No. 02-1733 

In The 

Supreme Court of the United States 

____________ 

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

Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees/Cross-Appellants 

____________ 

On Appeal from the United States District Court


for the District of Columbia


____________


Reply Brief of Appellants/Cross-Appellees 

National Right to Life Committee et al. 

____________ 

Aug. 21, 2003 

James Bopp, Jr., Counsel of Record


Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR FREE SPEECH


BOPP, COLESON & BOSTROM


1 South 6th Street


Terre Haute, IN 47807-3510


812/232-2434

Corporate Disclosure Statement 

As stated in the Jurisdictional Statement, none of the 

appellants has a parent corporation and no publicly held 

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

appellants. Rule 29.6. 

i 
Table of Contents 

Corporate Disclosure Statement ...................... i


Table of Contents ................................. ii


Table of Authorities .............................. iv


Glossary ....................................... vi


ARGUMENT .................................... 1


I.	 Blurring Key Distinctions: How BCRA Assaults


People of Ordinary Means. ................... 1


A.	 The Blurred Issue/Express Advocacy Dis­


tinction: The First Amendment Protects


Issue Advocacy. ......................... 2


B.	 The Blurred Contribution/Independent


Expenditure Distinction: The PAC Alterna­


tive Is Inadequate. ....................... 3


C. The MCFL-Exemption Is Inadequate. ........ 4


D.	 Plaintiffs Have Made an Inadequate Show­


ing to Overcome Stare Decisis for Numer­


ous Precedents. .......................... 5


1.	 Alleged “New” Facts Are Irrelevant,


Flawed, and Do Not Justify Eliminating


an Essential Element of Representative


Democracy at Key Times. .............. 5


ii 
2.	 Circumvention Is an Auto-Expanding


Rationale. .......................... 7


3.	 There Is International Support for Unfet­


tered Issue Advocacy. .................. 9


4.	 This Court Would Have to Overturn


Multiple Cases to Uphold the Election­


eering Communications Restrictions. .... 14


II.	 From Quid Pro Quo to “Gratitude”: How BCRA


Assaults Representative Democracy. ........... 15


III.	 The Independent Speech of State Candidates and 

Officeholders Cannot Be Subjected To Federal 

Contribution Limits And Disclosure Requirements. 

........................................ 16


Conclusion ..................................... 20


Appendix 

Order Granting Motion to Intervene (May 3, 2002) ..... 1a 

iii 
Table of Authorities 

Cases 

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652


(1990) ...................................... 14


Bowman v. United Kingdom, 26 Eur. Ct. H.R. 1 (1986) 12-14


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

California Medical Association v. FEC, 453 U.S. 182


(1981) ..................................... 18


Citizens Against Rent Control v. Berkeley, 454 U.S. 290


(1981)


........................................ 15, 18


Colorado Republican Federal ElectionCampaign Commit-


tee v. FEC, 518 U.S. 604 (1996) ................. 18


FEC v. Beaumont, 123 S. Ct. 2200 (2003) ......... 3, 4, 15


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


(1986) .................................. passim


FEC v. National Right to Work Committee, 459 U.S. 197


(1982) ...................................... 15


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


(1978) ...................................... 14


First National Bank v. Bellotti, 435 U.S. 765 (1978) ..... 4


Harper v. Canada, 2002 ABCA 301 (2002) ........ 11, 12


Mills v. Alabama, 384 U.S. 214 (1966) ............... 15


iv

NAACP v. Alabama, 357 U.S. 449 (1958 .............. 1 

National Conservative Political Action Committee v. FEC,


470 U.S. 480 (1985) ......................... 1, 15


Nixon v. Shrink Missouri Government PAC, 528 U.S. 377


(2000) ...................................... 15


Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000) .......... 8


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


21 F. Supp. 2d 740 (E.D. Mich. 1998) .............. 8


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


766 (W.D. Mich. 1998) ......................... 8


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


(2d Cir. 2000) ................................. 8


Constitution, Statutes, Regulations & Rules 

11 C.F.R. § 100.22(a) .............................. 6


11 C.F.R. § 100.16 ............................... 19


11 C.F.R. § 110.11(b)(1) ........................... 5


Alaska Stat. § 15.13.400(14) ........................ 8


Ariz. Rev. Stat. § 16-901.01.A.2 ..................... 8


Colorado Const. Am. 27 ........................... 8


Conn. Gen. Stat. 9-333c ............................ 8


v

Haw. Rev. Stat. § 11-207.6 .......................... 8 

Glossary 

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

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

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

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

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

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

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

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

present plaintiffs-appellants/cross-appellees in trial court 

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

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

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

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

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

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

present plaintiffs-appellants/cross-appellees in this brief 

PCS ..... Plaintiffs’ Consolidated Evidentiary Submission 

SA ... Supplemental Appendix to Jurisdictional Statements 

vi 
ARGUMENT1 

I.	 Blurring Key Distinctions: How BCRA Assaults 

People of Ordinary Means. 

