No. 02-________ 

In The 

Supreme Court of the United States ____________ 

NATIONAL RIGHT TO LIFE COMMITTEE, INC., ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., Appellees. 

____________ 

On Appeal from the United States District Court


for the District of Columbia


____________


Jurisdictional Statement 

____________ 

May 28, 2003 

James Bopp, Jr. 

Counsel of Record 

Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR


FREE SPEECH 

BOPP, COLESON & BOSTROM 

1 South 6th Street 

Terre Haute, IN 47807-3510 

812/232-2434 

Counse l for JMC Appellants 
Questions Presented 

1. Whether the prohibition of § 101 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA) on the solicitation, 

receipt, redirection, or use of “soft money” by any national 

political party for any communication that “promotes or 

supports . . . or attacks or opposes” a federal candidate, violates 

the First and Fifth Amendment and principles of federalism. 

2. Whether the prohibition on federal officeholders and 

candidates from soliciting, receiving, directing, transferring, or 

spending “soft money” contained in BCRA § 101 violates the 

First Amendment. 

3. Whether the prohibition on state officeholders and 

candidates from soliciting, receiving, directing, transferring, or 

spending “soft money” in connection with an election for 

federal office in BCRA §101 violates the First Amendment. 

4. Whether the backup “electioneering communication” 

definition at BCRA§ 201, or its construction by the district 

court, violates the First Amendment. 

5. Whether the requirements that “disbursements” and 

“expenditures” be reported as occurring when contracted for, 

rather than when made, BCRA §§ 201 and 212, are justiciable 

and violate the First Amendment. 

6. Whether District Court injunction should extend to 

activities outside the District of Columbia. 

7. Whether BCRA § 403(b), permitting members of 

Congress to intervene, and the permitted intervention by 

Intervenor-Defendants without regard to whether they have 

Article III standing, violates the Constitution. 

i 
Parties to the Proceedings 

This jurisdictional statement is filed on behalf of the 

following Plaintiffs-Appellants represented by the James 

Madison Center for Free Speech (JMC Appellants): U.S. 

Representative Mike Pence, Alabama Attorney General Bill 

Pryor, Libertarian National Committee, Inc. (LNC), Club for 

Growth, Inc. (CFG), Indiana Family Institute, Inc. (IFI), 

National Right to Life Committee, Inc. (NRLC), National Right 

to Life Educational Trust Fund (NRL Ed Fund), and National 

Right to Life Political Action Committee (NRL PAC).1 

As to the appeal of the denial of the Madison Center 

Plaintiffs’ Motion to Alter or Amend the Judgment herein, 

Trevor M. Southerland, and Barret Austin O’Brock were also 

plaintiffs below and are appellants along with the previously 

listed JMC Appellants.2 

Plaintiffs below not represented by the Madison Center 

were U.S. Senator Mitch McConnell, former U.S. Representative Bob Bar, American Civil Liberties Union, Associated 

Builders and Contractors, Inc., Associated Builders and 

Contractors Political Action Committee, Center for Individual 

Freedom, National Right to Work Committee, 6-Plus Association, Inc., Southeastern Legal Foundation, Inc., U.S. English 

d/b/a/ ProENGLISH, Thomas McInerney. 

1

Withdrawn Plaintiffs below are Alabama Republican Executive Committee, Libertarian Party of Illinois, Inc., DuPage Political 

Action Council, Jefferson County Republican Executive Committee, 

Christian Coalition of America, Inc., and Martin Connors. 

2

The Madison Center represented these two minors, who would 

be appellees as to their successful challenge to the ban on contributions by minors to candidates or political party committees. Mr. 

Southerland will become 18 years of age on May 28, 2003. 

ii 
Defendants and Intervenor-Defendants, Appellees, 

herein, are the Federal Election Commission (FEC), Federal 

Communication Commission (FCC), John D. Ashcroft, in his 

capacity as Attorney General of the United States, the United 

States Department of Justice; and the United States of America, 

U.S. Senator John McCain, U.S. Senator Russell Feingold, U.S. 

Representative Christopher Shays, U.S. Representative Martin 

Meehan, U.S. Senator Olympia Snowe, and U.S. Senator James 

Jeffords. 

Defendants in consolidated cases: (in addition to those 

named above) David W. Mason, Ellen L. Weintraub, Danny L. 

McDonald, Bradley A. Smith, Scott E. Thomas, and Michael E. 

Toner, in their official capacities as FEC Commissioners. 

Plaintiffs in consolidated cases: 

•	 National Rifle Ass’n v. FEC, No. 02-581 — National Rifle 

Association of America (NRA) and NRA Political Victory 

Fund 

•	 Echols v. FEC, No. 02-633 — Emily Echols, Daniel Solid, 

Hannah McDow, Isaac McDow, Jessica Mitchell, and 

Zachary White. 

•	 Chamber of Commerce v. FEC, No. 02-751 — Chamber of 

Commerce of the United States, U.S. Chamber Political 

Action Committee, and National Association of Manufacturers (Plaintiff National Association of WholesalerDistributors withdrew.) 

•	 National Ass’n of Broadcasters v. FEC, No. 02-753 — 

National Association of Broadcasters 

•	 AFL-CIO v. FEC, No. 02-754 — AFL-CIO and AFL-CIO 

Committee on Political Education and Political Contributions 

iii 
•	 Paul v. FEC, No. 02-781 — U.S. Representative Ron Paul, 

Gun Owners of America, Inc., Gun Owners of America 

Political Victory Fund, Realcampaignreform.org, Citizens 

United, Citizens United Political Victory Fund, Michael 

Cloud, and Clara Howell 

•	 Republican National Committee v. FEC, No. 02-874 — 

Republican National Committee, (RNC), Robert Michael 

Duncan, former Treasurer, current General Counsel, and 

Member of the RNC, the Republican Party of Colorado, the 

Republican Party of New Mexico, the Republican Party of 

Ohio, and the Dallas County (Iowa) Republican County 

Central Committee 

•	 California Democratic Party v. FEC, No. 02-875 — 

California Democratic Party, Art Torres, Yolo County 

Democratic Central Committee, California Republican 

Party, Shawn Steel, Timothy Morgan, Barbara Alby, Santa 

Cruz County Republican Central Committee, and Douglas 

Boyd, Jr. 

•	 Adams v. FEC, No. 02-877 — Victoria Jackson Gray 

Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, 

Victoria Fitzgerald, Anurada Joshi, PeterKostmayer, Nancy 

Russell, Kate Seely-Kirk, Rose Taylor, Stephanie Wilson, 

California Public Interest Research Group (PIRG), The 

Fannie Lou Hamer Project, and Association of Community 

Organizers for Reform Now 

•	 Thompson v. FEC, No. 02881 — U.S. Representatives 

Bennie Thompson and Earl Hilliard. 

iv 
Corporate Disclosure Statement 

None of the appellants has a parent corporation and no 

publicly held company owns ten percent or more of the stock of 

any of the appellants. Rule 29.6. 

v 
Table of Contents 

Questions Presented ............................... i


Parties to the Proceeding ........................... ii


Corporate Disclosure Statement ...................... v


Table of Contents ................................ vi


Table of Authorities ............................. viii


Opinions Below .................................. 1


Jurisdiction ...................................... 1


Constitutional & Statutory Provisions ................. 1


Statement of the Case .............................. 2


The Litigation ................................. 2


The Uniqueness of JMC Appellants ............... 5


Questions Presented Are Substantial ................. 16


Raising or Using “Soft Money” By National Political


Party Committees to Promote, Support, Attack, or


Oppose Federal Candidates ..................... 16


Federal Officeholders and Candidates. ......... 18


State Officeholders and Candidates ............ 18


TheTruncated Backup ElectioneeringCommunication”


