BRIEF AMICI CURIAE OF NORMAN DORSEN,

ARYEH NEIER, BURT NEUBORNE,

AND JOHN SHATTUCK

IN SUPPORT OF APPELLANTS

Nos. 06-969, 06-970

IN THE

Supreme Court of the United States

_______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FEDERAL ELECTION COMMISSION,

Appellant,

v.

WISCONSIN RIGHT TO LIFE, INC., et al.,

Appellees.

McCAIN,

Appellant,

v.

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

BURT NEUBORNE

Counsel of Record

DEBORAH GOLDBERG

DAVID GANS

BRENNAN CENTER FOR JUSTICE

AT NYU LAW SCHOOL

161 Avenue of the Americas

12th Floor

New York, New York 10013

(212) 998-6730

Attorneys for Amici Curiae
TABLE OF CONTENTS 

Table of Authorities................................................iii 

Statement of Interest............................................... 1 

Summary of Argument............................................ 1 

Argument............................................................ 4 

 I. This Court Should End the Strategic Game 

 Played by Both Sides in the Litigation Leading 

 to this Appeal.............................................. 4 

II. WRTL’s Advertisements Do Not Qualify for 

an As-Applied Exemption from Section 203’s 

Ban on Corporate Funding of 

“Electioneering Communications”..................... 7 

A. The District Court Plainly Erred in 

Refusing To Consider the Factual 

Context of the Advertisements......................8 

 

B. The District Court’s Refusal To Consider 

 Factual Context Was Not Required by 

Administrative Necessity or a Concern 

with “Chilling” Corporate-Funded 

Political Speech......................................10 

1. Courts Are Competent To Consider 

Context in Evaluating As-Applied 

Challenges....................................11 
ii 

2. Consideration of the Factual 

Context Does Not Threaten 

Constitutionally Protected 

Issue Speech..................................14 

C. Viewed in Factual Context, WRTL’s 

Advertisements Do Not Qualify for an 

As-Applied Exemption from Section 203’s 

Ban on Corporate Electioneering....................14 

1. Precluding WRTL’s Ads Furthers 

the Compelling State Interests 

Recognized in McConnell..................15 

2. Granting the As-Applied Exemption 

Sought by WRTL Would Undermine 

the Statutory Scheme Upheld in 

McConnell.....................................19 

Conclusion.........................................................22 
iii 

TABLE OF AUTHORITIES 

Cases 

Anderson v. Celebrezze, 460 U.S. 780 (1983).....................12 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990)..................................................16 

Batson v. Kentucky, 476 U.S. 79 (1986)........................13 

Boy Scouts of America v. Dale, 

530 U.S. 640 (2000)....................................................8 

Bowen v. Kendrick, 487 U.S. 589 (1988)..............................8 

Brown v. Socialist Workers’ ’74 Campaign Committee, 

459 U.S. 87 (1982)................................................11 

Buckley v. Valeo, 424 U.S. 1 (1976)........................10, 11 

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996)..................................................14 

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 

472 U.S. 749 (1985)................................................... 9 

Edwards v. South Carolina, 372 U.S. 229 (1963)..............8 

FEC v. Beaumont, 539 U.S. 146 (2003).....................14, 16 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)..........................................14, 16 

FEC v. National Right to Work Comm., 

459 U.S. 197 (1982)..................................................16 
iv 

Hess v. Indiana, 414 U.S. 105 (1973)............................9 

Lynch v. Donnelly, 465 U.S. 668 (1984)..................10 n. 2 

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

McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973)...............................................13 

Milk Wagon Drivers of Chicago, Local 753 v. Meadowmoor 

Dairies, 312 U.S. 287 (1941)......................................9 

Miller v. Johnson, 515 U.S. 900 (1995)........................12 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000)................................................11 

Rankin v. McPherson, 483 U.S. 378 (1987).....................9 

Sabri v. United States, 541 U.S. 600 (2004).....................8 

Santa Fe Indep. School Dist. v. Doe, 

530 U.S. 290 (2000).............................. ...............9 n. 2 

Spence v. Washington, 418 U.S. 405 (1974).....................9 

Texas Department of Community Affairs v. Burdine, 

450 U.S. 248 (1981)...............................................13 

Texas v. Johnson, 491 U.S. 397 (1989)..............................9 

United States v. American Library Ass’n, 

539 U.S. 194 (2003).................................................8 
v 

United States v. Edge Broadcasting Co., 

509 U.S. 418 (1993)......................................14, 20, 21 

United States v. Lee, 455 U.S. 252 (1982)..................15, 20 

United States v. Raines, 362 U.S. 17 (1960)......... ............8 

Van Orden v. Perry, 125 S. Ct. 2854 (2005)...............9 n. 2 

Virginia v. Black, 538 U.S. 343 (2003)..........................9 

Watts v. United States, 394 U.S. 705 (1969)....................9 

Wisconsin Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006).........................................passim

Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 

3746669 (D.D.C. Dec. 21, 2006)...........................passim

 

Other Sources 

William Shakespeare, The Tragedy of Julius Caesar, act III, 

sc. ii (1623).........................................................10 
- 1 - 

STATEMENT OF INTEREST 

Amici are former officials of the American Civil Liberties 

Union (“the ACLU”), who are committed both to a robust 

First Amendment and to the effective restriction of corporate 

treasury funds in electoral campaigns.1

 Norman Dorsen 

served as President of the ACLU from 1976-1991, and as its 

General Counsel from 1969-1976. He is currently Stokes 

Professor of Law at New York University School of Law. 

