Nos. 06-969 & 06-970 

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

IN THE

Supreme Court of the United States 

———— 

FEDERAL ELECTION COMMISSION, 

Appellant,

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

———— 

SENATOR JOHN MCCAIN, et al., 

Appellants, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

———— 

On Appeals from the United States District Court 

for the District of Columbia 

———— 

BRIEF AMICUS CURIAE ON BEHALF OF THE 

ALLIANCE FOR JUSTICE 

———— 

MICHAEL B. TRISTER * 

B. HOLLY SCHADLER

LICHTMAN, TRISTER & ROSS, PLLC 

1666 Connecticut Avenue, N.W. 

Washington, D.C. 20009 

* Counsel of Record (202) 328-1666 

March 23, 2007 Counsel for Amicus
TABLE OF CONTENTS 

Page 

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

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

SUMMARY OF ARGUMENT..................................... 6 

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

 I. The District Court Properly Avoided Adopting 

An Absolute Test To Define All Broadcast 

Communications Protected by the First Amendment. In Contrast, Intervenors’ Proposed Constitutional Test Would Nullify The Protection 

Afforded By The Constitution To Legitimate 

Legislative And Policy Advocacy ....................... 11 

 II. The Burden Of Proof In This Case, As In All 

First Amendment Cases, Was On The FEC ...... 15 

 III. The Elements of WRTL’s Advertisements 

Relied On By The District Court Helped To 

Demonstrate That The Advertisements Did Not 

Have An Electioneering Purpose Or Effect......... 18 

 IV. The District Court Did Not Err in Refusing to 

Consider The Attenuated Contextual Evidence 

Proferred By The FEC And Intervenors............ 19 

 V. The Availability Of The PAC and MCFL

Options Is Not Relevant In This As-Applied 

Challenge........................................................... 26 

CONCLUSION ............................................................. 30

(i) 
ii 

TABLE OF AUTHORITIES 

CASES Page 

Brown v. Socialist Workers ’74 Campaign Committee (Ohio), 459 U.S. 87 (1982)..................... 17 

Buckley v. Valeo, 424 U.S. 1 (1976)...................... 17 

Colorado Republican Campaign Committee v. 

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

Consolidated Edison Company v. Public Service 

Commission, 447 U.S. 530 (1980)..................... 16 

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994)...... 28 

Dombrowski v. Pfister, 380 U.S. 479 (1965)......... 16 

Elrod v. Burns, 427 U.S. 347 (1976)..................... 16 

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

238 (1986).......................................................... passim

FEC v. National Rifle Association, 254 F. 3d 173 

(D.C. Cir. 2001)................................................. 27 

FEC v. Survival Education Fund, Inc., 65 F.3d 

285 (2d Cir. 1995) ............................................. 27 

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ................................................. 16 

Freedman v. State of Maryland, 380 U.S. 51 

(1965)................................................................. 17 

Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963)............................... 25 

Healy v. James, 408 U.S. 169 (1972) .................... 16 

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

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

2003).................................................................. 27 

North Carolina Right to Life, Inc. v. Bartlett, 168 

F.3d 705 (4th Cir. 1999) .................................... 27 

Philadelphia Newspapers, Inc. v. Hepps, 475 

U.S. 767 (1986) ................................................. 18 

Pipefitters Local Union No. 562 v. United States, 

407 U.S. 385 (1972) .......................................... 25 
iii 

TABLE OF AUTHORITIES—Continued 

 Page 

Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) .............................. 3, 26 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005)......... 5 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004)... 4 

Speiser v. Randall, 357 U.S. 513 (1958) ............... 16 

Sweezy v. New Hampshire, 354 U.S. 234 (1957) .. 25 

Texas Department of Community Affairs v. 

Burdine, 450 U.S. 248 (1981)............................ 17 

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 

410 (2006).......................................................... passim

UNITED STATES CONSTITUTION 

U.S. Const. amend I............................................... passim

STATUTES 

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

Bipartisan Campaign Finance Reform Act of 

2002, Pub. L. 107-155, 116 Stat. 81 (2002) 

§ 203 .................................................................. passim

§ 204 .................................................................. 5 

Federal Election Campaign Act of 1971, Pub. L. 

92-225, 86 Stat. 3 (1972) 

§ 304(f)(3)(A)(ii) ............................................... 14 

§ 316(b)(2)(C).................................................... 25 

§ 316(c)(2) ......................................................... 5 

Internal Revenue Code of 1986, Pub. L. 99-514, 

100 Stat. 2562 (1986) 

I.R.C. § 501(c)3 ................................................. passim

I.R.C. § 501(c)4 ................................................. passim

I.R.C. § 501(h)................................................... 3 

I.R.C. § 527........................................................ 28 

I.R.C. § 527(e)(1) .............................................. 28 
iv 

TABLE OF AUTHORITIES—Continued 

 Page 

I.R.C. § 527(e)(2) .............................................. 28 

I.R.C. § 527(f).................................................... 4 

I.R.C. § 527(f)(3)............................................... 4 

I.R.C. § 527(i).................................................... 3 

I.R.C. § 527(j).................................................... 3 

I.R.C. § 4911...................................................... 3 

Tax Reform Act of 1976, Pub. L. 94-455, 90 

Stat. 1250 (1976) ............................................... 3 

REGULATIONS 

11 C.F.R. § 100.29(c)(6)........................................ 4 

11 C.F.R. § 110.11(a)(1)........................................ 21 

11 C.F.R. § 114.10(c)(1)........................................ 4 

11 C.F.R. § 114.10(c)(2)........................................ 5 

11 C.F.R. § 114.10(c)(3)(ii)(A) ............................. 5 

11 C.F.R. § 114.10(c)(3)(ii)(B) ............................. 5 

11 C.F.R. § 114.10(c)(4)(ii)................................... 5, 27 

11 C.F.R. § 114.10(c)(4)(iii).................................. 5 

11 C.F.R. § 114.10(c)(5)........................................ 4 

Treas. Reg. § 1.527-2(a)(3) (as amended in 

1985).................................................................. 28 

LEGISLATIVE MATERIALS 

147 Cong. Rec. S2846 (daily ed. Mar. 26, 2001) 

(statement of Sen. Wellstone)............................ 26 

147 Cong. Rec. S2813 (daily ed. Mar. 23, 2001) 

(statement of Sen. Jeffords)............................... 26 

147 Cong. Rec. S2458 (daily ed. Mar. 19, 2001) 

(statement of Sen. Snowe)................................. 26 

Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1976, 1976-3 

C.B. (Vol. 2) ...................................................... 3 
v 

TABLE OF AUTHORITIES—Continued 

MISCELLANEOUS Page 

Federal Election Commission, Notice of Disposition of Petition for Rulemaking, “Exception 

for Center ‘Grassroots Lobbying’ Communications From the Definition of ‘Electioneering 

Communication,’” 71 Fed. Reg. 52295 (Sep. 

5, 2006).............................................................. 6, 14 

Federal Election Commission, Final Rules, 

“Electioneering Communications,” 70 Fed. 

Reg. 75713 (Dec. 21, 2005)............................... 5 

Federal Election Commission, Final Rules, 

“Electioneering Communications,” 67 Fed. 

Reg. 65190 (Oct. 23, 2002) ............................... 4 

Federal Election Commission, Final Rules, 

“Internet Communications,” 71 Fed. Reg. 

18589 (Apr. 12, 2006) ....................................... 20 

P.L.R. 9725036 (June 23, 1997)............................ 28 

Rev. Proc. 2004-06, 2004-6 I.R.B. 328 ................. 4 

Rev. Rul. 71-350, 1971-2 C.B. 237....................... 2 

Ward L. Thomas and Judith E. Kindell, Internal 

Revenue Service, “Affiliations Among Political, Lobbying and Educational Organizations,” in Exempt Organizations Continuing 

Professional Education Technical Instruction 

Program for Fiscal Year 2000 (2000)............... 3 

Brief of Alliance for Justice as Amicus Curiae In 

Support of Appellant, Wisconsin Right to Life, 

Inc. v. Federal Election Commission, 546 U.S. 

