SENATOR MITCH McCONNELL, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

NATIONAL RIFLE ASSOCIATION OF

AMERICA, et al., 

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

EMILY ECHOLS, a minor child, by and

through her next friends, TIM AND WINDY

ECHOLS, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civ. No. 02-582 (CKK, KLH, RJL)

Civ. No. 02-581 (CKK, KLH, RJL)

Civ. No. 02-633 (CKK, KLH, RJL)
CHAMBER OF COMMERCE OF THE

UNITED STATES, et al., 

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

NATIONAL ASSOCIATION OF

BROADCASTERS, 

 Plaintiff,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

Civ. No. 02-751 (CKK, KLH, RJL)

Civ. No. 02-753 (CKK, KLH, RJL)

Civ. No. 02-754 (CKK, KLH, RJL)
CONGRESSMAN RON PAUL, et al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

REPUBLICAN NATIONAL COMMITTEE, 

et al., 

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.

 Defendants.

CALIFORNIA DEMOCRATIC PARTY, et

al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al., 

 Defendants.

Civ. No. 02-781 (CKK, KLH, RJL)

Civ. No. 02-874 (CKK, KLH, RJL)

Civ. No. 02-875 (CKK, KLH, RJL)
1

 Judge Henderson does not join this opinion.

4

VICTORIA JACKSON GRAY ADAMS, et

al.,

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

REPRESENTATIVE BENNIE G.

THOMPSON, 

et al., 

 Plaintiffs,

 v.

FEDERAL ELECTION COMMISSION, et al.,

 Defendants.

Civ. No. 02-877 (CKK, KLH, RJL)

Civ. No. 02-881 (CKK, KLH, RJL)

MEMORANDUM OPINION

(May 1, 2003)

PERCURIAM1: Presently before thisthree-judge District Court are eleven consolidated

actions challenging as unconstitutional the Bipartisan Campaign Reform Act of 2002, Pub.

L. No. 107-155, 116 Stat. 81 (2002) (“BCRA”) and seeking declaratory and injunctive relief

to prohibit its enforcement. The wide range of legal challenges raised by this litigation are
5

highly complex, interrelated, and raise issues of fundamental importance not only to the

conduct and financing of federal election campaigns but to the other rights involved that we

enjoy under the Constitution. Because of the complexity of our positions, this per curiam

opinion, by Judge Kollar-Kotelly and Judge Leon, includes a schematic description of the

three-judge panel’s conclusions in regard to each of BCRA’s challenged provisions and a

chart as to the rulings on each provision’s constitutionality. The per curiam opinion also

includes: (1) a brief history of campaign finance regulation in the United States (pp. 16-42);

(2) the legislative history behind BCRA’s enactment (pp. 42-50); (3) a procedural history of

the litigation in this case (pp. 50-57); (4) a description of the specific provisions in BCRA

at issue in these lawsuits (pp. 57-80); (5) certain Findings of Fact relating to the identities of

the parties and BCRA’s disclosure provisions (pp. 80-106); and (6) conclusions of law

relating to claims of the Paul Plaintiffs and most of BCRA’s disclosure provisions (pp. 106-

170). The separate opinions of each judge hearing this matter follow thereafter.

I. DESCRIPTION AND CHART OF THE COURT’S RULINGS

In light of the number of provisions in BCRA being challenged, the complexity of the

issues presented by each challenge, and the variety of positions and voting combinations

taken by the three judges on this District Court, we set forth a brief description and a chart,

on a section by section basis, of the various rulings

A. Title I

Section 323(a) of BCRA bans national parties from soliciting, receiving, directing,
6

transferring, and spending nonfederal funds (i.e., soft money). Judge Henderson strikes this

section down as unconstitutional in its entirety. Judge Leon, for different reasons, files a

concurrence, joining with Judge Henderson, except with respect to the ban on national parties

from using (i.e., “directing,” “transferring,” and “spending”) nonfederal funds (i.e., soft

money) for “federal election activity” of the type defined in Section 301(20)(A)(iii). As to

that type of conduct, Judge Leon upholds the constitutionality of Congress’s ban on the use

of nonfederal funds by national parties for Section 301(20)(A)(iii) communications. Judge

Kollar-Kotelly upholds Section 323 (a) in its entirety. Accordingly, Judge Leon’s decision

regarding Section 323(a) controls.

Section 323(b) prohibits state parties from using nonfederal money for “federal

election activities” as defined in Section 301(20)(A) of BCRA. Judge Henderson strikes

these sections down as unconstitutional in their entirety. Judge Leon, for different reasons,

joins Judge Henderson in a separate concurrence, but only with respect to those party

activities set forth in Subsections (i), (ii), and (iv) of Section 301(20)(A). As to Section

301(20)(A)(iii), Judge Leon upholds the constitutionality of Congress’s prohibition on state

and local parties from spending nonfederal funds for communications that promote, oppose,

attack or support a specific federal candidate. In a separate opinion, Judge Kollar Kotelly

finds Section 323(b) constitutional and concurs with Judge Leon’s discussion of Section 301

(20)(A)(iii). 

Section 323(d) prohibits national, state, and local parties from soliciting funds for, or
7

making donations, to § 501(c) organizations that make expenditures, or disbursements, in

connection with federal elections, or to § 527 national organizations. Judge Henderson

strikes this section down as unconstitutional in its entirety. Judge Leon, for different reasons,

joins in that conclusion in a separate concurrence. Judge Kollar-Kotelly files a separate

dissent in which she finds the entire section constitutional.

Section 323(e) prohibits, but for certain enumerated exceptions, federal officeholders

and candidates from soliciting, receiving, directing, transferring, or spending, nonfederal

money in connection with any local, state, or federal election. Judge Henderson and Judge

Kollar-Kotelly, for different reasons, in separate opinions uphold the constitutionality of this

section in its entirety. Judge Leon concurs with respect to the restriction on federal

officeholders and candidates receiving, directing, transferring or spending any nonfederal

funds in connection with any federal or state election, but files a separate dissent with regard

to any prohibitions on a federal candidate, or officeholder, from soliciting funds for the

national parties.

Section 323(f) prohibits state officeholders and candidates from using nonfederal

funds for public communications that refer to a clearly identified candidate for federal office

and that promote, oppose, attack, or support a candidate for this office. Judge Leon upholds

this section in its entirety. Judge Kollar-Kotelly concurs with Judge Leon’s opinion. Judge

Henderson, dissents and finds the entire section unconstitutional.
8

B. Title II

Section 201 of BCRA sets forth a primary, and “backup” definition, of an

“electioneering communication” (i.e., so-called “issue ads”). In addition, it sets forth certain

disclosure requirements for those who fund these electioneering communications. Judge

Henderson strikes down both the primary and backup definition as unconstitutional. Judge

Leon, for different reasons, concurs in her judgment with respect to the primary definition.

Judge Kollar-Kotelly dissents and upholds the primary definition as constitutional as

discussed in her separate opinion. With respect to the backup definition, Judge Leon, who

writes a separate opinion, upholds its constitutionality with its final clause severed. Judge

Kollar-Kotelly, as expressed in her opinion, concurs in that conclusion solely as an

alternative to this Court’s finding that the primary definition is unconstitutional. Finally,

with regard to Section 201’s disclosure requirements, Judge Kollar-Kotelly and Judge Leon,

for the reasons set forth in the per curiam opinion, uphold their constitutionality with one

exception. Judge Henderson strikes down the disclosures requirements in a separate dissent.

Section 202 provides that disbursements by persons for electioneering

communications, or contracts to purchase the same, that are coordinated with either a federal

candidate or a candidate committee, or a political party committee will be treated as

contributions to that candidate’s campaign or political party committee. Judge KollarKotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find this section

constitutional. Judge Henderson, in a separate dissent concludes that this Section is
9

unconstitutionally overbroad.

Section 203 of Title II prohibits labor unions, corporations and national banks from

using money from their general treasury to fund “electioneering communications,” as defined

by Section 201. Instead, under Section 203, such communications must be paid from a

separately segregated fund (“SSF”). Section 203 also includes an exception from the SSF

requirement for certain nonprofit corporations (i.e., the “Snowe-Jeffords exception”). Judge

Kollar-Kotelly upholds this section as constitutional. Judge Leon joins Judge KollarKotelly’s opinion upholding the constitutionality of this section as it applies to the backup

definition in Section 201. Judge Henderson strikes down this Section as unconstitutional in

its entirety. Judge Kollar-Kotelly and Judge Leon additionally uphold the disclosure and SSF

requirements as well as the Snowe-Jeffords exemption provision for certain nonprofit

corporations organized under Sections 501(c)(4) and 527 of the Internal Revenue Code in

their respective opinions.

Section 204 (“The Wellstone Amendment”), in effect, withdraws the Snowe-Jeffords

exception of Section 203. Judge Henderson strikes down Section 204 in its entirety. Judge

Leon concurs in her result as it applies to MCFL exempt organizations only. As to nonprofit

corporations that do not qualify for the MCFL exemption, Judge Leon concurs with Judge

Kollar-Kotelly’s conclusion, but for different reasons, in upholding Section 204 as it applies

to non MCFL organizations.

Section 212 provides certain reporting requirements for independent expenditures.
10

Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion,

conclude that challenge to this provision is not ripe for review, and therefore hold that the

Court does not have jurisdiction to resolve the plaintiffs’ challenges at this time. Judge

Henderson dissents from this view and finds Section 212 unconstitutional in its entirety.

Section 213 requires national parties, in essence, to choose between making

coordinated expenditures under the Party Expenditures Provision or unlimited independent

expenditures on behalf of their federal candidates. All three judges concur that this section

is unconstitutional. Judge Henderson’s opinion includes a discussion of her separate reasons.

Judge Kollar-Kotelly concurs in Judge Leon’s separate opinion on this section.

Section 214 addresses coordinated expenditures paid for by persons other than party

committees and candidate committees. Section 214 repeals the current FEC regulations on

coordinated expenditures, and directs the FEC to promulgate new regulations that do not

require “an agreement or formal collaboration to establish coordination.” Judge KollarKotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find that the

plaintiffs’ challenge under Section 214(b) and Section 214(c) is nonjusticiable and the Court

therefore lacks jurisdiction to consider their challenge. As to Sections 214(a) and 214(d),

however, they find those sections constitutional for the reasons set forth in the per curiam

opinion. Judge Henderson dissents, finding the Section unconstitutional in its entirety.

C. Title III and V

Sections 304, 316, & 319, collectively known as the “Millionaire Provisions,” allow
11

opponents of self-financed candidates, and in certain circumstances, to raise money in larger

increments and accept unlimited coordinated party expenditures. All three judges conclude,

for the reasons set forth in Judge Henderson’s opinion, that this Court lacks standing to

entertain challenges to these provisions.

Section 305 denies a candidate the “lowest unit charge” for broadcast advertisements

on radio and television unless the candidate promises not to refer to another candidate in his

or her advertisements. For the reasons set forth in Judge Henderson’s opinion, all three

judges conclude that this Court lacks standing to entertain the plaintiffs’ challenge at this

time.

As explained in Judge Henderson’s opinion, the Court similarly finds that the

plaintiffs do not have standing to challenge Section 307, which increases and indexes

contribution limits.

Section 311 establishes certain disclosure requirements for the sponsors of

electioneering communications. Judge Kollar-Kotelly and Judge Leon, for the reasons set

forth in the per curiam opinion, uphold this provision as constitutional. Judge Henderson,

dissents, and finds this section unconstitutional for the reasons set forth in her opinion.

Section 318 prohibits donations by minors to federal candidates, or to a committee of

a political party. All three judges agree that this section is unconstitutional. Each judge

writes a separate concurrence setting forth his/her reasoning as to this section.

Section 504 requires broadcast licenses to collect and disclose records of any request
12

to purchase broadcast time for communications that “is made by or on behalf of a legally

qualified candidate for public office” or that relates “to any political matter of national

importance,” including communications relating to “a legally qualified candidate,” “any

election to federal office,” and “a national legislative issue of public importance.” Judge

Henderson finds this section unconstitutional. Judge Leon and Judge Kollar-Kotelly, concur

in that result, but not in her reasoning. Judge Kollar-Kotelly concurs in Judge Leon’s

separate opinion on this section.

Chart of the Court’s Rulings

BCRA Provision Constitutional Unconstitutional Nonjusticiable

323(a): nonfederal

fund restrictions on

national parties

Judge KollarKotelly

Judge Leon (only

as to using

nonfederal funds

for 301(20)(A)(iii)

activities)

Judge Henderson

Judge Leon

(except as to using

nonfederal funds

for 301(20)(A)(iii)

activities)

323(b): nonfederal

fund restrictions on

“federal election

activity” by state

and local parties

Judge KollarKotelly

Judge Leon (only

as to

301(20)(A)(iii)

activities)

Judge Henderson

Judge Leon (only

as to

301(20)(A)(i),(ii),

(iv) activities)

301(20): definition

of “federal election

activity”

Judge KollarKotelly

Judge Leon (only

as to

301(20)(A)(iii))

Judge Henderson

Judge Leon (only

as to

301(20)(A)(i),(ii),

(iv))
BCRA Provision Constitutional Unconstitutional Nonjusticiable

13

323(d): nonfederal

fund restrictions on

tax-exempt

organizations

Judge KollarKotellyJudge Henderson

Judge Leon

323(e): nonfederal

fund restrictions on

federal candidates

Judge Henderson

Judge KollarKotelly

Judge Leon

(except solicitation

of nonfederal

funds)

Judge Leon (only

as to solicitation of

nonfederal funds)

323(f): nonfederal

fund restrictions on

state candidates

Judge KollarKotelly

Judge Leon

Judge Henderson

201:

“electioneering

communication”

definition

Judge KollarKotelly (primary

definition and, in

the alternative,

backup definition)

Judge Leon

(backup definition

only)

Judge Henderson

(primary and

backup definitions)

Judge Leon (only

as to primary

definition)

201: disclosure of

“electioneering

communications”

Judge KollarKotelly (severing

subsection (5))

Judge Leon

(severing

subsection (5))

Judge Henderson

Judge KollarKotelly (subsection

(5) only)

Judge Leon

(subsection (5)

only)

202: coordinated 

“electioneering

communications”

as contributions

Judge KollarKotelly

Judge Leon

Judge Henderson
BCRA Provision Constitutional Unconstitutional Nonjusticiable

14

203: prohibition of

“electioneering

communications”

by corporations and

unions 

Judge KollarKotelly

Judge Leon (as to

backup definition)

Judge Henderson

204: nonprofit

organization

exception

(“Wellstone

Amendment”)

Judge KollarKotelly

Judge Leon (as to

non-MCFL groups)

Judge Henderson

Judge Leon (as to

MCFL groups)

212: disclosure of

independent

expenditures

Judge Henderson Judge KollarKotelly

Judge Leon

213: choice

between

independent and

coordinated

expenditures

Judge Henderson

Judge KollarKotelly

Judge Leon

214: definition of

coordinated

communications

Judge KollarKotelly (as to

214(a) and 214(d)))

Judge Leon (as to

214(a) and 214(d))

Judge Henderson Judge KollarKotelly (as to

remainder of 214)

Judge Leon (as to

remainder of 214)

304, 316, & 319:

“Millionaire

Provisions”

Judge Henderson

Judge KollarKotelly

Judge Leon

305: limitation on

lowest unit charge

for candidates

referring to other

candidates

Judge Henderson

Judge KollarKotelly

Judge Leon
BCRA Provision Constitutional Unconstitutional Nonjusticiable

15

307: increased

contribution limits

and indexing of

limits

Judge Henderson

Judge KollarKotelly

Judge Leon

311: identification

of sponsors

Judge KollarKotelly

Judge Leon

Judge Henderson

318: prohibition of

donations by

minors

Judge Henderson

Judge KollarKotelly

Judge Leon

504: disclosure of

broadcasting

records

Judge Henderson

Judge KollarKotelly

Judge Leon

II. BACKGROUND

It is necessary to canvass the history of federal campaign finance regulation in order

to provide the appropriate context for understanding the structure and practices of federal

campaign finance that Congress confronted when it enacted BCRA. See United States v.

UAW-CIO, 352 U.S. 567, 570 (1957) (“UAW”) (“Appreciation of the circumstances that

begot this statute is necessary for its understanding, and understanding of it is necessary for

adjudication of the legal problems before us.”). Following this overview, the Court will

move to a discussion of the legislation enacted by Congress to resolve the perceived

shortcomings of the pre-BCRA campaign finance structure and a procedural history of the

litigation in this case. 
16

A. The Framework of Federal Campaign Finance Regulation

One might be tempted to agree with Plaintiffs’ assertion that the history of federal

campaign finance regulation is “relatively short,” McConnell Br. at 9, if one were comparing

it to the history of Western civilization. In the judgment of Judge Kollar-Kotelly and Judge

Leon, however, the history of federal campaign finance regulation, having its origins in the

Administration of President Theodore Roosevelt, is a long-standing and recurring problem

that has challenged our government for nearly half of the life of our Republic. 

At the close of the nineteenth century, the concentration of the nation’s wealth in the

hands of a “small portion of the population” began to threaten the stability and integrity of

the political system. UAW, 352 U.S. at 570 (quoting 2 Morrison and Commager, The Growth

of the American Republic at 355 (4th ed. 1950)). At the time, the widely accepted view was

that “aggregated capital unduly influenced politics, an influence not stopping short of

corruption.” Id. To that end, many states began experimenting with disclosure laws

requiring candidates and their political committees to make public the sources and amounts

of contributions to their campaigns and the amounts of their campaign expenditures. Id. at

570-571. These laws proved to be largely futile. Id. at 571. 

Concern with both the size and source of campaign funds relating to the 1904

presidential campaign “crystallized popular sentiment for federal action to purge national

politics of what was conceived to be the pernicious influence of ‘big money’ campaign

contributions.” Id. at 571-72. President Roosevelt’s presidential messages to Congress in
2

 The ban on corporate and labor union contributions and expenditures was eventually

codified at 18 U.S.C. § 610, and later transferred to the Federal Election Campaign Act, 2

U.S.C. 441b, when Congress re-evaluated the Act in the aftermath of the Supreme Court’s

decision in Buckley v. Valeo, 424 U.S. 1 (1976). Federal Election Campaign Act

Amendments of 1976, P.L. 94-283, 90 Stat. 475. See also S. Rep. No. 677, 94th Cong., 2d

Sess. 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 929, 930-31.

17

both 1905 and 1906, strongly encouraged Congress to enact a law prohibiting political

contributions by corporations. 40 Cong. Rec. 96 (1905); 41 Cong. Rec. 22 (1906). In

response to these concerns, Congress enacted the Tillman Act, Ch. 420, 34 Stat. 864, which

prohibited corporations from making any contribution in connection with any election for

federal office and which represented “the first concrete manifestation of a continuing

congressional concern for elections free from the power of money.” UAW, 352 U.S. at 575

(internal quotation marks and citation omitted). The Tillman Act demarcates the beginning

of the “modern era” of federal campaign finance regulation and is the predecessor of the

prohibition on corporate and labor union contributions and expenditures in connection with

any federal election from their general treasuries that appears in the Federal Election

Campaign Act (“FECA”). Buckley v. Valeo, 519 F.2d 821, 904 (D.C. Cir. 1975), aff’d in

part, rev’d in part, 424 U.S. 1 (1976).2 The “underlying philosophy” of the Tillman Act was

“to sustain the active, alert responsibility of the individual citizen in a democracy for the wise

conduct of government.” UAW, 352 U.S. at 575.

In 1909, Congress endeavored to broaden the Tillman Act by including within the

Act’s scope, state legislative races and in-kind contributions. See id. While this effort ended
18

in failure, in 1910, Congress “translated popular demand for further curbs upon the political

power of wealth into a publicity law that required committees operating to influence the

results of congressional elections in two or more States to report all contributions and

disbursements and to identify contributors and recipients of substantial sums.” Id. (citing Act

of June 25, 1910, ch. 392, §§ 5-6, 36 Stat. 822, 823) (disclosure required of all transactions

greater than $100). The 1910 law further directed the reporting of expenditures exceeding

$50, made independently of a political committee for the purpose of influencing

congressional elections in more than one State. Act of June 25, 1910, ch. 392, §§ 7, 36 Stat.

824. In 1911, Congress further amended the 1910 Act, and for the first time, included overall

expenditure ceilings on campaigns for the House ($5,000) and for the Senate ($10,000).

Buckley, 519 F.2d at 904-905 (citing Act of Aug. 19, 1911, ch. 33, § 2, 37 Stat. 26).

Additionally, the 1911 provisions required all candidates for the Senate and the House of

Representatives to make detailed reports with respect to their nominating and election

campaigns. UAW, 352 U.S. at 576. Hence, candidate disclosures included primary,

convention, and other pre-nomination periods. Buckley, 519 F.2d at 905. The 1911 law also

prohibited candidates from promising employment for the purpose of securing an

individual’s support. UAW, 352 U.S. at 576 (citing 37 Stat. 25). In 1918, Congress again

amended the law and added criminal penalties for offering anything of value to influence

voting. Id. (citing Act of Oct. 16, 1918, ch. 187, 40 Stat. 1013).

In the only instance of a criminal prosecution under the Act, Truman Newberry was
19

convicted in Michigan of violating the expenditure ceiling in his 1918 primary campaign for

the United States Senate. Newberry’s conviction was overturned by the Supreme Court in

1921. The Court invalidated the law insofar as it extended to Senate primary elections.

Newberry v. United States, 256 U.S. 232, 258 (1921) (“We cannot conclude that authority

to control party primaries or conventions for designating candidates was bestowed on

Congress by the grant of power to regulate the manner of holding elections.”). Four Justices

of the Court held that primaries were intra-party affairs not amenable to congressional

regulation under the Elections Clause. Id. Justice Joseph McKenna, who provided the

crucial fifth vote for judgment, limited the reach of the decision to the facts by concluding

that the statute under consideration was enacted prior to the Seventeenth Amendment and,

therefore, left open the question of whether that Amendment gave Congress authority to

regulate Senate primary elections. Id. 

In 1925, in the wake of Newberry, Congress passed the Federal Corrupt Practices Act

of 1925, ch. 368, tit. III, 43 Stat. 1070, which was a comprehensive amalgamation of the

surviving provisions of the existing campaign finance laws. UAW, 325 U.S. at 576. The

Federal Corrupt Practices Act strengthened the Tillman Act by broadening the definition of

contribution, extending the ban on corporate contributions to Delegates and Resident

Commissioners that were elected to Congress, and punishing the recipient of any illegal

contribution in addition to the contributor. Id. at 577. The law also generally broadened

disclosure provisions. Buckley, 519 F.2d at 905.
20

The Supreme Court upheld the Federal Corrupt Practices Act in the Burroughs case

of 1934:

The power of Congress to protect the election of President and Vice President

from corruption being clear, the choice of means to that end presents a

question primarily addressed to the judgment of Congress. If it can be seen

that the means adopted are really calculated to attain the end, the degree of

their necessity, the extent to which they conduce to the end, the closeness of

the relationship between the means adopted, and the end to be attained, are

matters for congressional determination alone. Congress reached the

conclusion that public disclosure of political contributions, together with the

names of contributors and other details, would tend to prevent the corrupt use

of money to affect elections. The verity of this conclusion reasonably cannot

be denied. When to this is added the requirement contained in section 244, that

the treasurer’s statement shall include full particulars in respect of

expenditures, it seems plain that the statute as a whole is calculated to

discourage the making and use of contributions for purposes of corruption.

Burroughs v. United States, 290 U.S. 534, 547-48 (1934) (internal citation omitted). As is

obvious from this language, the Burroughs opinion provided Congress with broad discretion

to regulate federal elections including the financing of campaigns.

The next instance of congressional action in the area of campaign finance was in 1940

when Congress amended the Hatch Act, a law which placed restrictions on the political

activities of the civil service, by making it unlawful for any political committee to receive

contributions totaling more than $3,000,000 or to make expenditures of more than that

amount in any calendar year. UAW, 352 U.S. at 577 (citing Act of July 19, 1940, ch. 640,

54 Stat. 767). The Hatch Act amendments also limited gifts to candidates or political

committees to $5,000 in any calendar year. Buckley, 519 F.2d at 905 (citing Act of July 19,

1940, ch. 640, 54 Stat. 767).
21

One year later, the Supreme Court again returned to the question it had squarely

addressed in Newberry: namely whether congressional power under the Elections Clause

extended to the pre-election period. United States v. Classic, 313 U.S. 299 (1941). This

time, the Court upheld the congressional enactment holding that “the authority of Congress,

given by [Article I, section 4], includes the authority to regulate primary elections when, as

in this case, they are a step in the exercise by the people of their choice of representatives in

Congress.” Id. at 317. The case involved a Louisiana Democratic primary for the House of

Representatives, which history showed was the determinant of who would win the general

election. Id. at 314. The Supreme Court in Classic disregarded Newberry because only four

Justices in Newberry had adopted the view that the Elections Clause forbade congressional

regulation of primary elections. Consequently, as the issue had never “been prejudged by any

decision of [the Supreme] Court,” Classic overruled the Newberry plurality. Id. at 317; see

also id. at 325 n.8 (“No conclusion is to be drawn from the failure of the Hatch Act, to

enlarge § 19 by provisions specifically applicable to primaries. Its failure to deal with the

subject seems to be attributable to constitutional doubts, stimulated by Newberry v. United

States, which are here resolved.”) (internal citations omitted). Under Classic, Congress was

given authority to impose criminal penalties for activities of state officials conducting a

primary election for federal candidates under the auspices of state law. See id. at 307.

Following the rise of organized labor during World War II, in 1943, Congress passed

the Smith-Connally Act which included a section that extended the Federal Corrupt Practices
22

Act to organized labor. UAW, 352 U.S. at 578 (citing War Labor Disputes Act

(Smith-Connally Act), ch. 144, § 9, 57 Stat. 163, 167) (“Wartime strikes gave rise to fears

of the new concentration of power represented by the gains of trade unionism. And so the

belief grew that, just as the great corporations had made huge political contributions to

influence governmental action or inaction, whether consciously or unconsciously, the

powerful unions were pursuing a similar course, and with the same untoward consequences

for the democratic process.”). Congressman Gerald Landis, the author of this provision in

the Smith-Connally Act observed that “[t]he public was aroused by many rumors of huge war

chests being maintained by labor unions, of enormous fees and dues being extorted from war

workers, of political contributions to parties and candidates which later were held as clubs

over the head of high Federal officials.” Id. at 579 (quoting Hearings before a Subcommittee

of the House Committee on Labor on H.R. 804 and H.R. 1483, 78th Cong., 1st Sess. 1, 2, 4).

Despite the provision in the Smith-Connally Act tightening the reins on political

activity of labor unions, Congress was prompted to investigate “enormous” financial outlays

by some unions in connection with the 1944 national elections. Id. The Senate’s Special

Committee on Campaign Expenditures investigated and concluded that while there was “‘no

clear-cut violation of the Corrupt Practices Act,’” id. at 580 (quoting S. Rep. No. 101, 79th

Cong., 1st Sess. 23), the law was being evaded by large scale spending by labor unions on

expenditures (as opposed to contributions), which were not explicitly prohibited by the
3

 A sampling of the extraordinary size of the expenditures by labor on federal elections

demonstrates that “One [labor organization] was found to have an annual budget for

‘educational’ work approximating $1,500,000, and among other things regularly supplies

over 500 radio stations with ‘briefs for broadcasters.’ Another, with an annual budget of

over $300,000 for political ‘education,’ has distributed some 80,000,000 pieces of literature,

including a quarter million copies of one article. Another, representing an organized labor

membership of 5,000,000, has raised $700,000 for its national organizations in union

contributions for political ‘education’ in a few months, and a great deal more has been raised

for the same purpose and expended by its local organizations.’” UAW, 352 U.S. at 580-81

(quoting H.R. Rep. No. 2093, 78th Cong., 2d Sess. 3).

23

Federal Corrupt Practices Act, id.

3

 Congress, it appears, considered a prohibition on

contributions to be equally applicable to expenditures. Id. at 582 (“‘The committee is firmly

convinced, after a thorough study of the provisions of the act, the legislative history of the

same, and the debates on the said provisions when it was pending before the House, that the

act was intended to prohibit such expenditures.’”) (quoting H.R. Rep. No. 2739, 79th Cong.,

2d Sess. 40). In commenting on how this exception threatened to eviscerate the Federal

Corrupt Practices Act, the House Committee studying this problem stated that “‘[t]he intent

and purpose of the provision of the act prohibiting any corporation or labor organization

making any contribution in connection with any election would be wholly defeated if it were

assumed that the term ‘making any contribution’ related only to the donating of money

directly to a candidate, and excluded the vast expenditures of money in the activities herein

shown to be engaged in extensively. Of what avail would a law be to prohibit [directly]

contributing to a candidate and yet permit the expenditure of large sums in his behalf?” Id.

at 581 (quoting H.R. Rep. No. 2739, 79th Cong., 2d Sess. 40).
24

Therefore, in order to prevent further “evasion” and to “plug the existing loophole,”

Congress “again acted to protect the political process from what it deemed to be the

corroding effect of money employed in elections by aggregated power.” Id. at 582 (internal

quotation and citations omitted). Accordingly, in 1947, Congress passed the Taft-Hartley

Act of 1947, ch. 120, 61 Stat. 136, which amended the Federal Corrupt Practices Act “to

proscribe any ‘expenditure’ as well as ‘any contribution’ [and] to make permanent [its]

application to labor organizations” in addition to corporations. Id. at 582-83. The TaftHartley Act implemented Classic by applying its provisions to primary elections. Buckley,

519 F.2d at 906. 

Following the Taft-Hartley Act, from the late 1940’s through the end of the 1950’s,

Congress sought unsuccessfully to amend the dollar expenditure limits to reflect more

“realistic” costs, but no action was taken. Id. In 1960, the Senate passed a bill that

strengthened reporting requirements for candidates and political committees, adopted

individual contribution limits, rationalized current expenditure limits, and placed ceilings on

Presidential campaigns. Id. The bill, however, died for lack of a companion in the House

of Representatives. Id. In 1962, President Kennedy’s Commission on Campaign Costs

recommended “tax incentives and credits for small political contributions, realistic ceilings,

and suspension of the equal time provision as to media debates.” Id. In 1966, Congress

passed a one dollar tax checkoff to provide public funding for Presidential general elections,

which was later repealed in 1967. Id.
25

Late in 1971, Congress reinstituted the tax form checkoff to finance Presidential

general elections and, in early 1972, passed the Federal Elections Campaign Act of 1971,

Pub. L. No. 92-255, 86 Stat. 3 (“FECA”), requiring disclosure of all contributions in excess

of $100 and disclosure of expenditures by all candidates and political committees spending

more than $1000 per year. Id. The 1971 law also expressly provided corporations and

unions with the ability to establish and administer separate, segregated funds for the purpose

of making political contributions and expenditures. Pipefitters Local Union No. 562 v.

United States, 407 U.S. 385, 410 (1972). 

Despite passage of FECA, the “infinite ability” to “eviscerate[] statutory limitations

on contributions and expenditures,” which amounted to “wholesale circumvention” became

a source of further congressional concern. Buckley, 519 F.2d at 837. Congress concluded

that costs for federal elections had increased at an “‘alarming’” rate. Id. (quoting H.R. Rep.

No.93-1239, 93d Cong., 2d Sess. 3 (1974), U.S. Code Cong. & Admin. News 1974, p. 5587).

Congress was further troubled by the “interaction” between large-scale campaign

expenditures and a reliance “on large contributions from monied and special interests.” Id.

In Buckley, it was undisputed that “one percent of the people accounted for 90 percent of the

dollars contributed to federal candidates, political parties and committees.” Id. (citing agreed

to Findings of Fact). It was also undisputed that illegal contributions to both parties were

made in 1972 by Gulf Oil and by American Milk Producers, Inc., a large dairy cooperative.

Id. at 838. Notably, the circuit court in Buckley concluded:
26

Large contributions are intended to, and do, gain access to the elected official

after the campaign for consideration of the contributor’s particular concerns.

Senator Mathias not only describes this but also the corollary, that the feeling

that big contributors gain special treatment produces a reaction that the average

American has no significant role in the political process.

Id.; see also id. n.32 (“Congress found and the District Court confirmed that such

contributions were often made for the purpose of furthering business or private interests by

facilitating access to government officials or influencing governmental decisions, and that,

conversely, elected officials have tended to afford special treatment to large contributors.”)

(citations omitted). Indeed, the lower Buckley court documented the “lavish contributions

by groups or individuals with special interests to legislators from both parties.” Id. at 840

n.37.

In 1974, in direct response to the 1972 elections which were a “watershed for public

confidence in the electoral system,” id. at 840, and the “shock of its aftermath,” id. at 837,

Congress enacted and President Gerald Ford signed the sweeping FECA Amendments of

1974. Id. Broadly speaking, the amendments imposed dollar limitations on contributions by

individuals and by political committees to candidates for federal office, to political party

committees, and to independent political committees. 2 U.S.C. § 441a(a). The 1974

amendments also imposed limits on expenditures that individuals, candidates, political

committees, and political parties could spend to help federal candidates win elections.

Moreover, the law treated expenditures that were “coordinated” with a candidate as

contributions. 2 U.S.C. 441a(a)(7)(B)(i) (“[E]xpenditures made by any person in
27

cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his

authorized political committees, or their agents, shall be considered to be a contribution to

such candidate.”). The amendments also included a variety of recordkeeping and disclosure

requirements. See 2 U.S.C. §§ 432-434. The Federal Election Commission was also created

by the amendments and tasked with monitoring and enforcing the campaign finance laws.

