennan Center for Justice 2001) (“Buying Time 2000”) 

[DEV 46]. Although that report has been shown to be heavily 

biased in favor of BCRA, Henderson, J., Supp. App. 238sa41sa, it recognizes that independent organizations are a small 

minority voice on television during campaigns: “Over all 

elections combined in 2000, candidates were the principal 

sponsors of most political television ads, with party committees running second, and independent groups third.” Buying 

Time 2000 at 29, 40-41. In the 2000 presidential campaign, 

the estimate was candidates 51%, parties 41%, and independent organizations 8%. Buying Time 2000 at 40-41. In 

Senate races, the figures were candidates 71%, parties 22%, 

and independent organizations 6%. Id. In House races, the 

figures were 61%, 22%, and 17%. Id. Similarly, the Government Defendants’ expert, Prof. Goldstein, estimated that 

federal candidates funded 52% of the ads, parties 27%, and 

independent groups, 16%. Goldstein Am. Rep. at 8 [DEV 3 

Tab 7]. Of the independent groups whose speech was estimated at 8%, 6%, 17%, and 16% of the total, only a portion 

were incorporated, but Defendants do not show how many. 

The Brennan Center report also concludes that candidates 

and their political parties speak dramatically more than 

independent organizations in more hotly contested elections. 

Buying Time 2000 at 87-97. Across all races the Brennan 

Center deemed “competitive” in 2000, the candidates 

themselves funded 70% of all television advertising. Buying 

Time 2000 at 47. Their respective political parties funded 

23% while independent organizations funded only 6.7%. Id. 

Anecdotally, Virginia U.S. Senate candidate George Allen’s 

own ads accounted for 56% of all ads the Brennan Center 

deemed favorable to his campaign, while the Republican 
40 

Party’s ads accounted for 43% and independent organization 

ads accounted for a mere 1%. Buying Time 2000 at 87. His 

opponent, incumbent Senator Charles Robb, aired 39% of ads 

favorable to him, the Democratic Party aired 51%, and 

independent organization ads accounted for only 10%. Id.24 

Indeed, in the most competitive race in recent American 

history, the 2000 presidential race, the Brennan Center 

concludes only 8% of all expenditures on television ads were 

funded by independent organizations. Buying Time 2000 

at 39. 

Only some of the independent spending reported above 

was by corporations, and only some of those were business 

corporations.25 Defendants offer no evidence. But taking 

these figures as the best showing that Defendants possibly 

can make, two things are clear: (i) there is no evidence that 

the criteria which define the electioneering communication 

standard are tailored as applied to corporate speech; and (ii) 

there is no evidence of a compelling need to reduce the 

amount of corporate speech that refers to individuals who are 

candidates. 

24 Buying Time 2000 cited just one example of a congressional race 

(Cal.-49) in which a bare majority of the spending was by independent 

groups. Buying Time 2000 at 95. However, the group spending was 

roughly balanced ($1.49 million versus $2.21 million), and the voters 

rejected the candidate that the group spending was said to have favored. 

Id. The real “distorting” spending comes from wealthy candidates using 

their personal fortunes, such as Ross Perot who spent $70 million on his 

1992 presidential race, Steve Forbes who spent $48.6 million on his 2000 

presidential campaign, and John Corzine who spent $63 million in the 

2000 New Jersey Senate race. See Michael Cooper, At $92.60 a Vote, 

Bloomberg Shatters An Election Record, N.Y. Times, Dec. 4, 2001, 

at A1. 25 Of course, Austin held that, where adequate grounds existed for 

forbidding corporate express advocacy, the legislature was not obliged to 

carve out non-business corporations for different regulation. 494 U.S. at 

661-65. 
41 


D. The Untailored And Vague Backup Definition 

Cannot Be Saved By Broadening It To Burden 

Speech That Congress Intended To Leave Free. 

BCRA’s Backup Definition also seeks to regulate speech 

that does not contain express advocacy and, hence, it is fatally 

overbroad. Moreover, Defendants have offered no explanation as to why the Backup Definition is unlimited in time and 

constituency when the Primary Definition is limited in both 

respects. For this reason as well, the Backup Definition 

obviously is untailored and void. 

