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No. 02-1674 

================================================================ 

In The 

Supreme Court of the United States ----♦-- -

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 AMICI CURIAE THE CALIFORNIA 

STUDENT PUBLIC INTEREST RESEARCH GROUP, 

INC., THE MASSACHUSETTS STUDENT PUBLIC 

INTEREST RESEARCH GROUP, THE PUBLIC 

INTEREST RESEARCH GROUP OF NEW JERSEY, 

INC., U.S. PIRG, FANNIE LOU HAMER PROJECT, 

THE ASSOCIATION OF COMMUNITY 

ORGANIZATIONS FOR REFORM NOW, AND 

PUBLIC CAMPAIGN IN SUPPORT OF APPELLEES 

----♦-- -

BONITA TENNERIELLO 

Counsel of Record 

JOHN C. BONIFAZ


BRENDA WRIGHT


LISA J. DANETZ


NATIONAL VOTING RIGHTS


INSTITUTE 

27 School Street 

Suite 500 

Boston, MA 02108 

(617) 624-3900 

DAVID A. WILSON


HALE AND DORR LLP 


1455 Pennsylvania Avenue, NW, 


10th Floor 

Washington, DC 20004 

(202) 942-8400 

Attorneys for Amici 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 


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


INTERESTS OF AMICI ............................................. 1 


SUMMARY ................................................................. 3 


ARGUMENT ............................................................... 5 


I. UNREGULATED SOFT MONEY CONTRI­


BUTIONS HAVE CONFERRED DISPRO­


PORTIONATE ELECTORAL POWER ON 


THE LARGEST DONORS AND DISCOUR­


AGED BROAD POLITICAL PARTICIPA­


TION. ............................................................... 5 


II. THE FIRST AMENDMENT PROTECTS THE


RIGHT OF ALL CITIZENS TO MEANING­


FUL POLITICAL PARTICIPATION. .............. 8 


A.	 The First Amendment Recognizes Broad 


Political Participation as a Vital Gov­


ernment Interest....................................... 8 


B.	 Buckley v. Valeo Does Not Bar the Pro-


motion of Equality as a Government In­


terest Justifying Regulation..................... 12 


CONCLUSION............................................................ 17 

ii 

TABLE OF AUTHORITIES 

Page 

CASES: 

Austin v. Mich. Chamber of Commerce, 494 U.S. 


652 (1986) ............................................................. 9, 13, 15 


Buckley v. Valeo, 424 U.S. 1 (1976).................. 12, 13, 14, 15


Bullock v. Carter, 405 U.S. 134 (1972) ................................ 4 


Davis v. Bandemer, 478 U.S. 109 (1986)............................. 4 


FEC v. Beaumont, 539 U.S. ___, 123 S. Ct. 2200 


(2003) ........................................................................ 13, 14 


FEC v. Colo. Republican Fed. Campaign Comm., 


533 U.S. 431 (2001) .................................................... 6, 14 


FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 


(1986) ........................................................................ 4, 8, 9 


FEC v. Nat’l Right to Work Comm., 459 U.S. 197


(1982) .......................................................................... 9, 15 


Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966)............ 4 


Lubin v. Panish, 415 U.S. 709 (1974).................................. 4 


Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 


(2000) .......................................................................passim


Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 


(1980) .............................................................................. 12 


Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ............ 12 


Reynolds v. Sims, 377 U.S. 533 (1964) ............................ 4, 8 


Richmond Newspapers, Inc. v. Va., 448 U.S. 555 


(1980) .............................................................................. 10 


Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997) .........11, 12 


U.S. v. UAW, 352 U.S. 567 (1957).................................. 9, 10 

iii 

TABLE OF AUTHORITIES – Continued 

Page 

CONSTITUTION AND STATUTES: 

Bipartisan Campaign Finance Reform Act of 2002, 


Pub. L. No. 107-155, § 101, 116 Stat. 82 ......................... 3 


Bipartisan Campaign Finance Reform Act of 2002, 


Pub. L. No. 107-155, § 102, 116 Stat. 86 ......................... 3 


Bipartisan Campaign Finance Reform Act of 2002, 


Pub. L. No. 107-155, § 103, 116 Stat. 87 ......................... 3 


Bipartisan Campaign Finance Reform Act of 2002, 


Pub. L. No. 107-155, § 307(a)(2), 116 Stat. 102 ............ 13 


Federal Elections Campaign Act (FECA), 2 U.S.C.