Aryeh Neier served as Executive Director of the ACLU from 

1973-1981. He is currently President of the Open Society 

Institute. John Shattuck served as Director of the ACLU’s 

Washington, D.C., office, and as a National Staff Counsel 

from 1971-1984. He is currently Executive Director of the 

JFK Library Foundation. Burt Neuborne served on the legal 

staff of the ACLU for eleven years, serving as National Legal 

Director from 1981-1986. He is currently Inez Milholland 

Professor of Civil Liberties at New York University School 

of Law. Amici urge this Court to reaffirm the balance of 

constitutional interests that it struck in McConnell v. FEC, 

540 U.S. 93 (2003), and Wisconsin Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006) (“WRTL I”), by reversing the decision 

of the court below. 

SUMMARY OF ARGUMENT 

In recent years, the battle over whether corporations may 

use treasury funds to affect the outcome of federal elections 

has taken the form of a strategic game between challengers 

and defenders of the Bipartisan Campaign Reform Act of 

2002 (“BCRA”). Both sides have sought to exploit an alleged 

 

1

 All parties have consented to the filing of this brief. Copies of their 

written consents have been filed with the Clerk of the Court. Pursuant to 

Supreme Court Rule 37.6, Amici Curiae state that no counsel for a party 

has authored any part of this brief, and no one other than Amici or their 

counsel has made a monetary contribution to its preparation or 

submission. 
- 2 - 

difficulty in distinguishing “electioneering speech” (subject 

to regulation) from “issue speech” (protected from 

regulation), in an effort to advance their polar views. 

Proponents of corporate-funded electioneering have argued 

that, in order to preserve constitutionally protected issue 

speech, a broad loophole must be opened in section 203 of 

BCRA (“Section 203”), insulating from regulation speech 

that qualifies as “electioneering communications” as long as 

the literal text of advertising avoids an explicit call to 

electoral action. Conversely, opponents of corporate-funded 

electoral speech have argued that, in order to preserve the 

effective prohibition of corporate-funded electioneering, it is 

necessary to tolerate the restriction of at least some 

corporate-funded issue speech. 

This Court has rejected both extremes. In McConnell, this 

Court upheld the facial constitutionality of Section 203, 

ruling that corporations do not enjoy a First Amendment 

right to expend treasury funds on electioneering speech. The 

ruling followed almost 30 years in which corporations 

enjoyed an unfettered de facto right to use treasury funds to 

influence federal campaigns, as long as their advertising 

avoided “magic words” of express advocacy. Congress 

enacted Section 203 to close that loophole, which had 

permitted an avalanche of corporate campaign spending, and 

the McConnell Court sustained the provision. But this Court 

recognized in WRTL I that an as-applied exemption from 

Section 203 might be constitutionally compelled in the 

context of genuine issue speech at the periphery of the 

electoral process. See infra Point I. 

In granting as-applied relief without a full review of the 

factual context, the District Court turned the law of asapplied challenges on its head. The decision below ignored 

the purpose of an as-applied challenge, which is designed to 

permit a fact-specific analysis of plaintiff’s particular 

circumstances. See infra Point II (A). The District Court’s 
- 3 - 

assertion that consideration of the facts would be 

administratively unworkable and might “chill” protected 

corporate speech ignores the fact that courts routinely 

consider context in First Amendment cases, and that a welldefined procedure exists for determining whether the 

presumption of coverage established by the probative weight 

of the criteria set forth in Section 203 has been rebutted. See 

infra Point II(B). 

Viewed in factual context, this is an easy case. Wisconsin 

Right to Life, Inc. (“WRTL”) used corporate treasury funds 

to finance three advertisements criticizing Senator Feingold’s 

position on President Bush’s judicial nominees, and 

broadcast the advertisements in the months leading up to 

Senator Feingold’s re-election bid. The advertisements 

directed listeners to a website explicitly opposed to Senator 

Feingold’s re-election and were part and parcel of a long 

campaign by WRTL to oust Senator Feingold. Regulating 

these ads under BCRA advances the compelling state 

interests recognized in McConnell. WRTL simply has no 

right to a First Amendment exemption that would enable it to 

use corporate treasury funds for electioneering 

communications at the core of the electoral process. See infra 

Point II(C)(1). 

Finally, the District Court’s insistence on granting an asapplied exemption from Section 203, based solely on the 

absence of explicit words of electoral exhortation in the text 

of a corporate-funded advertisement, threatens to undercut 

Congress’s statutory scheme and to destabilize the careful 

First Amendment balance established by this Court. In the 

guise of adjudicating WRTL’s as-applied challenge, the 

District Court resuscitated the very “magic words” doctrine 

that Congress and this Court had rejected, effectively 

permitting an end run around the doctrine of stare decisis. 

