No. 02-1734 

IN THE 

SUPREME COURT OF THE UNITED STATES 

____________________ 

AMERICAN CIVIL LIBERTIES UNION, 

 

 Appellant, 

-vFEDERAL ELECTION COMMISSION, et al., 

 Appellees.

___________________ 

On Appeal from the United States District Court for the 

District of Columbia 

BRIEF OF APPELLANT 

Joel M. Gora 

Brooklyn Law 

School 

250 Joralemon 

Street 

Brooklyn, NY 

11201 

718-780-7926 

July 2003 

Mark J. Lopez 

(Counsel of Record)

Steven R. Shapiro 

AMERICAN CIVIL 

LIBERTIES

 UNION 

FOUNDATION, INC. 

125 Broad Street 

New York, NY 

10004 

(212) 549-2608 
TABLE OF CONTENTS 

 Page 

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

INTRODUCTION..............................................1 

STATEMENT OF THE CASE................................2 

SUMMARY OF ARGUMENT..............................14 

ARGUMENT....................................................19 

I. SECTION 203 OF THE BCRA, WHICH 

PROHIBITS THE ACLU FROM 

BROADCASTING “ELECTIONEERING 

COMMUNICATIONS,” VIOLATES

THE FIRST AMENDMENT....................19 

A. The BCRA’s Definition of “Electioneering 

Communications” Is Substantially 

Overbroad and Violates First 

Amendment Principles That Long 

Predate Buckley..................................19 

B. The BCRA’s Definition of “Electioneering 

Communications” Is Directly At Odds With 

Buckley And Its Progeny........................25 

1. Any Effort to Regulate Or Prohibit 

Independent Speech or Expenditures

Must Be Subject To Strict Scrutiny..26 

2. The Express Advocacy Rule 

Announced In Buckley Is A 

Necessary Safeguard to Prevent The 

Suppression Of Constitutionally 

Protected Speech........................30 

 Page

3. The BCRA’s Overbroad 

ii
Definition Of “Electioneering 

Communications” Undermines 

Any Asserted Compelling 

State Interest.............................33 

C. The Government is Foreclosed From

Limiting Radio and Television Access 

In An Effort To Level the Playing Field 

Or To Otherwise Influence The Debate 

Over the Qualifications Of Elected 

Officials...........................................37 

II. THE DISCLOSURE AND REPORTING 

REQUIREMENTS OF SECTION 201 

ARE UNCONSTITUTIONAL....................41 

III. SECTIONS 202 AND 214, WHICH 

SIGNIFICANTLY EXPAND THE 

FECA’S RESTRICTIONS ON 

“COORDINATION” VIOLATE THE 

FIRST AMENDMENT RIGHTS OF 

FREEDOM OF SPEECH, 

ASSOCIATION AND PETITION..............46 

CONCLUSION...............................................48 

iii
TABLE OF AUTHORITIES 

Cases 

 Page 

American Civil Liberties Union v. Jennings, 

 366 F. Supp. 1041 (D.D.C. 1973)vacated as moot sub nom, 

Staats v. American Civil Liberties Union, 422 U.S. 1030 

(1975)................................................. 10, 21, 22, 

23, 46 

Arkansas Writers’ Project, Inc. v. Ragland, 

 481 U.S. 221 (1987)......................................................40, 41 

Arnett v. Kennedy, 

 416 U.S. 134 (1974)............................................................24 

Austin v. Michigan State Chamber of Commerce, 

 494 U.S. 652 (1990).........................................10, 35 

Brandenberg v. Ohio, 

395 U.S. 444 (1969)............................................................33 

Brown v. Hartlage, 

 456 U.S. 45 (1982)........................................................24, 25 

Brown v. Socialist Workers >74 Campaign Committee, 

459 U.S. 87 (1982)........................................................10, 45 

Buckley v. American Constitutional Law Foundation, 

 525 U.S. 182 (1999) ............................................47 

Buckley v. Valeo, 

 424 U.S. 1 (1976)........................................................ passim

 

iv
 Page 

California Medical Association v. FEC, 

453 U.S. 182 (1981)............................................................10 

Chamber of Commerce v. Moore, 

 288 F.3d 187 (5 Cir. 2002)................................................33 th

Citizens for Responsible Government State PAC v. Davidson, 

 236 F. 3d 1174 (10 Cir. 2000)...........................................33 th

City of Boerne v. Flores, 

521 U.S. 507 (1997)............................................................30 

City of Ladue v. Gilleo, 

512 U.S. 43 (1994)...............................................................39 

Clifton v. FEC, 

 114 F.3d. 1309 (1 Cir. 1997).............................................32 st

Colorado Republican Federal Campaign Committee v. FEC, 

 518 U.S. 604 (1996) .......................................10, 28 

Connick v. Meyers, 

 461 U.S. 138 (1983)............................................................19 

Consolidated Edison Co. v. New York Public Service 

Commission, 

447 U.S. 530 (1980)............................................................19 

DeJonge v. Oregon, 

299 U.S. 353 (1937)............................................................20 

Eu v. San Francisco County Democratic Central Comm., 

 489 U.S. 214 (1989)............................................................24 

FEC v. Beaumont, 

123 S.Ct. 2200....................................................18, 28, 35, 36 

v
 Page 

FEC v. Central Long Island Tax Reform Immediately 

Committee, 

 616 F.2d 45 (2d Cir. 1980) .................................................32

FEC v. Christian Action Network, Inc., 

110 F.3d 1049 (4 Cir. 1997)...............................................33 th

FEC v. Colorado Republican Federal Campaign Committee 

533 U.S. 431(2001).................................... .....10, 28 

FEC v. National Conservative Political Action Committee, 

470 U.S. 480 (1985).......................................................10, 28 

FEC v. Massachusetts Citizens for Life, 

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

FEC v. National Rifle Association, 

 254 F3d 173 (D.C. Cir. 2001)..............................17, 36 

First National Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978)................................................19, 20, 27 

Garrison v. Louisiana, 

379 U.S. 64 (1964)..............................................................19 

Grosjean v. American Press Co., 

 297 U.S. 233 (1936)......................................................40, 41 

Hurley v. Irish-American Gay, Lesbian and Bisexual Group 

of Boston, 

 515 U.S. 557 (1995)......................................................17, 37 

In Re ACLU, 

 Dkt. MUR 1802 (Federal Election Commission, 1984) .....21 

vi
 Page 

Iowa Right to Life Comm. Inc. v. Williams, 

 187 F.3d. 963 (8 Cir. 1999)...............................................33 th

Leathers v. Medlock, 

 499 U.S. 439 (1990)......................................................38, 40 

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995)..........................................10, 42 

Miami Herald Publishing Co. v. Tornillo, 

418 U.S. 241 (1974)............................................................39 

Mills v. Alabama, 

384 U.S. 214 (1966)..........................................19, 24, 25, 39 

Minneapolis Star & Tribune Co. v. Minnesota Commissioner 

of Revenue, 

 460 U.S. 575 (1983)................................................38, 40, 41 

NAACP v. Alabama, 

 357 U.S. 449 (1958)............................................................42 

NAACP v. Button, 

 371 U.S. 415 (1963)............................................................33 

New York Civil Liberties Union v. Acito, 

 459 F.Supp. 75 (S.D.N.Y. 1978)...............................46 

New York Times Co. v. Sullivan, 

 376 U.S. 254 (1964)..........................................16, 19, 20, 33 

Nixon v. Shrink Missouri Government PAC, 

 528 U.S. 377 (2000)............................................................10 

Red Lion Broadcasting Co. v. FCC, 

 395 U.S. 367 (1969)............................................................39 

vii
 Page 

Republican Party of Minnesota v. White, 

 536 U.S. 765 (2002)............................................................24 

Riley v. National Federation of the Blind, 

487 U.S. 781 (1988)............................................................20

Schad v. Mt. Ephraim, 

 452 U.S. 61 (1981)........................................................38, 39 

Schneider v. State, 

 308 U.S. 147 (1938)............................................................39 

Speiser v. Randall, 

357 U.S. 513 (1958)............................................................20 

Talley v. California, 

362 U.S. 60 (1960)..............................................................42 

Thomas v. Collins, 

 323 U.S. 516 (1945)......................................................21, 31 

Thornhill v. Alabama, 

 310 U.S. 88 (1940)..............................................................19 

United States v. National Treasury Employees Union, 

 513 U.S. 454 (1995)............................................................45 

United States v. National Committee for Impeachment, 

 469 F.2d 1135 (2d Cir.1972)...........................10, 22, 23 

Statutes 

Bipartisan Campaign Reform Act of 2002, 

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

viii
Internal Revenue Code: 

 § 501...................................................................................4 

 § 527...................................................................................4 

11 CFR § 114.10 (2003) ................................................17, 36 

2 U.S.C. §437a, 

repealed Title I § 105, 90 Stat. 481 (1976) ....................23, 24 

2 U.S.C. § 441(b) .................................................................18 

ix
INTRODUCTION 

This case presents a challenge to key provisions of 

the Bipartisan Campaign Reform Act of 2002 (BCRA),

Pub.L. No. 107-155, 166 Stat. 81, which impose new and 

unprecedented restrictions on core political speech in the 

guise of revising this nation’s campaign finance laws. 

Despite its size and complexity, the BCRA was 

designed to achieve two principal goals. Title I prohibits the 

use of so-called soft money by political parties, even for 

traditional party building activities such as voter registration 

and get-out-the-vote drives. Title II makes it a crime for 

even nonprofit, nonpartisan, membership organizations like 

the ACLU to broadcast an ad that mentions the name of a 

federal candidate in the period preceding an election. 

The district court correctly recognized that neither of 

these broad provisions could be reconciled with our 

constitutional traditions. It therefore declined to uphold the

law that Congress had written. It nevertheless upheld a 

rewritten version of the law that continues to pose severe 

constitutional problems. Because the ACLU is not directly 

affected by the soft money ban, we will leave it to others to 

explain why the continued prohibition on the use of soft

money for issue advocacy is unconstitutional. We do, 

however, have a very direct stake in the lower court’s 

interpretation of Title II.

If that interpretation is upheld, it will now be a crime

for the ACLU to broadcast an ad on radio or television 

advocating its views on a particular civil liberties dispute if 

the ad could be construed as attacking, supporting, 

promoting, or opposing a candidate for federal office. To 

place that dilemma in more concrete terms, President Bush

has just announced his intention to run for a second term.

There have also been press reports that the Administration 

may be seeking enhanced surveillance powers from 

1
Congress as part of a new legislative initiative. If the ACLU 

chose to oppose these steps on civil liberties grounds in a 

broadcast ad that referred to the President, we would be 

risking criminal prosecution based on the lower court’s 

decision in this case. 

That result would dramatically transform the rules of

political debate in this country and go far beyond anything

this Court has ever permitted under the First Amendment.

The ACLU urges this Court to reverse the district court and 

invalidate the challenged Title II provisions. 

STATEMENT OF THE CASE 

1. This litigation arises from plaintiffs’ challenge to 

various provisions of the BCRA, including the soft money

restrictions embodied in Title I and the issue advocacy

restrictions embodied in Title II. As part of the McConnell 

complaint filed in the district court, the ACLU specifically 

alleged that its First Amendment right to speak out on issues

of concern to the organization and its members was violated 

by the broad definition of “electioneering communications”

set forth in the BCRA. 

