No. 08-205 

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

In The 

Supreme Court of the United States 

---------------------------------♦ --------------------------------- 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

---------------------------------♦ --------------------------------- 

On Appeal From The 


United States District Court 


For The District Of Columbia
 

---------------------------------♦ --------------------------------- 

BRIEF OF AMICI CURIAE
 

THE WYOMING LIBERTY GROUP 


AND THE GOLDWATER INSTITUTE 


IN SUPPORT OF APPELLANT 


---------------------------------♦ --------------------------------- 

BENJAMIN BARR 

Counsel of Record 

GOVERNMENT WATCH , P.C. 

619 Pickford Place N.E. 

Washington, DC 20002 

(240) 863-8280 

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


OR CALL COLLECT (402) 342-2831 

 

 

 

 

 

 

 

 

i 

TABLE OF CONTENTS 


Page 

TABLE OF CONTENTS ...................................... i 


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


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


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


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


I.	 The Appeal to Vote Standard Must be 


Clarified or Eliminated ............................. 10 


A.	 Buckley, the First Amendment, and 


the Import of Speech Protective Principles .................................................... 11
 

B.	 The Confusion over McConnell and
 

the Wisconsin Right to Life Clarification....................................................... 15 


II.	 The Federal Election Commission’s
 

Heads You Speak, Tails You Don’t Approach ........................................................ 17 


A. 	 The Safe Harbor .................................. 18 


B.	 Speech Outside the Harbor: Not so
 

Safe ...................................................... 20 


III.	 The Friendly Regulators: The Tie Goes to 


the Commission ......................................... 28 


A.	 The National Right to Life Committee 


Advisory Opinion................................. 28 


B.	 The Wisconsin Right to Life Question..... 33 

ii 

TABLE OF CONTENTS – Continued 

Page 

CONCLUSION..................................................... 35 

APPENDIX ..........................................................App. 1 
iii 

TABLE OF AUTHORITIES 


Page 

CASES
 

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

Chamber of Commerce v. Moore, 288 F.3d 187 


(5th Cir. 2002) ...........................................................7 


Citizens for Responsible Gov’t State Political 

Action Comm. v. Davidson, 236 F.3d 1174 


(10th Cir. 2000) .........................................................7 


Connecticut v. Proto, 526 A.2d 1297 (Conn. 

1987) ..........................................................................7 


Davis v. FEC, 128 S. Ct. 2759 (2008)...........................6 


Elections Bd. v. Wisconsin Mfr. & Commerce, 


597 N.W.2d 721 (Wisc. 1999) ....................................7 


Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991)..............6 


FEC v. Beaumont, 539 U.S. 146 (2003) .....................14 


FEC v. Massachusetts Citizens for Life, 479 


U.S. 238 (1986)..........................................................6 


FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 


2652 (2007)......................................................passim
 

Fla. Right to Life v. Lamar, 238 F.3d 1288 (11th 


Cir. 2001) ...................................................................7 


Grayned v. City of Rockford, 408 U.S. 104 


(1972).......................................................................15 


Houston v. Hill, 482 U.S. 451 (1987) ...........................8 


Hurley v. Irish-Am. Gay, Lesbian & Bisexual 


Group of Boston, 515 U.S. 557 (1995) ....................19 

iv 

TABLE OF AUTHORITIES – Continued 

Page 

Jerome B. Grubart, Inc. v. Great Lakes Dredge 

& Dock Co., 513 U.S. 527 (1995) ..............................4 


John v. Tribune Co., 24 Ill.2d 437 (1962)...................16 


Maine Right to Life Committee v. FEC, 98 F.3d 


1 (1st Cir. 1996).........................................................6 


McConnell v. FEC, 540 U.S. 93 (2003).......................15 


McIntyre v. Ohio Elections Comm’n, 514 U.S. 


334 (1995)................................................................19 


Minnesota Citizens Concerned for Life v. FEC, 


113 F.3d 129 (8th Cir. 1997)......................................6 


Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)........11
 

NAACP v. Button, 371 U.S. 415 (1963)......................15 


New York Times v. Sullivan, 376 U.S. 254 


(1964).........................................................................4 


Pacific Gas & Electric Co. v. Public Util. 

Comm’n of California, 475 U.S. 1 (1986) ...............26 


Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000).............7 


Randall v. Sorrell, 126 S. Ct. 35 (2005).......................7 


Rapanos v. U.S., 547 U.S. 715 (2006) ........................35 


Reno v. American Civil Liberties Union, 521 


U.S. 844 (1997)........................................................20 


Riley v. National Federation of Blind of N.C., 


Inc., 487 U.S. 787 (1988).........................................26 


Solaia Technology, LLC v. Specialty Pub. Co., 


221 Ill.2d 558 (2006) ...............................................16 

v 


TABLE OF AUTHORITIES – Continued
 

Page 


Thomas v. Collins, 323 U.S. 516 (1945)...............14, 22 


Thornhill v. Alabama, 310 U.S. 88 (1940).................33 


Virginia State Bd. of Pharmacy v. Virginia 


Citizens Consumer Council, Inc., 425 U.S. 

748 (1976)................................................................26 


Wash. State Republican Party v. Wash. State 

Public Disclosure Comm’n, 4 P.3d 808 (Wash. 

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


STATUTES AND REGULATIONS
 

2 U.S.C. § 431 ...............................................................3 


2 U.S.C. § 431b(b) .........................................................4 


2 U.S.C. § 431b(c) .........................................................4 


2 U.S.C. § 434(f)............................................................8 


11 C.F.R. § 100.29 .........................................................8 


11 C.F.R. § 114.15(b) ...............................................5, 18 


11 C.F.R. § 114.15(c) ...................................................21 


OTHER AUTHORITIES 

Explanation and Justification for Electioneering Communications, Final Rule; 72 Fed. 

Reg. 72899 (F.E.C. Dec. 26, 2007)...........5, 17, 18, 19
 

Notice of Proposed Rulemaking, Electioneering 

Communications, 72 Fed. Reg. 50261 (F.E.C. 

August 31, 2007) .....................................................25 

vi 

TABLE OF AUTHORITIES – Continued 

Page 

In the Matter of National Right to Life Committee, Inc., Advisory Opinion Request 2008-15 

(September 23, 2008) ..............................................28 

In the Matter of National Right to Life Committee, Inc., October 23, 2008 Certification 

(F.E.C. Oct. 23, 2008) ..............................................29 

 

 

 

1 


INTEREST OF AMICI CURIAE1 

The Wyoming Liberty Group believes that the 

great strength of Wyoming rests in the ambition and 

entrepreneurialism of ordinary citizens. While limited 

government is conducive to freedom, unchecked 

government promotes the suppression of individual 

liberty. In a state where the people are sovereign, the 

Group’s mission is to provide research and education 

supportive of the founding principles of free societies. 

Its mission is to facilitate the practical exercise of 

liberty in Wyoming through public policy options that 

are faithful to protecting property rights, individual 

liberty, privacy, federalism, free markets, and decentralized decision-making. The Wyoming Liberty 

Group promotes the enhancement of liberty to foster 

a thriving, vigorous, and prosperous civil society, true 

to Wyoming’s founding vision. The issues presented in 

this case are of interest to the Wyoming Liberty 

Group because they involve the fundamental, and 

threatened, right of citizens to freely participate and 

share their point of view in the electoral and political 

process. 

The Goldwater Institute, established in 1988, is a 

nonprofit, independent, nonpartisan research and 

educational organization dedicated to the study of 

1 This brief is filed with the written consent of all parties. 

No counsel for any party authored this brief in whole or in part, 

nor did any person or entity, other than Amici or their counsel, 

make a monetary contribution to the preparation or submission 

of this brief. 
2 


public policy. Through its research papers, editorials, 

policy briefings and forums, the Institute advances 

public policies founded upon the principles of limited 

government, economic freedom and individual responsibility. A core purpose of the Goldwater Institute 

and its Scharf-Norton Center for Constitutional 

Litigation is the preservation of constitutional liberties, including the right of political speech and association connected to elections. 

---------------------------------♦--------------------------------­

SUMMARY OF ARGUMENT 

1.	 Since this Court’s pronouncement in FEC v. 

Wisconsin Right to Life, Inc., 127 S. Ct. 2652 

(2007), substantial confusion has arisen over 

the “appeal to vote” test. In Wisconsin Right 

to Life, Chief Justice Roberts explained that 

an advertisement could not be regulated under the Federal Election Campaign Act as 

the functional equivalent of express advocacy 

unless it is “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” Id. at 

2667. Still, the Court conducted an extensive 

application of that test, leading some to believe that the Court’s lengthy application 

represented the test itself. Clarification must 

be given to the appeal to vote test, ensuring 

that speech-protective rules carry the day. 

2.	 The Federal Election Commission has 

mocked the First Amendment and this 

Court’s earlier instruction in Wisconsin Right 
 

3 


to Life. By focusing on this Court’s application of the appeal to vote test, the Commission established its own two-prong, 11-factor 

test to regulate speech. It cannot be trusted 

with such open-ended discretion again. 

3.	 What the Federal Election Commission created in theory is even worse in practice. The 

Commission charged with interpretation of 

federal election law itself cannot decide how 

to apply the law. This leaves citizens wholly 

at the mercy of an excitable Commission and 

places speech rights in jeopardy. 

---------------------------------♦--------------------------------­

ARGUMENT 

Before this Court is yet another blow to the 

American experiment of self-governance rooted in a 

citizenry free to voluntarily speak and associate. A 

now-regular source of irritation to that liberty, the 

Federal Election Commission (the “FEC” or “Commission”), is before this Court defending the failed concoction of campaign finance reform efforts in the 

Republic. Since 1974, the Commission has haphazardly expanded categories of speech it deemed prohibited, regulated, or just not too sure about, leaving 

citizens at its prosecutorial mercy. During each 

election cycle, those who might speak must learn to 

hop through the FEC’s elaborate rules. And since 

1976, this Court has stricken key provisions of the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. 

§ 431 et seq., and the Bipartisan Campaign Reform 
 

4 


Act (“BCRA”), 2 U.S.C. § 431b(b)(2) and (c)), recognizing the Commission’s penchant for defending its own 

authority instead of speakers’ natural rights to speak. 

Once again, this Court finds itself in familiar territory. 

Just last term, some observers of election law 

described the Court’s opinion in FEC v. Wisconsin 

Right to Life, Inc., 127 S. Ct. 2652 (2007), as a return 

to clarity and longstanding First Amendment principles that favored speech. In Wisconsin Right to Life, 

the Court announced its fidelity to the speechprotective rules described in Buckley v. Valeo, 424 

U.S. 1 (1976), and set out several foundational approaches for ensuring that political speech remain 

protected. As a guiding tenet, any distinction between 

regulable and non-regulable speech would need to 

“reflec[t] our ‘profound national commitment to the 

principle that debate on public issues should be 

uninhibited, robust, and wide-open.’ ” Id. at 14 (quoting New York Times v. Sullivan, 376 U.S. 254, 270 

(1964)). The standards for determining regulable 

speech would need to be objective, Wisconsin Right to 

Life, 127 S. Ct. at 2666, focus on the communication 

itself and not the intent and effect of the speaker, id., 

and should eschew the “open-ended rough-andtumble of factors.” Id. (quoting Jerome B. Grubart, 

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 

547 (1995)). These principles favor more speech, 

not less, limit the Commission’s authority, and give 

the benefit of the doubt to speakers, not speech 
 

5 


regulators. Still, simple truths are sometimes difficult 

to digest. 

Having received the clear instruction of this 

Court, the Commission commenced rulemaking to 

instruct citizens about what the FEC termed “permissible” speech. Explanation and Justification for 

Electioneering Communications (“Explanation and 

Justification”); Final Rule; 72 Fed. Reg. 72899 (F.E.C. 