See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Finally the law, as amended, provided

public funding primarily for qualified presidential candidates and some public funding for

nominating conventions of major political parties.

The first day after the FECA amendments went into effect, the law was challenged.

Buckley, 519 F.2d at 901. In a lengthy opinion, the United States Court of Appeals for the

District of Columbia Circuit found all but one of the provisions of FECA constitutional. Id.

at 843-44 (striking down disclosure provision 2 U.S.C. § 437a). In 1976, the Supreme Court

affirmed in part and reversed in part the D.C. Circuit’s ruling in its decision in Buckley v.

Valeo, 424 U.S. 1 (1976). Generally speaking, in examining FECA’s provisions against the

free speech and association provisions of the First Amendment the Supreme Court found

constitutional FECA’s contribution limitations, Buckley, 424 U.S. at 23-38, and

unconstitutional those provisions of FECA that imposed expenditure limitations, id. at 39-59.

The contribution-expenditure dichotomy first developed in Buckley was grounded in the

Supreme Court’s view that “[a] contribution serves as a general expression of support for

the candidate and his views, but does not communicate the underlying basis for the support.”
4

 The D.C. Circuit’s decision striking down 2 U.S.C. § 437a was not appealed to the

Supreme Court. Buckley, 424 U.S. at 11 n.7.

5

 Following Buckley, there have been a number of important Supreme Court opinions

that have addressed application of Buckley in other contexts. It is more appropriate to discuss

these cases in the context of each Judge’s separate opinion.

6

 FECA defines “person” as “an individual, partnership, committee, association,

corporation, labor organization, or any other organization or group of persons, but such term

does not include the Federal Government or any authority of the Federal Government.” 2

U.S.C. § 431(11).

28

Id. at 21 (observing that “[t]he quantity of communication by the contributor does not

increase perceptibly with the size of his contribution, since the expression rests solely on the

undifferentiated, symbolic act of contributing.”). Expenditure restrictions, on the other hand,

“while neutral as to the ideas expressed, limit political expression at the core of our electoral

process and of the First Amendment freedoms.” Id. at 39 (internal quotation marks and

citation omitted). 

In Buckley, the Supreme Court upheld as well the general disclosure provisions

contained in FECA. Id. at 60-84.4

 The Supreme Court likewise found constitutional the

public funding scheme for presidential candidates. Id. at 85-109. Finally, the Supreme Court

struck down the structure of the FEC as it was constituted under FECA in violation of the

Appointments Clause of the Constitution. Id. at 109-143.

Hence, in the aftermath of Buckley, it was FECA’s contribution restrictions that

remained intact, while its expenditure provisions were vitiated.5 Under FECA, as it emerged

from Buckley, no “person”6

 was permitted to contribute in excess of $1,000 to a candidate
7

 Under BCRA, these contribution limits have been raised. Persons can now

contribute $2,000 to candidates and $25,000 to national political party committees. BCRA

§§ 307(a)(1), 307(a)(2); FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1). Also under BCRA,

Congress has carved state party committees out of § 441a(a)(1)(C) and increased the

contribution limit for state party committees from $5,000 to $10,000. BCRA § 102; FECA

§ 315(a)(1); 2 U.S.C. § 441a(a)(1). Moreover, the contribution limits applicable to

candidates and national party committees have been indexed to the consumer price index and

will increase with inflation. BCRA § 307(d); FECA § 315(c); 2 U.S.C. § 441a(c).

8

 BCRA has increased the aggregate limit on individual contributions from $25,000

per year to $95,000 per two-year election cycle, of which $37,500 may be contributed to

(continued...)

29

for federal office, 2 U.S.C. § 441a(a)(1)(A); no person could contribute to the political

committees established and maintained by a national political party, in any calendar year

which, in the aggregate, exceed $20,000, 2 U.S.C. § 441a(1)(B); and no person could

contribute to any other political committee in any calendar year which, in the aggregate,

exceed $5,000, 2 U.S.C. § 441a(a)(1)(C).7

 In addition, no multicandidate political committee

could contribute in excess of $5,000 to a candidate for federal office, 2 U.S.C. §

441a(a)(2)(A); no multicandidate political committee could contribute in excess of $15,000

to the political committees established and maintained by a national political party, 2 U.S.C.

§ 441a(a)(2)(B); and finally, no multicandidate political committee could contribute to any

other political committee in any calendar year which, in the aggregate, exceeded $5,000, 2

U.S.C. § 441a(a)(2)(C). In order to “prevent evasion” of these limitations Buckley upheld

the Act’s $25,000 limitation on total contributions during any calendar year. Buckley, 424

U.S. at 38. As a result, under 2 U.S.C. § 441a(a)(3), no individual was permitted to make

contributions aggregating more than $25,000 in any calendar year. 2 U.S.C. § 441a(a)(3).8
8

(...continued)

candidates. BCRA § 307(b); FECA § 315(a)(3); 2 U.S.C. § 441a(a)(3).

30

In addition, under 2 U.S.C. § 441b, corporations and labor unions are prohibited from using

their general treasury funds to “make a contribution or expenditure in connection with any

election to any political office.” 2 U.S.C. § 441b(a). In sum, the Supreme Court found that:

The overall effect of the Act’s contribution ceilings is merely to require

candidates and political committees to raise funds from a greater number of

persons and to compel people who would otherwise contribute amounts greater

than the statutory limits to expend such funds on direct political expression,

rather than to reduce the total amount of money potentially available to

promote political expression.

Buckley, 424 U.S. at 21-22. Indeed, what emerged from Buckley was a tightly focused

regime whereby contributions (and coordinated expenditures) to candidates and political

parties and committees were limited or even banned (in the case of corporate and union

treasury funds) and independent political advocacy was left unimpeded.

 Contribution is defined in FECA as including, “any gift, subscription, loan, advance,

or deposit of money or anything of value made by any person for the purpose of influencing

any election for Federal office.” 2 U.S.C. § 431(8)(A)(i).

Since the adoption of FECA, it is clear that the Commission has struggled with

interpreting the phrase “for the purpose of influencing any election for Federal office.” 2

U.S.C. § 431(8)(A)(i). In 1975, the FEC examined the case of a local party committee that

had established separate accounts for federal funds and for corporate contributions which

were permitted under state law, but which were prohibited by federal law for use in
31

connection with federal elections. In Advisory Opinion 1975-21, the Commission

determined that the appropriate course was to have the local party allocate both its

administrative expenses and its voter registration drives between the two accounts, given that

these expenses had an impact on both state and federal elections. FEC Advisory Op. 1975-21

(allocation based on the ratio of “the total amount which the [local party] directly contributes

to and expends on behalf of Federal candidates, to . . . the total of all direct contributions to

and expenditures on behalf of all candidates–Federal, State, and local”). The FEC slightly

reversed course, in Informational Letter 1976-72, where it determined that voter registration

efforts could not be paid for from an account containing funds raised from corporate and

union general treasuries. FEC Informational Letter 1976-72 (“Thus, even though the Illinois

law apparently permits corporate contributions for State elections, corporate/union treasury

funds may not be used to fund any portion of a registration or get-out-the-vote drive

conducted by a political party.”).

However, in its 1977 rulemakings implementing FECA, the Commission permitted

any political committee to make a choice between creating a separate federal account for its

federal election activities, or to establish a single account containing only funds subject to

the federal contribution limits to finance all of its activities with respect to both state and

federal elections. 11 C.F.R. § 102.6(a)(2) (1977). To the extent that segregated accounts

were created, the committees were required to “allocate administrative expenses on a

reasonable basis between their Federal and non-Federal accounts in proportion to the amount
9

 There is a degree of skirmishing in the briefs over the appropriate terminology for

“nonfederal money.” Defendants use the phrase “soft money.” Plaintiffs refer to “soft

money” as “state-regulated” or “nonfederal” money. The Court has, for the most part,

adopted the nomenclature “nonfederal” money because that is the term that the FEC has used

(continued...)

32

of funds expended on Federal and non-Federal elections, or on another reasonable basis.” 11

C.F.R. § 106.1(e) (1977) (emphasis added). The following year, the Commission essentially

reversed its 1976 advisory opinion and in Advisory Opinion 1978-10, determined that “the

costs of [voter] registration and get-out-the-vote drives” by a state party committee “should

be allocated between” federal and nonfederal accounts “in the same manner as other general

party expenditures” under the Commission’s 1977 regulations. FEC Advisory Op. 1978-10.

In Advisory Opinion 1979-17, the Commission extended the conclusions reached in

Advisory Opinion 1978-10 regarding separate accounts to the national party committees.

FEC Advisory Op. 1979-17 (“[Regulations] thus would permit the RNC to establish and

administer separate, segregated bank accounts through an auxiliary organization of the

national party which accounts could be used for the deposit and disbursement of funds

designated specifically and exclusively to finance national party activity limited to

influencing the nomination or election of candidates for public office other than elective

‘Federal office.’”) (citation omitted).

Accordingly, by the middle of 1979, the FEC permitted national and state party

committees to solicit and accept donations outside of FECA’s source and amount limitations

(“nonfederal money”)9

 provided that these monies were placed in separate accounts from the
9

(...continued)

during the rulemaking process implementing BCRA, Prohibited and Excessive

Contributions: Non-Federal Funds or Soft Money, 67 Fed. Reg. 49064 (July 29, 2002)

(“Because the term ‘soft money’ is used by different people to refer to a wide variety of

funds under different circumstances, the Commission is using the term ‘non-Federal funds’

in the final rules rather than the term ‘soft money.’”), even though BCRA uses the term “soft

money,” BCRA § 101 (entitled “Soft money of political parties”) (emphasis added) and even

though on occasion the Supreme Court has also used the phrase “soft money,” see, e.g.,

Colorado Republican Federal Campaign Committee v. FEC (“Colorado I”), 518 U.S. 604,

616 (1996) (“Unregulated ‘soft money’ contributions may not be used to influence a federal

campaign, except when used in the limited, party-building activities specifically designated

in the statute.”). Despite the references in the case law and the statute to the term “soft

money,” for the sake of clarity in an area of law that demands absolute precision, the Court

generally eschews the phraseology “hard money” or “soft money” in favor of “federal

funds” or “nonfederal funds.” Federal funds are those monies regulated under FECA, as

amended, and nonfederal funds are those monies that may or may not be regulated under

state law, but not federal law.

10 In 1979 Congress again amended FECA to exempt two new sets of activities from

the definition of contribution and expenditure. First, state and local party disbursements for

campaign materials such as pins, bumper stickers, and yard signs used in connection with

volunteer activities on behalf of the party’s nominees were exempted from FECA’s

contribution limits provided that the activity was paid for with federal money. 2 U.S.C. §§

431(8)(B)(ix), 9(B)(viii). The second exemption related to a state party’s payment for “the

costs of voter registration and [GOTV] activities” conducted on behalf of the party’s

presidential ticket. 2 U.S.C. §§ 431(8)(B)(xi), (9)(B)(ix). This exemption was also

conditioned on the use of federal money for the activity. Hence, for both of these activities

unlimited federal money could be used to pay for them because they were exempted from the

definition of “contribution” and “expenditure.” For state and local parties that opted to use

nonfederal funds to pay for these activities, allocation was still permitted.

33

federal funds. In other words, political committees were permitted to establish two sets of

accounts–one for federally-regulated money (federal accounts) and one for non-federally

regulated money (nonfederal accounts).10

Essentially, the FEC’s opinions and rulemakings permitted state and national party

committees to pay for the nonfederal portion of their administrative costs and voter
11 As Defense Expert Mann plainly concedes, “Just what amount of soft money

activity the parties pursued in the 1980s is less certain [because] ‘[n]onfederal’ funds were

not subject to federal disclosure requirements, only to the disclosure laws in states where soft

money was spent.” Mann Expert Report at 12. It was not until 1992 that the FEC began

collecting official data on national parties use of nonfederal funds, so any attempts at

pinpointing the amount of nonfederal funds spent by the national parties before 1992 are

estimates. Notably, Plaintiffs do not challenge any of the pre-1992 estimates (or any of the

post-1992 data collected by the Commission). Therefore, the Court relies on these statistics.

34

registration and turnout programs with monies raised under relevant state laws (not FECA),

even if those state laws were in direct contravention of FECA, such as permitting

contributions from corporate and labor union general treasury funds. As a result, national

and state parties began to raise so-called “soft money,” which described these nonfederal

funds, not subject to FECA limits and restrictions, that were used to pay for these

administrative and generic voter drive expenses.

With these developments, nonfederal funds became an increasingly important means

of party financing. During the 1980 election, the RNC spent approximately $15 million in

nonfederal funds and the DNC spent roughly $4 million, constituting 9% of the national

parties total spending. Mann Expert Rep. at 12.11 In 1984, the national parties spent

collectively an estimated $21.6 million in nonfederal money, which accounted for 5% of their

total spending. Id. By 1988, national party nonfederal money had increased to an

approximate $45 million, or 11% of national party spending. Id. 

In 1990, the FEC promulgated regulations to provide for some consistency in the

methods used to determine the relative portions of federal and nonfederal money to be used
12 The Court observes that Common Cause v. FEC demonstrates that as early as 1984,

before any official statistics on nonfederal funds were kept by the Commission, there was

concern over the influence of these monies on federal elections. However, the Commission

in 1984 determined that, “Common Cause has not presented evidence of instances in which

‘soft money’ has been used to influence federal elections sufficient to justify the stringent

rules proposed in its petition.” Common Cause, 692 F. Supp. at 1393 (citing the

Commission’s April 17, 1986, Notice of Disposition).

13 The Commission permitted, inter alia, the following expenses to be allocated:

administrative expenses, which included rent, utilities, office supplies, and salaries, 11 C.F.R.

§ 106.5(a)(2)(i) (1991); the direct costs of a fundraising program or event, where federal and

nonfederal funds are collected by one committee, 11 C.F.R. § 106.5(a)(2)(ii) (1991); and

“generic voter drives,” which included voter identification, voter registration, and

get-out-the-vote (“GOTV”) drives where a specific candidate was not mentioned. 11 C.F.R.

§106.5(a)(2)(iv) (1991).

35

in financing these generic party activities. Prior to 1990, the regulations specified that the

allocation rate between nonfederal and federal accounts was to be done on a “reasonable

basis.” 11 C.F.R. § 106.1(e) (1977). The regulations promulgated by the Commission were

designed to give certainty to this subjective standard and were in response to a district court’s

decision which held that the allocation rules required specific guidance from the

Commission. Common Cause v. FEC, 692 F. Supp. 1391, 1396 (D.D.C. 1987) (“Indeed, it

is possible that the Commission may conclude that no method of allocation will effectuate

the Congressional goal that all monies spent by state political committees on those activities

permitted in the 1979 amendments be ‘hard money’ under the FECA. That is an issue for the

Commission to resolve on remand.”).12 Under the new regulations, national party committees

(other than Senate and House national party committees) were required to allocate at least

65% of their administrative and generic voter drive expenses13 to their federal accounts in
36

presidential election years and 60% in non-presidential election years. 11 C.F.R. §§

106.5(b)(2)(i), (ii) (1991). Senate and House committees were to allocate these expenses on

the basis of the ratio of federal expenditures to total federal and nonfederal disbursements

made by the committee during the two-year federal election cycle. 11 C.F.R. § 106.5(c)(i).

For state and local parties, the allocation between the federal and nonfederal accounts for

these expenses were determined by the proportion of federal offices to all offices on a state’s

general election ballot. 11 C.F.R. § 106.5(d) (1991). Generally, the state parties’ allocation

rate was substantially lower than the national party allocation rate. Mann Expert Rep. at 14.

The new rules also mandated that the national party committees disclose the details of their

nonfederal accounts. 11 C.F.R. §§ 104.8(e), (f) (1991) (requiring national parties to report

for nonfederal and building fund accounts the donating individual’s name, mailing address,

occupation or type of business, and the date of receipt and amount of any such donation).

State parties, however, were exempted from these disclosure requirements. 11 C.F.R. §

104.9(a) (1991) (reporting committees required to disclose information pertaining to “the

committee’s federal account(s) only”). The Commission’s regulations, therefore, provided

the national parties with an incentive to channel these expenditures through state party

committees, since this approach generally permitted more nonfederal dollars to be spent than

if a national party spent the money without disclosing the sources of the funds.

In 1992, spending on nonfederal money by the national parties reached $80 million,

or 16% of the national parties total spending. Mann Expert Rep. at 15 (citing to official
14 The argument that such advertisements could be paid for with nonfederal funds had

its origins in Buckley. The Supreme Court in Buckley, in an attempt to save from

(continued...)

37

figures from the FEC). Of that total amount, the national parties contributed only $2 million

directly to state and local candidates. Mann Expert Rep. at 16. In addition, the two national

parties transferred over $15 million to state party committees–two thirds of which was

transferred to presidential election battleground states. Id. Along these lines, the national

parties expended $14 million in nonfederal funds for “generic” party advertising, consisting

predominantly of television advertisements that did not mention candidates names, but urged

viewers to simply vote for a particular party or stressed themes from the presidential

campaigns. Id. Although the Commission had only approved the use of nonfederal funds

by the national parties “for the exclusive and limited purpose of influencing the nomination

or election of candidates for nonfederal office,” by 1992, with the new allocation rules firmly

in place, national parties were using nonfederal money to impact federal elections as

permitted by the Commission. FEC Advisory Op. 1979-17.

With the 1996 election cycle, the national parties’ total nonfederal funds spending

reached $272 million, which was 30% of the national party committees’ total spending.

Mann Expert Rep. at 21. Starting in the Fall of 1995 and continuing through 1996,

Democratic party committees used soft money to fund advertisements that either promoted

President William J. Clinton by name or criticized his opponent by name, while avoiding

words that expressly advocated either candidate’s election or defeat.14 Id. at 18. In May of
14(...continued)

unconstitutional vaguenessthe independent expenditure prohibitions, narrowed them to apply

“only to expenditures for communications that in express terms advocate the election or

defeat of a clearly identified candidate for federal office.” Buckley, 424 U.S. at 44. In a

footnote, the Buckley Court found that “[t]his [narrowing] construction would restrict the

application of § 608(e)(1) to communications containing express words of advocacy of

election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for

Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52. Even though the Supreme Court

narrowed the provision of the law, it struck down the expenditure provision as

unconstitutional as written and as narrowed by the Court. Id. at 44.

It was based on this language that the national parties in 1995 and 1996 argued that

as long as they ran advertisements that did not mention “express words of advocacy of

election or defeat,” they could use nonfederal money to run advertisements that supported

their presidential candidate or attacked his opponent.

15 The FEC had previously ruled that party committees could sponsor issue advocacy

advertisements that did not feature a federal candidate and pay for these advertisements with

a combination of federal and nonfederal dollars as permitted under the allocation regulations.

FEC Advisory Op. 1995-25 (discussing that allocation rules were permissible to allocate

funding for “RNC plans to produce and air media advertisements on a series of legislative

proposals being considered by the U.S. Congress, such as the balanced budget debate and

welfare reform”). The national parties used this advisory opinion as justification for their

issue advocacy campaigns featuring candidates for federal office and paid for with

nonfederal money. 

38

1996, the Republican National Committee announced its plans to spend $20 million on an

“issue advocacy” campaign. Id. at 20.

Although many of the advertisements featured the presidential candidates, none of the

costs of these advertisements were charged as coordinated expenditures on behalf of the

candidate’s campaign, which would have subjected the expenditure to FECA’s contribution

limits. Instead, the parties paid the full cost, with a mix of federal and nonfederal funds as

permitted by FEC allocation rules.15 Often the advertisements were paid for by state party

committees, where the allocation rules permitted greater spending of soft money. Mann
39

Expert Report at 22 (noting over $115 million was transferred from the national parties to

the state party committees). In fact, state party nonfederal funds for political

communication/advertising went from $2 million in 1992 to $65 million in 1996. Id. at 22;

see also La Raja Expert Report at 18. A similar strategy was also used by the parties to

support their candidates for congressional office. Mann Expert Report at 20. Following the

1996 election, the FEC began a series of investigations over the parties’ 1996 election

practices. Statement of Reasons of Commissioner Scott E. Thomas for MURs 4553 and

4671, 4713, 4407 and 4544 at 2-5 [DEV 51]. In 2000, the FEC deadlocked over whether

there was reason to believe that the national parties advertising program constituted an

excessive in-kind contribution to the presidential campaigns. Id. at 5.

The Senate and House also conducted extensive investigations into the 1996 federal

elections. Both the majority and minority reports in the Senate investigation concluded that

permitting nonfederal donations to political parties eviscerated FECA’s longstanding ability

to prevent corporate and labor union treasury funds from influencing federal elections.

Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election

Campaigns, S. Rep. No. 105-167 (6 vols.), Mar. 10, 1998, (“Thompson Committee Report”);

id. at 4468 (majority report) (“[S]oft money spending by political party committees

eviscerates the ability of the FECA to limit the funds contributed by individuals,

corporations, or unions for the defeat or benefit of specific candidates.”); id. at 4572

(minority report) (“The soft money loophole undermines the campaign finance laws by
40

enabling wealthy private interests to channel enormous amounts of money into political

campaigns.”). In the House, the Committee on Government Reform and Oversight

conducted a wide ranging investigation, which culminated in public hearings during 1997,

into, inter alia, campaign fundraising by political parties from foreign sources. See

Campaign Finance Investigation: Hearings Before the House Committee on Government

Reform and Oversight, 105th Cong. 6 (October 8, 1997) (statement of Chairman Dan Burton)

(“This Committee's hearings will cover many subjects . . . . Our initial focus has been how

political parties took or raised contributions from foreign sources. I am gravely concerned

about foreign governments, foreign companies or foreign nationals trying to influence our

electoral processes.”); Conduit Payments to the Democratic National Committee: Hearings

Before the House Committee on Government Reform and Oversight, 105th Cong. 6 (October

9, 1997) (statement of Chairman Dan Burton) (“Today, marks the first day of hearings into

illegal foreign fundraising and other violations of law during recent campaigns.”).

Nevertheless, without any congressional action, nonfederal funds emerged as a

significant source of party resources. With these strategies firmly in place, the national

parties spent $221 million of nonfederal money on the 1998 midterm elections, or 34% of

their total spending, which was more than double the amount of nonfederal funds spent

during the previous midterm election. Mann Expert Report at 23. With the 2000 elections,

the national parties spent $498 million worth of nonfederal funds, which was 42% of their

total spending. Id. at 24.
41

The use of nonfederal funds by the political parties was paralleled to some degree by

a similar development in the rise of issue advocacy by corporations and labor unions. Aside

from the political parties making advertisements that supported their candidates or attacked

the opponent without using words of direct “express advocacy,” unions and corporations

began to mount “issue advocacy” campaigns, particularly beginning with the 1996 election,

that were paid directly from their general treasuries. For example, in 1996 the AFL-CIO ran

the following advertisement from September 26 to October 9 in the district of House

Republican incumbent Steve Stockman:

[Narrator] What’s important to America’s families? [Middle-aged man] “My

pension is very important because it will provide a significant amount of my

income when I retire.” [Narrator] And where do the candidates stand?

Congressman Steve Stockman voted to make it easier for corporations to raid

employee pension funds. Nick Lampson opposes that plan. He supports new

safeguards to protect employee pension funds. When it comes to your pension,

there is a difference. Call and find out.

AFL-CIO 000593; [DEV 124] (emphasis added); see also AFL-CIO 000602.

 Advertisements such as the above illustration were permitted by the Supreme Court’s

ruling in FEC v. Massachusetts Citizens for Life, Inc. In that case, the Supreme Court found

that the prohibition on corporate and union treasury spending on expenditures found in 2

U.S.C. § 441(b) needed to be narrowly construed to only apply to express advocacy. FEC

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 (1986) (“MCFL”) (“We therefore

hold that an expenditure must constitute ‘express advocacy’ in order to be subject to the

prohibition of § 441b.”). As a result, corporations and labor unions were free to use general
42

treasury funds to finance issue advocacy campaigns. It does not appear that prior to 1996,

the practice of using issue advertising to influence federal elections was a widespread

practice. 

In addition, the issue advocacy campaigns by corporations and labor unions were free

from the disclosure provisions upheld in Buckley because they were considered outside of

FECA’s regulatory purview. This lack of disclosure permitted various interest groups to

conceal the true identity of the source behind the advertisement. Thus, following both the

1996 and 2000 elections, corporations and unions used their general treasury funds to run

advertisements apparently aimed at influencing federal elections and avoiding FECA’s

longstanding disclosure provisions. 

With regard to both political party spending of nonfederal funds and political party,

corporate, and labor union issue advocacy, there does not appear to be any dispute among the

litigants to the fact that much of this behavior was not regulated or was permitted by the

FEC. Rather, the dispute between the parties centers around the effect of engaging in these

tactics, whether the measures needed addressing, and how Congress ultimately remedied

what it perceived to be a problem. It is the congressional response to which the Court now

turns.

B. The Bipartisan Campaign Reform Act of 2002

In response to what it perceived were burgeoning problems with federal campaign

finance laws, Congress began to consider reform legislation over six years ago, during the
16 See Bipartisan Campaign Finance Reform Act of 1998, H.R. 2183, 105th Cong.

(1998), available at http://thomas.loc.gov.

17 See id.; Bipartisan Campaign Reform Act of 1999, H.R. 417, 106th (1999);

Bipartisan Campaign Finance Reform Act of 2002, H.R. 2356, 116 Stat. 81 (2002).

18 According to Congressional Quarterly reporter David Mark, the House Leadership

only allowed floor consideration of House Bill 2183 after it appeared that supporters of the

bill had nearly secured the requisite 218 signatures on a discharge petition to automatically

bring the bill to the floor, which did not require the consent of the leadership. See David

Mark, Campaign Finance Discharge Petition Off to Fast Start, Congressional Quarterly

Daily Monitor (July 31, 2001). 

19 When considering most major legislation, the House of Representatives typically

adopts a rule, in the form of a House Resolution, that governs, and generally limits, debate

on the underlining bill. In order to expedite consideration of the underlining bill, the rule

suspends the proceedings of the House of Representatives, and the body operates as one large

committee, the Committee of the Whole House on the State of the Union (“Committee of the

Whole”). Walter J. Oleszek, Congressional Procedures and the Policy Process 151-53 (5th

ed., CQ Press 2001). This parliamentary mechanism enables the House to act with a quorum

less than the requisite 218 members; only 100 members are needed to constitute a quorum

in the Committee of the Whole. Id. at 152. (There are numerous other technical distinctions

between the Committee of the Whole and the House of Representatives that enable

(continued...)

43

105th Congress.16 The overhaul of our Nation’s existing campaign finance laws –

culminating with the enactment of BCRA – would consume the attention of three separate

Congresses17 and require navigation through atypical parliamentary procedures.

During the 105th Congress, the House of Representatives considered House Bill 2183,

the Bipartisan Campaign Integrity Act of 1997, offered by Representative Asa Hutchinson.

The bill was first considered on May 22, 1998.18 144 Cong. Rec. H3774 (daily ed. May 22,

1998). On August 3, 1998, during consideration of Representative Hutchinson’s bill on the

House floor, the Committee of the Whole19 adopted an amendment in the nature of a
19(...continued)

expeditious consideration of legislation). Id. at 152-53. After the Committee of the Whole

considers the underlining legislation, generally, the rule governing debate automatically

dissolves the Committee of the Whole, and the House of Representatives reconvenes to vote

on the underlining bill for final passage.

20 Beyond making numerous substantive changes to the underling bill, the ShaysMeehan substitute amendment changed the title of the bill from the “Bipartisan Campaign

Integrity Act of 1997,” 144 Cong. Rec. H3774 (daily ed. May 22, 1998), to the “Bipartisan

Campaign Reform Act of 1998,” 144 Cong. Rec. H4790-96 (daily ed. June 18, 1998). 

44

substitute offered by Representatives Christopher Shays and Martin Meehan.20 144 Cong.

Rec. H6947 (daily ed. Aug. 3, 1998). Finally, on August 6, 1998, the House passed House

Bill 2183, as amended (the Bipartisan Campaign Reform Act of 1998), by a vote of 252-179.

144 Cong. Rec. H7330 (daily ed. Aug. 6, 1998). The bill was referred to the Senate on

September 9, 1998, 144 Cong. Rec. S10,114 (daily ed. Sept. 9, 1998), but was not considered

prior to adjournment, sine die, on October 21, 1998. As a result, the Bipartisan Campaign

Reform Act of 1998 died in the Senate during the 105th Congress.

On January 19, 1999, during the 106th Congress, Representative Shays introduced

House Bill 417, the Bipartisan Campaign Reform Act of 1999, which attracted the support

of 96 original cosponsors. See H.R. 417, 106th Cong. (1999). Upon introduction, the bill

was referred to the Committee on House Administration, where it received an unfavorable

report. H.R. Rept. 106-297, pt. 1, at 17 (1999). Nonetheless, the proponents of campaign

finance reform secured floor consideration through the threat of a discharge petition. See

David Mark, Campaign Finance Discharge Petition Off to Fast Start, Congressional

Quarterly Daily Monitor (July 31, 2001). When the Bipartisan Campaign Reform Act of
21 While debate on the Senate floor does not always lead to an all-out filibuster, on

controversial legislation, the Senate typically invokes cloture to end the threat of unlimited

debate or simply to gauge support for the underlining bill. See Walter J. Oleszek,

Congressional Procedures and the Policy Process 231-34 (5th ed., CQ Press 2001). Under

Rule XXII of the Standing Rules of the Senate, if “three-fifths of the Senators duly chosen

and sworn” (60 Senators if the Senate is at its full membership) vote in the affirmative on a

motion for cloture, further debate on the question shall be limited to no more than one hour

for each Senator, and the time for consideration of the matter shall be limited to 30 additional

hours, unless increased by another three-fifths vote. See Standing Rules of the Senate, Rule

XXII, available at http://rules.senate.gov/senaterules/rule22.htm. 

45

1999 reached the floor for a vote, it passed comfortably, by a vote of 252-177. 145 Cong.

Rec. H8286 (daily ed. Sept. 14, 1999). On September 16, 1999, the Senate received House

Bill 417, and on September 29, the Senate referred it to the Senate Committee on Rules and

Administration, 145 Cong. Rec. S11,638 (daily ed. Sept. 29, 1999), where it would remain

for the balance of the 106th Congress. The Senate responded to the House’s action by

considering Senate Bill 1593, also titled the Bipartisan Campaign Reform Act of 1999, which

was introduced on September 16, 1999, by Senators McCain and Feingold, shortly after

House Bill 417 secured passage. S. 1593; see also 145 Cong. Rec. H8286 (daily ed. Sept.

14, 1999). The Senate, however, failed to invoke cloture,21 thereby failing to limit debate on

two separate amendments to Senate Bill 1593, and the bill floundered. 145 Cong. Rec.

S12,800 (daily ed. Oct. 19, 1999); id. at S12,803. As a result, for the second time in as many

years, the campaign finance reform bill died in the Senate.

Circumstances changed during the 107th Congress; this time it was the Senate that
22 Bipartisan Campaign Reform Act of 2001, S. 27, 107th Cong. (2001).

23 Faced with the fact that Senate Bill 27 was unlikely to garner the support of a

majority of the House, and given the fact that House Bill 380 differed from Senate Bill 27,

Representatives Shays and Meehan met with members of the Senate to work out a

compromise bill. The agreement they reached was reflected in House Bill 2356. See David

Mark & John Cochran, House Panel to Mark Up Dueling Campaign Finance Bills,

Congressional Quarterly Daily Monitor (June 27, 2001) (“The revisions are designed to

encourage the Democratic-controlled Senate to accept a House-passed bill, thus avoiding the

need for a conference committee. ‘We’re trying to pre-conference with supporters of the bill,

rather than going to conference with opponents,’ Shays said.”).

24 The Speaker of the House picks the 9 majority-party members that serve on the

powerful House Committee on Rules – the gateway to the House floor. The Rules

Committee writes the rules that govern debate and determines which amendments will be

considered. The committee currently consists of 13 members, 9 majority-party members

chosen by the Speaker of the House and 4 minority-party members chosen by the House

Minority Leader. See Walter J. Olsezek, Congressional Procedures and the Policy Process

119 (5th ed., CQ Press 2001).

46

acted first and passed campaign finance reform legislation, Senate Bill 27,22 by a vote of 59-

41. 147 Cong. Rec. S3258 (daily ed. Apr. 2, 2001). The bill was then transferred to the

House of Representatives.

Representatives Shays and Meehan had already introduced House Bill 380, the

Bipartisan Campaign Reform Act of 2001, when the Senate secured passage of Senate Bill

27. See H.R. 380, 106th Cong. (1999). On June 28, 2001, in an effort to make their

legislation conform with the Senate-passed bill,23 Representatives Shays and Meehan

introduced new legislation, House Bill 2356, also titled the Bipartisan Campaign Reform Act

of 2001. The House Leadership, which, through the Speaker of the House, controls access

to the House floor,24 agreed to consider House Bill 2356. However, in a last minute effort
25 Members of a conference committee are formally appointed by the Speaker of

House and the presiding officer of the Senate. Walter J. Oleszek, Congressional Procedures

and the Policy Process 252-54 (5th ed., CQ Press 2001). In the House, after initial

appointment, the Speaker retains the authority to add and remove members. Id. at 254.