See infra Point II(C)(2). 
- 4 - 

This appeal represents the latest round of gamesmanship 

among parties seeking to upset the terms of BCRA as 

sustained by this Court in McConnell and WRTL I. Amici

urge the Court to reject the lower court’s swing from one 

extreme to the other, to reaffirm longstanding ground rules 

for as-applied challenges, and to bring the strategic game to 

an end. 

ARGUMENT 

I. This Court Should End the Strategic Game Played by 

Both Sides in the Litigation Leading to this Appeal. 

Since the passage of Section 203, proponents and 

opponents of corporate electioneering have been engaged in a 

strategic game, with each side attempting at some point to 

establish an extreme constitutional position. Proponents of 

corporate-funded electioneering are eager to carve a gaping 

loophole in BCRA in the name of preserving constitutionally 

protected issue speech. Opponents of corporate-funded 

electoral speech have been prepared to countenance 

restrictions on some issue speech in the name of preserving 

the statute. This Court should continue to reject both 

extremes, as it did in McConnell and WRTL I, and put the 

game to rest with this appeal. 

The complaint in McConnell opened the first round of the 

strategic game. Before the ink was dry on Section 203, which 

bans corporate expenditures of more than $10,000 to fund 

“electioneering communications”—broadcast, cable, or 

satellite ads, aired within a fixed period before a federal 

election, that refer to a candidate in that election and target 

the candidate’s constituents—challengers argued that the 

statute was facially unconstitutional because the provision 

might preclude corporate funding of some genuine issue 

speech. 
- 5 - 

The McConnell Court refused to take the bait, holding that 

the possibility that Section 203 might apply to some forms of 

corporate-funded “issue speech” did not require facial 

invalidation of the ban on corporate-funded “electioneering 

communications.” Instead, applying strict scrutiny, 

McConnell held that Congress had a compelling state interest 

in preventing corporations from building and spending 

political war chests on federal elections, and that this interest 

justified the ban on the use of corporate general treasury 

funds to pay for election-influencing advertisements, even if 

the ads did not use “magic words” expressly advocating the 

election or defeat of a clearly identified candidate. 

McConnell, 540 U.S. at 205-06. The Court noted that thirty 

years of experience with the “magic words” test had 

demonstrated its vulnerability to evasion. Id. at 126-28, 193-

94.

The Court’s second encounter with Section 203, and the 

second round in the strategic game, took place in WRTL I, 

when this Court unanimously rejected the argument that 

McConnell precluded as-applied challenges to Section 203 in 

any setting where corporate-funded speech satisfied the 

statute’s definition of “electioneering communications.” That 

argument, made by BCRA’s defenders, was the mirror image 

of the challengers’ argument in McConnell; this time concern 

over preserving the prohibition on corporate-funded 

“electioneering communications” was deployed as a 

justification for banning at least some corporate-funded 

“issue speech.” This Court once again refused the bait, 

stating: “In upholding § 203 against a facial challenge, we 

did not purport to resolve future as-applied challenges.” 546 

U.S. at 410. 

The strategic game resumed on remand in the court below, 

when respondent Wisconsin Right to Life, Inc. (“WRTL”), a 

non-profit corporation that receives substantial funding from 

for-profit corporations, re-asserted its claim that three radio 
- 6 - 

advertisements that aired for the first time in the months prior 

to Senator Feingold’s 2004 bid for re-election qualified for 

an as-applied exemption from BCRA. Wisconsin Right to 

Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669 (D.D.C. 

Dec. 21, 2006) (“WRTL II”). The advertisements, costing 

more than $10,000, carefully eschewed any “magic words” 

of explicit electoral exhortation, but criticized Senator 

Feingold’s position on President Bush’s judicial nominees 

and urged listeners to contact the Senator’s office in 

connection with the Senate’s failure to vote on those 

nominees. Id. at *1 & nn.3-5. WRTL argued that because the 

advertisements carefully avoided explicit electoral 

exhortation, they were constitutionally immune from Section 

203’s ban on corporate funding, notwithstanding their 

implicit criticism of Senator Feingold, their timing to 

coincide with the impending election, WRTL’s well-known 

record of opposition to the Senator’s re-election, and other 

powerful contextual evidence demonstrating that the purpose 

and perceived effect of the advertisements were to diminish 

the Senator’s electoral prospects. Id. at *6. 

In WRTL II, a two-person majority of the District Court 

refused to consider the advertisements’ factual context in 

assessing their principal purpose and perceived effect. 

Instead, despite Congress’s rejection of the “magic words” 

approach, and this Court’s decision in McConnell, the 

District Court granted an as-applied exemption from BCRA 

because the four corners of the text did not contain “magic 

words” of electoral exhortation. Id. On appeal from WRTL II, 

the strategic game continues. While WRTL professes 

concern about corporate-funded “issue speech,” its evident 

purpose is to open a massive loophole in Section 203, 

eviscerating Congress’s ability to ban corporate-funded 

“electioneering speech” at the electoral core. 

Amici urge the Court to reject, for the third time, the 

invitation to choose between over- and under-regulation of 
- 7 - 

corporate-funded electoral speech. Amici believe that the 

strategic game should end. It is past time to get down to the 

business of developing workable criteria designed to carry 

out the First Amendment balance established in McConnell 

and WRTL I. 

