Nos. 06-969 and 06-970 

IN THE

Supreme Court of the United States 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 Appeals from the United States 

District Court for the District of Columbia 

BRIEF OF AMICI CURIAE

THE CENTER FOR COMPETITIVE POLITICS, 

THE INSTITUTE FOR JUSTICE, REASON FOUNDATION, 

THE INDIVIDUAL RIGHTS FOUNDATION, 

AND THE CATO INSTITUTE, 

IN SUPPORT OF APPELLEES 

 

ERIK S. JAFFE

 Counsel of Record

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

Counsel for Amici Curiae 

March 23, 2007
TABLE OF CONTENTS 

Pages 

TABLE OF CONTENTS......................................................... i 

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

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

SUMMARY OF ARGUMENT.............................................. 3 

ARGUMENT.......................................................................... 4 

I. CAMPAIGN-FINANCE JURISPRUDENCE HAS 

STRAYED FAR FROM FUNDAMENTAL FIRST 

AMENDMENT AND DEMOCRATIC PRINCIPLES. ............... 4 

II. GRASS-ROOTS LOBBYING IS CORE POLITICAL 

SPEECH, ASSEMBLY, AND PETITIONING ACTIVITY....... 11 

III. BCRA’S BURDEN ON GRASS-ROOTS LOBBYING IS 

SEVERE AND FAR-REACHING....................................... 13 

A. BCRA Places Substantial Restrictions on 

Legitimate Grass-Roots Lobbying. ................... 14 

B. Alternative Avenues of Communication are 

Inappropriate, Inadequate, and Short-Lived 

Justifications for Restricting Core Political 

Speech. .............................................................. 17 

IV. THE GOVERNMENT INTEREST IN SUPPRESSING 

GRASS-ROOTS LOBBYING IS ATTENUATED AND 

NOT COMPELLING. ...................................................... 22 

A. Corruption and Its Appearance Are Distant 

Concerns and “Circumvention” Is a NeverEnding Excuse for More Regulation................. 22 

B. There Is No Risk of Actual Corruption or 

Even “Undue” Influence. .................................. 25 
ii 

C. Avoiding the Mere Appearance of 

Corruption Is Not a Compelling Interest and 

Is Not Advanced by Restricting GrassRoots Lobbying. ................................................ 29 

CONCLUSION..................................................................... 30 
iii 

TABLE OF AUTHORITIES 

Pages 

Cases

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

Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220 

(1949)................................................................................ 12 

FEC v. Beaumont, 539 U.S. 146 (2003)........................... 9, 10 

Gonzalez v. Raich, 545 U.S. 1 (2005) .................................. 12 

Hurley v. Irish-American Gay, Lesbian and Bisexual 

Group of Boston, 515 U.S. 557 (1995)............................. 28 

McConnell v. FEC, 540 U.S. 93 (2003) ........................... 6, 10 

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) .................. 4 

Munn v. Illinois, 94 U.S. 113 (1877).................................... 12 

Riley v. National Fed’n of the Blind, 487 U.S. 781 

(1988)................................................................................ 18 

Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 

(1994)................................................................................ 18 

United States v. Carolene Products Co., 304 U.S. 144 

(1938)................................................................................ 13 

United States v. O’Brien, 391 U.S. 367 (1968) .................... 13 

Van Orden v. Perry, 545 U.S. 677 (2005)............................ 24 

Statutes

2 U.S.C. § 434(f)(3)(2) ......................................................... 16 

Other Authorities

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

Restrictions in Unbounded Broadcast Media 

Markets: McConnell v. FEC’s Underinclusive 

Overbreadth Analysis, -- STAN. L. & POLICY REV. 

101 (forthcoming 2007).................................................... 15 
iv 

Dorie E. Apollonio & Margaret A. Carne, Interest 

Groups and the Power of Magic Words, 4 ELEC.

L.J. 178 (2005).................................................................. 10 

Erik S. Jaffe, McConnell v. FEC: Rationing Speech to 

Prevent “Undue” Influence, 2003-2004 CATO 

SUPREME COURT REVIEW 245 (2004)........................... 6, 23 

Federalist No. 10, THE FEDERALIST PAPERS (Rossiter 

& Kesler eds. 1999) ...................................................... 5, 24 

Ilya Somin, Political Ignorance and the 

Countermajoritarian Difficulty: A New Perspective 

on the Central Obsession of Constitutional Theory, 

89 IOWA L. REV. 1287 (2004)........................................... 17 

Michael Delli Carpini & Scott Keeter, WHAT 

AMERICANS KNOW ABOUT POLITICS AND WHY IT 

MATTERS (1996) ............................................................... 17 

Nathaniel Persily and Kelli Lammi, Campaign 

Finance After McCain-Feingold: Perceptions of 

Corruption and Campaign Finance: When Public 

Opinion Determines Constitutional Law, 153 U.

PA. L. REV. 119 (2004) ..................................................... 30 

Stephen Ansolabehere & James M. Snyder, Jr., Why Is 

there so Little Money in U.S. Politics, 17 J. ECON.

PERSPECTIVES 105 (2003)................................................. 22 

Stephen E. Bennett & Linda Bennett, Out of Sight Out 

of Mind: Americans Limited Knowledge of Party 

Control of the House of Representatives 1960-84, 

35 POL. RES. Q. 67 (1992) ................................................ 17 
INTEREST OF AMICI CURIAE1

The Center for Competitive Politics is a non-profit 

501(c)(3) organization founded in August, 2005, by Bradley 

Smith, former Chairman of the Federal Election Commission, 

and Stephen Hoersting, a campaign finance attorney and former General Counsel to the National Republican Senatorial 

Committee. Over the last decade, well over $100 million has 

been spent to produce ideological studies promoting campaign finance regulation. Those studies have gone largely 

unchallenged, and dominated the policy debate. CCP is concerned that a politicized research agenda has hampered both 

the public and judicial understanding of the actual effects of 

campaign finance laws on political competition, equality, and 

corruption. CCP’s mission, through legal briefs, academically rigorous studies, historical and constitutional analysis, 

and media communication, is to educate the public on the actual effects of money in politics, and the results of a more free 

and competitive electoral process. 

The Institute for Justice (“IJ”) was founded in 1991 and is 

our nation’s only libertarian public interest law firm. It is 

committed to defending the essential foundations of a free 

society through securing greater protection for individual liberty and restoring constitutional limits on the power of government. IJ seeks a rule of law under which individuals can 

control their destinies as free and responsible members of society. IJ works to advance its mission through both the courts 

and the mainstream media, forging greater public appreciation 

for economic liberty, private property rights, school choice, 

free speech, and individual initiative and responsibility versus 

government mandate. This case involves just such a funda-

 1

 This brief is filed with the written consent of all parties. No counsel for 

a party authored this brief in whole or in part, nor did any person or entity, 

other than Amici or their counsel, make a monetary contribution to the 

preparation or submission of this brief. 
2 

mental clash between freedom of speech, assembly, and petitioning on the one hand and repressive government mandates 

on the other, and thus touches the very core of IJ’s mission 

and ideals. 

