No. 02-1756 et al. 

IN THE 

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———— 

CHAMBER OF COMMERCE OF THE UNITED STATES, NATIONAL 

ASSOCIATION OF MANUFACTURERS, AND ASSOCIATED 

BUILDERS AND CONTRACTORS, INC. et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION et al., 

Appellees. 

———— 


On Appeal from the United States 


District Court for the District of Columbia


———— 


REPLY BRIEF OF THE “BUSINESS PLAINTIFFS” 


CHAMBER OF COMMERCE OF THE UNITED 


STATES, NATIONAL ASSOCIATION OF


MANUFACTURERS, AND ASSOCIATED BUILDERS


AND CONTRACTORS, INC. 


———— 

Of counsel 

STEPHEN A. BOKAT 

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

JAN AMUNDSON


NATIONAL ASSOCIATION OF


MANUFACTURERS 

1331 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

(202) 637-3055 

August 21, 2003 

JAN WITOLD BARAN 

Counsel of Record 

THOMAS W. KIRBY


LEE E. GOODMAN


CALEB P. BURNS


WILEY REIN & FIELDING LLP


1776 K Street, N.W. 


Washington, D.C. 20006 


(202) 719-7000 


Counsel for Appellants Chamber of 

Commerce of the United States, 

National Association of 

Manufacturers, Associated 

Builders and Contractors, Inc. 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
CORPORATE DISCLOSURE STATEMENT 

The Corporate Disclosure Statement is included on page iii 

of the Business Plaintiffs’ Jurisdictional Statement. 

(i) 
TABLE OF CONTENTS 

Page 

CORPORATE DISCLOSURE STATEMENT ............. i 

TABLE OF AUTHORITIES ......................................... v 

I. DEFENDANTS DO NOT DISPUTE KEY 

ASPECTS OF THE BUSINESS PLAINTIFFS’ BRIEF. .................................................. 1 

II. FAR FROM ACHIEVING WHAT BUCKLEY 

INTENDED, DEFENDANTS’ ATTEMPT 

TO SUPPRESS ALL SPEECH LIKELY TO 

AFFECT AN ELECTION IS DIRECTLY 

CONTRARY TO BUCKLEY AND MCFL....... 3 

III. BECAUSE THE ELECTIONEERING 

COMMUNICATION STANDARD SUPPRESSES CORE SPEECH, IT IS SUBJECT 

TO STRICT SCRUTINY.................................. 7 

IV. DEFENDANTS FAIL TO SHOW THAT 

THE ELECTIONEERING COMMUNICATION PROVISIONS ARE NARROWLY 

TAILORED. ...................................................... 9 

V. 	CORPORATE SPEECH DOES NOT OVERSHADOW OTHER SPEECH DURING 

ELECTION PERIODS...................................... 13 

VI. DEFENDANTS MAKE NO SERIOUS 

ATTEMPT TO DEFEND BCRA’S BACKUP 

DEFINITION OF ELECTIONEERING 

COMMUNICATION. ....................................... 15 

VII. BCRA’S “COORDINATION” PROVISIONS 

ARE INVALID AND SUBJECT TO 

REVIEW IN THIS ACTION. ........................... 16 

(iii) 
iv 

TABLE OF CONTENTS—Continued 

Page 

A. 	BCRA’s New Provision Restricting 

Coordination With Political Parties 

Clearly Is Subject To Review Now. .......... 17 

B.	 BCRA’s Specification That Speech May 

Be Condemned As A Coordinated 

Contribution In The Absence Of Any 

Agreement Is Unconstitutional.................. 18 

CONCLUSION.............................................................. 20 
v 

TABLE OF AUTHORITIES 

CASES Page 

Austin v. Michigan Chamber of Commerce, 494


U.S. 652 (1990).................................................. 4-5 


Bridges v. California, 314 U.S. 252 (1941)........... 10


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


Colorado Republican Federal Campaign


Committee v. FEC, 518 U.S. 604 (1996) ........... 4


FEC v. Beaumont, 123 S. Ct. 2200 (2003) ............ 5


FEC v. Colorado Republican Federal Campaign 


Committee, 533 U.S. 431 (2001) ....................... 5 


FEC v. Massachusetts Citizens for Life, Inc., 479 


U.S. 238 (1986).................................................. passim


FEC v. National Conservative Political Action


Committee, 470 U.S. 480 (1985) ....................... 4 


First National Bank of Boston v. Bellotti, 435 


U.S. 765 (1977).................................................. 4 


Gentile v. State Bar of Nevada, 501 U.S. 1030


(1991)................................................................. 16 


Karhani v. Meijer, No. 03-CV-71654-DT, 2003


WL 21554338 (E.D. Mich. June 6, 2003).......... 11 


Linmark Associates, Inc. v. Township of 

Willingboro, 431 U.S. 85 (1977) ....................... 9 


Mills v. Alabama, 384 U.S. 214 (1966) ................. 8 


NAACP v. Button, 371 U.S. 415 (1963)................. 13 


San Antonio Independent School District v. 


Rodriguez, 411 U.S. 1 (1973) ............................ 10 


Speiser v. Randall, 357 U.S. 513 (1958)................ 4 


Wood v. Georgia, 370 U.S. 375 (1962) ................. 10-11 


CONSTITUTION, STATUTES, REGULATIONS 

Constitution of the United States First 

Amendment........................................................ passim 

Bipartisan Campaign Reform Act of 2002, Pub. 

