No. 

IN THE 

~ Qtnurt nf flTt lttittb ~!i 

SENATOR JOHN MCCAIN, SENATOR RUSSELL FEINGOLD, 

REPRESENTATIVE CHRISTOPHER SHAYS, 

REPRESENTATIVE MARTIN MEEHAN, SENATOR OLYMPIA 

SNOWE, AND SENATOR JAMES JEFFORDS, 

Appellants, 

v. 

SENATOR MITCH MCCONNELL et al., 

Appellees. 

On Appeal from the 

United States District Court 

for the District of Columbia 

JURISDICTIONAL STATEMENT 

ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park A venue 

New York, NY 10022 

SETH P. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

ERICJ. MOGILNICKI 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 

Additional counsel on inside cover 
BURT NEUBORNE 

FREDERICK A.O. SCHWARZ, JR. 

BRENNAN CENTER FOR 

JUSTICE 

161 Avenue ofthe Americas, 

12th Floor 

New York, NY 10013 

DAVIDJ. HARTH 

CHARLES G. CURTIS, JR. 

MICHELLE M. UMBERGER 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street, Suite 201 

Madison, WI 53703 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & 

OLSONLLP 

355 South Grand Ave. 

35th Floor 

Los Angeles, CA 90071 

E. JOSHUA ROSENKRANZ 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

120 West 45th Street 

New York, NY 10036 

ALAN B. MORRISON 

SCOTT L. NELSON 

PUBLIC CITIZEN LITIGATION 

GROUP 

1600 20th Street, N.W. 

Washington, D.C. 20009 

MICHAEL D. LEFFEL 

ANJA L. MANUEL 

A. KRISAN PATTERSON 

JENNIFER L. MUELLER 

STACY E. BECK 

JERROD C. PATTERSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

FRED WERTHEIMER 

ALEXANDRA EDSALL 

DEMOCRACY 21 

1825 Eye Street, N.W. 

Suite 400 

Washington, D.C. 20006 

TREVOR POTTER 

GLENM. SHOR 

CAMPAIGN LEGAL CENTER 

1101 Connecticut Ave., NW 

Suite 330 

Washington, D.C. 20036 
QUESTIONS PRESENTED 

Whether the three-judge district court erred in 

invalidating on First Amendment grounds portions of the 

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. 

No. 107-155, 116 Stat. 81, including provisions addressing: 

1. the raising, directing, transferring, and use of funds 

by political parties, federal candidates, and federal 

officeholders (BCRA § 101); 

2. the use of funds from corporate and labor union 

general treasuries to finance broadcast advertisements that 

are intended or likely to influence federal elections, and 

disclosure requirements for all such broadcast 

advertisements (BCRA §§ 201, 203, 204); and 

3. the ability of political parties to make both 

"independent" and "coordinated" expenditures to support 

the campaigns of candidates they have nominated to seek 

federal office (BCRA § 213). 

(i) 
11 

PARTIES TO THE PROCEEDINGS 

The appellants who are parties to this Jurisdictional 

Statement are six Members of Congress who intervened as 

defendants in the district court in support of BCRA's 

constitutionality pursuant to BCRA § 403(b): Senator John 

McCain; Senator Russell D. Feingold; Representative 

Christopher Shays; Representative Martin Meehan; Senator 

Olympia J. Snowe; and Senator James Jeffords. For ease of 

reference, these appellants will hereafter be referred to as 

the "intervenor appellants." The following persons and 

entities were also defendants in the district court: the 

Federal Election Commission (FEC) and David W. Mason, 

Ellen L. Weintraub, Danny L. McDonald, Bradley A. Smith, 

Scott E. Thomas, and Michael E. Toner, in their capacities as 

Commissioners of the FEC; John D. Ashcroft, in his capacity 

as Attorney General of the United States; the United States 

Department of Justice; the Federal Communications 

Commission; and the United States of America. Current 

FEC Commissioners Weintraub and Toner replaced former 

Commissioners Karl J. Sandstrom and Darryl R. Wold, who 

were originally named as defendants. 

The appellees here, who were plaintiffs in the district 

court, are Senator Mitch McConnell; Representative Bob 

Barr; Representative Mike Pence; Alabama Attorney 

General Bill Pryor; Libertarian National Committee, Inc.; 

American Civil Liberties Union; Associated Builders and 

Contractors, Inc.; Associated Builders and Contractors 

Political Action Committee; Center for Individual Freedom; 

Club for Growth, Inc.; Indiana Family Institute, Inc.; 

National Right to Life Committee, Inc.; National Right to 

Life Educational Trust Fund; National Right to Life 

Political Action Committee; National Right to Work 

Committee; 60 Plus Association, Inc.; Southeastern Legal 

Foundation, Inc.; U.S. d/b/a ProENGLISH; Thomas E. 

Mcinerney; Barret Austin O'Brock; Trevor M. Southerland; 

National Rifle Association of America; National Rifle 

Association Political Victory Fund; Emily Echols, a minor 

child, by and through her next friends Tim and Wendy 
iii 

Echols; Hannah McDow, a minor child, by and through her 

next friends Tim and Donna McDow; Isaac McDow, a minor 

child, by and through his next friends Tim and Donna 

McDow; Jessica Mitchell, a minor child, by and through her 

next friends Chuck and Pam Mitchell; Daniel Solid, a minor 

child, by and through his next friends Kevin and Bonnie 

Solid; Zachary C. White, a minor child, by and through his 

next friends John and Cynthia White; Republican National 

Committee (RNC); Mike Duncan as member and Treasurer 

of the RNC; Republican Party of Colorado; Republican 

Party of Ohio; Republican Party of New Mexico; Dallas 

County (Iowa) Republican County Central Committee; 

California Democratic Party; Art Torres; Yolo County 

Democratic Central Committee; California Republican 

Party; Shawn Steel; Timothy J. Morgan; Barbara Alby; 

Santa Cruz County Republican Central Committee; Douglas 

R. Boyd, Sr.; Victoria Jackson Gray Adams; Carrie Bolton; 

Cynthia Brown; Derek Cressman; Victoria Fitzgerald; 

Anurada Joshi; Peter Kostmayer; Nancy Russell; Kate 

Seely-Kirk; Rose Taylor; Stephanie L. Wilson; California 

Public Interest Research Group; Massachusetts Public 

Interest Research Group; New Jersey Public Interest 

Research Group; United States Public Interest Research 

Group; The Fannie Lou Hamer Project; Association of 

Community Organizers for Reform Now; Chamber of 

Commerce of the United States; National Association of 

Manufacturers; U.S. Chamber Political Action Committee; 

American Federation of Labor and Congress of Industrial 

Organizations (AFL-CIO); AFL-CIO Committee on Political 

Education Political Contributions Committee; 

Representative Ron Paul; Gun Owners of America, Inc.; Gun 

Owners of America Political Victory Fund; Real Campaign 

Reform.Org; Citizens United; Citizens United Political 

Victory Fund; Michael Cloud; Carla Howell; Representative 

Bennie G. Thompson; Representative Earl F. Hilliard; and 

National Association of Broadcasters. 
TABLE OF CONTENTS 

Page 

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

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

OPINIONS BELOW .............................................................. ! 

JURISDICTION ..................................................................... ! 

CONSTITUTIONAL AND STATUTORY PROVISIONS 

INVOLVED ........................................................................... ! 

STATEMENT ........................................................................ 2 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL .. 18 

CONCLUSION .................................................................... 29 

APPENDIX A ...................................................................... la 

(iv) 
v 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Austin v. Michigan Chamber of Commerce, 

494 u.s. 652 (1990) ............................................ 18, 20, 23, 24 

Buckley v. Valeo, 

424 U.S. 1 (1976) ......................................................... passim 

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975), affd in part, rev'd 

in part on other grounds by 424 U.S. 1 (1976) ................. 4 

California Medical Association v. FEC, 

453 u.s. 182 (1981) .............................................................. 18 

FEC v. Colorado Republican Federal Campaign 

Committee, 

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

FEC v. Massachusetts Citizens for Life, Inc., 

479 u.s. 238 (1986) .................................................. 14, 18,20 

FEC v. National Conservative PAC, 

470 u.s. 480 (1985) .............................................................. 18 

FEC v. National Right to Work Committee, 

459 u.s. 197 (1982) ............................................ 18, 19, 20,23 

First National Bank of Boston v. Bellotti, 

435 u.s. 765 (1987) .............................................................. 20 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000) ..................................................... passim 

Pipefitters Local Union No. 562 v. United States, 

407 u.s. 385 (1972) .............................................................. 20 

Republican National Committee v. FEC, 

487 F. Supp. 280 (S.D.N.Y.), 

affd, 445 U.S. 955 (1980) .................................................... 27 

United States v. UAW-CIO, 

352 u.s. 567 (1957) .............................................................. 20 
vi 

TABLE OF AUTHORITIES-Continued 

CONSTITUTION, STATUTES AND REGULATIONS 

Page(s) 

U.S. Const.: 

Art. III .................................................................................... 15 

Amend I ......................................................................... passim 

Bipartisan Campaign Reform Act of 2002, Pub. I. No. 

