No. 02-1747 

444444444444444444444444444444444444444444

IN THE 

Supreme Court of The United States 

________________ 

CONGRESSMAN RON PAUL, GUN OWNERS OF AMERICA, INC., 

GUN OWNERS OF AMERICA POLITICAL VICTORY FUND, 

REALCAMPAIGNREFORM.ORG, CITIZENS UNITED, 

CITIZENS UNITED POLITICAL VICTORY FUND, 

MICHAEL CLOUD, AND CARLA HOWELL, 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

________________ Appellees. 

On Appeal from the United States District Court 

for the District of Columbia

_______________

REPLY BRIEF FOR APPELLANTS 

CONGRESSMAN RON PAUL, ET AL. 

________________ 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

Attorneys for Appellants 

*Counsel of Record 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

August 21, 2003 

(Counsel continued on inside front cover) 

444444444444444444444444444444444444444444
RICHARD O. WOLF

MOORE & LEE, LLP

1750 Tysons Boulevard

Suite 1450

McLean, VA 22102

(703) 506-2050

GARY G. KREEP

U.S. JUSTICE FOUNDATION

Suite 1-C

2091 East Valley Parkway

Escondido, CA 92027

(760) 741-8086

PERRY B. THOMPSON

6127 Carroll Lake Road

Commerce, MI 48382

(248) 390-2058 
TABLE OF CONTENTS 

Page

TABLE OF AUTHORITIES ........................ ii

ARGUMENT

INTRODUCTION .............................. 1

I. THIS COURT MUST RE-EXAMINE

BUCKLEY ................................ 3

II. THIS COURT MUST NOT DEFER TO

CONGRESS ............................... 5

III. BCRA RESTS UPON AN

UNCONSTITUTIONAL FOUNDATION ....... 8

A. The American Government is Established

upon the Sovereignty of the People ........... 9

B. Elected Officials are Servants of the People . . . 11

C. New FECA § 323(e) Created by Title I of

BCRA Treats Elected Officials as

Government Employees ................... 13

D. BCRA/FECA Treats the American People as

Indentured Servants ...................... 15

IV. THE PAUL PLAINTIFFS HAVE STANDING TO

CHALLENGE BCRA § 307, AS WELL AS THE

RELATED FECA REPORTING

REQUIREMENTS ......................... 18

CONCLUSION ................................. 20
ii 

TABLE OF AUTHORITIES 

Page 

U.S. CONSTITUTION 

Amendment I ............................. 1, passim 

STATUTES

Act of July 14, 1798, 1 Stat. 596 .................... 10

Bipartisan Campaign Reform Act of 2002, Pub. L.

107-155, 116 Stat. 81 ...................... 1, passim

Federal Election Campaign Act of 1971, as 

amended, 2 U.S.C. § 431, et seq. ............. 2, passim

2 U.S.C. § 432 .................................. 20

2 U.S.C. § 433 .................................. 20

2 U.S.C. § 434 .................................. 20

2 U.S.C. § 441a ................................. 20

2 U.S.C. § 441a(a)(2)(a) .......................... 18

CASES 

Allee v. Medrano, 416 U.S. 802 (1974) ............... 20

Arkansas Writer’s Project, Inc. v. Ragland, 481 U.S. 

221 (1987) .................................... 2

Brown v. Socialist Workers ‘74 Campaign Comm., 

459 U.S. 87 (1982) ............................. 17

Buckley v. American Constitutional Law Foundation ... 16

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

FEC v. Beaumont, ___ U.S. ___, 123 S.Ct. 2200 (2003) . . 1

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) ..... 1

Grosjean v. American Press Co., Inc., 267 U.S. 233

(1936) ........................................ 2

Lovell v. Griffin, 303 U.S. 444 (1938) .......... 2, 16, 20

Lujan v. National Wildlife Federation, 504 U.S. 

555 (1992) ................................... 19

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . 12

McIntyre v. Ohio Election Commission, 514 U.S. 

334 (1995) ................................. 2, 17
iii 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241 (1974) .................................... 2