Dec. 26, 2007). In doing so, the Commission developed 

its own rules of interpretation that are contradictory 

to the Chief Justice’s repeated admonitions to favor 

speech over censorship and offer speakers clear 

guidance, not prolix regulation, about the line between regulated and non-regulated speech. The FEC 

set out to instruct citizens within what boundaries 

they might safely speak by creating a safe harbor in 

the regulations. See 11 C.F.R. § 114.15(b). Still, deciding that some other speech might still be tolerable, 

the Commission reasoned that it would “consider 

whether the communication includes any indicia of 

express advocacy and whether the communication 

has an interpretation other than as an appeal to vote 

for or against a clearly identified [f]ederal candidate 

in order to determine whether, on balance, the communication is susceptible of no other reasonable 

interpretation other than as an appeal to vote for or 

against a clearly identified [f]ederal candidate.” 

Explanation and Justification at 72905 (emphasis 

added) (hereinafter the “Heads You Speak, Tails You 

Don’t Approach”). The Commission’s approach flies in 

the face of this Court’s “no reasonable interpretation 
 

6 


other than as an appeal to vote for or against a specific candidate” test. Wisconsin Right to Life, 127 

S. Ct. at 2667. 

This is not the first time the Congress or the 

Commission has played the proverbial role of Dr. 

Frankenstein with the body of speech rights enjoyed 

by citizens. Since Buckley in 1976, the FEC has been 

on the losing end of several significant challenges. In 

Buckley, the Court struck down, among other sections, the expenditure limits applicable to candidates 

and their committees and the $1,000 limit on independent expenditures. 424 U.S. at 51. Later, the 

Commission lost in FEC v. Massachusetts Citizens for 

Life, 479 U.S. 238 (1986), with the Court deciding 

that banning corporate expenditures by some nonprofit corporations would serve as a disincentive to 

speak and would infringe on First Amendment activities. More recently, the Commission gave the benefit 

of the doubt to censorship over speech and lost in 

Wisconsin Right to Life. Later, this Court struck 

provisions of the “Millionaires’ Amendment” of the 

BCRA as well. Davis v. FEC, 128 S. Ct. 2759 (2008). 

The FEC has been no stranger to continued losses 

over unconstitutional infringements at the federal 

appellate level, either. See, e.g., Faucher v. FEC, 928 

F.2d 468 (1st Cir. 1991), Maine Right to Life Committee v. FEC, 98 F.3d 1 (1st Cir. 1996), Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir. 

1997). Of course, nationwide, speech regulators have 

lost time and time again when states sought to regulate beyond the scope of the First Amendment. See, 
7 


e.g., Randall v. Sorrell, 126 S. Ct. 35 (2005); Perry v. 

Bartlett, 231 F.3d 155 (4th Cir. 2000); Citizens for 

Responsible Gov’t State Political Action Comm. v. 

Davidson, 236 F.3d 1174 (10th Cir. 2000); Chamber of 

Commerce v. Moore, 288 F.3d 187 (5th Cir. 2002); Fla. 

Right to Life v. Lamar, 238 F.3d 1288 (11th Cir. 2001); 

see also Connecticut v. Proto, 526 A.2d 1297 (Conn. 

1987); Wash. State Republican Party v. Wash. State 

Public Disclosure Comm’n, 4 P.3d 808 (Wash. 2000); 

Elections Bd. v. Wisconsin Mfr. & Commerce, 597 

N.W.2d 721 (Wisc. 1999). No matter how inventive 

the speech regulators become, the Constitution 

rebuffs their efforts. 

 The Buckley Court recognized a truth consistent 

with the First Amendment. While government possesses authority over the regulation of elections, such 

exercise must be carried out in a manner protective of 

speech. U.S. Const. Art. I, § 4; U.S. Const. amend. I. 

The Court established a simple point of demarcation 

between regulable election-related activity and constitutionally protected political speech. Consistent 

with Buckley, government may regulate action that is 

“unambiguously related to the campaign of a particular federal candidate.” 424 U.S. at 80. Why? Unambiguously campaign connected communications share a 

connection to government’s interest in preventing 

corruption. 

Since Buckley, this Court has recognized but 

two narrow categories of speech that are unambiguously related to the campaign of a particular candidate. First, communications that in “express terms 
 

8 


advocate the election or defeat or a clearly identified 

candidate” for public office may be regulated consistent with this approach. Id. at 44. Second, this Court 

has permitted a limited class of speech, the “functional equivalent of express advocacy,” to be regulated 

as well. Wisconsin Right to Life, 127 S. Ct. at 2667. 

Both classes are highly circumscribed to be certain 

that other speech not be swept in its regulatory ambit 

or that regulators be given too broad of authority to 

attack unwelcome speech. Houston v. Hill, 482 U.S. 

451 (1987). 

To be regulated as the “functional equivalent of 

express advocacy,” two requirements must be met. 

Under the FECA, a communication may constitute an 

electioneering communication which is a “broadcast, 

cable, or satellite communication” and refers to a 

“clearly identified candidate” within sixty days of a 

general election or thirty days of a primary election. 

See 2 U.S.C. § 434(f)(3) and 11 C.F.R. § 100.29. Next, 

the communication must be “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” Wisconsin Right to 

Life, 127 S. Ct. at 2667. This Court took great pain in 

Wisconsin Right to Life to explain the constitutional 

significance of this test by referencing the fact that it 

must ignore contextual references, “eschew ‘the openended rough-and-tumble of factors,’ ” which invite 

burdensome discovery and lengthy litigation, and 

give the “benefit of the doubt to speech, not censorship.” Id. at 2666. 
 

9 


Following Wisconsin Right to Life, the Commission drafted regulations that seized upon the application of Chief Justice Roberts’ test instead of its brightline principles. While the Court instructed the FEC 

that only speech which had no other reasonable 

interpretation as an appeal to vote for or against a 

specific candidate could be regulated as the functional 

equivalent of express advocacy, the Commission 

elected to design a test that would look to whether 

speech “on balance” was an appeal to vote for or 

against a specific candidate. Shifting the analytical 

focus from “no other reasonable interpretation” to “on 

balance” carefully shifted authority back to the 

Commission, ensuring more speech regulation. On 

balance, the FEC may conduct extensive weighing of 

contextual factors. On balance, the Commission may 

make linguistic comparisons. On balance, the FEC 

may pay little heed to the strict dictates of the First 

Amendment. 

Like Homer’s Sisyphus – a man whose existence 

consisted of bitter pains due to his toil as he pushed a 

boulder up a hill in perpetuity – the Commission 

continues to resist the rather straightforward instruction of the First Amendment, and this Court’s 

patience, by advancing unworkable and unconstitutional regulations. Enough is enough. The real victims of this practice are the citizens of this Republic 

whose speech is stifled and shutdown as a result of 

the Commission’s failure to heed basic constitutional 

requirements. When the Commission charged with 

enforcement of federal election law establishes vague 
 

10 


and labyrinthine tests, cloaking itself in power, First 

Amendment rights continue to stand in peril, as 

citizens remain hesitant to speak. It now stands as 

this Court’s obligation to render justice to the Commission’s repudiation of the First Amendment and this 

Court’s earlier instruction. Afford citizens bright-line 

standards that are easily applied and that are not 

dependent on a hope that the FEC might just get it 

right this time. As is demonstrated below, it will not. 

I. 	 The Appeal to Vote Standard Must be 

Narrowed or Eliminated 

Inventing speech standards is difficult business. 

Because of the confusion created by the Commission 

in interpreting the appeal to vote test, this Court 

should revisit its earlier instruction. In Wisconsin 

Right to Life, Chief Justice Roberts explained that the 

appeal to vote test was both simple and speechprotective. Id. at 2666-2669. He reasoned that under 

the appeal to vote test: 

1. 	 There can be no free-ranging intent-andeffect inquiry. 

2. 	 There generally should be no discovery or inquiry into contextual factors. 

3. 	Discussion of issues cannot be banned 

merely because the issues might be relevant 

to an election. 

4. 	 In a debatable case, the tie is resolved in favor of protecting speech. 

Id. at 2669 n.7. 
 

 

11 


After noting these constitutional considerations, 

speech may be deemed the functional equivalent of 

express advocacy, and thus subject to regulation, only 

if “the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a 

specific candidate.” Id. at 2667. As with other judicial 

considerations, the Wisconsin Right to Life Court 

then considered a variety of factors in determining 

whether the speech at issue there was the functional 

equivalent of express advocacy. The Court included 

inquiries such as mentioning an election or exhorting 

the public to adopt a policy position as an application 

of the appeal to vote test. Id. Today, there rests great 

confusion over the test described by Chief Justice 

Roberts. While many considered this a test protective 

of speech, the Commission viewed it as more of a twoprong, 11-factor, Heads You Speak, Tails You Don’t 

test. 

A. 	 Buckley, the First Amendment, and the 

Import of Speech Protective Principles 

The most essential purpose of the First Amendment is to protect individuals’ rights to freely discuss, 

debate, and criticize their elected representatives. 

During elections, when individuals are most interested in political speech, the First Amendment has 

its “fullest and most urgent application.” Monitor 

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). Where 

the First Amendment was once thought to vigorously 

guard the sanctity of political speech, erosion of that 

protection has steadily occurred since this Court’s 
12 


pronouncement of exceptions since Buckley, 424 U.S. 

1. 

 In Buckley, rather than treat contributions to 

political candidates as a directly protected form of 

speech and association, the Court deemed them 

tainted and receptive of less protection because the 

“expression rests solely on the undifferentiated, 

symbolic act of contributing.” Id. at 21. The Court 

even found that direct speech that was coordinated 

received less protection out of a concern rooted in 

corruption and a perceived control of candidates. Of 

course, Buckley sought to preserve independent 

speech because of its higher value and lower threat of 

corruption. Id. at 45. Still, it permitted limited regulation of a class of communications known as independent expenditures, which constituted express 

advocacy of the election or defeat of a clearly identified candidate. The Court, and lower courts throughout the nation, held fast to the Buckley framework, as 

offering the only workable rule that would protect 

free speech while permitting limited regulation. That 

rested on respect of a simple rule: “distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often 

dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues 

involving legislative proposals and governmental 

actions.” Id. at 42. While Buckley involved a strained 

reading of the First Amendment and permitted 

government intrusion into the most sacred area of 

protected speech, it did so by drawing narrow and 
 

13 


bright-line boundaries. Citizens could, at a minimum, 

understand the boundaries and be able to produce a 

great deal of speech without running afoul of the law. 

The analytical framework established in Buckley 

proved effective. It offered a narrow class of easilyidentifiable, regulable speech, while preserving the 

full freedom of the First Amendment for other categories of speech. The test was objective in nature and 

examined the actual words of the communication as 

its point of focus. Id. at 44 n.52 (“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’ ”). Speakers understood the test, which meant 

they would not need to hedge and trim, but could 

speak freely and robustly without fearing a test 

focused on the intent of the speaker or the effect of 

the message on its audience. As explained by the 

Buckley Court: 

[W]hether words intended and designed to 

fall short of invitation [to vote for or against 

a candidate] would miss the mark is a question both of intent and of effect. No speaker, 

in such circumstances, safely could assume 

that anything he might say upon the general 

subject would not be understood by some as 

an invitation. In short, the supposedly clearcut distinction between discussion, laudation, general advocacy, and solicitation puts 

the speaker in these circumstances wholly 

at the mercy of the varied understanding of 

his hearers and consequently of whatever 
 

14 


inference may be drawn as to his intent and 

meaning. Such a distinction offers no security for free discussion. In these conditions it 

blankets with uncertainty whatever may be 

said. It compels the speaker to hedge and 

trim. 

Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 

535 (1945)). 

Of course, the express advocacy construction 

protects issue advocacy – that is, the free discussion 

of citizens – and the distinction was necessary because candidates, “especially incumbents, are intimately tied to public issues involving legislative 

proposals and governmental actions.” Id. at 42. In 

short, issue advocacy that includes a discussion about 

candidates and issues of the day is a core function of 

citizens’ participation in representative democracy. 

And it should continue to receive the highest constitutional protection. 

The limited Buckley rationale for government 

regulation of political speech expanded over time to 

include preventing the circumvention of other campaign finance restrictions. Indeed, this Court’s reliance on corruption as a basis for regulation has been 

pushed beyond its logical extent to define corruption 

“not only as quid pro quo agreements, but also as 

undue influence on an officeholder’s judgment, and 

the appearance of such influence.” FEC v. Beaumont, 

539 U.S. 146, 156 (2003) (citation omitted). PostBuckley, appearances matter, even more so than 

protected liberties. 
 