§ 431 et seq. ....................................................................... 5 


Federal Elections Campaign Act (FECA), 2 U.S.C.


§ 441a ................................................................................ 6 


OTHER AUTHORITIES: 

J. Stephen Breyer, Madison Lecture: Our Democ­


ratic Constitution, 77 N.Y.U. L. REV. 245 (2002) .......... 10 


Richard Briffault, The Political Parties and Cam­


paign Finance Reform, 100 COLUM. L. REV. 620 


(2000) ................................................................................ 7 


Ronald Dworkin, Free Speech and the Dimensions


of Democracy, in IF BUCKLEY FELL 63 (E. Joshua


Rosenkranz ed., 1999) .....................................................11 


FEDERALIST NO. 57, at 385 (J. Madison) (J. Cooke 


ed., 1961)......................................................................... 16 


Owen M. Fiss, Free Speech and Social Structure, 71


IOWA L. REV. 1405 (1986) ................................................11 

iv 

TABLE OF AUTHORITIES – Continued 

Page 

Richard Hasen, The Constitutionality of a Soft 


Money Ban after Colorado Republican II, 1 


ELECTION L. J. 195 (2002) .............................................. 13 


Stephen Loffredo, Poverty, Democracy and Consti­


tutional Law, 141 U. PA. L. REV. 1277 (1993)............... 15 


David A., Strauss, Corruption, Equality, and Cam­


paign Finance Reform, 94 COLUM. L. REV. 1369


(1994) .............................................................................. 14 


Burt Neuborne, Toward a Democracy-Centered 


Reading of the First Amendment, 93 NW. U. L.


REV. 1055 (1999)..............................................................11 


J. Skelley Wright, Money and the Pollution of 


Politics: Is the First Amendment an Obstacle to 


Political Equality?, 82 COLUM. L. REV. 609 (1982) ........11 


147 CONG. REC. S2435 (daily ed. Mar. 19, 2001) .............. 15 


147 CONG. REC. S2449 (daily ed. Mar. 19, 2001) .............. 15 


147 CONG. REC. S2531 (daily ed. Mar. 19, 2001) .............. 15 


148 CONG. REC. H235 (daily ed. Feb. 12, 2002) .................. 7 


148 CONG. REC. H240 (daily ed. Feb. 12, 2002) .................. 7 


148 CONG. REC. H263 (daily ed. Feb. 12, 2002) .................. 7 


148 CONG. REC. H270 (daily ed. Feb. 12, 2002) .................. 7 


148 CONG. REC. H272 (daily ed. Feb. 12, 2002) .................. 8 


148 CONG. REC. H342 (daily ed. Feb. 13, 2002) ................ 15 


148 CONG. REC. H350 (daily ed. Feb. 13, 2002) ............ 8, 15 


148 CONG. REC. S2160 (daily ed. Mar. 20, 2002) ................ 7 

1 

INTERESTS OF AMICI1 

Amici California Student Public Interest Research 

Group, Inc. (CALPIRG), Massachusetts Student Public 

Interest Research Group (MASSPIRG), and Public Interest Research Group of New Jersey, Inc. (NJPIRG Student 

Chapters) are state-based, non-profit, non-partisan organizations that conduct research, advocacy, and public 

education campaigns on a host of public interest issues 

including public health, environmental and consumer 

protection, higher education and good government. These 

PIRGs are directed by college students who lack the 

means to make large political contributions. Many state 

PIRGs have supported policies similar to Bipartisan 

Campaign Reform Act of 2002 (BCRA) Title I soft money 

provisions at the state level, and the outcome of this 

lawsuit will affect the ability of state PIRGs to support 

such policies in the future. 

1 Pursuant to Rule 37.6, amici hereby certify that no counsel for a 

party in the actions involving Title I of the BCRA, McConnell v. FEC, 

No. 02-1674; Republican Nat’l Comm. v. FEC, No. 02-1727; Cal. 

