Nos. 06-969 & 06-970 

IN THE 

Supreme Court of the United States

____________________ 

FEDERAL ELECTION COMMISSION, Appellant 

v. 

WISCONSIN RIGHT TO LIFE, INC., Appellee.

___________________ 

SEN. JOHN MCCAIN, et al., Intervenor-Appellants,

v. 

WISCONSIN RIGHT TO LIFE, INC., Appellee.

___________________ 

On Appeal from the United States District Court for the 

District of Columbia 

___________________ 

BRIEF OF THE REPUBLICAN NATIONAL 

COMMITTEE AS AMICUS CURIAE SUPPORTING 

APPELLEES 

___________________

 THOMAS J. JOSEFIAK 

Counsel of Record 

 SEAN CAIRNCROSS

 REPUBLICAN NATIONAL

COMMITTEE 

310 FIRST STREET, S.E. 

WASHINGTON, D.C. 20003 

(202) 863-8500 

March 23, 2007 Counsel for Amicus Curiae
i 

TABLE OF CONTENTS 

Page 

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

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

SUMMARY OF ARGUMENT..................................1 

ARGUMENT.......................................................3 

I. Issue Advocacy Should Be Exempt From Federal 

Campaign Finance Regulation...........................3 

II. The FEC’s Expanding Interpretation of Express 

Advocacy Threatens Any Issue Ad Exemption.......4 

III. Simply Affirming the District Court Opinion 

Unconstitutionally Elevates Corporate and Union 

Speech Above Political Party Speech..................7 

CONCLUSION...................................................11 
ii 

TABLE OF AUTHORITIES

Page(s) 

CASES: 

Buckley v. Valeo, 424 U.S. 1 (1976)....................2, 3, 6, 9 

Colo. Republican Fed. Campaign Comm. v. Federal Election 

Comm’n, 518 U.S. 604 (1996)....................................9

Federal Election Comm’n v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431 (2001)........................9 

 

Federal Election Comm’n v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986).............................................2, 6 

McConnell v. Federal Election Comm’n, 540 U.S. 93 

(2003)..........................................................2, 4, 5 

McConnell v. Federal Election Comm’n, 251 F.Supp. 2d 176 

(D.C. Dist. Ct. 2003)...............................................5 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)........9 

Randall v. Sorrell, 126 S.Ct. 2479 (2006).......................9 

Shays v. Federal Election Comm’n, 1:06-cv-01247 (D.C. 

Dist. Ct.).............................................................6 

Thomas v. Collins, 323 U.S. 516 (1945)........................3 

Wisc. Right To Life, Inc. v. Federal Election Comm’n, 04-

1260 (D.C. Dist. Ct.)..........................................1, 3, 6 
iii 

Table of Authorities (continued)

Page(s) 

FEDERAL STATUTES AND REGULATIONS:

Federal Elections Campaign Act, 2 U.S.C. § 431 et 

seq.....................................................................8 

Bipartisan Campaign Reform Act, Pub. Law No. 107-155 

116 Stat. 81....................................................passim 

The Tillman Act of 1907, 34 Stat. 864 

(1907)................................................................8 

11 C.F.R. § 100.22........................................2, 4, 5, 6 

11 C.F.R. § 109 et seq...........................................7, 10 

ADMINISTRATIVE MATERIALS: 

League of Conservation Voters 527, MUR 5753 (2006)......5 

MoveOn.org Voter Fund, MUR 5754 (2006)..................6 

Swift Boat Vets and POWs for Truth et al, MUR 5525 

(2006)................................................................6 
INTEREST OF THE AMICUS CURIAE 

Amicus Republican National Committee (“RNC”) is 

an unincorporated association that actively and extensively 

participates in campaigns and elections and public policy 

debate.1

 The RNC is the national organization of the 

Republican Party, and exists in large part to aid in fostering 

political debate and the exchange of ideas among its 

members and the public, and in expressing, promoting, and 

supporting its members’ political beliefs and ideals with 

respect to public policy issues. In doing so, the RNC is 

subject to and complies with all applicable laws, regulations, 

and rules imposed by the federal government, including 

federal campaign finance law. The RNC will continue to 

engage vigorously in campaigns, elections, and public policy 

debate. 