 

15 


B. 	The Confusion over McConnell and the 

Wisconsin Right to Life Clarification 

By the advent of McConnell v. FEC, this Court 

expanded the concept of regulable political speech to 

include communications that were the “functional 

equivalent” of express advocacy, and thus subject to 

regulation. 540 U.S. 93, 206 (2003). What was once 

deemed high-value, independent speech with little or 

no concerns about corruption or its appearance now 

received less protection by the Court. Still, the Court 

left open the possibility that future, as-applied challenges might narrow, and better define, the class of 

communications known as the functional equivalent 

of express advocacy. 

There is considerable tension in the accepted 

standards developed for distinguishing regulable 

from non-regulable political speech in this Court’s 

jurisprudence. The cause of tension is easy to identify. 

Favor speech, through narrow rules and objective 

guidelines, and ensuing regulations will be underinclusive. Favor regulation, through broad rules and 

flexible standards, and the ensuing regulations will 

be overinclusive. Fortunately, there is a solution found 

in this Court’s jurisprudence. Chief Justice Roberts 

expressed a truth central to the First Amendment – 

err on the side of speech. Government officials should 

never be trusted with enforcement of open-ended, illdefined, speech codes. See Grayned v. City of Rockford, 

408 U.S. 104, 109 (1972); see also NAACP v. Button, 

371 U.S. 415, 433 (1963). Otherwise, along comes 
 

16 


two-prong, 11-factor, Heads You Speak, Tails You 

Don’t tests. 

Regulatory lines, if to be drawn at all, must be 

drawn to err on the side of the speaker. This is the 

truth of Wisconsin Right to Life, Buckley, and the 

general body of this Court’s First Amendment case 

law. Government officials cannot be expected to place 

individual liberty above the exercise of government 

authority. Buckley’s express advocacy test and Wisconsin Right to Life’s appeal to vote test, narrowly 

construed, realize this principle. Other courts approaching difficult-to-decide speech issues have 

recognized the need for speech-protective, bright-line 

approaches as well. In Illinois, for example, courts 

apply the innocent construction test in analyzing libel 

claims. John v. Tribune Co., 24 Ill.2d 437, 442 (1962). 

In those situations, an “article is to be read as a 

whole and the words given their natural and obvious 

meaning, and requires that words allegedly libelous 

that are capable of being read innocently must be so 

read and declared nonactionable as a matter of law.” 

Id. Stated differently, a “statement ‘reasonably’ 

capable of a nondefamatory interpretation, given its 

verbal or literary context, should be so interpreted. 

There is no balancing of reasonable constructions.” 

Solaia Technology, LLC v. Specialty Pub. Co., 221 

Ill.2d 558, 580 (2006). Like the appeal to vote test, 

once one reasonable, nondefamatory construction of 

the speech is found, the analysis ends and speech 

remains protected. 
 

 

17 


The simplest reading of Chief Justice Roberts’ 

appeal to vote test is that once one reasonable interpretation of an advertisement is found other than an 

appeal to vote for or against a specific candidate, 

speech is not the functional equivalent of express 

advocacy. The unspoken concern about this test is 

that it limits government authority and does not 

perfectly “capture” the entire class of regulable 

speech. 

II. 	 The Federal Election Commission’s Heads 

You Speak Tails You Don’t Approach 

Deciding to go it alone, the FEC fashioned its 

own test for determining whether speech was subject 

to regulation as electioneering communications postWisconsin Right to Life. It involves a “multi-step 

analysis for determining whether [electioneering 

communications] that do not qualify for the safe 

harbor nevertheless qualify for the general exemption.” Explanation and Justification, 72 Fed. Reg. at 

72902. In other words, a communication must fit into 

a “safe harbor” to receive protection, otherwise, 

speakers are subject to the prolix, and ill-defined, set 

of Commission determinations in deciding whether 

they may communicate. Stated more concretely, 

speech is deemed impermissible outside the harbor 

unless the Commission decides a speaker might fit 

within an exemption. Life vests are heartily encouraged. 
 

 

18 


A. The Safe Harbor 

Most citizens hoping to comply with the FEC 

regulations will attempt to hedge and trim their 

speech into a protected safe harbor. Speech is safe, 

and permissible, if it does not mention “any election, 

candidacy, political party, opposing candidate, or 

voting by the general public,” and does not take a 

position on the candidate’s “character, qualifications, 

or fitness for office.” Id. at 72903; see also 11 C.F.R. 

§ 114.15(b)(1)-(3). It is not just that speech may not 

discuss certain issues; it must also reference specific 

government-approved topics if it is to be deemed safe 

and categorically protected. Such speech is required 

to focus “on a legislative, executive, or judicial matter 

or issue” or propose a “commercial transaction.” Id. 

To be helpful, the Commission penned several 

examples of speech likely falling outside of the safe 

harbors during its rulemaking. Some articles of 

potentially repressed speech include: “pictures of a 

ballot or voting booth,” “Bob Jones is running for the 

Senate,” “Bob Smith supports our troops; Bill Jones 

cut veteran’s benefits by 20%,” and even implied 

references to incumbents, like, “It’s time to take out 

the trash, select real change with Bob Smith,” or 

“This November, we can do better.” Explanation and 

Justification, 72 Fed. Reg. at 72903. Steering clear, 

far clear, of these subjects ensures government permission, while selecting the content of your own 

speech ensures increased scrutiny and the likelihood 

of an enforcement action. 
 

 

19 


Not only must speech focus on a “legislative, 

executive, or judicial matter or issue,” it must also 

“urge the candidates themselves to take a position, or 

urge the public to take a position and contact the 

candidates.” Id. Speakers wishing only to educate the 

public or increase awareness about an issue and 

whose speech is captured by the electioneering communications regulations are compelled to craft their 

message according to the “best practices” of the 

Commission. A safe harbor just ignores the truth that 

speakers, not government bureaucrats, are best 

equipped, and constitutionally protected, to make 

those sorts of determinations. Hurley v. Irish-Am. 

Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 

557, 573 (1995) (citing McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 341-42 (1995)). After all, “one 

important manifestation of the principle of free 

speech is that one who chooses to speak may also 

decide what not to say.” Id. (internal quotations and 

citations omitted). 

The problem with employing a safe harbor is that 

it signals citizens that some speech is clearly authorized, leaving speakers to take their chances with the 

rest. Every solemn promise of the Commission notwithstanding, most citizens will forgo the opportunity 

to meet the Enforcement Division of the FEC. Being 

uncertain just how the Commission might balance 

and weigh speech outside the harbor, playing safe, or 

not speaking at all, ensures protection against an 

excitable Commission. Combining the vagueness and 

overbreadth of the FEC’s regulations at issue here 
 

 

 

20 


raises special First Amendment concerns due to their 

chilling effect. See Reno v. American Civil Liberties 

Union, 521 U.S. 844, 871-72 (1997). 

B. Speech Outside the Harbor: Not so Safe 

Like international waters, few speakers will dare 

leave the harbor of safety created by the Commission. 

This is understandable. Citizens have no way to 

balance the multitude of factors like the ill-defined 

“indicia of express advocacy” or how the Commission 

might interpret what their speech really means. 

Indeed, even the FEC itself cannot accomplish this 

mighty task.2 To avoid investigation and enforcement 

actions, citizens will turn away from expressing 

themselves in a manner most conducive to their 

mission and seek the cold comfort of governmentsanctioned speech. For the few speakers who leave 

the harbor, citizens will find that the balancing, 

weighing, and intricate considerations conducted by 

the FEC bear little resemblance to the test developed 

in Wisconsin Right to Life – one carefully constructed 

with constitutional safeties in mind. 

When speech finds itself outside the harbor, the 

Commission asks “whether the communication includes any indicia of express advocacy and whether 

2 On October 23, 2008, the Commission could not determine 

whether an advertisement presented before it constituted a 

prohibited electioneering communication. See generally Section 

III, infra. 
 

 

21 


the communication has an interpretation other than 

as an appeal to vote for or against a clearly identified 

[f]ederal candidate in order to determine whether, on 

balance, the communication is susceptible of no 

reasonable interpretation other than as an appeal to 

vote for or against a clearly identified [f]ederal candidate.” 11 C.F.R. § 114.15(c) (emphasis added). Asking 

whether speech, on balance, might be regulable does 

not comport with this Court’s appeal to vote test. 

The Commission’s approach to determining 

whether speech constitutes an electioneering communication is flawed in at least three ways. First, the 

FEC asks the wrong question to decide whether 

speech should be regulated. The Commission states 

that it will determine whether speech has an interpretation other than as an appeal to vote for or 

against a candidate (“A”), by asking whether there 

is indicia of express advocacy (“B”) and whether the 

speech has an interpretation other than as an appeal 

to vote for or against a candidate (“A”). In short, if 

A + B = A, then regulate. This strange sort of constitutional logic, to the extent it makes sense, collapses 

internally and finds no support in this Court’s First 

Amendment jurisprudence. 

Second, the Commission did not rely on the First 

Amendment principles discussed in Wisconsin Right 

to Life to create its test. Instead, it seized upon the 

Chief Justice’s application of the appeal to vote test 

as a measure to differentiate regulated from nonregulated speech. 
 

22 


 In reading Wisconsin Right to Life, one may come 

away with several operational tests for determining 

the validity of restrictions affecting speech. A first 

approach examines the broad principles described by 

the Chief Justice and which guide the outcome 

reached in that challenge. As the Chief Justice understood, the First Amendment enjoys a preferred place 

because it supports our “indispensable democratic 

freedoms.” Collins, 323 U.S. at 530. That preference 

“gives these liberties a sanctity and a sanction not 

permitting dubious intrusions. And it is the character 

of the right, not of the limitation, which determines 

what standard governs the choice.” Id. 

These guiding principles led the Chief Justice to 

formulate the appeal to vote test and explained a 

“court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible 

of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate.” 

Wisconsin Right to Life, 127 S. Ct. at 2667. In the 

very same area of the opinion, the Chief Justice 

explained the importance that this test is objective, 

focuses on the communication itself and not intentand-effect, involves “minimal if any discovery,” and 

must eschew the “open-ended rough-and-tumble of 

factors.” Id. at 2666. This approach gives the benefit 

of any doubt to “protecting rather than stifling 

speech.” Id.

 Another reading of Wisconsin Right to Life is 

found by placing emphasis on the particular analysis 

used by the Court and adopting this as the formal 
 

23 


rule. After discussing the First Amendment principles 

in effect, Chief Justice Roberts applied the test to 

demonstrate why the speech in question was not 

regulable: 

First, their content is consistent with that of 

a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and 

urge the public to contact public officials 

with respect to the matter. Second, their content lacks indicia of express advocacy: The 

ads do not mention an election, candidacy, 

political party, or challenger; and they do not 

take a position on a candidate’s character, 

qualifications, or fitness for office. 

Id. at 2667. 

The temptation to rely on the application of the 

appeal to vote test is understandable. It offers regulatory-minded officials a lengthy set of criteria to apply, 

while permitting a great deal of speech to be captured 

in the regulatory ambit. Yet, the list was proffered as 

an example of why regulation was not warranted in a 

particular example before this Court. To be consistent 

with overarching First Amendment truths, this twoprong, 11-factor list cannot be what the Court had in 

mind as a guiding principle when it explained that we 

could no longer rely on an “open-ended rough-andtumble” of factors to decide free speech rights. Doing 

so empowers bureaucrats, not citizens, in making 

decisions about speech. 
 

 

 

24 


Third, in fashioning a two-prong, 11-factor test 

out of the Wisconsin Right to Life holding, the FEC 

created a balancing test that favors regulation and 

prohibition as the operating norm. No speakers know 

in advance, for example, whether speech might 

trigger regulation because it discusses the character, 

qualifications, or fitness of a candidate. Few citizens 

possess the prescience to predict whether inferences, 

implications, or even photographs might trigger the 

Commission’s regulations. After all, if one seriously 

believes that the Chief Justice’s application of the 

appeal to vote test is the test itself, all sorts of speech 

would be captured by that approach. In issuing its 

Notice of Proposed Rulemaking, the Commission took 

these considerations seriously. It included what can 

only be considered risible examples as possible triggers for prohibited speech: 

• 	 Dressing a candidate up as “Rocky” the 

prizefighter. 

