No. 02-1733 

In The 

Supreme Court of the United States 

____________ 

NATIONAL RIGHT TO LIFE COMMITTEE, INC. et al., 

Plaintiffs-Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees/Cross-Appellants 

____________ 

On Appeal from the United States District Court


for the District of Columbia


____________


Brief of Plaintiffs-Appellants/Cross-Appellees 

National Right to Life Committee et al. 

____________ 

July 8, 2003 

James Bopp, Jr., Counsel of Record


Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR FREE SPEECH


BOPP, COLESON & BOSTROM


1 South 6th Street


Terre Haute, IN 47807-3510


812/232-2434

Questions Presented 

1. Whether the prohibition of § 101 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA) on the solicitation, 

receipt, redirection, or use of “soft money” by any national 

political party for any communication that “promotes or 

supports . . . or attacks or opposes” a federal candidate, violates 

the First and Fifth Amendment and principles of federalism. 

2. Whether the prohibition on federal officeholders and 

candidates from soliciting, receiving, directing, transferring, or 

spending “soft money” contained in BCRA § 101 violates the 

First Amendment. 

3. Whether the prohibition on state officeholders and 

candidates from soliciting, receiving, directing, transferring, or 

spending “soft money” in connection with an election for 

federal office in BCRA §101 violates the First Amendment. 

4. Whether the backup “electioneering communication” 

definition at BCRA§ 201, or its construction by the district 

court, violates the First Amendment. 

5. Whether the requirements that “disbursements” and 

“expenditures” be reported as occurring when contracted for, 

rather than when made, BCRA §§ 201 and 212,1

 are justiciable 

and violate the First Amendment. 

6. Whether the District Court injunction should extend to 

activities outside the District of Columbia.1 

7. Whether BCRA § 403(b), permitting members of 

Congress to intervene, and the permitted intervention by 

Intervenor-Defendants without regard to whether they have 

Article III standing, violates the Constitution. 

1

Question 5, as to § 212 only, and Question 6 are withdrawn. 

i 
Parties to the Proceedings 

In the case of McConnell, et al. v. FEC, et al. (No. 02-582 

in the district court), the following plaintiffs were represented 

by the James Madison Center for Free Speech (“JMC Plaintiffs”): U.S. Representative Mike Pence, Alabama Attorney 

General Bill Pryor, Libertarian National Committee, Inc. 

(LNC), Club for Growth, Inc. (CFG), Indiana Family Institute, 

Inc. (IFI), National Right to Life Committee, Inc. (NRLC), 

National Right to Life Educational Trust Fund (NRL Ed Fund), 

National Right to Life Political Action Committee (NRL PAC), 

Trevor M. Southerland,2

 and Barret Austin O’Brock .3 

Plaintiffs below in the same action who were not represented by JMC were U.S. Senator Mitch McConnell, former 

U.S. Representative Bob Bar, American Civil Liberties Union, 

Associated Builders and Contractors, Inc., Associated Builders 

and Contractors Political Action Committee, Center for 

Individual Freedom, National Right to Work Committee, 60 

Plus Association, Inc., Southeastern Legal Foundation, Inc., 

U.S. English d/b/a/ ProENGLISH, Thomas McInerney. 

Defendants and Intervenor-Defendants, were the Federal 

Election Commission (FEC),FederalCommunicationCommission (FCC), John D. Ashcroft, in his capacity as Attorney 

General of the United States, the United States Department of 

Justice; and the United States of America, U.S. Senator John 

McCain, U.S. Senator Russell Feingold, U.S. Representative 

2

The Madison Center represented minors So utherland an d O’Br ock in 

their successful challenge to the ban on contributions by minors to candidates or political party committees. Mr. Southerland became 18 years of age 

on May 28, 2003. 

3

Withdrawn Plaintiffs below were Alabama Republican Executive 

Committee, Libertarian Party of Illinois, Inc., DuPage Political Action 

Council, Jefferson County Republican Executive Committee, Christian 

Coalition of America, Inc., and Martin Conno rs. 

ii 
Christopher Shays, U.S. Representative Martin Meehan, U.S. 

Senator Olympia Snowe, and U.S. Senator James Jeffords. 

Corporate Disclosure Statement 

As stated in the Jurisdictional Statement, none of the 

appellants has a parent corporation and no publicly held 

company owns ten percent or more of the stock of any of the 

appellants. Rule 29.6. 

iii 
Table of Contents 

Questions Presented ............................... i


Parties to the Proceedings .......................... ii


Corporate Disclosure Statement ..................... iii


Table of Contents ................................ iv


Table of Authorities .............................. vi


Glossary ...................................... xvi


Opinions Below .................................. 1


Jurisdiction ...................................... 1


Constitutional & Statutory Provisions ................. 1


Statement of the Case .............................. 1


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


Argument ....................................... 3


I.	 The “Electioneering Communication” Ban Is


Unconstitutional ............................ 3


A. Textual Analysis of Buckley & MCFL ........ 4


1. Buckley, § 608(e)(1) .................... 4


2. Buckley, § 434(e) ...................... 8


B. “Dicta” ............................... 12


C. Stare decisis ........................... 15


D. Primary “Electioneering Communication”


Definition ............................. 18


E. Backup “Electioneering Communication”


Definition ............................. 22


II.	 “Soft Money” Bans Are Unconstitutional ....... 35


A. As to National Parties ................... 36


B. As to Federal Officeholders/ Candidates ..... 36


C. As to State Officeholders/Candidates ....... 39


III. “Advance Notice” Is Unconstitutional .......... 44


iv 
IV. Intervenors Lack Article III Standing ........... 46 

Conclusion ..................................... 50 

v 
Table of Authorities 

Cases 

Alaska v. Alaska Civil Liberties Union, 978 P.2d 597


(Alaska 1999) ................................ 11


Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct.


1389 (2002) ................................. 19


Bowman v. United Kingdom, 26 Eur. Ct. H.R.1 (1986) ... 16


Brownsburg Area Patrons Affecting Change v. Baldwin,


137 F.3d 503 (7th Cir. 1998) ................. 11, 13


Brownsburg Area Patrons Affecting Change v. Baldwin,


714 N.E. 2d 135 (Ind. 1999) .................... 11


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


............... 4-10, 12-15, 17, 19, 21, 25-27, 42, 43


Building and Constr. Trades Dept., AFL-CIO v. Reich, 40


F.3d 1275 (D.C. Cir.1994) ...................... 49


California Pro-Life Council v. Getman, 328 F.3d 1088 (9th


Cir. 2003) ............................. 11, 14, 15


Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir.


2002) ................................... 11, 13


Champlin Refining. v. Corporation Comm’n of Oklahoma, 

286 U.S. 210 (1932) ........................... 25


vi

Citizens for Responsible Gov’t State Political Action


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


........................................ 11, 13


Clifton v. FEC, 114 F.3d 1309 (1st Cir. 1997) .......... 11


Clifton v. FEC, 927 F. Supp. 493 (D. Me. 1996) ........ 11


Common Cause v. FEC, 108 F.3d 412 (D.C. Cir. 1997) .. 49


Conn. v. Proto, 526 A.2d 1297 (Conn. 1987) .......... 12


Dickerson v. United States, 530 U.S. 428 (2000) ........ 17


Doe v. Mortham, 708 So. 2d 929 (Fla. 1998) ........... 12


Elections Bd. v. Wisconsin Mfr. & Commerce, 597 N.W.2d


721 (Wisc. 1999) ............................. 11


Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991) ....... 10, 13


FEC v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979) ...... 11


FEC v. Beaumont, 123 S. Ct. 2200 (2003) ............. 19


FEC v. Cent. Long Island Tax Reform Immediately Comm.,


616 F.2d 45 (2d Cir. 1980) ...................... 10


FEC v.ColoradoRepublican Federal Campaign Committee, 41


F. Supp. 2d 1197 (D. Col. 1999) ................. 21


FEC v. Christian Action Network, 92 F.3d 1178 (4th Cir.


1996) ...................................... 10


vii

FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th


Cir. 1997) ................................ 10, 14


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


1999) ...................................... 11


FEC v. Colo. Republican Fed. Campaign Comm., 59 F.3d


1015 (10th Cir. 1995) .......................... 11


FEC v. Colo. Republican Fed. Campaign Comm., 839 F.


Supp. 1448 (D. Colo. 1993) ..................... 11


FEC v. Colo. Republican Fed. Campaign Comm., 518 U.S.


604 (1996) .................................. 11


FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ...... 11, 14


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


...................... 2, 4, 9, 10, 12-15, 17, 19, 39


FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989) ......... 11


FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir. 1995) . 11


FEC v. Survival Educ. Fund, No. 98 Civ. 0347, 1994 WL


9658, (S.D.N.Y. Jan. 12, 1994) .................. 11


Fla. Right to Life v. Lamar, 238 F.3d 1288 (11th Cir. 2001)


........................................... 11


Fla. Right to Life v. Mortham, No. 98-770CIVORL19A,


1999 WL 33204523 (M.D. Fla. 1999) ............. 11


viii

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91


(1979) ...................................... 49


Governor Gray Davis Committee v. American Taxpayers


Alliance, 125 Cal. Rptr. 2d 534 (2002) ............ 11


Harper v. Canada, 2002 ABCA 301 (2002) ........... 16


In Re Texas Association of Business, (no number) slip. op.


(167th Judicial Dist. Ct. of Travis County, Texas) .... 11


Iowa Right to Life Comm. v. Williams, 187 F.3d 963 (8th


Cir. 1999) ................................ 11, 13


Kansans for Life, Inc. v. Gaede, 38 F. Supp. 2d 928 (D.


Kan. 1999) .................................. 11


Klepper v. Christian Coalition, 259 A.D.2d 926 (N.Y. App.


Div. 1999) .................................. 11


Linda R.S. v. Richard D., 410 U.S. 64 (1973) .......... 49


Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) .... 40


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 47-49


Me. Right To Life Comm. v. FEC, 98 F.3d 1 (1st Cir. 1996)


........................................... 11


Mausolf v. Babbit, 85 F.3d 1295 (8th Cir. 1996) ........ 49


McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ... 1


ix

National Credit Union Admin. v. First National Bank &


Trust Co., 522 U.S. 1146 (1998) ................. 47


Nat’l Fed’n of Republican Assemblies v. United States, 218


F. Supp. 2d 1300 (S.D. Ala. 2002) ............. 11, 12


N.C. Right To Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir.


1999) ...................................... 10


N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498


(E.D.N.C. 2000) .............................. 11


Oklahomans for Life v. Luton, No. CIV-00-1163, slip. op.


(W.D. Okla. May 25, 2001) ..................... 11


Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) .......... 11


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


Planned Parenthood Affiliates of Mich. v. Miller, 21 F.


Supp. 2d 740 (E.D. Mich. 1998) ................. 11


Right To Life of Dutchess County, Inc. v. FEC, 6 F. Supp.


2d 248 (S.D.N.Y. 1998) ........................ 11


Right to Life of Mich., Inc. v. Miller, 23 F. Supp. 2d 766


(W.D. Mich 1998) ............................ 11


Patterson v. McLean Credit Union, 491 U.S. 164 (1989)


........................................ 15, 16


Payne v. Tennessee, 501 U.S. 808 (1991) ............. 17


Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000) ......... 18


x

Planned Parenthood Affiliates of Michigan, Inc. v. Miller,


21 F. Supp. 2d 740 (E.D. Mich. 1998) ............. 18


Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833


(1992) ...................................... 16


Raines v. Byrd, 521 U.S. 811 (1997) .............. 47-48


Republican Party of Minnesota v. White, 536 U.S. 765


(2002) ................................... 22, 42


Right To Life of Michigan, Inc. v. Miller, 23 F. Supp. 2d


766 (W.D. Mich. 1998) ........................ 18


Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ... 17


Thomas v. Collins, 323 U.S. 516 (1945) ............. 6, 7


United States v. International Business Machines Corp., 

517 U.S. 843 (1996) ........................... 17


United States v. Playboy Entertainment Group, Inc., 529


U.S. 803 (2000) ........................... 42, 43


Vermont Right to Life Committee v. Sorrell, 221 F.3d 376


(2d Cir. 2000) .......................... 10, 13, 18


Va. Soc’y For Human Life v. Caldwell, 152 F.3d 268 (4th


Cir. 1998) ................................... 10


Va. Soc’y for Human Life v. Caldwell, 500 S.E.2d 814 (Va.


1998) ...................................... 12


xi

Va. Soc’y for Human Life v. FEC, 263 F.3d 379 (4th Cir.