L. No. 107-155, 116 Stat. 81.............................. passim 
vi 

TABLE OF AUTHORITIES—Continued 

Page 

2 U.S.C. § 441a(a).................................................. 8 

11 C.F.R. § 110.11................................................. 7 

11 C.F.R. § 114.12................................................. 5 

47 C.F.R. § 73.1212............................................... 7 

MISCELLANEOUS 

147 Cong. Rec. S2712 (daily ed. Mar. 22, 2001) .. 9 

147 Cong. Rec. S3034-35 (daily ed. Mar. 28, 

2001) .................................................................. 9 

147 Cong. Rec. S3043 (daily ed. Mar. 28, 2001) .. 4 

Annenberg Public Policy Center, Issue Advertising in the 1999-2000 Election Cycle ................. 14 
The Business Plaintiffs submit this reply to the Brief For 

The Federal Election Commission, et al. (“FECBr.”) and the 

Brief For Intervenor-Defendants Senator John McCain, et al. 

(“IntDefBr.”), collectively the “Defendants.” 

I.	 DEFENDANTS DO NOT DISPUTE KEY 

ASPECTS OF THE BUSINESS PLAINTIFFS’ 

BRIEF. 

Strikingly, Defendants do not contest most of the key 

factual premises for the challenges to the electioneering 

communication and coordination provisions presented in the 

Business Plaintiffs’ Brief (“BPBr.”).1

 For example, Defendants do not dispute that: 

• BCRA’s electioneering communication standard targets and suppresses independent speech concerning issues 

and candidates. BPBr. 34-40. 

• Business corporations are vitally affected by and 

interested in the formulation and implementation of federal 

legislation and policy and in assuring that their knowledge 

and concerns are fully and effectively communicated to the 

public and to federal officials. BPBr. 4, 16-17. 

• All Americans, including American voters and 

government officials, have a vital interest in hearing what 

business corporations have to say on the key issues of the 

day. BPBr. 4. 

• Because the electioneering communication standard 

focuses on electronic signals that do not respect political 

boundaries, the minimum 90 day blackout periods for 

mentioning candidate names in independent speech imposed 

by the primary definition of electioneering communication 

1 The Intervenor-Defendants have gratuituously cited certain confidential materials in their briefs. See, e.g., IntDefBr. 47, 51. Not one of 

the district judges, in their lengthy opinions, saw any need to quote or cite 

this material, nor did the Solicitor General in his brief. Judge KollarKotelly’s May 2, 2003, Memorandum Opinion and Order declined to 

make the material public, 251 F. Supp. 2d 919 (D.D.C. 2003), and the 

Intervenor-Defendants elected not to appeal that ruling. 
2 


will be considerably extended for tens of millions of 

Americans to half the election year or more in some cases. 

BPBr. 5, 8-10.2 

• Blackout periods mandated by the primary electioneering communication standard encompass times when 

important legislative developments often occur, and other 

major matters involving incumbent officeholders—urgently 

requiring public corporate comment—have and will occur. 

BPBr. 16-17. 

• Americans tend to be most focused upon and receptive to discussions of public policy issues in months prior to 

elections, the very periods covered by the electioneering communication blackouts.3 

• References to candidates in public speech serve 

important communicative functions independent of an 

electoral effect, such as (i) identifying bills, proposals, or 

policies; (ii) providing important and efficient cues as to the 

merits of such matters (e.g., a “Kennedy tax bill” or a 

“Gingrich tax cut”); (iii) directing public response to involved 

public leaders; and (iv) persuading. BPBr. 16-18. 

2 For example, New York City television and radio will be blacked out 

for their entire listening area by nominating events in New Jersey, 

Pennsylvania, and Connecticut; Washington, D.C., radio and television 

will be blacked out by nominating events in Maryland and Virginia. 

Users of satellite radio broadcasts and night-time clear channel AM 

broadcasts—e.g., farmers and truckers—will be blacked out much of the 

election year by nominating events throughout the multistate region 

reached by those signals. 3 The Intervenor-Defendants respond that broadcast time is more 

expensive during the pre-election period and “the airwaves are crowded 

with campaign ads.” IntDefBr. 65. True enough. It also is true that a 

location in a busy mall often is more expensive than isolated space, and it 

is crowded with other stores, including competitors. Nevertheless, many 

businesses vie for mall locations. The fact is that it is easiest to sell a 

public policy idea to the public when people are most interested in public 

policy issues. BPBr. 16. 
3 


• Participation of business corporations and their 

representatives, such as the Business Plaintiffs, in developing, 

adopting, and implementing legislation and policy requires 

extensive, long-term communication and association with 

Members of Congress and other government and political 

leaders who are candidates or political party officials. These 

legislative and policy issues also become important in federal 

campaigns. BPBr. 13-15. 

• Although BCRA’s coordination provisions make coordinated speech unlawful and potentially criminal, the present law fails to provide clear guidance as to what types of association and communication with candidates or party officials will render corporate speech coordinated. BPBr. 46-48. 

• Charges of unlawful coordination are commonly 

employed to punish and deter speech by political opponents. 

Such charges threaten serious burden and expense to the 

accused speakers, making them effective weapons. BPBr. 

23-24. 