• 	 “Support gun rights this November 5.” 

• 	 “Vote for liberty when picking your Senator!” 

• 	 “Remember the House Bank scandal? This 

November, let’s do better.” 

• 	 Candidates appearing in mock settings of 

government offices, which amount to an implied reference to candidacy. 

• 	 “The War party in Washington,” elephants, 

or donkeys. 
 

25 


• 	 “It’s time to take out the trash, select real 

change with Bob Barry.” 

• 	 Allegations about the candidate’s patriotism, 

or lack thereof. 

• 	 The candidate’s “history or absence of public, 

military, or community service.” 

• 	 The “medical, psychological or mental fitness 

of the candidate.” 

• 	 Even peer’s “recollection of candidate’s reputation (e.g. “hardworking,” “scandalous,” 

“faithful public servant,” “philanderer,” tenacious”). 

Notice of Proposed Rulemaking, Electioneering 

Communications, 72 Fed. Reg. 50261 (F.E.C. August 

31, 2007). 

All in all, the Commission included more than 

forty some examples of possible speech that might 

transform communication into a prohibited electioneering communication. With a two-prong, 11-factor 

test, citizens would have to take care to make advertisements that convey their message in the blandest 

manner. Including references to the “liberals in 

Washington,” accidently referencing a challenger by 

implication, or being so bold as to discuss the Rotary 

activities of a candidate may just summon the attention of an excitable Commission. No one knows the 

significance of each element. All that is known is that 

at some point, free speech becomes banned speech. 

The safe course is to not speak at all or to speak as 

the Commission has instructed you. 
 

 

26 


Where is the tipping point between banned and 

free speech under the Commission’s approach? Will 

mentioning the Rotary activities of a candidate while 

discussing a legislative issue trigger fines? Might 

dressing up the hometown hero in Rocky the prizefighter’s garb be enough, by itself, to turn protected 

speech into banned speech? Could the discussion of a 

public scandal connected with the candidate change 

the otherwise permissible communication into the 

impermissible? Outside of the harbor, speakers must 

guess at how six commissioners will scry the meaning 

of their communication. The First Amendment has 

never been so dependent upon a crystal ball. 

Citizens possess a right not only to speak, but 

also to decide the most effective manner in which to 

speak. See, e.g., Pacific Gas & Electric Co. v. Public 

Util. Comm’n of California, 475 U.S. 1, 11 (1986) 

(plurality opinion); Riley v. National Federation of 

Blind of N.C., Inc., 487 U.S. 781, 797 (1988); McIntyre, 514 U.S. at 341-342. By failing to comport with 

the First Amendment and this Court’s earlier instruction in Wisconsin Right to Life, citizens are forced to 

hedge and trim their speech into a circumscribed 

harbor established by the state. But citizens need not 

trim and adjust their speech to make it palpable to 

government bureaucrats. This approach removes 

respect for the inherent dignity and authority of the 

individual to decide what form of speech to produce 

and what content is best to include the communication. Virginia State Bd. of Pharmacy v. Virginia 

Citizens Consumer Council, Inc., 425 U.S. 748, 770 
 

 

27 


(1976) (“There is, of course, an alternative to this 

highly paternalistic approach. That alternative is to 

assume that this information is not in itself harmful, 

that people will perceive their own best interests if 

only they are well enough informed, and that the best 

means to that end is to open the channels of communication rather than to close them”). Above all else, it 

is plain to see that individuals, not six commissioners, should be deciding these matters if freedom of 

speech should retain any import in this Republic. 

In contrast with the Chief Justice’s appeal to vote 

test, the Commission’s Heads You Speak, Tails You 

Don’t Approach is seriously flawed. Instead of giving 

priority to speech through a plain application of the 

“no reasonable interpretation” language found in 

Wisconsin Right to Life, the FEC balances considerations (with elements of import only it knows) to 

decide the line between regulation and freedom. 

Under the appeal to vote test, there is no balancing of 

reasonable interpretations of speech. Under the 

Commission’s Heads You Speak, Tails You Don’t 

Approach, it expressly balances a variety of elements, 

departing from the speech-protective principles designed by Chief Justice Roberts. 

If the FEC’s approach seems bad in theory, it is 

even worse in practice. Not surprisingly, the Commission vested with authority over federal election law 

has difficulties applying its two-prong, 11-factor test. 
 

 

 

28 


III. The Friendly Regulators: The Tie Goes to 

the Commission 

The FEC has enjoyed several opportunities to 

clarify and improve its approach to speech-friendly 

policies regarding the regulation of electioneering 

communications. But in each instance, the Commission has shown a dedication to the inverse of Chief 

Justice Roberts’ now infamous rule: The tie goes to 

the speaker. Under the Commission’s vision, when 

matters come before it, the operative rule is that the 

tie goes to the Commission, favoring government 

authority over liberty and the exercise of arbitrary 

power over First Amendment rights. And though this 

Commission has been instructed for more than thirty 

years to be sensitive to freedom and wary of its own 

authority, that lesson has not taken root. This Commission can no longer be trusted with hopeful, openended tests devised by this Court to protect speech. 

A. National Right to Life Committee Advisory Opinion 

In the midst of the 2008 election season, the 

National Right to Life Committee, Inc. (“NRLC”) 

submitted an advisory opinion request AOR 2008-15 

with the Commission on September 26, 2008. The 

Commission’s October 28, 2008 Open Meeting to 

discuss this matter is included as an appendix.3

 The 

3 The transcript of the October 23, 2008 Open Meeting is 

included along with Advisory Opinion Request 2008-20 that 

discusses the matter. 
 

 

 

29 


advisory opinion request included the script of two 

advertisements NRLC hoped to air. Both discussed 

Barack Obama’s commitment to pro-life principles 

and characterized Obama as being wrong on his 

characterizations. The first advertisement ended by 

asking, “Will Obama now apologize for calling us liars 

when we are the ones telling the truth?” The second 

included the end line, “Barack Obama: a candidate 

whose words you can’t believe in.” See App. 13. 

After just under a month spent in careful consideration about whether the ads constituted prohibited 

electioneering communications, the FEC could not 

reach a conclusion about its own application of the law. 

Though two draft advisory opinions had been issued, 

the Commission failed by two separate votes of three 

to three on October 23, 2008 to approve either approach. See In the Matter of National Right to Life 

Committee, Inc., October 23, 2008 Certification (F.E.C. 

Oct. 23, 2008) (available at http://saos.nictusa.com/saos/ 

searchao?SUBMIT=ao&AO=2808&START=1004842.pdf, 

http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO 

=2808&START=1005408.pdf ). 

And while it appeared there were five commissioners ready to approve the first of the two ads as 

“permissible” speech, the Commission was unable to 

reach a conclusion in that manner. 

A brief glimpse into the operating principles of 

the FEC commissioners can be gleaned from the 

available transcript for the October 23, 2008 Open 

Meeting in which this advisory opinion request was 
 

30 


discussed. The meeting begins with a frank acknowledgement of just how very difficult the issue is to 

decide. One commissioner began to run through the 

two-prong, 11-factor Heads You Speak, Tails You 

Don’t Approach and admitted that the ad focuses on a 

legislative issue related to abortion. The commissioner continued by noting that the ad takes a position on the issue, but did not “exhort the public to 

adopt that position or urge the public to contact public 

officials with respect to the matter.” She concluded by 

expressing her doubt that the ad might not be a 

genuine issue ad since not all four factors were present. See App. 16. The second ad included a tag line of 

“Barack Obama, a candidate whose word you can’t 

believe in.” After explaining in some detail the nature 

of recent litigation faced by the Commission, the 

commissioner asked, “What would any normal person 

do with that information? They would say, well, gee, I 

don’t want to vote for somebody I can’t trust, whose 

word I can’t believe in.” App. 19. Crucial to this 

commissioner’s analytical approach was an examination of audience reaction and the effect of the speech. 

Going further, the same commissioner explained 

that the ad attacked the character of Obama because 

it stated that a person’s word cannot be believed in. 

App. 19-20. After a lengthy discussion of the importance of character in raising children, the commissioner reasoned that mentioning a person’s dishonesty 

is a “very direct attack” on character. App. 20. Significantly, the commissioner then exclaims that the 

citizens requesting the advisory opinion “wouldn’t 
 

 

 

31 


need a 20-day AO [advisory opinion] if it was just an 

issue ad, and he wasn’t seeking to affect the election.” 

App. 21. 

At the end of this analysis, the Commission’s 

Chairman explained how analyzing the speech in 

question devolves “into sort of an ink blot test kind of 

thing where you either see the vase or the two people 

talking to each other; and once you see one or the 

other, you’re never going to see the other.” App. 22. 

The Chairman also read the test in Wisconsin Right 

to Life correctly – “[m]erely because you mention that 

someone is a candidate doesn’t convert the ad into 

something” else and just because citizens requested 

the answer before the election does not make the 

speech the functional equivalent of express advocacy. 

As reasoned by the Chairman, the Wisconsin Right to 

Life test is a bright-line test. If “you can read the ad 

as something other than an appeal to vote, that sort 

of begins and ends the analysis.” App. 24. 

A third commissioner later suggested that while 

Wisconsin Right to Life protects against protracted 

litigation, “there is not a restriction even engaging in 

minor litigation which could clarify enough so that a 

decision could be made fairly quickly.” App. 30. Apparently, under this third approach, speakers enjoy 

an ample remedy found in litigating their rights if 

they can do so in a speedy, non-protracted fashion. 

Examining these widely different approaches 

embraced by different commissioners at the FEC 

should give this Court some pause about the clarity of 
 

32 


its instruction in Wisconsin Right to Life. One commissioner examined contextual factors of the ad – 

timing – in deciding whether the speech was prohibited or not. For her, filing an expedited advisory 

opinion request during the heat of the electoral 

season meant that the speaker had intended to affect 

the election. Of course, what Buckley announced and 

what this Court reiterated in Wisconsin Right to Life 

remains true. Speech cannot be regulated or prohibited based on “the speaker’s intent to affect an election.” 127 S. Ct. at 2665. All such attempts to scry 

into the intent of speakers wreaks constitutional 

havoc by affording “no security for free discussion.” 

424 U.S. at 43 (internal quotations omitted). Despite 

this clear instruction, scrying remains an important 

approach for some at the Commission to decide 

whether speech is prohibited. 

Then again, the same commissioner also supported examining how a “normal person” would react 

to the speech as a cornerstone of analysis. Yet, Buckley and Wisconsin Right to Life remain clear that such 

tests put speakers “wholly at the mercy of the varied 

understanding of his hearers.” Id. “It would also 

typically lead to a burdensome, expert-driven inquiry, 

with an indeterminate result,” causing to “chill a 

substantial amount of political speech.” Wisconsin 

Right to Life, 127 S. Ct. at 2666. Under at least one 

commissioner’s approach, speakers must decide in 

effect how a “normal person” would interpret the 

communication. Of course, that really means scrying 
 

 

 

33 


to determine how a “normal commissioner” would 

give meaning to the speech. 

The Commission, nearly another month later, 

was able to render a decision approving one draft 

advisory opinion that came too late. Because of Commission delay, between October 28 and November 24, 

2008, NRLC Political Action Committee, a separate 

legal entity, was forced to spend some $69,000.00 to 

broadcast the first advertisement. Currently before 

the Commission is Advisory Opinion Request 2008­

20, asking that NRLC be able to refund NRLCPAC 

for running its advertisement while it waited for the 

Commission to reach a decision – that is, make sense 

of its own regulations. 

B. The Wisconsin Right to Life Question 

Briefly examining the litigation position assumed 

by the FEC during Wisconsin Right to Life helps 

illustrate just how far the FEC will go to show why 

speech is prohibited. No intent is too small and no 

inferential clue will be left unturned in unmasking 

the true motives of speakers. It is this sort of Inspector Clouseau approach to speech regulation that must 

be abolished. 