2001) ................................... 10, 13


Warth v. Seldin, 422 U.S. 490 (1975) ................. 49


Wash. State Republican Party v. Wash. State Public Disclo­


sure Comm’n, 4 P.3d 808 (Wash. 2000) ............ 11


Webster v. Reproductive Health Services, 492 U.S. 490


(1989) ...................................... 17


West Virginians For Life, Inc. v. Smith, 919 F. Supp. 954


(S.D. W. Va. 1996) ............................ 11


Wisconsin Realtors Ass’n v. Ponto, 233 F. Supp. 2d 1078


(W.D. Wis. 2002) .......................... 11, 12


Constitution, Statutes, Regulations & Rules 

2 U.S.C. § 431(17) ............................... 15


28 U.S.C. § 1253 ................................. 1


Ala. Code § 17-22A-7(b)(2) ........................ 40


Alaska Stat. § (6)(C)(7) (2003) ..................... 15


Alaska Stat. § 15.13.400(6)(C)(4) ................... 15


BCRA 323(e)(4)(A) .............................. 36


BCRA § 101 ..................................... i


BCRA § 201 .................................... i-3


xii

BCRA § 201(5) .............................. 44, 50


BCRA § 201(f)(3)(A)(ii) .......................... 22


BCRA § 203 ..................................... 3


BCRA § 212 ..................................... i


BCRA § 301(20)(A)(iii) .......................... 39


BCRA § 323(e)(1)(A) ............................ 36


BCRA § 323(e)(4)(B) ............................ 37


BCRA § 323(f) .................................. 39


BCRA § 403(a)(1) ................................ 1


BCRA § 403(b) ............................... i, 46


Cal. Gov’t Code § 82031 (2003) .................... 15


Del. Code Ann. tit.15, § 8002(10) (2002) ............. 15


Idaho Code § 67-6602(g) (2003) .................... 15


Iowa Code § 56.2(14) (2003) ....................... 15


Kan. Stat. Ann. § 25-4143(g)(1)(B) .................. 15


Kan. Stat. Ann. § (h) (2002) ........................ 15


Ky. Rev. Stat. Ann. § 121.015(12) (2002) ............. 15


xiii

Minn. Stat. § 10A.01(18) (2002) .................... 15 

Miss. Code Ann. § 23-15-801(j) (2003) .............. 15 

Me. Rev. Stat. Ann. tit. 21A § 1125(2)(C) ............. 41 

Mont. Code Ann. § 13-37-216 ...................... 41 

Nev. Rev. Stat. 294A.004 (2003) .................... 15 

N.H. Rev. Stat. Ann. § 664:2(XI) (2002) .............. 15 

U.S. Const. amend. I ......................... passim 

U.S. Const. amend. XIV ........................... 8 

U.S. Const. art. III ....................... i, 1-2, 46-49 

Wis. Stat. § 11.01(16) (2002) ....................... 15 

Other Authorities 

Aides Shielded From Grand Jury Probe, U.S. Chamber 

Tells Texas Criminal Court, Money & Politics Report, 

June 26, 2003) ................................ 9 

American Heritage Dict. Eng. Lang. (4th Ed. 2000) ..... 26 

The Federalist No. 57 ............................ 20 

Matthew Tully, Daniels Dives In; Rival Bows Out, Indianapol i s S tar , June 10, 2003 , 

<http://www.indystar.com/print/ articles /2/049677-

9902-098.html> .............................. 42 

xiv 
xv

Glossary 

BCRA ......... Bipartisan Campaign Reform Act of 2002 

CFG ............................... Club for Growth 

FEC .................... Federal Election Commission 

FECA .................. Federal Election Campaign Act 

GOTV .............................. get out the vote 

JA .................................. Joint Appendix 

JDT ...................... Joint Deposition Transcripts 

JMC Plaintiffs .................................... 

present plaintiffs-appellants/cross-appellees in trial court 

JS ........................... Jurisdictional Statement 

JSA ................. Jurisdictional Statement Appendix 

NRLC ................ National Right to Life Committee 

NRL ETF ................. NRL Educational Trust Fund 

NRL PAC ............. NRL Political Action Committee 

NRLC Plaintiffs ................................... 

present plaintiffs-appellants/cross-appellees in this brief 

PCS .. Plaintiffs’ Consolidated Evidentiary Submission (cd) 

SA ... Supplemental Appendix to Jurisdictional Statements 

xvi 
Opinions Below 

Lower opinions are at 251 F. Supp. 2d 176 and in the 

Supplemental Appendix to Jurisdictional Statements (SA). 

Jurisdiction 

Judgment issued May 1, 2003; appeal was noticed May 7. 

Jurisdiction is under 28 U.S.C. § 1253; BCRA § 403(a)(1). 

Constitutional & Statutory Provisions 

Relevant provisions are set out in the Jurisdictional 

Statement (“JS”) and appendix pages cited. JS at 1-2. 

Statement of the Case 

Plaintiffs-appellants/cross-appellees represented by the 

James Madison Center for Free Speech (referred to below as 

“Madison Center” or “JMC” Plaintiffs) were part of a larger 

group below on the McConnell v. FEC (No. 02-582) complaint. 

They refer to themselves herein as the “NRLC Plaintiffs.” 

NRLC Plaintiffs are described in detail in the Jurisdictional 

Statement. They include nonprofit, ideological advocacy 

organizations, described in the Per Curiam Opinion as noted: 

National Right to Life Committee, Inc. (79sa), National Right 

to Life Educational Trust Fund (79a), Club for Growth, Inc. 

(79sa), and Indiana Family Institute. NRLC Plaintiffs include 

the Libertarian National Committee, Inc. (78sa); National Right 

to Life Political Action Committee (79sa); federal official and 

candidate Rep. Mike Pence; state official and candidate 

Alabama Attorney General William H. Pryor (78sa); and minor 

Barret Austin O’Brock (80sa). 

NRLC Plaintiffs generally adopt the statement of the case 

of the McConnell Plaintiffs in No. 02-1674, but add the 

following unique information regarding the challenge to 

Intervenors’ standing. Senators McCain and Feingold, Reps. 

Shays and Meehan, and Sens. Snowe and Jeffords (Intervenors) 

moved to intervene under Fed. R. Civ. P. 24(a)(1) and BCRA 

§ 403(b). Docket #6. NRLC Plaintiffs objected that Intervenors 

lack mandatory Article III standing. Docket #14. The trial court 
2 

granted intervention, holding that Intervenors have Article III 

standing if it is required. Docket #40. 

Summary of the Argument 

The ban on “electioneering communication,” § 201, is 

unconstitutional as to its primary, its backup, and (the district 

court’s) truncated backup definitions. It violates this Court’s 

binding, substantive decisions in Buckley v. Valeo and FEC v. 

Massachusetts Citizens for Life that the First Amendment 

requires that issue advocacy be protected from government 

regulation by a bright-line express advocacy test requiring 

explicit words advocating the election or defeat of a clearly 

identified candidate. The ban is not narrowly tailored to a 

compelling interest. 

The soft money bans in Title I are unconstitutional as to 

political partycommittees,federalofficials/candidates, andstate 

officials. Libertarian National Committee joins the political 

parties’ brief on the first subject. The ban on soft money 

fundraising by federal officials and candidates, such as Rep. 

Pence, for nonprofit ideological corporations, such as Indiana 

Family Institute, unconstitutionally burdens the rights of free 

expression and association without being narrowly tailored to 

a compelling interest. The ban on certain uses of soft money for 

state officials and candidates, such as Alabama Attorney 

General William Pryor, unconstitutionally burdens the rights of 

free expression and association, and hinders the conduct of 

official duties, without being narrowly tailored to a compelling 

interest. 

BCRA’s requirement of advanced notice of electioneering 

communications by treating contracts as communications 

unconstitutionally burdens free expression without furthering 

any compelling interest, as noted by the district court. 

The trial court erred in permitting Sen. McCain et al. to 

intervene without individual Article III standing. 
3 

Argument4 

I.	 The “ElectioneeringCommunication” Ban Is Unconstitutional. 

The argument over BCRA’s electioneering communications 

ban, JSA 21a, 24a (BCRA §§ 201, 203), is over two views of 

issue advocacy. Defendants see issue advocacy as affecting 

elections and insist it should be banned. Plaintiffs see issue 

advocacy as essential to citizen participation in our democratic 

republic, guaranteed by the First Amendment, and therefore 

protected from abridgement – even if it affects elections.5 

Judges Kollar-Kotelly and Leon used the first viewpoint, 

upholding the ban. Judge Henderson followed Buckley v. Valeo, 

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

4

Barrett O’Brock joins the brief of plaintiffs Echols et al. opposing the 

minors’ contributions ban. Libertarian National Committee joins the 

political parties’ brief of Republican National Committee et al. In addition 

to specific notes of adoption here and elsewh ere, NRLC Plaintiffs generally 

adopt all consistent briefing on their issues presented by other plaintiffs. 

5

Issue advocacy involves a wid e variety of communications, including 

discussion of issues of pub lic concern and pote ntial legislation, gras sroots 

lobbying for the passage of particular legislation, and praise and criticism of 

the actions of pu blic official in office and the positions of candidates on 

issues. Howev er, the “ultimate go al is to affect what the government do es, 

and what Congress does by passing the types of issues [the group sup ports].” 

JDT Deposition of David Keating 64. This differs from candidate campaigns, whose “ultimate goal” is the election of a candidate. As a result, 

issue advocacy o ccurs throug hout the year, ye ar after year, often timed to 

coincide with potential legislative action. While issue advocacy is often done 

around elections and can certainly influe nce an elec tion, it is often not done 

to influence the outcome of an election. “The media . . . the public . . . and 

the general political actors are [often] more attuned,” JDT id. at 70, to issues 

at that time and, if an issue is raised in a campaign, it needs to be defended 

or “the media, the public, or other members of Congress [will] conclude 

that’s a losing issue . . . for them politically [and] we’ll never get anything 

adopted .” JDT id. at 74. Thus, issue advocacy by advocacy groups has a 

fundamentally different purpose and effect than candidate advertising. 
4 

479 U.S. 238 (1986) (MCFL), holding that the Constitution 

mandates the second viewpoint and the ban should be stricken. 

Judge Kollar-Kotelly argued that “Buckley and MCFL 

... invoked the express advocacy test only as a means of 

statutory construction,” SA 788sa, but acknowledged “the 

consensus among the judiciary that courts are bound by Buckley 

and MCFL, which strictly limit the meaning of ‘express advocacy.’” SA 796sa (quotationmarks omitted). Shedismissed this 

consensus, however, saying those other cases lacked “textual 

analysis” and were rife with “dicta.” SA 794-99sa. Judge 

Henderson provided a cogent refutation. SA 345-384sa. 

A. A textual analysis of Buckley and MCFL reveals that 

this Court, in adopting the express advocacy test, was concerned about protecting issue advocacy, not just vagueness. 

1. The first provision Buckley considered, § 608(e)(1),6 

imposed spending limits on independent expenditures and was 

ultimately found unconstitutional. 424 U.S. at 51. Troubled by 

the vagueness of capping expenditures “relative to a clearly 

identified candidate,” the Court first construed “relative to” 

with the provision’s parallel phrase, “advocating the election or 

defeat of such a candidate.” But the resulting phrase, “advocating the election or defeat of a clearly identified candidate,” only 

“refocuse[d]” the vagueness problem in a way that “only” 

prefixing “explicit words,” id. at 42-44 (emphasis added), or 

“expressly” could fix. Id. at 80 (emphasis added).7 

6

Section 608(e)(1) provided: “No person may make any expenditure 

relative to a clearly identified candidate during a calendar year which, when 

added to all other expenditures by such person during the year advocating 

the election or defeat of su ch cand idate, exceeds $1,000.” (emphasis added) 

7

The exp ress advoc acy test is not a “ma gic words” test, i.e., so long as 

the words used in Buckley’s footnote 52 are avoide d, political spe akers avoid 

regulation. Id. at 44 n.52. Footnote 52 creates an “express words of 

advocacy test”: “This construction would restrict the application of 

§ 608(e)(1) to communications containing express words of advocacy of 
5 

What was the fatal defect this Court sought to avoid when 

it said that “advocating” was too vague absent the“expressly” 

modifier? The Court immediately answered this question: 

“[T]he distinction between discussion of issues and candidates 

and advocacy of election or defeat of candidates may often 

dissolve in practical application.” Id. at 42 (emphasis added). 

So the dichotomy Buckley established in its primary 

discussion of the express advocacy test was between (1) 

“discussion of issues and candidates,” commonly known as 

issue advocacy, and (2) “advocacy of election or defeat of 

candidates,” commonly known as express advocacy. This 

distinction is necessary because “[c]andidates, especially 

incumbents, are intimately tied to public issues involving 

legislative issues and governmental actions. Not only do 

candidates campaign on the basis of their positions on various 

public issues, but campaigns themselves generate issues of 

public interest.” Id. at 42. In other words, issue advocacy that 

includes discussion of candidates and issues is essential to 

citizens’ participation in our representative democracy. 

This Court then quoted approvingly the Court of Appeals’ 

recognition that issue advocacy would influence elections: 

“Public discussion of public issues which also are campaign 

issues readily and often unavoidably draws in candidates 

and their positions, their voting records and other official 

conduct. Discussions of those issues, and as well more 

positive efforts to influence public opinion on them, tend 

naturally and inexorably to exert some influence on voting 

at elections.” [Id. at 43 n.50 (citation omitted).] 

Issue advocacy, then, includes discussion of candidates and 

their positions, records, and conduct; it goes beyond mere 

“discussion” to “more positive efforts to influence public 

opinion on them.” These constitutionallyprotected actions may 

election or d efeat, such as ‘vote for,’ . . . .” Id. (emphasis added). 
6 

“exert some influence on voting at elections,” but they are 

protected nevertheless. 

This Court went on in Buckley to flesh out the breadth of 

issue advocacy with a quote from Thomas v. Collins, 323 U.S. 

516, 535 (1945), indicating that express advocacy cannot 

depend on intent or effect and that issue advocacy extends to 

“discussion, laudation, [and] general advocacy,” so that only 

“solicitation” or “invitation” (i.e., “advocacy of election or 

defeat of candidates”) can be regulable express advocacy: 

[W]hether words intended and designed to fall short of 

invitation [to vote for or against a candidate] would miss 

the mark is a question both of intent and of effect. No 

speaker, in such circumstances, safely could assume that 

anything he might say upon the general subject would not 

be understood by some as an invitation. . . . [T]he supposedly clear-cut distinction between discussion, laudation, 

general advocacy, and solicitation puts the speaker in these 

circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference 

may be drawn as to his intent and meaning. 

Such a distinction offers no securityfor free discussion. 

In these conditions it blankets with uncertainty whatever 

may be said. It compels the speaker to hedge and trim. [Id. 

at 43 (quotation marks and citation omitted) (emphasis 

added).] 

So the “free discussion” that requires the “security” of this 

Court’s express advocacy test is this broadly described issue 

advocacy. And the reason this Court was concerned with 

“vagueness” was not only that some language was ambiguous, 

but that the language substantively regulated this “free discussion.” Thus, while the Court spoke of vagueness in these 

passages, there was an underlying overbreadth concern. The 

“[t]he constitutional deficiencies described in Thomas v. Collins 
7 

[to be] avoided,” id. at 43, were not fuzzy words, but the failure 

to protect “discussion, laudation, [and] general advocacy” (i.e., 

issue advocacy) from the regulation. “[A]void[ing]” these 

deficiencies meant avoiding the abridgment of issue advocacy, 

not avoiding a decision on whether there were any deficiencies, 

as Judge Kollar-Kotelly suggests. SA 789sa. Thus, “[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.” Buckley, 424 U.S. at 45. 

Further, since the express advocacy test was narrow and 

citizens remained free “to promote [a] candidate and his views” 

through issue advocacy, this Court fully recognized that it was 

permitting communications that would affect an election: 

It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to 

believe that they would have much difficulty devising 

expenditures that skirted the restriction on express advocacy 

of election or defeat but nevertheless benefitted the candidate’s campaign. [Id.]