SUMMARY OF ARGUMENT 

1. The District Court opinion, establishing an objective 

test for determining whether a communication constitutes an 

“electioneering communication” under the Bipartisan

Campaign Reform Act (“BCRA”) section 203 and 

recognizing an exemption for genuine issue advertisements, 

should be affirmed. D.C. Dist. Ct. Op., (04-1260, 2006). 

Issue advocacy constitutes core political speech, does not 

constitute federal election activity under BCRA, and thus 

rightly falls outside of BCRA’s regulatory scope. Any test 

other than an objective, “bright line” standard used to 

distinguish issue advertisements from electioneering 

 

1

 The parties have consented to the filing of this brief. Their letters are 

on file with the Clerk of the Court. Pursuant to Rule 37.6, amicus states 

that no counsel for any party has authored this brief in whole or in part, 

and no person or entity other than amicus made a financial contribution 

to the preparation or submission of this brief. 
2 

communications would unconstitutionally chill political 

speech in violation of the First Amendment. 

2. Absent a bright line standard, any exemption to the 

electioneering communications regulation based upon the 

District Court’s opinion will be subsumed, or fatally 

undermined, by the Federal Election Commission’s (“FEC”) 

increasingly broad, contextual, and subjective interpretation 

of express advocacy under 11 C.F.R. § 100.22(b). This 

expansive interpretation reaches far beyond the Court’s First 

Amendment jurisprudence in this area. See Buckley v. 

Valeo, 424 U.S. 1 (1976); Federal Election Comm’n v. Mass. 

Citizens for Life, Inc., 479 U.S. 238 (1986); see also 

McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). 

Groups engaging in issue advocacy will risk being caught 

between the FEC’s expanding reading of express advocacy 

and its narrow reading of any issue ad exemption. The 

result: erratic enforcement and ambiguity for the speaker, 

chilling political speech. 

3. Simply affirming the District Court’s decision 

unconstitutionally elevates corporate and union speech above 

political party speech. Unaddressed in that decision is 

whether the issue ad exemption the court recognized for 

corporations and unions extends equally, or at all, to political 

parties. This Court has been clear that political parties may 

not be consigned to second-class status in the free speech 

arena. This Court should expressly extend any issue ad 

exemption equally to political parties. 
3 

ARGUMENT 

I. Issue Advocacy Should Be Exempt From Federal 

Campaign Finance Regulation. 

The RNC agrees with the District Court that Wisconsin 

Right To Life, Inc.’s (“WRTL”) communications do not 

constitute either express advocacy or its functional 

equivalent and that no compelling governmental interest is 

served by regulating genuine issue advocacy. D.C. Dist. Ct. 

Op., (04-1260). Further, with respect to determining what 

constitutes express advocacy in this context, the RNC agrees 

with the District Court’s reasoning that an objective test must 

be utilized to distinguish issue ads from regulated

electioneering communications – or, in the District Court’s 

words, that the “judiciary, in conducting First Amendment 

analysis, should not be in the business of trying to read any 

speaker’s mind,” and that anything less than an objective 

bright line standard in the speech context is “dangerous and 

undesirable,” Id. at 18-20. Indeed, bright lines foster

political debate because they allow speakers to fully engage 

in debate without being forced to “hedge and trim” out of 

fear. See Buckley, 424 U.S. at 43 (internal citations omitted). 

The District Court’s five-factor test examining the text 

and images of an ad is, insofar as it goes, an approach that 

will assist in providing speakers engaging in issue advocacy 

with a safe harbor. Clear, identifiable, and predictable 

standards are the only constitutionally adequate means by 

which to regulate in the free speech context. See Buckley, 

424 U.S. 1; Thomas v. Collins, 323 U.S. 516 (1945). 

Currently, the only sure security against the amorphous and 

constantly-shifting regulatory scheme for such a speaker 

within the electioneering timeframe is keeping quiet; the 

District Court’s test would be an improvement. Of course, 

the brighter such a line is, the greater speakers’ abilities are 
4 

to engage in issue advocacy without fear. The District 

Court’s opinion is thus an encouraging step for advocates; it 

does not, however, go far enough. 