Reason Foundation is a nonpartisan and nonprofit 

501(c)(3) organization, founded in 1978. Reason’s mission is 

to promote liberty by developing, applying, and communicating libertarian principles and policies, including free markets, 

individual liberty, and the rule of law. Reason advances its 

mission by publishing Reason Magazine, as well as commentary on its website, reason.com, and by issuing policy research reports, which are available at reason.org. Reason also 

communicates through books and articles in newspapers and 

journals, and appearances at conferences and on radio and 

television. Reason’s personnel consult with public officials 

on the national, state, and local level on public policy issues. 

Reason selectively participates as amicus curiae in cases raising significant constitutional issues. This case involves a serious threat to freedom of speech, assembly, and petitioning, 

and contravenes Reason’s avowed purpose to advance “Free 

Minds and Free Markets.” 

The Individual Rights Foundation (“IRF”) was founded in 

1993. It is the legal arm of the David Horowitz Freedom 

Center (“DHFC”), a nonprofit 501(c)(3) organization (formerly known as the Center for the Study of Popular Culture). 

The mission of DHFC is to promote the core principles of 

free societies – and to defend America’s free society – 

through educating the public to preserve traditional constitutional values of individual freedom, the rule of law, private 

property and limited government. In support of this mission, 

the IRF litigates cases and participates as amicus curiae in 

appellate cases, such as the case at bar, that raise significant 

First Amendment speech and associational issues. 

The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing 

the principles of individual liberty, free markets, and limited 
3 

government. Cato’s Center for Constitutional Studies was 

established in 1989 to help restore the principles of limited 

constitutional government and to secure those rights, both 

enumerated and unenumerated, that are the foundation of individual liberty. Toward those ends the Institute and the Center undertake a wide variety of publications and programs. 

The instant case is of central interest to Cato and the Center 

because it addresses the further collapse of constitutional protections for political activity – including speech, assembly, 

and petitioning – relating to governmental policies and conduct, which lies at the very heart of the First Amendment. 

SUMMARY OF ARGUMENT 

1. The right to self-government at the heart of the First 

Amendment and our constitutional democracy assumes the 

full and free discussion of who to elect and what such officials are doing while in office. The past thirty years of campaign finance jurisprudence has pushed us a long way down a 

slippery slope to destroying such freedom. The evolution of 

this Court’s cases has used numerous imperfect analogies to 

extend from their origin to where we are today. The justifications for regulation have thus become so attenuated and the 

burden of regulation so exacerbated, that it is time put the 

breaks on any further restriction of core political speech. 

2. Grass-roots lobbying (“GRL”) represents a virtually 

“perfect storm” of First Amendment activity, involving 

speech, association, and petitioning. It plays a central role in 

our constitutional system and should be protected to the fullest, especially in light of the restrictions on other forms of 

core political speech. 

3. The burdens imposed on GRL by the restrictions at issue in this case are severe and far-reaching. The restrictions 

are content-based, target an especially effective form of GRL, 

and cover periods of time far greater than previously assumed. Any supposed alternate channels of communication 

for such GRL are inappropriate considerations in the context 
4 

of strict scrutiny, will quickly be characterized as loopholes 

for circumvention by the government’s own reasoning in this 

case, and are not adequate alternatives in any event. 

4. The government’s asserted interests for suppressing 

GRL is much attenuated from the interests it once asserted in 

Buckley, and its anti-circumvention rationale is particularly 

dangerous and non-compelling. Circumvention as an interest 

simply distracts from the attenuated nature of the original risk 

and forms a self-fulfilling and self-perpetuating justification 

for ever greater restrictions. The original justifications of 

combating corruption and its appearance are not genuinely 

implicated by this case and are ill-conceived in any event insofar as they treat influencing elections through speech as 

corrupt. The communicative impact of speech is precisely the 

proper means for influencing the public, elections, and government conduct. 

ARGUMENT 

I. CAMPAIGN-FINANCE JURISPRUDENCE HAS STRAYED 

FAR FROM FUNDAMENTAL FIRST AMENDMENT AND 

DEMOCRATIC PRINCIPLES. 

In our constitutional system predicated upon the sovereignty of the People, rather than the government, the most 

essential function of the First Amendment is to preserve the 

public’s right to fully and freely discuss the qualities and conduct of their elected representatives in order properly to exercise their right to self-government. That fundamental democratic process operates not only in connection with the periodic 

decision of who shall serve as our elected representatives, but 

also in connection with the varied legislative and other actions those representatives take while in office. As this Court 

once recognized, the First Amendment has its “fullest and 

most urgent application” in the context of elections. Monitor 

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). And it has 

similarly urgent application in the context of discussions of 
5 

government policies and efforts to enlist the public to influence those policies. 

The history of campaign finance regulation and jurisprudence has been a battle between such fundamental political 

freedoms and competing concerns that those very same freedoms could allow narrow private interests to control or manipulate government to their own parochial ends, to the detriment of the public interest as a whole. Such concerns are 

hardly new, and were known to the Founders as the problem 

of “faction.” Today’s concern over such factions, or so-called 

special interests, stems from the assumed ability of numerous 

groups and entities to exert improper influence through the 

aggregation and use of money to speak more, and more effectively, than they are supposedly due. 

By contrast, Madison’s greatest concern regarding the 

“violence of faction” was not the proliferation of many small 

factions, but the “superior force of an interested majority.” 

Federalist No. 10, THE FEDERALIST PAPERS 45 (Rossiter & 

Kesler eds. 1999). The solution to the danger of faction was 

not to replace conflicting factions with a single majority faction of the public, but rather to render any potential majority 

faction “unable to concert and carry into effect schemes of 

oppression.” Id. at 49. Any supposed concern with “special” 

interests thus misunderstands the entire problem of faction as 

it concerned the Founders. Far from being compelling, a desire to decrease or hobble special interests is anathema to the 

“republican remedy for the disease[]” of factionalism. Id. at 

52. The proper remedy for a concern with factions is not to 

bind them, but rather to encourage their diversity and freedom 

to seek influence through speech, thereby allowing them to 

check each other with their conflicting efforts. The alternative – unfortunately now in ascendance – is to try to suppress 

the phenomenon of numerous factions “by destroying the liberty which is essential to its existence,” but such remedy is 

“worse than the disease.” Id. at 45-46. 
6 

With such basic principles in mind, a brief review of this 

Court’s campaign finance jurisprudence will illustrate how far 

we have moved away from core First Amendment and democratic principles and how slippery is the slope upon which 

we now stand. 