410 (2006) (No. 04-1581).................................. 22
INTEREST OF AMICUS 1

The Alliance for Justice (“AFJ”) is a national association of 

environmental, civil rights, mental health, women’s, children’s 

and consumer advocacy organizations. These organizations 

and their members support legislative and regulatory measures 

that promote political participation, judicial independence and 

greater access to the public policymaking process. Most of 

AFJ’s members are charitable organizations exempt from 

taxation under section 501(c)(3) of the Internal Revenue Code. 

A significant number, also work with or are affiliated with 

other types of nonprofit entities that promote their views not 

only through public education and legislative advocacy, but 

also in the electoral process. 

AFJ works to increase the involvement of advocacy 

organizations in the policymaking process by helping them to 

understand and comply with the complex tax and election 

laws governing their activities through plain language guides, 

workshops and individualized technical assistance. AFJ also 

monitors legislative and regulatory activity impacting the 

ability of advocacy organization to operate in the policy 

arena. During debate on the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”), we expressed deep concern that the 

law’s broad provisions limiting “electioneering communications” would severely curtail legitimate communications 

addressing legislative and other policy issues. AFJ also 

appeared as Amicus Curiae when this case was previously 

before this Court. 

On matters of public policy, AFJ consistently takes positions that sharply contrast with the positions of appellee in 

this case. Indeed, we have produced and disseminated broad-

 1

 Counsel for each party has consented to the filing of this Brief, as 

indicated by letters filed with the Clerk of the Court. No counsel for a 

party authored this Brief, in whole or in part. No person or entity other 

than Amicus made a monetary contribution to the preparation or submission of this Brief. 
2 

cast communications supporting the important role of the 

Senate in considering the President’s nominees to the federal 

bench, including the limited use of filibusters in appropriate 

cases. Despite these profound policy differences, AFJ agrees 

with appellee that citizen organizations have a First Amendment right to advocate their views before the public without 

government interference, and we submit this Brief in order to 

urge the Court to make that right a reality in the critical area 

of grassroots advocacy. 

STATEMENT 

The Legal Framework of Advocacy Groups 

Advocacy organizations such as Amicus and its members 

provide a critical means by which the voices of ordinary 

citizens across the political spectrum may be heard on vital 

policy and legislative issues. BCRA’s restrictions on corporate and union expenditures for electioneering communications will severely limit this crucial role of advocacy 

organizations in our democracy unless this Court approves a 

constitutionally mandated exception for grassroots lobbying 

communications similar to the exception adopted by the 

district court. 

1. Permissible Lobbying Activities of Advocacy Organizations. Advocacy organizations are generally organized as nonprofit corporations under state law and are 

recognized as exempt from federal taxation either as social 

welfare organizations under section 501(c)(4) of the Internal 

Revenue Code (“IRC”) or charitable and educational organizations under IRC § 501(c)(3). Internal Revenue rules permit 

social welfare organizations to expend all of their resources 

on advocating for policy and legislative changes without 

limitation. See Rev. Rul. 71-350, 1971-2 C.B. 237. Advocacy organizations exempt as charities may spend unlimited 

amounts on public education involving policy issues but may 

only expend an insubstantial part of their resources on efforts 

to influence legislation. See IRC § 501(c)(3). In the Tax 
3 

Reform Act of 1976, Congress enacted IRC §§ 501(h) and 

4911, under which charities, other than churches and private 

foundations, may alternatively elect to be subject to a set of 

dollar limitations on expenditures for lobbying activities. 

Pub. L. 94-455, 90 Stat. 1520, § 1307 (1976). The purpose of 

this legislation was to encourage charities to participate in the 

policymaking process by replacing the uncertain standards of 

prior law and eliminating the threat that charities which 

conduct excessive lobbying would lose their exemptions from 

federal tax. See, e.g., Joint Committee on Taxation, General 

Explanation of the Tax Reform Act of 1976, 1976-3 C.B. 

(Vol. 2) 419-420. 

As approved in this Court’s decision in Regan v. Taxation 

With Representation of Washington, 461 U.S. 540 (1983) 

(TWR), many groups maintain both 501(c)(4) and 501(c)(3) 

organizations under a common umbrella, frequently sharing 

staff and other resources.2

 The 501(c)(4) entities in these 

multi-entity arrangements may maintain separate segregated 

funds to raise voluntary contributions to support partisan 

political activities without jeopardizing the tax exemptions of 

the related 501(c)(4) or 501(c)(3) organizations. See generally, Ward L. Thomas and Judith E. Kindell, “Affiliations 

Among Political, Lobbying and Educational Organizations,” 

in IRS Exempt Organizations Division, Continuing Professional Education Technical Instruction Program for FY 2000, 

255-266. These segregated funds may be registered as political action committees (PACs) under the Federal Election 

Campaign Act (“FECA”) or state election laws; in some 

instances they are instead required to register and file periodic 

reports with the Internal Revenue Service. See IRC §§ 527(i) 

and (j). The activities of these separate segregated political 

action committees are not attributed to the fund’s parent 

 2

 As the Court noted in TWR, the IRS requires “only that the two 

groups be separately incorporated and keep records adequate to show that 

tax-deductible contributions are not used to pay for lobbying.” 461 U.S. 

at 544 n.6. 
4 

nonprofit corporation for federal tax purposes. See IRC 

§ 527(f)(3). 

2. The MCFL Exception and Its Narrow Implementation By The FEC. In FEC v. Massachusetts Citizens for Life,

479 U.S. 238 (1986 ) (“MCFL”), this Court recognized a 

constitutionally required exception to FECA’s ban on corporate political expenditures for certain nonprofit corporations 

that “have features more akin to voluntary political associations than business firms, and therefore should not have to 

bear burdens on independent spending solely because of their 

incorporated status.” In McConnell v. FEC, 540 U.S. 93 

(2003), the Court read this exception into BCRA § 203’s ban 

on corporate electioneering communications. 540 U.S. at 

211. Unfortunately, this judicially crafted exception is of 

limited use in protecting legislative and policy advocacy by 

advocacy organizations in large part because of the very 

restrictive conditions imposed by the Federal Election Commission (“FEC”) on its implementation.3

 The FEC regulation 

defines the term “qualified nonprofit corporation” as inter 

alia an organization whose “only express purpose is the 

promotion of political ideas,” 11 C.F.R. § 114.10(c)(1) 

(2006), and which is organized for tax purposes only under 

IRC § 501(c)(4).4 Id. at § 114.10(c)(5). The regulation also 

 3

 IRC § 501(c)(4) organizations that conduct electioneering communications under the MCFL/McConnell exception also risk the imposition 

of federal taxes on these expenditures under IRC § 527(f). While the IRS 

has made clear that not all communications that fall within the scope of 

BCRA § 203 will be taxable, see Rev. Proc. 2004-06, 2004-6 I.R.B. 328, 

the vague “facts and circumstances” test which the IRS applies to make 

this determination leaves significant uncertainty as to its application to 

particular communications. 4

 The FEC initially promulgated a blanket exception to the definition 

of electioneering communications for communications by any IRC 

§ 501(c)(3) organization. See Final Rules, “Electioneering Communications,” 67 Fed. Reg. 65190, 65211, adopting 11 C.F.R. § 100.29(c)(6); 

id. at 65200. This exception, however, was invalidated on procedural 

grounds. See Shays v. FEC, 337 F.Supp.2d 28, 124-127 (D.D.C. 2004), 
5 

requires that a qualified nonprofit corporation be able to 

demonstrate from its accounting records that it does not 

directly or indirectly accept any donations or anything of 

value from business corporations or labor organizations, id. at 

§ 114.10(c)(4)(ii), or have a written policy against accepting 

donations from business corporations or labor organizations. 