II. WRTL’s Adverstisements Do Not Qualify for an AsApplied Exemption from Section 203’s Ban on 

Corporate Funding of “Electioneering 

Communications.” 

The District Court’s “four corners” approach—turning a 

blind eye to context—hardly qualifies as a serious effort to 

respect the First Amendment balance struck in McConnell. 

The District Court held that the literal text of an 

advertisement is the sole determinant of whether it may be 

funded by corporate treasury funds. Contextual evidence 

bearing on: (i) the purpose of WRTL and its for-profit 

corporate donors; and (ii) the perceived meaning of the 

advertisements’ clearly implied electoral message, may not 

be considered, held the District Court, because such a factintensive approach, would “chill” protected speech and prove 

difficult to administer in the waning days of a campaign. See 

WRTL II, 2006 WL 3746669, at *6-8. The District Court’s 

analysis is triply flawed. 

A. The District Court Plainly Erred in Refusing To 

Consider the Factual Context of the Advertisements. 

 

Close analysis of facts and circumstances is the very 

hallmark—indeed, the raison d’etre—of an as-applied 

challenge. Unlike a facial challenge, which views a statute’s 

constitutionality from the perspective of a run-of-the-mill 

target, an as-applied challenge focuses on the particularized 

facts and circumstances of a single litigant in deciding 

whether a law that may be validly applied to most persons 

must be suspended in the factual context before the Court. 
- 8 - 

An as-applied challenge is, therefore, necessarily factintensive, requiring a party to place evidence before the court 

justifying a constitutionally-driven individualized exemption. 

See, e.g., United States v. American Library Ass’n, 539 U.S. 

194, 215 (2003) (Kennedy, J., concurring) (rejecting facial 

challenge but permitting individuals to bring as-applied 

challenges based on specific, concrete factual showing); Boy 

Scouts of America v. Dale, 530 U.S. 640, 648-54 (2000) 

(concluding that specific facts had been adduced showing 

that application of anti-discrimination statute imposed 

substantial burden on the litigant’s freedom to associate); 

Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J., 

concurring) (calling for District Court to make “detailed 

factual findings” about program’s administration in 

adjudicating an as-applied Establishment Clause challenge to 

financial aid statute); id. at 625 (Kennedy, J., concurring) 

(insisting on specific evidence about how religious entities 

“spend [their] grant[s]” to adjudicate an as-applied 

challenge); see also Sabri v. United States, 541 U.S. 600, 609 

(2004) (preferring as-applied to facial challenges because the 

latter “carries too much promise of ‘premature 

interpretatio[n] of statutes’ on the basis of factually barebones records” (quoting United States v. Raines, 362 U.S. 17, 

22 (1960))). Indeed, the intensely fact-specific nature of an 

as-applied challenge is why this Court insists on conducting 

an independent de novo review of the record to ensure that 

improper fact finding does not lead to a denial of 

constitutional rights. See Boy Scouts, 530 U.S. at 648-49; 

Edwards v. South Carolina, 372 U.S. 229, 235 (1963). 

 The District Court’s refusal to consider the factual context 

in deciding whether to grant an as-applied exemption turns 

as-applied jurisprudence on its head. In effect, the District 

Court granted a facial exemption from a facially valid statute, 

an incoherent approach that undermines the very statute the 

court purports to apply. It is one thing to recognize, as this 

Court did in WRTL I, that as-applied challenges remain open; 
- 9 - 

it is quite another to say, as the District Court did, that a court 

should consider an as-applied challenge without undertaking 

a full review of the facts and circumstances of the 

advertisements allegedly entitled to a constitutional 

exemption. 

 This Court’s First Amendment jurisprudence precludes 

the District Court’s analysis. In numerous First Amendment 

contexts, this Court considers both the text of the speech in 

question, as well as the broader context surrounding the 

speech, in determining whether or not to extend 

constitutional protection. For example, the Court regularly 

examines contextual evidence in determining: (i) whether an 

individual’s communicative conduct constitutes protected 

symbolic speech, see Texas v. Johnson, 491 U.S. 397, 405-06 

(1989); Spence v. Washington, 418 U.S. 405, 410-11 (1974); 

(ii) whether a public employee’s political remarks or private 

defamatory speech involved matters of public concern, see

Rankin v. McPherson, 483 U.S. 378, 384-85, 386-87 (1987); 

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 

749, 761 (1985); and (iii) whether a communication is 

protected speech or an unlawful threat or exhortation to 

violence, see Virginia v. Black, 538 U.S. 343, 360, 362-63

(2003); Hess v. Indiana, 414 U.S. 105, 106-09 (1973); Watts 

v. United States, 394 U.S. 705, 708 (1969); see also Milk 

Wagon Drivers of Chicago, Local 753 v. Meadowmoor 

Dairies, 312 U.S. 287, 293 (1941) (“[An] utterance in a 

context of violence can lose its significance as an appeal to 

reason and become part of an instrument of force. Such 

utterance was not meant to be sheltered by the 

Constitution.”).2

 

2 Likewise, in determining whether government-sponsored religious 

expression violates the Establishment Clause, the Court examines not 

merely the religious expression the government has sponsored but the 

larger context of that speech. See Van Orden v. Perry, 545 U.S. 677, 691 

(2005); id. at 699-704 (Breyer, J., concurring); Santa Fe Indep. School 
- 10 - 

 The lesson of this long line of cases is that, often, the 

literal words a speaker utters, considered alone, do not 

adequately capture the relevant First Amendment 

considerations. To use a famous literary example, the literal 

text of Marc Antony’s oration at Caesar’s funeral said one 

thing, while the context said another. See William 

Shakespeare, The Tragedy of Julius Caesar act III, sc. ii. In 

short, the District Court’s refusal to consider context would 

strip the regulatory process of adequate tools to protect 

federal electoral campaigns from sophisticated corporatefunded communications having the clear purpose and 

perceived effect of supporting or opposing a candidate for 

public office. 

