Nos. 06-969 & 06-070 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States 

———— 

FEDERAL ELECTION COMMISSION

Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC. 

Appellee. 

———— 

SENATOR JOHN MCCAIN, ET AL. 

Appellants, 

v. 

WISCONSIN RIGHT TO LIFE, INC. 

Appellee. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF OF AMICUS CURIAE

CHAMBER OF COMMERCE OF THE UNITED 

STATES OF AMERICA IN SUPPORT OF APPELLEE 

———— 

Of counsel: 

STEVEN J. LAW

CHIEF LEGAL OFFICER AND 

GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

CALEB P. BURNS

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006 

(202) 719-7000 

Counsel for Amicus Curiae 

(Additional counsel on inside cover) 
ROBIN S. CONRAD

SENIOR VICE PRESIDENT

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

AMAR D. SARWAL

GENERAL LITIGATION 

COUNSEL

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

JUDITH K. RICHMOND

VICE PRESIDENT AND 

ASSOCIATE GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 
QUESTIONS PRESENTED∗

The Federal Election Campaign Act (“FECA”), as 

amended by the “electioneering communication” provision of 

the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 (2002) (“BCRA”), bans corporate 

speech on television or radio (transmitted by broadcast, cable, 

or satellite) that, 60 days before a general election or 30 days 

before a primary election, refers to a clearly identified federal 

candidate and can be received by 50,000 or more persons in 

the relevant district or state. 2 U.S.C. §§ 434(f)(3)(C), 

441b(b)(2). McConnell v. FEC, 540 U.S. 93, 194, 205, 207 

(2003), held that this provision (i) served the same 

compelling interest in limiting corporate candidate advocacy 

accepted by the Court in prior cases, (ii) provided a clear and 

objective bright line standard that satisfied heightened First 

Amendment vagueness concerns, and (iii) had not been proved 

to reach enough speech that was not candidate advocacy to 

render the definition of electioneering communication invalid 

on its face. However, Wisconsin Right to Life, Inc. v. FEC, 

126 S. Ct. 1016 (2006) (per curiam) (“WRTL I”), held that 

McConnell’s facial ruling did not determine whether the 

electioneering communication ban constitutionally could be 

applied to particular types of speech, and remanded. The 

questions presented on this appeal from a judgment that the 

ban could not be applied to the grassroots lobbying ads at 

issue here are: 

1. Does the First Amendment permit the electioneering 

communication ban to be applied to forbid corporate ads 

asking Wisconsin residents to petition their incumbent Sena-

 ∗

 All parties have consented to the filing of this brief amicus curiae as 

indicated by letters of consent filed with the Court. This brief was not 

authored, in whole or in part, by any counsel for any party. No person or 

entity, other than the amicus, its members, or its counsel, has made a 

monetary contribution to the preparation or submission of this brief. 

(i) 
ii 

tors, one of whom is seeking reelection, to oppose ongoing 

Senate filibustering of federal judicial nominations? 

2. How can the principles that restrict application of the 

electioneering communication ban be formulated to provide 

practical and meaningful protection in the future? 
TABLE OF CONTENTS 

Page 

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

TABLE OF AUTHORITIES......................................... v 

INTEREST OF AMICUS CURIAE ............................... 1 

STATEMENT OF THE CASE ..................................... 3 

SUMMARY OF ARGUMENT..................................... 7 

ARGUMENT................................................................. 10 

 I. CORPORATE SPEECH AND PETITIONING 

ARE PROTECTED BY THE CORE OF THE 

FIRST AMENDMENT ..................................... 10 

 II. McCONNELL RECOGNIZED THAT THE 

ELECTIONEERING COMMUNICATION 

STANDARD SWEEPS IN SPEECH THAT IS 

NOT FUNCTIONALLY EQUIVALENT TO 

EXPRESS ADVOCACY .................................. 14 

 III. AS APPLIED HOLDINGS OFTEN DO, AND 

IN THIS CASE SHOULD, ESTABLISH 

CATEGORICAL STANDARDS THAT 

MINIMIZE FUTURE LITIGATION................ 18 

 IV. THE WRTL ADS ILLUSTRATE A CATEGORY OF CORPORATE SPEECH TO 

WHICH THE ELECTIONEERING COMMUNICATION BAN CANNOT CONSTITUTIONALLY BE APPLIED ............................... 20 

 A. That category consists of speech that 

merely addresses a current legislative issue 

and that refers to candidates only in their 

capacity as incumbent elected officials 

with responsibility for the issue being 

discussed...................................................... 20

(iii) 
iv 

TABLE OF CONTENTS—Continued 

Page 

 B. The definition should not employ standards that deny clarity or invite delay and 

litigation burden........................................... 23 

 1. Subjective elements should be excluded.. 23 

 2. The PASO standard should be avoided 

or objectively defined ............................ 25 

 3. Analysis should occur within the four 

corners of the ad .................................... 27 

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

APPENDIX ................................................................... 1a
v 

TABLE OF AUTHORITIES 

FEDERAL CASES Page 

Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990) ................................................. 12 

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

(1985)................................................................. 18 

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

California Motor Transport Co. v. Trucking 

Unlimited, 404 U.S. 508 (1972) ....................11, 12, 25 

Chamber of Commerce of the United States v. 

FEC, 69 F.3d 600 (D.C. Cir. 1995) ................... 3 

Chamber of Commerce of the United States v. 

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

Center for Individual Freedom v. Carmouche, 

449 F.3d 655 (5th Cir. 2006), cert. denied, 127 

S. Ct. 938 (2007)................................................ 26 

Colorado Right to Life Committee, Inc. v. 

Davidson, 395 F. Supp. 2d 1001 (D. Colo. 

2005).................................................................. 17 

Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996) .................. 18 

Consolidated Edison Co. v. Public Service Commission of New York, 447 U.S. 530 (1980) ....... 12, 15 

Eastern Railroad Presidents Conference v. Noerr 

Motor Freight, Inc., 365 U.S. 127 (1961) ......... 11 

Edenfield v. Fane, 507 U.S. 761 (1993) ................ 18 

Eu v. San Francisco County Democratic Central 

Committee, 489 U.S. 214 (1989) ....................... 5 

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

U.S. 238 (1986) ................................................. 3, 4, 9 

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) .............................................12, 14, 15

Greater New Orleans Broadcasting Ass’n v. 

United States, 527 U.S. 173 (1999)................... 13 

Kleindienst v. Mandel, 408 U.S. 753 (1972) ......... 12, 13 
vi 

TABLE OF AUTHORITIES—Continued 

Page 

Martin v. City of Struthers, 319 U.S. 141 (1943) .. 12 

McConnell v. FEC, 540 U.S. 93 (2003) ................ passim

Mills v. Alabama, 384 U.S. 214 (1966)................. 13 

Nixon v. Shrink Missouri Government PAC, 528 

U.S. 377 (2000) ................................................. 4 

Pacific Gas & Electric Co. v. Public Utilities 

Commission of California, 475 U.S. 1 (1986)... 12 

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 

(1969)................................................................. 12 

Republican Party of Minnesota v. White, 536 

U.S. 765 (2002) ................................................. 3, 5 

Sosa v. DirecTV, Inc., 437 F.3d 923 (9th Cir. 

2006).................................................................. 11 

Thomas v. Collins, 323 U.S. 516 (1945) ............... 23 

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 12 

United Mine Workers v. Pennington, 381 U.S. 

657 (1965).......................................................... 11 

United States v. Cassel, 408 F.3d 622 (9th Cir. 