Definition ................................... 18


Disclosure Requirementson “ElectioneeringCommuni­


cations” and Independent Expenditures. ........... 22


Extent of the District Court’s Injunction .......... 223


Article III Standing of Congressional Intervenors .... 24


vi 
Conclusion ..................................... 28 

Appendix Table of Contents 

Main Appeal 

Appendix A, Notice of Appeal ..................... 1a 

Appendix B, Opinion of District Court ............... 3a 

Appendix C, U.S. Const. art. I, § 4 .................. 4a 

Appendix D, U.S. Const. amend. I .................. 5a 

Appendix E, U.S. Const. amend V .................. 6a 

Appendix F, Bipartisan Campaign Reform Act of 2002 

........................................... 7a 

Denial of Motion to Alter or Amend Judgment 

Appendix G, Notice of Appeal ..................... 69a 

Appendix H, Opinion of District Court .............. 71a 

Appendix I, Order of District Court ................. 83a 

vii 
Table of Authorities 

Cases 

Arizonans for Official English v. Arizona, 520 U.S. 43


(1977) ...................................... 25


Associated Builders & Contractors v. Perry, 16 F.3d 688


(6th Cir.1994) ................................ 27


Becker v. FEC, 230 F.3d 381 (1st Cir. 2000) ........... 26


Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .... 15


Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......... 24


Brownsburg Area Patrons Affecting Change v. Baldwin,


137 F.3d 503 (7th Cir. 1998) .................... 21


Buckley v. Valeo, 424 U.S. 1 (1976) ........ 2, 3, 16, 18-22


Building and Constr. Trades Dept., AFL-CIO v. Reich, 40


F.3d 1275 (D.C. Cir.1994) ...................... 27


California Pro-Life Council v. Getman, 2003 WL


21027288 (9th Cir. 2003) ....................... 22


Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir.


2002) ...................................... 20


Chiglo v. City of Preston, 104 F3d. 185 (1997) ......... 26


Citizens Against Rent Control/Coalition for Fair Housing 

v. Berkeley, 454 U.S. 290 (1981) ................. 16


viii

Citizens for Responsible Gov’t State PAC v. Davidson,


236 F.3d 1174 (10th Cir. 2000) .................. 20


Colorado Republican Fed. Campaign Comm. v. FEC,


518 U.S. 604 (1996) ........................... 17


Common Cause v. FEC, 108 F.3d 412 (D.C. Cir. 1997) 26-27


Diamond v. Charles, 476 U.S. 54 (1986) .............. 25


Faucher v. Fed. Election Comm’n, 928 F.2d 468 (1st


Cir.1991) ................................... 21


FEC v. Christian Action Network, 110 F.3d 1049 (4th


Cir. 1997) ................................... 21


FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ......... 21


FEC v. Massachusetts Citizens for Life, 479 U.S. 238


(1986) ................................ 13, 15, 21


FEC v. National Conservative Political Action Comm., 

470 U.S. 480 (1985) ........................... 16


FEC v. Nat’l Conservative Political Action Comm., 647


F. Supp. 987 (S.D. N.Y. 1986) ................... 23


FEC v. Pub. Citizen, Inc., 64 F. Supp. 2d 1327 (N.D. Ga.


1999) ...................................... 23


Florida Right to Life v. Lamar, 238 F.3d 1288 (11th Cir.


2001) ...................................... 21


Hoffman v. Jeffords, 175 F. Supp.2d 49 (D.D.C. 2001) ... 26


ix

Iowa Right to Life Comm. v. Williams, 187 F.3d 963 (8th


Cir. 1999) ................................... 21


Linda R.S. v. Richard D., 410 U.S. 64 (1973) .......... 25


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 25-26


Mausolf v. Babbit, 85 F.3d 1295 (8th Cir. 1996) ........ 27


National Credit Union Admin. v. First National Bank &


Trust Co., 522 U.S. 1146 (1998) ................. 25


Planned Parenthood of Mid-Missouri and Eastern Kan­


sas, Inc. v. Ehlmann, 137 F.3d 573 (8th Cir. 1998) ... 27


Raines v. Byrd, 521 U.S. 811 (1997) ................. 25


Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp.


2d 248 ( S.D. N.Y. 1998) ....................... 23


Roe v. Casey, 464 F. Supp. 486 (E.D. Pa. 1978) ........ 26


Solid Waste Agency v. U.S. Army Corps of Eng’rs, 101


F.3d 503 (7th Cir. 1996) ........................ 27


United States Postal Serv. v. Brennan, 579 F.2d 188 (2d


Cir.1978) ................................... 27


United States v. 36.96 Acres of Land, 754 F.2d 855 (7th


Cir.1985) ................................... 27


Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d


376 (2d Cir. 2000) ............................ 20


x

Virginia Soc’y for Human Life v. FEC, 263 F.3d 379 (4th


Cir. 2001) ................................ 20, 23


Warth v. Seldin, 422 U.S. 49 (1975) .................. 25


Yniguez v. State of Arizona, 939 F.2d 727 (9th Cir.1991) . 27


Constitution, Statutes, Regulations & Rules 

5 U.S.C. § 706 (2)(B) ............................. 24


5 U.S.C. § 706(2)(A) ............................. 23


BCRA § 101 ................................ i, 16-18


BCRA § 201 ........................ i, 3, 4, 14, 19, 22


BCRA § 202 .................................. 4, 19


BCRA § 203 ............................. 3, 4, 18, 19


BCRA § 204 .................................. 3, 19


BCRA § 212 ................................ i, 4, 22


BCRA § 304 ..................................... 4


BCRA § 305 ..................................... 4


BCRA § 311 .................................. 4, 19


BCRA § 316 ..................................... 4


BCRA § 318 ..................................... 4


xi

BCRA § 319 ..................................... 4 

BCRA § 403(a)(1) ........................... 1, 5, 24


BCRA § 403(b) .............................. 24, 25


BCRA § 504 ..................................... 4


Fed. R. Civ. P. 24(a)(1) ........................... 24


Federal Election Campaign Act (FECA), Pub. L. No. 92-


225, 86 Stat. 3 (1972) ............... 2, 3, 6, 7, 14, 19


I.R.C. § 501(c) .......................... 8, 10, 12, 13


I.R.C. § 527 .................................. 8, 14


Other Authorities 

U.S. Const. amend. I ............. i, 2, 16, 18, 19, 21, 24


U.S. Const. amend. X ........................ 2, 17, 18


U.S. Const. amend. XIV ........................... 2


U.S. Const. art. I, § 4 .............................. 1


U.S. Const. art. III, § 2, cl. 1 ............ i, vii, 1, 5, 24-27


xii

Opinions Below 

The district court’s opinions have not yet been reported. See 

Appendix (App.) 3a. JMC Appellants’ Notice of Appeal is 

reprinted at App. 1a-2a. Their Second Notice of Appeal is 

reprinted at App. 69a. 

Jurisdiction 

The district court issued judgment on May 1, 2003. Appeal 

is direct. BCRA § 403(a)(1). JMC Appellants noticed appeal on 

May 7, 2003. On May 19, 2003, the district court denied 

Madison Center Plaintiffs’ Motion to Alter or Amend the 

Judgment on May 19, 2003, and their Second Notice of Appeal 

as to this issue was filed on May 28, 2003. This Court has 

jurisdiction. 28 U.S.C. § 1253. 