Id. at § 114.10(c)(4)(iii). Finally, a qualified nonprofit 

corporation may not engage in any business activities, id. at 

§ 114.10(c)(2), and may not provide benefits to its members 

such as affinity credit cards, insurance policies or savings 

plans, training, education, or business information. Id. at 

§ 114.10(c)(3)(ii)(A)-(B). The total ban on the receipt of any 

financial assistance from business corporations or labor 

organizations and the restriction on the kinds of benefits 

provided by many nonprofit organizations to their members 

has meant that only a handful of advocacy organizations may 

qualify under the FEC’s regulation. 

3. BCRA’s Treatment of Nonprofit Organizations. 

Section 203(c)(2) of BCRA creates an exception to the ban on 

corporate electioneering communications for any broadcast 

communication by an IRC § 501(c)(4) organization if the 

communication is paid for exclusively by funds provided 

directly by individuals who are United States citizens or 

nationals lawfully admitted for permanent residence. FECA 

§ 316(c)(2). This exception, however, was nullified by 

BCRA § 204, the Wellstone Amendment. See McConnell v. 

FEC, 540 U.S. at 209 n. 90. BCRA, therefore, prohibits 

electioneering communications by all advocacy organizations 

unless they fall within the judicially-crafted exception for 

 

aff’d as to other issues, 414 F.3d 76 (D.C. Cir. 2005), and after initiating 

another rulemaking the FEC decided to eliminate the exception from the 

regulation. See Final Rules, “Electioneering Communications,” 70 Fed. 

Reg. 75713, 75714 (Dec. 21, 2005). Thus, 501(c)(3) organizations remain 

subject to BCRA § 203 on the same terms as for-profit businesses and 

other nonprofit organizations, and without even the limited benefit of the 

MCFL exception. 
6 

MCFL/McConnell-type organizations as narrowly implemented by the FEC. 

4. The FEC’s Failure to Act to Protect Grassroots 

Lobbying. In Wisconsin Right To Life v. FEC, 546 U.S. 410, 

126 S.Ct. 1016 (2006) (“WRTL I”), the Court specifically 

noted that “the FEC has statutory authority to exempt by 

regulation certain communications from BCRA’s prohibition 

on electioneering communications.” 126 S.Ct. at 1017 (citing 

2 U.S.C. § 434(f)(3)(B)(iv)). Following the Court’s decision, 

Amicus joined with other advocacy, labor and business 

organizations in submitting a petition for rulemaking requesting the FEC to promulgate an exception to the regulatory 

definition of electioneering communications for certain grassroots lobbying communications. The Commission refused to 

act on this petition, however, leaving the development of 

rules in this area to individual enforcement cases as they 

arise. See Notice of Disposition of Petition for Rulemaking, 

“Exception for Certain ‘Grassroots Lobbying’ Communications From the Definition of ‘Electioneering Communication,’” 71 Fed. Reg. 52295 (Sept. 5, 2006) (“Notice of 

Disposition. . .”). Thus, although the issues presented in this 

case arise in the context of an affirmative pre-enforcement 

judicial challenge, the principles announced by the Court 

could have their most important application, not in judicial 

proceedings, which are too costly for many nonprofit organizations to undertake, but in administrative enforcement proceedings brought after broadcast communications have been 

disseminated. 

SUMMARY OF ARGUMENT 

The FEC and Intervenors do not question this Court’s 

holding in WRTL I that as-applied challenges to the constitutionality of BCRA § 203 are permissible. The FEC also 

recognizes that as-applied challenges should not require 

examination of all facts that are potentially relevant to 

the ascertainment of a broadcast advertisements purpose or 
7 

effect, since such an inquiry could not feasibly be administered under the time constraints of pre-election litigation. The 

approach offered by the FEC and Intervenors, however, 

would have the effect of nullifying the right to bring asapplied challenges recognized in WRTL I and would require 

the same kind of “unstructured post hoc inquiry” which the 

FEC claims to eschew. 

1. Contrary to the FEC’s argument, the district court did 

not adopt a rigid set of requirements for pre-election 

advertisements that would in all cases lead to a finding of 

unconstitutionality. The court instead identified those undisputed facts in the record of this case which, taken as a whole, 

persuaded it that the grassroots lobbying ads disseminated by 

WRTL did not have an electioneering purpose or effect. 

While the FEC offers no test of its own as a substitute for 

the district court’s approach, Intervenors offer a test under 

which the only significant element would be whether a 

broadcast communication takes a “critical stance” as to an 

issue. Intervenors’ proposed test fails to clarify a number of 

important issues. They also do not explain how their “critical 

stance” rubric differs from the “promote, attack, support or 

oppose” (“PASO”) formula which the district court considered as one of the elements in its review of the WRTL ads. 

Finally, if Intervenors’ proposal allows a lower threshold of proof than the PASO test, it runs counter to Congress’ 

own determination when it enacted a back-up definition of 

electioneering communications to be applied in the event that 

BCRA’s primary definition was struck down as facially 

invalid; and, contrary to Intervenors’ argument, the district 

court’s approach is not inconsistent with this Court’s decision 

in McConnell. 

2. The district court also did not improperly place the 

burden of proof on the FEC. This Court’s First Amendment 

jurisprudence makes clear that the burden of proving that 

speech restrictions serve compelling governmental interests 
8 

“rests on the censor.” While the Court has suggested in 

certain campaign-finance cases that the person claiming an 

exemption from FECA’s prohibitions has the burden of 

production as to facts which are in the claimant’s exclusive 

possession, it has never shifted the ultimate burden of 

persuasion away from the government. It is also erroneous to 

contend, as the FEC does, that the Court’s decision upholding the facial constitutionality of BCRA § 203 creates a 

presumption that all broadcast ads run during BCRA’s 30/60 

day periods are constitutional. 

3. The district court correctly considered as relevant to its 

constitutional determination the fact that WRTL’s ads did not 

mention an election, a candidate or a political party, and did 

not comment on a candidate’s character, actions or fitness for 

office. These aspects of the ads were clearly relevant to 

whether the ads had an electioneering purpose. If relying on 

the fact that broadcast ads focus on issues rather than 

elections or candidates is improper, as the FEC contends, then 

virtually no grassroots lobbying communications would be 

constitutionally protected. 

4. The district court also did not err in refusing to consider the attenuated contextual evidence proffered by the FEC 

and the Intervenors. The fact that the WRTL ads did not 

provide an address or other means by which Wisconsin citizens could contact their two Senators with respect to the 

filibuster issue hardly shows that the ads had an electioneering purpose, given the ready availability of such contact 

information to any member of the public. The district court’s 

refusal to consider the partisan content of WRTL’s website 

referenced in the ads also was not erroneous considering the 

FEC’s own recent determination that because of the Internet’s 

unique features it “warrants a restrained regulatory approach,” 

and because of the many practical problems that such 

consideration would face. A particular problem is presented 

by the fact that many advocacy organizations include content 

on their websites that is paid for and identified as having 
9 

come from their connected political action committees 

(PACs) which would undercut Congress’ determination in 

FECA and in the Tax Code that such funds should be treated 

as separate entities and that their activities therefore should 

not be attributed to the parent entity. 

The district court also did not err in rejecting the “timing” 

evidence relied on by the FEC and Intervenors. The fact that 

ads were run within the 60-day period prior to the 2004 

general election cannot be determinative, since this would 

nullify the as-applied challenge for all broadcast communications that fall within BCRA’s definition of electioneering 

communications. The specific timing of the ads is also not 

dispositive because it may equally reflect the legislative calendar as the electoral calendar, and the fact that Congress was 

not in session when the WRTL ads were run could be equally 

explained by the fact that members of Congress are more 

likely to be reachable in their home states when the Senate is 

not in session. The point here is not that the timing evidence 

relied on by the FEC and Intervenors has no possible relevance in determining the purpose of ads, but that the import 

of such evidence is highly disputable, thereby leading to the 

very kinds of protracted factual inquiries which the FEC 

agrees are not appropriate in this area of constitutional law. 