Although the House rules provide that the Speaker shall “appoint no less than a majority [of

conferees] who generally supported the House position [on the legislation] as determined by

the Speaker,” Rules of the House of Representatives, 108th Cong. (2003) available at

http://www.house.gov/rules/house_rules.htm, in practice, the Speaker is vested with

significant discretion to ensure that the House delegates are amicable to the leadership’s

position. See Walter J. Oleszek, Congressional Procedures and the Policy Process 252-54

(5th ed., CQ Press 2001).

47

to tweak the legislation, Representatives Shays and Meehan proposed several amendments.

John Cochran, Not Victory but Vitriol for Campaign Finance Bill, Congressional Quarterly

Weekly (July 13, 2001). The package of amendments offered by Shays and Meehan reflected

the need for additional changes to ensure that House Bill 2356, if passed by the House, would

be considered without amendment by the Senate, thereby eliminating the need for a

conference committee.

25

 See id. In addition, Shays and Meehan requested that the Rules

Committee write a rule for consideration and debate on the House floor that would treat this

package as a single amendment, which could be considered in one vote. Id. The Rules

Committee refused, drafting a resolution for consideration and debate that would treat each

change, fourteen in total, as separate amendments. Id.; see also H.R. Res. 188, 107th Cong.

(2001). Shays, Meehan, and their supporters opposed the rule, claiming that the House

Leadership used “technicalities” to defeat the bill, and called upon their colleagues to reject

the rule. 147 Cong. Rec. H3984 (daily ed. July 12, 2001) (statement of Rep. Meehan). The
26 This marked the first occasion in which Speaker J. Dennis Hastert lost a vote on a

rule during his first two years as Speaker of the House. Karen Foerstel, A Bitter Day for the

GOP, Congressional Quarterly Weekly (July 13, 2001).

48

House voted and the rule failed.26 In the aftermath, however, the bill’s proponents and the

House Leadership were unable to come to an agreement over a compromise rule for the

consideration and debate of House Bill 2356, John Cochran, Not Victory but Vitriol for

Campaign Finance Bill, Congressional Quarterly Weekly (July 13, 2001), and the bill was

pulled from the House Floor.

On July 30, 2001, Representative Jim Turner filed a discharge petition to bring House

Bill 2356 to the floor for consideration. H.R. Discharge Pet. No. 3, available at

http://clerkweb.house.gov/107/lrc/pd/Petitions/Dis3.htm. As congressional procedure scholar

Walter J. Oleszek noted: 

[t]he discharge procedure, adopted in 1910, provides that if a bill has been

before a standing committee for thirty legislative . . . days, any member can

introduce a motion to relieve the panel of the measure. . . . If the requisite

number of members (218) sign the petition, this procedure permits a majority

of the House to bring a bill to the floor even if it is opposed by the committee

that has jurisdiction over the measure, the majority leadership, and the Rules

Committee.

Walter J. Oleszek, Congressional Procedures and the Policy Process 138 (5th ed., CQ Press

2001). While the discharge petition permits a majority of the House to circumvent a stacked

committee or the House Leadership, it has not been a highly effective tool for passing

legislation, let alone securing its enactment into law. As Walter Oleszek went on to observe:

Few measures are discharged from committee. From 1931 through 1994
27 The Armey Substitute, Amendment 415, failed by a vote of 179-249. 148 Cong.

Rec. H376-77 (daily ed. Feb. 13, 2002).

28 The first Ney Substitute, Amendment 416, failed by a vote of 53-377. 148 Cong.

Rec. H392 (daily ed. Feb. 13, 2002). The second Ney Substitute, Amendment 430, failed by

a vote of 181-248. Id. at H464-65.

29 The process of going to conference creates three additional hurdles to the enactment

of legislation. First, the conferees must come to an agreement, and in addition, the

Conference Report must pass both the House and the Senate. Moreover, the House and

Senate Leadership appoint members to the conference committee and enjoy considerable

(continued...)

49

(approximately the period during which the modern version of the rule has

been in effect), more than five hundred discharge petitions were filed, but only

forty-six attracted the required signatures and only nineteen bills were

discharged and passed by the House. Of those, only two became law: the Fair

Labor Standards Act of 1938 and the Federal Pay Raise Act of 1960.

Id. at 139. Despite this history of failure, on January 24, 2002, Representative Turner’s

petition attracted 218 signatures, the requisite number to achieve discharge. See H.R.

Discharge Pet. No. 3. Consequently, the bill was sent to the floor and scheduled for debate.

See H.R. Res. 203, 107th Cong. (2001); H.R. Res. 344, 107th Cong. (2002); 148 Cong. Rec.

H266 (daily ed. Feb. 12, 2002). On February 13, 2002, the House began to consider House

Bill 2356. During consideration, the House rejected three substitute amendments – one

offered by House Majority Leader Dick Armey27 and two offered by House Administration

Committee Chairman Robert Ney28 – before agreeing to Representative Shays’ substitute

amendment by a vote of 240-191, 148 Cong. Rec. H411 (daily ed. Feb. 13, 2002). Like the

earlier amendment package, the Shays Substitute was designed to avoid a conference

committee, where opponents would have another opportunity to scuttle the bill,29 by making
29(...continued)

discretion over its composition. See Walter J. Oleszek Congressional Procedures and the

Policy Process 252-54 (5th ed., CQ Press 2001); see also supra note 25.

30 The Shays Substitute, Amendment 417, also amended the title of the bill to its

present form: the “Bipartisan Campaign Reform Act (BCRA) of 2002.” 148 Cong. Rec.

H393 (daily ed. Feb. 13, 2002).

50

changes likely to garner the support of a majority of the Senate without forcing them to alter

the text of the House-passed bill. See 148 Congr. Rec. H402 (daily ed. Feb. 13, 2002)

(statement of Rep. Shays) (observing that the Shays substitute amendment was drafted after

having “met with Senators from both sides of the aisle to learn what was needed in that bill

in order to pass [BCRA]”).30 After considering a series of amendments to the newly

amended, underlining bill (House Bill 2356), the House passed BCRA by a vote of 240-189.

148 Cong. Rec. H465-66 (daily ed. Feb. 13, 2002). On March 20, 2002, the Senate followed

suit, passing BCRA by a vote of 60-40. 148 Cong. Rec. S2160-61 (daily ed. Mar. 20, 2002).

On March 27, 2002, President George W. Bush signed BCRA into law; the first major

overhaul of the Federal Election Campaign Act since the 1974 Amendments and their

revision following Buckley. Broadly speaking, Title I attempts to regulate political party use

of nonfederal funds, while Title II seeks to prohibit labor union and corporate treasury funds

from being used to run issue advertisements that have an ostensible federal electioneering

purpose. 

C. Procedural History of the Litigation of this Case

On the morning of March 27, 2002, President Bush signed BCRA into law. Within
31 BCRA § 403(a)(1) states: “The action shall be filed in the United States District

Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant

to section 2284 of title 28, United States Code.”

32 The plaintiffs did not disagree that some discovery was necessary:

JUDGE KOLLAR-KOTELLY: So, as I understand it, then, everybody wants to do

depositions, everybody wants to do some exchange of expert reports, and everybody

(continued...)

51

hours, Senator McConnell and the National Rifle Association (“NRA”) filed complaints

challenging the constitutionality of various provisions in BCRA. On April 16, 2003,

pursuant to Congress’s directive, BCRA § 403(a)(1),31 those cases were assigned to a district

court of three judges consisting of District Court Judge Colleen Kollar-Kotelly, District Court

Judge Richard J. Leon, and Circuit Court Judge Karen LeCraft Henderson. A week later, on

April 23, 2002, the three-judge court held a status conference, in which it heard the parties’

proposals on consolidation, intervention, discovery, and the filing of motions. 

The primary issue confronting the Court at the status conference was the scope of

discovery required to develop a satisfactory factual record. The defendants, in their pleading,

argued that “wide-raging discovery” was necessary “even in the context of a facial challenge,

. . . [in order to] look to the record of the case for evidence substantiating the governmental

interests asserted in support of legislation said to violate the First Amendment.” Def.’s

Report in Response to the Court’s Order of April 16, 2002, at 9 (quoting Turner

Broadcasting Sys. v. FCC, 512 U.S. 622, 664-68 (1994); Colorado Republican Fed.

Campaign Comm. v. FEC (“Colorado I”), 518 U.S. 604, 618-19 (1996) (plurality

opinion)).32 Mindful that the Supreme Court remanded a First Amendment case to a three-
32(...continued)

wants to have some sort of lay statement, affidavits or statements. Is that accurate?

. . . If somebody disagrees with that, let me know.

MR. ABRAMS: That’s entirely accurate from our point of view, Your Honor.

Status Conference Tr., April 23, 2002, at 13; see also Status Report and Proposed Schedule

of Plaintiffs Senator Mitch McConnell et al., April 22, 2002 (stating that their proposed

schedule “is designed to ensure that a full record is compiled for submission to this Court,

and ultimately to the United States Supreme Court”).

33 At issue in Turner was a constitutional challenge to the “must-carry” provisions that

required carriage of local broadcast stations on cable systems. The Supreme Court remanded

the case to the three-judge district court, explaining that in order to assure that Congress drew

“reasonable inferences based on substantial evidence” that a harm truly existed, the Court

needed “substantial elaboration in the District Court of the predictive or historical evidence

upon which Congress relied, or the introduction of some additional evidence.” Id. at 667

(emphasis added). Because of the “paucity of evidence” and “lacking” of findings on the

effect of the regulations, the Court could also not undertake the narrow tailoring step:

“unless we know the extent to which the must-carry provisions in fact interfere with

protected speech, we cannot say whether they suppress ‘substantially more speech . . . than

necessary’ to ensure the viability of broadcast television.” Id. at 667-68. What followed was

“another 18 months of factual development on remand” to the three-judge panel, Turner

Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 187 (1997) (citation and internal quotations

omitted), and, here, the defendants in this case warned that “[t]he factual inquiry . . . could

be on a scale similar to that of Turner,” Status Conference Tr., April 23, 2002, at 48

(statement of James Gilligan).

34 This Court recognizes that “we’ve got to have an adequate factual record.” Status

Conference Tr., April 23, 2002, at 10 (statement of Judge Henderson). 

52

judge district court in Turner Broadcasting to “permit the parties to develop a more thorough

factual record,” 512 U.S. at 668,33 this Court agreed with the defendants that extensive

discovery was necessary34 to review the evidentiary grounds for BCRA, and in part, to avoid

the “disaster” of remand. Status Conference Tr., April 23, 2002, at 51 (statement of James
35 In Colorado I, the Supreme Court remanded the issue of whether coordinated party

expenditures are constitutional, Colorado I, 518 U.S. at 623-26; see also 2 U.S.C. §

441a(d)(3), and the Tenth Circuit subsequently passed the case on to the district court, stating

that 

[T]he issues are too important to be resolved in haste. It seems inevitable that not only

this court but the Supreme Court itself will have to address these issues. We will both

benefit by the parties fleshing out the record with any evidence they and the district

court deem relevant to the issues’ resolution.

FEC v. Colorado Republican Fed. Campaign Comm., 96 F.3d 471, 473 (1996). The district

court then allowed the parties to conduct discovery for eleven and a half months,

significantly longer than our total discovery schedule for many issues of similar complexity.

Status Conference Tr., April 23, 2002, at 63 (statement of James Gilligan); cf. FEC v.

Colorado Republican Fed. Campaign Comm., 41 F. Supp.2d 1197 (D.Co. 1999); see also

213 F.3d. 1221, 1225 (10th Cir. 2000) (stating that the parties “compiled an extensive

record”). 

53

Gilligan).35 Notwithstanding Congress’s directive “to expedite to the greatest possible extent

the disposition of the action and appeal,” BCRA § 403(a)(4), it was also clear from the

legislative record that Congress did not want this Court to “compromise informed and

deliberate judicial decisionmaking in the process.” See Def.’s Report in Response to the

Court’s Order of April 16, 2002, at 8. Indeed, Senator Feingold, one of the principal Senate

sponsors, explained during the Senate debate:

Finally, and most importantly, although [Section 403(a)(4)] provides for the

expedition of these cases to the greatest possible extent, we do not intend to

suggest that the courts should not take the time necessary to develop the

factual record . . . This case will be one of the most important that the Court

has heard in decades, with ramifications for the future of our political system

for years to come. By expediting the case, we in no way want to rush the

Court into making its decision without the benefit of a full and adequate

record. 

147 Cong. Rec. S3189 (March 30, 2001) (statement of Sen. Feingold); see also id. at S3189-
36 Judge Henderson maintains that the Buckley case was handled with much greater

efficiency than the three-judge panel here. Henderson Op. at 6 n.1. In Buckley v. Valeo, the

lawsuit was filed on January 2, 1975, but a decision was not issued by the D.C. Circuit until

seven and a half months later on August 15, 1975. Buckley, 519 F.2d at 821, 901. While this

case required thirteen months from filing to disposition, the parties also undertook six months

of discovery–at least four months of discovery and fact-finding more than that undertaken

in Buckley. Id. at 902-03. That four months of discovery alone accounts for most of the

discrepancy in the two expedited, yet complicated, campaign finance cases. Moreover, given

the vast record developed through the six months of discovery in this case, it is not surprising

that this Court required a few more months than the Buckley court to arrive at a decision after

the arguments–for only careful consideration of the record before us could reduce the risk

of committing clear error in our findings. See Easley v. Cromartie, 532 U.S. 234, 242

(2001).

37 On May 10, 2002, the Court consolidated all cases that were not consolidated on

April 24, 2002, see Order, May 10, 2002; Order Consolidating Cases, April 24, 2002, and

also permitted Senator John McCain, Senator Russell Feingold, Representative Christopher

(continued...)

54

90 (statement of Sen. Dodd) (supporting the expedition provision, but stating “I do not want

to suggest that the Court should not take adequate time to review any such challenge”).36

Accordingly, the next day, the Court issued a unanimous order outlining a discovery

and briefing schedule, which allowed for over five months of discovery and almost an

additional month for cross-examination of fact and expert witnesses; set May 7, 2002, as a

deadline by which all other actions would be filed; and decided that briefing was to take

place between November 4 and November 25, 2002. In a highly unusual accommodation to

Congress’s request for expedition, the Court set oral arguments to begin on December 4,

2002, just over a week after the parties submitted their final briefs. See Scheduling Order

of April 24, 2002. By May 10, 2002, 101 parties were involved in the consolidated action,

with the eighty-four plaintiffs challenging twenty-three provisions of BCRA.37 After the
37(...continued)

Shays, Representative Martin Meehan, Senator Olympia Snowe, and Senator James Jeffords

to intervene as defendants supporting the constitutionality of BCRA, see Order, May 10,

2002.

55

Court dismissed seven plaintiffs from the suit without prejudice, see infra note 55, seventyseven plaintiffs and seventeen defendants remained. See id. (listing all plaintiffs and

defendants). 

During the discovery process, the parties filed a total of twenty-three motions with the

Court, including motions to compel responses to document requests, motions to compel

responses to interrogatories, and motions for protective orders. At a hearing on July 25,

2002, the Court heard arguments as to many of the discovery disputes. Thereafter, the Court

resolved the disputes with memorandum opinions. See, e.g., Order Denying Federal Election

Commission’s Motion for Entry of Protective Orders, August 12, 2002; Order Denying in

Part and Granting in Part Plaintiffs’ Motions to Compel Interrogatory Responses, August 15,

2002; Order Denying Adams Plaintiffs’ Motion to Compel Intervenors to Respond to

Interrogatories and Produce Documents, September 10, 2002.

On October 7, 2002, the Court ordered the parties to meet and confer and to deliver

a proposed format on the briefing and proposed findings of fact. See Order, October 7, 2002.

In their joint response, the plaintiffs (absent the Adams and Thompson plaintiffs) requested

751 pages, the Adams Plaintiffs requested 115 pages, and the defendants requested 750

pages. See Joint Submission in Response to the Court’s Order of October 7, 2002. The
38 Each side was originally given an aggregate of 820 pages, however, the Court, in

an Order dated October 29, 2002, granted the Adams and Thompson Plaintiffs the ability to

file their own independent briefing which increased the aggregate page amount for Plaintiffs.

39 See Joint Submission in Response to the Court’s Order of October 7, 2002.

40 The record in this case was described by one advocate during the oral argument as

“elephantine.” Oral Argument Tr. at 152 (statement of Floyd Abrams); see also id. at 279-

80. We agree. Both sides should be commended for their extraordinary efforts in gathering

and organizing the evidence in such a short period of time. We agree with Seth Waxman,

attorney for the Intervenor-Defendants, who urged us to carefully review the record before

us:

I think it’s very, very important for the court to look carefully at the record. . . . We

(continued...)

56

Court ordered that the plaintiffs, including the Adams and Paul plaintiffs, submit three

rounds of briefs not to exceed 840 pages and that the defendants’ briefs submit three rounds

of briefs (i.e., opening, opposition, and reply) not to exceed 820 pages.38 The Court also

directed the plaintiffs collectively, and the defendants collectively, to each submit proposed

findings of fact of no more than 300 pages. Briefing Order, October 15, 2002; Order,

October 19, 2002. 

On November 25, 2002, a little over a week before oral arguments were scheduled to

begin, the parties filed their last round of briefs, bringing the total briefing to 1,676 pages

(not including amicus curiae briefs). A day later, the parties submitted 576 pages of

proposed findings of fact. The evidentiary submissions themselves included forty-one boxes

(plus thirteen additional binders), which, by a conservative estimation, comprised the

testimony and declarations of over 200 fact and expert witnesses and over 100,000 pages

39

of material.40 With the record and pleadings before it, the Court commenced oral arguments
40(...continued)

have worked, all of us on both sides of this case have worked harder than I ever

believed I could be made to work in order to give you this record. . . . I think the ads

itself and the reports and affidavits that have been submitted I think are very, very

important. I know everybody feels that way.

Id. at 279-80 (statement of Seth Waxman).

41 We disagree with Judge Henderson’s statement that “there was a consensus [at the

hearing] that the [Supreme] Court had to receive the case no later than early February.”

Henderson Op. at 6 n.1. A fair reading of former Solicitor General Waxman’s colloquy with

Judge Henderson, prompted by her questions, in our judgment, would be that the Supreme

Court has the ability to adjust the briefing and oral argument schedule, and has done so in the

past, to hear cases exactly such as this one. In short, neither former Solicitor General stated

his conclusion in categorical terms, and neither provided an estimate of how long after a

hearing the Supreme Court would need to issue its opinion. See generally Tr. at 18-20; 277-

280.

57

on December 4, 2002. The Court heard six hours of arguments that day, and three hours of

oral arguments the following day, from a total of twenty-four attorneys.41

D. Description of the Specific Provisions in BCRA At Issue in These Lawsuits

The Court briefly next sets forth the provision of the law that are at issue in the

litigation.

1. Title I: Reduction of Special Interest Influence

a. The National Party Soft Money Ban: Section 323(a)

The first provision of Title I involves the addition of a new section to FECA, section

323, entitled “Soft Money Of Political Parties.” Section 323(a) states that national party

committees (including national congressional campaign committees) “may not solicit,

receive, or direct to another person a contribution, donation, or transfer of funds or any other

thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and
58

reporting requirements of this Act.” BCRA §101(a); FECA § 323(a)(1); 2 U.S.C. §

441i(a)(1). The law applies to “any . . . national committee, any officer or agent acting on

behalf of such a national committee, and any entity that is directly or indirectly established,

financed, maintained, or controlled by such a national committee.” BCRA §101(a); FECA

§ 323(a)(2); 2 U.S.C. § 441i(a)(2). The clear import of this provision is that national party

committees are banned from any involvement with nonfederal money.

b. The State and Local Party Soft Money Ban: Section 323(b)

In summary terms, Section 323(b) provides, that subject to certain exceptions, a State,

district, or local committee of a political party may not use nonfederal funds to pay for

“Federal election activity.” BCRA §101(a); FECA § 323(b); 2 U.S.C. § 441i(b).

In general, section 323(b)(1) prohibits state and local political parties from spending

any money not raised in accordance with FECA on “Federal election activity.” BCRA

§101(a); FECA § 323(b)(1); 2 U.S.C. § 441i(b)(1). Federal election activity is defined by

the Act as:

(i) voter registration activity during the period that begins on the

date that is 120 days before the date a regularly scheduled

Federal election is held and ends on the date of the election; (ii)

voter identification, get-out-the-vote activity, or generic

campaign activity conducted in connection with an election in

which a candidate for Federal office appears on the ballot

(regardless of whether a candidate for State or local office also

appears on the ballot); (iii) a public communication that refers

to a clearly identified candidate for Federal office (regardless of

whether a candidate for State or local office is also mentioned

or identified) and that promotes or supports a candidate for that

office, or attacks or opposes a candidate for that office
59

(regardless of whether the communication expressly advocates

a vote for or against a candidate); or (iv) services provided

during any month by an employee of a State, district, or local

committee of a political party who spends more than 25 percent

of that individual’s compensated time during that month on

activities in connection with a Federal election. 

BCRA §101(b); FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). Federal election activity does

not include:

(i) public communication that refers solely to a clearly identified

state or local candidate (unless the communication otherwise

qualifies as Federal election activity, for instance, as GOTV);

(ii) a contribution to a state or local candidate (unless designated

to pay for some other kind of Federal election activity); (iii) a

state or local political convention; or (iv) grassroots campaign

materials (stickers, buttons, etc.) that name only a state or local

candidate.

BCRA §101(b); FECA § 301(20)(B); 2 U.S.C. § 431(20)(B).

1) The Levin Amendment

Section 323(b)(2)–commonly referred to as the “Levin Amendment”–carves out an

exception to the general rule in section 323(b)(1). BCRA §101(a); FECA § 323(b)(2); 2

U.S.C. § 441i(b)(2). Section 323(b)(2) permits state and local parties to use an allocation of

nonfederal money (“Levin money” or “Levin funds”) for voter registration, voter

identification, and GOTV activities provided that certain specified conditions are met. First,

the permitted activities may not refer to a clearly identified federal candidate. Second, those

activities may not involve any broadcast communication except one that refers solely to a

clearly identified state or local candidate. Third, no single donor may donate more than
60

$10,000 to a state or local party annually for those activities. Finally, all money (federal and

Levin money alike) spent on such activities must be “homegrown”–i.e., raised solely by the

spending state or local party–and may not be transferred from or raised in conjunction with

any national party committee, federal officeholder or candidate, or other state or local party.

See BCRA §101(a); FECA §§ 323(b)(2)(B), 323(b)(2)(C); 2 U.S.C. §§ 441i(b)(2)(B),

441i(b)(2)(C).

c. Fundraising Costs: Section 323(c)

Section 323(c) requires national, state, and local parties to use federally-regulated

funds to raise any money that will be used on “federal election activities,” as defined in the

statute. BCRA §101(a); FECA § 323(c); 2 U.S.C. § 441i(c).

d. Tax Exempt Organization Soft Money Ban: Section 323(d)

Section 323(d) prohibits any political party committee–national, state, or local–or its

agents from “solicit[ing]” funds for or “mak[ing] or direct[ing]” any donations to either: (i)

any tax-exempt section 501 organization, see 26 U.S.C. § 501(c), that spends any money “in

connection with an election for Federal office (including expenditures or disbursements for

Federal election activity)”; or (ii) any section 527 organization, see 26 U.S.C. § 527, (other

than a state or local party or the authorized campaign committee of a candidate for state or

local office). BCRA §101(a); FECA §§ 323(d)(1), 323(d)(2); 2 U.S.C. §§ 441i(d)(1),

441i(d)(2). A section 501(c) organization is an organization that is tax exempt as described

in that section of the tax code–a good example of which is a charity. A section 527
42 If the federal candidate or officeholder is soliciting, receiving, directing,

transferring, or spending funds in connection with an election for federal office, the funds

must “be subject to the limitations, prohibitions, and reporting requirements of this Act.” 2

U.S.C. § 441(e)(1)(A). However, if the candidate is doing so in connection with a state or

local election, then the funds must be “not in excess of the amounts permitted with respect

to contributions to candidates and political committees” and “not from sources prohibited by

the Act from making contributions in connection with an election for Federal office.” 2

U.S.C. § 441(e)(1)(B). 

61

organization is a political committee that is exempt from taxation. See 26 U.S.C. § 527(a)

(“A political organization shall be subject to taxation under this subtitle only to the extent

provided in this section. A political organization shall be considered an organization exempt

from income taxes for the purpose of any law which refers to organizations exempt from

income taxes.”); see also 26 U.S.C. §§ 527(e)(1) and (2) (defining a “political organization”

as an organization that is “organized and operated primarily for the purpose of directly or

indirectly accepting contributions or making expenditures, or both, for . . . the function of

influencing or attempting to influence the selection, nomination, election, or appointment of

any individual to any Federal, State, or local public office or office in a political organization,

or the election of Presidential or Vice- Presidential electors”).

e. Federal Officeholder and Candidate Soft Money Ban: Section 323(e)

Section 323(e) generally prohibits federal officeholders and candidates from

soliciting, receiving, directing, transferring, or spending any soft money42 (i) in connection

with a federal election or (ii) in connection with a state or local election. BCRA § 101(a);

FECA § 323(e)(1); 2 U.S.C. § 441(e)(1). There are, however, several exceptions to the
62

general prohibition in section 323(e). First, a federal officeholder or candidate may solicit

money for state and local candidates from sources and in amounts that would be allowed by

Federal law. BCRA § 101(a); FECA §§ 323(e)(1)(B)(i), 323(e)(1)(B)(ii); 2 U.S.C. §§

441i(e)(1)(B)(i), 441i(e)(1)(B)(ii). Second, the federal officeholder or candidate ban on

nonfederal funds does not apply to the solicitation, receipt, or spending of funds by an

individual who is also a candidate for state or local office solely in connection with such

election. BCRA § 101(a); FECA § 323(e)(2); 2 U.S.C. § 441i(e)(2). Third, a federal

officeholder or candidate may attend or speak at a fundraising event for a state or local

political party. BCRA § 101(a); FECA § 323(e)(3); 2 U.S.C. § 441i(e)(3). Fourth, a federal

officeholder or candidate may solicit such funds on behalf of any tax-exempt section 501

organization that spends money in connection with federal elections in either of two

instances: (i) he or she may solicit unlimited funds for a section 501 organization whose

“principal purpose” is not voter registration, voter identification, or GOTV activity, so long

as the solicitation does not specify how the funds will be spent; and (ii) he or she may solicit

up to $20,000 per person per year specifically for voter registration, voter identification, or

GOTV activity, or for an organization whose “principal purpose” is to conduct any or all of

those activities. See BCRA § 101(a); FECA §§ 323(e)(4); 2 U.S.C. § 441i(e)(4). 

f. State Candidate Soft Money Ban: Section 323(f)

Lastly, Section 323(f) generally prohibits state officeholders or candidates from

spending soft money (that is, money not raised pursuant to FECA’s regulations) on any
43 Section 201 also contains disclosure provisions which are discussed infra.

44 The regulations implementing this definition clarify that the operative event for

making an electioneering communication is the “dissemination of the communication, rather

than the disbursement of funds related to creating a communication.” Electioneering

Communications, 67 Fed. Reg. 65190, 65191 (Oct. 23, 2002).

63

public communication that “refers” to a clearly identified candidate for federal office and

“promotes,” “supports,” “attacks,” or “opposes” a candidate for that office. BCRA § 101(a);

FECA § 323(f); 2 U.S.C. § 441i(f).

2. Title II: Noncandidate Campaign Expenditures

a. Definition of Electioneering Communication: Section 201

Section 20143 of BCRA amends section 304 of FECA by adding the following

definition of an “electioneering communication”:

(i) The term “electioneering communication” means any broadcast, cable, or

satellite communication which–

(I) refers to a clearly identified candidate for Federal office;

(II) is made within– 

(aa) 60 days before a general, special, or runoff

election for the office sought by the candidate; or

(bb) 30 days before a primary or preference

election, or a convention or caucus of a political

party that has authority to nominate a candidate,

for the office sought by the candidate; and

(III) in the case of a communication which refers to a candidate

for an office other than President or Vice President, is targeted

to the relevant electorate.

BCRA § 201(a); FECA § 304(f)(3)(A); 2 U.S.C. § 434(f)(3)(A).44 Under this definition, in

order to constitute an electioneering communication, therefore, the communication (a) must

be disseminated by cable, broadcast, or satellite, (b) must refer to a clearly identified Federal
64

candidate, (c) must be distributed within certain time periods before an election, and (d) must

be targeted to the relevant electorate. Id. The fact that the communication must be “targeted

to the relevant electorate,” means that, in the case of House and Senate races, the

communication will not constitute an “electioneering communication” unless 50,000 or more

individuals in the relevant congressional district or state that the candidate for the House or

Senate are seeking to represent can receive the communication. BCRA § 201; FECA §

304(f)(3)(C); 2 U.S.C. § 434(f)(3)(C). For example, if a broadcast advertisement refers to

a federal House candidate within 60 days of the general election, but can only be received

by 30,000 individuals, it is not an electioneering communication and permissibly could be

made with funds from the general treasury of a corporation or labor union. 

In the event that a court of competent jurisdiction finds the definition of electioneering

communication to be constitutionally infirm, the statute provides a backup definition:

(ii) If clause (i) is held to be constitutionally insufficient by final judicial

decision to support the regulation provided herein, then the term

“electioneering communication” means any broadcast, cable, or satellite

communication which promotes or supports a candidate for that office, or

attacks or opposes a candidate for that office (regardless of whether the

communication expressly advocates a vote for or against a candidate) and

which also is suggestive of no plausible meaning other than an exhortation to

vote for or against a specific candidate.

BCRA § 201(a); FECA § 304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). With the exception

of the final clause, the fallback definition essentially tracks the language found in section

301(20)(A)(iii) of FECA which addresses one of the four activities which fall within the

definition of the term Federal Election Activity. BCRA § 101(b); FECA § 301(20)(A)(iii);
65

2 U.S.C. § 431 (20)(A)(iii). 

b. Prohibition of Corporate and Labor Union General Treasury Fund

Disbursementsfor Electioneering Communications: Section 203 Rules

Relating to Certain Targeted Electioneering Communications: Section

204

Section 203 of BCRA extends the prohibition on corporate and labor union general

treasury funds being used in connection with a federal election to cover electioneering

communications. BCRA § 203; FECA § 316(b)(2); 2 U.S.C. § 441b(b)(2) (“[T]he term

‘contribution or expenditure’ includes a contribution or expenditure, as those terms are

defined in [FECA], and also includes any direct or indirect payment, distribution, loan,

advance, deposit, or gift of money, or any services, or anything of value . . . to any candidate,

campaign committee, or political party or organization, in connection with any election to

any of the offices referred to in this section or for any applicable electioneering

communication.”)(emphasis added). The prohibition on electioneering communications only

applies to the general treasury funds of national banks, corporations, and labor unions, or any

other person using funds donated by these entities.

Like the original prohibition in section 441b, Section 203 of BCRA, is not an absolute

ban on corporate and labor union spending on “electioneering communication.” FECA

expressly permits corporations and labor unions to create “separate segregated fund[s] to be

utilized for political purposes.” 2 U.S.C. § 441b(b)(2)(C). These segregated funds are

known as political committees under the Act (or PACs). 2 U.S.C. § 431(4)(B) (A political

committee is “any separate segregated fund established under the provisions of section
45 For membership organizations, cooperatives, or corporations without capital stock,

solicitations of the membership are permitted to fund the segregated account. 2 U.S.C. §

441b(b)(4)(C). 

46 As discussed supra, FECA section 304(f)(2)(E) refers to a segregated bank account

made up of contributions for electioneering communications from United States citizens,

nationals, or permanent residents where all the names and addresses of all contributors who

(continued...)

66

441b(b) of this title.”). These segregated accounts are subject to the source and amount

limitations contained in FECA. See, e.g., 2 U.S.C. § 441a(a)(1)(C) (providing that no person

shall make contributions “to any other political committee in any calendar year which, in the

aggregate, exceed $5,000”). To fund the segregated account, a corporation is permitted to

solicit contributions from “its stockholders and their families and its executive or

administrative personnel and their families.” 2 U.S.C. § 441b(b)(4)(A)(i).45 Likewise, in

establishing their segregated funds, labor unions are allowed to solicit contributions to the

fund from their members and their families. 2 U.S.C. § 441b(b)(4)(A)(ii). From these

accounts, corporations and labor unions are permitted to make contributions to federal

candidates and spend unlimited amounts of segregated funds on electioneering

communications and independent expenditures, provided that federal funds are used to pay

for these activities. 

Snowe-Jeffords Provision

BCRA Section 203 provides an exception to certain types of nonprofit corporations

from the requirement that corporations, labor unions, and national banks must use separately

segregated funds46 — and not general treasury funds — to pay for electioneering
46(...continued)

contribute an aggregate amount of $1,000 or more to the account is disclosed. Also as

discussed supra, FECA section 304(f)(2)(F) refers to electioneering communications paid

from a general treasury. If an electioneering communication is paid for with general treasury

funds under section 304(f)(2)(F), then all contributors of more than $1,000 in a calendar year

have to disclose their name and address. Hence, under the Snowe-Jeffords Provision,

501(c)(4) organizations and 527(e)(1) organizations, who are permitted to make

electioneering communications with money contributed by individuals, must disclose the

names and addresses of those individuals who contributed the funds to pay for the

electioneering communication. BCRA § 203; FECA § 316(c)(2); 2 U.S.C. § 441b(c)(2).