Democratic Party v. FEC, No. 02-1753; Paul v. FEC, No. 02-1747; 

National Right to Life Committee v. FEC, No. 02-1733; FEC v. McConnell, No. 02-1676; McCain v. McConnell, No. 02-1702, authored this 

brief in whole or in part. Amici CALPIRG, MASSPIRG, NJPIRG, 

USPIRG, FLHP and ACORN are appellants in Adams v. FEC, No. 02-

1740, which involves only increases in individual contributions to 

candidates contained in Title III of the BCRA and not any provisions of 

Title I. Amici further certify that no person other than amici, their 

members and their counsel have made any financial contribution to the 

preparation or submission of this brief. Consents to briefs amicus curiae 

from all parties have been filed with the Clerk of the Court. 
2 


Amicus U.S. PIRG is the national advocacy office of 

twenty-seven state PIRGs. U.S. PIRG supports political 

reform to make government accountable to ordinary citizens, 

believing that meaningful campaign finance reform is 

necessary to promote the public interest in government by 

the people. 

Amicus Fannie Lou Hamer Project (FLHP), named 

after the legendary civil rights worker from Mississippi, is 

a non-profit organization that fights for political equality 

for low- and moderate-income communities of color across 

the country. The project seeks to address inequities in the 

campaign finance system which limit civic and political 

participation based on socioeconomic status and which 

result in a disparate impact on communities of color. 

Amicus Association of Community Organizations for 

Reform Now (ACORN) is the nation’s largest community 

organization of low and moderate-income families, with over 

150,000 member families organized into 700 neighborhood 

chapters in 51 cities across the country. ACORN’s effort to 

advance the interests of low and moderate-income families 

is severely undermined by a system in which vast sums of 

money are required to engage in political participation. 

Amicus Public Campaign is a non-profit, non-partisan 

educational organization with separate corporate branches 

established under sections 501(c)(3) and 501(c)(4) of the 

Internal Revenue Code. Public Campaign promotes reforms that aim to dramatically reduce the role and influence of money in U.S. elections, in particular the public 

financing of election campaigns, and monitors the influence of fundraising and campaign contributions on representative bodies. 
----------------------------- ------------------------------

3 

All of the amici share a concern over the growing, 

corrosive influence of unregulated soft money contributions in national politics, and therefore share an interest 

in preserving the regulations of political party contributions and expenditures in Title I of BCRA.2 

----♦-- -

SUMMARY 

The record demonstrates that a few wealthy individuals and corporations capable of making massive nonfederal 

political party donations (“soft money” gifts) have exercised grossly disproportionate electoral influence. To 

permit this trend to continue to grow would, in practical 

terms, destroy the underpinnings of democratic governance. Denied an effective voice, ordinary citizens have no 

incentive to participate in – or even believe in – electoral 

politics. 

The soft money regulations in BCRA’s Title I3 

are 

unquestionably justified by the government’s interest in 

combating the reality or appearance of corruption, as the 

Defendants and Intervenors have comprehensively documented in the proceedings below. In addition, however, 

this litigation presents the Court with an opportunity to 

affirm that equality of access to the electoral system 

serves core values that are implicit in the First Amendment. 

2

 While amici support the “electioneering” provisions contained in 

Title II of BCRA, this brief focuses solely on Title I. 

3 Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 

§ 101, 116 Stat. 82; BCRA § 102, 116 Stat. 86; BCRA § 103, 116 Stat. 87. 
4 

Equality concerns are deeply embedded in this court’s 

First Amendment jurisprudence.4

 These values protect the 

speech and association of all members of the public, in 

order to preserve the “public participation and open 

discussion that the First Amendment itself presupposes.” 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 401 (2000) 

(Breyer, J., joined by Ginsburg, J., concurring). When considering regulation of corporate expenditures, the Court has 

recognized the need to “protect the integrity of the marketplace of political ideas” by denying “resources amassed 

in the economic marketplace” the ability to gain an “unfair 

advantage in the political marketplace.” FEC v. Mass. 

Citizens for Life (“MCFL”), 479 U.S. 238, 257 (1986). In 

approving federal individual contribution limits, Justice 

Breyer has observed that contribution limits “aim to 

democratize the influence that money itself may bring to 

bear upon the electoral process.” Shrink Mo., 528 U.S. at 

401 (Breyer, J., joined by Ginsburg, J., concurring) (citing 

Reynolds, 377 U.S. at 565, for the proposition that “in the 

context of apportionment, the Constitution ‘demands’ that 

each citizen have ‘an equally effective voice’ ”). 