Constitutional & Statutory Provisions 

BCRA is reprinted at App. 7a-68a. 

Article I, § 4, of the U.S. Constitution is at App. 4a. 

Article III, §2, clause 1, of the U.S. Constitution provides: 

The judicial Power shall extend to all Cases, in Law and 

Equity, arising under this Constitution, the Laws of the 

United States, and Treaties made, or which shall be 

made, under their Authority; – to all Cases affecting 

Ambassadors, other public Ministers and Consuls; – to 

all Cases of admiralty and maritime Jurisdiction; – to 

Controversies to which the United States shall be a 

Party; – to Controversies between two or more States; 

– between a State and Citizens of another State; – 

between Citizens of different States, – between Citizens 

of the same State claiming Lands under Grants of 

different States, and between a State, or the Citizens 

thereof, and foreign States, Citizens or Subjects. 

The First Amendment to the Constitution is at App. 5a. 
2 

The Fourteenth Amendment to the Constitution is at App. 

6a. 

The Tenth Amendment to the Constitution provides: 

The powers not delegated to the United States by the 

Constitution, nor prohibited by it to the States, are 

reserved to the States respectively, or to the people. 

Statement of the Case 

The Litigation 

This case involves multiple challenges to BCRA, which 

itself amends the Federal Election Campaign Act (FECA), Pub. 

L. No. 92-225, 86 Stat. 3 (1972) (codified as amended by Pub. 

L. No. 93-443, 88 Stat. 1263 (1974) at 2 U.S.C. §§ 431-455). 

FECA set limits on the amount of money that individuals, 

political parties, and political committees may contribute to 

candidates, i.e., limits on “hard money.” BCRA raises the 

contribution limits on individuals to candidates and political 

parties and the amount individuals may contribute,in aggregate, 

to all candidates, political committees, and political party 

committees. JMC Appellants do not challenge these FECA or 

BCRA “hard money” limits. 

Many of the restrictions contained in the 1974 amendments 

to the FECA were challenged in Buckley v. Valeo, 424 U.S. 1 

(1976). In Buckley, this Court recognized that contributions and 

expenditures involved the First Amendment rights of free 

speech and association. Id. at 19-23. At the same time, the 

Court recognized a compelling governmental interest in 

“prevention of corruption and the appearance of corruption” 

that would justify limits on contributions to candidates. Id. at 

25. 
3 

As a result, the Buckley Court upheld FECA’s contribution 

limits to candidates, but stuck down its limits on campaign 

expenditures. Id. at 24-59. In the course of so deciding, this 

Court carefully distinguished between funds used for “express 

advocacy” (communications which expressly advocate the 

election or defeat of a clearly identified candidate by use of 

explicit words of advocacy) and “issue advocacy” (communications on issues of public concern that do not contain express 

advocacy). Id. at 44. 

BCRA contains four titles that significantly expand the 

reach of FECA and that contain elements subject to challenge 

in this litigation. 

Title I prohibits national political party committees for 

using money raised in compliance with state law, but not in 

compliance with federal law (“soft money”), for any purpose 

and from transferring it to any other entity, including state and 

local party committees. It forbids state and local party committees from spending non-federal money for any “federal election 

activity,” which includes voter registration, voter identification, 

get-out-the-vote activity, and generic campaign activity when 

there is a federal candidate on the ballot, including advertising 

with certainreferences to federal candidates. It generallyforbids 

federal officeholders and candidates from participating in 

raising or spending any non-federal funds, for themselves or 

others for “federal election activity.” It bars state candidates 

from using non-federal funds for communications regarding 

candidates for federal office, even if those communications do 

not contain express advocacy. 

Title II of BCRA, §§ 201 and 204, forbids corporations, 

unions, and entities using monies donated by unions and 

corporations from disbursing funds for “electioneering communications” – which § 203 defines as any broadcast advertisement within 30 days of a primary and 60 days of a general 
4 

election that “refers to a clearly identified candidate for Federal 

office.” Section 203 includes a fallback definition of “electioneering communications” that includes anybroadcast advertising 

at any time that “promotes,” “supports,” “attacks,” or opposes 

a federal candidate and is “suggestive of no plausible meaning 

other than an exhortation to vote for or against a specific 

candidate.” Disclosures to the FEC are also required of all 

persons who spend $10,000 on “electioneering communications.” Sections 201 and 212 of Title II also impose disclosure 

requirements on those who enter into contracts to disburse 

funds for electioneering communication, regardless of whether 

communication occurs. Section 202 treats coordinated disbursements for electioneering communications as contributions to 

candidates. Section 213 requires political parties to choose 

whether to make independent or coordinated expenditures on 

behalf of a candidate. 

Title III of BCRA, § 318, forbids minors from contributing 

“hard money” to any federal candidate and either “hard” or 

“soft” money to a political party committee. Section 305 

conditions securing the lowest rates for broadcast advertising 

for federal candidates on certification that other candidates will 

not be referred to in the advertisement or that the advertisement 

will include a specified statement or identification. Section 311 

requires detailed identification of sponsors of express advocacy 

or “electioneering communications.” Sections 304, 316, and 

319 increase the limitations on contributions and coordinated 

expenditures for candidates who have opponents with certain 

levels of personal funds in their campaigns. 

Title V of BCRA, § 504, requires broadcasters to collect 

and disclose records of requests to buy broadcast time for 

communications “relating to any political matter of national 

importance,” regardless whether the communications are made. 
5 

After BCRA was signed into law, eleven complaints were 

filed in the United States District Court for the District of 

Columbia challenging the constitutionality of multiple provisions of BCRA. The cases were consolidated under BCRA § 

403 before a three-judge panel. Expedited discovery was 

ordered; witnesses filed written statements and were crossexamined without immediate judicial oversight. Expedited 

briefing ensued, oral argument was held on December 4 and 5, 

2002; the district court issued its Final Judgment on May 1, 

2003, upholding and striking down various provisions of 

BCRA. JMC Plaintiffs filed their Motion to Alter or Amend the 

Judgment on May 19, 2003. JMC Appellants filed their Notice 

of Appeal as to the judgment on May 7, 2003, and their Notice 

of Appeal as to the denial of Madison Center Plaintiffs’ Motion 

to Alter or Amend the Judgment on May 28, 2003. 

The Uniqueness of JMC Appellants 

This Jurisdictional Statement is filed on behalf of JMC 

Appellantswith special characteristics that render their standing 

unquestionable. They include a unique minority national 

political party, a federal officeholder and candidate, a state 

officeholder and candidate, a broad spectrum of nonprofit issue 

advocacy groups, and a political action committee. Their wide 

range assures that, on nearly all issues, a JMC Appellant has 

Article IIIstanding to challenge the particular BCRA provisions 

in question. Particular details about four of these Appellants 

highlights their uniqueness and clear standing, describing the 

conduct in which they engage that would violate BCRA. 

Libertarian National Committee (LNC) is the governing 

body of the Libertarian Party at the national level.3

 The LNC is 

3

The Libertarian National Committee is the only national 

political party committee in McConnell v. FEC, thus the only party 

with standing to challenge BCRA’smany restrictions on the conduct 
6 

a nonprofit corporation that seeks to advance the principle that 

all individuals have the right to exercise sole dominion over 

their lives and have the right to live in whatever manner they 

choose, so long as they do not forcibly interfere with the equal 

right of others to live in whatever manner they choose. 

The impact of BCRA on the Libertarian National Committee is significantly greater than on the Democratic National 

Committee (DNC) or Republican National Committee (RNC). 

