No. 02-1747 

444444444444444444444444444444444444444444

IN THE 

Supreme Court of The United States 

________________ 

CONGRESSMAN 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 CARLA HOWELL, 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

________________ Appellees. 

On Appeal from the United States District Court 

for the District of Columbia

_______________

BRIEF FOR APPELLANTS 

CONGRESSMAN RON PAUL, ET AL. 

________________ 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

Attorneys for Appellants 

*Counsel of Record 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

July 8, 2003 

(Counsel continued on inside front cover) 

444444444444444444444444444444444444444444
RICHARD O. WOLF

MOORE & LEE, LLP

1750 Tysons Boulevard

Suite 1450

McLean, VA 22102

(703) 506-2050

GARY G. KREEP

U.S. JUSTICE FOUNDATION

Suite 1-C

2091 East Valley Parkway

Escondido, CA 92027

(760) 741-8086

PERRY B. THOMPSON

629 High Knob Road

Front Royal, VA 22630

(540) 305-0012
i 

QUESTIONS PRESENTED FOR REVIEW 

1. Whether the district court erred by dismissing appellants’ 

freedom of the press challenge to various provisions of BCRA, 

and to provisions of FECA amended by BCRA, on the ground 

that, in the area of campaign finance regulation, the freedom of 

the press guarantee in the First Amendment to the United 

States Constitution contains no greater rights than those 

protected by the guarantees of free speech and association? 

2. Whether the district court erred by upholding the statutory 

exemptions in BCRA enjoyed by the “institutional press” and 

other FEC-licensed press activities from the prohibitions 

against, and regulations of, electioneering communications and 

contribution limits governing appellants, on the ground that 

Congress may, regardless of the freedom of the press 

guarantee, grant greater rights to the “institutional press” than 

to the “general press,” only the latter of which appellants are a 

part? 

3. Whether the district court erred by holding that, regardless 

of the constitutional guarantee of the freedom of the press, the 

fall-back definition of electioneering communication in Title 

II of BCRA (as modified by the court) and the accompanying 

prohibitions and regulations are constitutional as applied to 

appellants as members of the “general press,” even though the 

institutional press and other FEC-licensed press activities are 

exempted? 

4. Whether the district court erred by holding that, regardless 

of the constitutional guarantee of the freedom of the press, 

those appellants who are federal officeholders and/or 

candidates for federal office must, as members of the “general 

press,” submit to the Federal Election Commission’s licensing 

power and editorial control as provided for in BCRA § 101(a) 
ii 

(new FECA § 323(e)), including limiting their ability to assist 

candidates and causes they support, whereas members of the 

“institutional press” are exempt? 

5. Whether the district court erred by holding that, regardless 

of the freedom of the press, those appellants who are 

candidates for election to state office, must, as members of the 

“general press,” submit to the licensing power and editorial 

control of the Federal Election Commission as provided for in 

BCRA § 101(a) (new FECA § 323(f)), if they refer to a 

candidate for federal office and the Federal Election 

Commission determines this to constitute promotion or 

support, whereas members of the “institutional press” are 

exempt? 

6. Whether the district court erred by holding that, regardless 

of the freedom of the press, appellant Congressman and 

candidates for federal office, being members only of the 

“general press,” had no standing to challenge the 

constitutionality of BCRA § 307(a) limiting individual 

contributions to federal election campaigns, and mandating 

disclosure of contributor identities and donations, despite the 

impact of such limits upon the editorial function of their 

campaigns for federal office, and by dismissing appellant 

candidates’ press challenge to such statutory limits and 

requirements? 
iii 

PARTIES TO THE PROCEEDING 

The appellants in this case, who were plaintiffs in Civil 

Action No. 02-CV-781 below before the district court, are: 

Congressman 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 Carla Howell. 

The appellees in this case, who were defendants or 

intervenor-defendants below, are: Federal Election 

Commission; the United States of America; Senator John 

McCain; Senator Russell Feingold; Representative Christopher 

Shays; Representative Martin Meehan; Senator Olympia 

Snowe; and Senator James Jeffords. 

This case was consolidated below with ten other civil actions 

challenging the constitutionality of certain BCRA provisions. 

The names of plaintiffs in each of the consolidated cases are 

as follows: 

National Rifle Ass’n v. FEC: National Rifle Association of 

America (NRA) and NRA Political Victory Fund; 

McConnell v. FEC: U.S. Senator Mitch McConnell, former 

U.S. Representative Bob Barr, U.S. Representative Mike 

Pence, Alabama Attorney General William H. Pryor, 

Libertarian National Committee, Inc., American Civil Liberties 

Union, Associated Builders and Contractors, Inc., Associated 

Builders and Contractors Political Action Committee, Center 

for Individual Freedom, Club for Growth, Inc., Indiana Family 

Institute, Inc., National Right to Life Committee, Inc., National 

Right to Life Educational Trust Fund, National Right to Life 

Political Action Committee, National Right to Work 

Committee, 60-Plus Association, Inc., Southeastern Legal 

Foundation, Inc., U.S. English d/b/a/ ProENGLISH, Thomas 
iv 

McInerney, Barret Austin O’Brock, and Trevor M.