• Business corporations and their representatives right 

now are limiting highly protected communication and association with federal officials and candidates to avoid 

burdensome charges that future corporate speech has been 

impermissibly coordinated and constitutes an unlawful 

contribution. BPBr. 29. 

II.	 FAR FROM ACHIEVING WHAT BUCKLEY 

INTENDED, DEFENDANTS’ ATTEMPT TO 

SUPPRESS ALL SPEECH LIKELY TO AFFECT 

AN ELECTION IS DIRECTLY CONTRARY TO 

BUCKLEY AND MCFL. 

Buckley v. Valeo stressed that independent public speech 

concerning issues and candidates receives the very highest 

level of First Amendment protection. 424 U.S. 1, 42, 44-45 

(1976). Buckley and subsequent cases have jealously safeguarded such independent speech, rejecting claims that it 

causes or appears to cause quid pro quo corruption or that 

such independent persuasive efforts may create constitution-
4 

ally unacceptable political debts. Buckley, 424 U.S. at 45-47, 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 

480, 497-98 (1985); Colo. Republican Fed. Campaign Comm. 

v. FEC, 518 U.S. 604, 616-18 (1996).4 Only in the very 

narrow context of speech that places itself at the heart of the 

electoral process by using explicit words to expressly 

advocate voting for or against clearly identified candidates 

has this Court allowed such speech to be suppressed. 

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

248-49 (1986) (“MCFL”) (applying express advocacy standard to burdens on corporate speech supporting candidates), 

with First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 

(1977) (independent corporate discussion of issues may not 

be suppressed). And suppression of express advocacy has 

been allowed only on the claim that permitting corporations 

to deploy immense aggregations of wealth would seriously 

distort the electoral process. See Austin v. Mich. Chamber of 

Commerce, 494 U.S. 652, 659-60 (1990).5 

4 Defendants’ claim that independent speech imposes burdens of 

gratitude that corrupt candidates is flawed. FECBr. 88-89; IntDefBr. 54-

56. Candidates generally dislike independent speech. See, e.g., 147 

Cong. Rec. S3043 (daily ed. Mar. 28, 2001) (statement of Sen. Snowe: “I 

want to control my own campaign.”). There is no evidence that independent speech is particularly likely to create gratitude. Of the wide range of 

acts that might induce gratitude, BCRA suppresses independent speech— 

the activity with the greatest claim to constitutional protection. There is 

no public perception or evidence that candidates tend to be crippled by 

gratitude for yesterday’s favors. 5 Austin’s unique holding cannot be extended beyond express advocacy. Its legal premise—that the choice of the corporate form may be 

conditioned on giving up core rights—is a classic example of an unconstitutional condition. See Speiser v. Randall, 357 U.S. 513 (1958). And the 

corporate characteristics Austin relied upon—limited liability, perpetual life, and favorable treatment of the accumulation of assets, 494 U.S. at 

658—now also characterize a wide range of other entities, including law 

firms. Wealthy individuals, including those who are identified with, and 

whose wealth derives from, corporations, e.g., Warren Buffett and Senator 

Jon Corzine, are active politically, both in supporting speech and as 
5 

Buckley treated contributions differently than independent 

speech, allowing considerably greater scope for regulation. 

424 U.S. at 20-21. This key distinction has been carefully 

maintained. See FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 440-42 (2001). The recent Beaumont 

decision, so heavily relied upon by the Defendants, 

emphasized this distinction and stressed that it was dealing 

with limits on contributions, not independent speech. FEC v. 

Beaumont, 123 S. Ct. 2200, 2207, 2210 (2003).6 

BCRA’s new electioneering communication standard goes 

far beyond this Court’s precedents, seeking to suppress a 

wide range of independent speech during much of each evennumbered year. Nevertheless, Defendants claim that the 

electioneering communication standard really does nothing 

more than achieve what Buckley originally intended. FECBr. 

81-83; IndDefBr. 61-62. The Defendants’ arguments boil 

down to: the Buckley Court really meant to allow suppression 

of all speech likely to affect an election, but it adopted a naïve 

standard that turned out to be subject to unforeseen 

circumvention. Thus, Defendants suggest that the electioneering communication provisions merely restore a degree of 

tailoring that Buckley already held to be acceptable. Id. 

This is revisionism at its worst. In fact, Buckley was 

emphatic that its express advocacy standard would not and 

was not intended to encompass all or most speech likely to 

affect a federal election. Defendants are asking this Court to 

candidates. At the same time, many campaigns now are incorporated. 

See 11 C.F.R. § 114.12. Moreover, because Austin’s rationale would not 

reach unions, which often take opposite positions from corporations, 

expanding Austin would threaten a lopsided regime Congress could not 

have intended. 6 Furthermore, in response to questions from Justice O’Connor during 

oral argument in the Beaumont case, the FEC explained that BCRA did 

not affect the statute that was directly at issue in that case. See Oral Arg. 

Tr. in No. 02-403, 2003 WL 1798493, *14. 
6 

overturn Buckley, not to restore or implement it. And they 

similarly are attacking MCFL. 

