No. 02-1674 & Consolidated Cases 

IN THE 

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———— 

MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF OF AMICUS CURIAE THE LEAGUE 

OF WOMEN VOTERS OF THE UNITED STATES 

IN SUPPORT OF APPELLEES 

———— 

LLOYD LEONARD DANIEL R. ORTIZ 

LEAGUE OF WOMEN VOTERS Counsel of Record 

OF THE UNITED STATES UNIVERSITY OF VIRGINIA 

1730 M Street, N.W. SCHOOL OF LAW 

Suite 1000 580 Massie Rd. 

Washington, DC 20036 Charlottesville, VA 22903 

(202) 229–1965 (434) 924–3127 

Counsel for Amicus Curiae 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................... iii 

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

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

ARGUMENT................................................................. 6 

I. BCRA’S REGULATION OF ELECTIONEERING COMMUNICATIONS, UNLIKE 

REGULATION UNDER THE PRIOR 

“MAGIC WORDS” TEST, PREVENTS 

CORRUPTION AND THE APPEARANCE 

OF CORRUPTION WITHOUT IMPERMISSIBLY BURDENING SPEECH ................ 6 

A. 	Disclosing Election Spending and Stopping Corporations and Unions from 

Spending From Their General Treasures to 

Influence Federal Elections Represent Two 

Central Safeguards Against Corruption and 

the Appearance of Corruption in Federal 

Elections....................................................... 6 

B.	 Identifying Advertisements Designed to 

Influence Federal Elections Through 

“Magic Words” Undermines These Two 

Central Safeguards Against Corruption....... 8 

II. THE BUYING TIME STUDIES ON WHICH 

A MAJORITY OF THE DISTRICT COURT 

RELIED IN UPHOLDING SEVERAL OF 

BCRA’S CENTRAL PROVISIONS ARE 

RELIABLE AND STRONGLY SUPPORT 

BCRA’S PRIMARY DEFINITION OF 

ELECTIONEERING COMMUNICATIONS ... 18 

(i) 
ii 

TABLE OF CONTENTS—Continued 

Page 

A. 	A Majority of the District Court Clearly 

Rejected the Plaintiffs’ Attacks on the 

Buying Time Studies .................................... 18 

B.	 Plaintiffs Are Wrong in Claiming that the 

Authors of the Buying Time Studies 

Improperly Recoded Data ............................ 23 

C. 	 The Buying Time Studies Strongly 

Support BCRA’s Primary Definition of 

Electioneering Communications.................. 26 

CONCLUSION.............................................................. 29 
iii 

TABLE OF AUTHORITIES 

CASES Page 

Buckley v. Valeo, 424 U.S. 1 (1976)...................... 4, 6, 8 


Communist Party v. Control Board, 367 U.S. 1


(1961)................................................................. 6 


FEC v. Beaumont, 123 S.Ct. 2200 (2003) ............. 7, 8 


First Nat’l Bank of Boston v. Bellotti, 435 U.S. 


765 (1978).......................................................... 8 


United States v. Auto. Workers, 352 U.S. 567


(1957)................................................................. 7 


STATUTES 

Act of Jan. 26, 1907 (Tillman Act), ch. 420, 34 


Stat. 864 ............................................................. 7 


Act of June 25th, 1910, ch. 392, 36 Stat. 822........ 6 


Bipartisan Campaign Reform Act (BCRA) of 


2002, Pub. L. No. 107-155, 116 Stat. 81 


(2002)................................................................. 3 


Federal Corrupt Practices Act, 1925, ch. 368, tit.


3, 43 Stat. 1053, 1070-74................................... 6 


Federal Election Campaign Act (FECA) of 1971, 


Pub L. No. 92-225, 86 Stat. 3 ............................ 6 


OTHER AUTHORITIES 

148 Cong. Rec. S2116 (daily ed. March 20,


2002) .................................................................. 9 


148 Cong. Rec. S2117 (daily ed. March 20,


2002) .................................................................. 9 


148 Cong. Rec. S2141 (daily ed. March 20,


2002) .................................................................. 9 


Annenberg Public Policy Center, Issue 


Advertising in the 1999-2000 Election Cycle


(2001)................................................................. 21, 22 


Deborah Beck, et. al., Annenberg Public Policy


Center, Issue Advertising During the 1996 


Campaign (1997) ............................................... 2 

iv 

TABLE OF AUTHORITIES—Continued 

Page 

Erika Falk, Annenberg Public Policy Center, 

Legislative Issue Advertising in the 107th 

Congress (2003)................................................. 17 

Jonathan S. Krasno & Daniel E. Seltz, Brennan 

Center for Justice, Buying Time: Television 

Advertising in the 1998 Congressional 

Elections (2000)................................................. 18 

Leslie Wayne, A Back Door for the Conservative 

Donor, N.Y. Times, May 22, 1997, at B10 ....... 4 

Louis D. Brandeis, Other People’s Money 

(National Home Library Foundation Ed. 

1933) .................................................................. 4 

Senate Comm. on Governmental Affairs, Investigation of Illegal or Improper Activities in 

Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-177 (1998) .................. 10, 11 
IN THE 

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———— 

No. 02-1674 & Consolidated Cases 

———— 

MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

———— 

On Appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF OF AMICUS CURIAE THE LEAGUE 

OF WOMEN VOTERS OF THE UNITED STATES 

IN SUPPORT OF APPELLEES 

———— 

INTEREST OF AMICUS 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 a thousand communities in every state and has more than 

125,000 members and supporters nationwide. The League 

1

 The Department of Justice has consented to the filing of this brief in a 

letter which accompanies this filing. All other parties have filed written 

consents to the filing of amicus briefs with the Court. No counsel for any 

party authored this brief in whole or in part and no person or entity other 

than the amicus curiae, its members, or counsel made any monetary 

contribution to its preparation or submission. 
2 

was organized in 1919 as an outgrowth of the 72-year 

struggle to win voting rights for women in the United States. 

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

governmental system that is representative, accountable, and 

responsive, that protects individual liberties established by the 

Constitution, 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. The League thus has a strong and direct 

interest in this case. 

SUMMARY OF ARGUMENT 

In late October of 1996, the following television advertisement ran repeatedly in Arkansas: 

Senate candidate Winston Bryant’s budget as Attorney General increased seventy-one percent. Bryant has 

taken taxpayer funded junkets to the Virgin Islands, 

Alaska, and Arizona. And spent about $100,000 on new 

furniture. Unfortunately, as the state’s top law enforcement official, he’s never opposed the parole of any 

convicted murderers. And almost 4,000 Arkansas prisoners have been sent back to prison for crimes committed while they were out on parole. Winston Bryant: 

government waste, political junkets, soft on crime. 