Southerland;

Echols v. FEC: Emily Echols, Daniel Solid, Hannah McDow,

Isaac McDow, Jessica Mitchell, Daniel Solid, and Zachary C.

White;

Chamber of Commerce v. FEC: Chamber of Commerce of the

United States, U.S. Chamber Political Action Committee, and

National Association of Manufacturers (Plaintiff National

Association of Wholesaler-Distributors withdrew);

National Ass’n of Broadcasters v. FEC: National Association

of Broadcasters;

AFL-CIO v. FEC: AFL-CIO and AFL-CIO Committee on

Political Education and Political Contributions;

Republican National Committee v. FEC: Republican National

Committee (RNC), Mike Duncan, former Treasurer, current

General Counsel, and Member of the RNC, Republican Party

of Colorado, Republican Party of New Mexico, Republican

Party of Ohio, and Dallas County (Iowa) Republican County

Central Committee;

California Democratic Party v. FEC: California Democratic

Party, Art Torres, Yolo County Democratic Central Committee,

California Republican Party, Shawn Steel, Timothy J. Morgan,

Barbara Alby, Santa Cruz County Republican Central

Committee, and Douglas R. Boyd, Jr.;

Adams v. FEC: Victoria Jackson Gray Adams, Carrie Bolton,

Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada

Joshi, Nancy Russell, Kate Seely-Kirk, Peter Kostmayer, Rose

Taylor, Stephanie L. Wilson, California Public Interest

Research Group (PIRG), Massachusetts Public Interest

Research Group, New Jersey Public Interest Research Group,

United States Public Interest Research Group, the Fannie Lou

Hamer Project, and Association of Community Organizers for

Reform Now; and 

Thompson v. FEC: U.S. Representatives Bennie G. Thompson

and Earl F. Hilliard.
v 

The names of other defendants in the consolidated cases are 

as follows: Federal Communications Commission; John D. 

Ashcroft; in his capacity as Attorney General of the United 

States; United States Department of Justice; and David M. 

Mason, Ellen L. Weintraub, Danny L. McDonald, Bradley A. 

Smith, Scott E. Thomas, and Michael E. Toner, in their official 

capacities as Commissioners of the Federal Election 

Commission. 

STATEMENT PURSUANT TO RULE 29.6 

Appellant Gun Owners of America Political Victory Fund, a 

political committee, is a separate segregated fund of appellant 

Gun Owners of America, Inc., a nonprofit, nonstock 

corporation, and appellant Citizens United Political Victory 

Fund, a political committee, is a separate segregated fund of 

appellant Citizens United, a nonprofit, nonstock corporation. 

Otherwise, none of the appellants has a parent corporation. 

None of the appellants is a stock company, and no publicly 

held company owns 10 percent or more of the stock of any of 

the appellants. 
vi 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO THE PROCEEDING ................. iii