In developing the express advocacy standard, Buckley 

explained: “Candidates, especially incumbents, are intimately 

tied to public issues involving legislative proposals and 

governmental actions,” so that “[d]iscussions of those issues 

. . . tend naturally and inexorably to exert some influence on 

voting.” 424 U.S. at 42-43 (citations omitted). As a result, 

Buckley observed that there was little difference “in practical 

application” between issue advocacy and candidate advocacy, 

id. at 42, and that both types of speech were likely to affect 

elections. Buckley also recognized that persons intent on 

promoting or opposing candidates easily could craft speech 

that would do so without using explicit words of express 

advocacy. Id. at 45. Buckley said that it “would naively 

underestimate” political speakers to believe that they required 

express advocacy to craft speech that “benefited the 

candidate’s campaign.” Id. Yet, Buckley would only permit 

limited regulation of independent speech, that which used 

explicit words to expressly advocate the election or defeat of 

a clearly identified candidate. Buckley’s goal thus was not to 

regulate all or most speech likely to affect elections, but, instead, to clearly identify a narrow category of speech directly 

and unambiguously tied to an election—express advocacy. 

A decade later, MCFL reinforced these points. It quoted 

Buckley’s observation that there is little difference “in 

practical application” between discussing issues and electoral 

advocacy. 479 U.S. at 249. It said that Buckley did not seek 

to regulate all campaign advocacy, but only “more pointed 

exhortations” that employ express advocacy. Id. It stressed 

that the express advocacy standard was crafted to prevent 

“overbreadth.” Id. at 248. In short, MCFL achieved narrow 

tailoring by deliberately excluding from suppression a wide 

range of speech that it knew was likely to influence elections. 

Defendants also claim that, whatever Buckley’s intent, the 

electioneering communication standard merely restores the 
7 


tailoring that the express advocacy standard originally 

achieved. FECBr. 90-96; IntDefBr. 56. That claim lacks 

empirical support. Although Defendants claim that today’s 

campaign speech often omits any express advocacy, they 

ignore that virtually all such speech must include disclaimers 

identifying the sponsor, which often embody express advocacy, e.g., “Paid for by the Smith for Congress Committee.” 

See 47 C.F.R. § 73.1212; 11 C.F.R. § 110.11. Thus, most 

current campaign speech contains express advocacy. But be 

that as it may, Defendants cite no evidence that, at the time of 

Buckley and MCFL, most political speech likely to affect 

elections contained express advocacy, and the Business 

Plaintiffs know of no such evidence. 

In sum, Buckley and MCFL rejected as “overbroad” any 

effort to suppress or limit all speech likely to affect an 

election. Instead, given the highly protected status of such 

speech, they narrowed the provisions at issue so that they 

regulated only speech that, by its explicit terms, was directly 

and unambiguously part of the election process. Because the 

electioneering communication standard attempts a much 

broader scope of regulation—one that Buckley and MCFL 

reject—it is not narrowly tailored and must be struck down. 

III.	 BECAUSE THE ELECTIONEERING COMMUNICATION STANDARD SUPPRESSES CORE 

SPEECH, IT IS SUBJECT TO STRICT 

SCRUTINY. 

Defendants acknowledge that the effect of BCRA is to 

deny corporations and other speakers “the most effective 

means of communicating” to “the largest audience.” FECBr. 

93. Defendants’ assertions that Title II “does not ban any 

speech whatever,” FECBr. 97, IntDefBr. 9, 43, 56, thus are 

misleading at best. Defendants do not deny that, during 

periods of three to six months or more in every evennumbered year, corporations that broadcast a public message 

that mentions a Member of Congress or an incumbent 
8 

President who is seeking re-election face serious penalties, 

potentially including criminal liability.

7 Nor do they deny 

that the electioneering communication standard is intended to 

and will substantially reduce the total amount and effectiveness of corporate speech on public issues. Indeed, Defendants seek to justify the electioneering communication 

standard precisely as a way of effectively suppressing a great 

deal of such speech. FECBr. 80-81; IntDefBr. 53-54. 

What Defendants mean by “no ban” is that corporations are 

“not absolutely gagged.” Corporations may speak only in 

ways that Congress deems sufficiently burdensome, inefficient, and ineffective that total corporate speech will be 

greatly reduced.8 When Alabama’s law forbade “electioneering” one day a year—election day—this Court saw a fundamentally objectionable “suppression” of core speech, and it 

questioned whether the fact that the suppression occurred 

only one day was even “relevant to the constitutionality of the 

law.” Mills v. Alabama, 384 U.S. 214, 219-20 (1966). 

7 Tucked away in a footnote is an assertion that the “hypothetical threat 

of criminal prosecutions” serves more as a scarecrow than as a living 

threat. FECBr. 104 n.43. But it is the scarecrow function of such 

criminal provisions that is problematic. A prudent corporate executive 

will be particularly reluctant to authorize corporate speech that may be 

described, however hypothetically, as exposing the corporation to criminal 

liability. Thus, the chilling effects will occur. We must presume that 

Congress included the criminal provisions for a purpose and that this or 

some future administration may well enforce them. Defendants offer no 

assurance that they will not do so. 8 The Court previously has recognized that creating and maintaining 

corporate PACs is a “severely demanding task” and is not an effective 

substitute for direct corporate speech. MCFL, 479 U.S. at 255-56. 

Because organizing a PAC and raising its funding takes time, it is an 

utterly impractical vehicle for corporations who speak only occasionally 

in response to unpredictable events. Moreover, because only PAC funds 

can be contributed to federal candidates and political parties, and those 

funds must be raised in limited amounts, 2 U.S.C. § 441a(a), restricting 

spending for speech to the artificially constrained resources of PACs 

forces corporations to trade off speech expenditures against contributions. 
9 

Defendants hint that the blackout periods are mere “time, 

place, and manner” restraints, but that position cannot be 

sustained. See Linmark Associates, Inc. v. Township of 

Willingboro, 431 U.S. 85, 93-94 (1977). Linmark unanimously held that an ordinance forbidding “For Sale” signs in 

front of houses was not a time, place, or manner restriction. 

