Nos. 06-969 & 06-970 

IN THE

Supreme Court of the United States _________ 

FEDERAL ELECTION COMMISSION, Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC., Appellee. 

_________ 

SENATOR JOHN MCCAIN, ET AL., Appellants,

v. 

WISCONSIN RIGHT TO LIFE, INC., Appellee. 

_________ 

On Appeal from the 

United States District Court 

for the District of Columbia

_________ 

BRIEF AMICI CURIAE OF COMMITTEE 

FOR ECONOMIC DEVELOPMENT, 

NORMAN ORNSTEIN, THOMAS MANN, 

AND ANTHONY CORRADO 

IN SUPPORT OF APPELLANTS

_________ 

 H. CHRISTOPHER BARTOLOMUCCI

 Counsel of Record 

 PAUL A. WERNER

 HOGAN & HARTSON L.L.P. 

 555 Thirteenth Street, N.W. 

 Washington, D.C. 20004 

 (202) 637-5810 

 Counsel for Amici Curiae 
TABLE OF CONTENTS 

Page 

(i)

TABLE OF AUTHORITIES ............................................ ii 

STATEMENT OF INTEREST OF AMICI CURIAE ...... 1 

INTRODUCTION ............................................................ 2 

SUMMARY OF ARGUMENT ........................................ 6 

ARGUMENT.................................................................... 7 

I. BCRA SECTION 203 CLOSED A LOOPHOLE 

IN THE FEDERAL CAMPAIGN FINANCE 

REGIME THAT CORPORATIONS AND 

UNIONS HAD EXPLOITED IN PREVIOUS 

ELECTIONS. ............................................................. 7 

II. THE LOWER COURT’S REVIEW DEPARTS 

FROM THIS COURT’S PRECEDENTS AND 

THREATENS TO RE-OPEN THE LOOPHOLE 

CLOSED BY BCRA SECTION 203 ......................... 24 

III. WRTL’S ADS ARE THE VERY TYPE OF 

COMMUNICATIONS BCRA SECTION 203 IS 

DESIGNED TO PROHIBIT. ..................................... 29 

CONCLUSION................................................................. 30 
ii 

TABLE OF AUTHORITIES 

Page 

CASES: 

Austin v. Michigan Chamber of Commerce, 494 U.S. 

652 (1990).................................................................. 8

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

Bush v. Gore, 531 U.S. 98 (2000) .............................. 26

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).... 26

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996)................................................... 15

Connick v. Myers, 461 U.S. 138 (1983) ...................... 26

Faustin v. City & County of Denver, 423 F.3d 1192 

(10th Cir. 2005)........................................................ 25

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

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001)................................................... 1, 2 

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

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

FEC v. National Right to Work Comm., 459 U.S. 197 

(1982)......................................................................... 8, 9 

Field Day, LLC v. County of Suffolk, 463 F.3d 167 

(2d Cir. 2006)............................................................. 25

Hill v. Colorado, 530 U.S. 703 (2000)........................ 26

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

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.), 

aff’d in part & rev’d in part, 540 U.S. 93 (2003) ...... passim

Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984).................... 25

New York Times v. Sullivan, 376 U.S. 254 (1964) ........ 26-27

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000)......................................................................... 2 
iii 

TABLE OF AUTHORITIES—Continued 

Page 

 

Pickering v. Board of Educ., 391 U.S. 563 (1968)........ 27

Pipefitters Local Union No. 562 v. United States, 

407 U.S. 385 (1972)................................................... 9 

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)................ 25

Spence v. Washington, 418 U.S. 405 (1974)................. 26

Texas v. Johnson, 491 U.S. 397 (1989)......................... 26

Time, Inc. v. Hill, 385 U.S. 374 (1967) ......................... 26

United States v. Christian Echoes Nat’l Ministry, 

Inc., 404 U.S. 561 (1972)........................................... 25

United States v. International Union United Auto., 

Aircraft & Agric. Implement Workers of Am., 352 

U.S. 567 (1957).......................................................... 8 

United States v. Raines, 362 U.S. 17 (1960) ................. 25

Vieth v. Jubelirer, 541 U.S. 267 (2004) ........................ 2

Walters v. National Ass’n of Radiation Survivors, 

473 U.S. 305 (1985)................................................... 24 

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 

(2006)......................................................................... 2, 5 

STATUTORY AND REGULATORY PROVISIONS: 

Bipartisan Campaign Finance Reform Act of 2002, 

Pub. L. No. 107-155, § 203, 116 Stat. 91-92 ............. passim

Federal Election Campaign Act of 1971, 2 U.S.C. 

§ 431 et seq. ............................................................... 2 

2 U.S.C. § 431(9)(A)(i) ................................................. 9 

2 U.S.C. § 434(f)(3)(A)(i) ............................................. 21 

2 U.S.C. § 441b ............................................................. 9, 10, 13 

2 U.S.C. § 441b(a)......................................................... 9 

2 U.S.C. § 441b(b)(2).................................................... 3, 21 
iv 

TABLE OF AUTHORITIES—Continued 

Page 

 

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

11 C.F.R. § 114.10......................................................... 3 

RULES: 

S. Ct. R. 37.3(a)............................................................. 2 

S. Ct. R. 37.6 ................................................................. 1 

OTHER AUTHORITIES: 

143 Cong. Rec. S10125 (daily ed. Sept. 29, 1997)........ 16 

144 Cong. Rec.: 

 p. H6802 (daily ed. July 30, 1998)............................. 15 

 pp. S1038-39 (daily ed. Feb. 26, 1998)...................... 15 

 pp. S1048-49 (daily ed. Feb. 26, 1998)...................... 21 

147 Cong. Rec.: 

 pp. S2455-56 (daily ed. Mar. 19, 2001) ..................... 12 

 p. S2636 (daily ed. Mar. 21, 2001) ............................ 15 

 p. S3036 (daily ed. Mar. 28, 2001) ............................ 15 

 p. S3072 (daily ed. Mar. 29, 2001) ............................ 15 

 p. S3138 (daily ed. Mar. 29, 2001) ............................ 20 

148 Cong. Rec.: 

 p. H387 (daily ed. Feb. 14, 2002) .............................. 15 

 p. H410 (daily ed. Feb. 14, 2002) .............................. 15 

 p. S2104 (daily ed. Mar. 20, 2002) ............................ 20 

 p. S2141 (daily ed. Mar. 20, 2002) ............................ 15 

Investigation of Illegal or Improper Activities in 

Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-167 (1998)........................... passim 
v 

TABLE OF AUTHORITIES—Continued 

Page 

 

Investing in the People’s Business: A Business Proposal for Campaign Finance Reform (CED 1999) .... 1, 11, 12 

Report of Thomas E. Mann, at

http://www.campaignlegalcenter.org/McConnell31.html ....................................................................... 11, 12, 13 

S. Rep. No. 1, pt. 2, 80th Cong., 1st Sess. (1947) ......... 8 

 
 

STATEMENT OF INTEREST OF AMICI CURIAE 

Amici curiae are a non-profit independent research and 

policy organization of approximately 250 business leaders 

and educators as well as three political scientists who have 

dedicated much of their careers to studying and analyzing 

Congress, federal elections, campaign finance, and American 

politics, and who have written extensively, both individually 

and jointly, on those subjects.1 

The Committee for Economic Development (CED) was 

formed more than 60 years ago to advance policies that 

promote stable economic growth and enhance the standard of 

living and range of opportunities enjoyed by all Americans. 

Owing to the fact that corruption in government or its 

appearance impacts the economy and erodes confidence both 

in our democratic institutions and business community, CED 

has proposed significant reforms to our federal election laws 

in order to strengthen our system of campaign finance. See 

Investing in the People’s Business: A Business Proposal for 

Campaign Finance Reform (CED 1999) [Business Proposal 

for Campaign Reform]. CED also participated in the litigation that led to the decision in McConnell v. FEC, 540 U.S. 

93 (2003), and filed a brief amici curiae upon which this 

Court relied. See id. at 125 n.13. 

Anthony J. Corrado, Jr. is a Professor of Government at 

Colby College and Chair of the Board of Trustees of the 

Campaign Finance Institute. He served as an expert witness 

in FEC v. Colorado Republican Fed. Campaign Comm., 533 

U.S. 431 (2001), and this Court cited and quoted his expert 

statement in its opinion in that case. 