4 This Court’s election law decisions based on the equal protection 

clause have also consistently affirmed the importance of equal participation in politics. See Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) 

(poll tax violates equal protection clause of Fourteenth Amendment); 

Bullock v. Carter, 405 U.S. 134 (1972) (mandatory candidate filing fees 

violate equal protection clause of Fourteenth Amendment); Lubin v. 

Panish, 415 U.S. 709 (1974) (mandatory candidate filing fees violate 

equal protection clause of Fourteenth Amendment); Reynolds v. Sims, 

377 U.S. 533 (1964) (disparities in voting strength based on population 

of electoral district violate equal protection clause of Fourteenth 

Amendment); Davis v. Bandemer, 478 U.S. 109 (1986) (dilution of 

voting strength is justiciable under the equal protection clause). 
----------------------------- ------------------------------

5 

Massive, unregulated soft money donations have 

indeed distorted the “marketplace of political ideas.” The 

record demonstrates that soft money is primarily aimed at 

influencing federal elections, and is appropriately brought 

within the regulatory framework of the Federal Elections 

Campaign Act (FECA), 2 U.S.C. § 431 et seq. Soft money 

donations have enabled a class of corporate and individual 

super-donors to circumvent hard money regulations and 

wield electoral clout that ordinary citizens cannot dream 

of having. A victory for the asserted speech rights of this 

tiny fraction of our citizenry would be a defeat for the 

democratic values at the core of the First Amendment. 

----♦-- -

ARGUMENT 

I. 	 UNREGULATED SOFT MONEY CONTRIBUTIONS HAVE CONFERRED DISPROPORTIONATE ELECTORAL POWER ON THE 

LARGEST DONORS AND DISCOURAGED 

BROAD POLITICAL PARTICIPATION. 

The rise of nonfederal political party donations, or soft 

money, brought a radically increased concentration of 

electoral power in the hands of an elite group of donors. As 

the record demonstrates, a small number of wealthy 

corporations and individuals have provided the lion’s 

share of the soft money flowing to parties.5

 These massive 

5 The $498 million in soft money raised in the 2000 elections 

constituted 42 percent of the spending by the national political parties, 

and a full 60 percent of this large sum came from only 800 corporate 

and individual donors, each giving $120,000 or more. See Opinion of 

Judge Kollar-Kotelly (“Kollar-Kotelly Op.”) at 489-91sa (citing Mann 

(Continued on following page) 
6 

contributions purchased electoral influence, as much of the 

soft money was used to benefit federal candidates, either 

deployed through state organizations for the benefit of 

federal candidates or spent by the parties on “issue advocacy” which in effect was targeted at federal races.6 

Soft money contributions, like the “hard money” 

donations regulated by FECA, 2 U.S.C. § 441a, reflect the 

major parties’ “capacity to concentrate power to elect.” 

FEC v. Colo. Republican Fed. Campaign Comm. (“Colo. 

Republican II”), 533 U.S. 431, 455 (2001). With soft money, 

as with hard, “donors give to the party with the tacit 

understanding that the favored candidate will benefit.” 

Id. at 458.7

 Large soft money donors, in addition to 

Expert Report at 21-25); Opinion of Judge Leon (“Leon Op.”) at 1189sa 

(citing Mann Expert Report at 24-25). The top 50 soft money donors in 

2000 – 35 of which were corporations – each contributed between 

$955,695 and $5,949,000. See Leon Op. at 1189sa (citing Mann Expert 

Report at Table 6). All citations to the district court opinions are to the 

Supplemental Appendix to Jurisdictional Statements, Vols. I-V, filed by 

the appellants in McConnell v. FEC, No. 02-1674, on behalf of all of the 

parties to the consolidated challenges to the Bipartisan Campaign 

Finance Reform Act of 2002. 

6 See Kollar-Kotelly Op. at 566sa (finding that candidates value 

nonfederal donations “almost as much as donations made directly to 

their campaigns and . . . these donations assist federal candidates’ 

campaigns. Furthermore, the evidence makes clear that the national 

parties also direct nonfederal donations to their state party affiliates for 

the purpose of affecting federal elections”); Leon Op. at 1202 (“The 

national parties spend a large proportion of their nonfederal money on 

so-called ‘issue advertisements’ that are really designed to help elect 

specific federal candidates”). 