B. The District Court’s Refusal To Consider Factual 

Context Was Not Required by Administrative 

Necessity or a Concern with “Chilling” CorporateFunded Political Speech.

 The massive congressional record compiled in connection 

with the enactment of Section 203, the thorough record 

compiled by the District Court in McConnell, and this 

Court’s recognition in McConnell of the failure of the brightline “magic words” test adopted in Buckley v. Valeo, 424 

U.S. 1 (1976) (per curiam), provided the court below with an 

unmistakable warning that granting as-applied exemptions 

solely on the basis of the literal text would seriously weaken, 

perhaps destroy, the regulatory scheme. The WRTL II 

majority argued, nevertheless, that the practical difficulty in 

assessing factual context under the time pressures of a 

political campaign, coupled with a concern that some 

corporate speakers might be “chilled,” forced the court to 

 

Dist. v. Doe, 530 U.S. 290, 307-08 (2000); Lynch v. Donnelly, 465 U.S. 

668, 692-93 (1984) (O’Connor, J., concurring). 
- 11 - 

adopt a less-than-optimal approach. See WRTL II, 2006 WL 

3746669, at *7-8. The District Court’s twin justifications for 

banishing contextual evidence from its as-applied analysis 

fall apart on close scrutiny. 

 

1. Courts Are Competent To Consider Context in 

Evaluating As-Applied Challenges.

Courts are perfectly competent to consider contextual 

factual material in connection with the resolution of a request 

for an as-applied exemption from Section 203. This Court’s 

election law jurisprudence is replete with the duty to conduct 

precisely the fact-intensive analyses that the court below 

sought to avoid. 

For example, McConnell holds that minor parties can 

claim a constitutional exemption from BCRA’s soft-money 

ban by showing that the ban on receiving or spending soft 

money “prevents it from ‘amassing the resources for 

effective advocacy,’” McConnell, 540 U.S. at 159 (quoting 

Buckley, 424 U.S. at 21), a test that is nothing if not factintensive. A similar standard applies if a litigant wishes to 

mount an as-applied challenge to BCRA’s ban on soft money 

contributions to state and local political parties. See id. at 173 

(requiring as-applied challenger to show that the ban’s effect 

on contributions “is ‘so radical in effect as to . . . drive the 

sound of the [recipient’s] voice below the level of notice’” 

(quoting Nixon v. Shrink Missouri Government PAC, 528 

U.S. 377, 397 (2000))). 

In the same vein, Brown v. Socialist Workers ’74 

Campaign Committee, 459 U.S. 87 (1982), holds that a minor 

party will be entitled to as-applied relief from a campaign 

finance disclosure statute if it can show a reasonable 

probability that disclosure will lead to threats, harassments, 

and reprisals. Id. at 91-93, 98-101. This sort of fact-intensive 

analysis applies, as well, in other areas of this Court’s 
- 12 - 

election law constitutional jurisprudence. See Miller v. 

Johnson, 515 U.S. 900, 910-13 (1995) (imposing factintensive purpose analysis in challenge to drawing of 

racially-gerrymandered districts); Anderson v. Celebrezze, 

460 U.S. 780, 789-91, 792-93 (1983) (mandating factintensive undue burden analysis in First Amendment 

challenge to laws regulating access to the ballot). 

 

 Judged against this mass of precedent, the District Court’s 

conclusion that readily available contextual evidence should 

be ignored in assessing as-applied challenges to BCRA’s 

corporate electioneering ban was manifest error. In fact, 

compared with the fact-intensive inquiries the Court has 

mandated in other campaign finance and election law 

settings, the contextual factual issue in this case was child’s 

play. Given the ads’ implicit criticism of Sen. Feingold, 

WRTL’s long-standing hostility to Senator Feingold, the 

group’s open opposition to him in the website to which the 

ads directed listeners, and the suspicious timing of the socalled “grassroots lobbying,” it is simply impossible for any 

reasonable finder of fact to review the record in this case and 

conclude that an as-applied exemption is constitutionally 

required under McConnell. 