107-155, 116 Stat. 81 .................................................... passim 

§ 101(a) ..................................................................................... 8 

§ 101(b) ..................................................................................... 8 

§ 203 ........................................................................................ 14 

§ 204 ........................................................................................ 14 

§ 213 .................................................................................. 18, 26 

§ 214 ........................................................................................ 14 

§ 307(a), (b) ............................................................................ 11 

§ 403(a)(3) ................................................................................ 1 

§ 403(a)(4) .............................................................................. 20 

§ 403(b) ................................................................................... 15 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 .......................................... passim 

2 u.s.a.§ 403(a)(3) ............................................................... 1 

2 u.s.a.§ 431(17) ................................................ 7, 13, 17,26 

2 u.s.a.§ 431(20)(A) ............................................... 12, 22-23 

2 u.s. c.§ 431(20)(A)(i) ...................................................... 12 

2 u.s.a. § 431(20)(A)(ii) ..................................................... 12 

2 u.s.a.§ 431(20)(B) .......................................................... 12 

2 u.s.a. § 434(£) ................................................................... 14 

2 u.s.a.§ 434(£)(1)-(4) ........................................................ 17 

2 u.s.a.§ 434(£)(6)-(7) ........................................................ 17 

2 U .S.C. § 434(f)(3)(A)(i) .............................................. 13, 17 

2 u.s.a.§ 434(f)(3)(A)(ii) ............................................. 14, 17 

2 u.s.a.§ 434(f)(3)(B) ........................................................ 13 

2 u.s.a.§ 434(f)(3)(c) .......................................................... 13 

2 u.s.a.§ 441a(a)(1) ........................................................... 11 

2 u.s.a. § 441a(a)(1)(A)-(B) ............................................... 11 

2 u.s.a.§ 441a(a)(2) ........................................................... 26 
Vll 

TABLE OF AUTHORITIES-Continued 

Page(s) 

2 U.S.C. § 441a(a)(3) ........................................................... 11 

2 U.S.C. § 441a(c)-(d) .......................................................... 27 

2 U.S.C. § 441a(d) .................................................... 15, 26, 27 

2 u.s.c. § 441b .................................................................... 14 

2 u.s.c. § 441b(b)(2) ........................................................... 14 

2 U.S.C. § 441b(c) ................................................................ 14 

2 U.S.C. § 441b(c)(2) ........................................................... 14 

2 U.S.C. § 441b(c)(6) ........................................................... 14 

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

2 u.s.c. § 441i(b) ................................................................. 12 

2 U.S.C. § 441i(b)(2)(A) ...................................................... 12 

2 U.S.C. § 441i(b)(2)(B)(i), (ii) ............................................ 12 

2 U.S.C. § 441i(b)(2)(B)(iv) ................................................ 12 

2 U.S.C. § 441i(b)(2)(C) ...................................................... 12 

2 u.s.c. § 441i(d) ................................................................. 13 

2 U.S.C. § 441i(e)(1) ............................................................ 11 

28 u.s.c. § 1253 ........................................................................... 1 

Federal Election Campaign Act Amendments of 197 4, 

Pub. L. No. 93-443, 88 Stat. 1263 ........................................ 4 

Labor Management Relations Act of 1947, 

Pub. L. No. 80-101, § 304, 61 Stat. 159 ............................... 4 

Presidential Election Campaign Fund Act, 

Pub. L. No. 89-909, §§ 301-305, 80 Stat. 1587 .................... 5 

Tillman Act, Pub. L. No. 59-36, 34 Stat. 864 (1907) ................ 4 

War Labor Disputes Act of 1943, 

Pub. L. No. 89, § 9, 57 Stat. 167 ......................................... 4 
Vlll 

TABLE OF AUTHORITIES-Continued 

Page(s) 

11 C.F.R. § 100.23 (2002) .......................................................... 10 

11 C.F.R. § 106.5(a)(2) (2002) ................................................... 23 

11 C.F.R. § 106.5(b) (2002) ......................................................... 8 

11 C.F.R. § 106.5(c)(2) (2002) ..................................................... 8 

11 C.F.R. § 106.5(d)(1) (2002) ..................................................... 8 

11 C.F.R. § 114.10 (2003) .......................................................... 14 

65 Fed. Reg. 76138 (Dec. 6, 2000) ............................................ 10 

66 Fed. Reg. 23537 (May 9, 2001) ............................................ 10 

67 Fed. Reg. 49064 (Jul. 29, 2002) ............................................. 8 

148 Cong. Rec. S2144 (daily ed. Mar. 20, 2002) ..................... 10 

Fed. R. Civ. P. 24(a)(1) ............................................................. 15 

MISCELLANEOUS 

Federal Election Commission, Campaign ~tide for 

Political Party Committees 48 (Aug. 1996) ....................... 8 

Report of the Watergate Special Prosecution 

Force (Oct. 1975) ..................................................................... 4 

Statement of Reasons of Commissioner Thomas & 

Chairman McDonald in In re The Coalition, et al., 

MUR 4624 (FEC Sept. 7, 2001) .......................................... 10 

Statement of Reasons of Commissioners Thomas and 

McDonald in In re Republicans for Clean Air, 

MUR 4982 (FEC Apr. 23, 2002) ......................................... 10 
No. 

SENATOR JOHN MCCAIN, SENATOR RUSSELL FEINGOLD, 

REPRESENTATIVE CHRISTOPHER SHA YS, 

REPRESENTATIVE MARTIN MEEHAN, SENATOR OLYMPIA 

SNOWE, AND SENATOR JAMES JEFFORDS, 

Appellants, 

v. 

SENATOR MITCH MCCONNELL et al., 

Appellees. 

OPINIONS BELOW 

The opinions of the district court are not yet reported. 

In accordance with this Court's order of May 15, 2003 (Nos. 

02-M-98 and 02-M-99), they are omitted from the appendix 

bound together with this jurisdictional statement, but will 

be reprinted in a single appendix to be filed on behalf of all 

appellants. 

JURISDICTION 

The judgment of the district court was entered on May 

2, 2003. Intervenor appellants filed a notice of appeal (App., 

infra, 1a-3a) on May 5, 2003. The jurisdiction of this Court 

rests on Section 403(a)(3) of the Bipartisan Campaign 

Reform Act of 2002 (BCRA or Act), Pub. L. No. 107-155, 

§ 403(a)(3), 116 Stat. 113-114, and 28 U.S.C. § 1253. 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

Pertinent constitutional and statutory provisions are 

reproduced at pages 14a-86a of the appendix to the 

jurisdictional statement filed by the Solicitor General in 

(1) 
2 

FEC v. McConnell, also seeking review of the judgment 

below (Gov't J.S.). 

STATEMENT 

In enacting the Bipartisan Campaign Reform Act, 

Congress heeded an admonition delivered by this Court that 

could not have been more relevant or timely. "Leave the 

perception of impropriety unanswered," this Court warned, 

"and the cynical assumption that large donors call the tune 

could jeopardize the willingness of voters to take part in 

democratic governance." Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377, 390 (2000). By 2002, when 

BCRA was enacted, massive circumvention of the federal 

campaign finance laws had produced a profound public 

cynicism about the very integrity of our political system. As 

a bipartisan study credited by the court below found, an 

overwhelming majority of Americans had come to believe 

that Members of Congress disproportionately heed the 

views of large donors and sometimes vote based on what 

these large contributors want - even if it is not what most 

constituents want, or what the Members think is best for the 1 country. 

The source of this public cynicism was plain for all to 

see. As the massive record before Congress and the district 

court overwhelmingly demonstrates, political parties, 

corporations, unions, and wealthy individuals have used 

1 See Kollar-Kotelly op. 180-82 (citing Mark Mellman & Richard 

Wirthlin, Research Findings of a Telephone Study Among 1300 Adult 

Americans (Sept. 23, 2002) at 2-3, 6-9); Leon op. 243-47 (same). The study 

revealed that 71 percent of the public believes that Members of Congress 

sometimes vote the way large donors to their parties want, even when it 

is not what most people in their districts want and even when it is not 

what Members think is best for the country. See Kollar-Kotelly op. 181-

82; Leon op. 246. Eighty-four percent believes that "Members of 

Congress will be more likely to listen to those who give money to their 

political party in response to their solicitations for large donations," 

Kollar-Kotelly op. 182; Leon op. 246; and 68 percent believes big donors 

block decisions that could improve their everyday lives, see Kollar-Kotelly 

op. 182; Leon op. 247. 
3 

unregulated "soft money" contributions, supposed "issue 

ads," and coordinated expenditures to circumvent 

protections against corruption and the appearance of 

corruption that Congress enacted over the course of almost 

a century. 