STATEMENT PURSUANT TO RULE 29.6 ........... v

TABLE OF AUTHORITIES ........................ x

OPINIONS BELOW .............................. 1

JURISDICTION ................................. 1

PERTINENT CONSTITUTIONAL AND STATUTORY

PROVISIONS ................................... 1

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

SUMMARY OF ARGUMENT ...................... 4

ARGUMENT 

I. THE CUSTOMARY DEFERENCE ACCORDED 

TO THE CONSTITUTIONAL JUDGMENT OF

CONGRESS DOES NOT APPLY IN THIS CASE . . . 6

A. BCRA/FECA Advantages Incumbents ........... 8

B. Claims of Corruption and the Appearance of

Corruption Are Undefined and Mask a 

Constitutionally Illegitimate Purpose ........... 13
vii 

II. THE COURT BELOW ERRONEOUSLY 

DISMISSED THE PAUL PLAINTIFFS’ CLAIMS

UNDER THE FREEDOM OF THE PRESS ....... 16

A. The Paul Plaintiffs’ Freedom of the Press Claims

Are Not Barred by Buckley and Its Progeny ...... 17

B. The Freedom of the Press Is Subject to a Different 

and Higher Standard of Review ................ 18

C. The Freedom of the Press Is Not a Subset of the

Freedom of Speech ......................... 27

III. BCRA TITLE II VIOLATES THE PAUL

PLAINTIFFS’ FREEDOM OF THE PRESS ....... 32

A. Title II Is an Unconstitutional Licensing System . . 33

B. Title II Is an Unconstitutional Prior Restraint ..... 35

C. Title II Unconstitutionally Establishes 

Government Editorial Control ................. 36

D. Title II Imposes Discriminatory Economic 

Burdens .................................. 39

IV. BCRA TITLE I, CREATING NEW FECA § 323(e)

AND § 323(f) RESTRICTIONS, VIOLATES THE

FREEDOM OF THE PRESS ................... 40

A. New FECA § 323(e) Imposes Unconstitutional 

Editorial Controls .......................... 40

B. New FECA § 323(f) Imposes Unconstitutional

Editorial Controls .......................... 43
viii 

V. THE FECA/BCRA CONTRIBUTION LIMITS AND 

DISCLOSURE REQUIREMENTS ARE 

UNCONSTITUTIONAL ...................... 44 

A. The Paul Plaintiffs Have Standing to Challenge the 

Constitutionality of BCRA § 307 .............. 45 

B. The BCRA/FECA Contribution Limits and 

Disclosure Requirements Unconstitutionally 

Abridge the Paul Plaintiffs’ Rights under the 

Freedom of the Press ........................ 47 

CONCLUSION ................................. 50 

APPENDIX .................................... 1a 

Amended Complaint, 02-CV-781 (Record No. 9, --)* 

(Excerpts) .................................. 1a 

Report of James C. Miller III (Record No. 60, 195) .... 9a 

Report of Perry Willis (Record No. 60, 195) ........ 40a 

Report of Walter J. Olson (Record No. 60, 195) 

(Excerpts) ................................. 67a 

Declaration of Congressman Ron Paul (Record No. 

60, 195) (Excerpts) .......................... 70a 

Declaration of Thomas Lizardo (Record No. 60, 

195) (Excerpts) ............................. 77a 

* The first record number is that of the docket entries in 02-CV-781 

(Paul v. FEC), followed by the record number in 02-CV-582 (McConnell v. 

FEC), if available, or by the filing date. 
ix 

Declaration of Anonymous Witness No. 1 (Record 

No. 60, 195) (Excerpts) ...................... 79a 

Declaration of Michael Cloud (Record No. 60, 195) 

(Excerpts) ................................. 81a 

Declaration of Carla Howell (Record No. 60, 195) 

(Excerpts) ................................. 96a 

Declaration of Lawrence D. Pratt (Record No. 60, 

195) (Excerpts) ............................ 105a 

Declaration of Michael Boos (Record No. 60, 195) 

(Excerpts) ................................ 107a 

Proposed Findings of Fact (filed 11/26/02) 

(Excerpts) ................................ 109a 
x 

TABLE OF AUTHORITIES 

Page 

U.S. CONSTITUTION 

Amendment I ............................. 1, passim 

STATUTES 

Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81 ............ 7, passim 

Federal Election Campaign Act of 1971, as 

amended, 2 U.S.C. § 431, et seq. ............. 7, passim

2 U.S.C. § 431(9)(B)(i) ........................... 48

2 U.S.C. § 431(13) ............................... 49

2 U.S.C. § 434 ................................... 6

2 U.S.C. § 434 (new FECA § 304(f)) ......... 12, passim

2 U.S.C. § 434 (b)(3)(A) .......................... 12

2 U.S.C. § 437g (new FECA § 309(d)(1)) .......... 11, 35

2 U.S.C. § 441a ........................... 45, 46, 48

2 U.S.C. § 441a (new FECA § 315(a)(1)) ............. 12

2 U.S.C. § 441b(b)(2) (BCRA § 203(a)) ........... 33, 35

2 U.S.C. § 441i (new FECA § 323(e) and (f)) . . . 40, passim

REGULATIONS 

11 C.F.R. § 100.26 ............................... 43

11 C.F.R. § 100.29 ......................... 33, 34, 38

11 C.F.R. § 104.20 ............................... 34

11 C.F.R. § 114.10 ............................ 34, 35

11 C.F.R. § 300.65 ............................... 40

CASES 

Abrams v. United States, 250 U.S. 616 (1919) ......... 29

Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) ...... 8

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 

221 (1987) .................................... 26

Austin v. Michigan State Chamber of Commerce,

494 U.S. 652 (1990) ............................. 26
xi 

Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121

(7th Cir. 2001) ................................. 36

Branzburg v. Hayes, 408 U.S. 665 (1972) ............. 48

Brown v. Socialist Workers ‘74 Campaign Comm., 459

U.S. 87 (1982) ................................. 24

Buckley v. Amer. Const. Law Found., 525 U.S. 599

(1999) ........................................ 24

Buckley v. Valeo, 424 U.S. 1 (1976) ........... 2, passim

CBS v. Democratic National Comm., 412 U.S. 94 (1973) . 6

FEC v. Beaumont, ___ U.S. ___, 123 S. Ct. 2200

(2003) ........................................ 16

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) . 34, 39

First National Bank of Boston v. Bellotti, 435 U.S. 

