Nos. 06-969 & 06-970

In the Supreme Court of the United States

 __________ 

FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee, and

SENATOR JOHN MCCAIN, REPRESENTATIVE TAMMY BALDWIN, REPRESENTATIVE CHRISTOPHER SHAYS, AND 

REPRESENTATIVE MARTIN MEEHAN,

Appellant-Intervenors, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

 __________ 

On Appeal From the United States District Court 

For The District of Columbia __________ 

BRIEF FOR AMICI CURIAE THE LEAGUE OF 

WOMEN VOTERS OF THE UNITED STATES, 

COMMON CAUSE, INC., THE GREENLINING 

INSTITUTE AND UNITED STATES PUBLIC 

INTEREST RESEARCH GROUP 

IN SUPPORT OF APPELLANT __________ 

DANIEL R. ORTIZ

 Counsel of Record 

UNIVERSITY OF VIRGINIA 

SCHOOL OF LAW* 

580 Massie Road 

Charlottesville, VA 22903 

(434) 924-3127 

*Affiliation listed for 

address purposes only.
ii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES................................................. iv 

INTEREST OF AMICI CURIAE............................................ 1 

SUMMARY OF ARGUMENT.............................................. 2 

ARGUMENT.......................................................................... 4 

I. SINCE WRTL’S THREE ADS ARE THE 

“FUNCTIONAL EQUIVALENT OF EXPRESS 

ADVOCACY,” THEY SHOULD RECEIVE NO 

CONSTITUTIONAL EXEMPTION................................ 4 

II. THE DISTRICT COURT’S FOUR-CORNERS, 

FIVE-FACTORS APPROACH CREATES A 

“MAGIC FEATURES” TEST, WHICH, LIKE 

THE “MAGIC WORDS” TEST THIS COURT 

REPUDIATED IN McCONNELL, PERMITS 

CORPORATIONS TO FUND FROM THEIR 

GENERAL TREASURIES ADS INTENDED TO 

INFLUENCE FEDERAL ELECTIONS AND 

HAVING THAT EFFECT................................................ 6 

III. THE DISTRICT COURT’S “MAGIC 

FEATURES” TEST WOULD EVEN CLASSIFY 

MANY EXISTING CANDIDATE ADS, WHICH 

ARE CERTAINLY INTENDED TO 

INFLUENCE THE ELECTION AND LIKELY 

HAVE THAT EFFECT, AS EXEMPT 

“GRASSROOTS LOBBYING.”... ................................ 15 
iii 

TABLE OF CONTENTS—Continued 

Page 

IV. WRTL’S SUGGESTED TEST FOR 

“GRASSROOTS LOBBYING” WOULD 

EXEMPT NEARLY ALL ELECTIONEERING 

COMMUNICATIONS THAT AVOID EXPRESS 

ADVOCACY................................................................. 25 

CONCLUSION.................................................................... 29 
iv 

TABLE OF AUTHORITIES 

Page(s) 

Cases

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam)......................... 7, 10, 11, 12 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)............................................................ 3 

McConnell v. FEC, 

540 U.S. 93 (2003)..................................................... passim

Thomas v. Collins, 

323 U.S. 516 (1945).......................................................... 12 

Wisconsin Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) (per curiam)....................................... 2 

Statutes and Regulations

11 C.F.R. 109.21...................................................25 

26 C.F.R. 56.4911-2(b)(2)(i)-(ii).............................26, 27 

26 C.F.R. 56.4911-2(b)(2)(iii)(B)................................27 

26 C.F.R. 56.4911-2(d)(1)........................................27 

2 U.S.C. 431(20)(A)(iii) (2004)...................................10 

2 U.S.C. 434(f)(3)(A)(i)(III) & (c) (Supp. 2004)..............10 

2 U.S.C. 441(d)(1) (Supp. 2004).................................17 

26 U.S.C. 527(e)(2)................................................26 
v

Table of Authorities—Continued 

Page(s) 

Bipartisan Campaign Reform Act of 2002, 

 Pub. L. No. 107-155, 116 Stat. 81............................2 

Miscellaneous

Bear (Reagan), 

http://livingroomcandidate.movingimage.us/ele

ction/index.php?nav_action=election&nav_suba

ction=overview&campaign_id=173 (left click 

on bear photo) (streaming video); http://living 

roomcandidate.movingimage.us/election/index.

php?nav_action=election&nav_subaction=over

view&campaign_id=173 (left-click on bear 

photo; then left-click on “transcript”)(transcript) ............. 19 

Francis X. Clines, Reagan Promises No Benefit 

Cuts For Any Retirees, N.Y. Times, Oct. 10, 

1984, at A1........................................................................ 23 

Peace Little Girl (Daisy) (1964, Johnson), 

http://livingroomcandidate.movingimage.us/styl

e/index.php?nav_action=style&nav_subaction=

110 (streaming video) (last visisted Feb. 20, 

2007); http://livingroomcandidate.movingimage 

.us/style/index.php?nav_action=style&nav_suba

ction=110 (transcript) (left-click on 

“transcript”) (last visited Feb. 20, 2007) .....................24-25 

Prouder, Stronger, Better (Reagan), 

http://livingroomcandidate.movingimage.us/ele

ction/index.php?nav_action=election&Nav_sub

action=Overview&campaign_id=173(streaming 

video) (last visited Feb. 20, 2007); 
vi

Table of Authorities—Continued 

Page(s) 

http://livingroomcandidate.movingimage.us/ele

ction/index.php?nav_action=election&nav_suba

ction=overview&campaign_id=173 

(transcript)(left-click on “transcript”)(last 

visited Feb. 20, 2007) ..................................................21-22 

Resign, Mr. Speaker, 

http://www.washtimes.com/op-ed/20061002-

102008-9058r.htm ............................................................ 13 

Brian Ross and Maddy Sauer, Foley Resigns Over 

Sexually Explicit Messages to Minors, 

http://blogs.abcnews.com/theblotter/2006/09/ 

foley_resigns_o.html ........................................................ 13 

Rhonda Schwartz and Maddy Sauer, Sixteen-YearOld Who Worked as Capitol Hill Page 

Concerned About E-mail Exchange with 

Congressman, 

http://blogs.abcnews.com/theblotter/2006/09/six

teenyearold_.html (last visited Feb. 20, 2007) ................. 13 

Martin Tolchin, White House Approval Sought On 

a Compromise Spending Plan, N.Y. Times. Oct. 