2005).................................................................. 25

United States v. Edge Broadcasting Co., 509 

U.S. 418 (1993) ................................................. 18 

United States v. National Treasury Employees 

Union, 513 U.S. 454 (1995) .............................. 19 

Virginia State Board of Pharmacy v. Virginia 

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

(1976)................................................................. 12 

Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 

1016 (2006)........................................................ passim

STATE CASES 

Elections Board of Wisconsin v. Wisconsin 

Manufacturers & Commerce, 597 N.W.2d 721 

(Wis. 1999) ........................................................ 3 
vii 

TABLE OF AUTHORITIES—Continued 

FEDERAL STATUTES, REGULATIONS Page 

2 U.S.C. § 434(f)(3)(B)(iv).................................... 6 

2 U.S.C. § 434(f)(3)(C) ......................................... i, 4 

2 U.S.C. § 437f(a).................................................. 6 

2 U.S.C. § 441b(b)(2) ............................................ i, 4 

11 C.F.R. § 114.10................................................. 15 

The Bipartisan Campaign Reform Act of 2002, 

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

STATE STATUTES 

La. Rev. Stat. Ann. § 18:1483(9)(a) ...................... 26 

OTHER 

71 Fed. Reg. 52295 (Sept. 5, 2006)....................... 6 

Andrew Mollison, Votes on Guns, Marriage 

Slated; GOP Leaders in House Push Symbolic 

Bills, Atlanta Journal-Const., Sept. 28, 2004..... 6 

Brief of Respondents, Voters Education Committee v. Washington State Public Disclosure 

Commission, No. 77724-1 (Wash. filed Feb. 

16, 2006)............................................................ 26 

Letter from Lawrence Norton, FEC General 

Counsel to Cassandra Lentchner, Attorney for 

Congressman Eliot Engel (Feb. 5, 2004)........... 6-7 

Office Politics: the Growing Impact of Campaign 

Finance and Election Law Regulations on 

Corporations, Metropolitan Corp. Counsel 

(Dec. 2005)........................................................... 19 

Press Release, FEC, FEC Issues Semi-Annual 

Federal PAC Count (July 14, 2006) .................. 1 

Press Release, FEC, Sierra Club Agrees to Pay 

Civil Penalty for Violation of Federal Campaign Law (Nov. 15, 2006)................................ 27 
viii 

TABLE OF AUTHORITIES—Continued 

Page 

United States House of Representatives and 

United States Senate Roll Call Votes, 108th 

Congress—2d Session (2004) ........................... 6 
INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of 

America (“Chamber”), founded in 1912, is the world’s largest 

not-for-profit business federation with an underlying membership of over 3,000,000 businesses and business associations. The Chamber’s members include businesses of all 

sizes and sectors—from large Fortune 500 companies to 

home-based, one-person operations. Ninety-six percent of 

the Chamber’s underlying membership are businesses with 

fewer than one hundred employees. Collectively, the 

Chamber’s members are central to our nation’s economy and 

well-being. 

Business entities are profoundly affected by federal legislation, policy, and executive action on a wide range of issues, 

from tort reform to taxes, intellectual property to import 

controls, and employment standards to environmental protection. As a result, businesses are critically interested in the 

formulation and implementation of federal legislation and 

policy and in assuring that their knowledge and concerns are 

fully and effectively communicated to the public, federal 

legislators, and other government officials. At the same time, 

all Americans, including American voters and government 

officials, have a vital interest in hearing what business 

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

Some few of the Chamber’s members, particularly large 

corporations, maintain separate segregated funds, commonly 

called PACs, that permit limited direct advocacy for or 

against candidates. But the vast majority do not. PACs are 

complex and burdensome to initiate and maintain. As of 

July 1, 2006, there were only 1,621 PACs sponsored by 

corporations registered with the FEC. See Press Release, 

FEC, FEC Issues Semi-Annual Federal PAC Count (July 14, 

2006), http://www.fec.gov/press/press2006/20060714paccou

nt.html. And, only some of those PACs are sponsored by 

Chamber members. 
2

When an issue arises requiring comment by a corporation 

that does not maintain a PAC, it often is not practical for the 

business to organize a PAC, solicit contributions, and then 

speak out in a timely fashion. Moreover, even business 

corporations that have PACs often will already have spent or 

committed their limited PAC funds to campaigns or other 

purposes that must receive PAC funding before the need for 

issue speech is discerned. Thus, business corporations have a 

strong interest in being able to engage in issue advocacy 

without the burdens and limitations of the PAC structure. 

And, for most, requiring them to speak through a PAC is the 

equivalent to banning their timely speech. 

Moreover, Congress has determined that the limited sums 

businesses can raise and spend through the PAC process may 

properly be used for direct and explicit candidate advocacy. 

And such advocacy is a core First Amendment right. The 

exercise of that core right should not be impaired by requiring 

a corporation to divert its limited candidate advocacy funds to 

pay for true issue ads and grassroots petitioning that are not 

the functional equivalent of candidate advocacy and that the 

government has no compelling justification for restricting. 

Public policy largely is decided by elected officials. When 

an active legislative issue is before incumbent officials for 

action, interested persons have a compelling need to address 

those issues and to receive speech concerning those issues. 

For such speech to petition effectively for redress, it must 

identify the government officials who will make the critical 

decisions. And that need does not mysteriously vanish during 

the lengthy blackout periods imposed by the electioneering 

communication ban. Yet, the electioneering communication 

ban, on its face, precludes much such speech. 

As is discussed infra at 6, the Chamber joined in petitioning the FEC to conduct a rulemaking on the issues raised 

by this case. In addition to assisting American business thus 

to petition the government, the Chamber plays a key role in 
3

advocating for the interests of its members in important 

matters before the courts, legislatures, and executive branches 

of state and federal governments. In that role, the Chamber 

was a party to the McConnell litigation challenging the facial 

constitutionality of the electioneering communication ban on 

corporate political speech that is the subject of the instant as 

applied challenge. The Chamber regularly files briefs amicus 

curiae where the business community’s right to political 

speech is at stake. See WRTL I; Republican Party of Minn. v. 

White, 536 U.S. 765 (2002); Elections Bd. of Wis. v. Wis. 

Mfrs. & Commerce, 597 N.W.2d 721 (Wis. 1999); FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”). 

And the Chamber, which is incorporated, also has litigated to 

preserve its own First Amendment rights of speech and 

association. See Chamber of Commerce of the United States 

v. Moore, 288 F.3d 187 (5th Cir. 2002); Chamber of 

Commerce of the United States v. FEC, 69 F.3d 600 (D.C. 

Cir. 1995). 

This appeal affects the ability of the Chamber and its 

members to exercise their core First Amendment rights to 

speak to the public about active legislative issues when they 

are being decided and to petition for redress from incumbent 

elected officials who will do the deciding. Thus, the 

Chamber’s special perspective and vital interests justify its 

submission of this brief amicus curiae. 

STATEMENT OF THE CASE 

The First Amendment flatly says “Congress shall make no 

law . . . abridging the freedom of speech . . . or the right to 

petition the Government for a redress of grievances.” This 

prohibition has its fullest and most urgent application to 

public speech about how we govern ourselves. Buckley v. 

Valeo, 424 U.S. 1, 14-15 (1976). When Congress makes a 

law abridging such core First Amendment rights, the courts 
4

apply strict judicial review to assure that stringent standards 

are met, including these: 

• First, the legislation must be narrowly tailored to 

restrict no more core activity than is truly necessary to 

achieve a compelling governmental purpose. Id. at 

41 n.48. See also Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 387 (2000) (distinguishing between 

the compelling interest Buckley required for limiting 

expenditures and the “important interest” it accepted 

vis-à-vis contributions). 

• Second, the legislation must provide an objective 

bright line that permits speakers to make confident 

judgments in real time as to what is permitted and to 

avoid chilling through uncertainty speech that the 

government has no compelling need to bar. Buckley, 

424 U.S. at 43-44; McConnell, 540 U.S. at 126, 194 

(noting that Buckley “marked a bright statutory line 

separating ‘express advocacy’ from ‘issue advocacy’” 

and that Buckley’s vagueness problem did not arise 

where the statutory “components are both easily 

understood and objectively determinable.”). 

Buckley and its progeny preserved several speech-restricting 

provisions of FECA by construing them to apply only to 

speech that used explicit words such as “vote for” or “defeat” 

to expressly advocate the election or defeat of a clearly 

identified federal candidate. 424 U.S. at 44 n.52; MCFL, 479 

U.S. at 249-50 (1986). Congress concluded, however, that 

the law was being circumvented by speech that lacked 

explicit language but still was functionally equivalent to 

express advocacy. So, it created a new category of restricted 

speech called “electioneering communications,” to which it 

gave a detailed objective definition, i.e., corporate speech 

broadcast via specified media to at least 50,000 voters within 

30 days before a primary or 60 days before a general election. 