The briefing confirms what Appellants (“NRLCPlaintiffs”) 

observed in their opening brief – that the “electioneering 

communications” debate hinges on two views of issue advocacy. NRLC Br. 3. Defendants insist they should be able to 

restrict anything that affects elections, including issue advocacy, 

either without limitation or at least if done by a corporation. 

Plaintiffs believe that issue advocacy by incorporated citizen 

groups is essential to participation by persons of ordinary means 

in our democratic republic and is protected from abridgement 

by the First Amendment, even if it affects elections. 

As to regulating the activities of corporations, Defendants 

rely on cases permitting the regulation of direct political activity 

of corporations but ignore key distinctions established by this 

Court that apply especially to the right of people of ordinary 

means to band together in citizen groups (incorporated for 

liability purposes) to amplify their voices so they can be heard 

in the marketplace of ideas. See NAACP v. Alabama, 357 U.S. 

449, 460 (1958) (“Effective advocacy of bothpublic and private 

points of view, particularly controversial ones, is undeniably 

enhanced by group association. . . .”). These groups are the 

only means by which citizens of ordinary means can make their 

opinions effectively heard. See National Conservative Political 

Action Committee v. FEC, 470 U.S. 480, 495 (1985) (“To say 

that their collective action in pooling their resources to amplify 

their voices is not entitled to full First Amendment protection 

would subordinate the voices of those of modest means as 

opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.”). Barring unfettered 

issue advocacy by groups bars citizens of ordinary means from 

participation in all aspects of government. 

1

NRLC Plaintiffs adop t consistent argu ments mad e by other p laintiff 

groups in their briefing. 
2 

Wealthy individuals have no need of citizens groups 

because they are permitted to freely spend their own money for 

issue advocacy or “electioneering communications.” Corporations owning broadcast stations are exempted from any restrictions on “electioneering communications.” Incumbent politicians promote themselves and the issues they support through 

taxpayer-supported government activities and their political 

campaigns. Thus, BCRA further enhances these powerful 

voices by stripping ordinary citizens of their only means of 

effective participation in public debate, i.e., incorporated citizen 

groups. 

But this Court has made key distinctions that Defendants 

blur to assert precedential support for BCRA. Examining these 

vital distinctions reveals that Defendants’ appeal to cases 

permitting regulation of direct political activity of corporations 

provides no support for the BCRA. 

A. The Blurred Issue/Express Advocacy Distinction: 

The First Amendment Protects Issue Advocacy. 

The first key distinction that Defendants blur is the sharp 

one this Court created between issue advocacy and express 

advocacy. Judge Kollar-Kotelly’s opinion below demonstrates 

the fruit of Defendants’ effort to blur the line between issue 

advocacy and express advocacy by moving the focus elsewhere. 

She attempted to demonstrate that Buckley v. Valeo, 424 U.S. 

1 (1976), and FEC v. Massachusetts Citizens for Life, 479 U.S. 

238 (1986) (MCFL), drew the critical distinction, not between 

issue advocacy and express advocacy, but between “[1] issue 

discussion and [2] advocacy of a political result.” SA 792-93sa. 

But NRLC Plaintiffs provided eight pages of textual 

analysis establishing that this Court actually drew the critical 

distinction between “[1] discussion of issues and candidates and 

[2] advocacy of election or defeat of candidates,” MCFL, 479 

U.S. at 249, and that what this Court held in Buckley and MCFL 

was that the First Amendment requires that where government 

restrictions border on issue advocacy, issue advocacy must be 
3 

protected by a bright-line test that examines the words of a 

communication to see if it contains explicit words of advocacy 

of the election or defeat of a clearly identified candidate. NRLC 

Br. 4-12. 

Although the limited textual analysis in the numerous lower 

federal cases that followed this Court’s express advocacy test 

was a key factor in the lower court’s dismissal – as mere “dicta” 

– of those cases, see NRLC Br. 12-14 (answering the “dicta” 

charge), the Government and Intervenor Defendants made no 

effort to respond to NRLC Plaintiffs’ careful textual analysis. 

Instead, Defendants continue to assert the now discredited 

argument that Buckley and MCFL were just about avoiding 

vagueness and creating bright lines, ignoring the carefullyarticulated, substantive constitutional mandate of Buckley and 

MCFL that issue advocacy must be protected from regulation 

by the express advocacy test. NRLC Br. 4-14. 

So while there is precedent for the general proposition that 

corporations are subject to more government regulation than 

associations, this general rule has been qualified by the protection for issue advocacy, which this Court held that the First 

Amendment guarantees to corporations. 

B. The Blurred Contribution/IndependentExpenditure 

Distinction: The PAC Alternative Is Inadequate. 

The second key distinction Defendants blur is between 

contributions and independent expenditures. This shows up 

most starkly in Defendants’ effort to make FEC v. Beaumont, 

123 S. Ct. 2200 (2003), support the notion that requiring citizen 

groups to do issue advocacy through a PAC adequatelyprotects 

their free expression and association rights. 