47That is, 1) whether the corporation is “formed for the express purpose of promoting

political ideas, and cannot engage in business activities”; 2) “has no shareholders or other

(continued...)

67

communications. However, this exception, commonly known as the “Snowe-Jeffords

Provision” after its sponsors, was later, in effect, withdrawn by Section 204, known as the

“Wellstone Amendment,” see infra at 69; compare BCRA § 203; FECA § 316(c)(2); 2

U.S.C. § 441b(c)(2) (Snowe-Jeffords Provision) with BCRA § 204; FECA § 316(c)(6)(a);

2 U.S.C. § 441b(c)(6)(A) (Wellstone Amendment).

The Snowe-Jeffords Provision permits nonprofit organizations to use their general

treasury funds to pay for electioneering communications if they are incorporated under

Section 501(c)(4) and/or Section 527(e)(1) of the Internal Revenue Code. This exception for

nonprofit corporations is an expansion of the law as it existed prior to BCRA. While FECA

did not provide an exception from its separately segregated fund requirement for nonprofit

corporations, the Supreme Court in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.

238 (1986)(“MCFL”) had provided an as-applied exception for nonprofit corporations which

satisfied certain criteria set forth by the Supreme Court.47 Under BCRA, it is not necessary
47(...continued)

persons affiliated,” so that members have “no economic disincentive for disassociating with

it if they disagree with its political activity; and 3) the corporation “was not established by

a business corporation,” and has a policy of refusing “contributions from such entities.”

MCFL at 264.

68

that a nonprofit corporation establish that it has met the three criteria of MCFL in order to

use its general treasury funds to pay for electioneering communications; instead, it may do

so under Snowe-Jeffords simply by virtue of being incorporated under Sections 501(c)(4) or

527(e)(1).

While a nonprofit corporation under Snowe-Jeffords is permitted to use general

treasury funds for electioneering communications, it is important to note that these

corporations are not permitted to use funds donated by a corporation, labor union, or national

bank to purchase them. Under Snowe-Jeffords, a nonprofit corporation may only use funds

donated by individuals to pay for electioneering communications. If a nonprofit corporation,

for example, has accepted corporate contributions and mixed those contributions with general

treasury funds that contained individual donations, the nonprofit corporation would not be

permitted to use their general treasury funds to engage in electioneering communications.

Finally, although Snowe-Jeffords exempts nonprofit corporations from the separately

segregated fund requirement, they are not similarly exempted from the disclosure

requirements set forth in Section 201. Nonprofit corporations, like any other entity engaging

in electioneering communications, must make public the names and addresses of all

contributors who contributed over $1,000 to the account from which the corporation paid for
69

the communications.

The Wellstone Amendment

Despite drafting and including the Snowe-Jeffords’ provision in the Act, an

amendment offered by Senator Paul Wellstone and adopted by the Senate effectively

eviscerates the Snowe-Jeffords’ Provision from the Act. The “Wellstone Amendment,”

codified in section 204 of BCRA states that the exemption created by the Snowe-Jeffords

Provision for section 501(c)(4) corporations and section 527(e)(1) corporations is

inapplicable “in the case of a targeted communication.” BCRA § 204; FECA § 316(c)(6)(A);

2 U.S.C. § 441b(c)(6)(A). The Wellstone Amendment describes a “targeted communication”

as “an electioneering communication” that is “distributed from a television or radio broadcast

station or provider of cable or satellite television service and, in the case of a communication

which refers to a candidate for an office other than President or Vice President, is targeted

to the relevant electorate.” BCRA § 204; FECA § 316(c)(6)(B); 2 U.S.C. § 441b(c)(6)(B).

The direct consequence of the Wellstone Amendment is that organizations organized under

section 501(c)(4) and section 527(e)(1) of the Internal Revenue Code, or those entities who

have received funds from corporations, are not permitted to use their general treasury funds

for electioneering communications. 

The Wellstone Amendment was codified in a separate section of BCRA in order to

preserve severability: hence, if the Court finds the inclusion of section 501(c)(4)

organizations and section 527 organizations within the ban on electioneering
70

communications to be unconstitutional, the Wellstone Amendment can be cleanly struck

from the law and the original Snowe-Jeffords exception for these groups will be restored.

See BCRA § 401 (discussing that BCRA is subject to severability).

* * *

To briefly summarize, section 201 provides two definitions of “electioneering

communication,” a primary one and a backup definition in the event a court finds the main

definition unconstitutional. Section 203, in conjunction with section 204, prohibits

corporations and unions from using general treasury funds to pay for an electioneering

communication. Corporations and unions need to establish political action committees if

they want to engage in electioneering communication. 

c. Disclosure of Electioneering Communications: Section 201

Section 201 amends Section 304 of FECA, 2 U.S.C. § 434, by requiring disclosures

related to electioneering communications. Section 201’s disclosure requirements mandate

the reporting of “disbursements” for the “direct costs of producing and airing electioneering

communications” aggregating more than $10,000 during any calendar year. BCRA 201(a);

FECA § 304(f)(1); 2 U.S.C. § 434(f)(1). The reports must be made to the Commission

within 24 hours of each “disclosure date.” Id. The statute defines “disclosure date” as the

first time during the calendar year a person’s electioneering communication disbursements

exceed $10,000, and each subsequent aggregation of $10,000 in electioneering

communication disbursements made in the same calendar year. BCRA § 201(a); FECA §
48 The provision states, “For purposes of this subsection, a person shall be treated as

having made a disbursement if the person has executed a contract to make the disbursement.”

BCRA 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5).

71

304(f)(4); 2 U.S.C. § 434(f)(4). “Disbursements” under Section 201 include executed

contracts to make disbursements for electioneering communications. BCRA 201(a); FECA

§ 304(f)(5); 2 U.S.C. § 434(f)(5).48 

The section requires the reports, made under penalty of perjury, to include the

following information:

• the identities of the person making the disbursement, any person sharing or

exercising direction or control over that person, and the custodian of the books

and accounts of the person making the disbursement;

• the person’s principal place of business, if not an individual;

• the amount of each disbursement over $200 during the statement’s period and

the identity of the person who received the disbursement;

• the elections to which the electioneering communications pertain and the

names of the candidates identified in the communications, if known;

• if the disbursements are made from a segregated account funded solely by

direct contributions by individuals for the purpose of making electioneering

communication disbursements, the names and addresses of all persons who

contributed over $1,000 to the account during the calendar year; and

• if the disbursements are made from a different source, the names and addresses
72

of all contributors to that source who contributed over $1,000 during the

calendar year.

BCRA 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2).

d. Coordinated Communications as Contributions: Section 202

Section 202 of BCRA amends Section 315(a)(7) of FECA, 2 U.S.C. 441a(a)(7) by

adding the following language:

if—

(i) any person makes, or contracts to make, any disbursement for any

electioneering communication . . .; and

(ii) such disbursement is coordinated with a candidate or an authorized

committee of such candidate, a Federal, State, or local political party or

committee thereof, or an agent or official of any such candidate, party, or

committee; 

such disbursement or contracting shall be treated as a contribution to the

candidate supported by the electioneering communication or that candidate’s

party and as an expenditure by that candidate or that candidate’s party

BCRA § 202; FECA § 315(a)(7)(C); 2 U.S.C. § 441a(a)(7)(C). Section 202 essentially

makes clear the import of the definitions of “electioneering communication” and

“coordination” in Sections 201 and 214; coordinated electioneering communications

constitute contributions. 

e. Reporting Requirements for Certain Independent Expenditures:

Section 212

Section 212 amends Section 304 of FECA (2 U.S.C. § 434) by adding certain
49 Section 211 defines “independent expenditure” as:

an expenditure by a person--

(A) expressly advocating the election or defeat of a clearly identified

candidate; and

(B) that is not made in concert or cooperation with or at the request or

suggestion of such candidate, the candidate’s authorized political committee,

or their agents, or a political party committee or its agents.

BCRA § 211; FECA § 301; 2 U.S.C. § 431(17).

50 The reports must be filed with the FEC and must include “the name of each

candidate whom an expenditure is intended to support or oppose,” BCRA § 212; FECA §

304; 2 U.S.C. § 434(g)(3)(B), as well as the name and address of each 

person who receives any disbursement during the reporting period in an

aggregate amount or value in excess of $200 within the calendar year (or

election cycle, in the case of an authorized committee of a candidate for

Federal office), in connection with an independent expenditure by the

reporting committee, together with the date, amount, and purpose of any such

independent expenditure and a statement which indicates whether such

independent expenditure is in support of, or in opposition to, a candidate, as

well as the name and office sought by such candidate, and a certification,

under penalty of perjury, whether such independent expenditure is made in

cooperation, consultation, or concert, with, or at the request or suggestion of,

any candidate or any authorized committee or agent of such committee

2 U.S.C. § 434(b)(6)(B)(iii).

73

disclosure requirements for independent expenditures.49 The provision requires persons,

including political committees, to report independent expenditures, or contracts to make such

expenditures, aggregating $1,000 or more after the twentieth day before the date of an

election.50 BCRA § 212; FECA § 304(g)(1)(A); 2 U.S.C. § 434(g)(1)(A). These reports

must be made within 24 hours of making the expenditure or the contract to make the

expenditure. Id. Such reports must be supplemented within 24 hours of making additional

expenditure contracts or expenditures aggregating an additional $1,000 toward the same

election. BCRA § 212; FECA § 304(g)(1)(B); 2 U.S.C. § 434(g)(1)(B). For expenditure
51 In FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001)

(continued...)

74

contracts or expenditures made more than twenty days before an election, persons must also

file reports but only after the expenditures aggregate to $10,000 or more and they have 48

hours in which to file their disclosure. BCRA § 212; FECA § 304(g)(2)(A); 2 U.S.C. §

434(g)(2)(A). These reports must also be supplemented whenever additional expenditure

contracts or expenditures aggregate an additional $10,000 toward the same election. BCRA

§ 212; FECA § 304(g)(2)(B); 2 U.S.C. § 434(g)(2)(B). 

f. Coordination with Candidates or Political Parties: Section 214

The Supreme Court has found treating coordinated expenditures as contributions

constitutionally justifiable under the rationale of preventing circumvention. Buckley, 424

U.S. at 47 (“[C]ontribution ceilings . . . prevent attempts to circumvent [FECA] through

prearranged or coordinated expenditures amounting to disguised contributions.”). Section

214 makes changes to FECA’s coordinated expenditure regime.

Section 214(a) amends Section 315(a)(7)(B) of FECA, 2 U.S.C. § 441a(a)(7)(B), by

adding the following provision:

(ii) expenditures made by any person (other than a candidate or candidate’s

authorized committee) in cooperation, consultation, or concert with, or at the

request or suggestion of, a national, State, or local committee of a political

party, shall be considered to be contributions made to such party committee

BCRA § 214(a); FECA § 315(a)(7)(B)(ii); 2 U.S.C. § 441a(a)(7)(B)(ii). This language is

virtually identical to that in 2 U.S.C. § 441a(a)(7)(B)(i)51, passed in 1976 as an amendment
51(...continued)

(“Colorado II”), the Supreme Court considered the applicability of Section 441a(a)(7)(B)(i)

to political party expenditures. Despite the fact that four Justices found the provision

overbroad, Colorado II, 533 U.S. at 467 (Thomas, J., dissenting), the majority found that

Section 441a(a)(7)(B)(i) applied to political party expenditures coordinated with candidates,

id at 465. 

52 As presently codified, the provision states: “expenditures made by any person in

cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his

authorized political committees, or their agents, shall be considered to be a contribution to

such candidate”. 2 U.S.C. § 441a(a)(7)(B)(i). 

75

to FECA, which defines expenditures made in coordination with candidates.52

Section 214 also repeals the FEC’s regulations “on coordinated communications paid

for by persons other than candidates, authorized committees of candidates, and party

committees,” and requires the FEC to promulgate new regulations. BCRA § 214(b), (c).

Congress instructed that the new regulations “shall not require agreement or formal

collaboration to establish coordination.” BCRA § 214(c); 2 U.S.C. § 441a note. Congress

also instructed that the regulations should address

(1) payments for the republication of campaign materials;

(2) payments for the use of a common vendor;

(3) payments for communications directed or made by persons who previously

served as an employee of a candidate or a political party; and

(4) payments for communications made by a person after substantial

discussion about the communication with a candidate or a political party.

Id. 

Lastly, Section 214 amends Section 316(b)(2) of FECA, 2 U.S.C. 441b(b)(2), to

include within the meaning of “contributions or expenditures by national banks, corporations,

or labor organizations,” the definitions of “contribution or expenditure” found in Section 301
53The “opposition personal funds amount” is not simply the amount of personal funds

expended by a self-financed candidate. It also takes into account the gross receipts advantage

of both candidate’s authorized committees so that incumbents with large war chests will not

be able to take advantage of the new law unless the self-financed candidate expends an even

greater amount of personal funds. BCRA §§ 304(a)(ii); FECA § 315(i)(1)(D); 2 U.S.C. §

441a(i)(1)(D); BCRA § 316; FECA § 315(i)(1)(E); 2 U.S.C. § 441a(i)(1)(E); see also BCRA

§ 319(a); FECA § 315A(a)(2); 2 U.S.C § 441a-1(a)(2).

54The threshold amount in Senate races is equal to the sum of $150,000 plus $.04

multiplied by the voting age population in the candidate’s state, BCRA § 304(a)(2); FECA

§ 315(i)(1)(B); 2 U.S.C. § 441a(i)(1)(B), while in House races the threshold amount is simply

$350,000. BCRA § 319(a)(1); FECA § 315A(a)(1); 2 U.S.C. § 441a-1(a)(1).

76

of FECA, 2 U.S.C. § 431(8), (9). BCRA § 214(d).

3. Title III: Miscellaneous

a. Use of Contributed Amount for Certain Purposes: Section 301

Section 301 sets forth the permitted and prohibited uses of contributions. For

example, a candidate can transfer contributions to political parties but cannot convert

contributions to personal use. BCRA § 301; FECA § 313; 2 U.S.C. § 439a.

b. “The Millionaire Provisions”: Sections 304, 316, & 319

In Sections 304, 316, and 319 of BCRA, Congress allowed opponents of self-financed

candidates to raise money in larger increments and, in certain circumstances, to accept

unlimited coordinated party expenditures. Specifically, the provisions state that if a selffinanced candidate’s “opposition personal fund amount”53 exceeds a threshold amount,54 then

the candidate’s opponent can raise funds through increased contribution limits. BCRA §

304(a); FECA § 315(i); 2 U.S.C. § 441a(i); BCRA § 319; FECA § 315A; 2 U.S.C. § 441a-1.

Moreover, if the opposition personal fund amount is ten times the threshold amount in Senate
77

races, or merely exceeds the $350,000 threshold for House races, the self-financed

candidate’s opponent can also be exempted from limits on coordinated party expenditures

imposed by 2 U.S.C. § 441a(d). Any contributions or party expenditures under the increased

limits is capped to the amount spent by the self-financed candidate: the enhanced

contributions cannot exceed 110% and 100% of the opposition personal funds amount for

Senate and House races respectively. 

c. Lowest Unit Charged: Section 305

 In the 1972 FECA legislation, Congress added the “lowest unit charge”

provision to the Communications Act of 1934. The provision states that, for forty-five days

before a primary or sixty days before a general election, the broadcast stations have to sell

a qualified candidate the “lowest unit charge of the station for the same class and amount of

time for the same period.” 47 U.S.C. 315(b)(1). BCRA Section 305, however, denies a

candidate the lowest unit charge for broadcast advertisements on radio and television unless

the candidate “provides written certification to the broadcast station that the candidate (and

any authorized committee of the candidate) shall not make any direct reference to another

candidate for the same office” in any broadcast. BCRA § 305; FECA § 315(b); 47 U.S.C.

§ 315(b). The candidate can be exempted from this provision, and thus be eligible for the

lowest unit charge without such a promise, if the candidate clearly identifies himself at the

end of the broadcast and states that he approves of the broadcast. In a television broadcast,

this message must include the candidate’s image for at least four seconds. Id.
78

d. Increased Limits for Contributions and Indexing of Limits: Section 307

Section 307(a)(1) increases the amount individuals can contribute to candidates per

election from $1000 to $2000. BCRA § 307(a)(1); FECA § 315(a)(1)(A); 2 U.S.C. §

441a(a)(1)(A). It also changes the aggregate amount of contributions a donor can give to

candidates and political committees (including parties) from $25,000 in a calendar year to

$37,500 in a two-year period to candidates and $57,500 in a two-year period to political

committees. BCRA § 307(b); FECA § 315(a)(3)(A); 2 U.S.C. § 441a(3)(A). Congress also

increased the limits to a national party committee by $5,000 and doubled the amount of

money individuals can donate to a state party committee, so that individuals may now

contribute no more than $25,000 per calendar year to a national party committee, no more

than $10,000 per calendar year to a state committee, and no more than $5,000 per calendar

year to a local committee. BCRA §§ 102, 307(a)(2); FECA § 315(a)(1)(B), (D); 2 U.S.C.

441a(a)(1)(B), 441a(a)(1)(C), 441a(a)(1)(D). Finally, Congress also indexed all

contributions for inflation, except for limits on contributions to state and local party

committees. BCRA § 307(d); 2 U.S.C. § 441a(c).

e. Identification of Sponsors: Section 311

Section 311 requires that “whenever any person . . . makes a disbursement for an

electioneering communication,” the communication, if it was authorized by a candidate or

the candidate’s political committee, must clearly identify the candidate or the candidate’s

political committee. If the communication was not authorized by the candidate or the
79

candidate’s political committee, then the communication “shall clearly state the name and

permanent street address, telephone number, or World Wide Web address of the person who

paid for the communication and state that the communication is not authorized by any

candidate or candidate’s committee.” BCRA § 311; FECA § 318(a)(3); 2 U.S.C. §

441d(a)(3).

f. Prohibition of Donations by Minors: Section 318

In Section 318, Congress prohibited minors, defined as any children under eighteen

years of age, from making donations, regardless of the amount, to candidates or political

parties. BCRA § 318; FECA § 324; 2 U.S.C. § 441k.

4. Title V: Additional Disclosure Provisions

a. Public Access to Broadcasting Records: Section 504

In Section 504, Congress requires broadcast licensees to collect and disclose records

of any “request to purchase broadcast time” that “is made by or on behalf of a legally

qualified candidate for public office” or that relates “to any political matter of national

importance,” including communications relating to “a legally qualified candidate,” “any

election to Federal office,” and “a national legislative issue of public importance.” BCRA

§ 504; FECA § 315(e)(1); 47 U.S.C. § 315(e)(1). The record must include whether the

request to purchase was accepted or rejected; the rate charged for the broadcast; the date and

time on which the communication aired; the class of time that is purchased; the name of the

candidate to which the communication refers and the office to which the candidate is seeking
55 As of the May 7, 2002, deadline for amendment of pleadings, intervention or joinder

of additional parties and consolidation of additional cases, see Scheduling Order of 4/24/02,

84 plaintiffs were parties to the consolidated actions. Since then, seven plaintiffs–the

Alabama Republican Executive Committee, Martine J. Connors, the Jefferson County

Republican Executive Committee, the Christian Coalition of America, Inc., the Libertarian

Party of Illinois, Inc., the DuPage Political Action Council, Inc., and the National Association

of Wholesaler-Distributors–have been dismissed from the suit without prejudice. See

generally Orders of 8/15/02, 9/13/02, 9/18/02, and 9/30/02 Dismissing Pls. Without

Prejudice.

Remaining in the suit are 77 plaintiffs in 11 actions: in No. 02-CV-0582 are Senator

Mitch McConnell, Representative Bob Barr, Representative Mike Pence, Alabama Attorney

General William H. Pryor, the Libertarian National Committee, Inc., the American Civil

Liberties Union, Associated Builders and Contractors, Inc., Associated Builders and

Contractors Political Action Committee, the Center for Individual Freedom, Club for

Growth, Inc., Indiana Family Institute, Inc., the National Right to Life Committee, Inc.,

National Right to Life Educational Trust Fund, National Right to Life Political Action

Committee, the National Right to Work Committee, 60 Plus Association, Inc., Southeastern

Legal Foundation, Inc., U.S. d/b/a ProEnglish, Thomas McInerney, Barret Austin O’Brock

(continued...)

80

election, the election to which the communication refers, or the issue to which the

communication refers; in the case of a request on behalf of a candidate, the name of the

candidate, the authorized committee, and the treasurer of the committee; and in the case of

any other request, the name of the person purchasing the time, the name and contact

information for such person, and a list of chief executive officers or members of the

executive committee or board of directors. Id. 

III. FINDINGS OF FACT

The Findings of Fact include a description of the identities of the parties and include

findings related to the disclosure provisions included in this per curiam opinion.

A. Parties to the Litigation55
55(...continued)

and Trevor M. Southerland (collectively, the McConnell plaintiffs); in No. 02-CV-0581 are

the NRA and National Rifle Association Political Victory Fund (collectively, the NRA

plaintiffs); in No. 02-CV-0633 are Emily Echols, Hannah McDow, Isaac McDow, Jessica

Mitchell, Daniel Solid and Zachary C. White (collectively, the Echols plaintiffs); in No. 02-

CV-0751 are the Chamber of Commerce of the United States, the National Association of

Manufacturers, National Association of Wholesaler-Distributors, and U.S.Chamber Political

Action Committee (collectively, the Chamber of Commerce plaintiffs); in No. 02-CV-0753

is the National Association of Broadcasters; in No. 02-CV-0754 are the American Federation

of Labor and Congress of Industrial Organizations and AFL-CIO Committee on Political

Education Political Contributions Committee (collectively, the AFL-CIO plaintiffs); in No.

02-CV-0781 are Congressman Ron Paul, Gun Owners of America, Inc., Gun Owners of

America Political Victory Fund, RealCampaignReform.org, Citizens United, Citizens United

Political Victory Fund, Michael Cloud and Carla Howell (collectively, the Paul plaintiffs);

in No. 02-CV-0874 are the Republican National Committee, Mike Duncan, Republican Party

of Colorado, Republican Party of Ohio, Republican Party of New Mexico, and Dallas County

(Iowa), Republican Central Committee (collectively, the RNC plaintiffs); in No. 02-CV-0875

are the California Democratic Party, Art Torres, Yolo County Democratic Central

Committee, California Republican Party, Shawn Steel, Timothy J. Morgan, Barbara Alby,

Santa Cruz County Republican Central Committee, and Douglas R. Boyd, Sr., (collectively,

the CDP plaintiffs); in No. 02-CV-0877 are Victoria Jackson Gray Adams, Carrie Bolton,

Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada Joshi, Nancy Russell, Kate

Seely-Kirk, Peter Kostmayer, Rose Taylor, Stephanie L. Wilson, California Public Interest

Research Group, Massachusetts Public Interest Research Group, New Jersey Public Interest

Research Group, United States Public Interest Research Group, the Fannie Lou Hamer

Project, and Association of Community Organizers for Reform Now (collectively, the Adams

plaintiffs); and in No. 02-CV-0881 are Representative Bennie G. Thompson and

Representative Earl F. Hilliard (collectively, the Thompson plaintiffs). 

The 17 defendants in these consolidated actions are the Federal Election Commission;

the United States of America; the United States Department of Justice; the Federal

Communications Commission; John Ashcroft, in his official capacity as Attorney General

of the United States of America; David M. Mason, Karl J. Sandstrom, Danny L. McDonald,

Bradley A. Smith, Scott E. Thomas and Michael E. Toner, in their official capacities as

Commissioners of the FEC; and Senators John McCain, Russell Feingold, Olympia Snowe

and James Jeffords and Representatives Christopher Shays and Martin Meehan (collectively,

the Intervenors), as intervening defendants.

The Court finds it unnecessary to make findings with respect to all 77 Plaintiffs and

(continued...)

81
55(...continued)

17 Defendants in these actions and therefore the Findings of Fact reflect the primary parties

in this litigation.

82

1. Senator Mitch McConnell is the senior United States Senator from the

Commonwealth of Kentucky and is a member of the Republican Party. McConnell

Aff. ¶ 1. He has long been active in the Republican Party at the national, state and

local levels. Id. ¶ 2. Senator McConnell was first elected in 1984, was reelected in

1990, 1996, and was a candidate for election in 2002. Id. ¶ 7.

2. William H. Pryor, Jr. is Alabama Attorney General and was a candidate for reelection

as Alabama Attorney General in 2002. Pryor Decl. ¶ 2.

3. The Libertarian National Committee, Inc. (“LNC”) is the governing body of the

Libertarian Party at the national level. Dasbach Decl. ¶ 4. The LNC is a non-profit

corporation incorporated in the District of Columbia and governed by section 527 of

the Internal Revenue Code. Id. The LNC represents and advocates the principle that

all individuals have the right to live in whatever manner they choose so long as they

do not forcibly interfere with the right of others to do the same. Id.

4. The American Civil Liberties Union (“ACLU”) is a tax-exempt corporation

incorporated in the District of Columbia and is governed by section 501(c)(4) of the

Internal Revenue Code. Romero Decl. ¶ 1. The ACLU is a nationwide, non-profit,

non-partisan organization with approximately 300,000 members “dedicated to the

principles of liberty and equality embodied in the Constitution.” Id.
83

5. Associated Builders and Contractors, Inc. (“ABC”) is a non-profit tax-exempt

organization governed by section 501(c)(6) of the Internal Revenue code,

incorporated in Maryland, and is funded primarily by membership dues. Monroe

Direct Test. ¶ 3. It is a national trade association representing more than 23,000

contractors and related firms in the construction industry. Id. ABC’s members, which

include both unionized and non-union employers, “share the philosophy that

construction work should be awarded and performed on the basis of merit, regardless

of labor affiliation.” Id.

6. Associated Builders and Contractors Political Action Committee (“ABC PAC”) is a

connected political committee governed by 2 U.S.C. § 431(4) and section 527 of the

Internal Revenue Code and is a separate segregated fund of ABC pursuant to 2 U.S.C.

§441b(b). Id. ¶ 22. ABC PAC makes contributions to federal candidates who

support the principles of ABC and funds independent expenditures for

communications on their behalf. Id.

7. The Club for Growth, Inc. (“The Club”) is a nationwide membership organization

dedicated to advancing public policies that promote economic growth. Keating Decl.

¶ 5. The Club is a Virginia corporation organized under section 527 of the Internal

Revenue Code. McConnell Second Am. Compl. ¶ 29. The Club “is dedicated to

promoting the election of pro-growth, pro-freedom candidates through the bundling

of political contributions and issue advocacy campaigns.” Keating Decl. ¶ 6. The
84

Club for Growth advocates tax rate reduction, fundamental tax reform, tax

simplification, capital gains tax reduction, estate tax repeal, overall reduction in

government spending, school choice, and personal investment of Social Security. Id.

¶ 5.

8. The National Right to Life Committee (“NRLC”) is a tax-exempt corporation

incorporated in the District of Columbia and is governed by section 501(c)(4) of the

Internal Revenue Code. O’Steen Decl. ¶ 4. The NRLC is a nationwide, non-profit,

non-partisan organization with approximately 3,000 local chapters and fifty state

affiliates dedicated to “promoting respect for the worth and dignity of all human life

from conception to natural death.” Id. ¶¶ 5, 3.

9. The National Right to Life Educational Trust Fund (“NRL-ETF”) is an organization

governed by section 501(c)(3) of the Internal Revenue code. Id. ¶ 16. NRL-ETF

sponsors educational advertising and develops materials detailing “fetal development,

abortion’s impact on America, and the threat of euthanasia.” Id. ¶ 17.

10. The National Right to Life Political Action Committee (“NRL PAC”), organized in

1979, is an internal § 527 fund of NRLC that is registered with the FEC as a PAC

subject to FECA. O’Steen Decl. ¶ 24.

11. Thomas E. McInerney is a U.S. citizen, a registered voter in the State of New York

and a member of and contributor to various Republican Party organizations and

committees at the national, state and local levels. McInerney Aff. ¶ 1.
85

12. Barret Austin O’Brock is a U.S. citizen and a resident of the State of Louisiana.

O’Brock Decl. ¶ 1. He is fourteen years of age and intends to make contributions to

federal candidates in future elections, including the 2004 election. Id. ¶¶ 2-3.

13. The National Rifle Association (“NRA”) is a tax-exempt corporation governed by

section 501(c)(4) of the Internal Revenue Code and incorporated in the State of New

York. NRA Compl. ¶ 8. The primary purpose of the NRA is to preserve and protect

the Second Amendment’s guarantee that individuals shall have the right to “keep and

bear arms.” LaPierre Decl. ¶ 2. In addition, the NRA promotes public firearm safety,

trains law enforcement agencies in the use of firearms, sponsors shooting

competitions, and advances hunter safety. Id. The NRA has approximately four

million members and represents their views on legislative and public policy issues

before federal, state and local officials and the general public. NRA Compl. ¶ 8.

14. The National Rifle Association Political Victory Fund (“NRA PVF”) is a connected

political committee governed by 2 U.S.C. § 431(4) and section 527(e)(1) of the

Internal Revenue Code and is a separate segregated fund of the NRA pursuant to 2

U.S.C. § 441b(b). NRA Compl. ¶ 9.

13. Emily Echols, Hannah and Isaac McDow, Zachary White, Daniel Solid and Jessica

Mitchell are U.S. citizens who range in age from twelve to sixteen. Echols Pls.’

Proposed Findings of Fact ¶ 45. They intend to seek out and contribute to federal

candidates “who represent their views and beliefs on important questions like the right
86

to life of children before birth, and on the size of government.” Id. ¶ 44.

14. The Chamber of Commerce (“The Chamber”) is a tax-exempt corporation governed

by section 501(c)(6) of the Internal Revenue Code. Josten Direct Trial Test. ¶ 3. The

Chamber is the world’s largest not-for-profit business federation, representing over

3,000,000 businesses and business associations. Id.

15. The U.S. Chamber Political Action Committee (“U.S. Chamber PAC”) is a connected

political committee organized under section 527(e)(1) of the Internal Revenue Code

and is registered with the FEC. Josten Direct Trial Test. ¶ 26. U.S. Chamber PAC

is funded by contributions voluntarily made by individual Chamber of Commerce

executives, administrative employees, members and their families. Id. ¶ 27. 

16. The National Association of Manufacturers (“NAM”) is a tax-exempt corporation

governed by section 501(c)(6) of the Internal Revenue Code and is the oldest and

largest broad-based industrial trade association in the United States. Huard Direct

Trial Test. ¶ 2. Its membership comprises 14,000 companies and 350 member

associations. Id. 

17. The National Association of Broadcasters (“NAB”) is a non-profit corporation that

serves as a trade association of radio and television stations and broadcasting

networks in the United States. Goodman Decl. ¶ 3. NAB serves and represents the

American broadcasting industry, composed of approximately 7,300 member stations.

Id. All of NAB’s voting members are broadcast licensees within the meaning of the
87

Communications Act. Id.

18. The American Federation of Labor and Congress of Industrial Organizations (“AFLCIO”) is a national labor federation comprised of 66 national and international labor

unions that, collectively, have a total of approximately 13 million members. G. Shea

Decl. ¶ 3. The AFL-CIO is a tax-exempt organization under Section 501(c)(5) of the

Internal Revenue Code. Id. The AFL-CIO also includes 51 state labor federations,

nearly 580 area and central labor councils and numerous trade and industrial

departments. Id. ¶¶ 6,7, 9. One of the four major missions of the AFL-CIO is to

provide “an effective political voice to workers on public issues that affect their

lives.” Id. ¶ 4b.

19. Congressman Ron Paul is a Member of the United States House of Representatives

from the Fourteenth Congressional District of Texas and is a member of the

Republican Party. Paul Decl. ¶ 1. He was first elected to represent the Fourteenth

Congressional District of Texas in 1996, id., and also served as a Member of the

House of Representatives for the Twenty-Second Congressional District of Texas,

first elected in 1976 and to successive terms until 1984, id. ¶ 2. Congressman Paul

is a registered voter in the state of Texas, a donor to the campaigns of candidates for

federal office, and a fundraiser and recipient of campaign contributions. Paul Pls.’

Compl. ¶ 11. He will face reelection in 2004. Paul Decl. ¶ 1.

20. Gun Owners of America, Inc. is a not-for-profit, tax-exempt corporation governed by
88

section 501(c)(4) of the Internal Revenue Code. Pratt Decl. ¶ 2. It is dedicated

primarily to defending the rights that its members believe are guaranteed by the

Second Amendment to the Constitution; its principal function is the dissemination of

information concerning such rights through educational programs and advocacy. Id.

¶ 3.

21. Gun Owners of America Political Victory Fund is a connected political committee

governed by 2 U.S.C. § 431 and is a separate segregated fund of Gun Owners of

America. Id. ¶ 4.

22. RealCampaignFinance.Org is a not-for-profit, tax exempt corporation governed by

section 501(c)(4) of the Internal Revenue Code. Babka Decl. ¶ 2. It is dedicated to

defending the campaign and election-related rights its members believe are

guaranteed by the First Amendment to the Constitution through educational programs

and advocacy. Id. ¶ 3.