Prior to passage of the BCRA, all corporations, 

unions, associations, committees and individuals were free to 

engage in political speech without being subject to the 

Federal Election Campaign Act so long as their speech did 

not expressly advocate the election or defeat of a clearly

identified candidate. See Buckley v. Valeo, 424 U.S. 1, 45 

(1976); FEC v. Massachusetts Citizens for Life, 479 U.S. 

238 (1986). The BCRA dramatically expanded this 

regulatory regime by extending the ban on corporate and 

union expenditures to cover all “electioneering 

communications,” regardless of whether they involve 

express advocacy. For those individuals and groups not 

2
covered by the broadcast ban, BCRA imposes substantial 

reporting and disclosure requirements. 

Congress provided two definitions of the term 

“electioneering communications” in § 201. Under the 

primary definition, an “electioneering communication”

means any broadcast, cable, or satellite communication that: 

(a) refers to a clearly identified candidate for federal office; 

(b) is made within 60 days of a general election or 30 days of 

a primary election; and (c) is targeted to the relevant 

audience (except in the case of the President or VicePresident where there is no targeting requirement). J.S. App. 

4a.1

 

Congress also anticipated that the primary definition

might not be sustained. It therefore provided a fallback 

definition that applies only if the primary definition is

invalidated. In contrast to the primary definition, the 

fallback definition is not limited to the period preceding an

election. Rather, it prohibits at any time of the year a

broadcast, cable, or satellite communication that “promotes

or supports a candidate for [federal] office, or attacks or 

opposes a candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a 

candidate).” In addition, the communication must be 

“suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific candidate.” J.S. 

App. 5a. 

Under § 201, any person or organization that spends 

more than $10,000 in a calendar year on “electioneering 

communications” is subject for the first time to detailed

reporting and disclosure requirements. 

 

1

 Citations to “J.S.App.” refer to the Appendix to the ACLU’s Jurisdictional Statement in this case. Citations to the lower court opinion are 

denoted as Supp. App. and refer to the supplemental appendix filed by

the McConnell plaintiffs in 02-1674 et al. 

3
Under § 203(a), corporations and unions are barred 

from using their general treasury funds to engage in any 

“electioneering communications.” However, this apparently 

absolute prohibition is modified by § 203(b), the so-called 

Snowe-Jeffords Amendment. Pursuant to Snowe-Jeffords, 

nonprofit corporations that qualify under § 501(c)(4) of the 

Internal Revenue Code, like the ACLU, are permitted to 

engage in “electioneering communications” if those 

communications are funded entirely by individual 

contributions and if the organization submits the detailed 

financial disclosure reports required by § 201, including the 

identity of any donors who contributed a total of $1,000 or 

more during a reporting period that can extend for nearly two

year. J.S. App. 8a.2 

As the last piece of this statutory puzzle, Congress 

adopted § 204 of the BCRA, known as the Wellstone 

Amendment, which revokes the exception that the SnoweJeffords Amendment ostensibly provides. J.S. App. 10a.3

 

In short, the statute that emerged from Congress prohibits all 

unions and corporations - including nonprofit and 

nonpartisan corporations like the ACLU - from using their 

general funds to pay for any broadcast ad that names a 

clearly identified candidate within the 30/60 day window 

preceding federal elections. 

Finally, in § 214 of the BCRA, Congress tightened 

the rules on coordinated expenditures (which are treated as 

 

2

 The Snowe-Jeffords exception also applies to “political organizations” 

organized under § 527 of the Internal Revenue Code. BCRA § 203(c)(2). 3

 It is not clear why Congress did not simply repeal the Snowe-Jeffords 

Amendment when it adopted the Wellstone Amendment. The intent of 

the Wellstone Amendment is nonetheless plain. It states that the

exemption authorized by the Snowe-Jeffords Amendment “shall not

apply in the case of a targeted communication that is made by an

organization described in” the Snowe-Jeffords Amendment. In other 

words, the Snowe-Jeffords Amendment is rendered a nullity because it

no longer applies to the organizations it was meant to cover.

4
contributions) by repealing the existing FEC regulations and

then instructing the FEC to issue new regulations that do not 

require “agreement or formal collaboration,” and that 

specifically address “payments for communications made . . . 

after substantial discussion about the communication with a

candidate or political party.” J.S. App. 11a.4

 Pursuant to § 

202 of the BCRA, moreover, this reconception of the 

coordination rules applies not only to express advocacy but

to all speech now embraced by the expanded definition of

“electioneering communications.” 

2. By a 2-1 vote, in a nearly 1700 page decision, the 

district court struck down the primary definition of 

“electioneering communications” contained in § 201 of the 

BCRA as an overbroad restriction on constitutionally 

protected speech. The district court also struck down a 

critical portion of the fallback definition as

unconstitutionally vague. The district court nonetheless 

concluded that the remaining portion of the fallback 

definition could stand on its own, and was neither vague nor 

overbroad. 

As a result, the district court wound up sustaining a 

definition of “electioneering communications” that is

broader in many ways than the definition it struck down as 

overbroad, that is vaguer in many ways than the definition it 

struck down as too vague, and that does not resemble the test

for “electioneering communications” that Congress adopted 

as either its primary or its fallback definition.5

 

4

 The FEC published its new regulations on January 3, 2003. See 68 Fed.

Reg. 421. 5

 The district court also ruled on numerous other provisions of the

BCRA, which we do not address here because they are beyond the scope 

of the questions presented in the ACLU’s jurisdictional statement. Those 

other rulings, however, have been presented to the Court in other

jurisdictional statements filed by the numerous parties to this litigation.

5
Judge Leon’s opinion was dispositive on the Title II 

questions. While recognizing that a prohibition on broadcast 

ads that refer to a clearly identified candidate within 30 days 

of a primary election or 60 days of a general election has the 

benefit of clarity, he concluded that it “sweeps so broadly 

that it captures too much First Amendment protected speech 

. . .” Supp. App. 1147sa. Quoting from a declaration 

submitted by Laura Murphy, director of the ACLU’s

Washington Office, Judge Leon noted that “[t]he 60 days

before a general election and 30 days before a primary . . . 

are often periods of intense legislative activity. During 

election years, the candidates stake out positions on virtually 

all the controversial issues of the day. Much of this debate 

occurs against the backdrop of pending legislative action or 

executive branch initiatives.” Id. at 1148sa. He further 

recognized that the electorate is often most attentive in the 

period preceding an election, Supp. App. 1149sa, and that 

the mere fact “that issue advertisements mention the name of 

a candidate . . . does not necessarily indicate, let alone prove, 

that the advertisement is designed for electioneering 

purposes.” Id.

Having found the primary definition of 

“electioneering communications” to be unconstitutional,

Judge Leon then turned his attention to the backup 

definition. He began his discussion by rejecting the claim 

that a prohibition on broadcasts ads that “promote,” 

“support, “attack,” or “oppose” a candidate for federal office 

is unconstitutionally vague. According to Judge Leon, a 

person of ordinary intelligence reading those words would 

understand what could or could not be said in a broadcast ad 

without running afoul of the criminal prohibitions of the 

BCRA. Id. at 1162sa – 1164sa.6

 

 

6

 Judge Leon reached this conclusion despite the fact that undisputed

evidence in the record demonstrated that even the most avid advocates of 

the BCRA often disagreed on whether a particular ad should be 

6
Congress, apparently, had more concerns about the 

scope and ambiguity of this fallback definition than Judge 

Leon. It therefore attached a limiting principle to its fallback 

definition of an “electioneering communication,” stipulating

that it would only apply to broadcast ads that were 

“suggestive of no plausible meaning other than an 

exhortation to vote for or against a specific candidate.” 

Paradoxically, Judge Leon was more troubled by this 

limiting language, which he found to be unconstitutionally

vague and likely to produce a chilling effect on 

constitutionally protected speech. Id. at 1165sa – 1166sa. 

Unable to uphold the fallback definition as written, Judge 

Leon chose to sever the offending language, id., leaving in 

place a definition of “electioneering communications” that

Congress itself had felt constrained to narrow, and that lacks 

even the temporal limitations of the primary definition that

he had previously declared unconstitutionally overbroad.

 

Judge Leon’s approach to the fallback definition was 

reluctantly joined by Judge Kollar-Kotelly. 7 But Judge Leon 

joined with Judge Henderson in ruling that the Wellstone 

Amendment, § 204 of the BCRA, was unconstitutional as 

applied to nonprofit organizations that engage in issue 

advocacy and that meet the criteria set forth in FEC v. 

characterized as a genuine issue ad or a so-called “sham ad.” As Judge

Kollar-Kotelly noted in her concurring opinion, “[t]he expert testimony

in this case . . . illustrates how one person’s genuine issue advertisement 

can be another’s electioneering commercial.” Supp. App. 786sa. Judge

Leon’s notion that the fallback definition does not apply to “neutral” ads,

Id. at 1163sa, offers scant protection because of the ambiguity of the term

and the unconstitutional requirement that advocacy groups refrain from 

advocating. 

7

Judge Kollar-Kotelly, argued that the primary definition is consistent

with the First Amendment and reluctantly endorsed the fallback 

definition only to ensure that at least some portion of Title II was 

sustained. Supp. App. 885sa – 886sa. In Judge Henderson’s view, both

the primary and fallback definitions of “electioneering communications” 

are unconstitutional in their entirety. Id. at 345sa – 371sa. 

7
Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986)(MCFL). Supp. App. 1166sa. Corporations that 

qualify for the “MCFL” exception therefore retain the 

benefit of the Snowe-Jeffords Amendment under the district 

court’s decision. As a result, they are free to engage in 

otherwise prohibited ‘electioneering communications” if 

they comply with the strict and burdensome disclosure and 

reporting requirements of § 201, and if they pay for their 

“electioneering communications” entirely with individual

contributions. Id. at 1167sa – 1168 sa. On the other hand, 

nonprofit corporations that do not qualify for an “MCFL” 

exception remain subject to the Wellstone Amendment, and 

thus are barred from engaging in “electioneering 

communications” unless they create a separate political

action committee to speak for them. Id. at 1168sa. 

Judges Kollar-Kotelly and Leon wrote a separate per 

curiam opinion upholding the disclosure requirements

contained in § 201, which apply to any person, group, or 

organization that engages in “electioneering

communications.” Id. at 116sa – 128sa. Because the district 

court upheld the general broadcast ban, albeit subject to a

rewritten definition of “electioneering communications,” it 

did not consider whether the BCRA’s disclosure provisions 

could be justified standing alone. 

Lastly, in the same per curiam opinion, the district 

court upheld the extension of coordination rules, which were 

originally intended to distinguish between express advocacy

that is independent of a candidate and express advocacy that 

is coordinated with a candidate and thus properly treated as a

contribution, to all “electioneering communications.” 

Accordingly, the district court found that § 202 of the BCRA 

is facially constitutional. Id. at 128sa – 130sa. Plaintiffs

remaining challenges to § 214 and its expanded conception 

of coordination were largely dismissed as premature and

nonjusticiable. Id. at 144sa – 157sa.