But the sole issue in Beaumont was whether a nonprofit 

ideological corporation that qualified for the MCFL exemption 

from the statutory ban on independent expenditures could also 

make contributions. And this Court clearly articulated that the 

decision hinged on the distinction between independent 

expenditures and contributions: 
4 

NCRL cannot prevail, then, simply by arguing that a 

ban on an advocacy corporation’s direct contributions 

is bad tailoring. NCRL would have to demonstrate that 

the law violated the First Amendment in allowing 

contributions to be made only through its PAC and 

subject to a PAC’s administrative burdens. But a 

unanimous Court in National Right to Work did not 

think the regulatory burdens on PACs, including 

restrictions on their ability to solicit funds, rendered a 

PAC unconstitutional as an advocacycorporation’s sole 

avenue for making political contributions.See 459U.S., 

at 201-202, 103 S.Ct. 552. There is no reason to think 

the burden on advocacy corporations is any greater 

today, or to reach a different conclusion here. [Beaumont, 123 S. Ct. at 2211 (emphasis added).] 

So Beaumont plainly stands solely for the proposition that 

requiring corporations, even MCFL-types, to use the PAC 

alternative for contributions is not an unconstitutional burden. 

But MCFL had already established that requiring the PAC 

alternative for independent expenditures by MCFL-type 

corporations was an unconstitutional burden. MCFL, 479 U.S. 

at 252-55. A fortiori it would be an unconstitutional burden to 

require issue advocacy or “electioneering communications” to 

be done through a PAC. 

C. The MCFL-Exemption Is Inadequate. 

DefendantstoutBCRA’s “MCFL-exemption” as permitting 

certain corporations to engage in now prohibited issue advocacy. NRLC Plaintiffs adopt arguments by others on the 

inadequacies of the overly-cramped statutory exemption, 

making only the point that this also represents an enormous 

expansion of the law. Since First National Bank v. Bellotti, 435 

U.S. 765 (1978), all corporations have been free to engage in 

issue advocacy. That decision, along with others would have to 

be overturned to sustain BCRA’s “electioneering communications” restrictions. 
5 

D. Plaintiffs Have Made an Inadequate Showing to 

Overcome Stare Decisis for Numerous Precedents. 

NRLC Plaintiffs set out this Court’s standards for overruling prior decisions and demonstrated how BCRA’s required 

overruling of precedents did not fit the standards. NRLC Br. 15-

18. Defendants made no direct response to these arguments. 

However, their primary approach is to argue that this Court’s 

express advocacy test is outmoded because of “new” facts 

proving circumvention. See FEC Br. 80-82. 

1.	 Alleged “New” Facts Are Irrelevant, Flawed, 

and Do Not Justify Eliminating an Essential 

Element of Representative Democracy at Key 

Times. 

As to alleged “new” facts, NRLC Plaintiffs note three 

things. First, as already noted, NRLC Br. 7-8 & n.8, this Court 

in Buckley noted that issue advocacy could affect elections, but 

established the express advocacy test anyway to protect issue 

advocacy because issue advocacy is vital to citizen participation 

in our system of government. Buckley, 424 U.S. at 14, 45; cf. 

SA 353sa (Henderson). This makes “new” facts that the people 

are actually engaged in issue advocacy that may affect elections 

irrelevant. 

Second, Defendants rely primarilyon their disputed studies. 

NRLC Plaintiffs adopt the arguments of others regarding the 

problems with those studies but note one critical flaw in the 

assertions by the Government Defendants that most modern 

campaign advertisements by candidates do not contain express 

advocacy. FEC Br. 82-83, and the lower court, SA 658sa 

(Kollar-Kotelly), 1296sa (Leon). The flaw is that these studies 

uniformly ignore the presence of the “disclaimer” that must be 

on candidate’s public communications. 11 C.F.R. 

§ 110.11(b)(1). These disclaimers themselves are express 

advocacy. Buckley, 424 U.S. at 44 n.52 (“express words of 

advocacy of election or defeat, such as ‘Smith for Congress’”); 

11 C.F.R. § 100.22(a) (“Expressly advocating means any 
6 

communication that – (a) Uses phrases such as . . . “Smith for 

Congress,” “Bill McKay in ‘94,” . . . “Carter ‘76,” “Reagan/Bush,” or “Mondale!”). The required disclaimers provide 

the express advocacy message. 

Third, in the debate over the quantitative number of 

“genuine issue ads” (itself a debated concept) a qualitative 

element has been largely neglected, namely, that the “electioneering communication” restrictions would eliminate a whole 

category of American political speech by citizen groups for 

nearly a fourth of a year (counting only 30 days before primaries and 60 days before elections without considering areas, 

such as the District of Columbia, where broadcasting reaches 

multiple jurisdictions). 

That whole category of speech is grass roots lobbying, in 

which Citizens Associated for Amplified Free Expression, Inc. 