Deborah Beck, et. al., Annenberg Public Policy Center, Issue 

Advocacy During the 1996 Campaign 24 (1997). Winston 

Bryant was running for an open seat in the United States 

Senate. The tax-exempt organization that sponsored the ad, 

Citizens for the Republic Education Fund, spent more than 

$300,000 on a last-minute television blitz of Little Rock and 

Jonesboro. Bryant lost. Id. Such advertisements come as 

little surprise, of course. They are a powerful part of many 

campaign strategies. 
3 


What is surprising is that until the enactment of the 

Bipartisan Campaign Reform Act (BCRA), Pub. L. No. 107-

155, 116 Stat. 81 (2002), such advertisements were not 

treated as electioneering speech under federal law. Despite 

their appearance on the eve of the election, their unmistakable 

mention of a particular federal candidate, their targeting of 

the candidate’s electorate, and their appearance on television, 

the courts would have treated such ads as “issue” advocacy. 

By avoiding the use of “magic words”—express terms like 

“vote for,” “elect,” “support,” “vote against,” “defeat,” and 

“reject”—they fell outside of coverage. Even if they were 

designed to promote a particular candidate, continuously 

featured that candidate, swayed voters to the candidate’s 

favor, and did not even mention a traditional issue, they were 

treated as simple “issue” ads. 

“Issue” advocacy thus became a peculiar term of legal art. 

It indicated nothing about what an advertisement said or 

concerned. It signified only that a few particular words were 

missing. An ad could educate on a burning social issue or 

shamelessly shill for a candidate. But whatever its content, so 

long as no magic words appeared, it was completely immune 

from the sort of reasonable source and disclosure rules that 

have long applied to campaign advocacy. 

By making the absence of a few particular words all that 

mattered, the “magic words” approach undermined two of the 

longest-standing and most central architectural features of 

American campaign finance regulation: the disclosure of 

political spending and the bar against direct corporate and 

union spending to influence federal elections. By omitting a 

few particular words, individuals and entities could spend 

unlimited amounts to campaign for federal candidates without 

ever having to disclose their activities. In the Bryant blitz, for 

example, the citizens of Arkansas did not know the taxexempt sponsor’s identity, let alone the individuals or 

corporations or unions that may have funded the tax-exempt’s 
4 


political activities. See, e.g., Leslie Wayne, A Back Door for 

the Conservative Donor, N.Y. Times, May 22 1997 at B10. 

Only after much research by the press did the identity of the 

tax-exempt itself become clear. No research, however, was 

able to uncover the identity of any individuals, corporations, 

or unions that may have donated money to the tax-exempt for 

these particular advertisements. As this Court has repeatedly 

observed: “Publicity is justly commended as the remedy for 

social and industrial diseases. Sunlight is said to be the best 

of disinfectants; electric light the most efficient policeman.” 

Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting L. Brandeis, 

Other People’s Money 62 (Nat’l Home Library Found. ed. 

1933)). But the absence of “magic words” bars all disclosure. 

Without “magic words,” moreover, corporations and 

unions could have used the tax-exempt as a conduit to run 

this ad throughout the campaign season, or, indeed, have paid 

for it themselves. So long as they did not use “magic words” 

nothing stopped them from spending whatever they wanted to 

advocate the election or defeat of particular federal candidates. The addition of two words—“vote against”—at the 

end of the Bryant ad would have made all the difference. The 

“magic words” test would certainly have prevented a corporation or union from funding that. But that is of little concern 

to the corporate or union sponsor. If anything, using such 

words makes ads less effective. 

Understanding this history—indeed, documenting it in a 

detailed factual record—Congress enacted BCRA, which 

sought to return campaign finance regulation to steadier 

footing. By applying an objective test which looked at 

whether a clearly identified federal candidate was mentioned, 

the medium, the targeting, and the timing of the communication, BCRA aimed to reach “issue” ads that looked the 

same as–and presumably were as effective as–the ads that 

candidates ran on their own behalf. This represented modest 

change. It merely sought to subject to longstanding dis-
5 


closure and source requirements those advertisements that 

looked like the campaign ads candidates themselves run. 

Such a small and sensible step would prevent circumvention 

of this country’s basic safeguards against corruption and the 

appearance of corruption. 

A majority of judges on the district court found that several empirical studies supported this modest step. Of these 

studies, Plaintiffs challenge two: the Buying Time studies. 

These particular studies surveyed political television advertising from the 1998 and 2000 election cycles and concluded 

that very few issue ads would have been mistakenly caught 

by BCRA’s primary definition of “electioneering communication.” After carefully considering Plaintiffs’ general 

claims that the Buying Time studies were biased and 

untrustworthy, a majority of the judges properly rejected 

those claims. Plaintiffs’ more detailed methodological claims 

also fail. They complain first that some of the data underlying the Buying Time studies was improperly recoded. The 

recoding they complain of, however, was approved by their 

own expert and nothing suggests that the recoding they 

themselves propose and on which they base many of their 

own numbers more accurately reflects the actual judgments of 

the original coders, let alone the content of the ads 

themselves. The contrary, in fact, is more likely true. Their 

second complaint goes to the choice of metric employed by 

one of the studies. Although they assert it is unhelpful to 

overbreadth analysis, the opposite is the case. It strongly 

demonstrates the care and caution Congress took in entering 

this sensitive area. 
6 

ARGUMENT 

I. 	BCRA’S REGULATION OF ELECTIONEERING COMMUNICATIONS, UNLIKE REGULATION UNDER THE PRIOR “MAGIC WORDS” 

TEST, PREVENTS CORRUPTION AND THE 

APPEARANCE OF CORRUPTION WITHOUT 

IMPERMISSIBLY BURDENING SPEECH. 

A.	 Disclosing Election Spending and Stopping 

Corporations and Unions from Spending from 

Their General Treasuries to Influence Federal 

Elections Represent Two Central Safeguards 

Against Corruption and the Appearance of 

Corruption in Federal Elections. 

Congress first required the disclosure of certain campaign 

contributions in 1910, and has since expanded this requirement to a much wider range of campaign spending.

2 This 

Court has recognized that such disclosure serves three 

important interests that underpin the “free functioning of our 

national institutions.” Buckley v. Valeo, 424 U.S. 1, 66 

(1976) (quoting Communist Party v. Control Board, 367 

U.S. 1, 97 (1961)). First, disclosure provides voters with 

information about where money comes from and how it is 

spent. Such information helps voters better evaluate 

candidates and determine where they stand. Id. at 66-67. 

Second, disclosure prevents actual corruption and the 

appearance of corruption. By giving voters information about 

the ties of elected officials to their financial supporters, it 

deters contributions made with an eye to special favors and, 

should any be made, allows voters more easily to detect them. 

