Nos. 06-969 & 06-970

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

SENATOR JOHN MCCAIN, ET AL.,

Appellants, 

v. 

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

On Appeal From 

The United States District Court 

For The District Of Columbia

BRIEF OF 

UNITED STATES SENATOR MITCH McCONNELL 

AS AMICUS CURIAE IN SUPPORT OF APPELLEE 

 THEODORE B. OLSON

 Counsel of Record

DOUGLAS R. COX

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

 Counsel for Amicus Curiae
QUESTION PRESENTED 

Whether the prohibition on corporate disbursements for 

“electioneering communications” during a statutorily imposed black-out period, codified at 2 U.S.C. § 441b, is unconstitutional as applied to television advertisements that are 

devoted exclusively to urging constituents to contact named 

elected officials regarding pending governmental matters. 
ii 

TABLE OF CONTENTS 

Page

QUESTION PRESENTED .....................................................i 

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

INTEREST OF AMICUS CURIAE........................................1 

STATEMENT ........................................................................2 

SUMMARY OF ARGUMENT..............................................8 

ARGUMENT .......................................................................10 

I. GRASS-ROOTS LOBBYING IS CORE 

POLITICAL SPEECH...........................................10 

II. IN EVALUATING WHETHER A GRASSROOTS LOBBYING COMMUNICATION 

IS CONSTITUTIONALLY PROTECTED, 

COURTS SHOULD CONSIDER ONLY 

THE “FOUR CORNERS” OF THE AD ...............19 

CONCLUSION ....................................................................26 
iii 

TABLE OF AUTHORITIES 

Page(s)

Cases

Abrams v. United States, 

250 U.S. 616 (1919) .......................................................19 

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) .......................................................18 

BE&K Constr. Co. v. NLRB, 

536 U.S. 516 (2002) .......................................................11 

Brown v. Hartlage, 456 U.S. 45 (1982) .................................8 

Buckley v. Valeo, 424 U.S. 1 (1976) ....................................21 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .....................16 

Colo. Fed. Campaign Comm. v. FEC, 

518 U.S. 614 (1996) .........................................................2 

Cruzan v. Dir., Mo. Dep’t of Health, 

497 U.S. 261 (1990) .......................................................23 

E. R.R. Presidents Conference v. Noerr Motor 

Freight, Inc., 365 U.S. 127 (1961) .................................23 

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ...........................2, 12, 15, 17, 21, 25 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) .....................................13, 16, 18, 22 

Garrison v. Louisiana, 379 U.S. 64 (1964)..........................25 

Globe Newspaper Co. v. Superior Court, 

457 U.S. 596 (1982) .......................................................10 

Grosjean v. Am. Press Co., 297 U.S. 233 (1936).................11 

Lamont v. Postmaster Gen., 

381 U.S. 301 (1965) .......................................................20 
iv 

 

Page(s) 

Cases (cont’d) 

McConnell v. FEC, 

540 U.S. 93 (2003) .........................2, 3, 4, 5, 8, 18, 19, 24

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) .........................13, 14 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) ...........................................10, 13, 19 

Meyer v. Grant, 486 U.S. 414 (1988)...................................20 

Mills v. Alabama, 384 U.S. 214 (1966)................................13 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) .........................................................2 

N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964) .......................................................10

Randall v. Sorrell, 

126 S. Ct. 2479 (2006) .....................................................2 

Red Lion Broad. Co. v. FCC, 

395 U.S. 367 (1969) .......................................................10 

Reid v. Covert, 354 U.S. 1 (1957) ........................................25 

Rosenberger v. Rector & Visitors of the Univ. 

of Va., 515 U.S. 819 (1995)............................................22 

Roth v. United States, 354 U.S. 476 (1957) .........................10 

Thornhill v. Alabama, 310 U.S. 88 (1940)...........................11 

United States v. Cruikshank, 

92 U.S. 542 (1876) .........................................................12 

W. Va. Univ. Hosps., Inc. v. Casey, 

499 U.S. 83 (1991) .........................................................23 

Wisconsin Right to Life, Inc. v. FEC, 

126 S. Ct. 1016 (2006) .............................................2, 3, 6 
v 

 

Page(s)

Statutes

2 U.S.C. § 434(f)(3)(A)(i) ......................................................3 

2 U.S.C. § 441b ......................................................................1 

2 U.S.C. § 441b(a)..................................................................3 

2 U.S.C. § 441b(b)(2).............................................................3 

2 U.S.C. § 441b(b)(2)(A)-(C).................................................4 

26 U.S.C. § 4911(d)(1).........................................................10 

Regulations 

11 C.F.R. § 100.29(b)(2) ........................................................3

Legislative Materials

S. 1, 110th Cong...................................................................16

Other Authorities

Continental Congress, Address to the 

Inhabitants of the Province of Quebec 

(Oct. 26, 1774), in 1 JOURNAL OF THE 

CONTINENTAL CONGRESS 104 (1904 ed.).......................11 

Stephen A. Higginson, A Short History of the 

Right to Petition Government for the 

Redress of Grievances, 96 YALE L.J. 142 

(1986) .............................................................................12 

Mitch McConnell, Healthy Campaigns, 

Democracy Are Compatible, THE HILL, 

July 24, 2002 ..................................................................19 

Mitch McConnell, In Defense of Soft Money, 

N.Y. TIMES, Apr. 1, 2001.................................................2 

Mitch McConnell, Speech Limits Are Not 

Reform, USA TODAY, Feb. 26, 2002................................1 
vi 

 

Page(s) 

Other Authorities (cont’d) 

Mitch McConnell, Stop Arm-Twisting 

“Support,” USA TODAY, Feb. 8, 2007 ............................1 

Press Release, Office of the Press Secretary, 

President Signs Campaign Finance Reform 

Act (Mar. 27, 2002), at 

http://www.whitehouse.gov/ 

news/releases/2002/03/20020327.html ............................3 

Bradley A. Smith & Jason R. Owen, Boundary 

Based Restrictions in Unbounded Broadcast 

Media Markets: McConnell v. FEC’s 

Underinclusive Overbreadth Analysis, 

18 STAN. L. & POL’Y REV. _ 

(forthcoming 2007).........................................................14 
 

BRIEF OF 

UNITED STATES SENATOR MITCH McCONNELL 

AS AMICUS CURIAE IN SUPPORT OF APPELLEE 

INTEREST OF AMICUS CURIAE1

The question presented in this case is whether the prohibition on “electioneering communications,” codified at 

2 U.S.C. § 441b, is unconstitutional as applied to grass-roots 

lobbying. The First Amendment is essential to the vitality 

and legitimacy of our political process. Amicus—a long-time 

advocate of First Amendment protection for political speech, 

and an elected official with a vital personal stake in the 

health of our political system—has a significant interest in 

the resolution of this question. 