– during the bustling days of legislative activity just before the 

fall election as representatives try to ram through bills to buy 

votes before taking a recess to run home for final campaigning 

before the polls open – buys broadcast ads in the district of the 

legislator with an important vote needed to pass legislation 

protecting the nation from ruin by encouraging citizens to “Call 

Representative Swing-Vote and ask her to vote for the bill 

sponsored by Representatives Commonweal and Controversy.” 

Defendants assertions that (1) “‘genuine’ issue advocacy 

can readily be accomplished in a manner that does not trigger 

Title II of BCRA,” FEC Br. 93, and (2) that “it is not necessary 

to refer to ‘specific candidates for federal office in order to 

create effective [issue] ads.” id. (citation omitted), simply does 

not apply to grass roots lobbying. And citizen groups need to 

remain free to engage in grass roots lobbying through the media 

that Defendants concede is the most effective, FEC Br. 93, 

during the time when legislation is being considered, which 

often can and often does fall during the days just before an 

election – the timing of which is wholly beyond the control of 

citizen groups and wholly in the hands of incumbent politicians. 
7 

Grass roots lobbying is a fundamental part of our system of 

representativegovernment that must remain available whenever 

it is needed. It is not “a few ‘marginal applications.’” FEC Br. 

105 (citation omitted). And it is profoundly, negativelyaffected 

by Title II of BCRA. No statute can be called narrowly tailored 

that so grievously and permanently wounds the essence of 

representative government. That fact has not changed. 

2. Circumvention Is an Auto-Expanding Rationale. 

As to the notion that organizations have circumvented 

current election laws and so must be cabined, there are several 

problems. First, the situation might be differently, but accurately, described as organizations simply doing what this Court 

said the First Amendment gave them a right to do, i.e., issue 

advocacy while eschewing express advocacy. Buckley, 424 U.S. 

at 43 n. 50 (“As long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a 

clearly identified candidate, they are free to spend as much as 

they want to promote the candidate and his views.”). How can 

spending money on what is legal properly be described as 

circumvention? What is sinister about engaging in legal 

association and free expression? Rather, there is something 

sinister (i.e., threatening great risk of harm to the Constitution 

and the American system of government) about describing the 

exercise of a constitutional right as circumvention of the law. 

The First Amendment is not some loophole needing to be 

plugged. If there is a bright dividing line between what is 

permissible and what is not, there is nothing wrong or sinister 

about standing with others on the permissible side of the line 

and combining one’s voice with others to speak often, loudly, 

and long. 

Second, the “circumvention” rationale has no end. As long 

as any freedom remains, people will exercise their freedom, 

which will spawn calls to further cabin such circumvention 

activity. If BCRA’s sponsors succeed in banning broadcast 

electioneering communications, they will next pursue a ban on 
8 

printed communications (including voter guides), phone banks, 

and the like. The circumvention rationale, that would uphold a 

broadcast ban, would immediately justify its extention to other 

media as soon the broadcast ban is upheld, i.e., organizations 

switching to Internet, print, and phone communications will be 

“circumventing” the broadcast ban.2 

In responseto an underinclusion challenge,Defendantshave 

already argued that they are permitted to go step by step. Where 

will it end? This auto-expanding rationale must be forcefully 

rejected before it consumes all of citizens participation in 

American democracy. This Court’s express advocacy test drew 

2

States with a temporal ban on communications naming candidates, have 

banned not only bro adcast co mmunica tions but all such public communications. See Right To Life of Mich igan, Inc . v. Miller, 23 F. Supp. 2d 766 

(W.D . Mich. 1998) (striking down rule that banned all corporate or union 

communications using the name or likeness of a candidate for 45 days before 

an election); Planned Parenthood Affiliates of Michigan, Inc. v. Miller, 21 

F. Supp. 2d 740 (E.D. Mich. 19 98) (same); Vermont Right to Life Committee 

v. Sorrell , 221 F.3d 376 (2d Cir. 2000) (striking down reporting requirement 

for mass me dia commun ications with candidate ’s name or like ness); Perry 

v. Bartlett, 231 F.3d 155 (4th Cir. 2000), cert. denied, 532 U.S. 905 (2001) 

(striking down disclosure requirement if print or broadcast material names 

candidate); Alaska Stat. § 15.13.400(14) (banning all “electioneering 

commu nications,” i.e., that identify a cand idate’s positio n on a regio nally 

important issue within 30 d ays of an electio n); Ariz. Rev. Stat. § 16-

901.01 .A.2 (banning co mmunica tions that “expr essly advoc ate," i.e., 

"[m]aking a general communication, such as in a broadcast medium, 

newspaper, magazine , billboard, o r direct mailer referring to one or more 

clearly identified can didates and targeted to the electorate o f that candidate(s) . . . (b) in the sixteen-week period immediately preceding a general 

election”); Colorad o Const. Am. 27, § § 2(7) an d 6 (bann ing all “electioneering commun ications,” i.e., that identify a candidate 30 days before a primary 

and 60 days before a general election); Conn. Gen. Stat. 9-333c (defining 

regulated “expenditure” as either broadcast or print communication that 

names a candida te and appears 90 days before an election); H aw. Rev. Sta t. 