23. Citizens United is a not-for-profit, tax exempt corporation governed by section

501(c)(4) of the Internal Revenue Code. Bossie Decl. ¶ 2. It is dedicated to the

principles of limited government and national sovereignty and to defending the rights

its members believe are secured in the United States Constitution; its principal

function is the dissemination of information concerning such beliefs and advocacy.

Id. ¶ 3.

24. Citizens United Political Victory Fund is a connected political committee governed
89

by 2 U.S.C. § 431 and is a separate segregated fund of Citizens United. Id. ¶ 4.

25. Michael Cloud was the Libertarian Party’s candidate for United States Senate from

the Commonwealth of Massachusetts in the 2002 election and is a registered voter.

Cloud Decl. ¶ 1.

26. Carla Howell was the Libertarian Party’s candidate for Governor of the

Commonwealth of Massachusetts in the 2002 election and is a registered voter.

Howell Decl. ¶¶ 1-2. She was also the Libertarian Party’s candidate for election to

the United States Senate for the Commonwealth of Massachusetts in the 2000

election. Id. ¶¶ 2-3.

27. The Republican National Committee (‘RNC”) is an unincorporated association

created and governed by The Rules of te Republican Party. Josefiak Decl. ¶ 13. It

consists of three members from the Republican Party in each of the fifty States, the

District of Columbia, Puerto Rico, American Somoa, Guam, and the U.S. Virgin

Islands. Duncan Decl. ¶ 4; see also Josefiak Decl. ¶ 15. Each state and territorial

Republican Party elects a national committeeman and a national committeewoman.

Duncan Decl. ¶ 4; Josefiak Decl. ¶ 15. In addition, the state and territorial Republican

Party chairmen serve as members of the RNC. Duncan Decl. at ¶ 4; Josefiak Decl.

¶ 15.

28. Mike Duncan is a member of the RNC from the State of Kentucky and currently

serves as the General Counsel of the RNC. Duncan Decl. ¶ 5. Prior to becoming
90

General Counsel, he was Treasurer of the RNC and in that capacity signed all RNC

reports filed with the FEC. See id. In both his official capacity as an officer of the

RNC and in his personal capacity, Duncan has participated in and (unless prohibited

by BCRA) will continue to participate in national, state and local political party

activities. Id. ¶¶ 6, 9. He will also (unless prohibited by BCRA) continue to solicit,

receive, or direct non-federal funds to other persons. See id. ¶¶ 8-9.

29. The Republican Party of New Mexico is the state party committee of the Republican

Party in New Mexico. See Dendahl Decl. ¶¶ 3-4. It supports federal, state and local

candidates for office in New Mexico and promotes Republican positions on public

policy issues. Id. Under New Mexico law, the Republican Party of New Mexico is

permitted to raise and spend corporate, labor union and individual funds in unlimited

amounts in support of state and local candidates. See N.M. Stat. Ann. §§ 1-19-25 to

1-19-36 (1978); Dendahl Decl. ¶¶ 5-7.

30. The Dallas County (Iowa) Republican County Central Committee is a local political

party committee that the FEC has deemed independent of any state or national

political party committee. Josefiak Decl. ¶ 21. It is actively involved in supporting

state and local candidates for office in Iowa. Id.

31. The California Democratic Party (“CDP”) is an unincorporated association of

approximately seven million members and is the authorized Democratic Party of the

State of California. Bowler Decl. ¶ 2. The CDP performs many functions, among
91

them providing financial and material support to federal, state and local candidates;

taking positions on public issues (including state and local ballot measures) and

publicizing those positions; engaging in voter registration, get-out-the-vote and

generic party-building activities; and maintaining an administrative staff and

administrative structure to support these goals and activities and to comply with

extensive federal and state regulation. Id. The CDP is required by state law to govern

itself through the Democratic State Central Committee (DSCC). Id. ¶ 3. The DSCC

is made up of approximately 2,710 members, about 849 of whom are elected by the

58 county central committees. Id. Other members serve on the DSCC because of

their status as federal or state officials, as nominees of the CDP, as members of the

Democratic National Committee (DNC) from California or as elected representatives

of 80 Assembly District Committees (AD Committees). Id. CDP bylaws provide for

local party AD Committees, which elect delegates to the DSCC and are the districtlevel organizational blocks of the CDP. Id. ¶ 4. The AD Committees are primarily

involved in local voter registration, get-out-the- vote and grassroots activities and they

act as liaisons with the campaign organizations of Democratic candidates in their area.

Id.

32. Art Torres is the elected Chair of the CDP. Torres Decl. ¶ 1. Torres also serves on

the DNC and has been elected by the DNC to serve on the DNC Executive

Committee. Id. ¶ 3. As Chair of the CDP, Torres assists the CDP and county central
92

committees in fundraising efforts by meeting and talking regularly with potential

donors and attending fundraising events. Id. ¶ 2; see also Bowler Decl. ¶ 5

33. The Yolo County Democratic Central Committee is one of the 58 county central

committees authorized and governed by the California Elections Code. CDP Pls.’

Compl. ¶ 11; see also Bowler Decl. ¶¶ 3-4. Members of the county central

committees are elected at each statewide primary election. Bowler Decl. ¶ 4. All

members of the CDP who are also state senators, members of the state assembly or

Members of the Congress serve as ex officio members of their respective county

central committees. Id. The county central committees are primarily involved in local

voter registration, get-out-the-vote and grassroots activities and act as liaisons with

the campaign organizations of Democratic candidates in their area. Id. 

34. The California Republican Party (“CRP”) is an association of over five million

members and is the authorized Republican Party of the State of California. Morgan

Aff. ¶¶ 3-4. The CRP performs many functions, among them providing financial and

material support to federal, state and local candidates; taking positions on public

issues (including state and local ballot measures) and publicizing those positions;

engaging in voter registration, get-out-the-vote and generic party-building activities;

and maintaining an administrative staff and administrative structure to support these

goals and activities and to comply with extensive federal and state regulation. Id. ¶

4. The CRP is governed by the Republican State Central Committee (RSCC). Id. ¶
93

5. The RSCC consists of about 1,500 regular and appointive members. Id. The

regular members include federal and state officeholders as well as the CRP’s

nominees for governor, seven other state constitutional offices, United States Senate,

52 congressional districts, 40 state senate districts, 80 state assembly districts and four

State Board of Equalization districts. Id. The RSCC also includes the chairmen of

the 58 county central committees and the chairmen of volunteer party organizations.

Id. ¶ 6. The CRP operates as well through (1) a 100-member Executive Committee,

which includes federal and state office holders and 16 representatives of county

central committees; and (2) a 25-member Board of Directors, which includes a

Member of Congress appointed by the delegation, three state elected officeholders

and representatives from an association of Republican county central committee

chairmen. Id. Under the CRP’s bylaws and the RNC’s rules, the CRP is part of the

RNC. Id. ¶ 8. The CRP’s elected chairman is a member of the RNC. Id. The CRP

elects two other representatives to the RNC – a national committeeman and national

committeewoman, each of whom is a member of the CRP Executive Committee and

Board of Directors. Id.

35. Timothy J. Morgan is (1) a member of the RNC; (2) a member of the CRP Executive

Committee; and (3) a member of the CRP Board of Directors; he also served as (4)

Chairman of the Santa Cruz County Republican Central Committee. Morgan Aff. ¶

1.
94

36. The Santa Cruz County Republican Central Committee is one of the 58 county central

committees authorized and governed by the California Elections Code. CDP Pls.’

Compl. ¶ 19; see also Morgan Aff. ¶ 6. Federal officials and candidates who were

nominated as party nominees for partisan offices, including State constitutional and

legislative offices, the Board of Equalization, and federal offices, including nominees

for U.S. Senate and U.S. House of Representatives who represent all or a portion of

the area within the county’s jurisdiction are ex officio members of the Republican

county central committee, and participate in its decision-making, either personally or

through designated alternates or agents. Id.

37. The Federal Election Commission (“FEC”) is a government agency headquartered in

Washington, D.C., created pursuant to FECA, 2 U.S.C. § 437(c), and is charged with

enforcing the Act as amended by BCRA. David M. Mason, Karl J. Sandstrom, Danny

L. McDonald, Bradley A. Smith, Scott E. Thomas, and Michael E. Toner serve as the

commissioners of the FEC.

38. The United States, through the Department of Justice (“DOJ”), is charged with

enforcement of the criminal provisions of the Act as amended by BCRA, and has an

interest in defending the constitutionality of duly enacted laws of the Nation. United

States Mot. to Intervene at 5. John Ashcroft is Attorney General of the United States.

39. The Federal Communications Commission (“FCC”) is a government agency

headquartered in Washington, D.C., and is charged with enforcing the FECA as
95

amended by BCRA. 

40. The intervenors are Members of the Congress who were principal sponsors and

authors of BCRA. Senator John McCain is a Republican United States Senator from

the State of Arizona. Senator Russell Feingold is a Democratic United States Senator

from the State of Wisconsin. Senators McCain and Feingold face reelection in 2004.

Senator Olympia Snowe is a Republican United States Senator from the State of

Maine. Senator James Jeffords is an Independent United States Senator from the

State of Vermont. Senators Snowe and Jeffords face reelection in 2006.

Congressman Christopher Shays is a Republican member of the House of

Representativesfrom the Fourth Congressional District in Connecticut. Congressman

Martin Meehan is a Democratic member of the House of Representatives from the

Fifth Congressional District in Massachusetts.

B. Findings Regarding BCRA’s Disclosure Provisions

41. The NRA presents evidence that some people have been reluctant to give money to

the organization or the NRA PVF, the NRA’s PAC, fearing that such contributions

would be publicly reported. LaPierre Decl. ¶ 62 [NRA App. at 24-25] (“Throughout

the years, hundreds, if not thousands, of NRA members have told me that they do not

wish to disclose their contributions to the NRA. . . . If . . . members are forced to

disclose their identities, I firmly believe that many will not make contributions that

trigger such disclosure.”); Adkins Decl. ¶¶ 4-6 [NRA App. at 50] (“A conspicuous
96

and disproportionate number of contributors” to the NRA PVF “contribute just below

the $200 disclosure level.”). Members who have expressed their desire to keep their

contributions confidential have provided a variety of reasons. LaPierre Dep. at 306

(“A lot over the years have said, I donate to you, but gee, I just don’t want my

neighbors to know. I don’t want my school board to know. I don’t want my employer

to know. . . . I might lose my job. I might not get my school board thing. I might

have – I mean, they fear– I mean, when you have as much hate as people have put out

on this issue, it’s natural for people to fear repercussions.”); Adkins Dep. at 15-19

(testifying that notes received from individuals refusing to provide information for

disclosure to the FEC did not give the reasons for their objections, or just stated they

did not wish to have the information disclosed to the FEC); id. at 21-23 (testifying

that she had received 3 telephone calls in the previous five or six years from

individuals who feared their employer would find out that they donated to the NRA

PVF). The NRA does not know the amount those who did protest disclosure gave to

the organization. LaPierre Dep at 309; LaPierre Cross at 91; Adkins Dep. at 23. Of

the between five and 50 persons estimated to have voiced disclosure concerns to

LaPierre in 2000, LaPierre believes “not a lot” of those persons gave the NRA more

than $1,000 in 2000 “[b]ecause we don’t . . . get a lot of contributions more than

$1,000.” LaPierre Dep. at 306-309. The average NRA donor donates approximately

$30 per year. LaPierre Cross at 92. Beginning in 2003, the NRA’s policy is to “pay
97

for [their] television and broadcast programming exclusively out of funds provided

by individual members.” Id. at 93. Mr. LaPierre states that “NRA’s position . . . . is

that . . . it ought to be disclosed who is running those ads [run with funds from

anonymous donors]. . . . [a]nd who pays for the ads.” LaPierre Dep. at 294-95 [JDT

Vol. 14].

42. Edward Monroe, Director of Political Affairs for the Associated Builders and

Contractors (“ABC”) and the Treasurer of ABC’s PAC, testifies that he had been told

that a number of ABC contributors had suffered substantial vandalism after their

names were disclosed and that the contributors believed the vandalism was the result

of labor unions learning of their contributions. Monroe Cross at 86. He also testified

that two corporations refused his solicitations due to their “policy of not supporting

[ABC] based on previous incidents. . . . [T]hey did not elaborate.” Id. at 87. Some

contributors to ABC’s PAC “specifically donate” less than $200. Id. at 88. Monroe

believes this practice is the result of the contributors’ desire to prevent public

disclosure of the contributors’ names. Id. Two corporations declined Mr. Monroe’s

solicitations because of “previous incidents,” but did not elaborate. Id. at 87. Monroe

also “believe[s]” that some companies do not contribute because they “do not trust

[ABC’s] ability to keep . . . information confidential.” Id. at 89. 

43. Stephen Sandherr, Chief Executive Officer of Associated General Contractors of

America (“AGC”), testifies in a deposition that between a dozen and two dozen
98

members had expressed concerns to him about their contributions being publicly

disclosed. Sandherr Dep. at 43-44. He believes that the number of members who

share this concern is much higher but, because the AGC has made an effort to

publicize the fact they do not disclose the names of contributors, concerned members

do not feel the need to bring the issue up. Id. These members expressed two reasons

for concern. Some were concerned that if their contributions were made known,

“their local building trades would take offense and would threaten actions on the job

site or would threaten to make life miserable for them.” Id. at 45. Others were

concerned that if their union became aware of their contribution, they would “cease

bargaining over industry advancement funds,” that local chapters depend on to

support their activities. Id. at 46. The non-unionized members who expressed their

concerns about disclosure to Sandherr did not express their reasons for wanting to

remain anonymous. Id. at 48. No contributor to AGC’s PAC ever told Sandherr that

they planned to contribute less than $200 in order to prevent disclosure of its identity,

and no contributor to the AGC’s PAC ever reported being subjected to retaliation

from unions for giving money to the PAC. Id. at 55-56. 

44. Bruce Josten, Executive Vice President for Government Affairs, U.S. Chamber of

Commerce, gave deposition testimony thatsome contributors to “Americans Working

for a Real Change,” a coalition established to respond to AFL-CIO issue

advertisements, did not want to be publicly identified. Josten Dep. at 13-14, 27. The
99

reason these entities gave for not wanting to be identified was that they feared

becoming “targets or recipients of corporate campaigns or other types of what some

would call union harassment activities.” Id. at 28.

45. Mr. Romero, the ACLU’s legislative director, attests that “[m]any ACLU members

and contributors request explicit assurances that their membership will remain

confidential and that their contributions will remain anonymous. The ACLU has

consistently defended the First Amendment right of its members and donors to remain

anonymous if they so choose.” Declaration of A. Romero ¶ 5. Mr. Romero notes that

“[o]nly 212 individuals contributed more than $1,000 to the organization. Id. ¶ 6. 

46. A poll conducted by Mark Mellman and Richard Wirthlin, two reputable political

pollsters, found that 61 percent of Americans want to know who is paying for political

advertisements, while 24 percent say knowing such information does not matter to

them. Mark Mellman & Richard Wirthlin, Research Findings of a Telephone Study

Among 1300 Adult Americans (Sept. 23, 2002) at 20 [DEV 2-Tab 5].

47. At least one study has found that the public has a difficult time determining who is

responsible for issue advertisements that identify candidates.

In response to the question asking who paid for an ad, just over 60

percent of survey participants correctly attributed the candidate ads and

the pure issue ads to their actual sponsors. Identification of the

sponsors of the candidate-oriented issue ads was much more scattered,

with most people (38 to 48 percent) assuming in each case that they

came from candidates and fewest (9 to 18 percent) assuming that they

were paid for by an interest group. These results, of course, suggest that

the disclaimers that appear on these ads are almost completely
100

ineffective.

Krasno & Sorauf Expert Report at 78-79 (summarizing results from David B.

Magleby, Dictum Without Data: The Myth of Issue Advocacy and Party Building,

available at http://www.byu.edu/outsidemonev/dictum/index.html). 

48. The problem of determining the true sponsors of issue advertisements is not only

experienced by the general public; politicians and political strategists also have

difficultly determining the source of these commercials. For example, former Senator

Dale Bumpers, relates that 

[o]ne of the most insidious things about soft money “issue ads” is that

the ordinary viewer doesn’t have a clue as to who paid for the ad. I first

noticed this problem in 1996, when I saw several issue ads before it

ever dawned on me that those ads were not being paid for by the

candidate. . . . At first I just assumed that the ads were paid for by the

opposing candidates’ campaign funds, though I did think it was very

strange that the opposing candidates’ names were never mentioned. In

those ads, everything is honed in on the candidate the ad is trying to

defeat. At that time, I did not know that they were soft money spots.

Declaration of Senator Dale Bumpers ¶ 29 [DEV 6-Tab 10]. Democratic political

consultant Terry S. Beckett testifies that

[t]he Republican Leadership Council (“RLC”) also ran so-called “issue

ads” on television in the 2000 Congressional campaign. . . . [Two of

t]hese ads accuse [Republican Candidate Ric] Keller of acting “like a

liberal.” I found it [] ironic, not to mention unsettling, to learn of

reports that the hundreds of thousands of dollars the RLC spent on

these ads trying to defeat Mr. Keller were actually provided by the

Florida sugar industry. . . . . And the fact that I, a general consultant in

this same race with long high-level experience in Florida politics, was

not aware until earlier this year of whose money was behind these ads

strongly underlines the need for disclosure of this kind of stealth
56 The following is an audio transcript from one of these “Florida sugar industry”-

sponsored advertisements:

Ric Keller has become an embarrassment. He claims to be a conservative but got

caught getting help from liberal Democrat Linda Chapin, and Keller’s law firm

coughed up campaign contributions for liberal Democrat Buddy McKay. Ric Keller

even supported the Clinton-Gore billion dollar tax on food. Ric Keller, who

proclaims to be a conservative but gets caught acting like a liberal. How

embarrassing. How wrong. How Clinton.

Beckett Decl. Ex. 5 [DEV 6-Tab 3].

101

electioneering financed with corporate funds.

Declaration of Terry S. Beckett (“Beckett Decl.”) ¶ 14 [DEV 6-Tab 3].56 Similarly,

political media consultant Raymond Strother comments that 

one of the biggest problems that a candidate’s media consultant now

faces is the lack of disclosure associated with third parties running

these ads. A few years ago, Jill Docking ran for the United States

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

a very tight election, an unidentifiable group came in and poured a

million dollars into the race. They ran television, radio, direct mail, and

push polls throughout Kansas telling voters that Jill wasn’t a Christian,

and all we could find was a fax machine. We had no idea where the

money came from. I have had similar experiences in other races as well.

Without knowing who is funding the groups that run these ads, we are

often unable to correct the distortions.

Declaration of Raymond D. Strother ¶ 15 [DEV 9-Tab 40]. Joe Lamson, campaign

manager for Bill Yellowtail’s 1996 campaign, testified that 

The Yellowtail campaign had trouble finding out who was running the

1996 Citizens for Reform ads in Montana [which portrayed Yellowtail

in a negative light]. As I recall, a local television station pointed us to

a group in New Orleans. That group said they didn’t know anything,

but gave us a telephone number in Oklahoma that turned out to be

connected to the J.C. Watts campaign. I believe someone there then

flipped us to a phone number in Washington, D.C., and we finally
102

found Citizens for Reform. We later learned that Citizens for Reform

was actually a front for Triad, a group that ran broadcast attack ads

against many Democrats nationwide in the 1996 election cycle.

Declaration of Joe Lamson ¶12 [DEV 7-Tab 26]; see also Declaration of Larry

LaRocco (former Member of Congress, stating he was never able to find the source

of attack advertisements run against him in the 1994 campaign because none of the

sponsoring organizations were registered with the FEC); Magleby Expert Report at

29 [DEV 4-Tab 8] (providing examples illustrating the point that “even candidates

and their campaign managers are unable to ascertain who some of the groups running

ads [in the 2000 campaign] were”).

49. Krasno and Sorauf find that:

Secrecy is one of the outstanding characteristics of issue

advertisements, especially those financed by interest groups. As a

result, we - and regulators - are hampered by a remarkable paucity of

information about them. The media tracking data we have referred to

throughout our report fill in some of the blanks, but many key factual

questions remain unanswered or may only be answered after

painstaking investigation. . . . This secrecy, by itself, creates enormous

opportunities for wrongdoing, for favorsto be exchanged between issue

advocates and public officials. . . . Among its various advantages,

disclosure is thought to combat corruption by illuminating the dark

corners in which undue influence may be exerted far from public view.

The idea is that politicians eager for popularity and votes will be loath

to enter into situations that cast doubt on their probity; thus, the more

these situations are revealed, the stronger the politician’s impulse to

avoid them. One of the ironies of this litigation is that many of

BCRA’s opponents are otherwise champions of disclosure. . . . The

public’s interest in revealing these transactions is countered by the

private interest of many groups and donors to keep them secret. Thus,

the ability to route money to groups for candidate-oriented issue ads

without disclosure has attracted an increasing amount of money to this
103

activity. In the growing opaqueness of campaign financing, the

opportunity for donors and officeholders to forge close relationships or

strike deals without risk of detection increases, too.

Krasno & Sorauf Expert Report at 73-75 [DEV 1-Tab 2 at 146]. According to

Plaintiffs’ expert Sidney Milkis, a professor at the University of Virginia, “the names

of these [issue advertising] groups did little to tell viewers who the sponsors of these

messages were; indeed, in some cases they were misleading.” Milkis Decl. ¶ 49. 

50. Defendants’ Expert Report, produced by Professor David Magleby, finds that 

[t]he current system places an unreasonable burden on voters to

ascertain who is attempting to persuade them in an election. Our focus

groups and survey data from 2000 show that to voters, party and

interest group electioneering advertisements are indistinguishable from

candidate advertisements. (See Table 2.) Even the candidates and their

campaign managers are unable to ascertain who some of the groups

running ads were. . . . And in the CSED national survey, I found that

respondents were often confused as to whether party ads were paid for

by candidates or parties. More than 40 percent of the time, the

respondents thought the party ads were paid for by a candidate. . . .

Voters, when asked, have consistently indicated that they would like to

know who it is that is conducting electioneering. In 2000 voters in

Montana faced a competitive U.S. Senate and a competitive U.S. House

race. A late October Montana State University-Billings Poll found that,

“78 percent of the survey respondents reported that it was ‘very’ or

‘somewhat important’ for them to know who ‘pays for or sponsors a

political ad.’” Our focus group participants in 2000 had very similar

views on the question of the importance of their knowing who is paying

for or sponsoring an ad. More than four-fifths (81%) said it was very

or somewhat important to know the identity of the sponsor. In the

national Knowledge Networks Survey in 2000, 78 percent said the

same thing.

David B. Magleby, Report Concerning Interest Group Electioneering Advocacy and

Party Soft Money Activity, at 29-30 [DEV 4-Tab 8]. 
104

51. The Annenberg Public Policy Center finds that

[b]ecause issue ads are not federally regulated, sponsors are not subject

to disclosure requirements. As a result, who paid for an ad may not be

apparent to viewers when they see it. Some organizations do identify

themselves in the course of an advertisement, but their names may be

unfamiliar to viewers and/or deliberately vague. For example,

“Citizens for Better Medicare” is not a grass-roots generated group of

citizens, but an arm of the Pharmaceutical Research and Manufacturers

Association (PhRMA).

Annenberg Report 2001 at 18; see also id. at 3 (commenting that “[t]racking spending

on issue advocacy is far from an exact science” because of the lack of disclosure).

One of the conclusions the Center has reached after seven years of study is that

“[i]ssue advocacy masks the identity of some key players and by so doing, it deprives

citizens of information about source of messages which research tells us is a vital part

of assessing message credibility.” Id. at 2.

52. A prominent example of an organization running advertisements that influenced a

federal election but were able to skirt FECA’s disclosure provisions is the

“Republicans for Clean Air” campaign. The issue advocacy campaign sponsored by

Republicans for Clean Air during the 2000 Republican primary highlights how

groups can use candidate-centered issue advocacy to avoid FECA’s disclosure

requirements. Defendants’ experts Krasno and Sorauf provided uncontroverted

testimony that:

[a]mong the mysterious groups sponsoring issue ads or the mysterious

donors funding various organizations–all without making information

known to the public–the example of “Republicans for Clean Air” stands
105

out. This group sponsored ads praising then-Governor Bush and

criticizing Senator McCain before the 2000 Republican presidential

primaries in three states. Eventually, after the first of these primaries

(South Carolina’s) reporters uncovered that Republicans for Clean Air

consisted of two brothers, Charles and Sam Wyly, long-time friends

and supporters of Governor Bush. Charles Wyly, in fact, was an

authorized fundraiser for the Bush campaign. . . . According to press

estimates, the Wylys spent $25 million on their ads for Governor Bush

. . . . When the Wylys’ involvement was later uncovered during the

New York primary, the news qualified as a small bombshell and led to

a wave of publicity critical of the brothers and the Bush campaign,

which in turn distanced itself from “Republicans for Clean Air.” . . . In

sum, we have a major campaign conducted in secrecy during a key part

of the 2000 Republican primary campaign, and a marked change in the

level of scrutiny once its sponsors became known. Much as we applaud

the ingenuity of the reporters who eventually broke the story, we

strongly believe that there is a compelling governmental interest in

making these facts known to all from the start.

Krasno and Sorauf Report at 75-76 (footnotes omitted) [DEV 1-Tab 2]; see also FEC

MUR 4982, Statement of Reasons, Comm’rs Thomas and McDonald, April 2002,

INT 003684 [DEV 133-Tab 1] (“The week before the ‘Super Tuesday’ primaries, a

$2 million advertising campaign praising presidential candidate George W. Bush and

attacking his opponent, John McCain, ran in the important primary states of

California, New York, and Ohio. The ads stated that they were paid for by a group

calling itself ‘Republicans for Clean Air.’ In actuality, the ads apparently were

financed mostly by two brothers, both of whom were strong financial supporters of

then Governor Bush and one of whom was an authorized fundraiser for the Bush

presidential campaign. At issue in MUR 4982 was whether there should have been

some disclosure to the voting public of who really paid for the ads; whether the ads
57 “Paul Plaintiffs” include: United States Representative Ron Paul, Gun Owners of

America, Inc., Gun Owners of America Political Victory Fund, RealCampaignReform.Org,

(continued...)

106

were coordinated with any agent of the Bush campaign and, thus, should be viewed

as an in-kind contribution to the Bush campaign, and finally, whether the advertising

effort should have registered with the Federal Election Commission as a ‘political

committee’ subject to the reporting requirements and funding restraints.”). Even

Plaintiffs’ expert agreesthat the candidate-centered issue advocacy of the Republicans

for Clean Air highlights the fact that this technique can be used to influence federal

elections without complying with FECA’s disclosure provisions. La Raja Decl. ¶

25(b) (“We could not determine the sponsors of this ad until reporters in Washington

discovered that brothers from Texas, who strongly supported George W. Bush, paid

for the advertisements using a P.O. Box in Herndon, Virginia. . . . This direct personal

experience trying to monitor outside electoral activity revealed to me the potential

difficulties of identifying the source of interest group campaign activities, including

issue ads.”).

IV. CONCLUSIONS OF LAW

As part of the per curiam opinion, the Court resolves the Paul Plaintiffs’ discrete

claims and most of the new disclosure provisions of BCRA.

A. Paul Plaintiffs’ Press Clause Challenge

Paul Plaintiffs57 focus their complaint on the guarantees of free press embodied in the
57(...continued)

Citizens United, Citizens United Political Victory Fund, Michael Cloud, and Carla Howell.

58 According to Paul Plaintiffs, BCRA imposes unconstitutional licensing restrictions,

economically burdensome regulations, editorial control, and prior restraint on their “press”

activities.

59 As discussed at oral argument:

MR. TITUS: Now, if that’s true of the institutional press, that a prior restraint

has to be tested by such a high standard, all the more true for the Paul plaintiffs

who in this particular case are indicating to you, Your Honors, that what they

are engaged in are press activities, they are entitled to the same immunity from

prior restraint as the institutional press.

JUDGE LEON: Is that a novel theory?

MR. TITUS: No, I don’t believe it’s a novel theory. I don’t think it has ever

been pressed.

JUDGE LEON: Do you have any Supreme Court cases that support it or

Circuit cases?

MR. TITUS: In financial campaign law cases, no. No one has argued this

claim in any campaign finance case that I know of.

Tr. at 340-41 (Titus).

107

First Amendment. Paul Pls.’ Br. at 8. Specifically, Paul Plaintiffs contend that BCRA

imposes certain restrictions on their “press” activities, which violate the basic tenets on

which the freedom of the press rests.58 See id. at 10, 13-18. In doing so, Plaintiffs advance

a new, if not novel, challenge – a tack that has not been used in the campaign finance realm.

See id. at 11 (“To date, however, [campaign finance challengers] that are engaged in nonexempt press activities have not invoked the freedom of the press in their numerous

challenges to the constitutionality of federal campaign finance regulations . . . .”).59 While

the Court recognizes the import of Paul Plaintiffs’ innovative legal theory, it finds their

arguments unpersuasive.
60 The vast majority of activities cited by Paul Plaintiffs fall well-outside the scope of

BCRA’s prohibition on “electioneering communications.” See BCRA § 201(a); FECA §

304(f)(3)(A); 2 U.S.C. § 434(f)(3)(A) (not applying to press releases or campaign literature).

Moreover, Paul Plaintiffs bring a facial challenge to the constitutionality of this statute, and

have clearly not met their burden of demonstrating that the law is substantially overbroad.

61 Paul Plaintiffs fail to provide the Court with a standard to apply where the

government obstructs “press” activities, nor do they delineate the additional, substantive

rights provided under the First Amendment Freedom of the Press Clause. Plaintiffs contend

that “[t]he freedom of the press provides guarantees that are distinct from, and significantly

greater than, the guarantees of free speech and association, and of equal protection . . . .”

Paul Pls.’ Br. at 9 n.3. Moreover, they note that “[w]hile the compelling government interest

test has been applied to free speech, association, and equal protection claims, it is not

applicable to the freedom of the press.” Id. Plaintiffs do not, however, explicitly state

instances where the freedom of the press has been found to be superior to the other

guarantees provided under the First Amendment. Nonetheless, Paul Plaintiffs ask – although

not explicitly – that the Court review any government interference with “press” activities

under a more stringent standard than “exacting scrutiny,” which would normally be applied

where a law burdens core political speech. First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 786 (1978) (holding that state restrictions on political speech are subject to “exacting

scrutiny”). Without guidance from the parties, the Court, therefore, assumes that Paul

Plaintiffs request the application of a standard on par with strict scrutiny.

108

In essence, Paul Plaintiffs characterize their activities (for example, candidate press

releases, broadcast and radio advertisements, and campaign literature)60 as falling under the

constitutional protections afforded to the press. The freedom of the press, as Plaintiffs

contend, “was never designed as a special privilege of the institutional media,” Paul Pls.’ Br.

at 11; rather it extends to “every freeman,” see id. at 12 (citing Near v. Minnesota, 283 U.S.

697, 713-14 (1931)). They argue further that while other First Amendment rights – of

speech and association, for example – may be limited by a compelling governmental interest,

the freedom of the press is insulated from such limitations.61

 Id. at 9 n.3. Under Plaintiffs’

theory, the same governmental interests that survive a constitutional challenge in Buckley v.
62 Professor Tribe, in his chapter on “Rights of Communication and Expression,” does

not allude to any greater or distinct rights afforded by the First Amendment Freedom of the

Press Clause. In fact, Tribe states: “Throughout this chapter, ‘freedom of speech’ will be

employed as shorthand for the entire collection of freedoms (other than those pertaining

(continued...)

109

Valeo, 424 U.S. 1 (1976), may not be used to justify any limitation on the general press,

which includes all persons and organizations disseminating information. See id. at 28

(“[T]he Paul Plaintiffs urge this Court not to follow Buckley v. Valeo here, because the press

guarantee lays down a different and more stringent standard . . . .”).

In order for Paul Plaintiffs’ arguments to prevail, however, they must demonstrate that

the freedom of the press provides rights superior to those under the Speech and Association

Clauses of the First Amendment. If Paul Plaintiffs cannot demonstrate that their claims

warrant separate and unique guarantees – guarantees that are not provided under the other

clauses of the First Amendment – then there is no need for the Court to treat their grievances

separately.

The Supreme Court has not explicitly stated whether the freedom of the press affords

greater protections than that of speech or association; two leading First Amendment scholars

have observed, however, that the Press Clause provides no greater rights. 2 Rodney A.

Smolla, Smolla and Nimmer on Freedom of Speech, § 22:10 (2002) (“Does the Press Clause

today have jurisdictional significance distinct from the Speech Clause? For the most part,

the answer appears to be ‘no.’”); see also Laurence H. Tribe, American Constitutional Law

§ 12-1, at 785 n.2 (2d ed. 1988).62 Part of the problem, as Professor Smolla has observed,
62(...continued)

specifically to religion) secured from government interference by the first amendment.”

Laurence H. Tribe, American Constitutional Law § 12-1, at 785 n.2 (2d ed. 1988).

110

is that “in modern First Amendment jurisprudence, the Press Clause has largely been

subsumed into the Speech Clause.” Id. at § 22:6.