7 See Kollar-Kotelly Op. at 558-562 (discussing finding that 

“Nonfederal Funds are Given with Intent to Assist Specific Members of 

Congress; Political Parties Keep Track of Contributions Members of 

Congress Raise”); Leon Op. at 1198sa-1202sa (reviewing evidence in 

support of finding that “[n]onfederal money is often given to national 

(Continued on following page) 
7 

gaining the ability to influence electoral outcomes disproportionate to the strength of their ideas, also gain an 

unearned hold on the political parties. See Richard Briffault, The Political Parties and Campaign Finance Reform, 

100 COLUM. L. REV. 620, 666 (2000) (“When party leaders 

can raise huge sums at White House coffees or Speakers’ 

Club retreats, they necessarily become more sensitive to 

the interests of their big donors, and less attentive to their 

less well-heeled, rank-and-file supporters”). 

Thus, soft money has been a back channel for the 

wealthy not only to instill a sense of obligation in federal 

candidates, as the defendants and intervenors maintain, 

but also to greatly amplify their electoral influence. 

Congress rightly considered the corrosive effect carried by 

such concentration of electoral power in the hands of these 

few donors. As Representative Shays described the legislation he co-sponsored, it was “about making sure that rich 

individuals cannot buy elections . . . .” 148 CONG. REC. 

H263 (daily ed. Feb. 12, 2002). Representative Clements 

observed, “In America we have a substantial number of 

people who do not vote in elections, who do not participate 

in elections. Why? Because of the influence of big money.” 

148 CONG. REC. H240 (daily ed. Feb. 12, 2002). See also, 

e.g., 148 CONG. REC. S2160 (daily ed. Mar. 20, 2002) (Sen. 

Feingold); 148 CONG. REC. H235 (daily ed. Feb. 12, 2002) 

(Rep. Frank); 148 CONG. REC. H270 (daily ed. Feb. 12, 

2002) (Rep. Lucas); 148 CONG. REC. H272 (daily ed. Feb. 

parties with the understanding that it will be used to assist the 

campaigns of particular federal candidates, and, indeed, it is often used 

for that purpose”). 
8 

12, 2002) (Rep. Moore); 148 CONG. REC. H350 (daily ed. 

Feb. 13, 2002) (Rep. Nadler). 

The ability of a small number of individuals and 

corporations to channel vast sums of money into elections 

diminishes the electoral influence of ordinary citizens to 

such an extent that many perceive their participation to be 

meaningless. “There is in this country a widely held belief 

that special interests and the very wealthiest campaign 

contributors have way too much influence in our political 

system. This belief discourages citizen participation in our 

democracy.” 148 CONG. REC. H272 (daily ed. Feb. 12, 2002) 

(Rep. Moore). In other words, the effect of soft money has 

been to “render political association ineffective.” Shrink 

Mo., 528 U.S. at 397. The resulting disparities strike at 

the foundation of democracy. “To the extent that a citizen’s 

right to vote is debased, he is that much less a citizen.” 

Reynolds v. Sims, 377 U.S. 533, 567 (1964). 

II. THE FIRST AMENDMENT PROTECTS THE 

RIGHT OF ALL CITIZENS TO MEANINGFUL 

POLITICAL PARTICIPATION. 

A.	 The First Amendment Recognizes Broad 

Political Participation as a Vital Government Interest. 

Equality concerns are firmly embedded in this Court’s 

First Amendment jurisprudence. In the compaign finance 

context, this Court has on several occasions affirmed that 

the state may act to “protect the integrity of the marketplace of political ideas” by denying “resources amassed in 

the economic marketplace” the ability to gain an “unfair 

advantage in the political marketplace.” FEC v. Mass. 

Citizens for Life (“MCFL”), 479 U.S. 238, 257 (1986) (ban 
9 

on corporate expenditure invalid as applied to non-profit 

corporation); see also Austin v. Mich. Chamber of Commerce, 

494 U.S. 652, 257 (1986) (upholding ban on campaign 

spending from corporate treasury); FEC v. Nat’l Right to 

Work Comm. (“NRWC”), 459 U.S. 197, 207-08 (1982) 

(upholding ban on corporate solicitation of non-members). 