§ 11-207.6 (banning ads referring to a candidate that are broadcast, 

published in any periodical or newspaper, or sent by bu lk mail 30 d ays 

before a primary and 60 days before a general election). 
9 

precisely the correct, and only possible, line that properly 

balances free association, free expression, the need of citizens 

of ordinary means to participate in the political system, and the 

need for a corruption-free political system. 

3.	 There Is International Support for Unfettered 

Issue Advocacy. 

In arguing that the standards for reversing precedent have 

not been met, i.e., that the Buckley and MCFL holdings have 

not been “undermined by subsequent changes or developments 

in the law,” NRLC Br. 15 (citation omitted), NRLC Plaintiffs 

noted that “unfettered issue advocacy enjoys international 

support.” NRLC Br. 15 n.18. Defendants failed to respond to 

this argument, but the Brief of Amici Curiae International 

Experts in Support of Appellees/Cross-Appellants (“International Br.”) responded in some curious ways. 

First,the amici brief mischaracterized what NRLC Plaintiffs 

said, stating that “[i]f . . . [NRLC Plaintiffs] suggest that other 

countries do not generally impose restrictions on paid political 

advertising they are simply wrong.” International Br. at 10 

(emphasis added). Only in footnote did they acknowledge that 

NRLC Plaintiffs might be saying something other than the 

strawman created in text: 

An alternative reading of [NRLC Plaintiffs’] proclamation is that other countries do not restrict the advertisement of issue-oriented (and non-election-related) 

political messages. Whether this claim is true or not, it 

is irrelevant to the case at hand. There is no question 

here as to whether BCRA may proscribe the use of such 

funds for true issue-oriented advertisements, [sic] 

because the statute does not attempt to limit such 

advertisements by unions and corporations. The degree 

to which other countries support issue-oriented, nonelection related advocacy therefore does not speak to the 

question before the Court. [Id. at 10 n.25.] 
10 

Amici misunderstand the arguments in this case, such as the 

issue of BCRA’s effect on grass roots lobbying.3 

Second, amici invest a great deal of time saying what 

various countries do in terms that are meaningless because they 

are undefined, and so do not inform the reader whether the 

restriction is on express advocacy, issue advocacy, or some 

attempted hybridsuch as “electioneering communications.”The 

amici’s brief uses “paidpolitical advertising” the most ofen, but 

it is never defined. So what does it mean when amici say that 

“[t]he substantial majority of developed nations . . . impose 

burdens on paid political advertising that are much more 

restrictive than those mandated under BCRA?” Id. at 10-11 

(emphasis added). Does this mean these nations restrict express 

advocacy, issue advocacy, issue advocacy that happens to 

coincidewith an election,or “electioneeringcommunications?” 

Do these restrictions apply to candidate advertising, political 

party advertising, broadcast ads, print ads, bulk mail ads, phone 

banks, or what? 

Only occasionally do amici tell us what a nation actually 

prohibits, such as when it says that Israel has “a complex and 

restrictive regime governing political broadcasts,” id. at 13, 

and provides a footnote, id. at 13 n.38, further saying that 

Israel’s high court called it “election propaganda” (phrases that 

are so vague as to be useless). Australia is said to even ban 

“issue advocacy” for three months before an election, although 

the phrase is undefined, and it is difficult to imagine that 

3

Plainly the argument made by NRLC Plaintiffs has been that this Court 

correctly held that the First Amendment protects the right of citizens to 

associate in issue advo cacy corp orations for th e purpo se of engagin g in 

unfettered issue advocacy, even if some of it might affect elections. In this 

particular case, there has been no debate over issue advocacy that might not 

have some effect on elections, and the precise focus of the case has been 

whether this Court’s holdings in Buckley and MCFL that the proper dividing 

line for protecting issue advocacy is the express advocacy test should be 

overruled. Therefo re, amici’s two c haracte rizations of NRLC P laintiffs’ 

position are both wide of the mark and fail to comprehend the debate. 
11 

Aussies are banned from promoting, say, the “issue” of legislation to ban sport utility vehicles in portions of the Outback for 

three months before every election. 

The terms being undefined, it is all a meaningless comparison of apples and oranges, without even the ability to tell 

whether a ban is in the apple or orange basket, or is instead a 

kiwi. So when we learn that Paraguay bans “political advertising” for two days before an election and does not allow it to 

begin until 60 days before an election, id. at 15 n.47, we can’t 

respond with “Well, if Paraguay does it, so should we” because 

we don’t know what “it” is. And on the subject of Paraguay, 

there’s a world of difference between a two day ban and a sixty 

day ban, even if bothwere dealing with “electioneering communications” as defined in BCRA. 

Third, amici attempt to make the two cases that NRLC 

Plaintiffs cited, NRLC Br. 15 n.18, support their position. These 

cases involved election-related restrictionsin two countries very 

close to our common-law tradition, Canada4

 and Great Britain. 