United States Senator Mitch McConnell is the senior 

United States Senator from the Commonwealth of Kentucky 

and the Senate Republican Leader. He also is the former 

chairman and a current member of the Senate Rules and Administration Committee, which is the committee responsible 

for reviewing all proposed legislation related to federal elections. During his four terms in the Senate, Senator McConnell has been one of the Senate’s foremost champions of vigorous political debate and has consistently argued that restrictions upon free speech are constitutionally doubtful and will 

undermine popular participation in government. See, e.g., 

Mitch McConnell, Stop Arm-Twisting “Support,” USA

TODAY, Feb. 8, 2007, at 14A; Mitch McConnell, Speech 

Limits Are Not Reform, USA TODAY, Feb. 26, 2002, at 13A; 

 

 1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties to the filing of this brief have been submitted to the Clerk. Pursuant 

to this Court’s Rule 37.6, amicus states that this brief was not authored in 

whole or in part by counsel for any party, and that no person or entity 

other than amicus or his counsel made a monetary contribution to the 

preparation or submission of this brief. 
2

 

Mitch McConnell, In Defense of Soft Money, N.Y. TIMES, 

Apr. 1, 2001, § 4, at 17. 

Senator McConnell’s strongly held beliefs about the 

meaning of the First Amendment and the importance of robust political debate led him to challenge the constitutionality 

of the Bipartisan Campaign Reform Act of 2002 shortly after 

its enactment. See McConnell v. FEC, 540 U.S. 93 (2003). 

He also has participated as amicus curiae in several other 

cases contesting the validity of restrictions on political 

speech.2 Senator McConnell’s position as a United States 

Senator and his extensive experience with campaign finance 

legislation give him unique insight into the constitutional infirmities presented by the Bipartisan Campaign Reform Act’s 

application to the grass-roots lobbying efforts at issue here. 

STATEMENT 

1. In 2002, Congress passed, and the President signed, 

the Bipartisan Campaign Reform Act (“BCRA”), which 

amended the Federal Election Campaign Act of 1971 

(“FECA”) to curb corruption or the appearance of corruption 

in federal elections. See McConnell, 540 U.S. at 115 (calling 

BCRA the most recent federal enactment designed to “purge 

 

 2 See Brief of United States Senator Mitch McConnell as Amicus Curiae in Support of Petitioners, Randall v. Sorrell, 126 S. Ct. 2479 (2006) 

(No. 04-1528); Brief of United States Senator Mitch McConnell as 

Amicus Curiae in Support of Appellant, Wis. Right to Life, Inc. v. FEC, 

126 S. Ct. 1016 (2006) (No. 04-1581); Brief of Senator Mitch McConnell, 

Missouri Republican Party, Republican National Committee, and National 

Republican Senatorial Committee, as Amici Curiae in Support of Respondents, Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) (No. 98-

963); Brief of Washington Legal Foundation, Fair Government Foundation, Allied Educational Foundation; U.S. Senators Alfonse M. D’Amato, 

Mitch McConnell; U.S. Representatives Henry J. Hyde, Bob Livingston, 

Joe Barton, Bob Walker; Bill Frenxel and Eugene McCarthy, as Amici 

Curiae in Support of Petitioners, Colo. Republican Fed. Campaign 

Comm. v. FEC, 518 U.S. 604 (1996) (No. 95-489). 
3

 

national politics of what was conceived to be the pernicious 

influence of ‘big money’ campaign contributions” (internal 

quotation marks omitted)). When signing BCRA into law, 

President Bush cautioned that several of its provisions “present serious constitutional concerns.” Press Release, Office 

of the Press Secretary, President Signs Campaign Finance 

Reform Act (Mar. 27, 2002), at http://www.whitehouse.gov/ 

news/releases/2002/03/20020327.html [hereinafter Presidential Signing Statement]. The President expressed specific 

“reservations about the constitutionality of [BCRA § 203’s] 

broad ban on issue advertising, which restrains the speech of 

a wide variety of groups on issues of public import in the 

months closest to an election.” Id.

A year later, this Court upheld most of BCRA’s provisions, and rejected a facial challenge to BCRA § 203’s restrictions on issue advertising. McConnell, 540 U.S. at 207. 

In Wisconsin Right to Life, Inc. v. FEC, 126 S. Ct. 1016 

(2006), this Court clarified that its decision in McConnell did 

not “resolve future as-applied challenges” to BCRA § 203. 

Id. at 1018. This Court is now squarely confronted with the 

as-applied constitutional challenge that McConnell invited 

for another day. 

2. BCRA § 203 prohibits any corporation from 

“mak[ing] a contribution or expenditure in connection with 

any election to any political office, or in connection with any 

primary election . . . for any political office.” 2 U.S.C. 

§ 441b(a). The terms “contribution” and “expenditure” are 

defined to include “electioneering communications.” Id.

§ 441b(b)(2).

An “electioneering communication,” in turn, is defined 

as any broadcast, cable, or satellite communication that 

(i) refers to any clearly identified federal candidate; (ii) is 

made within 30 days of a primary or 60 days of a general 

election; and (iii) is targeted to the electorate of the identified 

candidate. 2 U.S.C. § 434(f)(3)(A)(i); see also 11 C.F.R. 
4

 

§ 100.29(b)(2) (“[r]efers to a clearly identified candidate 

means that the candidate’s name, nickname, photograph, or 

drawing appears”). Once these provisions are triggered, a 

corporation “may not use [its] general treasury funds to finance electioneering communications”; if it intends to run 

advertisements referring to particular federal officeholders 

during this black-out period, it must first create a distinct organization—a separate segregated fund (or PAC)—in order 

to speak. McConnell, 540 U.S. at 204; see also 2 U.S.C. 

§ 441b(b)(2)(A)-(C).3 BCRA § 203 thus extended FECA’s 

existing restrictions on “express advocacy,” which applied to 

corporate-funded advertisements that explicitly advocated a 

candidate’s election or defeat, to electioneering issue advertisements, which did not expressly advocate a vote for or 

against a candidate. McConnell, 540 U.S. at 193-94. 