765 (1978) ............................. 19, passim

Grosjean v. American Press Co., Inc., 297 U.S. 233 

(1936) .................................. 25, 26, 39

Lovell v. City of Griffin, 303 U.S. 444 (1938) . . . 20, 27, 34

Lujan v. National Wildlife Federation, 504 U.S. 555

(1992) ........................................ 46

Martin v. City of Struthers, 319 U.S. 141 (1943) .... 37, 38

McIntyre v. Ohio Elections Commission, 514 U.S. 

334 (1995) ............................. 24, passim 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241 (1974) ............................. 23, passim

Mills v. Alabama, 384 U.S. 214 (1966) ............... 31

Morrison v. Olson, 487 U.S. 654 (1988) ............... 6

Near v. Minnesota, 283 U.S. 697 (1931) .............. 22

New York Times v. Sullivan, 376 U.S. 254

(1964) ................................. 16, passim

New York Times v. United States, 403 U.S. 713 

(1971) .................................. 21, 22, 36

Pennekamp v. Florida, 328 U.S. 331 (1946) ........... 27

Powell v. McCormick, 395 U.S. (1969) ............... 7

Republican Party of Minn. v. White, 536 U.S. 765

(2002) ........................................ 15
xii 

Rex v. Tutchin, Howell’s State Trials 1095 (1704) ...... 15

Rotsker v. Goldberg, 453 U.S. 57 (1981) .............. 6

Schneider v. State (Town of Irvington), 308 U.S. 147

(1939) ........................................ 20

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ........ 8

Talley v. California, 362 U.S. 60 (1960) ........ 23, 24, 49

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 21

Walz v. Tax Comm. of New York, 397 U.S. 664 (1970) . 18

Watchtower v. Village of Stratton, 536 U.S.150 

(2002) ................................. 20, passim

Williams v. Rhodes, 393 U.S. 23 (1968) ............... 8

Wright v. United States, 302 U.S. 583 (1938) .......... 27

BOOKS

J. Adams, The Revolutionary Writings of John Adams

(Liberty Fund, Indianapolis: 2000) .............. 25, 30

I American Political Writing during the Founding Era

1760-1805(C. Hyneman and D. Lutz, eds., Liberty 

Press, Indianapolis: 1983) ..................... 28, 29

W. Blackstone, Commentaries on the Laws of 

England (Univ. Chi, facs. ed. 1769) .......... 22, 28, 50

T. Cooley, A Treatise on Constitutional Limitations

(5th ed. Little, Brown, Boston: 1883) ............... 29

V The Founders’ Constitution (P. Kurland and R. Lerner,

eds., Univ. Chicago: 1987) .................... 29, 30

J. Miller, Monopoly Politics .................... 10, 49

B. Smith, Unfree Speech .......................... 14

Sources of Our Liberties (Perry, ed., Rev. ed, 

American Bar Foundation, Chicago: 1978) .... 28, passim 

St. G. Tucker, View of the Constitution of the 

United States with Selected Writings 

(Liberty Fund: 1999) ............................ 31
xiii 

OTHER 

Campaign Finance in Virginia (rev. July 2003) Virginia

State Board of Elections ......................... 41

Cato Policy Report, March/April 2000, Corruption,

Campaign Finance, and Term Limits ................ 11

147 Cong. Rec. S2887 (daily ed. Mar. 26, 2001) ....... 13

148 Cong. Rec. H348 (daily ed. Feb. 13, 2002) ......... 4

148 Cong. Rec. S1992 (daily ed. Mar. 18, 2002) ....... 43

148 Cong. Rec. S2138 (daily ed. Mar. 20, 2002) ....... 42

148 Cong. Rec. S3131-3132 (daily ed. Mar. 29, 2002) .... 3

Press Release of John McCain, Nov. 14, 2001 ......... 13
OPINIONS BELOW 

The three-judge district court issued its judgment, along with 

four opinions which were filed on May 2, 2003: a per curiam 

opinion joined by two of the judges, and individual opinions by 

each of the three judges. The opinions are reported at 203 U.S. 

Dist. LEXIS 7816. Pursuant to this Court’s Order of May 15, 

2003, the appellants submitted jointly the district court’s 

opinions, in the form of a Supplemental Appendix to the 

Jurisdictional Statement (hereinafter “Supp. App.”). 