8
3. As construed by the district court, Title II of the 

BCRA will substantially abridge the First Amendment rights 

of the ACLU and the members it represents. With over 

400,000 members nationwide today, the ACLU is perhaps 

the most well known civil liberties organization in the 

country. Its work amplifies the voices of all of its members, 

supporters and contributors.8

Since its founding in 1920, the ACLU has never 

taken a position in a partisan political election, never 

contributed a dollar to a political campaign or party, never 

formed a political action committee or APAC@ or affiliated 

with one, and has gone to great lengths to maintain its 

rigorously non-partisan stature. Being subject to the Federal 

Election Campaign Act (FECA) would be fundamentally 

inconsistent with the ACLU=s mission and identity as a 

nonpartisan organization and would also have serious 

ramifications for the organization=s members and 

contributors whose identities would have to be disclosed. 

 

8

 The ACLU is a nonprofit membership organization that has tax exempt 

status under 501(c)(4) of the Internal Revenue Code. Membership dues

to the ACLU are not tax deductible. The basic membership fee is $35, 

though many members contribute more than that. There is also a 

reduced-fee membership available for students and other low-income

individuals. Membership dues accounted for $9,393,948 of the

$13,625,051 contributed to the organization by individuals in 2001.

Only 212 individuals contributed more than $1,000. Although the ACLU 

does not maintain records on the corporate status of non-individual

donors, such donors contributed less than $85,000 of the ACLU=s total 

revenues in 2001, which represents less than 1% of the ACLU=s budget.

None of the contributions from businesses exceeded $500. Total annual 

contributions from labor organizations over the last 10 years have never 

exceeded $5,000. Total contributions from political parties over the 

same 10 year period were $330. In sum, contributions from nonindividual donors represent an insignificant percentage of the ACLU=s 

total annual funding. See Declaration of Anthony Romero, J.A. 720. Mr. 

Romero is the Executive Director of the ACLU. 

9
Because it is a non-partisan organization that does

not endorse or support candidates, all of the ACLU=s 

advocacy is focused on issues. Yet, ever since the enactment 

of FECA approximately 30 years ago, the ACLU has been 

forced to resist efforts to stifle its own speech and the speech 

of other issue organizations through the overzealous 

application of overbroad campaign finance laws. For three

decades, the ACLU has been at the forefront of the public 

debate over campaign finance (including our support of a 

program of full and fair public financing), and has been 

involved in most of the major litigation testing the 

constitutional limits of the effort to restrict political speech in 

the name of campaign finance reform.9

On an almost daily basis, the ACLU engages in

public commentary on the actions of federal officials, many 

of whom will be standing for election. See Declaration of

Laura Murphy, J.A. 609 - 613. Like other advocacy groups,

the ACLU conveys its message through multiple media, 

including the internet, direct mail campaigns, membership 

drives, press releases, news conferences, public appearances, 

 

9

 Most prominently, the ACLU was co-counsel in Buckley, and its New 

York affiliate appeared as a party. The ACLU, however, has participated

in numerous other campaign finance cases, both before and after Buckley. 

See United States v. National Committee for Impeachment, 469 F.2d

1135 (2d Cir.1972); American Civil Liberties Union v. Jennings, 366 F.

Supp. 1041 (D.D.C. 1973)(three-judge court), vacated as moot sub nom,

Staats v. American Civil Liberties Union, 422 U.S. 1030 (1975); 

California Medical Association v. FEC, 453 U.S. 182 (1981); Brown v.

Socialist Workers >74 Campaign Committee 459 U.S. 87 (1982); FEC v.

National Conservative Political Action Committee 470 U.S. 480 (1985);

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986); Austin v. 

Michigan State Chamber of Commerce 494 U.S. 652 (1990); McIntyre v. 

Ohio Elections Commission, 514 U.S. 334 (1995); Colorado Republican

Federal Campaign Committee v. FEC 518 U.S. 604 (1996); Nixon v.

Shrink Missouri Government PAC 528 U.S. 377 (2000); FEC v. 

Colorado Republican Federal Campaign Committee 533 U.S. 431

(2001). 

10
pamphlets and other publications that refer to, praise, 

criticize, describe or rate the conduct or actions of clearly 

identified public officials. ACLU communications referring 

to a candidate for elective office are not made for the

purpose of influencing the election or defeat of that 

candidate. The timing of those communications is a function 

of the timing of debate over the legislation or issue under 

consideration. See Romero Declaration, J.A. 719. 

 The success of the ACLU is also dependent on 

broadcast media that report on the organization=s activities

on an almost streaming basis. The organization is at the 

front line of many controversial issues, and its views are 

often sought. But the ACLU cannot always rely on the news 

media to report its activities or to present its views accurately

or completely. Because exclusive reliance on such Aearned

media@ is not sufficient, the ACLU has turned to the use of 

paid media in an effort to ensure that the organization=s 

views are heard in an accurate and balanced way. For 

example, the ACLU paid for a series of radio and newspaper 

ads directed at Speaker of the House Dennis Hastert during 

his March 2002 primary election. The ads had two purposes. 

First, they criticized the Speaker for failing to bring the 

Employment Non-Discrimination Act (ENDA) to the floor 

of the House of Representatives. At that point, ENDA was 

actively being considered in the Senate after the legislation 

had been stalled in the House for some time. The ACLU 

hoped the ad would be a catalyst to help bring the legislation 

up for a vote. In addition, the BCRA was then being debated 

in Congress. The radio and print ad campaign was intended 

to highlight the impact of Title II on groups like the ACLU, 

and to dramatize that the ACLU=s radio spots would become 

criminal once Title II was enacted. As the ACLU pointed 

out at the time, the Hastert broadcast ads would have been 

illegal had the BCRA been in effect because they referred to 

Speaker Hastert and were aired in his district within 30 days 

11
of his primary election, even though he was running 

unopposed. See Murphy Declaration, J.A. 612.

10

Since passage of the BCRA, the ACLU has launched 

a media campaign to address the many civil liberties issues 

that have arisen in the past twenty months as the country 

struggles to maintain our tradition of freedom while 

responding effectively to the threats posed by international 

terrorism. See Murphy Declaration, J.A. 612. As part of this 

campaign, the ACLU is prepared to take out additional 

broadcast ads consistent with a broader media strategy. 

Romero Declaration, J.A. 721-722. Such media efforts - 

paid and earned, broadcast and print - are essential to 

creating a climate of opinion favorable to civil liberties. And 

because such communications typically concern legislative 

or executive policies, they frequently refer by name to 

current officeholders and candidates, including the President.

See Murphy Declaration, J.A. 611. Title II=s ban on 

“electioneering communications” would effectively mute

much of this speech by the ACLU. 

It is important to emphasize that whether measured

by the 30/60-day rule struck down by the district court or the 

broader rule it upheld, election years are often periods of 

intense legislative activity, as the district court recognized. 

During the 2002 election cycle, for instance, legislation 

creating a new federal Department of Homeland Security 

was under consideration in the midst of the pre-election 

period. The ACLU took out full-page advertisements in 

Congress Daily and CQ Monitor on September 30, 2002, 

urging Congress to safeguard civil liberties in connection 

with its consideration of the “GrammBMiller” and 

 

10 The text of the Hastert radio ad, which would be illegal under the 

BCRA, is attached as Exhibit A to this brief and was part of the record

below, J.A. 615-617. The nearly identical text of the Hastert newspaper

ad, which would be allowed under the BCRA, is attached to the Murphy

Declaration. J.A. 619. 

12
“Lieberman” versions of the Homeland Security legislation. 

A copy of the ad is attached to the Declaration of Laura

Murphy. See J.A. 621. During the fall 2000 elections, 

dozens of critical legislative issues were pending in Congress 

during the 60 day general election blackout period. See

Chart summarizing “Bills of Interest to the ACLU in the 

106th Congress During the 60 Days Prior to the November

General Election.” J.A. 622-626.11 Thus, it is not unusual 

for the ACLU >s legislative and issue advocacy to be most

intense during an election year, especially in the days leading 

up to the election. Yet this is precisely when Title II most 

severely restricts the ACLU’s use of broadcast ads. 

The impact of Title II on the ACLU goes beyond the

harm caused by the direct ban on broadcast communications. 

Even if the ban on “electioneering communications” violates 

the First Amendment, facially or as applied to the ACLU, § 

201 of the BCRA still requires organizations like the ACLU 

to disclose the identity of their $1,000 donors as the price for 

taking out broadcast ads. Any such disclosure requirement 

not linked to candidate contributions or express advocacy

would violate longstanding First Amendment rules designed 

to protect anonymous political speech and the right to 

associate with controversial political groups. Many ACLU 

members and donors request explicit assurances that their 

membership and contributions will remain confidential, and 

the ACLU has consistently defended their First Amendment 

right to anonymity. See Romero Declaration J.A. 720. 

While the lower court did not credit this evidence as

sufficient to strike down the disclosure provision as applied, 

we submit that the very fact that the statute can be applied to

the ACLU highlights its substantial overbreadth and the

danger it poses to the organization’s associational interests. 

Finally, Title II will negatively affect the ACLU=s 

legislative advocacy in other ways, as well. The 

 

11 Attached as Exhibit B to this brief.

13
organization=s legislative efforts include many activities

directly associated with lobbying. The ACLU regularly 

meets, speaks or corresponds with members of Congress and 

Executive Branch officials concerning proposed or pending 

legislation or executive action that may affect civil liberties.

For instance, following September 11, 2001, the ACLU has 

had numerous direct contacts with members of both the 

House of Representatives and the Senate urging restraint in 

the rush to adopt legislation giving the Department of Justice 

and other federal agencies sweeping law enforcement powers 

curbing important civil liberties. The ACLU also routinely

testifies before Congress, conducts staff briefings for

Congress, and provides members with ACLU position 

papers. See Murphy Declaration, J.A. 608-609. By 

eliminating the link between express advocacy and

coordination, §§ 202 and 214 of the BCRA have a chilling 

effect on these legislative activities even though the ACLU 

does not, and never has, coordinated its activities with 

elected officials for the purpose of influencing elections. See 

Murphy Declaration J.A. 610-611. 

SUMMARY OF ARGUMENT 

1. Under any conception of the First 

Amendment, the ability of organizations like the ACLU to 

engage in public debate on critical issues of the day through 

any medium the organization deems appropriate, including 

broadcast ads, lies at the very core of constitutionally

protected speech. In its zeal to close what they perceived to

be loopholes in the current system of campaign financing, 

advocates of the BCRA attempted to address the problem of 

so-called “sham” issue ads by adopting a prophylactic rule

that bars all broadcast ads by even nonprofit organizations in 

the period preceding an election if the ads simply mention 

the name of a federal candidate. The district court, to its 

credit, recognized that such prophylactic rules have no place 

14
in our First Amendment jurisprudence. Unfortunately, the 

solution crafted by the district court is equally flawed 

because it rests on a definition of “electioneering

communications” that is hopelessly vague, except insofar as

it clearly prohibits advocacy groups like the ACLU from 

using broadcast ads to question the policy positions of public 

officials who also happen to be running for office. And, in 

an era of nearly perpetual campaigns, that means most public 

officials most of the time. 

2. This Court has often stressed that campaign 

finance laws must be narrowly tailored to avoid Aunnecessary 

abridgement of [First Amendment] freedoms.@ Buckley v.