Beyond that, all aspects of the definition are fatally vague. 

Buckley considered and expressly rejected as constitutionally 

inadequate a standard that regulated speech “advocating the 

election or defeat of” a candidate. 424 U.S. at 42. It held that 

requiring a speaker to predict the messages listeners might 

derive from the speech “blankets with uncertainty” and 

“compels the speaker to hedge and trim.” Thomas v. Collins, 

323 U.S. 516, 535 (1945), quoted in Buckley, 424 U.S. at 43. 

The “only” solution, the Court ruled, was a standard that 

turned on the objective presence within the speech of explicit 

words of express advocacy. Buckley, 424 U.S. at 43. 

Yet, the Backup Definition requires a speaker to predict 

whether a communication will be perceived to “promote or 

support” or “attack or oppose” a candidate for federal office. 

BCRA § 201(a). What does that mean? Does the statement 

that “X supports the right to choose” praise, condemn, or 

make a neutral statement of fact? Does the answer vary 

depending on where the statement is broadcast? What role do 

changing circumstances play? Does the statement “X 

supported the invasion of Iraq” veer from praise to 

condemnation and back depending on how quickly the troops 

are advancing at any given moment? Can statements praising 

or condemning legislation or a policy position promote or 

attack the candidate? These are precisely the types of 

questions that Buckley holds a speaker cannot be required to 
42 


consider.26 Thus, this portion of the Backup Definition is 

unconstitutionally vague, as well as overbroad. 

Congress sought to narrow the promote-support-attackoppose standard by limiting it to speech that also “is 

suggestive of no plausible meaning other than an exhortation 

to vote.” BCRA § 201. However, requiring a speaker to 

predict what plausible “suggestions” a listener may infer is 

just what Buckley forbids. Not surprisingly, therefore, all 

three district judges ruled that this aspect of the Backup 

Definition was void for vagueness. Henderson, J., Supp. 

App. 362sa; Kollar-Kotelly, J., Supp. App. 885sa-86sa; Leon, 

J., Supp. App. 1164sa-65sa. 

Judges Leon and Kollar-Kotelly initially thought that the 

vagueness of the Backup Definition could be cured by (i) 

severing the narrowing clause concerning what the speech 

suggests, (ii) retaining the clause dealing with supporting, 

promoting, attacking or opposing, and (iii) requiring 

corporations and unions to seek an advisory opinion for any 

speech that arguably veered from neutrality. Leon, J., Supp. 

App. 1164sa-66sa; Kollar-Kotelly, J., Supp. App. 885sa-86sa. 

However, in his later opinion concerning a stay, Judge Leon 

recanted, stating that the support-promote-attack-oppose 

standard fails to give sufficient “guidance” in the absence of 

FEC regulations. J.S. App. 19a. The FEC expressly declined to adopt regulations construing the Backup 

Definition. See 67 Fed. Reg. 65190, 65191 (Oct. 23, 2002). 

Judge Leon’s recantation and the failure of any Defendant 

to support the proposed revision of the Backup Definition 

should dispose of the notion. But if further reasons were 

needed, they readily are available. The fundamental First 

Amendment vice of a vague statute is that it causes speakers 

26 The FEC noted that its authority to craft exceptions to the definition 

of electioneering communication, which was limited by BCRA to speech 

that does not “promote or support” or “attack or oppose,” was “significantly limit[ed]” by the “difficulties involved in” defining such speech. 

See 67 Fed. Reg. 65190, 65196 (Oct. 23, 2002). 
43 

to hedge and trim, thus suppressing speech that Congress has 

not actually forbidden. Buckley, 424 U.S. at 43. The clause 

that Judges Leon and Kollar-Kotelly propose to sever and 

discard narrowed the Backup Definition. Eliminating that 

clause thus expands the definition, flatly suppressing speech 

that the vague narrowing provision would have somewhat 

discouraged. Such a cure is worse than the disease. No doubt 

for this reason, this Court has never imposed such a “broadening construction” to cure First Amendment vagueness but, 

instead, has always imposed a narrowing construction, as in 

Buckley. 