The Supreme Court’s treatment of the First Amendment in First National Bank of

Boston v. Bellotti, 435 U.S. 765 (1978), illustrates this point. In Bellotti, the Supreme Court

considered a Massachusetts criminal statute that prohibited corporations “from making

contributions or expenditures for the purpose of influencing or affecting the vote on any

question submitted to the voters.” Bellotti, 435 U.S. at 768 (internal quotations and ellipses

omitted). The plaintiff-bank wanted to spend money to publicize its views on a proposed

state constitutional amendment that was to be submitted to the voters as a ballot question in

an upcoming election. Id. at 769. After being informed that the state Attorney General

would enforce the statute, the bank sought declaratory relief. Id. The case was not

exclusively framed around the Press Clause, see id. at 779, yet the Supreme Court engaged

in a careful discussion of the freedom of the press and entertained whether media

corporations enjoy superior rights as compared to those of general corporations. Id. at 781.

The majority deemed that the “institutional” media “does not have a monopoly on the First

Amendment,” id. at 781-82, but went on to consider whether the state could “show[] a

subordinating interest which is compelling” to justify the statute’s impact on First

Amendment rights, id. at 786. The Supreme Court then determined that the state’s concern
63 The Supreme Court distinguished the statute in Bellotti from traditional campaign

finance laws, which involve expenditures directed towards or otherwise contributed to

candidates. Bellotti, 435 U.S. at 790. “Referenda are held on issues, not candidates for

public office. The risk of corruption perceived in cases involved in candidate elections

simply is not present in a popular vote on a public issue.” Id. (citation omitted).

64 The Supreme Court did not, however, consider whether the media exemption under

most campaign finance laws, see, e.g., BCRA § 201(a); FECA § 304(f)(3)(B)(i); 2 U.S.C.

§ 434(f)(3)(B)(i), violates the First Amendment or the Equal Protection Clause. That is, by

exempting the “institutional” media, do such provisions unfavorably discriminate against the

rights of the general press? The Supreme Court settled this question in Austin v. Michigan

State Chamber of Commerce, 494 U.S. 652 (1990), when it simply stated: “Although the

[institutional] press’ unique societal role may not entitle the [institutional] press to greater

protection under the Constitution, it does provide a compelling reason for the State to exempt

media corporations from the scope of political expenditure limitations.” Austin, 494 U.S. at

668. 

65 If the Press Clause affords greater or different rights, it might force the courts to

make a distinction between the “institutional” and “general” press. The difficulty in making

(continued...)

111

failed to meet the compelling interest test.63

 Id. at 788-91. 

Bellotti is significant because, despite considering rights under the Press Clause, the

Supreme Court nonetheless applied the compelling interest test. Id. In other words, in the

context of an election law statute, as it applied to a non-media corporation, the Supreme

Court treated the Press and Speech Clauses as indistinct.64 What is more, the Supreme Court

alluded to no rights under the Press Clause that are superior to or different than those under

the other clauses of the First Amendment.

Even if the Court were to find that the Press Clause provides greater or different

protections than the other provisions of the First Amendment, Plaintiffs’ arguments must

fail.65 As noted above, Paul Plaintiffs have failed to identify any case that has applied
65(...continued)

this distinction compelled Chief Justice Burger to write his concurring opinion in Bellotti.

See Bellotti, 435 U.S. at 796 (Burger, C.J., concurring) (noting the “difficulty, and perhaps

impossibility, of distinguishing, either as a matter of fact or constitutional law, media

corporations from [non-media] corporations”). Nonetheless, this Court refuses to resolve

Plaintiffs’ Press Clause claims in this context.

66 In McIntyre, the Supreme Court applied the Speech Clause to invalidate an Ohio

statute that prohibited the anonymous distribution of campaign literature on general,

referendum questions. McIntyre, 514 U.S. at 336-37, 349-51. Justice Thomas concurred in

judgment, but “would [have applied] . . . a different methodology to [the] case.” Id. at 358-

59. According to Justice Thomas, the “practices and beliefs held by the Founders” provided

for an author’s right to publish anonymously under the Press and Speech Clauses. Id. at 360.

Justice Scalia, with whom Chief Justice Rehnquist joined, was not persuaded by Justice

Thomas’s arguments. Id. at 373. As Justice Scalia observed, “not every restriction upon

expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern

election laws such as those involved in Buckley v. Valeo, 424 U.S. 1 (1976) would be

prohibited, as would . . . modern antinoise regulation . . . , and modern parade permitting

regulation.” Id. (citations omitted).

112

“press” guarantees in the campaign finance context. Tr. at 341 (Titus); see also Paul Pls.’

Br. at 11. To hold for Paul Plaintiffs would be to invite a new and wholly unsupported

theory of First Amendment jurisprudence; litigants could besiege the courts with a host of

challenges to laws previously upheld by the Supreme Court on First Amendment grounds,

merely by characterizing themselves in their complaints as members of the “press” because

their purpose is to disseminate information to the public. As Chief Justice William Rehnquist

and Associate Justice Antonin Scalia observed in McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995), “of course, if every partisan cry of ‘freedom of the press’ were accepted

as valid, our Constitution would be unrecognizable.” McIntyre, 514 U.S. at 373 (Scalia, J.,

dissenting).66
67 Given this conclusion, the Court holds that there is no reason to remand the Paul

Plaintiffs’ separate challenges to FECA’s pre-BCRA provisions under this theory to a singlejudge court. See Paul Pls.’ Compl. ¶ 1 (“This is an action for declaratory and injunctive relief

with respect to certain provisions of [BCRA] as it amends the [FECA], as well as certain

related provisions of the FECA . . . on the grounds that these integrally related provisions

deprive the Plaintiffs of the Freedom of the Press in violation of the First Amendment of the

Constitution of the United States.”) (emphasis added) (citations omitted).

68 Paul Plaintiffs briefly challenge the constitutionality of section 301 of Title III in

their pleadings – most notably and independent of their Press argument, that section 301

discriminates against non-incumbent office holders by placing limitations on personal use

expenditures. Paul Pls.’ Br. at 25. However, the Court is not able to discern any basis for

these arguments in their Amended Complaint. Accordingly, the Court does not address this

issue.

113

Paul Plaintiffs can cite no precedent in support of their claims. Since the Supreme

Court has not affirmatively provided superior rights under the Press Clause, and has

suggested that such claims fall under the general First Amendment compelling interest test,

this Court rejects the argument that Paul Plaintiffs’ claims under the Press Clause warrant a

higher level of constitutional protection.67 Therefore, this Court will apply the same scrutiny

to all First Amendment claims, whether presented under the Speech or Press Clauses, and

subsumes all of Paul Plaintiffs’ Title I, and essentially all of their Title II, arguments into the

First Amendment challenges advanced by the other litigants in this case.68

B. BCRA’s Disclosure Provisions

Section 201: Disclosure Provisions

1. Introduction

With one exception, the Court also finds the disclosure provisions relating to

“electioneering communications” constitutional. The factual record demonstrates that the
114

abuse of the present law not only permits corporations and labor unions to fund broadcast

advertisements designed to influence federal elections, but permits them to do so while

concealing their identities from the public. BCRA’s disclosure provisions require these

organizations to reveal their identities so that the public is able to identify the source of the

funding behind broadcast advertisements influencing certain elections. Plaintiffs’ disdain

for BCRA’s disclosure provisions is nothing short of surprising. Plaintiffs challenge

BCRA’s restrictions on electioneering communications on the premise that they should be

permitted to spend corporate and labor union general treasury funds in the sixty days before

the federal elections on broadcast advertisements, which refer to federal candidates, because

speech needs to be “uninhibited, robust, and wide-open.” McConnell Br. at 44 (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Curiously, Plaintiffs want to preserve

the ability to run these advertisements while hiding behind dubious and misleading names

like: “The Coalition–Americans Working for Real Change” (funded by business

organizations opposed to organized labor), “Citizens for Better Medicare” (funded by the

pharmaceutical industry), “Republicans for Clean Air” (funded by brothers Charles and Sam

Wyly). Findings ¶¶ 44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the

question of how “uninhibited, robust, and wide-open” speech can occur when organizations

hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs’

argument for striking down BCRA’s disclosure provisions does not reinforce the precious

First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the
115

competing First Amendment interests of individual citizens seeking to make informed

choices in the political marketplace. As a result, the Court finds Section 201 facially

constitutional, with the exception of one subsection which the Court determines to be broader

than necessary to achieve the legitimate governmental interest at stake.

2. Discussion

The provision’s disclosure requirements are challenged by the McConnell, AFL-CIO,

Chamber of Commerce, NAB, NRA, and Paul Plaintiffs. Plaintiffs’ challenge to Section

201’s disclosure provisions focuses on two aspects of the law: (1) its requirement of

disclosure prior to the airing of electioneering communications; and (2) its requirement that

disbursers disclose the names of contributors who gave over $1,000 to the disbursing fund.

The Court addresses each in turn.

a. Prior Disclosure

The McConnell Plaintiffs, AFL-CIO, Chamber of Commerce, and NAM object to

Section 201’s disclosure requirements on the ground that they mandate disclosure of not only

actually aired electioneering communications, but also contracts to make such

communications. See McConnell Br. at 56 n.22; AFL-CIO Br. at 14-17; Chamber/NAM at

20 n.13. This advance disclosure, Plaintiffs argue, “serve[s] no governmental interest and

will chill the exercise of free speech by forcing groups . . . to disclose ongoing and

confidential political strategies and decision-making processes, and by giving adversariesthe

opportunity to try to thwart broadcasts or counter them with their own messages.” AFL-CIO
69 McConnell Plaintiffs, the Chamber of Commerce and NAM make a passing

suggestion that Section 201 might constitute a “prior restraint” in violation of the First

Amendment. McConnell Plaintiffs Br. at 55-56 (“But if this Court agrees that the

electioneering communications provisions cannot stand, the attendant disclosure provisions

should likewise fall, because the disclosure provisions constitute a regulation of–and in some

cases a prior restraint on– speech that the government may not regulate in the first place.”);

Chamber/NAM Br. at 20 n.13 (“The timing of the BCRA’s electioneering communication

disclosure requirement is an unconstitutional prior restraint.”). 

This argument cannot be squared with the Supreme Court’s definition of “prior

restraint.” See Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989) (“[T]he

regulations we have found invalid as prior restraints have ‘had this in common: they gave

public officials the power to deny use of a forum in advance of actual expression.’”) (citing

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975)); see also Blue Canary

Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001) (“By ‘prior restraint’ . . .

modern courts . . . mean censorship--an effort by administrative methods to prevent the

dissemination of ideas or opinions thought dangerous or offensive. The censor’s concern is

with the content of speech, and the ordinary judicial safeguards are lacking. ‘Prior restraints’

that do not have this character are reviewed under the much more permissive standard

applicable to restrictions merely on the time, place, or manner of expression.”) (citations

omitted); Wisconsin Realtors Ass’n v. Ponto, No. 02-C-424-C, 2002 WL 31758663 * 12

(W.D. Wis. Dec. 11, 2002) (subjecting Wisconsin statute’s prior reporting requirements to

“time, place, or manner of expression” analysis); FEC Opp’n at 112.

Given the paucity of Plaintiffs’ briefing on this matter and the precedent cited above,

this Court believes further analysis of “prior restraint” in this context is not warranted.

116

Br. at 16.69

 

Defendants argue that the then-pending (and now final) regulations interpret the notice

requirements as not mandating disclosure until after the advertisements have been publicly

distributed. Gov’t Opp’n at 111. The content of the regulations, argue Defendants, “moot

plaintiffs’ concerns, [make] plaintiffs’ claims to injury . . . wholly speculative[,] and their

challenge to this aspect of BCRA’s disclosure provisions is therefore unfit for judicial

resolution.” Id. 
70 In issuing the final regulations, the FEC noted that 

All of the commenters who addressed this issue . . . advocated adopting a final

rule that would define ‘’disclosure date’‘ as the date of the public distribution

of the electioneering communication. They argued that there is no

electioneering communication, and therefore no reporting requirement, until

the communication is actually publicly distributed. . . .

This [adopted definition of disclosure] date reflects the Commission’s

concerns that there are legal and practical issues associated with compelling

disclosure of potential electioneering communications before they are finalized

and publicly distributed, and premature disclosure may require reporting

entities to divulge confidential strategic and political information about their

possible future activities.

Explanation and Justification of 11 C.F.R. 104.20, Reporting Electioneering

Communications, 68 Fed. Reg. at 404, 409 (Jan. 3, 2003).

71 The regulations provide in part: 

(1) Disclosure date means:

(i) The first date on which an electioneering communication is publicly

distributed provided that the person making the electioneering communication

has made one or more disbursements, or has executed one or more contracts

to make disbursements, for the direct costs of producing or airing one or more

(continued...)

117

The Court cannot agree that Plaintiffs’ challenge to the disclosure requirements in

Section 201 is not ripe for review. Unlike the situation confronted by the Court in examining

the disclosure requirement of Section 212, discussed infra at 140, the regulations

promulgated for Section 201 do not eliminate Plaintiffs’ prior disclosure concerns. The

regulations, despite the FEC’s explanation of the provision,70 appear to still require prior

disclosure of electioneering communications that have not yet aired. Specifically, the

definition of “disclosure date” leaves uncertain what must be disclosed after the airing of an

electioneering communication when the disburser has executed contracts for electioneering

communications aggregating over $10,000.71 The regulations suggest that if a person has
71(...continued)

electioneering communications aggregating in excess of $10,000; or 

(ii) Any other date during the same calendar year on which an electioneering

communication is publicly distributed provided that the person making the

electioneering communication has made one or more disbursements, or has

executed one or more contracts to make disbursements, for the direct costs of

producing or airing one or more electioneering communications aggregating

in excess of $10,000 since the most recent disclosure date during such calendar

year.

BCRA Reporting; Coordinated and Independent Expenditures; Final Rules, 68 Fed. Reg.

404, 419 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 104.20) (emphasis added).

72 In analyzing Section 212, infra at 140, the Court finds that the FEC’s final

regulations completely and unequivocally address Plaintiffs’ concerns and therefore renders

their challenge to that provision unripe for adjudication at this time. In the analysis of

Section 214(c), infra at 155, the Court finds that the regulations related to Section 214,

promulgated after briefing and oral argument in this case, have affected the contours of the

dispute between the parties to such an extent that the challenge is not ripe for review. 

118

executed $10,000 in electioneering communications contracts, 24 hours after the first such

communication is aired, the disburser must make a disclosure encompassing all of the

electioneering communications under the contract(s). The Court notes that its jurisdiction

does not extend to the FEC’s BCRA regulations, see BCRA § 403 (providing this Court with

jurisdiction to hear challenges to “the constitutionality of any provision of this Act or any

amendment made by this Act”), and therefore it makes no determination on their validity or

proper construction. However, given the uncertainty it finds with regard to the scope of the

regulations, the Court cannot conclude that Plaintiffs’ challenge is not ripe.72 “[T]he extent

of the chill upon first amendment rights induced by vague or overbroad statutes is the most

significant factor in determining whether an otherwise premature or abstract facial attack .

. . is ripe for decision.” Martin Tractor Co. v. FEC, 627 F.2d 375, 384 (D.C. Cir. 1980).
73 The Court notes that arguments could be made that the FEC’s regulations do render

Plaintiffs’ challenge unripe. For example, under the regulations, to be an “electioneering

communication” the broadcast must be “publicly distributed within 60 days before a general

election.” BCRA, FCC Database on Electioneering Communications; Final Rules, 67 Fed.

Reg. 65190, 65210 (Oct. 23, 2002) (to be codified at 11 C.F.R. § 100.29(a)(2)). Therefore,

it could be argued that a broadcast is not an “electioneering communication” until it is aired,

and therefore contracts to make broadcasts are not contracts to make electioneering

communications unless and until the broadcasts have been publicly disseminated. 

This reasoning leads to the conclusion that one cannot have $10,000 in electioneering

communications contracts to disclose until $10,000 worth of advertisements have been

publicly disseminated. However, as this analysis demonstrates, such a conclusion is not

unequivocally apparent, and therefore could lead to the chilling of First Amendment rights.

Again, had the FEC promulgated regulations which clearly addressed this issue as it did for

Section 212, the Court’s ripeness determination for Section 201 would likely have been

different. Given the possibility of different interpretations of the regulations, the chilling

effect of that uncertainty, and the fact this Court lacks jurisdiction to rule on the regulations,

(continued...)

119

Where other cases have found facial First Amendment challenges ripe for review, “either the

activities in which the complainants wished to (or had) engaged or the enforcing authority’s

particular intent to enforce the statute, or both, were clear enough to show the adversarial

posture assumed by the parties and the contours of their dispute.” Id. at 387. Here, Plaintiffs

have clearly engaged in “electioneering communications” in the past, and the FEC

regulations promulgated on January 3, 2003, indicate that the agency intends to enforce

BCRA Section 201, including its “contracts” provision. Given these facts, the Court finds

that Plaintiffs “have alleged an actual and well-founded fear that the law will be enforced

against them,” which threatens the danger of “self-censorship; a harm that can be realized

even without an actual prosecution.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393

(1988).73
73(...continued)

the Court has determined that Plaintiffs’ challenge to Section 201’s disclosure provisions is

ripe.

120

Analysis of Section 201 commences with the guidance that disclosure provisions “in

most applications appear to be the least restrictive means of curbing the evils of campaign

ignorance and corruption.” Buckley, 424 U.S. at 68. However, disclosure provisions are

subject to exacting scrutiny analysis “because compelled disclosure has the potential for

substantially infringing the exercise of First Amendment rights.” Id. at 66. The Supreme

Court has found three categories of “governmental interests sufficiently important to

outweigh the possibility of infringement.” Id. The Supreme Court stated:

First, disclosure provides the electorate with information as to where political

campaign money comes from and how it is spent by the candidate in order to

aid the voters in evaluating those who seek federal office. It allows voters to

place each candidate in the political spectrum more precisely than is often

possible solely on the basis of party labels and campaign speeches. The

sources of a candidate’s financial support also alert the voter to the interests

to which a candidate is most likely to be responsive and thus facilitate

predictions of future performance in office.

Second, disclosure requirements deter actual corruption and avoid the

appearance of corruption by exposing large contributions and expenditures to

the light of publicity. This exposure may discourage those who would use

money for improper purposes either before or after the election. A public

armed with information about a candidate’s most generous supporters is better

able to detect any post-election special favors that may be given in return . . .

.

Third, and not least significant, recordkeeping, reporting, and disclosure

requirements are an essential means of gathering the data necessary to detect

violations of the contribution limitations described above.

Id. at 66-68 (citations omitted). Buckley upheld the constitutionality of Section 434(e) of
121

FECA, which required disclosure of independent expenditures, although the Supreme Court

did limit the provision to only those expenditures used for “communications that expressly

advocate the election or defeat of a clearly identified candidate.” Id. at 80. The provision

was found to be “part of Congress’ effort to achieve total disclosure . . . in order to insure

that the voters are fully informed and to achieve through publicity the maximum deterrence

to corruption and undue influence as possible.” Id. at 76 (footnote and quotation marks

omitted). The Supreme Court deemed the measure “responsive to the legitimate fear that

efforts would be made, as they had been in the past, to avoid the disclosure requirements by

routing financial support of candidates through avenues not explicitly covered by the general

provisions of FECA.” Id. at 76 (footnote omitted). The Supreme Court also determined that

it is not fatal that [section] 434(e) encompasses purely independent

expenditures uncoordinated with a particular candidate or his agent. The

corruption potential of these expenditures may be significantly different, but

the informational interest can be as strong as it is in coordinated spending, for

disclosure helps voters to define more of the candidates’ constituencies.

Buckley, 424 U.S. at 81.

Addressing Plaintiffs’ prior disclosure concerns, Defendant FEC maintains that even

with the “contracts” language, Section 201 is constitutional because it “does not prevent

anyone from speaking,” and “[t]he reports themselves would not have to reveal the specific

content of the advertisements, yet they would perform an important function in informing the

public about various candidates’ supporters before election day.” FEC Opp’n at 112

(emphasis in original). Although the Court agrees that the function cited is a substantial one,
74 The Court does not address the question of whether or not the 24-hour disclosure

deadline included in Section 201 is constitutional, as this provision was not challenged nor

its constitutionality briefed by Plaintiffs and consequently not responded to by Defendants.

See McConnell Plaintiffs Br. at 56 n.22; AFL-CIO Br. at 14-17; ACLU Br. at 17-19;

Chamber/NAM Br. at 18-20; NRA Br. at 48-50; FEC Opp’n at 112 n.116 (“In Citizens for

Responsible Gov’t State Political Action Comm. . . the court invalidated a 24-hour notice

requirement because it believed ‘such immediate notice’ was unduly burdensome– claim

[sic] not raised by plaintiffs here . . . .”) (emphasis added); McConnell v. FEC, No. 02-582

(D.D.C. Oct. 15, 2002) (Briefing Order) (“All legal arguments shall be presented on a titleby-title basis, with a discrete section of each brief devoted to each title.”) (emphasis added);

see also Tri-State Hosp. Supply Corp. v. United States, 142 F. Supp. 2d 93, 101 n.6 (D.D.C.

2001) (“The court makes no ruling on such acts, however, because the United States has not

briefed the issue.”); Carter v. Cleland, 472 F. Supp. 985, 989 n.4 (D.D.C. 1979) (“This issue

was not briefed by the parties. No decision will be rendered on it.”); cf. Kattan v. District

of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993) (“[T]his Court has recognized that a losing

party may not use a Rule 59 motion to raise new issues that could have been raised

previously.”). Circuit Courts of Appeal routinely consider issues that are not briefed as

“abandoned.” United States v. Wade, 255 F.3d 833, 839 (D.C. Cir. 2001) (citing Terry v.

(continued...)

122

see Buckley, 424 U.S. at 67 (“[F]ull disclosure during an election campaign tends to prevent

the corrupt use of money to affect elections.”) (citation and quotation marks omitted), the

FEC does not explain how this goal is any less served by requiring disclosures only after the

expenditures for electioneering communications have been publicly disseminated.

Information concerning contracts that have not been performed, and may never be performed,

may lead to confusion and an unclear record upon which the public will evaluate the forces

operating in the political marketplace. By limiting disclosures to expenditures actually made,

the government’s legitimate interest is served without the constitutional and practical

shortcomings implicated by requiring prior disclosures. This is so because Section 201

requires disclosure within 24 hours of the disbursement.74 The Court finds that Section 201,
74(...continued)

Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996), cert. denied, 520 U.S. 1264 (1997)).

123

by including subsection 5 of Section 201, BCRA § 201(a); FECA § 304(f)(5); 2. U.S.C. §

434(f)(5), which equates contracts to make disbursements with actual disbursements

requiring disclosure of contracts to make electioneering communications prior to their public

dissemination, lacks a “relevant correlation” or “substantial relation,” Buckley, 424 U.S. at

64, to a legitimate governmental interest.

This constitutional flaw, however, does not render Section 201 unconstitutional in its

entirety. BCRA provides that “[i]f any provision of this Act . . . or the application of a

provision . . . to any person or circumstance[] is held to be unconstitutional, the remainder

of this Act . . . and the application of the provisions . . . to any person or circumstance, shall

not be affected by the holding.” BCRA § 401; 2 U.S.C. 454 note. As the Supreme Court

noted in Buckley, “[u]nless it is evident that the legislature would not have enacted those

provisions which are within its power, independently of that which is not, the invalid part

may be dropped if what is left is fully operative as a law.” Buckley, 424 U.S. at 108-09

(quoting Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 234 (1932)); see

also Consumer Energy Council of America v. Federal Energy Regulatory Comm’n, 673 F.2d

425, 441 (D.C. Cir. 1982) (“The presence of a severability clause, which expressly sets forth

congressional intent that a statute stand in the event one of its provisions is struck down,

makes it extremely difficult for a party to demonstrate inseverability.”), aff’d, 463 U.S. 1216
124

(1983); Buckley, 424 U.S. at 108-09 (finding that unconstitutional provisions did not render

all of Subtitle H of FECA unconstitutional); Carlin Communications, Inc. v. FCC, 837 F.2d

546, 560-61 (2d Cir. 1988) (finding that “the words ‘or indecent’ are separable so as to

permit them to be struck and the statute otherwise upheld. . . . [T]he invalid part of section

223 may be dropped and . . . the remainder of the statute is fully operative.”), cert. denied,

488 U.S. 984 (1988). Given this guidance and the clear import of Section 401 of BCRA, the

Court holds that the remainder of Section 201 is severable from subsection (5). It is clear

that the value of disclosing electioneering communications disbursements is not dependent

on their disclosure prior to broadcast, and the Court cannot say that it is “evident that the

legislature would not have enacted” the remaining disclosure provisions of Section 201 in

the absence of subsection (5). Buckley, 424 U.S. at 108-09. The remainder of Section 201

adequately serves the purpose of “informing the public about various candidates’ supporters

before election day,” FEC Opp’n at 112 (emphasis in original), without requiring advance

disclosures that could potentially chill the exercise of free speech rights.

The Court therefore finds that Section 201’s requirement that electioneering

communications that have not yet aired but have been contracted for is unconstitutional, but

that by severing subsection (5), the provision’s prior disclosure concerns are remedied and

the remainder of the section is constitutional.

b. Disclosure of $1,000 Contributors

Plaintiffs ACLU, Chamber of Commerce, NAM, and NRA challenge Section 201’s
75 In justifying the provision, one Senator commented:

We deter the appearance of corruption by shining sunlight on the undisclosed

expenditures for sham issue advertisements. Corruption will be deterred when

the public and the media are able to see clearly who is trying to influence the

election. In addition our provisions will inform the voting public of who is

sponsoring and paying for an electioneering communication.

(continued...)

125

requirement that electioneering communications disbursers disclose the names of persons

who have given $1,000 or more to the disbursing fund. Plaintiffs argue that for

“controversial groups, such threatened disclosure can have a deadly chilling effect on the

group’s advocacy.” ACLU Br. at 19; see also Chamber/NAM Br. at 19; NRA Br. at 50. The

NRA argues that the provision suffers from the same infirmities as those in FECA struck

down by the D.C. Circuit, as BCRA’s “disclosure requirements reach the very same outside

‘groups engaging in nonpartisan discussion.’” NRA Br. at 49-50 (quoting Buckley, 519 F.2d

at 873). Finally, the Chamber of Commerce argues that Section 201’s disclosure

requirements are overbroad, because at least “[w]hen the advertiser is the Chamber [of

Commerce], the interest served by the ad is reasonably clear.” Chamber/NAM Br. at 20

(quoting Deborah Goldberg & Mark Kozlowski, Constitutional Issues in Disclosure of

Interest Group Activities, 35 Ind. L. Rev. 755, 757 (2002)). 

Defendants argue that the disclosure of individual contributors is necessary because

many sponsors of issue advertisements conceal “their identity from the public by

electioneering pseudonymously, through front organizations such as ‘The Coalition:

Americans Working for Real Change,’ [sic] ‘Citizens for Reform.’” FEC Br. at 173.75
75(...continued)

147 Cong. Rec. S3034 (daily ed. Mar. 28, 2001) (Sen. James Jeffords). In a similar vein, a

Representative stated:

No one is trying to gag anybody. If they want to do a political ad that

essentially wants people to vote for or against, what they say is [sic] fall within

the independent expenditure and other provisions of the law, which has limits

on what can be expended and has requirements for disclosure, which is not

true of these ads that are clearly campaign ads, that are clearly political ads. 

But the people do not know who put the money up. They are hidden. They are

endless. There is a flood of hidden, in terms of its support, of hidden money.

That is what we say should not happen. 

144 Cong. Rec. H4866 (daily ed. June 19, 1998) (statement of Rep. Sander Levin).

126

Indeed, the Supreme Court has observed that “when individuals or corporations speak

through committees, they often adopt seductive names that may tend to conceal the true

identity of the source.” Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298

(1981) (rejecting the argument that a limit on contributions to committees formed to support

or oppose ballot measures was necessary “to make known the identity of supporters and

opponents” of such measures, given that another provision of the ordinance “requires

publication of lists of contributors in advance of the voting”). This observation has been

buttressed by the evidence presented in this case. See Findings ¶¶ 48-52. For example,

PhRMA, a pharmaceutical industry trade group, the Chamber of Commerce, and two

brothers from Texas, have produced issue adds under the names “Citizens for Better

Medicare,” “Americans Working for a Real Change,” and “Republicans for Clean Air,”

respectively. Id. ¶¶ 51, 44, 52. A recent poll showed that 61 percent of Americans want to

know who is behind these issue advertisement organizations. Id. ¶ 46. Plaintiffs’ briefs
127

provide no evidence to the contrary and do not attempt to argue that the government lacks

a legitimate interest related to the disclosure requirements; in fact, many of their experts

voice the same concerns. Id. ¶¶ 49 (Milkis), 52 (La Raja). The Court finds that the evidence

presented establishes that a legitimate governmental interest is served by the donors

disclosure requirement, and reaffirms the Buckley observation that “[t]he corruption potential

of [independent uncoordinated] expenditures may be significantly different [than coordinated

expenditures], but the informational interest can be as strong as it is in coordinated spending,

for disclosure helps voters to define more of the candidates’ constituencies.” Buckley, 424

U.S. at 81. Without disclosure of donors, it is difficult, if not impossible for the voting

public to know who is sponsoring political advertisements under amorphous and nondescript

pseudonyms. See Findings ¶¶ 47, 50-51. Indeed, even those experienced in politics, political

scientists, and members of the media find it difficult to know who is behind some political

advertisements. Id. ¶¶ 48, 52. Without Section 201’s disclosure requirements, it will

continue to be extremely difficult for the public to learn that groups, such as PhRMA, or

individuals, like the Wylys, are the true source of millions of dollars in potential

advertisements run under banners such as “The Coalition” or “Citizens for Better Medicare.”

Id. 

This conclusion, however, does not end the inquiry. The Supreme Court has been

mindful of the chilling effect disclosure can have on associational rights, and has declared

that “state action which may have the effect of curtailing the freedom to associate is subject
76 In NAACP, the NAACP challenged a court order forcing the group “to reveal to the

State’s Attorney General the names and addresses of all of its Alabama members and

agents.” NAACP v. Alabama, 357 U.S. 449, 451 (1958). The State had obtained a

restraining order, enjoined the group from operating in Alabama due to its failure to file a

corporate charter with the Secretary of State. Id. In response, the NAACP sought to dissolve

the restraining order, but refused to comply with Alabama’s request for the production of

documents including the NAACP’s “records containing the names and addresses of all

Alabama members and agents of the Association.” Id. at 453 (quotation marks omitted)

(emphasis added). The court then ordered the NAACP to comply. Id. The evidentiary

record before the Supreme Court consisted of uncontroverted evidence “showing that on past

occasions revelation of the identity of [the NAACP’s] rank-and-file members has exposed

these member to economic reprisal, loss of employment, threat of physical coercion, and

other manifestations of public hostility.” Id. at 462. Based on this evidence, the Court found

that 

compelled disclosure of [the NAACP’s] membership is likely to affect

adversely the ability of [the NAACP] and its members to pursue their

collective effort to foster beliefs which, they admittedly have the right to

advocate, in that it may induce members to withdraw from the Association and

(continued...)

128

to the closest scrutiny.” NAACP v. Alabama, 357 U.S. 449, 460-61(1958). “The strict test

established by NAACP v. Alabama is necessary because compelled disclosure has the

potential for substantially infringing the exercise of First Amendment rights.” Buckley, 424

U.S. at 66. Although disclosure requirements are often “the least restrictive means” of

regulating campaign finance practices, “[i]n some instances disclosure may even expose

contributors to harassment or retaliation.” Buckley, 424 U.S. at 68. 

In Buckley, the Supreme Court considered the argument that contributions made to

independent candidates and minor parties should be exempt from FECA’s disclosure

requirements. The Supreme Court rejected the challenge, concluding that the evidence

presented was “not of the sort proffered in NAACP v. Alabama.”76 Buckley, 424 U.S. at 71.
76(...continued)

dissuade others from joining it because of fear of exposure of their beliefs

shown through their associations and of the consequences of this exposure.”

Id. at 462-63. As such, the Supreme Court found that Alabama’s interest in the information

was insufficient to justify the disclosure. Id. at 466.

77 In Brown, the Supreme Court examined an Ohio election campaign law which

required “every candidate for political office to file a statement identifying each contributor

(continued...)

129

The evidence that was presented in Buckley was found by the Supreme Court to be “at best

. . . the testimony of several minor-party officials that one or two persons refused to make

contributions because of the possibility of disclosure,” and therefore failed to persuade the

Supreme Court that “the substantial public interest . . . outweighs the harm generally

alleged.” Id. Buckley instructs that when a legitimate government interest is served by a

disclosure provision, constitutional challenges claiming the disclosure will chill associational

rights must be accompanied by evidence which shows 

a reasonable probability that the compelled disclosure of a party’s contributors’

names will subject them to threats, harassment, or reprisals from either

government officials or private parties. The proof may include, for example,

specific evidence of past or present harassment of members due to their

associational ties, or of harassment directed against the organization itself. A

pattern of threats or specific manifestations of public hostility may be

sufficient. 

Buckley, 424 U.S. at 74;see also Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S.