Id. at 67. Third, disclosure is “an essential means of 

2 See e.g., Act of June 25th, 1910, ch. 392, 36 Stat. 822; Federal 

Corrupt Practices Act, 1925, ch. 368, tit. 3, 43 Stat. 1053, 1070-79; 

Federal Election Campaign Act of 1971 (FECA), Pub L. No. 92-225, 86 

Stat. 3. 
7 


gathering the data necessary to detect violations of . . . 

contribution limitations,” id. at 68, which are independently 

necessary to prevent corruption. In short, disclosure represents one of the most important means of securing the public 

legitimacy of our political institutions because it provides 

voters important political information, because it directly 

deters corruption, and because it allows for the enforcement 

of independent safeguards, like contribution limits. 

Source requirements preventing business corporations and 

unions from spending money from their general treasuries to 

influence federal elections are even longer-standing. Since 

1907, Congress has carefully regulated corporate political 

activity. In that year, Congress passed the Tillman Act, 

which made it “unlawful for any national bank, or any 

corporation organized by authority of any laws of Congress, 

to make a money contribution in connection with any election 

to any political office.” Act of Jan. 26, 1907, ch. 420 34 Stat. 

864. Over the years, this rule was extended to cover both 

contributions and independent expenditures by both business 

corporations and unions. See, e.g., United States v. Auto. 

Workers, 352 U.S. 567, 570-84 (1957) (recounting history). 

From the beginning, the law has focused on the “special 

characteristics of the corporate structure that threaten the 

integrity of the political process.” FEC v. Beaumont, 123 

S.Ct. 2200, 2206 (2003) (internal citations and quotation 

marks omitted). Because “[s]tate law grants corporations 

special advantages . . . that enhance their ability to attract 

capital and to deploy their resources in ways that maximize 

the return on their shareholders’ investments . . . corporations 

. . . [can] use resources amassed in the economic marketplace 

to obtain an unfair advantage in the political marketplace.” 

Id. (internal citations and quotation marks omitted). As this 

Court has long recognized, “barring corporate earnings from 

conversion into political war chests . . . prevent[s] corruption 

or the appearance of corruption,” id. (internal citations and 

quotation marks omitted), the importance of which “has never 
8 

been doubted,” First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 788 n.26 (1978). Barring corporate contributions 

and expenditures also helps prevent the use of corporations 

“as conduits for circumvention of valid contribution limits.” 

Beaumont, 123 S.Ct. at 2207 (internal citations, brackets, and 

quotation marks omitted). Together the disclosure and source 

requirements barring corporate and union spending to 

influence federal elections are two of the primary bulwarks 

against corruption. 

B.	 Identifying Advertisements Designed to Influence Federal Elections Through “Magic 

Words” Undermines These Two Central Safeguards Against Corruption. 

In Buckley, this Court considered the statutory meaning of 

“expenditures . . . advocating the election or defeat of [a 

clearly identified] candidate.” 434 U.S. at 41-51. In order to 

avoid possible void-for-vagueness difficulties (in the case of 

spenders other than candidates and political committees, 

including political parties), this Court “limited [the term] to 

communications that include explicit words of advocacy of 

election or defeat of a candidate,” id. at 43, and in a footnote 

“restrict[ed its] 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. 

Nowhere did this Court indicate that such “magic words” 

were constitutionally required for Congress ever to impose 

disclosure and source requirements. Rather, this Court 

narrowly held that given the uncertain reach of this particular 

term, it had to be given more objective contours. Otherwise, 

speakers would not know ahead of time what they could and 

could not say. They would always be at the mercy of their 

audience, for no matter how carefully they crafted their 

speech to avoid advocacy, their audience could interpret it 

differently. Id. at 42-44. The lesson of Buckley, in other 
9 

words, is not that the First Amendment requires the use of 

“magic words,” but rather that covered spending must be 

defined objectively—just as BCRA’s primary definition of 

“electioneering communications” does. Definitions that rely 

largely on subjective audience understanding or speaker 

intent are constitutionally problematic. 

After carefully surveying the landscape of political 

advertising, Congress found that the “magic words” test did 

not work.3 First, few modern campaign ads use any “magic 

words.” Uncontroverted evidence before the district court4 

showed that only 11.4 percent of the 433,811 advertisements 

aired by candidates during the 2000 federal election met the 

express advocacy test laid down in Buckley. Supp. App. at 

659sa, 763sa-764sa (Kollar-Kotelly, J.). Second, candidates 

and political consultants have found it very easy to evade 

magic words in their advertising. In 1996, for example, the 

Republican National Committee (“RNC”) ran the following 

ad, called “The Story,” on television before the election: 

Audio of We have a moral obligation to give our 

Bob Dole: children an America with the opportunity and 

values of the nation we grew up in. 

Voice Over: 	 Bob Dole grew up in Russell, Kansas. From 

his parents he learned the value of hard work, 

honesty and responsibility. So when his 

3 See, e.g., 148 Cong. Rec. S2116 (daily ed. March 20, 2002) (statement of Sen. Levin) (“magic words . . . are not a complete test of what 

constitutes electioneering ads”); id. at S2117 (statement of Sen. Jeffords) 

(“the ‘magic words’ standard . . . has been made useless”); id. at S2141 

(statement of Sen. McCain) (“even a casual observer would concede that 

‘magic words’ is a dramatically underinclusive test”). 

4 The filing of a Joint Appendix in this case has been deferred. Citations to the original record are made where necessary pursuant to this 

Court’s Rule 26.4(b). The opinions of the district court are reprinted in 

the Joint Supplemental Appendix to Jurisdictional Statements, cited herein 

as Supp. App. at 1sa-1382sa. 
10 

country called . . . he answered. He was 

seriously wounded in combat. Paralyzed, he 

underwent nine operations. 

Audio of I went around looking for a miracle that 

Bob Dole: would make me whole again. 

Voice Over: 	 The doctors said he’d never walk again. But 

after 39 months, he proved them wrong. 

Audio of 

Elizabeth 

Dole: 

He persevered, he never gave up. He fought 

his way back from total paralysis. 

Voice Over:	 Like many Americans, his life experience 

and values were as a strong moral compass. 

The principle of work to replace welfare. 

The principle of accountability to strengthen 

our criminal justice system. The principle of 

discipline to end wasteful Washington 

spending. 

Voice of 

Bob Dole: 

It all comes down to values. What you 

believe in. What you sacrifice for. And what 

you stand for. 