Over the past 30 years, this Court’s protection of core political speech has eroded considerably. Indeed, the progression of this Court’s jurisprudence from Buckley v. Valeo, 424 

U.S. 1 (1976), to McConnell v. FEC, 540 U.S. 93 (2003), is a 

paradigm example of the proverbial slippery slope. What began as narrow exceptions to the First Amendment’s jealous 

protection of political speech have now become the unchallenged starting points for attenuated analogies by the government used to support ever-expanding restrictions on core First 

Amendment activities. Where regulation based on the communicative impact of speech was once the greatest First 

Amendment sin, it is now precisely such impact – speech’s 

ability to influence voters, and hence elections – that provides 

the government interest justifying regulation, as if influencing 

elections through speech was somehow corrupt. 

In Buckley, this Court took the first steps down the slippery slope by upholding limits on the direct contribution of 

money to present and prospective officeholders. 424 U.S. at 

25. Although such contributions were in no credible sense 

“bribes” and could, of course, only be used for speech and 

associated activities, this Court nonetheless viewed them as 

having the simplistic smell of bribes and the potential for actual or perceived corruption.2

 Buckley likewise denigrated the 

First Amendment value of candidate contributions as a form 

 2

 Although calling such contributions “corrupt” was a stretch, there seems 

little point in revisiting the serious difficulties of that approach. But see

Erik S. Jaffe, McConnell v. FEC: Rationing Speech to Prevent “Undue” 

Influence, 2003-2004 CATO SUPREME COURT REVIEW 245, 290-96 (2004) 

(“Rationing Speech”) (critiquing the corruption rationale in Buckley and 

McConnell). 
7 

of expression and association by arguing that such contributions involved only symbolic and inarticulate expressions of 

support and ultimately produced only speech-by-proxy (the 

candidate) rather than speech by the contributor himself. Id. 

at 20-21. 

Following that first, and imperfect, analogic leap from actual bribery to campaign contributions, this Court the took the 

next step down the slippery slope, analogizing coordinated 

private expenditures for speech to direct contributions to candidates. Id. at 46-47. Of course, that analogy again was far 

from perfect, insofar as even coordinated expenditures involved the direct speech of the private party, not merely 

speech-by-proxy, and limiting such expenditures undermined 

the effectiveness of such speech and free association. This 

Court in Buckley nonetheless seemed to think less of the value 

of such speech and saw similar dangers therefrom, perhaps 

due to its lack of independence and its potential for candidate 

control. 

Buckley next looked at uncoordinated expenditures and 

concluded generally that such expenditures had a higher 

speech value and a lower danger of actual or perceived corruption and thus were worthy of greater protection. Id. at 44, 

48. Despite that general recognition of protection, however, 

this Court proceeded to carve out a then-narrow exception 

allowing the regulation of independent expenditures for “express advocacy” of the election or defeat of a candidate, and 

thus took its most fateful step down the slippery slope. Understanding the reasons for, and the implications of, the express advocacy exception to First Amendment protection is 

critical to resolving the issues presented here. 

In limiting the statutory restriction on expenditures “relative to a clearly identified candidate” to the narrow class of 

express advocacy of the magic-words variety, this Court ostensibly was responding to vagueness concerns raised by the 

broad statutory language. But in fact the statutory language 

was vague only insofar as it was overly broad, and many of 
8 

the concerns discussed by this Court involved such overbreadth. It was in that dual context that the Court discussed 

the inevitable blending of issue advocacy and the discussion 

of candidates as examples of speech that it thought could not 

be regulated consistent with the First Amendment. 424 U.S. 

at 42-45. 

Seeming to recognize the questionable nature of its enterprise, this Court explained that a broader exception to First 

Amendment protection would be inappropriate because “the 

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 governmental actions.” Buckley, 424 U.S. at 

42. Buckley resolved the inevitable overlap by drawing narrow and clear parameters for the speech that could be regulated: speech that used specific words of express advocacy. 

Id. at 43-44 &n. 52. Those parameters also had the benefit of 

preventing regulation of speech that this Court viewed as 

plainly protected, such as speech concerning the candidates in 

general and concerning issues of public interest, regardless of 

any overlap such speech might have with speech concerning 

the election. By excising from protection only exhortations 

such as “vote for,” “elect,” or “support” (and their converses), 

the Court implicitly found the loss of such statements to have 

less of an impact on the marketplace of ideas than would the 

loss of the broader discussions it protected.3

 Within the nar-

 3

 Viewing the bare exhortations of express advocacy as lower in value 

than broader discussions of candidates and issues helps explain why the 

seemingly arbitrary magic-words requirement may have made more sense 

than had appeared. The magic words were excised not because speech 

lacking such words had no impact on an election, but rather because the 

use of those words alone simply appealed to non-rational bases for decision, for example simple name recognition or a conditioned response to 

imperative speech as a reason to vote for a candidate. Absent such magic 

words, speakers had to persuade voters to reach such conclusions on their 

own, which required engaging their reasoning in order to draw a connec-
9 

row category of express advocacy, however, this Court then 

found the analogy to contributions and coordinated expenditures close enough to allow express advocacy to be regulated 

as a means of preventing circumvention of the contribution 

limits. 424 U.S. at 43-44 & n. 52. 

By the end of Buckley, this Court had moved three iterations away from its starting point that bribery was corrupt and 

could be regulated and, through increasingly attenuated 

analogies, permitted the regulation of higher value speech 

with only a tenuous connection to the underlying corruption 

rationales it had used to regulate contributions. And it had 

added the uniquely hazardous additional justification of preventing “circumvention” of prior restrictions on supposedly 

lower value contributions as a justification for regulating 

higher-value independent expenditures. 

By the time this Court decided McConnell, Buckley’s initial corruption rationale had again expanded and was to be 

“‘understood not only as quid pro quo agreements, but also as 

undue influence on an officeholder’s judgment, and the appearance of such influence.’” FEC v. Beaumont, 539 U.S. 

146, 156 (2003) (citation omitted). The expansion also included additional reasons for restricting corporate political 

speech, including the supposed “special advantages” of the 

corporate form “that enhance their ability to attract capital 

and * * * to use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace,” and the prevention of corporations being used “as 

conduits for circumvention of [valid] contribution limits” by 

 

tion between the issue being discussed or the qualities of the candidate and 

the conclusion that the voter should vote for or against such candidate. 

Contribution limits and magic words restrictions thus could be viewed as 

an attempt to move election debates onto a higher plane of reasoned decision-making rather than to abandon them to naked exhortations and namerecognition exercises, activities which, in the age of advertising, some 

might view with suspicion and treat as lower-value forms of speech. 
10 

corporate owners or employees. Beaumont, 539 U.S. at 155 

(citations and quotation marks omitted). 

In McConnell, this Court used that expanded palette of arguments to extend the express advocacy concept – already 

attenuated – to speech that contained no such advocacy but 

that was characterized as the “functional equivalent” of express advocacy and pejoratively called “sham” issue ads. 540 

U.S. at 206. Once again, however, the analogy was far from 

perfect, see Dorie E. Apollonio & Margaret A. Carne, Interest 

Groups and the Power of Magic Words, 4 ELEC. L.J. 178 

(2005), and served to expand the scope of regulated speech to 

include increasingly higher value speech with fewer dangers 

of corruption or its appearance. 