Finally, the district court did not err in refusing to find that 

the evidence of WRTL’s other lobbying and political activities demonstrated an electioneering purpose for its broadcast 

advertisements. Opening as-applied challenges to a full-scale 

inquiry into an organizations lobbying and political activities 

will defeat the goal of limiting such inquiries in the First 

Amendment context, and such sweeping investigations will 

have a deterrent effect on the associational and speech rights 

of advocacy organizations, as this Court has recognized. 

Attributing the partisan purposes of the WRTL PAC to 

WRTL’s separate IRC § 501(c)(4) entity would undercut the 

carefully balanced statutory scheme for corporate political 

activity designed by Congress, and is inconsistent with this 
10 

Court’s reliance on the availability of PACs to conduct 

electioneering communications in McConnell. 

5. Finally, the Court should reject the Intervenors’ contention that the availability of the PAC and MCFL options 

should have been considered by the district court. The availability of the MCFL option has been severely curtailed by 

restrictive FEC regulations which deny the exemption to all 

IRC § 501(c)(3) organizations, deny IRC § 501(c)(4) organizations the opportunity of accepting even a de minimis 

amount, or a small percentage, of their support from businesses or labor unions, and prohibit nonprofits from engaging 

in certain ancillary business activities such as credit cards, 

insurance or training which are frequently an important 

source of their revenue. Groups which attempt to conduct 

grassroots lobbying through the so-called PAC option also 

risk the imposition of significant taxes by the Internal Revenue Service. And court’s cannot make determinations as to 

whether the MCFL or PAC options are viable for a particular 

organization without undertaking difficult factual determinations which are not within the competence of federal judges 

to make. The Court’s reliance on the PAC option in upholding BCRA § 203 against a facial challenge on grounds of 

overbreadth also does not support reliance on the PAC or 

MCFL options in determining an as-applied challenge. The 

purpose and effect of specific grassroots lobbying communications remains the same whether they are paid for by a 

PAC or MCFL organization or by the general treasury funds 

of an IRC § 501(c)(4) organization. 

ARGUMENT

The district court correctly understood this Court’s remand 

order in WRTL I as a “tacit acknowledgment that, notwithstanding the virtues of a bright line test, there may nonetheless be some ads that are unconstitutionally captured by 

BCRA section 203.” J.S. App. 28a. The FEC does not 
11 

question this conclusion.5

 See Brief of Appellant Federal 

Election Commission in Nos. 06-969 and 06-970, 49 (hereinafter “FEC Brief. . . .”). The agency further acknowledges 

that the constitutional test for as-applied challenges should 

not “require[] examination of all facts that are potentially 

relevant to the ascertainment of an advertisement’s purpose or 

effect,” since such an inquiry “could not feasibly be administered, especially under the time constraints of expedited preelection litigation.” FEC Brief at 27. Similarly, the agency 

concedes that “potential speakers may indeed be chilled if the 

legality of particular communications or financing arrangements turns on an unstructured post hoc inquiry into the 

speaker’s likely intent.” FEC Brief at 42. While we endorse 

these sentiments wholeheartedly from the standpoint of the 

regulated advocacy community, we disagree with the approach which the FEC and Intervenors urge this Court to 

adopt in its place. 

I. The District Court Properly Avoided Adopting An 

Absolute Test To Define All Broadcast Communications Protected By The First Amendment. In 

Contrast, Intervenors’ Proposed Constitutional 

Test Would Nullify The Protection Afforded By 

The Constitution To Legitimate Legislative and 

Policy Advocacy. 

A careful reading of the majority opinion makes clear that 

the district court did not “identif[y] only those advertisements 

that are most obviously election-related, and effectively [hold] 

BCRA § 203 unconstitutional as applied to all other ‘electioneering communications.’” FEC Brief at 28. In a case of 

first impression, it would not have been appropriate for the 

district court to announce a hard and fast test applicable to all 

 5

 Appellant-Intervenors also do not expressly question this conclusion, 

although, the narrow view they take of the First Amendment’s application 

to such cases would effectively eviscerate the Court’s earlier decision in 

this case. 
12 

as-applied challenges to BCRA § 203 or to define a category 

of ads which would always be protected. The court instead 

identified those specific facts which, taken as a whole, persuaded it on the record presented that the WRTL grassroots 

lobbying ads did not have the required electioneering purpose 

or effect. J.S. App. 22a-25a. Whether other facts, or a different combination of facts, should produce the same constitutional result was not and could not be decided in this 

initial effort following WRTL I.

6

While the FEC takes issue with the district court’s approach, 

the FEC offers no as-applied constitutional test of its own. 

Intervenors, on the other hand, put forward a test which 

would effectively nullify the Court’s decision in WRTL I by 

limiting the availability of as-applied challenges to rare cases 

of no significance to legislative and other policy advocacy.7 

According to Intervenors, in considering WRTL’s as-applied 

challenge, the Court “need look no further” then the fact that 

the judicial filibuster advertisements (i) were run immediately 

before the election, (ii) “took a critical stand regarding a 

position on an issue,” and (iii) referred to a candidate by 

name. See Intervenors’ Brief at 22-24. Since the first and 

third of these elements would apply to every broadcast communication that fits within BCRA’s definition of electioneer-

 6

 The FEC and Intervenors are wrong, therefore, in suggesting that 

under the district court’s approach any advertisement which merely includes a reference to a pending legislative matter would be exempt from 

regulation regardless of the other factors considered by the district court. 

See FEC Brief at 26; Brief of Appellant in No. 06-970 (“Intervenors’ 

Brief ....”), 32 n.22. 7

Intervenors give several examples of the kinds of broadcast communications that “might” be protected by the First Amendment because they 

are “truly different in kind from the type of advertising that prompted 

Congress to enact BCRA’s restriction and that Congress has a compelling 

interest in regulating.” Intervenors’ Brief at 40 n.27. While Intervenors 

deserve some credit for their imagination, their examples, all of which 

relate to commercial and other similar activities, demonstrate what little 

impact the First Amendment would have under their test. 
13 

ing communications,8

 the only real substance to Intervenors’ 

proposed constitutional test is the “critical stance” element. 

There are a number of difficulties with this position. 

First, it is unclear whether Intervenors would apply their 

test to advertisements which take a “critical stance” on a 

candidate’s position regarding any legislative or policy issue, 

or just to those issues that are an issue of contention in the 

campaign. Compare Intervenors’ Brief at 10, 14, with id. at 

23. If the “critical stance” test is limited to issues in the 

campaign, then district courts will have the near impossible 

task of reviewing candidates’ speeches, advertisements and 

position papers, the activities of political parties and independent political groups, and media coverage of the campaign 

to determine which policies have become significant in the 

campaign. On the other hand, if the “critical stance” element 

of Intervenors’ proposed test refers to any matter of public 

policy on which a candidate has taken or might take a position, the likelihood is much less that the advertisements in 

issue would have an impact in the election, and the test would 

have a far greater impact in limiting legitimate legislative and 

policy advocacy. 

Second, although Intervenors appear to believe that there is 

a recognizable difference between communications which are 

merely “critical” of a candidate and those which “promote, 

support, attack or oppose” (PASO) a candidate, as articulated 

by the district court, see Intervenors’ Brief at 35, they make 

no attempt to explain this difference in any way which would 

be helpful to the lower courts, the FEC, or the regulated 

community. Intervenors’ “critical stance” test would intro-

 8

 This would not be true as to the first element if Intervenors mean the 

word “immediately” to apply only to broadcast communications made late 

in the 30/60 day BCRA periods, rather than to communications made 

throughout those periods. There is no such suggestion in their brief, 

however, and they also fail to make clear how courts should decide 

whether advertising is close enough to an election to be regulated. 
14 

duce a new level of vagueness9

 which can only serve to deter 

advocacy organizations from engaging in legitimate legislative and policy advocacy in the periods preceding elections. 