8 

But this Court was permitting such unfettered issue advocacy 

because it is vital to our representative democracy: 

Discussion of public issues and debate on the qualifications 

of candidates[, i.e., issue advocacy,] are integral to the 

operation of the system of government established by our 

Constitution. The First Amendment affords the broadest 

protection to such political expression ... “to assure [the] 

unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people.” [Id. at 

14 (citation omitted).] 

8

So studies purportedly showing that issue advertising affects elections 

are irrelevant. Cf. SA 353sa (Henderson ). That effect w as conside red in 

arriving at the express a dvocac y test and cann ot be used to overturn it. 
8 

Thus, “‘there is practicallyuniversal agreement that a major 

purpose of [the First] Amendment was to protect the free 

discussion of governmental affairs . . . of course includ[ing] 

discussions of candidates.’” id. (citation omitted) (emphasis 

added), including the right of citizens to band together to 

engage in issue advocacy.

9 

2. The second provision Buckley considered, § 434(e), 

“require[d] direct disclosure of what an individual or group 

contributes or spends [over $100]” “‘for the purpose of 

. . . influencing’ the nomination or election of candidates for 

federal office.” Buckley, 424 U.S. at 75 (citation omitted). The 

Court said that “the ambiguity of this phrase . . . poses constitutional problems.” Id. at 77. This Court noted that the vagueness 

present was of the same sort encountered in dealing with the 

independent expenditure cap: “[I]t shares the same potential for 

encompassing both issue discussion and advocacy of a political 

result.” Id. at 79. Therefore, the concern about the “ambiguity” 

was over whether the provision was overbroad for sweeping in 

protected issue advocacy – the same concern this Court had just 

addressed with respect to § 608(e)(1). As with the prior 

provision, this Court addressed the overbreath concern by 

applying the express advocacy test: 

To insure that the reach of § 434(e) is not impermissibly 

broad, we construe ‘expenditure’ for purposes of that 

section in the same way we construed the terms of 

9

Buckley recognized the constitutional right of people to associate in 

ideologic al corpor ations for issue a dvocac y: 

The constitutional right of association . . . stem med from the Court’s 

recognition that effective advocacy of both public and private points of 

view, particularly controversial ones, is undeniably enhanced by group 

association. Subsequent decisions have made clear that the First and 

Fourteen th Amendments guarantee freedom to associate with others for 

the common advancement of political beliefs and ideas, a freedom that 

encompasses the right to assoc iate with the po litical party of one ’s 

choice. [ Id. (internal quo tation indicato rs and citation s omitted).] 
9 

§ 608(e)(1) – to reach only funds used for communications 

that expressly advocate the election or defeat of a clearly 

identified candidate.” [Id. at 80 (emphasis added).]10 

MCFL removes any doubt that this Court’s “vagueness” 

concerns in Buckley were focused on protecting issue advocacy 

from overbroad legislation. MCFL said that the express 

advocacy test was imposed on the FECA “expenditure” 

definition “to avoid problems of overbreadth.” 479 U.S. at 248 

(citing Buckley, 424 U.S. at 80). The dichotomy affirmed in 

MCFL was between “‘discussion of issues and candidates and 

advocacy of election or defeat of candidates,’” which it 

established in its introduction of the express advocacy test. Id. 

at 249 (quoting Buckley, 424 U.S. at 42) (emphasis added). 

Removing all doubt, the MCFL Court reiterated the dichotomy 

in other terms with identical meaning: “Buckley adopted the 

‘express advocacy’ test to distinguish discussion of issues and 

candidatesfrommore pointed exhortations to vote for particular 

persons.” Id. MCFL reiterated that the express advocacy test 

required express words of advocacy, such as those in Buckley’s 

footnote 52, which should remove all doubt that some other 

“express advocacy” test can be substituted.11 

10That this Court’s intent was to protect issue advocacy here is further 

borne out by its plain statement that issue advocacy is not mere discussion: 

“As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan 

discussion for it only requires disc losure of tho se expend itures that expre ssly 

advoca te a particular election result.” Buckle y, 424. U.S. at 80 (emphasis 

added). This last phrase, “advocate a particular election result” refers solely 

to that which may be constitutionally regulated under § 608(e)(1), which this 

Court had just said are exp enditures “for commun ications that exp ressly 

advocate the election or defeat of a clearly identified candidate.” Conse ­

quently “advocate a particular election re sult” can only mea n “expressly 

advoca te the election or defeat of a clearly identified candidate.” Judge 

Kollar-K otelly’s effort to draw a false dichotomy between “issue discussion 

and advocacy of a political result” must therefore be rejected. SA 792-93sa. 

11MCFL’s discussion of the express advocacy in MCFL’s newsletter 
10 

In sum, careful textual analysis of Buckley and MCFL 

reveals that this Court established the constitutionally-mandated 

principle that wherever legislation or regulation borders on 

issue advocacy – whether it is § 608(e)(1), § 434(e), or § 441b 

– issue advocacy must remain unfettered and protected by a 

bright-line test that requires explicit words expressly advocating 

the election or defeat of a clearly identified candidate. 

Thus, Judge Kollar-Kotelly unsurprisingly discovered a 

“consensus among the judiciary that courts are bound by 

Buckley and MCFL, which strictly limit the meaning of express 

advocacy.” SA 796sa (internal quotation marks omitted).12 And 

does not expan d the reach of the expre ss advoca cy test. The newsletter 

identified pro-life candidates an d urged the reader to “v ote pro-life.” T his 

Court said this “provides in effect an explicit directive” and the slightly less 

direct exhortation “does not cha nge its essential nature.” Id. at 249 

(emphas es added ). But this doe s not establish a test looking to the “effect” 

or “essence” of a communication, only that if A=B and B=C, then A=C. 

12Lower federal court cases recognizing constitutional protection for 

unfettered issue advocacy and the constitutional mandate for the express 

advocacy test include: Me. Right To Life Comm. v. FEC, 98 F.3d 1 (1st Cir. 

1996); Faucher v. FEC, 928 F.2 d 468 (1 st Cir. 1991 ); Vt. Right to Life 

Comm. v. Sorrell , 221 F.3 d 376 (2 d Cir. 200 0); FEC v. Cent. Long Island 

Tax Reform Immediately Comm., 616 F.2 d 45 (2d Cir. 1980 ); Virginia 

Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) ( VSHL II); 

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

Bartlett , 168 F.3 d 705 (4 th Cir. 199 9); Va. Soc’y For Human Life v. 

Caldwell, 152 F.3 d 268 (4 th Cir. 199 8); FEC v. Christian Action Netwo rk, 

92 F.3d 1178 (4th Cir. 1996) ( CAN I); FEC v . Christian Action Network, 

Inc., 110 F.3 d 1049 (4th Cir. 1997) ( CAN II); Chamber of Commerce v. 

Moore , 288 F.3 d 187 (5 th Cir. 2002 ); Brownsbu rg Area Patrons Affecting 

Change v. Baldw in, 137 F.3 d 503 (7 th Cir. 1998 ); Iowa Right to Life Comm. 

v. Williams, 187 F.3d 963 (8th Cir. 1999) ; California Pro-Life Council v. 

Getman, 328 F.3 d 1088 (9th Cir. 20 03); FEC v. Furgatch, 807 F.2d 857 (9th 

Cir. 1987); Citizens for Responsible Gov’t State Political Action Comm. v. 

Davidson, 236 F.3 d 1174 (10th Cir. 2000 ); Fla. Right to Life v. Lamar, 238 

F.3d 1288 (1 1th Cir. 2001) (affirming Fla. Right to Life v. Mortham, No. 98-

770CIVORL19A, 1999 WL 33204523 (M.D. Fla . 1999)). FEC v. Colo. 
11 

perhaps the textual analysis she found lacking in the myriad 

federal and state, trial and appellate, decisions was missing 

because courts seeking to follow this Court’s holdings, not 

Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D. Co lo. 1993), 

rev’d, 59 F.3d 1015 (1 0th Cir. 19 95), vacated and remanded on other 

grounds, 518 U.S. 604 (1996 ); FEC v. Christian Coalition, 52 F. Supp. 2d 

45 (D.D .C. 1999 ); FEC v. NOW, 713 F. S upp. 42 8 (D.D .C. 1989 ); FEC v. 

AFSCME, 471 F. S upp. 31 5 (D.D .C. 1979 ); Kansans for Life, Inc. v. Gaede, 

38 F. Supp. 2 d 928 (D . Kan. 19 99); Clifton v. FEC, 927 F. Supp. 493 (D. 

Me. 1996), aff’d on other grounds, 114 F.3 d 1309 (1st Cir. 199 7); Planned 

Parenthood Affiliates of M ich. v. Miller, 21 F. Supp. 2d 740 (E.D. M ich. 

1998); Right to Life of Mich., Inc. v. Miller, 23 F. Supp. 2d 766 (W.D. Mich 

1998); N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498 (E.D.N.C. 

2000); Right To Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248 

(S.D.N.Y. 1998); FEC v. Survival Educ. Fund, No. 98 Civ. 0347, 1994 WL 

9658, (S.D.N.Y. Jan. 12, 1994), aff’d in part and rev’d in part on other 

grounds, 65 F.3d 285 (2d Cir. 1995 ); Oklahomans for Life v. Luton, No. 

CIV-00-1163, slip. op. (W.D. Okla. May 25, 2001); West Virginians For 

Life, Inc. v. Sm ith, 919 F. Supp. 954 (S.D. W. Va. 1996). But cf. Wiscons in 

Realtors Ass’n v. P onto , 233 F. S upp. 2d 1078 (W.D. Wis. 2002); Nat’l 

Fed’n of Republican Assemblies v. United States, 218 F. Supp. 2d 1300 

(S.D. Ala. 2002). 

State cases recognizing constitutional protection of unfettered issue 

advocacy include: In Re Texas Association of Business , (no numb er) (167 th 

Judicial Dist. Ct. of Travis County, Texas) slip. op. at 1-4 (order denying 

motion to quash gra nd jury subp oenas and protective o rder), appeal 

docketed, No. 56,045-01, (Tex. Crim. 2003 ) (Cf. Aides S hielded From 

Grand Jury Probe, U.S. Chamber Tells Texas Criminal Court, Mone y & 

Politics Report, June 26, 2003); Governor Gray Davis Committee v. 

American Taxpayers Alliance, 125 Cal. Rptr. 2d 534 (2002); Osterberg v. 

Peca, 12 S.W .3d 31 (T ex. 2000 ); Wash. State Republican Party v. Wash. 

State Public Disclosure Comm’n , 4 P.3d 808 (W ash. 2000 ); Alaska v. 

Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999 ); Brownsbu rg 

Area Patrons Affe cting Ch ange v. B aldwin , 714 N.E. 2d 135 (Ind. 199 9); 

Elections Bd. v. Wisc onsin M fr. & Commerce, 597 N.W.2d 721 (Wisc. 

1999); Kleppe r v. Christian Coalition, 259 A.D.2d 926 (N .Y. App. Div. 

1999); Doe v. Mortham, 708 So. 2d 929 (Fla. 1998); Va. Soc’y for Human 

Life v. Caldw ell, 500 S.E .2d 814 (Va. 199 8); Conn . v. Proto , 526 A.2d 1297 

(Conn. 1987). 
12 

avoid them, found that simply reading Buckley and MCFL 

readily reveals that the Constitution and the needs of the 

republic mandate the express advocacytest to protect unfettered 

issue advocacy – as does the textual analysis here provided. 

B. “Dicta,” is the another means by which Judge KollarKotelly sought to dismiss the acknowledged “consensus” of 

other courts, along with attempting to distinguish some cases. 

SA 796-99sa. One response to the alleged “dicta” in other 

federal courts is that it doesn’t matter because the careful 

textual analysis set out above establishes what this Court said, 

and that holding governs. Another response notes the irony of 

Judge Kollar-Kotelly rejecting as “dicta” the judicial “consensus” while relying on two trial court opinions where discussion 

of the express advocacy test was so obviously obiter dictum.13 

However, all federal appellate courts addressing the issue 

have concluded that Buckley established express advocacy as 

the constitutional standard for regulable political speech. 

“These courts rely primarily on Buckley’s emphasis on (1) the 

need for a bright-line rule demarcating the government’s 

authority to regulate speech and (2) the need to ensure that 

regulation does not impinge on protected issue advocacy.” 

Chamber of Commerce, 288 F.3d at 193. See, e.g. VSHL II, 263 

F.3d at 391-92 (“shift[ing] the focus of the express advocacy 

determination away from the words themselves to the overall 

impressions of the hypothetical, reasonable listener or viewer 

. . . is precisely what Buckley warned against and prohibited”); 

Citizens for Responsible Gov’t, 236 F.3d at 1187, 1193-95 

(statutes unconstitutional that cannot be construed to apply 

“only to expenditures for communications that contain explicit 

13Wiscons in Realtors Ass’n, 233 F.Supp.2d at 10 85 (que stioning in 

obiter dictum whether the ex press advo cacy test is “the definitive test” but 

noting that issue advo cacy is plainly pr otected fro m regulator s); Nat’l Fed’n 

of Republican Assemblies, 218 F. Supp. 2d at 1325 (questioning in obiter 

dictum whether the express advocacy test is constitutionally mandated). 
13 

words advocating the election or defeat of a clearly identified 

candidate”); Vermont Right to Life Comm., 221 F.3d at 386 

(finding parties “in essential agreement that the disclosure 

provisions . . . and reporting provisions . . . are necessarily 

unconstitutional unless they apply only to [communications] 

‘that expressly advocate the election or defeat of a clearly 

identified candidate.’” (emphasis added) (quoting Buckley, 424 

U.S. at 80)); Iowa Right to Life Comm., 187 F.3d at 969-70 

(“communication must contain express language of advocacy 

with an exhortation to elect or defeat a candidate,” and “[t]he 

Supreme Court has made clear that a ‘finding of “express 

advocacy”depend[s] upon the use of language such as ‘vote 

for,’ ‘elect,’ ‘support,’ etc.”) (quoting MCFL, 479 U.S. at 249 

(quoting Buckley, 424 U.S. at 44, n. 52))); Brownsburg Area 

Patrons Affecting Change, 137 F.3d at 506 (“[Buckley] recognized the important First Amendment interest in protecting 

political speech, including discussions surrounding elections 

and candidates.... Because of the vital importance of protecting 

such speech, the Buckley Court articulated what has come to be 

known as the ‘express advocacy’ test ....”); Faucher, 928 F.2d 

at 470 (“The Supreme Court, recognizing that such broad 

language . . . creates the potential for first amendment violations, sought to avoid future conflict by explicitly limiting the 

statute’s prohibition to “express advocacy.”). 