In McConnell, the parties challenging BCRA’s constitutionality argued that § 203’s restriction on electioneering 

communications was substantially overbroad and thus facially unconstitutional. 540 U.S. at 204. The Court rejected 

this facial challenge because it believed that “the vast majority” of issue ads aired during the weeks immediately preceding an election served an electioneering purpose (id. at 206) 

and that restrictions on such ads were necessary to combat 

the potentially distorting impact of corporate wealth on elections. Id. at 205. The Court explained that the “justifications 

for the regulation of express advocacy apply equally to [issue] ads aired during those periods if the ads are intended to 

influence the voters’ decisions and have that effect.” Id. at 

206 (emphases added). The Court recognized that restric-

 

 3 Section 441b(b)(2)(C) provides that “the term ‘contribution or expenditure’ . . . shall not include . . . the establishment, administration, and 

solicitation of contributions to a separate segregated fund to be utilized for 

political purposes by a corporation, labor organization, membership organization, cooperative, or corporation without capital stock.” 
5

 

tions on issue ads that are not intended to serve an electioneering purpose are constitutionally suspect and are thus amenable to an as-applied challenge. See id. at 206 n.88 (“interests that justify the regulation of campaign speech might not 

apply to the regulation of . . . issue ads” that do not serve an 

electioneering function). 

3. During the summer of 2004, Wisconsin Right To 

Life, Inc. (“WRTL”), a nonprofit, 501(c) tax-exempt Wisconsin corporation, ran a series of advertisements urging 

Wisconsin residents to lobby United States Senators Feingold 

and Kohl to oppose filibusters of judicial nominees. See Jurisdictional Statement Appendix (“J.S.A.”) at 2a-6a. The 

filibuster issue was then receiving significant national attention, and there was a vigorous public debate about the judicial confirmation process. 

WRTL’s lobbying campaign did not refer to the Senators’ party affiliations, their general voting records, or their 

personal lives. See J.S.A. at 3a-6a. In fact, the ads mentioned the Senators’ names only once, concluding with the 

suggestion that listeners “[c]ontact Senators Feingold and 

Kohl and tell them to oppose the filibuster.” See id. (wording 

of three filibuster ads). It is undisputed that, because the ads 

made reference to Senator Feingold, who was then seeking 

re-election, they fell within the plain terms of BCRA’s electioneering communications provisions for approximately a 

two-and-a-half-month period, beginning August 15, 2004. 

See id. at 6a-7a.4

4. On July 28, 2004, WRTL filed suit in the United 

States District Court for the District of Columbia and sought 

a preliminary injunction allowing it to continue running the 

filibuster ads with general treasury funds during the statuto-

 

 4 Because Senator Feingold was a candidate in the September 14 primary and the November 2 general election, WRTL was prohibited from 

running the filibuster ads from August 15 to November 2, 2004. 
6

 

rily imposed black-out period. See J.S.A. at 7a. A threejudge panel, convened pursuant to BCRA § 403(a)(1), denied 

WRTL’s request for injunctive relief, interpreting McConnell 

as precluding all as-applied challenges to BCRA’s electioneering communications provisions. See id. at 8a. 

This Court noted probable jurisdiction and unanimously 

reversed, concluding that the district court had misinterpreted 

McConnell. Wis. Right to Life, 126 S. Ct. at 1018. The 

Court explained that “[i]n upholding § 203 against a facial 

challenge, we did not purport to resolve future as-applied 

challenges,” id., and remanded the case with instructions that 

the district court consider the merits of WRTL’s claims. 

5. On remand, the district court granted WRTL summary judgment, holding that BCRA § 203 is unconstitutional 

as applied to the three anti-filibuster ads that WRTL ran in 

the period preceding the 2004 election. See J.S.A. at 1a-2a. 

As an initial matter, the court held that WRTL’s claim with 

respect to the three ads is not moot because the difficulty of 

obtaining judicial review during the brief BCRA blackout 

period, and WRTL’s stated intention of running similar issue 

ads during future periods, suffice to bring its challenge within 

the exception for claims “capable of repetition, yet evading 

review.” See id. at 11a-15a. 

On the merits, the court held that BCRA § 203 cannot be 

constitutionally applied to issue ads that are neither express 

advocacy nor its functional equivalent because the government lacks a compelling interest in foreclosing grass-roots 

advocacy in the period preceding an election. See J.S.A. at 

16a. The court therefore evaluated the text and images of 

WRTL’s ads to determine whether they evidenced an electioneering purpose or effect. See id. at 18a-19a. The court 

declined, however, to expand its inquiry beyond the “four 

corners” of the ads, reasoning that it would be unmanageable 

to conduct an as-applied challenge during the statutorily prescribed blackout period if each case required depositions and 
7

 

expert testimony regarding the likely impact of an ad and its 

sponsor’s alleged subjective intent. See id. at 19a-20a. The 

court emphasized that “delving into a speaker’s subjective 

intent is both dangerous and undesirable when First Amendment freedoms are at stake.” Id. at 20a. 

The district court listed several factors that it deemed 

relevant in identifying a constitutionally protected grass-roots 

lobbying ad—namely, whether the ad 

(1) describes a legislative issue that is either currently the subject of legislative scrutiny or likely to 

be the subject of such scrutiny in the near future; 

(2) refers to the prior voting record or current position of the named candidate on the issue described; 

(3) exhorts the listener to do anything other than 

contact the candidate about the described issue; 

(4) promotes, attacks, supports, or opposes the 

named candidate; and (5) refers to the upcoming 

election, candidacy, and/or political party of the 

candidate. 

J.S.A. at 22a. Applying these factors to WRTL’s ads, the 

court concluded that the ads did not serve an electioneering 

purpose because they addressed judicial filibusters—a pressing matter of public concern—and referred to Senator Feingold, then a candidate for reelection, only in the ads’ “call-toaction” line, which exhorted viewers to contact the Senator to 

express their views on the issue. See id. at 23a-24a. The 

court therefore concluded that BCRA § 203 could not be 

constitutionally applied to WRTL’s ads. See id. at 29a. 