Senate Comm. on Governmental Affairs, Investigation of 

Illegal or Improper Activities in Connection with 1996 

Federal Election Campaigns, S. Rep. No. 105-177, at 4014 

(1998). “The Story” focused entirely on the personality traits 

and affect of Bob Dole, not on any issues. Although the 

RNC’s political director thought that it “need[ed] to be run,” 

he worried that “[m]aking this spot pass the issue advocacy 

test may take some doing.” Id. at 4015. He need not have 

worried. As Bob Dole himself explained to Ted Koppel 

when asked why such an ad would be considered “generic,” 

i.e., issue advocacy, “It doesn’t say ‘Bob Dole for president.’ 

. . . [I]t talks about the Bob Dole story. It also talks about 

issues. It never mentions the word that I’m—it never says 
11 

that I’m running for president, though I hope that it’s fairly 

obvious, since I’m the only one in the picture!” Id. at 4154. 

The audience laughed. The absence of four little words made 

all the difference. 

Third, “magic words” make advertisements, if anything, 

less effective. The uncontroverted testimony of political 

consultants in the district court was that “magic words” were 

clumsy and weakened political advertisements. Republican 

political consultant Douglas L. Bailey, for example, testified 

that “[i]n the modern world of 30 second political advertisements, it is rarely advisable to use such clumsy words as 

‘vote for’ or ‘vote against.’ . . . . All advertising professionals 

understand that the most effective advertising leads the 

viewer to his or her own conclusion without forcing it down 

their throat.” Supp. App. at 660sa (Kollar-Kotelly, J.). 

Likewise, Democratic political consultant Raymond Strother 

testified that 

media consultants prefer putting across electioneering 

messages without using words such as ‘vote for.’ Good 

media consultants never tell people to vote for Senator 

X; rather you make your case and let the voters come to 

their own conclusions. In my experience, it actually 

proves less effective to instruct viewers what you want 

them to do. 

Id. at 662sa. In this respect, political advertising is just like 

commercial advertising. As two experts pointed out, 

the practices of political advertisers are not dissimilar 

from those of commercial advertisers. Car ads rarely 

exhort viewers to “buy” a Chevrolet, nor do soft drink 

ads urge people to “drink” their product. . . . This 

atmospheric approach to commercial advertising— 

where the product is presented in various tableaus—has 

become increasingly popular. It serves the general 

strategy of advertisers to present viewers with a variety 

of reasons to choose their product, hoping that they will 

latch onto one. Too heavy-handed an approach might 
12 

interfere with this process by raising viewers’ defenses. 

Political ads seem to follow the same strategy, hoping 

that citizens will grow to prefer a candidate without 

being told to troop to the polls. 

Id. at 663-64sa (quoting Krasno and Soraf Expert Report at 

54). Like any good advertiser, those advertising candidates 

avoid “magic words” because they want to make their pitch 

as effective as possible. 

The “magic words” test, then, ironically identifies as campaign advertising those ineffective ads that candidates 

themselves seldom use. It classifies as pure issue advocacy, 

by contrast, exactly the kinds of effective campaign advertising the candidates themselves do use. It gets the real world 

backwards. In a sense, the “magic words” test works only to 

protect political advertisers from making stupid decisions. 

Because it compels disclosure of and keeps corporations and 

unions from using treasury funds to engage in the least 

effective forms of candidate advocacy, it encourages more 

effective forms. Can that be the purpose of the First 

Amendment? 

By classifying nearly all campaign advocacy by independent spenders as issue advocacy, the “magic words” test 

clearly undermines ordinary disclosure requirements, which 

give voters important information and prevent corruption. In 

three 2000 Republican primaries, for example, an organization called “Republicans for Clean Air” sponsored ads 

praising then-Governor Bush and criticizing Senator McCain. 

After the first of these primaries, reporters discovered that 

“Republicans for Clean Air” consisted of two brothers, 

Charles and Sam Wyly, who were long-term friends of 

Governor Bush. One was, in fact, an authorized fundraiser 

for the Bush campaign. According to the press, the Wylys 

spent $2.5 million on the ads. When their identities were 

uncovered in a later primary, much bad publicity ensued and 

the Bush campaign felt compelled to distance itself from 

them. In short, the “magic words” test allowed this major 
13 


advertising campaign to be conducted in secrecy and the 

eventual public reaction shows how greatly the identity of 

the sponsors mattered to voters. See Supp. App. at 97-99sa 

(per curiam). 

As political consultant Raymond Strother stated, 

one of the biggest problems that a candidate’s media 

consultant now faces is the lack of disclosure associated 

with third parties running these ads. A few years ago, 

Jill Docking ran for the United States Senate against 

Sam Brownback in Kansas. . . . In the last two weeks of 

a very tight election, an unidentifiable group came in and 

poured a million dollars into the race. They ran [ads] 

throughout Kansas telling voters that Jill wasn’t a 

Christian, and all we could find was a fax machine. We 

had no idea where the money came from. I have had 

similar experiences in other races as well. Without 

knowing who is funding the groups that run these ads, 

we are often unable to correct the distortions. 

Id. at 93sa-94sa. Without disclosure, voters cannot evaluate 

candidates by seeing who supports them, cannot easily recognize corruption in any special favors given to the funders of 

these ads, and cannot tell whether the spending effectively 

represents a circumvention of the contribution limitations. 

Similarly, the “magic words” test allows corporations and 

unions to evade the prohibitions against spending directly 

from their general treasuries to influence federal elections. By carefully avoiding “magic words,” for example, 

the National Rifle Association (“NRA”), a § 501(c)(4) taxexempt entity, successfully evaded the campaign finance 

law’s source requirements. It sponsored much advertising to 

influence the 2000 federal elections. Executive Vice President of the NRA, Wayne LaPierre, stated in a fundraising 

letter that he “spent what it took [in 2000] to defeat Al Gore, 

which amounted to millions more than we had on hand.” 

Supp. App. at 693sa-694sa (Kollar-Kotelly, J.). He later 

testified that “[w]e took some money out of the reserves to 
14 

cover the deficit . . . . [The Gore advertising] was probably ... 

the main contributing factor.” Id. The NRA ran several 

different Gore ads—some funded out of its general treasury 

funds and some funded by the NRA Political Victory Fund, 

its affiliated political action committee. The small differences between some of the ads run by the NRA and those run 

by its PAC show what little difference there is between 

advertisements that do and do not use “magic words.” The 

ads were virtually identical. The ones paid for from 

the corporation’s general treasury simply omitted a few 

express terms: 

NRA PAC Advertisement 

HESTON: 

Did you know that right 

now in federal court, Al 

Gore’s Justice Department 

is arguing that the Second 

Amendment gives you no 

right to own any firearm? 

No handgun, no rifle, no 

shotgun. 

And when Al Gore’s top 

government lawyers make it 

to the U.S. Supreme Court 

to argue their point, they 

can have three new judges 

handpicked by Al Gore if 

he wins this election. 