II. The FEC’s Expanding Interpretation of Express 

Advocacy Threatens Any Issue Ad Exemption. 

The FEC regulation defining express advocacy, 11 

C.F.R. § 100.22, is two part. Section 100.22(a) identifies 

specific campaign slogans or words “which in context can 

have no other reasonable meaning than to urge the election 

or defeat” of one or more clearly identified federal 

candidates. Examples of such express advocacy are “Bill 

McKay in ’94,” “support the Democratic nominee,” and 

“vote for the President” – straightforward words and/or 

slogans advocating election or defeat.2

 Id. Section 

100.22(b) defines express advocacy as any communication 

that 

(b) When taken as a whole and with 

limited reference to external events, such 

as the proximity to the election, could 

only be interpreted by a reasonable person 

as containing advocacy of the election or 

 

2

 Before the Court’s decision in McConnell, 540 U.S. at 193, this was 

commonly referred to as the “Magic Words Test” – words that, on their 

face, clearly advocated the election or defeat of a federal candidate. 

Before BCRA’s definition and restriction of electioneering 

communications, this test served as a constitutional bright line rule 

against which a communication could be measured, and served as a safe 

harbor for speakers conducting issue advocacy. Assuming “express 

advocacy and its functional equivalent” leaves room for genuine issue 

advocacy, it is incumbent upon this Court to tell speakers precisely when 

constitutionally protected issue advocacy crosses the line into 

“potentially corruptive” electioneering. Without such guidance, speakers 

are caught between risking liability for their speech and being forced to 

wait for a judicial or administrative approval of their speech, or both. 
5 

defeat of one or more clearly identified 

candidate(s) because – 

(1) The electoral portion of the 

communication is unmistakable, 

unambiguous, and suggestive of only one 

meaning; and 

(2) Reasonable minds could not differ as 

to whether it encourages actions to elect 

or defeat one or more clearly identified 

candidate(s) or encourages some other 

kind of action. 

Section 100.22(b), although broader than 100.22(a),

mirrors the judicial interpretation of “functional 

equivalency.” That is, the section is designed to capture 

non-“magic words” express advocacy in an objective 

manner. See McConnell, 540 U.S. at 126-27, 194 n.78. 

Logically, in order to pass constitutional muster, 100.22(b) 

could not be any more expansive than this – and thus, a 

finding of express advocacy under this provision should 

require an objective link between the words and images 

contained in an ad and an identified federal candidate’s 

fitness, or lack thereof, to hold public office. See

McConnell, 540 U.S. 93; see also McConnell v. Federal 

Election Comm’n, 251 F.Supp. 2d 176, 796 (2003). In 

practice, however, 100.22(b) is expanding far beyond these 

limits, and creating precisely the sort of subjective and 

ambiguous test that the District Court in this case so clearly 

found to fail constitutionally. 

The FEC has interpreted and applied section 100.22(b) 

subjectively, and has made clear its intent to continue to do 

so.3

 Such an approach by the FEC is squarely at odds with 

 

3

 The FEC recently began to deploy its subjective interpretation of 

section 100.22(b) in enforcement proceedings. See League of 

Conservation Voters 527, MUR 5753 (2006); MoveOn.org Voter Fund, 
6 

both the District Court’s holding in this litigation and this 

Court’s own First Amendment jurisprudence. See Buckley, 

424 U.S. 1; Mass. Citizens for Life, Inc., 479 U.S. 238; D.C. 

Dist. Ct. Op., (04-1260). Moreover, in practical application 

it destroys any issue ad exemption created here. That is, any 

issue ad varying one iota from the text, image(s), or context 

of the WRTL ads will be at risk of either (1) being deemed 

by the FEC to contain express advocacy under 100.22(b); or 

(2) failing to qualify for the genuine issue ad exemption.4 

For example, there is no guarantee that an ad using the 

precise WRTL language and images in a state that is deemed 

to have a more contested campaign than existed in 

Wisconsin; or a state that garners more national media 

attention, or has media markets that cover a greater area or 

reach a greater number of voters than Wisconsin’s; or even a 

state with different demographics, will not be found to either 

constitute express advocacy or an electioneering 

communication. As such, no entity can confidently conduct 

issue advocacy without fear of incurring an enforcement 

proceeding, and a finding of violation, by the FEC. Far from 

 