• In the 2000 election cycle alone, for example, 

corporations, unions, and wealthy individuals 

contributed almost a half billion dollars in soft 

money to the national parties. See Leon op. 122; 

Kollar-Kotelly op. 20. Although these unregulated 

contributions were based on the fiction that they had 

nothing to do with federal elections, "it was clear that 

parties were using corporate and labor union soft 

money donations to influence federal elections . . . 

and not primarily for state and local elections." Leon 

op. 138-39; see also Kollar-Kotelly op. 80-82. 

• Similarly, although federal law has long barred 

corporations and unions from using their general 

treasury funds to influence federal elections, 

corporations and unions have spent millions of dollars 

of such funds over the past several years on so-called 

"issue ads," which avoid words like "vote for" or 

"vote against," but which "have not only been crafted 

for the specific purpose of directly affecting federal 

elections, but have been very successful in doing just 

that." Leon op. 89; see also Kollar-Kotelly op. 218-19, 

398. 

The Bipartisan Campaign Reform Act was Congress's 

response to this evisceration of its regulatory regime. The 

opponents of BCRA assail it as an epochal change in the law. 

In reality, the core provisions of the Act simply restore the 

law to what it was before wholesale exploitation of loopholes 

and regulatory rulings rendered impotent longstanding 

safeguards against corruption and the appearance of 

corruption in campaign finance. At issue in this case is 

whether Congress may enact meaningful campaign finance 

laws or must, instead, accept the rampant circumvention 

that has made a mockery of the law in recent years. 
4 

1. a. FECA and Buckley v. Valeo. "The history of 

federal campaign finance regulation ... is a long-standing 

and recurring problem that has challenged our government 

for nearly half of the life of our Republic." Per Curiam op. 

16. Since the Administration of Theodore Roosevelt, 

Congress has legislated to address the problems of 

corruption and the appearance of corruption in our federal 

political process presented by the amassing of large war 

chests to influence elections and federal officeholders. 

The Tillman Act of 1907 prohibited corporations from 

making contributions in connection with federal election 

campaigns. Act of Jan. 26, 1907, ch. 420, 34 Stat. 864. By 

1947, Congress had expanded that prohibition to include 

expenditures designed to influence federal elections, and had 

extended the ban on both contributions and expenditures to 

labor unions as well as corporations. War Labor Disputes 

Act of 1943, Pub. L. No. 89; § 9, 57 Stat. 167 (amending Sec. 

313 of Federal Corrupt Practices Act); Labor Management 

Relations Act of 1947, Pub. L. No. 80-101, § 304, 61 Stat. 159 

(same). These restrictions on the use of general corporate or 

union funds to influence federal elections were eventually 

transferred to the Federal Election Campaign Act (FECA). 

See Pub. L. No. 92-225, 86 Stat. 3 (codified as amended at 2 

U.S.C. § 431 et seq.). 

The Watergate investigations disclosed campaign 

finance abuses that mobilized public and legislative opinion 

in favor of further reform.2 In response, Congress acted to 

limit campaign contributions and expenditures; to require 

expanded disclosure of campaign contributions and 

expenditures; and to establish a Federal Election 

Commission (FEC) to administer and to enforce the law. 

Federal Election Campaign Act Amendments of 1974, Pub. 

L. No. 93-443, 88 Stat. 1263. 

2 See, e.g., Buckley v. Valeo, 519 F.2d 821, 839-40 (D.C. Cir. 1975), 

affd in part, rev'd in part on other grounds by Buckley v. Valeo, 424 U.S. 

1 (1976); Report of the Watergate Special Prosecution Force at 71-85 (Oct. 

1975). 
5 

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

generally upheld the new law's limits on contributions to 

candidates and parties (id. at 23-38); struck down its limits 

on campaign expenditures, whether by candidates 

themselves or by others acting independently of candidates 

(id. at 39-50); and upheld its requirements for disclosure of 

contributions and expenditures by candidates, political 

parties, and other political committees (id. at 60-74). In 

addition, the Court upheld the Presidential Election 

Campaign Fund Act, Pub. L. No. 89-909, §§ 301-305,80 Stat. 

1587 (codified as amended at 26 U.S.C. §§ 9001-9042 (2002), 

which provided a public financing system for presidential 

elections. Buckley, 424 U.S. at 85-109. 

b. The rise of soft money. The fundamental tenet of 

federal campaign finance laws, as sustained in this Court's 

decision in Buckley, has long been that the threat of actual 

or apparent corruption of federal elections and officeholders 

can be minimized by regulating the source and amount of 

political contributions made to influence federal elections. 

Over time, however, this tenet was undermined - not by 

any rule of constitutional law, but by the development of the 

soft money loophole. The political parties and federal 

candidates took advantage of that loophole to raise and 

spend massive amounts of federally unregulated 

contributions to influence federal elections. Typically, 

corporations, unions, and wealthy individuals would make 

unregulated contributions to the national parties, often at 

the behest of federal officeholders, on the pretense that 

these funds would not be used to influence federal elections. 

The funds would then be transferred to state party 

committees, which would use the funds - along with a mix 

of "hard money" (i.e., money raised according to FECA's 

regulations) - to run so-called "issue ads" about federal 

candidates or to engage in other election activity that 

indisputably influenced federal elections. 

Shortly after this Court issued its decision in Buckley, a 

state party asked the FEC whether it could spend corporate 

funds on party activities that influence federal elections and 
6 

also influence state elections. In response, the FEC advised 

that federal law barred the use of any "corporate/union 

treasury funds ... to fund any portion of a registration or 

get-out-the-vote drive conducted by a political party." Adv. 

Op. 1976-72 (emphasis added). Two years later, however, 

and without any explanation, the FEC reversed its position. 

In place of its prior determination that no corporate or union 

funds could be used to finance any activities that influence 

federal elections, the FEC adopted the fiction of "allocation." 

Under this fiction, funds used for a single political activity 

that influenced both federal and state elections were divided 

into separate state and federal components. Corporate and 

union funds were placed in the state (or soft money) 

component, and their expenditure on the mixed-purpose 

activity was deemed, contrary to fact, not to influence the 

federal election. See Adv. Op. 1978-10. 

Undermining the purpose of FECA, this administrative 

interpretation of the law opened the door to allow the 

political parties to raise huge contributions, used for the 

purpose of influencing federal elections, without complying 

with federal rules limiting the size of individual 

contributions and prohibiting corporate and union 

contributions. As committees in both the Senate and House 

of Representatives concluded after conducting "extensive 

investigations" into the 1996 federal elections, "permitting 

nonfederal donations to political parties eviscerated FECA's 

longstanding ability to prevent corporate and labor union 

treasury funds from influencing federal elections." Per 

Curiam op. 39. 

National party soft-money fundraising and spending 

grew substantially in the 1980s and early 1990s, from an 

estimated total of $19 million in 1980 to $45 million in 1988 to 

$80 million in 1992. See Per Curiam op. 34, 36-37. By the 

end of the 1992 election, a major share of "non-federal" funds 

was in fact being spent for the purpose of influencing federal 

elections. See Per Curiam op. 36-37. 

The trend accelerated dramatically in the 1996 

presidential election. Prior to that time, it had been 
7 

assumed that, while parties could use soft money in voter 

mobilization efforts, they could not substitute it for hard 

money in the area of funding candidate-specific mass 

communications. Starting in August of 1995, however, the 

Democratic party committees raised and spent substantial 

amounts of soft money on television advertisements 

prominently featuring President Clinton or his expected 

opponent Senator Dole, see Per Curiam op. 37, and that 

discussed issues that were expected to be of significance in 

the upcoming election. On the theory that these "issue ads" 

were not campaign expenditures under FECA because (i) 

they were run by the party (not the campaign) and (ii) they 

did not use specific words "expressly advocating" the 

President's re-election, see 2 U.S.C. § 431(17), the party 

funded them as it would have funded generic party 

advertising with a mixture of hard and soft money. See 

Per Curiam op. 37-38 & nn.14-15. The Republican National 

Committee followed suit and announced it was devoting $20 

million to an "issue advocacy" campaign featuring its 

presidential candidate. See id. at. 37 -38; Leon op. 125; 

Kollar-Kotelly op. 24. 