Near v. Minnesota, 283 U.S. 697 (1931) ......... 2, 20, 21

New York Times v. Sullivan, 376 U.S. 254 

(1964) ................................. 10, 11, 16

New York Times v. U.S., 403 U.S. 713 (1971) .......... 2

Page v. Bartels, 248 F.3d 175 (3d Cir. 2001) .......... 20

Pennsylvania Dept. of Public Welfare v. Davenport,

495 U.S. 552 (1990) ............................ 19

Schneider v. State, 308 U.S. 147 (1939) ............... 2

Talley v. California, 362 U.S. 60 (1960) ............ 2, 17

Thornhill v. Alabama, 310 U.S. 88 (1940) ............. 2

United States v. Congress of Industrial Organizations,

335 U.S. 106 (1948) ...................... 6, passim

United States v. Generix Drug Corp., 460 U.S. 453

(1983) ....................................... 20

United States v. Georgia Public Service Comm., 371

U.S. 285 (1963) ............................... 20

United States v. UAW-CIO, 352 U.S. 567 (1957) ..... 7, 15

U.S. Civil Service Comm. v. Nat’l. Ass’n. of Letter

Carriers, 413 U.S. 548 (1973) ................. 13, 16

Watchtower v. Village of Stratton, 536 U.S. 150

(2002) ........................................ 2

BOOKS

J. Adams, The Revolutionary Writings of John Adams

(Liberty Fund, Indianapolis: 2000) ................ 11

The Founders’ Constitution (P. Kurland and R. Lerner,

eds., Univ. Chi.: 1987) .......................... 10

A. Hamilton, et al., The Federalist 262 (Liberty Fund,

Indianapolis: 2001) .......................... 9, 16

R. Nixon, The Memoirs of Richard Nixon

(Grosset & Dunlap: 1978) ........................ 8

Sources of Our Liberties (Perry, ed., Rev. Ed., ABA 

Found., Chicago: 1978) ...................... 11, 12
iv 

C. Wright, et al., Federal Practice and

Procedure (2d ed. 1988 and Supp. 2002) ........... 20

OTHER 

148 Cong. Rec. H355 (daily ed. Feb. 13, 2002) ......... 8

148 Cong. Rec. H405 (daily ed. Feb. 13, 2002) ......... 8

148 Cong. Rec. S2099 (daily ed. Mar. 20, 2002) ........ 8

http://www.GeorgeWBush.com ..................... 18
ARGUMENT 

INTRODUCTION 

According to the Government and the six intervening 

members of Congress (“intervening incumbents”), the First 

Amendment challenge to the Bipartisan Campaign Reform Act 

of 2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”), can only 

be resolved by plowing through a mammoth record of 

thousands of pages of testimony and expert reports to 

determine whether Congress had a compelling or substantial 

government interest to override the constitutional rights of free 

speech and association. In so doing, the Government and the 

intervening incumbents would lead this Court into a legislative 

thicket of self-serving statements and studies that will not yield 

a rule of law, but only an underbrush of cases either tangled 

together by factual similarities or pulled apart by legal niceties. 

Compare results obtained in FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986) with those in FEC v. Beaumont, ___ U.S. 

___, 123 S.Ct. 2200 (2003). 

This Gordian knot of precedent from Buckley v. Valeo, 424 

U.S. 1 (1976) through FEC v. Beaumont, will not be cut unless 

this Court is willing to reexamine Buckley, which occupies its 

core. And only the Paul Plaintiffs, among the all the plaintiffs 

in this case, have offered a solution to unravel the strings with 

which Congress has entangled campaigns for election to 

federal office. The solution proposed is not a new one, and is 

rooted in a long line of this Court’s precedents interpreting and 

applying the First Amendment’s freedom of the press. 

Overlooked by Buckley and its progeny, the freedom of the 

press offers bright-line rules, free from the balancing tests 

urged by the Government and the intervening incumbents, that, 

if followed, would open up the political process to all people 

on equal terms, not close the door to “ordinary folk” because 

they cannot afford to own a newspaper or broadcast facility, 

and therefore, cannot take advantage of the corporate media 

exemption, or because they cannot afford the cadre of lawyers, 
2 

accountants, and political consultants that are necessary to keep 

a candidate out of harm’s way should a government form or 

report fail to meet the requisite legal standard. 

In an unbroken line of authority, beginning with Sir William 

Blackstone’s description of the liberty of press as belonging to 

“every man” in 1769, adopted by this Court in Near v. 

Minnesota, 283 U.S. 697 (1931), and recently reaffirmed in 

Watchtower v. Village of Stratton, 536 U.S. 150 (2002), 

freedom of the press has been expressly recognized as a right 

equally available to all, not merely the corporate media. 

The impermissibility of licensing systems for the 

dissemination of ideas has been firmly established in a line of 

cases stretching unbroken from Lovell v. Griffin, 303 U.S. 444 

(1938), Schneider v. State, 308 U.S. 147 (1939), and Thornhill 

v. Alabama, 310 U.S. 88 (1940), to the recently decided 

Watchtower. The decisions in Near v. Minnesota, 283 U.S. 

697 (1931), and New York Times v. U.S., 403 U.S. 713 (1971), 

establish and confirm that prior restraint of press activity is 

permitted under only the most extreme of circumstances. 

Those decisions, together with others such as Miami Herald 

Publishing Co. v. Tornillo, 418 U.S. 241 (1974), establish that 

imposing editorial control over press activities is not 

permitted. The right to engage in anonymous press activities 

is established in cases such as Talley v. California, 362 U.S. 60 

(1960), and McIntyre v. Ohio Elections Comm., 514 U.S. 334 

(1995). Finally, the impermissibility of discriminatory 

economic burdens on press activities has been established in 

a line of cases which includes Grosjean v. American Press Co., 

Inc., 267 U.S. 233 (1936), Arkansas Writer’s Project, Inc. v. 

Ragland, 481 U.S. 221 (1987), and Miami Herald, supra. 

BCRA and the Federal Election Campaign Act of 1971, 2 

U.S.C. § 431, et seq. (“FECA”), violate all of these press 

principles and entitle the Paul Plaintiffs to judgment. See Paul 

Plaintiffs’ Br. at 32-50. 
3

I. THIS COURT MUST RE-EXAMINE BUCKLEY. 

The Paul Plaintiffs present squarely to this Court the claim 

that freedom of the press protects the right of citizens to 

publish what they choose in criticizing incumbents, without 

fear of serving a five-year sentence in federal prison, even if 

those publications both affect the outcome of federal elections 

and bring incumbents into disrepute. For if The New York 

Times has the right to criticize incumbents without being 

licensed by the Government, and without having its sources of 

income limited and publically disclosed, then so do the Paul 

Plaintiffs. 