Thomas E. Mann is a Senior Fellow in Governance Studies 

at the Brookings Institution. He served as an expert witness 

in McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.), aff’d in 

 1 Pursuant to this Court’s Rule 37.6, we note that no part of this 

brief was authored by counsel for any party, and no person or 

entity other than amici curiae made a monetary contribution to the 

preparation or submission of the brief. 
2 

 

part & rev’d in part, 540 U.S. 93 (2003), and this Court cited 

and quoted his expert report in its opinion in that case. See

540 U.S. at 124 nn.8, 9, 11 & 12; id. at 148; id. at 155. 

Norman J. Ornstein is a Resident Scholar at the American 

Enterprise Institute for Public Policy Research. He is the 

founder and director of the Campaign Finance Working 

Group, a group of scholars and practitioners who helped craft 

the McCain-Feingold legislation. 

Stemming from their expertise and interest in federal elections and campaign finance reform, Professor Corrado, Dr. 

Ornstein, and Dr. Mann have filed amici briefs in previous 

cases before this Court involving election law issues.2 

All of the amici have a great interest in ensuring that the 

recent reforms that they have been part of bringing to fruition 

and that have strengthened our federal campaign finance 

system are not undermined through judicial interpretations, 

and offer their views to aid the Court in its review of the 

instant case. Their brief is filed with the written consent of 

all parties pursuant to this Court’s Rule 37.3(a); the requisite 

consent letters have been filed with the Clerk of this Court. 

INTRODUCTION 

This case is before the Court for the second time. It involves an as-applied challenge to Section 203 of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA), Pub. L. 

No. 107-155, 116 Stat. 91-92. That Act overhauled our 

federal election laws by amending, inter alia, the Federal 

Election Campaign Act of 1971 (FECA), 2 U.S.C. § 431 

et seq. See McConnell, 540 U.S. at 114. Among BCRA’s 

amendments to FECA is a provision prohibiting corporations 

and unions from financing, with general treasury funds, 

 2 See Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) 

(per curiam) (Corrado, Mann & Ornstein); Vieth v. Jubelirer, 541 

U.S. 267 (2004) (Mann & Ornstein); McConnell v. FEC, supra

(Ornstein); FEC v. Colorado Republican Fed. Campaign Comm., 

supra (Mann); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) (Mann). 
3 

 

“electioneering communication[s]”—i.e., communications 

referring to a federal office candidate and broadcast within 

30 days of a primary or 60 days of a general election in the 

candidate’s jurisdiction. See 2 U.S.C. § 441b(b)(2). In 

McConnell, this Court sustained most of BCRA’s provisions 

against constitutional challenge. See 540 U.S. at 203-209. 

There, the Court rejected a First Amendment facial challenge 

to Section 203, holding that the provision was neither fatally 

overbroad nor fatally underinclusive. Id. at 207-208. 

Wisconsin Right to Life, Inc. (WRTL) now brings an asapplied challenge to the same provision. WRTL is a nonprofit, non-stock ideological advocacy corporation organized 

under the laws of Wisconsin that the Internal Revenue 

Service recognizes as tax-exempt under Section 501(c)(4) of 

the Internal Revenue Code. J.S. App. 2a-3a. It does not 

qualify for any recognized exemption allowing it to fund 

electioneering communications from its general treasury 

account because it is neither a “qualified nonprofit corporation” under 11 C.F.R. § 114.10 nor fits the exception for 

501(c)(4) corporations provided by 2 U.S.C. § 441b(c)(2). 

Id. at 3a n.2. It administers a segregated account for campaign-related activity in the form of a political action committee—a PAC. Id. at 58a. 

United States Senator Russell Feingold of Wisconsin ran 

for reelection in 2004. His challengers made a campaign 

issue of his support for “filibusters” of the President’s 

nominees for federal judgeships. Id. In March 2004, 

WRTL’s PAC endorsed three candidates opposing Senator 

Feingold and “announced that the defeat of Senator Feingold 

was a priority.” Id. On July 14, 2004, WRTL issued a news 

release criticizing Senator Feingold’s “record on Senate 

filibusters against judicial nominees.” Id. WRTL used a 

variety of non-broadcast communications to criticize Senate 

filibusters of judicial nominees. Id. at 58a-59a. 

On July 26, 2004, WRTL began using its general treasury 

funds—rather than its PAC funds—to air three broadcast ads 

criticizing the judicial filibuster tactic and specifically 

naming Senator Feingold. Id. at 59a-60a. In one ad, the 
4 

 

listener hears a father interrupting his daughter’s wedding 

ceremony to “share a few tips on how to properly install 

drywall.” Id. at 66a-67a. This set up is followed by the 

narrator opining that “[s]ometimes it’s just not fair to delay 

an important decision” but, in Washington, “a group of 

Senators is using the filibuster delay tactic to block federal 

judicial nominees from a simple ‘yes’ or ‘no’ vote.” Id. at 

67a. The narrator then urges the listener to “[c]ontact 

Senators Feingold and Kohl and tell them to oppose the 

filibuster.”3 Id. Each ad features a different plot, but all 

three play on the same needless-delay theme and essentially 

convey the same message. Id. at 69a, 70a. 

Anticipating that the advertisements would constitute 

“electioneering communication[s]” under BCRA if aired 

during the period between August 15, 2004, and November 

2, 2004, WRTL sued the Federal Election Commission in 

federal district court. Id. at 59a. It alleged that BCRA’s 

prohibition on financing electioneering communications with 

general treasury funds is unconstitutional as applied to its 

advertisements and moved for a preliminary injunction. Id. 

The District Court denied WRTL’s motion, concluding that 

its “showing” failed to meet the standard for granting such 

relief, id. at 60a, in large measure because this Court’s 

rejection of a facial constitutional challenge to BCRA 

Section 203 “le[ft] no room for the kind of ‘as applied’ 

challenge that WRTL propounds,” id. at 61a. However, its 

reading of McConnell was “but one reason” it found 

WRTL’s lawsuit without hope of success. Id. at 62a. It went 

on to observe that, in light of their timing and the objectives 

of WRTL’s PAC, the ads “may fit the very type of activity 

McConnell found Congress had a compelling interest in 

regulating.” Id. 

Following its denial of a preliminary injunction, the District Court dismissed WRTL’s lawsuit. Id. at 55a-56a. This 

 3 While the ads contain no contact information for either Senators Feingold or Kohl, they direct listeners or viewers to a website 

critical of Senator Feingold’s record in office. 
5 

 

Court later reversed that judgment, concluding that, “[i]n 

upholding § 203 against a facial challenge, we did not 

purport to resolve future as-applied challenges.” Wisconsin 

Right to Life, Inc. v. FEC, 546 U.S. 410, 126 S. Ct. 1016, 

1018 (2006) (per curiam). It declined, however, to consider 

the District Court’s suggestion that “WRTL’s advertisements 

may fit the very type of activity McConnell found Congress 

had a compelling interest in regulating,” finding it “ambigu[ous]” whether that observation was intended as an 

alternative ground for decision. Id. Accordingly, the case 

was remanded for the District Court to “consider the merits 

of WRTL’s as-applied challenge in the first instance.” Id. 

On remand, and after an expedited discovery period, the 

District Court granted summary judgment in WRTL’s favor. 

J.S. App. at 2a. In assessing whether WRTL’s ads constituted express advocacy or its functional equivalent, it eschewed any reliance on the intent or effect of the ads, finding 

such reliance both “practically” and “theoretically unacceptable” and “dangerous and undesirable when First Amendment freedoms are at stake.” Id. at 19a-20a. In its view, “the 

judiciary, in conducting First Amendment analysis, should 

not be in the business of trying to read any speaker’s mind.” 

Id. at 22a. The District Court thus limited its inquiry to 

assessing whether the “language within the four corners of 

the anti-filibuster ads” 

(1) describe[s] a legislative issue that is either currently the 

subject of legislative scrutiny or likely to be the subject of 

such scrutiny in the future; (2) refer[s] to the prior voting 

record or current position of the named candidate on the 

issue described; (3) exhort[s] the listener to do anything 

other than contact the candidate about the described issue; 

(4) promote[s], attack[s], support[s], or oppose[s] the 

named candidate; and (5) refer[s] to the upcoming election, 

candidacy, and/or political party of the candidate. [Id.] 