This was because the “primary effect” that the ordinance 

sought to avoid did not derive from the particular media being 

suppressed—e.g., the size, shape, or location of the signs— 

but from the content being communicated. Id. at 94. 

Moreover, other means of communication “involve[d] more 

cost and less autonomy” in “less effective media.” Id. at 93. 

Similarly, BCRA seeks to regulate the message being 

conveyed and the type of speaker, not the method of 

communication. Corporate broadcasts on commercial subjects—“commercials”—thus are not restricted. And BCRA is 

deliberately aimed at types of speech deemed most effective, 

relegating speakers to less effective means. FECBr. 114. It is 

not a “time, place, and manner” restriction, but rather a 

content-based suppression of independent speech. 

The Business Plaintiffs call this a “ban,” and so do 

BCRA’s sponsors outside the courtroom.9 But the issue is 

moot since even Defendants acknowledge that the electioneering communication standard triggers strict judicial 

scrutiny, requiring Defendants to prove narrow tailoring and 

First Amendment clarity. FECBr. 24, 85; IndDefBr. 56, 63. 

IV.	 DEFENDANTS FAIL TO SHOW THAT THE 

ELECTIONEERING COMMUNICATION PROVISIONS ARE NARROWLY TAILORED. 

Defendants mistakenly argue that, because the Constitution 

grants Congress authority to regulate federal elections, Congress has “broad leeway” to regulate speech that is “likely to 

9 See, e.g., 147 Cong. Rec. S2712 (daily ed. Mar. 22, 2001), S3034-35 

(daily ed. Mar. 28, 2001) (statements of Sen. Snowe). 
10 

influence” a federal election. FECBr. 78.10 Whether Congress’s elections power actually sweeps so broadly is 

addressed by the Title I briefs. But even assuming that the 

basic power is that broad, it does not follow that Congress 

may freely suppress highly protected independent speech that 

happens to fall within the power’s outer boundaries. To the 

contrary, Defendants concede that First Amendment strict 

scrutiny applies. FECBr. 85; IndDefBr. 63. The whole point 

of such strict scrutiny is to narrowly and stringently limit 

otherwise permissible regulation when it impacts fundamental 

rights or suspect categories. See San Antonio Indep. Sch. 

Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). Congress has no 

“broad leeway” to suppress core speech, and no precedent 

from this Court suggests otherwise. 

This distinction between a basic power to regulate and the 

power to suppress speech is clearly drawn in cases concerning judicial control of litigation-related speech by 

lawyers. Because lawyers are officers of the court and owe a 

fiduciary obligation to the system of justice, their professional 

speech is well within the basic authority of the courts. Even 

so, the courts have no broad leeway to suppress out-of-court 

statements. To the contrary, “the substantive evil must be 

extremely serious and the degree of imminence extremely 

high before utterances can be punished.” Wood v. Georgia, 

370 U.S. 375, 384 (1962) (quoting Bridges v. California, 314 

U.S. 252, 263 (1941)) (emphasis added).11 

10 Defendants actually use a variety of phrases. Sometimes the reference is comparative, targeting speech “most likely to influence” an 

election. FECBr. 92. Other times the reference is to speech that “in all 

likelihood ha[s] the effect of influencing.” FECBr. 92-93. Whether the 

speech must merely affect the policy views of one voter or whether it 

must alter the outcome is not clear. 11 This Court generally has ruled that public “discussion of the 

problems of society” may be suppressed only when the speech presents 

“an imminent, not merely a likely threat [that is not] remote, or even 

probable [but] must immediately imperil.” Wood, 370 U.S. at 384-85 
11 


In seeking to achieve clarity, the primary definition of 

electioneering communication adopts procrustean terms that 

are far from tailored. The key basis for suppression—a mere 

reference to a candidate, including an incumbent President, 

Senator, or Member of Congress—is not evil or troubling in 

itself.12 To the contrary, the First Amendment was adopted to 

protect just such references. Buckley, 424 U.S. at 40-44. 

As noted above, Defendants do not dispute that corporations have important information to impart on public policy 

issues, and Americans and their leaders have a strong need to 

receive such information. Nor do Defendants dispute that 

references to political leaders, including incumbent Members 

of Congress or the President, are an important part of such 

speech. Thus, the criterion of a candidate reference, in itself, 

serves as much to identify speech that merits special First 

Amendment protection as it does to suggest any basis for 

suppression. Such a criterion may contribute to a tailored 

standard, as it does in the express advocacy context, but in 

itself it certainly is not a narrow and tailored means of 

identifying speech that merits suppression. Certainly merely 

referring to a candidate does not establish a “substantive evil” 

that is “extremely serious” with an “imminence [that is] 

extremely high.” See Wood, 370 U.S. at 384. 

(internal quotations and citations omitted). The general issue was recently 

reviewed in Karhani v. Meijer, No. 03-CV-71654-DT, 2003 WL 

21554338 (E.D. Mich. June 6, 2003). The court collected and discussed 

cases for the proposition that there must be “much more than a . . . 

reasonable likelihood” of “a grave threat.” Id. at *6 (internal citations 

and quotations omitted). 12 Nor, for that matter, is the standard of referring to a candidate clear 

on its face. Is a reference to an office held by a candidate, or to an act of 

the candidate as a function of the candidate’s office a sufficient reference? 