2 U.S.C. §§ 434(f)(3)(C), 441b(b)(2). 
5

In McConnell, a bare majority of this Court declined to 

strike the new standard down on its face. 540 U.S. at 194, 

205, 207. Vagueness was not at issue since the statute’s 

objective criteria provided as much bright line guidance as 

the express advocacy test. Id. at 194. But because the bright 

line criteria easily could characterize speech that was not 

candidate advocacy, narrow tailoring was disputed. The 

McConnell majority found that (i) the bulk of electioneering 

communications would be functionally equivalent to express 

advocacy, and (ii) the plaintiffs had not proved the new 

standard would encompass enough true grassroots or issue 

advocacy to render it facially invalid. Id. at 193-94, 206-07. 

The Court did not explain why it required the plaintiffs to 

prove overbreadth rather than following settled law requiring 

the government to prove narrow tailoring.1

Following McConnell, Congress has continued to deal with 

important issues during the 90 or so days that the electioneering communication standard bans most corporate 

broadcasts that mention any incumbent seeking reelection.2

 

For example, during the 60 days before the 2006 general 

election, bills involving trademark dilution (H.R. 683), voter 

fraud (H.R. 4844), immigration reform (H.R. 6095), port 

security (H.R. 4954), and a constitutional amendment to 

 1 See Republican Party of Minnesota v. White, 536 U.S. 765, 774-75 

(2002) (government has “the burden to prove that the [speech restriction] 

is (1) narrowly tailored, to serve (2) a compelling state interest . . . [by 

demonstrating] it does not ‘unnecessarily circumscrib[e] protected expres 

sion’”) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)); Eu v. San 

Francisco County Democratic Central Committee, 489 U.S. 214, 222 

(1989) (challenged law could “survive constitutional scrutiny only if the 

State shows that it . . . is narrowly tailored.”). 

2

 The blackout always will be at least for the 60 days before the general 

election. If the relevant primary or convention is 30 days or more before 

the general election, the total will be at least 90 days. If there is a runoff, 

or if a broadcast signal reaches several relevant states, the total blackout 

period may be considerably longer. 
6

balance the budget (H.J. Res. 98) all were pending before or 

had been voted on by at least one house of Congress. Similarly, during the 60 days before the 2004 general election, the 

Senate and House of Representatives held a combined 157 

roll call votes.3 Indeed, it is not unusual for legislators to 

maneuver to set sensitive votes in the election period. See, 

e.g., Andrew Mollison, Votes on Guns, Marriage Slated; 

GOP Leaders in House Push Symbolic Bills, Atlanta JournalConst., Sept. 28, 2004, at 3A.4

In WRTL I, the Court noted the FEC’s rulemaking power 

under 2 U.S.C. § 434(f)(3)(B)(iv). WRTL I, 126 S. Ct. at 

1017. On February 16, 2006, the Chamber joined with the 

AFL-CIO, the National Education Association, the Alliance 

for Justice, and OMB Watch in petitioning the FEC to initiate 

a rulemaking to promulgate an exemption from the electioneering communication ban for at least some forms of 

grassroots lobbying. On September 5, 2006, the FEC 

published its decision “not to initiate a rulemaking.” 71 Fed. 

Reg. 52295. The FEC said it preferred to await “judicial 

guidance,” noting that the courts would have the last say 

on what the First Amendment demands in any event. Id. 

at 52296.5

 3 See United States Senate and United States House of Representatives 

Roll Call Votes, 108th Cong.—2d Sess. (2004), http://www.senate.gov/

legislative/LIS/roll_call_lists/vote_menu_108_2.htm; http://clerk.house.gov/ 

evs/2004/ROLL_400.asp; and http://clerk.house.gov/evs/2004/ROLL_500. 

 asp (last visited Mar. 12, 2007). 

4

 Thus, the systematic data collected on pages 622-26 of the Joint 

Appendix in McConnell v. FEC, 540 U.S. 93 (reproduced in the Appendix 

to this brief), from the 2000 election was no fluke. 

5

 The Federal Election Commission’s (“FEC”) advisory opinion process is not a practical solution and the denial of rulemaking did not suggest 

it was. The Federal Election Campaign Act (“FECA”) allows the agency 

60 days to respond to a non-candidate inquiry. 2 U.S.C. § 437f(a). And 

experience shows the agency often deadlocks in close questions. See, e.g., 

Letter from Lawrence Norton, FEC General Counsel to Cassandra 
7

The ads of petitioner WRTL—discussed in detail in its 

brief and in the district court opinion—illustrate a category of 

core speech that the government has shown no compelling 

reason to suppress. This case now calls on this Court 

to provide a practical and effective remedy for genuine 

grassroots and issue advocacy that is suppressed by the lack 

of narrow tailoring in the electioneering communication 

standard. 

SUMMARY OF ARGUMENT 

The First Amendment squarely protects the right of corporations to petition the government for redress of grievances 

and otherwise to speak out on public issues. That right is 

vital to corporations and to members of the public who 

benefit from business speech and petitioning. Although this 

Court has accepted Congress’s claim that it has a compelling 

need to limit some candidate advocacy by corporations, the 

Court has insisted that such restrictions must survive the same 

strict judicial scrutiny applicable to other limits on core First 

Amendment speech. 

McConnell’s surprising decision to treat the electioneering 

communication ban as facially valid—without requiring the 

government to prove it is narrowly tailored—gives heightened importance to as applied First Amendment challenges. 

Unless efficient and practical as applied standards are 

established, the electioneering communication provisions will 

impose a de facto ban on core petitioning and speech the 

government has no compelling need to suppress. Public 

discourse and policy making moves rapidly. As a practical 

matter, even a brief delay is as good as a ban for most 

 

Lentchner, Attorney for Congressman Eliot Engel (Feb. 5, 2004) http:// 

saos.nictusa.com/aodocs/468090.pdf (noting that a 3-3 deadlock ended 

the FEC’s consideration of the advisory opinion request). Administrative 

agencies, of course, are not the institutions with primary authority to 

construe the Constitution, which is what an as applied challenge requires. 
8

petitioning and speech. Efforts to limit, complicate, and 

delay as applied review seek to eliminate as applied relief 

through the back door. 

This Court repeatedly has employed as applied litigation to 

identify categories to which a facially valid standard cannot 

lawfully apply. See infra Section III. It should do so here 

as well. 

Indeed, to provide practical benefits, this Court’s as applied 

holding must provide a standard that is clear enough for 

speakers to apply for themselves in real time. If any part of a 

standard invites second guessing or differing opinions, the 

resulting uncertainty and risk will create a de facto lack of 

tailoring. To steer clear of possible civil and criminal 

penalties, businesses will avoid core First Amendment 

petitioning or issue advocacy that the government has no 

compelling need to suppress. 

In particular, the Court should avoid formulations such as 

the “promote, attack, support, or oppose” standard, which 

invite highly subjective second-guessing. McConnell did not 

approve that formulation except as applied to political parties, 

whose activities presumptively are electoral, 540 U.S. at 170 

n.6, and this Court should not expand that holding to ordinary 

corporations. 

If, for some reason, the Court cannot adopt an objective 

bright line, it should be explicit that its as applied standard is 

not a substitute for the objective bright line required to 

survive facial analysis under Buckley, but operates within the 

primary bright line boundary drawn by the electioneering 

communication standard. Clarity on this point is vital because many regulators of core speech, including the FEC, 

resist bright lines and seize on any language of this Court that 

they can construe to authorize a primary standard that turns 

on impressionistic views of subjective factors. 
9

The Court also should adopt a legal standard that can be 

applied within the four corners of the proposed ad. The brief 

time frame in which petitioning and issue advocacy must 

occur cannot be accommodated by standards that call for 

discovery. And the inherently imprecise and highly discretionary standards that govern preliminary injunctions 

should not become the norm in a regime of judicial licensing 

of core speech and petitioning. Instead, the controlling 

standards themselves should be precise, objective, and easily 

applied without discovery. 