10, 1984 ............................................................................ 23 

Victory (08/13/2004), Bush), 

http://livingroomcandidate.movingimage.us/ele

ction/index.php?nav_action=election&Nav_sub

action=Overview&campaign_id=178 

(streaming video)(left-click on swimming 

photo); http://livingroomcandidate.movingim 

age.us/election/index.php?nav_action=election

&nav_subaction=overview&campaign_id=178 
vii

Table of Authorities—Continued 

Page(s) 

(transcript)(left-click on swimming photo; then 

left-click on “transcript”) (last visited Feb. 20, 

2007) ................................................................................. 16 

Ben Yagoda, My Heart Belongs To ‘Mother’, N.Y. 

Times, May 14, 2006 § 4, at 14. ....................................... 20
INTEREST OF AMICI CURIAE1

The League of Women Voters of the United States 

(the “League”) is a nonpartisan, community-based 

organization that encourages informed and active 

participation of citizens in government and seeks to influence 

public policy through education and advocacy. The League is 

organized in more than 850 communities in every state and 

has more than 150,000 members and supporters nationwide. 

One of the League’s primary goals is to promote an open 

governmental system that is representative, accountable, and 

responsive and that assures opportunities for citizen 

participation in government decision making. To further this 

goal, the League has been a leader in seeking campaign 

finance reform at the state, local, and federal levels for more 

than two decades. 

Common Cause is a nonprofit, nonpartisan citizens’ 

organization with approximately 300,000 members and 

supporters nationwide. Common Cause has been concerned 

with the growing problem of soft money in the federal 

political process, and has publicly advocated for appropriate 

regulation in order to restore integrity to the electoral system. 

Common Cause was a strong advocate for congressional 

enactment of the Bipartisan Campaign Reform Act of 2002. 

 

1

 The Department of Justice and Wisconsin Right to Life, Inc. have 

consented to the filing of this brief in letters which accompany this 

filing. The Appellant-Intervenors have filed a general written consent 

to the filing of amicus briefs with the Court. No person or entity other 

than the Amici Curiae, their members, or counsel made any monetary 

contribution to the preparation or submission of this brief. No present 

counsel for any party authored this brief in whole or in part. Counsel 

for Amici, however, was listed among counsel for the IntervenorAppellants in early proceedings before the district court. 
2 

The Greenlining Institute is a non-partisan, non-profit 

organization that works to improve the quality of life for lowincome and minority communities throughout the United 

States. The institute was founded in 1993 and emerged from 

the Greenlining Coalition, considered the oldest coalition of 

African-American, Asian-American/Pacific-Islander, and 

Latino community leaders organized around a common 

purpose. The Greenlining Institute’s major mission is to 

create an antidote to redlining practices which have had 

adverse consequences in the ability of low-income and 

minority communities to obtain financial services and 

products. 

The National Association of State PIRGs ("U.S. 

PIRG") represents state Public Interest Research Groups 

("PIRGs") at the federal level, including in the federal courts. 

U.S. PIRG and many state PIRGs have long been interested in 

campaign finance issues and the resolution of this case will 

assist them in their advocacy for effective and comprehensive 

campaign finance reforms. 

All amici joined in filing an amicus brief in this Court 

in the first round of litigation, Wisconsin Right to Life, Inc. v. 

FEC, 546 U.S. 410 (2006) (per curiam), and several of them 

have filed amicus briefs in this Court in other constitutional 

campaign finance cases, including McConnell v. FEC, 540 

U.S. 93 (2003). 

SUMMARY OF ARGUMENT 

Largely in response to mounting sham issue advocacy 

in federal elections, all of which evaded reasonable 

restrictions on corporate and labor spending as well as longstanding disclosure requirements, Congress passed and the 

President signed the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”). One of 
3 

its central provisions, Title II, barred corporations and unions 

from funding so-called “electioneering communications” out 

of their general treasuries and required disclosure of 

“electioneering communications” funded from other sources. 

In McConnell v. FEC, 540 U.S. 93 (2003), this Court upheld 

these electioneering provisions on their face except insofar as 

they involved certain “ideological nonprofits” meeting the 

strict conditions this Court had outlined earlier in FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263-64 

(1986). 

 Wisconsin Right to Life, Inc. (“WRTL”) now seeks to 

create an as-applied exception large enough to swallow up 

Title II itself. Although it couches its challenge to these same 

provisions as limited to their application to vaguely defined 

“grassroots lobbying,” the exception WRTL seeks would not 

only exempt many ads, like the sham issue ads considered in 

McConnell itself, designed to influence federal elections and 

likely having that effect, but also ads nearly identical to those 

run by federal candidates themselves in past elections. The 

“grassroots lobbying” test created by the district court, as well 

as the test WRTL itself promoted below, would open the door 

to corporations and unions funding the “functional equivalent 

of express advocacy” from their general treasuries, a practice 

which this Court found Congress could bar in McConnell. 

540 U.S. at 206. Although WRTL claims that these ads 

intend only to encourage voters to lobby their representatives 

on legislation, none of these ads directly gives voters the 

rudimentary information they would need to place a phone 

call or write a letter or email to their representatives. Their 

aim is candidate, not legislative, advocacy. 
4 

ARGUMENT 

I. SINCE WRTL’S THREE ADS ARE THE 

“FUNCTIONAL EQUIVALENT OF EXPRESS 

ADVOCACY,” THEY SHOULD RECEIVE NO 

CONSTITUTIONAL EXEMPTION. 

In McConnell, this Court held that BCRA’s 

“electioneering communications” provisions could 

constitutionally apply to ads that “are the functional 

equivalent of express advocacy.” Ibid. This was a simple 

inquiry, turning completely on whether “the ads are intended 

to influence the voters and have that effect.” Ibid. 