The Libertarian Party is much smaller than either of the major 

parties. In size and administrative sophistication, the LNC is 

similar to a typical state affiliate of the RNC or DNC. The LNC 

does not seek, accept, or use any federal funds to conduct its 

campaigns. 

The general administrative burdens imposed by FECA are 

the same on all political parties, regardless of size, so that the 

LNC must expend a relatively higher percentage of its resources 

on compliance with FECA than the RNC or DNC – a situation 

exacerbated by BCRA. Moreover, the LNC has less relative 

expertise and sophistication, a greater likelihood that it will 

commit errors in administering the requirements of FCA, and 

will have greater administrative duties advising state affiliates 

as the result of BCRA – all to the further relative detriment of 

the LNC.Considerable administrative expenseswill be incurred 

and changes in the infrastructure of the Libertarian national and 

state parties will also be required in order to comply with 

BCRA. 

Only 10-15% of LNC funds are placed in its “soft money” 

account, a far lower percentage than for the RNC or DNC, 

which place more than half their funds in “soft money” accounts. At present, the LNC has three principle sources of nonfederal money: 1) list rental fees, 2) dues paid through state 

of national political parties. 
7 

affiliates and forwarded from the state affiliates to the LNC, and 

3) advertising in the LNC’s newspaper, the Libertarian Party® 

News, and elsewhere. Only 7 of the 51 state affiliates of the 

national Libertarian Party have registered as political committees with the FEC, subject to FECA requirements. Very little 

money received by LNC is from any corporate source (if funds 

from renting lists or advertising in the Libertarian Party®News 

are discounted) or from large individual contributions. In 2002, 

for example, only one individual contribution exceeded 

$20,000. During the past six years, no more than 4 donors to the 

LNC have exceeded this limit in any one year. 

No federal officeholder has been a candidate of the Libertarian Party, and no candidate of the Libertarian Party has ever 

won a race for federal office. Libertarian Party federal candidates know that they have only a remote chance to win federal 

office, and they use their candidacies for running 

educational/issue advocacy campaigns that concentrate on 

advancing libertarian principles. Libertarian Party federal 

candidate campaigns are also focused on fostering party growth 

and gaining and maintaining ballot access in order to assure that 

there will be an electoral forum in which federal candidates 

might advocate libertarian principles. TheLibertarianParty also 

sometimes raises issues without any express reference to any 

Libertarian Party federal candidate when major partycandidates 

are not addressing them. 

The LNC has in the past and intends in the future to engage 

in conduct that would violate BCRA. It solicits, receives, and 

uses non-federal funds to advocate issues, and, as a means to 

this end, supports Libertarian Party candidates in campaigns for 

federal and state elective office – although no Libertarian Party 

candidate has ever been elected to federal or statewide office. 

It solicits, receives, and uses non-federal funds to finance 

issue advocacy communications. It transfers non-federal funds 
8 

to state-affiliated parties that have in the past and intend in the 

future to receive such funds. It communicates with candidates 

for federal office and with federal officeholders and spends 

non-federalfundsforissue advocacycommunications regarding 

issues supported by federal candidates and federal officeholders. The LNC makes both independent and coordinated expenditures on behalf of it’s candidates for state and federal office, 

after the party’s candidates are nominated, and transfers funds 

between national, state, and local party committees. The LNC 

solicits funds for and makes donations to I.R.C. § 527 and 

I.R.C. § 501(c) organizations that make expenditures and 

disbursements in connection with federal elections. 

The Libertarian National Committee is a membership 

organization that requires the regular payment of dues from 

members to the LNC. Dues are frequently paid to state-affiliated Libertarian Parties, with a portion to be distributed to the 

Libertarian National Committee, so that those who pay dues 

may be members of both the state and national parties. Dues are 

often paid by one person on behalf of another, as a wife might 

pay for a husband, and are often paid with delays in forwarding 

them to the LNC. In these circumstances, the funds are appropriately deposited in state affiliates’ “soft money” accounts. 

Under BCRA, these funds may not be transferred to the LNC, 

so that members who paydues in such a manner must be denied 

membership in the LibertarianNational Committee. Further, the 

LNC is substantially sustained by non-federal funds dues 

transfers from state-affiliated parties to the LNC and by 

purchases of literature and other educational materials from the 

LNC by state-affiliated parties. By forbidding such non-federal 

funds transfers, BCRA thus effectively criminalizes the entire 

current structure of the Libertarian National Committee as a 

membership organization. 
9 

The LNC has in the past and intends in the future to use 

non-federal funds to finance its ballot access drives and to 

finance all of its national conventions, which are held every 

other year. Libertarian Party conventions, held in years when 

there are no federal presidential elections, are solely devoted to 

discussion and advocacy of issues; no candidates for public 

office are nominated for or selected to run as Libertarian Party 

candidates at these conventions. 

Bill Pryor is presently the Attorney General of the State of 

Alabama and, until he is confirmed as a federal judge – a 

position for which he has been nominated, but for which he has 

not been confirmed – he will be a candidate in the next election 

for the office of Alabama Attorney General or for some other 

State office in Alabama. 

As he has in the past, General Pryor intends in the future to 

make public communications that refer to clearly defined 

candidates for federal office and that promote or support 

candidates or attack or oppose a candidate for that office, 

including communications that do not expressly advocate the 

election or defeat of any federal candidate. 

General Pryor has received and intends in the future to 

receive non-federal funds contributions from the Republican 

National State Elections Committee, a division of the Republican National Committee. As a candidate (and as a candidate in 

association with or in a group of candidates for state or local 

office or of individuals holding state or local office), he has in 

the past and intends in the future to spend funds lawfully raised 

under the laws of the State of Alabama, but raised and spent in 

compliance with the limitations imposed by BCRA, for the 

purpose of: (a) making public communications that refer to a 

clearly identified candidate for federal office and that promote 

or support a candidate or attack or oppose a candidate for that 

office, including communications that do not expressly advo-
10 

cate the election or defeat of a federal candidate; (b) engaging 

in voter registration activities conducted within 120 days of a 

federal election, and (c) engaging in voter identification, getout-the-vote, and generic campaign activities conducted in 

connection with an election in which a candidate for federal 

office is on the ballot.4 

The Club for Growth, Inc. (CFG) is a nationwide ideological membership organization with approximately 5,000 

members dedicated to advancing public policies that promote 

economic growth which is tax-exempt under § 527 of the 

Internal Revenue Code. The mission of CFG is to identify for 

its members the candidates for elective office who believe in 

these ideals, to monitor their performance in elected office, and 

to help finance their elections through CFG’s connected PAC. 

CFG also helps finance strategic issue campaigns to advance its 

policy goals. In pursuit of these goals, CFG would violate 

BCRA in several ways. 

CFG regularly makes disbursements for the direct costs of 

producing and airing “electioneering communications” in 

excess of $10,000 in a calendar year that: (a) refer to clearly 

identified candidates for federal office, (b) are made within 60 

days before general, special, and runoff elections for the offices 

sought by the candidates and within 30 days before primary 

elections, and (c) are targeted to relevant electorates. CFG 

4

General Pryor is the only plaintiff in McConnell v. FEC who 

complained against provisions of BCRA that forbid state candidates 

from receiving soft money from national political parties and that 

forbid raising or using non-federal money to refer (without express 

advocacy) to federal candidates or for registration, get-out-the-vote, 

and other generic election activities. Furthermore, General Pryor is 

the only state public official subject to provisions of BCRA that 

prohibit state officialsfrom making public communications that refer 

to a clearly identified candidate for federal office. 
11 

regularly talks with candidates about their positions on the 

issues in interviews and forums. On a regular and recurring 

basis, CFG (1) consults with both incumbent and challenger 

candidates on their positions on issues, (2) does “electioneering 

communications,” and (3) publishes communications with 

information about candidates’ positions on issues. Some of 

these communications are done without any communication 

with any candidate and some are done after a communication 

with a candidate. 

