6XSUHPH &RXUW RIWKH 8QLWHG6WDWHV

SENATOR JOHN MCCAIN, REPRESENTATIVE TAMMY

BALDWIN, REPRESENTATIVE CHRISTOPHER SHAYS, AND

REPRESENTATIVE MARTIN MEEHAN,

Appellants,

v.

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

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-./01$123.4,5506 64789

ROGER M. WITTEN

SHANE T. STANSBURY

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

PRATIK A. SHAH

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. MOSS

DANIELLE SPINELLI

BRENT BICKLEY

KEVIN WHELAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 663-6000

Additional Counsel Listed On Inside Cover
DONALD J. SIMON

SONOSKY, CHAMBERS,

SACHSE, ENDRESON &

PERRY, LLC

1425 K Street, NW

Suite 600

Washington, D.C. 20005

(202) 682-0240

FRED WERTHEIMER

DEMOCRACY 21

1875 I Street, NW

Suite 500

Washington, D.C. 20006

(202) 429-2008

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street, NW

Washington, D.C. 20009

(202) 588-1000

ALAN B. MORRISON

Crown Quadrangle

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 725-9648

TREVOR POTTER

J. GERALD HEBERT

PAUL S. RYAN

CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., NW

Suite 650

Washington, D.C. 20036

(202) 736-2200

BRADLEY S. PHILLIPS

GRANT A. DAVIS-DENNY

MUNGER, TOLLES &

OLSON LLP

355 South Grand Avenue

35th Floor

Los Angeles, CA 90071

(213) 683-9100

CHARLES G. CURTIS, JR.

DAVID ANSTAETT

HELLER EHRMAN LLP

One East Main Street

Suite 201

Madison, WI 53703

(608) 663-7460
(i)

:;<=>*?@A"B*C<=<A>*<D

Whether Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, which prohibits a corporation or

labor union from using general treasury funds to finance

“electioneering communications,” is constitutional as applied

to prevent appellee from using general treasury funds to finance three advertisements it sought to broadcast before

the 2004 election.
ii

BEC>*?<=>*@">*F<B*C@,G<<D?A,H

In the proceeding before the three-judge district court,

Wisconsin Right to Life, Inc. was the plaintiff and the Federal Election Commission was the original defendant. Following this Court’s remand to the district court in Wisconsin

Right to Life, Inc. v. FEC, 546 U.S. 410 (2006), Senator John

McCain, Representative Tammy Baldwin, Representative

Christopher Shays, and Representative Martin Meehan intervened as defendants.
(iii)

8*4,-6 0I2,1J2K780789

Page

QUESTION PRESENTED....................................................... i

PARTIES TO THE PROCEEDING....................................... ii

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

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

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

STATUTORY PROVISIONS INVOLVED........................... 2

INTRODUCTION ...................................................................... 2

STATEMENT.............................................................................. 4

SUMMARY OF ARGUMENT............................................... 14

ARGUMENT............................................................................. 17

I. CONGRESS HAS A COMPELLING INTEREST IN

BARRING THE USE OF GENERAL CORPORATE

TREASURIES TO FUND ADVERTISING THAT IS

LIKELY TO INFLUENCE FEDERAL

ELECTIONS, EVEN IF THE ADVERTISING

ALSO ADDRESSES LEGISLATIVE ISSUES ...................... 17

A. This Court Has Long Recognized Congress’s Compelling Interest In Tempering

The Corrosive Effect Of Aggregated Corporate Wealth On Federal Elections ...................... 17

B. Congress’s Compelling Interest Applies

Equally To Express Advocacy And To “Issue Advocacy” That Is Its Functional

Equivalent................................................................... 19

II. THIS COURT’S PRECEDENT DEMONSTRATES

THAT SECTION 203 MAY CONSTITUTIONALLY

BE APPLIED TO WRTL’S ADVERTISEMENTS ............... 21

A. The Undisputed Facts Demonstrate That

WRTL’s Advertisements Functioned As

Election Advocacy ..................................................... 21
iv

B. WRTL Had Ample Alternative Means To

Disseminate Its Message .......................................... 29

III. THE DISTRICT COURT WAS WRONG TO

REFUSE TO CONSIDER THE CONTEXT OF THE

ADVERTISEMENTS............................................................. 31

A. The District Court’s Approach Contravenes This Court’s Holding In McConnell............. 32

B. A Proper Contextual Inquiry Is Administrable............................................................................ 37

CONCLUSION.......................................................................... 43
v

8*4,-6 0I2,1L4M,8N,2K./8/09

G*E=<=

Page(s)

Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940).................. 41

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)............................................................. 17

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............................. 35

Brown v. Hartlage, 456 U.S. 45 (1982)......................... 21, 35-36

Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982).................................................. 38, 39

Buckley v. Valeo, 424 U.S. 1 (1976)..................... 5, 6, 19, 38, 39

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)............ 35

FEC v. Beaumont, 539 U.S. 146 (2003).............. 4, 6, 17, 18, 30

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986)....................................... 6, 17, 18, 30, 40

FEC v. National Right to Work Committee,

459 U.S. 197 (1982)......................................... 4, 5, 17, 18, 39

Heffron v. International Society for Krishna

Consciousness, Inc., 452 U.S. 640 (1981)........................ 35

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

2003)............................................................................... 33, 37

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

Towne v. Eisner, 245 U.S. 418 (1918)...................................... 35

United States v. Automobile Workers,

352 U.S. 567 (1957)..................................................... 4, 5, 17

United States v. Falstaff Brewing Corp.,

410 U.S. 526 (1973)............................................................. 41

Watts v. United States, 394 U.S. 705 (1969)........................... 36

=>E>*;>*<=,EAD"C<H;OE>*?@A,=

2 U.S.C. § 431 (1974).................................................................... 5

2 U.S.C. § 434.......................................................................... 8, 29

2 U.S.C. § 437h note..................................................................... 1

2 U.S.C. § 441b ............................................................... 2, 6, 7, 29
vi

2 U.S.C. § 608 (1974).................................................................... 5

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

Act of Jan. 26, 1907, ch. 420, 34 Stat. 864-865 .......................... 4

Federal Corrupt Practices Act of 1925, §§ 308, 313,

43 Stat. 1072, 1074................................................................ 4

Labor Management Relations Act of 1947, Pub. L.

No. 80-101, § 304, 61 Stat. 159 ............................................ 5

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81 ...........................................passim

11 C.F.R. § 114.10 ........................................................................ 6

O<H?=OE>*?P<Q3E>*<C?EO*=

S. Rep. No. 105-167 (1998).......................................................... 7

Judicial Nominations, Filibusters, and the Constitution: Hearing Before the Subcommittee on

the Constitution, Civil Rights and Property

Rights of the Senate Committee on the Judiciary, 108th Cong., 1st Sess. (2003).............................. 10, 23

@>*F<CE;>*F@C?> ?<=

Days in Session Calendars, U.S. Senate, http://

thomas.loc.gov/home/ds/s1082.html ................................ 28

Hasen, Back on the Campaign Trail?, Legal Times

Online (Feb. 12, 2007)........................................................ 32

LaFave, Substantive Criminal Law (2d ed. 2003)................ 41

Root, Addresses on Government and Citizenship

(1916)...................................................................................... 4



6XSUHPH &RXUW RIWKH 8QLWHG6WDWHV

No. 06-970

SENATOR JOHN MCCAIN, REPRESENTATIVE TAMMY

BALDWIN, REPRESENTATIVE CHRISTOPHER SHAYS, AND

REPRESENTATIVE MARTIN MEEHAN,

Appellants,

v.

WISCONSIN RIGHT TO LIFE, INC.

Appellee.

@B*?A?@A,=3R<O@S

The opinion of the three-judge district court, Wisconsin

Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669

(D.D.C. Dec. 21, 2006), is unreported and reprinted at JS

App. 1a-39a.

1 Prior opinions of the district court are also unreported and reprinted at JS App. 47a-48a and 49a-63a. T;C?=D?G>*?@A

The three-judge district court entered its opinion and

order on December 21, 2006. On December 28, 2006, the

court issued an order stating that the December 21 order

was “a final appealable order as to those issues decided in

the opinion accompanying that order,” and that there was

“no just reason to delay an appeal.” JS App. 40a. Appellants

filed a notice of appeal on December 29, 2006. Id. at 42a-43a.

This Court has jurisdiction over this appeal pursuant to Section 403(a)(3) of the Bipartisan Campaign Reform Act of

2002, Pub. L. No. 107-155, 116 Stat. 113-114, codified at 2

U.S.C. § 437h note, and 28 U.S.C. § 1253.

 

1

“JS App.” refers to the Appendix to Appellants’ Jurisdictional

Statement. “JA” refers to the Joint Appendix.
2

=>E>*;>*@CUB*C@P?=?@A,=3?AP@OP<D

Pertinent statutory provisions and regulations are reproduced at JS App. 64a-79a.

?A>*C@D;,G>*?@A

In a landmark decision just three Terms ago in McConnell v. FEC, 540 U.S. 93 (2003), this Court reaffirmed that

Congress has a compelling interest in guarding against “the

corrosive and distorting effects” that unregulated corporate

or union wealth may have on federal elections. Id. at 205

(citation and internal quotation marks omitted). After considering a voluminous record and extensive briefing, this

Court concluded that Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 441b—which

bars corporations and unions from using funds from their

general treasuries to finance “electioneering communications” but permits them to establish separate, segregated

funds for that purpose—is narrowly tailored to achieve that

critical legislative goal. See 540 U.S. at 206-209.

In doing so, McConnell repudiated the notion that

BCRA’s funding restrictions (and related reporting requirements) could apply only to advertisements employing

“magic words” expressly advocating or opposing a candidate’s election. See 540 U.S. at 193. And it rejected the

claim, vigorously urged by BCRA’s opponents, that Section

203 could not constitutionally encompass “issue advocacy.”

See id. at 206-207. Rather, this Court held that “[t]he justifications for the regulation of express advocacy apply equally”

to advertisements that on their face only exhort the audience to contact a candidate about an issue, “if the ads are

intended to influence the voters’ decisions and have that effect.” Id. at 206. Such ads are “the functional equivalent of

express advocacy” because they achieve the same result as

explicit electioneering—permitting corporations and unions

to use general treasury funds to sway federal elections. Id.