The question now confronting this Court is whether the 

express-advocacy exception – created by Buckley and expanded by McConnell – will swallow the rule.4

 Before answering that question, this Court should step back and survey 

the destruction from its three-decade slide down the slippery 

slope – the continued restriction of increasingly important 

categories of political speech based on ever more attenuated 

justifications. Even if this Court is unprepared to correct the 

errors of its earlier decisions, the very least it should do is 

stop extending those errors, starting with the recognition of 

meaningful First Amendment limits on BCRA as applied to 

grass-roots lobbying (“GRL”). 

 4

 It speaks volumes that appellants would answer that question with a resounding “yes.” Indeed, they quote the very passage Buckley used to limit

its restrictions on speech as a justification for expanding such restrictions. 

FEC Br. at 30; McCain Br. at 34-35. Rather than seeing Buckley’s recognition that “candidates, especially incumbents, are intimately tied to public 

issues involving legislative proposals and government actions,” 424 U.S. 

at 42, as a reason it cannot suppress electoral advertisements, appellants 

proffer it as a reason why government should be free to further restrict the 

discussion of such important issues themselves. 
11 

II. GRASS-ROOTS LOBBYING IS CORE POLITICAL SPEECH,

ASSEMBLY, AND PETITIONING ACTIVITY. 

There can be no serious doubt that the GRL in this case 

lies at the very heart of the First Amendment. Discussion 

about and criticism of the government in general, our elected 

representatives in particular, and the various policies or actions being adopted and considered by them are both the essence of and the fundamental predicates for political participation by the People – the ultimate sovereign within our constitutional structure. 

Few activities so perfectly combine the essential elements 

of concern to the First Amendment as does the exercise of the 

right to assemble and petition the government for a redress of 

grievances. It involves the discussion and exchange of ideas 

regarding government conduct among the people being assembled; it involves the communication of those ideas to the 

government and the individual members thereof whose job it 

is to represent us; and it involves the peaceful call for government action made by the very source of all authority in our 

constitutional system, the People. If the First Amendment has 

any remaining meaning as a binding restriction on Congress, 

surely it must mean that such activity cannot be restricted or 

burdened for anything less than the most compelling and immediate reasons, and even then to the least extent possible. 

The specific activity under review in this case – grassroots lobbying – is among the purest examples of such fundamental First Amendment activity. The advertisements in 

question directly address Senate filibusters of judicial nominees, a contentious public policy issue that was and will continue to be a major source of political conflict within Congress and throughout the country. The advertisements were 

directed to the ultimate source of legitimate government authority, the People themselves, and indirectly towards the 

relevant agents of the People, the Senators considering 

whether to filibuster. The advertisements likewise contained 
12 

a mixture of information (informing the people that filibusters 

had occurred and were threatened), argument (analogizing 

filibusters to various forms of obstruction, delay, and waste of 

resources), opinion (expressing the view that filibusters are 

bad), a call to action (asking people to contact their specific 

Senators and petition them to oppose the filibuster), and a 

means for many people to easily assemble to accomplish that 

action (a link to a website facilitating the petitioning of appropriate Senators). 

In short, GRL in general – and the advertisements here in 

particular – represent virtually “perfect storms” of First 

Amendment activity, constituting speech, assembly, and petitioning, and facilitating further such activity by the public. 

Finally, beyond the general and particular attributes of 

GRL described above, the evolution of other legal doctrines 

and developments has magnified the importance of GRL from 

a structural perspective, forcing it to shoulder more of the 

government-checking burdens that might instead have been 

borne elsewhere. In numerous cases seeking to invoke constitutional checks against legislative authority, this Court has 

adopted a highly deferential approach, advising us that if the 

public does not like the way the elected branches are exercising such authority they should take it up with their legislators, 

not with the courts.5

But that very advice to raise such issues with the legislature makes GRL all the more important because that is precisely what GRL does. GRL is now one of the few remaining 

 5 See, e.g., Gonzalez v. Raich, 545 U.S. 1, 33 (2005) (rejecting commerce 

clause challenge and suggesting resort to “the democratic process, in 

which the voices of voters allied with these respondents may one day be 

heard in the halls of Congress”); Daniel v. Family Sec. Life Ins. Co., 336 

U.S. 220, 224 (1949) (rejecting due process challenge and holding that the 

“forum for the correction of ill-considered legislation is a responsive legislature.”); Munn v. Illinois, 94 U.S. 113, 134 (1877) (rejecting due process 

challenge and stating that “[f]or protection against abuses by legislatures 

the people must resort to the polls, not the courts.”). 
13 

checks on a Congress that has accreted power far beyond that 

exercised in 1789 and that, in most cases, has little to fear 

from the deferential constitutional scrutiny applied by the 

courts. If such fundamental political activity is allowed to be 

constrained by the very Congress toward which it is directed, 

then the promise of political checks as adequate substitutes 

for constitutional checks rings especially hollow indeed. Cf. 

United States v. Carolene Products Co., 304 U.S. 144, 152 

n. 4 (1938). First Amendment protection for GRL thus represents the type of structural check without which other democratic processes cannot adequately function. 

Insofar as the notion of government of the People, by the 

People, and for the People retains any value whatsoever in 

our constitutional system, there must be some firm First 

Amendment lines drawn and some ground upon which the 

government may not tread. Of the two fundamental expressions of the sovereignty of the People – advocacy regarding 

who to elect as our representatives and advocacy regarding 

what actions those representatives take while in office – the 

former is already heavily regulated and in no cogent sense 

“free.” Such limitations on speech directly addressing who

should be elected to office thus exponentially increase the 

value of remaining speech regarding what those elected officials should do while in office. GRL is precisely such fundamental speech, and should be protected vigorously. 

III. BCRA’S BURDEN ON GRASS-ROOTS LOBBYING IS 

SEVERE AND FAR-REACHING. 

On its face BCRA constitutes a content-based restriction 

expressly targeted to the communicative impact of GRL. 

Such restrictions are, by definition, substantial for First 

Amendment purposes wholly apart from their quantitative 

impact on the speech in question. United States v. O’Brien,

391 U.S. 367, 382 (1968) (discussing situation in which a 
14 

statute aimed at suppressing communication could not be sustained).6

A. BCRA Places Substantial Restrictions on 

Legitimate Grass-Roots Lobbying. 

Even aside from the content-based nature of the restriction 

at issue here, BCRA uniquely targets large quatities of the 

most effective form of GRL. 

First, the type of GRL restricted by BCRA in this case – 

broadcast communications in close proximity to an election 

that name specific Senators, one of whom was up for reelection, and that are targeted to those Senators’ constituents – is 

the most meaningful, effective, and essential form of GRL 

one can imagine. 