CFG is presently affected by BCRA. On May 13, 2003, the 

Democratic Senatorial Campaign Committee filed a complaint 

against CFG alleging that CFG had violated BCRA by broadcasting an “electioneering communication,” under the lower 

court’s truncated backup definition that prohibits anybroadcast 

communication that “promotes or supports . . . or attacks or 

opposes” a candidate during the time that the backup definition 

was in effect. Letter from Robert F. Bauer & Marc E. Elias, 

Counsel for the Democratic Senatorial Campaign Committee 

(DSCC), to Lawrence Norton, FEC General Counsel (May 13, 

2003). 

The advertisement at issue was broadcast in South Dakota 

and told listeners to urge U.S. Senator Tom Daschle to support 

President Bush’s pending tax cut plan. The complaint on behalf 

of the DSCC alleges that the advertisement “attacks [Daschle] 

for opposing the President’s ‘tax cut plan,’” in violation of the 

truncated backup definition. This advertisement is part of a 

broader effort by CFGto gain public and Congressional support 

for the President’s tax cut plan.5 

5

CFG has been running broadcast advertisements in support of 

President Bush’s proposed tax cut, one of which has become the 

subject of the complaint by the DSCC to the FEC described. An 

advertisement was also run in Ohio depicting Ohio Senator George 
12 

National Right to Life Committee, Inc. (NRLC) is a 

501(c)(4) corporation whose purpose is to promote respect for 

the worth and dignity of all human life from conception to 

natural death. NRLC’s and its affiliated organizations’ conduct 

would violate BCRA in several ways. 

NRLC regularly makes disbursements for the direct costs of 

producing and airing “electioneering communications” in 

excess of $10,000 in a calendar year that: (a) refer to clearly 

identified candidates for federal office, (b) are made within 60 

days before general, special, and runoff elections for the offices 

sought by the candidates and within 30 days before primary 

elections, preference elections, and conventions and caucuses 

of political parties with authority to nominate candidates for the 

offices sought by the candidates, and (c) are targeted to relevant 

electorates. 

Voinovich, during the 18 days that the truncated backup definition 

was in effect, and has the following text: 

President Kennedy cut income taxes and the economy 

soared.


President Reagan cut taxes more, and created fifteen million


new jobs.


President Bush knows tax cuts create jobs, and that helps


balance the budget.


But Senator George Voinovich opposes the president.


Ohio has lost thousands of jobs, and president Bush has a


plan to help.


Tell George Voinovich to support the Kennedy, Reagan,


Bush tax policy that will bring jobs back to Ohio.


Senator Voinovich is a candidate for federal office. While CFG 

believes that its advertisement is “neutral” and lawful, it depicts a 

federal candidate and could be considered by someone (as happened 

with the DSCC complaint to the FEC regarding the South Dakota 

ad), as not “neutral” under the truncated backup definitionof BCRA. 
13 

On a regular and recurring basis, NRLC: (a) lobbies 

candidate legislators on legislation, (b) consults with both 

incumbent and challenger candidates on their positions on 

issues, (c) engages in “electioneering communications,” and (d) 

publishes printed communications, including voter guides. 

These communications are done both with and without communications with candidates. 

At present, NRLC is in the midst of Congressional legislative battles to ban human cloning, pass the Unborn Victims of 

Violence Act, and pursue other legislative interests. As part of 

these campaigns, NRLC plans to run broadcast advertisements 

in the Congressional districts of key members of Congress, 

naming the members of Congress, many or all of whom are 

candidates (i.e., have transacted $5,000 in “contributions” or 

“expenditures”), and could be viewed as attacking/opposing 

their positions on these legislative issues. The ads will be paid 

for with general corporate funds and will be similar to the AFLCIO advertisement, “No Two Way,” that Judge Leon found 

“not neutral”and thus contrary to BCRA because “it attacks [the 

candidate’s] position on the federal budget.” Leon Memorandum Opinion at 92. 

National Right to Life Educational Trust Fund (NRL Ed 

Fund) is an internal § 501(c)(3) fund of NRLC. It qualifies as an 

“MCFL-type” organization under FEC v. Massachusetts 

Citizens for Life, 479 U.S. 238 (1986). NRL Ed Fund has spent, 

and intends to do so again, more than $10,000 in a calendar year 

on broadcast communications that mention no candidate but 

advocate for or against issues that are hotly contested in 

contemporaneous political campaigns on which candidates 

running in the same geographic area have taken a position. 

Under the vague alternative definition of “electioneering 

communication,” which examines whether a “communication 

. . . promotes or supports” or “attacks or opposes a candidate,” 
14 

§ 201(a), it is unclear whether such conduct would be considered an “electioneering communication.” 

National Right to Life Political Action Committee (NRL 

PAC) is a connected § 527 fund of NRLC that is registered with 

the FEC as a political action committee subject to the FECA. 

NRL PAC regularly makes contracts for independent expenditure communications in federal elections days, weeks, and 

months in advance of the time the actual independent expenditures are made. NRLPAC has suffered harassment and interference with contractual relationships as a result of federal 

candidates learning about arrangementswith broadcasters to air 

independent expenditure in opposition to these candidates.NRL 

PAC intends to continue making independent expenditures, but 

its freedom of expression is burdened by the necessity of 

reporting them when contracts are made instead of when the 

independent expenditure is made.6 

Mike Pence is the U. S. Representative from the Second 

Congressional District of the State of Indiana, first elected in 

2000.He is an Assistant Majority Whip, Chairman of the Small 

Business Subcommittee on Regulatory Reform and Oversight, 

and serves on the Judiciary and Agriculture Committees. 

Representative Pence has raised, assisted to raise, and wishes to 

continue to raise and to assist in raising funds for Appellant 

Indiana Family Institute, Inc. (IFI), and he has communicated 

and wishes to continue to communicate with IFI with regard to 

raising and assisting in raising funds for IFI – conduct that 

would violate BCRA.7 

6

NRL PAC is the only Plaintiff in McConnell v. FEC that makes 

independent expenditures subject to BCRA. 

7

U.S. Representative Mike Pence is the only plaintiff in 

McConnell v. FEC to challenge provisions of FECthat forbid federal 
15 

Indiana Family Institute, Inc. (IFI), is an Indiana nonprofit corporation that qualifies as an “MCFL-type” organization under FEC v. Massachusetts Citizens for Life, 479 U.S. 

238 (1986), and it qualifies as an “expressive association” as 

described in Boy Scouts of America v. Dale, 530 U.S. 640 

(2000). IFI is dedicated to encouraging and invigorating Indiana 

families by offering them time-proven solutions to problems 

which harm the family, the church, and society. Over 10,000 

Indiana residents receive IFI publications and many hear IFI 

radio programs and commentaries throughout the State of 

Indiana. 