The undisputed facts demonstrate that the advertisements Wisconsin Right to Life, Inc. sought to broadcast in

this case fall squarely into that category. All of WRTL’s ads

denounced a “group of Senators” for filibustering judicial
3

nominees and “causing gridlock,” JS App. 58a-63a; two of the

ads emphasized that the Senators were “backing up some of

our courts to a state of emergency,” id. at 58a-61a. The ads

then urged the audience to contact Senator Feingold—then

a candidate for federal office—and Senator Kohl to tell them

to oppose the filibusters. Id. at 58a-63a. It was public

knowledge that Feingold was one of the “group of Senators”

to whom the ads referred. Indeed, WRTL itself had publicized Senator Feingold’s involvement in the filibusters (an

important issue in the election) and called for his defeat on

that ground. Although the ads asked the audience to contact

Senators Feingold and Kohl, they provided no contact information for them, instead directing viewers to a website

criticizing them for their role in the filibusters. WRTL

sought to run its ads immediately before the 2004 election

(while Congress was in recess and no vote on the filibuster

was imminent) and did not run them after the election (when

the filibuster controversy came to a head). Although WRTL

had a PAC, it made no attempt to use PAC funds for the ads,

but instead sought to use its general treasury funds—which

included sizeable donations from business corporations, including thousands of dollars earmarked specifically for the

ads at issue here—to underwrite its advertising.

The district court shut its eyes to these facts. It refused

to consider anything beyond the text and images of the ads

themselves, holding that because the ads referred to a pending legislative issue and did not attack Senator Feingold in

so many words, WRTL could not constitutionally be required to use PAC funds to finance them. By confining its

inquiry to the ads’ literal words and images—and failing to

ask whether, understood in context, the ads in fact functioned as election advocacy—the district court committed

the same error this Court corrected in McConnell. In doing

so, it reopened an avenue BCRA had closed for circumvention of the decades-old restriction on the use of general

treasury funds to influence federal elections. And it reopened that route not only for non-profit organizations like

WRTL, but for all for-profit corporations and labor unions.
4

WRTL’s advertisements, like many of the ads this

Court considered in McConnell, may have addressed an “issue” in which WRTL had a genuine interest, but their potential to influence the impending federal election was nonetheless patent. As “issue ads” that also functioned as election advocacy, and that were funded by large corporate contributions, WRTL’s ads are at the heart of the problem for

which BCRA crafted a solution—a solution this Court upheld in McConnell. =>E>*<Q<A>

1. FECA and the Evolution of the “Magic Words” Test.

For a century, Congress has worked to protect the integrity

of the political process by regulating the use of corporate

funds to influence federal elections. In 1894, Elihu Root

characterized the outsize effect of corporate war chests on

elections as “a constantly growing evil which has done more

to shake the confidence of the plain people of small means of

this country in our political institutions than any other practice which has ever obtained since the foundation of our

Government.” United States v. Automobile Workers, 352

U.S. 567, 571 (1957) (quoting Root, Addresses on Government and Citizenship 143 (1916)). Distress over corporate

contributions heightened during and after the 1904 presidential elections. See FEC v. Beaumont, 539 U.S. 146, 152

(2003); Automobile Workers, 352 U.S. at 571-575. Congress

responded by enacting the Tillman Act of 1907, which prohibited “any corporation . . . [from] mak[ing] a money contribution in connection with any election to any political office.”

Act of Jan. 26, 1907, ch. 420, 34 Stat. 864-865; see Automobile

Workers, 352 U.S. at 575. Congress strengthened that Act

in 1925 with passage of the Federal Corrupt Practices Act,

which extended contribution restrictions to cover “anything

of value” and made the giving or receiving of corporate contributions in a federal election a federal crime. FEC v. National Right to Work Comm. (NRWC), 459 U.S. 197, 209

(1982); see Federal Corrupt Practices Act of 1925, §§ 308,

313, 43 Stat. 1072, 1074.
5

By the 1940s, Congress became aware that the prohibition on contributions was insufficient to address “[t]he

evil [of] the use of corporation . . . funds to influence the public at large to vote for a particular candidate or a particular

party.” Automobile Workers, 352 U.S. at 589. As Senator

Taft commented, nothing in the existing law prevented a

“candidate for office [from having] his corporation friends

publish an advertisement for him in the newspapers every

day for a month before [the] election.” Id. at 583 (quoting 93

Cong. Rec. 6439). In 1947, in the Taft-Hartley Act, Congress

“plug[ged] up [that] loophole” by expanding the restrictions

expressly to include independent expenditures by corporations, and extending the law’s reach to labor unions as well.

Id. (quoting 93 Cong. Rec. 6439); see Labor Management Relations Act of 1947, Pub. L. No. 80-101, § 304, 61 Stat. 159.

The Federal Election Campaign Act of 1971 (FECA)

carried forward these prohibitions, but “expressly permitted

corporations and unions to establish and administer separate

segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures.” McConnell v. FEC, 540 U.S. 93, 118 (2003).

Congress thus sought to provide appropriate avenues for

political expression while mitigating the corrosive effects of

massive contributions and expenditures flowing from corporate war chests. See NRWC, 459 U.S. at 207-208.

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

adopted a narrowing construction of FECA that gave rise to

what came to be known as the “magic words” test. McConnell, 540 U.S. at 191. As originally enacted, FECA limited

independent expenditures by individuals, as well as corporations and unions, “relative to a clearly identified candidate.”

Buckley, 424 U.S. at 39 (quoting then-2 U.S.C. § 608(e)(1)

(1974)). It also mandated disclosure of certain expenditures,

defined as the use of money or other assets “for the purpose

of . . . influencing” a federal election. Id. at 77 (quoting 2

U.S.C. § 431(f) (1974)). In order to avoid the potential for

unconstitutional vagueness, the Court construed both

phrases (except insofar as they applied to candidates or political committees, see id. at 79) as applying only to “commu-
6

nications that expressly advocate the election or defeat of a

clearly identified candidate,” id. at 80. The Court provided

examples of terms that it considered “express advocacy,”

including “vote for,” “elect,” “support,” “defeat,” and “reject,” id. at 44 n.52—the terms that eventually became

known as the “magic words.”

2 Subsequently, in FEC v.

Massachusetts Citizens for Life, Inc. (MCFL), the Court applied the same construction to 2 U.S.C. § 441b, which requires corporations and unions to use separate segregated

funds, rather than their general treasuries, for expenditures

made “in connection with” a federal election. 479 U.S. 238,

241 (1986).

3

Labor unions and corporations, both for-profit and nonprofit, soon learned that they could easily exploit the “magic

words” test to circumvent core provisions of FECA. They

began sponsoring so-called “issue” advertisements, aired in

the weeks immediately before elections, that strategically

avoided words of express advocacy but nevertheless were

effective in influencing voters’ decisions. See McConnell,

540 U.S. at 126. Because such ads did not employ the “magic

words,” corporations and unions could pay for them out of

 

2 After construing both provisions in this manner, the Buckley Court

upheld the disclosure provision, see 424 U.S. at 80-82, but struck down the

limits on independent expenditures, see id. at 45-50.

3

Section 441b’s restrictions on the use of general treasury funds apply to non-profit as well as business corporations. See 2 U.S.C. § 441b(a).

This Court has upheld that application, noting that non-profit corporations

can easily serve as a conduit for funds from business corporations. See

McConnell, 540 U.S. at 209-211; Beaumont, 539 U.S. at 159-160. MCFL

recognized a narrow exception: it held that Section 441b’s expenditure

restrictions could not constitutionally be applied to non-profit organizations that (1) are formed in order to promote political ideas and cannot

engage in business activities; (2) have no shareholders or other persons

with a claim on their assets or earnings; and (3) were not established by a

business corporation or a labor union and do not accept contributions from

such entities (and thus cannot serve as a conduit for corporate or union

funds that could not otherwise be used to finance election-related expenditures under FECA). See 479 U.S. at 264. Such organizations have come

to be known as “MCFL organizations.” See McConnell, 540 U.S. at 210;

see also 11 C.F.R. § 114.10 (implementing the MCFL exception).
7

their general treasury funds; moreover, they were not subject to FECA’s disclosure requirements and therefore could

be run without revealing the identity of their sponsors. See

id. Issue “ads were attractive . . . precisely because they

were beyond FECA’s reach, enabling candidates and their

parties to work closely with friendly interest groups to

sponsor so-called issue ads when the candidates themselves

were running out of money.” Id. at 127. While those who

bankrolled the ads often hid behind unrevealing names like

“Voters for Campaign Truth,” id. at 128 n.23, “candidates

and officeholders” were often “fully informed about the

sponsorship of so-called issue ads,” id. at 128-129.

During the 1990s, the use of “issue ads” rapidly proliferated. In the 1996 election cycle, about $135 to $150 million

was spent on issue ads; in the ensuing two years, that

amount increased to $250 to $340 million; and in the 2000

election cycle, 130 groups broadcast 1100 different ads,

spending over $500 million. McConnell, 540 U.S. at 128 n.20.

Such widespread use of issue ads rendered FECA’s restrictions on corporate and union expenditures toothless. As one

Senator who participated in Congress’s pre-BCRA investigation of the state of the campaign-finance laws put it, “bogus issue advertising”—together with the growing use of

soft money—“virtually destroyed our campaign finance

laws, leaving us with little more than a pile of legal rubble.”

Id. at 129-130 (quoting S. Rep. No. 105-167, vol. 3, at 4535

(1998) (statement of Sen. Collins)).

2. Congress’s Response. Congress adopted Section 203

of BCRA to close the “magic words” loophole and to put an

end to the blatant evasion of the campaign-finance laws.

Section 203 amended Section 441b of FECA by barring corporations and unions from financing “electioneering communications” with money from their general treasuries. 2

U.S.C. § 441b(b)(2). Corporations and unions remained free

to pay for electioneering communications with funds from

PAC accounts. See id. § 441b(b)(2)(C).

BCRA defined “electioneering communication” as a

“broadcast, cable, or satellite communication” that

(1) “refers to a clearly identified candidate for Federal of-
8

fice”; (2) is made within 60 days before a general election or

within 30 days before a primary election for the office sought

by the candidate; and (3) is, with the exception of communications referring to a candidate for President or Vice President, “targeted to the relevant electorate.” 2 U.S.C.

§ 434(f)(3)(A)(i).

4 Through this carefully tailored, bright-line

definition, Congress sought to close the “issue ad” loophole

while avoiding the vagueness concerns Buckley raised regarding FECA’s definition of “expenditure.”

3. McConnell v. FEC. A number of parties brought

constitutional challenges to BCRA. The plaintiffs made two

primary arguments that Section 203 was unconstitutional.

First, they contended that Congress could not constitutionally regulate the funding of any advertising other than “express advocacy” using the “magic words” identified in Buckley. McConnell, 540 U.S. at 190. Second, they claimed that

BCRA’s definition of “electioneering communication” was

unconstitutionally overbroad, because it encompassed significant numbers of “genuine issue ads” whose funding plaintiffs claimed Congress could not constitutionally restrict.

See id. at 204-206.