As was true in this case, Congress is often in session during the 30 days before a primary and the 60 days before a 

general election, and voting on issues that are important to the 

public. Issues under consideration before Congress do not go 

away as elections near, and the importance of GRL during 

that period continues unabated. 

The timing of the communications during the run-up to 

elections is a critical factor enhancing their potential effectiveness. Representatives feel uniquely compelled to listen to 

the petitions of constituents precisely when those constituents 

are preparing to exercise their franchise. The public itself 

likewise is most focused on the actions of their representatives as elections approach and is then most inclined to be receptive to information, advocacy, and calls for action. The 

pre-election combination of official receptiveness and public 

 6

 A content-based $1-per-year tax applied only to speakers who criticize 

elected officials would entail a substantial First Amendment burden notwithstanding that it would have essentially no impact on the number of 

critical speakers or the amount of critical speech, and even though it ostensibly would be viewpoint neutral. 
15 

focus thus makes the type of GRL at issue here uniquely vital 

to the democratic process 

Furthermore, the 30/60-day restricted periods set forth in 

BCRA and assumed by this Court in McConnell vastly understate the actual amount of time GRL is restricted in election 

years. In a recent analysis of the 2004 election cycle, Former 

FEC Chairman Bradley Smith (a founder of amicus CCP) and 

his co-author demonstrated that BCRA had a far greater temporal impact than previously assumed. See Bradley A. Smith 

& Jason R. Owen, Boundary Based Restrictions in Unbounded Broadcast Media Markets: McConnell v. FEC’s 

Underinclusive Overbreadth Analysis, -- STAN. L. & POLICY 

REV. 101 (forthcoming 2007). That analysis found that because BCRA’s restrictions are triggered not merely by primaries and general elections, but also by national conventions in 

presidential election years, they actually cover the additional 

30-plus days before and during each such national convention. Id. at 108. Additionally, many broadcasters operate in 

multi-State media markets and reach 50,000 persons in more 

than one State. Where those States hold their primaries at different times, as they often do, the restricted periods under 

BCRA overlap and hence expand the total time during which 

GRL and other electioneering communications are restricted. 

In operation, the actual period of restriction is often more than 

120 days in presidential election years, and can rise to over 

200 days in the larger multi-State media markets. Id. at 126 

(Table 1 summarizing the length of BCRA restrictions in 

2004, including: 188 to 217 days in the Washington, D.C. 

media market across various stations covering 5 States and 

reaching 2.25 million persons; 196 to 198 days in the Chicago 

media market across various stations covering 4 States and 

reaching 3.43 million persons; 196 to 212 days in the Philadelphia media market across various stations covering 4 

States and reaching 2.92 million persons; 184 days in the 

New York City media market across various stations covering 

4 States and reaching 7.37 million persons). That greater 
16 

burden imposed by BCRA’s actual operation renders faulty 

this Court’s apparent assumption in McConnell that the length 

of the restriction was limited to a mere 90 days.7

 

Second, naming specific Senators and targeting the relevant electorate – otherwise known as the Senators’ constituents – is an inherent and essential aspect of effective GRL. 

The very point of GRL is to influence congressional action on 

an issue of concern, and the only realistic means of doing so 

is to maximize the congruence between the would-be petitioners and the officials being petitioned. Petitions by nonconstituents may not be wholly ignored, but those by the 

“relevant electorate,” 2 U.S.C. § 434(f)(3)(2), cannot be ignored without political peril. 

Specifically identifying the official to whom subsequent 

petitions should be addressed likewise is an integral part of 

any grass-roots lobbying effort. Generic criticism of government conduct without clear information and direction regarding what to do about it is but a pale shadow of effective assembly and petitioning. Providing information regarding how 

to contact the relevant decision-maker enhances the chances 

of subsequent petitioning activity by the target audience. The 

failure to identify the proper recipient of a proposed petition 

places the information-gathering burden on individuals, making it more difficult to assemble a large group to petition the 

 7

 The differences between the assumed and the actual burden of BCRA 

likewise renders inapplicable McConnell’s facial analysis of the burden’s 

and benefits of BCRA when considered in an as-applied challenge raised 

after such real-world data has become available. And, as the BCRA restrictions project further out from the general election, the likelihood that 

such restrictions will impact a greater percentage of genuine issue ads 

increases. At a minimum the new data gives this Court ample reason to 

limit its holding in McConnell to the abstract facial questions presented 

therein, and to give that ruling little weight (or to reconsider it entirely) 

when it comes to resolving challenges such as the one in this case. 
17 

government.8

 Naming names thus lies at the heart of effective GRL and likewise at the heart of the First Amendment. 

Third, the GRL at issue here – promoted and organized 

through broadcast media – is also a singularly effective and 

vital form of such First Amendment activity. This Court itself once recognized that broadcast media are “indispensable 

instruments of effective political speech.” Buckley, 424 U.S. 

at 19. Indeed, the very reason broadcast communications are 

more heavily restricted by BCRA is precisely because they 

are more effective at reaching the target audience and hence 

“influencing” elections. What is accepted by this Court and 

Congress regarding the greater effectiveness of broadcast 

communication to influence elections necessarily requires acknowledgment of the unique effectiveness of such communications as the means for GRL to inform, encourage, and enable the public to further petition their representatives. 

B. Alternative Avenues of Communication are 

Inappropriate, Inadequate, and Short-Lived 

Justifications for Restricting Core Political Speech. 

Appellants repeat the argument, raised in McConnell and 

elsewhere, that the First Amendment burden here is minimal 

because there are adequate alternative channels of communi-

 8 See Michael Delli Carpini & Scott Keeter, WHAT AMERICANS KNOW 

ABOUT POLITICS AND WHY IT MATTERS 69-71 (1996) (citing studies demonstrating that most Americans do not know where in government responsibility lies for setting and carrying out most government policies); 

 Stephen E. Bennett & Linda Bennett, Out of Sight Out of Mind: Americans Limited Knowledge of Party Control of the House of Representatives 

1960-84, 35 POL. RES. Q. 67 (1992) (most Americans do not know which 

party controls Congress, and hence need names in order to act to properly 

communicate preferences); Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of 

Constitutional Theory, 89 IOWA L. REV. 1287, 1309 (2004) (citing data 

showing that during the campaign most voters in elections cannot name a 

single candidate). 
18 

cation for engaging in GRL. FEC Br. at 35-36; McCain Br. at 

29-31. That argument is flawed for a variety of reasons. 

First, even asking the question whether adequate alternative channels of communication exist for core political speech 

is inappropriate in the context of strict scrutiny of the contentbased regulation of GRL in this case. Where a regulation is 

content-based, the First Amendment burden is severe by definition and is not diminished by the potential for speakers to 

communicate in a different manner preferred by the government. In fact, consideration of alternative channels of communication only makes sense in the context of neutral timeplace-manner restrictions and conduct regulation that only 

incidentally burden speech because many government actions 

can affect speech without in any real sense abridging the freedom of speech, and strict scrutiny in all such cases would 

grind government to a halt.9

 

In this case, however, BCRA’s restrictions on electioneering communications are imposed precisely based on the content of the speech and for the very purpose of suppressing 

their communicative impact, i.e., their potential for persuading voters and thereby potentially influencing elections.10 To 

import the reasoning of adequate alternative channels of 

 9

 The obvious examples are ordinary income or sales taxes, noise ordinances, and parade permits, each of which can reduce total speech but is 

not targeted to the content or communicative impact of such speech. 