Moreover, the proposed severance defeats the primary 

intent of the Backup Definition. Congress intended for the 

severed clause to narrow the Backup Definition. Without the 

narrowing clause, the reference to any speech that supports, 

promotes, attacks or opposes a candidate is dramatically 

broader. Indeed, when the Backup Definition was proposed, 

the sponsor’s stated rationale was that the final phrase – 

“suggestive of no plausible meaning other” than electoral 

advocacy – came from a court of appeals decision that 

purported to comply with this Court’s constitutional ruling in 

Buckley, namely FEC v. Furgatch. During the debate, the 

Backup Definition repeatedly was described as adopting the 

Furgatch standard. 147 Cong. Rec. S2706, S2710, S2712-13 

(daily ed. Mar. 22, 2001) (statements of Sen. Specter). Yet, 

Judges Leon and Kollar-Kotelly would throw out the 

language from Furgatch that Congress determined was as 

essential to the Backup Definition as the “promotes or 

supports” and “attacks or opposes” language. Severability is 

not proper where it serves to defeat legislative intent, CFTC 

v. Schor, 478 U.S. 833, 841 (1986), and this is doubly true 

where it burdens core protected speech. 
44 


III. 	BCRA’S COORDINATION PROVISIONS FAIL 

STRICT SCRUTINY BECAUSE THEY ARE 

NEITHER NARROWLY TAILORED NOR 

CLEAR. 

Coordination “turn[s] a protected expenditure for issue 

advocacy into an unprotected contribution.” Clifton v. FEC, 

927 F. Supp. 493, 500 (D. Me. 1996), modified on other 

grounds, 114 F.3d 1309 (1st Cir. 1997). Moreover, the 

conduct that constitutes coordination, and thus strips issue 

advocacy of its protection, itself is highly protected speech 

and association with members of Congress and other 

government and political party officials. Thus, strict scrutiny 

applies, and every judge to focus on the issue has agreed that 

the First Amendment: 

[D]emands a definition of coordination that provides the 

clearest possible guidance to candidates and constituents, 

while balancing the Government’s compelling interest in 

preventing corruption of the electoral process with 

fundamental First Amendment rights to engage in political 

speech and association. 

Christian Coalition, 52 F. Supp. 2d at 91; (internal quotation 

marks omitted); Per Curiam, Supp. App. 143sa; Henderson, 

J., Supp. App. 386sa-87sa. The standard is every bit as 

demanding as the standard that led Buckley to insist on a 

narrow, objective, bright-line standard of express advocacy. 

A. BCRA’s Definition Of Coordination, Which 

Excludes Any Element Of Agreement, Is Not 

Narrowly Tailored. 

The rationale for converting spending for coordinated 

speech into a contribution is that sufficient “prearrangement 

and coordination” with a candidate or political party can 

achieve the same effects as a direct contribution and, hence, 

invites circumvention of the contribution limits. Buckley, 424 

U.S. at 46-47. But this rationale fails in the absence of a 

sufficient “general or particular understanding with a candidate” or party. Colorado I, 518 U.S. at 614. In the absence 
45 

of the necessary agreement or understanding, “simply calling 

an independent expenditure a ‘coordinated expenditure’ cannot (for constitutional purposes) make it one.” Id. at 621-22. 

In 1999, Christian Coalition undertook a comprehensive 

analysis of the constitutional issues raised by the coordination 

concept and held that some substantial element of agreement 

was essential to the coordination concept in order to “giv[e] 

such expenditures sufficient contribution-like qualities to fall 

within the [FECA’s] prohibition on contributions.” 52 F. 

Supp. 2d at 91-92 (coordination requires that “the candidate 

and spender emerge as partners or joint venturers in the 

expressive expenditure”). 

BCRA section 214 repeals the FEC regulations that 

codified Christian Coalition (previously codified at 11 C.F.R. 