In the 1996 election cycle, national parties spent $272 

million in soft money - more than three times as much as in 

1992. See Leon op. 121-22; Kollar-Kotelly op. 19-20. In the 

2000 presidential election, soft money fundraising and 

spending by the national parties reached $498 million - 42 

percent of their total spending. See Per Curiam op. 40. To 

raise a half-billion dollars, the national parties turned to 

large donors: 60 percent of the soft money they raised in the 

2000 cycle came from just 800 donors, including 435 

corporations, unions, and other organizations and 365 

individuals, each contributing at least $120,000. See 

Henderson op. 139-40; Leon op. 122-23. 

Finally, the soft money loophole operated to turn state 

and local parties into outposts of the national parties in the 

race to use federally unregulated funds in ever-growing 

amounts to influence federal elections. Because the FEC 

adopted allocation rules that permitted state and local 
8 

parties to spend a greater percentage of soft money on 

mixed-purpose activities than their national party 

counterparts,3 the parties quickly learned to raise both hard 

and soft money at the national level, and then transfer it to 

state parties to fund activities that influenced federal 

elections. See Per Curiam op. 38-39; Leon op.174-76; KollarKotelly op. 49-52. This maneuver permitted them to better 

leverage their soft money expenditures by requiring a 

smaller hard money share of the mix. See Per Curiam op. 36, 

38-39. As a result, in 1992, almost $15 million was 

transferred to state parties - principally in states that were 

battlegrounds in the federal presidential election. Id. at 37. 

In 1996, the national parties transferred $115 million in soft 

money to their state committees, which accounted for twothirds of state party soft money expenditures. See Leon op. 

121-22; Kollar-Kotelly op. 19-20. By the 2000 election, this 

amount more than doubled, with the national parties 

transferring $280 million in soft money - over half of the 

soft money raised by the national parties - to take 

advantage of the more favorable allocation rules at the state 

level. See Leon op. 122-23; Kollar-Kotelly op. 20-22. 

'l Before BCRA went into effect, allocation rules required that 

national parties (other than the House or Senate campaign committees) 

use 60 percent hard money (65 percent hard money during a presidential 

election year) for "issue ads." See 11 C.F.R. § 106.5(b) (2002) (superseded 

by BCRA § 101(a), effective Nov. 6, 2002 (see 67 Fed. Reg. 49064, 49112-

16)). The House and Senate campaign committees were required to use a 

minimum of 65 percent hard money for generic voter drives and 

administrative expenses (including "issue ads"). See 11 C.F.R. § 

106.5(c)(2) (2002), S1tperseded by BCRA § 101(a) (see 11 C.F.R. 300.10) 

(2002)). By contrast, the hard money percentage required for state party 

committees for expenditures on generic voter drives and administrative 

expenses (including "issue ads") was based on the ratio of federal 

candidates to state candidates on the ballot and was therefore typically 

much lower than 60 percent under the allocation rules. Many state parties 

could, in some elections, spend almost two-thirds soft money. See 11 

C.F.R. § 106.5(d)(1) (2002) (superseded by BCRA § 101(b)); see also 

Federal Election Commission, Campaign Guide for Political Party 

Committees 48 (Aug. 1996). 
9 

c. The Rise of Sham "Issue Advocacy." Beginning in 

the 1996 election cycle, corporations, labor unions, and other 

non-party interest groups also discovered how to circumvent 

FECA's source limitations and disclosure requirements by 

running millions of dollars' worth of candidate-specific "issue 

ads." These advertisements were targeted at key federal 

elections and were clearly intended to support or oppose 

specific federal candidates, in open derogation of the law's 

intent. Nevertheless, so long as the advertisements omitted 

specific words of "express advocacy" such as "vote for" or 

"vote against," amounts spent to produce and air them were 

deemed to fall outside FECA's statutory definition of 

"independent expenditures." See Leon op. 263-64, 322-23; 

Kollar-Kotelly op. 296-300, 339, 386-408; Per Curiam op. 41-

42. 

The result was the wholesale collapse of two key aspects 

of campaign finance law. First, corporations and unions used 

the advertisements to deploy their general treasury funds 

(as opposed to "PAC" funds raised from voluntary, 

individual contributions made to separate segregated funds 

specifically for political use) to participate directly in federal 

candidate elections - something otherwise prohibited since 

the 1940s. Second, groups and individuals collected and 

spent unlimited amounts for federal campaign activity, 

without public disclosure of the source, nature, or amount of 

those expenditures. See Per Curiam op. 41-42; KollarKotelly op. 217-19, 389-92; Leon op. 263-64. 

As the court below found, "the factual record 

unequivocally establishes that" advertisements of this sort 

"have not only been crafted for the specific purpose of 

directly affecting federal elections, but have been very 

successful in doing just that." Leon op. 89; see also KollarKotelly op. 395-98. Groups that wanted to influence federal 

elections, without complying with FECA's source 

restrictions and disclosure requirements, discovered that 

the statutory "express advocacy" test was, in the memorable 

phrase of one NRA official, a "wall . . . built of the same 

sturdy material as the emperor's clothing. Everyone sees it. 
10 

No one believes it." Kollar-Kotelly 234 (citation omitted); 

Leon op. 261 (citation omitted). 

d. Coordinated Expenditures. The soft money and 

sham "issue ad" evasions were further exacerbated by a 

breakdown in the regulation of "coordinated expenditures." 

Although this Court, Congress, and the FEC had long 

recognized the importance of vigorously policing "attempts 

to circumvent [FECA] through prearranged or coordinated 

expenditures amounting to disguised contributions," 

Buckley, 424 U.S. at 47, a divided FEC in late 2000 

promulgated new regulations that redefined "coordination" 

much more narrowly in the context of "general public 

political communications."4 These rules were extensively 

criticized as "render[ing] the coordination standard - and 

thus, the contribution limits - meaningless."5 In addition, 

the political parties were able to take advantage of a special 

privilege under FECA to make large coordinated 

expenditures with their nominees, while making purportedly 

"independent" expenditures on behalf of those same 

nominees during the same campaign.6 

2. BCRA. Congress responded to these wholesale 

evasions of the Nation's campaign finance laws by enacting 

BCRA. We will not duplicate here the Solicitor General's 

full description of the relevant provisions of the Act. See 

Gov't J.S. 7-16. We set out only a brief summary of the 

4 See 65 Fed. Reg. 76138 (Dec. 6, 2000); see also 66 Fed. Reg. 23537 

(May 9, 2001) (final rule and effective date); 11 C.F.R. § 100.23 (repealed 

by BCRA § 214(b)). 5 Statement of Reasons of Commissioner Thomas and Chairman 

McDonald in In re The Coalition, et al., MUR 4624, at 8 (FEC Sept. 7, 

2001); see also id. at 12; Statement of Reasons of Commissioners Thomas 

and McDonald in In re Republicans for Clean Air, MUR 4982, at 9-10 

(FEC Apr. 23, 2002) (detailing various ways in which "[t]he Commission's 

new test for coordination weakens important provisions of [FECA]"). 6 148 Cong. Rec. S2144 (daily ed. Mar. 20, 2002) (statement of Sen. 

McCain) (discussing problem of "one arm of the party ... coordinating 

with a candidate while another arm of the same party purports to operate 

independently of such candidate" (emphasis added)). 
11 

principal provisions of Titles I and II, which respond directly 

to the developments in campaign finance practices described 

above. 

a. Title I of BCRA addresses the circumvention of 

FECA through the raising and use of soft money. 

Recognizing the central role of the national parties in 

exploiting what had become a massive loophole and the need 

for a comprehensive solution to avoid further evasion of the 

law, BCRA bars the national party committees from 

soliciting, receiving, or spending soft money; transferring it 

to a state party or other entity; or directing a soft money 

contribution to some other recipient.7 BCRA also imposes 

comparable restrictions on federal candidates and 

officeholders.8 At the same time, BCRA raises the hard 

money limits on contributions by individuals to candidates 

(from $1,000 to $2,000 per election) and to national party 

committees (from $20,000 to $25,000 per year), and raises the 

aggregate cap on contributions by individuals to candidates 

and party committees (from $50,000 to $95,000 over a twoyear cycle).9 

In light of the substantial use of soft money 

contributions by state parties to influence federal elections, 

Congress also restricted the use of soft money for specified 

state or local party activities that affect federal elections. 