At the time of the 2004 election, Senate filibustering of 

judicial nominees was a key issue in the Wisconsin Senate 

race, as well as a national, partisan campaign issue. All three 

Wisconsin Republican Senate candidates had made it a key 

issue in their primary races, as had the state Republican Party, 

which listed this issue as one of four reasons to defeat Senator 

Feingold. See Def. FEC’s Exhs. Submitted in Supp. Of Its 

Opp’n to Pl.’s Mot. For a Prelim. Inj., Exh. 15 at 2, Wisconsin 

Right to Life, Inc. v. FEC, No. 04-1260 (D.D.C.) (3-judge 

court). Further, WRTL itself and its affiliated PAC made the 

judicial filibuster a campaign issue, citing it both as a reason 

they had endorsed the three Republican opponents of Senator 

Feingold and as a reason that one of their “top election 

priorities” was “to send Feingold packing!” See id. Exh. 4 

(WRTL PAC); Exh. 20 (WRTL). WRTL’s PAC said that 

“the defeat of Feingold must be uppermost in the minds of the 

Wisconsin right to life community in the 2004 elections.” 

See id. Exh. 4 at 2. And the PAC chair stated, “[w]e do not 

want Russ Feingold to continue to have the ability to thwart 

President Bush’s judicial nominees.” See ibid. 

These statements were entirely consistent with WRTL’s 

past electoral positions. Through its PAC, it has made 
5 

significant independent expenditures to defeat Senator 

Feingold, as has the National Right to Life PAC. In fact, 

WRTL PAC’s FEC reports itemizing its independent 

expenditures in the 1992 and 1998 congressional elections list 

100 percent of its independent expenditures as opposing 

Senator Feingold. See id. Exhs. 8 & 9. 

WRTL also heavily publicized Senator Feingold’s support 

of the judicial filibuster and issued several press releases 

criticizing him for his vote. In this context, the fact that its 

proposed electioneering communication ads did not 

themselves specifically state Senator Feingold’s position on 

the issue matters little, since WRTL had already used other 

means to publicly disseminate Senator Feingold’s position, as 

did his three Republican opponents and the Republican state 

party, all of whom had attacked Senator Feingold repeatedly 

for his position. Thus, when WRTL’s electioneering 

communication ads referred to Senator Feingold in the 

context of criticizing “a group of Senators” for conducting an 

ongoing filibuster that is “not fair” and “causing gridlock,” it 

was implausible to maintain that this criticism would not 

attach to Senator Feingold and affect his Senate race. 

 In this context, WRTL’s representation that its proposed 

electioneering communication ads to Wisconsin voters in the 

immediate preelection period would have had only a 

grassroots lobbying purpose strains credulity past the 

breaking point. The facts that the topic of these ads—the 

Senate filibuster of judicial nominees—is one that both the 

Republican Senate candidates and WRTL identified as a key 

campaign issue and that the ads gave their listeners no direct 

information about how to contact any candidates undermine 

WRTL’s claim that these electioneering communications 

amount to no more than grassroots lobbying. They did not 

urge listeners to vote any particular way or even mention the 

up-coming candidate election because they did not need to. 

The listeners would have understood that much and could 
6 

have been counted on to place each ad within its obvious 

context and understand its point—to vote for or against 

particular candidates. 

 As this Court recognized in McConnell, an ad’s indirect 

direction is direction nonetheless and makes the ad “the 

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

Considered in their actual context, WRTL’s three ads meet 

McConnell’s test: they were intended to influence the election 

and likely would have had that effect. For that reason alone, 

this Court should reverse the district court. There is no need 

for it here to design a test for any “closer” cases. 

II. THE DISTRICT COURT’S FOUR-CORNERS, 

FIVE-FACTORS APPROACH CREATES A 

“MAGIC FEATURES” TEST, WHICH, LIKE THE 

“MAGIC WORDS” TEST THIS COURT 

REPUDIATED IN McCONNELL, PERMITS 

CORPORATIONS TO FUND FROM THEIR 

GENERAL TREASURIES ADS INTENDED TO 

INFLUENCE FEDERAL ELECTIONS AND 

HAVING THAT EFFECT. 

 In exempting WRTL’s three ads from BCRA’s source and 

disclosure limitations, the district court carved out a very 

broad category of “grassroots lobbying.” It described its test 

as follows: 

this Court will limit its consideration to 

language within the four corners of the antifilibuster ads that, at a minimum: (1) describes 

a legislative issue that is either currently the 

subject of legislative scrutiny or likely to be 

the subject of such scrutiny in the near future; 

(2) refers to the prior voting record or current 

position of the named candidate on the issue 

described; (3) exhorts the listener to do 
7 

anything other than contact the candidate about 

the described issue; (4) promotes, attacks, 

supports, or opposes the named candidate; and 

(5) refers to the upcoming election, candidacy, 

and/or political party of the candidate. In 

addition, as to the televised ad, the Court will 

also look to the images displayed in concert 

with the language to evaluate whether they 

otherwise accomplish the prohibited result. 

Appellant-Intervenors’ J.S. App. 18a. Like the “magic 

words” test repudiated by this Court in McConnell, however, 

the district court’s test resolutely ignores an ad’s context, 

focusing instead exclusively on its bare words and images. 

Also like the discredited “magic words” test, the district 

court’s test ignores an ad’s actual intent and effect, which this 

Court in McConnell identified as the essential constitutional 

concerns—the keys to distinguishing ads whose funding can 

be regulated from those whose cannot. There is only one real 

difference between the approach this Court rejected in 

McConnell and that adopted by the district court—that 

between eight “magic words,” Buckley v. Valeo, 424 U.S. 1, 

44 n.52 (1976) (per curiam), and five “magic features.” So 

long as an ad (1) references a live legislative issue, (2) avoids 

attributing a position to a named candidate, (3) urges the 

viewer to do no more than contact the candidate about the 

referenced issue, (4) avoids promoting, attacking, supporting, 

or opposing the named candidate, and (5) avoids reference to 

the election, candidacy, or political party of the candidate, 

corporations can fund it from their general treasury funds 

without disclosure. Indeed, since the district court did not say 

that an ad had to exhibit all five of these features—just that it 

would “limit its consideration” to them—the district court 
8 

might well exempt from disclosure and source requirements 

ads containing only some of these features.2

 In addition to violating this Court’s instruction that any 

exemption has to rest on an ad’s intent and likely effect, the 

district court’s test poses at least four particular problems. 