It should be remembered that freedom of “discussion, if it would fulfill its historic function in this 

nation, must embrace all issues about which information is needed or appropriate to enable the members 

of society to cope with the exigencies of their period.” 

Thornhill v. Alabama, 310 U.S. 88, 102 (1940). Just 
 

 

34 


because issues are important in an election does not 

mean they may be banned. Unfortunately, this is 

precisely the approach embraced both now and in the 

past by some elements of the Commission. 

During the course of briefing in Wisconsin Right 

to Life, the Commission suggested that it could infer 

the intent of speakers through the use of an expert 

political consultant. Douglas L. Bailey, veteran political consultant, provided expert testimony on how to 

infer the true intent and “implicit message” of advertisements. The expert reasoned that the ads were 

subtle and focused on issues instead of “exhorting the 

electorate to vote against Senator Feingold.” Wisconsin Right to Life, 127 S. Ct. at 2668. Where one might 

not readily discern the intent of a speaker, the Commission will rely on experts to scry ever so effectively. 

The FEC also sought to demonstrate that the 

real purpose of a communication could be found from 

its timing. Since electioneering communication ads 

always run just before a primary or general election, 

the Commission deemed this evidence that the speech 

was designed to influence them. Fortunately, this 

Court understood that citizens certainly possess the 

freedom to run an issue ad when public interest is 

high, such as in the time around an election, instead 

of when it is low. Indeed, it would constitute a perverse understanding of the First Amendment that 

citizens must wait until public interest has waned so 

they may have permission to speak. Unfortunately, 

reliance on timing and contextual factors to interpret 
 

 

35 


speech as being prohibited has been a steadfast 

approach of the FEC. 

These sorts of freewheeling determinations are 

the stuff regular Inspector Clouseau investigations 

and formal opinions of the Commission are made of. 

This practice puts speakers at risk and permits the 

Commission to exercise the “discretion of an enlightened despot,” relying on expert intuition, timing, 

context, or other activities of the speaker to interpret 

what speech before it really means (both pre- and 

post-Wisconsin Right to Life). Rapanos v. U.S., 547 

U.S. 715, 719 (2006) (plurality opinion). And it is this 

sort of freewheeling discretion and disregard for free 

speech by the Commission that this Court must end. 

---------------------------------♦--------------------------------­

CONCLUSION 

For the foregoing reasons, the decision of the 

United States District Court for the District of Columbia should be reversed and clarification given to 

the speech-protective appeal to vote test described in 

Wisconsin Right to Life. 

Respectfully submitted, 

BENJAMIN BARR 

Counsel of Record 

GOVERNMENT WATCH, P.C. 

619 Pickford Place N.E. 

Washington, DC 20002 

(240) 863-8280 
 

-----------------------------------------------------------------------

App. 1 

BOPP, COLESON & BOSTROM 

ATTORNEYS AT LAW 


(not a partnership) 


THE NATIONAL BUILDING 


1 South Sixth Street 


TERRE HAUTE, INDIANA 47807-3510 


Telephone 812/232-2434 Facsimile 812/235-3685 


JAMES BOPP, JR.

1 THOMAS J. MARZEN

 (1946-2007) Senior Associates 

RICHARD E. COLESON1 E-MAIL ADDRESSES 

BARRY A. BOSTROM1 jboppjr@aol.com 

rcoleson@bopplaw.com Associates bbostrom@bopplaw.com RANDY ELF2 

relf@bopplaw.com JEFFREY P. GALLANT3 

jgallant@bopplaw.com ANITA Y. WOUDENBERG1 

awoudenberg@bopplaw.com JOSIAH S. NEELEY4 

jneeley@bopplaw.com CLAYTON J. CALLEN5 

ccallen@bopplaw.com JOSEPH E. LA RUE6 

jlarue@bopplaw.com SARAH E. TROUPIS7 

stroupis@bopplaw.com KAYLAN L. PHILLIPS8 

kphillips@bopplaw.com JOSEPH A. VANDERHULST1 

jvanderhulst@bopplaw.com SCOTT F. BIENIEK9 

sbieniek@bopplaw.com 1

admitted in Ind. 

2

admitted in NY and Penn. 

3

admitted in Va. 

4

admitted in Tex. 

5

admitted in Mo. 

6

admitted in Oh. 

7

admitted in Wis. 

8

admitted in Okla. 

9

admitted in Ill. 
 

 

App. 2 

December 1, 2008 

AOR 2008-20 

Re: Advisory Opinion Request 

Thomasenia P. Duncan 

Office of General Counsel 

Federal Election Commission 

999 E Street NW (Filed Dec. 1, 2008) 

Washington, DC 20463 

By email & 1st Class Mail 

Dear Ms. Duncan, 

On behalf of the National Right to Life Committee, Inc. (“NRLC”), we respectfully request an Advisory Opinion (“AO”) from the Federal Election 

Commission (“FEC”), pursuant to 2 U.S.C. 437f of the 

Federal Election Campaign Act (“FECA”). NRLC 

seeks guidance as to whether it may reimburse its 

separate segregated fund, National Right to Life 

Political Action Committee (“NRLPAC”), for the costs 

of broadcasting a radio advertisement that was 

declared by the FEC, see AO 2008-15, not to be subject to the corporate prohibition at 2 U.S.C. § 441b 

(“Prohibition”). 

Facts 

On September 26, 2008, NRLC submitted AOR 

2008-15, in which NRLC “request[ed] an immediate 

response” (or within the 20 days provided in 11 C.F.R. 

§ 112.4(b) for candidates) as to whether NRLC would 

be prohibited from broadcasting two radio advertisements (Apology #1 and Apology #2). The reason for 
 

App. 3 

the haste, of course, was the fact that public interest 

in this issue was at a peak prior to the November 4 

election, so NRLC “want[ed] to begin to run its ads 

immediately.” AOR 2008-15 at 4. NRLC added the 

following note regarding urgency: 

NRLC recognizes that 11 C.F.R. § 112.4(b) 

only provides for a shorter response period 

when the requester is a “candidate” and 

NRLC is not a candidate. But it is inexcusable that this special benefit afforded to politicians should not also be afforded to private 

citizens and citizen groups. 

AOR 2008-15 at 4. 

The Supreme Court has placed some reliance on 

the availability of advisory opinions to mitigate 

burdens on free speech and association and to mitigate vagueness concerns. See, e.g., McConnell v. FEC, 

540 U.S. 93 (2003). And in Citizens United v. FEC, a 

case now on appeal in the United States Supreme 

Court (No. 08-105), the FEC argued against a preliminary injunction to protect ads that also met the 

statutory “electioneering communication” definition 

on the basis that advisory opinions were available 

and could be obtained on an expedited basis: “When 

necessary, the Commission expedites its response to 

an urgent request for an advisory opinion, providing 

an answer in well under sixty days.” Defendant 

Federal Election Commission’s Memorandum in 

Opposition to Plaintiff ’s Second Motion for Preliminary Injunction at 10 n.8, Citizens United v. FEC, 
 

 

 

 

 

App. 4 

No. 1:07-cv-2240-RCL (D.D.C. Jan. 8, 2008) (Doc. 33 

on PACER). 

The FEC set the AOR for its October 23, 2008 

open meeting. 

In preparation for the October 23 meeting, the 

General Counsel submitted a draft AO stating that 

Apology #1 was not subject to the Prohibition, either 

as an independent expenditure or an impermissible 

electioneering communication. See Agenda Doc. 08­

32. The General Counsel’s draft AO identified Apology 

#2 as containing express advocacy. Chairman 

McGahn submitted a draft AO stating that neither ad 

was subject to the Prohibition. See Agenda Doc. 08­

32-A. 

At the October 23 meeting, comments by the 

commissioners indicated that three commissioners 

would have found that NRLC could permissibly 

broadcast both ads, Transcript (“TS”) 1 at 19-20, 22, 

two commissioners would have followed the General 

Counsel’s Report by finding Apology #1 permissible 

and Apology #2 impermissible, TS at 6, 28, and one 

commissioner would have found both ads impermissible. TS at 26-27. See also TS at 30-31 (votes). 

Although there were apparently five commissioners (and at least the requisite four commissioners 

necessary for a decision) who indicated that they 

would have found Apology #1 permissible, the FEC 

1 A transcript of the open meeting is appended. 
 

 

App. 5 

did not immediately issue an AO permitting NRLC to 

pay for that ad. Because an AO was not immediately 

issued permitting NRLC to broadcast Apology #1, 

NRLC’s registered political committee NRLPAC 

began broadcasting it instead, starting on October 

28.2 

2

 The version of Apology #1 broadcast by NRLPAC slightly 

differs from the script included in AOR 2008-15. Instead of 

including the actual clip of Barack Obama’s statement, 

NRLPAC simply read the quote, and NRLPAC removed the 

reference to a specific journalist in the first paragraph. These 

changes do not alter the substance of Apology #1 in any legally 

significant way for purposes of this AOR. The complete text of 

Apology #1 as broadcast by NRLPAC is as follows: 

Male: The following is paid for by National Right to 

Life PAC at nrlpac.org. Not authorized by any candidate or candidate’s committee, NRLPAC is responsible for the content of this advertising. 

Female 1: In August, National Right to Life released documents proving that in 2003, Barack 

Obama was responsible for killing a bill to provide 

care and protection for babies who are born alive after 

abortions, and that he later misrepresented the bill’s 

content. 

Male: When Obama was asked about National 

Right to Life’s charges in a televised interview, he replied: (quote) “ . . . I hate to say that people are lying, 

but here’s a situation where folks are lying.” 

Female 1: We challenged Obama to admit that the 

documents are genuine, and admit to his previous 

misrepresentations. FactCheck[dot]org then investigated, and concluded: 

Female 2: (clinical, detached tone): “Obama’s claim 

is wrong . . . The documents . . . support the group’s 

(Continued on following page) 
 

 

App. 6 

On November 24, the FEC approved AO 2008-15, 

which found Apology #1 permissible for NRLC to 

broadcast and reached no conclusion on Apology #2. 

Between October 28, when NRLPAC began broadcasting Apology #1, and November 24, when AO 2008-15 

was finally issued, NRLPAC spent $69,271.56 broadcasting Apology # 1. 

Discussion 

The FEC’s AO 2008-15 means that Apology #1 

was in fact permissible when NRLC requested the 

opinion on September 26 (when the AO was requested), on October 22 (when the General Counsel 

submitted her draft AO), and on October 23 (when 

sufficient commissioners to issue an AO indicated 

that they believed the ad to be permissible). But 

NRLC could not rely on the General Counsel’s initial 

draft (which was not approved in any event) or on the 

positions indicated at the October 23 meeting (especially since there were indications of attempted 

negotiations as to NRLC’s First Amendment rights), 

claims that Obama is misrepresenting the contents of 

[Senate Bill] 1082.” 

Female 1: Was Obama afraid that the public would 

learn about his extreme position – that he opposed 

merely defining every baby born alive after an abortion as deserving of protection? 

Will Obama now apologize for calling us liars when 

we were the ones telling the truth? 
 

 

App. 7 

TS 31-32, because only an official AO provides legal 

protection. See 2 U.S.C. § 437f(c). 

So an issue-advocacy citizen group and its members were deprived of protection by the FEC for their 

right to engage in First Amendment-protected, corepolitical, amplified speech, see Buckley v. Valeo, 424 

U.S. 1, 22 (1976), at the very time when the public’s 

interest in NRLC’s issue was at its peak. NRLC could 

not safely speak unless it was willing to venture forth 

without protection in the face of two regulations, 11 

C.F.R. §§ 100.22(b) and 114.15, that are so vague that 

the FEC Commissioners, themselves, could not 

readily or unanimously agree as to the regulations’ 

applicability. 