The United States filed a notice of appeal and a jurisdictional statement, and this Court agreed to hear the case, while 

postponing further consideration of the question of jurisdiction until the hearing on the merits.
8

 

SUMMARY OF ARGUMENT 

This case presents the exceptionally important question 

whether BCRA § 203’s restrictions on electioneering communications can be constitutionally applied to grass-roots 

lobbying ads that do not serve an electioneering purpose. 

The Court’s resolution of this issue should give due regard to 

the free speech and petition rights embodied in the First 

Amendment. 

In McConnell, the Court explicitly acknowledged the serious constitutional concerns that would be raised by the application of BCRA’s electioneering communications provisions to grass-roots lobbying activity. See 540 U.S. at 206 

n.88 (“interests that justify the regulation of campaign speech 

might not apply to the regulation of . . . issue ads” that do not 

serve an electioneering purpose); see also Presidential Signing Statement (expressing “reservations about the constitutionality of the broad ban on issue advertising”). Because the 

ability of citizens to express their views and communicate 

with their elected representatives without restraint is the essence of self-government and rests at the heart of the First 

Amendment, BCRA § 203’s limitations on grass-roots lobbying are unconstitutional. 

Political speech rests “[a]t the core of the First Amendment.” Brown v. Hartlage, 456 U.S. 45, 52 (1982). Grassroots lobbying, a traditional means of influencing governmental action through citizen participation, fits squarely 

within the scope of core political speech and is also a manifestation of the people’s constitutionally protected right to 

petition the government. To restrict this class of favored 

speech, the government must establish that the restriction is 

narrowly tailored to serve a compelling governmental interest. 

This demanding level of scrutiny is warranted because 

political speech underlies every facet of the American system 

of government. Without robust political debate, the people 
9

 

cannot govern themselves effectively. Grass-roots lobbying 

facilitates self-governance by encouraging citizen participation in government and the free exchange of ideas. Open 

discourse thus serves a consensus-building function, which 

ensures that the “best” ideas win out in the political marketplace. 

The government has not identified a compelling interest 

sufficient to justify the imposition of BCRA’s restrictions on 

grass-roots lobbying ads during the weeks immediately preceding an election, when constituents are most receptive to 

political ads and Congress is often at the height of its legislative activity. A generalized concern about protecting the integrity of the election process does not justify imposing restrictions upon grass-roots issue ads because such restrictions 

do not further the government’s asserted anticorruption interest. Grass-roots issue ads are not functionally equivalent to 

electioneering issue ads because grass-roots issue ads do not 

urge a candidate’s election or defeat, either in appearance or 

actuality. Indeed, the only link between grass-roots issue ads 

and elections is the fact that such ads are run during the time 

frame immediately preceding an election, and that they exhort citizens to contact named elected officials with respect 

to pending legislative or executive matters. A desire to insulate incumbents from public scrutiny is not a constitutionally 

adequate basis for restricting debate on issues of political import. 

Nor would First Amendment interests be advanced by 

intrusive judicial scrutiny into the subjective political views 

of grass-roots lobbyists. The district court was therefore correct that an objective test—one that limits the search for an 

electioneering purpose and effect to the “four corners” of the 

ad—is least intrusive and best ensures a speedy resolution to 

litigation. An inquiry into the subjective intent underlying an 

ad would not only be unduly burdensome but would also 

impermissibly intrude upon the speaker’s political beliefs. 
10

 

This Court should consider this case against the backdrop of our “profound national commitment to the principle 

that debate on public issues should be uninhibited, robust, 

and wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 

270 (1964). Restricting grass-roots lobbying efforts would 

silence core political speech that is integral to the functioning 

of our form of government. 

ARGUMENT 

I. GRASS-ROOTS LOBBYING IS CORE 

POLITICAL SPEECH. 

A. Political speech lies at the heart of the First Amendment’s protections, which ensure the “unfettered interchange 

of ideas for the bringing about of political and social changes 

desired by the people.” Roth v. United States, 354 U.S. 476, 

484 (1957). Grass-roots lobbying, which includes any effort 

to persuade the electorate to support or oppose particular legislative or other official action, is essential to the robust political debate that the First Amendment was designed to foster. See, e.g., 26 U.S.C. § 4911(d)(1) (defining “grass roots” 

lobbying for tax purposes). Such lobbying is a traditional 

and critical tool through which people disseminate ideas and 

make their views known to their elected officials. 

This Court has long recognized the importance of “preserv[ing] an uninhibited marketplace of ideas in which truth 

will ultimately prevail,” and preventing “monopolization of 

that market . . . by the Government itself.” Red Lion Broad. 

Co. v. FCC, 395 U.S. 367, 390 (1969). Indeed, “issuebased” speech involving “advocacy of a politically controversial viewpoint . . . is the essence of First Amendment expression.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 

334, 347 (1995). Debate on issues of public importance ensures that the people, rather than the government, retain primary responsibility for the policy choices made on their behalf. See Globe Newspaper Co. v. Superior Court, 457 U.S. 

596, 604 (1982) (“the First Amendment serves to ensure that 
11

 

the individual citizen can effectively participate in and contribute to our republican system of self-government”). 

Constitutional protection for grass-roots lobbying promotes participatory government. Through the dissemination 

of views on public issues, grass-roots lobbyists help promote 

public debate and the development of a responsible, informed 

electorate. See Thornhill v. Alabama, 310 U.S. 88, 104 

(1940) (First Amendment protection “is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern”); Grosjean v. 

Am. Press Co., 297 U.S. 233, 250 (1936) (same). Informed 

citizens, in turn, are better able to hold their representatives 

accountable for unwise or unjust measures that impair the 

public interest. Indeed, as the Founders were aware, the 

“ready communication of thoughts between subjects, and its 

consequential promotion of union among them,” render “oppressive officers . . . ashamed or intimidated into more honourable and just modes of conducting affairs.” Continental 

Congress, Address to the Inhabitants of the Province of Quebec (Oct. 26, 1774), in 1 JOURNAL OF THE CONTINENTAL 

CONGRESS 104, 108 (1904 ed.), quoted in Thornhill, 310 U.S. 

at 102. 

WRTL’s grass-roots issue ads fit squarely within this 

constitutional tradition because they were designed to raise 

awareness among Wisconsin voters of the Senate’s filibuster 

of judicial nominees and to urge constituents to contact the 

very people who could bring the filibuster to a close—their 

U.S. Senators. 