First, any test for “grassroots lobbying” should require that 

the ad urge the viewer to actually lobby an elected official. 

The district court’s does not. Although the district court’s test 

would not exempt an ad that “exhorts the listener to do 

anything more than contact the candidate about the issue,” 

Appellant-Intervenors’ J.S. App. 18a (emphasis added), it 

nowhere requires an ad to even do just that—exhort the 

listener to contact the candidate. This is a significant 

omission.3

 An ad could satisfy this part of the test by not 

exhorting the viewer to do anything at all. Indeed, many 

 

2

 It is difficult to describe the district court’s inquiry as even a “test.” 

The district court gestured broadly at the five features but did not say 

which ones were more or less important, how many were needed, or 

whether they could be balanced against each other. This alone will 

create great confusion in future cases if this Court approves the district 

court’s test. In the remainder of this brief, Amici will argue as if the 

district court would insist that all five features be present for an ad to 

be considered exempt “grassroots lobbying.” That, of course, is the 

narrowest possible interpretation of the district court’s test but one 

nevertheless broad enough to eviscerate BCRA’s “electioneering 

communications” provisions. To the extent the district court would 

not insist that all five features be present, the exemption and its 

dangers are larger still and the test would allow corporations to fund 

from their general treasuries even more advertising intended to 

influence federal elections and having that effect. 

3

 Even if in an effort to better align the test with the materials it seeks 

to identify this Court cured this particular omission, a corporation 

could easily continue to fund such ads as before by including a proforma request that the viewer contact the candidate—much as 

advertisers did under the now-discredited “magic words” test. Even if 

cured, in other words, this feature of the test would have little practical 

bite. 
9 

powerful ads run by candidates themselves do not exhort the 

voters to do anything. See, e.g., infra 15-23. They do not 

need to because the voter understands their implicit call. By 

limiting inquiry to the “four corners” of the ad, however, the 

district court’s “magic features” test assumes that voters are 

dysfunctional, unsocialized audiences that understand an ad’s 

language and images only in a vacuum. 

 Second, the test nowhere requires that the ad give the 

viewer the information the viewer would need to actually 

lobby a candidate. The district court’s test would exempt ads, 

like WRTL’s, that urge viewers to contact candidates but fail 

to tell them how they can do so. Surely, though, any genuine 

grassroots lobbying ad would let the viewer know how to 

lobby by displaying for a sufficient amount of time the 

candidate’s contact information, even if it is just a simple 

phone number or email address. WRTL’s three ads do not, 

thereby revealing that their true intent was not to have 

viewers contact Senator Feingold about a possible filibuster 

but rather to change the way the viewer judged Senator 

Feingold generally in the hope that that viewer would later 

vote. The district court’s “contact” factor, then, requires 

neither that the ad urge any lobbying at all nor that the ad give 

the viewer the rudimentary information she would need to 

lobby on her own. Surely any ad that genuinely intended to 

encourage grassroots lobbying on an issue and wanted to have 

any such effect would at a minimum urge contact and provide 

this simple information. 

 Third, the district court’s exception is not narrowly 

tailored for its own putative aim. Nearly all genuine and 

effective grassroots lobbying will be directed to a 

representative’s constituency, not elsewhere. An organization 

interested in changing the views of a member of the New 

York City Council, for example, is unlikely to advertise in 

Idaho for people to call the councilmember and make their 

views known. Such advertising would be wasted because the 
10 

New York councilmember would likely be unmoved by 

contact from outside her district, let alone from outside her 

city, state, and even region. BCRA’s “electioneering 

communications” provisions reflect this simple insight by 

covering only specific communications “targeted to the 

relevant electorate.” 2 U.S.C. 434(f)(3)(A)(i)(III) & (c) 

(Supp. 2004). The district court’s exception, however, would 

characterize as “grassroots lobbying” an ad broadcast 

nationwide in a presidential election where the issue was 

before a state or local body. Thus, so long as an ad 

somewhere mentioned an issue facing the executive branch of 

Texas government—it would not even have to make clear that 

the issue was pending there—and displayed none of the other 

“magic features” it could be run nationwide during an 

election in which the governor of Texas was a presidential 

candidate. The ad’s failure to target the candidate’s 

constituency undercuts any argument that its real intent 

concerns grassroots lobbying. Yet, the district court’s test 

would treat such an ad as if it were the real thing. 

 Finally, the fourth factor in the district court’s “magic 

features” test—that the ad not “promot[e], attack[], support[], 

or oppos[e] the named candidate” (“PASO”)—cannot be 

straight-forwardly applied to anything other than ads funded 

by organizations with a major purpose of influencing federal 

elections. The district court lifted its PASO factor from 2 

U.S.C. 431(20)(A)(iii) (2004), part of the definition of 

“federal election activity.” In McConnell, this Court upheld 

this PASO standard against vagueness challenge as applied to 

spending by state political parties. 540 U.S. at 170 n. 64. 

This Court has never upheld it, however, as applied to 

individuals and organizations without such a major purpose 

and has, in fact, from the time of Buckley applied a different, 

much stricter vagueness standard to regulations affecting their 

activities. 
11 

 In Buckley, for example, this Court considered whether an 

amendment to the Federal Election Campaign Act (“FECA”) 

requiring disclosure of certain “expenditures,” defined as the 

use of money “for the purpose of influencing” the election of 

candidates for federal office, was unconstitutionally vague. 

424 U.S. at 76-82. This Court held that the statutory term 

“expenditure” posed no vagueness problems as applied to 

“organizations that are under the control of a candidate or the 

major purpose of which is the nomination or election of a 

candidate * * * [because their spending is,] by definition, 

campaign related.” Id. at 79. With respect to others without 

such a major purpose, however, this Court viewed the 

statutory term very differently. To avoid constitutional 

vagueness concerns, it “construe[d] the ter[m] to reach only 

funds used for communications that expressly advocate the 

election or defeat of a clearly identified candidate.” Id. at 80 

(footnote omitted). A standard permissible for major-purpose 

actors, it found, was just too vague to be applied to others. 