Even the Ninth Circuit in Furgatch, 807 F.2d at 857, 

recognized the binding nature of the express advocacy test, 

although in dicta it discussed the test in ways that seemed 

broader than the Supreme Court’s articulation of the test.14 

Moreover, the Ninth Circuit has just affirmed that it fully 

embraces the Buckley formulation, by declaring that “a close 

14Cf. CAN II, 110 F.3d at 1054 (Furgatch’s holding is: “where political 

communications . . . include an exp licit directive to voters to take some 

[unclear] course of action, . . . ‘context’ . . . ma y be consid ered in determining whether the action urged is the election o r defeat of a . . . can didate . . . .” 
14 

reading of Furgatch indicates that we presumed express 

advocacy must contain some explicit words of advocacy.” 

California Pro-Life Council, 328 F.3d at 1097 (emphasis in 

original). This ruling eliminates any arguable federal circuit 

court support for dividing issue advocacy from express advocacy with a contextual approach, as do both of the BCRA 

“electioneering communication” definitions.15 

The variety of laws, regulations, and fact patterns in which 

the express advocacy test has been applied demonstrates, not an 

opportunity for distinguishing, but rather the broad principle 

that in whatever situation government attempts to restrict 

speech on the border of issue advocacy, it must employ this 

Court’s express advocacy test to avoid abridging free expression and association.16 The more distinctions that are noted, the 

broader this principle grows. 

15Ironically, Judge Kollar-Kotelly repudiated Furgatch, the only opinion 

that formerly gave some support to the two contextual definitions of 

“electioneering communication” in BCRA. 795sa. 

16Judge Kollar-K otelly attempted to distinguish all the cases striking 

down FEC regulations on the basis of one quote from VSHL II, 263 F.3d at 

392, which declared “that courts ‘are bound b y Buckley and MCFL, which 

strictly limit the meaning of ‘express advocacy.’ If change is to come, it must 

come from an imaginative Congress or from further review by the Supreme 

Court.’” 796sa (quoting VSHL II , supra ) (emphasis in opinion). 

But the Fourth Circuit’s statement was made in direct response to the 

FEC’s claim that “‘if the exp ress advoc acy requirem ent is read too narrowly, 

the prohibitions of 2 U.S.C. [§ ] 441b will require little more than careful 

diction and will do almost nothing to prevent millions of dollars from the 

general treasuries of unions and corporations from directly influencing 

federal elections, and from doing so without disclosing to the public the 

source of the influence.’” VSHL II, 263 F.3 d at 392 (citation omitted ). This 

is the same argument the FEC and other Defendants now make, but the 

Fourth Circuit rejected it by asserting th at Buckley and MCFL are binding 

substantive law. That re jection do es not supp ort Judge Kollar-K otelly’s 

effort to distinguish this line of cases as being about agency authority instead 

of constitutional mandate. 
15 

C. Stare decisis requires this Court to follow its holdings 

in Buckley and MCFL that whenever government regulates on 

the border of issue advocacy it must protect issue advocacy 

from abridgment by employing the express advocacy test. 

Neither holding has been “undermined by subsequent 

changes or development in the law.” Patterson v. McLean 

Credit Union, 491 U.S. 164, 173 (1989) (citations omitted). To 

the contrary, the express advocacy test has been woven into the 

web of cases that form the judicial “consensus” that Judge 

Kollar-Kotelly conceded. SA 796sa.17 As noted, even the Ninth 

Circuit on May 8, 2003, noted the array of opinions criticizing 

its seeming failure to fully embrace this Court’s express 

advocacy test and affirmed that it indeed utilizes the “explicit 

words of advocacy” test, just as everyone else. California ProLife Council, 328 F.3d at 1097 (emphasis in original).18 As this 

17Furthermore, Congress has embraced the exp ress advoc acy test, 2 

U.S.C. § 431(17) (“independent expenditure” definition), as have many 

states through their sta tutes. See, e.g., Alaska Stat. §§ 15.13.400(6)(C)(4) 

and (6)(C)(7) (2003); Cal. Gov’t Code § 82031 (2003); Del. Code Ann. 

tit.15, § 8002(10) (2002); Idaho Code § 67-6602(g) (2003); Iowa Code 

§ 56.2(14) (2003); Kan. Stat. Ann. §§ 25-414 3(g)(1)(B ) and (h) (2 002); K y. 

Rev. Stat. Ann. § 1 21.015 (12) (20 02); M inn. Stat. § 10A.0 1(18) (2002); 

Miss. Code Ann. § 23-15-801(j) (200 3); Nev. Re v. Stat. 294A.004 (2003 ); 

N.H. Rev. Stat. Ann. § 664:2(XI) (2002); W is. Stat. § 11.01(16) (2002). 

18Unfettered issue advocacy enjoys international support, wh ich this 

Court found weighty in In Lawrence v. Garner, 539 U.S. ___, 2003 WL 

21467086 (2003) (reversing Bowers v. Hardwick, 478 U.S. 186 (1986) 

(citing a 1981 European Court of Human Rights decision). The same court 

cited in Lawrence also decided in Bowman v. United Kingdom, 26 Eur. C t. 

H.R.1, ¶ 48 (1986), th at a London woman could not be charged with a 

campaign law violation for distributing 1.5 million copies of a voter guide 

telling voters where candidates stood on abortion (without expressly 

advocating anyone’s election), even though it was a “single issue” guide that 

was assumed to be “distribu ted with a view to promoting the election of the 

candidate with the stand on abortion mo st acceptable to the [plaintiff]” and 

“might in fact have the tendency to influence certain voters in different 

directions,” id. ¶ 46, because “freedom of expression constitutes one of the 
16 

Court said of the abortion right in Planned Parenthood of S.E. 

Penn. v. Casey, 505 U.S. 833 (1992), this Court’s express 

advocacy test has been relied upon and woven into the fabric of 

American law and the lives of numerous citizen groups. 

The express advocacy test has not proven to be a “positive 

detriment[s] to coherence and consistency in the law” because 

its “conceptual underpinnings” have been weakened or because 

“later law has rendered it irreconcilable with competing legal 

doctrines or policies.” Patterson, 491 U.S. at 173 (citations 

omitted). Rather, the courts have consistently followed this 

Court’s holdings, creating a judicial “consensus” around the 

express advocacy test. 

Nor has the express advocacy test or its reasoning become 

“outdated after being ‘tested by experience’” or “found to be 

inconsistent with the sense of justice or with the social welfare.” Id. (citations omitted). As already noted, this Court 

foresaw that issue advocacy would affect elections,which is the 

subject of Defendants’ studies, and already considered that fact 

in endorsing the express advocacy test, which it created to give 

issue advocacy necessary breathing room. This makes Defendants’ studies irrelevant. And a “sense of justice” and the 

“social welfare” require that the very essence of our system of 

participatory government not be destroyed by incumbent 

essential foundation s of a demo cratic society, id. ¶ 45, and the government 

had failed to prove that such “‘single issue’ campaign ing . . . would distract 

voters from the politica l platforms wh ich are the ba sis of national p arty 

campaigns to such a degree as would hinder the electoral pro cess,” i.e., 

“‘distort’ election results.” Id. ¶ 47. See also Harper v. Canada, 2002 ABCA 

301 (2002) (declaring that a “polling day blackout” on “election advertising” 

is unconstitutional and striking “election advertising” definition, i.e., 

“tak[ing] a position on an issue with which a registered party or can didate is 

associated ,” id. ¶ 181, under the “minimal impairment” test because the 

definition “encroach[es] upon the freedom of expression of those who seek 

to voice public concerns which are inconsequential to partisan advocacy,” 

id. ¶ 184). 
17 

politicians seeking to silence the amplified voice of the people 

about these politicians and their actions in office. 

Stare decisis is “a cornerstone of our legal system,” Webster 

v. Reproductive Health Services, 492 U.S. 490, 518 (1989), that 

promotes “the evenhanded, predictable, and consistent development of legal principles, reliance on judicial decisions, and the 

actual and perceived integrity of the judicial process,” and it 

strongly counsels against reconsidering precedent. Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996) (quoting Payne 

v. Tennessee, 501 U.S. 808, 827 (1991)) (ellipses omitted). 

Even in constitutional cases, stare decisis “carries such 

persuasive force” that this Court always requires “special 

justification” to depart from precedent. Dickerson v. United 

States, 530 U.S. 428, 443 (2000) (quoting United States v. 

International Business Machines Corp., 517 U.S. 843, 856 

(1996)). There is no “special justification” for overruling the 

express advocacy test of Buckley and MCFL. Buckley and 

MCFL were not “a solitary departure from established law,” 

Seminole Tribe, 517 U.S. at 66; rather, they were a logical 

extension of established law. The express advocacy test has 

proven to be a workable and well-reasoned decision, Payne, 

501 U.S. at 828-30, and created no confusion in the lower 

courts, except perhaps the court below. For those intent on 

following this Court’s mandates about the dictates of the First 

Amendment and the needs of the republic, the express advocacy 

test is a bright line without confusion, and it has fulfilled its 

purpose – protecting issue advocacy from regulation. It should 

be retained, as the overwhelming number of federal and state 

courts have done in weaving a judicial “consensus.” 

D. The primary “electioneering communication” 

definition is therefore unconstitutional for flouting this Court’s 

express advocacytest.19 The primary “electioneering communi19Judge Henderson rightly noted that “refers to” in the primary 
18 

cation” definition provides for a 30/60-day blackout period 

when corporations and labor unions may not use general funds 

to broadcast communications that simply name a federal 

candidate. § 201(a)(i). Only Judge Kollar-Kotelly considered 

this constitutional. SA 12sa. Similar “name or likeness” 

provisions have been struck down by federal courts. See, e.g., 

Perry v. Bartlett, 231 F.3d 155, 159 (4th Cir. 2000); Vermont 

Right to Life Committee v. Sorrell, 221 F.3d 376, 389-90 (2d 

Cir. 2000); Right To Life of Michigan, Inc. v. Miller, 23 F. 

Supp. 2d 766 (W.D. Mich. 1998); Planned Parenthood 

Affiliates of Michigan, Inc. v. Miller, 21 F. Supp. 2d 740 (E.D. 

Mich. 1998). These federal courts have consistently pointed to 

this Court’s express advocacy test as controlling 

The primary “electioneering communication” definition is 

also not narrowly tailored to a compelling interest. While this 

Court held that there is a compelling interest that permits 

regulating express advocacy, it found no such interest for issue 

advocacy. See Buckley, 424 U.S. at 80. But the 30/60-day 

definition suppresses both issue advocacy and express advocacy 

within the gag periods, thereby failing both the compelling 

interest and narrow tailoring prongs of strict scrutiny. 20 

“electioneering communication” definition is also vague, SA 359sa, as 

Plaintiffs complained. D ocket # 63 (M cConnell Plaintiffs’ Second Amended 

Complaint ¶ 50). Jud ge Kollar-K otelly’s defend ed “refer” b y asserting that, 

while “refer” can mean “relate,” “relate” can be defined as making “clear 

and specific men tion.” SA 802sa n.11 6. But the district court failed to so 

construe the primary definition, leaving it vague. 

20“Government may not suppress lawful speech as th e means to suppress 

unlawful speech.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. 

Ct. 1389, 1404 (2002 ). 
19 

Judge Kollar-Kotelly tries to justify the ban21 by claiming 

(1) that corporations and unions are actually doing issue 

advocacy (which this Court said the First Amendment and our 

system of government guaranteed that they could do), (2) that, 

when politicians are grateful for issue advocacy they find 

beneficial, this creates an appearance of corruption that must be 

stopped, and (3) that many of the issue ads that this Court said 

were protected by the First Amendment and our system of 

participatory government are run near elections. SA 804-23sa. 

As to her first and third major points, since the textual 

analysis above establishes that corporations and labor unions 

are constitutionally entitled to discuss candidates and issues in 

ways that may affect elections, there can be no compelling 

interest in stopping them from doing a lot of it at election time, 

when people are especially attuned to things political and public 

issues (from which most promptly tune out immediately after 

the elections). SA 236sa (Henderson’s alternative finding of 

fact, quoting RNC political operations director Terry Nelson 

and finding that “issue advocacy is not as effective in August of 

an election year as it is in October or early November”). 

21As Judge Henderson rightly no tes, SA 34 7sa n.142 , this Court’s 

decision in MCFL rejects the argument that the restriction on use of general 

funds is not truly a “ban” because it allows for advocacy with a segregated 

fund by noting that suc h a prohib ition is a “substantial” restriction. 479 U.S. 

at 252. In any event, it is a total “ban” on the use of general funds, which are 

much easier for nonprofit ideological corporations to acquire than general 

funds. SA 347sa n.142, noting unrebutted evidence of the burden the PAC 

limitation would place on no nprofit organizations becau se of the inability to 

raise funds commensurate with the support of their members for the 

organizations’ advoca cy. Nor is this fact altered by this C ourt’s decisio n in 

FEC v. Beaumont, 123 S. Ct. 2200 (2003), which dealt with the unique issue 

of corpo rate contrib utions, not exp enditures. Beaumont expressed concern 

about “war chests” a nd “cond uits,”neither of wh ich is applicab le to 

expenditu res (because independent expenditures are unlimited and do not 

flow to candidates), leaving only quid pro quo concerns, which do n ot apply 

to indepe ndent exp enditures. Buckley, 424 U.S. at 47. 
20 

Finally, Judge Kollar-Kotelly believes there is a compelling 

interest in regulating issue advocacy that might “earn the 

candidate’s gratitude” because it might create the appearance of 

corruption. SA 854sa. Judge Leon agrees. SA 1135sa. However, 

gratitude is a natural and salutary human reaction to support or 

praise, and officials without gratitude to supporters has traditionally been considered to have a character flaw. Candidates 

are grateful for all forms of help or support, not just praise 

through issue advocacy. Gratitude is inherent in our system of 

representative government, so that the only wayto eliminate the 

gratitude a politician ought to feel toward her supporters is to 

eliminate democracy itself.22 And if “gratitude” creates the 

appearance of corruption, Congress itself must be corrupt, 

because “logrolling” is a way of life. 