JURISDICTION 

The district court issued its opinions and judgment on May 2, 

2003. Appellants timely filed their Notice of Appeal on May 

7, 2003. This Court has appellate jurisdiction pursuant to 

§ 403(a)(3) of the Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81, 114. Appellants filed their 

Jurisdictional Statement on May 30, 2003, and this Court noted 

probable jurisdiction on June 5, 2003. Appellants’ Notice of 

Appeal is reprinted at Paul Plaintiffs’ Jurisdictional Statement, 

Jur. St. App. 1a. 

PERTINENT CONSTITUTIONAL 

AND STATUTORY PROVISIONS 

The First Amendment to the United States Constitution is 

reprinted at Paul Plaintiffs’ Jurisdictional Statement, Jur. St. 

App. 5a. 

Sections 434 and 441a of Title 2 of the United States Code 

(FECA prior to BCRA’s amendments), are set forth at Paul 

Plaintiffs’ Jurisdictional Statement, Jur. St. App. 6a. 

The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 (2002), is reprinted at Paul Plaintiffs’ 

Jurisdictional Statement, Jur. St. App. 27a. 
2 

STATEMENT OF THE CASE 

BCRA was signed into law on March 27, 2002. Eleven 

separate complaints were filed in the United States District 

Court for the District of Columbia challenging its 

constitutionality. The cases were consolidated by the threejudge panel assigned to hear them, and the parties were ordered 

to conduct discovery and submit their cases-in-chief, 

supporting briefs and opposition and reply briefs on an 

expedited basis over the course of approximately six months. 

The fully-submitted cases were argued before the court below 

on December 4-5, 2002. On May 2, 2003, the district court 

issued four separate opinions — a per curiam opinion and an 

opinion of each of the three judges on the panel — upholding 

certain BCRA provisions, striking down certain other BCRA 

provisions, and dismissing challenges to certain other BCRA 

provisions for nonjusticiability and lack of standing. See Supp. 

App. 

The Paul Plaintiff appellants relied exclusively upon the 

freedom of the press in their arguments, rather than invoking 

the free speech and association guarantees relied on in Buckley 

v. Valeo, 424 U.S. 1 (1976), and by the other plaintiffs below. 

To establish that FECA/BCRA violates their freedom of the 

press, the Paul Plaintiffs introduced substantial fact and expert 

testimony. These witnesses provided testimony and expert 

reports to establish that political campaigns and public interest 

advocacy involve traditional press activities and that 

FECA/BCRA interfere with these press activities in a number 

of significant ways. See, e.g., Declarations of Congressman 

Ron Paul, Michael Cloud, and Carla Howell, and Reports of 

Paul Plaintiffs’ Expert Witnesses James C. Miller III, Perry 
3

Willis, and Walter J. Olson, in the Appendix hereto (“App.”).1 

In particular, for example, the Paul Plaintiffs demonstrated that 

the FECA/BCRA licensing, reporting, and expenditure 

limitations, together with their contribution limits, have 

adversely affected Congressman Paul’s federal election 

campaigns, as well as those of federal and state candidates 

Michael Cloud and Carla Howell, and will continue to do so. 

See, e.g., Paul Decl. ¶¶ 16-18, App. 75a-76a, Cloud Decl. ¶¶ 6-

30, App. 83a-95a, Howell Decl. ¶¶ 4-21, App. 96a-103a, Miller 

Rep. at 13-27, App. 21a-39a, Willis Rep. ¶¶ 7-11, App. 49a56a, Olson Rep. ¶ 116, App. 68a-69a. The Paul Plaintiffs also 

established, inter alia, that FECA/BCRA inhibits both 

challengers to incumbent members of Congress and the growth 

of minor parties. See, e.g., Cloud Decl. ¶¶ 7-13, App. 83a-88a, 

Howell Decl. ¶¶ 9-13, 20-21, App. 98a-100a, 103a, Miller Rep. 

at 8-13, App. 16a-23a, Willis Rep. ¶¶ 9-14, App. 52a-62a. 

Moreover, the Paul Plaintiffs demonstrated, inter alia, that, at 

least with regard to the passage of FECA, and that by the time 

BCRA was passed, the incumbent-protecting effect of this kind 

of regulation was discussed in Congress. See, e.g., Statement 

of Sen. McConnell, 148 Cong. Rec. S3131-3132 (daily ed. 