The Court then tightened the term up with respect to other 

funders of advertising by pointing to another part of its 

opinion where it had already construed the phrase 

“advocating the election or defeat of a candidate” to avoid 

similar vagueness concerns. Id. at 42-44. There it had made 

clear how direct these express terms of advocacy had to be: 

“This construction would restrict [the provision’s] application 

* * * to communications containing express words of 

advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ 

‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote 

against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52. 

 The PASO factor of the district court’s test is, however, 

even vaguer than the phrase “advocating the election or defeat 

of candidate” from Buckley, which gave birth to the “magic 

words” test. Each of this factor’s individual terms—

“promotes, attacks, supports, or opposes the named 

candidate,” Appellant-Intervernors’ J.S. App. 18a—is at least 

as vague as the phrase from Buckley and collectively they so 
12 

compound generality that the overall PASO term can 

possesses little firm meaning at all when applied to 

organizations with no major purpose of influencing federal 

elections. As this Court noted in Buckley, such a vague test 

“compels the speaker to hedge and trim.” 424 U.S. at 43 

(quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)). That 

the vagueness occurs in a judicially-created exception to a 

facially valid regulatory scheme makes no difference. A 

speaker would still be unsure on which side of the muddied 

line his communication would fall and what would be its 

consequences. Ironically, the district court has created a 

possibly unconstitutionally vague exception to a definition of 

“electioneering communications” that this Court itself 

recognized as crafted—indeed, successfully crafted—to avoid 

vagueness concerns. McConnell, 540 U.S. at 194. The 

district court will not be able to apply the PASO factor to 

advertisements funded by non-major purpose organizations, 

like unions and ordinary business corporations, without 

tightening it up in some serious fashion. 

 The district court could later, of course, avoid these 

vagueness concerns the same way this Court did in Buckley. 

It could reinterpret “promotes, attacks, supports, or opposes” 

to require “magic words.” (Indeed, it may have no other 

choice. The other apparent alternative, a sharp, “legislative” 

scheme, like BCRA’s careful four-part definition of 

“electioneering communications,” would seem to be 

unavailable to it. It is, after all, for Congress to legislate, not 

the courts.) Taking this course would certainly give the 

“grassroots lobbying” exemption sharper definition. A 

speaker could better predict when his communications would 

find safe harbor. It would, however, resurrect “magic 

words”—a doctrine this Court repudiated in McConnell

precisely because it failed to distinguish between election 

advocacy and other speech—in the guise of a constitutional 

exemption. This failed doctrine would rise again, now 

nesting happily within the all-embracing “magic features” test 
13 

whenever that test came to be applied to a non-major purpose 

entity. 

 The effect of the district court’s test if tightened up this 

way can be seen in the type of ads it would allow corporations 

to fund directly from their general treasuries without 

disclosure. In the last federal general election, for example, 

one issue arising completely within the 60-day window of the 

electioneering communications provisions was the Mark 

Foley scandal. On September 28, 2006, ABC News reported 

that in 2005 Congressman Foley had sent email messages to a 

former Congressional page, asking for, among other things, a 

photo and certain personal information. Rhonda Schwartz 

and Maddy Sauer, Sixteen-Year-Old Who Worked as Capitol 

Hill Page Concerned About E-mail Exchange with 

Congressman, http://blogs.abcnews.com/theblotter/2006 

/09/sixteenyearold_.html (last visited Feb. 20, 2007). A day 

later Congressman Foley resigned after ABC News read 

sexually explicit instant messages that he had allegedly sent 

to another former page. Brian Ross and Maddy Sauer, Foley 

Resigns Over Sexually Explicit Messages to Minors, 

http://blogs.abcnews.com/ theblotter/2006/09/foley_resigns_ 

o.html (last visited Feb. 20, 2007). In the following days, 

additional pages alleged inappropriate conduct dating back 

several years. 

 The scandal, coming shortly before the election, provoked 

deep and widespread criticism of the Republican House 

leadership for failing to protect vulnerable minors and for 

allegedly covering up Representative Foley’s conduct for 

some time. On October 3, 2006, the lead editorial of The 

Washington Times called on House Speaker Dennis Hastert 

to resign. Resign, Mr. Speaker, http://www.washtimes. 

com/op-ed/20061002-102008-9058r.htm (last visited Feb. 20, 

2007). To many, Representative Foley’s disgrace and the 

House leadership’s failure to adequately address it greatly 

contributed to the results of the November House elections. 
14 

 The district court’s test, if modified to avoid the 

vagueness concerns that attend non-major purpose groups, 

would have allowed corporations to fund from their general 

treasuries powerful ads featuring Foley intended to influence 

the outcome of House elections—all without disclosure. A 

business corporation could have run an ad stating that the 

House of Representatives failed to protect the youth that 

American families entrusted to it and had covered up a 

possible crime to protect one of its own members—all the 

time running powerful visual images suggesting sexual 

exploitation of vulnerable teenagers by those in power. The 

ad could have ended by prominently featuring a picture of 

Mark Foley, universally reviled at the time, and transitioning 

to a picture of the local incumbent member of the House, 

identified by name as the Congressperson for the district. It 

could have capped the visuals with the words “Stop 

Congressional Sexual Exploitation of America’s Young” 

rolling in red across the screen. 

 A corporation would presumably have intended such an 

ad to directly influence the election rather than Congress’s 

supervision of its pages—an issue far beyond ordinary 

corporate concern. And the ad, if done properly, would 

certainly have had that effect. Yet, the district court would 

consider the ad protected “grassroots lobbying.” The ad 

would have (1) referenced a live issue in Congress, (2) 

avoided attributing any position to the individually named 

candidate, (3) not urged the viewer to do anything more than 

contact the candidate about the issue (indeed, it would not 

have urged any contact at all), (4) not on its face promoted, 

attacked, supported, or opposed the named candidate in a way 

vagueness concerns pertaining to non-major purpose groups 

would require, and (5) not referred to any election or 

candidacy or identified the candidate’s political party. The ad 

would have possessed every one of the “magic features” the 

district court requires. In the name of the First Amendment, a 
15 

corporation could have run such an ad from its general 

treasury funds without any disclosure. 