The facts presented by WRTL identify one common 

circumstance to which the electioneering communication 

standard does not properly apply. From time to time, elected 

representatives will be dealing with an active legislative issue 

in the 90 days prior to an election. Affected businesses must 

be free to address such issues freely and to urge citizens who 

agree to petition their incumbent elected officials for redress, 

even if they happen to be seeking reelection (as incumbents 

often do). Foreclosing such speech for 60 to 90 days or 

more—an eternity in public debate—is truly Draconian.6 

And permitting such true issue speech would not threaten the 

interest in limiting corporate electoral advocacy relied on by 

McConnell. 

The Court doubtless will receive several suggestions as to 

how to define a category of true grassroots petitioning and 

issue advocacy that the government has not established a 

compelling need to regulate. The district court’s description 

 6

 The Chamber expects that WRTL and other participants will discuss 

why organizing and operating a PAC is a serious burden and often is 

entirely impractical. For corporations that do not have a PAC in place or 

whose PAC resources have been committed elsewhere, the electioneering 

communication provision will operate as a ban. In any event, this Court 

has held that subjecting core speech to substantial burden is a prohibited 

abridgment that must be justified by compelling necessity. See FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 263 (1986). 
10

of the factors it considered is a useful start. Drawing on the 

FEC rulemaking petition that the Chamber and other groups 

joined in filing, the Chamber suggests this Court should 

protect corporate speech where: 

(i) the “clearly identified federal candidate” is an incumbent public officeholder; 

(ii) the communication exclusively discusses a particular current legislative or executive branch matter; 

(iii) the communication either (a) calls upon the candidate to take a particular position or action with respect 

to the matter in his or her incumbent capacity, or 

(b) calls upon the general public to contact the candidate 

and urge the candidate to do so; 

(iv) if the communication discusses the candidate’s 

position or record on the matter, it does so only by 

quoting the candidate’s own public statement or reciting 

the candidate’s official action, such as a vote, on the 

matter; 

(v) the communication does not refer to an election, the 

candidate’s candidacy, or a political party; and 

(vi) the communication does not refer to the candidate’s 

character, qualifications or fitness for office.7

 

ARGUMENT 

 I. CORPORATE SPEECH AND PETITIONING 

ARE PROTECTED BY THE CORE OF THE 

FIRST AMENDMENT 

This Court’s rulings that Congress has a compelling need 

to regulate certain corporate speech do not suggest that 

 7

 This final criterion may not be essential, but it was part of the group 

proposal. If the Court employs it, the Court should explain that this factor 

has to do with explicit and conclusive discussion and not with inferences 

that may be drawn from speech permitted by the preceding factors. 
11

corporations lack full First Amendment protection.8 To the 

contrary, this Court has been clear that the First Amendment 

fully and strongly protects petitioning and speech by business 

corporations. Thus, every restriction on such activity must be 

strictly scrutinized in light of the compelling interests alleged 

to make the restriction necessary. 

The First Amendment right of business entities to petition 

is so firmly established it has its own name—the NoerrPennington doctrine. That doctrine was first formulated in 

cases giving the antitrust laws a narrow construction to avoid 

constitutional invalidity. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); 

United Mine Workers v. Pennington, 381 U.S. 657 (1965); 

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 

509-11 (1972). But it applies more broadly to prevent a wide 

range of statutes from impairing the right of corporations to 

seek redress from the government.9

The right of petition includes the right to involve others in 

the process and collectively to address government officials. 

See supra at n.9. Thus, a business’s right of petition shades 

into its fully protected First Amendment rights of association, 

 8

 Some day the Court doubtless will wish to revisit the supposedly 

compelling reasons it has accepted for restricting corporate speech. The 

notion that using the corporate form equates to great wealth is refuted by 

the broad membership of the Chamber, which includes many small 

business corporations that work hard to achieve modest success. And the 

notion that federal campaign finance law should be used to protect 

hypothetical shareholder expectations is both highly speculative and contrary to principles of federalism. In this brief, however, the Chamber 

assumes the existing legal landscape. 

9

 Sosa v. DirecTV, Inc., 437 F.3d 923, 934-35 (9th Cir. 2006), collects 

authority from this Court and the courts of appeals establishing that (i) the 

principle protects a broad range of corporate petitioning activity from all 

sorts of restraining laws, and (ii) the protection extends to speech to third 

parties that is reasonably ancillary to the petitioning process. 
12

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. at 

510-11, and of free speech. 

Business entities’ speech on public issues is “indispensable 

to the effective and intelligent use of the processes of popular 

government to shape the destiny of modern industrial society,” Thornhill v. Alabama, 310 U.S. 88, 103 (1940), and is 

part of “the free flow of information” the First Amendment 

protects, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976). In 

case after case, this Court has held that corporate speech 

merits the same high level of First Amendment protection 

afforded to speech by individuals. See First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 786 (1978); Consol. Edison 

Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 540 (1980); 

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 

1, 19 (1986); Austin v. Mich. Chamber of Commerce, 494 

U.S. 652, 657, 699-701 (1990) (unanimous as to “strict 

scrutiny” standard of review); McConnell, 540 U.S. at 330 

(Kennedy, J., dissenting) (“All parties agree strict scrutiny 

applies . . . .”). 

The First Amendment protects “speech” rather than merely 

speakers, and the process of meaningful speech also involves 

listening. Thus, the right of free speech includes the right of 

willing listeners to receive information from willing speakers, 

including business corporations. See Bellotti, 435 U.S. at 783 

(“the First Amendment goes beyond protection of the press 

and the self-expression of individuals to prohibit government 

from limiting the stock of information from which members 

of the public may draw”); Martin v. City of Struthers, 319 

U.S. 141, 143 (1943) (“This freedom [of speech and press] . . . 

necessarily protects the right to receive it.”) (internal citation 

omitted). In particular, the First Amendment protects the 

right to receive political, social, and other information related 

to the functioning of government, see Kleindienst v. Mandel, 

408 U.S. 753, 763 (1972) (citing Red Lion Broadcasting Co. 
13

v. FCC, 395 U.S. 367, 390 (1969)), including information 

about “candidates, structures and forms of government, the 

manner in which government is operated or should be 

operated, and all such matters relating to political processes.” 

Mills v. Alabama, 384 U.S. 214, 218-19 (1966). Without 

such a right, the First Amendment’s universally recognized 

purpose of assuring free discussion of public affairs so that 

truth will ultimately prevail cannot be achieved. See id.; 

Kleindienst, 408 U.S. at 763 (citing Red Lion Broad. Co., 395 

U.S. at 390).10

In short, corporate speech on public issues receives the 

same high degree of First Amendment protection as speech 

by individuals. Although McConnell sustained the prohibition on corporate electioneering communications, it did 

so because Buckley had recognized “the Government has a 

compelling interest in regulating [corporate] advertisements 

that expressly advocate the election or defeat of a candidate 

for federal office” and electioneering communications “are 

the functional equivalent of express advocacy.” 540 U.S. at 

205-06. But that rationale implies its own limit—suppression 

of core speech and petitioning by business corporations must 

be no broader than is strictly necessary to serve the compelling interests recognized in Buckley and McConnell. 

Applying the electioneering communication ban to corporate 

petitioning and speech that is not functionally equivalent to 

express advocacy is unconstitutional.11

 10 As this discussion demonstrates, business discussion of issues is 

entitled to the highest level of protection, not the lesser protection 

sometimes afforded to “commercial speech.” But even commercial 

speech is highly protected. See Greater New Orleans Broad. Ass’n v. 

United States, 527 U.S. 173, 187-88 (1999). 