As to the Canadian case, Harper v. Canada, 2002 ABCA 

301 (2002) – with its on-point quote about a one-day blackout 

on “election advertising” violating the Charter because it 

encompassed “tak[ing] a position on an issue with which a 

registered party or candidate is associated,” and so “encroached 

upon the freedom of expression of those who seek to voice 

public concerns which are inconsequential to partisan advocacy,” see NRLC Br. 15 n.18 (providing citations) – amici 

simply make that case disappear with remarkable prestidigitation. A search of their Table of Authorities reveals that without 

doubt the case has vanished. 

In the place of the vanished Harper case, amici substitute 

another Canadian case that they represent as “reluctantly 

conclud[ing] that . . . [a] near-total ban on third-party spending” 

4

 At least Canada has a Charter that protects free expression and 

association in a manner similar to the U.S. Constitution, as amici concede. 

International Br. 18-19. 
12 

that prohibited many from participating in advocating or 

opposing referenda “went too far.” International Br. 20 (emphasis added). “Reluctantly” or not, the holding of the court was 

that people couldn’t be shut out from participation in issue 

advocacy. But seeking to make this on-point holding also 

disappear, amici move from irrelevant speculation about 

“reluctance” to the Court’s discussion of a statute and a case 

that amici openly acknowledge was “not before it.” Id. 20-21. 

Amici apparently like what the court said about matters not 

before it, but such comments are obiter dictum. Remarkable. 

As to the ECHR case of Bowman v. United Kingdom, 26 

Eur. Ct. H.R. 1 (1986), which struck down British restrictions 

that “operated, for all practical purposes . . . as a total barrier to 

Mrs Bowman’s publishing information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate,” id. at ¶ 47, amici attempt another feat of legerdemain to 

make this case disappear. Amici claim, with many italicized 

flourishes, that some of the quotes in the brief description of the 

case, NRLC Br. 15 n. 18, were not actually things the court said 

but were part of a report presented to the court. International Br. 

25-26. But the quoted portions were all part of the court’s 

opinion, provided with appropriate paragraphcitationsto briefly 

set the factual pattern and then the holding of the case. 

And the case doesn’t disappear under more extended 

examination. This was a case about voter guides that set forth 

candidates’ positions on abortion and human embryo experimentation. Bowman, 26 Eur. Ct. H.R. at ¶¶ 10-12 (court opinion 

section entitled “Facts”). Mrs. Bowman, the executive director 

of the Society for the Protection of the Unborn Child, distributed 25,000 copies of her leaflet “immediately before the 

Parliamentary elections in April 1992” in Halifax, where she 

was charged with violating a statute that permitted her to only 

spend five pounds sterling for such issue advocacy “to electors 

with a view to promoting or procuring the election of a candidate. Id. at ¶¶ 10, 12, 13. 
13 

Her leaflet began with the words, “We are not telling you 

how to vote, but it is essential for you to check on Candidates’ 

voting intentions on abortion and the use of the human embryo 

as a guinea pig,” and proceeded to describe the positions of 

three candidates, two of whom seemed favorable to the SPUC 

position and the other opposed. At the bottom it said in bold, 

capital letters the name of the organization (SPUC). On the 

back was a photograph labeled “unborn baby ten weeks after 

conception” and a description of fetal development. Id. at ¶ 12. 

Pure issue advocacy. 

What did the court say? In the section labeled “Judgment,” 

the court 

f[ound] it significant that the limitation . . . was set as 

low as ^500. It recalls that this restriction applied only 

during the four to six weeks preceding the general 

election. [footnote] However, although it is true that 

Mrs Bowman could have campaigned freely at any 

other time, this would not, in the Court’s view, have 

served her purpose of publishing the leaflets which was, 

at the very least, to inform the people of Halifax about 

the three candidates’ voting records and attitudes on 

abortion, during the critical period when their minds 

were focused on their choice of representative. [Id. at ¶ 

45.] 

The parallels to arguments made in the present case by Defendants are too obvious to require explanation. Paragraph 46 went 

on to explain that the law had taken away Mrs. Bowman’s 

chosen means of communication, leaving her without “effective 

channels” to communicate her message. One is, of course, 

reminded that BCRA’s ban on broadcast communications is 

justified by Defendants because the broadcast media are the 

most effective communication channels. 

The Court then went on to its holding: 

In summary, therefore, the Court finds that . . . the Act 

operated, for all practical purposes, as a total barrier to 
14 

Mrs Bowman’s publishing information with a view to 

influencing the voters of Halifax in favour of an antiabortion candidate. . . . It accordingly concludes that the 

restriction in question was disproportionate to the aim 

pursued. [Id. at ¶ 47.] 

NRLC Plaintiffs stand by their assertion that these two cases 

demonstrate international support for issue advocacy. There is 

no legal change justifying the overruling of this Court’s 

protection of issue advocacy. 

4.	 This Court Would Have to Overturn Multiple 

Cases to Uphold the Electioneering Communications Restrictions. 