 Given the overwhelming contextual record, this case is 

easy. Adequate procedures exist to deal swiftly and surely 

with harder cases, as well. As this Court noted in McConnell, 

the combined probative weight of the objective indicia for 

coverage in Section 203—(i) broadcast, cable, or satellite 

advertising costing more than $10,000; (ii) within a fixed 

period of a federal election; (iii) that refers to a clearly 

identified candidate in the forthcoming federal election; and 

(iv) targets the candidate’s constituents—creates a powerful 

factual inference that the speech has both the purpose and 

perceived effect of supporting or opposing a candidate for 

federal office. McConnell, 540 U.S. at 206 (observing that 

the vast majority of covered ads had an electioneering 
- 13 - 

purpose); see also id. at 127 (“[T]he conclusion that 

[supposed issue] ads were specifically intended to affect 

election results was confirmed by the fact that almost all of 

them aired in the 60 days immediately preceding a federal 

election.”). At a minimum, therefore, the inherent probative 

weight of the four indicia satisfies the government’s burden 

of production on the issues of the communication’s purpose 

and perceived effect. See McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). 

 The essence of an application for an as-applied exemption 

from such presumptively constitutional regulation is the 

presentation of factual evidence tending to rebut the 

presumption. See Texas Department of Community Affairs v. 

Burdine, 450 U.S. 248 (1981); Batson v. Kentucky, 476 U.S. 

79 (1986). At a minimum, an application for an exemption 

must be accompanied by admissible evidence tending to 

support the exemption, generally a sworn statement by the 

speaker that the advertisement does not have the purpose of 

supporting or opposing the candidate mentioned in the 

advertisement. See Burdine, 450 U.S. at 254-55 & n.9. In 

addition, the exemption application should be accompanied 

by admissible evidence tending to prove that the 

advertisement is not and will not be perceived as thinlydisguised electioneering speech. Once an applicant for an 

exemption has presented evidence tending to prove lack of 

purpose and perceived effect, the evidence may be rebutted, 

after which the District Court must make a finding of fact. In 

this case, given the overwhelming factual record, the issue 

simply is not in doubt. WRTL intended its corporate-funded 

advertisements to harm Senator Feingold’s re-election 

efforts. Given the contextual record, no reasonable finder of 

fact could rule otherwise. 
- 14 - 

2. Consideration of the Factual Context Does Not 

Threaten Constitutionally Protected Issue Speech. 

 Such a classic fact-finding procedure poses no danger of 

“chilling” genuine corporate-funded “issue speech.” It is 

simply unrealistic to assume that corporate speakers—hardly 

the most vulnerable of persons—will refuse to air genuine 

corporate-funded issue advertisements simply because a 

court adjudicating an as-applied challenge will consider not 

only the literal text, but the organization’s past history of 

supporting or opposing the candidate specifically identified 

in the ad or the ad’s referral of the viewer (or listener) to 

other unquestionably electoral exhortations, as well as the 

timing and targeting of the advertisement. Such a procedure 

will deter (as it should) only those who wish to air corporatefunded electioneering ads masquerading as issue ads in an 

effort to influence the outcome of elections. Under 

McConnell, such persons have no right to relief. 

 

C. Viewed in Factual Context, WRTL’s Advertisements 

Do Not Qualify for an As-Applied Exemption from 

Section 203’s Ban on Corporate Electioneering. 

 This Court’s precedents leave no doubt about the standard 

to be applied in an as-applied challenge to the application of 

a facially constitutional statute. A reviewing court must first 

decide whether a ban on corporate funding of the 

advertisements in question would advance the compelling 

governmental interests recognized by the Court in McConnell 

and earlier precedents of this Court. See McConnell, 540 U.S. 

at 205; FEC v. Beaumont, 539 U.S. 146, 161 (2003); 

Colorado Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604 (1996); FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986). Second, if granting an as-applied 

exemption would significantly undermine BCRA’s 

constitutional statutory scheme, the as-applied challenge 

must fail. E.g., United States v. Edge Broad. Co., 509 U.S. 
- 15 - 

418 (1993) (refusing to grant as applied exemption from 

broadcasting ban because of impact on facially valid 

regulatory scheme); United States v. Lee, 455 U.S. 252, 259-

60 (1982) (refusing to exempt Amish employers from paying 

social security taxes despite substantial burden on their free 

exercise rights because exemption would compromise social 

security system). 

1. Precluding WRTL’s Ads Furthers the Compelling 

State Interests Recognized in McConnell. 

 

 Applying the proper standards, this is an easy case for 

rejecting the application. WRTL’s advertisements are virtual 

replicas of the phony issue ads BCRA was designed to 

eliminate. The advertisements use implicit criticism to tell 

the electorate to oppose Senator Feingold and the policies 

with which he is identified. The compelling state interests 

McConnell recited in rejecting the facial challenge to a ban 

on corporate-funded electioneering speech—interests in 

preserving the integrity of the electoral process, combating 

real and perceived corruption, and preventing the 

circumvention of BCRA’s contribution limits—fully support 

BCRA’s application to WRTL’s anti-Feingold 

advertisements. 

 

McConnell emphasized two points in finding that a ban on 

corporate electioneering satisfied strict scrutiny. First, the 

McConnell Court noted that forbidding corporations from 

using treasury funds to pay for election-related political 

advertisements imposes a limited speech burden since 

corporations remain free to express any political viewpoint 

they choose, as long as corporate PAC money is used to pay 

for the speech. 

“The PAC option allows corporate political 

participation without the temptation to use corporate 

funds for political influence, quite possibly at odds 
- 16 - 

with the sentiments of some shareholders or 

members, and it lets the government regulate 

campaign activity through regulation and disclosure 

without jeopardizing the associational rights of 

advocacy organizations’ members.” 