11 As noted supra at 1-2, the fact that Congress allows limited direct 

candidate advocacy via corporate PACs does not provide a rationale for 

limiting other core corporate speech or petitioning. First, PACs are 

burdensome and not established by the great majority of corporations. 
14

 II. McCONNELL RECOGNIZED THAT THE ELECTIONEERING COMMUNICATION STANDARD 

SWEEPS IN SPEECH THAT IS NOT FUNCTIONALLY EQUIVALENT TO EXPRESS 

ADVOCACY 

Where the First Amendment’s core provision is set aside to 

serve compelling necessity, that need must be precisely 

defined to mark out the limits of permissible suppression of 

speech. McConnell simply applied prior rulings finding the 

government had established a compelling governmental 

interest in limiting candidate advocacy by business corporations to protect candidate elections from corruption that 

threatens the link between the popular will and those who 

govern. 540 U.S. at 205-06 & n.88 (“unusually important 

interests [in] ‘[p]reserving the integrity of the electoral 

process’”) (citing and quoting Bellotti, 435 U.S. at 788-89). 

But the Court has never found a compelling need to regulate corporate petitioning or issue speech that does not 

advocate for or against candidates. To the contrary, it 

repeatedly has protected issue advocacy by business corporations. For example, Bellotti flatly rejected any notion that 

“speech that otherwise would be within the protection of the 

First Amendment loses that protection simply because its 

source is a corporation.” 435 U.S. at 784. Emphasizing that 

First Amendment rights have “particular significance with 

respect to government,” id. at 777 n.11, Bellotti held that the 

state had no compelling need to forbid corporate issue 

advocacy. 

Similarly, Consolidated Edison Co. found no justification 

for preventing even a regulated corporate monopoly from 

 

Second, PACs are the only way corporations may exercise, to a limited 

extent, the core right of candidate advocacy. Forcing corporations to 

divert PAC funds to grassroots petitioning or true issue advocacy would 

impair core speech without any compelling necessity. 
15

addressing “controversial issues of public policy.” 447 U.S. 

at 537. Stressing that the corporate nature of a speaker does 

not undermine the “inherent worth of the speech in terms of 

its capacity for informing the public,” it forbade the state to 

interfere with the corporation’s use of space in its billing 

envelopes for issue advocacy. Id. at 533 (quoting Bellotti, 

435 U.S. at 777).12

Similarly, the Noerr-Pennington line of cases protect the 

petitioning rights of business corporations. That right has 

been protected against restriction by general statutes forbidding antitrust conspiracies, unfair labor practices, and a range 

of other purposes. See supra at 11. 

Buckley understood that the government’s legitimate concern was limited to candidate advocacy rather than true issue 

speech. Thus, in crafting a narrowing construction intended 

to cure vagueness and overbreadth, Buckley focused on 

speech using explicit words that expressly advocated the 

election or defeat of clearly identified candidates. 424 U.S. at 

43-44. 

When Congress concluded that the express advocacy 

standard proved ineffective in restricting corporate candidate 

advocacy, Congress created and McConnell approved the 

electioneering communication standard. McConnell concluded that issue speech was not so rigidly protected that 

merely adopting the form of issue speech precluded all 

regulation. 540 U.S. at 193. Instead, the question was one of 

substance: the government was equally entitled to reach so-

 12 The corporate form of certain nonprofit organizations is disregarded 

for purposes of the restrictions at issue in this case. See 11 C.F.R. 

§ 114.10 (exempting MCFL corporations from electioneering communication ban). Like the vast majority of corporations, WRTL is not an 

MCFL organization. This case, like First National Bank of Boston v. 

Bellotti, 435 U.S. 765 (1978), and Consolidated Edison Co. v. Public 

Service Commission of New York, 447 U.S. 530 (1980), concerns 

restrictions on the speech of all corporations. 
16

called sham issue ads that had the same function as express 

corporate advocacy. Id.

McConnell recognized the limits of its holding. In response to arguments that “the justifications that adequately 

support the regulation of express advocacy do not apply to 

significant quantities of speech encompassed by the definition 

of electioneering communications,” McConnell responded: 

This argument fails to the extent that the issue ads

broadcast during the 30- and 60-day periods preceding 

federal primary and general elections are the functional 

equivalent of express advocacy. The justifications for 

the regulation of express advocacy apply equally to ads 

aired during those periods if the ads are intended to 

influence the voters’ decisions and have that effect. 

Id. at 206 (emphasis added). Thus, McConnell did not hold 

that the Government had justified suppressing all electioneering communications. Instead, the need to regulate depended on whether the ads, in fact, functioned as express 

advocacy. 

Ironically, having held that the government’s need to 

suppress speech was determined by its substance—functioning as candidate advocacy—McConnell sustained an 

electioneering communication standard that, unlike the express advocacy standard, turned on issues of form. Id. 

Although McConnell concluded that the formal incidents 

specified by the electioneering communication standard often 

are markers for candidate advocacy, the Court recognized this 

is not always so. Id. at 206-07. In this significant respect the 

electioneering communication standard differed from the 

express advocacy standard—speech that uses explicit language to expressly advocate the election or defeat of a clearly 

identified candidate inherently will be candidate advocacy. 

McConnell acknowledged that “the interests that justify the 

regulation of campaign speech might not apply to the regu- 
17

lation of genuine issue ads.” Id. at 206 n.88 (emphasis 

added).13 In fact, the record in McConnell included evidence 

of such genuine issue speech by corporations. See, e.g.,

McConnell J.A. at 328 (the Chamber supported ads “that 

urged Senator Daschle to schedule a Senate vote on Eugene 

Scalia’s nomination as Solicitor of Labor”), 286 (the National 

Association of Manufactures ran ads supporting the President’s tax proposal and “referred to the proposal as being that 

of the President”). 

Nonetheless, the Court held the electioneering communication standard was not facially void because “the vast 

majority” of ads within its language were the “functional 

equivalent” of express advocacy. McConnell, 540 U.S. at 

206; see also Colo. Right to Life Comm., Inc. v. Davidson, 

395 F. Supp. 2d 1001, 1020 (D. Colo. 2005) (“if the government wishes to justify a regulation of corporate political 

activity under [McConnell], it must demonstrate that the regulated activity is ‘the functional equivalent of express advocacy.’”). McConnell did not discuss, however, whether the 

government had shown the statute to be narrowly tailored. 

Instead, it held that the plaintiffs had not proved the electioneering communication standard to be intolerably overbroad. 

540 U.S. at 207. As noted above, this was a surprising 

departure from settled precedent placing the burden on the 

government to prove narrow tailoring. See supra at 5. 

In sum, McConnell approved regulation of electioneering 

communications only to the extent they constituted the functional equivalent of express candidate advocacy. McConnell

did not find any compelling need to suppress genuine 

 13 Context makes clear that McConnell uses “genuine issue ads” to 

distinguish speech that is the “functional equivalent” of express advocacy. 

To illustrate the “so-called issue advocacy” targeted by the electioneering 

communication standard, McConnell quoted an ad that accused a candidate of beating his wife and failing to support his children. 540 U.S. at 

193-94 n.78. 
18

corporate issue speech, recognized that such speech might 

well be suppressed by the electioneering communication ban, 

and held that the plaintiffs there had not proved how much 

such speech might exist. 

 III. AS APPLIED HOLDINGS OFTEN DO, AND IN 

THIS CASE SHOULD, ESTABLISH CATEGORICAL STANDARDS THAT MINIMIZE 

FUTURE LITIGATION 

Public discourse moves swiftly. And while the legislative 

process is ponderous, the moments where grassroots petitioning may make a difference often are fleeting. Thus, there 

would be little benefit from a holding here that left future 

business speakers with nothing more than a ticket to a lengthy 

lawsuit. 

But that need not be the result. Instead, as applied challenges regularly are used by this Court to establish standards, 

tests, and categories that provide meaningful future protection 

without litigation for entire categories of speech. 

For example, Edenfield v. Fane, 507 U.S. 761 (1993), 

entertained a challenge to promotional activities by Certified 

Public Accountants. The Court accepted that there could be a 

need to protect individuals from such activities. But because 

businesses tend to be more sophisticated and less vulnerable, 

the Court held that “as applied to CPA solicitation in the 

business context,” the statute violated the First Amendment. 