The Paul Plaintiffs demonstrated their functions as independent and 

effective “presses” — developing and implementing editorial policy, as well 

as researching, drafting, editing, publishing, and even withholding news 

stories, editorials, and commentaries on both public policy issues and 

federal election campaigns and candidates. The Paul Plaintiffs extensively 

publish through press releases, unpaid appearances on radio and television 

news, talk, and other shows, through paid political advertisements in 

newspapers and on radio and television, and through their own outlets — 

faxes, e-mail, web sites, direct mail, newsletters, bumper stickers, video and 

audio tapes, telephone calls, door-to-door campaigning, speeches, debates, 

and even a syndicated radio show. E.g., Paul Decl. ¶¶ 13-15, App. 72a-74a; 

Willis Rep. ¶¶ 7, 8, App. 49a-52a; Lizardo Decl. ¶ 5, App. 78a; Bossie Decl. 

¶¶ 3, 5; Pratt Decl. ¶¶ 3, 5, 9; Babka Decl. ¶¶ 4, 7, 9, Rec. No. 60. 

1
4

Mar. 29, 2001); Statement of Rep. Ney, 148 Cong. Rec. H348 

(daily ed. Feb. 13, 2002).2 

The evidence introduced by the Paul Plaintiffs was not 

challenged by the defendants, and apparently was accepted by 

the court below. There is no apparent factual dispute, and the 

Paul Plaintiffs’ claims were rejected as a matter of law. Supp. 

App. at 99sa-105sa, 158sa-59sa, 460sa, 472sa-75sa and 

1144sa-46sa. This case fundamentally concerns whether the 

constitutional guarantee of freedom of the press applies to the 

Paul Plaintiffs, and, if so, whether that guarantee precludes the 

challenged governmental restrictions, embodied in 

BCRA/FECA, of the Paul Plaintiffs’ press activities. 

SUMMARY OF ARGUMENT 

The Paul Plaintiffs challenge the constitutionality of various 

provisions of the BCRA-amended FECA under the freedom of 

the press. Although it recognized the distinctiveness of the 

Paul Plaintiffs’ challenge, the district court dismissed it, 

erroneously ruling that the freedom of the press imposes no 

limits upon campaign finance regulations different from those 

imposed by free speech and association. Deferring to 

congressional representations that the BCRA-amended FECA 

prevents “corruption and appearance of corruption,” the court 

applied the strict scrutiny and intermediate scrutiny tests set 

forth in Buckley v. Valeo on the erroneous assumption that 

Buckley and its progeny precluded consideration of the Paul 

Plaintiffs’ freedom of the press claims. 

The record below unmistakably demonstrates that the BCRAamended FECA increases the advantages that FECA granted to 

2 The Paul Plaintiffs’ evidence below is set out in more detail in their 

Jurisdictional Statement to the Court, Jur. St. at 3-14. 
5 

incumbents over challengers. Because campaign finance 

regulations implicate congressional self-interest, the normal 

rule of judicial deference to the constitutional judgment of 

Congress does not apply. Claims that such statutes have been 

enacted to prevent “corruption and appearance of corruption” 

remain undefined and constitutionally suspect. Insofar as 

Buckley has spawned the loose use of such terms, it ought to be 

overruled, or set aside, having failed to provide bright-line rules 

governing the marketplace of ideas related to federal elections. 

The freedom of the press provides such bright-line rules. 

According to this Court’s precedents, the freedom of the press: 

(1) bans congressional licensing of the publication and 

dissemination of ideas; (2) constrains Congress from imposing 

prior restraints upon such publication and dissemination except 

under the most extraordinary circumstances; (3) prohibits 

Congress from authorizing government officials to exercise the 

editorial function in such publication and dissemination; (4) 

forbids Congress from forcing the disclosure of the identities of 

publishers and disseminators; and (5) proscribes Congress from 

placing discriminatory economic burdens upon some such 

publishers and disseminators, and not others. Enforcing these 

freedom of the press constraints upon Congress is the only way 

to protect the people from government corruption, and it is not 

subject to any override by an asserted compelling government 

interest. 

Subjecting the BCRA-amended FECA to analysis under the 

freedom of the press reveals that the Title II prohibitions and 

regulations of “electioneering communications” violate all five 

press standards. New FECA § 323(e) and § 323(f), created by 

Title I of BCRA, impose like unconstitutional restrictions. 

Section 323(e) imposes unconstitutional editorial control over 

federal officeholders and candidates; Section 323(f) imposes 

unconstitutional editorial control over state and local 
6 

officeholders and candidates. Finally, the Paul Plaintiffs have 

standing to challenge the contribution limits imposed by 

BCRA-amended FECA § 307, which together with the 

individual and PAC contribution limitations of FECA § 441a 

and their companion disclosure requirements contained in 

FECA § 434, impose unconstitutional editorial control upon 

candidates and their campaigns. All should be struck down. 

ARGUMENT 

I. THE CUSTOMARY DEFERENCE ACCORDED 

TO THE CONSTITUTIONAL JUDGMENT OF 

CONGRESS DOES NOT APPLY IN THIS CASE. 