Further, in adopting the PASO language as a backup 

definition of electioneering communications in case BCRA’s 

primary definition was found to be facially unconstitutional, 

see FECA § 304(f)(3)(A)(ii), Congress defined the level of 

critical comment which it believed should be used to protect 

against the sham issue ads with which it was concerned. To 

the extent that Intervenors suggest that issue ads may be 

regulated if they reach a lower threshold of criticism than is 

required under the PASO test, their argument runs counter to 

this Congressional determination. 

Third, the district court’s approach is not inconsistent with 

this Court’s decision in McConnell. See Intervenors’ Brief at 

32-34. The “magic words” test relied on the absence of a 

very limited number of specific words to define protected 

speech. See, e.g., McConnell, 540 U.S. at 191. In contrast, 

the district court in this case considered the entire content of 

the WRTL ads. While the court did rely on the absence of 

words attacking Senator Feingold’s character, qualifications 

 9

 Because the district court found that WRTL’s ads did not violate the 

PASO standard, the Court need not determine in this case whether a more 

clear standard than PASO would better serve the First Amendment interests at stake in as-applied cases. The petition for rulemaking submitted to 

the FEC by Amicus and other groups urged the agency to adopt a standard, which, while very similar in other respects to the approach followed 

by the district court, replaced the PASO standard with a requirement that 

“[i]f the communication discusses the candidate’s position on record on 

the matter, it does so only by quoting the candidate’s own public statements or reciting the candidate’s official action, such as a vote, on the 

matter.”) Notice of Disposition, 71 Fed. Reg. at 52295. For the same 

reason, this is not an appropriate case for the Court to decide whether 

the PASO standard is unconstitutionally vague as applied to advocacy 

organizations’ pre-election broadcast communications. Cf. McConnell, 

540 U.S. at 170 n. 64 (holding that the PASO standard is not unconstitutionally vague as applied to political party committees). 
15 

or fitness for office, it did not, as Intervenors suggest, require

the presence of such words as a precondition for regulation, 

as its reliance on the PASO test and other elements shows. 

Finally, there is no basis for Intervenors’ unsubstantiated 

contention that the district court’s approach will “invite 

wholesale circumvention of the campaign-finance laws.” 

Intervenors’ Brief at 36. The district court required a reference to a pending legislative matter as a first step in identifying “genuine” issue ads because an advertisement which does 

not include such a reference is highly unlikely to have a 

nonelectioneering purpose. The court did not stop there, 

however. Thus, an advertisement which attacks a candidate 

for her prior votes or public statements on a legislative issue 

still may violate the PASO element of the district court’s 

approach.10 

II. The Burden of Proof In This Case, As In All First 

Amendment Cases, Was on the FEC. 

The district court also did not, as the FEC argues,11 improperly “place[ ] upon the government the burden of establishing that the three advertisements implicate the concerns 

that BCRA § 203 is intended to address, rather than requiring 

appellee to demonstrate its constitutional entitlement to an 

exemption from a facially valid law.” FEC Brief at 28. This 

argument is contrary to numerous previous pronouncements 

of this Court regarding the burden of proof in First Amendment cases. 

 10 There is no merit to Intervenors’ argument that the reference in the 

WRTL ads to the actions of a “group of Senators” was a clear critical 

reference to Senator Feingold’s prior position regarding judicial filibusters. See Intervenors’ Brief at 38. This was a question of fact to be 

decided by the district court, whose determination was well within its 

discretion given that the burden of persuasion was on the FEC in this case. 

See infra pp. 15-18. 11 Intervenors also appear to place the burden of persuasion on plaintiffs in as-applied cases. See Intervenors’ Brief at 39. 
16 

In Dombrowski v. Pfister, 380 U.S. 479, 491 (1965), for 

example, the Court held unconstitutional a state statute 

requiring registration as a member of a Communist-front 

organization where the organization had been officially cited 

or identified as such by the Attorney General of the United 

States or other federal agencies. The Court held that the state 

statute unconstitutionally provided that the federal designations were “presumptive evidence” that the organization 

was a covered organization under the state provision, thus 

“cast[ing] an impermissible burden upon the appellants to 

show that the organizations are not Communist fronts.” 380 

U.S. at 496. The Court in Dombrowski relied on its earlier 

decision in Speiser v. Randall, 357 U.S. 513, 526 (1958), 

where it had held unconstitutional a state’s imposition on a 

taxpayer of the burden of persuasion as to his eligibility for a 

tax exemption; taxpayers who signed an oath disclaiming 

advocacy of the unlawful overthrow of the government were 

deemed eligible for the exemption, while taxpayers who 

refused to sign such an oath were required to demonstrate 

their eligibility. As later quoted in Dombrowski, the Court 

stated: “Where the transcendent value of speech is involved, 

due process certainly requires . . . that the State bear the 

burden of persuasion to show that the appellants engaged in 

criminal speech.” See Consolidated Edison Company v. 

Public Service Com’n, 447 U.S. 530, 540 (1980) (“Where a 

government restricts the speech of a private person, the state 

action may be sustained only if the government can show that 

the regulation is a precisely drawn means of serving a 

compelling state interest.”; First Nat. Bank of Boston v. 

Bellotti, 435 U.S. 765, 786 (1978) (“Especially where, as 

here, a prohibition is directed at speech itself, and the speech 

is intimately related to the process of governing, . . . ‘the 

burden is on the Government to show the existence of 

[a compelling] interest.’”) (quoting Elrod v. Burns, 427 U.S. 

347, 362 (1976); additional internal citations omitted); Healy 

v. James, 408 U.S. 169, 184 (1972) (“heavy burden rests on 
17 

the [state] to demonstrate the appropriateness of its action.”; 

Freedman v. State of Maryland, 380 U.S. 51, 58 (1965) (“the 

burden of proving that the film is unprotected expression 

must rest on the censor.”) 

The as-applied campaign finance decisions relied on by the 

government do not establish a different rule. These cases at 

most suggest that in some circumstances a party claiming the 

benefit of a constitutional exemption from FECA’s requirements has the burden of production with respect to facts that 

are within its exclusive knowledge or possession; the Court 

did not address the very different question of the ultimate 

burden of persuasion.

12 Cf. Texas Department of Community 

Affairs v. Burdine, 450 U.S. 248, 253 (1981). “When the evi-

 12 In Buckley v. Valeo, the Court refused to grant a blanket constitutional exemption from FECA’s reporting requirements for all minor 

political parties, holding instead that a minor party is entitled to an 

exemption only where there is “a substantial threat of harassment.” 424 

U.S. at 72-74. While the Court suggested that the minor party had the 

burden of production on this issue, it recognized, “that unduly strict 

requirements of proof could impose a heavy burden,” id. at 74, and that 

“[m]inor parties must be allowed sufficient flexibility in the proof of 

injury to assure a fair consideration of their claim.” Id. The Court later 

affirmed these sentiments when it considered an as-applied challenge to 

analogous state reporting requirements filed by a minor party. See Brown

v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459 U.S. 87, 93-94 

(1982). Rejecting an “unduly narrow view of the minor-party exemption” 

urged by the state, 459 U.S. at 94-98, the Court considered the evidence of 

harassment offered by the minor party and concluded that it met the test. 

Id. at 98-101. At the very most, the Court’s opinion placed the burden of 

production on the minor party seeking exemption, an unexceptional conclusion considering that it is the party who had access to evidence of 

harassment. The Court’s opinion did not, however, discuss which party 

had the burden of persuasion in the event that the evidence was disputed. 