Id. at 763; see also United States v. Edge Broad. Co., 509 

U.S. 418, 431 (1993) (Fane sustained an “as applied challenge to a broad category of commercial solicitation”); 

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) 

(holding an obscenity statute invalid as applied to some 

definitions of “lust” but not others). 

Similarly, Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 620-22 (1996), held that general 
19

spending restrictions could not be applied to “independent 

expenditures” by political committees. And United States v. 

National Treasury Employees Union, 513 U.S. 454 (1995), 

held that a restriction on honoraria violated the First 

Amendment as applied to federal employees in lower pay 

grades. There, although Justice O’Connor’s partial dissent 

preferred to describe a different category of protected speech, 

she accepted the basic approach, saying: 

There is a commonsense appeal to the Government’s 

argument that, having deemed a particular application of 

a statute unconstitutional, a court should not then throw 

up its hands and despair of delineating the area of unconstitutionality. 

513 U.S. at 486. 

The Court must decide how broadly the record and presentation of a particular as applied challenge allows the Court 

to rule. But to the extent it can, the Court should address this 

case in a way that provides clear and practical guidance for 

the future. 

Such an approach is particularly important because of the 

nature and importance of the rights at stake. As Buckley

recognized, core First Amendment activity is easily chilled by 

the threat of criminal or civil penalties. 424 U.S. at 41 n.48. 

That is particularly true of America’s businesses, the vast 

majority of which take great pains to avoid even the 

appearance of a violation and tend to steer far wide of any 

possible violation. See, e.g., Office Politics: the Growing 

Impact of Campaign Finance and Election Law Regulations 

on Corporations, Metropolitan Corp. Counsel 35 (Dec. 2005). 

As a result, uncertainty in the law regulating corporate petitioning and speech imposes a de facto ban on speech the 

government has no need to restrict. See Buckley, 424 U.S. at 

41 n.48. 
20

 IV. THE WRTL ADS ILLUSTRATE A CATEGORY 

OF CORPORATE SPEECH TO WHICH THE 

ELECTIONEERING COMMUNICATION BAN 

CANNOT CONSTITUTIONALLY BE APPLIED 

The specific circumstances presented by WRTL illustrate a 

category of corporate speech to which the electioneering 

communication standard cannot constitutionally be applied.14 

In defining that category, the Court should reject criteria that 

have the practical effect of defeating as applied protection for 

speech and petitioning. 

 A. That category consists of speech that merely 

addresses a current legislative issue and that 

refers to candidates only in their capacity as 

incumbent elected officials with responsibility 

for the issue being discussed. 

In the FEC rulemaking petition, the Chamber and other 

petitioners suggested that one category of corporate speech to 

which the electioneering communication standard does not 

properly apply has the following defining characteristics: 

(i) the “clearly identified federal candidate” is an incumbent 

public officeholder; (ii) the communication exclusively discusses a particular current legislative or executive branch 

matter; (iii) the communication either (a) calls upon the 

candidate to take a particular position or action with respect 

to the matter in his or her incumbent capacity, or (b) calls 

upon the general public to contact the candidate and urge the 

candidate to do so; (iv) if the communication discusses the 

 14 Of course, there is no need for the Court to identify all categories to 

which a standard may not be applied. The Court may proceed incrementally as particular challenges illuminate particular categories that 

should be protected from the general rule. However, given the First 

Amendment imperative to suppress no speech unnecessarily, the Court 

should not be unduly restrained in identifying the categories or principles 

that justify as applied protection. 
21

candidate’s position or record on the matter, it does so only 

by quoting the candidate’s own public statement or reciting 

the candidate’s official action, such as a vote, on the matter; 

(v) the communication does not refer to an election, the 

candidate’s candidacy, or a political party; and (vi) the 

communication does not refer to the candidate’s character, 

qualifications or fitness for office.15

A legislative issue is current at least when it is pending for 

action during the electioneering communication blackout 

period or is likely to be so in the near future. For example, 

the judicial filibuster issue addressed by the WRTL ads was 

active because filibustered nominations were pending in the 

Senate, the Senate remained in session, and Senators were 

actively considering potential solutions. Such a current 

legislative issue urgently and logically justifies discussion 

during the blackout period and is not mere “past history” 

dredged up as a pretext for candidate advocacy. 

Incumbent legislators who have responsibility for acting on 

such an active issue are logical and necessary persons to be 

named in such issue discussions. By contrast, there is little 

need to identify a candidate who does not hold office at the 

time. In the case of the WRTL ads, whom else should 

viewers in Wisconsin petition to end judicial filibusters than 

their own elected Senators? Referring to elected representatives only in that role, and not as candidates or the 

subject of electoral exhortation, allows effective petitioning 

without inviting candidate campaigning. 

 15 This definition accommodates the same concerns as the district 

court’s reference to whether the ad “exhorts the listener to do anything 

other than contact the candidate about the described issue,” Appendix to 

the Jurisdictional Statement (“J.S. App.”) 22a, except it makes clear the 

issue itself may be analyzed and that the call for action may be broader 

than simply contacting the candidate. For example, if the WRTL ad had 

said “write your newspaper, talk to your neighbors, and call your Senators 

to tell them . . . ,” it still would have been a genuine issue ad. 
22

Quoting a candidate’s own public statements, or reciting 

his or her own official acts, without further commentary, can 

provide useful context and explain why a grassroots contact 

to that person makes sense. And such a presentation does not 

threaten the rationale of McConnell. 

A holding that used such elements to identify true issue 

advocacy would be clear enough to permit substantial real 

time application by corporations and to permit swift adjudication if thought necessary.16 It would not be clear enough 

to replace the bright line that this Court holds essential 

to regulating core speech, Buckley, 424 U.S. at 42-44. 

However, operating within the bright line established by the 

electioneering communication standard, it will mitigate that 

standard’s lack of narrow tailoring and protect at least some 

core petitioning and speech Congress has no compelling need 

to regulate. 

To a limited but vital extent, such a ruling would restore 

the core First Amendment right of the Chamber and other 

business organizations to speak out on active legislative 

issues of importance to the business community whenever 

they arise. See supra at 17 (regarding ads urging Senate votes 

on federal nominees and ads supporting the President’s 

proposed tax plans). It also would avoid incentivising 

incumbent federal office holders to shield their official acts 

from public criticism by scheduling them during the electioneering communication blackout period. 

 16 WRTL offers a list of further criteria confirming that its proposed 

speech would not justify suppression. The Chamber submits that most of 

these factors simply are not necessary and would pointlessly circumscribe 

this Court’s delineation of the protected category. 
23

 B. The definition should not employ standards 

that deny clarity or invite delay and litigation 

burden. 

The WRTL district court’s analysis mentioned several other 

considerations in concluding that the electioneering communication ban could not constitutionally be applied to the 

WRTL ads. If the Court deems any such elaboration necessary, it will be critical to avoid any formulation that denies 

clarity or invites delay and litigation burden. 

 1. Subjective elements should be excluded. 

The district court explicitly and wisely declined to make 

protection turn on its assessment of WRTL’s organizational 

motives or on the predicted perceptions of possible viewers of 

the ads. Many considerations support this outcome. 

As Buckley discussed, speakers cannot be expected to 

predict with confidence how subjective factors will be judged 

or what predicted reactions will be attributed to their 

audiences. 424 U.S. at 43. In that case, the D.C. Circuit had 

proposed to define the statutory phrase “relative to” an 

election to mean speech “advocating the election or defeat of 

a candidate.” Id. at 42. 