Ordinarily, this Court, when called upon to judge the 

constitutionality of an act of Congress, “accords great weight 

to the decisions of Congress,” even in cases presenting First 

Amendment challenges. CBS v. Democratic National 

Committee, 412 U.S. 94, 102 (1973). Accord Rostker v. 

Goldberg, 453 U.S. 57, 64 (1981). Such deference to the 

constitutional judgment of Congress does not, however, apply 

in every case. For example, as explained by Justice Scalia in 

Morrison v. Olson, 487 U.S. 654 (1988), this Court did not 

invoke the “caution that we owe great deference to Congress’ 

view that what it has done is constitutional” in assessing the 

constitutionality of the independent counsel law, because 

“where the issue pertains to separation of powers, and the 

political branches are ... in disagreement, neither can be 

presumed correct.” Indeed “[a]s one of the interested and 

coordinate parties to the underlying constitutional dispute, 

Congress, no more than the President, is entitled to the benefit 

of the doubt.” Id. at 704-05 (Scalia, J., dissenting) (emphasis 

added). 
7 

This Court did not extend deference to the constitutional 

judgment of Congress in Powell v. McCormack, 395 U.S. 486 

(1969), in a dispute over the extent of congressional power to 

exclude a person from Congress by the exercise of its power to 

“judge ... the qualifications of its own members,” recognizing 

that Congress had an institutional self-interest in an expansive 

interpretation of such power, an interpretation that was, also, in 

direct conflict with “a fundamental principle of our 

representative democracy ... ‘that the people should choose 

whom they please to govern them,’... [a] principle [that] is 

undermined as much by limiting whom the people can select as 

by limiting the franchise itself.” Id. at 541-47. 

Similarly, Congress is an interested party with respect to the 

Bipartisan Campaign ReformAct of 2002 (“BCRA”), 116 Stat. 

81 (2002), and the Federal Election Campaign Act of 1971, as 

amended, 2 U.S.C. § 431, et seq. (“FECA”), that it amends. In 

both acts, Congress has crafted rules governing the process by 

which monies may be raised and spent to challenge 

Congressmen for re-election, a preeminent concern — if not 

the preeminent concern — of each member of Congress. As 

Chief Justice Burger observed in Buckley v. Valeo. 424 U.S. 1 

(1976): 

I see grave risks in legislation, enacted by 

incumbents of major political parties, which 

distinctively disadvantages minor parties or 

independent candidates. This Court has, until 

today, been particularly cautious when dealing 

with enactments that tend to perpetuate those 

who control legislative power. See Reynolds v. 

Sims, 377 U.S. 533, 570 (1964).... [Buckley, 424 

U.S. at 251 (Burger, C.J., concurring and 

dissenting) (emphasis added).] 
8

Further, this Court ruled that a legislature’s failure to 

consider the interests of minor parties creates a need for courts 

to do so. “[B]ecause the interests of minor parties and 

independent candidates are not well represented in state 

legislatures, the risk that the First Amendment rights of those 

groups will be ignored in legislative decision making may 

warrant more careful judicial scrutiny.” Anderson v. 

Celebrezze, 460 U.S. 780, 793 (1983) (emphasis added). This 

rule should also be applied to acts of the United States 

Congress when the rights of minor party candidates are in 

question.3 

A. BCRA/FECA Advantages Incumbents. 

A campaign against an incumbent is not a fair fight. 

Incumbents enjoy a great advantage over challengers simply 

because their names are already well known and they have 

immediate access to the media due to their position. Other 

tangible benefits of incumbents had a total value between 

$1,823,086 and $3,144,999 in 1999 for each U.S. senator. 

Cloud Decl. ¶¶ 12-13, App. 85a-88a. See also Miller Rep. at 

8-24, App. 16a-36a; Willis Rep. ¶¶ 10-13, App. 53a-61a; 

The political harm suffered by minor parties under FECA/BCRA are 

cogently demonstrated by the Willis Rep. ¶¶ 4-10, App. 44aa-55a; Miller 

Rep. at 8-27, App. 16a-39a; Cloud Decl. ¶¶ 6-30, App. 83a-95a; and Howell 

Decl. ¶¶ 4-21, App. 96a-103a. The need for this additional protection of 

minor parties is apparent when one considers their importance to our 

political system. “There is, of course, no reason why two parties should 

retain a permanent monopoly on the right to have people vote for or against 

them. Competition in ideas and governmental policies is at the core of our 

electoral process and of the First Amendment freedoms.” Williams v. 