The lower court believed this “gratitude” for issue advocacy 

would translate into “access,” which it claims is inherently 

corrupt . See, e.g., SA 1135sa (Leon). But if that were true, then 

lobbyingwouldbe inherently corrupting unless officials provide 

equal time for all views. And the standard political practice of 

charging for fundraisingevents, where one meetsa candidate or 

public official, would also be viewed as inherently corrupting.23 

22The Framers already thought of “gratitude,” a nd it cuts the wrong way 

for Defendants. A Federalist paper dealt with the charge that Members of 

Congress would “be most likely to aim at the ambitious sacrifice of the many 

to the aggrand izement of the few.” The Federa list No. 57 (Alexander 

Hamilton or James Madiso n) . But the au thor specifica lly listed “gratitude” 

as one of the reasons this would not happen. “[W]hat is to restrain the Hou se 

of Representatives from making legal discriminations in favor of themselves 

and a particular class of the society? . . . Duty, gratitude, interest, ambition 

itself, are the chords by which they will be bound to fidelity and sympathy 

with the great mass of the people.” Id. (emphasis added) . Thus, gratitud e to 

the “great mass of the people,” who support and put them in office, provides 

the natural checks and balances and is already built into “the genius of the 

whole system.” Id. 

23In FEC v. Colorado Republican Federal Campaign Committee, 41 F. 
21 

So the key is not whether politicians are grateful to supporters 

and therefore willing to meet and talk with them, but whether 

politicians would only meet with people after extracting 

campaign support. Candidates and public officials do the 

opposite, holding town hall meetings, visiting coffee shops, and 

meeting all the constituents possible, regardless of such support. 

And people get to meet with candidates and public officials 

for many reasons. Celebrities from entertainment and sports, 

reporters and editorial boards of prominent newspapers, and 

influential community leaders can influence elections and get 

special access to elected officials as a result. What about 

campaign volunteers, political consultants and fundraisers for 

a campaign? They influence elections and get access to the 

candidate. If access itself is evil when granted to supporters by 

grateful politicians, then BCRA is unconstitutionally 

underinclusive, vitiating any asserted interest in preventing 

corruption. Republican Party of Minnesota v. White, 536 U.S. 

765 (2002) (judicial candidate rules underinclusive). 

E. The backup “electioneering communication” definition is unconstitutional – both as truncated by the district court 

at Judge Leon’s insistence and as drafted, because it also 

violates this Court’s express advocacy test – is vague, and it is 

not narrowly tailored to a compelling interest. Further Judge 

Leon’s truncation definition is beyond judicial construction 

authority. 

Supp. 2d 1197 (D. Col. 1999 ), the court noted that the “FEC highlights the 

various party-donor programs and the benefits and access to Members of 

Congress which a contributor gains by giving at various levels,” id. at 1203, 

but noted th at preced ent did not su pport a cla im that this is corrup tion: 

Buckley . . . recognized that money, in m any cases, ma y grant access to 

a candidate . It did not, how ever, conc lude that such access is akin to 

corruption or the appearance of corruption. The FEC see ks to broaden 

the definition of corruption to the point that it intersects with the very 

framework of representative government. Corruption cannot be defined 

so broadly.”[Id. at 1209 .] 
22 

In a splintered decision, the district court decided that 

“‘electioneering communication’ means any broadcast, cable, 

or satellite communication which promotes or supports a 

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

(regardless of whether the communication expressly advocates 

a vote for or against a candidate).” § 201(f)(3)(A)(ii).24 

By amputating the last clause, the court made a vague 

definition vaguer, a broad definition broader. The last clause – 

“and which also is suggestive of no plausible meaning other 

than an exhortation to vote for or against a specific candidate” 

– surely had the vagueness problems that Judge Leon identified. 

But it at least required that any “attacking or promoting” of 

candidates have something to do with elections, i.e., “an 

exhortation to vote” for or against a candidate. However, 

amputating this qualifier leaves the definition with no language 

requiring that the candidate be “clearly identified” and with no 

language focusing the communication on voting in elections. 

The result is that a broadcast communication is banned by 

corporations or labor unions only if it attacks or promotes 

someone who happens to be “a candidate” (whether or not 

known to be so), and has nothing necessarily to do with any 

exhortation, voting, or even an election. This is confirmed by 

the parenthetical material of the definition, which proclaims 

that “promotes or supports” or “attacks or opposes” are not 

compassed by the limitations of either express advocacy or 

voting , i.e., “(regardless of whether the communication 

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

24The district court e ntered judgmen t “for Defend ants with regard to 

[Section 203’s] applicability to the backup definition of “electioneering 

communication” as defined in Sectio n 201 o f BCRA , in accorda nce with 

Judge Leon’s Memo randum O pinion.” SA 1382sa (Final Judg ment); see also 

SA 12sa (Per Curiam). Judge Leon upheld the constitutionality of the 

definition of “electionee ring comm unication” o nly without the final clause, 

which he held to be unconstitutionally vague. SA 1165-66sa. 
23 

As a result, the truncated backup definition is entirely 

governed by four unqualified, undefined verbs: promote, 

support, attack, and oppose. Dictionary definitions reveal the 

breathtaking scope of what is prohibited, as well as the vagueness inherent in choosing among possible meanings. 

Judge Leon declared that the phrase he excised “depends on 

a number of variables such as the context of the campaign, the 

issues that are the centerpiece of the campaign, the timing of the 

ad, and the issues with which the candidates areidentified.” SA 

1164sa. The remaining four verbs dependon similar contextual, 

subjective vagaries for determination, but they have the further 

problem of having nothing to do with any election, election 

campaign, or exhortation to vote. The truncated backup 

definition speaks not of supporting or opposing a candidate’s 

election, but only of supporting or opposing a candidate. Judge 

Leon declared that truncating the definition “assures that there 

will be no . . . effect on political discourse unrelated to federal 

elections,” SA 1165sa (emphasis in original), but his truncated 

definition leaves nothing to relate the communication to any 

federal elections. 

Judge Leon’s view is that communicators only need to stick 

to “neutral” statements to avoid opposing or supporting a 

candidate. SA 1163sa. But what is “neutral” is subjective, too. 

Some would consider simply labeling a legislator (and a 

candidate) as “pro-life” or “pro-choice” to be supporting or 

opposing the candidate. Others would declare that supporting 

or opposing a human cloning bill amounts to supporting or 

opposing the candidate. To solve just such problems and to 

keep speakers from having to “hedge and trim,” this Court 

created the “express advocacy” test as the “only” way to 

eliminate overbreadth and vagueness when legislating on the 

border of issue advocacy, infra, which the “electioneering 

communication” definition specifically disclaims. 
24 

Judge Leon also suggested that communicators could 

simply never use a candidate’s name or they could get an FEC 

advisory opinion before communicating. SA 1166sa. This 

means that a citizen group could never broadcast a communication encouragingcitizens to call Senator X to vote for or against 

a bill. The FEC could never issueadvisory opinions fast enough 

to keep up with the fast-breaking, changing need for broadcasting grassroots lobbying communications during an active 

legislative session.25 Such limitations impose enormous burdens 

on core political speech without constitutional warrant.26 

As originallyenacted, the backup “electioneeringcommunication” definition is also unconstitutional. Judge Kollar-Kotelly 

ardentlydefended the primary “electioneering communication” 

definition, then grudgingly joined Judge Leon’s support for the 

backup definition to make a majority to uphold the ban. SA 

885-86sa. Her argument for the primary definition encapsulates 

why the backup definition is unconstitutional: “The expert 

testimony in this case demonstrates the subjective nature of the 

25Similarly, Judge Leon’s use of the AFL-CIO advertisement entitled 

“No Two W ay” as an example of a co mmunic ation that is not “neutra l” 

because it “attacks [a legislator’s] position on the federal budget,” reveals 

the incredible breadth of the concept of oppose/attack in the truncated 

backup definition. SA 1163sa. 

26The statutory truncation was beyond the district court’s authority. Don 

Simon of Comm on Cause , a principle drafter of BCRA, is quoted in a USA 

Today article entitled “C ampaign fina nce hit by ruling” (May 4 , 2003) as 

saying of the truncated definition” that “[w]e got more from the court than 

we ever could have go tten from Congress” and that “people haven’t come to 

grips with . . . how sweeping it is.” “‘Unless it is evident that the Legislature 

would not have enacted those provisions which are within its power, 

independ ently of that which is not, the invalid part may be dropped if what 

is left is fully operative as a law.’” Buckley, 424 U.S. at 108-09 (quoting 

Champlin Refining. v. Corporation Comm’n of Oklahoma, 286 U.S. 210, 

234 (1932)). Because the truncated definition is more expansive than the 

definition Congress enacted, it is certain that Congress would not have 

enacted the definition as truncated. 
25 

effort of trying to capture mental impressions of viewers, and 

illustrates how one person’s genuine issue advertisement can be 

another’s electioneering commercial.” SA 768sa. She refused 

to consider whether “a series of advertisements” would be 

“unfairly captured” by BCRA, because this would “ask[] the 

Court to sit as the viewer and find that these advertisements 

were pure issue advocacy.” SA 855sa (although she inconsistently decided elsewhere whether ads were “genuine” or not, 

SA 859sa). As justification, she said, “The Buckley Court 

warned against a statutory test that relied on the viewer and 

listener’s interpretation of a political message. I have declined, 

therefore, to engage in this exercise.” SA 855sa. 

That is the exercise the backup definition calls for with its 

unconstitutional contextual approach. This Court mandated 

express words of advocacy, and nothing else suffices to protect 

the right of the people to participate in our system of government as guaranteed by the First Amendment. 

Real-lifeillustrations from Plaintiffs’s experience demonstrate the sort of unconstitutional problems the backup definition imposes. During this litigation, National Right to Life 

Committee (NRLC) has been in the midst of congressional 

legislative battles to ban human cloning, to pass the federal 

Unborn Victims of Violence Act, and to pursue other legislative 

interests.27 As part of these campaigns, NRLC planned to run 

broadcast advertisements in the Congressional districts of key 

Members of Congress, naming the members of Congress, many 

or all of whom are candidates, that could be viewed as attacking 

or promoting their positions on these legislative issues. The ads 

would be paid for with general corporate funds and would be 

similar to the AFL-CIO advertisement, “No Two Way,” that 

27 See, e.g., <http://www.capwiz.com/nrlc/issues/alert/?alertid 

=1366326&type=CO> (NRLC legislative action page urging contacts with 

legislators) (visited May 7, 2003). 
26 

Judge Leon found “not neutral.” SA 1163sa. Consequently, 

these ads would be “electioneering communications” and 

NRLC would be prohibited from broadcasting them. 

Nor does the truncated language solve the problem. If, 

contrary to Buckley, citizen groups are left to be judged by what 

others might think of their communications, how will they 

know when, where, and who will decide that a communication 

“is suggestive of no plausible meaning other than an exhortation 

to vote for or against a specific candidate”? “Suggest” means: 

“1. To offer for consideration or action .... 2. To bring or call to 

mind by logic or association; evoke .... 3. To make evident 

indirectly; intimate or imply .... 4. To serve as or provide a 

motive for; prompt or demand ....” American Heritage Dict. 

Eng. Lang. (4th Ed. 2000) <http://www.bartleby. 

com/61/98/S0869800. html> (visited June 27, 2003).28 

Such imprecision “offers no security for free discussion 

... blankets with uncertainty what may be said . . . and compels 

the speaker to hedge and trim.” Buckley, 424 U.S. at 43 

(quotation marks and citation omitted). 

Similarly, Club for Growth, Inc. (CFG) broadcasted 

advertisementssupporting President Bush’s tax cut. One named 

candidate Sen. Tom Daschle and became the subject of a 

complaint by the Democratic Senatorial Campaign Committee 

to the FEC while the truncated backup “electioneering commu28Synonyms of “suggest” are: 

imply, hint, intimate, insinuate. These verbs mean to convey thoughts 

or ideas by indir ection. Sugg est refers to the calling o f something to 

mind as the result of an association of ideas .... To imply is to suggest 

a thought or an idea by letting it be inferred from something else, such 

as a statement, that is more explicit . . . . Hint refers to an oblique or 

covert suggestion that often contains clues .... Intimate applies to 

indirect, subtle expression that often reflects discretion, tact, or reserve 

.... To insinuate is to suggest something, us ually something u npleasant, 

in a covert, sly, and underhan ded man ner .... [Id.] 
27 

nication” definition was in place. Letter from Marc E. Elias, 

Counsel for DSCC, to Lawrence Norton, FEC General Counsel 

(May 13, 2003).29

 CFG believes its advertisement is “neutral” 

and lawful, bit the advertisement depicts a federal candidate and 

could be considered by someone (as happened with the DSCC 

complaint) as not “neutral” under Judge Leon’s criterion for the 

truncated backup definition, or as opposing or attacking the 

candidate and “suggestive” to some audience of no other 

meaning than an exhortation to vote against Sen. Daschle. 

BCRA’s own advocacy groups, who pushed it through 

Congress, demonstrate the lack of a compelling interest in 

preventing corruption and the appearance of corruption for 

BCRA’s “electioneering communication.” These groups 

engaged in the same sort of activity as NRLC and other citizen 

groups, but insist that what they did was not corrupting. 

Common Cause and Campaign for America promoted 

BCRA with the same style of issue advocacy NRLC used to 

oppose BCRA.30 These “reformers” promoted BCRA by 

29The complaint letter gives the following text of the ad: 

President Kennedy cut income taxes and the economy soared. 

President Reagan cut taxes more and crea ted fifteen million new jobs. 

President Bush knows tax cuts create jobs, and that helps balance the 

budget. 

But Sena tor Tom Daschle o pposes the president. 

South Dakota has lost thousand s of jobs, and president Bu sh has a plan 

to help. 

Tell Tom Daschle to support the Kennedy/ Reagan/ Bush tax policy that 

will bring job s back to S outh Dak ota. [Id. at 2]. 