Under this approach, the District Court found that, “on their 

face, WRTL’s three 2004 anti-filibuster advertisements were 

not ‘intended to influence the voters’ decisions.’ ” Id. at 24a. 

This conclusion obviated any need for the court to “analyze 
6 

 

whether the ads in fact would have—or potentially could 

have—affected Senator Feingold’s reelection.” Id. (emphasis 

in original). 

The District Court further concluded that the government 

could assert no compelling interest in regulating genuine 

issue ads such as WRTL’s under BCRA. Id. at 28a. Unlike 

express advocacy or its functional equivalent, it explained 

that genuine issue ads do not bear on a candidate’s fitness for 

office and thus implicate no concern about “political corruption and public cynicism in government.” Id. at 27a. 

Judge Roberts dissented from the grant of summary judgment, concluding that the majority’s approach “is inconsistent with McConnell, is inconsistent with this panel’s own 

prior rulings, and finds little support in logic.” Id. at 30a. 

SUMMARY OF ARGUMENT 

Preventing corporations, unions, and national banks from 

using general treasury funds to influence federal elections is 

not a novel congressional goal; it is one that Congress has 

pursued for more than a century. BCRA is only its most 

recent effort “to purge national politics of what was conceived to be the pernicious influence of ‘big money’ campaign contributions.” McConnell, 540 U.S. at 115 (internal 

quotation marks & citation omitted). 

Section 203 extends a longstanding prohibition against the 

use of corporate and union treasury funds for ads that expressly advocate the election or defeat of a federal candidate 

to cover a newly-defined form of communication—i.e., 

electioneering communications. Based on overwhelming 

evidence, Congress concluded that this extension was 

necessary to prevent corporations and unions from circumventing the pre-existing FECA prohibition by funding with 

general treasury revenues ads that, while falling short of 

prohibited “express advocacy,” were no less calculated to 

influence federal elections and likely had that effect. Section 

203 thus closed a loophole in FECA that corporations and 

unions exploited in past elections. 
7 

 

This Court upheld BCRA Section 203 against a facial 

constitutional attack in McConnell. Yet, in striking that same 

statute down as applied to WRTL’s ads, the District Court 

overlooked this Court’s core rationale for upholding the 

provision on its face. In addition to deviating from the 

approach taken in McConnell, the District Court also deviated from the traditional approach to as-applied challenges— 

which are fact intensive inquiries—on the mistaken belief 

that a speaker’s intent or purpose for communicating a 

message is beyond the bounds of judicial inquiry. If future 

as-applied challenges to Section 203 are reviewed in the 

same contextual vacuum fashioned here by the court below, 

Congress’s effort to capture ads that are the functional 

equivalent of express advocacy will inevitably be lost as 

political actors push the limits of the District Court’s “four 

corners” rule—a crabbed rule that harkens a return to the preBCRA “magic word” days. 

In any event, the ads that WRTL sought to air during 

BCRA’s pre-election blackout period are, at bottom, the very 

kind of sham issue ads—i.e., ads about candidates masquerading as ads about issues—that Congress expressly sought 

with BCRA Section 203 to prohibit. As is obvious from the 

timing, content, and context of WRTL’s ads, they were 

designed to influence Senator Feingold’s bid for reelection 

and, if permitted to air, would likely have had just that effect. 

ARGUMENT 

I. BCRA SECTION 203 CLOSED A LOOPHOLE IN 

THE FEDERAL CAMPAIGN FINANCE REGIME 

THAT CORPORATIONS AND UNIONS HAD 

EXPLOITED IN PREVIOUS ELECTIONS. 

“Since 1907, there has been continual congressional attention to corporate political activity, sometimes resulting in 

refinement of the law, sometimes in overhaul.” FEC v. 

Beaumont, 539 U.S. 146, 153 (2003). BCRA Section 203 

and the definition of “electioneering communication” fall 

into the former category. Although that provision extends 

the prohibition on the spending of corporate and union 
8 

 

general treasury funds in connection with federal elections to 

encompass a newly-defined form of communication, since 

the Court’s seminal ruling in Buckley v. Valeo, 424 U.S. 1 

(1976), “Congress’ power to prohibit corporations and 

unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of 

candidates in federal elections has been firmly embedded in 

our law.” McConnell, 540 U.S. at 203. Section 203 is no 

more than a modification of pre-existing law needed to 

“ ‘plug [an] existing loophole’ ” in that longstanding prohibition. United States v. International Union United Auto., 

Aircraft & Agric. Implement Workers of Am., 352 U.S. 567, 

582, 585 (1957) (UAW) (quoting S. Rep. No. 1, pt. 2, 80th 

Cong., 1st Sess. 38-39 (1947)). 

1. This Court is mindful of the “historical prologue” of a 

challenged provision of federal election law, Beaumont, 539 

U.S. at 156; see UAW, 352 U.S. at 570 (“Appreciation of the 

circumstances that begot this statute is necessary for its 

understanding, and understanding of it is necessary for 

adjudication of the legal problems before us.”), and it has 

recognized that the prohibition on corporate and union 

general treasury expenditures in connection with federal 

elections has long been a cornerstone of federal election law. 

See Beaumont, 539 U.S. at 152-154. That restriction reflects 

an abiding concern with the ability of corporations and 

unions to leverage their state-sanctioned privileges and to 

aggregate large amounts of capital into unfair political 

advantages. See Austin v. Michigan Chamber of Commerce, 

494 U.S. 652, 658-659 (1990); FEC v. National Right to 

Work Comm., 459 U.S. 197, 207-208 (1982) (NRWC); UAW, 

352 U.S. at 585. 

Congress made its initial foray into the arena of campaign 

finance regulation in 1907. It responded to President Roosevelt’s call for a ban on corporate political contributions “not 

with half measures, but with the Tillman Act,” which 

“banned any corporation whatever from making a money 

contribution in connection with federal elections.” Beaumont, 539 U.S. at 153 (internal quotation marks & citation 
9 

 

omitted). In 1925, it extended the Tillman Act’s prohibition 

on corporate contributions to encompass “anything of value” 

and by criminalizing the giving and receiving of corporate 

contributions. See NRWC, 459 U.S. at 209 (citing Corrupt 

Practices Act, 1925, §§ 301, 313, 43 Stat. 1070, 1074). 

Congress later extended the coverage of this prohibition to 

include labor unions. See NRWC, 459 U.S. at 209 (noting 

that “union contributions in connection with federal elections 

were prohibited altogether” by the War Labor Disputes Act 

of 1943). And, later still, Congress extended the scope of 

this prohibition to include “expenditures” as well as contributions. See McConnell, 540 U.S. at 117. 

In its “steady improvement of the national election laws,” 

id., Congress enacted FECA in 1972, which “ratified the 

earlier prohibition on the use of corporate and union general 

treasury funds for political contributions and expenditures.” 

Id. at 118. Specifically, FECA Section 441b, which constituted “merely a refinement of th[e] gradual development of 

the federal election statute,” NRWC, 459 U.S. at 209, made it 

“unlawful * * * for any corporation whatever * * * to make a 

contribution or expenditure in connection with any” federal 

election. 2 U.S.C. § 441b(a); see FEC v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238, 241 (1986) (MCFL). 

The term “expenditure” included “anything of value * * * for 

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

U.S.C. § 431(9)(A)(i). While barring expenditures of general 

treasury funds, however, FECA “expressly permitted corporations and unions to establish and administer separate 

segregated funds (commonly known as political action 

committees, or PACs) for election-related contributions and 

expenditures.” McConnell, 540 U.S. at 118; see MCFL, 479 

U.S. at 241; Pipefitters Local Union No. 562 v. United 

States, 407 U.S. 385, 409-410 (1972). 