McConnell, 540 U.S. at 204 (quoting Beaumont, 539 U.S. at 

163). 

 Second, McConnell held that BCRA’s ban on corporatefunded electioneering speech is justified by two wellrecognized compelling state interests. The ban ensures that 

corporations do not use the benefits of the corporate form to 

amass and spend political war chests capable of destabilizing 

the democratic process. Id. at 205; see also Beaumont, 539 

U.S. at 153-55 (collecting cases); Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652, 658-59 (1990) 

(“[S]tate-created advantages not only allow corporations to 

play a dominant role in the Nation’s economy, but also 

permit them to use ‘resources amassed in the economic 

marketplace’ to obtain ‘an unfair advantage in the political 

marketplace.’” (quoting MCFL, 479 U.S. at 257)); FEC v. 

National Right to Work Comm., 459 U.S. 197, 207 (1982) 

(“[S]ubstantial aggregations of wealth amassed by the special 

advantages of the corporate form of organization should not 

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

to incur political debts from legislators . . . .”). 

 The ban also prevents circumvention of limits on 

individual contributions to candidates—laws this Court has 

repeatedly upheld against First Amendment challenge—

through the artifice of diverting money through the 

corporation. See McConnell, 540 U.S. at 205 (“[R]ecent 

cases have recognized that certain restrictions on corporate 

electoral involvement permissibly hedge against 

‘circumvention of [valid] contribution limits.’” (quoting 

Beaumont, 539 U.S. at 155)). 
- 17 - 

 The text of the advertisements at issue here and two pieces 

of objective and undisputable contextual evidence 

demonstrate that WRTL’s ads were designed to affect, and 

were perceived as designed to affect, electoral outcomes. 

Indeed, they are exactly the kind of sham issue ads BCRA 

was enacted to prevent. In the guise of discussing a political 

issue, they criticize one candidate’s voting record on a 

controversial issue, and urge action directed at the candidate, 

clearly suggesting that he should not be re-elected. Moreover, 

what was implicit in the text of the advertisement was made 

explicit in the website to which the ad directed viewers. That 

site, as the dissenting judge below observed, featured alerts 

that “excoriat[ed]” Senator Feingold for his filibustering of 

President Bush’s judicial nominees and urged the Senator’s 

defeat. WRTL II, 2006 WL 3746669, at *14 (Roberts, J., 

dissenting). 

McConnell itself confirms that this kind of ad, which 

criticizes the political stances of a candidate and asks the 

voters to contact him or her, is tantamount to expressly 

advocating the criticized candidate’s defeat. “Little 

difference exist[s] . . . between an ad that urge[s] viewers to 

‘vote against Jane Doe’ and one that condemn[s] Jane Doe’s 

record on a particular issue before exhorting viewers to ‘call 

Jane Doe and tell her what you think.’” McConnell, 540 U.S. 

at 126-27; see also id. at 170 (“[A]ny public communication 

that promotes or attacks a clearly identified candidate directly 

affects the election in which he is participating.”); id. at 193 

(“[A]lthough the . . . advertisements do not urge the viewer to 

vote for or against the candidate in so many words, they are 

no less clearly intended to influence the election.”). 

 The timing of WRTL’s broadcast of the ads, which 

McConnell itself treats as probative, see id. at 127, further 

supports the conclusion that WRTL broadcast these three 

advertisements to convince Wisconsin voters not to re-elect 
- 18 - 

Sen. Feingold. The three advertisements at issue here were 

the only advertisements that WRTL broadcast concerning the 

filibustering of judicial nominees during the whole of the 

controversy over confirmation of President Bush’s judicial 

nominees. As the dissent below observed, WRTL began 

broadcasting the ads on July 26, 1994, after the last of the 

judicial filibuster cloture votes in that session, and after the 

Senate had recessed for six weeks, see WRTL II, 2006 WL 

3746669 at *16 (Roberts, J., dissenting), but just in time to 

tee up a challenge to BCRA. Further, WRTL did not 

broadcast any advertisements concerning filibustering after 

Senator Feingold’s re-election in November 2004, even 

though the same group of Senators continued to filibuster 

President Bush’s nominees. Id. The timing of the ads thus 

confirms what is implicit in the text: these ads were aimed at 

defeating Senator Feingold’s re-election bid. 

 Finally, WRTL has long opposed Senator Feingold and its 

PAC has long supported his political opponents. As the 

dissent pointed out, WRTL made Senator Feingold’s defeat a 

“priority” and in 2004 declared its “resolve to do everything 

possible to win Wisconsin for President Bush and send Russ 

Feingold packing!” Id. at *15-16. Broadcasting these three 

advertisements was part and parcel of WRTL’s strategy to 

defeat Senator Feingold. That is why it ran the ads 

encouraging voters to tell Senator Feingold to change his 

policy, and did so toward the end of the election cycle rather 

than when Congress was in session and actually voting on 

the filibusters of judicial nominees about which WRTL 

claims to be so concerned. Under McConnell, BCRA may— 

indeed, must—be applied to these ads, which undoubtedly, 

were “intended to influence the voters’ decision and [had] 

that effect.” McConnell, 540 U.S. at 206. 
- 19 - 

2. Granting the As-Applied Exemption Sought by 

WRTL Would Undermine the Statutory Scheme 

Upheld in McConnell. 