After reviewing a massive record replete with evidence

showing the extent of the “issue ad” problem, this Court rejected both contentions. It first made clear that Buckley’s

“express advocacy” gloss on FECA was a matter of “statutory interpretation,” not “constitutional command.” 540 U.S.

at 191-192. Indeed, the Court concluded that “the unmistakable lesson from the record in this litigation . . . is that Buckley’s magic words requirement is functionally meaningless.”

Id. at 193. Advertisers could “easily evade the line by eschewing the use of magic words,” and “although the resulting advertisements do not urge the viewer to vote for or

 

4 A communication is deemed “targeted to the relevant electorate” if

it “can be received by 50,000 or more persons” in the district (in the case

of House races) or State (in the case of Senate races) the candidate seeks

to represent. 2 U.S.C. § 434(f)(3)(C).
9

against a candidate in so many words, they are no less

clearly intended to influence the election.” Id.

This Court then held that Section 203 was not overbroad, explaining that “[t]he justifications for the regulation

of express advocacy apply equally” to issue ads aired during

the weeks before an election “if the ads are intended to influence the voters’ decisions and have that effect.” 540 U.S.

at 206. The Court noted that “the vast majority” of ads in

the record that would have fallen within BCRA’s definition

of electioneering communications “clearly had [an electioneering] purpose.” Id. Moreover, the Court observed, “whatever the precise percentage may have been in the past, in

the future corporations and unions may finance genuine

issue ads during [BCRA’s specified pre-election period] by

simply avoiding any specific reference to federal candidates,

or in doubtful cases by paying for the ad from a segregated

fund.” Id. The Court rejected the argument that Section

203 could not constitutionally be applied to non-profit corporations, but construed it not to apply to MCFL organizations. See id. at 209-211.

4. WRTL’s Advertisements and the 2004 Election. In

this as-applied challenge, Wisconsin Right to Life, Inc.

claims that Section 203 may not constitutionally be applied

to bar it from using general treasury funds to broadcast

three advertisements that fall within BCRA’s definition of

“electioneering communication” and that WRTL planned to

air shortly before the 2004 elections.

WRTL is a non-profit corporation organized under Section 501(c)(4) of the Internal Revenue Code. Am. Compl.

¶ 20; Pl.’s Findings of Fact ¶ 1. WRTL accepts contributions

from business corporations; indeed, in 2004 it received over

$315,000 from corporations, the “vast majority” from business corporations. FEC SJ Ex. 3 at 147-151; FEC SJ Ex.

60.

5 Accordingly, as WRTL acknowledges, Am. Compl. ¶ 23;

 

5

In citations to the record, “FEC SJ Ex.” refers to the exhibits to

the motion for summary judgment filed by the Federal Election Commission on July 14, 2006. “Intervenors SJ Ex.” refers to the exhibits to the
10

Pl.’s Findings of Fact ¶ 3, it is not an MCFL organization

and is not entitled to an exemption from Section 203. See

supra note 3. WRTL must therefore finance any ads qualifying as “electioneering communications” through a PAC.

WRTL has long maintained and used a PAC, the Wisconsin

Right to Life Political Action Committee.

In 2004, WRTL and its PAC targeted Senator Russell

Feingold—then running for reelection to the Senate—for

defeat. In a March 2004 press release, WRTL’s PAC announced its “Top Election Priorities: Re-elect President

Bush . . . Send Feingold Packing,” and opined that “the defeat of Feingold must be uppermost in the minds of Wisconsin’s right to life community in the 2004 elections.” JA 82-84.

Three weeks later, WRTL itself issued a similar press release proclaiming: “Top Election Priorities for Right to Life

Movement in Wisconsin: Re-elect George W. Bush . . . Send

Feingold Packing!” JA 78.

The Senate filibuster of judicial nominees was an important campaign issue in the 2004 Wisconsin Senate race.

Senator Feingold took part in and publicly defended the filibusters.

6 WRTL explicitly connected its opposition to Senator Feingold to the filibuster issue. WRTL’s PAC’s March

2004 press release, for example, emphasized that “[w]e do

not want Russ Feingold to continue to have the ability to

thwart President Bush’s judicial nominees,” and noted that

Feingold’s Republican opponents “all stated they would oppose a filibuster.” JA 82-83.

WRTL began airing the three advertisements at issue

here in late July and early August of 2004. The lead-in to

the advertisements varied, but each ad criticized a “group of

Senators” for filibustering judicial nominees, accused the

 

motion for summary judgment filed by Appellants, as intervenordefendants in the district court, on July 14, 2006.

6

See Judicial Nominations, Filibusters, and the Constitution: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property

Rights of the Senate Comm. on the Judiciary (“Judicial Nominations

Hearing”), 108th Cong., 1st Sess. 5-7 (2003) (statement of Sen. Feingold).
11

Senators of blocking “qualified” nominees and “causing gridlock,” and ended by exhorting the audience to “[c]ontact

Senators Feingold and Kohl and tell them to oppose the filibuster.” JS App. 58a-63a. None of the ads contained contact

information for Senators Feingold and Kohl. Instead, they

directed the audience to a website maintained by WRTL

called “BeFair.org,” which included material criticizing

Senator Feingold for his role in the filibusters. JS App. 59a,

61a, 62a.

5. WRTL’s Challenge. The primary election was held

on September 14, 2004, and the general election on November 2, 2004. BCRA’s electioneering communications period

began on August 15, 2004, 30 days before the primary.

On July 28, 2004, WRTL filed suit. WRTL asserted that

it anticipated that its three “ongoing advertisements [would

be considered] electioneering communications from August

15 to November 2, [2004,] because they meet the statutory

and regulatory definitions.” Compl. ¶ 23. WRTL claimed

that Section 203 could not constitutionally be applied to restrict the funding of those ads and sought a preliminary and

permanent injunction barring the FEC from enforcing Section 203 as to those ads. Compl. ¶¶ 61-62, Prayer for Relief

¶ 4. In addition, WRTL sought broader declaratory and injunctive relief finding Section 203 unconstitutional as applied

to any advertisement that constituted “grassroots lobbying.”

Compl. ¶¶ 61-62, Prayer for Relief ¶ 3.

The district court denied WRTL’s request for a preliminary injunction. JS App. 56a. Relying on a footnote in

McConnell, the district court stated that “the reasoning of

the McConnell Court leaves no room for the kind of ‘as applied’ challenge WRTL propounds before us.” Id. at 52a (citing 540 U.S. at 190 n.73). The court further explained that

“[t]he facts suggest that WRTL’s advertisements may fit

the very type of activity McConnell found Congress had a

compelling interest in regulating.” Id. at 53a. It noted:

Here, WRTL and WRTL’s PAC used other print

and electronic media to publicize its filibuster message—a campaign issue—during the months prior
12

to the electioneering blackout period, and only as

the blackout period approached did WRTL switch

to broadcast media. This followed the PAC endorsing opponents seeking to unseat a candidate whom

WRTL names in its broadcast advertisement, and

the PAC announcing as a priority “sending Feingold packing.”

Id. at 53a-54a (citations omitted). The court also found a

preliminary injunction unwarranted because “the actual

limitation on plaintiff’s freedom of expression . . . is not

nearly so great as plaintiff argues.” Id. at 54a. “BCRA does

not prohibit the sort of speech plaintiff would undertake, but

only requires that corporations and unions engaging in such

speech must channel their spending through political action

committees (PACs).” Id.

The district court subsequently dismissed WRTL’s

complaint, holding “for the reasons set forth in its prior opinion . . . that WRTL’s ‘as-applied’ challenge to BCRA is foreclosed by . . . McConnell.” JS App. 48a.

6. WRTL’s Appeal and this Court’s Remand. WRTL

appealed to this Court, which vacated the district court’s

judgment, holding that the district court had misread its

footnote in McConnell and explaining that “[i]n upholding

§ 203 against a facial challenge, we did not purport to resolve

future as-applied challenges.” JS App. 45a. As to the district court’s statement that the facts of this case “suggest

that WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling interest in

regulating,” the Court concluded that it was “not clear”

whether the district court had “intended . . . to rest on this

ground” in dismissing WRTL’s complaint. Id. The Court

remanded for the district court “to consider the merits of

WRTL’s as-applied challenge in the first instance.” Id. at

46a.

7. The District Court’s Order on Remand. Following

the remand, Senator McCain and Representatives Baldwin,

Shays, and Meehan intervened as defendants. The parties

then engaged in limited discovery and filed cross-motions for
13

summary judgment. On December 21, 2006, in an opinion

authored by Judge Leon and joined by Judge Sentelle, the

three-judge court granted WRTL’s motion for summary

judgment and held Section 203 unconstitutional as applied to

the three advertisements WRTL sought to run in 2004. JS

App. 24a.

7

The district court first held that WRTL’s challenge regarding those three advertisements was not moot. JS App.

12a.

8 Turning to the merits, the court opined that it would

be both “practically and theoretically unacceptable” in an asapplied challenge to Section 203 to consider any facts other

than the text and images of the advertisements themselves.

Id. at 16a. Accordingly, the court held that it would “limit

its consideration to language within the four corners of

the . . . ads.” Id. at 18a. Observing that WRTL’s ads “describe . . . an ongoing issue of legislative concern,” and “do

not promote, attack, support, or oppose” Senator Feingold

or expressly refer to Feingold’s position on the filibuster issue, the court concluded that WRTL’s ads were not the

“functional equivalent of express advocacy” and thus did not

implicate the compelling interest underlying Section 203 of

BCRA. Id. at 19a-20a, 23a. The court did not address

 

7

The district court addressed only WRTL’s as-applied challenge

with respect to the three specific advertisements it sought to run in 2004,

finding that WRTL’s generalized challenge to BCRA’s application to

“grassroots lobbying” was unripe. JS App. 13a. WRTL has not appealed

that ruling, and it is not before this Court.

8 Before the district court, Appellants contended that WRTL’s challenge with respect to the three 2004 ads was moot and not capable of repetition because WRTL had not demonstrated that it was likely to run ads

in the future that would present similar factual circumstances. The district court rejected that argument, stating that the specific factual circumstances surrounding the ads were not relevant to WRTL’s as-applied

challenge. JS App. 11a-12a. Appellants disagree with that premise for

the reasons given below. See infra Part III. However, Appellants no

longer contend that the dispute is nonjusticiable, particularly in light of

more recent attempts by WRTL to finance electioneering communications

with its general treasury funds.
14

WRTL’s ability to use alternative means to disseminate its

message. Id. at 24a n.24.