For this reason, the Court has permitted stricter regulation of contributions and spending by labor unions as well 

as corporations, see U.S. v. UAW, 352 U.S. 567 (1957), and 

much of soft money indeed has come from corporate and 

union treasuries.8 

While the Court has cited concern over the “special 

advantages which go with the corporate form of organization,” NRWC, 459 U.S. at 207, the threat recognized by 

these cases is a broader one: “the potential for unfair 

deployment of wealth for political purposes.” MCFL, 479 

U.S. at 259. If corporate money can purchase results 

which “have little or no correlation to the public’s support 

for the corporation’s political ideas,” Austin, 494 U.S. at 

660, the same can surely be said of large accumulations of 

personal wealth.9

 These decisions recognize that the 

electoral influence of large war chests threatens to 

dampen the will of ordinary citizens to engage in politics. 

8 Of the 800 largest soft money donors in 2000, each giving over 

$120,000, 435 – or 54 percent – were corporations, unions and other 

organizations, and 365 were individuals. Mann Expert Report at 24. 

9 The statement in MCFL that “[r]elative availability of funds is 

after all a rough barometer of public support,” 479 U.S. at 258, clearly 

has greater validity when each public supporter is able to contribute 

roughly similar amounts, and has far less validity when a few members 

of the public can tip the scales toward their own opinion, as with large 

soft money gifts. 
10 

“Speaking broadly, what is involved here is the integrity of 

our electoral process, and, not less, the responsibility of 

the individual citizen for the successful functioning of that 

process.” UAW, 352 U.S. at 570. As this Court said in 

approving of the federal ban on labor union contributions 

and expenditures, “[I]ts aim was not merely to prevent the 

subversion of the integrity of the electoral process. Its 

underlying philosophy was to sustain the active, alert 

responsibility of the individual citizen in a democracy for 

the wise conduct of government.” Id. at 575. 

Thus the First Amendment actively protects the broad 

and diverse expression needed for meaningful public 

debate, in concert with the constitutional equal protection 

guarantee. “The First Amendment’s constitutional role is not 

simply one of protecting the individual’s ‘negative’ freedom 

from government restraint. The Amendment in context also 

forms a necessary part of a constitutional system designed to 

sustain that democratic self-government.” Stephen Breyer, 

Madison Lecture: Our Democratic Constitution, 77 N.Y.U. L. 

REV. 245, 253 (2002). As Justice Brennan similarly observed: 

[T]he First Amendment embodies more than a 

commitment to free expression and communicative exchange for their own sakes; it has a structural role to play in securing and fostering our 

republican system of government. Implicit in this 

structural role is not only ‘the principle that debate on public issues should be uninhibited, robust, and wide-open,’ but also the antecedent 

assumption that valuable public debate – as well 

as other civic behavior – must be informed. 

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 

(1980) (Brennan, J., concurring). 
11 

The gaping inequalities created by the soft money 

regime limit the range of public debate in a manner 

antithetical to these First Amendment values. See Shrink 

Mo., 528 U.S. at 401 (Breyer, J., joined by Ginsburg, J., 

concurring) (contribution limits “encourag[e] the public 

participation and open discussion that the First Amendment itself presupposes”); Turner Broad. Sys. v. FCC, 520 

U.S. 180, 189-90 (1997) (recognizing “important governmental interest” in “promoting the widespread dissemination of information from a multiplicity of sources”). See 

also Burt Neuborne, Toward a Democracy-Centered Reading of the First Amendment, 93 NW. U. L. REV. 1055, 1072-

73 (1999) (“[W]ealth disparity introduces massive political 

inequality skewed to a predictable set of self-interested 

positions” and permits “wholly unjustifiable differences in 

political power to emerge . . . . The obvious inequalities 

introduced by massive wealth disparities cause many 

persons to lose faith in the system”); Owen M. Fiss, Free 

Speech and Social Structure, 71 IOWA L. REV. 1405, 1412 

(1986) (in an election campaign, the resources at the 

disposal of the rich “enable them to fill all available space 

for public discourse with their message”); J. Skelley 

Wright, Money and the Pollution of Politics: Is the First 

Amendment an Obstacle to Political Equality?, 82 COLUM. 

L. REV. 609, 636 (1982) (“To invoke the first amendment, 

not to protect diversity, but to prevent society from defending itself against the stifling influence of money in politics 

is to betray the historical development and philosophical 

underpinnings of the first amendment”); Ronald Dworkin, 

Free Speech and the Dimensions of Democracy, in IF 

BUCKLEY FELL 63, 78-79 (E. Joshua Rosenkranz ed., 1999) 

(“People cannot plausibly regard themselves as partners in 

an enterprise of self-government when they are effectively 
12 

shut out from the political debate because they cannot 

afford a grotesquely high admission price”). 