§ 100.23(c)(2)(iii)) and provides that the broad statutory 

definition (discussed infra) cannot be construed to require any 

“agreement or formal collaboration.” By specifying that only 

“formal” collaboration be excluded, but conspicuously 

applying no modifier to “agreement,” BCRA plainly excluded 

any element of agreement, formal or informal.

27 If there 

were any doubt – and there is not – it would be removed by 

the FEC’s contemporaneous coordination regulations, which 

define “agreement” to mean any “mutual understanding or 

meeting of the minds on all or any part of the material aspects 

of the communication or its dissemination.” 11 C.F.R. 

27 Judges Leon and Kollar-Kotelly suggested in a footnote that the 

maxim of noscitur a sociis justified reading the term “formal” as if it 

modified “agreement” as well as “collaboration.” Per Curiam, Supp. App. 

146sa. However, if that meaning had been intended, Congress would 

have referred to “formal collaboration or agreement.” If a maxim were 

needed – and it is not – the decision to impose a limit on “collaboration” 

but not on “agreement” would involve expressio unius est exclusio 

alterius. 2A Norman J. Singer, Sutherland Statutory Construction 

§§ 47:23, 47:24, 47:33 (6th ed. 2001). Moreover, if BCRA sought only to 

exclude “formal agreement” from the standard, there would have been no 

need to repeal the FEC regulations, which did not require a formal 

agreement. 
46 


§ 109.21(e). Obviously, an agreement can be reached and 

manifested informally – a wink and a nod may do. But a 

wink standing alone will not.28 

Because BCRA’s coordination provisions eliminate any 

element of agreement, they restrict independent corporate 

speech. Hence, they are not narrowly tailored to their anticircumvention purpose and fail strict scrutiny. 

B. BCRA’s Coordination Provisions Are Unconstitutionally Vague. 

BCRA section 214 provides that speech is coordinated if it 

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

the request or suggestion of” a candidate or party, whether or 

not there is any “agreement or formal collaboration.”29 This 

language suggests a general concept or field of concern, but it 

certainly does not approach First Amendment clarity. 

Henderson, J., Supp. App. 384sa-96sa. 

The new FEC coordination regulations do not solve the 

problem. They open by specifying that “whether or not,” 11 

C.F.R. § 109.21(d), there is any “mutual understanding or 

28 Christian Coalition and the codifying FEC regulations stated without 

elaboration that speech occurring “at the request or suggestion” of a 

candidate is coordinated. 52 F. Supp. 2d at 91. Read in context, this 

language appears to have contemplated something similar to the formation 

of a “unilateral contract” which occurs when an offer is accepted by 

conduct. Black’s Law Dictionary 326 (7th ed. 1999). However, BCRA’s 

rejection of any element of agreement now converts the unilateral 

communication of a suggestion or request into a unilateral ban on 

subsequent speech of the type proposed, regardless of whether the speaker 

is accepting the proposal or acting for some other reason. 29 By using the same language to define coordination with a party that 

existing provisions of FECA use to define coordination with a candidate 

or campaign, by repealing FEC regulations that narrowed the existing 

provisions by requiring an element of agreement, and by specifying that 

new regulations not require any element of agreement, section 214 operates as a whole to define the general concept of “coordination” under 

FECA as amended by BCRA. See Pilot Life Ins. Co. v. Dedeaux, 481 

U.S. 41, 51 (1987) (related statutory clauses must be understood as a 

whole). 
47 

meeting of the minds on all or any part of the material aspects 

of the communication or its dissemination,” 11 C.F.R. 