2. FECA Section 441b’s prohibition against corporate and 

union expenditures of “anything of value” in connection with 

federal elections was later modified by this Court in a way 

that ultimately prompted Congress to enact BCRA Section 

203. In MCFL, this Court accepted the argument that FECA 
10 

 

Section 441b “necessarily incorporates the requirement that a 

communication ‘expressly advocate’ the election of candidates” and held that “an expenditure must constitute ‘express 

advocacy’ in order to be subject to the prohibition of 

§ 441b.” 479 U.S. at 248-249. This requirement stemmed 

from the Court’s own prior decision in Buckley v. Valeo, 

supra, which—in order to avoid vagueness and overbreadth 

concerns inhering in a different FECA provision—held that 

“expenditure encompassed ‘only funds used for communications that expressly advocate the election or defeat of a 

clearly identified candidate.’ ” Id. (quoting Buckley, 424 

U.S. at 80). As the MCFL Court explained, Buckley

“adopted the ‘express advocacy’ requirement to distinguish 

discussion of issues and candidates from more pointed 

exhortations to vote for particular persons.” 479 U.S. at 249. 

Buckley identified eight such “more pointed exhortations”—

namely, “vote for,” “elect,” “support,” “cast your ballot for,” 

“Smith for Congress,” “vote against,” “defeat,” and “reject,” 

424 U.S. at 44 n.52—which later became “known as the 

‘magic words’ requirement.” McConnell, 540 U.S. at 191. 

“As a result of MCFL, corporations and labor unions were 

permitted to use their general treasury funds on independent 

expenditures in connection with a federal election, provided 

that those independent expenditures did not contain words of 

‘express advocacy.’ ” McConnell v. FEC, 251 F. Supp. 2d at 

525-526 (Kollar-Kotelly, J.) (footnote omitted)). That meant 

that “corporations and labor unions could use their general 

treasury funds to pay for an advertisement which influenced a 

federal election, provided that the corporation or labor union 

did not use any of Buckley’s ‘magic words’ in the advertisement.” Id. at 526 (emphasis added). 

3. “[E]xperience demonstrates how candidates, donors, 

and parties test the limits of the current law.” Beaumont, 539 

U.S. at 155 (internal quotation marks & citation omitted). 

The prohibition contained in FECA Section 441b (qualified 

by the magic words requirement) proved no exception to this 

lesson of experience. In the years following MCFL, corporations and labor unions tested FECA Section 441b’s prohibi-
11 

 

tion by making expenditures on ads that eschewed reliance 

on Buckley’s “magic words” but were no less effective at 

influencing federal elections than communications containing 

“pointed exhortations” of support for or opposition to candidates for federal office. See, e.g., McConnell, 251 F. Supp. 

2d at 526 (Kollar-Kotelly, J.). Such ads “were attractive to 

organizations and candidates precisely because they were 

beyond FECA’s reach, enabling candidates and their parties 

to work closely with friendly interest groups to sponsor socalled issue ads when the candidates themselves were running out of money.” McConnell, 540 U.S. at 128. As Dr. 

Mann explained in his report in the McConnell litigation, 

research concerning this period reveals “extensive and 

elaborate efforts by parties, candidates, unions, corporations 

and groups to exploit this new issue advocacy loophole to 

avoid the strictures of federal election law.” Report of 

Thomas E. Mann 20-21 [Mann Report]. 

4. The late 1990s were a boom time for issue advocacy 

during which “[c]orporations and unions spent hundreds of 

millions of dollars of their general funds to pay for these 

ads.” McConnell, 540 U.S. at 127. The Annenberg Center 

for Public Policy, which has studied “issue advocacy” since 

the early 1990s, concluded that “the numbers of ads, groups, 

and dollars spent on issue advocacy * * * climbed” markedly 

from the 1996 to the 2000 election cycle. McConnell, 251 

F. Supp. 2d at 879 (Leon, J.). It found that the 1995-96 

election cycle saw about “$135 million to $150 million * * * 

spent on multiple broadcasts of about 100 ads.” Id. 

CED has found that “[d]uring the 1996 election cycle, a 

wide array of party organizations and other groups seized on 

the issue advocacy distinction and spent tens of millions of 

dollars on advertisements carefully designed to avoid restrictions of federal law.” Business Proposal for Campaign 

Reform 29. CED estimated that “party organizations spent at 

least $100 million on issue advertising in 1996.” Id.; see 

also id. (noting that “total amount spent on issue ads during 

the 1996 election is not known”). These ads “were broadcast 

in markets across the nation and aired in every key congres-
12 

 

sional race in the country,” and “[a]lmost all the commercials 

broadcast by these organizations featured specific federal 

candidates, and most were aired in the final six weeks of the 

general election campaign.” Id. 

The numbers only grew during the next election cycle: 

“[T]he Annenberg Public Policy Center found that 77 

organizations aired 423 advertisements at a cost of between 

$250 million and $340 million.” McConnell, 251 F. Supp. 

2d at 879 (Leon, J.). During this cycle, “836 issue ads were 

broadcast in 30 states during the final 60 days before the 

election, of which an estimated 70 percent were sponsored by 

major parties.” Business Proposal for Campaign Reform 29. 

During the “1999-2000 election cycle, the Annenberg 

Center found that 130 groups spent over an estimated $500 

million on 1,100 distinct advertisements.” Id. In passing 

BCRA, the Annenberg Center’s tracking of the rise of 

organizations’ reliance on issue advocacy did not escape 

Congress’s attention. See 147 Cong. Rec. S2455-56 (daily 

ed. Mar. 19, 2001). 

5. The meteoric rise in issue ads was not a coincidence but 

a strategy adopted by organizations intent on influencing 

federal elections. As Dr. Mann explained in his report, 

“[p]arties and outside groups used issue advocacy as a cover 

to finance campaigns for and against federal candidates in 

targeted races.” Mann Report 24. CED has similarly observed that “issue advocacy * * * became the new strategy 

for election spending, especially for organizations not 

allowed to make direct contributions in federal campaigns.” 

Business Proposal for Campaign Reform 29. 

Two judges on the three-judge District Court convened to 

review the pre-enforcement challenge to BCRA similarly 

found that organizations used issue ads for the purpose of 

influencing federal elections. Judge Kollar-Kotelly found 

“uncontroverted” evidence “that by the early 1990s and 

especially by 1996, interest groups had developed a strategy 

to effectively communicate an electioneering message for or 

against a particular candidate without using the magic 
13 

 

words.” McConnell, 251 F. Supp. 2d at 528 (internal quotation marks, alteration & citation omitted). Judge Leon 

likewise concluded that the “factual record unequivocally 

establishes that [issue ads] have not only been crafted for the 

specific purpose of directly affecting federal elections, but 

have been very successful in doing just that.” Id. at 800. 

6. The line that Buckley drew between express advocacy 

and issue advocacy—later imported into FECA Section 441b 

in MCFL—was not only easily and frequently circumvented 

but largely illusory from the start. Buckley foresaw as much: 

[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may 

often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and government actions. Not 

only do candidates campaign on the basis of their positions 

on various issues, but campaigns themselves generate 

issues of public interest. [Buckley, 424 U.S. at 42.] 

Indeed, this Court in McConnell confirmed that the express 

advocacy test is “functionally meaningless.” 540 U.S. at 

193, 217. “While the distinction between ‘issue’ and express 

advocacy seemed neat in theory, the two categories of 

advertisements proved functionally identical in important 

respects.” Id. at 126. 

Experience in fact powerfully demonstrated that the express advocacy test and the focus on “magic words” failed to 

identify accurately communications designed to influence 

federal elections. As Dr. Mann explained in his report, 

“research by political scientists confirmed the suspicion” that 

there is “little difference in purpose and content between 

express advocacy and candidate-specific issue advocacy 

communications financed by parties and groups.” Mann 

Report 24. He explained that the “evidence of the explicit 

electioneering purpose of candidate-specific issue advocacy 

near the election was overwhelming” as such ads “run by 

parties and groups were largely indistinguishable from the 

campaign ads of the candidates.” Id. As Dr. Mann found: 
14 

 

Very few candidate ads used words of express advocacy; 

virtually all party issue ads mentioned the name of a federal candidate, mostly in attack mode, but few mentioned 

the name of the party; and almost every issue ad featuring 

the name of the candidate and running near an election 

was clearly designed to support or attack a candidate, not 

to express a view on an issue. [Id.] 

The result: “Voters were unable to differentiate candidatespecific issue ads * * * sponsored by parties and outside 

groups from campaign ads run by candidates.” Id. 

That the dichotomy between express advocacy and issue 

advocacy is a false one was further born out by the McConnell litigation. All three of the judges of the District Court 

agreed that few ads run by candidates, parties or interest 

groups rely on words of express advocacy. See 251 F. Supp. 