III. THE DISTRICT COURT’S “MAGIC FEATURES” 

TEST WOULD EVEN CLASSIFY MANY 

EXISTING CANDIDATE ADS, WHICH ARE 

CERTAINLY INTENDED TO INFLUENCE THE 

ELECTION AND LIKELY HAVE THAT EFFECT, 

AS EXEMPT “GRASSROOTS LOBBYING.” 

 The district court’s test would misclassify as “grassroots 

lobbying” many ads clearly intended to influence federal 

elections and having that effect, namely, ads nearly identical 

to those run by the candidates themselves but funded by nonmajor purpose entities. Many candidate ads in recent 

presidential elections and some of the most powerful 

candidate ads since the creation of television would with little 

or no modification satisfy the district court’s “magic features” 

test as modified to avoid the vagueness concerns attending its 

application to non-major purpose groups. Consider Victory, a 

30-second television ad run by the Bush campaign in the 2004 

election. It sought to tie the United States military operations 

in Iraq, one of the most prominent legislative and executive 

issues of the time, to themes of freedom and democracybuilding by focusing on that year’s summer Olympics, an 

event many Americans followed. 
16 

 Voice Over: 

In 1972...there were 40 Today...120. 

democracies in the world. 

 Freedom is spreading through- And this Olympics... there 

out the world like a sunrise. will be two more free 

 nations... And two fewer 

 terrorist regimes. 

 With strength, resolve and And, hope will defeat 

courage, democracy will hatred. 

triumph over terror. 

Victory (08/13/2004, Bush), http://livingroomcandidate. 

movingimage.us/election/index.php?nav_action=election&na

v_subaction=overview&campaign_id=178 (streaming 
17 

video)(left-click on swimming photo)(last visited Feb. 20, 

2007), http://livingroomcandidate.movingimage.us/election/ 

index.php?nav_action=election&nav_subaction=overview&c

ampaign_id=178 (transcript)(left-click on swimming photo; 

then left-click on “transcript”)(last visited Feb. 20, 2007). 

 Absent the “stand-by-your ad” and source disclosures, 

which federal law mandates for candidate-run advertisements, 

see 2 U.S.C. 441(d)(1) (Supp. 2004), this ad displays all the 

“magic features” the district court requires. First, it 

references the Iraq war, a live issue before both the legislative 

and executive branches.4

 Indeed, few, if any, issues were 

more prominent at the time. Second, it avoids attributing a 

position on the war to George W. Bush, the featured 

candidate. (Of course, it does not need to. The audience 

could not have failed to know the President’s position.) 

Third, it does not “exhort[] the [viewer] to do anything other 

than contact the candidate about [the war.]” AppellantIntervenors’ J.S. App. 18a. Indeed, it does not exhort the 

viewer to do anything at all, presumably because such contact 

is not the ad’s ambition. Fourth, within its “four corners” the 

ad does not “promote[], attack[], support[], or oppose[]” 

President Bush. By associating the President with 

“[F]reedom,” “sunrise,” “strength,” “democracy,” “courage,” 

“triumph over terror,” a “hope [that] will defeat hatred,” and 

 

4

 Although the district court’s test, like the one WRTL proposes, 

speaks of legislative issues, there is no reason why “grassroots 

lobbying” cannot concern issues before the executive branch of 

government. In canvassing candidate ads from past presidential 

elections in this section of their brief, Amici will assume that such an 

executive “grassroots lobbying” exemption would apply during the 

relevant time periods preceding federal elections in which a sitting 

president was running for office. If that is wrong, however, Amici’s 

examples would still show how much candidate advertising in general 

could be exempted under the district court’s test when funded by nonmajor purpose groups. 

 
18 

“[m]oving America [f]orward,” not to mention the formal 

grace and beauty of women’s Olympic butterfly swimming, 

the designers of the ad intended to influence voters in his 

favor but the ad nowhere directly or expressly “promotes” or 

“supports” him as it might have to when applied to non-major 

purpose groups. It does not need to. As this Court noted in 

McConnell, such heavy-handedness would be unnecessary 

and could backfire. 540 U.S. at 193 & n.77. “All advertising 

professionals understand that the most effective advertising 

leads the viewer to his or her own conclusion without forcing 

it down their [sic] throat.” Id. at 193 n.77 (quoting 

McConnell v. FEC, 251 F. Supp. 2d 176, 305 (D.D.C. 

2003)(opinion of Henderson, J.)(quoting declaration of 

Douglas L. Bailey, founder, Bailey, Deardourff & Assoc. 1-2, 

App. 24, ¶3)). Fifth, nothing in the ad refers to the upcoming 

election, President Bush’s candidacy for re-election, or his 

party affiliation. It simply does not need to. The audience 

could be counted on to know all that. In short, the district 

court’s test would classify this prominent candidate ad, when 

run by a non-major purpose entity, as exempt “grassroots 

lobbying” and allow corporations to run it out of their general 

treasury funds without any disclosure. 

 Another ad, Bear, from the 1984 presidential contest 

makes this point even more clearly. One of the most 

memorable in the campaign, it sought to defuse attacks that 

President Reagan had unnecessarily escalated military 

spending. In the ad, a bear, representing the Soviet Union, 

roams the woods eventually to face a human. The announcer 

asks whether the bear is threatening and “isn’t it smart to be 

as strong as the bear?” 
19 

 ANNOUNCER: 

There is a bear in the woods. For some people the bear is 

 easy to see. Others don't 

 see it at all. 

 Some people say the bear Others say it's vicious and 

is tame. dangerous. 

 Since no one can really be 

sure who's right, isn't it smart 

to be as strong as the bear? 

If there is a bear? 

Bear (Reagan), http://livingroomcandidate.movingimage.us/ 

election/index.php?nav_action=election&nav_subaction=over

view&campaign_id=173 (left-click on bear photo) (streaming 

video) (last visited Feb. 20, 2007), 

http://livingroomcandidate.movingimage.us/election/index.ph
20 

p?nav_action=election&nav_subaction=overview&campaign

_id=173 (left-click on bear photo; then left-click on 

“transcript”)(transcript) (last visited Feb. 20, 2007). 