§ 109.21(e), is irrelevant. The statutory definition is said to 

be satisfied if the candidate or political party “request[s] or 

suggest[s]” or is “materially involved in decisions regarding” 

the communication, or if the communication “is created, 

produced, or distributed after one or more substantial 

discussions [that convey material] information about the 

candidate’s or political party committee’s campaign plans, 

projects, activities, or needs.” Id. at 109.21(d).30 

The Business Plaintiffs and many similar entities must 

attempt to apply these vague standards on a day-to-day or 

even hour-by-hour basis to avoid arguable coordination 

while, at the same time, they conduct ongoing communication 

and contact with members of Congress and other federal 

government and party officials about the same legislative and 

policy issues that those candidates or their opponents may 

stress during election campaigns.31 Clearly the standards do 

30 The FEC’s so-called “content” standard expands the coordination 

concept to apply to a wide range of speech, including express advocacy, 

electioneering communications, and speech during much of an election 

year that mentions a candidate. 11 C.F.R. § 109.21(c). The record shows 

that much issue advocacy, particularly around elections, mentions 

candidates. Thus, this regulatory standard does not alleviate either 

overbreadth or vagueness of the content standard. Indeed, to the extent 

that this is a backdoor regulation that reaches beyond express advocacy, it 

is untailored and void for the reasons discussed by FEC Commissioner 

Smith. Smith Statement at 3-5, J.A. 1825-30. The FEC’s “safe harbor” is 

very narrow indeed, supra note 6, and does not protect typical legislative 

and policy contacts. 31 It would be specious to suggest that the FEC somehow could solve 

this problem by issuing hour-to-hour advisory opinions as to whether 

specific circumstances might constitute coordination. In the fluid political 

realm, the material circumstances would have changed before the request 

for an opinion could be prepared, not to mention the 60 day FEC response 

period. 2 U.S.C. § 437f(a)(1). Also, because advisory opinion requests 

are made public for comment before being issued, 2 U.S.C. § 437f(d), 

such a process would be very intrusive into often confidential activity. 
48 

not provide the type of precise guidance that the First Amendment demands, with the result that they are chilling communications and contacts with officials/candidates and will 

chill public communications about legislative and policy issues. Both ways, important First Amendment activity suffers. 

The threat from a vague coordination standard is real. As 

the D.C. Circuit recently recognized, political opponents are 

quick to file FEC complaints for tactical advantage, and the 

FEC’s ability to screen out baseless attacks is impaired by 

imprecise legal standards. AFL-CIO, 2003 WL 21414308, at 

*9. And as the experience of The Coalition demonstrates, 

FEC investigations into alleged coordination can be 

exceptionally intrusive, burdensome, and expensive. Indeed, 

as Commissioner Smith aptly observed, the Democratic 

National Committee no doubt viewed its complaint against 

The Coalition as a success, since it crippled and ultimately 

killed a strong pro-business voice. Henderson, J., Supp. App. 

284sa. 

C. 	The Constitutional Challenge To BCRA’s 

Coordination Provisions Can And Should Be 

Decided Now, As BCRA Itself Mandates. 

Because First Amendment values are so important, courts 

strain to find that arguable First Amendment claims are 

justiciable. 13A Charles A. Wright & Arthur R. Miller, 

Federal Practice & Procedure § 3532.3 (2d ed. 1984) 

(collecting cases). Moreover, BCRA section 403(a) mandates 

that constitutional challenges be resolved as expeditiously as 

possible. Strikingly, this provision for expedited judicial 

review was considered immediately after the section 214 

coordination provisions and was enacted on the very same 

day. See 147 Cong. Rec. S3184, S3189, S3190, S3194 (daily 

ed. March 30, 2001). But even under ordinary standards, the 

Business Plaintiffs’ narrow tailoring and vagueness challenges to BCRA are justiciable and ripe for review. 

The basic constitutional requirement for exercise of the 

judicial power is a genuine case or controversy presented by a 
49 

plaintiff with standing. Vt. Agency of Natural Res. v. United 

States ex rel. Stevens, 529 U.S. 765, 771 (2000). Here the 

Business Plaintiffs are being forced to limit their present and 

ongoing communication and association with, and petitioning 

of, members of Congress and other candidates and party 

officials to preserve their future right to speak freely about 

issues and candidates, just as they have done in the past. 

They claim a First Amendment right to be free of this forced 

curtailment, and the Defendants contest that right. This is a 

classic case or controversy. 

BCRA section 214 as a whole imposes an overbroad and 

vague standard of coordination. Striking down the section 

will eliminate the overbreadth and vagueness introduced by 

BCRA, providing substantial relief to the Business Plaintiffs. 