NRA Direct (Non-PAC) 

Advertisement 

HESTON: Other issues 

may come and go, but no 

issue is as important as our 

freedom. And the day of 

reckoning is at hand. 

Did you know that right 

now in federal court, Al 

Gore’s Justice Department 

is arguing that the Second 

Amendment gives you no 

right to own any firearm? 

No handgun, no rifle, no 

shotgun. 

And when Al Gore’s top 

government lawyers make it 

to the U.S. Supreme Court 

to argue their point, they 

can have three new judges 

handpicked by Al Gore if 

he wins this election. 
15 

Imagine . . . what would 

Supreme Court Justices 

Hillary Clinton, Charlie 

Schumer, and Dianne Feinstein do to your gun rights? 

And what you think 

wouldn’t matter any more. 

Because the Supreme Court 

has the final say on what 

the Constitution means. 

When Al Gore’s Supreme Court agrees with Al 

Gore’s Justice Department and bans private 

ownership of firearms, 

that’s the end of your Second Amendment rights. 

Please, vote freedom 

first. Vote George W. 

Bush for President. 

ANNCR: Paid for by 

the NRA Political 

Victory Fund and not 

authorized by any 

candidate or candidate’s 

committee. 

Imagine . . . what would 

Supreme Court Justices 

Hillary Clinton, Charlie 

Schumer, and Dianne Feinstein do to your gun rights? 

And what you think 

wouldn’t matter any more. 

Because the Supreme Court 

has the final say on what 

the Constitution means. 

When Al Gore’s Supreme Court agrees with Al 

Gore’s Justice Department and bans private 

ownership of firearms, 

that’s the end of your 

Second Amendment rights. 

ANNCR: Paid for by the 

National Rifle Association. 

Id. at 695sa-696sa. (differences between ads bolded). NRA 

Executive Vice President Wayne LaPierce described the two 

scripts as “exactly the same” because, he admitted, the 

reference to “the day of reckoning . . . at hand” in the NRA ad 

was to the day of the 2000 election. Id. at 697sa. 
16 


Uncontroverted testimony in the district court showed, 

moreover, that candidates track these advertisements and who 

funds them. Lobbyist Wright Andrews testified that 

[s]ophisticated political donors—particularly lobbyists, 

PAC directors, and other political insiders acting on 

behalf of specific interest groups—are not in the 

business of dispensing their money purely on ideological 

or charitable grounds. Rather, these political donors 

typically are trying to wisely invest their resources to 

maximize political return. . . . [Issue ads] are noticed by 

the elected officials on whose behalf, or against whom, 

[they] are run. An effective advertising campaign may 

have far more effect on a member than a direct campaign 

contribution or even a large soft money donation to his 

or her political party that is used for political purposes in 

his or her district or state. 

Id. at 709sa-710sa. So helpful are these ads, in fact, that 

politicians who benefit from this type of corporate and union 

general treasury fund spending often raise money for these 

organizations. Id. at 712sa. Congressman Ric Keller, for 

example, for whose 2000 campaign the Club for Growth had 

funded advertising, signed a Club for Growth fundraising 

letter which stated: “The Club for Growth selected my race as 

one of its top priorities. . . . . Since the Club targets the most 

competitive races in the country, your membership in the 

Club will help Republicans keep control of Congress.” Id. 

(emphasis in original). 

Although the number of entities funding these advertisements has grown, only a handful account for most of the 

influence. In the 1999-2000 election cycle, for example, the 

Republican and Democratic parties accounted for 31 percent 

of this spending; Citizens for Better Medicare, 13 percent; the 

Coalition to Protect America’s Health Care, 6 percent; the 

U.S. Chamber of Commerce, 5 percent; AFL-CIO, 4 percent; 

NRA, 4 percent; and U.S. Term Limits, 4 percent. Id. at 

655sa. Just the six leading nonparty entities accounted for 36 
17 

percent of the spending—more than the parties themselves 

(31 percent) and more than all other organizations combined 

(33 percent). Two of these six entities, in fact, represented 

the same type of special interest. Far from being “a grassroots generated group of citizens,” Citizens for Better 

Medicare was “an arm of the Pharmaceutical Research and 

Manufacturers Association” and the Coalition to Protect 

America’s Health Care worked under the umbrella of the 

American Hospital Association, Erika Falk, Annenberg 

Public Policy Center, Legislative Issue Advertising in the 

107th Congress 62, 64 (2003) (internal citations omitted). As 

these figures show, far from broadening the spectrum of 

political debate, the ability to spend from general treasury 

funds constricts it. It concentrates the threat of corruption. 

The “magic words” test, then, has undermined two of the 

central protections against corruption and the appearance of 

corruption—the disclosure of campaign spending and the bar 

against funding electioneering activity from general union 

and corporate treasuries—that FECA was intended to support. 

The test paradoxically allows corporations and unions to use 

their treasuries to fund only the kinds of advertisements that 

candidates now usually employ to promote their own 

candidacy—those without “magic words.” And it discourages only the kinds of advertisements that candidates 

themselves now seldom use because they think them 

ineffective—those with “magic words.” The test, in short, 

allows corporate earnings and union dues to be easily 

converted into political “war chests,” the influence of which 

is often invisible to voters. 
18 


II. 	THE BUYING TIME STUDIES ON WHICH A 

MAJORITY OF THE DISTRICT COURT 

RELIED IN UPHOLDING SEVERAL OF 

BCRA’S CENTRAL PROVISIONS ARE RELIABLE AND STRONGLY SUPPORT BCRA’S 

PRIMARY DEFINITION OF ELECTIONEERING COMMUNICTATIONS. 

A. 	A Majority of the District Court Clearly 

Rejected the Plaintiffs’ Attacks on the Buying 

Time Studies. 

Plaintiffs rest much of their attack on BCRA’s handling of 

“electioneering communications” on the supposed unreliability of parts of two particular reports. These reports, the 

Buying Time studies, surveyed television ads from the 1998 

and 2000 election cycles and concluded that very few issue 

ads would be affected by BCRA’s primary definition. 

BCRA’s primary definition would, in the view of these 

studies, leave the vast majority of actual issue ads untouched. 

The 1998 study, for example, concluded, in part, that only 7% 

percent of all issue ads televised that year met BCRA’s 

primary definition. Jonathan S. Krasno & Daniel E. Seltz, 

Brennan Center for Justice, Buying Time: Television Advertising in the 1998 Congressional Elections, 109 (2000); see 

also Supp. App. at 1348sa n.213 (Leon, J.) (noting that Dr. 

Krasno’s current estimate is 6.1%). 