Valeo, 424 U.S. 1, 25, 64 (1976). The precision required by 

Buckley is entirely missing from the restrictions on issue 

advocacy contained in Title II of the BCRA, and upheld by 

the district court. Buckley draws a First Amendment 

distinction between the permissible regulation of 

contributions and the impermissible regulation of 

expenditures. As a further safeguard against the stifling of

political dissent, the Court also held that the government=s 

regulation of expenditures must be limited to

Acommunications that in express terms advocate the election 

or defeat of a clearly identified candidate. . . .@ Id. at 45. 

This Aexpress advocacy@ doctrine, which Buckley adopted to 

“distinguish discussion of issues and candidates from more

pointed exhortations to vote for particular persons. . . .@ FEC 

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 

(1986), has played a critical role for more than two decades 

in protecting issue-oriented speech by providing a bright line 

between permissible and impermissible government 

regulation. 

Under both the primary and fallback definition of 

“electioneering communications” contained in the BCRA, an 

ad by the ACLU criticizing a proposal put forward by 

President Bush or any of the announced Democratic 

candidates on civil liberties grounds is treated no differently 

15
than an ad by General Motors expressly advocating the 

election or defeat of a specific candidate. Both are equally 

prohibited despite the fact that the ACLU’s funds are derived 

entirely from members and contributors rather than 

shareholders and customers, and we have never taken a 

partisan position in our eight-decade history. 

Moreover, under the fallback definition of 

“electioneering communications” crafted by the district 

court, this prohibition applies throughout the entire election 

cycle once an individual files his or her candidacy papers. 

President Bush, for instance, has already filed his papers, as 

have several candidates for the Democratic nomination. 

Under the primary definition of “electioneering 

communications” adopted by Congress, the blackout period 

would perhaps be shorter but it would cover the period 

preceding a primary or general election when almost 

everyone agrees the public is most attentive. Neither 

prospect is consistent with “our profound national 

commitment to the principle that debate on public issues 

should be uninhibited, robust, and wide-open, and that it may 

well include vehement, caustic, and sometimes unpleasantly 

sharp attacks on government and public officials.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

The BCRA also discriminates between broadcast and 

other media in an awkward attempt to shape the debate over 

the qualifications of our elected officials. More specifically,

§ 203 directly restrains the free flow of information through 

the single most effective medium for reaching the widest

possible audience. This type of line drawing cannot be 

justified by Congress’s efforts to “level the playing field” or 

because of the power of broadcast advertising to influence 

the public. The fact that the ACLU remains free to speak

through other media that Congress has deigned to permit 

highlights rather than resolves the constitutional problem. 

The distinction drawn by Congress between the print and 

16
broadcast media has the purpose and effect of stifling core 

political speech. 

The fact that the ACLU can continue to engage in

whatever speech it wants by forming a PAC is part of the 

constitutional problem, not the solution. Unlike many other 

issue organizations, the ACLU does not have an affiliated

PAC. There is a reason for that: the ACLU is not a partisan 

organization and does not choose to present itself as one. 

The ACLU cannot and should not be forced to restructure its 

organization or re-characterize its basic mission in order to 

engage in constitutionally protected speech. See, e.g. Hurley 

v. Irish-American Gay, Lesbian and Bisexual Group of 

Boston, 515 U.S. 557 (1995). Nor is it a sufficient answer to

say that the ACLU may qualify as a “MCFL” organization 

and thus be entitled, at least in the district court’s view, to an

exemption from the general ban against corporate 

“electioneering communications.” It is not clear that the 

ACLU will in fact qualify as a “MCFL” corporation so long

as we continue to receive even a de minimis amount of 

contributions from sources other than individuals.12 

Moreover, the “MCFL” exception was crafted to permit 

ideological organizations to engage in express advocacy, not 

to impose a regime of disclosure and reporting requirements

when such organizations engage in issue advocacy. 

The decision below cannot fairly be described as an 

application of Buckley or even an extension of its core 

principles. To the contrary, it represents a return to the

initial, imprecise efforts at regulating campaign speech and

 

12 Under recently adopted FEC regulations, a ' 501(c)(4) corporation that

receives no funds whatsoever from corporate or union sources may be 

removed from the ban on broadcast communications. 11 CFR § 114.10

(2003). The ACLU does not appear to qualify for the exception, see FEC 

v. National Rifle Association, 254 F3d 173 (D.C. Cir. 2001) (denying

MCFL status because of $7,000 in corporate contributions), because it 

accepts contributions from businesses and unions B although in de

minimis amounts. See n.8, supra. 

17
advocacy organizations that this Court emphatically rejected

in Buckley and reaffirmed in MCFL. Both the BCRA and 

the decision below are fundamentally at odds with a central

tenet of the Court’s campaign finance jurisprudence: the 

imperative of protecting issue advocacy from campaign 

finance controls. 

3. For similar reasons, the disclosure requirements of

§ 201 violate Buckley and the broader First Amendment 

principles it embodies. Those principles are designed to 

preserve associational privacy by limiting mandatory

disclosure to circumstances where it truly serves an

overriding need, at least in the expenditure context. As first 

articulated in Buckley and later reaffirmed in MCFL, the 

express advocacy test is a constitutionally compelled limit on 

the otherwise fatal reach of FECA’s disclosure provisions. It 

marks the boundary where permissible campaign finance 

regulation ends and unregulated speech and association 

begin. Title II ignores this and other limitations and thereby 

undermines the First Amendment safeguards that this Court 

has so carefully erected. 

4. Finally, §§ 202 and 214 of Title II significantly 

and unconstitutionally expand the rules prohibiting the 

“coordination” of campaign activity with candidates. First, §

202 extends the coordination rules beyond express advocacy

to “electioneering communications.” Second, § 214 

eliminates any requirement of “agreement or formal 

collaboration.” In tandem, these provisions create a 

significant chilling effect on the ACLU’s traditional 

expressive activities because of FECA’s ban on corporate 

campaign contributions, 2 U.S.C. § 441(b), which applies 

even to nonprofit advocacy organizations See FEC v. 

Beaumont, 123 S.Ct. 2200 (2003), and which encompasses

coordinated expenditures. 

18
ARGUMENT 

I. SECTION 203 OF THE BCRA, WHICH 

PROHIBITS THE ACLU FROM BROADCASTING

“ELECTIONEERING COMMUNICATIONS,”

VIOLATES THE FIRST AMENDMENT. 

A. The BCRA’s Definition Of “Electioneering 

Communications” Is Substantially Overbroad And 

Violates First Amendment Principles That Long 

Predate Buckley 

Both the primary and the fallback definitions of 

“electioneering communication” set forth in the BCRA are

irreconcilable with Buckley. But before discussing Buckley, 

it is important to note certain fundamental principles of First 

Amendment law that would require this Court to strike down 

the BCRA’s overbroad ban on “electioneering 

communications” even if Buckley had never been decided. 

First, “speech concerning public affairs is more than

self-expression, it is the essence of self-government.” 

Connick v. Meyers, 461 U.S. 138, 145 (1983)(quoting 

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

speech cannot be curtailed because of its proximity to an

election. Mills v. Alabama, 384 U.S. 214 (1966). To the

contrary, that is often the moment when political speech is 

most valuable. Third, freedom of speech necessarily 

“embrace[s] all issues about which information is needed or 

appropriate to enable the members of society to cope with 

the exigencies of their period.” Thornhill v. Alabama, 310 

U.S. 88, 101-102 (1940). Fourth, neither the fact that the 

speech or criticism appears in a paid advertisement, New 

York Times v. Sullivan, 376 U.S. 254 (1964), nor the

corporate status of the speaker, provides a justification for 

suppressing speech on matters of public concern. First 

National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); 

Consolidated Edison Co. v. New York Public Service 

Commission, 447 U.S. 530 (1980). Fifth, the Constitution

19
protects the right of individuals to amplify their voice 

through group association. DeJonge v. Oregon, 299 U.S. 

353 (1937). Accordingly, the government must utilize

“sensitive tools,” Speiser v. Randall, 357 U.S. 513, 525 

(1958), when it seeks to limit such associational activity, 

even if the association ultimately chooses to incorporate (like 

the ACLU) as a nonprofit entity. 

The “sensitive tools” required by the First 

Amendment are missing from the BCRA. Instead, by

broadly prohibiting all corporate entities from engaging in 

any “electioneering communications,” without regard to 

whether the speech of the ACLU and other groups like it 

poses any genuine threat to the electoral process, Congress 

has chosen to legislate by labels. This Court can and should 

reject that approach. Contrary to the premise of the BCRA, 

the essential purpose of the First Amendment is “to assure

[the] unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people.” New 

York Times v. Sullivan, 376 U.S. at 269. 

As part of that constitutionally protected “interchange 

of ideas,” comments by the ACLU and other groups “may 

well include vehement, caustic, and sometimes unpleasantly 

sharp attacks on public officials.” Id. at 270. That is not a

reason for suppressing the speech. To the contrary, it is

evidence of “our profound national commitment to the 

principle that debate on public issues should be uninhibited, 

robust, and wide open.” Id. In a participatory democracy, 

the First Amendment does not allow the government to 

substitute its judgment for the judgment of the people in 

evaluating conflicting arguments on matters of public

concern by suppressing the flow of information essential to 

informed decisionmaking. Bellotti, 435 U.S. at 777. It is 

“‘[t]he very purpose of the First Amendment. . . to foreclose 

public authority from assuming a guardianship of the public 

mind. . . .”’ Riley v. National Federation of the Blind, 487 

20
U.S. 781, 791 (1988) (quoting Thomas v. Collins, 323 U.S. 

516, 545 (1945)(Jackson, J. concurring)). 

The Hastert ad broadcast by the ACLU just prior to 

the BCRA’s enactment into law dramatically illustrates the 

statute’s constitutional shortcomings. As previously 

described, the ad called on Speaker Hastert to bring stalled 

legislation up for a floor vote on an issue important to the 

organization. Under the primary definition of an 

“electioneering communication,” that ad would now be a

crime because it was broadcast shortly before a primary 

election in which Speaker Hastert was running -- even 

though he faced no opposition, and even though the same ad

could be (and was) printed in the newspapers. Under the 

fallback definition of an “electioneering communication,” 

the blackout period would begin as soon as the Speaker 

qualified as a candidate under FECA. Once the blackout 

period began, the ACLU would face possible prosecution if 

the text of the ad were construed as a criticism of how the 

Speaker performed his official duties. This Court’s cases 

simply do not allow the government to regulate speech that

comments on the conduct of our elected officials. 

Even before this Court decided Buckley, the ACLU 

successfully defended itself and others against the 

unconstitutional application of campaign finance laws to 

core political speech that was designed to address issues 

rather than influence elections. See American Civil Liberties

Union v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973) (threejudge court), vacated as moot sub nom. Staats v. American 

Civil Liberties Union, 422 U.S. 1030 (1975); Buckley v.

Valeo, 519 F.2d 821, 871 (D.C. Cir. 1975) (en banc); In Re

ACLU, Dkt. MUR 1802 (Federal Election Commission, 

1984). Indeed, the ACLU represented the defendants in the 

very first enforcement suit brought under the new Federal 

Election Campaign Act. The case involved a handful of 

dissenters who had published a two-page advertisement in 

The New York Times in May 1972 urging the impeachment

21
of President Richard Nixon and praising the few members of 

Congress who had supported impeachment. United States v. 