2d at 303 (Henderson, J.); id. at 529 (Kollar-Kotelly, J.); id. 

at 874 (Leon, J.); see also McConnell, 540 U.S. at 128 n.18. 

The record before them confirmed that media professionals 

actually disfavored such heavy-handed tactics. As one 

political consultant explained, given “the modern world of 30 

second political advertisements,” it “is rarely advisable” to 

use “such clumsy words as ‘vote for’ or ‘vote against.’ ” Id. 

at 529-530 (Kollar-Kotelly, J.); see also id. at 305 (Henderson, J.); id. at 874-875 (Leon, J.). Rather, the “most effective” course, as “[a]ll advertising professionals understand,” 

is to “lead[ ] the viewer to his or her own conclusion without 

forcing it down their throat.” Id. at 529-530 (Kollar-Kotelly, 

J.); id. at 875 (Leon, J.); see also McConnell, 540 U.S. at 193 

n.77 (noting that “political professionals and academics 

confirm that the use of magic words has become an anachronism”). “This is especially true of political advertising, 

because people are generally very skeptical of claims made 

by or about politicians.” McConnell, 251 F. Supp. 2d at 530 

(Kollar-Kotelly, J.). The express advocacy limitation of 

course proved no substantial obstacle for this “modern” 

electioneering approach. 

Members of Congress themselves—some of them “seasoned professionals who have been deeply involved in 
15 

 

elective processes and who have viewed them at close range 

over many years”4—confirmed that the “magic words” of 

express advocacy “do not distinguish pure issue advertisements from candidate-centered issue advertisements.” Id. at 

532 (Kollar-Kotelly, J.). Senator Feingold, for example, 

opined that “[p]eople didn’t need to hear the so-called magic 

words to know what these ads were really all about.” 147 

Cong. Rec. S3072 (daily ed. Mar. 29, 2001), while Senator 

McCain explained that “th[is] Court’s definition of ‘express 

advocacy’—magic words—has no real bearing in today’s 

world of campaign ads.” 147 Cong. Rec. S3036 (daily ed. 

Mar. 28, 2001); see also 148 Cong. Rec. S2141 (daily ed. 

Mar. 20, 2002) (statement of Sen. McCain) (“[E]ven a casual 

observer would concede that ‘magic words’ is a dramatically 

underinclusive test for determining what constitutes a campaign ad.”). Many other federal lawmakers expressed similar 

views on so-called issue advocacy.5 

 4 Buckley, 424 U.S. at 261 (White, J., concurring in part & 

dissenting in part); see also Colorado Republican Fed. Campaign 

Comm. v. FEC, 518 U.S. 604, 650 (1996) (Stevens, J., dissenting) 

(“Congress surely has both wisdom and experience in these 

matters that is far superior to ours.”). 

5 See, e.g., 148 Cong. Rec. H387 (daily ed. Feb. 14, 2002) 

(statement of Rep. Cardin) (“Currently, these [issue] ads which are 

clearly aimed at influencing an election can be worded in a way 

that they are deemed issue advocacy and are not subject to campaign spending limits or disclosure requirements.”); 148 Cong. 

Rec. H410 (daily ed. Feb. 14, 2002) (statement of Rep. Kleczka) 

(“An equally troubling aspect of today’s campaign system is the 

number of issue advertisements broadcast on the television and 

radio. Although these ads technically adhere to federal campaign 

regulations, they violate the spirit of the law.”); 147 Cong. Rec. 

S2636 (daily ed. Mar. 21, 2001) (statement of Sen. Edwards) (“In 

fact, [issue advertisements] are more than a masquerade, they are a 

sham, they are a fraud on the American people, and they are 

nothing but a means to avoid the legitimate election laws of this 

country.”); 144 Cong. Rec. H6802 (daily ed. July 30, 1998) 

(statement of Rep. Shays) (“They are not sham in the sense that 

they do not have a right to speak, but they are not issue ads, they 

are campaign ads, and we call them such.”); 144 Cong. Rec. 

S1038-39 (daily ed. Feb. 26, 1998) (statement of Sen. Bryan) 

(“Independent expenditure ads are one of the very reasons the 
16 

 

7. The widespread practice of using soft money to fund 

issue ads designed to influence federal elections was further 

documented in the six-volume report—spanning nearly 

10,000 pages—that the Senate Governmental Affairs Committee (Committee), chaired by Senator Fred Thompson and 

led also by Ranking Member John Glenn, produced following its investigation into campaign finance law abuses during 

the 1996 presidential campaigns. See Investigation of Illegal 

or Improper Activities in Connection with 1996 Federal 

Election Campaigns, S. Rep. No. 105-167 (1998) (Thompson 

Report). This Court has characterized the Committee’s 

findings as “disturbing.” McConnell, 540 U.S. at 122. 

The Committee concluded that issue ads constituted “the 

second most significant loophole” in the pre-existing campaign finance regime. Thompson Report at 5968 (minority 

views). The Committee “found such ads highly problematic 

for two reasons.” McConnell, 540 U.S. at 131. First, because issue ads “accomplished the same purpose as express 

advocacy (which could lawfully be funded only with hard 

money), the ads enabled unions, corporations, and wealthy 

contributors to circumvent protections that FECA was 

intended to provide.” Id. Second, while the ads were “ostensibly independent of the candidates,” they were “often 

actually coordinated with, and controlled by, the campaigns.” 

Id. “The ads thus provided a means for evading FECA’s 

 

campaign system is out of control. We all know that these ads are 

really intended to defeat a candidate and are often coordinated with 

the opposition campaign. Simply put, these ads are not genuinely 

independent nor are they strictly concerned with issue advocacy.”). 

143 Cong. Rec. S10125 (daily ed. Sept. 29, 1997) (statement of 

Sen. Collins) (“[T]he situation I have described [regarding ‘issue’ 

ads run by the AFL-CIO] has led to the biggest sham in American 

politics. Nobody in Maine believed that the AFL[-]CIO’s negative 

ads were for any purpose other than the defeat of a candidate. Ads 

of that nature make an absolute mockery out of the prohibition 

against unions and corporations spending money on Federal 

elections. The ‘express advocacy’ provision in McCain-Feingold 

is designed to do away with this sham.”).
17 

 

candidate contribution limits.” Id. The Committee’s findings bear out these conclusions. 

Looking broadly at the problem posed by issue advocacy, 

the Thompson Report found that both national parties used 

soft money to fund issue ads intended to influence the 1996 

presidential election. The Democratic National Committee 

(DNC) spent $44 million on issue ads during the 1996 

presidential election, while the Republican National Committee (RNC) spent $24 million. See Thompson Report at 4482; 

id. at 8294 (minority views). When Harold Ickes, President 

Clinton’s Deputy Chief of Staff, was asked during the 

Committee hearings whether the average person would 

comprehend the DNC and RNC’s issue ads as encouraging a 

vote for one of the presidential candidates, he responded that 

“I would certainly hope so. If not, we ought to fire the ad 

agencies.” Id. at 8286 (minority views). 

The 1996 presidential candidates themselves tended to 

share this view toward issue ads funded by soft money. That 

President Clinton fully appreciated the impact of issue ads on 

his campaign for a second presidential term is apparent in his 

telling major contributors to the DNC that their contributions, 

which funded ads “run * * * through the Democratic party,” 

rather than his campaign, “have made a huge difference.” Id. 

at 62. Senator Dole’s campaign deployed this strategy as 

well. The Report concluded that “there can be little doubt 

that the RNC’s issue ads were intended to influence the 

outcome of a federal election.” Id. at 4014. One of those 

advertisements, entitled “The Story,” the Thompson Report 

concluded, “was nothing more than a biography of Bob 

Dole.” Id. Senator Dole’s campaign manager, Scott Reed, 

acknowledged that “[w]e went out in April and May and 

raised $25 million for the party, of which about $17, $18 or 

$19 million was put into party building ads, which were Bob 

Dole in nature.” Id. at 8301 (minority views). In an interview with Ted Koppel of ABC News, Senator Dole explained that, while his campaign could not afford to fund ads 

lauding his candidacy, the RNC ran “generic” ads on his 

behalf. Id. at 4153-54. Questioned whether “Bob Dole for 
18 

 

President” constitutes “generic spending,” Senator Dole 

explained that such generic ads “never say[ ] that I’m running 

for president, though I hope that it’s fairly obvious, since I’m 

the only one in the picture!” Id. at 4154. 