IFI has made and intends to make disbursements for the 

direct costs of producing and airing “electioneeringcommunications” in excess of $10,000 that: (a) refer to clearly identified 

candidates for federal office, (b) are made within 60 days before 

general, special, and runoff elections for the offices sought by 

the candidates and within 30 days before primary elections, 

preference elections, and conventions and caucuses of political 

parties with authority to nominate candidates for the offices 

sought by the candidates, and (c) are targeted to relevant 

electorates. IFI also: (a) lobbies candidate legislators on 

legislation, (b) consults with both incumbent and challenger 

candidates on their positions on issues, (c) engages in “electioneering communications,” and (d) publishes printed materials, including voter guides. Some of these communications are 

done: (a) without any communication with any candidate, (b) 

after communication with a candidate, and (c) done with the 

agreement and/or formal collaboration of a candidate. 

Appellant U.S. Representative Mike Pence has raised and 

intends to continue to raise and to assist in raising funds for IFI; 

candidates from raising funds for entities involved in federal election 

activities, as defined by BCRA. 
16 

IFI has communicated and will continue to communicate with 

Representative Pence with regard to raising and assisting in 

raising funds for IFI.8 

Questions Presented Are Substantial 

Raising or Using “Soft Money” By National Political Party 

Committees to Promote, Support, Attack, or Oppose Federal Candidates 

While the district court held unconstitutional most of the 

soft money provisions of BCRA (§ 101), it upheld its prohibitions on “soft money” solicited, received, redirected, or used by 

national, state, or local political committees that “promotes or 

supports . . . or attacks or opposes” a federal candidate. 

Section 101 violates the First Amendment. It restricts the 

freedom of speech and association in a manner that exceeds the 

contribution and expenditure limitations at issue in Buckley. It 

directly restricts speech, and it restricts the right of national 

political party committees to associate with officeholders, 

candidates, other party committees, and other organizations. As 

such, it should properly be subjected to strict judicial scrutiny. 

Citizens Against Rent Control/Coalition for Fair Housing v. 

Berkeley, 454 U.S. 290, 299 (1981). 

Under this standard of review, § 101 cannot survive 

scrutiny. The only interest that this Court has recognized to 

justify restrictions in the context of campaign finance is in 

reducing apparent or actual corruption. FEC v. National 

Conservative Political Action Comm., 470 U.S. 480, 496-97 

(1985). Special restrictions on political party committees cannot 

8

IFI is the only Plaintiff in McConnell v. FEC to complain 

against provisions of BCRA that forbid federal candidates from 

raising non-federal money for entities engaged in federal election 

activities. 
17 

be justified since there are no “special dangers” of corruption 

associated with political parties.” Colorado Republican Fed. 

Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996). Moreover, use of campaign funds bear only an “attenuated” relationship to corruption unless there the funds are used “exclusively” 

to elect a candidate. Id. In any event, § 101 is not narrowly 

drawn. Even if there is a constitutionally cognizable compelling 

interest served by § 101, Congress might simply have restricted 

the amount of non-federal money raised rather than entirely 

banning its use. 

Insofar as BCRA purports to regulate state election activities, the also violates the Tenth Amendment by subsuming 

powers reserved to the States. BCRA unconstitutionally 

interferes with state election activities if they even indirectly 

and remotely can be said to impact on federal elections in a 

manner that cannot be reconciled with our federal system. 

Further, by unjustifiably discriminating against political 

parties, § 101 violates the equal protection component of the 

Fifth Amendment. Political party committees are entirely 

forbidden from using or raising non-federal money for any 

number of purposes – including specifically for communications to promote, attack, support, or oppose federal candidates. 

But all other citizens’ groups are permitted to continue to raise 

and use nonfederal money for these purposes. This makes no 

constitutional sense when political parties have already been 

deemed to pose no “special dangers.” Colorado Republican 

Federal Campaign Committee v. FEC, 518 U.S. 604, 616 

(1996). 

Finally, the terms used by § 101 to restrict freedom of 

speech – forbidding a communication that “promotes or 

supports . . . or attacks or opposes” a federal candidate – are 

unconstitutionally vague. 
18 

Federal Officeholders and Candidates. The district court 

also upheld BCRA § 101 insofar as it forbids federal officeholders and candidates from soliciting, receiving, directing, 

transferring, or spending “soft money.” Like the direct restrictions on free speech of § 101, this prohibition violates the First 

Amendment. It restricts the freedom speech and association in 

a manner that exceeds the contribution and expenditure 

limitations at issue in Buckley v. Valeo. It directly restricts 

speech by banning solicitation of funds. As an absolute ban, it 

is not narrowly drawn, as a restriction on amount might be. 

State Officeholders and Candidates. Similarly, the district 

court upheld BCRA § 101 insofar as it forbids state officeholders and candidates from soliciting,receiving, directing, transferring, or spending “soft money” in connection with an election 

for federal office. This prohibition violates the First Amendment in the same manner as restrictions on federal candidates/officeholders. Moreover, it proceeds beyond the legitimates scope of the federal constitution reflected by the Tenth 

Amendment to the U.S. Constitution by purporting to regulate 

the conduct of state political candidates and officeholders. 

The Truncated Backup Electioneering Communication” 

Definition 

The district court also upheld the “backup” definition of 

“electioneering communications” of BCRA § 203, which, as 

construed by the lower court, reaches any broadcast reference 

to any candidate for federal office at any time “that is not 

neutral as to [the] candidate.” Leon, J., Mem. Op. 92. The court 

also largely upheld the “electioneering communications” 

provisions of BCRA involving disclosure of electioneering 

communications (§§ 201 and 311), coordinated electioneering 

communications as contributions (§ 202), and the ban on 

electioneering communications by corporations and unions 

(§§ 203 and 204). 
19 

The definition of “electioneering communications” violates 

the First Amendment under this Court’s decisions in Buckley 

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

(1986) (MCFL). In light of serious constitutional overbreadth 

considerations, this Court in Buckley narrowly construed 

provisions in the FECA restricting expenditures “relative to a 

clearly identified candidate” and requiring disclosures for the 

purpose of “influencing” federal elections to embrace only 

“communications that in express terms advocate the election or 

defeat of a clearly identified candidate for federal office.” 424 

U.S. at 44 and n. 52. “Express terms” were defined to include 

“communications containing express words of advocacy of 

election of defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast 

your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ 

‘reject.’” Id. at 80. See also MCFL, 479 U.S. at 248-49. 

The plain language of neither of § 203’s definitions of 

“electioneering communications” can be reconciled with 

Buckley. Both embrace communications that go beyond 

“express advocacy” to include “issue advocacy.” Judge Leon’s 

attempted saving construction of the backup definition of §203 

to any communication “that is not neutral as to [the] candidate” 

generates the same conflict with Buckley: A communication 

that is “not neutral” about a candidate still does not necessarily 

in “express terms advocate the election or defeat of a clearly 

identified candidate.” 

Moreover, the truncated backup “electioneeringcommunication” definition is unconstitutionally vague. The terms it 

employs – “promotes,” “supports,” “attacks,” and “opposes” – 

are all open to interpretation with regard to any specific 

advertisement. 

The Circuit Courts of Appeal that have considered cases 

involving the express advocacy test’s protection for issue 

advocacy do not agree with the district court below as to the 
20 

constitutionalityof tests abandoning this Court’s own formulation of the express advocacy test. These courts have uniformly 

recognized that this Court’s holdings in Buckley and MCFL are 

binding and require the bright-line test of explicit words 

expressly advocating the election or defeat of a clearly identified candidate for federal office. Thus, there is a conflict 

between these circuits and the three-judge panel below. 

“These courts rely primarily on Buckley’s emphasis on (1) 

the need for a bright-line rule demarcating the government’s 

authority to regulate speech and (2) the need to ensure that 

regulation does not impinge on protected issue advocacy.” 