National Committee for Impeachment, 469 F. 2d 1135 (2nd

Cir. 1972). The United States filed suit claiming the 

advertisement was “for the purpose of influencing” the 

elections that year, thereby requiring the approval of all 

candidates that the ad might be construed as “on behalf of,” 

and rendering the ad hoc group of ad sponsors a “political

committee” subject to all of the law’s new regulations and 

controls. 

The government’s position was soundly rejected by

the courts. Drawing the now-settled distinction between 

issue advocacy and candidate advocacy, the Second Circuit 

ruled that it would be an “abhorrent” and “intolerable” 

consequence if FECA allowed the government to “regulat[e] 

the expression of opinion on fundamental issues of the day.” 

Id. At 1142. Additionally, the court held that the Act could

only be applied to groups under the control of candidates or 

those making contributions or expenditures “the major 

purpose of which is the nomination or election of

candidates.” Id. At 1141. Thus were the seeds of both the

express advocacy and major purpose tests planted. 

 The Committee for Impeachment suit was followed 

by American Civil Liberties Union v. Jennings, 366 F. Supp. 

1041 (D.D.C. 1973). That case arose when the ACLU 

sponsored an advertisement shortly before the 1972 elections 

criticizing the Nixon Aministration’s anti-busing policies 

and praising members of Congress who had disagreed with 

the President’s position on busing. The court ruled that the 

portion of the Act which treated the ACLU advertisements as

“on behalf of” the campaigns of members of Congress and 

“in derogation of” President Nixon’s candidacy, 

“establishe[d] impermissible prior restraints, discourage[d] 

free and open discussion of matters of public concern and as 

such must be declared an unconstitutional means of 

effectuating legislative goals.” Id. At 1051. Turning to 

22
those portions of FECA that would have treated the ACLU 

as a “political committee,” the Jennings court followed the

lead of the Second Circuit and ruled that issue-oriented 

groups whose major purpose is not the election of candidates 

could not be covered by the Act: 

We are satisfied that by so constricting the 

reaches of Title III, the fears of 

constitutional infringements expressed by 

plaintiffs will be eliminated. They and other 

groups concerned with the open discourse of 

views on prominent national issues may, 

under both this ruling and that of the Second 

Circuit, comfortably continue to exercise 

these rights and feel secure that by so doing 

so their associational rights will not be 

encroached upon. 

Id. at 1057. 

These assurances, unfortunately, were short-lived. 

Only one year later, the 1974 amendments to FECA included 

a provision, 2 U.S.C. § 437a, requiring disclosure by issueoriented groups in ways that Jennings and Committee for

Impeachment had ruled impermissible.13 That provision was 

challenged as part of the Buckley litigation. The District of 

Columbia Circuit, which upheld every other provision of the 

 

13 2 U.S.C. §437a provided, in pertinent part: 

Any person (other than an individual) who expends any funds or

commits any act directed to the public for the purpose of influencing the 

outcome of an election, or who publishes or broadcasts to the public any

material referring to a candidate (by name, description or other reference)

advocating the election or defeat of such candidate, setting forth the 

candidate’s position on any public issue, his voting record, or other

official acts ( in the case of a candidate who holds or had held Federal

office), or otherwise designed to influence individuals to cast their votes

for or against such candidates or to withhold votes from such candidate

shall file reports with the Commission as if such person were a political 

committee. 

23
new law, unanimously struck down § 437a as an 

unconstitutional regulation of nonpartisan political speech.

As the circuit court recognized, the broad statutory language 

of §437a prohibited even the discussion of campaign issues 

and candidate voting records, which are “vital and 

indispensable to a free society and an informed electorate.” 

519 F.2d. 821, 873 (D.C. Cir. 1975).14 BCRA’s disclosure 

provisions, discussed in Part II, infra, violate the same First 

Amendment principles identified in these lower court cases

and later affirmed in Buckley, 424 U.S. 79-80, n. 106. 

This history is important both as context for the 

current dispute and to demonstrate how campaign finance 

laws have been applied against issue advocacy organizations

in the past to stifle political speech that should never have 

aroused the government’s concern. To be sure, there is some

comfort in the fact that these prior efforts have been rebuffed 

by the courts, but “the value of a sword of Damocles is not 

that it drops, but that it hangs.” Arnett v. Kennedy, 416 U.S. 

134, 231 (1974) (Marshall, J., dissenting). 

The notion that the special context of an election

justifies an abridgement of the right to speak out on disputed

issues sets First Amendment jurisprudence on its head. 

Republican Party of Minnesota v. White, 536 U.S. 765, 781 

(2002). The free exchange of ideas does not present a threat 

to our constitutional democracy, it is vital to preserving it.

Brown v. Hartlage, 456 U.S. 45, 53 (1982). “’[D]ebate on 

the qualifications of candidates’ is ‘at the core of our

electoral process and of the First Amendment freedoms,’ not 

at the edges.” White, 536 U.S. at 781 (quoting Eu v. San 

Francisco County Democratic Central Comm., 489 U.S. 

214, 222-23 (1989)). 

As the Court observed in Mills v. Alabama, 384 U.S. 

214, 218-19 (1966): 

 

14 Section 437a was repealed a year later. Pub.L.No. 94-283, Title I §

105, 90 Stat. 481 (1976). 

24
Wherever differences may exist about 

interpretations of the First Amendment, there

is practically universal agreement that a major 

purpose of that Amendment was to protect the 

free discussion of governmental affairs. This 

of course includes discussions of candidates, 

structures and forms of government, the

manner in which government is operated or 

should be operated, and all such matters 

relating to political process. 

Applying that principle in Mills, the Court reversed the 

conviction of a newspaper editor who wrote an Election Day 

editorial criticizing the incumbent mayor in violation of state 

law, which prohibited any electioneering on Election Day. 

The Court found it “difficult to conceive of a more obvious

and flagrant abridgement of the constitutionally guaranteed

freedom of the press. . . .” than a criminal statute that 

“silences the press at a time when it can be most effective.” 

Id. at 219. 

That observation is equally relevant here. Under the 

First Amendment, it is simply not the function of

government to determine which issues should be discussed 

in a political campaign, when they should be discussed, and 

who should discuss them. See Brown 456 U.S. at 60. Nor is 

it the role of government to structure that debate by 

prohibiting broadcast ads because of their ability to reach the 

widest audience. See Point I C, infra. 

B. The BCRA’s Definition Of “Electioneering 

Communications” Is Directly At Odds With Buckley

And It’s Progeny 

Title II of the BCRA is inconsistent with the 

fundamental First Amendment values discussed above and, 

for that reason, it is also inconsistent with Buckley. 

25
Discussion of public issues and debate on the 

qualifications of candidates are integral to the

operation of the system of government 

established by our Constitution. . . . In a 

republic where the people are sovereign, the 

ability of the citizenry to make informed 

choices among candidates for office is 

essential for the identities of those who are

elected will inevitably shape the course that 

we follow as a nation. . . . [I]t can hardly be 

doubted that the constitutional guarantee has 

its fullest and most urgent application 

precisely to the conduct of campaigns for 

political office. 

424 U.S. at 14-15. 

By holding that expenditure limits must be subject to 

strict scrutiny and that the government’s ability to regulate 

political speech is limited to express advocacy, Buckley did 

not make new law. What Buckley held is that campaign 

finance legislation must be measured against traditional First 

Amendment standards precisely because it so directly affects 

vital questions of democratic self-governance. Measured

against those standards, the BCRA’s definition of 

“electioneering communications” cannot stand. 

1. Any Effort To Regulate Or Prohibit 

Independent Speech or Expenditures Must Be 

Subject To Strict Scrutiny

 Ever since Buckley, this Court’s campaign finance 

jurisprudence has rested on a fundamental distinction 

between expenditure limits and contribution limits. 424 U.S. 

at 44-58. Expenditure limits are subject to strict scrutiny, 

contribution limits are not. Because the ban on 

“electioneering communications” contained in Title II of the 

BCRA is an expenditure limit, it cannot be upheld unless it is 

narrowly tailored to further a compelling state interest. In

26
fact, the BCRA’s overbroad definition of prohibited speech 

and prohibited speakers satisfies neither prong of the strict 

scrutiny test.

The distinction between contribution limits and 

expenditure limits articulated in Buckley is directly tied to 

this Court’s perception of their impact on speech. On the

one hand, “a limitation on the amount that any one person or 

group may contribute to a candidate or political committee 

entails only a marginal restriction on the contributor’s ability

to engage in free communication.” 424 U.S. at 20. On the 

other hand, “a restriction on the amount of money a person 

or a group can spend on political communication during a 

campaign necessarily reduces the quantity of expression by 

restricting the number of issues discussed, the depth of their 

explanation, and the size of the audience realized.” Id. at 19. 

By telling the ACLU what it can say in a broadcast 

ad and when it can say it, the ban on “electioneering 

communications” in Title II of the BCRA raises all of the

concerns that this Court has identified with expenditure 

limits. The public is precluded from hearing the ACLU’s 

message in the format that the ACLU seeks to deliver it, and

the ACLU is precluded from pursuing a communications 

strategy that, in its view, will “effectively amplify[] the voice

of [its] adherents.” Id. at 22. As the facts of this case 

demonstrate, expenditure limits “represent substantial rather

than merely theoretical restraints on the quantity and 

diversity of political speech.” Id. at 19. It is not surprising, 

therefore, that expenditure limits have been regarded by the 

Court as presumptively unconstitutional. 

 In Buckley itself, the Court ruled that a $1,000 cap on 

expenditures “relative to a clearly identified candidate” could 

not be sustained because it “heavily burdens core First 

Amendment expression.” In First National Bank of Boston 

v. Bellotti, 435 U.S. 765, 777 (1978), the Court invalidated a 

state law that barred corporations from making expenditures

27
for the purpose of “influencing or affecting” a referendum 

after describing the prohibited speech as “indispensable to 

decisionmaking in a democracy.” In FEC v. National 

Conservative Political Action Committee, 470 U.S. 480

(1985)(NCPAC), the Court ruled that a political action

committee could not be barred from spending more than 

$1,000 to “further the election” of a publicly financed 

presidential candidate. Characterizing PACs as “mechanisms

by which large numbers of individuals of modest means can 

join together in an organization,” id. at 494, the Court noted 

that “the expenditures at issue in this case produce speech at 

the core of the First Amendment.” Id. at 493. And, in 

Colorado Republican Federal Campaign Committee v. FEC, 

518 U.S. 604 (1996)(Colorado I), the Court struck down an 

expenditure limit on the independent spending of political 

parties. Justice Breyer’s plurality opinion in Colorado I

reiterated the Court’s well-established distinction between

expenditure limits and contribution limits. He then 

observed: “The independent expression of a political party’s

views is ‘core” First Amendment activity no less than is the 

independent expression of individuals, candidates, or other 

political committees.” Id. at 616. 

The Court’s recent opinion in FEC v. Beaumont, ___ 

U.S. ___, 123 S.Ct. 2200 (2003), is entirely consistent with 

this approach. In ruling that a federal ban on corporate 

campaign contributions could be applied even to nonprofit 

entities (including MCFL groups), the Court stressed the 

distinction between contribution limits and expenditure

limits. Indeed, the Court described it as “the basic premise 

we have followed in setting First Amendment standards for 

reviewing political financial restrictions . . . .” Id. at 2210. 