The Court’s opinion in MCFL also does not support the FEC’s position 

here. While it stands to reason that an advocacy organization claiming 

exemption from FECA would have the burden of production with respect 

to the corporate characteristics outlined by the Court, the Court never 

placed the burden of persuasion on the organization claiming the exemption. See 479 U.S. at 263-264. 
18 

dence is ambiguous,” however, “[i]n the context of governmental restriction of speech, it has long been established 

that the government cannot limit speech protected by the First 

Amendment without bearing the burden of showing that its 

restriction is justified.” Philadelphia Newspapers, Inc. v. 

Hepps, 475 U.S.767, 776, 777 (1986). 

In accordance with the Court’s overbreadth jurisprudence, 

the only issue decided in McConnell was whether the plaintiffs had “carried their heavy burden of proving” that the 

statute covered a “substantial” amount of protected speech. 

See 540 U.S. at 207. The McConnell plaintiffs’ failure in 

demonstrating a sufficient quantity of improperly covered 

communications is irrelevant in considering whether regulation of a specific communication is justified by the appropriate governmental interests. 

Finally, the fact that the constitutional validity of WRTL’s 

filibuster advertisements arises in a pre-election affirmative 

challenge also should not shift the burden of proof to the 

organization seeking to protect its right to speak. If an asapplied constitutional issue arises in a civil enforcement 

action brought by the FEC, the burden would be on the 

agency to demonstrate not only that the advertisements fall 

within the statutory prohibition on electioneering communications, but also that the ads are constitutionally subject to 

regulation. See, e.g., Colorado Republican Campaign Comm. 

v. FEC, 518 U.S. 604 (1996). Similarly, if the issue arises in a 

criminal case, the burden would surely be on the government 

to show that the ads are of a kind that may be regulated 

without violating the First Amendment. 

III. The Elements of WRTL’s Advertisements Relied 

On By The District Court Helped To Demonstrate 

That The Advertisements Did Not Have An 

Electioneering Purpose or Effect. 

The FEC contends that the factual elements on which the 

district court relied are overly broad and would, if applied 
19 

in all cases, effectively evicerate BCRA § 203 itself. For 

example, the FEC objects to the district court’s reliance on 

the fact that “‘the language in [WRTL’s] advertisements does 

not mention an election, a candidate, or a political party, nor 

do they comment on a candidate’s character, actions, or 

fitness for office.’” FEC Brief at 29, quoting J.S.App. 23a. 

Since references to an election or a federal official’s status as 

a candidate confirm that an advertisement covered by BCRA 

§ 203 has an electioneering purpose, the absence of such 

references is some evidence that the ads do not have such a 

purpose. Similarly, since comments on a candidate’s 

character, actions, or fitness for office is at least suggestive of 

an electioneering, rather than an issue-related, purpose, the 

absence of such language may equally be indicative of a 

nonelectioneering, issue-directed purpose. If these elements 

of the WRTL ads are irrelevant, however, no as-applied 

challenge to BCRA § 203 could ever succeed, for it is the 

essence of genuine grassroots lobbying ads that they focus on 

legislative and policy issues rather than the election. 

IV. The District Court Did Not Err In Refusing To 

Consider The Attenuated Contextual Evidence 

Proffered By The FEC and Intervenors. 

The FEC also argues that the district court erred in refusing 

“to consider highly probative evidence outside the ‘four 

corners’ of the 2004 advertisements.” FEC Brief at 38. 

Intervenors take the same position. Intervenors’ Brief at 24-

28. The district court, however, did not err when it failed to 

give weight to the “contextual” evidence relied on by the FEC 

and Intervenors.13

 13 The extent to which the FEC’s and Intervenors’ position would open 

up expansive factual inquiries in as-applied cases is demonstrated by the 

wide range of contextual evidence that could be relevant in as-applied 

cases. In the lower court, for example, the FEC proposed 17 separate 

findings of fact covering three full pages under the heading “The 2004 

Wisconsin Senate Election Was Expected to Be Competitive, and Judicial 

Filibusters Were a Campaign Issue.” Joint Appendix (J.A.), 17-20. Allow-
20 

A. The FEC and Intervenors make much of the fact that, 

while the WRTL ads asked viewers and listeners to contact 

Senators Kohl and Feingold and urge them to oppose the 

filibuster of judicial nominees, the ads did not provide an 

email address or other contact information for either official. 

Given the ready access of such information on the Internet 

and through many other means, the absence of such information, does not in any way demonstrate that WRTL’s interest 

in the judicial filibuster issue was a pretext for an electioneering message. There is also no merit in the FEC’s argument that the district court should have considered the content 

of the organization’s website as probative evidence regarding 

the purpose of the ads. FEC Brief at 43-44, 45. Consideration of the content of a website, even one that is expressly 

referenced in an advertisement, runs the risk of interfering 

with, as the FEC itself has recognized, “a unique and 

evolving mode of mass communication and political speech 

that is distinct from other media in a manner that warrants a 

restrained regulatory approach.” Final Rules, “Internet Communications,” 71 Fed. Reg. 18589 (Apr. 12, 2006). 

The FEC’s argument also would present substantial 

practical difficulties. Many advocacy organizations’ websites 

include hundreds, if not thousands, of pages and include links 

to numerous other organizations’ sites. Moreover, an organization’s website frequently changes on a daily or even hourly 

 

ing courts to delve into the strength of a candidate’s opposition in a particular election or what issues have become of significance in a campaign, 

however, is a highly uncertain inquiry which poses serious issues of 

judicial administration and could deter organizations from undertaking 

legitimate issue advertising in uncertain cases. Similarly, it easily could be 

disputed whether broadcast advertisements run before national political 

party conventions have the purpose or effect of influencing delegates’ 

votes, which are predetermined by the primary process. While it might be 

argued that such pre-convention ads are instead directed at the up-coming 

general election, this too would require an expansive factual inquiry to 

resolve. 
21 

basis, and in the case of blogs there may be numerous 

contributors to the content of a website. Consideration of the 

content of an advocacy organization’s website would thus 

open up precisely the kind of “unstructured post hoc inquiry 

into the speaker’s likely intent” that the FEC itself recognizes 

is not appropriate where constitutional rights of expression 

and association are involved. See FEC Brief at 42. 

Many advocacy organizations include on a single website 

material that reflects the activities of all of its related entities, 

including, for example, the endorsements of their related 

PACs. The PAC communications must be identified as such, 

see 11 C.F.R. § 110.11(a)(1); and the PAC must pay all of the 

costs associated with its portion of the website. A court 

seeking to determine the purpose of a broadcast communication by looking to the sponsor’s website would, therefore, have to engage in the virtually impossible task of 

determining whether, in spite of these conditions, a PAC’s 

messages were sufficiently separate from the rest of the site. 

Moreover, as discussed infra, pp. 25-26, Congress determined 

that related PACs are to be treated as separate from their 

sponsoring organizations and their activities should not be 

attributed to the sponsoring organizations for legal purposes. 

Thus, the FEC’s argument would upset the carefully-balanced 

structure of corporate, union and nonprofit electoral activity 

crafted by Congress. 

B. The FEC and Intervenors also argue that the district 

court erred in not considering certain evidence with respect to 

the timing of the advertisements: (i) that the Senate did not 

have any judicial cloture votes after WRTL began runnings 

its ads; (ii) that the Senate was not in session when the ads 

were run, and (iii) that WRTL did not run any further 

filibuster ads in 2004 or 2005. FEC Brief at 45-47; Intervenors’ Brief at 27-28. Had this evidence been considered, the 

government argues, it would have demonstrated that the 

advertising campaign was intended “to coincide with the 

electoral schedule, and that the pre-election timing was not 
22 

simply fortuitous.” Id. at 46. The district court did, however, 

take into account the fact that the ads “describe[d] an issue 

that had been, and was likely to be an ongoing issue of 

legislative concern in the Senate,” J.S.App. 23a, and its refusal to delve further into this issue was justified by a number 

of considerations. 