Judge Roberts dissented, stating that the majority’s

“plain facial analysis of the text in WRTL’s 2004 advertisements—ignoring the context in which the text was developed”—was “inconsistent with McConnell, . . . inconsistent

with this panel’s own prior rulings, and finds little support in

logic.” JS App. 25a. Examining the context of the ads,

Judge Roberts found that “WRTL’s role in the political environment that wrought the ad campaign in the first place

could be probative of the intent of the ads” and cited a long

list of facts suggesting an electioneering purpose. Id. at 34a;

see also id. at 34a-36a. He concluded, however, that there

was a genuine issue of material fact as to WRTL’s subjective

intent in running the ads and thus would not have resolved

the case on summary judgment. Id. at 39a. =;QQ3ECU@VECH;Q<A>

This Court has long recognized Congress’s compelling

interest in guarding against the undue and damaging influence that business corporations and unions could exercise on

federal elections if permitted to use their general treasuries

to fund electioneering. That interest extends equally to notfor-profit advocacy groups, like WRTL, to the extent they

act as conduits for corporate or union funds. In McConnell

v. FEC, this Court held that Congress’s interest is not limited to regulating particular words or forms used to advocate for or against a candidate, but encompasses all advertisements that are the “functional equivalent of express advocacy.” 540 U.S. 93, 206 (2003).

The uncontested facts leave no doubt that WRTL’s advertisements fall into that category. The ads denounced a

“group of Senators,” of whom Senators Feingold and Kohl

were known to be a part, for filibustering, and then instructed the audience to call Feingold and Kohl and tell them

to oppose the filibusters. That alone is sufficient to establish

the likelihood that the ads would have functioned as electioneering: any voters aware of Feingold’s public position on

the filibusters, or who could infer it from the ads themselves,
15

would have clearly understood the ads to call into question

Feingold’s fitness to continue serving in the Senate.

If more were needed, numerous additional facts confirm

the electioneering nature of WRTL’s ads: (1) WRTL and its

PAC had openly advocated for Senator Feingold’s defeat in

the 2004 election and had identified the filibuster issue as a

reason he should be removed from office; (2) Feingold’s Republican opponents had also made the filibusters a central

issue in the campaign; (3) WRTL’s ads provided no contact

information for Senator Feingold, but did refer the audience

to a website that expressly criticized Feingold for his role in

the filibusters; and (4) WRTL sought to broadcast the ads

immediately prior to the election, while the Senate was in

recess, rather than when a vote to end a filibuster was imminent. Moreover, WRTL had ample alternative means for

disseminating its message, including using its established

PAC or constituting itself as an MCFL organization that

does not accept contributions from business corporations.

Rather than ask whether WRTL’s ads would have functioned as election advocacy in the context in which their audience would have received them, the district court refused

to look beyond the ads’ literal words and images. It concluded that because the ads referred to a pending legislative

issue and did not attack Senator Feingold in so many words,

their funding could not be regulated. That blinkered approach offends common sense and cannot be reconciled with

McConnell, which made clear that Congress’s compelling

interest in regulating corporate expenditures goes beyond

express support for or opposition to a candidate, extending

to any ad that has the same election-influencing function. It

also threatens to undo the work that Congress did in BCRA,

and that this Court upheld in McConnell, to close the “issue

ad” loophole—not only for non-profit advocacy groups like

WRTL, but for all business corporations and unions.

The district court attempted to justify its approach by

asserting that examining the context of the ads would be

practically and theoretically unmanageable. Those fears are

insubstantial. The district court’s “practical” concern was

that developing a record would prove too onerous. But no
16

extensive record was necessary to determine that ads

criticizing a “group of Senators” including Senator Feingold

were likely to function as election advocacy against Feingold

when broadcast immediately before the election. In any

event, this Court has previously rejected the notion that the

difficulty of compiling a record to support an as-applied challenge can serve as a basis for a categorical exemption from

the campaign-finance laws.

The district court’s “theoretical” concern—that looking

beyond the ad’s four corners would involve an unworkable

investigation into the advertiser’s subjective intent—is also

groundless. The court failed to appreciate that, in light of

McConnell’s holding that Section 203 is constitutional as to

the “vast majority” of ads within its coverage, 540 U.S. at

206, an as-applied challenge should succeed only if the ads

are so different in kind from that “vast majority” that they

do not implicate the compelling interests underpinning the

statute. To resolve that question, it is not necessary to

plumb the advertiser’s subjective state of mind. Any ad that

satisfies BCRA’s definition of “electioneering communication” and that is likely to influence voters’ decisions, based

on an examination of the ad’s objective content and context,

sufficiently evinces an electioneering purpose and implicates

the legitimate goals of BCRA. In this case, moreover,

WRTL’s open advocacy of Feingold’s defeat, precisely because of his role in the filibusters, can leave no real doubt of

its electioneering purpose.

For those reasons, no trial is necessary to resolve any

disputed issues here. WRTL’s ads plainly fall at the core of

Section 203’s constitutional application, and this Court

should reverse the district court’s judgment and remand for

entry of summary judgment for appellants.
17

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This Court reaffirmed in McConnell what is now wellestablished: that Congress has a compelling interest in preventing the “corrosive and distorting effects” of corporate

and union treasuries on the integrity of the political process.

McConnell v. FEC, 540 U.S. 93, 205 (2003). As the Court

explained, “the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation” is long-standing. Id. (quoting FEC v. Beaumont, 539 U.S. 146, 155 (2003)). Indeed, Congress has regulated corporate contributions to candidates for a full century,

and it has regulated election-related expenditures by corporations and unions for 60 years. See United States v. Automobile Workers, 352 U.S. 567, 570-584 (1957); McConnell,

540 U.S. at 114-118.

At least two significant justifications support restricting

the use of corporate treasury funds to influence federal elections. First, the “special advantages which go with the corporate form of organization,” FEC v. National Right to

Work Comm. (NRWC), 459 U.S. 197, 207 (1982), permit corporations to use “resources amassed in the economic marketplace” to obtain “an unfair advantage in the political

marketplace.” FEC v. Massachusetts Citizens for Life, Inc.

(MCFL), 479 U.S. 238, 257 (1986); accord Beaumont, 539

U.S. at 154; Austin v. Michigan Chamber of Commerce, 494

U.S. 652, 658-659 (1990). As the Court explained in MCFL:

The resources in the treasury of a business corporation . . . are not an indication of popular support for

the corporation’s political ideas. They reflect in-
18

stead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.

479 U.S. at 258. Second, “individuals who have paid money

into a corporation . . . for purposes other than the support of

candidates” should not have “that money used to support

political candidates to whom they may be opposed.” NRWC,

459 U.S. at 208; accord MCFL, 479 U.S. at 260.

In short, Congress has a compelling interest in mitigating the effect on federal elections of “immense aggregations

of wealth that are accumulated with the help of the corporate form and that have little or no correlation” to either the

general public’s or the corporation’s shareholders’ “support

for the corporation’s political ideas.” McConnell, 540 U.S. at

205. Requiring corporations to fund their election-related

speech through PACs serves that end by “allow[ing] corporate political participation without the temptation to use

corporate [general treasury] funds for political influence.”

Beaumont, 539 U.S. at 163.

Those concerns are also applicable to non-profit advocacy groups that accept donations from business corporations. See McConnell, 540 U.S. at 209-211; Beaumont, 539

U.S. at 159-160 & n.5. Such groups can “serv[e] as conduits

for the type of direct spending that creates a threat to the

political marketplace.” MCFL, 479 U.S. at 264; see also

McConnell, 540 U.S. at 211. Accordingly, although this

Court in MCFL recognized the existence of a limited class of

non-profit organizations that are sufficiently different from

business corporations that they do not implicate Congress’s

interest in regulating corporate election spending, it limited

the MCFL exemption to organizations that were not established by a business corporation or labor union and do not

accept contributions from such entities. MCFL, 479 U.S. at

264; see McConnell, 540 U.S. at 211. Here, because WRTL

accepted substantial donations from for-profit corporations,

WRTL does not qualify for an MCFL exemption, as it has

acknowledged. Its election-related expenditures raise pre-
19

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This Court held in McConnell that the compelling interest in regulating corporate and union election expenditures

is not limited to advertisements that contain words expressly advocating the election or defeat of a candidate. See

540 U.S. at 190-194, 204-207. Rather, “[t]he justifications for

the regulation of express advocacy apply equally to” all advertisements that “are intended to influence the voters’ decisions and have that effect” and thus are “the functional

equivalent of express advocacy.” Id. at 206.

BCRA’s opponents argued vigorously that its restrictions on electioneering communications could not constitutionally be applied to “issue advocacy.” 540 U.S. at 190. This

Court unequivocally rejected that contention. It explained

that issue advocacy—“the discussion of political policy generally or advocacy of the passage or defeat of legislation”—is

entitled to no greater protection under the First Amendment than “[a]dvocacy of the election or defeat of candidates

for federal office.” Id. at 205 (quoting Buckley, 424 U.S. at

48). And it concluded:

[W]e [are not] persuaded . . . that the First

Amendment erects a rigid barrier between express

advocacy and so-called issue advocacy. That notion

cannot be squared with our longstanding recognition that the presence or absence of magic words

cannot meaningfully distinguish electioneering

speech from a true issue ad. Indeed, the unmistakable lesson from the record in this litigation . . . is

that Buckley’s magic-words requirement is functionally meaningless. Not only can advertisers easily evade the line by eschewing the use of magic

words, but they would seldom choose to use such

words even if permitted. And although the resulting advertisements do not urge the viewer to vote
20

for or against a candidate in so many words, they

are no less clearly intended to influence the election.

McConnell, 540 U.S. at 193.

This Court went on to reject plaintiffs’ contention that

BCRA’s definition of “electioneering communications” was

unconstitutionally overbroad. Although the Court accepted

the hypothesis that BCRA’s definition might apply to some

ads that did not function as electioneering and thus did not

implicate Congress’s regulatory goals, it concluded after reviewing the extensive record that “the vast majority of ads,”

including “issue ads,” that identified a candidate and were

broadcast during the relevant pre-election period “clearly

had [an electioneering] purpose.” 540 U.S. at 206. “Far from

establishing that BCRA’s application to pure issue ads is

substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly

supports the contrary conclusion.” Id. at 207. In short, the

record confirmed Congress’s common-sense judgment that

ads clearly identifying a candidate in a federal election and

broadcast to 50,000 or more people in the relevant district

shortly before the election will almost certainly operate as

electioneering.

The Court further observed that “whatever the precise

percentage” of ads meeting BCRA’s criteria but not constituting electioneering “may have been in the past, in the future corporations . . . may finance” such ads “by simply

avoiding any specific reference to federal candidates, or in

doubtful cases by paying for the ad from a segregated fund.”