Although federal law has long applied to the use of 

contributions by state parties for activities affecting federal 

elections, BCRA recognized that revised rules were needed 

to prevent continued circumvention of federal law. The Act 

thus requires that state and local committees use hard 

money to pay for four categories of "Federal election 

activity": (1) voter registration activity during the 120 days 

7 See 2 U.S.C. § 441i(a). 8 See 2 U.S.C. § 441i(e)(l). 9 Cornpare 2 U.S.C. § 441a(a)(l)(A)-(B), and 2 U.S.C. § 441a(a)(3) 

with 2 U.S.C. § 441a(a)(l) (2002), and 2 U.S.C. § 441a(a)(3) (2002) 

(arnended by BCRA § 307(a), (b)). 
12 

immediately before a regularly scheduled federal election; 

(2) voter identification, get-out-the-vote (GOTV) drives, and 

generic campaign activity conducted in connection with an 

election in which a candidate for federal office is on the 

ballot; (3) public communications that promote, support, 

attack, or oppose a clearly identified candidate for federal 

office; and (4) the services of state party employees who 

spend more than 25 percent of their time on activities in 

connection with a federal election. 10 

At the same time, BCRA leaves state and local parties 

free to raise all the funds state law permits and to pay for 

purely state election activities with whatever funds state 

law allows. The Act specifically excludes from the definition 

of "Federal election activity": (1) public communications 

that refer solely to a clearly identified candidate for state or 

local office and that do not constitute a federal election 

activity; (2) contributions to candidates for state and local 

office, so long as the contribution is not designated for a 

federal election activity; (3) the costs of state, district, or 

local political conventions; and (4) the costs of grassroots 

campaign materials that name or depict only candidates for 

state or local office. 11 

Finally, to prevent further evasion of the federal 

campaign finance laws, Title I of BCRA bars political parties 

from soliciting funds for, or making donations to, certain taxHl See 2 U.S.C. § 441i(b); 2 U.S.C. § 431(20)(A). Under the so-called 

Levin Amendment, state and local committees may use, in addition to 

hard money, soft money contributions of up to $10,000 per year to pay for 

a portion of certain federal election activities, so long as the money is 

raised by the state or local party committee making the expenditure. See 

2 U.S.C. § 441i(b)(2)(A), (B)(iv), (C). Levin Amendment funds may be 

used only for those federal election activities (described in 2 U.S.C. 

§ 431(20)(A)(i) and (ii)) that neither mention federal candidates nor involve 

broadcast media (except in the case of a communication which refers 

solely to a clearly identified candidate for state or local office). See 2 

U.S. C. § 441i(b)(2)(B)(i) and (ii). 11 See 2 U.S. C. § 431(20)(B). 
13 

exempt organizations that make expenditures in connection 

with federal elections. 12 

b. Subtitle II(A) of BCRA addresses the problem of 

sham "issue ads" designed to influence federal elections, 

funded by corporations and unions from their general 

treasury funds, and often run under assumed names without 

compliance with FECA's disclosure requirements. 

In place of the FECA's openly-mocked "express 

advocacy" standard, see 2 U.S.C. § 431(17), BCRA adopts a 

precisely-defined category of "electioneering 

communications"13 that must comply with Congress's 

longstanding disclosure rules and restrictions on the use of 

general corporate and union funds. An advertisement is an 

"electioneering communication" if, but only if, it: 

• is broadcast by television, radio, cable or satellite; 

• refers to a "clearly identified candidate" for federal 

office; 

• runs in the 60 days before a general election, or the 30 

days before a primary; and 

• is targeted to the identified candidate's electorate. 14 

BCRA does not prohibit the amng of any 

advertisement. It requires any person or group spending 

more than $10,000 on "electioneering communications" in a 

calendar year to file reports with the FEC providing 

information relating to its financing and sponsorship of the 

12 See 2 U.S.C. § 441i(d). 1

> See 2 U.S.C. § 434(t)(3)(A)(i). 14 Specifically, except for advertisements that refer to a candidate for 

President or Vice President, an advertisement must reach at least 50,000 

persons in a relevant state or district to be covered. 2 U.S.C. 

§ 434(t)(3)(c). The statutory definition also excludes news stories and 

editorials; communications that are required to be paid for with hard 

money under another provision of the Act; and communications relating to 

certain candidate debates. It gives the FEC authority to exempt other 

communications under certain circumstances. See 2 U.S. C. § 434(t)(3)(B). 
14 

advertisement.15 And, it requires unions and corporations 

that wish to sponsor "electioneering communications" to do 

so with money that is voluntarily and deliberately 

contributed for political purposes by individual employees, 

members, shareholders, or other organizational 

constituents.16 

BCRA also establishes a back-up definition of 

"electioneering communications," applicable only if the 

principal definition is held to be unconstitutional. Under the 

back-up definition, "the term 'electioneering communication' 

means any broadcast, cable, or satellite communication 

which promotes or supports a candidate for [federal] office, 

or attacks or opposes a candidate for that office (regardless 

of whether the communication expressly advocates a vote 

for or against a candidate) and which also is suggestive of no 

plausible meaning other than an exhortation to vote for or 

against a specific candidate." 2 U.S.C. § 434(f)(3)(A)(ii). 

c. Subtitle II(B) of BCRA addresses "independent and 

coordinated expenditures." Among other things, Section 214 

repeals the revised and narrowed definition of 

"coordination" adopted by the FEC in 2000 and instructs the 

FEC to engage in a new rulemaking. Section 213 further 

15 See 2 U.S.C. § 434(£). 16 See BCRA § 203, amending 2 U.S.C. § 441b(b)(2) and adding 

§ 441b(c). Although BCRA Section 203 enacts a provision, 2 U.S.C. 

§ 441b(c)(2), that would grant a limited exemption for certain political and 

other nonprofit organizations that are organized as corporations, that 

exemption is effectively withdrawn by BCRA § 204 (sometimes known as 

the Wellstone Amendment), enacting 2 U.S.C. § 441b(c)(6). However, 

under the FEC's regulations, an MCFL incorporated tax-exempt 

organization, see FEC v. Massachusetts Citizens for Life, Inc. 479 U.S. 

238, 264 (1986), may use its treasury funds to finance either express 

advocacy or electioneering communications. See 11 C.F.R. § 114.10 (2003). 

The intervenor appellants agree with the Solicitor General that 

Congress did not intend for BCRA to override the so-called MCFL 

exception to 2 U.S.C. § 441b, and, thus, for the same reasons given by the 

federal appellants, do not challenge the district court's holding that 

BCRA's "electioneering communication" provisions cannot be applied to 

MCFL corporations. See Gov't J.S. at 24 n.8. 
15 

provides that, after a political party has chosen its nominee, 

a party committee may not make coordinated expenditures 

on behalf of that nominee under 2 U.S.C. § 441a(d) while also 

purporting to make independent expenditures on behalf of 

that same nominee during the same election cycle. 

3. The present litigation. Immediately after President 

Bush signed BCRA into law, a number of parties filed 

challenges, raising a host of constitutional claims. The threejudge district court consolidated the cases for all purposes 

and granted the motion of the intervenor appellants to 

intervene as of right to defend the constitutionality of the 

Act. See Orders of May 3 and May 10, 2002 (granting 

intervention); BCRA § 403(b) (providing for intervention as 

of right by Members of Congress); Fed. R. Civ. P. 24(a)(1). 17 

The consolidated cases were submitted to the district court 

on a massive documentary record consisting of written 

declarations, expert reports, documents designated by the 

various parties, and designated portions of the transcripts of 

depositions conducted by the parties outside the presence of 

the district court. The district court issued its judgment on 

May 2, 2003, sustaining many of the most important 

provisions of BCRA but declaring other significant portions 

of the law unconstitutional. 

a. With respect to Title I, the district court upheld 

BCRA's ban on the raising or use of soft money by federal 

candidates and officeholders (and entities subject to their 

17 The district court unanimously held that, even assuming that an 

intervening party must establish Article III standing, the intervenor 

appellants had done so. "[A]s opposed to members of the general public, 

the movants have a concrete, direct, and personal stake - as candidates 

and potential candidates - in the outcome of a constitutional challenge to 

a law regulating the processes by which they may attain office. . .. '[I]t is 

relatively self-evident that the people who have the most to gain and lose 

from the criteria governing [the electoral process] are the candidates 

themselves."' Order of May 3, 2002, at 7 (citation omitted); see also id. at 8 

(finding that intervenor appellants also met Article III's redressability 

requirement); Buckley, 424 U.S. at 7-8, 12 & n.ll (recognizing 

participation of candidates and elected officials in campaign finance 

litigation). 
16 

control)18 and the use of soft money contributions by state 

candidates for public communications that promote, support, 

attack, or oppose clearly identified candidates for federal 

office. See Per Curiam op. 7. It also upheld BCRA's core 

restriction on the use of soft money contributions by national 

parties for "public communication[s] that refer[] to a clearly 

identified candidate for Federal office" and that promote, 

support, attack, or oppose that candidate. See Per Curiam 

op. 5-6. 19 Yet, attempting to draw an elusive and unsound 

line between activities that are "directly" targeted at federal 

elections (such as advertisements about federal candidates) 

and other activities that necessarily affect federal elections 

and also affect state elections (such as "generic" GOTV 

drives and advertisements), the district court struck down 

the remainder of BCRA's restriction on raising and spending 

soft money by national parties. See id. at 5-7. Similarly, the 

district court upheld BCRA's related restriction on the use 

by state and local parties of soft money contributions for 

"public communications" that promote, support, attack, or 

oppose clearly identified candidates for federal office, and 

struck down the remainder of the state-party soft money 

provisiOn. See id. at 6-7. The court also struck down 

BCRA's ban on the solicitation or donation of funds by 

political parties to certain tax-exempt organizations that 

engage in activities in connection with federal elections. See 

id. 