The timing of ads during the periods prior to primary and 

general elections cannot automatically disqualify them from 

constitutional protection, since by definition BCRA § 203 

applies only to broadcast communications that are run in the 

30/60 day periods prior to elections. While it may be marginally relevant whether ads were run early or late in the 

statutory periods, this fact too is not always dispositive in 

demonstrating an electioneering purpose. The specific timing 

of an advertising campaign may reflect the legislative calendar as much as the electoral calendar,14 since numerous 

legislative issues come to a head in Congress during the 

periods prior to primary and general elections.15 The fact that 

 14 In the district court, the FEC offered as proposed findings of fact its 

contentions that “scheduling of the judicial filibuster votes that occurred 

before the recess was largely for the particular purpose of mobilizing 

voters in the election,” and that “judicial filibuster votes were scheduled 

in order to mobilize conservative voters in the fall election.” Defendant 

Federal Election Commission’s Proposed Findings of Fact, Nos. 75, 77, at 

J.A. 31. One can only wonder at the breadth of discovery and testimony 

which would be necessary before a court could make reliable findings on 

questions of fact as complicated as these. 

15 In its Brief when this case was previously before the Court, Amicus

showed that the 60-day period prior to general elections is frequently a 

period of intense legislative activity. For example, between September 4 

and Election Day 2004, over 100 roll call votes were taken in the U.S. 

House of Representatives and nearly 50 roll call votes occurred in the U.S. 

Senate. These votes involved numerous significant issues, including 

welfare reform, a constitutional amendment on marriage, tort reform, and 

Department of Defense and other agency appropriations. See Brief of 

Alliance For Justice As Amicus Curiae In Support of Appellant in No. 04-

1581 (O.T. 2005), 13. 
23 

Congress was not in session when the WRTL ads were run 

could merely suggest an intent to reach the public during the 

very period when Senators were likely to be in their home 

states; or, it may reflect the fact that the organization was 

unable to raise sufficient funds to support its advertisements 

until the pre-election period. 

An organization also may have numerous non-political reasons for failing to disseminate similar ads after an election, 

including the fact that it may have exhausted its available funds 

on the first round of ads or that other more pressing issues may 

have arisen. Nor can it be argued that in order to be allowed to 

disseminate legislative and policy communications in preelection periods, an advocacy organization must demonstrate 

that it will run similar advertisements when the issue arises in 

the future. In a typical case,16 an organization will have made 

no decision regarding future advertising at the time that the 

issue arises in an as-applied case, and it would be speculative 

at best to engage in an inquiry into its future plans. 

The point is not that the timing evidence on which appellants rely can never be indicative of an electioneering purpose 

or effect; the point is that such evidence may reasonably be 

disputed by an organization in a particular case, as it was 

here. Given the debatable and disputable nature of any inferences which might have been drawn from the timing of 

WRTL’s advertisements, the district court would have had to 

conduct a full-blown evidentiary inquiry17 in order to make 

 16 Because of the prior appeal to this Court, evidence was uniquely 

available regarding WRTL’s post-election activity concerning the judicial 

filibuster issue. 

17 This inquiry may not be limited to the organization’s testimony; it 

may also be necessary to take evidence from the outside consultants who 

designed and produced the advertisements. In this case, for example, the 

FEC took the deposition of the consultant at WRTL’s advertising agency 

who coordinated the organization’s ads, and the agency obtained production of the consultant’s handwritten working papers and other documents 

pertaining to his work. See Defendant Federal Election Commission’s 
24 

reliable findings as to the actual reasons for the timing of the 

WRTL ads. The FEC agrees that such an inquiry is not generally appropriate in an as-applied constitutional challenge to 

BCRA § 203,18 and it was not necessary or appropriate here. 

C. The FEC finally argues that the district court erred in 

failing to consider WRTL’s “pattern of electoral advocacy 

during the 2004 campaign,”19 FEC Brief at 48, including 

evidence concerning the organization’s prior lobbying activities and the partisan political activities of its PAC. The 

FEC’s reliance on this “contextual” evidence is impracticable 

and inappropriate for several distinct reasons. 

First, opening as-applied constitutional challenges to a fullscale inquiry into an organization’s previous or contemporaneous lobbying and political activities will defeat the 

goal of limiting such inquiries which the FEC itself acknowl-

 

Proposed Findings of Fact, Nos. 54, 61, at J.A. 26, 28. For larger organizations with more money to spend, of course, there could be more than 

one consultant whose testimony might be deemed relevant. 

18 Intervenors do not appear to agree with the FEC on this point, arguing instead that the factual inquiry presented in these cases is no different 

than the issues presented in any preliminary injunction hearing decided on 

an expedited basis. Intervenors’ Brief at 38. In this very case, however, 

although this Court entered its remand Order in WRTL I on February 27, 

2006, it was not until September 1, 2006, more than five months later, that 

the parties submitted their filings in support of the cross-motions for 

summary judgment. See District Court Docket Entries, J.A. 9. This long 

delay presumably was due to the broad scope of discovery engaged in by 

the FEC and Intervenors. 

19 Taking this reasoning to even more specious heights, Intervenors 

rely on the actions and comments of the Wisconsin Republican Party, 

Republican candidates in Wisconsin and even Vice-President Chaney to 

show the electioneering purpose of WRTL’s advertisements. Intervenors’ 

Brief at 25-27. The fact that the filibuster issue was raised by Senator 

Feingold’s opponents in a partisan manner does not show that WRTL’s 

own nonpartisan communications had the purpose or effect of influencing 

the election, rather than influencing the Senator’s future position on a 

continuing issue of great public importance. 
25 

edges is key to protecting First Amendment rights. This type 

of sweeping inquiry by a government agency into the 

methods and tactics of advocacy organizations could have a 

devastating impact on the associational and speech rights of 

the organizations and their members. See, e.g., Gibson v. 

Florida Legislative Investigation Comm., 372 U.S. 539, 557 

(1963); Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) 

(Frankfurter, J. concurring). And, the fact that an advocacy 

organization has opposed an incumbent Senator’s legislative 

actions, even strenuously and continuously, should not be 

used to demonstrate that its pre-election advertisements have 

an election-influencing purpose, for advocacy organizations 

would then either have to avoid mentioning the names of 

incumbent representatives as part of their lobbying communications or take the risk that negative inferences might later 

be drawn from their work. 

Second, the FEC’s reliance on the lawful political activities 

of the WRTL PAC, is at odds with this Court’s conclusion 

that the activities of a separate segregated fund should not be 

attributed to the parent organization for legal purposes, as 

long as there is strict segregation of the fund’s monies from 

the organization’s general treasury funds. See Pipefitters 

Local Union No. 562 v. United States, 407 U.S. 385, 414-416 

(1972). The scheme outlined by the Court in Pipefitters 

was carried forward for both unions and corporations, including nonprofit corporations such as WRTL, in FECA. See 

§ 316(b)(2)(C). And, in McConnell this Court specifically 

relied upon the ability of advocacy organizations “to organize 

and administer segregated funds, or PACs,” for the purpose 

of carrying out electioneering communications in upholding 

the facial constitutionality of the very provision in issue here. 

540 U.S. at 204. The FEC’s and Intervenors’ reliance on the 

political endorsements and other partisan communications of 

WRTL’s separate PAC thus is contrary to Congress’ intention 

that a PAC’s activities should not be attributed to its parent 

corporation or union and would, if adopted by this Court, 
26 

upset FECA and BCRA’s carefully constructed balance in the 

area of corporate and union political activity. 

Since this Court’s decision in Regan v. Taxation With Representation of Washington, supra, modern advocacy organizations have become adept at operating through related 

multiple organizations each subject to its own legal requirements and limitations. Organizations may carry out partisan 

political activities through their PAC to the full extent permitted under the law while simultaneously conducting legitimate lobbying activities through their IRC § 501(c)(4) or 

§ 501(c)(3) arms. There is no reason why the political purposes of one set of activities must necessarily taint the 

nonpolitical activities of a related organization. Moreover, 

the FEC’s and Intervenors’ position would force groups to 

choose between conducting lawful partisan political activities 

through their PACs or engaging in non-political lobbying 

communications during the periods when both types of activities are most crucial and most effective. This is contrary to 

the expressed intention of the sponsors and supporters of 

BCRA § 203, who made clear that the restriction on corporate 

electioneering communications would not interfere with 

lobbying and public policy advocacy. See, e.g., 147 Cong. 