10 See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) 

(“Government action that stifles speech on account of its message * * * 

pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or 

manipulate the public debate through coercion rather than persuasion.”); 

Riley v. National Federation of the Blind, 487 U.S. 781, 790-91 (1988) 

(“‘The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating 

the press, speech, and religion.’ * * * To this end, the government, even 

with the purest of motives, may not substitute its judgment as to how best 

to speak for that of speakers and listeners; free and robust debate cannot 

thrive if directed by the government.”) (citation omitted). 
19 

communication into this context is thus a troubling and dangerous extension of a narrow line of cases and contributes to 

the downhill slide in First Amendment protections for core 

political speech. 

Second, what the government today relies upon as mitigating alternative channels of communication will inevitably 

be derided tomorrow as means of circumventing the latest 

restrictions. Indeed, insofar as any of the alternative channels 

are in fact “adequate” to inform members of the public about 

the activities of their elected representatives and persuade 

them to take action directed at such officials, such alternatives 

will likewise carry the same risk of influencing an election 

under the exact same reasoning the government employs 

here.11

If this Court accepts the “influence elections” and circumvention arguments made by the government in this case, there 

will be no coherent stopping point for rejecting those arguments when the next channel of communication is shut down. 

Any arbitrary lines drawn now drawn by BCRA between 

regulated and unregulated channels of expression will seem 

just as arbitrary in the face of the government’s future arguments as the “magic-words” test seemed in McConnell. In 

fact, once the current restrictions shut down the type of GRL 

at issue in this case, alternate forms of communication will 

necessarily assume a greater prominence (even if they are less 

effective), and hence today’s restrictions will affirmatively 

create tomorrow’s supposed dangers from other forms of 

speech. Each time one avenue for political speech is closed, 

those remaining will become more important, and thus more 

likely to create “corruption” or its appearance, thus justifying 

their regulation. 

 11 Indeed, various States, taking their cue from McConnell and BCRA 

have already adopted restrictions on electioneering communications that 

are not limited to speech through broadcast media and cover many of the 

supposed alternative channels of communication. 
20 

Indeed, that is precisely what happened in the shift from 

express advocacy to so-called issue ads, and it is even happening again today in connection with 527 organizations, 

which were once touted as a safety valve for independent 

speech but are now being attacked as a loophole allowing circumvention of BCRA. In short, the government and this 

Court simply cannot have it both ways, simultaneously touting the First Amendment benefits of other avenues of communication and then treating them as mere loopholes that 

cannot be allowed to circumvent the latest round of restrictions. 

Third, none of the supposed alternative channels are in 

fact adequate replacements for the GRL in this case. 

Avoidance. The option of simply avoiding BCRA’s timing, broadcast, or candidate-identification triggers is not an 

adequate alternative given that those triggers are the very 

same elements of the most effective GRL. See Part III.A, supra at 14-17. Indeed, the very point of BCRA limiting its 

regulation to broadcast media during the run-up to elections 

was precisely because those ads were the most effective form 

of communicating with the public in a meaningful manner 

and that the other forms of communication left open were 

supposedly less dangerous because of their diminished communicative effectiveness. And, as applied to GRL in particular, closing off the most effective channels of communication 

will have a cascade effect reducing not just the regulated 

speech itself but also any resulting petitioning activity as well. 

PAC Funding. The so-called PAC option likewise is not 

an adequate alternative. Any previous notion that establishing and maintaining a PAC is a minor administrative task has 

become increasingly incredible with each new round of legal 

obligations and restrictions on PACs and those who run them. 

Just the legal fees, record-keeping, and reporting requirements alone can be daunting, making it costly or impossible 

for ordinary citizen groups to engage in robust and effective 

GRL. The PAC option thus reserves the most effective ave-
21 

nues of communication for large and well-funded entities who 

have ready access to existing institutional resources and expertise. 

The various funding source, amount, and disclosure requirements for PACs likewise make it especially difficult for 

new or smaller groups, with severely restricted numbers of 

persons from whom they can solicit funds, to raise the quantities of PAC money needed for broadcast communications. 

Indeed, the very facts of this case demonstrate that the PAC 

resources available to groups like WRTL can be wholly inadequate to enable them to use broadcast media for their message. WRTL Br. at 9-10 & n. 1712

Furthermore, because the funding-source limits on the 

PAC option disproportionately hurt smaller organizations, 

BCRA tilts the GRL playing field in favor of larger and better-organized entities and commercial entities with greater 

resources. As a practical matter, the burden of the PAC option will fall on precisely those “grass-roots” groups that rise 

up in timely response to current issues, but will have less of 

an impact on the large institutional “special” interests that 

were of supposed concern to Congress. Constraining effective GRL also will shift power and influence regarding legislative issues to incumbents, who have far better alternatives to 

get out their message in the context of pushing legislative 

agendas and garnering free media attention. That shift gets 

things precisely backward, with incumbent representatives 

able to lobby the public through the mass media, but the public unable to organize and lobby the incumbents through the 

same means. 

 12 Using the PAC option for GRL also would compete with other uses for 

PAC money. Limited PAC resources are already the only means for nonprofit and other corporations to make contributions or to engage in express 

advocacy. Expanding the scope of First Amendment activity forced 

through the PAC option thus decreases the amounts available for each 

type of protected activity and places a fixed limit on the covered expressive activity by those organizations. 
22 

IV. THE GOVERNMENT INTEREST IN SUPPRESSING GRASSROOTS LOBBYING IS ATTENUATED AND NOT 

COMPELLING. 

The purported government interest at issue in this case is 

the asserted but unproven hypothesis that GRL organized and 

advocated by a corporation using general treasury funds has 

the potential to “corrupt” or exert “undue influence” upon political office holders who might be thankful for such efforts or 

to cause the appearance of such corruption or undue influence. That hypothesis is flawed both in its conception of 

“corruption” generally and in its application to GRL in particular. 

A. Corruption and Its Appearance Are Distant 

Concerns and “Circumvention” Is a Never-Ending 

Excuse for More Regulation. 

As described in Part I, the government’s original interest 

in fighting corruption and the appearance of corruption has 

become more and more attenuated with each effort at further 

regulation. While the corruption interest was never wellreasoned, even in connection with direct contributions to candidates,13 the interest is now really one of avoiding supposedly “undue” influence and preventing circumvention of the 

last round of regulations, which in turn were justified as preventing circumvention of earlier restrictions, which eventually were tied to the underlying purpose of avoiding corruption or its appearance. That circumvention rationale, however, becomes more faulty with each iteration. 