18 In sustaining this ban, Judge Henderson erroneously concluded 

that "the non-essential phrase 'including funds for any Federal election 

activity"' should be severed from the provision. Henderson op. 316 n.173. 

This clause should be restored to the provision. 19 Judge Henderson would have held that all of the national party 

soft money ban is unconstitutional. Judge Kollar-Kotelly, in contrast, 

would have upheld the national soft money ban in its entirety. Judge 

Leon, in his decisive opinion, upheld the national soft money ban, but only 

with respect to funds used for "public communications" (as described in 2 

U.S. C. § 431(20)(A)(iii)). In other respects, he joined Judge Henderson in 

concluding that the national soft money ban is unconstitutional. See Per 

Curiam op. 5-6. 
17 

b. As for Title II(A), which brings statutorily defined 

"electioneering communications" under the scope of FECA, 

the district court rejected the plaintiffs' contention that the 

so-called "express advocacy," 2 U.S.C. § 431(17), or "magic 

words" standard, see Buckley, 424 U.S. at 44 n.52, imposes a 

constitutional straitjacket that would preclude Congress 

from legislating in a manner that effectively prevents 

corporations and unions from spending their general 

treasury funds to influence federal elections. See KollarKotelly op. 363-70 (joined by Judge Leon). And, as the court 

recognized, an overwhelming record before Congress and 

the court had established that the express advocacy test had 

been rendered utterly meaningless - to the point that 

thousands of advertisements that patently had the purpose 

and effect of influencing federal elections were not covered 

by FECA and that even candidates who are indisputably 

running election advertisements typically do not use these 

words. See Leon op. 89, 251-61; Kollar-Kotelly op. 220-21. 

Two judges on the panel nonetheless struck down the 

primary definition of "electioneering communication" (as 

defined by 2 U.S.C. § 434(f)(3)(A)(i)), although "for different 

reasons." Leon op. 73. A different combination of judges 

upheld the "back-up" definition (2 U.S.C. § 434(f)(3)(A)(ii)), 

except for striking the last phrase of the definition - "and 

which also is suggestive of no plausible meaning other than 

an exhortation to vote for or against a specific candidate."20 

The court upheld BCRA's disclosure requirements (2 U.S.C. 

§ 434(f)(1)-(4), (6)-(7)) for electioneering communications21 

20 Judge Henderson would have struck both definitions of 

"electioneering communications" in their entirety. See Per Curiam op. 8. 

Judge Kollar-Kotelly would have upheld both definitions in their entirety, 

although she concurred ~ith respect to Judge Leon's opinion on the 

alternative definition solely because of Judge Leon's decision striking the 

primary definition. See id; see also Leon op. 93-95 (adopting "saving 

construction" of "electioneering communications"). 21 "Electioneering communications" again assumes the meaning of 

the alternative definition, as further defined by Judge Leon. See supra 

note 20. 
18 

except as to disclosure of "contracts to disburse" funds for 

an electioneering communication. See Per Curiam op. 120-

24. The court upheld BCRA Section 204 (the "Wellstone 

Amendment"), which applies Title II's "electioneering 

communication" prov1swns to certain nonprofit 

organizations, except insofar as it covered so-called "MCFL 

organizations." Per Curiam op. 9; see also FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 264 

(1986) (MCFL). 

c. Concerning Title II(B), the district court sustained 

the constitutionality of several coordination provisions and 

held that the challenges to others are nonjusticiable. See 

Per Curiam op. 9-10, 140-69. The court struck down BCRA 

Section 213, however, concluding that it is unconstitutional 

to require parties to "choose between making coordinated 

expenditures under the Party Expenditures Provision or 

unlimited independent expenditures on behalf of their 

[nominated] federal candidates." /d. at 10. 

THE QUESTIONS PRESENTED ARE 

SUBSTANTIAL 

This Court has repeatedly held that Congress has 

sufficient constitutional authority, consistent with the First 

Amendment, to protect the political process from the 

corrosive influence of campaign finance practices that 

threaten our democracy,22 and to take steps to prevent the 

circumvention of the Nation's campaign finance laws.23 In 

enacting BCRA, Congress adhered to this settled doctrine. 

It did not attempt to re-invent campaign finance regulation, 

22 See Buckley v. Valeo, 424 U.S. 1, 20, 26-28 (1976); FEC v. National 

Conservative PAC, 470 U.S. 480, 496-97 (1985); FEC v. Colorado 

Republican Fed. Campaign Comm., 533 U.S. 431, 440-444 (2001) 

(Colorado II); see also Attstin v. Michigan Chamber of Commerce, 494 

U.S. 652, 666-69 (1990); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 

377, 392-94 (2000) (Shrink Missouri). 23 Colorado II, 533 U.S. at 456, 465; see also FEC v. National Right 

to Work Comm., 459 U.S. 197, 210 (1982); California Med. Ass'n v. FEC, 

453 U.S. 182, 198-199 (1981); Bttckley, 424 U.S. at 35-38. 
19 

but rather acted to repair laws that have been in place and 

have controlled the conduct of federal election activity for 

decades. 

In many respects, a majority of the three-judge district 

court recognized both the desperate need for congressional 

action and Congress's broad authority to protect the 

integrity of the federal political system. Even to the extent 

the district court struck down provisions of BCRA, it did not 

take fundamental issue with the record of circumvention or 

with Congress's authority to enact legislation to prevent 

future circumvention of the law. 

In striking down portions of the soft money rules, the 

primary definition of "electioneering communication," and 

the requirement that political parties elect either to make 

"coordinated" or "independent" expenditures, however, the 

district court went seriously astray. A majority of the court 

failed to accord appropriate weight to Congress's substantial 

experience in matters relating to campaign finance and the 

years of analysis, hearings, and debate that informed 

Congress's judgment. The majority also failed to heed this 

Court's admonition that judges should not "second guess a 

legislative determination as to the need for prophylactic 

measures where corruption is the evil feared." FEC v. 

National Right to Work Comm., 459 U.S. 197, 210 (1982). 

Most troublesome, by second guessing the Congress, the 

court's judgment, if uncorrected, leaves the door open for 

continued circumvention of the federal campaign finance 

laws and for continued public cynicism regarding federal 

elections and officeholders. If a legislative and judicial 

record has ever justified the adoption of comprehensive, 

prophylactic measures to prevent actual and apparent 

corruption in elections and government, it is set forth in this 

case. 

Accordingly, the intervenor appellants respectfully 

request that the Court note probable jurisdiction with 

respect to those portions of the district court's decision 

holding certain provisions of BCRA unconstitutional and set 

this and related appeals for briefing and argument in 
20 

accordance with Congress's direction "to expedite to the 

greatest possible extent the disposition of th[is] action and 

appeal." BCRA § 403(a)(4). 

a. Title I- Soft Money. In Buckley v. Valeo, 424 U.S. 

at 12-59, this Court held that the First Amendment permits 

more extensive limitation of political contributions than of 

political expenditures, and the Court has repeatedly 

sustained limitations on contributions to candidates, parties, 

and political committees. See, e.g., FEC v. Colorado 

Republican Fed. Campaign Comm., 533 U.S. 431,457 (2001) 

(Colorado II); Nixon v. Shrink Missouri Gov't PAC, 528 

U.S. 377, 382 (2000). Buckley itself, of course, upheld limits 

on the amount an individual may contribute to a political 

party in support of its federal electoral activities. See 424 

U.S. at 26-36,38. In addition, federal law has long contained 

an outright prohibition on contributions by corporations and 

labor unions to political parties in connection with federal 

elections, and this Court has never called the 

constitutionality of those restrictions into doubt. See Austin 

v. Michigan Chamber of Commerce, 494 U.S. 652,661 (1990); 

MCFL, 479 U.S. 256-59; NRWC, 459 U.S. at 209-10 (1982); 

First National Bank of Boston v. Bellotti, 435 U.S. 765, 788 

n.26 (1987); Pipefitters Local Union No. 562 v. United 

States, 407 U.S. 385, 415-16 (1972); United States v. UAWCIO, 352 U.S. 567,578-79 (1957). The Court has emphasized, 

moreover, that contributions to the political parties 

implicate precisely the concerns about corruption and the 

appearance of corruption that are at the heart of Buckley's 

rationale. See Colorado II, 533 U.S. at 450-52. 