Moreover, the Commission seemed unable, or 

unwilling, to apply the constitutional mandate that 

“in a debatable case, the tie is resolved in favor of 

protecting speech.” FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652, 2669 n.7 (2007) (“WRTL II”). This 

mandate ought to be applied by the Commission so 

that where the Commissioners split evenly on 

whether a communication is prohibited, the communication is recognized as permissible. Similarly, 

because § 100.22(b) turns on whether “reasonable 

minds could . . . differ” and § 114.15 turns on whether 

a “communication is susceptible of no reasonable 

interpretation other than as an appeal to vote,” and 

because Commissioners nominated by the President 

and confirmed by the Senate to a federal agency 

specializing in campaign-finance issues surely must 

be assumed to be reasonable, where commissioners 
 

 

 

App. 8 

“differ” on whether there is an appeal to vote in a 

communication then that communication should not 

be deemed express advocacy or an impermissible 

electioneering communication. 

These constitutional problems, coupled with the 

delay in processing AOs at times when public speech 

on public issues is most pressing, requires a new 

approach. While resolving all of these problems is 

beyond this AOR, the facts of this request offer a good 

place to begin. 

NRLC believes that in a situation where a connected organization is able and chooses to fund 

communications through a separate segregated fund 

as a legal precaution while it awaits the outcome of a 

requested AO near an election, the connected organization should be able to reimburse its separate segregated fund for its disbursements to broadcast the ad 

if it is recognized in an AO as permissible. The ability 

of NRLPAC to speak was no substitute for NRLC 

itself speaking. See, e.g., WRTL II, 127 S. Ct. at 2671 

n.9 (PAC alternative not adequate substitute). And 

since federal funds are much more difficult to raise 

than other funds, connected organizations and SSFs 

rightly prefer using scarce federal funds only for 

communications for which the requirement of using 

federal funds is constitutionally justified. 

The FEC could approach this in at least two 

ways. First, it might interpret the exclusion for 

administrative expenses, 2 U.S.C. § 441b(b)(2)(C), 

from the prohibition on “contribution or expenditure” 
 

App. 9 

and “any applicable electioneering communication,” 2 

U.S.C. § 441b(b)(2), to permit reimbursement for such 

activity where the activity was undertaken as a legal 

precaution for the connected organization while it 

awaits a response to an advisory opinion requested 

near an election. A legitimate “administration” function, 11 C.F.R. § 114.5(b), is the proper payment of 

obligations and the allocation of funding to comply 

with constitutional and legal requirements. This 

approach provides the advantage of fitting the new 

reimbursement potential into an existing body of law. 

For example, 11 C.F.R. § 114.15(b)(3) provides for the 

reimbursement of administrative expenses by a 

connected organization to its SSF within 30 days. And 

AO 1983-22 recognized that the FEC has authority to 

permit reimbursement beyond that time period where 

an entity had requested an AO within the 30-day 

period. This is, of course, analogous to the present 

situation with NRLC and NRLPAC and the present 

AOR. 

Second, the FEC might simply recognize that 2 

U.S.C. § 441b(a) prohibits corporate independent 

expenditures and “applicable electioneering communication[s],” not expenditures for permissible communications. So, where communications are paid for by 

an SSF as a legal precaution for the connected organization while it awaits a response to an advisory 

opinion requested near an election, there is no justification for forbidding the reimbursement. Specifically, 

in such a situation there is no corporate corruption 

concern that would justify the government from 
 

App. 10 

forbidding the reimbursement, so that First Amendment liberties should prevail. So the FEC could 

simply issue the present AO recognizing in this 

circumstance the permissibility of the reimbursement. The Commission may then wish to engage in a 

rulemaking on the subject to explore further the 

constitutionally- and legally-permissible boundaries 

for allowing such reimbursements. 

Question 

Under these circumstances, may NRLC reimburse NRLPAC for the costs involved in broadcasting 

Apology #1? 

 Sincerely, 

BOPP, COLESON & BOSTROM 

/s/ James Bopp, Jr. 

James Bopp, Jr. 

Richard E. Coleson 

Clayton J. Callen 
App. 11 

AUDIOTAPE TRANSCRIPTION 

from 

FEC OPEN MEETING – OCTOBER 23, 2008 

* * * * 

Taken for: 

Bopp, Coleson & Bostrom 


Kaylan Lytle Phillips 


1 South Sixth Street 


Terre Haute, Indiana 47807 


812-232-2434 


* * * * 

CROSSROADS COURT REPORTING 


Renee R. Dobson, RMR 


9733 Sable Ridge Lane 


Terre Haute, IN 47802 


812-299-0442 


[2] APPEARANCES 

SPEAKERS: 

Donald F. McGahn, II, Chairman 

Steven T. Walther, Vice Chairman 

Cynthia L. Bauerly, Commissioner 

Caroline C. Hunter, Commissioner 

Matthew S. Peterson, Commissioner 

Ellen L. Weintraub, Commissioner 

Jonathan Levin, General Counsel 

Robert Knop, General Counsel 

David Adkins, General Counsel 


Amy Rothstein, General Counsel 

 

App. 12 

[3] PROCEEDINGS

 CHAIRMAN MCGAHN: All right. Next up, 

Draft Advisory Opinion 2008-15 submitted by National Right to Life Committee, Inc. 

Do we have any other late-submitted documents 

we need to – 

UNIDENTIFIED MALE SPEAKER: Yes, 

Mr. Chairman. We’d move for the sustention of the 

attorney’s – provision for the attorney’s submission of 

documents to consider, Agenda Document Number 

08-32 and Agenda Document 08-32A. 

 CHAIRMAN MCGAHN: Without objection, 

so ordered. 

 MR. ADKINS: Good morning, Mr. Chairman, Commissioners. The two draft advisory opinions 

before you, Agenda Document 08-32 and Agenda 

Document 08-32A, respond to an Advisory Opinion 

request submitted on behalf of the National Right to 

Life Committee, Incorporated. The NRLC is a nonstock, 501c4 nonprofit which has produced two radio 

advertisements. The NRLC intends to broadcast 

these advertisements immediately and continuously 

throughout the United States leading up to the 

November 2008 general election. The two advertisements involve a dispute between the NRLC [4] and 

Senator Barack Obama over a vote that Senator 

Obama cast as a member of the Illinois legislature 

and specifically whether Senator Obama mischaracterized that vote in subsequent statements. The only 
 

 

 

 

App. 13 

difference between the two advertisements is that the 

second advertisement features a concluding sentence 

that reads, “Barack Obama, a candidate whose words 

you can’t believe in.” The committee asks whether the 

NRLC’s use of general treasury funds to finance the 

broadcast of the advertisements would constitute 

prohibitive corporate expenditures or prohibitive 

electioneering communications. 

The first draft, Agenda Document 08-32, concludes that the first advertisement does not contain 

express advocacy and would be a permissible corporate-funded electioneering communication. Therefore, 

the NRLC would be able to fund its broadcast with 

general treasury funds. 

Regarding the second advertisement, the draft 

concludes that the ad does contain express advocacy, 

and therefore the NRLC’s funding of its broadcast 

with treasury funds would constitute a prohibitive 

corporate expenditure. 

By contrast, the second draft, which is [5] Agenda 

Document 08-32A, or revised Draft B, concludes that 

neither advertisement is an impermissible electioneering communication or contains express advocacy. 

Therefore, the NRLC would be able to use treasury 

funds to finance the broadcast of both advertisements. 

However, we received two comments on the 

drafts, specifically the first draft, and one comment 

on the request. So I’m happy to address any questions 

you may have. Thanks. 
 

App. 14 

 CHAIRMAN MCGAHN: Thank you. First, 

I’d like to thank Mr. Adkins for his work on this. 

Whenever we get anywhere near the history of the 

agency on issues that involve interpreting Supreme 

Court cases is a very challenging area. And the herding of the cats here has taken up a lot of time, and I 

appreciate the effort and various drafts and – and 

helping all the commission with their thinking on 

this. 

Two drafts and on the first ad, my sense is there’s 

some agreement at least as to the conclusion. And 

then there’s a difference on the – whether mentioning 

– whether putting that extra line in the ad changes 

the ad. Given that Draft B is from me, it’s pretty clear 

where I [6] stand, but the thing about this is it’s an 

AO request, and it’s a rather targeted request, and it 

certainly is a request designed to put a tough issue in 

front of the commission. This is not an easy case. 

These were ads written in a way to probably raise a 

lot of issues. In a lot of ways this is a law school exam 

on the meaning of the Wisconsin Right to Life test. 

And – and, you know, it’s tough as an agency to look 

at test cases because they always raise issues that 

may not otherwise be raised, but that’s the beauty of 

the AO process. We still have to try to answer the 

questions as best we can. Any comments, thoughts, 

motions? Ms. Weintraub? 

COMMISSIONER WEINTRAUB: Thank 

you, Mr. Chairman. I support the other draft. We 

didn’t originally have two drafts, so they’re not – one 

of them doesn’t have a letter, and the other one is just 
 

 

App. 15 

Draft B. I support the unlettered Agenda Document, 

08-32. I think that it is most consistent with the 

Wisconsin Right to Life decision, with our regulation 

implementing the Wisconsin Right to Life decision, 

with our – with the arguments that this agency has 

made in court subsequent to that regulation, and the 

[7] Wisconsin Right to Life decision, and with the 

responses that we’ve gotten back from the court on – 

from lower courts on that regulation and on interpretations of it. I know a lot of people preferred the 

magic word test, and, you know, there were a lot of 

serious, respected people who for many years thought 

that was the end point of under the constitution of 

what could be regulated was magic words. But in the 

McConnell case the Supreme Court said that that 

test is functionally meaningless and expanded into 

the area of functional equivalent of express advocacy. 

When we got to the Wisconsin Right to Life case, 

the court said, an ad is a functional equivalent of 

express advocacy only if the ad is susceptible of no 

reasonable interpretation other than as an appeal to 

vote for or against a specific candidate. Under this 

test, WRTL’s three ads are plainly not the functional 

equivalent of express advocacy. First, their content is 

consistent with that of a genuine issue ad: The ads 

focus on a legislative issue, take a position on the 

issue, exhort the public to adopt that position, and 

urge the public to contact public officials with respect 

to the matter. 

[8] And I’ll just interrupt the quote at this point 

to point out that the ad in this case – I suppose it 
 

 

 

App. 16 

focuses on a legislative issue. It’s a past legislative 

issue. It’s a vote that was taken in the state senate in, 

I think, 2000, but it is – it does generally pertain to 

the issue of abortion, which clearly is an ongoing 

public policy concern that, you know, people get very 

animated about, and it’s very important to a lot of 

people. So I’m, you know, not trying to read this too 

narrowly. The ad takes a position on – certainly on 

the vote on that issue. Doesn’t really exhort the 

public to adopt that position or urge the public to 

contact public officials with respect to the matter. So 

it’s not clear out of the four factors that the court 

mentioned as being consistent with that of a genuine 

issue ad. At least two of them are clearly missing 

from this ad. 

Second, going back to the quote, their content 

lacks indicia of express advocacy: The ads do not 

mention an election candidacy, political party or 

challenger, and they do not take a position on the 

candidate’s character, qualifications, or fitness for 

office. 

[9] Now, those factors, those two factors, I think, 

are clearly evident. The indicia of express advocacy, 

in the ad – in the second ad which has the tag line – 

let me find it – “Barack Obama, a candidate whose 

word you can’t believe in.” 

A candidate, mentions that he’s a candidate and 

says that his word can’t be believed in. In the – in a 

recent case that we litigated, “The Real Truth About 

Obama,” – there were same counsel who has filed the 
 

 

 

 

 

App. 17 

request today – we had a couple of other ads where 

the tag line was in one case, “Now you know the real 

truth about Obama’s Position on abortion. Is this the 

change you can believe in?” The commission took the 

position that that was not express advocacy. 

The second ad had the tag line, “Obama’s Callousness,” – and I’m going to put in a dot, dot, dot 

because the rest – there’s a part in the middle that 

doesn’t really go to the legal issue – Obama’s callousness reveals a lack of character and compassion that 

should give everyone pause. 

Should give everyone pause was enough for this 

commission to go into court and argue that that’s 

express advocacy. 

[10] Now, the really interesting thing to me 

about, “The Real Truth About Obama” case is that the 

decision we got back from the Eastern District of 

Virginia, not normally a place where one finds really 

liberal interpretations of campaign finance laws, 

was that both of these ads were express advocacy; 

that both of them met the no-other-reasonableinterpretation test under Wisconsin Right to Life. 