The Thompson Report further detailed the extent to which 

the national parties coordinated their issue ads with the 

campaigns of their presidential candidates. As for the DNC, 

the report concluded that the White House essentially “operated the [DNC] party apparatus as a slush-fund for the 

President’s re-election campaign.” Id. at 23. The Clinton/Gore campaign and the DNC used the same consultants, 

pollsters and media producers, id. at 34, and even coordinated the day on which their respective ads would run, id. at 

118. Indeed, Dick Morris, a campaign advisor to President 

Clinton, stated that the President himself was so involved in 

the creation of all of the DNC and Clinton/Gore campaign 

ads that they essentially “ ‘became * * * the work of the 

President himself.’ ” Id. at 122. This “unprecedented” level 

of coordination led to the “oblitera[tion]” of any “distinctions 

remaining between the White House, the DNC, and [the] 

Clinton/Gore [campaign].” Id. at 107. 

Similar findings were made in regard to the RNC and 

Senator Dole’s campaign. The RNC’s media campaign was 

controlled by Senator Dole’s “campaign manager, chief 

fundraiser, media consultant, and pollster.” Id. at 8297 

(minority views). And “the criterion used by the RNC and 

the Dole campaign for deciding where to run issue ads was 

whether the ads would help Senator Dole win electoral 

votes.” Id. at 8299 (minority views). 

The Thompson Report further concluded that, just as the 

national parties exploited the issue-advocacy loophole, so, 

too, did corporations and unions. It found that such organizations spent “roughly one-seventh of the 400 million dollars 

expended on political advertising during the 1996 elections 

by parties, candidates and others.” Id. at 3993. These ads—

like the ones produced by the parties—were likewise intended to influence federal elections. See id. at 3997. They 

were indeed often coordinated with the campaigns of the 
19 

 

1996 presidential candidates or the national parties with 

which they were associated. Id. The Thompson Report 

found, for example, that “[e]vidence * * * indicates [that 

AFL-CIO] programs were conceived, designed and implemented to defeat Republican Members of Congress during 

the 1996 elections.” Id.; see also id. at 49 (“White House 

aides and the AFL-CIO carefully reviewed each other’s 

advertisements and coordinated their timing and placement.”). Dick Morris additionally testified during the 

Committee hearings that an August 1995 meeting between 

representatives of the Clinton/Gore campaign, the DNC and 

seven labor organizations constituted “ ‘a full briefing of us 

by them on their media plans.’ ” Id. at 128. 

Groups backing Republican candidates similarly used issue 

ads in an attempt to influence federal elections. For instance, 

The Coalition: Americans Working for Real Change, a 

group formed to counter issue ads aired by the AFL-CIO, 

produced issue ads nearly identical to those run by the 

National Republican Congressional Committee (NRCC), a 

division of the RNC, aired them at the same time as the 

NRCC’s ads and “in districts where the Republican incumbent’s seat was vulnerable.” Id. at 8944 (minority views). 

Another group, Triad Management Services, “channeled 

millions of dollars from its backers to two tax-exempt groups 

it had established for the sole purpose of running attack ads 

against Democratic candidates under the guise of ‘issue 

advocacy.’ ” Id. at 4569 (minority views). “By operating 

this way, Triad and its financial backers avoided the disclosure and campaign contribution limits of the federal election 

laws.” Id. They became “surrogates” by which the RNC 

“was able to circumvent federal campaign finance laws.” Id. 

at 5979 (minority views). This was so because whereas “a 

political party [that] broadcasts issue ads * * * is required to 

pay for them with a combination of hard dollars and soft 

dollars,” when “an outside group runs such ads, there are no 

such restrictions—even if the funding comes from the RNC.” 

Id. 
20 

 

The Thompson Report concluded that repairs to the campaign finance laws must involve restrictions on issue advocacy. “The majority expressed the view that a ban on the 

raising of soft money by national party committees would 

effectively address the use of union and corporate general 

treasury funds in the federal political process only if it 

required that candidate-specific ads be funded with hard 

money.” McConnell, 540 U.S. at 132; see also Thompson 

Report at 4492. The minority similarly recommended 

“reforms addressing candidate advertisements masquerading 

as issue ads.” Thompson Report at 9394 (minority views); 

see also McConnell, 540 U.S. at 132. 

8. “Buckley’s express advocacy line [did] not aid[ ] the 

legislative effort to combat real or apparent corruption, and 

Congress enacted BCRA to correct the flaws it found in the 

existing system.” McConnell, 540 U.S. at 193-194. The 

legislative process culminating in the passage of BCRA 

spanned more than six years and generated multiple reform 

bills introduced in Congress. See McConnell, 251 F. Supp. 

2d at 434 (noting that “the legislative process took over six 

years of study and reflection by Congress”) (Kollar-Kotelly); 

id. at 434 n.1 (listing campaign finance bills introduced in 

Congress during six-year period preceding BCRA’s passage). 

This process was influenced by the failings of the pre-BCRA 

campaign finance regime brought to light by the Thompson 

Report as well as the reforms that the report proposed.6 

Senator Feingold, for example, opined that, “in the wake of 

the Thompson investigation, we reluctantly concluded that 

we need to first focus our efforts on closing the biggest 

loopholes in the system: the soft money and the phony issue 

ads.” 148 Cong. Rec. S2104 (daily ed. Mar. 20, 2002). 

Senator Glenn similarly noted that the Thompson Report 

 6 The House and Senate bills that ultimately became BCRA 

were not accompanied by the customary explanatory committee 

reports. Members of Congress frequently relied on the Thompson 

Report’s findings in floor debates on BCRA, however. See, e.g., 147 Cong. Rec. S3138 (daily ed. Mar. 29, 2001) (statement of Sen. 

Levin) (“The 1997 Senate investigation collected ample evidence 

of campaign abuses.”). 
21 

 

“showed that the legal distinction between ‘issue ads’ and 

‘candidate ads’ has proved to be largely meaningless” and 

that the legislation under consideration “goes a long way to 

address[ing] th[is] abuse.” 144 Cong. Rec. S1048-49 (daily 

ed. Feb. 26, 1998). 

9. BCRA Section 203 directly combats the well documented problem of issue ads that avoided express advocacy 

but nevertheless had the purpose and likely effect of influencing federal elections. That section extended FECA’s preexisting prohibition on the use of corporate and union general 

treasury funds to finance communications influencing federal 

elections—which MCFL previously had limited to communications expressly advocating election or defeat of a particular 

candidate—to cover any “electioneering communication.” 

2 U.S.C. § 441b(b)(2). An electioneering communication is 

defined as (1) any “broadcast, cable or satellite communication” that (2) “refers to a clearly identified candidate for 

Federal office”; (3) is made within either 60 days preceding a 

federal general election, or 30 days preceding a federal 

primary election, for the office the candidate seeks; and (4) is 

“targeted to the relevant electorate,” 2 U.S.C. 

§ 434(f)(3)(A)(i), meaning that the communication must be 

received by 50,000 or more persons in the “relevant congressional district or state.” McConnell, 251 F. Supp. 2d at 

212 (per curiam). “Thus, under BCRA, corporations and 

unions may not use their general treasury funds to finance 

electioneering communications, but they remain free to 

organize and administer segregated funds, or PACs, for that 

purpose.” McConnell, 540 U.S. at 204. 

Congress’s new term—“electioneering communication”— 

is carefully calculated to identify (and block) corporate and 

union general treasury expenditures on broadcast advertisements intended to influence federal elections that escaped 

detection under Buckley’s express advocacy radar. “By 

adopting a definition of electioneering communication that 

by and large is premised on the empirical determinants that 

Congress found distinguish pure issue advocacy from candidate-centered issue advocacy,” as Judge Kollar-Kotelly 
22 

 

explained, Congress “rejected reliance on the subjective 

impressions of the listener and focuses on objective variables 

that do an impressive job * * * of distinguishing between 

candidate-centered issue advertising and pure issue advertising.” McConnell, 251 F. Supp. 2d at 569. She found that 

the uncontroverted record establishes that pure issue advocacy is empirically distinguishable from candidatecentered issue advocacy on the basis of (a) whether the 

federal candidate is named; (b) whether the advertisement 

is run in close proximity to a federal election; and (c) if 

the advertisement is run in a competitive race. [Id. at 

567.] 