Chamber of Commerce v. Moore, 288 F.3d 187, 193 (5th Cir. 

2002). See, e.g. Virginia Soc’y for Human Life v. FEC, 263 

F.3d 379, 391-92 (4th Cir. 2001) (VSHL) (a regulation that 

“shifts the focus of the express advocacy determination away 

from the words themselves to the overall impressions of the 

hypothetical, reasonable listener or viewer . . . is precisely what 

Buckley warned against and prohibited”); CitizensforResponsible Gov’t State PAC v. Davidson, 236 F.3d 1174, 1187, 1193-

95 (10th Cir. 2000) (Statutes unconstitutional where they could 

not be narrowly construed to apply “only to expenditures for 

communications that contain explicit words advocating the 

election or defeat of a clearly identified candidate.”); Vermont 

Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 386 (2d Cir. 

2000) (finding all the parties “in essential agreement that the 

disclosure provisions . . . and reporting provisions . . . are 

necessarily unconstitutional unless they applyonly to [communications] ‘that expressly advocate the election or defeat of a 

clearly identified candidate.’” (emphasis added) (quoting 

Buckley, 424 U.S. at 80)); Florida Right to Life v. Lamar, 238 

F.3d 1288 (11th Cir. 2001); Iowa Right to Life Comm. v. 

Williams, 187 F.3d 963, 969-70 (8th Cir. 1999) ( To be 

regulable, “the communication must contain express language 

of advocacy with an exhortation to elect or defeat a candidate,” 
21 

and “[t]he Supreme Court has made clear that a ‘finding of 

“express advocacy”depend[s] upon the use of language such as 

‘vote for,’ ‘elect,’ ‘support,’ etc.” (quoting MCFL, 479 U.S. at 

249 (quoting Buckley, 424 U.S. at 44, n. 52)); Brownsburg Area 

Patrons Affecting Change v. Baldwin, 137 F.3d 503, 506 (7th 

Cir. 1998) (The Court [in Buckley] recognized the important 

First Amendment interest in protecting political speech, 

including discussions surrounding elections and candidates. . . 

. Because of the vital importance of protecting such speech, the 

Buckley Court articulated what has come to be known as the 

‘express advocacy’ test . . . .”); Faucher v. Fed. Election 

Comm’n, 928 F.2d 468, 470 (1st Cir.1991) (“The Supreme 

Court, recognizing that such broad language . . . creates the 

potential for first amendment violations, sought to avoid future 

conflict by explicitly limiting the statute’s prohibition to 

“express advocacy.”). 

Even the Ninth Circuit in FEC v. Furgatch, 807 F.2d 857 

(9th Cir. 1987), recognized the binding nature of the express 

advocacy test, although in dicta it discussed the test in ways that 

seemed broader than the Supreme Court’s articulation of the 

test.9 However, the 9th Circuit has now affirmed that it fully 

embraces the Buckley formulation, by declaring that “a close 

reading of Furgatch indicates that we presumed express 

advocacy must contain some explicit words of advocacy.” 

California Pro-Life Council v. Getman, 2003 WL 21027288 at 

*7 (9th Cir. 2003) (emphasis in original). This ruling eliminates 

9

Cf. FEC v. Christian Action Network, 110 F.3d 1049, 1054 (4th 

Cir. 1997) (CAN II) (Furgatch contains broad dicta, but the Fourth 

Circuit summarized the narrower holding of Furgatch as: “where 

political communications . . . include an explicit directive to voters 

to take some [unclear] course of action, . . . ‘context’ . . . may be 

considered in determining whether the action urged is the election or 

defeat of a . . . candidate . . . .”). 
22 

any arguable federal circuit court support for a contextual 

approach, which is contained in BCRA’s alternate definitions 

of “electioneering communication.” 

Disclosure Requirements on “Electioneering Communications” and Independent Expenditures 

The district court held BCRA § 212 (disclosure of independent expenditures) nonjusticiable and largely upheld § 201 

(disclosure of “electioneering communications”). Both provisions require reporting to the FEC of “disbursements” and 

“expenditures” when contracted for rather than when they are 

made – and regardless whether the service contracted for is ever 

provided and, in fact, the independent expenditure or electioneering communication is actually communicated. They are thus 

significantlydifferent than the reporting requirements this Court 

upheld in Buckley, 424 U.S. at 76-82, which required only 

disclosure of communications actually made. 

Further, the disclosure provisions are not narrowly drawn to 

serve any compelling governmental interest. Though the 

government may have an interest in assuring that the electorate 

is informed of the source of expenditures made on behalf of 

candidates, there no such interest at stake unless these expenditures are, in fact, made. In the absence of an actual communication, there is no expenditure made on behalf of a candidate. 

Moreover, prior disclosure requirements would often result in 

prior notice to political opponents of political and media 

strategies, thereby chilling and effectively penalizing free 

speech. The prospect of chilled free speech or harassment of 

those with whom entities contract, for example, for media 

services, renders these provisions justiciable even in the 

absence of immediate harm. 
23 

Extent of the District Court’s Injunction 

JMC Appellants filed Madison Center Plaintiffs’ Motion to 

Alter or Amend the Judgment in the district court, which was 

denied on May 19, 2003. See App. 87a. JMC Appellants appeal 

denial of that Order insofar as it denied JMC Appellants’ 

request to explicitly extend the district court’s injunction 

against the Defendants by ordering that the Defendants be 

enjoined from enforcing any unconstitutional BCRA provision 

against the Plaintiffs anywhere in the United States. 

It is the policy of the FEC and the position that they have 

adopted in other similar cases that FEC rules and regulations 

that have been struck down in one jurisdiction will nevertheless 

be enforced by the FEC in other jurisdictions.10 See VSHL, 263 

F.3d 379, 382 (4th Cir. 2001); Right to Life of DutchessCounty, 

Inc. v. FEC, 6 F. Supp. 2d 248, 252-53 ( S.D. N.Y. 1998). 

Under this policy, the district court’s judgment would bind the 

FEC only in the District of Columbia, leaving the FEC free to 

enforce enjoined BCRA provisions in other jurisdictions. 

The FEC policy and the VSHL holding are in error. Under 

5 U.S.C. § 706(2)(A), agency action can be entirely set aside if 

it is “not in accord with the law,” including agency action found 

“contrary to constitutional right.” 5 U.S.C. § 706 (2)(B). This 

justifies injunctive relief beyond the scope of any particular 

jurisdiction, especially when First Amendment rights are at 

issue and the “very existence [of a statute] may cause others not 

before the court to refrain from constitutionally protected 

10Similarly, the “FEC has in the past prosecuted groups in the 

judicial districts where they distributed advertising materials, as 

opposed to the states where they are chartered or headquartered.” 

VSHL, 263 F.3d at 389 (citing FEC v. Pub. Citizen, Inc., 64 F. Supp. 

2d 1327 (N.D.Ga. 1999); FEC v. Nat’l Conservative Political Action 

Comm., 647 F. Supp. 987 (S.D. N.Y. 1986)). 
24 

speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 

612 (1973). 

In view of FEC policy, the state of the law, and the silence 

of the district court on the geographical scope of its injunction, 

JMC Appellants have every reason to believe that the FEC 

would, consistent with its policy, enforce provisions of BCRA 

outside the District ofColumbia absent a nationwide injunction. 