In their briefs, neither the Government nor the intervening 

incumbents have deigned address the merits of the Paul 

Plaintiffs’ press claims. The sole response in either brief to the 

50-page brief of the Paul Plaintiffs is a footnote in the 

Government’s brief (p. 126, n. 58) stating a general 

jurisdictional objection to the Paul Plaintiffs’ challenge to 

certain contribution limits (discussed in Section IV herein). 

The Government and the intervening incumbents have ignored 

the challenge of the Paul Plaintiffs in the same way they want 

this Court to ignore the substance of this challenge.1 

The Government and the intervening incumbents have 

pretended that they have “joined issue” by addressing the 

claims of the other plaintiffs. But the challenge of the Paul 

Plaintiffs is not indistinguishable from that brought by the 

other plaintiffs. Although the Paul Plaintiffs have attacked 

many of the same provisions of BCRA as the other plaintiffs in 

this consolidated litigation, the constitutional attack of the Paul 

Plaintiffs is, and has been throughout, clearly separate and 

1 If this Court actually places special reliance on the “gray briefs”to present 

fairly to the Court all of the issues in a case, it will be sorely disappointed 

by the selective approach undertaken in this case, omitting all discussion of 

important claims by the Paul Plaintiffs. 
4

unique: 

• Only the Paul Plaintiffs have asked this court to overturn 

Buckley v. Valeo. It would appear that the Paul Plaintiffs 

in the instant case are the only litigants to ask this Court to 

overturn Buckley in the 27 years since that case was 

decided. 

• Only the Paul Plaintiffs have relied on freedom of the 

press, the application of which to campaign finance 

regulation has gone unlitigated before this Court. 

• Only the Paul Plaintiffs have attacked Congress’ 

regulation of campaign finance as an impermissible 

licensing scheme designed by and for incumbents. 

The challenge of the Paul Plaintiffs is not illegitimate, 

“beyond the pale,” or undeserving of a response, but wellgrounded in the Constitution and the factual record of this case. 

The “rope-a-dope” strategy, adopted by the Government and 

intervening incumbents, whereby they would absorb the energy 

of each factual and legal punch rather than join issue with the 

Paul Plaintiffs, may deprive this Court of the benefits of 

vigorous advocacy,2

 but it should not stand in the way of this 

2 Neither has the challenge brought by the Paul Plaintiffs found favor with 

other plaintiffs making limited challenges to BCRA not grounded in 

freedom of the press. None have challenged Buckley; indeed, all give it 

homage. None find fault with the federal licensing of election campaigns. 

None have expressed serious concern about the adverse effect of these laws 

on challengers and minor parties. All agree that Congress indeed may 

regulate elections despite the First Amendment, and make only the limited 

claim that BCRA goes just a bit too far in restricting speech, or perhaps that 

it is not the least restrictive means to accomplish such regulatory goals. It 

is no wonder that certain plaintiffs are uncomfortable with the challenge of 

the Paul Plaintiffs that attacks the foundation of the current system under 

which they have gained the political power that they seek to preserve. In its 

order of August 4, 2003, this Court accepted the proposal of certain 

plaintiffs to exclude the Paul Plaintiffs from oral argument. Accordingly, 

this Reply Brief will be the last word from the Paul Plaintiffs, who would 
5

Court’s re-examining Buckley. If it does, it will find a ruling 

based upon forecasts, unrelated to a factual record of the actual 

effect of FECA, on the electoral playing field. See, e.g., 

Buckley at 424 U.S. 21-22, 31 n.33, 32-34, 69-74, 82-83. But 

the real-world, factual case presented by the Paul Plaintiffs 

demonstrates that the current system of federal campaign 

finance regulation makes it extremely difficult for challengers 

to defeat incumbents, and virtually impossible for minor party 

candidates to defeat Republican and Democratic candidates. 

In light of the five substantive press claims of the Paul 

Plaintiffs, well-grounded in established precedents and the 

record (see Paul Plaintiffs’ Br. at 19-27), together with the 

consequences wrought by the statutory provisions challenged 

herein, wholly unrebutted by the Government and the 

intervening incumbents, the challenge of the Paul Plaintiffs 

should be upheld. 

II. THIS COURT MUST NOT DEFER TO CONGRESS. 

The Government and intervening incumbents insist that this 

Court abjectly defer to the expertise of Congress on the 

corrupting power of money in the political process, invoking 

repeatedly the shibboleth of “appearance of corruption.” See, 

e.g., Brief for the Federal Election Commission, et al. (“Govt. 

Br.”) at 28, 39 n.14, 89, 93; Brief for Intervenor-Defendants 

(“Int. Br.”) at 11, 34, 36 n.27. Indeed, the Government has 

contended that a long line of decisions by this Court proves 

that there is no credible basis to question the constitutionality 

of the exercise of “Congress’s authority to protect the integrity 

of federal elections and prevent corruption of federal officeholders.” Govt. Br. at 2-3. This simply is not true, even in the 

cases cited by the Government. Id. at 3. 