To approve BCRA’s “electioneering communication” 

restrictions would require this Court to overrule not only 

Buckley and MCFL, and Austin v. Mich. State Chamber of 

Commerce, 494 U.S. 652 (1990), as to the express advocacy 

test and the protection of corporate issue advocacy, but also 

other holdings, including all cases recognizing the right of 

corporations to engage in issue advocacy must be rejected, 

reaching back to First National Bank of Boston v. Belotti, 435 

U.S. 765 (1978). 

Buckley would also have to be overruled as to its holding 

that independent speech poses no threat of corruption. Buckley, 

424 U.S. at 45. MCFL would have to be overruled as to its 

holding that forcing nonprofit ideological corporations to use 

the PAC alternative for making independent expenditures was 

an inadequate protection of their constitutional rights. MCFL, 

479 U.S. at 252-55. 

The whole line of cases that make the distinction between 

contributions and independent expenditures would have to be 

overruled as to the significance of that distinction, extending 

from FEC v. National Right to Work Committee, 459 U.S. 197 

(1982) (NRWC), to FEC v. Beaumont, 123 S. Ct. 2200. 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 

(1981), would have to be overruled, as to its holding that a $250 
15 

limit on the amount that could be given to a ballot measure 

committee was not just a contribution limit but was a regulation 

of an expenditure, if Defendants prevail on their argument that 

BCRA really doesn’t really limit expenditures by groups. 

Mills v. Alabama, 384 U.S. 214 (1966), would have to be 

overruled as to its rejection of the argument that speech at 

election time could be regulated because the whole rest of the 

year was available and its holding that election time was the 

most important and most protected time for speech related to 

elections. 

II. From Quid Pro Quo to “Gratitude”: How BCRA 

Assaults Representative Democracy. 

In Buckley, this Court began with a clearly articulated 

concept of corruption as a quid pro quo exchange, i.e., dollars 

for votes or a last-minute endorsement by a rival candidate for 

promised appointment. See Buckley, 424 U.S. at 24; NCPAC, 

470 U.S. 480. In Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377, 389 (2000) (Shrink), this Court expanded 

corruption slightly to “a concern not confined to bribery of 

public officials, but extending to the broader threat from 

politicians too compliant with the wishes of large contributors.” 

Now Defendants urge this Court to consider “gratitude” for 

support as corrupting to our political system. But gratitude is 

one of those auto-expanding concepts, as circumvention was 

described above. Politicians will be grateful for any sort of 

support they receive. If the law restricts present means of 

engaging in activity for which candidates would be grateful, 

then citizen groups will do other things for which candidates 

will be grateful. Those things will then be capable of being 

banned on the basis of grateful candidates. 

And candidates are already grateful for endorsements, 

editorials, appearance by celebrities at their events, volunteers, 

and so on. Should all these be banned? 

This is another line that needs to be drawn firmly now, lest 

it devour our American system of government. Because the 
16 

only way to eliminate gratitude is to eliminate all things for 

which candidates can be grateful. This requires elimination of 

elections and thus our representative democracy. There is a 

compelling interest in protecting the best system of governance 

yet devised from those who would destroy it in the name of 

fixing it. 

III.	 The Independent Speech of State Candidates and 

Officeholders Cannot Be Subjected To Federal 

Contribution Limits And Disclosure Requirements. 

In support of § 323(f)’s restrictions on state candidates and 

office-holders, the Defendants essentially argue that the statute 

is drawn narrowly because it prevents state candidates from 

being used as a means of influencing federal elections without 

complying with federal regulations. FEC Br. 58-60, Interv. Br. 

39. However, this argument ignores the standards set by this 

Court for evaluating both reporting requirements and contribution limits, each of which is violated by this restriction. 

With regard to reporting and disclosure requirements, it is 

undisputed that this restriction violates the express advocacy 

test which this Court has established as the regulatory boundary. 

Buckley, 424 U.S. at 80-81. Indeed, the use of subjective terms 

such as “attack” or “support” raise the precise vagueness 

problems that necessitated the use of express advocacy as a 

bright line standard. Id. at 41-44. 

General Pryor’s own communications amply demonstrate 

the vagueness and overbreadth inherent to this content-based 

restriction upon his speech. One of his flyers includes a full 

page picture of himself shaking hands with President Bush, 

with the caption that “Bush appointed Pryor to be Alabama cochairman of the George W. Bush for President campaign.” 

Pryor Decl., Ex. A, 8 PCS/MC 43. Another displays the two 

men shaking hands directly above the phrase “Protecting the 

Security, Integrity, and Future of Alabama.” Pryor Decl., Ex. A, 

8 PCS/MC 45. While the context of each focused upon General 

Pryor’s re-election, either could easily have been viewed as 
17 

supporting President Bush as well. Thus, there can be little 

doubt that this provision will have chilling consequences on 

numerous candidates during the coming primaries as it threatens double regulation upon Republicans who tout their support 

for President Bush, and upon Democrats who wish to burnish 

their credentials to the party faithful by attacking the President 

or by touting their support for one of the Democratic candidates. 