540 U.S. at 206.

McConnell thus laid out the basic principles that must

govern any as-applied challenge to Section 203 of BCRA:

“Issue ads” are entitled to no greater constitutional protection than express electioneering. Congress may regulate the

funding of ads that focus on “issues” and do not expressly

support or oppose a candidate if the ads nevertheless function as election advocacy. Advertisements that meet

BCRA’s definition of “electioneering communication” are
21

highly likely to fall into that category. And, in “doubtful

cases,” advertisers’ ability to pay for their ads from a segregated fund counsels against a finding of unconstitutionality. __ `^v*ph¤ac yfrh¦¥fgg{*gd r ̈§Kgmc*d*hrfk rgh©^vk r

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Against the backdrop of McConnell, resolving WRTL’s

as-applied challenge is a straightforward task. The undisputed facts demonstrate that WRTL’s ads functioned as

election advocacy and thus are at the core of the problem

Congress legitimately addressed in BCRA. As this Court

observed of another as-applied First Amendment challenge,

“acknowledging the difficulty of rendering a concise formulation” to govern all such challenges, “or recognizing the

possibility of borderline cases, does not disable us from identifying cases far from any troublesome border.” Brown v.

Hartlage, 456 U.S. 45, 56 (1982). This is such a case. WK`u^*LZ,*  Iz§,*L^*,X^*

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WRTL sought to run one television and two radio ads

during the period immediately before the 2004 primary and

general elections. The radio ad entitled “Wedding” is illustrative:

PASTOR: And who gives this woman to be married

to this man?

BRIDE’S FATHER (rambling): Well, as father of

the bride, I certainly could. But instead, I’d like to

share a few tips on how to properly install drywall.

Now you put the drywall up . . .

[VOICE-OVER]: Sometimes it’s just not fair to delay an important decision.

But in Washington it’s happening. A group of

Senators is using the filibuster delay tactic to block

federal judicial nominees from a simple “yes” or

“no” vote. So qualified candidates don’t get a

chance to serve.
22

Yes, it’s politics at work, causing gridlock and backing up some of our courts to a state of emergency.

BRIDE’S FATHER (rambling): Then you get your

joint compound and your joint tape and put the tape

up over . . .

Contact Senators Feingold and Kohl and tell them

to oppose the filibuster.

Visit: BeFair.org. That’s BeFair.org.

Paid for by Wisconsin Right to Life (befair.org),

which is responsible for the content of this advertising and not authorized by any candidate or candidate’s committee.

JS App. 58a-59a.

9 Senator Feingold, who was running for

reelection in 2004, was, of course, one of the “group of Senators” who had participated in filibusters of judicial nominees.

WRTL’s advertisements possessed two critical characteristics that ensured that, when run immediately before the

election, they would function as electioneering. First, the

ads took a critical stance regarding a candidate’s position on

an issue (albeit by denouncing a “group of Senators” of

whom the candidate was one, rather than expressly criticizing the candidate by name). And, second, they referred to

the candidate by name in urging the audience to contact the

candidate about the issue. It is precisely this type of “issue

ad” that was widely used to evade the “magic words” restriction on election advocacy, that Congress was concerned

to capture in BCRA’s definition of “electioneering communication,” and that this Court concluded Congress had a compelling interest in regulating. As McConnell explained:

“Little difference exist[s] . . . between an ad that urge[s]

viewers to ‘vote against Jane Doe’ and one that condemn[s]

 

9

The other radio ad, “Loan,” has a different lead-in but is otherwise

almost identical to “Wedding.” JS App. 60a-61a. The television ad, “Waiting,” likewise criticizes “a group of U.S. Senators” for “blocking qualified

nominees” and “causing gridlock” by filibustering and exhorts viewers to

“[c]ontact Senators Feingold and Kohl and tell them to oppose the filibuster” and to visit BeFair.org. Id. at 62a.
23

Jane Doe’s record on a particular issue before exhorting

viewers to ‘call Jane Doe and tell her what you think.’” 540

U.S. at 127.

The text of WRTL’s ads does not expressly state that

Senator Feingold is one of the “group of Senators” using

“delay tactic[s] to block” “qualified candidates,” “causing

gridlock and backing up . . . courts to a state of emergency.”

JS App. 59a, 61a; see also id. at 62a. But that fact cannot be

dispositive, as this Court’s rejection of the “magic words”

approach makes clear. Whether Congress may regulate an

ad’s financing turns not on whether it uses particular words,

or whether it makes its election-related nature explicit, but

whether it is likely to function as election advocacy by affecting voters’ decisions. See McConnell, 540 U.S. at 206.

Here, Senator Feingold’s participation in the filibusters

was public knowledge, and Feingold had publicly defended

the filibusters.

10 Moreover, the ads themselves strongly

suggest that Feingold did not oppose the filibusters—if he

did, an ad urging the audience to lobby him on the issue

would have been gratuitous. For those Wisconsin voters

who already knew Feingold’s position on the filibuster issue,

or who could surmise his likely position either from his party

affiliation or from the strong implication of the ads themselves, the ads inescapably functioned as electioneering.

11

The text of WRTL’s ads, in conjunction with the undisputed fact that Senator Feingold was one of the “group of

Senators” the ads denounced, thus suffices to decide this

case. This Court need look no further to recognize that

 

10

See Judicial Nominations Hearing, supra note 6, at 5-7 (statement of Sen. Feingold).

11

The fact that WRTL’s ads also named Senator Kohl—who was not

up for re-election in 2004—does not alter the effect of the ads, and such a

readily available tactic should not shield an otherwise obvious electioneering ad from BCRA. Indeed, in this case, naming Senator Kohl—also a

participant in the filibusters, see, e.g., JA 73—merely increased the likelihood that the audience would identify both Feingold and Kohl as members

of the “group of Senators” being criticized.
24

WRTL’s ads cannot meaningfully be distinguished from the

paradigmatic “Jane Doe” ads that BCRA addressed and that

Congress may constitutionally regulate.

If more were needed, however, a wealth of additional

undisputed evidence confirms that WRTL’s ads are “the

functional equivalent of express advocacy.” McConnell, 540

U.S. at 206.

First, throughout the spring, summer, and fall of 2004,

WRTL and its PAC publicly opposed Senator Feingold’s reelection, endorsed his opponents, criticized him for his participation in the filibusters, and cited the filibusters as a reason he should be removed from office.

12

In a March 5, 2004 press release, for example, WRTL’s

PAC endorsed Feingold’s Republican opponents, commenting that “[w]e do not want Russ Feingold to continue to have

the ability to thwart President Bush’s judicial nominees.”

JA 82-83. A few weeks later, WRTL issued a press release

announcing that Feingold’s defeat was one of its “Top Election Priorities,” resolving to “Send Feingold Packing!” and

characterizing him as “tied to [a] radical pro-abortion philosophy” and lacking a “modicum of respect for human life.”

JA 78-80. In a July 14, 2004 “URGENT E-Alert,” WRTL

announced that “FILIBUSTERS BY FEINGOLD, KOHL

OF THE PRESIDENT’S JUDICIAL NOMINEES MUST

STOP!” and continued:

Is it fair for Senators Feingold and Kohl to continually vote to filibuster the President’s judicial nominees? You probably agree that the President’s

nominees deserve an up or down vote in a reasonable time frame. Yet, 16 out of 16 times over the

past two years, Feingold and Kohl have voted to

 

12 WRTL had a history of electioneering against Feingold. WRTL’s

PAC made independent expenditures against Feingold (or for his opponent) in both the 1992 and 1998 electoral cycles. FEC SJ Exs. 11, 12. In

the 1998 cycle alone, WRTL’s PAC spent more than $60,000 on independent expenditures devoted in part or entirely to the defeat of Feingold or

the support of his opponent. FEC SJ Ex. 12.
25

filibuster certain of the President’s nominees. . . .

Feingold and Kohl are putting politics into the

court system, creating gridlock, and costing taxpayers money.

FEC SJ Ex. 27.

13 And before the general election, WRTL’s

PAC distributed thousands of voter guides contrasting “ProAbortion Russ Feingold” with “Pro-Life Tim Michels,”

Feingold’s opponent, and asserting that “Tim Michels has

pledged to allow the senate to vote on President Bush’s judicial nominees,” while “Russ Feingold has voted approximately 20 times since March 2003 to prevent a vote on

President Bush’s judicial nominees.” FEC SJ Ex. 24 at 15.

14

Thus, WRTL made substantial efforts to ensure that

the filibuster controversy would be an important issue in the

election, and its “issue ads” were part of a larger campaign

with the dual—and related—aims of seeing WRTL’s preferred judicial nominees confirmed and unseating Senator

Feingold.

Second, WRTL’s campaigning dovetailed with partisan

efforts to make the filibusters a critical issue in the 2004

Wisconsin Senate race. The Wisconsin Republican Party

and the three candidates seeking the Republican nomination—Tim Michels (the eventual nominee), Russ Darrow,

 

13

The next day, in an “E-Update” sent to its supporters, WRTL

again stressed that “Feingold has voted to filibuster nominees 16 out of 16

times!” and asserted that its PAC would “vigorously support whichever of

the 3” Republican candidates won the primary, in part because all three

had “pledged to allow an up or down vote on the President’s judicial nominees.” JA 97-98.

14 WRTL also devoted a substantial portion of the spring, summer,

and fall editions of its quarterly magazine, Life Without Limits, to opposing Feingold’s reelection and criticizing his position on the filibusters. JA

100-109; FEC SJ Ex. 24. For example, the cover story in the spring 2004

edition asserted that “Feingold has been active in his opposition to Bush’s

judicial nominees,” noted approvingly that his Republican opponents

would oppose filibusters, and concluded that “FEINGOLD MUST GO!”

JA 100-103.
26

and Bob Welch—all invoked Feingold’s participation in the

filibusters as a central reason he should be defeated.

An article in The Milwaukee Journal Sentinel a year

before the election, headlined “3 Seeking Feingold Seat Attack Him on Judges Issue,” reported:

In Wisconsin, the three Republicans vying to take

on Senate Democrat Russ Feingold are attacking

him on judges and assert the controversy resonates

with voters. . . . “I think it will be a huge issue,”

said GOP Senate candidate Russ Darrow.

JA 71. The same article quoted Darrow as calling Feingold

“a leader in the stonewalling effort” on judges, and saying, “I

think it is the worst kind of politics. It’s why many Americans want a new face.” JA 74. Welch opined that the filibuster “was a dangerous precedent that would lead to a political

backlash against Democrats.” Id. Michels noted that the

filibuster issue “is rising on people’s radar screens.” Id.

In the course of the campaign, all three Republican

candidates attacked Senator Feingold on the filibuster issue.