Prior to Buckley, members of this Court did not defer to 

respectfully request that these unique arguments receive careful review. 
6 

congressional efforts at campaign finance regulation. In 1948, 

with a bare majority of the Court refraining from passing 

constitutional judgment upon § 313 of the Corrupt Practices 

Act (which prohibited union expenditures in connection with 

any federal election), the entire “liberal wing” — Justices 

Rutledge, Douglas, Black, and Murphy — found the law an 

unconstitutional abridgment of the freedoms of speech and of 

the press, and the right of assembly. United States v. Congress 

of Industrial Organizations, 335 U.S. 106, 139-55 (1948) 

(Rutledge, J., concurring). In these four justices’ opinion, the 

Court was “duty bound to ... decide in its own independent 

judgment” whether § 313 “abridged” the rights secured by the 

First Amendment: 

That office cannot be surrendered to legislative 

judgment [which] does not bear the same weight and 

is not entitled to the same presumption of validity, 

when the legislation ... restricts the rights ... protected 

by the [First] Amendment, as are given to other 

regulations having no such tendency. [Id. at 140.] 

Not only did the four justices deny the usual presumption of 

validity to a law “trenching on [the] basic rights” secured by 

the First Amendment, they found an actual “presumption ... 

against the legislative intrusion into these domains,” because 

they threatened the “very foundation of democratic institutions, 

grounded as those institutions are in the freedoms of religion, 

conscience, expression and assembly.” Id. at 139, 140 

(emphasis added). 

Nine years later, two members of this concurring opinion, 

Justices Douglas and Black, (Justices Rutledge and Murphy 

having passed away), joined by Chief Justice Warren, had 

occasion to articulate more fully the “constitutional 

foundation” of the American democratic republic. Dissenting 

from a majority opinion that had declined to address the 

constitutionality of § 313 of the Corrupt Practices Act, Justice 
7 

Douglas observed that “whether a union can express its views 

on issues of an election and on the merits of candidates, 

unrestrained and unfettered by Congress ... is as important an 

issue as has come before the Court for it reaches the very 

vitals of our system of government”: 

Under our Constitution it is We the People who are 

sovereign. The people have the final say. The 

legislators are their spokesmen. The people 

determine through their votes the destiny of the 

nation. It is therefore important — vitally important 

— that all channels of communication be open to 

them during every election, that no point of view be 

restrained or barred, and that the people have access 

to the views of every group in the community. 

[United States v. UAW-CIO, 352 U.S. 567, 593 

(1957) (Douglas, J., dissenting) (emphasis added).] 

Upon this principle, Justice Douglas rested his case that the 

“exercise of First Amendment rights,” if they are to remain 

“‘full, fair and untrammeled,’” cannot permit “an indictment 

charging no more than the use of union funds for broadcasting 

television programs that urge and endorse the selection of 

certain candidates for Congress of the United States.” Id. at 

593, 594. In so doing, Justice Douglas recognized that “the 

preferred rights of the First Amendment,” especially the 

freedom of the press, is abridged by limiting “the expenditure 

of money,” whether that limit applies to a union or a 

newspaper in that it “usually costs money to communicate an 

idea to a large audience.” Id. at 594. 

Despite this rich legacy of judicial counsel, this Court in 

Buckley dropped its First Amendment guard. With Chief 

Justice Warren and Justices Douglas and Black gone from the 

Court, and in the aftermath of Watergate, a new majority of 

compromise was formed, a compromise made possible only by 

deference to Congress, fueled by the litigants’ neglect of the 
8

freedom of the press. By ignoring the freedom of the press in 

Buckley, the Court was able to find constitutional a brand new 

licensing system governing campaigns for federal election. 

III. BCRA RESTS UPON AN UNCONSTITUTIONAL 

FOUNDATION. 

In their opening brief, the intervening incumbents have 

rested their constitutional case for BCRA on the claim that the 

ultimate purpose of campaign finance regulation is “[t]o protect 

democracy” by laying down new rules of popular political 

engagement designed to combat “a dramatic loss of public 

confidence” in the current system of government by restoring 

the ordinary citizen’s faith in his or her elected representatives. 

Int. Br. at 1-2. Thus, these intervenors maintain that the mere 

“perception of corruption”3

 would be sufficient to sustain every 

BCRA provision because campaign finance regulation is, after 

all, designed to save America’s democracy, including 

3 When President Nixon named Judge Clement Haynsworth for the U.S. 

Supreme Court in 1969, he learned firsthand about Congress’ reliance on 

“appearances” to appoint to itself greater powers. Congressional opponents 

of the Haynsworth nomination could point to no actual impropriety 

committed by the judge, but rather justified their opposition based on an 

alleged appearance of impropriety. In his memoirs, President Nixon 

observed, “It was a vicious circle: the nominee would not be condemned for 

what he had done but for what he had been accused of having done by his 

detractors.” Richard M. Nixon, The Memoirs of Richard Nixon at 421 

(Grosset & Dunlap: 1978). That type of machination is also applicable to 

BCRA which was passed largely to combat the “appearance of corruption,” 

not the objective reality of corruption which supporters of McCain-Feingold 

generally denied existed (see, e.g., McCain Depo. at 20, Rec. 199; Statement 

of Sen. Dodd, 148 Cong. Rec. S2099 (daily ed. Mar. 20, 2002); Statement 

of Rep. Boehlert, 148 Cong. Rec. H405 (daily ed. Feb. 13, 2002); Statement 

of Rep. Udall, 148 Cong. Rec. H355 (daily ed. Feb. 13, 2002)), but a matter 

of perception which can be created by the very congressmen who seek the 

reelection assistance which flows from it, working hand-in-glove with the 

corporate media — the only component of American society exempted from 

its application. 
9 

themselves as incumbent officeholders, from the power of 

money. See, e.g., Int. Br. at 15-17. 