 This ad too displays all the “magic features” that the 

district court would have to require of a non-major purpose 

group. First, unless the district court’s four-corners 

requirement is so vigorous that it would identify the ad’s 

concern as human defense against attack by bears, the ad 

references a live issue—national defense and, in particular, 

the proper degree of military preparedness against the Soviet 

Union. Second, it does not attribute any position on these 

issues to President Reagan. (It does not need to.) Third, it 

does not even urge the viewer to contact President Reagan, let 

alone do anything more than that. Fourth, except possibly for 

the words “Prepared for Peace,” within its four corners the ad 

does not promote, attack, support, or oppose President 

Reagan. Although it is unlikely, if only because of vagueness 

concerns, that these three words alone could deny the ad 

“grassroots lobbying” status if run by a non-major purpose 

group, if they did they could simply be dropped with little ill 

effect. The ad would still be powerful and its intent and 

effect—to influence voters to favor President Reagan—would 

be clear. 

Prouder, Stronger, Better, known to many as President 

Reagan’s “Morning in America” ad, was one of the most 

powerful television ads of any election. It still resonates with 

many and has, in fact, even given its name to the Reagan 

years. See, e.g., Ben Yagoda, My Heart Belongs To 'Mother', 

N.Y. Times, May 14, 2006, § 4, at 14 (identifying time period 

as “morning-in-America Reagan years”). Its imagery of 

people going to work, moving into their new homes, 

marrying, and living under lowered inflation all effectively 

conveyed an upbeat image of American life. One minor 

deletion and possibly one minor addition, however, would 
21 

bring this memorable candidate ad under the district court’s 

“grassroots lobbying” exemption. 

 ANNOUNCER: 

It's morning again in With interest rates at about 

America. Today more men half the record highs of 

and women will go to work 1980, nearly two thousand 

than ever before in our families today will buy 

country's history. new homes, more than at 

 any time in the past four 

 years. 

 This afternoon 6,500 young and with inflation at less 

men and women will be than half of what it was 

married just four years ago, they 

 can look forward with 

 confidence to the future. 
22 

 It's morning again in America Why would we ever want 

and under the leadership to return to where we were 

of President Reagan our less than four short years 

country is prouder and ago? 

stronger and better. 

Prouder, Stronger, Better (Reagan), at http://livingroom 

candidate.movingimage.us/election/index.php?nav_action= 

election&nav_subaction=overview&campaign_id=173 

(streaming video)(last visited Feb. 20, 2007), 

http://livingroomcandidate.movingimage.us/election/index.ph

p?nav_action=election&nav_subaction=overview&campaign

_id=173 (transcript)(left-click on “transcript”)(last visited 

Feb. 20, 2007). 

The ad clearly displays three of the district court’s five 

“magic features.” It does not attribute a position on any 

pending issue to President Reagan; it does not ask viewers to 

contact him, let alone go beyond that; and it avoids 

mentioning the election, President Reagan’s candidacy, or his 

political affiliation. The phrase “under the leadership of 

President Reagan our country is prouder and stronger and 

better” may, even under the district court’s four-corners 

approach, come uncomfortably close to promotion or support. 

If so, that could be easily fixed. Dropping the six words 

“under the leadership of President Reagan,” which represent 

approximately three seconds of the 60-second ad, would 

avoid any danger of promotion. The only other question is 

whether the ad references a pending issue. Although it is 

littered with references to the standard, ever-present concerns 

of federal economic policy—employment, interest rates, 
23 

inflation, and homeownership—not to mention marriage and 

the family, the focus of much federal social policy, the district 

court might believe that the ad does not reference with 

sufficient specificity any pending or near-future issue before 

the executive branch. If that were the case, the fix again 

would be simple. A corporation wanting to fund the ad out of 

its general treasury funds could simply include mention of a 

more concrete pending issue among these more general ones. 

No problem here. Within the 60-day “electioneering 

communications” period of that election, a government 

shutdown was threatened, see Martin Tolchin, White House 

Approval Sought On a Compromise Spending Plan, N.Y.

Times, Oct. 10, 1984, at A1, and the generousness of Social 

Security was a hot issue, see Francis X. Clines, Reagan 

Promises No Benefit Cuts For Any Retirees, N.Y. Times, Oct. 

10, 1984, at A1. Such minor modification would have 

allowed a corporation to run with funds from its general 

treasury perhaps the most effective and certainly the most 

memorable candidate ad from the 1980s. 

 Slight revision would have allowed corporations to 

similarly fund the most famous example of negative 

candidate-sponsored advertising: the 1964 Johnson 

campaign’s “Daisy” ad. In this ad, the Johnson campaign 

powerfully suggested that a Goldwater presidency would lead 

the country to nuclear destruction. It was so effective that the 

campaign paid to run it only once. News commentary during 

the rest of the campaign gave it sufficient life of its own. The 

ad begins with a little girl counting, as best she can, from one 

to ten while plucking petals from a daisy. When she gets 

almost to ten, an ominous male voice replaces hers, counting 

backwards in a countdown to the ignition of a nuclear bomb. 

President Johnson’s voice, echoing a poem of W.H. Auden, 

then gives voters the choice: “To make a world in which all of 

God's children can live, or to go into the darkness.” 
24 

 SMALL CHILD [with flower]: MAN: 

One, two, three, four, five, Ten, nine, eight, seven, 

seven, six, six, eight, nine, six, five, four, three, two, 

nine .... one, zero. 

 [Sounds of exploding bomb.] JOHNSON: These are the 

 stakes: To make a world in 

 which all of God's children 

 can live, or to go into the 

 darkness. 

 We must either love each ANNOUNCER: Vote for 

other, or we must die. President Johnson on 

 November 3rd. The stakes 

 are too high for you to stay 

 home. 

Peace Little Girl (Daisy) (1964, Johnson), http://livingroom 

candidate.movingimage.us/style/index.php?nav_action=style 
25 

&nav_subaction=110 (streaming video) (last visited Feb. 20, 

2007), http://livingroomcandidate.movingimage.us/style/ 

index.php?nav_action=style&nav_subaction=110 (transcript) 

(left-click on “transcript”)(last visited Feb. 20, 2007). 

 Two minor changes, neither of which would diminish the 

power of the ad, would allow a corporation to run it from 

general treasury funds without any disclosure if the race 

occurred today. First, someone other than Johnson himself 

would have to intone the words associated with the fourth and 

fifth frames. Using Johnson’s own voice would make the ads 

a prohibited “coordinated communication.” See 11 C.F.R. 