Michels issued a press release saying that Feingold’s refusal

to confirm President Bush’s nominees was “his usual partisan game playing” and accusing him of continually “talking

out of both sides of his mouth on this issue.” Intervenors SJ

Ex. 9. Darrow’s campaign website identified the filibusters

as an issue in the Senate race, and asserted, “The right Russ

[i.e., Russ Darrow] will not hold judicial nominations hostage.” Intervenors SJ Ex. 10. Welch issued a statement

opining, “It’s a shame that the persistent obstruction of the

President’s judicial nominees by Russ Feingold and his leftwing allies has forced President Bush to take the step of using a recess appointment,” and called Feingold’s position

“back room partisan politics at its worst.” Intervenors SJ

Ex. 8.

15 At campaign rallies held in Wisconsin in September

 

15

Similarly, the Wisconsin Republican Party chairman told the

press, “When people in this state understand where [Senator Feingold] is

on things like the Patriot Act, judicial nominees and taxes, . . . you’ll see

numbers move.” Intervenors SJ Ex. 12 (emphasis added). And a “poll”
27

and October of 2004, even Vice President Cheney raised the

issue, claiming that “a good way to deal with the problem of

the Democratic filibuster in the Senate is to elect some good

Republicans like Tim Michels from Wisconsin.” FEC SJ Ex.

19 at 4; FEC SJ Ex. 20 at 5.

Third, although WRTL’s ads urge the audience to contact Senators Feingold and Kohl, they provide no contact

information for them. Instead, they direct listeners to

“BeFair.org,” a website that WRTL maintained during the

relevant time period in 2004. Visitors to BeFair.org would

indeed find contact information for the Senators, but they

would also find multiple press releases and “e-alerts” issued

by WRTL excoriating Feingold and Kohl for their role in the

filibusters—including the July 14, 2004 “e-alert” quoted

above, which, in language very similar to the ads, chastised

them for “putting politics into the court system, creating

gridlock, and costing taxpayers money.”

16 Accordingly,

WRTL’s purported “lobbying” ads directed their audience to

contact information for Senator Feingold only through a

website that harshly criticized him.

Fourth, the undisputed timing of WRTL’s ads belies the

notion that they were aimed solely (or even substantially) at

affecting upcoming votes to end filibusters on judicial nominees, rather than the election. The Senate voted on motions

to invoke cloture on four of President Bush’s judicial nominees on July 20 and July 22, 2004. FEC SJ Ex. 35 at 4. The

Senate recessed on July 22 and did not return until Septem-

 

on the state party’s website asked, “What is the #1 reason why Russ

Feingold should be voted out of office in 2004?” and listed as one of the

four possible responses, “His obstruction of President Bush’s judicial

nominees.” FEC SJ Ex. 18 at 2.

16 Although the BeFair.org website is no longer in operation, the archived home page of the site can be found at http://web.archive.org/web/

20040729081130/http://www.befair.org/ (last visited Feb. 21, 2007). The

archived page on which the quoted “e-alert” appeared can be found at

http://web.archive.org/web/20050130114628/www.befair.org/pdf/e-alerts/7-

14-04.pdf (last visited Feb. 21, 2007).
28

ber 7.

17 Yet, WRTL began running its radio ads on July 26

and its television ad on August 2—immediately after the

Senate had recessed, when the ads were the least likely to

affect filibuster votes, but most likely to have an impact on

the upcoming election. FEC SJ Ex. 3 at 65. Following the

2004 election, WRTL never resumed running the ads—

despite the fact that the filibuster controversy peaked in the

spring of 2005, when other groups spent more than $8.5 million on advertising regarding the issue. FEC SJ Ex. 3 at

101-103; FEC SJ Ex. 1 at 29-30; FEC SJ Ex. 7 at 18, 26-27.

18

The facts thus leave no doubt that WRTL’s ads are

precisely the kind of advertisements at which Section 203

was aimed: ads that address an “issue” by criticizing a particular candidate’s stand on that issue just before an election.

As McConnell recognized, such ads are “the functional

equivalent of express advocacy.” 540 U.S. at 206.

19

 

17

See Days in Session Calendars, U.S. Senate, http://thomas.loc.gov/

home/ds/s1082.html (last visited Feb. 21, 2007).

18

Indeed, with the exception of a radio ad relating to the nomination

of Justice Alito that ran for a brief period, WRTL never ran any broadcast

ads related to the filibuster issue after the 2004 election. FEC SJ Ex. 3 at

102-103.

19 Expert testimony confirmed that common-sense conclusion. For

example, Douglas Bailey, an experienced political advertising consultant,

explained that “[a] purported issue ad that airs in the time immediately

preceding an election that implores a voter to ‘contact’ . . . a candidate

about one’s opposition to a certain policy will unavoidably affect that candidate’s election. . . . [T]he implicit message to the voter is that one way to

change the policy would be to remove that candidate from office on election day.” JA 57. Bailey explained that WRTL’s ads imply that Senator

Feingold “supports the filibuster, and thinks that ‘politics’ are more important than saving courts from ‘a state of emergency’ or allowing qualified candidates to serve in the federal judiciary.” Id. at 59. And he concluded that “[w]hen viewed in the context of the timeframe they were

intended to air,” WRTL’s ads “undeniably would have influenced the election.” Id. at 58-59.
29

t`qX^i,WL W*L[L*3^§,L *_,[)

Nor has WRTL shown that it faced undue burdens as a

result of having to comply with BCRA’s funding restrictions.

Section 203 applies only to advertisements that are broadcast on radio or television; run in the final weeks before an

election; clearly identify a particular candidate; and, in the

case of a congressional election, are targeted to the candidate’s electorate. 2 U.S.C. § 434(f)(3). Moreover, corporations and unions may run even ads that fit all of BCRA’s criteria for electioneering communications so long as they do so

through their PACs, rather than funding them with general

treasury monies. Id. § 441b(b)(2). The burdens Section 203

imposes on corporations’ First Amendment rights—far from

being a “complete ban” on speech, McConnell, 540 U.S. at

204—are thus limited and tolerable in view of the compelling

governmental interest at stake. Corporations may run

whatever ads they please even during BCRA’s specified preelection periods “by simply avoiding any specific reference

to federal candidates, or in doubtful cases by paying for the

ad from a segregated fund.” Id. at 206. Even if there may

be exceptional circumstances in which the alternative means

permitted by BCRA are not adequate, WRTL has made no

such showing here.

1. The PAC Option. WRTL had a functioning PAC,

which it had used to make independent expenditures against

Feingold in 1992 and 1998. See supra note 12. WRTL contended below that it was unable to raise sufficient funds for

its PAC in 2004 to finance the $100,000 it expected to spend

on the ads. But WRTL offered no specific evidence to support that assertion. It is undisputed that in the 1999-2000

election cycle, WRTL raised over $150,000 for its PAC.

FEC SJ Ex. 10 at 7. Had it raised the same amount in 2004,

it would easily have been able to fund its ads. Although

WRTL asserted vaguely that PAC fundraising was difficult,

see id., it provided no evidence showing why the four years

following the 1999-2000 election cycle would have presented

special obstacles. Indeed, funds donated to PACs nation-
30

wide increased by about 50% during that period. JA 43;

FEC SJ Exs. 45, 46.

In any event, absent a showing (which WRTL has not

made) that extraordinary administrative burdens prevented

WRTL from obtaining the necessary PAC donations from its

members, its failure to do so demonstrates not that the PAC

requirement unconstitutionally burdens WRTL’s speech,

but merely that WRTL could successfully fund its ads only

by acting as a conduit for business corporations. The PAC

option gives corporations like WRTL a “constitutionally sufficient” means of financing electioneering communications.

McConnell, 540 U.S. at 203-206, 209-211; cf. Beaumont, 539

U.S. at 163 (rejecting view that “the regulatory burdens on

PACs . . . rendered a PAC unconstitutional as an advocacy

corporation’s sole avenue for making political contributions”). WRTL has shown nothing to justify a contrary conclusion.

2. The MCFL Option. As a non-profit advocacy group,

WRTL could also have avoided BCRA’s restrictions on electioneering communications by constituting itself as an

MCFL organization. It chose not to do so. MCFL organizations are constitutionally exempt from BCRA’s requirements in part because they do not accept contributions from

business corporations or labor unions. Accordingly, they do

not implicate Congress’s compelling interest in combating

the distorting effects on federal elections of massive infusions of corporate cash. See MCFL, 479 U.S. at 259-264.

WRTL, by contrast, sought to have it both ways: highlighting its status as a not-for-profit advocacy group, while using

funds obtained from business corporations to pay for its ads.

In 2004 WRTL raised over $315,000 from corporations

for its general fund, and the “vast majority” of that amount

was from business corporations. FEC SJ Ex. 3 at 147-151;

FEC SJ Ex. 60. Indeed, between five and ten business corporations donated a total of more than $50,000 precisely in

order to pay for the ads at issue here. FEC SJ Ex. 3 at 143-

145. In short, this is a classic case of business corporations

funneling unregulated monies to an advocacy group to pay

for ads that will influence a federal election. See, e.g.,
31

McConnell, 540 U.S. at 128 (noting that issue “ads were attractive . . . precisely because they were beyond FECA’s

reach, enabling candidates and their parties to work closely

with friendly interest groups” in preparing and airing them);

id. at 129 (“[P]olitical parties and candidates used the availability of so-called issue ads to circumvent FECA’s limitations, asking donors . . . to give money to nonprofit corporations to spend on ‘issue’ advocacy.”). This case thus implicates the core purposes animating Section 203.

3. Avoiding Candidate Names or the Pre-election Period. Alternatively, WRTL could have omitted Senator

Feingold’s name from the ads without sacrificing its professed purpose of “issue advocacy.” See McConnell, 540

U.S. at 696 (issue ads can be run consistently with BCRA

“by simply avoiding any specific reference to federal candidates”). Although WRTL claimed below that it was important to mention Senators Feingold and Kohl by name so that

the audience would contact them, the ads’ failure to provide

any contact information for Feingold and Kohl belies that

assertion. Similarly, were issue advocacy truly WRTL’s sole

objective, it could have run its ads when the filibuster issue

was most salient, prior to the cloture votes in July 2004 or

when the issue became most heated, in the spring of 2005.

Instead, WRTL chose to run its ads when Congress was in

recess, at a time when no filibuster votes were imminent—

but the election was.