Less dramatically, but no less significantly, the Government 

has insisted that campaign finance regulation is necessary 

because the very “integrity of the federal work force” is at risk. 

Govt. Br. at 30. Thus, the Government has argued that 

campaign finance regulation is not just about the integrity of 

the elections, but about insulating the “federal work force,” 

including elected federal officials such as the intervening 

incumbents, no matter the degree of temptation of money in the 

formulation and implementation of the nation’s public policy. 

See, e.g., Govt. Br. at 30-34, 41-43. 

Both the intervening incumbents’ and the Government’s 

claims rest BCRA upon an errant constitutional foundation, 

having presumed that the common good depends upon the 

people thinking well of Government. Instead, the United States 

Constitution is based upon the principle that the common good 

depends upon a free people protected from governmental 

abridgment of their First Amendment rights. See United States 

v. CIO, 335 U.S. at 140 (Rutledge, J., concurring). 

A. The American Government is Established upon the 

Sovereignty of the People. 

The sovereignty of the people is enshrined in both the 

Declaration of Independence and the Constitution of the United 

States. As James Madison wrote: 

As the people are the only legitimate fountain of 

power, and it is from them that the constitutional 

charter, under which the several branches of 

government hold their power, is derived. [Federalist 

No. 49, as reprinted in A. Hamilton, et al., The 

Federalist 262 (Liberty Fund, Indianapolis: 2001).] 

In 1798, however, this commitment to popular sovereignty 
10

was severely challenged. Fearful that the system of 

government established in the U.S. Constitution would be 

transformed by the French Revolution and the emerging 

Republican Party led by Thomas Jefferson, the Federalist 

Party-dominated Congress enacted the Sedition Act of 1798, 

which prohibited the publication of “false, scandalous, and 

malicious ... writings against the government of the United 

States, or either House of Congress, or the President of the 

United States, with intent to defame [them].” Act of July 14, 

1798, 1 Stat. 596.4 This law was immediately challenged by 

Madison as a violation of the freedom of the press. J. Madison, 

Report on the Virginia Resolutions (Va. Res.) (Jan. 1800), 

reprinted in 5 The Founders’ Constitution (Founders’ Const.) 

141 (P. Kurland and R. Lerner, eds., Univ. Chi.: 1987). 

Reminding his fellow Virginians that “[i]n the United States ... 

[t]he People, not the Government, possess the absolute 

sovereignty,” he contended that “[t]he security of the press 

requires that it should be exempt ... not only from the previous 

inspection of licensers, but from the subsequent penalty of 

law.” J. Madison, Report on the Virginia Resolutions, 

reprinted in 5 The Founders’ Const. at 142. 

While Madison’s view of the freedom of the press did not 

prevail in the courts during his lifetime, it found favor with this 

Court in New York Times v. Sullivan, 376 U.S. 254 (1964), 

which relied heavily upon Madison’s comments in support of 

the Bill of Rights and in opposition to the Sedition Act: 

If we advert to the nature of Republican Government, 

we shall find that the censorial power is in the people 

over the Government, and not the Government over 

the People.... In every state ... in the Union, the press 

4 In seeking to limit the press activities of Americans to preserve the 

reputation of Government, the Sedition Act can be viewed as a forerunner 

of FECA and BCRA. 
11 

has exerted a freedom canvassing the merits and 

measures of public men.... On this footing the 

freedom of the press has stood; and on this foundation 

it yet stands. [Id. at 275]. 

The Court in New York Times v. Sullivan, therefore, 

concluded that “[t]he right of free public discussion of the 

stewardship of public officials was thus ... a fundamental 

principle of the American form of Government.” Id. 

B. Elected Officials Are Servants of the People. 

In recognition of the people’s continuing sovereignty, the 

people of the several states insisted upon frequent and free 

elections so as to ensure that elected officials would “be 

restrained from oppression, by feeling and participating in the 

burdens of the people ... [by] be[ing] reduced to a private 

station, return[ing] to that body from which they were 

originally taken.” See, e.g., 1776 Va. Const,. §5, reprinted in 

Sources of Our Liberties (Sources) at 311-12 (Perry, ed., Rev. 

Ed., ABA Found., Chicago: 1978). The people of the United 

States followed suit, providing for two-year terms for persons 

elected to the House of Representatives, six-year terms for 

persons elected to the Senate, and four-year terms for the 

President of the United States. See Sources at 405-06. 

Additionally, the people of the states secured constitutional 

protection for the freedom of the press, as “one of the great 

bulwarks of liberty.” 1776 Va. Const., reprinted in Sources at 

312. As a rampart of liberty, the freedom of the press had long 

been recognized as essential to ensure that elected 

representatives served the people faithfully as their “agents and 

trustees.” J. Adams, “A Dissertation on the Canon and Feudal 

Law,” reprinted in J. Adams, The Revolutionary Writings of 

John Adams 28 (Liberty Fund, Indianapolis: 2000). Adams’ 

view that elected government officials were the “agents and 

trustees” of the people was reflected in the early state 
12

constitutions. The 1784 New Hampshire Constitution is 

illustrative: 

All power residing originally in, and being derived 

from the people, all the magistrates and officers of the 

government, are their substitutes and agents, and at all 

times accountable to them. [1784 N.H. Const., Art. 

VIII, reprinted in Sources at 383.] 