Plaintiffs understandably attack these studies because they 

stand so powerfully against them. Among other things, 

Plaintiffs claim that “the district court, after detailed and 

laborious consideration, unanimously rejected the conclusions 

of the Buying Time reports,” McConnell Br. at 53, that “the 

Buying Time reports were entirely and irredeemably biased,” 

id. at 53 n.18, and that “the reports’ conclusions about 

BCRA’s insignificant effect on so-called ‘genuine’ issue ads 

are insupportable,” id. at 55. Nothing could be further from 

the truth. 
19 

In their individual opinions, two of the three judges on the 

district court strongly rejected Plaintiffs’ broad-brushed 

attacks. As Judge Leon put it, “I find that although the 

Buying Time studies contain some flaws and shortcomings, 

... those shortcomings do not detract from the studies’ 

credibility and reliability.” Supp. App. at 1335sa. Judge 

Kollar-Kotelly went even further. She described Plaintiffs’ 

expert’s attempts to discredit the studies as “a piñata party: if 

one hits the piñata enough, it will eventually crack apart.” Id. 

at 764sa. In the Plaintiffs’ case, however, the expert clearly 

failed to crack the piñata. Like Judge Leon, Judge KollarKotelly extensively relied on the studies’ central findings. 

She also thought the Plaintiffs’ failure to do any independent 

studies or even to try to replicate the study they criticized 

highly significant: 

Although some of [the piñata] “hits” have merit, . . . 

neither Plaintiffs nor Dr. Gibson[, their expert,] have 

attempted to conduct their own similar study, or even 

replicate a discrete portion of the Buying Time studies, 

despite the fact that the underlying materials were 

provided to them by Defendants. Presenting the Court 

with contradictory results from such a study would have 

been far more persuasive than the recalculations of 

incorrect versions of the Buying Time data sets and the 

often conjectural and speculative criticism proffered by 

Plaintiffs and Dr. Gibson. 

Id. In fact, the Plaintiffs’ complete failure to offer their own 

studies puts them in an awkward position. Although they 

continually attack the Buying Time reports, they find themselves having to rely extensively on the underlying data— 

quarrelling with it in some places, changing it in others, but 

all the time using it to support their own arguments on 

overbreadth. See, e.g., McConnell Br. at 56 (massaging data 

to argue that “64% of ads mentioning a candidate in the 60 

days before the 1998 general election were coded . . . as 
20 


genuine”). Their own extensive reliance on the studies 

undermines their broadside attacks. 

A majority of the judges on the district court also strongly 

rejected any claim of bias. Judge Leon, for example, found 

that “while . . . the primary purpose of the Buying Time 

studies was to further campaign finance reform, I do not find 

that this fact has skewed the results of the study.” Supp. App. 

at 1335sa. Judge Kollar-Kotelly was even more forceful. “I 

would not,” she found, “discount the [Buying Time] studies 

because they were approached with a particular result in 

mind. The testimony shows that policy perspectives and 

effective scientific research are not mutually exclusive.” Id. at 

764sa. And, as to the particular actions which Dr. Gibson 

pointed to as evidence of bias—the “cleaning” of data and 

recoding—Judge Kollar-Kotelly correctly noted that “[t]he 

‘cleaning’ of the data that Dr. Gibson finds suspicious 

appears . . . to be a necessary function for databases of the 

size produced for the Buying Time reports and not a function 

of bias. Fixing miscodings and resolving the ‘cookie cutter’ 

issues required such actions.” Id. at 764sa-765sa. Judges 

Leon and Kollar-Kotelly both noted, moreover, that one of 

Dr. Gibson’s major complaints with the studies, his inability 

to reproduce their conclusions from the underlying data sets, 

resulted from his own use of the wrong data set. Id. at 1336sa 

(Leon, J.) (“[W]hile Dr. Gibson maintains that his inability to 

replicate the Buying Time . . . results ‘undermines . . . any 

confidence one should place in the findings,’ his inability 

seems attributable to his using the incorrect data set.”); id. at 

765sa (Kollar-Kotelly, J.) (“confusion . . . as to the correct 

database to use to analyze the studies’ findings decreases the 

utility of Dr. Gibson’s Expert Report”) (internal citations 

omitted). Judge Kollar-Kotelly, in fact, found that this 

confusion also “undermines the notion that the Buying Time 

authors manipulated the data in order to achieve their desired 

results.” Id. at 765sa. The charge of bias is simply empty 

of merit. 
21 

As a majority of judges pointed out, moreover, even if the 

Plaintiffs’ attacks were all credible, they would leave many of 

the conclusions of the Buying Time studies untouched. See 

Supp. App. at 1333sa-1334sa (Leon, J.); id. at 765sa (KollarKotelly, J.). First, as Dr. Gibson himself admitted, “Entirely 

objective characteristics of the ads . . . present few threats to 

reliability.” Gibson Expert Report at 11. These include such 

central findings as (1) that “magic words” are rarely used in 

political advertising, (2) that group-sponsored ads that mention candidates tend to be concentrated before an election, 

and (3) that advertisements sponsored by parties and interest 

groups comprise a significant and increasing portion of 

political advertising broadcast in federal races. Supp. App. at 

1333sa-1334sa (Leon, J.). 

Second, Plaintiffs failed to challenge the validity of other 

authoritative studies, particularly the Annenberg studies, 

which support the central findings of the Buying Time reports. 

Id. at 763sa (Kollar-Kotelly, J.) (“The Annenberg studies . . . 

have not been challenged by anyone.”). Even if Plaintiffs did 

manage to discount the Buying Time studies, these others 

would support many of the same conclusions. In particular, 

the Annenberg studies concluded that in the 1999-2000 

election cycle, candidate campaign ads virtually dominated 

all types of issue ads in the last two months of the election: 

The type of issue ad that dominated depended greatly 

on how close we were to the general election. . . . 

Though candidate-centered issue ads always made up a 

majority of issue ads, as the election approached, the 

percent [of] candidate-centered spots increased and the 

percent of legislative and image ads decreased, such that 

by the last two months before the election almost all 

televised issue spots made a case for or against a 

candidate. 

Annenberg Public Policy Center, Issue Advertising in the 

1999-2000 Election Cycle 14 (2001), quoted and emphasis 

added in Supp. App. at 654sa (Kollar-Kotelly, J.). The 
22 

Annenberg studies, in fact, produced a bottom line for the 

2000 election remarkably close to the one the Buying Time 

reports produced for the 1998 election: “Fully 94% of issue 

ads aired in after August[, 2000] made a case for or against a 

candidate. Just 3.1% were legislative [issue] ads, and 2.3% 

were general image ads.” Id., quoted in Supp. App. at 726sa 

(Kollar-Kotelly, J.). 