In upholding the ban, the Court reiterated its concern that 

certain non-profit groups, like political parties and other 

organizations, could act as a conduit for large corporate 

contributions Id. at 2207. See also Federal Election 

Commission v. Colorado Republican Campaign Committee, 

28
533 U.S. 431, 456 & n.5 (2001). In the context of a 

contribution limit, the perceived danger of corporate 

contributions to the political process was sufficient to justify

the statute’s prophylactic approach. Under the heightened 

scrutiny applicable to expenditure limits, however, Congress 

is not free to regulate so broadly. See MCFL, 479 U.S. at

260. Beaumont thus reaffirmed the holding in MCFL by 

adhearing to the constitutional distinction between 

permissible regulation of contributions and impermissible 

regulation of expenditures by non-profit corporations. 

The BCRA not only ignores this distinction, which is

sufficient to invalidate Title II restriction on “electioneering 

communications,” but it also assumes without any basis that 

even nonprofit advocacy groups should be treated as a source 

of corruption in the electoral process unless every penny of 

their budget comes from individual contributions. For the 

ACLU and many other organizations like it, that assumption 

is entirely unfounded and highlights yet another facet of the

statute’s unconstitutional overbreadth.

15 

 

15 The lower court did not find, nor is there any basis to believe, that the

ACLU is a shill or conduit for large corporate contributions. No single 

business entity gave the ACLU more than $500 in 2001. See n. 8, supra. 

Our records do not allow us to determine if a $250 contribution from

ABennington Pottery@ or AKathleen=s Bake Shop@ is a corporate

contribution or not. In any event, that question has little relationship to 

any compelling state interest. The government claimed below that the 

ban on Aelectioneering communications@ Acarefully limits BCRA=s reach 

to those ads sponsored by unions and corporations that present the 

greatest potential for distortion or corruption of the political process.@ 

Gov=t Resp. Br. at 67. Where the ACLU is concerned there could not be

a less apt description or a regulation wider of the mark. The ACLU

simply does not present the type of problems that Congress purportedly

sought to remedy by adoption of the BCRA. Conversely, the effort to

apply the BCRA to the ACLU and similar groups is ample proof of the 

statute=s constitutional overbreadth. 

29
2. The Express Advocacy Rule Announced In Buckley Is 

A Necessary Safeguard To Prevent The Suppression

Of Constitutionally Protected Speech

In addition to holding that expenditure limits are

subject to strict scrutiny, the Buckley Court also ruled that 

any restrictions on political speech must be limited to 

express advocacy. The two doctrines are closely related.

Put another way, an expenditure limit is not narrowly

tailored if it does not include the express advocacy rule. 

Title II of the BCRA clearly fails that test. Indeed,

Congress made no effort to hide the fact that its definition of 

“electioneering communications” was designed to correct 

what it considered the flaws in the express advocacy rule 

announced by this Court in Buckley. Under the express

advocacy rule, of course, only speech that expressly 

advocates the election or defeat of a particular candidate is 

subject to regulation through the campaign finance laws. 

Congress apparently viewed this as a loophole that needed to 

be closed. Cf. City of Boerne v. Flores, 521 U.S. 507 

(1997)(Congress cannot rewrite constitutional rules through

legislation). 

During the course of this litigation, defendants and 

intervenors have additionally argued that the express

advocacy rule was never intended to state a substantive rule 

of First Amendment law. They portray it instead as merely a 

response by the Buckley Court to the vagueness of FECA’s

original expenditure limits, which applied to any speech 

“relative to a clearly identified candidate.” In their view, the 

BCRA has solved that problem in a different way by 

unambiguously banning any broadcast ad by a corporate 

sponsor (including the ACLU) that “refers to a clearly

identified candidate” in the period preceding either a primary

or general election. 

Neither claim is persuasive. The express advocacy 

rule plays a far more central role in this Court’s campaign 

30
finance jurisprudence than proponents of the BCRA have 

acknowledged. It defines the line between speech that can

be regulated and speech that cannot. In drawing that line in

Buckley, the Court understood that groups would always be 

able to devise “expenditures that skirted the restriction on 

express advocacy. . . . but nevertheless benefited the 

candidate’s campaign.” 424 U.S. at 46. Significantly, 

however, the Buckley Court also understood the converse 

proposition: that without a bright line between issue 

advocacy and express advocacy, speakers would inevitably 

“hedge and trim” their political message in an effort to avoid

unreasonable government scrutiny. Id. at 23 (quoting 

Thomas v. Collins, 323 U.S. 516, 535 (1945)). 

Accordingly, all speech which does not “in express 

terms advocate the election or defeat of a clearly identified 

candidate” is outside the scope of permissible regulation. 

“So long as persons and groups eschew expenditures that in 

express terms advocate the election or defeat of a clearly 

identified candidate, they are free to spend as much as they 

want to promote the candidate and his views,” Buckley, 424 

U.S. at 45, and they are also free from reporting and 

disclosure requirements. Id. at 79-80. See also FEC v. 

Massachusetts Citizens for Life, 479 U.S. at 238. As the 

Court recognized in Buckley, the First Amendment demands 

a bright line because political campaigns in the real world so

rarely provide one. “Not only do candidates campaign on 

the basis of their positions on various public issues, but 

campaigns themselves generate issues of public interest.” Id.

at 42. 

The primary definition of “electioneering

communication” set forth in the BCRA is plainly 

inconsistent with the express advocacy rule. The fallback 

definition is equally flawed, even as written by Congress. 

Without the limiting language that Congress inserted and

that the district court severed, the fallback definition has not 

only become less precise, it is functionally indistinguishable 

31
from FECA’s original reference to speech “relative to a 

clearly identified candidate,” which is what led the Buckley 

Court to develop the express advocacy rule in the first place. 

Id. at 39-59. 

To be sure, the express advocacy rule was announced 

in Buckley in the context of a vagueness discussion. 

Vagueness, however, was never its only concern. When the 

Court reaffirmed the express advocacy rule in MCFL, it 

specifically noted that the rule had been crafted “in order to 

avoid problems of overbreadth.” 479 U.S. at 248. The

BCRA does not “avoid problems of overbreadth,” it

embraces them as essential to addressing the proliferation of 

so-called “sham” issue ads.16 Unfortunately, in its eagerness 

to ban such ads, the BCRA also prohibits the ACLU from

broadcasting a message urging the President to respect civil 

liberties in the war against terrorism. That is not a trade-off 

that the government gets to make, nor has this Court ever 

upheld such a far-reaching proscription of core political 

speech. 

In the years since Buckley, the express advocacy

doctrine has been an indispensable bulwark against

overzealous efforts to regulate core political speech. From 

FEC v. Central Long Island Tax Reform Immediately 

Committee, 616 F.2d 45 (2d Cir. 1980) (en banc)(finding 

that Commission’s enforcement suit against a tax protest

group to be “totally meritless”), to Clifton v. FEC, 114 F.3d. 

1309 (1st Cir. 1997) (invalidating FEC regulations on 

limiting voter guides), the government has suffered “a string 

of losses in cases between the FEC and issue advocacy 

groups over the meaning of the phrase ‘issue advocacy’ and 

the permissible scope of the FEC’s regulatory authority over 

 

16 Defendants and intervenors heavily rely on a Brennan Center study to

document the proliferation of so-called “sham” issue ads. The flaws in 

the Brennan Center study are discussed at length in other briefs and will

not be repeated here. 

32
. . . political speech.” Federal Election Commission v. 

Christian Action Network, Inc., 110 F.3d 1049, 1064 (4th Cir. 

1997)(authorizing an award of fees and costs against the 

Commission for bringing enforcement proceedings against 

an issue group in clear violation of this Court’s “express 

advocacy” doctrine). See also Chamber of Commerce v. 

Moore, 288 F.3d 187, 193 (5th Cir. 2002); Citizens for 

Responsible Government State PAC v. Davidson, 236 F. 3d 

1174, 1187 (10th Cir. 2000); Iowa Right to Life Comm. Inc. v. 

Williams, 187 F.3d. 963, 969 (8th Cir. 1999). 

Those cases can and should stand as a cautionary 

tale. The purpose and effect of the express advocacy rule is 

to provide political speech with the “breathing space” 

required by the First Amendment. NAACP v. Button, 371 

U.S. 415, 433 (1963). In that way, it functions much like the 

“actual malice” rule of New York Times v. Sullivan, 376 U.S. 

254 (1964), or the “incitement” rule of Brandenberg v. Ohio, 

395 U.S. 444 (1969). The Court recognized in Sullivan that

“neither factual error nor defamatory content suffices to 

remove the constitutional shield from criticism of official 

conduct. . . .” Id. at 273. The express advocacy rules 

creates an equivalent constitutional shield that is similarly 

designed to safeguard uninhibited public debate on issues of

obvious public concern. By attempting to override the 

express advocacy rule, Title II eliminates that necessary 

constitutional safeguard. 

3. The BCRA’s Overbroad Definition Of 

“Electioneering Communications” Undermines Any 

Asserted Compelling State Interest 

Beyond their disagreement with the express advocacy 

rule, proponents of the BCRA defend its restriction on 

“electioneering communications” on two principal grounds. 

First, they argue that the broadcast ban should be upheld 

because it only applies to unions and corporations that have

traditionally been subject to greater regulation under the 

33
campaign finance laws. Second, they contend that objections 

to the broadcast ban are overblown because any group 

covered by the ban can avoid its proscription by creating a 

political action committee. Both arguments suffer from fatal 

oversimplification. 

This Court has applied the same framework for 

analyzing campaign finance restrictions on corporations and 

unions that it has applied to individuals and unincorporated 

entities. That is to say, the Court has differentiated between 

expenditure and contribution limits and then considered

whether the challenged regulation can survive the 

appropriate standard of review. MCFL is the critical case on

this issue. In MCFL, the Court held that nonprofit, 

ideological corporations could not be barred from engaging 

in express advocacy or required to establish a “separate 

segregated fund” and comply with burdensome reporting 

requirements. The government had argued there, as it has

argued here, that all corporations could be held to a single 

standard. The Court disagreed. “The desirability of a broad 

prophylactic rule cannot justify treating alike business 

corporations and [nonprofit corporations] in the regulation of 

independent spending.” Id. at 260. Instead, the Court 

carefully examined whether the general ban on corporate 

political spending made sense in the context of a nonprofit 

advocacy group like Massachusetts Citizens for Life. 

The Court began that examination by noting that the 

traditional rationale for regulating corporate political activity 

is that a corporation’s ability to amass wealth, and thus 

influence the political process, has little to do with popular

support for its political positions. It then noted that the 

opposite is true for organizations like MCFL, which rely on 

the contributions of ideological supporters to fund their

activities. Indeed, the Court explained, “individuals 

contribute to a political organization in part because they 

regard such a contribution as a more effective means of 

advocacy than spending the money under their own personal 

34
direction.” Id. at 261. Thus, the Court concluded, “the 

concerns underlying the regulation of corporate political 

activity are simply absent with regard to MCFL.” Id. at 263. 

The Court reached a different conclusion in Austin v.