30The League o f Women Vote rs of the United States (LWV) has 

similarly advocated for BCRA-style legislation and has run ads advocating 

it. For example, on October 2, 1997, the LWV issued a press release entitled 

“League Ads Target Maine for Key Campaign Finance Vote” and an ad 

transcript entitled “One Simple Message/Maine.” 9 PCS/MC 1260, 1265 

(Affidavit of Lloyd Leonard on Behalf of League of Women Voters). The 

press release explained that the radio ad targeted “Maine Senators Snowe 

and Collins [who were] regarded as key swing votes on the Lott amend-
28 

arguing that issue advocacy is corrupting, but under oath in 

depositions in this case theyinsisted that theiractivity was done 

with legitimate legislative purpose and was noncorrupting. This 

story is told for its irony and the proposition that assertions 

under oath are more credible – there is no corruption here. 

NRLC has a long history of opposing the sort of campaign 

finance legislation that became BCRA. JA 636-645 (Declaration of David N. O’Steen, Ph.D., Executive Director, National 

Right to Life Committee, Inc., (NRLC Dec.)). Since 1996, 

NRLC has scored congressional votes against BCRA-style 

campaign finance legislation along with votes against abortion, 

infanticide, assisted suicide, and euthanasia as votes aligned 

with NRLC’s position. JA 88, 8 PCS/MC 509. In 1998, Dr. 

O’Steen and Douglas Johnson wrote to Sen. McCain, explaining their opposition to his campaign finance legislation and 

refuting his assertion that such opposition was “ancillary” to 

NRLC’s mission: 

[W]e emphatically disagree with your statement that these 

questions are “ancillary (if that)” to NRLC’s main mission. 

In our view, if citizen groups’ communications to the public 

had been restricted over the past 25 years in the ways that 

you have proposed in successive versions of your legislation, abortion would not be anything like the major public 

policy issue that it is today. Indeed, there are other nations 

which have elected legislatures, but in which elites of the 

political parties and news media have vastlymore power to 

collectively exclude undesired issues from the political 

realm. Efforts to impose such false “consensus” have failed 

in this nation in large part because groups such as NRLC 

have been free to transmit to the public very specific 

information about specific politicians’ positions and votes. 

ment,” which LWV wanted to defeat as a “‘poison pill’ amendment.” Id. 
29 

[8 PCS/MS 487-91. (Letter from David O’Steen & Douglas 

Johnson to Sen. John McCain 5 (Feb. 17, 1998)).] 

NRLC has aired advertisements in opposition to BCRA-style 

campaign finance legislation, and NRL-PAC has aired expressadvocacy ads opposing candidates supporting such legislation. 

JA 640-644 (NRLC Dec. at ¶¶ 78-97 & referenced Exhibits). 

In January 2000, Gov. Bush and Sen. McCain were seeking 

the Republican presidential nomination. NRLC used the 

occasion of national attention on these candidates to continue 

its long-term battleagainst BCRA-style legislation, just as Sen. 

McCain used his national attention to promote McCainFeingold legislation.31 On January 10, 2000, New Hampshire 

Citizens for Life and NRLC issued a press release declaring that 

their PACs were “launch[ing a] new radio ad campaign 

highlighting John McCain’s attacks on free speech about 

politicians” and urging voters to “[l]et John McCain know that 

freedom of speech about politicians is not a joke. Vote for 

somebody else.” JA 643-44 (NRLC Dec. ¶ 95 & Ex. B-36). In 

the same press release, these two organizations announced that 

they were also doing another PAC ad entitled “You Have a 

Right to Remain . . . Silent” that focused on McCain-Feingold 

legislation that would ban mentioning a federal candidate in a 

broadcast communication for 60 days before an election, as 

became law in BCRA. Id. The press release clearly noted the 

31NRL-PAC also opposed Sen. McCain on the ground that he had an 

inferior pro-life record to the other Republican candidates, declaring no 

endorsement for any of the other candidate s because a ll had “good pro-life 

positions.” JA 643 (NRLC Dec. ¶ 92 & E x. B-33). S en. McC ain promp tly 

turned the issue into a campaign-finance deb ate issuing a press release 

erroneo usly claiming that these PAC ads were p aid for with “soft m oney” 

and that his “campaign finance proposals would eliminate this kind of money 

from politics.” JA 643 (NRLC Dec. ¶ 93 & E x. B-34). N RL-PA C prom ptly 

issued a press release reje cting McC ain’s claim that a PAC ad could be paid 

for with “soft money.” JA 643 (NRLC Dec. 93 & Ex. B-34). 
30 

distinction between the express advocacy the PACs were doing 

and the issue advocacy done in the non-PAC ads. Id. 

NRLC believes its activities are non-corrupting: 

NRLC does not believe any of its activities corrupt or 

appear to corrupt any federal, state or local candidates or 

officeholders.NRLCand itsmembers have various interests 

that are served through communications and other activities 

with its members and the general public, and these political 

activities are necessarilyfunded with money. Indeed, NRLC 

believes that its activities, rather than creating an appearance of corruption, instill in the general public a sense of 

confidence that avenues for pursuing legitimate common 

interests are available to all. [JA 660-61 (NRLC Dec. 

¶ 200).] 

Common Cause (“CC) has had “Campaign Finance 

Reform . . . at the heart of what [it] does since its inception” in 

1970. JDT Deposition of Matt Keller (CC Legislative Director) 

17-18 (CC Dep.). “While it has done no broadcast ads – so it 

did no “electioneering communication” – CC has engaged in 

activities that could be interpreted as opposing or promoting 

candidates around election time. These should clearly be 

“corruption” under Defendants’ broad definition of “corruption,” because favored candidates might feel “gratitude” for 

CC’s communications promoting issues the politicians support 

and praising them for doing so. Yet CC insists, under oath, that 

its communications are noncorrupting. 

As the 2000 New Hampshire primaries approached, CC 

“staged an event with Senator[s] McCain and . . . Bradley 

around the issue of Campaign Finance Reform generally” and 

a pledge to support BCRA-style legislation particularly. JDT 

CC Dep. 105. An op-ed, published on CC’s website, extolled 

McCain and Bradley as the presidential candidates who 

understood the need for BCRA-style legislation and who had 
31 

pledged to enact it. JDT CC Dep. Ex. 20. The “purpose was to 

raise the visibility of the issue of Campaign Finance Reform,” 

not to influence a federal election. JDT CC Dep. 106. CC 

acknowledged that it was “possible” that the op-ed piece could 

influence the federal election, but declared, “that was not [its] 

intent.” JDT CC Dep. 107. It disavowed any “intention to 

support . . . candidates,” only “the issue,” although it acknowledged that “[a] possible effect of the support of the issue could 

be interpreted as support of the candidate.” Id.32 

Within 30 days of a primary election and while Gov. Bush 

and Sen. McCain were presidential candidates, CC distributed 

nationwide a press release about Bush’s campaign finance 

proposals subtitled “Proposal ‘Fails Test of Reform.’” JDT CC 

Dep. Ex. 22. The document described Bush’s proposal as 

“flawed,” “fail[ing] the test of reform,” “not even-handed,” and 

“a hodge-podgeof half-steps which would do nothing to further 

real reform.” Id. “The purpose ... was to encourage Governor 

Bush to propose a ... package that was... truly reform,” said CC, 

and “it’s possible that this could influence[] a federal election.” 

JDT CC Dep. 111-12. The statement did not “promote[] or 

support[] a candidate for federal office,” CC testified, although 

a voter could so interpret it, and “it’s possible to read that as 

opposing or ... attacking the proposal put forth by then Gover32CC, in its own name or though its American s4Reform .com pro ject, 

also financed a number o f “Town Hall M eetings” or “Town H all Forums” 

in New Hampshire and other states to promote campaign finance legislation, 

at least one such event coinciding with primary election campaigns and 

several mentioning (and some hav ing present) candidates for Congress in the 

upcoming election, but CC stated there was no intent to influence any 

election or prom ote or oppo se candida tes (although in some cases it admitted 

the activity might be so viewed). JDT CC Dep. 116- 117 & Exhib it 23, p.2 

(N.H., Jan. 13, 20 00); JDT CC Dep. 132-36 & Exhibit 30 (Ark., Jan. 29, 

2001); JDT CC Dep. 136-39 & Exhib it 31 (Ill., Feb. 12, 2001); JDT CC 

Dep. 139-42 & Exhibit 32 (Tenn., Sep. 7, 2001 ). 
32 

nor Bush.” JDT CC Dep. 113. But, declared CC, it was not an 

attack on Governor Bush himself. Id. 

Within 30 days of a primary election, while Sen. Gore was 

a presidential candidate, CC also distributed nationwide a press 

release about Gore’s campaign finance proposals subtitled 

“Gore Sets Forth Innovative Plan for Reform.”JDT CC Dep. 

113-15 & Ex. 23. The release described Gore’s proposal as 

“sending a strong statement,” “innovative and promising,” and 

“seek[ing] to seriously address [campaign finance legislation].” 

“Gore is putting forth strong reform proposals in contrast to ... 

Bush,” CC declared. JDT CC Dep. Ex. 23. “The purpose of the 

press release,” declared CC, “was to highlight ... that ... yet 

another candidate ... was making ... Reform a primary issue in 

his campaign,” not to influence the election, although it “could” 

affect the election.” JDT CC Dep. 115. CC didn’t think the 

release promoted or supported Gore. Id.33 

In March or April 2000, within 30 days of a primary in 

which Gov. Bush was a presidential candidate, CC distributed 

nationwide on its website an op-ed piece entitled “Bush’s 

Campaign Finance Plan Too Weak.” JDT CC Dep. 130-32 & 

Ex. 45. The plan derided Bush’s plan as “keeping up with the 

Jones” and “rearranging the deck chairs on the Titanic,” but CC 

affirmed no intent to influence the election (while acknowledging the communication would possibly do so) or attack or 

33After the 2000 Democratic and Repu blican con ventions and while 

Senators Gore and Lieberman were presidential and vice-presidential 

candidates, CC released nationwide a press release exto lling their comm itment to campaign finance legislation and describ ing Lieberman as “a 

consistent and effective champion of campaign finance reform.” JDT CC 

Dep. 117-20 & Exhibit 24. There was no purpose to influence the election 

or promo te the named candidate s, said CC, b ut this would possibly happen. 

JDT CC Dep. 119-20. 
33 

oppose candidate Bush (although it believed it could be so 

interpreted). JDT CC Dep. 131-32.34 

On October 18, 2000, shortly before the general election, 

CC issued nationwide a press release announcing a “Reform 

Report Card” (grading members of congress on support for 

BCRA-style legislation) and listing signers of CC’s “Public 

Integrity Pledge” (thereby promising to support CC’s favored 

legislation). JDT CC Dep. 119-21 & Ex. 25 & 27.35 The 

scorecard included an “honor roll” of legislators voting CC’s 

way. JDT CC Dep. 127 & Ex. 27. CC affirmed the scorecard’s 

purposewasinforming people about how legislators voted, JDT 

CC Dep. 122, and “encourag[ing] ... Members of Congress to 

vote [right] in the next vote,” JDT CC Dep. at122-23, not 

influencing elections or promoting candidates, but it could be 

so interpreted. JDT CC Dep. 122-125. 

Could these activities affect federal elections? CC declared 

“they could ... impact ... how people vote.” JDT CC Dep. 156. 

Could they be viewed “as either attacking or defending or 

34CC also engaged “50 [to] 70 volunteers who c[a]me in to [CC] every 

week,” JDT CC Dep. 151, in ma king phon ebank ca lls to get CC mem bers to 

call legislators about pending legislation. JDT CC Dep. 151-52 & Exhibits 

41-43. Calls were made employing one pho nebank m emo into Delaware , in 

March 1998, urging Rep. Mike Castle to oppose a certain amendment. JDT 

CC Dep. 152 & Exhibit 42. Rep. Castle was a candidate in the November 

1998 general elec tion. The d eclared p urpose wa s oppos ing a “phon y” bill 

and supporting a proper one, not influencing an election (but CC admitted 

it possibly do so). JDT CC Dep. 152. 

35CC communicated to the public on a “case-by-case basis” about who 

signed the integrity pledge, including communications about who signed and 

didn’t vote as CC wanted. JDT CC Dep. 127. Such communications were 

issued around the time of votes of campaign finance legislation, which could 

coincide with election campaigns. JDT CC Dep. 128. The declared purpose 

of such tactics was not to influence elections or promote or attack candidates, but to “try to get someb ody’s vote.” Id. CC acknowledged that such 

activity could influence elections and could be interpreted as promoting or 

opposin g candida tes. Id. 
34 

promoting an individual candidacy?” Id. “Yes.” Id. But were 

these communications corrupting? CC declared that it did not 

“believe that if a Member of Congress, as a result of [CC’s] 

communications, supported Campaign Finance Reform or 

whatever [CC] w[as] advocating” that “that [would] give rise to 

an appearance of corruption.” JDT CC Dep. 155. 

Campaign for America’s (“CFA”) purpose is promoting 

BCRA-style legislation. JDT Telephonic Deposition of Cheryl 

Perrin (CFA Executive Director) 9 (CFA Dep.). CFA is funded 

primarily or solely by its founder, Jerome Kohlberg, Jr. JDT 

CFA Dep. 10. CFA has broadcast numerous ads promoting 

BCRA-style legislation that mentioned elected officials, some 

of whom were candidates in an upcoming election. See, e.g., 

JDT CFA Dep. Ex. D (joint press release and radio ad scripts by 

CC and CFA). 

CFA published a “Legislative Report Card” giving 

“Thumbs Up” to advocates of BCRA-style legislation, including Senators McCain and Feingold. JDT CFA Dep. Ex.C. CFA 

didn’t intend to influence an election and didn’t believe the 

report could do so. JDT CFA Dep. 26. CFA has also broadcast 

grass-roots-lobbying radio ads mentioning federal legislators by 

name and encouraging listeners to call these legislators and vote 

for BCRA-style legislation or to pressure leaders, e.g., Sen. 