Buckley’s express advocacy standard required that the speech itself clearly 

identify the candidate. 424 U.S. at 43. Some such narrowing construction 

would have to apply to the electioneering communication standard if it 

otherwise were to survive. 
12 

The so-called “targeting” provisions do not provide the 

needed tailoring. The minimum blackout period in each 

state—90 days for congressional candidates and 120 days for 

major party presidential candidates due to the national 

nominating conventions (BPBr. 9)—is a lengthy period of 

time. And the actual blackout periods in many jurisdictions 

will be much longer—approaching half a year or more for the 

many tens of millions of Americans who live within 80 to 

100 miles of 50,000 residents in another jurisdiction or two. 

See BPBr. 5, 8-10. 

Nothing about those lengthy periods makes them unimportant from a First Amendment viewpoint. To the contrary, 

Defendants do not dispute that legislation often reaches critical phases toward the end of the session, which often overlaps 

the blackout periods. Nor do Defendants deny that national 

and world events calling for important government action 

have occurred and will occur during those times. 

Indeed, although Defendants quarrel over the exact 

numbers, their own evidence indicates that a substantial 

amount of speech in the 60 days before the 1998 and 2000 

elections was “true” issue advocacy. Henderson, J., Supp. 

App. 242sa-45sa. If that speech affected the election, it did 

so as the secondary consequence of policy discourse. And 

those years were, relatively speaking, good times for our 

country. Certainly we have seen far more tumultuous and 

contentious times, and BCRA’s provisions must provide rules 

that will fit such times. Defendants’ notion that all references 

to candidates, including incumbent officeholders, could be 

banned from our nation’s primary means of communication 

for up to half a year would flabbergast the Founding Fathers. 

(Although John Adams toyed with the concept to his regret in 

The Alien and Sedition Acts.) 

Defendants assert that Members of Congress are “uniquely 

positioned” to identify speech that influences elections. 

FECBr. 92. Certainly incumbents are in a position to say that 

independent speech that refers to them is an unpredictable 
13 

and unscripted factor and a political challenge that they prefer 

not to face in seeking reelection. But nothing shows that 

Congress could or did determine how much of the speech 

encompassed by the electioneering communication standard 

poses such an immediate threat of serious evil that the constitutional balance favors suppression. See supra p. 10-11. 

Defendants argue that the electioneering communication 

standard is perfectly tailored—because any speech that refers 

to a candidate during the months prior to an election is 

“likely” to influence the election. FECBr. 24, 72-73 

(emphasis added); IntDefBr. 58, 64. This clever rhetorical 

ploy attempts to obscure the imprecision of BCRA’s standard 

by claiming that its compelling purpose is to identify speech 

that is likely to cause, to some degree, an effect that, if it were 

severe enough, might justify suppression. This confuses the 

issue of tailoring with the issue of compelling interest. 

Precision of regulation is the touchstone in this area. 

Buckley, 424 U.S. at 41 (quoting NAACP v. Button, 371 U.S. 

415, 438 (1963)). It is not enough for the Defendants to 

assert that the core speech suppressed by the electioneering 

communication standard is likely to have some effect to some 

degree on some aspect of an election. Instead, Defendants 

must show that substantially all independent broadcast 

corporate speech during three to six months of an evennumbered year that so much as refers to anyone who is a 

federal candidate poses such a serious threat of highly 

deleterious consequences that suppression is warranted. See 

supra p. 10-11. No such showing has been made. 

V.	 CORPORATE SPEECH DOES NOT OVERSHADOW OTHER SPEECH DURING ELECTION PERIODS. 

In a further effort to evade Buckley and MCFL, Defendants 

suggest that corporate and union speech unforeseeably has 

“exploded” to overshadow political discourse during federal 

campaigns. FECBr. 80-81; IntDefBr. 53-54. They suggest 

that Buckley and MCFL could not have foreseen the need to 
14 

cast a net broad enough to reach all corporate speech likely to 

affect an election. 

The FEC Defendants bemoan the “spectacular rise” in 

“candidate-centered” issue advertising by corporations and 

labor unions, culminating in what they claim to be the 

expenditure of $500 million during the 1999-2000 election 

cycle. FECBr. 80. Yet, they cite findings by Judge KollarKotelly based on a study that does not support their position. 

See Annenberg Public Policy Center, Issue Advertising in the 

1999-2000 Election Cycle (“Annenberg Study”) [DEV 38 

Tab 22]. 

The Annenberg Study does in fact estimate that $500 

million was spent on issue advocacy during the entire twoyear 1999-2000 cycle; its estimate is not based on ads near 

federal elections. Annenberg Study at 1. Nor is the $500 

million estimate limited to funds spent by corporations and 

labor unions, or “candidate-centered” issue advocacy. Instead, its figures measure all issue advocacy which includes 

candidate-centered, legislation-centered, and general imagecentered advocacy. Id. at 13. Roughly one-third of the $500 

million was spent by political parties. The remaining twothirds was spent by approximately 130 other groups, and the 

Annenberg Study could only conclude that roughly onequarter of the $500 million was spent by groups that represent 

corporate interests. Id. at 4. 