87 (1982) (finding Ohio disclosure provisions could not be constitutionally applied to the

Socialist Workers Party (“SWP”) due to the “substantial evidence of both governmental and

private hostility toward and harassment of SWP members and supporters”).77

 
77(...continued)

and each recipient of a disbursement of campaign funds.” Brown v. Socialist Workers ‘74

Campaign Comm., 459 U.S. 87, 89 (1982). The District Court in the case had found

“substantial evidence of both governmental and private hostility toward and harassment of

[Socialist Workers Party (“SWP”)] members and supporters.” Id. at 98-99. The evidence

presented included specific incidents which took place within four years of the trial, and

included “threatening phone calls and hate mail, the burning of SWP literature, the

destruction of SWP members’ property, police harassment of a party candidate, and the firing

of shots at an SWP office. There was also evidence that in the 12-month period before trial

22 SWP members, including four in Ohio, were fired because of their party membership.”

Id. at 99. This evidence was found to present a reasonable probability that disclosing the

names of contributors and recipients will subject them to threats, harassment, and reprisals.

Id. at 100. The Supreme Court concluded that “[i]n light of the substantial evidence of past

and present hostility from private persons and government officials against the SWP, Ohio’s

campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP.” Id.

at 102. 

130

For this reason, the ACLU’s facial challenge to Section 201 is unavailing. Neither

NAACP nor Brown stand for the proposition that disclosure laws that apply to organizations

“whose positions are often controversial and whose members and contributors frequently

request assurances of anonymity” are facially unconstitutional. ACLU Opp’n at 10. Rather,

as explained above, the statutes in those cases were held inapplicable to the groups in

question based on the facts presented, not invalid on their face. See NAACP, 449 U.S. at

462-63 (“[W]e think it apparent that compelled disclosure of petitioner’s Alabama

membership is likely to affect adversely the ability of petitioner and its members” to engage

in their freedom to associate.”) (emphasis added); Brown, 459 U.S. at 102 (“Ohio’s campaign

disclosure requirements cannot be constitutionally applied to the Ohio SWP.”) (emphasis

added). The Court is given no information as to why these donors wish to maintain their
78 The ACLU provides no information as to why ACLU’s donors wish to maintain

their confidentiality and no indication is given that revelation of their affiliation with the

group would result in harassment, threats or reprisals. As an aside, the Court notes that

according to the ACLU, “[o]nly 212 individuals contributed more than $1,000 to the

organization. Findings ¶ 45.

131

confidentiality and no indication is given that revelation of their affiliation with the group

would result in harassment, threats or reprisals. Since the ACLU has presented the Court

with no facts that place it in the same category of threatened associations such as the NAACP

or the Socialist Workers Party (“SWP”), see Finding ¶ 4578 the Court finds no basis for

invalidating the statute on its face or as applied to the ACLU based on the present record.

Plaintiffs have also provided evidence regarding the effect disclosure under Section

201 would have on four other organizations. The Court considers each in turn.

The NRA provides testimony that some of its members do not wish to have their

contributions to the group disclosed, and estimates that between five and 50 persons voiced

their concerns in the year 2000. Id. ¶ 41. The group also provides testimony that a

“conspicuous and disproportionate number of contributors” to its PAC contribute “just below

the $200 disclosure level.” Id. Although Mr. LaPierre testified that one reason given for

members not wanting their contributions disclosed was fear of losing one’s job, many other

reasons were given as well, such as a desire not to have one’s neighbors or school board

know about their affiliation with the organization. Id. Some simply stated that they did not

wish to have such information provided to the government. Id. No evidence of the basis for

these fears is presented to the Court, only speculations. Nor is any evidence presented to the
132

Court of actual instances of retaliation due to the disclosure of someone’s membership in the

NRA. These fears are the result of conjectures by those expressing them, but unless there

is a reasonable probability that these fears will be realized as a result of disclosure, Buckley

instructs that such worries do not overcome the state’s legitimate interest in disclosure. 

Edward Monroe, Director of Political Affairs for the Associated Builders and

Contractors (“ABC”) and the Treasurer of ABC’s PAC, testified that he had been told that

a number of ABC contributors had suffered substantial vandalism after their names were

disclosed and that the contributors believed the vandalism was the result of labor unions

learning of their contributions. Id. ¶ 42. This evidence is essentially hearsay and no evidence

is presented showing that the vandalism was actually retaliation in response to the disclosure

as opposed to speculation on the part of contributors. Although some contributors to ABC’s

PAC donate less than $200, the Court has no way of knowing why they donate at this level

other than Mr. Monroe’s belief that it is to prevent disclosure of their names. Id. The same

is true for the two companies that declined Mr. Monroe’s solicitations. Id. On the basis of

this evidence alone, the Court cannot find that ABC meets the Buckley standard.

The Court also considers evidence regarding the membership of the Associated

General Contractors of America (“AGC”) and the Chamber of Commerce’s coalition titled

“Americans Working for a Real Change.” Between a dozen and two dozen AGC members

expressed concern to its Chief Executive Officer, Stephen Sandherr, that if their

contributions to AGC are disclosed publicly they will be subjected to union action that
133

“would threaten to make life miserable for them.” Id. ¶ 43. Although this testimony

demonstrates that AGC members may “fear” the potential consequences of their names being

disclosed in connection with AGC, there is no evidence before the Court that these feared

consequences have been, or would be, realized. Similarly, the Chamber of Commerce

provides evidence that some contributors to its coalition, “Americans Working for a Real

Change,” did not want to be publicly identified due to fears of “what some would call union

harassment activities.” Id. ¶ 44. Once again, the Court was not presented with evidence of

a reasonable basis for these fears. Furthermore, no member ever told Mr. Sandherr they were

contributing $200 or less to AGC’s PAC in order to avoid disclosure, and no contributor to

AGC’s PAC has reported union retaliation in response to their contribution to the PAC. Id.

¶ 43. Neither group’s evidence meets the Buckley standard.

In sum, although many deponents relate what they believe, or have been told, were

the reasons contributors did not want to have their names disclosed, that is union retaliation

or employment termination, the lack of specific evidence about the basis for these concerns

leaves the Court unable to find there exists “a reasonable probability that the compelled

disclosure of [any of these organizations’] contributors’ names will subject them to threats,

harassment, or reprisals from either government officials or private parties.” Buckley, 424

U.S. at 74. Furthermore, no Plaintiff cited to evidence, and the Court has found none, that

their organization, as opposed to the organization’s members or contributors, has been

subjected to threats, harassment or reprisals. Although these groups take stands that are
79 Section 437a’s “demand for disclosure is activated–without any expending of any

funds whatever–(1) by any act directed to the public for the purpose of influencing the

outcome of an election; or (2) by any material published or broadcast to the public which

refers to a candidate (by name, description, or other reference) and which (a) advocates the

election or defeat of such candidate, or (b) sets forth the candidate’s position on any public

issue, his voting record, or other official acts (in the case of a candidate who holds or has

held Federal office), or (c) is otherwise designed to influence individuals to cast their votes

for or against such candidate or to withhold their votes from such candidate.” Buckley, 529

F.2d at 870 (paraphrasing FECA § 427a) (internal punctuation and footnotes omitted).

134

controversial to segments of the public, and may believe that they are targeted because of the

positions they take, none has provided the Court with a basis for finding that their

organization, and thereby their membership, faces the hardships that the NAACP and SWP

were found to suffer by the Supreme Court. However, nothing in this Court’s decision

affects the ability of groups in the future from challenging, as the NAACP and the SWP did

in the past, the application of Section 201’s disclosure provisions to their organization.

The Court addresses next the NRA’s argument that the D.C. Circuit’s invalidation of

FECA’s Section 437a, Buckley, 519 F.2d at 878, renders Section 201’s requirements invalid

as well. In Buckley, the D.C. Circuit found FECA’s independent expenditure disclosure

provision79 unconstitutional. The Court of Appeals stated that “issue discussions unwedded

to the cause of a particular candidate hardly threaten the purity of elections . . . . [and] are

vital and indispensable to a free society and an informed electorate. Thus the interest of a

group engaging in nonpartisan discussion ascends to a high plane, while the governmental

interest in disclosure correspondingly diminishes.” Buckley, 519 F.2d at 873. Even so, the

D.C. Circuit rested its decision on the overbreadth of Section 427a’s “crucial terms[:]
80 For example, as mentioned above, the “group” “Republicans for Clean Air” spent

$2 million the week before the “Super Tuesday primaries” in advertisements supporting

presidential candidate George W. Bush and attacking his opponent John McCain. Findings

¶ 52. “Republicans for Clean Air” was actually a front for two brothers who had ties to the

Bush campaign. Id.

135

‘purpose of influencing the outcome of an election’ and ‘design[] to influence’ individuals

in voting at an election.” Buckley, 519 F.2d at 875. Unable to find a “readily available

narrowing interpretation” of the crucial terms in light of Congress’s manifested intent,

Buckley, 519 F.2d at 877, the Court of Appeals held the section unconstitutional, id. at 878.

Given that the basis for the D.C. Circuit’s invalidation of Section 427a rested on the

provision’s language and legislative history, the Court does not accept the NRA’s suggestion

that the Court of Appeals’s decision controls this Court’s analysis of Section 201’s disclosure

requirements. NRA Br. at 50. Section 201 only requires disclosure of “electioneering

communications,” the definition of which this Court finds is constitutional. The disclosure

trigger is much narrower and more definite than that of FECA Section 427a, and does not

include its invalidating “crucial terms.” In addition, the record before the Court clearly

demonstrates that contrary to the situation facing the Court of Appeals in 1975, where “issue

discussions” were indeed “unwedded to the cause of a particular candidate,” the evolving

present use of issue advertisements, specifically the use of “issues” to cloak supportive or

negative advertisements clearly identifying a candidate for federal office, “threaten the

purity of elections.” Buckley, 519 F.2d at 873.80 For these reasons, the Court declines to find

the Court of Appeals’s decision on FECA Section 427a binding on this Court’s disposition
136

of the challenges to BCRA Section 201’s disclosure requirements.

Finally, the Chamber of Commerce argues that Section 201 as applied to its

electioneering communications, is overbroad because the public knows that the Chamber

represents the interests of American business. Chamber/ NAM Br. at 20. The Court

interprets the Chamber’s position, encompassing all of three sentences, to mean that under

BCRA it should be sufficient that the Chamber report that it is behind advertisements

sponsored by, for example, “Americans Working for a Real Change” and that listing its

$1,000 contributors would be unnecessary for the voting public to know the interest behind

the advertisement. The Court first notes that the Chamber does not provide, and the Court

cannot formulate, a disclosure rule that would take into account the notoriety of the groups

involved (for example, a law that exempts “well-known” groups from disclosing the names

of their $1,000 contributors, while “less well-known” groups would be required to make the

disclosures). In addition, the Chamber provides no legal support for its theory, and the Court

declines to consider its argument based on a record comprised of a single quotation from the

Indiana Law Review and the Chamber’s statement that it “is a well-known association of

American businesses that has been in existence for 90 years.” Chamber/NAM Br. at 20. The

Court therefore rejects the Chamber of Commerce’s argument.

In conclusion, the Court states what Section 201’s disclosure requirements do and do

not require. First, they apply only to electioneering communications, which we find

constitutional. Second, Section 201 does not prevent anyone from making electioneering
137

communications; it only requires that when persons do make such advertisements that they

disclose the source of the communication’s funding after they are broadcast. Lastly, the

provision does not require the wholesale disclosure of all donors to the sponsoring

organization, rather only donors contributing $1,000 to the disbursing account must be

disclosed. Organizations are free to set up “segregated bank account[s],” funded by

individuals’ contributions,for electioneering communication disbursements. BCRA §201(a);

FECA § 434(f)(2)(E); 2 U.S.C. § 434(f)(2)(E). If electioneering communication

disbursements made from such segregated accounts then reach the $10,000 threshold, only

the names of the segregated account’s $1,000 contributors will have to be disclosed. Lastly,

any group can file suit to challenge the constitutionality of the application of Section 201’s

disclosure provisions to their contributors based on a showing such as “threats, harassment,

or reprisals from either government officials or private parties.” Buckley, 424 U.S. at 74. 

In conclusion, the Court finds Section 201 constitutional on its face, with the

exception of subsection (5), which the Court determines to be broader than necessary to

achieve the legitimate governmental interest at stake because of its inclusion of future

contracts for electioneering communications. For that reason, the Court severs subsection

(5) and finds the remainder of Section 201 constitutional.
81 Although Plaintiffs ask for judgment as to BCRA’s Section 211, described supra,

at oral argument they stated that they were not challenging the provision. See Tr. at 341-42

(Judge Henderson: Mr. Starr, I’ve got down that you all are challenging [Section] 211. Am

I wrong about that? . . . . Baran: We are not challenging section 211. . .). Furthermore, other

than a description of the provision, McConnell Br. at 82, Plaintiffs’ briefs are silent on the

provision.

82 In addition, the Court observes that Plaintiffs’ arguments blur Section 202’s

provisions with those of Sections 201 and 214, making the Court’s task of discerning and

addressing their arguments more difficult.

138

Sections 202, 212, and 21481

1. Section 202

Section 202 is challenged by the Chamber of Commerce, NAM, and the McConnell

Plaintiffs. Plaintiffs’ arguments with regard to Section 202 relate to those made with respect

to Sections 201 and 214.82 For example, Plaintiffs argue that the definition of “electioneering

communication” is unconstitutional, and for that reason Section 202 must also be found

unconstitutional. Chamber/NAM Br. at 12; McConnell Br. at 83 n.42. As this argument was

addressed and rejected in this Court’s examination of Section 201’s definition of

“electioneering communication,” it is rejected here as well.

Plaintiffs also contend that “the First Amendment limits the coordination concept to

express advocacy,” and for that reason Section 202 should be found unconstitutional.

Chamber/NAM Br. at 12. Although Plaintiffs cite to FEC Commissioner Smith for support,

id., this view has been rejected by courts in this Circuit. See Orloski v. FEC, 795 F.2d 156,

167 (D.C. Cir. 1986) (finding the “express advocacy” limitation “not constitutionally

required for those statutory provisions limiting contributions”); Christian Coalition, 52 F.
139

Supp. 2d at 86-87 & n.50 (finding the argument that “the ‘express advocacy’ limitation must

apply to expressive coordinated expenditures” to be “untenable” in light of Orloski and

Buckley). 

Finally, the AFL-CIO contends that “the BCRA § 202 ban on coordinated

‘electioneering communications’ inevitably will criminalize efforts by the AFL-CIO to

coordinate legislative public advocacy with Members of Congress, and interfere with

ordinary and necessary lobbying contacts and the AFL-CIO’s use of them to plan broadcast

and other advocacy. For that reason alone, § 202 violates the First Amendment.” AFL-CIO

Br. at 14 (citing to the Declaration of Gerald M. Shea ¶¶ 57-59). The Court notes first that

Section 202 bans nothing. What the Court presumes the AFL-CIO complains of is the effect

of Section 202 on some entities as read in conjunction with BCRA Section 203. This issue

is dealt with in this Court’s examination of Section 203. The group’s allegation that Section

202 will criminalize AFL-CIO contacts with Members of Congress and subsequent advocacy

activities is conclusory and is asserted without any legal support. Similarly, the declaration

of Gerald M. Shea, the AFL-CIO’s Assistant to the President for Governmental Affairs, does

nothing to help the Court discern the legal basis for its argument. Mr. Shea states that “[a]ny

legal restrictions on the ability of an organization like the AFL-CIO to coordinate legislative

and policy communications and activities with federal officeholders who happen to be

candidates could substantially interfere with our ability to maintain ordinary and necessary

working relationships with Members of Congress and their staffs.” Shea Decl. ¶ 58. The
83 In the Court’s discussion of Section 214, infra, it is noted that the regulations

contain an explicit “safe harbor for responses to inquiries about legislative or policy issues.”

See Final Rules; Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 455 (Jan. 3,

2003) (to be codified at 11 C.F.R. § 109.21(f).

140

fact that Mr. Shea believes that the AFL-CIO’s current activities may be affected by Section

202 does not provide the Court with a legal basis for invalidating the provision.

Furthermore, to the extent that the AFL-CIO challenges the scope of activities covered by

BCRA’s definition of “coordination,” the Court finds, infra, that such arguments are not ripe

given the statutory construction of Section 214 and the recent promulgation of final

regulations on coordination by the FEC.83

The Court therefore finds that Plaintiffs’ arguments are unavailing and the Court has

been presented with no basis for finding Section 202 unconstitutional.

2. Section 212

Section 212 is challenged by the AFL-CIO and the McConnell Plaintiffs. Plaintiffs

object to Section 212 on the grounds that it requires disclosure of not only actual

expenditures, but also contracts to make independent expenditures. See McConnell Br. at

56 n.22; AFL-CIO Br. at 14-17. This advance disclosure, Plaintiffs argue, “serve[s] no

governmental interest and will chill the exercise of free speech by forcing groups . . . to

disclose ongoing and confidential political strategies and decision-making processes, and by

giving adversaries the opportunity to try to thwart broadcasts or counter them with their own
84 As they did for Section 201, McConnell Plaintiffs, the Chamber of Commerce and

NAM make a passing suggestion that Section 212 might constitute a “prior restraint” in

violation of the First Amendment. The Court addresses this argument in its discussion of

Section 201. See supra note 69.

141

messages.” AFL-CIO Br. at 16.84

 

A Court may not entertain a suit that is not ripe for review. The basic rationale behind

the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements over administrative policies, and also

to protect the agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, Califano v. Sanders, 430

U.S. 99 (1977). Furthermore, “[t]he power of courts . . . to pass upon the constitutionality

of acts of Congress arises only when the interests of the litigants require the use of this

judicial authority for their protection against actual interference. A hypothetical threat is not

enough.” United Public Workers of America v. Mitchell, 330 U.S. 75, 89-90 (1946); see also

id. at 90 n.22 (“It has long been this Court’s ‘considered practice not to decide abstract,

hypothetical or contingent questions, . . . or to decide any constitutional question in advance

of the necessity for its decision, . . . or to formulate a rule of constitutional law broader than

is required by the precise facts to which it is to be applied, . . . or to decide any constitutional

question except with reference to the particular facts to which it is to be applied . . . .’”)

(citing Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945)). In situations
142

where a statute is challenged on First Amendment grounds, the Supreme Court has found that

litigants need not wait for actual enforcement if the existence of the law would chill the

exercise of First Amendment rights “even without an actual prosecution.” Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). However, in those cases, plaintiffs must

“allege[] an actual and well-founded fear that the law will be enforced against them” in order

to assuage the troubling aspects of “the preenforcement nature of [such] suits.” Id; see also

Wisconsin Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir. 1998) (Easterbrook,

J.) (observing that if a group’s concern that a law will be enforced is not well-founded,

“Article III of the Constitution precludes a federal court from ruling.”), cert. denied, 525 U.S.

873 (1998); Nat’l Treasury Employees Union v. Kurtz, 600 F.2d 984, 988 (D.C. Cir. 1979)

(“[E]ven where allegations of unconstitutionality on the face of a regulation are made, a

concrete factual dispute is required to make the case justiciable.”); Nat’l Student Ass’n v.

Hershey, 412 F.2d 1103, 1113-14 (D.C. Cir. 1969) (“[W]e are not persuaded that every

plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby

established a case or controversy.”). 

The Court finds that Plaintiffs’ challenge to Section 212 is not ripe for review. At the

time of briefing in this case, the FEC had proposed regulations that required disclosure only

after independent advertisements have been “publicly disseminated.” These proposals were

recently promulgated as final regulations. See BCRA Reporting; Coordinated and

Independent Expenditures; Final Rules, 68 Fed. Reg. 404, 452 (Jan. 3, 2003) (to be codified
85 The regulations provide in part: 

The person making the independent expenditures [more than 20 days before

an election] aggregating $10,000 or more must ensure that the Commission

receives the report or statement by 11:59 p.m. Eastern Standard/Daylight Time

on the second day following the date on which a communication is publicly

distributed or otherwise publicly disseminated. . . .

Every person making, after the 20th day, but more than 24 hours before 12:01

a.m. of the day of an election, independent expenditures aggregating $1,000

or more with respect to a given election must report those independent

expenditures and ensure that the Commission receives the report or signed

statement by 11:59 p.m. Eastern Standard/Daylight Time on the day following

the date on which a communication is publicly distributed or otherwise

publicly disseminated. 

68 Fed. Reg. at 452 (to be codified at 11 C.F.R. § 109.10(c), (d)) (emphasis added).

143

at 11 C.F.R. § 109.10).85 This fact makes the challenge unfit for judicial resolution, as the

regulations provide Plaintiffs with the exact remedy they seek: the FEC will not require

disclosure of independent express advocacy expenditures prior to their “public[]

disseminat[ion].” This situation presents the Court with the question Judge Easterbrook

posed in Wisconsin Right to Life: “How can a suit present a ‘case or controversy’ when all

the litigants are on the same side?” Wisconsin Right to Life, 138 F.3d at 1185.

This conclusion is bolstered by the decisions of other courts faced with similar

circumstances. For example, the Seventh Circuit Court of Appeals rejected a group’s claim

that it had a “well-founded” fear of prosecution under Wisconsin campaign finance laws,

where an advisory opinion of the Attorney General of Wisconsin and the Election Board’s

regulations codified the interpretation of the law the group sought. Wisconsin Right to Life,

138 F.3d at 1185-86; see also Citizens for Responsible Gov’t State Political Action Comm.
144

v. Davidson, 236 F.3d 1174, 1193 (10th Cir. 2000) (describing the Wisconsin Right to Life

holding and distinguishing the case from the one before it, which lacked “such administrative

regulations”). Similarly, in Shoemaker v. Handel, the Third Circuit Court of Appeals upheld

the lower court’s determination that amended regulations, put into effect before becoming

final, cured the challengers’ privacy concerns, and thus made “[t]heir privacy contentions .

. . not ripe for adjudication.” Shoemaker v. Handel, 795 F.2d 1136, 1144 (3d Cir. 1986), cert.

denied, 479 U.S. 986 (1986). There was no need to enforce the amendments through

injunctive or declaratory relief, because “[i]f the Commission cease[d] to comply with the

proposed confidentiality rules, the [challengers could] return to court with a new lawsuit.”

Id. 

Plaintiffs do not contest the import of the regulations. Instead, Plaintiff AFL-CIO

argues that the FEC regulations do not remedy BCRA’s alleged constitutional defect, as the

regulations “may not be approved by Congress[,] [a]nd there is nothing to prevent the

Commission itself from reversing its position as soon as this litigation is over, as part of a

litigation settlement or independently.” AFL-CIO Reply at 10; see also AFL-CIO Br. at 17

n.16 (“[G]iven the statutory text at issue plaintiffs have no assurance as to how the FEC will

interpret or enforce it in the future.”). These uncertainties amount to a “hypothetical threat”

which the Supreme Court has stated “is not enough” to warrant judicial consideration.

United Public Workers of America, 330 U.S. at 89-90. Should this hypothetical threat

manifest itself as a “concrete factual dispute,” Nat’l Treasury Employees Union, 600 F.2d
145

at 988, nothing prevents Plaintiffs from “return[ing] to court with a new lawsuit,”

Shoemaker, 795 F.2d at 1144.

As Plaintiffs have presented “a controversy that has not yet arisen and may never

arise,” Wisconsin Right to Life, 138 F.3d at 1187-88, the Court lacks jurisdiction to resolve

their challenge to Section 212 at this time.

3. Section 214

Section 214 is challenged by the McConnell Plaintiffs, the Chamber of Commerce,

NAM, the RNC and the AFL-CIO. Plaintiffs’ basic argument is that Section 214, “[b]y

repealing the FEC’s current regulation and failing to supply any clear statutory definition of

what constitutes prohibited coordination, . . . will chill First Amendment speech and

association.” Chamber/NAM Br. at 11; see also ACLU Br. at 19-20; AFL-CIO Br. at 13

(“BCRA’s vague and overbroad coordination standards will inevitably spur . . . wide-ranging

and burdensome investigations” by the FEC.). Plaintiffs also charge that the directive of

Section 214(c) that “‘agreement or formal collaboration’ not be a prerequisite to considering

an expenditure ‘coordinated,’ . . . exceeds the constitutional bounds established in Buckley.”

McConnell Br. at 83; see also Chamber/NAM Opp’n at 8; RNC Br. at 72 (Section 214 “can

only be understood as an impermissible effort to overrule this court’s decision in FEC v.

Christian Coalition . . . which warned against overbroad definitions of ‘coordination.’”). The

Chamber of Commerce and NAM, in their Opposition brief, argue that Section 214(a)(2), by

classifying coordinated expenditures with parties as contributions, will “chill both party
86 The Court notes at this juncture that Plaintiffs’ Section 214 arguments, especially

those involving Defendants’ justiciability arguments, were sparse and in many instances

difficult to discern. Although the Court understands that the page limitations imposed on the

parties may have been a contributing factor, the lack of clarity has made the Court’s task

more difficult.

87 For the sake of clarity, the Court points out that contrary to Plaintiffs’ description,

Section 214(a) does not establish a “ban” on coordination, Chamber/NAM at 8, or a “year

round prohibition on all communications made by a corporation,” ACLU Br. at 20. Section

214(a) classifies such contacts as contributions, but does not prevent coordination from

taking place. 

146

contacts, and contacts with legislators,” and that Section 214(d) expands the definition of

what may constitute a coordinated contribution or expenditure. Chamber/NAM Opp’n at 8.86

a. Section 214(a)

Under Section 214(a)(2), expenditures by a person, other than a candidate or a

candidate’s authorized committee, made in “cooperation, consultation, or concert with, or at

the request or suggestion of, a national, State or local committee of a political party,” are

considered to be contributions to those party committees. BCRA § 214(a)(2); FECA §

315(a)(7)(B)(ii); 2 U.S.C. § 441a(a)(7)(B)(ii).87 As noted supra, this same definition has

been applied to expenditures coordinated with political candidates for over 25 years and was

recently found by the Supreme Court to apply to political party expenditures. See 2 U.S.C.

§ 441(a)(7)(B)(i); Colorado II, 533 U.S. at 467.

Plaintiffs argue that the definition of coordination in Section 214(a) is

“unconstitutionally vague.” McConnell Br. at 85 n.44. This lack of precision, Plaintiffs

allege, violates the First Amendment’s “demand[] that the conduct that constitutes
88 The Chamber of Commerce and NAM also allege that regulations cannot save

Section 214(a) 

for four key reasons: (i) some unconstitutional aspects such as its inclusion of

‘electioneering communication’ are clearly mandated and are beyond the

FEC’s power to change; (ii) the vagueness as to what conduct may constitute

coordination, and hence make future speech unlawful, is chilling association

and petitioning activities right now; and [sic] (iii) there is no assurance that the

FEC will be able to agree on new regulations at all, [sic] and (iv) there is no

assurance that any regulations that may be adopted will survive Congressional

and judicial review.

Chamber/NAM Br. at 13. These arguments can be disposed of with expedition. First, the

Court does not understand how Section 214(a), on its face, includes “electioneering

communication” and Plaintiffs have not explained their statement. Second, alleged chilling

of rights incurred prior to the promulgation of the FEC’s regulations, as well as the

uncertainty over whether the FEC would be able to agree on new regulations, are rendered

moot by the promulgation of the final regulations in early January 2003. FECA also provides

protection for those who act in good faith reliance on FEC regulations. See 2 U.S.C. §

438(e). Finally, the possibility that the regulations may be struck down by Congress or a

court is the type of speculative injury that does not rise to the level of a present case or

controversy required for Article III standing. See infra at 155.

147

coordination be precisely, objectively, and narrowly defined,” and leaves citizens unsure of

what contact they may have with political parties without having future speech regulated as

“coordinated.” Chamber/NAM at 12. Plaintiffs discount the fact that BCRA orders the

promulgation of clarifying regulations because regulations are “subject to the ebb and flow

of administrative practice,” and speakers “will thus be forced to ‘steer far wider of the

unlawful zone than if the boundaries of the forbidden areas were clearly marked.’” Id.

(quoting Buckley, 424 U.S. at 41 n.48).88 Finally, Plaintiffs maintain that the existence of an

“agreement” is a constitutional prerequisite to finding an expenditure to be “coordinated”
89 Although Plaintiffs have not directed this argument specifically at Section 214(a)

(it is directed more explicitly at Section 214(c)), it is a central theme of the McConnell

Plaintiffs’ briefing and the Court presumes that they intend for it to be applied to Section

214(a) as well. 

90 The regulations promulgated by the FEC define coordinated communications as

those not paid for by the candidate or the political party, that meet one content and one

conduct standard. Final Rules; Coordinated and Independent Expenditures, 68 Fed. Reg.

421, 453 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21). The conduct standards

include: (1) communications made, produced, or distributed at the request or suggestion of

the candidate or party, or at the request or suggestion of a payor who receives the candidate

or party’s assent; (2) material involvement by the candidate or party in decisions regarding

the content, intended audience, means or mode, media outlet used, the timing or frequency,

or the size or prominence of the communication; (3) one or more substantial discussions

about the communication between the payor and the candidate clearly identified in the

(continued...)

148

with political parties.89 The Court analyzes each concern in turn.

1) Vagueness

As the Court noted above, the campaign finance system has been functioning for over

25 years despite the presence of the very same “vague” language to which Plaintiffs object.

See 2 U.S.C. § 441a(a)(7)(B)(i). Plaintiffs have provided no explanation as to why the

application of this coordination formula to the context of political parties chills political

speech any more than when applied to expenditures coordinated with political candidates.

Furthermore, the Court notes that the FEC’s regulations have now been promulgated in final

form. It is therefore possible that many, perhaps even all, of Plaintiffs’ vagueness concerns

have been remedied by the regulations’ contents. See Chamber/NAM Br. at 13 (stating that

while the FEC’s now-repealed regulations on coordination “did not solve all the vagueness

problems, it took useful steps toward alleviating them”).90 Although Plaintiffs discount the
90(...continued)

communication which concern the candidate’s or political party committee’s campaign plans,

projects, activities, or needs that are material to the creation, production or distribution of the

communication. Id. at 454. The regulation also creates a safe harbor for responses to

inquiries about legislative or policy issues. Id. at 455. The content standards can be found

at 68 Fed. Reg. 421, 453 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21(c)).

91 The statute provides in part:

Not later than 60 days after the Commission receives from a person a complete

written request concerning the application of [FECA] . . . or a rule or

regulation prescribed by the [FEC], with respect to a specific transaction or

activity by the person, the [FEC] shall render a written advisory opinion

relating to such transaction or activity to the person.

2 U.S.C. § 437f(a)(1) (emphasis added). 

149

value of such regulations because of the “ebb and flow of administrative practice,” they

provide no support for their theory that laws restricting speech cannot be shaped by

regulations because of the nature of administrative practices. In addition, as described in

more detail below, see infra at 167, any issues arising from the enforcement of these

regulations can be challenged via lawsuit under the Administrative Procedure Act (APA),

or clarified through the advisory opinion procedure codified at 2 U.S.C. § 437f.91

2) Agreement

The Court addresses next Plaintiffs’ argument that Section 214(a) violates the

Constitution because it does not require the existence of an “agreement” as a predicate to the

finding of coordination. Plaintiffs cite to four cases in support of their theory that an

agreement is required for an expenditure to be coordinated. The Court addresses each in

turn, finding that none support Plaintiffs’ argument. 

In Buckley, the Supreme Court found that Congress could limit coordinated
150

expenditures to “prevent attempts to circumvent [FECA] through prearranged or coordinated

expenditures amounting to disguised contributions.” Buckley, 424 U.S. at 47. In rejecting

FECA’s limitation on independent expenditures, the Supreme Court distinguished

independent from coordinated expenditures, noting that expenditures “made totally

independently of the candidate and his campaign . . . . may well provide little assistance to

the candidate’s campaign and indeed may prove counterproductive.” Id. (emphasis added).

The Supreme Court noted that “[t]he absence of prearrangement and coordination of an

expenditure with the candidate . . . not only undermines the value of the expenditure to the

candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for

improper commitments from the candidate.” Buckley, 424 U.S. at 47. The coordinated

expenditure provision Buckley upheld defined coordinated expenditures as those “authorized

or requested by the candidate, an authorized committee of the candidate, or an agent of the

candidate.” Id. at 47 n.53 (quoting FECA § 608(c)(2)(B)). The Supreme Court cited to the

House and Senate reports, especially the more detailed Senate report which included the

following “example illustrating the distinction between ‘authorized or requested’

expenditures . . . and independent expenditures”:

“(A) person might purchase billboard advertisements endorsing a candidate.

If he does so completely on his own, and not at the request or suggestion of the

candidate or his agent’s (sic) that would constitute an ‘independent

expenditure on behalf of a candidate’ under section 614(c) of the bill. The

person making the expenditure would have to report it as such. 

“However, if the advertisement was placed in cooperation with the candidate’s

campaign organization, then the amount would constitute a gift by the

supporter and an expenditure by the candidate just as if there had been a direct
151

contribution enabling the candidate to place the advertisement himself. It

would be so reported by both.”

Id. (quoting S.Rep. No. 93- 689, p. 18 (1974), U.S. Code Cong. & Admin. News 1974, p.

5604) (alteration in original). Based on this guidance, the Supreme Court found that “the

‘authorized or requested’ standard of the Act operates to treat all expenditures placed in

cooperation with or with the consent of a candidate, his agents, or an authorized committee

of the candidate as contributions.” Id. 

In Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996)

(“Colorado I”), the Supreme Court found that an advertisement made by a political party was

not a coordinated expenditure, in part because of “uncontroverted evidence that this

advertising campaign was developed by the Colorado Party independently and not pursuant

to any general or particular understanding with a candidate.” Colorado I, 518 U.S. at 614

(plurality opinion) (“[W]e therefore treat the expenditure, for constitutional purposes, as an

‘independent’ expenditure, not an indirect campaign contribution.”). 