20

___`)^v*g§,phrfpr°ac yfr ̄Lk*h$fc*d*e^clXgxyhg ̄^c

ac*d*hp{*gf3^v*gac*d rg±rKw,x,^v*g,W,{|gfrphgmgd rh

The district court concluded that Section 203 could not

constitutionally be applied to WRTL’s ads only by shutting

its eyes to the undisputed facts. The court manufactured a

test that limits judicial inquiry to the “four corners” of an ad,

refusing to look beyond the ad’s literal words and images or

 

20 WRTL could also have used non-broadcast media to disseminate

its message. Indeed, it had done just that prior to the statutory electioneering period, switching to broadcast media only as that period approached. FEC SJ Ex. 3 at 81-82, 89-92, 97-99, 103-112; JA 16.
32

to consider the context in which its audience would view or

hear it. That “see-no-evil” approach

21 was based (1) on a

fundamental misunderstanding of McConnell and (2) on the

district court’s misplaced fear that looking beyond the face

of the ads would prove judicially unmanageable. It not only

led the district court to reach the wrong result in this case,

but threatens to open the floodgates to renewed evasion of

BCRA’s regulations. WK`u^*I§a )W  }a *L^ 

a ,iK*_2$3 ́μ¶¶· ̧ ̧

The district court held that, in evaluating WRTL’s challenge, it would “limit its consideration to language within the

four corners” of the advertisements. JS App. 18a. Refusing

to consider any other facts or context that might bear on the

meaning, purpose, or possible electoral effect of an advertisement, the district court restricted its inquiry to five factors, asking whether, on its face, the ad in question:

(1) describes a legislative issue that is either currently the subject of legislative scrutiny or likely to

be the subject of such scrutiny in the near future;

(2) refers to the prior voting record or current position of the named candidate on the issue described;

(3) exhorts the listener to do anything other than

contact the candidate about the described issue; (4)

promotes, attacks, supports or opposes the named

candidate; and (5) refers to the upcoming election,

candidacy, and/or political party of the candidate.

JS App. 18a.

22 The court indicated that it would also look at

the images of the television ad “to evaluate whether they

otherwise accomplish the prohibited result.” Id.

 

21

The description is borrowed from Hasen, Back on the Campaign

Trail?, Legal Times Online (Feb. 12, 2007), available at http://www.

law.com/jsp/dc/PubArticleDC.jsp?id=1170756162220.

22 While the district court did not further specify the manner in

which it contemplated that these factors would be weighed against one

another, it appears that an ad that describes a legislative issue as set out
33

Because WRTL’s ads referred to a current issue before

the Senate, and did not explicitly attack Senator Feingold or

refer to his record (other than by reference to the “group of

Senators” widely known to include Feingold), the district

court concluded that they were “genuine issue ads” that

WRTL must be permitted to fund with general treasury

monies. Id. at 14a, 19a-20a, 24a. The court explained:

The common denominator between express advocacy and its functional equivalent, as the Supreme

Court defined it in McConnell, is the link between

the words and images used in the ad and the fitness,

or lack thereof, of the candidates for public office.

Indeed, it is that very link which evinces, on the

face of the ad, the intent to influence the election

that the McConnell Court imposed as a critical requirement to functional equivalency. Conversely, it

is the absence of that link that enables an issue ad

to be fairly regarded as a genuine issue ad. More

importantly, it is the absence of that link which obviates the likelihood of political corruption and public cynicism in government where the ad, on its

face, is devoid of any language the purpose of which

is advocacy either for or against a particular candidate for federal office.

Id. at 22a-23a (citing McConnell v. FEC, 251 F. Supp. 2d

176, 796 (D.D.C. 2003) (Leon, J.)) (emphases added).

23

 

in factor (1), but does not meet any of the criteria set out in factors (2)

through (5), would be exempt from Section 203.

23

This analysis is similar to the approach Judge Leon took in his

opinion for the three-judge district court in McConnell. There, Judge

Leon would have invalidated the primary definition of “electioneering

communication” because of “the absence of a link between the advocacy of

an issue and a candidate’s fitness, or lack thereof, for election,” but would

have upheld a modified version of BCRA’s backup definition turning on

whether a communication “promotes or supports . . . or attacks or opposes

a candidate.” 251 F. Supp. 2d at 795, 801. This Court upheld BCRA’s

primary definition of “electioneering communication” and thus had no

occasion to consider the backup definition. McConnell, 540 U.S. at 189-
34

This reasoning cannot be reconciled with McConnell. It

misapprehends this Court’s holding in two critical respects.

First, it resurrects the flawed notion that BCRA may constitutionally be applied only to an ad that “on its face . . . advoca[tes] either for or against a particular candidate for federal office.” JS App. 23a. McConnell made clear that ads

need not expressly advocate a candidate’s election or defeat,

or expressly comment on a candidate’s fitness for office, in

order to function as election advocacy, and that “the presence or absence of magic words” is not the only basis for discerning electioneering speech. 540 U.S. at 193. Indeed, this

Court explicitly recognized what the record in McConnell

demonstrated: that indirection is often a more effective

form of advocacy than blunt words of support or opposition.

See id. at 193 & n.77 (quoting expert Douglas Bailey’s statement that “[a]ll advertising professionals understand that

the most effective advertising leads the viewer to his or her

own conclusion without forcing it down [his or her] throat”).

Far from “impos[ing] as a critical requirement” that “the

face of the ad” evince its intent to influence an election, JS

App. 22a, this Court held that no express language was required in order to render BCRA’s application to an ad constitutional.

Second, the district court’s analysis—and, indeed,

WRTL’s entire case—is built on the erroneous premise that

advertisements can easily be separated, on their face, into

two mutually exclusive categories: electioneering ads, on

the one hand, and “genuine issue ads,” on the other. As this

Court has already recognized, however, “[w]hile the distinction” may “seem[] neat in theory,” McConnell, 540 U.S. at

126, no such line can be drawn in practice. An advertisement may be a “genuine issue ad” in the sense that it advocates a position on a political issue in which the advertiser

genuinely believes, and at the same time have the purpose

 

194 & n.73. The test the district court adopted in this case revives both

the “promote, support, attack or oppose” formulation and the notion that

Congress may constitutionally regulate only ads with an express “link” to

a candidate’s fitness for election.
35

and effect of influencing the election of a candidate who has

taken a position on that issue. As one former PAC chairperson quoted in McConnell put it, “It is foolish to believe there

is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy

and political advocacy is a line in the sand drawn on a windy

day.” Id. at 126 n.16 (internal quotation marks and citation

omitted). Moreover, “issue advocacy” warrants no greater

protection under the First Amendment than does express

electioneering. See id. at 205.

The constitutional question to be answered, therefore, is

not whether a particular advertisement is a “genuine issue

ad,” but whether—“genuine issue ad” or not—the advertisement is the “functional equivalent of express advocacy.”

540 U.S. at 206. To answer that question, as this Court has

made clear, it is not enough to observe that, on its face, the

ad does not expressly promote or attack a candidate.

Rather, the court must consider how the ad is likely to function in practice—and that in turn requires that the court not

blind itself to the context in which an ad is run. “A word is

not a crystal, transparent and unchanged, it is the skin of a

living thought and may vary greatly in color and content according to the circumstances and the time in which it is

used.” Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes,

J.).

24

 

24

This Court’s doctrines in various First Amendment arenas recognize the importance of context in determining the permissibility of speech

regulation: for example, incitement of illegal activity, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (state may “forbid or proscribe advocacy of the use of force or of law violation” where, inter alia, the speech

is “likely to incite or produce such action”); fighting words, see, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572-573 (1942) (determining

whether words “by their very utterance inflict injury or tend to incite an

immediate breach of the peace” or have a “direct tendency to cause acts of

violence by the person to whom, individually, the remark is addressed”)

(internal quotation marks omitted); and speech in public fora, see, e.g.,

Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S.

640, 647 (1981) (permitting reasonable “time, place, and manner restrictions” on speech in a public forum). See also Brown v. Hartlage, 456 U.S.
36

What is perhaps most troubling is that the district

court’s “four corners” approach would invite wholesale circumvention of the campaign-finance laws—the very problem

Congress worked to overcome in BCRA. The district court’s

approach reopens the loophole BCRA was intended to close,

permitting a return to a world in which advertisers can skirt

congressional regulation simply by including a reference to a

pending legislative issue and omitting express words of support for or opposition to a candidate. And that loophole

would be open not only for non-profit corporations like

WRTL, but for all for-profit corporations and labor unions.

Indeed, under the district court’s test, corporations and

unions are free to run ads immediately before elections,

criticizing candidates for office in the harshest possible

terms, so long as the criticism refers to the candidate only as

a member of a group and not by name. One can easily imagine, for example, an ad run in the hotly contested 2006 Connecticut senatorial primary between Senator Joseph Lieberman and Ned Lamont—in which the prime issue was

Senator Lieberman’s support for the war in Iraq—by an organization supporting Lamont, attacking a “group of Senators” who supported the war and urging voters to contact

Senator Lieberman to tell him to oppose the war. Similarly,

supporters of Representative Bob Ney’s opponent in the

2006 congressional primary—when Ney was under investigation for his association with disgraced lobbyist Jack

Abramoff—might have run ads financed with corporate

treasury funds attacking a “group of Congressmen” who

“care more about the Washington lobbyists who are making

them rich than about their constituents,” and asking viewers

 

45, 56-57 (1982) (examining expressed intention of the speaker and the

context of the communication—not just text of speech—in determining

whether an anti-bribery statute proscribing certain election-related

speech was unconstitutional as applied to a candidate’s promise to reduce

his salary if elected); Watts v. United States, 394 U.S. 705, 706-708 (1969)

(holding that statement “If they ever make me carry a rifle the first man I

want to get in my sights is L.B.J.,” when “[t]aken in context,” was “political hyperbole” and not a true threat against the President).
37

to call Representative Ney and tell him to support ethics

legislation.

25 The corporate funding of such ads would be

permissible under the district court’s test—despite their

patent electioneering message. That result seriously undermines BCRA and cannot be squared with McConnell. t`¬Wj¥*a ¡ **_*  _W,) 1 

The district court refused to look beyond the “four corners” of WRTL’s ads in part because it feared that doing so

would render as-applied challenges judicially unmanageable.

The court opined that inquiring into an advertisement’s purpose and effect in order to determine whether it is the functional equivalent of express advocacy was “practically unacceptable” because it would entail developing a record under

“expedited circumstances,” and “theoretically unacceptable”

because it would involve an unworkable inquiry into the advertiser’s subjective intent. JS App. 16a-18a.

The district court’s concern that looking beyond the four

corners of the ads would be “practically unacceptable” is

 

25

To take another example, in the 1998 Senate race between John

Edwards and Lauch Faircloth, the American Association of Health Plans

ran the following ad:

Worried about rising healthcare costs? Then look out for the

trial lawyers. They want Congress to pass new liability laws

that could overwhelm the system with expensive new healthcare lawsuits. Lawsuits that could make the trial lawyers

richer. That could make healthcare unaffordable for millions.

Senator Lauch Faircloth is fighting to stop the trial lawyers[’]

new laws. Call him today and tell him to keep up his fight.

Because if trial lawyers win, working families lose.