Buckley held such a standard to be unconstitutionally vague 

because speakers could not confidently predict how their 

“intent” would be assessed, or what “effect” their speech 

might be deemed to have. Id. at 42-43. Such a test “puts the 

speaker . . . wholly at the mercy of the varied understandings 

of his hearers and consequently of whatever inferences may 

be drawn as to his intent and meaning.” Id. at 43 (quoting 

Thomas v. Collins, 323 U.S. 516, 535 (1945)). It “offers no 

security for free discussion [and] . . . blankets with uncertainty whatever may be said.” Id. It compels the speaker to 

“hedge and trim,” id., and to “steer far wider . . . than if the 
24

boundaries of the forbidden areas were clearly marked,” id. at 

41 n.47 (quoting and citing other authority).17

Motive is a particularly problematic consideration with 

respect to corporations or similar organizations that are 

controlled by and act through multiple individuals with 

potentially differing goals. How should subjective hopes of 

various corporate officers, executives, directors, and shareholders be weighed to determine the motives of a corporation? And how can a corporate decision-maker be confident that he or she knows the subjective positions of 

everyone involved? The fact that such a judgment is required 

for purposes of some laws does not alter the fact that 

organizational motive is difficult to assess and is a very 

undesirable standard for an area where bright lines are 

essential. 

Moreover, because motives and predicted reactions are not 

observable, objective facts, they invite extensive discovery to 

find inferential proof. Many speakers would rather stand 

silent than accept intrusive and burdensome document 

production and depositions. Moreover, as already noted, the 

time required by such discovery often will make as applied 

relief illusory. 

Finally, it is difficult to identify a compelling interest that 

turns on a speaker’s subjective motivations.18 Admittedly, 

 17 The extent to which this Court has found First Amendment considerations to demand greater precision than due process generally turns on 

how close the speech that may be chilled by deterrence lies to the core of 

the First Amendment’s protections. It has been somewhat less concerned, 

for example, that imprecision in the definition of obscenity may chill 

some near obscenity, or that imprecision in defining the additional factors 

that convert false speech into defamation may chill some false speech that 

is not strictly defamatory, though even in these areas it strives for precision. In the present context, all potentially chilled speech and petitioning 

lies at the heart of the First Amendment and, hence, must receive 

maximum protection from de facto prohibition via uncertainty. 
25

McConnell repeatedly referred to the “intent” of “sham” ads. 

But it did so to determine the likely characteristics of an 

entire class of activity, not as a standard to be applied to 

regulate specific speech. The standard that was approved was 

the electioneering communication standard, not an ad hoc

assessment of motive, intent, or predicted effect. This Court 

should strive to provide bright line guidance.19

 2. The PASO standard should be avoided or 

objectively defined. 

The district court considered whether the ad text “promotes, attacks, supports, or opposes” the named candidate. 

Appendix to the Jurisdictional Statement (“J.S. App.”) at 22a. 

Facially, this standard invites inferences about the speaker’s 

subjective intent or likely viewer reaction. For the reasons 

just discussed, this PASO standard would be very troubling. 

The Brief for Amici Curiae The League of Women Voters, 

et. al., demonstrates (at 10-12) that the PASO standard has 

been upheld only with respect to political parties, and clearly 

fails the “much stricter vagueness standard” that Buckley

demanded in other contexts. Indeed, the natural meaning of 

the terms involves predictions about subjective intent and 

predicted understanding that the district court sought to avoid. 

 18 A subjective intent element may assure that a speaker is aware of the 

objectionable quality of speech, and thus minimize chill. See United 

States v. Cassel, 408 F.3d 622, 631-33 (9th Cir. 2005) (discussing authorities on the role of intent); Cal. Motor Transp. Co. v. Trucking Unlimited, 

404 U.S. 508, 509-11 (1972) (holding that the sham exception to NoerrPennington protection required proof of both objective baselessness and 

objective bad faith). The intent element here, however, is being proposed 

to increase—rather than reduce—uncertainty. 

19 Bright lines are important to avoid suppression through uncertainty 

of speech that Congress has no compelling need to suppress. It would be 

a perversion to hold that Congress could suppress more speech than 

otherwise to provide a bright line. The ultimate objective must be to 

suppress no more speech and petitioning than is essential. 
26

If the Court’s goal is to define a category with sufficient 

clarity that most speakers can apply it for themselves in real 

time, and that the FEC and courts can apply swiftly and 

consistently when disputes arise, the PASO standard falls 

short for all the reasons Buckley explained and the League of 

Women Voters brief discusses. 

Alternatively, if the Court concludes that the PASO 

standard or something like it is necessary, it should make 

clear that the standard requires an objective assessment within 

the four corners of the ad and does not permit speculation 

over what might have been intended or what might be 

perceived. The advocacy should be clear and certain on the 

face of the ad. 

The Chamber also respectfully urges the Court to state 

expressly it is not adopting any such formula as a primary 

standard that could substitute for the electioneering communication or express advocacy standards. This is critical 

because (i) many state campaign finance statutes around the 

country continue to use the same vague language that Buckley

construed to require express advocacy as well as elements of 

the PASO standard, e.g., La. Rev. Stat. Ann. § 18:1483(9)(a) 

(“‘Expenditure’ means . . . anything of value made for the 

purpose of supporting, opposing, or otherwise influencing the 

nomination or election of a person to public office . . .”); 

(ii) already, McConnell has been misconstrued to hold that 

“holistic” approaches like PASO are sufficient when regulating political speech, e.g., Center for Individual Freedom v. 

Carmouche, 449 F.3d 655, 665 (5th Cir. 2006), cert. denied, 

127 S. Ct. 938 (2007); (iii) similar arguments are common in 

state proceedings, e.g., Brief of Respondents at 20, Voters 

Education Committee v. Washington State Public Disclosure 

Commission, No. 77724-1 (Wash. filed Feb. 16, 2006) (citing 

McConnell for the proposition that “the United States 

Supreme Court has determined that the particular terms 

‘support’ and ‘oppose’ are not vague”); and even the FEC 
27

has misconstrued McConnell to relax Buckley’s vagueness 

standard, e.g., Press Release, FEC, Sierra Club Agrees to Pay 

Civil Penalty for Violation of Federal Campaign Law 

(Nov. 15, 2006), http://www.fec.gov/press/press2006/2006

1115mur.html.20 

The Chamber does not ask this Court to address these other 

situations. Instead, it asks the Court to make explicit the 

limits on any role that it may approve for a PASO type 

standard here. 

 3. Analysis should occur within the four corners 

of the ad. 

The district court said it was limiting its analysis to the four 

corners of the ad, explaining that a broader analysis would 

reduce uncertainty and invite litigation delay. J.S. App. 19a22a. More precisely, the court examined the four corners of 

the ad in light of information about Congressional activity 

that could be judicially noticed, e.g., whether judicial filibustering was an active issue. 

The definition the Chamber proposes above lends itself to a 

similarly focused analysis, with the caveat that the court’s 

judicial notice should not be aggressive in second-guessing 

the existence of an active legislative issue. If objective facts 

such as pending bills, statements from legislative leaders, or 

similar sources indicate an issue is or shortly will become 

active, that should suffice. 

 20 The sixth factor proposed by the Chamber above, supra at 20-21, is 

that the “communication does not refer to the candidate’s character, 

qualifications, or fitness for office.” This standard is intended to be 

applied strictly, and not to allow regulators to “infer” that a candidate is 

implicitly criticized. With the other elements in place, such a strict 

standard does not invite the easy circumvention of the express advocacy 

standard and avoids the uncertainty of a PASO standard. The Court may 

conclude that this sixth factor is not essential. 
28

This four corners approach is vital for at least two reasons. 

First, it provides a fixed basis for self application and real 

time judgments. One certainty about both elections and 

public discourse is that circumstances change rapidly. A 

speaker cannot be sure that the facts existing when an ad is 

planned will exist when it has been produced, distributed and 

run. Nor can a speaker be sure what surrounding facts a 

regulator later may deem significant. 

Second, if pre-speech litigation is thought necessary, it 

allows some hope that a result can be achieved within a 

useful time frame. From 40,000 feet it may seem like a 

district court should be able to target, expedite, and conclude 

discovery promptly, but that is not the real world. To begin 

with, federal courts have many conflicting demands, 

including criminal matters that have a constitutional claim to 

expedition under the Sixth Amendment’s speedy trial guarantee. Moreover, the defendant typically will be the government, and for a variety of reasons, such litigation always 

moves slower. Some extraordinary judges may achieve 

speedy discovery in some exceptional cases, but core First 

Amendment rights should not be held hostage to the need for 

such extraordinary efforts unless there is no other alternative. 