Importantly, this restriction targets speech that will necessarily be intended to promote state candidacies. Unlike other 

organizations whose purposes may encompass aiding the 

election or defeat of federal candidates, the campaign committee of a candidate for state office is charged solely with promoting the election of that state candidate. Any impact on federal 

campaigns is necessarily incidental to accomplishing such 

election. While such candidates may refer to a federal candidate 

or officeholder as a means of establishing their own reputations 

or positions, there is no basis in logic or the record to suggest 

that state candidates will divert resources contributed to their 

own campaigns to support federal candidates, unless such 

efforts are viewed as beneficial to their own elections. 

With regard to the federal contribution limits triggered by 

this provision, the anti-conduit justification is inapplicable, 

because the money never reaches a federal candidate but is 

instead used for independent communications.5 This Court has 

never upheld limits on contributions that did not ultimately flow 

to candidates, but has struck down limits on contributions to 

entities which lacked the anti-corruption justification that 

supports limitations on contributions to candidates. Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 290. While 

limits on contributions to entities that contribute to candidates 

can be regulated as corruption-risking conduits, such justifica5

Disclosure regulations are based upon an informational interest that 

does encompass some independent com munications. Buckley, 424 U.S. at 

81. 
18 

tion evaporates when the money is used only for independent 

communications. As Justice Blackmun explained, while 

organizations that contribute to candidates are essentially 

conduits that “pose a perceived threat of actual or potential 

corruption” but “contributions to a committee that makes only 

independent expenditures pose no such threat.” California 

Medical Association v. FEC, 453 U.S. 182, 203 (1981) 

(Blackmun, J., concurring). 

Although this Court has not directly forbidden limitations 

on contributions for independent communications,limiting such 

contributions would ignore the “fundamental constitutional 

difference between money spent to advertise one’s views 

independentlyof the candidate’s campaign and money contributed to the candidate to be spent on his campaign.” NCPAC, 

470 U.S. at 497. The independence from the federal candidate, 

“not only undermines the value of the expenditure to the 

candidate, but also alleviates the danger that expenditures will 

be given as a quid pro quo for improper commitments from the 

candidate.” Id. (quoting Buckley, 424 U.S. at 47). Naturally, the 

link between candidates and those who contribute to independent speakers is even more attenuated. As this Court has recognized, “an independent expenditure made possible by a $20,000 

donation, but controlled and directed by a party rather than the 

donor, would seem less likely to corrupt than the same . . . 

independent expenditure made directly by that donor.” Colorado Republican Federal Election Campaign Committee v. 

FEC, 518 U.S. 604, 617 (1996). Moreover, placing a limit “on 

individuals wishing to band together . . . while placing none on 

individuals acting alone, is clearly a restraint on the right of 

association,” that “cannot be allowed to hobble the collective 

expressions of a group.” Citizens Against Rent Control, 454 

U.S. at 296. Hence, there can be no basis for prohibiting 

persons from contributing $2,001 to a state candidate, who 

independently mentions the name of a federal candidate, while 
19 

allowing donors to individually spend millions of dollars to run 

the same ad themselves.6 

6

Defenda nts failed to respond to (1) the problems Rep. Pence articulated 

concerning the raising of funds for Indiana Family Institute and the absence 

of any public perception of corruption in the relationship, NRLC Br. 36-39, 

(2) the standing to intervene of Sen. McCain et al., NRLC Br. 46-49, relying 

instead, Interv. Br. 11 n.8, on the district court opinion which is appended 

hereto because it wa s not included in the Joint Ap pendix, an d (3) NR LC’s 

description of a specific example demonstrating the potential for opposition 

mischief pose by treating a contract to broadcast as an actual communication. NRLC Br.44-46. 

As to the point ab out treating a co ntract as a communica tion, NRLC 

Plaintiffs rely on arguments made by other plaintiffs but note that Defendants’ argument that treating an “e xpenditure ” as a communication is 

justified because FECA defines “expenditure” to include a contract for an 

expenditure, FEC B r. 122, is flawed. The definition of “independent 

expenditure” (far more re levant beca use it is about the actual communication), requires a” communication.” See 11 C.F.R. § 100.16 (“The term 

independent expenditu re means an expenditu re by a person for a commu nication expressly advocating the election or defeat of a clearly identified 

candidate . . . .”). 
20 

Conclusion 

For the foregoing reasons, this Court should strike down 

Title I’s bans on “soft money” use by political parties, federal 

officeholders and candidates, state officeholders andcandidates, 

Title II’s ban on “electioneering communications,” and 

§ 201(5)’s “advance notice” requirement as violating constitutional free expression and association guarantees. Also, this 

Court should hold that the grant of intervention to Sen. McCain 

et al. was erroneous. 

Respectfully submitted,


James Bopp, Jr., Counsel of Record


Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR FREE SPEECH


BOPP, COLESON & BOSTROM


1 South 6th Street


Terre Haute, IN 47807-3510


812/232-2434 (fax: 812/235-3685)


Counsel for Appellants/Cross-Appellees,