B. Buckley v. Valeo Does Not Bar the Promotion of Equality as a Government Interest 

Justifying Regulation. 

Buckley v. Valeo does not foreclose equality of political 

participation as a First Amendment value. Buckley’s 

disapproval of measures that “restrict the speech of some 

elements of our society in order to enhance the relative 

voice of others,” Buckley v. Valeo, 424 U.S. 1, 48-49 (1976), 

cannot, as Justice Breyer has observed, “be taken literally.” Shrink Mo., 528 U.S. at 402 (Breyer, J., joined by 

Ginsburg, J., concurring). For, as Justice Breyer noted, the 

Constitution “often permits restrictions on the speech of 

some in order to prevent a few from drowning out the 

many.” Id. In addition to the examples provided by Justice 

Breyer (including the rules of congressional debate and 

ballot access laws, id.), this Court has on numerous 

occasions upheld regulations that limit or dilute the 

intensity of one voice, or a few voices, to keep them from 

overwhelming the speech of others. See Turner Broad. Sys., 

520 U.S. 180 (upholding Cable Act “must carry” provision 

against cable operators’ First Amendment claim); Pruneyard 

Shopping Ctr. v. Robins, 447 U.S. 74, 85-88 (1980) (state law 

allowing pamphleteers in private shopping mall did not 

infringe disagreeing mall owner’s First Amendment 

rights); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389-90 

(1969) (upholding FCC rebuttal requirements for broadcast 

personal attacks and political editorials). Even the abovecited passage of Buckley acknowledges that the First 

Amendment was “designed to ‘secure the widest possible 

dissemination of information from diverse and antagonistic 
13 

sources,’ and ‘to assure unfettered interchange of ideas for 

the bringing about of political and social changes desired 

by the people.’ ” Buckley, 424 U.S. at 49 (citations omitted). 

In addition, this passage of Buckley, with its warning 

against “restrict[ing] speech of some elements of our society,” 

424 U.S. at 48, was directed at FECA’s spending limits; in 

contrast, contribution limits such as the political party 

regulations at issue in Title I of BCRA,10 entail “only a 

marginal restriction upon the contributor’s ability to 

engage in free communication.” Id. at 20-21; see also FEC 

v. Beaumont, 539 U.S. ___, 123 S. Ct. 2200, 2210 (2003) 

(“Going back to Buckley v. Valeo, 424 U.S. 1 (1976), restrictions on political contributions have been treated as 

merely ‘marginal’ speech restrictions subject to relatively 

10 While the soft money ban acts as a complete prohibition on 

contributions to national parties from corporate treasuries, rather than 

a limit, corporations remain free to contribute hard money from 

segregated accounts. And it is already settled that corporations may be 

barred from making campaign independent expenditures from their 

treasuries, Austin, 494 U.S. 652, which entails a greater restriction 

than a contribution ban. See Richard Hasen, The Constitutionality of a 

Soft Money Ban after Colorado Republican II, 1 ELECTION L. J. 195, 

200-202 (2002). 

Neither is the speech of the political parties unconstitutionally burdened, as there can be no showing that FECA’s limits on hard money 

contributions to parties – raised, for individuals from $20,000 to 

$25,000, see BCRA § 307(a)(2), 116 Stat. 102 – are so low as to impede 

the parties’ ability to “amas[s] the resources necessary for effective 

advocacy,” Buckley, 424 U.S. at 21 or “so radical in effect as to render 

political association ineffective, drive the [parties’] voice below the level 

of notice and render contributions pointless.” Shrink Mo., 528 U.S. at 

397. Judge Kollar-Kotelly noted that as soft money donations rose 

during the 1990s “hard money contributions rose markedly as well, 

from $445 million to $741 million.” Kollar-Kotelly Op. at 491sa, quoting 

Green Expert Report at 30. 
14 

complaisant review under the First Amendment, because 

contributions lie closer to the edges than to the core of 

political expression”); Colo. Republican II, 533 U.S. at 440, 

456 (applying more deferential standard of review to political 

party coordinated expenditures, which may be regulated as 

contributions); Shrink Mo., 528 U.S. at 386-88 (lesser scrutiny applied to contribution limits than expenditure limits). 