The United States Constitution rests upon the same premise: 

The government of the Union ... is, emphatically, and 

truly a government of the people. In form and in 

substance it emanates from them. Its powers are 

granted by them, and are to be exercised directly on 

them, and for their benefit. [McCulloch v. Maryland, 

17 U.S. (4 Wheat.) 316, 404-05 (1819).] 

As a “government of the people, by the people, and for the 

people,” elected federal officials are the servants and trustees 

of the people, and as such, are accountable to the people. Thus, 

in sponsoring a Bill of Rights for the United States 

Constitution, James Madison introduced a series of proposals 

“based largely on the declarations of rights in the state 

constitutions, particularly of Virginia.” Sources at 422. 

Foremost among them: “the freedom of the press.” 

The Government and the intervening incumbents reject the 

sovereignty of the people and ask this Court to turn upsidedown the relationship between the Government and the people, 

transferring sovereignty to incumbent officeholders and 

making the people the servants of the Government. BCRA 

thus converts elected officials (and candidates for election to 

federal office) into ordinary Government employees (and 

potential Government employees), accountable not to the 

American people, but to incumbent-appointed bureaucrats that 

populate the Federal Election Commission (“FEC”). This point 

can be best illustrated by a careful assessment of the 
13 

Government’s and intervenor-incumbents’ defense of BCRA 

§ 101 creating new FECA § 323(e). 

C. New FECA § 323(e) Created by Title I of BCRA Treats 

Elected Officials as Government Employees. 

The Government’s defense of § 323(e) explicitly rests upon 

the argument that elected federal officials (and candidates for 

election to federal office) are “employees” (or potential 

employees) of the Government and, therefore, are subject to 

greater restrictions upon their First Amendment activities than 

ordinary citizens. See Govt. Br. at 57-58. In support of this 

novel claim, the Government relies upon two cases upholding 

the constitutionality of the Hatch Act, a law designed to protect 

the merit civil service system from “partisan politics.” See 

Govt. Br. at 57 and n. 27. By extending the reach of the Hatch 

Act precedents to elected officials, the Government has taken 

the incredible position that elected officials should be as 

insulated from the vicissitudes of the popular will as career 

Government employees, presumably so that the “integrity of 

the federal work force” can be preserved. See Govt. Br. at 30. 

Not only is the Government’s position on § 323(e) based upon 

a misreading of this Court’s Hatch Act cases, but, if embraced, 

would put an end to the American constitutional democratic 

republic, not preserve it. 

This Court has justified limitations upon the partisan 

activities of merit-based civil servants on the primary ground 

that such a limitation was necessary to ensure that the law 

would be “administer[ed] in accordance with the will of 

Congress, rather than in accordance with their own will or the 

will of a political party.” U.S. Civil Service Comm. v. Nat’l. 

Ass’n. of Letter Carriers, 413 U.S. 548, 565 (1973) (emphasis 

added). Secondarily, the Court reasoned that “public ... 

confidence in the system of representative Government 

[would otherwise] be eroded,” if it appeared that the will of 

Congress was being thwarted by career Government employees 
14 

attempting to implement their own political agendas. Id. 

(emphasis added). Thus, the Hatch Act was designed to ensure 

that everyday government operations would reflect the will of 

elected officials, and that those elected officials would serve as 

representatives of the electorate accountable to the people. 

Section 323(e) does just the opposite, preventing candidates 

for office, whether they be incumbents or challengers, from 

freely soliciting funds to help their fellow citizens to have a 

more effective voice in federal elections, by interposing 

between candidates and their fellow citizens a set of restrictive 

rules enforceable by an unelected Federal Election 

Commission. Thus, federal candidates and officeholders 

become accountable to unelected government officials, rather 

than to the people. Such a violation of the sovereignty of the 

people necessarily transgresses freedom of the press (see Paul 

Plaintiffs’ Br. at 40-43). 

The intervening incumbents have also ignored the freedom 

of the press, because they, too, have abandoned the popular 

sovereignty principle upon which it is based. They have 

justified § 323(e) as a welcome prophylactic to “the risk that 

the donor will acquire (or appear to acquire) undue influence” 

(Int. Br. at 36 (emphasis added)), without regard for any 

differences between incumbents and challengers, insider 

incumbents and outsider officeholders, and major party 

candidates and minor party candidates. It is enough for the 

intervening incumbents that § 323(e) is “aimed at the core 

problems of corruption and appearance of corruption,” without 

regard for the likelihood or degree of “influence.” See id. 

(emphasis added). As Justice Rutledge pointed out 55 years 

ago, “‘undue influence’ ... may represent no more than the 

convincing weight of argument fully presented, which is the 

very thing that the [First] Amendment and the electoral process 

it protects were intended to bring out.” United States v. CIO, 

335 U.S. at 145 (Rutledge, J., concurring). Additionally, as 
15 

Justice Douglas observed 46 years ago, money is necessary if 

one’s ideas are to be communicated effectively “to a large 

audience,” and any restriction on the amount of money spent 

on such activity threatens the freedom of the press. See United 

States v. UAW, 352 U.S. at 594 (Douglas, J., dissenting). 

The intervening incumbents’ view of the First Amendment, 

however, is directly the opposite. In their eyes, § 323(e) is 

constitutional because it forces more of the American 

citizenry’s money through the FEC sieve (Int. Br. at 36) and, 

in so doing, makes the ordinary citizen more accountable to the 

unelected members of the FEC, than to one another. Hence, 

§ 323(e) is diametrically opposed to the principle that elected 

officials are the trustees or servants of the people. It squeezes 

power out of the people’s money and transfers that power to 

the FEC, reconstituting the people’s money as “federal funds” 

to impress upon elected officeholders, as well as candidates, 

who their boss really is. 