 The District Court’s judgment should be reversed for a 

second reason. The District Court never considered the effect 

of granting an as-applied exemption on the facts of this case 

on the statutory scheme upheld in McConnell. The lower 

court simply ignored the fact that the exemption it created 

would decimate BCRA’s statutory scheme, leaving a gaping 

hole that would frustrate the compelling state interests 

McConnell recognized. That effect, alone, supports rejection 

of the WRTL’s as-applied challenge. 

 In the final analysis, the District Court’s opinion rests on 

dissatisfaction with the McConnell Court’s refusal to erect a 

bright-line rule for as-applied challenges similar to the 

discredited “magic words” test. Instead of seeking to 

implement the McConnell Court’s directive to work out a 

First Amendment balance, the District Court’s reasoning 

upsets that balance and re-establishes an unworkable scheme 

that severely undercuts the holding of McConnell itself. 

Upholding WRTL’s as-applied challenge would vitiate the 

statutory scheme that McConnell adjudged valid. It would 

mean that WRTL and any other corporate entity could run 

virtually any corporate-funded campaign advertisements it 

wished—free from even a duty to disclose—so long as it 

chose the words of its ads carefully and criticized the 

candidates it opposed in coded language, rather than direct 

attacks. Such a ruling would create a hole in BCRA’s scheme 

big enough to drive a truck through, and would effectively 

reinstate the flawed “magic words” approach that BCRA 

repudiated. As the Court’s as-applied jurisprudence has made 

clear time and again, courts should not radically remake valid 

statutory schemes in the guise of vindicating as-applied 

claims. Plaintiffs should not be permitted to parlay an overly 
- 20 - 

broad as-applied challenge into an end-run around the 

doctrine of stare decisis. 

 The Court’s cases make clear that while an as-applied 

challenge is an appropriate way to trim the unconstitutional 

fat from a statute; it may not to be used to vitiate an 

otherwise constitutional statutory scheme. In United States v. 

Lee, 455 U.S. 282 (1982), the Court rejected an as-applied 

challenge brought by an Amish employer who refused to pay 

social security taxes in accordance with the dictates of his 

religion. Applying strict scrutiny (then the prevailing 

constitutional test), the Court held that recognizing an asapplied exemption risked vitiating the compelling state 

interests underlying the tax statute. Accommodating the 

Amish employer, the Court held, would “unduly interfere 

with fulfillment of [a compelling] governmental interest,” id.

at 259, because it would open the door to a wide range of 

religious-based exemptions incompatible with a mandatory 

tax system. Id. at 259-60 (“[I]t would be difficult to 

accommodate the comprehensive social security system with 

myriad exceptions flowing from a wide variety of religious 

beliefs.”). 

 Likewise, in United States v. Edge Broadcasting Co., 509 

U.S. 418 (1993), the Court rejected an as-applied challenge 

by a North Carolina radio station owner who sought to 

broadcast lottery advertisements in violation of a federal 

statute prohibiting advertisements by stations in jurisdictions, 

such as North Carolina, that do not sponsor a lottery. Edge 

claimed that it was entitled to a constitutional exemption 

because it was located three miles from the border with 

Virginia, which sponsored a lottery, and because Virginians 

constituted virtually of all its listening audience. 

 

 In rejecting Edge’s as-applied challenge, the Court 

emphasized that it could not consider Edge’s as-applied 

claim in isolation; it had to consider the system-wide effects 
- 21 - 

of granting Edge and all other similar-situated persons a 

constitutional exemption. “We judge the validity of the 

restriction in this case by the relation it bears to the general 

problem [Congress regulated] . . . not by the extent to which 

it furthers the Government’s interest in the individual case.” 

Id. at 430-31. Because granting Edge an as-applied 

exemption would have frustrated Congress’ valid choice to 

accommodate the policies of lottery and non-lottery states, 

the Court rejected Edge’s claim for a constitutionallycompelled exemption. Id. at 431-35. 

 As in Lee and Edge, granting WRTL an as-applied 

exemption on the facts of this case would subvert the 

statutory scheme this Court approved in McConnell, reopening the loophole that BCRA closed. It would allow 

groups like WRTL and their corporate donors to pour 

millions and millions of dollars of corporate treasury funds 

into federal elections, so long as “magic words” were not 

used in the text. As Lee and Edge teach, an as-applied 

challenge must fail where, as here, it would wreak havoc on a 

valid statutory scheme. 
- 22 - 

CONCLUSION

 For the above-stated reasons, the decision of the District 

Court should be reversed, and Appellees’ application for an 

as-applied exemption from section 203 should be denied. 

 Respectfully submitted, 

 Burt Neuborne, Counsel of Record 

 Deborah Goldberg 

 David Gans 

BRENNAN CENTER FOR JUSTICE 

AT NYU LAW SCHOOL 

161 Avenue of the Americas, 12th floor 

New York, NY 10013 

 212-998-6730 

 Attorneys for Amici Curiae