Michigan Chamber of Commerce, 494 U.S. 652 (1990), but 

only because the Court confronted a very different set of 

facts. The state law in Austin, like the federal law in MCFL,

prohibited corporations from engaging in independent 

campaign expenditures. However, unlike Massachusetts

Citizens for Life, the Michigan Chamber of Commerce 

lacked many of the characteristics that the Court found 

dispositive in MCFL. Although organized as a non-profit 

corporation, more than three-quarters of its contributors were 

business corporations. Id. at 664. And because the Chamber

engaged in many non-ideological activities of tangible

benefit to its members, the Court found that even members 

who disagreed with its ideological positions would be 

reluctant to terminate their membership. For purposes of

campaign finance regulation, it therefore resembled a 

business corporation, at least insofar as its financial 

resources did not necessarily reflect its political support.17 

On the spectrum of incorporated entities, there is no

doubt that the ACLU lies much closer to Massachusetts 

Citizens for Life than to the Michigan Chamber of 

Commerce, let alone General Motors. In contrast to the 

latter two corporations, the ACLU’s financial resources 

directly reflect the ideological support of its members and 

contributors. In contrast to Massachusetts Citizens for Life, 

the ACLU has never advocated the election or defeat of a 

candidate for office. To quote the intervenors, Athe ACLU 

 

17 The Court took an equally pragmatic approach in FEC v. Beaumont,

123 S.Ct. 2200. Rather than focus on the difference between nonprofit

corporations and business corporations, which had been so pivotal in

MCFL, the Court focused instead on the difference between contribution 

limits and expenditure limits. See p. 28, supra. In this case, of course, 

the ACLU is challenging an expenditure limit. 

35
can credibly claim that >all of [its] advocacy is focused on 

issues.=@ Intervenors= Response at I-75. Even more so than 

in MCFL, therefore, “the concerns underlying the regulation 

of corporate political activity are simply absent with regard

to” the ACLU. 494 U.S. at 263. Yet, Title II of the BCRA 

treats all corporations alike, including the ACLU, based on 

precisely the sort of “broad prophylactic rule” that this Court 

rejected in MCFL.

The district court was obviously constrained by 

MCFL and construed Title II to exclude qualified MCFL

corporations. At the very least, this Court should affirm that 

holding. Outside the realm of express advocacy, however, 

even MCFL does not provide adequate protection for the 

constitutionally protected speech of groups like the ACLU. 

First, MCFL was intended to place a limit on the 

government’s ability to regulate express advocacy and not to 

open the door for government regulation of issue advocacy. 

Second, the district court decision leaves it unclear, at best, 

whether the ACLU qualifies for an MCFL exemption.18

The lower Court’s answer to this objection is that the 

ACLU can establish a PAC if it wants to speak. But, 

Congress cannot circumvent Buckley by requiring the ACLU 

to finance constitutionally protected speech through a 

segregated fund or PAC. While this requirement may be

understandable in the context of contributions made by nonprofit corporations to candidates, see Beaumont, it cannot be 

justified in the context of independent expenditures, see 

 

18 Under prevailing law in the District of Columbia Circuit, see FEC v.

National Rifle Association, 254 F.3d. 173 (D.C. Circuit 2001), and

recently promulgated FEC regulations, see 11 CFR § 114.10, the ACLU

does not qualify for an MCFL exemption because it has not returned the

exceedingly modest amount of money that has been contributed to the

organization in recent years from sources other than individuals. See 

n.12, supra. 

36
MCFL, much less those expenditures that do not purport to 

seek to influence elections. Political committees are

regulated as such because their primary purpose is to 

influence federal elections. The ACLU and thousands of 

other organizations like it are not created for this purpose 

and should not be required to operate as if they were. If at

some time it is determined that the ACLU has crossed the

line and become an organization whose primary purpose is to 

influence federal elections, it would automatically be subject 

to the obligations and restrictions applicable to political

committees. See MCFL, 479 U.S. at 262. That time has not 

come and there is no justification for extending FECA’s 

coverage to the organization’s speech. 

The concept of a PAC is at odds with the ACLU’s 

83-year tradition of non-partisan advocacy of civil liberties; 

if imposed on the ACLU, it would convey a misleading 

image of political partisanship that does not accurately

reflect the organization or how it operates. The government 

may not require that the ACLU recharacterize its mission or 

falsely represent it as a condition of exercising its First 

Amendment rights. See, e.g. Hurley v. Irish-American Gay, 

Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

 C. The Government Is Foreclosed From Limiting 

Radio And Television Access In An Effort To 

Level The Playing Field Or To Otherwise 

Influence The Debate Over The Qualifications Of 

Elected Officials 

Under the BCRA, the same ad that can be printed in 

the newspaper cannot be read on the radio or broadcast on 

television without subjecting its sponsor to possible criminal 

prosecution. The only justification offered for this distinction 

is that Congress believed that radio and television are more 

powerful than print ads and can reach a wider audience. It is

far from clear that this is always the case. For example,

some newspapers reach a larger audience than some radio 

37
stations. In any event, the approach that Congress has taken 

is wrong on several grounds even if its factual assumptions

are right. 

First, when dealing with political speech, Congress 

cannot attempt to level the playing field by deciding that 

some speakers can no longer speak through the medium of 

their choice. Buckley, 424 U.S. at 48-49. Second, the 

exercise of constitutional rights cannot be “abridged on the

plea that they may be exercised some other place.” Schad v. 

Mt. Ephraim, 452 U.S. 61, 76-77 (1981). Third, Congress 

cannot discriminate among or between media in a way that

“threatens to suppress the expression of particular ideas or 

viewpoints,” Leathers v. Medlock, 499 U.S. 439, 447 (1990), 

or that operates “as effectively as a censor to check critical 

comment.” Minneapolis Star & Tribune Co. v. Minnesota 

Commissioner of Revenue, 460 U.S. 575, 585 (1983). All 

three principles reflect the First Amendment interest in

neutrality, and all three principles are violated by the 

broadcast ban in Title II of the BCRA.

 In Buckley, this Court squarely rejected the argument 

that expenditure limits could be justified by the 

government’s interest in equalizing the relative ability of 

individuals and groups to influence the outcome of elections. 

The Court stated: 

[T]he concept that government may restrict 

the speech of some elements of our society

in order to enhance the relative voice of

others is wholly foreign to the First 

Amendment, which was designed “to secure 

the widest possible dissemination of

information from diverse and antagonistic 

sources,” and “assure unfettered interchange 

of ideas for the bringing about of political 

and social changes desired by the people.” 

38
Id. at 48-49 (internal citations omitted). Mills v. Alabama, 

384 U.S. 214, and Miami Herald Publishing Co. v. 

Tornillo, 418 U.S. 241 (1974), are to the same effect in 

rejecting the idea that it is the government’s role to 

introduce balance into the debate over the qualifications of

our elected officials. Although the Court in Red Lion 

Broadcasting Co. v. FCC, 395 U.S. 367 (1969), upheld the 

Fairness Doctrine because of issues of scarcity unique to 

the broadcast industry, that justification has not been 

advanced in this case in support of the broadcast ban. In 

fact, just the opposite consideration is in play: Congress is 

seeking to constrict the flow of ideas, rather than enlarge it. 

In addition, this Court’s cases reject the idea that the 

BCRA’s ban on broadcast ads passes constitutional muster

because it allows for the ACLU to place the same ads in the 

print media. Rather, this Court has established that “one is

not to have the exercise of his liberty of expression in 

appropriate places abridged on the plea that it may be 

exercised in some other place.” Schad v. Mount Ephraim, 

452 U.S. 61, 76-77 (1981) (citing Schneider v. State, 308 

U.S. 147, 163 (1938)). Contrary to the arguments made in 

this case, the government cannot foreclose a “distinct and 

traditionally important medium of expression,” just because 

another one exists. See City of Ladue v. Gilleo, 512 U.S. 43, 

57 (1994)(the availability of other forms of advertising did 

not justify restrictions on lawn signs); see also Schneider, 

308 U.S. at 163; Schad, 452 U.S. at 76-77. Like streets, the 

broadcast media are “natural and proper places for the 

dissemination of information and opinion,” Schneider, 308 

U.S. at 163, and it is no answer under this Court’s 

jurisprudence for Congress to claim that the BCRA is 

constitutional merely because the ACLU can express its 

ideas and opinions elsewhere. 

Finally, in a separate line of cases that we believe is 

applicable here the Court has said that, when regulating the 

media, the government cannot discriminate against those 

39
speakers capable of reaching the largest audience for the 

purpose of suppressing speech. See Grosjean v. American 

Press Co., 297 U.S. 233, 244-49 (1936) (invalidating a tax 

law that singled out large publications); Minneapolis Star & 

Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 

585 (1983) (striking down a tax scheme that penalized large 

publications); Arkansas Writers’ Project, Inc. v. Ragland, 

481 U.S. 221 (1987) (holding unconstitutional a tax 

exemption for certain magazines which resulted in a small 

number of large magazines paying the tax). We understand 

that these cases were brought by members of the media 

industry, but we believe that the overriding principle is the 

same when the effect of the line Congress has drawn is to 

“stifle the free exchange of ideas,” Leathers, 499 U.S. at 453, 

by preventing speakers from having access to those media 

outlets. This principle resonates with the Court’s long held 

belief that the First Amendment prevents “any action of the 

government by means of which it might prevent such free 

and general discussion of public matters as seems absolutely 

essential to prepare the people for an intelligent exercise of 

their rights as citizens,” Grosjean, 297 U.S. at 249-50. 

The distinction between broadcast and print media 

that Congress approved in the BCRA suffers the same

constitutional defect as the distinctions struck down in 

Minneapolis Star and Arkansas Writer’s Project. Congress 

has intentionally drawn its line in order to censor the

expressive activities of particular speakers, like the ACLU, 

by prohibiting them from reaching the largest audience 

possible. By reducing the size of the audience, the BCRA 

necessarily diminishes the force and impact of the speaker’s

message. Such an effort on the part of the government to 

regulate political discussion can only be seen as “operating 

as a censor to check critical comment,” Minneapolis Star, 

460 U.S. at 585, which impermissibly “stifl[es] the free 

exchange of ideas.” Leathers, 499 U.S. at 453. The 

consequences of Congress’s decision to target the broadcast 

40
medium as a whole are thus indistinguishable from those 

arising from the government’s decision to target particular 

newspapers in Grosjean, Minneapolis Star, and Arkansas 

Writers, since each act embodies the dangers of censorship

and threatens to distort the marketplace of ideas.

These First Amendment doctrines, whether viewed

alone or together, highlight the unconstitutionality of the 

choice that Congress has made. The BCRA directly restrains

the free flow of information by shutting down an entire 

medium. The uncontested evidence showing that the 

airwaves are the most effective and far-reaching medium of 

communication provides less, not more, justification for the

restrictions. The fact that the ACLU can communicate its

message in print ads cannot save the broadcast ban from its

constitutional infirmity of stifling the free exchange of ideas.

II. THE DISCLOSURE AND REPORTING 

REQUIREMENTS OF SECTION 201 ARE 

UNCONSTITUTIONAL. 

Under § 201, the ACLU has to report to the 

government in order to criticize the elected officials who run 

the government, assuming the ACLU is even entitled to run 

such broadcast ads under § 203. The reporting and 

disclosure requirements contained in Title II cross the line 

between constitutionally permissible disclosure rules and

disclosure rules that place an unconstitutional burden on 

First Amendment speech. They thus go far beyond anything 

this Court upheld in Buckley. 