Rec. S2846 (daily ed. Mar.26, 2001) (Sen. Wellstone); id. at 

S2813 (daily ed. Mar. 23, 2001) (Sen. Jeffords) id. at S2458 

(daily ed. Mar. 19, 2001)( Sen. Snowe). 

V. The Availability of the PAC and MCFL Options Is 

Not Relevant In This As-Applied Challenge. 

The Intervenor-defendants argue that in deciding this asapplied challenge the district court should have considered 

the availability to WRTL of two options other than using its 

general treasury funds for disseminating its broadcast communications: paying for the ads through its PAC or qualifying 

as an MCFL organization by refusing to take business 

contributions. Intervenors’ Brief at 13, 15, 29-31. The gov- 
27 

ernment does not appear to rely on this argument, which 

should be rejected for a number of reasons.20 

First, the MCFL exception is not a viable option for many 

advocacy organizations because of the restricted manner in 

which the FEC has implemented the exception. Because 

the FEC regulation denies qualified nonprofit corporation 

(“QNC”) status to an advocacy organization if it receives any contributions from business or labor, 11 C.F.R. 

§ 114.10(c)(4)(ii), advocacy organizations must refuse to 

accept even a de minimis amount, or a small percentage, of 

their financial support from business or labor, even though 

there is no real threat that these organizations would act as 

“conduits” for their donors’ interests.21 Furthermore, as dis-

 20 Intervenors’ alternative argument, Intervenors’ Brief at 31, that advocacy organizations can simply avoid BCRA § 203 by not mentioning 

the names of federal candidates in their pre-election broadcast communications suffers from the same weaknesses. First, this view would effectively nullify the right to bring as-applied challenges allowed in WRTL I

because it would always be the case that a speaker could change its 

message to fall outside of the statute. Second, Intervenors’ argument 

ignores the fact that referring to specific incumbent legislators by name is 

regarded by most advocacy organizations as the most effective means of 

conducting grassroots lobbying. See McConnell, 251 F. Supp. 2d 156, 794 

(Leon, J.) (citing testimony of National Association of Manufacturers and 

AFL-CIO). Third, if courts must determine whether mentioning a 

candidate by name adds to the efficacy of particular advertisements, 

hearings in as-applied challenges will turn into a battle of competing 

experts, with each side relying on the opinions of its own political 

consultants to show how best to influence the public with a particular 

lobbying message. In this case, for example, the FEC proffered evidence 

that other organizations concerned with the judicial filibuster and other 

issues ran ads outside of BCRA’s 60-day period which did not mention 

the names of specific candidates. FEC Proposed Findings, Nos. 140-146, 

at J.A. 45-56. The depth of inquiry which would be necessary to explore 

the inferences which the FEC sought to draw from these facts is simply 

mind-boggling. 21 See FEC v. National Rifle Association, 254 F. 3d 173, 191-93 

(D.C.Cir.2001); FEC v. Survival Education Fund, Inc., 65 F.3d 285, 292-

94 (2d Cir. 1995). See also North Carolina Right To Life, Inc. v. Bartlett, 
28 

cussed supra at pp. 4-5, the FEC regulation contains other 

important restrictions on eligibility for the MCFL/McConnell 

exception, including excluding IRC § 501(c)(3) organizations 

and prohibiting organizations from providing the kinds of 

ancillary benefits, such as credit cards or insurance, that have 

become a common and important source of revenue in the 

nonprofit sector. 

Second, as a matter of federal tax law, the PAC option is 

not available to an advocacy organization whose broadcast 

communications do not have an electoral purpose. In order to 

qualify for tax exemption under IRC § 527, the Tax Code 

provision applicable to political organizations such as PACs, 

an advocacy organization must be organized and operated for 

“the purpose of directly or indirectly accepting contributions or making expenditures for an exempt function,” IRC 

§ 527(e)(1), which is defined as the “function of influencing 

or attempting to influence the selection, nomination, election, 

or appointment of any individual to” any federal office, office 

in a political organization, or the election of Presidential electors. IRC § 527(e)(2). Any PAC which seeks to maintain its 

exemption under these provisions must therefore demonstrate 

that its lobbying and policy activities have an electoral 

purpose.22 Thus, any organization that conducts grassroots 

lobbying through a PAC would risk the imposition of 

significant taxes which would not apply if it uses its general 

treasury funds to make the same expenditures. 

Third, if courts are required, as Intervenors suggest, to 

determine whether the MCFL or PAC options are viable alternatives in a particular case, as-applied challenges will become 

 

168 F.3d 705, 714 (4th Cir. 1999); Day v. Holahan, 34 F.3d 1356, 1363-

64 (8th Cir. 1994). 22 See Treas. Reg. § 1.527-2(a)(3) (“nonpartisan educational workshops” which are not intended to influence the selection and election process are not exempt function activities); P.L.R. 9725036 (June 23, 1997) 

(grassroots lobbying activities are for an exempt function under IRC § 527 

where they “have a political purpose.”) 
29 

expansive factfinding exercises into issues well beyond the 

purpose or effect of the advertisements in question. Intervenors, for example, rely on the fact that WRTL “offered no 

specific evidence to support” its claim that “it was unable to 

raise sufficient funds for its PAC in 2004 to finance the 

$100,000 it expected to spend on the ads.” Intervenors’ Brief 

at 29. In the district court, the FEC similarly offered as 

proposed findings of fact its assertions that “[r]ather than 

being unable to raise money for its federal PAC in 2004, it 

appears that WRTL ceased raising money for that account 

and shifted its fundraising efforts toward its general treasury” 

and that “WRTL made no special effort in 2004 to raise 

additional PAC funds or recruit new members.” FEC 

Proposed Findings, Nos. 122, 130, at J.A. 41, 43.23 Putting 

aside the burden such inquiries would place on the parties and 

the courts, federal judges do not have the expertise to make 

such determinations. On the other hand, unless facts such as 

these are to be considered, Intervenors’ argument would virtually eliminate the as-applied challenge approved in WRTL I

as a viable remedy, for every 501(c)4 can, at least in theory, 

establish a PAC or switch to MCFL status to conducts its 

activities. 

Finally, the Court’s reliance on the PAC option in 

McConnell provides no support for a similar approach in asapplied cases. In a facial challenge such as McConnell, the 

ability of corporations to establish PACs to conduct electioneering communications had bearing on the Court’s determination of BCRA § 203’s overbreadth, because the availability of 

PACs could mean that fewer businesses and nonprofit corporations would seek to use their general treasury funds for such 

expenditures. But the PAC option has no logical relevance to 

the as-applied constitutional question of whether specific 

 23 The agency attempted to support this ultimate conclusion by comparing the funds raised by WRTL in 2004 with the funds it had raised in 

earlier years, id. No. 123, and by further comparing WRTL’s fundraising 

in 2004 with national trends. Id. Nos. 125 & 126, at J.A. 42. 
30 

issue advertisements are “sham” or “genuine”; whether grassroots lobbying communications are paid for with PAC or 

treasury funds, their purpose and effect remain the same. 

CONCLUSION 

For the foregoing reasons, the decision below should be 

affirmed. 

Respectfully submitted, 

MICHAEL B. TRISTER * 

B. HOLLY SCHADLER

LICHTMAN, TRISTER & ROSS, PLLC 

1666 Connecticut Avenue, NW 

Washington, D.C. 20009 

* Counsel of Record (202) 328-1666 

March 23, 2007 Counsel for Amicus