This District Court grappled with the troublesome First Amendment line between

coordinated and independent expenditures in FEC v. Christian Coalition, 52 F. Supp. 2d 45

(D.D.C. 1999). In her decision, which was not subjected to appellate review, Judge Joyce

Hens Green explained:

This Court is bound by both the result and the reasoning of Buckley, even

when they point in different directions. While Buckley confidently assured that

coordinated expenditures fell within the Act’s limits on contributions, it also

reasoned that spending money on one’s own political speech is an act entitled

to constitutional protection of the highest order. Expressive coordinated
152

expenditures bear certain hallmarks of a cash contribution but also contain the

highly-valued political speech of the spender. I take from Buckley and its

progeny the directive to tread carefully, acknowledging that considerable

coordination will convert an expressive expenditure into a contribution but that

the spender should not be deemed to forfeit First Amendment protections for

her own speech merely by having engaged in some consultations or

coordination with a federal candidate.

Christian Coalition, 52 F. Supp. 2d at 91 (citations omitted). In addressing “coordination as

it applies to expressive coordinated expenditures by corporations,” id., Judge Green noted

that “[t]he fact that the candidate has requested or suggested that a spender engage in certain

speech indicates that the speech is valuable to the candidate, giving such expenditures

sufficient contribution-like qualities to fall within the Act’s prohibition on contributions.”

Id. at 92. However, the absence of such overtures would not, in Judge Green’s view, prevent

an expenditure from being coordinated.

In the absence of a request or suggestion from the campaign, an expressive

expenditure becomes “coordinated” where the candidate or her agents can

exercise control over, or where there has been substantial discussion or

negotiation between the campaign and the spender over, a communication’s:

(1) contents; (2) timing; (3) location, mode, or intended audience (e.g., choice

between newspaper or radio advertisement); or (4) “volume” (e.g., number of

copies of printed materials or frequency of media spots). Substantial

discussion or negotiation is such that the candidate and spender emerge as

partners or joint venturers in the expressive expenditure, but the candidate and

spender need not be equal partners. This standard limits § 441b’s contribution

prohibition on expressive coordinated expenditures to those in which the

candidate has taken a sufficient interest to demonstrate that the expenditure is

perceived as valuable for meeting the campaign’s needs or wants.

Id. Judge Green acknowledged that this standard still left “room for factual dispute,” which

in turn could “chill some speech.” Id. But such deficiencies were deemed acceptable given
153

that “expressive coordinated expenditures present real dangers to the integrity of the electoral

process.” Id. 

In Colorado II, the Supreme Court expounded on the difficulty in determining the

point at which an expenditure becomes a coordinated expenditure. The Supreme Court also

commented on the functional approach which Congress had adopted, and the Buckley Court

accepted, to balance First Amendment rights and the state’s interest in preventing campaign

finance corruption.

The First Amendment line between spending and donating is easy to draw

when it falls between independent expenditures by individuals or political

action committees (PACs) without any candidate’s approval (or wink or nod),

and contributions in the form of cash gifts to candidates. But facts speak less

clearly once the independence of the spending cannot be taken for granted, and

money spent by an individual or PAC according to an arrangement with a

candidate is therefore harder to classify. As already seen, Congress drew a

functional, not a formal, line between contributions and expenditures when it

provided that coordinated expenditures by individuals and nonparty groups are

subject to the Act’s contribution limits, 2 U.S.C. § 441a(a)(7)(B)(i). In

Buckley, the Court acknowledged Congress’s functional classification, and

observed that treating coordinated expenditures as contributions “prevent[s]

attempts to circumvent the Act through prearranged or coordinated

expenditures amounting to disguised contributions.” Buckley, in fact,

enhanced the significance of this functional treatment by striking down

independent expenditure limits on First Amendment grounds while upholding

limitations on contributions (by individuals and nonparty groups), as defined

to include coordinated expenditures.

Colorado II, 533 U.S. at 442-443 (citations omitted). Also, in that case, the Supreme Court

found that “coordinated spending . . . covers a spectrum of activity.” Id. at 445. 

This Court agrees that “First Amendment clarity demands a definition of

‘coordination’ that provides the clearest possible guidance to candidates and constituents,
92 Defendants offered this hypothetical to illustrate the type of coordination the

“request or suggestion” standard is intended to cover:

A candidate suggests to a wealthy individual, “If you want to help, you might finance

some political advertisements advocating my election”; the individual does not reply,

but a week later, buys $100,000 worth of air time to advocate the candidate’s election.

Gov’t Br. at 185. According to the Chamber of Commerce, this hypothetical “is realistic .

. . . Candidates and their parties routinely make general requests for public support.”

Chamber/NAM Opp’n at 6. 

154

while balancing the Government’s compelling interest in preventing corruption of the

electoral process with fundamental First Amendment rights to engage in political speech and

political association.” Christian Coalition, 52 F. Supp. 2d at 91. However, the Court finds

nothing in the cited precedent, or Plaintiffs’ arguments, demanding that for an expenditure

to be coordinated there must be an agreement. The Court’s reading of these cases suggests

the very opposite. At the very least, the cases state that substantive requests and suggestions,

or “wink or nod” arrangements, can render subsequent expenditures to be “coordinated,” a

standard that does not equate to agreement.92 Therefore, the Court rejects the argument that

agreements are a constitutional prerequisite to the finding that an expenditure is coordinated,

and finds that Plaintiffs have not demonstrated that Section 214(a) violates the Constitution.

b. Section 214(b)

Section 214(b) repealed the FEC regulations on coordination in effect at the time

BCRA was enacted. BCRA § 214(b). Plaintiffs concede that Congress has the power to

repeal the regulations. What Plaintiffs argue, however, is that “Congress had a duty to

provide a narrow, precise, and objective definition for the coordination concept” but failed
155

to do so and “by repealing the FEC’s regulatory definition, Congress substantially aggravated

the constitutional violation.” Chamber/NAM Br. at 13 n. 6. Since the FEC promulgated

regulations on January 3, 2003, this “aggravation” claim is moot.

c. Section 214(c)

Because Defendants argue that Plaintiffs’ challenge to Section 214(c) is

nonjusticiable, Gov’t Br. at 183-85; Int. Br. at 139-40, the Court will address this issue first

as its resolution may preclude consideration of the merits of the Plaintiffs’ other arguments.

Preliminarily, the Court notes that BCRA provides this Court with jurisdiction to hear “any

action brought for declaratory or injunctive relief to challenge the constitutionality of any

provision of this Act or any amendment made by this Act,” and instructs it to “expedite to

the greatest possible extent the disposition of the action.” BCRA § 403; 2 U.S.C. § 437h

note. This grant does not extend to the consideration of FEC regulations, and it does not

permit the Court to go beyond its Article III powers to address claims that are nonjusticiable.

Clark v. Valeo, 559 F.2d 642, 650 n. 11 (D.C. Cir. 1977) (“To the extent [the dissent’s]

language may be read as suggesting a view that Congress may ‘command’ the judiciary to

act contrary to the rules relative to ripeness the Supreme Court has developed ‘for its own

governance in the cases confessedly within its jurisdiction,’ we respectfully disagree.”)

(citations omitted). Cognizant of its authority, the Court now turns to each of Defendants’

justiciability claims.

1) Article III Standing
156

Plaintiffs have the burden of establishing standing to bring their suit by demonstrating

that they have: (1) suffered an “injury in fact;” (2) which is “fairly traceable to the conduct

complained of;” and (3) is capable of judicial redress. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). In the First Amendment context, the standing requirements are

somewhat relaxed. Parties have

standing to challenge a statute on grounds that it is facially overbroad,

regardless of whether [their] own conduct could be regulated by a more

narrowly drawn statute, because of the danger of tolerating, in the area of First

Amendment freedoms, the existence of a penal statute susceptible of sweeping

and improper application. 

Of course, in order to have standing, an individual must present more than

allegations of a subjective chill. There must be a claim of specific present

objective harm or a threat of specific future harm. 

Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975) (citation and internal quotation marks

omitted).

In terms of the “injury in fact” prong, it is true that Plaintiffs have “not alleged any

concrete and particularized injury from [Section] 214(c)’s instructions to the Commission to

promulgate a new regulation.” Gov’t Br. at 184. However, Bigelow instructs that Plaintiffs

do not have to allege a particularized injury, they must only show a specific objective harm.

Bigelow, 421 U.S. at 816-17. Plaintiffs allege that the Constitution requires an agreement

before an expenditure may be considered coordinated. McConnell Br. at 84; Chamber/NAM

Opp’n at 8 n. 10 (stating that Section 214(c) “fairly read, rejects the constitutional holding”

that the “First Amendment demanded a narrow agreement standard of coordination”). The

fact that Section 214(c) directs that the FEC’s regulations on coordination not require
93 Plaintiffs, despite purporting to have standing to challenge Section 214(c), have not

clearly articulated the basis for their position. This theory represents what the Court has

gleaned from their terse briefings. See Chamber/NAM Opp’n at 7-8; Chamber/NAM Reply

at 7-10; McConnell Opp’n at 53 (“For reasons discussed fully in the submission of the

Chamber of Commerce Plaintiffs . . . this assertion [that plaintiffs’ coordination arguments

are not justiciable at this time] are meritless.”).

94 McConnell Plaintiffs argue that the language of Section 214(c) violates the

Constitution because it does not require “some form of agreement with the candidate [to] be

present to find coordination. BCRA, of course, forbids the FEC from requiring that any sort

of agreement – formal or otherwise – be required.” McConnell Opp’n at 54 n.26. The Court

disagrees with Plaintiffs, interpreting Section 214(c) under the doctrine of noscitur a sociis.

“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an

inescapable rule, is often wisely applied where a word is capable of many meanings in order

to avoid the giving of unintended breadth to the Acts of Congress.” Jareki v. G.D. Searle &

Co., 367 U.S. 303, 307 (1961). Given that “agreement” in Section 214(c) is immediately

followed by the words “or formal collaboration,” narrows the Court’s reading of the term to

cover formal agreements. This interpretation also appears to match the intent of Congress.

See 148 Cong. Rec. S2144 (daily ed. Mar. 20, 2002) (Sen. Russ Feingold) (“Unfortunately,

based on a single district court decision, the Federal Election Commission’s current

regulation defining when general public political communications funded by outside groups

are considered coordinated with candidates or parties fails to account for certain types of

coordination that may well occur in real-world campaigns. The FEC regulation is premised

on a very narrowly defined concept of ‘collaboration or agreement’ between outside groups

and candidates or parties. This current FEC regulation fails to cover a range of de facto and

informal coordination between outside groups and candidates or parties that, if permitted,

could frustrate the purposes of the bill.”).

157

“agreement or formal collaboration,” from Plaintiffs’ perspective, presents a specific future

harm of impermissibly overbroad regulations. McConnell Opp’n at 53 n.24 (arguing that

“since” no constitutional regulation consistent with BCRA can be promulgated (because of

the statute’s disavowal of an ‘agreement’ standard)” it would be futile to delay “litigation

until regulations are promulgated, litigation is appropriate now”).93 This argument was

addressed above and found to be inconsistent with the holdings of Buckley and its progeny.94
95 The AFL-CIO, the Chamber of Commerce and NAM assert that “BCRA’s vague

and overbroad coordination standards will inevitably spur more . . . wide-ranging and

burdensome investigations.” AFL-CIO Br. at 13; Chamber/NAM at 14 (“[T]he Chamber and

NAM[] know from painful, first-hand experience how a vague and overbroad concept of

‘coordination’ permits unfounded charges and investigations that seriously burden and chill

participation in legislative initiatives.”) These Plaintiffs point to the FEC’s investigations

into their broadcasts made in 1995 and 1996 (the Chamber of Commerce’s advertisements

were run in response to those aired by the AFL-CIO) to support this proposition. The Court

finds a harm that may be caused by potential future investigations to be the type of

speculative injury Lujan rejects as a basis for standing. Furthermore, the Court notes that the

regulatory regime under which these investigations were conducted was far broader than that

which BCRA appears to endorse. See Christian Coalition, 52 F. Supp. 2d at 89-91 (rejecting

the FEC’s “insider trading” or “conspiracy” standard for coordination). The regulations in

place prior to 2000 considered expenditures to be coordinated when they were “[m]ade by

or through any person who is, or has been, authorized to raise or expend funds, who is, or

has been, an officer of an authorized committee, or who is, or has been, receiving any form

of compensation or reimbursement from the candidate, the candidate’s committee or agent.”

11 C.F.R. § 109.1(b)(4)(i)(B) (1999 ed.) (repealed 2001) (emphasis added). 

158

Therefore, Plaintiffs’ allegation that they will be injured by regulations which by

Congressional direction will be constitutionally overbroad, is not an injury-in-fact.95 

Even if this Court were to find that Plaintiffs have alleged an injury-in-fact, Plaintiffs

would still lack standing to bring their Section 214(c) challenge because their claim lacks

redressability. To establish standing, Plaintiffs are required to show that it is “likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Bennett v. Spear, 520 U.S. 154, 167 (1997). Even if this Court were to strike Section 214(c)

from BCRA, other provisions dealing with coordinated expenditures to candidates and

parties would still govern and count contributions as any expenditures made at the request

or suggestion of a candidate–covering behavior which falls short of formal collaboration or
159

agreement. See 2 U.S.C. § 441a(a)(7)(B)(i), (ii). As the Court explained above in finding

Section 214(a) constitutional, there is nothing inherently unconstitutional about the

“cooperation, consultation, or concert with, or at the request or suggestion of” language

found in FECA § 441(a)(7)(B)(i) or (ii), 2 U.S.C. § 441(a)(7)(B)(i), (ii). Therefore,

Plaintiffs’ challenge to Section 214(c) cannot redress their claimed injury of having

coordination defined as something broader than an agreement.

Based on the foregoing, the Court concludes that Plaintiffs have failed to establish

the injury in fact and redressability elements required for Article III standing with regard to

their challenge to Section 214(c).

2) Ripeness

In the alternative, the Court examines Defendants’ assertion that Plaintiffs’ Section

214(c) claims are not ripe for judicial review at this time. Defendants maintain that since

Section 214(c) does not require or prohibit any actions by Plaintiffs, but merely directs the

FEC to promulgate new regulations which were not final until after briefing and oral

arguments in this case were completed, “neither the Court nor plaintiffs can know how the

revised regulations will affect plaintiffs or have any basis for evaluating whether those

regulations will contravene constitutional principles.” Gov’t. Br. at 183-84; see also Int. Br.

at 140 (“[T]here is nothing meaningful for this Court to review . . . until there is actually a

new definition in place.”). This defect, Defendants argue, renders Plaintiffs’ claims not yet

ripe.
160

It is presumed that “federal courts lack jurisdiction unless the contrary appears

affirmatively from the record,” and “[i]t is the responsibility of the complainant clearly to

allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute

and the exercise of the court’s remedial powers.” Renne v. Geary, 501 U.S. 312, 315 (1991).

In commencing the ripeness analysis, the Eighth Circuit provides guidance:

In order for a claim to be justiciable under Article III, it must be shown to be

a ripe controversy. Ripeness is peculiarly a question of timing, intended to

prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements. In short, the doctrine of

ripeness is intended to forestall judicial determinations of disputes until the

controversy is presented in clean-cut and concrete form. . . .

[The] ripeness inquiry in the context of this [First Amendment] facial

challenge . . . focuses on three elements: (1) hardship to the parties by

withholding review; (2) the chilling effect the challenged law may have on

First Amendment liberties; and (3) fitness of the controversy for judicial

review. Our ripeness inquiry is not to be applied mechanically but rather, with

flexibility.

New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499-1500 (10th Cir. 1995)

(citations and quotation marks omitted). 

Plaintiffs’ arguments focus on the first two prongs of the ripeness analysis. They

allege that Section 214 creates a situation whereby it is unclear what actions may render an

expenditure “coordinated” under BCRA. This predicament, Plaintiffs claim, chills their

speech and associational rights, which is the direct and immediate hardship they assert. See

Chamber/NAM Opp’n at 10. Since BCRA is “self-enforcing,” in that “it can be used against

people in its current form,” Plaintiffs maintain that the case is fit for judicial review. Tr. at

296 (Baran).
161

In light of the authority presented by the D.C. Circuit, the Court disagrees with

Plaintiffs and finds their challenge to Section 214(c) not ripe for review. In Martin Tractor

Co. v. FEC, a number of parties sought declaratory and injunctive relief from certain

provisions of FECA. Martin Tractor Co. v. FEC, 627 F.2d 375, 377 (D.C. Cir.), cert. denied

sub nom. Nat’l Chamber Alliance for Politics v. FEC, 449 U.S. 954 (1980). Limited to

“soliciting” its hourly employees twice a year, the Martin Tractor Company complained that

Section 441b(b)(4)(B) of FECA had restricted, in a constitutionally impermissible manner,

its ability to communicate with its hourly employees about its PAC. Id. at 382. Neither the

statute nor the regulations defined “solicit” or “solicitation.” Id. at 383. The Court of

Appeals determined, despite the vagueness of the undefined term “solicit” and the lack of

clarifying regulatory language, that “the extent of the chill induced by the statutory provision

at issue . . . is a very limited one.” Id. at 384. This conclusion was based on two factors.

First, the statute provided an “advisory opinion (AO) mechanism . . . authorized to give

advice concerning the Act’s application to specific factual situations,” and mandated that

such counsel be provided within 60 days of a request for advice. Id. 384-86. Second, the

D.C. Circuit found that the legal rights alleged by Martin Tractor were “uncertain,” id. at

386, and that unlike cases which had found ripeness in similar circumstances, the

“adversarial posture assumed by the parties and contours of their dispute” were not clear, id.

at 387. Specifically, the fact that the FEC “has said or done nothing . . . to indicate how it

construes the term ‘solicit,’” left the court “without substantial guidance to decide this case
96 Plaintiffs’ argument that Buckley should be construed as rejecting the opportunity

for AO guidance as a factor in determining ripeness is completely incorrect, and in their own

words, is “[n]onsense.” Chamber/NAM Reply at 8. Buckley found that since the AO

procedure in FECA at that time was available only to “candidates, federal officeholders, and

political committees,” the AO mechanism did “not assure that the vagueness concerns will

be remedied prior to the chilling of political discussion by individuals and groups in this or

future years.” Buckley, 424 U.S. at 41 n. 47. This is no longer the case. See Martin Tractor,

627 F.2d at 386 n.44 (explaining why Buckley rejected the AO rationale and noting that

“[b]oth of these aspects of the AO mechanism have been amended and the susceptibility of

the FECA to challenge on the grounds of vagueness has consequently been reduced.”). 

Section 437f of FECA requires the FEC to provide an advisory opinion within 60 days

of receiving a “written request concerning the application of [FECA] . . . or a rule or

regulation prescribed by the” FEC. 2 U.S.C. § 437f(a)(1). The advisory opinions may be

relied upon by the requester or any other person involved in an “identical transaction or

activity with respect to which such advisory opinion is rendered.” Id. at § 437f(c)(1). Such

persons who “act[] in good faith in accordance with the provisions and findings of such

advisory opinion, shall not, as a result of any such act, be subject to any sanction provided

by” FECA. Id. § 437f(c)(2).

Plaintiffs also assert that it is “wildly implausible” and “impractical” to believe that

the FEC could handle the thousands of AO requests they envision would result from the

Court’s decision today. Chamber/NAM Reply at 8. Whether or not there would be such an

influx of requests, and whether or not the FEC would be in a position to handle them, are not

questions before this Court and Plaintiffs have provided the Court with no basis, other than

their unsupported assertion, for finding that the AO mechanism would be unworkable for

solving coordination problems. 

162

or even to frame the constitutional issues at stake.” Id. at 387.

The situation this Court faces is virtually identical to that of Martin Tractor. Plaintiffs

here similarly complain about the chilling effect of an ambiguous term. Plaintiffs, like those

in Martin Tractor, have the option of seeking a chill-reducing AO if they fear their actions

may be construed as “coordination.”96 In addition, since briefing and oral argument in the

case occurred prior to the FEC’s promulgation of final regulations and the regulations affect

the vagueness alleged, the Court does not know the “contours of [the] dispute.” In other
163

words, the Court does not know to what extent the regulations have clarified the vagueness

Plaintiffs contend would chill their rights. Regulations in the past have clarified this very

issue, Chamber/NAM Br. at 13 (stating that the FEC’s now-repealed regulations on

coordination “took useful steps toward alleviating” vagueness problems), and it is therefore

likely that some, if not all, of Plaintiffs concerns have been addressed. For example, the

ACLU maintains that because of Section 214 it “may not be able to discuss a . . . vote or

position with a Representative or Senator if the ACLU will subsequently produce a box score

that praises or criticizes the official’s stand. This feature of BCRA acts as a continuing prior

restraint . . . .” ACLU Br. at 20. However, the FEC’s recently promulgated regulations

appear to assuage this fear, creating a safe harbor for “inquiries about legislative or policy

issues.” Final Rules; Coordinated and Independent Expenditures, 68 Fed. Reg. at 455 (Jan.

3, 2003) (to be codified at 11 C.F.R. § 109.21(f)). To decide Plaintiffs’ claims at this

juncture would entangle the Court in a dispute that has not been “presented in a clean-cut and

concrete form,” the exact situation the ripeness doctrine is designed to avoid. Gonzales, 64

F.3d at 1499.

The Chamber of Commerce and NAM seek to distinguish Martin Tractor from the

current case on its facts. Chamber/NAM Reply at 8. First, they state that “[p]laintiff there

did not claim immediate injury.” Id. This is not the case. Martin Tractor alleged that “but

for the [section] 441b restrictions and the threat of sanctions, [it] would resume the extent

and manner of communication [it] engaged in previously.” Martin Tractor, 627 F.2d at 382.
164

Second, Plaintiffs presume, based on the fact the court stated that the AO mechanism “argues

against constitutional adjudication on a barren record,” Id. at 385, that the appellants in that

case had “provided no factual record.” Chamber/NAM Reply at 8. If the Plaintiffs had

referred to the footnote immediately following the court’s statement, they would have seen

that the court meant a record bare of any indication of how the FEC planned to enforce the

provision, as opposed to a barren factual record. See Martin Tractor, 627 F.2d at 385 n.39

(citing cases holding “equitable relief inappropriate where administrative intent has not come

to fruition or is unknown” and “case ripe where pertinent regulations and AO have been

issued”) (emphasis added). Next, the Chamber of Commerce and NAM appear to suggest

that the Martin Tractor decision was the product of prudential concerns, and not an Article

III ripeness determination. Chamber/NAM Reply at 8. Although the court stated, “we find

the cases nonjusticiable as a constitutional matter and inappropriate for adjudication as a

prudential matter,” if Plaintiffs had looked at the footnote immediately following that

statement, they would have read the Court’s conclusion that “[s]ince we hold that these

appellants present no justiciable ‘case or controversy’ we need not decide or consider the

circumstances under which a court might decline for prudential reasons alone to reach the

merits of a constitutional challenge to FECA.” Martin Tractor, 627 F.2d at 378 & n.5.

Lastly, the Chamber of Commerce and NAM point out that Martin Tractor discounted

Buckley’s ripeness holding for “lack of a broad package of expedited challenges such as exist

here.” Chamber/NAM Reply at 8. The Martin Tractor court did note that the case before
97 The Court also notes that although the Martin Tractor court took Buckley’s

statement that “ripeness is peculiarly a question of timing,” Buckley, 424 U.S. at 114, to

describe the timing of that case in relation to the 1976 Presidential election, Martin Tractor,

627 F.2d at 388, a close reading of Buckley shows that the Supreme Court was referring to

developments that had taken place in “the passage of months between the time of the

decision of the Court of Appeals and our present ruling,” Buckley, 424 U.S. at 114. The

Supreme Court made its ripeness determination in the context of a separation of powers

challenge to FECA’s establishment of the FEC. Id. at 113. The Court finds that the

challenge considered here differs greatly from that Buckley faced when it conducted the

ripeness analysis described above. The separation of powers concerns raised in Buckley did

not depend on the future promulgation of regulations, but focused solely on the

constitutionality of the powers granted to the FEC. See id. at 113. The Buckley defendants

could not claim that future regulations would shape the contours of the plaintiffs’ claims.

As such, this Court finds that the Buckley ripeness determination was made under

circumstances that distinguish it from the case at bar and that its reasoning does not require

the Court to forego Article III justiciability requirements in this case.

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it provided “no similar urgency of decision . . . that outweighs the inadvisability of premature

constitutional adjudication,” although its decision was also informed by “the comparative

speed with which an advisory opinion on specific conduct can be secured.” Martin Tractor,

627 F.2d at 388.97 Accordingly, the Court finds that Martin Tractor is applicable to the

pending cases.

The cases at bar do differ from Martin Tractor, in one material respect. Unlike the

case before the Martin Tractor court, where there was no indication the FEC would ever

promulgate regulations to reduce the vagueness of the undefined term, Congress in this

instance has explicitly ordered the FEC to promulgate regulations on this very matter in an

expedited fashion, and the FEC did so on January 3, 2003. This fact argues against finding

these cases ripe for adjudication. As the Eighth Circuit explained,
98 Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional

Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), the FEC’s regulations must be

submitted to Congress and do not take effect until 60 days after Congress receives the FEC’s

report on the regulations or the rule is published in the Federal Register, whichever is later.

5 U.S.C. § 801(a)(3). The regulations were transmitted to Congress on December 18, 2002

and published in the Federal Register on January 3, 2003. Final Rules; Coordinated and

Independent Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003). Congress can veto the

(continued...)

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[m]any ripeness cases require finality of the government action that is

challenged. This requirement is intended, in part, to guard against courts

passing on the legality of actions that do not, in and of themselves, alter or

burden the rights, duties or obligations of the claimant. For example, orders

that merely embody a precursor to the later formulation of actual regulations

will, as a general rule, not support a finding of ripeness.

Gonzales, 64 F.3d at 1504 n.5 (citations omitted) (finding that, unlike the cases presented

here, since the “challenged provision itself delineates the proscribed conduct and neither

directs nor requires further administrative or legislative enactments for its effect” the case

was ripe for adjudication); see also El Dia v. Hernandez Colon, 963 F.2d 488, 496 (1st Cir.

1992) (finding the “policies that underscore the ripeness doctrine militate strongly against

granting discretionary (declaratory) relief” where the executive order challenged was “merely

a precursor to the later formulation of actual regulations”). Moreover, as long as Plaintiffs

abide by the regulations in good faith, they will not be subject to sanctions under FECA. 2

U.S.C. § 438(e) (“[A]ny person who relies upon a rule or regulation proscribed by the [FEC]

. . . and who acts in good faith in accordance with such rule or regulation, shall not, as a

result of such act, be subject to any sanction provided by [FECA].”).

The Court acknowledges that the regulations may still be vetoed by Congress98 or face
98(...continued)

regulations within 60 days by passing a joint resolution disapproving the regulations. See 5

U.S.C. § 802. 

99 Plaintiffs should also be aware that should they challenge the FEC’s regulations,

they may seek a stay from the FEC or a court to prevent the application of the rule pending

its review. 5 U.S.C. § 705. The law provides: “When an agency finds that justice so

requires, it may postpone the effective date of action taken by it, pending judicial review.

On such conditions as may be required and to the extent necessary to prevent irreparable

injury, the reviewing court, including the court to which a case may be taken on appeal from

or on application for certiorari or other writ to a reviewing court, may issue all necessary and

appropriate process to postpone the effective date of an agency action or to preserve status

or rights pending conclusion of the review proceedings.” Id.

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a court challenge. Regardless, the regulations shape the “contours” of Plaintiffs’ complaints

regarding Section 214(c). However, since the regulations are not properly before this Court,

Plaintiffs’ claims in this regard are not ripe. Again, it is possible that many, perhaps all, of

Plaintiffs’ concerns have been remedied by the recently promulgated regulations. The proper

venue for any complaints Plaintiffs believe have not been addressed by the new regulations

is not this special court, but in a single-judge court pursuant to a lawsuit brought under the

Administrative Procedure Act (APA). See BCRA § 403. Although Plaintiffs decry the

lengthy nature of suits brought under the APA, the Court lacks the jurisdiction to rule on the

regulations and cannot ignore the absence of Article III ripeness in order to provide Plaintiffs

with the forum they prefer.99

Accordingly, the Court does not reach the merits of Plaintiffs’ challenges to Section

214(c), as they are not ripe for adjudication.
100 BCRA Section 203 adds “electioneering communication” to FECA Section

441b(b)(2)’s definition of “contribution or expenditure.”

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d. Section 214(d)

In their Opposition Brief, the Chamber of Commerce and NAM claim that Section

214(d) 

specifies that coordination applies not only to a “contribution or expenditure”

in the defined sense that requires express advocacy, but “also includes any

direct or indirect payment . . . .” (emphasis added). BCRA § 214(d) extends

coordination to an “electioneering communication.” These provisions remove

express advocacy as a content standard and give no substitute.

Chamber/NAM Opp’n at 8 (emphasis in original). The Court does not find Section 214(d)

to have the effect on FECA that Plaintiffs assert. Section 214(d) amends FECA Section

441b, which limits contributions or expenditures by national banks, corporations, or labor

organizations, so that the definition of “contribution or expenditure” under that section

“includes a contribution or expenditure, as those terms are defined in section 301” of FECA,

2 U.S.C. § 431(8), (9). BCRA § 214(d); FECA § 441b(b)(2); 2 U.S.C. § 441b(b)(2). The

definitions of “contribution” and “expenditure” in FECA Section 301 have not been amended

by BCRA.100 Plaintiffs’ complaints about the definition’s inclusion of “direct or indirect

payment” are also misplaced as this provision preexisted BCRA and is therefore not subject

to this Court’s review.

Given the fact that Plaintiffs’ understanding of Section 214(d) is mistaken, the Court

has no basis upon which to review the provision, cannot fathom the nature of their claims,
101 It is not clear to the Court where the Plaintiffs find this purported requirement from

the text of Section 311.

102 JUDGE HENDERSON: . . . Jumping to 311, only because I think this is the

(continued...)

169

and therefore does not find the provision unconstitutional.

C. BCRA Title III

Section 311: Clarity Standards for Identification of Sponsors of Election-Related Advertising

Section 311 amends Section 318 of FECA, 2 U.S.C. 441d, adding details and

requirements for the identification of sponsors of political advertising. Included in the

provision is the extension of FECA’s requirements to electioneering communications, as

defined in BCRA Section 201. BCRA § 311(1); FECA § 318(a); 2 U.S.C. § 441d(a).

Pursuant to Section 318 of FECA, such communications must clearly state information about

the sponsor, 2 U.S.C. § 441d(a); Section 311 adds various requirements related to the

identification of the sponsor in the communication itself which are not challenged in the

present litigation. See BCRA § 311(2), FECA § 318(c)-(d); 2 U.S.C. § 441d(c)-(d).

Plaintiffs’ briefing on Section 311 is limited to a single sentence in a footnote in the

McConnell Plaintiffs’ Opening Brief: 

BCRA’s requirement that political ads contain information identifying the

candidate supported by the communication,101 the party responsible for the

content of the information, and/or an indication that the candidate approves the

content of the communication . . . is . . . invalid, at least when applied to

electioneering communications (and, for that matter, anything other than

express advocacy).

McConnell Pls.’ Br. at 56 n.22; see also Tr. at 303 (Baran).102 This argument is presented
102(...continued)

last time we’re going to hear from the omnibus [Plaintiffs], and I think you all

are the only ones challenging 311, and it’s not down here to be argued in Title

3 and I just want to make sure that it has been challenged. . . .

MR. BARAN: I’d have to rely on the briefs on that, Your Honor. I’m not in

a position to address that today.

TR. at 303 (Baran).

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as a corollary to Plaintiffs’ contention that “if the Court agrees that the electioneering

communications provisions cannot stand, the attendant disclosure provisions should likewise

fall, because the disclosure provisions constitute a regulation of . . . speech that the

government may not regulate in the first place. Id. at 55-56. Given that the Court finds

BCRA’s electioneering communication definition constitutional, Plaintiffs’ argument is

rejected.

V. CONCLUSION

Accordingly, the Court finds that the Paul Plaintiffs’ challenge is without merit. The

Court finds that the disclosure requirements in Section 201, with one exception, are

constitutional, as well as Sections 202, 214(a), 214(d) and 311. The Court concludes that a

challenge to Sections 212 and the remainder of Section 214 is not justiciable. 

In contrast with Judge Henderson’s characterization of our approach, we believe that

the resolution of these eleven suits required a careful and judicious review of all the

evidence, pleadings, and arguments in a fair manner to all the parties. We are satisfied that

we accomplished this goal in an as expedited a manner as possible and thereby served “the

strong public interest in election law clarity and stability.” Henderson Op. at 6 n.1. 
171

Three separate opinions by the members of this three-judge panel follow this per

curiam opinion. Given the complexity of the rulings, and the fact that not any one opinion

is fully dispositive, the opinions are presented in order of seniority of the members of this

three-judge panel. Accordingly, Judge Henderson’s opinion appears first, followed by Judge

Kollar-Kotelly’s opinion and then Judge Leon’s opinion.

 /s/ 

COLLEEN KOLLAR-KOTELLY

United States District Judge

/s/ 

RICHARD J. LEON

United States District Judge

May 1, 2003