The right to engage in grass-roots lobbying activity also 

finds specific textual support in the First Amendment right 

“to petition the Government for a redress of grievances,” 

U.S. CONST. amend. I, which this Court has deemed “one of 

the most precious of the liberties safeguarded by the Bill of 

Rights.” BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524-25 

(2002) (internal quotation marks omitted). The right to peti-
12

 

tion—coupled with the freedoms of association and assembly 

also protected by the First Amendment—renders the government accountable to the people by providing citizens with 

the ability to make their views known to their elected officials. Indeed, the “very idea of a government, republican in 

form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” United States v. Cruikshank, 92 U.S. 542, 552 (1876). 

The freedom to petition is distinct from the right of the 

people to choose their representatives through periodic elections. See Stephen A. Higginson, A Short History of the 

Right To Petition Government for the Redress of Grievances, 

96 YALE L.J. 142, 162 (1986) (noting “the citizenry’s two 

constitutional means of approaching the government: periodic election and continual instruction through petitioning”). 

While the right to vote ensures that the people can replace 

ineffectual leaders with others who would better represent 

them, elections are necessarily episodic. Popular participation in government, however, does not only occur during an 

election cycle, because the Founders provided the people 

with the right to petition, which is an independent and everpresent check on the arbitrary exercise of power. It “not only 

assure[s] popular control of government, but also attach[es] 

to each citizen responsibility for the nation’s laws.” Id.

B. Because robust political speech is essential to republican government, this Court has applied the most exacting 

judicial scrutiny to attempts to burden such expression. See 

FEC v. Mass. Citizens for Life, Inc. (“MCFL”), 479 U.S. 

238, 256 (1986) (“When a statutory provision burdens First 

Amendment rights, it must be justified by a compelling state 

interest.”). This scrutiny is applied whenever a regulation’s 

“practical effect . . . is to make engaging in protected speech 

a severely demanding task,” even if the law permits speech 

by those who comply with the government’s directives. Id. 

If the government identifies a compelling interest, the regula-
13

 

tion must still be “closely drawn to avoid unnecessary 

abridgement” of speech. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978) (internal quotation marks 

omitted). The severe constraints that BCRA § 203 imposes 

on grass-roots lobbying in the weeks preceding a federal 

election cannot survive this stringent scrutiny. 

To be effective, grass-roots lobbyists must be able to 

communicate their message during the times best suited to 

achieving their political objectives. Indeed, “[u]rgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed.” McIntyre, 514 U.S. at 347; 

see also Mills v. Alabama, 384 U.S. 214, 219 (1966) (holding 

unconstitutional a state law that prohibited election-day 

speech because the law “silence[d] the press at a time when it 

can be most effective”). BCRA § 203 prohibits airing grassroots lobbying ads that fall within its definition of “electioneering communications” at the time when the public will be 

most receptive to political ads and legislators will be most 

likely to pay heed to their constituents’ guidance—the weeks 

leading up to a federal election. See, e.g., McConnell v. FEC, 

251 F. Supp. 2d 176, 793 n.98 (D.D.C. 2003) (Leon, J.) (listing “important, and controversial, pieces of legislation” before Congress in the 60 days prior to the 2002 midterm elections). Indeed, by targeting messages concerning incumbent 

officials who are facing reelection, BCRA § 203 prevents 

grass-roots lobbying directed at those politicians most likely 

to be sensitive to constituent concerns. The First Amendment, however, prohibits the government from regulating 

issue-based speech merely because it may prove influential. 

See Bellotti, 435 U.S. at 791-92. The government cannot insulate itself from criticism on public issues at the very moment when that criticism will be most keenly felt. 

The realities of the presidential primary season and 

multi-state media markets exacerbate the problems that advocacy groups face in airing grass-roots lobbying ads prior to 
14

 

an election. Because each State holds a presidential primary 

or caucus for both major parties, followed by the general 

election in November, the total BCRA blackout period for 

presidential nominees could exceed 120 days in every State. 

See Bradley A. Smith & Jason R. Owen, Boundary Based 

Restrictions in Unbounded Broadcast Media Markets: 

McConnell v. FEC’s Underinclusive Overbreadth Analysis, 

18 STAN. L. & POL’Y REV. _ (forthcoming 2007). Moreover, 

because television networks in large metropolitan areas often 

serve more than one State, such stations may need to observe 

longer blackout periods due to staggered state primaries. See 

id. Although these restrictions are most severe for national 

candidates, they are by no means so limited (as the facts of 

this case illustrate). Indeed, BCRA § 203 restricts, for example, the ability of an advocacy group to run an issue ad in the 

D.C. media market that names the sponsors of a bill or committee members conducting a hearing, if the network also 

serves a State where the named incumbents are facing reelection. See id.

The alternatives offered by appellants do not provide 

adequate channels for effective grass-roots lobbying. For 

example, it will often not suffice for an advocacy group to 

run an ad omitting the name of a candidate. This is particularly true when the purpose of an ad is to spur the electorate 

to action by convincing constituents to contact their elected 

representatives about a specific political issue. See McConnell, 251 F. Supp. 2d at 794 (Leon, J.) (citing expert testimony stating that “[t]he express or implied urging of viewers 

or listeners to contact the policymaker regarding [an] issue is 

. . . especially effective by showing them how they can personally impact the issue debate in question” (alterations in 

original)). The name of a candidate may also be indispensable when a piece of legislation is closely associated with a 

particular person (e.g., “McCain-Feingold”) or when mentioning a candidate helps the viewer remember the message 

of the ad. See id. For example, WRTL’s ads dealt with fili-
15

 

busters and judicial confirmations, which some members of 

the public may not know are issues within the exclusive 

province of the Senate. By asking the viewer to contact 

Senators Feingold and Kohl, the ads connect familiar names 

with the issue and with the legislative body responsible for 

resolving it. An ad omitting those names would have left a 

much more fleeting impression on viewers. 