MUR 5754 (2006); Swift Boat Vets and POWs for Truth et al, MUR 

5525 (2006). Further, in the pending Shays v. Federal Election Comm’n, 

D.C. Dist. Ct. (1:06-cv-01247) litigation, the FEC is using the “breadth 

of section 100.22(b)” as a defense to plaintiffs’ contention in that 

litigation that the FEC’s coordination regulations are insufficient. See 

Def.’s Mem. in Supp. of Summ. J. and In Opp’n to Pl.’s Summ. J., at 48, 

Id. This leaves speakers caught between the FEC and the courts, with the 

inevitable result that speech will be curtailed out of caution and fear of 

governmental sanction. 

4

 With respect to the latter, the danger created by the District Court’s 

five-factor examination of the WRTL ads is that rather than creating a 

safe harbor, the District Court’s clear intent, the opinion will be applied 

by the FEC in reverse – as the absolute furthest reach of the issue ad 

exemption. In order to assure speakers that their issue advocacy will be 

examined on its plain face, and thus extend full constitutional protection 

to core speech, at a minimum this Court should expressly identify the 

District Court’s reasoning as a safe harbor for speakers. 
7 

being able to rely on a bright line standard or safe harbor, 

entities wishing to engage in issue advocacy would be forced 

to decide whether to seek an FEC advisory opinion blessing 

the ad script (and visuals) before it is broadcast, or risk FEC 

enforcement afterward (and perhaps mounting another asapplied challenge to such a decision). 

Further, an issue ad exemption places such ads, by 

definition, outside the scope of BCRA’s “federal election 

activity.” As such, issue ads, at least with respect to national 

political parties – which operate exclusively with federally 

regulated dollars – should be exempted from the FEC’s 

regulations on coordinated communications. 11. C.F.R. § 

109 et seq. Without such an exemption (and even without 

any discussion taking place between a political party and the 

candidate or officeholder identified in the issue ad) a 

political party may be restricted from running an exempt 

issue ad because it might be deemed to have coordinated the 

communication with a federal candidate. Absent such a 

ruling, the exemption created to advocate issues outside the 

federal electoral context may be foreclosed by regulations 

that are intended to apply only to the federal electoral 

context. 

Speakers deserve a clear answer as to what constitutes 

federally regulated activity. The sooner such guidance 

exists, the sooner core speech will be extended its full 

constitutional protection. 

III. Simply Affirming the District Court Opinion 

Unconstitutionally Elevates Corporate and Union Speech 

Above Political Party Speech. 

Exempting issue ads from regulation allows corporations 

and unions to speak freely on the public policy issues that 

impact upon their organizations and memberships. Such an 
8 

exemption would certainly come as welcome news to that 

identified segment of the regulated community. 

Unaddressed, however, is whether the RNC, any other

political party, or any other political organization would be 

allowed to avail itself of such an exemption. This Court’s 

jurisprudence, and common sense, dictates that political 

parties should be included in any such exemption. 

Indeed, if any issue ad exemption exists at all, it ought to 

apply first to political parties. The RNC, as a national 

political party regulated by The Federal Election Campaign 

Act (“FECA”), is already the subject of one of the most 

extensive regimes of federal regulations in America. 2 

U.S.C. § 431 et seq. Every dollar that the RNC raises or 

spends is subject to FECA’s source and amount restrictions, 

disclosed on publicly available federal reports, and 

compliant with FECA’s rules and restrictions as to how, 

when, and where it may be spent.5

 No such restrictions 

attach to the parties that expressly benefit from the issue ad 

exemption under the District Court’s opinion. Yet,

campaign finance law first grew from concern over corporate 

dollars flowing into federal elections, manifesting in the 

Tillman Act of 1907, 34 Stat. 864 (1907). It is nonsensical 

to argue that there exists a compelling governmental interest 

in regulating national political party speech as it relates to 

issue advocacy where no such interest exists with respect to 

corporations or unions. This is only underscored by the 

Court’s own campaign finance jurisprudence, which has 

always viewed restrictions on political expenditures as 

 

5

 The RNC’s dollars, already fully regulated by federal law, are also 

subject to individual state law regulation where the RNC chooses to 

expend any funds on elections that do not include any federal candidate. 