McConnell, 251 F. Supp. 2d at 568 n.99 (Kollar-Kotelly, J.) (emphasis

added). Given the well-known fact that John Edwards was a trial lawyer—a significant issue in the campaign, see id. at 568—this ad had an

obvious electioneering message. Yet it could readily have been made to

meet the district court’s test without affecting that message, simply by

modifying the italicized sentences so that they read, “Call Senator Lauch

Faircloth today and tell him to fight to stop the trial lawyers.” So worded,

the ad would be immune from regulation under the district court’s approach simply because it referred to “the trial lawyers,” rather than identifying Edwards by name, and avoided expressly praising Faircloth.
38

unwarranted. As an initial matter, as discussed above, see

supra Part II.A, the contextual inquiry needed to resolve

this case was minimal: that the ads in question denounced a

“group of Senators” of whom Senator Feingold was one—

particularly in combination with the undisputed fact that

WRTL had publicly opposed Senator Feingold’s reelection

in 2004—suffices to decide this case. Even if more evidence

were required, however, the court’s administrability concerns were overblown: this case demonstrates that compiling a sufficient record is no more onerous than in the typical

case where a preliminary injunction is sought and must be

resolved on an expedited basis.

26

This Court has previously rejected such administrability concerns as a reason to create a categorical exemption

from campaign-finance laws. In Buckley, for example, the

Court declined to carve out such a blanket exemption to

FECA’s disclosure requirements for minor parties, and instead required such parties to make a case-by-case showing

that the facts of their situation demonstrated a reasonable

probability that disclosure would subject them to harassment. 424 U.S. at 72-74. The Court expressly rejected the

argument that a blanket exemption was necessary “lest irreparable injury be done before the required evidence can

be gathered.” Id. at 72; see also Brown v. Socialist Workers

’74 Campaign Comm., 459 U.S. 87, 88 (1982) (applying Buckley’s “reasonable probability” test to as-applied challenge to

Ohio disclosure statute).

The district court’s “theoretical” concerns merely reflected its misapprehension of the proper constitutional inquiry. In McConnell, this Court recognized that Congress

had carefully designed BCRA’s definition of “electioneering

 

26

In this case, moreover, the record had already been fully developed and presented to the court. Yet the district court chose to ignore the

record in front of it because of hypothetical concerns about the difficulties

of developing a record in some future case. Whatever a future case might

bring, there can be no justification for refusing to consider in this case the

very facts the district court had previously suggested should defeat

WRTL’s challenge.
39

communication”—with its requirements that an ad must

clearly identify a candidate, must be aired in the weeks before an election, and must be targeted to at least 50,000 persons in the candidate’s state or district—so as to encompass

ads that would almost certainly function as electioneering.

That congressional judgment regarding the scope of the

problem BCRA addressed is entitled to substantial deference. See, e.g., NRWC, 459 U.S. at 209-210. And this

Court’s own judgment confirms that BCRA’s definition was

well-crafted: as the Court observed after reviewing a voluminous record, “the vast majority” of ads that clearly identified a candidate for office and were aired in the weeks before

the election—including the many “issue ads” in the record—

were “the functional equivalent of express advocacy.”

McConnell, 540 U.S. at 206. “Far from establishing that

BCRA’s application to pure issue ads” that do not constitute

electioneering “is substantial, . . . the record strongly supports the contrary conclusion.” Id.

Against that background, a court considering an asapplied challenge should not lightly conclude that an ad that

meets BCRA’s definition nevertheless really has no electioneering significance. Rather, an as-applied challenge

should succeed only if the plaintiff can show that the ad itself

and the circumstances of its creation and airing demonstrate

that there is no reasonable prospect the ad is likely to influence the election. See, e.g., Buckley, 424 U.S. at 74 (holding

that minor parties must submit evidence showing “a reasonable probability” that compliance with disclosure requirements will lead to harassment in order to succeed in an asapplied challenge); Brown v. Socialist Workers, 459 U.S. at

88 (applying Buckley’s test).

In order to make out a valid as-applied challenge, in

other words, a plaintiff should be required to show that its

ad is different in kind—not merely in degree—from the “issue ads” considered in McConnell, so that the compelling

governmental interest in preventing corporate funds from

influencing elections has no application. See, e.g., Buckley,

424 U.S. at 30 (in rejecting claim that contribution limit was

too low to serve Congress’s compelling interest, explaining
40

that “[s]uch distinctions in degree become [constitutionally]

significant only when they can be said to amount to distinctions in kind”). In MCFL, for example, the plaintiff made

such a showing. There, this Court recognized that “we

should not second-guess a decision to sweep within a broad

prohibition activities that differ in degree but not kind.” 479

U.S. at 263. It held the restriction on independent expenditures unconstitutional as applied to MCFL “not [because]

MCFL merely poses less of a threat of the danger that has

prompted regulation,” but because “it does not pose such a

threat at all.” Id. (emphasis added). The same principles

should govern here, and should significantly narrow and

simplify the task of deciding an as-applied challenge to Section 203.

27

These same considerations indicate that the district

court’s focus on the difficulties of an inquiry into the advertiser’s subjective intent was misplaced. As an initial matter,

the compelling justification for Section 203 is the need to

temper the “corrosive and distorting” influence of corporate

cash on federal elections. McConnell, 540 U.S. at 205 (cita-

 

27

There may well be advertisements that fall within BCRA’s definition of “electioneering communication” that are truly different in kind

from the type of advertising that prompted Congress to enact BCRA’s

restrictions and that Congress has a compelling interest in regulating. To

take one example, if an automobile dealership which bears the name of its

founder (e.g., “Joe Smith Honda”), who is also a candidate, runs an advertisement for the dealership in the ordinary course of business that happens to fall within the statutory electioneering period, such an ad might be

sufficiently far removed from the concerns underlying BCRA that it

should not be barred by the statute. A similar result might be appropriate

if, say, Representative Mike Oxley were to decide to run for election

again, and a consulting company in the business of ensuring compliance

with the Sarbanes-Oxley Act were to seek to run an advertisement in his

district that mentions the name of the statute, or if a candidate’s business

empire, named after him or her, sponsors a fall charity event every year

and wants to publicize it during an election year. Such ads might well be

deemed to have no realistic connection with the election or the candidate’s

fitness for public office and thus might be different in kind from the “vast

majority” of advertisements falling within the definition of “electioneering

communications,” which this Court concluded could constitutionally be

regulated.
41

tion omitted). That justification is implicated by any ad

whose objective characteristics and context indicate that it

is likely to have a material effect on voters’ choices—and

thus to function as the equivalent of express advocacy, see

id. at 206—regardless of the advertiser’s subjective intent in

airing it. Ultimately, the integrity of the electoral process

does not turn on an advertiser’s subjective state of mind, but

on the inferences that can reasonably be drawn from its objective conduct.

In any event, the district court was mistaken in believing that discerning electioneering intent requires the court

to “try[] to read [the] speaker’s mind,” JS App. 18a, or even

that it requires “depos[ing] . . . the ‘decision makers’ of the

organization,” id. at 15a. Where, as here, the likely electioneering effect of an ad is patent, an electioneering purpose

may readily be inferred. In McConnell itself, this Court

recognized that “the vast majority of ads” in the record that

would have fallen within Section 203’s scope “clearly had [an

electioneering] purpose,” 540 U.S. at 206, without inquiring

into the subjective state of mind of particular advertisers.

Indeed, the rule in many areas of the law is that a party

intends the natural and probable consequences of his or her

actions. See, e.g., LaFave, Substantive Criminal Law § 14.2

(2d ed. 2003) (“It is commonly said in civil . . . cases . . . that

one is presumed to intend the natural and probable consequences of his acts.”); Apex Hosiery Co. v. Leader, 310 U.S.

469, 485 (1940) (“[R]espondents must be taken to have intended the natural and probable consequences of their

acts.”); United States v. Falstaff Brewing Corp., 410 U.S.

526, 570 n.22 (1973) (Marshall, J., concurring in part)

(“[P]erhaps the oldest rule of evidence—that a man is presumed to intend the natural and probable consequences of

his acts—is based on the common law’s preference for objectively measurable data over subjective statements of opinion

and intent.”). Where the natural and probable result of an

ad will be to influence voters’ choices, an advertiser can

safely be presumed to have intended that result. Here, as

discussed above, WRTL’s ads’ denunciation of a “group of

Senators” that included Feingold both demonstrated the
42

likelihood that the ads would affect voters’ choices and justified an inference that they were intended to do so.

28

In this case, moreover, the record is replete with additional objective evidence reflecting a manifest electioneering

purpose: WRTL announced that one of its “top priorities”

was to “send Feingold packing,” distributed literature opposing him, and endorsed his opponents; it directly tied its

public opposition to Senator Feingold’s reelection to his position on the filibusters; and its ads referred their audience to

a website that attacked Senator Feingold precisely for his

position on the filibuster issue. See supra Part II.A. The

undisputed facts thus establish that WRTL’s ads had an

electioneering purpose.

29

In sum, the district court’s decision to ignore the undisputed facts of record in this case was mistaken. And even a

cursory examination of those facts makes clear that nothing

materially distinguishes WRTL’s ads from the issue ads that

this Court in McConnell found were “the functional equivalent of express advocacy.” 540 U.S. at 206.

 

28

That is true whether or not WRTL also had a sincere desire to

stop the filibusters and see its preferred judicial nominees confirmed.

That an ad may have the genuine purpose of influencing debate or legislation on a particular issue in no way suggests that it cannot also have an

election-influencing purpose, or that it cannot function as election advocacy. As discussed above, see supra Part III.A, there is no bright-line

distinction between “genuine issue ads” and electioneering. Indeed, it

may be impossible to disentangle an advocacy group’s desire to achieve a

particular legislative goal from its desire to unseat an elected official who

has opposed or thwarted that goal. Here, any genuine desire WRTL may

have had to stop the filibusters cannot be disaggregated from its incontestable intent to defeat the Senator who participated in them. The two

go hand in hand.

29

Judge Roberts, in dissent, pointed to the record evidence suggesting that WRTL’s ads had an electioneering purpose and effect, but believed that the case should not be resolved on summary judgment because

there was a dispute as to WRTL’s subjective intent in running the ads. JS

App. 39a. For the reasons given above, that premise is incorrect: resolution of WRTL’s challenge does not turn on WRTL’s subjective state of

mind, but on its objective conduct.
43

o»1⁄4,o1⁄23⁄4,¿À»1⁄4

This Court should reverse the district court’s judgment

and remand for the entry of summary judgment in favor of

appellants.

Respectfully submitted,

ROGER M. WITTEN

SHANE T. STANSBURY

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

PRATIK A. SHAH

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-5000

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. MOSS

DANIELLE SPINELLI

BRENT BICKLEY

KEVIN WHELAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 663-6000

Additional Counsel Listed On Inside Cover

FEBRUARY 2007