In assessing the BCRA’s disclosure rules, it is 

important to understand their practical import. As soon as

the ACLU has disbursed more than $10,000 in a calendar 

year for any “electioneering communications,” as defined by 

the BCRA, it must file a statement with the FEC. The

statement must be filed within 24 hours and making further 

expenditures totaling more than $10,000 triggers additional

reporting obligations. The mandatory disclosure 

41
requirements are simultaneously detailed and vague.19 Of

greatest concern, they require the ACLU to disclose the 

name and address of anyone who contributed more than 

$1,000 to the organization over a period that could be as long 

as 22 months.20 

Both before and after Buckley, this Court has 

powerfully reaffirmed the importance of preserving the right 

to anonymous political speech and association, especially for 

those advocating unpopular causes. NAACP v. Alabama, 

357 U.S. 449 (1958); Talley v. California, 362 U.S. 60 

(1960), McIntyre v. Ohio Elections Commission, supra. In

Buckley itself, the Court observed that compelled disclosure

“can seriously infringe on privacy of association and belief 

 

19 The statement, filed under penalty of perjury, must contain the 

following information. First, it must state “(A) the identification of the

person making the disbursement, of any person sharing or exercising

control over the activities of such person, and of the custodian of the

books and accounts of the person making the disbursement.” The ACLU

is governed by an 83 member Board of Directors. Do they all have to be 

identified every time the ACLU runs an ad criticizing the President or a 

member of Congress? The disclosure statement must also contain “(C)

the amount of each disbursement of more than $200 during the period 

covered by the statement and the identification of the person to whom the 

disbursement was made.” Thus, the ACLU would be required to identify

all vendors and others involved in the preparation and presentation of

each advertisement. In addition, the statement must identify “(D) the

elections to which the electioneering communications pertain and the 

names (if known) of the candidates identified or to be identified.” If the 

ACLU criticizes President Bush, a declared federal election candidate, 

does that “pertain” to any of the presidential primaries, the general

election, either, or both? 20 The ACLU must identify all of its $1,000 contributors unless it creates

a segregated account to pay for “electioneering communications,” in 

which case only $1,000 contributors to that fund need to be disclosed. In 

either event, the $1,000 threshold is an aggregate amount that is

measured from the first day of the preceding calendar year to the 

disclosure date. Thus, an ad criticizing one of the presidential candidates 

in the week before the November 2004 election would have to consider

all individual contributions made after January 1, 2003. 

42
guaranteed by the First Amendment,” 424 U.S. at 64. This 

Court was therefore careful in Buckley to weigh the necessity 

of any disclosure rules against the state’s overriding interest

in preventing corruption or the appearance of corruption in 

the electoral process. Using that scale, the Buckley Court 

upheld disclosure for political contributions, and for the 

expenditures of political candidates and committees. At the

same time, the Court ruled that other political speech could

only be subject to the government’s disclosure rules if it 

amounted to express advocacy. 

The government argued in Buckley, as it argues here, 

that “total disclosure” of all political expenditures is 

necessary “to insure that the voters are fully informed and to 

achieve through publicity the maximum deterrence to 

corruption and undue influence possible.” Id. at 76. The 

Court was not unsympathetic to that concern. Nonetheless,

applying strict scrutiny, the Court was unwilling to accept 

the free speech costs of imposing a disclosure requirement 

on speech that did not meet the express advocacy test.

Under those circumstances, the Court wrote, “the relation of 

the information sought to the purposes of the Act may be too 

remote.” Id. at 79-80. 

The BCRA abandons this careful approach by 

disregarding the express advocacy rule and ignoring the

narrow tailoring that Buckley requires. Insofar as the

broadcast ban violates the First Amendment because it 

directly restricts speech that does not constitute express 

advocacy, the burdensome reporting and disclosure

provisions that are triggered by the same unconstitutional

definition of “electioneering communications” cannot stand.

Buckley, 424 U.S. at 79-80. Having upheld a revised 

definition of “electioneering communications,” the district

court did not consider whether the disclosure provisions 

would survive if the direct ban were struck down.. 

Nevertheless, Buckley forecloses that possibility for the same 

43
reason that BCRA’s direct restraint on speech is 

unconstitutional. 

“When a statutory provision burdens First 

Amendment rights, it must be justified by a compelling state 

interest,” even in the campaign finance context. MCFL, 479 

U.S. at 256. The court below pointed to multi-million dollar 

election season advertising campaigns by certain 

organizations and individuals as justifying the BCRA’s

broad disclosure rules. But that concern fails as justification

for a statute that can be triggered by running a few radio ads 

that mention federal elected officials during the course of an 

entire election calendar year, and that applies without regard 

for either the kinds of organizations involved or the need for 

public information about them. 

Based on Buckley and MCFL, Congress could have 

drawn a more careful and narrow line. If the concern was 

the existence of groups or individuals whose “major 

purpose” is the funding and sponsoring of broadcast 

advertisements that might influence public opinion about 

specific federal candidates during the election season, the 

remedy could have been to require reporting and disclosure

only of such groups. See MCFL, 479 U.S. at 262. Under 

such a targeted rule, the ACLU and countless other issue 

organizations across the political spectrum, for whom

broadcasting advertising is collateral or incidental to their

main advocacy activities, would have been spared the 

BCRA’s intrusive regulatory regime. Congress chose not to 

do so. 

Similarly, Congress could have focused its disclosure 

rules on business or capital corporations, which animated the 

first federal regulation in this area almost 100 years ago.

Yet, even the effort to exempt nonprofit organizations from 

the broadcast ban was effectively repealed when the SnoweJeffords Amendment was supplanted by the Wellstone 

Amendment’s insistence on universal coverage. By failing

44
to act with the precision that the rights at stake require,

Congress impermissibly imposed a “crudely crafted burden” 

on First Amendment rights. United States v. National 

Treasury Employees Union, 513 U.S. 454, 477 (1995). 

Finally, even in the context of express advocacy, the 

Buckley Court recognized that there is a particularly grave

risk of chilling political speech when the government insists 

on publicly disclosing an individual’s association with 

controversial political organizations. 424 U.S. at 74. On 

that basis, the Court ruled in Brown v. Socialist Workers ‘74 

Campaign Committee, 459 U.S. 87 (1982), that campaign 

finance disclosure laws cannot be applied to controversial 

political parties, even those that engage in core campaign 

and electoral activities. This necessary safeguard is missing

from Title II, as well. 

Though the Court below discounted the record of 

harm from disclosure presented by the ACLU and other 

groups as not showing a sufficiently intense pattern of 

harassment and threats to warrant relief from the disclosure

rules, this primarily facial challenge to the BCRA was not 

the proper occasion for a full-blown trial on harassment, as 

the court below recognized. But the record clearly shows

that the ACLU and other groups have a firm reason to resist

disclosure and protect the identity of their members and 

supporters.21 Congress was oblivious to that interest in 

 

21 The ACLU submitted an uncontroverted affidavit by its Executive 

Director, Anthony Romero, stating that many of its members and 

contributors seek an explicit assurance that their anonymity will be

preserved, and the ACLU has fought strenuously to do so throughout its

history. Romero Declaration, J.A. 720. The district court criticized this 

showing as inadequate because it did not specify why the ACLU’s

members and contributors would want to preserve their anonymity. With

due respect, we respectfully submit that the ACLU’s defense of 

unpopular causes is well known and does not require extensive 

elaboration. Moreover, the connection between the ACLU’s advocacy 

on controversial issues and the desire to preserve the privacy of its

members and contributors has been recognized by other courts in

45
enacting § 201. Not only did it require disclosure of

relatively modest expenditures, especially considering the 

broad reach of the statute, but it failed to provide for any 

“SWP exemption,” or even any administrative procedure for

raising such claims. 

III. SECTIONS 202 AND 214, WHICH

SIGNIFICANTLY EXPAND THE FECA’S

RESTRICTIONS ON “COORDINATION,” 

VIOLATE THE FIRST AMENDMENT RIGHTS 

OF FREEDOM OF SPEECH, ASSOCIATION,

AND PETITION. 

Sections 202 and 214 of Title II significantly expand 

the rules prohibiting “coordination” of campaign activity 

with candidates. First, § 202 extends the coordination rules 

beyond express advocacy to “electioneering 

communications.” Second, § 214 eliminates any 

requirement of “agreement or formal collaboration.” In 

tandem, these provisions create a significant chilling effect 

on the ACLU’s traditional expressive activities. The 

consequences are not insignificant because as a corporation

the organization is governed by a separate provision of 

FECA that prohibits corporate contributions. 2 U.S.C. 441 

(b). 22

 

analogous circumstances. See, e.g., New York Civil Liberties Union v. 

Acito, 459 F.Supp. 75 (S.D.N.Y. 1978); ACLU v. Jennings, 366 F.Supp. 

1041 (D.D.C. 1975). 22 The district court upheld the coordination provisions of § 202 but ruled

that plaintiffs’ challenge to the coordination provisions of § 214 was

largely nonjusticiable because the final implementation of § 214 was

dependent on the promulgation of new coordination rules by the FEC.

While that is true, it is also true that § 214 establishes a specific set of

guidelines for the FEC to follow in implementing its new rules. Other 

parties, notably the Chamber of Commerce and the AFL-CIO, are

addressing the coordination and related justiciability at greater length.

This discussion has been kept brief to avoid repetition.

46
Rather than treat coordination as the absence of 

independence and the functional equivalent of candidate 

control or instigation, see Buckley v. Valeo, 424 U.S. at 47 & 

n.53, the BCRA broadly deems any “substantial discussion” 

about public communication between a candidate and an 

issue group as a basis for a finding of “coordination.” Such 

“coordination” then taints later commentary by the issue

group on the subjects discussed by treating it as a prohibited 

corporate contribution. The repeal of current FEC rules 

requiring agreement or formal collaboration directed by Title 

II casts the net further by eliminating a common sense 

understanding of what is required to satisfy the definition of 

coordination in this context. 

The record shows how these new rules can chill and

disrupt legislative and policy discussions by ACLU officials

with Members of the Executive or Legislative branches. See 

Declaration of Laura Murphy, J.A. 609-611. Read literally, 

§ 214 can effectively impose a year round prohibition on all 

communications made by a corporation like the ACLU 

where there has been “substantial discussion” about the 

communication with a candidate. This feature of the BCRA 

acts as a continuing prior restraint which bars the ACLU 

from engaging in core First Amendment speech for the 

lawmaker=s entire term of office. 

More generally, these coordination rules will impair 

the ability of the representatives of unions, corporations, 

non-profits and even citizen groups to interact in important 

ways with elected representatives for fear that the taint of

coordination will silence the voices of those groups in the 

future. The First Amendment is designed to encourage and 

foster such face-to-face discussions of government and 

politics, see Buckley v. American Constitutional Law 

Foundation, 525 U.S. 182 (1999), not to drive a wedge

between the people and their elected representatives. 

47
48

CONCLUSION 

For the reasons above, the challenged provision of Title II of 

the BCRA should be declared unconstitutional. 

 Respectfully submitted, 

Joel M. Gora Mark J. Lopez 

Brooklyn Law School Counsel of Record 

250 Joralemon Street Steven R. Shapiro 

Brooklyn, NY 11201 AMERICAN CIVIL 

LIBERTIES UNION

JULY 8, 2003 FOUNDATION, INC. 

 125 Broad Street 

 New York, NY 10004 

 (212) 549-2500