Each criterion of Congress’s new term is bottomed on 

empirical evidence. First, the definition of electioneering 

communication aims only at the media “found by Congress 

to be problematic.” Id. at 569. “The records developed in 

[the BCRA pre-enforcement] litigation and by the Senate 

Committee adequately explain the reasons for this legislative 

choice.” McConnell, 540 U.S. at 207. As Judge KollarKotelly explained, that record “demonstrate[d] that more than 

any other medium, broadcast advertisements were the vehicle 

through which corporations and labor unions spent their 

general treasury funds to influence federal elections.” 

McConnell, 251 F. Supp. 2d at 573. The Thompson Report 

further supported Congress’s finding that “corporations and 

unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately 

preceding federal elections.” McConnell, 540 U.S. at 207. 

See Thompson Report at 4465, 4474-81; id. at 7521-25 

(minority views). 

Second, the definition of electioneering communication 

encompasses only messages that refer to clearly identified 

candidates for federal elected office. During the preenforcement challenge, “[f]ederal officeholders and candidates * * * testif[ied] that, based on their experience, the 

intent behind issue advertisements that mention the name of a 

federal candidate, are aired right before the election, and 

broadcast to the candidate’s electorate, is to influence the 
23 

 

election.” McConnell, 251 F. Supp. 2d at 534 (KollarKotelly). These politicians’ intuitions were confirmed by 

political consultants’ “uncontroverted testimony that when 

designing pure issue advertisements, it was never necessary 

to reference specific candidates for federal office in order to 

create effective ads.” Id. at 628 (internal quotation marks & 

ellipsis omitted). As Judge Kollar-Kotelly explained, moreover, the rather obvious “flip side of this coin * * * is that 

when advertisements do mention a candidate’s name, particularly in the period preceding an election, the advertisement’s 

primary purpose is usually to influence the election.” Id. 

Third, the 30- and 60-day pre-election blackout periods 

applicable to electioneering communications also strongly 

correlate to the periods during which ads aimed at influencing federal elections are most likely to air—the time period, 

not surprisingly, immediately preceding an election. Judge 

Kollar-Kotelly concluded that “[t]he uncontroverted testimony of experts confirms that the airing of issue advertisements designed to influence a federal election is at its zenith 

in the final weeks prior to an election.” Id. at 564-565; see 

also id. at 630. Her opinion includes a graph showing that 

the number of issue ads rises as an election day nears and 

dramatically spikes in the weeks immediately preceding an 

election. Id. at 564. As one media consultant testified: “In 

my decades of experience in national politics, nearly all of 

the ads that I have seen that both mention specific candidates 

and are run in the days immediately preceding the election 

were clearly designed to influence elections.” Id. at 561. 

This consultant confirmed the common-sense proposition 

that, “[f]rom a media consultant’s perspective, there would 

be no reason to run such ads if your desire was not to impact 

an election.” Id. And, in McConnell, this Court similarly 

concluded that, although “[t]he precise percentage of issue 

ads that clearly identified a candidate and were aired during 

those relatively brief [30 and 60 day] preelection time spans 

but had no electioneering purpose is a matter of dispute * * * 

the vast majority of such ads clearly had such a purpose.” 

540 U.S. at 206 (emphasis added) (citations omitted). 
24 

 

Fourth, the definition of electioneering communication is 

keyed to messages that are targeted to the electorate relevant 

to the candidate to which the message refers. This component of the definition accounts for the fact that messages that 

“target substantial portions of the electorate who decide a 

candidate’s political future are those most likely to influence 

an election, and earn the candidate’s gratitude.” McConnell, 

251 F. Supp. 2d at 633 (Kollar-Kotelly). Officeholders and 

candidates confirmed that issue ads delivered to a candidate’s 

electorate were intended to influence the election. Id. at 534. 

Acknowledging that “Congress’ careful legislative adjustment of the federal electoral laws, in a cautious advance, step 

by step, to account for the particular legal and economic 

attributes of corporations and labor organizations warrants 

considerable deference,” McConnell, 540 U.S. at 117 (internal quotation marks & citations omitted), this Court upheld 

Congress’s corrective measure embodied in BCRA Section 

203, and BCRA’s primary definition of “electioneering 

communication” on which it relies, against a facial constitutional attack in McConnell, see id. at 189-194, 203-209. 

The deference that this Court in McConnell showed Congress is especially appropriate “in [this] area where it enjoys 

particular expertise.” Id. at 185 n.72. In this case, the Court 

owes “no less deference than we customarily must pay to the 

duly enacted and carefully considered decision of a coequal 

and representative branch of our Government.” Walters v. 

National Ass’n of Radiation Survivors, 473 U.S. 305, 319 

(1985) (internal quotation marks omitted). 

II. THE LOWER COURT’S REVIEW DEPARTS 

FROM THIS COURT’S PRECEDENTS AND 

THREATENS TO RE-OPEN THE LOOPHOLE 

CLOSED BY BCRA SECTION 203. 

The District Court traveled a misguided course in holding 

Section 203 unconstitutional as applied to WRTL’s antifilibuster ads—a course charted on a misapprehension of its 

role and in reaction to groundless fears, and one that, in the 

end, led it far astray from McConnell’s well-lighted path. 
25 

 

1. The District Court fundamentally misunderstood the 

task at hand. Even after the parties conducted discovery 

(ordered by the court) and proposed findings of fact, see J.S. 

App. at 9a-10a, it considered only the “language within the 

four corners of the anti-filibuster ads,” id. at 22a, to find the 

statute unconstitutional on the belief that “[d]etermining [the] 

intent and the likely effect” of the advertisements is “too 

conjectural and wholly impractical,” id. at 18a. But an asapplied constitutional challenge calls for a far more searching—and fact-intensive—review. See United States 

v. Christian Echoes Nat’l Ministry, Inc., 404 U.S. 561, 565 

(1972) (as-applied challenge involves determining whether 

“the section, by its own terms, infringed constitutional 

freedoms in the circumstances of the particular case”); see

also Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (stating “general 

rule that constitutional adjudication requires a review of the 

application of a statute to the conduct of the party before the 

Court”). That mode of review “requires an analysis of the 

facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived 

the individual to whom it was applied of a protected right.” 

Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d 

Cir. 2006) (emphasis added); see also Faustin v. City & 

County of Denver, 423 F.3d 1192, 1196 (10th Cir. 2005) 

(“[A]n as-applied challenge tests the application of th[e] 

restriction to the facts of a plaintiff’s concrete case.”); 

Sanjour v. EPA, 56 F.3d 85, 92 n.10 (D.C. Cir. 1995) (en 

banc) (noting as-applied challenge “ask[s] only that the 

reviewing court declare the challenged statute or regulation 

unconstitutional on the facts of the particular case”). The 

District Court’s contrary approach rendered as-applied 

review a less precise tool for assessing the constitutionality 

of an Act of Congress in a particular case by “formulat[ing] a 

rule of constitutional law broader than is required by the 

precise facts to which it is to be applied.” United States 

v. Raines, 362 U.S. 17, 21 (1960). 

2. Moreover, the District Court adopted its “four corners” 

review on a premise that this Court’s jurisprudence rejects. It 
26 

 

believed that it had to restrict its review to the face of 

WRTL’s ads because “the judiciary * * * should not be in the 

business of trying to read any speaker’s mind” and likewise 

should not “be charged with conjuring the subjective intent of 

the speaker.” J.S. App. at 21a-22a. But “[t]he law does not 

refrain from searching for the intent of the actor in a multitude of circumstances.” Bush v. Gore, 531 U.S. 98, 106 

(2000); see also City of Indianapolis v. Edmond, 531 U.S. 

32, 46-47 (2000) (“While we recognize the challenges 

inherent in a purpose inquiry, courts routinely engage in this 

enterprise in many areas of constitutional jurisprudence 

* * *.”). 