As an Act of Congress, BCRA applies nationwide, so any 

of its provisions held unconstitutional should be also enjoined 

nationwide. In addition, BCRA § 403(1) provides that suit for 

declaratory and injunctive relief may only be brought in the 

United States District Court for the District of Columbia. Thus, 

there can be no protection from other courts from the FEC’s 

enforcement actions in jurisdictions beyond the District of 

Columbia. JMC Appellants therefore request this Court to 

reverse the decision of the district court denying their Motion 

to Alter or Amend and to direct the district court on remand to 

enjoin the FEC from enforcing any BCRA provision held 

unconstitutional anywhere in the United States. 

Article III Standing of Congressional Intervenors 

Senator John McCain, Sen. Russell Feingold, Rep. Christopher Shays, Rep. Martin Meehan, Sen. Olympia Snowe, and 

Sen. James Jeffords (Intervenors) intervened under Fed. R. Civ. 

P. 24(a)(1), invoking BCRA § 403(b) (“any member of the 

House of Representatives . . . or Senate shall have the right to 

intervene either in support or opposition to the position of a 

party to the case regarding the constitutionality of the provision 

or amendment”). 

Applying BCRA § 403 does not, however, answer the 

separate question of whether all intervenors must have Article 

III standing, a matter this Court has not addressed. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1977) 
25 

(expressing “grave doubts whether the [initiative sponsors] 

have standing under Article III to pursue appellate review”); 

Diamond v. Charles, 476 U.S. 54, 68-69 and n.21 (1986) (an 

intervenor may not appeal, or continue a suit, without the party 

on whose side intervention was permitted, unless intervenor has 

Article III standing). 

Intervenors must satisfy both constitutional and prudential 

requirements for standing. See, e.g., National Credit Union 

Admin. v. First National Bank & Trust Co., 522 U.S. 1146 

(1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992). Section 403(b), by permitting members of Congress to 

intervene, removes any prudential standing concerns. Raines v. 

Byrd, 521 U.S. 811, 820 n. 3 (1997) (“Congress’s decision to 

grant a particular plaintiff the right to challenge an act’s 

constitutionality . . . eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with 

the Legislative Branch when the plaintiff brings suit.”). However, “Congress cannot erase Article III’sstanding requirements 

by statutorily granting the right to sue a plaintiff who would not 

otherwise have standing.” Id. at 820 n. 3. This Court has long 

held that Congressional power to create standing is, at least in 

theory, subject to the limitations of Article III. See, e.g., Warth 

v. Seldin, 422 U.S. 49 (1975); Linda R.S. v. Richard D., 410 

U.S. 64 (1973). Thus, Article III’s injury in fact requirement 

functions as a limit on Congress’ power to confer standing. See 

Lujan, 504 U.S. at 580-81 (Kennedy, J., concurring); Common 

Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997). 

Intervenors do not satisfy Article III standing requirements. 

First, they do not satisfy the requirement that suffer an “injury 

in fact” consisting of an “invasion of a legally protected interest 

which is (a) concrete and particularized . . .and (b) actual or 

imminent.” Lujan, 504 U.S. 560 (internal quotations and 

citations omitted). A generalized, abstract interest as members 
26 

of a regulated class of legislators or as citizens participating in 

the political process is insufficiently concrete and particularized 

to grant them Article III standing. 

Voters’ “concern for the corruption of the political process 

is not only widely shared, but is also an abstract and indefinite 

nature, comparable to the common concern for obedience of the 

law.” Becker v. FEC, 230 F.3d 381, 390 (1st Cir. 2000). See 

also Chiglo v. City of Preston, 104 F3d. 185, 187 (1997); 

Hoffman v. Jeffords, 175 F. Supp.2d 49, 55 (D.D.C. 2001). 

Likewise, this Court has held that individual members of 

Congress lacked standing to challenge the constitutionality of 

legislation, although the federal Line Item Veto Act provided 

that any member might bring suit, because the members had 

alleged no cognizable injuries to themselves, and their claimed 

institutional injury was widely dispersed and abstract. Raines, 

521 U.S. at 829. See also, e.g., Roe v. Casey, 464 F. Supp. 486, 

48 (E.D. Pa. 1978), aff’d, 623 F.2d 829 (3d Cir. 1980) (in 

constitutional challenge to statute, a legislator as member of 

Assembly and co-sponsor had no legally protectable interest). 

Second, the Intervenors lack Article III standing because 

there is no causal connection between their “injury”and the 

conduct complained of. Lujan, 504 U.S. at 560-61. Any injury 

suffered by a holding that BCRA is unconstitutional would 

simply mean that the Intervener would have to continue to 

campaign in the absence of BCRA and within the established, 

relatively unregulated, system of election finance control. 

However, “[i]n those cases where a plaintiff’s asserted injury 

arises from the government’s allegedly unlawful regulation (or 

lack of regulation) of someone else, it is substantially more 

difficult to establish injuryin fact, for in such cases one or more 

of the essential elements of standing depends on the unfettered 

choices made by independent actors not before the courts and 

whose exercise of broad and legitimate discretion the courts 
27 

cannot presume either to control or to predict.” Common Cause 

v. FEC, 108 F.3d 412, 417 (D.C. Cir. 1997) (quotations and 

citations omitted) (emphasis added). 

Thus, whether the Intervenors lack Article III standing is in 

itself a plainly substantial question that warrants review by this 

Court. 

Moreover, there is a conflict of circuits with regard to this 

matter that this Court ought properly to resolve. Several circuit 

courts require that interveners must have Article III standing. 

Planned Parenthood of Mid-Missouri and Eastern Kansas, Inc. 

v. Ehlmann, 137 F.3d 573, 576-77 (8th Cir. 1998); Solid Waste 

Agency v. U.S. Army Corps of Eng’rs, 101 F.3d 503, 507 (7th 

Cir. 1996); Mausolf v. Babbit, 85 F.3d 1295, 1300 (8th Cir. 

1996); Building and Constr. Trades Dept., AFL-CIO v. Reich, 

40 F.3d 1275, 1282 (D.C. Cir.1994). One circuit has stated that 

intervention under Rule 24 requires more of an interest than that 

required by Article III analysis. United States v. 36.96 Acres of 

Land, 754 F.2d 855, 859 (7th Cir.1985). But at least three other 

circuits do not require Article III standing for intervention. 

United States Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d 

Cir.1978); Associated Builders & Contractors v. Perry, 16 F.3d 

688, 690 (6th Cir.1994); Yniguez v. State of Arizona, 939 F.2d 

727, 731 (9th Cir.1991). 
28 

Conclusion 

For the foregoing reasons, the Court should note probable 

jurisdiction. 

Respectfully submitted,


/s/ James Bopp, Jr.


James Bopp, Jr., Counsel of Record


Richard E. Coleson


Thomas J. Marzen


JAMES MADISON CENTER FOR FREE SPEECH


BOPP, COLESON & BOSTROM


1 South 6th Street


Terre Haute, IN 47807-3510


812/232-2434 (fax: 812/235-3685)


Counsel for JMC Appellants 
Appendix Table of Contents 

Main Appeal 

Appendix A, Notice of Appeal ..................... 1a 

Appendix B, Opinion of District Court ............... 3a 

Appendix C, U.S. Const. art. I, § 4 .................. 4a 

Appendix D, U.S. Const. amend. I .................. 5a 

Appendix E, U.S. Const. amend V .................. 6a 

Appendix F, Bipartisan Campaign Reform Act of 2002 

........................................... 7a 

Denial of Motion to Alter or Amend Judgment 

Appendix G, Notice of Appeal ..................... 69a 

Appendix H, Opinion of District Court .............. 71a 

Appendix I, Order of District Court ................. 83a