Nor does it suffice to save BCRA § 203 from unconstitutionality that grass-roots lobbyists may run an issue ad during 

the statutorily prescribed “blackout” period by using PAC 

money. As this Court has recognized, PAC regulations “impose administrative costs that many small entities may be 

unable to bear,” creating a disincentive for those organizations to engage in political speech at all. MCFL, 479 U.S. at 

254. Indeed, the FEC’s “Campaign Guide for Corporations 

and Labor Unions” is more than 115 pages long 

(http://www.fec.gov/pdf/colagui.pdf), and the federal regulations governing PACs are equally extensive. See 11 C.F.R. 

pt. 102. In addition, more than thirty years of precedent governing PACs are embodied in FEC advisory opinions and 

enforcement actions. Confronted with the specter of substantial administrative fines for violations of these complex regulatory requirements, advocacy groups must generally retain 

not only an election lawyer but also an accountant to ensure 

regulatory compliance. These are costs that many groups 

simply cannot afford, especially because they must also invest in expensive computer equipment and software to comply with the FEC’s electronic filing requirements for PAC 

disclosures. 

Moreover, “the reporting and disclosure requirements 

[for PAC donors] will deter some individuals who otherwise 

might contribute,” MCFL, 479 U.S. at 254 n.7 (internal quotation marks omitted), and it is therefore more difficult for 

corporations and nonprofit organizations to raise PAC money 

than general treasury funds. WRTL understandably desires 

to use its scarce PAC resources to fund “express advocacy,” 
16

 

or campaign-related speech. WRTL and similarly situated 

groups should not have to choose between exercising their 

First Amendment right to engage in electioneering or their 

First Amendment right to pursue grass-roots lobbying campaigns in the critical weeks before a federal election.5

Furthermore, WRTL’s PAC is “a separate legal entity 

. . . that engages in independent political advocacy.” Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 196 (1981). Use of a PAC 

would prevent WRTL from running an issue ad in its own 

name. In addition, since organizations create PACs to solicit 

money for campaign-related speech, and the FEC requires a 

disclaimer on each ad funded by a PAC, BCRA § 203 compels grass-roots lobbyists to create ads carrying the PAC label for speech that is unrelated to any election. Ironically, in 

such cases, the law requires an issue-advocacy group to create an ad that, while intended only to address an issue of public concern, carries on its face a label suggesting an electioneering purpose. 

Perhaps recognizing the weakness of its arguments on 

the merits, the United States makes the unprecedented claim 

that WRTL bears the burden of proof in an as-applied constitutional challenge to BCRA § 203. U.S. Br. 32. On the contrary, it is well-established that, “[e]specially where, as here, 

a prohibition is directed at speech itself, and the speech is 

intimately related to the process of governing, the State may 

prevail only upon showing a subordinating interest which is 

compelling.” Bellotti, 435 U.S. at 786 (internal quotation 

marks and footnote omitted). The “burden is on the Gov-

 

 5 The importance of preserving the right to engage in grass-roots lobbying unencumbered by governmental burdens is reflected in the Senate’s 

recent vote to remove a provision from the Lobbying Transparency and 

Accountability Act of 2007 that would have required the public disclosure of paid efforts to stimulate grass-roots lobbying. S. 1, 110th Cong. 

§ 220. The amended bill passed the Senate by a vote of 96-2. 
17

 

ernment to show the existence of such an interest.” Id. (emphasis added; internal quotation marks omitted). For example, in MCFL, a nonprofit corporation brought an as-applied 

challenge to the provision of FECA requiring corporations to 

use a PAC to fund independent expenditures for express advocacy. See 479 U.S. at 241. In considering the claim, the 

Court carefully scrutinized each of the rationales that the 

United States offered in defense of the PAC requirement, and 

concluded that none of them justified the onerous burdens 

imposed on MCFL’s freedom of speech. See id. at 256-63. 

This analysis would have been entirely beside the point if, as 

the government now argues, MCFL had borne the burden of 

establishing its entitlement to an exemption from a facially 

valid law. The government’s test turns the traditional burden 

of proof in First Amendment cases on its head.6

C. The government cannot demonstrate a compelling interest that adequately justifies the significant burdens that 

BCRA § 203 imposes on grass-roots lobbying. 

 

 6 The United States also asks this Court to adopt a novel standard for 

determining whether a case falls under the “capable of repetition, yet 

evading review” exception to mootness: namely, that WRTL must show 

that it intends to run ads in the future that share “the particular characteristics that the district court found legally dispositive.” U.S. Br. 25 (emphasis added). This standard is plainly incorrect. The practical effect of 

requiring grass-roots lobbyists to demonstrate that they anticipate reoccurrence of the precise factual circumstances before the court would be to 

prevent the adjudication of any as-applied challenge to BCRA § 203 and 

to insulate that provision from constitutional scrutiny. J.S.A. at 14a. Under this Court’s precedent, WRTL need only demonstrate that there is a 

“reasonable expectation” that it will be subject to the “same action” 

again. Belotti, 435 U.S. at 774 (internal quotation marks omitted). As 

the intervenor-appellants concede, WRTL easily satisfies this burden, 

“particularly in light of more recent attempts by WRTL to finance electioneering communications with its general treasury funds.” McCain Br. 

13 n.8. 
18

 

The government does not have the same compelling interest in regulating grass-roots lobbying as it does in regulating true electioneering. Congress enacted the “electioneering 

communications” provisions in BCRA to protect the integrity 

of electoral politics against “the corrosive and distorting effects of immense aggregations of wealth that are accumulated 

with the help of the corporate form.” Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990). There is no 

comparable concern that corporations or nonprofits will use 

grass-roots lobbying—which is designed to foster discourse 

between the people and their elected representatives, rather 

than to further a campaign for political office—to exercise 

undue influence over elections. See McConnell, 540 U.S. at 

206 n.88 (“we assume that the interests that justify the regulation of campaign speech might not apply to the regulation 

of genuine issue ads”); Bellotti, 435 U.S. at 790 (“The risk of 

corruption perceived in cases involving candidate elections 

. . . simply is not present” in an effort to influence the outcome of a state referendum). 

Grass-roots lobbying ads that merely advise voters to 

contact their elected representatives to express their views on 

a particular issue contribute neither to actual corruption nor 

to its appearance. As the district court explained, the “common denominator between express advocacy and its functional equivalent . . . is the link between the words and images used in the ad and the fitness, or lack thereof, of the 

candidate for public office.” J.S.A. at 27a. The government 

has no legitimate interest in regulating speech under BCRA 

§ 203 if that speech is directed at an issue of public concern 

and is silent on the suitability of the named candidate for office. 

Indeed, the regulation of genuine issue advocacy actually impairs the government’s interest in ensuring fair and 

equal opportunity for citizens to participate in the electoral 

process. While the use of corporate money in elections may 

create perceived imbalances of political power, the free and 
19

 

open exchange of ideas on issues of political importance is a 

principal guarantor of equality in participatory government. 