The Title I soft money rules thus fall squarely within 

the scope of regulation of contributions permitted under this 

Court's decisions. Nothing in this Court's precedents 

supports or even suggests the proposition, embraced by 

Judge Leon below, that federal limits on contributions may 

not constitutionally be applied to party expenditures that 

affect federal elections and also affect state elections. 

Any such limitation on Congress's ability to regulate 

contributions to parties would render the limits upheld in 
21 

Buckley meaningless. Indeed, Congress's enactment of Title 

I of BCRA reflects its judgment that, following Buckley, 

these limits had lost their force. Slowly at first, and then 

with increased intensity, the national parties, working with 

their state and local affiliates, found ways to raise and spend 

massive amounts of soft money from corporations and labor 

unions to influence federal elections, despite the 

longstanding federal laws prohibiting corporations and labor 

unions from contributing to national political parties in 

connection with a federal election. Similarly, the parties 

learned how to raise large amounts of money from 

individuals that far exceeded the amounts of money that 

individuals were permitted to give to a national political 

party to influence a federal election. Title I of BCRA is 

Congress's measured response to that circumvention. 

Judge Leon's controlling opinion on the constitutionality 

of Title I recognizes the potential for circumvention through 

the use of soft money, but he mistakenly concludes that 

Congress has the power to regulate only certain uses of 

money spent by political parties, and lacks the power to 

regulate from whom and in what amounts all national party 

money is raised. Leon op. 26-27. Accordingly, he sustained 

the national party soft money ban only as to "public 

communications that refer[] to a clearly identified candidate 

for Federal office . . . and that promote[] or support[] a 

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

for that office." See Leon op. 88-95. 

Judge Leon's opinion thus ignores the overwhelming 

evidence of actual or apparent corruption resulting from the 

solicitation and receipt of soft money by national parties, 

regardless of how that money is eventually spent. Given the 

inseverable link between the national political parties and 

the federal candidates they support, Judge Leon erred in 

second-guessing Congress's considered judgment that large 

contributions to the national parties pose a similar risk of 

actual or apparent corruption as contributions to the 

candidates themselves. And, given the overwhelming 

evidence that soft money contributions to the national 
22 

parties bring with them special access to federal 

officeholders and thus the appearance of corruption, Judge 

Leon's distinction cannot be sustained. 

If allowed to stand, moreover, this result is sure to 

invite continued exploitation of the soft money loophole. A 

principal national party committee (i.e., the Democratic 

National Committee or the Republican National Committee) 

may be precluded from spending these funds on 

communications that refer to a clearly identified candidate, 

but left free to raise and use unregulated contributions to 

continue to influence federal elections by, for example, 

running "generic" GOTV drives or paying the salaries of 

party employees who work for federal candidates. Judge 

Leon also ignores the fact that the vast majority of the 

activity of the national parties is indisputably directed at 

federal elections, and that they remain free under BCRA to 

use funds raised in accordance with federal law on whatever 

state election activity they do pursue. 

The district court further erred in overturning many of 

the soft money rules that apply to state and local parties. In 

recent years, state and local parties have spent hundreds of 

millions of dollars in soft money to influence federal 

elections. Congress, accordingly, correctly recognized that 

the soft money loophole could only be closed through 

comprehensive legislation that included state and local 

parties. In doing so, Congress took care to limit the law's 

scope to only those activities that influence federal elections. 

Thus, BCRA's state and local party soft money rules 

apply only to four carefully defined categories of "Federal 

election activity" - (1) voter registration drives conducted 

in the last four months before a regularly scheduled federal 

election; (2) voter identification, GOTV and other generic 

campaign activity "conducted in connection with an election 

in which a candidate for Federal office appears on the ballot 

... "; (3) public communications that promote, support, attack 

or oppose a candidate for federal office; and (4) services of 

employees who spend more than 25 percent of their time on 

activities in connection with a Federal election. 2 U.S.C. 
23 

§ 431(20)(A). In striking down all but the "public 

communication" section of this provision, Judge Leon's 

controlling opinion improperly second-guesses the expert 

judgment of Congress in its determination to treat these 

activities as sufficiently federal to require that they be 

funded with federally regulated contributions. Cf NRWC, 

459 U.S. at 209 (holding that "careful legislative adjustment 

of the federal electoral laws" were entitled to considerable 

deference by the judiciary). Long before enactment of 

BCRA, federal regulations recognized that activities of the 

sort covered in the state and local party soft money rules 

influence federal elections, and thus required that an 

allocated share of the cost of such activities be funded with 

hard money contributions. See 11 C.F.R. § 106.5(a)(2) (2002). 

Congress enacted BCRA, in part, because this allocation 

system invited and resulted in massive circumvention of 

federal limits and restrictions. There exists no basis in First 

Amendment jurisprudence to distinguish between those 

activities that directly and exclusively influence federal 

elections, and those that influence federal elections and also 

influence state elections. In both cases, Congress has the 

well-settled authority to preclude the use of corporate and 

union contributions, and large individual contributions, to 

influence federal elections. See, e.g., Buckley, 424 U.S. at 26; 

Austin, 494 U.S. at 661. 

As stated in Shrink Missouri, "[ w ]here a legislature has 

significantly greater institutional expertise, as, for example, 

in the field of election regulation, the Court in practice 

defers to empirical legislative judgments at least where 

that deference does not risk such constitutional evils as, say, 

permitting incumbents to insulate themselves from effective 

electoral challenge." 528 U.S. at 402 (Breyer and Ginsburg, 

J.J., concurring); see also NRWC, 459 U.S. at 210. Members 

of Congress possess particular expertise about the operation 

of election laws and the need to close loopholes, because they 

have secured election under FECA. Whatever limits there 

may be to the deference to Congress's special expertise, the 

lines drawn here are eminently sensible, and they should not 

have been overturned by the court below. 
24 

Finally, the district court erred in holding 

unconstitutional BCRA's prohibition against party 

committees soliciting funds on behalf of, or donating funds 

to, tax exempt organizations that engage in activities in 

connection with federal elections. In enacting this provision, 

Congress again reacted to a history of abuse of the federal 

campaign finance laws, and adopted a tailored response to 

that history. 

b. Title II(A) - Electioneering Communications. 

Under settled First Amendment doctrine, corporations and 

unions may be precluded from using their general treasury 

funds for the purpose of influencing candidate elections. As 

this Court held in Austin v. Michigan Chamber of 

Commerce, 494 U.S. at 652, 660 (1990), "the corrosive and 

distorting effects of immense aggregations of wealth that 

are accumulated with the help of the corporate form and that 

have little or no correlation to the public's support for the 

corporation's political ideas," provide a constitutionally 

sufficient basis for barring the use of these funds on election 

activity. 

A majority of the district court correctly recognized this 

established law. It also correctly found that, since 1996, 

corporations and unions have circumvented FECA's 

restrictions in this regard with impunity, by running 

extensive (and expensive) broadcast advertising campaigns 

with the purpose and effect of influencing federal candidate 

elections, while simply avoiding the so-called "magic words" 

of express advocacy, such as "vote for" or "vote against." 

The district court soundly rejected the plaintiffs' oftenrepeated refrain that such a "magic words" test is a 

constitutionally ordained limitation on Congress's power to 

frame effective federal campaign finance laws. See KollarKotelly op. 370-75 (joined by Judge Leon); see also Leon op. 

74 n.97. 

Despite recognizing both the need for action and 

Congress's authority to act, the district court struck down 

the primary definition of "electioneering communication" 

adopted by Congress in Title II(A) of BCRA. Under that 
25 

definition, corporations and unions are prohibited from using 

their general treasury funds as opposed to their 

segregated or "PAC" funds - to finance broadcast 

advertisements that refer to a candidate in a federal 

election; that are targeted to reach that candidate's 

electorate; and that air in the final weeks before the election. 

The court erred in invalidating this narrowly-crafted 

provision. 

It bears emphasis that the electioneering 

communications provision of BCRA does not "ban" any 

speech. It merely reaffirms and reinvigorates long-settled 

law by restricting the sources of funding that may be used to 

influence federal elections. A corporation or union is free to 

finance advertisements about federal candidates that are 

aired in the closing weeks of elections, but it must do so with 

funds voluntarily raised from individuals through a 

segregated fund. 