Lott, to hear CFA’s favored legislation. See, e.g., JDT CFA 

Dep. 28-31 & Ex. D (press release and text of ads). CFA said 

that its purpose was educating the public and seeking support 

for BCRA-style legislation, not influencing elections, that these 

ads could not affect federal elections, and that the ads did not 

attack or support any named candidate. JDT CFA Dep. 30. CFA 

declared that, if a legislator did what CFA urged in its ads, that 

there was no corruption because “[t]here would be no gain for 

that on either side.” JDT CFA Dep. 59-60. 
35 

If all the above activity sounds like the busy marketplace of 

ideas in a vibrant democracy, that is because it is. Some of it 

fell within the BCRA blackout periods, but any of it could have, 

depending on when legislative action was occurring. Much of 

this vital political activity would be lost if BCRA were upheld. 

And the fact that both “reform” groups and Plaintiffs engage in 

the same sort of activity belies any claim that the public 

perceives corruption in these activities. Indeed “reform” groups 

themselves do not view such activity as corrupting. 

II. “Soft Money” Bans Are Unconstitutional . . . 

The Title I nonfederal money bans are unconstitutional as 

to national parties, federal officeholders and candidates, and 

state officeholders and candidates. 

A. As to National Parties. Libertarian NationalCommittee 

(LNC) joins the Republican National Committee et al., brief. 

The description of the unique way in which BCRA burdens the 

LNC and legal arguments are provided there and adopted here. 

B. As to Federal Officeholders/ Candidates. 

Rep. Mike Pence36 wants to raise money for nonprofit 

corporations, including Indiana Family Institute (IFI).37 But 

36Rep. Pence is a Member of Congress who associates with nonp rofit 

ideological corporation s to assist them in ra ising funds, as mo re fully 

described in the Declara tion of U.S . Represe ntative Mike Pence (“Pence 

Dec.”), JA 662-67. Rep. Pence alleged that the BCRA chills his ability to 

assist IFI and other nonprofit ideological corporations. JA 663 ( Pence Dec. 

¶ 6). He has assisted in raising funds for organizations including IFI and 

Vanderburgh County Rig ht to Life and w ant to continue the relationship. JA 

662-67 (Pence Dec. ¶¶ 5-22). 

37IFI is a § 501(c)(3), MCF L-type corp oration that ad vocates pr o-family 

issues in the public policy arena, as more fully set out in the Declaration of 

Curt Smith, P resident of In diana F amily Institute, Inc. (IFI Dec.), JA 813-14 

(IFI Dec. ¶¶ 3-7). IFI has a longtime relationship with Mike Pence before he 

was in Congress, which relationship has been used to help raise funds for 
36 

BCRA Title I adds § 323(e)(1)(A), JSA 13a, prohibiting federal 

candidates or officeholders from soliciting for, or directing 

nonfederal funds to, nonprofit organizations for “federal 

election activity” (voter registration within 120 days of an 

election) and voter identification, get-out-the-vote (GOTV) 

activity, activity supporting political parties, or making a 

communications that “refers to” a federal candidate and 

“promotes or supports ... or attacks or opposes” her). 

Section 323(e)(4)(A) permits making “a general solicitation 

of funds” for nonprofit organizations “that does not specify how 

the funds will or should be spent,” provided that the “principal 

purpose” of the organization is not engaging in “federal election 

activity.” Section 323(e)(4)(B) provides that candidates may 

also make solicitations for “federal election activity,”except a 

communication that “refers to” a federal candidate and “promotes or supports ... or attacks or opposes” her, or for organizations whose principal purpose is to engage in such activity, 

provided the solicitation is made only to individuals[] and [] the 

amount solicited fromanyindividual does not exceed $20,000.” 

The district court upheld this provision. SA 5sa (Per 

Curiam). Judge Henderson decided that the provision passed 

strict scrutiny because candidates raising large sums of nonfederal money from corporations couldcreate the appearance of 

corruption, SA 455sa, and “severing the most direct link 

between the federal candidate and the non-federal donor ... can 

serve to prevent the appearance of corruption where it is most 

acute.” SA 457sa. She also decided that this may be the least 

restrictive means of preventing the use of soft money to buy 

influence over officials. SA 458sa. 

Central to Rep. Pence’s claim is the fact Rep. Pence has had 

a ten year relationship with IFI, both he and his wife have 

IFI, and IFI wishes to have Rep. Pe nce continue to assist in raising funds for 

IFI without the restrictions of BCRA. JA 814-15 (IFI Dec. ¶¶ 8-11). 
37 

served on the IFI Board of Advisors, they have supported IFI 

financially, and he has been a featured guest and speaker at IFI 

fundraising events, because he believes in IFI’s mission to focus 

on traditional family values. JA 662-63 (Pence Dec. ¶ 5). Rep. 

Pence and IFI want to continue the relationship they had before 

he became a Member of Congress, with Rep. Pence free to raise 

funds for IFI without restrictions. Because the relationship 

preexisted Rep. Pence’s election to Congress in 2000 and Rep. 

Pence’s present candidacy, JA 662 (Pence Dec. ¶ 2), there is no 

realistic concern that the public will perceive quid pro quo 

corruption in the fundraising relationship – even if he raised 

money for a pro-family or pro-life nonprofit corporation to 

register, identify, and mobilize voters. 

But there is also a problem with what BCRA permits Rep. 

Pence to do. Fundraising events commonly include a presentation on the past or planned activities of the organization, either 

as an oral presentation (often with audio-visual enhancement) 

or in printed form to show what potential donors are supporting 

by their past and anticipated contributions. These activities 

often include (a) public communications (such as grassroots 

lobbying, issue advertising, and voter guides) that refer to a 

clearly identified candidate for federal office; (b) voter registration within 120 days of a federal election, voter identification, 

and GOTV activity. JA 664-65 (Pence Dec. ¶¶ 12-14).38 

38Rep. Pence spoke at Vanderburgh County Right to Life’s annual 

fundraising banquet, a nd VC RTL e ngages in a wide range of these activities 

with respect to fed eral, state, and lo cal elections. IF I engages in some of 

these activities and ha s asserted its intent to continue doing so and to expand 

into doing more of these activities. JA 664-65 (Pence Dec. ¶¶ 9-11, 14). 

Some expressive a ssociations also engage in in dependent expend itures in 

connection with federal ca ndidates, with or without a connected political 

action committee (“PAC”), and some make contributions through their PACs 

to federal candidates. JA 665 (Pence Dec. ¶ 15). 
38 

Rep. Pence’s urging of support for such organizations may 

readily be considered by listeners to be a solicitation for funds 

that will be spent on the “federal election activities,” described 

in oral or written presentations of past and planned activities of 

the group at the fundraising event, even if Rep. Pence expresses 

support for the group in general terms and does not specify how 

the funds will be spent. JA 665-66 (Pence Dec. ¶ 16). Further, 

it is unclear whether the “principal purpose” of an expressive 

association such as IFI or Vanderburgh County Right to Life is 

to engage in “federal election activity,” because “principal 

purpose” is not defined by the BCRA. Must the activity be a 

principal purpose or the principal purpose? Does “principal 

purpose” means the same as “major purpose,” the term used by 

this Court in MCFL, 479 U.S. 238? JA 666 (Pence Dec. ¶ 17). 

The requirement that “the amount solicited from any 

individual during any calendar year does not exceed $20,000” 

is by its terms a limitation on solicitation, not contribution, and 

unconstitutionally exposes Rep. Pence to liability for asking 

individuals for a $20,000 contribution when the individual has 

already been solicited for a contribution of any amount in that 

calendar year. This is exacerbated by the fact that Rep. Pence’s 

solicitations are typically done to groups, where it is impossible 

to know who is in the audience and what solicitations have been 

made already to them. JA 667 (Pence Dec. ¶ 21). 

No corruption or appearance of corruption exists in the 

activity described. This Court protects issue advocacyexpenditures by citizen’s groups and Congressmen have a legitimate 

interest in associating with such groups to advance the public 

issues common to them. Further, nonpartisan voter registration 

and GOTV activity furthers important civic goals. Since none 

of this activity is conducted in a partisan manner or advocates 

the election or defeat of any particular candidate, the connection 

between any prospect of quid pro quo corruption and the 

soliciting of funds for this activity is just too tenuous. 
39 

C. As to State Officeholders/Candidates. As a candidate 

for Alabama Attorney General, William H. Pryor Jr. has made 

many political communications and associations which are 

permitted by the laws of his state, but are restricted by BCRA. 

In violation of § 323(f) and § 301(20)(A)(iii), he has made 

public communications as a candidate and state official that 

refer to candidates for federal office and that promote, support, 

attack or oppose such candidates. JA 705-07 (Declaration of 

William H. Pryor Jr., Attorney General of Alabama (Pryor 

Dec.) ¶ 3, Ex. A-B). His references to candidates are made to 

compare his views to those of the federal candidate or because 

his official position effectively requires it. JA 707-08 (Pryor 

Dec. ¶¶ 4-6). He has also received contributions from state 

committees of national political parties and has spent stateregulated funds for voter registration within 120 days of a 

federal election, for voter identification and GOTV, and for 

generic campaign activities. JA 708-10 (Pryor Dec. ¶¶ 7-11). 

Pryor’s official duties often require him to discuss federal 

candidates in official press releases, congressional testimony, 

correspondence with public officials, and legal briefs. JA 705-

08 (Pryor Dec. ¶¶ 3-5, Ex. C-O). “To fulfill my office as 

Attorney General effectively, I must often refer to federal 

candidates because they offer legal proposals which must be 

analyzed and would affect state law and policy and because they 

often become involved in legal controversies.” JA 708 (Pryor 

Dec. ¶ 6). 

By regulating the activities of candidates for state elective 

office, the BCRA is interfering with the ability of states to enact 

their own campaign finance schemes and has greatly complicating the burden of campaign finance laws on such candidates by 

subjecting them to two separate and often contradictory 

regulatory schemes. If the restrictions on “federal election 

activities” preempts state regulation, differences between state 

and federal approaches will be confusing and undermine the 
40 

state’s ability to design a logical and consistent scheme.39 For 

example, Pryor’s state of Alabama does not follow the federal 

approach of limiting the sizeof non-corporate contributions, but 

instead forbids them from being made while the Legislature is 

in session. Ala. Code § 17-22A-7(b)(2). If the federal law 

preempts Alabama law, an ad by Pryor urging voters to support 

him because he “helped President Bush fight the war on terror” 

would be subject to federal law limiting the size of contributions but not to Alabama’s timing restriction, while an ad that 

does not mention a federal candidate could be paid for only by 

funds raised outside the legislative session, but from contributions of unlimited size. The impact could be even greater in 

states with similar but more restrictive laws. Hence, adding 

phrases like “I’m a Bush Republican” to their communications 

would enable Montana state legislative candidates to exchange 

their state’s $100 per donor contribution limit with BCRA’s 

limits of $2,000 or $5,000. Mont. Code Ann. § 13-37-216. 

An even worse result would occur if these communications 

were subject to both state and federal restrictions. Pryor’s 

communications showing him with President Bush would then 

be subject to the more restrictive aspects of both the federal and 

Alabama schemes. Montana candidates would need to ensure 

that their contributors had complied with federal limitations on 

contributions from political committees and individuals, but 

also raised outside of a legislative session, as required by 

Alabama law. 

This impact would be especially acute in states providing 

public financing to candidates foregoing most private contributions. A Maine state representative candidate is barred from 

39 State laws are pre-empted by (1) “express language in a congressional 

enactmen t,” (2) “implication from the depth and breadth of a congressional 

scheme that occupies the legislative field,” or (3) “ implication because of 

a conflict with a congressional enactment.” Lorillard Tobacco Co. v. Reilly, 

533 U.S. 525, 541 (20 01). 
41 

public funding for accepting more than $500 of private contributions. Me. Rev. Stat. Ann. tit. 21A § 1125(2)(C). A Maine 

state candidate wishing to spend $600 to tout his experience as 

a legislative staffer for Sen. Snowe, which now must be raised 

in accordance with federal law, would need to forego state 

financing to do so. If BCRA preempts state law, the candidate 

could raise unlimited private funds, subject to the much higher 

federal contribution limits, and still be eligible for public 

funding, if he spent the funds on ads mentioning Sen. Snowe 

Besides being complicated and burdensome to state 

candidates, this subjection to federal regulation is also unfair in 

its impact on individual candidates. Consider the potential 

matchup in Indiana’s 2004 gubernatorial election between 

Mitch Daniels, formerly President Bush’s budget director, and 

Joe Andrews, former chairman of the Democratic National 

Committee.40 Because President Bush is a candidate for reelection, Daniels would need to raise federal funds in order to 

discuss his work in the Bush administration or to tout an 

endorsement from his old boss.However, Andrews could freely 

use state-regulated funds to discuss his work with former 

President Clinton. 

Restrictions based on the content of a candidate’s speech 

violate this Court’s maxim that it is the “people individually as 

citizens and candidates ... who must retain control over the 

quantity and range of debate on public issues in a political 

campaign.” Buckley, 424 U.S. at 57. Restricting candidates’ 

speech is especially troublesome because“[t]he role that elected 

officials play in our society makes it all the more imperative 

that they be allowed freely to express themselves on matters of 

current public importance.” Republican Party of Minnesota,536 

40 Matthew Tully, Daniels Dives In; Rival Bows Out, Indianapo lis Star, 

June 10, 2003, <http://www.indystar.com/print/articles /2/049677-9902-

098.html>. 
42 

U.S. at 781-82. In the rare instances when candidates are 

subjected to content-based restrictions, the government bears 

the burden to prove that the challenged regulation is “narrowly 

tailored, to serve ... a compelling state interest.” Id. at 774-75. 

The government “must demonstratethat it does not ‘unnecessarily circumscribe protected expression.’” Id. at 775 (citation 

omitted). When a plausible, less restrictive alternative isoffered 

to a content-based speech restriction – such as the state regulatory schemes that already govern these communications – “it is 

the Government’s obligation to prove that the alternative will 

be ineffective to achieve its goals.” United States v. Playboy 

Entertainment Group, Inc., 529 U.S. 803, 816 (2000). 

In upholding these provisions, the district court, in Judge 

Leon’s opinion, relied upon findings regarding the activities of 

state political parties supporting federal candidates to find that 

this statute was closely drawn to accomplish the federal purpose 

of “guarding against similar conversions of soft money donations to fund communications that are designed to accomplish 

the federal purpose of directly influencing a federal election.” 