The Annenberg Study shows that many organizations 

contributed to the $500 million in issue speech from 1999 to 

2000. The FEC Defendants’ assertion that the $500 million 

was spent only by corporations and labor unions, and only on 

candidate-centered speech, is unsupported. 

The numbers Defendants cite are part of a general increase 

in campaign speech by all participants—something that the 

First Amendment favors—and surely do not show that 

corporations suddenly are exercising an overwhelming 

influence. To the contrary, Defendants were unable to contest the Business Plaintiffs’ showing (at 38-40) that, 
15 


according to Defendants’ own data, recent spending by 

candidates and parties accounts for the great majority of 

political speech near elections; independent “organizations” 

account for a much smaller percentage; and corporations 

and unions are some fraction of organizational spending (the 

burden being on Defendants). 

13 Thus, the data show no 

dramatic sea change since Buckley and MCFL that would 

warrant throwing their express advocacy standard overboard. 

VI.	 DEFENDANTS MAKE NO SERIOUS ATTEMPT 

TO DEFEND BCRA’S BACKUP DEFINITION 

OF ELECTIONEERING COMMUNICATION. 

The three district court judges agreed that BCRA’s backup 

definition of electioneering communication was unconstitutionally vague. Henderson, J., Supp. App. 362sa; Leon, J., 

Supp. App. 1164sa-66sa; Kollar-Kotelly, J., Supp. App. 

885sa-86sa. Judges Leon and Kollar-Kotelly sought to save 

part of the backup definition by imposing a “broadening 

construction” that severed and discarded a provision that 

narrowed the definition with a vague standard. Leon, J., 

Supp. App. 1164sa-66sa; Kollar-Kotelly, J., Supp. App. 

885sa-86sa. However, Judge Leon later conceded that the 

remaining part of the definition failed to give sufficient “guidance” to stand on its own. Bus. Pls.’ Juris. Stmnt. App. 19a. 

Defendants do not defend this unprecedented attempt to 

cure vagueness by expanding the burden on speech. FECBr. 

116. Indeed, the Intervenor-Defendants tacitly denounce the 

backup definition. IntDefBr. 71. 

The FEC Defendants argue that the vagueness of the final 

clause of the backup definition should be excused because its 

purpose was to benefit speakers by narrowing the definition. 

FECBr. 117. In fact, clear standards benefit all Americans— 

13 “Organizations” like the Sierra Club, Emily’s List, the NRA, and 

the like presumably account for a large part of this spending. Whether or 

not these groups qualify for a technical MCFL exemption, the issues that 

they raise clearly are distinct from those posed by business corporations. 
16 

listeners as well as speakers—and they are required by the 

First Amendment, not granted as a matter of grace. Thus, 

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-49 

(1991), held that Nevada’s rule restricting public statements 

by lawyers was “void for vagueness” because its “safe harbor 

provision” was unclear. 

VII.	 BCRA’S “COORDINATION” PROVISIONS 

ARE INVALID AND SUBJECT TO REVIEW 

IN THIS ACTION. 

Defendants do not dispute that (i) effective participation in 

developing and implementing legislation and public policy 

requires business corporations and their representatives to 

associate and communicate on a long-term, ongoing basis 

with government and political leaders, many of whom also 

are federal candidates; (ii) such associating and communicating lies at the core of the First Amendment’s protection of 

speech, association, and petition; (iii) if this association and 

communication causes future public speech supported by a 

corporation to be “coordinated” with a candidate or political 

party, that speech is unlawful and potentially criminal; 

(iv) political opponents effectively use FEC complaints 

charging unlawful coordination to punish and deter speech to 

which they object; and (v) uncertainty over the meaning of 

coordination is forcing corporations at this moment to curtail 

their association and communication with government and 

political leaders to avoid creating a basis for coordination 

charges that could render their future speech unlawful. 

Defendants also do not deny that, because the coordination 

doctrine substantially burdens core First Amendment activities of speech, association, and petition, it is subject to strict 

scrutiny, including the elevated standard of clarity that 

the First Amendment imposes. Nor do they deny that 

the coordination provisions fail to provide such a clear 

standard. Instead, they assert that, despite the mandate of 

BCRA section 403(a)(4) to expedite resolution of consti-
17 

tutional challenges to the greatest extent possible, this Court 

cannot now address the issue.14 They are mistaken. 

A. BCRA’s New Provision Restricting Coordination With Political Parties Clearly Is Subject 

To Review Now. 

BCRA section 214(a) adds a new and distinct provision 

under which expenditures made “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.” Since corporations cannot 

make such contributions, this new provision bans corporate 

expenditures that are coordinated with a political party. 

Today, corporations are curtailing communication and 

association with party leaders to avoid future charges of 

coordination. 

The Business Plaintiffs, the AFL-CIO, and others challenged this new provision as unconstitutionally vague, and 

Defendants do not squarely contest that challenge. Instead, 

they argue that (i) the new provision uses the same statutory 

definition of coordination—“in cooperation, consultation, or 

concert with, or at the request or suggestion of”—that preexisting provisions used, and (ii) Plaintiffs have not shown 

that this standard is more vague with respect to political 

parties than with respect to candidates. FECBr. 123. These 

two points are both true and irrelevant. 