D. BCRA/FECA Treats the American People as 

Indentured Servants. 

In its zeal to eliminate “soft money” and other “nonfederal 

funds” from all communicative activities that influence the 

outcome of federal elections, BCRA continues the 

congressional attack begun with FECA in the 1970's to upend 

the sovereignty of the American people, by a steady process of 

indenturing the American people. Instead of standing in the 

way of this attack, this Court failed in Buckley v. Valeo even 

to detect it. Indeed, Buckley has accelerated the attack by 

placing the Court’s imprimatur upon the Government’s claim 

that FECA could be justified by the “appearance of corruption 

stemming from public awareness of the opportunities for abuse 

inherent in a regime of large individual financial 

contributions.” Buckley, 424 U.S. at 27. In support of this 

claim, the Buckley Court cited only one case, CSC v. Letter 

Carriers, 413 U.S. 548 (1973), likening an individual citizen’s 
16 

contribution to a political campaign to the individual “partisan 

political conduct” of a career employee of the Federal 

Government: 

Here, as there, Congress could legitimately conclude 

that the avoidance of improper influence “is also 

critical ... if confidence in the system of representative 

Government is not to be eroded to a disastrous 

extent.” [Buckley, 424 U.S. at 27]. 

In Buckley, the Court made absolutely no effort to assess the 

validity of this comparison, assuming it to be self-evident from 

the Letter Carriers opinion, when just the opposite was true. 

Letter Carriers was based upon a categorical First 

Amendment distinction between the Government’s “interest in 

regulating the conduct and ‘the speech of its employees ... from 

those it possesses in connection with regulation of speech of 

the citizenry in general.’” See id., 413 U.S. at 564. Indeed, it 

was assumed in Letter Carriers, that the Government’s interest 

in “the appearance of improper influence” of the private 

political activity of a career Government employee in the 

carrying out of “the will of Congress” is quite distinct from any 

“appearance of improper influence” of the private political 

activity of a citizen in shaping “the will of Congress,” itself. 

See id. The “will of Congress,” by definition, cannot be 

insulated from “partisan politics,” as the entire BCRA Title I 

attempts to do, without a foundational change in the American 

democratic republic. See Federalist 10, reprinted in The 

Federalist, supra, at 42. Nor can the will of Congress be 

walled off from “uninhibited, robust and wide-open debate” 

(New York Times v. Sullivan, 376 U.S. at 270), as BCRA Title 

II does, without trampling upon the freedom of the press, the 

primary means by which the people exercise their continuing 

sovereignty over their government. By misapplying the 

Court’s “Hatch Act” precedents, the Buckley Court stifled the 

political activities of the American citizenry as if the people 
17

themselves, unless constrained like an unelected federal career 

bureaucrat, posed a threat to the American form of 

representative government! 

One of the most egregious examples of the American 

people’s new status as chattel servants of the government is 

BCRA Title II’s revocation of the long-held American right to 

anonymous political discourse. Section 201 of BCRA (new 

FECA § 304(f)) requires disclosure of the name and address of 

any person or group spending $10,000 or more per year for 

“electioneering communications” that mention elected officials 

one to two months prior to federal elections. This section also 

requires disclosure of the names and addresses of all 

contributors of $1,000 or more for such communications. 

BCRA § 212 (new FECA § 304(g)) imposes a similar reporting 

requirement for independent expenditures in excess of $1,000 

expressly supporting or opposing a candidate within 20 days of 

a federal election. BCRA’s violation of the right to anonymous 

publication is an extension of disclosure requirements 

instituted by FECA, which have rarely been challenged and 

apparently never on press grounds. See Brown v. Socialist 

Workers ‘74 Campaign Comm., 459 U.S. 87 (1982). However, 

this Court has repeatedly held that the freedom of the press 

does not allow the Government to force the disclosure of the 

identity of a person disseminating ideas. See, e.g., Talley v. 

California, 362 U.S. 60 (1960), McIntyre v. Ohio Election 

Commission, 514 U.S. 334 (1995).5 

5 Arguing against legally mandated financial disclosure does not mean that 

the Paul Plaintiffs believe that if they prevail there would be no disclosure 

to voters. If voters demand it, political “market forces” would be brought 

to bear that would cause candidates to disclose donor information, paying 

the political price of withholding such information only when deemed 

necessary to protect donors from harassment. See Miller Report at 27, Paul 

Plaintiffs’ Brief Appendix at 39a. Voluntary disclosure could result in even 

more disclosure than currently required. For example, in his reelection 

campaign, President Bush is once again disclosing every donor who gives 
18

BCRA, and the FECA which it amends, masquerading as 

reform measures to “preserve American democracy,” work as 

wholesale transfers of sovereignty from the people to the 

current incumbent elected officeholders, and their appointed 

FEC bureaucrats, who are, when it comes to federal elections, 

the people’s masters, not as they should be, the people’s 

servants. 

IV. THE PAUL PLAINTIFFS HAVE STANDING TO 

CHALLENGE BCRA § 307, AS WELL AS THE 

RELATED FECA REPORTING REQUIREMENTS. 