SA 1146sa. But the mere potential that these statements could 

be used to influence a federal election is insufficient justification. This Court has long recognized that “[c]andidates ... are 

intimately tied to public issues,” Buckley, 424 U.S. at 42, and 

that the governments’ regulatory interests extended only to 

spending that is “unambiguously related to the campaign of a 

particular federal candidate.” Id. at 80. Despite this Court’s 

warning that “the Government must presentmore than anecdote 

and supposition” to prove the necessity of such statutes, 

Playboy, 529 U.S. at 822, there is no support in logic or 

evidence for the premise that state candidates are likely to divert 

their scarce campaign resources to support federal candidacies 

rather than their own. State candidates invoke the name of 

federal candidates in order to advance their own candidacies, 

a point illustrated by Pryor’s own flyers featuring pictures of 
43 

him shaking hands with President Bush, citing his work on the 

President’s prior campaign and transition team, and quoting 

praise for Pryor from the President and from Alabama’s 

senators. 8 PCS/MC 36-45 (Pryor Dec. Ex. A & B). 

Even more dubious are the restrictions on supposedly 

“federal election activity” by state officeholders – an application ignored by the district court. It is hard to imagine what 

federal interests could justify requiring state officials to fund 

official communications with private campaign contributions 

rather than with public funds authorized by their state legislature. As Pryor explained, “My official duties would be significantly impeded if I were unable to refer to federal candidates 

who sponsor or propose legislation or who are involved in 

litigation that might affect the people of Alabama.” JA 707-08 

(Pryor Dec. ¶ 5). Ironically, by requiring campaign donors to 

pay for communications normally funded by taxes, this provision enhances rather than reduces the role of money in politics. 

III. “Advance Notice” Is Unconstitutional. 

BCRA provides two advance notice disclosure provisions, 

requiring that contracts be treated as actual expenditures. The 

district court found the challenge to § 212 not ripe because of 

FEC regulations requiring disclosure only after an independent 

expenditure has been made. SA 132sa (Per Curiam). NRLC 

Plaintiffs do not appeal this. Section 201(5), JSA 23a, also 

requires such advance notice for contracts to make electioneering communications, which the Court unanimously found 

unconstitutional. SA 12sa, 115sa (Per Curiam). 

Advanced notice of a communication about a politician, by 

requiring the reporting of “contracts” for the communication, 

creates three separate, but substantial problems. First, the 

disclosure of donors subjects these donors to harassment.41 

41The district court upheld the requirement that $1,000 (and up) 

contributors for electionee ring commun ications be re ported, d espite 
44 

Second, it is often unknown in advance whether the communication will actually be made and what the communication, or 

even the “contract” will cost.42 Third, advance notice of a 

communications provide an opportunity for politicians to 

concerns about retaliation and harassme nt expressed by several plaintiffs. SA 

124sa (Per Cur iam) (citing “lack of specific evidence”). There was evidence 

in the record of harassment against NRLC and NRL PAC and interference 

with broadcast advertising arrangements when candidates become aware of 

such communications. JA 632 (NRLC Dec. ¶¶ 26-27, which is summarized 

infra at note 43). 

Also, in Arizona Right to Life PAC v. Bayless , No. 00-CIV-0129-PHXRGS, slip op. at 10 (D. Ariz. A ug. 28, 20 00), rev’d in part on other grounds, 

320 F.3d 10 02 (9th Cir. 2003), the court in the process of granting permanent injunction ag ainst a requir ement “that individual contributor’s names 

and telephone numbers be included on the literature or advertisements of 

political committees who make independent expenditures,” id. at 19 

(emphas is in original), reco unted the ev idence sub mitted by one top 

contributor who had “received harassing phone calls – some threatening 

violence – during the 1998 political campaign as a result of the publication 

of his phone number.” Id. at 10. 

42Two examples from nonbroadcast advocacy illustrate the point. First, 

NRL PAC planned an independent expenditure on printed express advocacy 

pieces in support o f U.S. Sena te candida te John As hcroft in the 2000 

Missouri election. W hen Ashcr oft’s oppo nent died, N RLC d id not think it 

seemly to release the b rochures, e lecting to spend its money on other race s. 

Both contracts and payments were made, but there was no communication, 

and it would have been inacc urate and m isleading to ha ve such “exp enditures” reported as “indepen dent expenditures.” See NRL PAC v. Connor, 323 

F.3d 684 (8th Cir. 2003) (recounting these facts). 

Second, NRL P AC ofte n arranges for telemarketing firms to make 

phone calls into targeted areas at electio n time. The general agre ement is 

made well in advanc e of the electio n, but the agre ement is only for a set 

range of expend itures (low and high ends) an d the rate per call. At this point, 

the amount of money that will be available to spe nd is yet unkno wn, for it 

has not been raised yet, and the state or races are un known. In fac t the state 

or race may not be decided until the day before the phone calling begins, as 

last-minute polling indicates where there is a need. T hus, at the time of the 

agreement for telemarketing services, the total amount to be spent is yet 

unknown, as is the location of the calls. 
45 

dissuade broadcasters and newspapers from carrying communications to which they object.43 

Advance notice provides increased opportunity for such 

mischief, at the expense of First Amendment rights. If broadcasters can be intimidated into canceling advertisements that are 

already in process (as were NRL PAC’s, note 42), it will be far 

easier for intimidation to prevail with the extra time advanced 

notice provides. Many broadcasters would be tempted to reject 

such communications, depriving citizen groups of free speech. 

The ability of Americans to participate in our democracy would 

be undermined. 

IV. Intervenors Lack Article III Standing. 

Senator John McCain, Sen. Russell Feingold, Rep. Christopher Shays, Rep. Martin Meehan, Sen. Olympia Snowe, and 

Sen. James Jeffords (Intervenors) intervened as Defendants in 

the District Court under Fed. R. Civ. P. 24(a)(1), invoking 

43A concrete example occurred to NRL PAC in 1988 in Nevada. James 

Bopp, Jr. & Richard E. Coleson , Comments on Proposed Rules at 11 C.F.R. 

Parts 100, 104, and 109 Regarding Independent Expenditure Reporting, 

<http://www.fec.gov/pdf/nprm/ind_exp/ind_expcomments6-08-01.pdf> 

(visited July 1, 200 3); NRLC Dec. (¶¶ 184-200), JA 658-61. It involves the 

case of National Right to Life PAC v. Friends for Bryan (No. CV-S-88-865-

PMP-(RJJ)), a 1988 case brought in state court by NRL PAC against Nevada 

Governor Richard B ryan’s U.S. Senatorial campaign committee for tortuous 

interference with contractual relations resulting from cancelled broad cast 

arrangem ents for NRL PAC’s independent expenditures due to harassing 

letters from Bryan’s campaign. Other letters usin g the same b oilerplate 

language were used in North D akota and Nebras ka and the so urce of this 

systematic campaign of intimidation was apparently an October 21, 1988, 

form letter prepare d by Rob ert F. Baue r, Counsel to the Demo cratic 

Senatorial Campaign Committee. Similar letters were also sent to stations 

concerning ads by the American M edical Association PAC and the Au to 

Dealers and Drivers for Free Trade PAC. This evidence demonstrates what 

is usually invisible to the public – a widespread practice of well-planned, 

systematic intimidation attempts against broadcasters to gain political 

advantage. 
46 

§ 403(b) (“any member of the House of Representatives . . . or 

Senate shall have the right to intervene either in support or 

opposition to the position of a party to the case regarding the 

constitutionality of the provision or amendment”). In granting 

intervention, the trial court decided the Intervenors have Article 

III standing whether or not such standing is required for 

intervention. Docket # 40 (order granting intervention 5 (May 

3, 2002)). However, Article III standing is required for intervention44 and the Intervenors lack it. 

The Intervenors must satisfy both constitutional and 

prudential requirements for standing. See, e.g., National Credit 

Union Admin. v. First National Bank & Trust Co., 522 U.S. 

1146 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992). Section 403(b), by permitting members of Congress 

to intervene, removes any prudential standing concerns. Raines 

v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“Congress’s decision to 

grant a particular plaintiff the right to challenge an act’s 

constitutionality ... eliminates any prudential standing limitations and significantly lessensthe risk of unwanted conflict with 

the Legislative Branch when the plaintiff brings suit”). However, “Congress cannot erase Article III’sstanding requirements 

by statutorily granting the right to sue a plaintiff who would not 

otherwise have standing.” Id. Contrary to the District Court, 

Intervenors lack Article III standing. 

44Whether proposed Intervenors must have Article III standing in order 

to properly intervene is an issue of first impression, Diamond v. Charles, 

476 U.S. 54, 68-69 and n. 21 (1986), and there is a conflict of circuits in this 

regard. Compare Solid Waste Agency v. U.S. Army Corps of Eng’rs , 101 

F.3d 503, 50 7 (7th Cir. 1 996); Maus olf v. Babb it, 85 F.3d 1295, 1 300 (8th 

Cir. 1996); Building and Con str. Trades Dept., AFL-CIO v. Reich, 40 F.3d 

1275, 1282 (D.C. Cir.1994) with United States Postal Serv. v. Brennan, 579 

F.2d 188, 190 (2d Cir.1978 ); Associated Builders & Contra ctors v. Perry , 

16 F.3d 68 8, 690 (6 th Cir.199 4); Yniguez v. State of Arizona, 939 F.2d 727, 

731 (9th Cir.1991). 
47 

First, they do not satisfy the requirement that one must 

suffer an “injury in fact,” consisting of an “invasion of a legally 

protected interest which is (a) concreteand particularized ... and 

(b) actual or imminent.” Lujan, 504 U.S. at 560 (internal 

quotations and citations omitted). The Intervenors claimed 

injury here – “that they will be forced to raise money in a 

corrupt system in the event the Act is struck down” (Order at 8) 

(emphasis in original) – is neither concrete nor particularized. 

In Raines, 521 U.S. at 829, this Court held that individual 

Members of Congress lacked standing to challenge the constitutionality of the federal Line Item Veto Act, although the Act 

explicitly provided that anyMember might bring suit against it, 

because the Members had alleged no cognizable injuries 

particular to themselves, and their claimed institutional injury 

was widely dispersed and abstract. The Intervenors claim here 

– that without the BCRA, they will have to raise funds in a 

supposedly corrupt system – lacks particularity and concreteness to an even greater degree than the claim of the Raines 

plaintiffs. A line item veto is at least known to diminish the 

specific weight of every legislative vote. This is surely a more 

concrete and particular injury than swimming in the same 

allegedly polluted fund-raising water as all other candidates 

must if BCRA is stricken. If the Raines plaintiffs lacked 

standing, the Intervenors lack it, too. If the Intervenors here 

have standing, then so do all legislators whenever any statute 

that affects them is brought into question before the courts, 

which would elide the entire meaning of the “case and controversy” requirement.45 

45In Karcher v. May, 484 U.S. 72, 78 (1987), this Court held that New 

Jersey legislators had standing to defend a statute that the state’s Attorney 

General refused to defend, if they acted “in their official capacities as 

presiding o fficers on beh alf of the . . . Legislature,” but lost standing when 

acting as individual legislators. Id. In INS v. Chadha, 464 U .S. 919, 9 30, n.5 

(1983), this Court held that Congress was a proper party to defend a one-
48 

Second, the Intervenors lack Article III standing because 

there is no causal connection between their “injury”and the 

conduct complained of. Lujan, 504 U.S. at 560-61. Their 

claimed injury would arise from the unregulated conduct of 

other parties. However, “[i]n those cases where a plaintiff’s 

asserted injury arises from the government’s allegedlyunlawful 

regulation (or lack of regulation) of someone else, it is substantially more difficult to establish injury in fact, for in such cases 

one or more of the essential elements of standing depends on 

the unfettered choices made by independent actors not before 

the courts and whose exercise of broad and legitimate discretion 

the courts cannot presume either to control or to predict.” 

Common Cause v. FEC, 108 F.3d 412, 417 (D.C. Cir. 1997) 

(quotations and citations omitted) (emphasis added). 

However, “because an intervenor participates on equal 

footing with the original parties to a suit, a movant for leave to 

intervene ... must satisfy the same Article III standing requirements as original parties.” Building and Constr. Trades Dept., 

AFL-CIO, 40 F.3d at 1282 (citations omitted). As the Eighth 

Circuit held: 

[A]n Article III case or controversy, once joined by 

intervenors who lack standing, is – put bluntly – no longer 

an Article III case or controversy. An Article III case or 

controversy is one where all parties have standing, and a 

would-be intervenor, because he seeks to participate as a 

party must have standing as well. The Supreme Court has 

made it very clear that “[those] who do not possess Art. III 

standing may not litigate as suitors in the courts of the 

House veto prov ision when a g overnme nt agency refused to defend the 

provision and both Houses authorized the intervention of Congress to defend 

the provision. But Intervenors here have not intervened in any official 

capacity, only as individ ual legislators. And B CRA is ac tively and ably 

defended by the gover nment. 
49 

United States.” [Mausolf, 85 F.3d at 1300 (citation omitted)]. 

The Article III standing requirement cannot be mitigated by 

Congress. Congressional power to create standing is subject to 

the limitations of Article III. See, e.g., Warth v. Seldin, 422 U.S. 

490 (1975); Linda R.S. v. Richard D., 410 U.S. 64 (1973). 

Article III’s injury in fact requirement limits Congress’ power 

to confer standing. Lujan, 504 U.S. at 580-81 (Kennedy, J., 

concurring). “In no event ... may Congress abrogate the Art. III 

minima.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 

91, 100 (1979). Thus, Article III standing is required for 

intervention. Because Intervenors lack standing, the intervention grant must be reversed. 

Conclusion 

For the foregoing reasons, this Court should strike down 

Title I’s bans on “soft money” use by political parties, federal 

officeholders and candidates, state officeholders and candidates, 

Title II’s ban on “electioneering communications,” and 

§ 201(5)’s “advance notice” requirement as violating constitutional free expression and association guarantees. Also, this 

Court should hold that the grant of intervention to Sen. McCain 

et al. was erroneous. 

Respectfully submitted,


James Bopp, Jr., Counsel of Record


Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR FREE SPEECH


BOPP, COLESON & BOSTROM


1 South 6th Street


Terre Haute, IN 47807-3510


812/232-2434 (fax: 812/235-3685)


Counsel for Plaintiffs-Appellants/


Cross-Appellees, 
50