This Court has not approved the prior statutory definition, 

nor has that standard been implemented without serious 

difficulty. To the contrary, the prior law spawned uncertainty 

and dispute, massive burdens on protected speech, and, 

ultimately, a narrowing construction by a district court and 

the FEC that sections 214(b) and (c) of BCRA now reject. 

See BPBr. 19-24, 44-46. If anything, the prior uses of this 

14 The Intervenor-Defendants do not address the coordination issue at 

all. Presumably they intend to rely on the arguments presented at FECBr. 

122-25. 
18 

statutory definition demonstrate that it falls far short of the 

clarity demanded by the First Amendment. 

Perhaps BCRA’s special judicial review provision may not 

allow this Court to reach out and strike down pre-existing 

provisions where the “in cooperation, consultation, or concert 

with, or at the request or suggestion of” standard appears. 

But that is no reason to reject Congress’s mandate to resolve 

the constitutional challenge to the provision that clearly is 

before this Court. This Court regularly evaluates the provisions that are before it without insisting that all related provisions also be at issue. See, e.g., Buckley, 424 U.S. at 75-81. 

Defendants argue that, in carrying out its duty to promulgate regulations to define coordination, the FEC might 

“alleviat[e] any uncertainty” as to what the statute means. 

FECBr. 124. But this Court never has held that the 

possibility of rulemaking precludes a challenge to the statute. 

And any such preclusion would be particularly unwise where, 

as here (i) the challenged statutory provision is self-enforcing, 

(ii) private parties who have a history of abusing similar 

provisions are free to file complaints directly under the 

statute, and (iii) Congress has mandated this Court to resolve 

such constitutional challenges as swiftly as possible. 

Moreover, the content of the FEC’s coordination regulations are not a mystery; they were adopted months before the 

district court ruled. Per Curiam, Supp. App. 155sa. If 

Defendants thought those regulations saved the statute, they 

were free to seek an opportunity from the district court to 

make that demonstration, but they did not. Nor did they 

respond to the Business Plaintiffs’ showing that vagueness 

remained. BPBr. 46-48. 

B. BCRA’s Specification That Speech May Be 

Condemned As A Coordinated Contribution 

In The Absence Of Any Agreement Is 

Unconstitutional. 

Defendants do not deny that, read as a whole, BCRA 

sections 214(a)-(c) establish that “coordination” may be 
19 

found, and otherwise fully protected independent speech may 

be condemned as an unlawful contribution, even though there 

is no element of agreement between speaker and candidate, 

campaign, or political party. BPBr. 46 n.29, 49. Nor do 

Defendants make any attempt to explain how such a result 

can be squared with the basic theory of the coordination 

doctrine—that spending for speech pursuant to an understanding with a candidate is the functional equivalent of a 

contribution. BPBr. 44. Instead, Defendants simply assert 

that “FECA has long provided . . . that expenditures made ‘at 

the request or suggestion of’ a candidate will be treated as 

contributions to that candidate.” FECBr. 124-25. Once 

again, the statement is both true but irrelevant. If FECA’s 

phrase “at the request or suggestion of” did not call for some 

element of agreement, it was unconstitutional, but that does 

not change the fact that BCRA’s express preclusion of any 

element of agreement also is unconstitutional for the same 

reason. See Henderson, J., Supp. App. 393sa-94sa. 

In fact, the phrase “at the request or suggestion of” means 

something more than a mere temporal sequence; it is different 

from the phrase “after the request or suggestion of.” And that 

difference is the existence of an agreement or understanding. 

The importance of this point is demonstrated by what 

happened with The Coalition in the late 1990s. As is 

described in the Business Plaintiffs’ Brief (at 20-21), a key 

basis for the charge of coordination brought against The 

Coalition was that, shortly after the AFL-CIO announced its 

ad campaign, Congressman Boehner gave a public speech in 

which he supposedly urged business interests to respond. In 

fact, there was a dispute as to what he said, but, more 

fundamentally, the members of The Coalition were unanimous that the need for a response was obvious and that, 

regardless of what Congressman Boehner may have said, they 

were acting independently and not pursuant to any 

understanding with him. BPBr. 19-20. In other words, they 

may have acted after his suggestion, but not “at” his 
20 

suggestion. And, once the FEC recognized that the Constitution compelled a narrow construction of “coordination,” it 

dismissed the complaint against The Coalition. BPBr. 23. 

This is a critical point. The Business Plaintiffs cannot 

control the unilateral suggestions and requests that candidates 

or political parties may make. However, such unilateral 

action by others should not operate to deprive plaintiffs of 

their constitutional right to engage in independent speech. 

Instead, a proper test of coordination must require some 

element of agreement between speaker and candidate, 

campaign, or political party. 

CONCLUSION 

The electioneering communication and coordination 

provisions of BCRA should be struck down. 

Of counsel 

STEPHEN A. BOKAT 

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

JAN AMUNDSON 

NATIONAL ASSOCIATION OF 

MANUFACTURERS 

1331 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

(202) 637-3055 

August 21, 2003 

Respectfully submitted, 

JAN WITOLD BARAN 

Counsel of Record 

THOMAS W. KIRBY


LEE E. GOODMAN


CALEB P. BURNS


WILEY REIN & FIELDING LLP


1776 K Street, N.W. 


Washington, D.C. 20006 


(202) 719-7000 


Counsel for Appellants Chamber 

of Commerce of the United States, 

National Association of Manufacturers, Associated Builders and 

Contractors, Inc.