 13 See Stephen Ansolabehere & James M. Snyder, Jr., Why Is there so Little Money in U.S. Politics, 17 J. ECON. PERSPECTIVES 105 (2003) (examining 36 published, peer reviewed studies on effects of money in U.S. politics since 1981, and concluding, “the evidence that campaign contributions lead to substantial influence on votes is rather thin * * *. Money has 

little leverage because it is only a small part of the political calculation 

that a re-election oriented legislator makes.”). 
23 

To begin with, no one seriously suggests that the GRL in 

this case involves the actuality or appearance of anything resembling true “corruption” as conceived in Buckley. Rather, 

the interest now is in preventing the actuality or appearance of 

that dim shadow of corruption – “undue influence” – and the 

prophylactic prevention of “circumvention” of previous restrictions on speech. The notion of undue influence, however, 

is an ill-defined snake pit, without any coherent baseline of 

what amount or type of influence is “undue” and what influence is simply part of the ordinary democratic process. See

Rationing Speech, 2003-2004 CATO SUPREME COURT 

REVIEW, at 295-96. Such a vague and attenuated interest 

hardly qualifies as compelling even by its own uncertain 

terms. 

Worse still, an asserted interest in prophylaxis against circumvention is at best a diversion and at worst a self-fulfilling 

justification for never-ending rounds of further regulation. If 

abstracted from the original supposed evils of corruption via 

bribery or even supposedly via large contributions to candidates, the mantra of circumvention tends to hide how much 

disfavored conduct is actually leaking through the earlier legislative barriers and hence obscures the magnitude (or lack 

thereof) of the underlying interest. Surely the government 

could not claim – and this Court could not accept – that contribution limits themselves have no effect on corruption or its 

appearance or that circumvention of those limits is 100% effective at generating the same amount and perception of corruption.14 Likewise with the restrictions on coordinated expenditures and on express advocacy. If we are to accept the 

validity of such restrictions in the first place, we must assume 

that they are effective in preventing some meaningful portion 

 14 If such were in fact the case, the initial limits would presumably be unconstitutional for failing to directly advance the interests asserted. 
24 

of the evil at which they were directed.15 With each new 

layer of regulation, therefore, the remaining harm to be 

avoided necessarily diminishes and the importance of the new 

speech being regulated necessarily increases. Those two 

curves must cross at some point and, short of overruling past 

cases (which would make the most sense and be most faithful 

to the First Amendment), GRL seems to be a sensible place 

for the balance to shift. Multiple layers of prophylaxis simply 

address more and more attenuated risks of the underlying 

danger and at some point such risks must cease to present 

compelling interests.16

In addition to diverting attention from the diminishing 

government interest, an anti-circumvention interest inevitably 

feeds upon itself, with each new restriction spawning supposed circumvention and the need for further restrictions. See

Part III.B, supra at 19. Indeed, if preventing circumvention is 

accepted as an independent compelling interest, then all alternative channels of communication could readily be recharacterized by the government as circumvention of previ-

 15 Even assuming each layer of regulation was only 50% effective in preventing corrupting conduct, three layers of prophylaxis would presumably 

eliminate 87.5% of the objectionable behavior. The proper question after 

that is not whether avoiding circumvention per se is a compelling interest, 

but rather whether the marginal gains in prophylaxis (for example another 

6.25% for a fourth layer of prophylaxis in the example above) is sufficiently compelling to justify substantially expanding restrictions on larger 

and larger quantities of ever higher-value speech. 

16 Surely this Court must weigh the magnitude of a risk, not merely its 

abstract character, to decide whether it is a compelling justification for a 

particular restriction or application. Cf. Van Orden v. Perry, 545 U.S. 

677, 704 (2005) (Breyer, J., concurring in the judgment) (Establishment 

Clause analysis a matter of “degree” in close cases; finding that a mixed 

message including some religious component did not establish religion). 

Because mixed messages in political debate may be inevitable to some 

extent, the only way to eliminate all risks associated with election-related 

speech is to eliminate all freedom of speech, a solution that is anathema to 

our constitutional system. Cf. Federalist No. 10, THE FEDERALIST PAPERS

45-46. 
25 

ous limitations that simply did not reach far enough. Nothing 

would be immune from such a justification, which would not 

disappear until all speech with any possible impact on elections were restricted or perfectly equalized in a perverse echo 

of the one-person-one-vote principle. 

In the end, it is more than passing strange to characterize 

efforts to maximize First Amendment activity up to, but not 

crossing, the boundaries of existing restrictions as “circumvention” of those restrictions unless one wrongly assumes that 

virtually any effort to influence who gets elected and what 

actions they take is unacceptable. Effective political speech 

and association used to influence government are not means 

of circumventing restrictions on supposedly improper influence. Rather, they are the constitutionally favored alternatives for achieving desired ends without force, bribery, or 

other improper means. 

B. There Is No Risk of Actual Corruption or Even 

“Undue” Influence. 

The particular ads in this case present no risk of corruption or undue influence, and amply demonstrate how far the 

government has strayed from any legitimate interests it might 

have. 

First, the messages in this case do not discuss the positions of the named officials regarding judicial filibusters, but 

rather simply ask the public to petition the Senators to oppose 

the filibuster. There is no indication of candidate support or 

opposition in the ads. Any implicit support of or opposition 

to a candidate from such communications will depend largely 

on the candidate’s response to the ensuing petitions and the 

public’s independent investigation of such issues. 

Indeed, insofar as any support or opposition to a candidate 

can only be inferred by the audience from the overall context 

of the election or other external sources in combination with 

the GRL at issue, that simply demonstrates the unique First 

Amendment value of GRL and distinguishes it from other 
26 

forms of speech that this Court has allowed the government to 

regulate. As noted in Part I, supra at 6-9, Buckley’s denial of 

protection to contributions, coordinated expenditures, and express advocacy seemed to derive in part from the express or 

implicit assumption that such expression were somehow less 

worthy under the First Amendment, being either symbolic 

and undifferentiated in message, lacking independent control 

or contribution to the marketplace of ideas, or constituting 

merely conclusory exhortations to action. But where speech 

consisted of independent discussion of issues, even where 

such discussion inevitably would touch upon candidates, this 

Court protected such speech notwithstanding its potential to 

influence elections. 

The lesson of such treatment thus illustrates the overarching principle that what such regulable forms of speech have in 

common, and what differentiates them from protected speech, 

was a perceived lesser contribution to the marketplace of 

ideas, the speech being either inchoate, in control of a proxy, 

or a bare exhortation lacking analysis. When asking whether 

other speech is thus the “functional equivalent” of express 

advocacy, it is those qualities that must be the touchtone, not 

the potential to influence elections that was equally present in 

the speech Buckley protected. 