See McIntyre, 514 U.S. at 348 n.11 (“the best test of truth is 

the power of the thought to get itself accepted in the competition of the market” (quoting Abrams v. United States, 250 

U.S. 616, 630 (1919) (Holmes, J., dissenting))). The government is therefore wrong to suggest that regulation of issue 

advocacy is necessary to prevent corruption in elections; 

“healthy campaigns and a healthy democracy are not in conflict with the First Amendment, but contingent upon it.” 

Mitch McConnell, Healthy Campaigns, Democracy Are 

Compatible, THE HILL, July 24, 2002, at 30. 

In McConnell, this Court recognized that there might be 

examples of classes of speech that Congress could not constitutionally regulate under BCRA § 203 and that the “justifications for the regulation of express advocacy apply equally” to 

issue ads only “if the ads are intended to influence the voters’ 

decisions and have that effect.” 540 U.S. at 206 & n.88 (emphases added). The Court should now make clear that BCRA 

§ 203 is unconstitutional as applied to grass-roots lobbying 

because the government lacks a compelling interest in restricting political speech that does not have the purpose or 

effect of influencing an election.

II. IN EVALUATING WHETHER A GRASSROOTS LOBBYING COMMUNICATION 

IS CONSTITUTIONALLY PROTECTED, 

COURTS SHOULD CONSIDER ONLY THE 

“FOUR CORNERS” OF THE AD. 

Appellants urge this Court to endorse an open-ended, 

subjective inquiry that would empower judges to scrutinize 

the full panoply of a speaker’s political views and activities 

to determine whether a facially authentic issue ad “truly” 

constitutes grass-roots lobbying. The substantial litigating 

burdens associated with appellants’ proposed test would have 

a significant chilling effect on the grass-roots advocacy of 
20

 

groups unable to divert their finite resources to fund a 

lengthy court battle with the government. Appellants’ test 

also disregards the fact that advocacy groups like WRTL are 

often interested in influencing both legislative activities and 

the outcome of elections, and that they have a wide variety of 

constitutionally protected tools at their disposal to further 

their various political objectives. See Meyer v. Grant, 486 

U.S. 414, 424 (1988) (“The First Amendment protects 

[speakers’] right not only to advocate their cause but also to 

select what they believe to be the most effective means for so 

doing.”). To that end, advocacy groups organize community 

events to educate the public about important issues, propose 

and draft new legislation, establish and utilize PACs for electioneering purposes, and run issue-specific grass-roots lobbying ads to support or oppose particular legislative proposals. 

The test advocated by appellants would impermissibly burden the grass-roots lobbying rights of those organizations 

that also engage in express electioneering activities. 

The district court therefore properly confined its inquiry 

to the text and images of WRTL’s ads. This objective standard for identifying grass-roots lobbying safeguards the government’s interest in preventing corruption and preserving 

the integrity of the electoral process. An invasive, subjective 

inquiry, on the other hand, would chill constitutionally protected speech and unnecessarily burden the judicial process. 

A. The subjective standard for identifying grass-roots 

lobbying urged by appellants would require intrusive inquisitions into the thoughts and beliefs of the officers and directors of grass-roots lobbying organizations to determine the 

“true” motivation behind their ads. The prospect of having to 

disclose one’s political affiliations and electoral preferences 

by deposition or testimony in the course of a lawsuit is almost certain to deter “the uninhibited, robust, and wide-open 

debate and discussion that are contemplated by the First 

Amendment.” Lamont v. Postmaster Gen., 381 U.S. 301, 

307 (1965) (internal quotation marks omitted). This will be 
21

 

particularly true for small, comparatively unsophisticated 

groups that engage in grass-roots lobbying. When confronted with burdensome regulation and the possibility of 

intrusive litigation, “it would not be surprising if at least 

some [smaller] groups decided that the contemplated political 

activity was simply not worth it.” MCFL, 479 U.S. at 255. 

The members of political associations should not have to endure such invasive judicial inquiries in order to exercise their 

fundamental First Amendment rights. See J.S.A. at 20a 

(“delving into a speaker’s subjective intent is both dangerous 

and undesirable when First Amendment freedoms are at 

stake”). 

The district court also noted the significant practical 

consequences of adopting a subjective test. An inquiry into 

the intentions underlying an ad would entail lengthy discovery and trial testimony, and would make it virtually impossible for issue advocates to mount a successful as-applied 

challenge within the limited time frame of the BCRA blackout period. See J.S.A. at 19a. Indeed, a subjective test would 

make it very difficult for political associations to structure 

their future conduct with any degree of certainty, as the government could conceivably introduce a written or oral statement of any member of the organization as proof of hidden 

electioneering intent. See Buckley v. Valeo, 424 U.S. 1, 43 

(1976) (noting that a subjective intent test “puts the speaker 

. . . wholly at the mercy of the varied understanding of his 

hearers and consequently of whatever inference may be 

drawn as to his intent and meaning” (internal quotation 

marks omitted)). To ensure compliance with BCRA § 203, 

advocacy organizations would need to consult closely with 

lawyers in developing their grass-roots lobbying campaigns—a cost that many groups would be unable to absorb 

and that would compel such groups to forgo grass-roots lobbying altogether. The subjective approach advocated by appellants would thus inevitably result in the suppression of a 

significant amount of constitutionally protected speech. 
22

 

Moreover, this Court has made clear that First Amendment protection cannot depend on the identity of the speaker. 

See Bellotti, 435 U.S. at 777 (“The inherent worth of the 

speech in terms of its capacity for informing the public does 

not depend upon the identity of its source . . . .”). Indeed, the 

First Amendment forbids regulation of speech “when the 

specific motivating ideology or the opinion or perspective of 

the speaker is the rationale for the restriction.” Rosenberger 

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 

(1995). Despite this well-established prohibition on “viewpoint discrimination,” appellants ask this Court to determine 

whether WRTL’s ads constitute grass-roots lobbying by parsing its press releases, e-alerts, voter guides, and the full content of its former website, “befair.org,” for evidence that 

WRTL supports or opposes the candidate named in the ad. 

See, e.g., McCain Br. 25, 27, 42.7 These materials and other 

public pronouncements made by nonprofit groups like 

WRTL will often reveal the electoral preferences of the 

speaker; they do not, however, transform grass-roots lobbying into the functional equivalent of express advocacy. 