For example, should the RNC participate in the upcoming 2007 

Kentucky, Louisiana, or Mississippi gubernatorial races – elections in 

which no federal candidate will appear on the ballot – the RNC’s funds 

will be subject to dual regulatory regimes. 
9 

deserving closer scrutiny than restrictions on contributions. 

See Buckley, 424 U.S. at 14-23; Randall v. Sorrell, 126 S.Ct. 

2479 (2006); Federal Election Comm’n v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431 (2001), 533 U.S. at 

440-441; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 

386-388 (2000). Such scrutiny should only increase where, 

as here, the speech is by definition unrelated to federal 

election activity. This Court made clear in Colo. Republican 

Fed. Campaign Comm. v. Federal Election Comm’n, 518 

U.S. 604 (1996), that a political party may not be relegated 

to second-class status with respect to political speech. Id. at 

616. It simply cannot be the case that a genuine issue ad run 

by a corporation or union is somehow transformed into an 

electioneering communication merely because it is spoken 

by the RNC, or any other political party. 

Political parties, unlike corporations and unions, exist to 

further their constituents’ political philosophy, ideals, and 

goals. Participating in elections and supporting candidates is 

only one way by which a political party fulfills this function 

– but it is only one way. Promoting its members’ political 

philosophy, and developing and evolving such philosophy 

through active debate and exchange of ideals are other 

equally important, if not more so, ways. A party’s ability to 

attract new members and further its philosophy is 

fundamentally reliant on its ability to engage in issue 

advocacy. It is difficult to imagine President Reagan’s party 

biting its nails over whether or not a communication 

denouncing communism would fall within a technical 

definition of electioneering. Under the FEC’s ever-evolving 

application of BCRA, however, this is the reality. 

Moreover, BCRA’s absolute ban on national political

party involvement with any non-federal funds whatever 

makes no allowance for either purely non-federal or even, as 

is the case here, non-election related activity. Issue ads that 
10 

fall wholly outside the scope of federal campaign finance 

regulation – ads that may be funded by unlimited amounts of 

corporate or union general treasury dollars – still must be 

paid for by federal funds if they are run by a national 

political party. Put simply, in the context of the speech at 

issue here, there is neither reason nor constitutional 

justification to treat national political parties differently than 

any other speaker.6

 

6

 Further, outside the coordination timeframes set forth in 11 C.F.R. § 

109 et seq., corporations and unions may coordinate with federal 

candidates using such unregulated money. National political parties, 

however, are absolutely prohibited from any such “non-coordination 

coordination” due to BCRA’s absolute ban on their “receiving, directing, 

soliciting, or spending” any non-federal dollars. This places a further 

limitation on political party speech relative to corporate and/or union 

speech that bears no conceivable relation to eradicating corruption or the 

appearance thereof – the only two governmental interests this Court has 

found to be compelling enough to draw such a line. 
11 

CONCLUSION

 For the reasons set forth above, amicus RNC 

respectfully urges this Court to affirm the District Court and 

create an exemption for genuine issue ads from 

electioneering communications; to establish a bright line 

standard with respect to express advocacy; and expressly 

include political parties’ in any issue ad exemption. 

 Respectfully submitted, 

 

 THOMAS J. JOSEFIAK 

Counsel of Record 

 SEAN CAIRNCROSS

 REPUBLICAN NATIONAL

COMMITTEE 

 310 FIRST STREET, S.E. 

 WASHINGTON, D.C. 20003 

(202) 863-8500 

March 23, 2007 Counsel for Amicus Curiae