Applying the above principle, the GRL in this case is not 

even remotely the “functional equivalent” of the express advocacy in Buckley. Any conceivable election impact from the 

GRL here would be entirely the result of educating the audience on issues and then the audience using such issues to 

evaluate candidates – the seemingly ideal form of democratic 

persuasion and decision making. Insofar as the express advocacy in Buckley was unprotected because the particular words 

“vote for” may have been deemed of limited First Amendment value – perhaps suspected of influencing the public 

through bare name recognition or Pavlovian response (“We 

Like Ike,” repeat 100 times) – that is certainly not the case 

here. 
27 

At worst the GRL ads in this case represent the direct discussion of issues that are unavoidably intertwined with the 

discussion of candidates because they are issues that the candidate is continuing to address in his ongoing legislative duties. The speech here not only encourages voter awareness, 

but in fact cannot have any impact on the election without the 

further step of active voter attention to and participation in the 

marketplace of ideas in order to draw any connection between 

the ads themselves and the various extrinsic circumstances 

and information upon which appellants rely to claim a purpose and effect of influencing elections.17 

Ultimately, if discussion of a candidate’s current legislative activities has some indirect influence on that candidate’s 

election, such effect is entirely proper, squarely within the 

core concerns of the First Amendment, and hardly undue, corrupting, a sham, or any other pejorative the government might 

choose. 

Second, the timing of broadcasts in the run-up to the election does not raise the inference that the GRL ads are 

“shams.” Importantly, the timing coincided with the timing 

of the Senate filibusters from which the relevant legislators 

were being asked to abstain. The issues subject to GRL do 

not simply stop as an election approaches, and neither should 

the right to engage in effective lobbying. And, as described 

in Part III.A, supra at 14-17, proximity to an election is when 

GRL can be most effective. Timing advertisements for such 

period thus is less indicative of a sham than of a desire to 

 17 Even assuming some implied electioneering content to GRL, whether 

the ads in this case or even future ads that negatively identify a candidate’s legislative position, at best such GRL would involve a mixed message, not a sham. Such mixed messages are precisely what Buckley referred to, and sought to protect, when limiting restrictions to express advocacy in the form of bare exhortation rather than argument and, as a 

practical matter, do not pose the same risks of undue influence. Any influence exerted is due entirely, and properly, to the desirable functioning 

of the marketplace of ideas. 
28 

capitalize on election interest to further the issue advocacy 

itself. The analogy to direct advocacy and even to “sham” 

issue ads such as those attacking a politician personally and 

then mentioning some policy issue in passing is thus considerably weaker and the government interest in regulating such 

speech is even more attenuated. 

Third, the notion that GRL might pose a particular danger 

when coming from a corporation is, at a minimum, more attenuated for a non-profit corporation, and is truly a stretch in 

the context of speech the ultimate influence of which is determined by the demonstrable support it receives from the 

public in the form of resulting petitions to elected officials. 

Insofar as the perceived unfairness of corporate wealth being 

used for expenditures is premised on the notion that corporations can generate speech and influence out of proportion to 

the strength or support behind their ideas and hence beyond 

the amount of speech and influence they ought to have, that 

begs the question of what is the “proper” amount of speech 

and influence.18

Furthermore, in the context of GRL, the danger of undue

influence is limited at best because any supposed influence 

from such ads will presumably be a function of how many 

people actually follow the advice of such ads and petition 

their representatives. Even accepting that such resulting activity might have an influence on an election, it is hardly undue in that it is directly tied to the amount of public support 

generated by the speech in the readily identifiable form of a 

 18 Though failing in its application, Buckley at least correctly recognized 

that government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” 424 U.S. at 48. 

That, said Buckley, is “wholly foreign to the First Amendment,” the protections of which “cannot properly be made to depend on a person’s financial ability to engage in public discussion.” Id. at 48-49. Manipulating different groups’ relative ability to speak “is a decidedly fatal objective.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 579 (1995). 
29 

petition. We thus have a direct measure of the effectiveness 

of the GRL and hence the actual and perceived influence of 

the organizer will be in direct proportion to the number of 

people who act on the advice given, not simply on the dollar 

amount spent on the ad. If nobody responds to the ad it will 

presumably have no influence on the candidate or the election; if many people respond to the ad, then the magnitude of 

the potential influence will be a function of such voter support 

and hence not undue.19

C. Avoiding the Mere Appearance of Corruption Is 

Not a Compelling Interest and Is Not Advanced by 

Restricting Grass-Roots Lobbying. 

In the absence of actual corruption, avoiding its mere appearance should not be sufficient to suppress protected 

speech. The proper First Amendment remedy for such false 

appearances is more speech, not less, the election of candidates voluntarily practicing the public’s notion of virtue, or, 

ultimately, a constitutional amendment if the existing system 

cannot hold the public’s confidence. The government surely 

could not forbid speech accusing elected officials of corruption because they kow-tow to political polls or favor the interests of their home states, regardless whether such criticism 

caused the public to believe – rightly or wrongly – that 

elected officials were corrupt. 

Furthermore, there is simply no basis for concluding that 

the type of GRL at issue here has any impact whatsoever on 

the public’s perception of corruption, and hence trying to alter 

 19 The disparagement of corporate speakers as “special interests” adds 

nothing to the analysis beyond the unsupported assumption that such 

speakers have interests that are materially narrower than those of other 

speakers. And even were such an assumption true regarding corporate 

speakers, such narrow interests are actually a benefit in the context of 

Madison’s remedy for factions, ensuring the diversity of groups with separate agendas that makes it difficult to form a stable majority faction. 
30 

that perception is not a reason to restrict this speech.20 Indeed, if there is a perception of government corruption, it is 

just as likely to come from the demonization and overregulation of political speech leading the public to see corruption where none actually exists. Further regulation would just 

worsen that perception, not improve it. 

Finally, fostering public confidence in government for its 

own sake is by no means a virtue. Such confidence may be 

desirable for a government actually deserving of such esteem, 

but our history as a nation tends to favor the virtues of a skeptical, even critical, public as a means of keeping the government honest and limited. 

CONCLUSION 

For the foregoing reasons, the decision of the District 

Court should be affirmed. 

 20 Indeed, the public perception of corruption has little to do with speech 

at all, and turns on numerous other factors beyond the government’s control. See Nathaniel Persily and Kelli Lammi, Campaign Finance After 

McCain-Feingold: Perceptions of Corruption and Campaign Finance: 

When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 

119, 152 (2004) (concluding on the basis of extensive empirical research 

that, “Americans’ ‘confidence in the system of representative government’ 

– specifically, their beliefs that government officials are not ‘crooked’ 

and that government is ‘run for the benefit of all’ – is, to a large extent, 

related to their position in society, their general tendency to trust others, 

their philosophy as to what government should do, and their ideological or 

philosophical disagreement with the policies of those in charge.”). 
31 

 Respectfully Submitted, 

ERIK S. JAFFE

 Counsel of record

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

Counsel for Amici Curiae 

Dated: March 23, 2007.