109.21. Second, the words “for President Johnson” would 

have to be dropped from both the imagery and the voiceover. 

As express advocacy they would clearly satisfy the PASO 

factor no matter how the district court ended up construing it 

to avoid the vagueness concerns attending its application to 

non-major purpose entities. If a corporation made these two 

slight changes, neither of which would reduce the ad’s 

effectiveness, the ad would possess all five of the district 

court’s “magic features.” 

IV. WRTL’S SUGGESTED TEST FOR 

“GRASSROOTS LOBBYING” WOULD EXEMPT 

NEARLY ALL ELECTIONEERING 

COMMUNICATIONS THAT AVOID EXPRESS 

ADVOCACY. 

WRTL has itself not formally proposed a test to identify 

grassroots lobbying communications. In the district court, 

however, it approvingly cited the Internal Revenue Service’s 

(“IRS”) definition and suggested that that approach should 

apply here. Mem. in Supp. of Pl.’s Summ. J. Mot. at 22-23, 

Wisconsin Right to Life, Inc. v. FEC, No. CV04 1260DBS 

RWR RJL (D.D.C. Dec. 21 2006). The IRS provides that 
26 

[a g]rass roots lobbying communication is any 

attempt to influence any legislation through an 

attempt to affect the opinions of the general 

public or any segment thereof and has three 

required elements: [It] (A) [r]efers to specific 

legislation * * *, (B) [r]eflects a view on such 

legislation, and (C) [e]ncourages the recipient 

of the communication to take some action with 

respect to such legislation * * * . 

26 C.F.R. 56.4911-2(b)(2)(i)-(ii). As WRTL noted in the 

district court, “grassroots lobbying” is contrasted to “political 

intervention,” which is more heavily regulated. “Political 

intervention” is defined as an “exempt function,” which 

means the function of influencing or 

attempting to influence the selection, 

nomination, election, or appointment of any 

individual to any Federal, State, or local public 

office or office in a political organization, or 

the election of Presidential or Vice Presidential 

electors, whether or not such individual or 

electors are selected, nominated, elected, or 

appointed. 

26 U.S.C. 527(e)(2). Adopting just the IRS’s definition of 

grassroots lobbying, as WRTL’s seemed to suggest below, 

would pose several problems. 

First, it would not even fit the facts of this case. Although 

WRTL repeatedly argues that its ads are intended to influence 

public opinion on “legislation,” they do not do so under the 

IRS’s definition. All three ads take a position on filibustering 

of judicial nominees. Under the IRS framework, this 

constitutes restricted “political intervention” since it 

“attempt[s] to influence the selection * * * or appointment of 

any individual to any Federal * * * office * * * .” Id. The 
27 

ads, moreover, do not meet a single one of the definition’s 

requirements for grassroots lobbying. They neither “refe[r] to 

specific legislation,” “reflec[t] a view on such legislation,” 

nor “encourage[e] the recipient of the communication to take 

some action with respect to such legislation” as the IRS 

defines it. 26 C.F.R. 56.4911-2(b)(2)(i)-(ii). Filibustering of 

nominees simply does not concern “legislation” as defined. 

See id. 56.4911-2(d)(1) (defining “legislation”). And, even if 

it did, WRTL’s failure to include any contact information in 

the ads themselves would independently disqualify them. See

id. 56.4911-2(b)(2)(iii)(B) (requiring that communication 

“[s]tate the address, telephone number or similar information 

of a legislator”). In other words, even the capacious test 

WRTL suggested below would offer its own ads no 

protection. 

More importantly, the IRS test would exempt from 

coverage many electioneering communications that are “the 

functional equivalent of express advocacy,” whose funding 

this Court has found Congress can regulate. McConnell, 540 

U.S. at 206. Several of the ads Senator McConnell cited as 

protected issue advocacy in his leading brief in McConnell, 

for example, meet the IRS test. Still more troubling, the one 

ad this Court cited in McConnell as a clear example of sham 

issue advocacy would pass it as well with one minor 

emendation. In McConnell, this Court noted that although 

ads avoiding express words of advocacy “do not urge the 

viewer to vote for or against a candidate in so many words, 

they are no less clearly intended to influence the election.” 

Id. at 193. In a footnote, it then gave a strong example: 

One striking example is an ad that a group 

called “Citizens for Reform” sponsored during 

the 1996 Montana congressional race, in which 

Bill Yellowtail was a candidate. The ad stated: 

“Who is Bill Yellowtail? He preaches 

family values but took a swing at his wife. 
28 

And Yellowtail’s response? He only slapped 

her. But ‘her nose was not broken.’ He talks 

law and order ... but is himself a convicted 

felon. And though he talks about protecting 

children, Yellowtail failed to make his own 

child support payments—then voted against 

child support enforcement. Call Bill 

Yellowtail. Tell him to support family 

values.” 

The notion that this advertisement was 

designed purely to discuss the issue of family 

values strains credulity. 

Id. at 193-94 n.78 (internal citations omitted). Even though 

this Court found the notion that this ad discusses mere issues 

“strains credulity,” the ad itself would be protected as 

“grassroots lobbying” under the IRS’s test if only a reference 

to specific “family values” legislation and Bill Yellowtail’s 

phone number were added. In that case, it would meet all 

three parts of the IRS test. It would (1) “refe[r] to specific 

legislation”, (2) “reflec[t] a view on such legislation,” and (3) 

“encourage[e] the recipient of the communication to take 

some action with respect to such legislation.” In other words, 

the definition WRTL itself proposed below could exempt 

even the most egregious ads in McConnell as “grassroots 

lobbying.” 
29 

CONCLUSION

For the foregoing reasons, the judgment of the district 

court should be reversed. 

 Respectfully submitted, 

 

 DANIEL R. ORTIZ 

 Counsel of Record 

 UNIVERSITY OF VIRGINIA 

 SCHOOL OF LAW* 

 580 Massie Road 

 Charlottesville, VA 22903 

 (434) 924-3127 

FEBRUARY 2007 

 *Affiliation listed for 

 address purposes only.