In fact, the government interest in combating corruption and the perception of corruption, which Buckley and 

subsequent cases have held justifies contribution limits, see 

Buckley, 424 U.S. at 20; Shrink Mo., 528 U.S. at 386-88; 

Colo. Republican II, 533 U.S. at 440; Beaumont, 123 S. Ct. 

at 2207, is in practice intertwined with considerations of 

political equality. Commentators have noted that the 

concern about corruption is inexplicable without reference 

to the larger goal of equality. David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. 

L. REV. 1369, 1370-75 (1994). The influence of large 

contributions on policy is troubling largely, if not primarily, because citizens do not have an equal ability to make 

them; if all citizens had equal financial resources and thus 

an equal ability to purchase political influence through 

contributions, political contributions would become an 

accurate proxy for political support. 

In the debate over BCRA, many members of Congress 

gave voice to the notion that corruption exists in the 

unequal ability of all citizens to have a say in the working 

of government. For example, Sen. Lieberman said: “When 

the price of entry to our democracy’s discussion starts to 

approach the average American’s annual salary, something 

is terribly wrong. When we have a two-tiered system of 

access and influence – one for the average volunteer and 

one for the big contributor – something is terribly wrong.” 
15 

147 CONG. REC. S2531 (daily ed. Mar. 19, 2001) (Sen. 

Lieberman). Senator Dodd similarly voiced his belief that: 

no democracy can thrive – if indeed survive – if it 

is awash in massive quantities of money; money 

that threatens to drown out the voices of the average voter of average means; money that creates 

the appearance that a wealthy few have a disproportionate say over public policy. 

147 CONG. REC. S2435 (daily ed. Mar. 19, 2001) (Sen. 

Dodd). See also, e.g., 147 CONG. REC. S2449 (daily ed. Mar. 

19, 2001) (Sen. Collins); 148 CONG. REC. H350 (daily ed. 

Feb. 13, 2002) (Rep. Nadler); 148 CONG. REC. H342 (daily 

ed. Feb. 13, 2002) (Rep. Lewis). 

This linkage between corruption and inequality 

underlies the Court’s post-Buckley rulings on corporate 

campaign finance regulations, which aim “to ensure that 

substantial aggregations of wealth . . . should not be 

converted into political ‘war chests’ which could be used to 

incur political debts from legislators who are aided by 

these contributions.” NRWC, 459 U.S. at 207; see also 

Austin, 494 U.S. at 659-60; and see Stephen Loffredo, 

Poverty, Democracy and Constitutional Law, 141 U. PA. L. 

REV. 1277, 1285 (1993) (with Austin the court “squarely 

acknowledged – for the first time in constitutional discourse – that inequalities of private economic power tend 

to reproduce themselves in the political sphere and displace legitimate democratic governance”). 

* * * 

The First Amendment must stand in aid of, rather 

than opposed to, principles of political equality at the 

heart of this nation’s identity. The challenge to the BCRA 

soft money ban poses the question famously asked and 
----------------------------- ------------------------------

16 

answered by James Madison: “Who are to be the electors 

of the Federal Representatives? Not the rich more than 

the poor; not the learned more than the ignorant; not the 

haughty heirs of distinguished names, more than the 

humble sons of obscure and unpropitious fortune. The 

electors are to be the great body of the people . . . .” FEDERALIST NO. 57, at 385 (J. Madison) (J. Cooke ed., 1961). In 

banning unlimited soft money gifts, Congress sought to 

preserve the public’s faith in, and engagement with, the 

electoral process. It would be the saddest of ironies if the 

First Amendment’s guarantee of freedom of speech were 

interpreted to bar such an effort. 

----♦-- -
17 

CONCLUSION 

For the foregoing reasons, the Court should uphold 

the regulations contained in Title I of the Biparitisan 

Campaign Finance Reform Act of 2002 in their entirety. 

Respectfully submitted, 

BONITA TENNERIELLO


JOHN C. BONIFAZ


BRENDA WRIGHT


LISA J. DANETZ


NATIONAL VOTING RIGHTS


INSTITUTE 

27 School Street 

Suite 500 

Boston, MA 02108 

(617) 624-3900 

DAVID A. WILSON 

HALE AND DORR LLP 

1455 Pennsylvania Avenue, NW, 

10th Floor 

Washington, DC 20004 

(202) 942-8400 

Attorneys for Amici