The findings of the uncontroverted Annenberg studies not 

only bolster the conclusions of the Buying Time reports, but 

also underscore the perversity of the “magic words” test. 

Among the conclusions of the Annenberg studies were (1) the 

amount of money spent on “issue advocacy” is rising rapidly; 

(2) instead of creating the number of voices Buckley v. Valeo 

had hoped, issue advocacy allow[s] groups such as the 

parties, business and labor to use soft money or general 

treasury “war chests” to gain a louder voice; (3) the 

distinction between issue advocacy and express advocacy is a 

fiction; and (4) “issue” advocacy, as practiced in recent 

elections, masks the identity of some key players and so 

deprives citizens of information about source of messages 

which research tells us is a vital part of assessing message 

credibility. Id. at 2, quoted in Supp. App. at 657sa (KollarKotelly, J.). In addition, the unrebutted findings of Dr. 

Goldstein about the 2000 election showed that (1) interest 

group advertising that mentioned candidates was highly 

concentrated in battleground states; (2) no more than 12% of 

candidate-sponsored advertisements in 2000 used “magic 

words”; and (3) interest group advertisements that identified a 

candidate in 2000 tended to be broadcast within the final 60 

days of the election campaign, whereas those that did not 

identify a candidate were spread more evenly throughout the 

year. See Supp. App. 763sa-764sa (Kollar-Kotelly, J.). The 

authoritative studies Plaintiffs did not challenge, then, support 

BCRA’s overall approach to electioneering communications 

just as strongly as do the studies they do attack. Even Judge 

Henderson, who criticized the Buying Time studies, relied on 
23 

these other studies in her opinion. See Supp. App. at 230sa231sa, 233sa. 

B. 	Plaintiffs Are Wrong in Claiming that the 

Authors of the Buying Time Studies Improperly 

Recoded Data. 

In the district court, Plaintiffs made one central challenge 

to the integrity of the 1998 Buying Time study. They claimed 

that the authors had improperly recoded data to recharacterize 

eight “genuine” issue ads as campaign ads. They still do. See 

McConnell Br. at 56. Judge Leon, however, who of the three 

judges considered the Buying Time studies most closely, 

found no problem here. See Supp. App. at 1344sa. He 

rightly saw that “the changes [made] in the database reflect 

the gradual filling in of missing data and the discovery of 

internal contradictions.” Id. What happened was that the 

original coders who had reviewed these eight ads had filled 

out their coding sheets in a way that was internally 

contradictory. Plaintiffs’ expert Dr. Gibson acknowledged as 

much. Gibson dep. at 116-21. Since it was impossible from 

the original coding sheets to tell how the coders would have 

properly classified these ads, they were recoded. Dr. Gibson 

agreed that that was the proper course. In fact, when asked 

what he would have done under the circumstances, he 

answered directly “I probably would have fired [the coder] 

and had the cases re-coded,” id. at 121, which—apart from 

the firing—is what the authors of the 1998 study did. When 

asked to review several of these internally contradictory 

coding sheets along with the ads they coded, Dr. Gibson 

himself indicated that it was “highly probable” that the 

original coders intended to categorize the ads as campaign 

advertising, not as issue ads. Id. at 112. Dr. Gibson, then, 

unlike the Plaintiffs themselves, did not believe that these 

eight ads should be counted as issue ads, an assumption upon 

which one of the most dramatic and misleading arguments of 

the Plaintiffs rest: “that 64% of ads mentioning a candidate in 
24 

the 60 days before the 1998 general election were coded by 

the students as ‘genuine.’” McConnell Br. at 56. That 

number cannot stand in the face of the record and Plaintiffs’ 

own expert’s testimony. 

Plaintiffs also attack the coding of the data underlying the 

Buying Time 2000 study. They incorrectly claim that 17%, 

not 2.3%, of the television ads appearing within 60 days of 

the general election were actual issue ads. To get there, they 

must recode six of seven basically identical ads that were 

widely broadcast in the 2000 campaign. This is improper. In 

his expert report analyzing the Buying Time 2000 study’s 

methodology and use of data, Defendants’ expert Professor 

Goldstein explained that one of these seven ads was 

originally coded by the students as an issue ad and the 

remaining six essentially identical ads were coded by them as 

campaign ads. See Goldstein Rebuttal Report at 16-17. 

Although the original Buying Time 2000 investigators had 

then recoded the one ad to match the six others, Professor 

Goldstein had followed the original inconsistent coding in his 

analysis. But the Plaintiffs argued in district court that the six 

should be made to conform to the one. See Pls.’ D. Ct. Reply 

Br. at 37. The Defendants and Intervenors, on the other hand, 

believed it more sensible to reclassify the one outlier rather 

than the large majority of advertisements. They did not 

object, however, to Dr. Goldstein’s adhering to the original 

inconsistent coding, the approach that led to the figure of 

2.3%. Although in deposition Plaintiffs pressed Professor 

Goldstein to reclassify the majority of ads, he agreed only 

that under the Plaintiffs’ version of “the most conservative 

estimate” the six should be made to conform to the outlier.5 

5

 Professor Goldstein’s deposition testimony proceeded as follows: 

Q:	 [I]f you believe [the six ads] are virtually indistinguishable 

[from the one other], then wouldn’t it have been fairer to 

include them in your analysis, your quote ‘conservative 

analysis’ in undertaking to prepare your expert report? 
25 

He nowhere stated that recoding six ads to conform to one 

would better reflect the ads’ content or his own “conservative 

estimate.” He merely confirmed that under “the most 

conservative estimate” any doubt—no matter how small— 

would place the ads in the genuine issue category. And it 

is this “most conservative estimate” that produces the figure 

of 17%. Supp. App. at 1353sa-1354sa, 1361sa (Leon, J.). 

If anything, controversies over recoding reflect bias in the 

Plaintiffs’ challenges to the Buying Time studies, not in the 

studies themselves. At one point in his report Dr. Gibson 

relied on a modified version of the 2000 database in which 30 

ads had been selected for recoding from campaign ads to 

issue ads by Plaintiffs’ counsel. See Gibson Expert Report 

62-63. Based on that recoding, Plaintiffs argued that the 

actual number of issue ads BCRA’s primary definition would 

have covered “would have increased by . . . 23%.” Pls.’ 

Omnibus Op. Br. (McConnell Pls.) at 69 n.34. But Dr. 

Gibson himself never understood why those ads should be 

recoded. He received no explanation from counsel and he 

could not see any reason himself.6 Indeed, Dr. Gibson never 

A:	 In retrospect, knowing that these [six] ads were originally 

coded as genuine issue ads [—a counterfactual assumption—] 

they should have been included in the most conservative 

estimate . . . . Having said that, . . . I don’t know what they 

were originally coded as. 