Participants in the political marketplace may use a variety of methods to achieve their policy aims, and each method 

is suited to accomplish a particular result. It is undisputed 

 

 7 Appellants place considerable weight on the content of WRTL’s website, “befair.org,” and the exhortation in the ads to visit the site for more 

information. Directing viewers to the website makes perfect sense: It 

will almost always be easier for viewers to remember the name of a website than a telephone number or address mentioned briefly at the end of an 

ad. While the full content of the site contains examples of campaignrelated speech (as well as contact information for the Senators), this will 

be true of any advocacy group that engages in both electioneering and 

lobbying activities, and that uses a website as a clearinghouse for its various activities. Appellants’ blunderbuss approach to the analysis of an ad 

threatens to strip issue-based speech of constitutional protection whenever a political association that runs issue ads publicizes its electioneering 

activities on the same website that promotes its issue advocacy campaign. 
23

 

that one of WRTL’s top legislative priorities in 2004 was to 

end the filibuster of President Bush’s judicial nominees. 

WRTL chose to conduct a grass-roots lobbying campaign to 

increase citizen awareness of the issue and encourage constituents to make their voices heard by contacting their 

elected representatives. Regardless of whether WRTL also 

engaged in electioneering activity, BCRA § 203 cannot be 

constitutionally applied to WRTL’s grass-roots lobbying. 

See, e.g., E. R.R. Presidents Conference v. Noerr Motor 

Freight, Inc., 365 U.S. 127, 138 (1961) (holding that the constitutional right to petition precluded application of the 

Sherman Act “to the activities of the railroads . . . insofar as 

those activities comprised mere solicitation of governmental 

action with respect to the passage and enforcement of laws”). 

If this Court adopted appellants’ test, it would be difficult, if 

not impossible, for a nonprofit entity that engaged in an array 

of political activities, including electioneering, to avoid the 

suspicion that its grass-roots lobbying campaigns were a 

veiled attempt to influence an election.8

 

 8 The “four corners” approach adopted by the district court does not, as 

the United States suggests, reintroduce Buckley’s “magic words” test. See 

U.S. Br. 38. Rather, it instructs courts to look to the text and images of an 

ad to determine if the ad, when considered as a whole by a reasonable 

viewer, “promotes, attacks, supports, or opposes the named candidate,” or 

otherwise indicates that it is the functional equivalent of express advocacy. See J.S.A. at 22a. This approach is hardly novel. Indeed, courts 

routinely exclude extrinsic evidence in statutory or contractual interpretation because the text of the document itself is the most reliable evidence 

of the author’s meaning. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey, 

499 U.S. 83, 98-99 (1991) (“[W]e do not permit [statutory text] to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.”); Cruzan v. Dir., Mo. 

Dep’t of Health, 497 U.S. 261, 284 (1990) (“At common law and by statute in most States, the parol evidence rule prevents the variations of the 

terms of a written contract by oral testimony.”). 
24

 

B. The district court properly applied its objective inquiry to WRTL’s ads. Those ads refer on their face to judicial filibusters—a pressing issue of public concern—and evidence no electioneering intent. The ads mention the Senators 

from Wisconsin only in the “call-to-action” line, do not 

praise or criticize them politically or personally, and do not 

refer to their voting records on the filibuster issue. See J.S.A. 

at 3a-6a. Indeed, WRTL’s inclusion of the names of both 

Wisconsin Senators—one of whom, Senator Kohl, was not 

running for reelection in 2004—strongly suggests that the 

purpose of the ads was to influence legislative behavior, not 

electoral outcomes. 

Because no reasonable viewer could interpret these facially neutral ads as an attempt to influence an election, Congress lacks a constitutionally sufficient basis to suppress that 

political speech.9

* * * 

A grass-roots lobbying campaign that urges the electorate to contact its elected representatives to effect policy 

change does not raise the corruption concerns that Congress 

contemplated when it enacted BCRA’s “electioneering communication” provisions. On the contrary, grass-roots lobbying fosters broad-based participation in public affairs and en-

 

 9 Appellants urge this Court to reject WRTL’s proposed test for identifying constitutionally protected grass-roots lobbying ads and to adopt 

instead a broader, subjective standard. See U.S. Br. 29-32. The need for 

any such test, however, is a direct consequence of this Court’s decision in 

McConnell upholding BCRA § 203’s facial constitutionality. See 540 

U.S. at 206. The government should not be permitted to silence core political speech merely because, under the legal framework created by Congress and upheld in part by this Court, the lower courts may have to confront some difficult borderline cases. Indeed, the Court could reduce the 

number of difficult cases by holding that, in the event of doubt, First 

Amendment principles should prevail and constitutionally protected 

speech should be allowed to proceed. 
25

 

hances government accountability. Indeed, the United States 

concedes that “some corporations are engaged in legitimate 

issue advocacy designed to urge changes in the law rather 

than to affect federal elections,” and that BCRA “may occasionally capture advertisements that demonstrably lack any 

electoral purpose or effect.” U.S. Br. 49. Without a compelling state interest—which is demonstrably lacking here—

Congress cannot regulate such political speech because 

“speech concerning public affairs is more than selfexpression; it is the essence of self-government.” Garrison 

v. Louisiana, 379 U.S. 64, 74-75 (1964). 

Ultimately, appellants seem to believe that it is more expedient to prohibit all speech that falls within BCRA § 203’s 

broad definition of “electioneering communications,” rather 

than to permit case-by-case adjudication of the purpose and 

effect of particular ads. However, “the desire for a brightline rule . . . hardly constitutes the compelling state interest 

necessary to justify any infringement on First Amendment 

freedom.” MCFL, 479 U.S. at 263 (emphasis in original). 

Indeed, the notion that the First Amendment ceases to operate when it “become[s] inconvenient or when expediency 

dictates otherwise is a very dangerous doctrine [that] would 

. . . undermine the basis of our government.” Reid v. Covert, 

354 U.S. 1, 14 (1957). Legislation, however wellintentioned, may not intrude on the basic liberties that make 

republican government possible. 
26

 

CONCLUSION

For the foregoing reasons, the judgment of the district 

court should be affirmed. 

Respectfully submitted. 

 THEODORE B. OLSON

 Counsel of Record

DOUGLAS R. COX

AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

Counsel for Amicus Curiae 

March 22, 2007