Moreover, in adopting the primary definition of 

"electioneering communications," Congress demonstrated 

close attention to constitutional limitations. In response to 

concerns over vagueness, it adopted a clear, objective test. 

In response to concerns over overbreadth, it relied on the 

experience of its Members and on empirical data to conclude 

that the primary definition reached no further than 

necessary to close the sham "issue ad" loophole. The 

evidence developed in this case bears out Congress's 

judgment, and shows that the primary definition is not 

"substantially overbroad," but rather accurately identifies 

advertisements that are designed to, and do in fact, influence 

federal elections. See Kollar-Kotelly op. 305-36; 427-64. 

This evidence, moreover, comports with the common 

sense principle that advertisements that refer to a federal 

candidate, that are aired in the immediate run-up to that 

candidate's election, and that are targeted at the relevant 

electorate are very likely intended - and almost sure to be 

viewed as containing an electioneering message. Given 

the compelling need for a legislative solution to the sham 

"issue ad" loophole and the inevitable challenge in crafting 
26 

legislation in this area, Congress's studied response 

deserves both respect and deference. 

Finally, while a decision sustaining the primary 

definition would obviate this point, the district court 

correctly sustained the back-up definition of "electioneering 

communications," but erred in severing the final clause of 

that definition. That clause - which requires that the 

advertisements at issue be "suggestive of no plausible 

meaning other than an exhortation to vote for or against a 

specific candidate" for federal office - does not make the 

definition impermissibly vague. On the contrary, it provides 

an assurance that any conceivable doubt regarding 

application of the back-up definition will be resolved against 

coverage. 

c. Title Il(B) - Coordination. Although the district 

court was generally correct in its resolution of the various 

coordination issues, see Per Curiam op. 138-69, it erred in 

one important respect. Section 213 of BCRA amends FECA 

to provide that, after a political party has chosen its 

nominee, a party committee may not make coordinated 

expenditures on behalf of that nominee under 2 U.S.C. § 

441a(d) while also purporting to make "independent 

expenditures" as defined in 2 U.S.C. § 431(17) on behalf of 

that same nominee during the same election cycle. Section 

213 is triggered only by a political party's exercise of what 

this Court has called the "special privilege" of making large 

"party coordinated expenditures" under Section 441a(d) a 

"special privilege [that] others do not enjoy." Colorado II, 

533 U.S. at 455. Section 213 does not apply to the 

coordinated expenditures that may be made by any 

multicandidate political committee under Section 441a(a)(2). 

Judge Leon's controlling decision on this point (joined by 

Judge Kollar-Kotelly, see Kollar-Kotelly op. 4 77) 

nevertheless concluded that Congress may not condition the 

Section 441a(d) privilege on a political party's agreement to 

forgo independent expenditures on behalf of the same 

nominee during the same election cycle. See Leon op. 99-

106; see also Henderson op. 256-57. 
27 

The district court's analysis of this issue is seriously 

flawed. Among other things, the choice imposed by Section 

213 is, analytically and in practical effect, no different from 

FECA's offer of public financing to those candidates who 

voluntarily relinquish their First Amendment right to 

engage in unlimited campaign expenditures, a choice that 

repeatedly has been sustained. See, e.g., Buckley, 424 U.S. 

at 57 n.65, 95, 99; Republican National Comm. v. FEC, 487 

F. Supp. 280, 283-87 (S.D.N.Y.) (three-judge district court), 

afj'd, 445 U.S. 955 (1980). Just as a candidate who accepts 

public financing may be required to abide by expenditure 

limits that would otherwise run afoul of the First 

Amendment, so too may a political party that takes 

advantage of the special coordination provisions in Section 

441a(d)- which in 2000 allowed each party to spend up to 

$1.6 million in coordination with each of its senatorial 

nominees24 - be required to abide by expenditure 

restrictions that might otherwise raise First Amendment 

concerns. If a political party does not believe that limiting 

independent expenditures for one of its nominees is in its 

best interests, it is free to decline the special coordination 

privilege, play by the same coordination rules as all other 

multicandidate political committees, and seek to engage in 

unlimited independent expenditures. 

This choice bears none of the earmarks of an 

unconstitutional condition - there is no attempt at 

viewpoint-based discrimination, no effort to restrict a 

generally available benefit, and a reasonable nexus between 

the special benefit being sought and the right being given 

up. In this case, Congress reasonably concluded that a 

24 Under the prov1s10ns of Section 441a(c)-(d), the 2000 Senate 

coordinated expenditure limits ranged from $67,560 up to $1,636,438 per 

candidate, and the 2000 House limits ranged from $33,780 to $67,560. See 

Colorado II, 533 U.S. at 439 n.3. These limits, moreover, applied 

separately to the state and national parties, thus, in effect, permitting 

twice these amounts to be spent by a political party on behalf of a 

candidate. 
28 

political party should not be allowed to engage in large 

amounts of coordinated spending with its nominee -

something no other person or entity may do - while 

simultaneously claiming to be entirely independent from 

that same nominee. Claims of simultaneous independence 

and coordination in these circumstances are tenuous at best, 

create a strong appearance of impropriety, and are very 

difficult, if not impossible, to police and resolve. See 

Colorado II, 533 U.S. at 462 (Congress may account for "the 

practical difficulty of identifying and directly combating 

circumvention under actual political conditions."). 

* * * 

Although the district court properly upheld many of the 

most important portions of BCRA, the errors described 

above led the district court to reject the considered 

judgment of the political Branches, and to strike down 

significant provisions of the most important federal 

campaign finance legislation in a generation. BCRA's 

reforms were designed principally to stop evasion and to 

restore the FECA regime so that it could operate more or 

less as was envisioned at the time of Buckley. To the extent 

the district court's decision strikes portions of BCRA, it 

undermines the government's legitimate and justified 

attempts through BCRA to stop evasion and to preserve the 

integrity of the federal political process. The correctness of 

the district court's constitutional analysis is a federal 

question of unquestionable significance. 
29 

CONCLUSION 

The Court should note probable jurisdiction. 

ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park A venue 

New York, NY 10022 

MAY2003 

Respectfully submitted, 

SETHP. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

ERICJ. MOGILNICKI 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 
APPENDIX 
APPENDIX A 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Civil Action No. 02-582 

(CKK, KLH, RJL) 

SENATOR MITCH MCCONNELL, ET AL., PLAINTIFFS 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

DEFENDANTS 

AND 

SENATOR JOHN MCCAIN, SENATOR RUSSELL FEINGOLD, 

REPRESENTATIVE CHRISTOPHER SHAYS, 

REPRESENTATIVE MARTIN MEEHAN, SENATOR OLYMPIA 

SNOWE, AND SENATOR JAMES JEFFORDS, DEFENDANT 

INTERVENORS 

On Appeal from the 

United States District Court 

for the District of Columbia 

[Filed: May 5, 2003] 

NOTICE OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES 

(la) 
2a 

In accordance with Section 403(a)(3) of the Bipartisan 

Campaign Finance Reform Act of 2002 ("BCRA'') and Rule 

18.1 of the Rules ofthe Supreme Court of the United States, 

intervening defendants Senator John McCain, Senator 

Russell Feingold, Representative Christopher Shays, 

Representative Martin Meehan, Senator Olympia Snowe, 

and Senator James Jeffords hereby appeal to the Supreme 

Court of the United States from so much of the judgment 

entered by this Court on May 2, 2003, as declares 

unconstitutional or enjoins the enforcement of any provision 

ofBCRA. 

Dated this 5th day of May, 2003. 

Respectfully submitted, 

ROGER M. WITTEN 

(D.C. Bar No. 163261) 

SETHP. WAXMAN 

(D.C. Bar No. 257337) 

RANDOLPH D. MOSS 

(D.C. Bar No. 417749) 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 

20037-1420 

(202) 663-6000 
DAVIDJ. HARTH 

CHARLES G. CURTIS, JR. 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street, 

Suite 201 

Madison, WI 53703 

3a 

PROF. BURT NEUBORNE 

FREDERICK A.O.SCHWARZ, JR. 

BRENNAN CENTER FOR 

JUSTICE 

161 A venue of the Americas, 

12th Floor 

New York, NY 10013 

TREVOR POTTER 

THE CAMPAIGN AND MEDIA 

LEGAL CENTER 

1101 Connecticut Ave., N.W, 

Suite 330 

Washington, DC 20036 

Counsel for the DefendantIntervenors 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & OLSON LLP 

355 South Grand A venue, 35th Floor 

Los Angeles, CA 90071 

FRED WERTHEIMER 

DEMOCRACY 21 

1825 Eye Street, N.W., Suite 400 

Washington, DC 20006