In the only specific reference to the Paul Plaintiffs in the 

briefs of the Government and the intervening incumbents, the 

Government has argued that this Court lacks jurisdiction over 

the Paul Plaintiffs’ claim regarding Congress’ failure to 

increase the contribution limit set forth in FECA § 315(a)(1), 

2 U.S.C. § 441a(a)(2)(a), applicable to multicandidate political 

committees. It is clearly mistaken. 

The essence of the Government’s argument is that, because 

the contribution limit applicable to political committees in 

FECA was not expressly modified by BCRA, BCRA Title III’s 

§ 307 is immune from attack in this lawsuit. See Govt. Br. at 

126, n.53.6 This argument is mistaken, first, because it is based 

one dollar or more to the Bush campaign at http://www.GeorgeWBush.com. 

6 This argument of the Government is quite different from the determination 

of the district court that the Paul Plaintiffs lack standing to maintain that 

claim. The district court held that the Paul Plaintiffs lacked standing to 

challenge the constitutionality of BCRA § 307. Supp. App. at 8sa. But that 

determination lacks any reasonable support. As pointed out in their Brief 

(at 45-47), the Paul Plaintiffs submitted unrebutted testimony that 

establishes, concretely and with particularity, the invasion of a legally 

protected interest, which is actual (under FECA) and imminent (under 

BCRA), there being no doubt about either a causal connection between 

those injuries and the limitations imposed by the statutes complained of or 
19

upon a misreading of the Paul Plaintiffs’ complaint. That 

complaint was not limited to BCRA’s failure to increase the 

contribution limit applicable to multicandidate political 

committees, but extended to other FECA contribution limits, 

including those individual contribution limits modified by 

BCRA, and related FECA enforcement provisions. See Paul 

Plaintiffs’ Br. at 32-50, and App. 1a-8a, 109a-120a. 

The Government also misreads BCRA’s § 403(a), which 

extends jurisdiction to “any action ... brought for declaratory or 

injunctive relief to challenge the constitutionality of any 

provision of [BCRA] or any amendment made by [BCRA].” 

The Government would limit the reach of this section to claims 

challenging the constitutionality of “any provision” of BCRA 

or “any amendment” of BCRA. Such a construction, however, 

is not permissible, flying in the face of the well-established rule 

of interpretation that a “statutory provision” should not be read 

“so as to render superfluous other provisions in the same 

enactment.” Pennsylvania Dept. of Public Welfare v. 

Davenport, 495 U.S. 552, 562 (1990). Because “provision” 

and “amendment” are separated by the disjunctive “or,” § 

403(a) has extended to this Court jurisdiction over claims 

based either on a “provision of” BCRA or on an “amendment 

made by” BCRA to FECA. Thus, § 403(a) encompasses 

claims like the Paul Plaintiffs’ challenge to the individual 

contribution limits under 2 U.S.C. § 441a and the entire FECA 

individual contribution scheme, including the reporting 

requirements, because the FECA provision governing 

contribution limits was the object of an “amendment made 

the fact that future injury will be redressed by a favorable decision. This is 

sufficient for constitutional standing under the standard articulated by this 

Court in Lujan v. National Wildlife Federation, 504 U.S. 555, 561-62 

(1992). Indeed, any argument, or even any comment whatsoever, by the 

Government or the intervening incumbents regarding this issue has been 

conspicuously absent in this case. 
20 

by” BCRA § 307(a). Cf. United States v. Generix Drug Corp., 

460 U.S. 453, 458-59 (1983).7 

CONCLUSION 

For the reasons stated herein, and in Paul Plaintiffs’ opening 

brief, this Court should find that the BCRA/FECA provisions 

challenged by the Paul Plaintiffs violate their freedom of the 

press and should be struck down. 

Respectfully submitted, 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

Alternatively, as a matter of ancillary jurisdiction, this Court should 

address the merits of the Paul Plaintiffs’ challenge to the contribution limits 

and the reporting/disclosure requirements of 2 U.S.C. §§ 432 through 434. 

See 17 Charles A. Wright, et al., Federal Practice and Procedure, § 4234 

at 600, § 4235 at 603-04, 624-25, 626 (2d ed. 1988 & Supp. 2002). See also 

Page v. Bartels, 248 F.3d 175 (3d Cir. 2001). If contribution limits, as 

amended by BCRA, are unconstitutional as violative of the press freedom, 

then the constitutionality of the companion forced disclosure provisions of 

FECA must be reexamined. See Buckley v. Valeo, 424 U.S. at 66-86. 

While there is no requirement that claims within the ancillary jurisdiction 

of this Court be heard, determining such claims in this action would be 

consistent with longstanding U.S. Supreme Court decisions. See, e.g., Allee 

v. Medrano, 416 U.S. 802 (1974); United States v. Georgia Public Service 

Comm., 371 U.S. 285 (1963). In this case, the Paul Plaintiffs’ claims are 

closely interrelated, resting upon similar factual, and identical legal, 

foundations. A decision on the merits of all of the claims is in the interests 

of fairness as well as judicial economy. 

7
RICHARD WOLF

MOORE & LEE, LLP

1750 Tysons Boulevard

Suite 1450

McLean, VA 22102

(703) 506-2050

PERRY B. THOMPSON

6127 Carroll Lake Road

Commerce, MI 48382

(248) 390-2058

Attorneys for Appellants 

*Counsel of Record 

August 21, 2003 

GARY G. KREEP

U.S.JUSTICE FOUNDATION

Suite 1-C

2091 E. Valley Parkway

Escondido, CA 92027

(760) 741-8086