As this Court has explained, “[i]t is common in the law to 

examine the content of a communication to determine the 

speaker’s purpose.” Hill v. Colorado, 530 U.S. 703, 721 

(2000) (emphasis added); see, e.g., Connick v. Myers, 461 

U.S. 138, 147-148 (1983) (“Whether an employee’s speech 

addresses a matter of public concern must be determined by 

the content, form, and context of a given statement, as 

revealed by the whole record.”). 

The Court has long considered a speaker’s intent, for example, when assessing whether symbolic conduct receives 

First Amendment protection. See, e.g., Texas v. Johnson, 

491 U.S. 397, 404 (1989) (determining “whether particular 

conduct possesses sufficient communicative elements to 

bring the First Amendment into play” requires consideration 

of “an intent to convey a particularized message”) (internal 

quotation marks & alteration omitted); Spence v. Washington, 418 U.S. 405, 410-411 (1974). And, in other circumstances, this Court requires consideration of a speaker’s 

intent before his speech may trigger legal liability, see, e.g.,

Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967) (“We hold 

that the constitutional protections for speech and press 

preclude the application of the New York [right to privacy] 

statute to redress false reports of matters of public interest in 

the absence of proof that the defendant published the report 

with knowledge of its falsity or in reckless disregard of the 

truth.”); New York Times v. Sullivan, 376 U.S. 254, 279-280 
27 

 

(1964) (holding that a public official may not recover damages “for a defamatory falsehood relating to his official 

conduct unless he proves that the statement was made with 

‘actual malice’ ”), or provide grounds for termination from 

public employment, see, e.g., Pickering v. Board of Educ., 

391 U.S. 563, 574 (1968) (“[A]bsent proof of false statements knowingly or recklessly made by him, a teacher’s 

exercise of his right to speak on issues of public importance 

may not furnish the basis for his dismissal from public 

employment.”). 

3. Even more troubling than the District Court’s adoption 

of a “four corners” test based on misplaced concerns is that, 

in doing so, it ignored McConnell’s clear contrary instruction 

to consider the intent and effect of political ads. There, the 

Court rejected the plaintiffs’ argument that “the justifications 

that adequately support the regulation of express advocacy do 

not apply to significant quantities of speech encompassed by 

the definition of electioneering communications” because 

they “apply equally to ads aired during th[e blackout] periods 

if the ads are intended to influence the voters’ decisions and 

have that effect.” McConnell, 540 U.S. at 206 (emphases 

added). Such ads, it concluded, are the “functional equivalent of express advocacy.” Id. And, while the Court declined 

to identify the precise percentage of issue ads that had an 

electioneering purpose, it concluded that “[t]he vast majority 

of ads clearly had such a purpose.” Id. (emphasis added).

McConnell’s conclusion that issue ads are tantamount to 

express advocacy—and permissibly regulated—“if the ads 

are intended to influence the voters’ decisions and have that 

effect” makes clear that review of an as-applied challenge to 

Section 203 requires assessing whether the ads in question 

are intended to influence voters and have that effect in view 

of their context as well as content. By reviewing only 

whether the “language within the four corners” of the ads met 

a set of linguistic criteria different from Section 203’s 

objective criteria the District Court ignored the “unmistakable lesson” of McConnell: The “presence or absence of 

magic words cannot meaningfully distinguish electioneering 
28 

 

speech from a true issue ad.”7 The District Court announced 

a new set of “magic words” instead. Id. at 193. 

4. If the District Court’s approach to as-applied challenges 

to Section 203 stands, it threatens to re-open the express 

advocacy loophole that unions and corporations exploited 

until Congress closed it with that provision. As this Court 

knows, “[i]f the history of campaign finance regulation * * * 

proves anything, it is that political parties are extraordinarily 

flexible in adapting to new restrictions on their fundraising 

abilities.” McConnell, 540 U.S. at 173. 

Congress put an end to the ability of corporations and labor 

unions to use their treasury funds to influence federal elections by replacing the “functionally meaningless” express 

advocacy test with objective, empirically-based factors that 

identify ads intended to influence elections. Id. at 193. Yet, 

if BCRA Section 203 cannot constitutionally apply to ads 

that meet Congress’s objective standards, but do not, on their 

face, meet the District Court’s different criteria, then actors 

in the political arena will no doubt “test the limits” of the 

new “four corners” rule with ads designed to influence 

federal elections. Beaumont, 539 U.S. at 155. 

To prevent a new wave of ads designed to circumvent the 

campaign finance laws, and halt a return to the days of high 

formalism and magic words, the review of as-applied challenges to BCRA Section 203 should focus not just on the 

“language within the four corners” of the ads but also, as 

McConnell requires, on the intent and effect of the ads. 

 7 In fact, the District Court actually invoked Buckley’s rationale 

for adopting the magic words requirement to support its limited 

review, despite McConnell’s clear holding that Buckley’s “express 

advocacy restriction was an endpoint of statutory construction, not 

a first principle of constitutional law.” 540 U.S. at 190. 
29 

 

III. WRTL’S ADS ARE THE VERY TYPE OF 

COMMUNICATIONS BCRA SECTION 203 IS 

DESIGNED TO PROHIBIT. 

Before the District Court restricted itself to the “language 

within the four corners” of WRTL’s ads, it found that the ads 

“may fit the very type of activity McConnell found Congress 

had a compelling interest in regulating.” J.S. App. at 62a. 

That conclusion—formed long before it reviewed the merits 

of WRTL’s challenge—remains correct. 

1. The context, timing, and content of WRTL’s ads reveal 

that they are designed to “convey [a] message” opposing a 

candidate for federal office—namely, Senator Feingold. 

McConnell, 540 U.S. at 239. As for context, WRTL’s “role 

in the political environment” first points to the ads’ purpose. 

J.S. App. at 41a (Roberts, J., dissenting). WRTL spent more 

than $60,000 in independent expenditures to oppose Senator 

Feingold’s reelection, and issued a news release critical of his 

record on the judicial filibuster issue. Id. at 41a-42a. 

WRTL’s PAC also announced that Senator Feingold’s defeat 

was a priority and, toward that end, endorsed three candidates running against him. Id. 

2. The timing of the ads—which both Congress and this 

Court recognized is a key determinant for identifying ads 

intended to influence an election—also signals that WRTL’s 

ads were intended to influence Senator Feingold’s reelection 

effort and, if aired, would have had that effect. Despite using 

other, non-broadcast media to convey its anti-judicialfilibuster message, WRTL only turned to the broadcast media 

(and its ads playing on the needless-delay theme) in the run 

up to the BCRA pre-election blackout period before the 

election. See id. at 5a, 9a. Moreover, the notion that these 

ads were intended to influence cloture votes on judicial 

filibusters—rather than Senator Feingold’s run for office—is 

gainsaid by the fact the ads only began to air after the cloture 

votes had taken place and when Congress was out of session 

on a six-week recess. Id. at 43a (Roberts, J., dissenting). 

WRTL did not even run its ads after the 2004 election “in 
30 

 

either 2004 or in 2005 during the height of the [judicial 

filibuster] controversy.” Id. (citation omitted). 

3. The content of the ads themselves further indicates that 

they were intended to impact Senator Feingold’s re-election. 

All of the ads that WRTL sought to air during BCRA’s 

blackout period connect Senator Feingold to a “group of U.S. 

Senators * * * blocking qualified [judicial] nominees from a 

simple ‘yes’ or ‘no’ vote” by encouraging the listener (or, in 

the case of the “Waiting” advertisement, viewer) to contact 

Senator Feingold and tell him “to oppose the filibuster.” Id. 

at 70a; see also id. at 67a, 69a. Indeed, while the ads offer 

the listener or viewer no way to contact Senator Feingold, 

they direct the listener or viewer to a website that “explicitly 

attacked Feingold’s record and encouraged website readers to 

defeat him.” Id. at 42a. 

In sum, “[t]he notion that th[ese] advertisement[s] w[ere] 

designed purely to discuss the issue of [judicial filibusters] 

strains credulity.” McConnell, 540 U.S. at 194 n.78. 

CONCLUSION 

For the foregoing reasons, the judgment below should be 

reversed and the case remanded for further proceedings. 

Respectfully submitted, 

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record 

PAUL A. WERNER

HOGAN & HARTSON L.L.P. 

555 Thirteenth Street, N.W. 

Washington, D.C. 20004 

(202) 637-5810 

FEBRUARY 2007 Counsel for Amici Curiae