Goldstein dep. at 160 (emphasis added). 

6

 His deposition testimony makes this clear: 

Q:	 Now, you refer . . . to this mysterious group of 30 ads and 

[your report] says, “[t]his list was provided to me by counsel.” 

What I wan[t] to know is how were these ads selected by 

counsel for you? 

A:	 I don’t know. 

* * * 
26 

even looked at the storyboards for the recoded ads. Id. at 

181. He simply followed the directions of counsel. 

C. 	 The Buying Time Studies Strongly Support 

BCRA’s Primary Definition of Electioneering 

Communications. 

Because of a slight change of focus, the 1998 and 2000 

Buying Time studies employ somewhat different measures to 

quantify BCRA’s fit. The studies compare a single number, 

the numerator, to two other numbers, the different denominators. The common numerator consists of the number of 

pure issue ads mischaracterized as campaign advocacy under 

BCRA’s primary definition of electioneering communications. The 1998 study compares this numerator to the overall 

number of issue ads televised in that year and thus offers up a 

ratio of how many “false positives” using BCRA’s primary 

definition would create. For example, if BCRA’s primary 

definition mistakenly tagged four issue ads as campaign ads 

out of 100 issue ads televised that year, the measure would 

produce 4/100 or four percent. For 1998, this measure 

produces a result of 6.1% false positives, Supp. App. at 

1348sa n.213 (Leon, J.); for 2000, it produces a result of 

Q: [Were] these ads ... selected to illustrate that changing the . . . 

coding on relatively few ads can produce a relatively large 

swing in the percentages? 

A: Yes. . . . . 

Q: I take it you didn’t make any determination that these 30 ads 

should have been coded as genuine issue ads; is that correct? 

A: That’s correct. 

Q: Do you know now (sic) the Plaintiffs’ lawyers went about 

selecting the ads . . .? 

A: No, I don’t. 

Q: Did you have any understanding of the way in which the 30 

ads were selected? 

A: No. 

Gibson dep. at 179-81. 
27 


3.1%, id. at 1360sa. These numbers are uncontested by 

Plaintiffs, who rest their arguments on the other measure. 

The 2000 study takes a somewhat different approach. It 

compares this same numerator to the total number of ads 

covered by BCRA’s primary definition. This approach 

provides a measure of the proportion of ads BCRA’s primary 

definition classifies as campaign ads that are actually pure 

issue ads. It measures not “false positives” but rather the 

inaccuracy of BCRA’s primary definition just within the 

relatively small universe of ads it tags. Although both 

measures use the same numerator—the number of issue ads 

mischaracterized as campaign advocacy by BCRA’s primary 

definition—they employ quite different denominators and 

thus lead to different results.7 

Contrary to Plaintiffs, this denominator issue is no 

“problem” at all. These two different measures answer two 

7

 For 1998, the Defendants and Judge Leon believe that this second 

measure produces a result of 14.7%, while Plaintiffs, because they would 

recode eight campaign widely televised ads as issue ads for this year, 

believe it would produce a result of 64%. Compare Supp. App. at 1157sa 

with McConnell Br. at 56. As discussed earlier, however, their argument 

is specious. Supra at 23-24. When asked to review several of these ads 

and their internally contradictory coding sheets, Dr. Gibson, Plaintiffs’ 

own expert, indicated that it was “highly probable” that the coder 

intended to categorize the ads as candidate campaign advertising. Gibson 

dep. at 112. 

For 2000, the Defendants believe this same measure produces a result 

of 2.3%, while Plaintiffs and Judge Leon believe it produces a result of 

17%. Supp App. at 1157sa. As discussed earlier, however, this higher 

figure takes seven essentially identical ads, six of which the original 

coders characterized as campaign advocacy and one of which they 

characterized as issue advocacy, and characterizes all seven as issue 

advocacy. Supra at 24-25. At best the 17% figure can serve only as an 

upper limit. Accepting the original inconsistent coding, which itself errs 

on the side of caution, produces the figure Defendants tendered: 2.3%. 

The more reasonable approach of reclassifying the one outlier to conform 

to the other six ads would, of course, produce a still lower figure. 
28 

different questions about BCRA's effect. The original, 1998 

measure compares the number of issue ads covered by BCRA 

to all issue ads televised in that year and so measures the 

impact of BCRA on issue advertising generally. The later 

measure compares the number of issue ads covered by BCRA 

to all ads covered by BCRA and so measures the inaccuracy 

of the primary definition within the restricted domain of those 

ads it captures. Unlike the first measure, it says nothing at all 

about the accuracy of the primary definition in the total 

domain of political advertising. 

Of these two measures, only the first bears on what 

proportion of total issue advocacy is mistakenly caught by 

BCRA’s primary definition. On any view, that is a very 

small number—6.1 percent for 1998 and 3.1 percent for 2000. 

This ratio, however, actually overstates the impact of BCRA 

on issue ads for several reasons. First, the coders were given 

a stark all-or-nothing choice—the ads had to be classified 

simply as issue or candidate ads, not some mixture of both. 

Hybrid ads touting or attacking candidates on particular 

issues could thus have been coded as pure issue ads even if a 

major purpose was electioneering. Second, the coders had no 

context for the ads. An ad that appears on its surface to be 

about issues can assume a quite different role in the context 

of an actual election. An ad attacking trial lawyers, for 

example, might not have coded as a candidate ad even if in a 

particular race that ad had been aimed at one candidate 

prominently identified with that profession. Third, the study 

did not consider print ads and mass mailings, which BCRA’s 

primary definition excludes from coverage. Had they been 

included in the overall analysis, however, the proportion of 

issue advocacy covered by BCRA’s primary definition would 

have fallen greatly. The same number of televised issue ads 

would have been coded as falling under BCRA’s primary 

definition, of course, but they would have been among the 

much larger universe of televised, print, and mass mailing 

issue ads. For these reasons, then, the already low figures 
29 

that the 1998 measure produces for mischaracterized issue advocacy are upper limits. The actual 

numbers would be much lower. As the Buying Time studies 

show, BCRA’s primary definition in no way impermissibly 

burdens speech. 

CONCLUSION 

For the foregoing reasons, this Court should uphold 

BCRA’s primary definition of electioneering communications. 

LLOYD LEONARD


LEAGUE OF WOMEN VOTERS


OF THE UNITED STATES 

1730 M Street, N.W. 

Suite 1000 

Washington, DC 20036 

(202) 229–1965 

Respectfully submitted, 

DANIEL R. ORTIZ 

Counsel of Record 

UNIVERSITY OF VIRGINIA 

SCHOOL OF LAW 

580 Massie Rd. 

Charlottesville, VA 22903 

(434) 924–3127 

Counsel for Amicus Curiae