Also, striking down section 214(a)’s new ban on coordination 

with political parties will remove that burden, even if not 

fully eliminating all parallel issues presented by the coordination provisions of FECA. As a practical matter, this 

Court’s opinion will guide construction of those provisions as 

well. 

The Business Plaintiffs’ challenge is to the statute itself. 

Failing to decide the challenge will subject the Business 

Plaintiffs and many other entities to ongoing injury to core 

First Amendment interests. And to the extent that the FEC is 

going to speak to the meaning of the statute, it has done so in 

its new coordination regulations.32 Thus, this case is ripe. 

See Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).33 

32 Ripeness turns on the regulatory situation at the time this Court rules. 

Buckley, 424 U.S. at 115-18; Anderson v. Green, 513 U.S. 557, 558-59 

(1995) (per curiam). 33 The Per Curiam Opinion’s reliance on Martin Tractor Co. v. FEC, 

627 F.2d 375 (D.C. Cir. 1980), is unfounded. Per Curiam, Supp. App. 

150sa-55sa. There a corporation and its PAC challenged as vague a 

provision permitting them to “solicit” hourly employees only twice a year. 

627 F.2d at 382. Plaintiffs alleged “that their behavior has thus far 

conformed to the statutory mandate [and] make no allegation of an 

intention imminent or otherwise to violate the statute, and the [FEC had] 
50 

Moreover, where Congress has directed swift action and a 

proper case or controversy exists, there is little room to refuse 

to proceed on prudential ripeness grounds. See Dep’t of 

Commerce v. United States House of Representatives, 525 

U.S. 316, 328 (1999) (“Congress has eliminated any 

prudential concern”). 

Contrary to Judges Leon and Kollar-Kotelly, Per Curiam, 

Supp. App. 155sa-56sa, there is no lack of statutory 

jurisdiction here. Section 403(a) confers jurisdiction over any 

“action” that challenges the constitutionality of any provision 

of BCRA. The concept of “action” surely is broad enough to 

encompass a defense that the FEC’s coordination regulations 

somehow cure the statute’s lack of tailoring and vagueness. 

See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). 

The content of the regulations is known and, as is 

demonstrated above, they do not cure the problem.

34 

CONCLUSION 

BCRA’s electioneering communication and coordination 

provisions should be declared void under the First 

Amendment. 

no cause to commence enforcement, nor even to threaten enforcement, of 

the challenged statutory provisions.” Id. at 382-83. The court concluded 

that, because there was no “urgency of decision,” id. at 388, and the 

FEC’s advisory opinion process “offer[ed] a prompt means of resolving 

doubts with respect to the statute’s reach,” id. at 384, that could “be 

pursued at little risk to the rights asserted,” id. at 386, the doctrine of 

ripeness counseled “against constitutional adjudication on a barren 

record.” Id. at 385. Here, by contrast, the problem is urgent, the advisory 

process offers no meaningful assistance, and the case is before this Court 

on a full record and under a statutory mandate of prompt resolution. 34 Judge Leon and Kollar-Kotelly profess that, because the regulations 

issued on December 18, 2002, two weeks after argument, “the Court does 

not know . . . to what extent the regulations have clarified the vagueness.” 

Per Curiam, Supp. App. 151sa. If the district court needed further 

briefing on that issue, there was ample time between December 18 and the 

ruling on May 2, 2003, for the court to have called for it. 
Of counsel 

STEPHEN A. BOKAT 

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

JAN AMUNDSON


NATIONAL ASSOCIATION OF


MANUFACTURERS 

1331 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

(202) 637-3055 

Respectfully submitted, 

JAN WITOLD BARAN, 

Counsel of Record, 

THOMAS W. KIRBY


LEE E. GOODMAN


CALEB P. BURNS


WILEY REIN & FIELDING LLP


1776 K Street, N.W. 


Washington, D.C. 20006 


(202) 719-7000 


Counsel for Appellants Chamber 

of Commerce of the United 

States, National Association of 

Manufacturers, Associated 

Builders and Contractors, Inc.