I was stunned and gratified by that because that 

actually had been my position all along, but, you 

know, I didn’t expect them to agree with me. 

But if you look at those two tag lines and say, 

well, that’s express advocacy, I think it’s really hard 

to come back and say a candidate whose word you 

can’t believe in doesn’t make the cut. As I said, either 
 

App. 18 

under the direct words of Wisconsin Right to Life or 

under our regulation, which the court in “Real Truth 

About Obama” said, you know, was a pretty close 

matchup to the court’s opinion. It pretty much endorsed our regulation as an accurate and precise 

reflection of the Supreme Court’s view. 

Now, I recognize that the other draft does attempt to proffer some other explanations for [11] 

what was going on in that second ad. There are – let’s 

see. Am I on the right draft here? There are, I think, 

four different proposed – let’s see – one, two, three, 

four – five different proposed interpretations of the 

ad, none of which go to the tag line, which is, of 

course, the difference between the two ads. That’s 

why I thought the first draft, the unnumbered – 

unlettered draft that I support was a good, narrow 

interpretation of Wisconsin Right to Life and our 

regulation because even though the ad, I think, does 

clearly go to Senator Obama’s character, without that 

tag line I think it doesn’t quite cross over the line that 

– the very high bar that the Supreme Court set for us 

in Wisconsin Right to Life. And as I said, the alternative explanations for even the second ad in the – in 

Draft B don’t address that – that tag line. What the 

draft does go on to say is that just merely referencing 

Senator Obama as a candidate doesn’t convert the ad 

into an appeal to vote. Maybe that’s true, but in some 

hypothetical context one could call somebody a candidate without it being an appeal to vote for or against, 

but there’s no other explanation offered as to why 

that word, candidate, is in there otherwise. What [12] 
 

 

 

App. 19 

else does it mean other than here’s a candidate; 

somebody is running for election that you can’t trust? 

What would any normal person do with that information? They would say, well, gee, I don’t want to vote 

for somebody I can’t trust, whose word I can’t believe 

in. 

The draft goes on to say that the ad, even the 

second ad doesn’t comment on his – Senator Obama’s 

fitness or qualifications for office. 

On the contrary, it takes issue with Senator 

Obama’s candor with respect to statements supposedly made by the senator about requester; hence, the 

ad does not say that Senator Obama is a candidate 

you can’t believe in, but instead remains focused on 

what he supposedly said; thus stating that he’s a 

candidate whose word you can’t believe in with respect to what he said about requester. And I have to 

say I cannot find the legal difference or even the 

factual difference between those two statements; that 

he’s a candidate you can’t believe in as opposed to a 

candidate whose word you can’t believe in because 

he’s not doing mime out there on the campaign trail. 

He’s using words. If you can’t believe his words, what 

is it that you could believe about [13] this guy? 

And it’s interesting to me – and I don’t know; 

maybe this is inadvertent – that the draft says – it 

doesn’t comment on his fitness or qualifications for 

office, but it leaves out the word, character, which is 

in both the Supreme Court test and in our regulation. 

And I think character is really the key to this because 
 

App. 20 

when you say somebody’s word can’t be believed in, 

that’s a very direct attack on character. You know, you 

say somebody’s word can’t be believed in? In some 

parts of the country them is fightin’ words. 

And certainly, when I try and teach my children 

about what it takes to be a person of good character, 

what traits they ought to be adopting, honesty and 

integrity and trustworthiness and having a word that 

people can believe in are really high on my list of good 

character traits. And I’m – I’m willing to bet that the 

other parents on this panel teach their kids the same 

thing. This does go directly to character. To say that a 

candidate is – someone who is a candidate whose 

word you can’t believe in, I just don’t think there’s 

any reasonable interpretation of those words other 

than don’t [14] vote for this guy. And it’s not clear to 

me actually whether if the ad said don’t vote for him 

because he’s a candidate whose word you can’t believe 

in, if that would be enough for my colleagues to say, 

that makes the ad express advocacy; or whether they 

would still say, well, there’s all this issue talk in 

there, and that kind of outweighs the even magic 

words in the context of this ad. I’m not really sure 

what the end point is of that analysis. I just – I just 

don’t think it’s – it’s reasonable. I don’t think, again, 

if – if – again, looking to the more conservative of the 

two ads in, “The Real Truth About Obama,” if 

Obama’s callousness reveals a lack of character and 

compassion, that should give everyone pause is 

enough to trip the express advocacy standard, I don’t 

see how saying that he’s a candidate whose word you 
 

App. 21 

can’t believe in could possibly be anything other than 

urging somebody – urging anybody who hears this to 

– to vote against him. And indeed, the fact that he 

came in here and said, I want a 20-day AO even 

though I’m not entitled to it, and I really wanted – my 

colleagues know I really did try to get an answer as 

quickly as possible on this. I [15] wanted to answer 

his question quickly because I always assumed that 

these ads were all about the election. You wouldn’t 

need a 20-day AO if it was just an issue ad, and he 

wasn’t seeking to affect the election. The reason that 

he needed to – was urging us to get him an answer 

quickly, I think, is because the election is coming up. 

And I think, you know, it would be better if we could 

have answered even quicker and even better if we 

could agree on the result; although, I’m not – I’m not 

optimistic. 

So for all of those reasons I support the first 

draft, the unlettered draft, and not Draft B. And I 

would be happy to move Draft – Draft Unlettered – 

it’s very confusing; sorry – Draft 08-32 at the appropriate time, or we could have further discussion, 

whatever my colleagues prefer.

 CHAIRMAN MCGAHN: The problem I have 

with the unlettered draft is – well, essentially the flip 

side of the same coin that Commissioner Weintraub 

raised, page 8, lines 13 through 19, when we get into 

referencing Senator Obama as a candidate, significantly alters the tone of the advertisement, focussing 

it as much on Senator Obama’s bid for the Presidency 

as his actions as a [16] state legislator. 
App. 22 

 Additionally, the advertisement manipulates 

senator Obama’s campaign slogan, “Change We Can 

Believe In” to attack his character and call into 

question his trustworthiness as a candidate whose 

word you can’t believe in. The idea that the tone of 

the ad is now the standard to me is not a standard at 

all, and I think this ends up devolving into sort of an 

ink blot test kind of thing where you either see the 

vase or the two people talking to each other; and once 

you see one or the other, you’re never going to see the 

other. To me the issue is whether or not you can read 

an ad as something other than an appeal to vote, and 

I think that both ads you can. Merely because you 

mention that someone is a candidate doesn’t convert 

the ad into something other than – it doesn’t convert 

that into an appeal to vote or preclude reading it as 

something other than an appeal to vote. Simply 

because they want an answer before the election that 

somehow we’re going to read some inference into this 

being therefore the functional equivalent of express 

advocacy to me is a farfetched argument because 

folks who want to run issue ads tend to use the [17] 

campaign cycle as the vehicle to bring their issue to 

the public attention because, well, that’s when the 

most people are paying attention. You’re not necessarily going to run an issue ad on an issue of public in 

court, you know, the second week of January or 

something. I mean, you may run it during the Super 

Bowl; but you run it during election season, and 

that’s when folks have the most opportunity to be 

heard. So, of course, they’re going to use it. 
 

 

 

App. 23 

And then as far as the issue being a past legislative issue, the issue that is coming up apparently 

constantly all across the country in state legislatures, 

when I first read the ad, I thought, well, okay, these 

folks are Right-to-Life folks who 365 days a year care 

about their issue set, and now they’ve found a vote 

from a current candidate that illustrates their issue; 

and they have been called liars, I guess, and they 

want to essentially defend themselves. They want to 

make the point that this fellow is a candidate who 

what he says about is you can’t believe in. And that’s 

how I read the ad originally, and that’s how I still 

read the ad. 

And it just goes back to what I said [18] initially. 

This is a tough case because these are essentially a 

test case. They’re very carefully scripted ads. But 

when we get into those sorts of ads, it does become 

tough. And, you know, when you get into the tone of 

the ad and factors and that kind of thing, I just don’t 

see that as – as something that provides a sort of 

bright-line rule that the Supreme Court thought they 

were doing in the Wisconsin Right to Life. 

Since it was raised – I wasn’t going to raise it, 

but “The Real Truth About Obama” litigation, the end 

of the opinion, the court says that plaintiff is free to 

disseminate their message and make any expenditures they wish. And so, you know, it seems – it seems 

like we may even disagree over what that district 

court said or didn’t say. 
 

App. 24 

With that being said, I mean, this is – I read the 

Wisconsin Right test as a rather simple bright-line 

test. And if you can – if you can read the ad as something other than an appeal to vote, that sort of begins 

and ends the analysis. And in fact, you can’t really 

export the other – the other analyses without the full 

– the full package goods of the Wisconsin Right to 

Life; and in close calls the tie goes in favor of the 

speaker and all that [19] sort of thing. And to me I’ve 

tried to offer a variety of other reads of the ad. And 

whether or not they’re reasonable or unreasonable, 

have that debate, that devolves into an issue of fact, 

and I don’t read this as a fact issue. I read this as an 

issue of law; and hence, that’s why I support Draft B.

 Other comments? 

 COMMISSIONER PETERSEN: I’ll just add 

briefly that I, too, interpret the Chief Justice’s test 

that he set forth in Wisconsin Right to Life as setting 

a very high bar with regard to which kinds of ads 

may be subjected to BCRA’s prohibition against 

corporate or labor-funded electioneering communications. I mean, as has been said already, Chief Justice 

Roberts said in that case, “The Court should find that 

an ad is the functional equivalent of express advocacy 

only if the ad is susceptible of no reasonable interpretation other than in its appeal to vote for or against a 

specific candidate. The test contemplates that there 

may be close calls as we – as – and I agree with the 

chairman that this was crafted in a way to be a close 

call. And – but the tests set forth by the chief justice 

contemplates those close [20] calls; that you could 
 

App. 25 

have situations where two people who are reasonable, 

one could interpret it as being the functional equivalent of express advocacy. The other one could think of 

it as issue advocacy. And he said when that happens, 

the tie goes to the speaker and not the sensor. So the 

way I – again, I look at that test as setting a very 

high standard. And as the draft – Draft B shows, 

there are a number of reasonable interpretations 

other than as appeals to vote when you look at those 

ads that were proposed by the requester in this case. 

And for that reason I’ll be supporting Draft B. 

COMMISSIONER HUNTER: Mr. Chairman, thank you. I support the comments of the 

chairman and Commissioner Petersen. Today a nonfor-profit corporation, the National Right to Life 

Committee, would like to exercise its First Amendment rights by running two radio ads 60 days before 

a general election regarding an issue that’s at the 

core of its mission. BCRA states that a corporation 

may not pay for advertisements that mention a 

candidate within 60 days of the general election. 

National Right to Life can attempt to ensure that the 

speech doesn’t cross the line by expressly [21] advocating the election or defeat of a specific candidate, by 

analyzing case law, the statute, and FEC regulations; 

but if they get it wrong, it’s a potential federal crime. 

In this case the National Right to Life Committee 

decided to file an advisory opinion, and we are in the 

unenviable position of determining whether an ad 

should be afforded the protection of the First Amendment. In June of ’07 the Supreme Court decided the 
 

 

 

App. 26 

Wisconsin Right to Life decision, which we have 

talked about today, and held that the relevant section 

of BCRA unconstitutional as applied to issue ads that 

a not-for-profit corporation wanted to air within 30 

days of a primary election. So very similar facts to the 

Wisconsin Right to Life decision are before us today, 

both non-for-profit corporations. Both would like to 

air ads within the relevant time period before the 

relevant electorate. 

The Supreme Court found that an ad is the 

functional equivalent of express advocacy only if the 

ad is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific 

candidate. 

As has been noted today, Draft B notes that [22] 

there are several other reasonable interpretations 

other than of an appeal to vote. 