These difficulties cannot be avoided by placing primary 

reliance on temporary restraining orders or temporary 

injunctions. Such procedures themselves take time. Moreover, they are inherently imprecise and approximate, and vest 

a large quantum of discretion in the district judge. Such 

interlocutory procedures are a vital backstop, but they should 

not become a primary method for vindicating core First 

Amendment rights. 

Importantly, in the context of the definition the Chamber has 

proposed, a four-corners standard does not amount to a revived 

express advocacy test. The limits of express advocacy were 

entirely avoided so long as a narrow class of words did not 

appear. By contrast, the other elements of the Chamber’s 
29

suggested standard allow only a few limited types of information to be included. The record contains no evidence that a 

four-corners approach would result in such ads being used as 

the functional equivalent of express advocacy. 

CONCLUSION 

For the foregoing reasons, the judgment of the lower court 

should be affirmed and the Court should hold that the 

electioneering communication ban cannot constitutionally be 

applied to corporate speech where (i) the “clearly identified 

federal candidate” is an incumbent public officeholder; 

(ii) the communication exclusively discusses a particular current legislative or executive branch matter; (iii) the communication either (a) calls upon the candidate to take a particular 

position or action with respect to the matter in his or her 

incumbent capacity, or (b) calls upon the general public to 

contact the candidate and urge the candidate to do so; (iv) if 

the communication discusses the candidate’s position or 

record on the matter, it does so only by quoting the candidate’s own public statement or reciting the candidate’s 

official action, such as a vote, on the matter; (v) the 

communication does not refer to an election, the candidate’s 

candidacy, or a political party; and (vi) the communication 

does not refer to the candidate’s character, qualifications or 

fitness for office. 

Respectfully submitted, 

Of counsel: 

STEVEN J. LAW

CHIEF LEGAL OFFICER AND 

GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

ROBIN S. CONRAD

SENIOR VICE PRESIDENT

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

CALEB P. BURNS

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006 

(202) 719-7000 

Counsel for Amicus Curiae 
30

AMAR D. SARWAL

GENERAL LITIGATION 

COUNSEL

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

JUDITH K. RICHMOND

VICE PRESIDENT AND 

ASSOCIATE GENERAL COUNSEL

U.S. CHAMBER OF COMMERCE

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

March 23, 2007 
1a 

APPENDIX 

106th Congress 

Congressional Action During the 60 Days Prior to 

November Election on Bills of interest to the ACLU 

Capital Punishment:

• “Sense of Congress” regarding the obligation of 

grantee states to ensure access to post-conviction 

DNA testing and competent counsel in capital 

cases (Amdt. 4345 to S. 3045): Introduced in the 

Senate on 10/26/2000. 

Chruch-State: [sic] 

• Bill to protect religious groups in land-use disputes (S 2869) signed by the President on 

9/22/2000; P.L. 106-274. 

• Allows faith-based organizations to receive federal support for programs to help low income 

fathers get more involved in their families’ lives 

(HR 4678): Passed House 9/7/2000. 

Criminal Justice:

• Provide grants to states to process backlog 

of DNA evidence (HR 4640): Passed House 

10/2/2000. 

• Pressure states into requiring HIV testing of rape 

suspects who have been formally charged, by 

threatening to withhold federal crime-fighting 

block grant money (HR 3088): Passed House 

10/2/2000. 

• Aimee’s Law: cuts federal crime fighting money 

to states if convicted murderers & rapists did not 

serve stiff sentences and went on to commit 

offense in another state (part of HR 3244): 

Passed Senate 10/11/2000. 
2a 

Gay and Lesbian Issues:

• Repeal federal charter of Boy Scouts, in reaction 

to Supreme Court: decision that allows Boy 

Scouts to discriminate against homosexuals (HR 

4892): Defeated in House 9/13/2000. 

• Prohibit using local or federal funds for needle 

exchange (amendment to HR 4942): Passed 

House 9/27/2000. 

• Prohibit the use of Federal funds for the conduct 

or support of programs of HIV testing that fail to 

make every reasonable effort to inform the 

individuals of the results of the testing (HR 

5615): Introduced in the House on 10/11/2000. 

Hate Crimes:

• Expansion of federal hate crimes law (amendment to S 2549): House voted to instruct conferees to accept amendment 9/13/2000; conferees 

dropped language from bill 10/5/2000. 

Immigration:

• Allow some immigrants who committed minor 

crimes long ago to apply to stay in US and not be 

deported; part of “Fix ‘96” (HR 5062); Passed 

House 9/19/2000. 

Internet Filtering

• Force schools and libraries to use technology 

protection measures to block access by children 

to web pornography (amendment to HR 4577): 

Conferees added this provision to the bill 

10/23/2000. 
3a 

Media & Violence

• Require violent TV programming be limited to 

hours when children are not likely to be a 

substantial part of audience (S 876): Approved 

by Senate Commerce committee 9/20/2000. 

Physician-Assisted Suicide:

• Overturns Oregon’s law that permits physicianassisted suicide (amendment to HR 2614): 

Passed House 10/26/2000; Filibustered in Senate 

10/27/2000. 

Privacy:

• Restrictions on law enforcement use of electronic 

surveillance (HR 5018): Approved by House 

Judiciary subcommittee 9/14/2000; Mark-up by 

House Judiciary committee 9/20/2000. 

• Creation of commission to study issue of privacy 

on the internet (HR 4049): Defeated in House 

10/2/2000: failed to get 2/3’s majority needed for 

passage under suspension of rules. 

• Prohibit the appearance of Social Security account numbers on or through unopened mailings 

of checks (HR 3218): Passed House 10/18/2000; 

Passed Senate 10/25/2000. 

• Enhance privacy protections for individuals, and 

to prevent fraudulent misuse of Social Security 

account numbers (HR 4857): House full 

committee mark up on 9/28/2000. 

Reproductive Rights:

• Funding prohibition in DC Approp. (HR 4942; 

HR 5633): Passed both House and Senate on 

11/14/2000. 
4a 

• “Conscience clause” to employee-sponsored 

health plans coverage of contraceptives (amendment to HR 4942): Passed House 9/14/2000. 

• Abortion restrictions on international family 

planning aid (HR 4811): Conference Committee 

appointed 10/19/2000; House debates conference 

report 10/25/2000; 

• Define “human being;” seeks to protect humans 

born alive at any stage of pregnancy (HR 4292): 

Passed House 9/26/2000. 

• Prevent abortion protestors convicted of violent 

crimes from seeking bankruptcy protection to 

avoid paying hefty legal penalties (amendment to 

S 3046): Senate voted to proceed with debate on 

10/19/2000. 

• Prohibit use of funds to distribute postcoital 

emergency contraception “morning after pill” on 

elementary or secondary school premises (HR 

4577, Labor/HHS Approp.): Pre. Coburn announces intention to offer motion to instruct 

House conferees on this amendment on 

9/18/2000. 

Secret Evidence

• Makes it harder for INS to use secret evidence to 

deport immigrants or to deny tem [sic] asylum 

(HR 2121): Approved by House Judiciary 

Committee 9/26/2000. 

Terrorism

• Provide clearer coverage over threats against 

former Presidents and members of their families 

(HR 3048): House disagreed with certain Senate 

amendments on 10/25/2000. 
5a 

Trafficking Victims:

• Combat trafficking of persons, especially into the 

sex trade, slavery, and slavery-like conditions 

(HR 3244): Passed Senate 10/11/2000. 

Violence Against Women:

• Reauthorization of VAWA (HR 1248): Passed 

House 9/26/2000; Passed Senate as par [sic] of 

HR 3244 0/11/2000 [sic]. 

Voting Reform

• Proposing a constitutional amendment to abolish 

the electoral college and to provide for the direct 

popular election (SJRes 56): Introduced in the 

Senate on 11/01/2000. Proposing a constitutional amendment to abolish the electoral college 

(HJRes 113): Introduced in the House on 

10/12/2000.