In drawing the line between campaign advocacy 

and issue advocacy, the First Amendment requires us 

to err on the side of protecting political speech rather 

than suppressing it. I will support Draft B because I 

believe neither ad before us today is the functional 

equivalent of express advocacy under an analysis of 

the Supreme Court precedent or FEC regulations. 

Thank you. 

CHAIRMAN MCGAHN: Ms. Weintraub 

again. 

COMMISSIONER WEINTRAUB: Thank 

you, Mr. Chairman. I don’t want to short-circuit 
App. 27 

anybody else who wants to talk. I just wanted to 

respond very briefly to a couple of comments that you 

made. It’s true that the “Real Truth About Obama” 

decision says that the plaintiff is free to disseminate 

their message and make any expenditures they wish. 

The next sentence reads, “Their only limitation is on 

contributions based on constitutionally permitted 

restrictions.” And that’s always the case when we 

have to decide. Nobody is ever forbidden from speaking. The question is what kind of money can you use, 

and are there going to be any disclosure [23] ramifications. So I don’t – 

CHAIRMAN MCGAHN: Well, if I could 

just – 

 COMMISSIONER WEINTRAUB: Sure. 

 CHAIRMAN MCGAHN: So if a corporation 

– if a corporation would be banned from speaking, 

and this is a nonprofit entity giving us an Advisory 

Opinion request – they’re a 501c4; they’re not an 

MCFL accepted, so they are prohibited from speaking. 

 COMMISSIONER WEINTRAUB: Many organizations – I’m not – in fact, I’m pretty sure this 

one does, too – many 501c4’s in that position have a 

PAC, and they fund these kinds of communications 

through their PAC. And I believe this one is one of 

those, so, again, it goes to funding. 

 CHAIRMAN MCGAHN: We agree that the 

C-4 is a separate entity from a PAC? 
 

App. 28 

 COMMISSIONER WEINTRAUB: Yeah. 

 CHAIRMAN MCGAHN: Okay. So the C-4 

is banned. 

 COMMISSIONER WEINTRAUB: The C-4 

can’t do it out of their C-4 account. They can do it out 

of their PAC. 

The only other point that I wanted to make is 

that I hear what you’re saying about words like [24] 

“tone” and “factors,” and I would be happy to strip all 

that language out and just go by a straight meeting of 

the words if that would gain any votes on the other 

side. I’m not optimistic that it would, but I – I’m 

happy to make the offer.

 CHAIRMAN MCGAHN: I still struggle, 

though, with this. We have a requester who is a 

candidate – or who alleges that a candidate for national office called them a liar. And we’re not going to 

get into what the truth or – I mean, the requester 

included all kinds of backup for the ad; and, you 

know, for purposes of this, I think you just take 

everybody at their word for the purposes of the AO. 

We don’t need to get into whether or not who is 

winning the name-calling contest, but from a pulpit 

he wouldn’t have had if he wasn’t running for president. So my view is we shouldn’t foreclose a nonprofit 

from defending itself in the same arena, which is his 

candidacy. I mean, if they want to comment at a time 

– and to me they throw out the word, candidate, not 

only – and I don’t think – obviously, when you mention the word, candidacy, it has something to do with 
 

App. 29 

the election, right? But to me, that’s not the only 

reason why they put in the word, candidate. It’s [25] 

another reason not to believe what he’s saying because here’s a situation where the candidate is saying 

something about a grass-roots nonprofit group, and 

they want to say, well, is he a candidate whose words 

you can’t believe in? And the word is that – what he 

said about this nonprofit is the way I read it. And I’m 

not so sure stripping out the tone language still 

changes the end result. If the tag line had said that – 

said a politician whose words you can’t believe in, 

would that change your view? 

COMMISSIONER WEINTRAUB: I’m not 

sure. That is a much closer call. I’d have to go back 

and look at the regulation again and see what – 

CHAIRMAN MCGAHN: Okay. Well, let’s 

take a look. 

COMMISSIONER WEINTRAUB: It says, 

“Mentioned an election, candidacy, political party, 

opposing candidate or voting by the general public.” 

Maybe. I’d want it – I’d want to give it more than 

10-seconds thought. 

 CHAIRMAN MCGAHN: So maybe if they 

changed that one word, that could – 

 COMMISSIONER WEINTRAUB: But you 

still have the – the very direct attack on character. So 

like [26] I said, I’d want to give it more than 10­

seconds thought here at the table. 
 

 

App. 30 

 CHAIRMAN MCGAHN: Okay. So these are 

not as easy calls as some maybe would think. One 

word here and there can make a difference in these 

ads. But in any event, Vice Chair is looking at the 

regs as well. 

 VICE CHAIRMAN WALTHER: We all have 

looked at our regs off and on. I want to say this. I’m 

probably the most conservative approach on this one 

because I don’t – to me, the added sentence in the 

second example doesn’t make such a difference. In my 

own mind it makes one express advocacy, and the 

other one not. Everyone knows Obama is a candidate, 

so it’s not really an issue. And even if it were an issue, 

I mean, even under Roberts’ opinion there are minor 

things that can be identified and clarified, or interpretation can be developed through discovery. The 

whole idea, as I understand it, is that we don’t want 

to be able to prevent free speech by engaging in 

protracted litigation, and then delay is what prevents 

it. But there is not a restriction even engaging in 

minor litigation which could clarify enough so that a 

decision could be made fairly quickly. 

[27] And I think when you look at this, then the 

next question is whose word you can’t believe in. 

Well, if you read one, you can argue that perhaps 

Obama could redeem himself if he made an apology. 

But when you look at what’s really the message here 

is the public would know about his extreme position 

that he opposed very defining every baby born alive 

after an abortion as deserving a protection; that what 

we’re talking about is trying to convey that Senator 
 

 

App. 31 

Obama holds this position. It’s unacceptable; and in 

addition, he’s not telling the truth. And I really think 

at this particular point we find enough in it so that it 

appears an express advocacy; one is as well. 

Because we’re in litigation, however, I think my 

remarks are minor. I’m inclined to just make them as 

truncated as possible because in getting this interpreted in the next round of our litigation. 

CHAIRMAN MCGAHN: Certainly agree. 

Ms. Bauerly? 

COMMISSIONER BAUERLY: Thank you, 

Mr. Chairman. I share many of Commissioner Weintraub and a certain amount of Commissioner 

Walther’s concerns about this draft as well. I’ll [28] 

support Draft A because I believe its consistent with 

our regulations and Supreme Court law. 

And some of – just some of my concerns about 

Draft B include that I agree the Supreme Court set a 

very high bar, and I think that the commission went 

back and wrote a regulation consistent with that 

stringent test. And we could, you know, disagree 

whether that’s the right test or the wrong test, but 

that’s, you know, frankly not our role. But the Supreme Court did give us some guidance about how to 

interpret its tests, and in my view Draft B doesn’t 

fully take account of what I think are important 

guidants – guiding factors that are directly applicable 

here. The Supreme Court talks about indicia of 

express advocacy including mentioning an election or 

a candidate and an attack on character. And I don’t 
 

App. 32 

have children, but I agree with you. My mother 

taught me that telling the truth was an important 

thing. 

So those are my concerns with Draft B, and so I 

will be supporting Draft A, or the unlettered draft as 

we refer to it. 

COMMISSIONER WEINTRAUB: Make a 

motion? 

 CHAIRMAN MCGAHN: Time for a motion. 

 COMMISSIONER WEINTRAUB: All right, 

[29] Mr. Chairman. I move approval of Agenda Document Number 08-32. That’s the one without the 

letter.

 CHAIRMAN MCGAHN: That’s the unlettered. 

COMMISSIONER WEINTRAUB: The unlettered one. 

CHAIRMAN MCGAHN: Even though we 

have a Draft B, we don’t have a Draft A, so that 

would be Pseudo A. On that motion all in favor say 

aye. 

VICE CHAIRMAN WALTHER: May 

comment before we vote? 

 CHAIRMAN MCGAHN: Sure. 

 VICE CHAIRMAN WALTHER: I would just 

like to say I would support the portion of the motion 

I 
 

App. 33 

that relates to question number 2, but not with 

respect to question number 1; so I’ll be voting against 

it. 

And I also do have problems with the use of the 

word, tone. I think that’s not the message or really 

the appropriate one to make this decision on. 

 CHAIRMAN MCGAHN: Okay. All in favor 

of the motion say aye. 

COMMISSIONER WEINTRAUB: Let me 

just throw in one more thought, and that is that I 

appreciate the vice chairman’s comments. That’s why 

I think this is the compromised draft because it says 

one [30] is, and one isn’t express advocacy. I’m finished now.

 CHAIRMAN MCGAHN: Okay. We can vote 

now? 

 COMMISSIONER WEINTRAUB: Yeah. 

 CHAIRMAN MCGAHN: We’re all set? 

 COMMISSIONER WEINTRAUB: Yeah. 

CHAIRMAN MCGAHN: Okay. I’m just 

looking both ways before I cross the street here. Okay. 

All in favor say aye. 

 COMMISSIONER WEINTRAUB: Aye. 

 CHAIRMAN MCGAHN: All opposed? 

(MEMBERS VOTE NO) 
App. 34 

 CHAIRMAN MCGAHN: That motion fails 

2 to 4 with Commissioners Weintraub and Bauerly 

voting in favor, the remainder voting in opposition for 

apparently different reasons. 

 Any other motions? 

UNIDENTIFIED MALE SPEAKER: Mr. 

Chairman, I would move that we approve Agenda 

Document Number 08-32-A, otherwise known as 

Draft B. 

CHAIRMAN MCGAHN: All in favor say 

aye. 

(MEMBERS VOTE AYE) 

 CHAIRMAN MCGAHN: All opposed? 

(MEMBERS VOTE NO) 

 CHAIRMAN MCGAHN: That motion fails 

3-3 with [31] myself, Commissioner Petersen and 

Hunter voting in favor; Vice Chair, Commissioner 

Bauerly and Commissioner Weintraub voting in 

opposition. My sense is we have consensus; however, 

where five of us agree that the first ad – and I don’t 

have the questions in front of me, so I don’t want to 

say. Depending how you frame the question, do we 

have the okay for the c4 to run, I think, is the best 

way; and the second, we don’t have consensus. So 

maybe the best thing to do at this point is ask the 

counsel to prepare a draft that reflects the common 

areas where we have in five on the first ad and then 

unable to reach a conclusion on the – with respect to 
 

 

 

App. 35 

the second ad. I think that’s an accurate representation of the views up here. If it’s not – yes. 

COMMISSIONER WEINTRAUB: I just 

want to say to you what I’ve already said to one or 

two of your colleagues, and that is that I’m not – I 

haven’t decided yet whether I would vote for that 

answer. In part, it depends on the legal rationale, but 

in part I wasn’t actually kidding that I thought Draft 

A was a compromise. And I’m not sure that I’m willing to say, you know, just to give the permission 

without the complementary [32] restriction on the 

other ad. So I’m just – I’m continuing to ponder, and 

it will depend on the wording of the draft. 

 CHAIRMAN MCGAHN: Do we have any 

management administrative matters? 

 UNIDENTIFIED MALE SPEAKER: We do 

not. 

CHAIRMAN MCGAHN: Okay. Anything 

else for the good of the order? 

Okay. With that, we will adjourn our open session. Thank you. 

(MEETING ADJOURNED) 

[33] STATE OF INDIANA ) 

) SS: 

COUNTY OF VIGO ) 

I, Renee R. Dobson, a Notary Public in and for 

said county and state, do hereby certify that I listened to the audiotape recording of a meeting; 
 

 

 

App. 36 

That said meeting was taken down in Stenograph notes and afterwards reduced to typewriting 

under my direction; and that the typewritten transcript is a true and accurate record of said meeting; 

I do further certify that I am a disinterested 

person in this matter; that I am not a relative or 

attorney of any of the parties, or otherwise interested 

in the event of this matter, and am not in the employ 

of the parties. 

IN WITNESS WHEREFORE, I have hereunto 

set my hand and affixed my notarial seal this 13th 

day of November, 2008. 

/s/ Renee R. Dobson, RMR 

My Commission Expires: Renee R. Dobson, 

September 6, 2015 Notary Public, 

Residing in Vigo 

County, Indiana