Rhodes, 393 U.S. 23, 32 (1968). See also Sweezy v. New Hampshire, 354 

U.S. 234 (1957). “All political ideas cannot and should not be channeled 

into the programs of our two major parties.... Mere unorthodoxy or dissent 

from the prevailing mores is not to be condemned. The absence of such 

voices would be a symptom of grave illness in our society.” Id. at 250-51. 

3
9

Buckley at 31. FECA/BCRA builds on these natural 

advantages of incumbency in numerous ways to the virtual 

destruction of a fair and open system of elections. 

Economist, former Chairman of the Federal Trade 

Commission and Director of the Office of Management and 

Budget, James C. Miller III, Ph.D., who testified as an expert 

witness for the Paul Plaintiffs, has analyzed the manner in 

which political campaigns resemble commercial markets and 

incumbent politicians resemble monopolists. He found that any 

regulation which limits fundraising or spending harms 

challengers more than incumbents because challengers benefit 

more than incumbents from each dollar spent on their 

campaign. In economic terms, challengers receive a higher 

marginal utility for each dollar spent. Miller Rep. at 17, App. 

27a. Because of the anti-competitive nature of 

fundraising/spending limits, the major effect of FECA has been 

to protect incumbents from challengers. Id. at 16, App. 25a. In 

commercial markets, monopoly leads to higher profits, higher 

prices, lower quality, and less innovation. When incumbents 

are able to enjoy monopolistic powers, the effects on citizens 

and voters are like the effects of monopoly on consumers. The 

range of options is limited, the overall quality of service is 

diminished, accountability suffers, officials more frequently 

respond to vested interests rather than the electorate at large, 

deliberations are less transparent, and citizens have less 

information about the candidates, their qualifications, and their 

positions. Id. at 7-8, App. 15a-16a. Even a candidate who 

faces no serious threat of electoral defeat may wish to avoid 

challenge simply to avoid the criticism that challengers 

generally use in their campaigns against incumbents. Finally, 

when one party is unable to achieve a true monopoly, the 

second choice of the would-be monopolist is to form a 

duopoly with one other party, thus enjoying nearly all of the 

benefits of monopoly, and simply sharing them with one other 
10

group. However, like commercial trusts, political candidates 

and parties have an incentive to break the agreement with their 

fellow conspirators. Thus, they seek to enforce their anticompetitive agreements by law. J. Miller, Monopoly Politics 

40-42 (Hoover Inst. Stanford Univ.: 1999). 

Perry Willis, the former national director of the Libertarian 

National Committee and an experienced political consultant 

and fundraiser, also served as an expert witness for the Paul 

Plaintiffs. He testified that polls show a significant number of 

Americans hold political beliefs that are best described as 

“libertarian.” Willis Rep. ¶ 4, App. 44a-46a. However, in spite 

of public support, the discriminatory effects of federal 

campaign laws on minor parties make it virtually impossible 

for libertarians to be viable candidates for federal office.4 Id. 

¶¶ 4-5, App. 44a-48a. Challengers, especially minor party 

challengers, must rely on fewer sources of contributions than 

incumbents because many potential donors refuse to donate to 

challengers given the ever present threat of retribution from the 

incumbent. To overcome this disadvantage, challengers must 

rely on larger contributions from strong supporters who share 

their philosophical convictions, which FECA/BCRA’s 

contribution limitation makes impossible. Moreover, because 

of the limited amount of money which can be accepted from 

each contributor, challengers must pay the costs to locate and 

communicate with a greater number of potential donors, thus 

spending less communicating their message to the general 

public. Incumbents, however, can easily and inexpensively 

convince large numbers of donors to contribute to the 

4 Additionally, the institutional media, which is exempted from 

FECA/BCRA, is uniformly biased against libertarian ideas. In an effort to 

counteract this bias, the primary aim of Libertarian campaigns is to serve as 

a press, educating the public about the policy options which are ignored by 

the mainstream press’ focus on “conservative” versus “liberal” approaches. 

Willis Rep. ¶¶ 7-8, App. 49a-52a. 
11

campaigns; thus, they are not harmed by contribution limits. 

Id. ¶¶ 9-12, App. 52a-58a. FECA/BCRA’s reporting 

requirements also severely limit the ability of challengers, 

especially minor party challengers, to raise money because 

their greatest support comes from people who have 

philosophical or economic reasons to oppose the status quo. 

However, these are also people who tend to fear having the 

government learn of their efforts to change the status quo. 

Thus, many supporters of Libertarian campaigns donate $199 

to avoid having their personal information reported. Id., ¶ 13, 

App. 58a-61a.5 

The anti-competitive provisions of FECA have been 

exponentially worsened by BCRA. For example, under BCRA, 

an American citizen can be sent to federal prison for five years 

for criticizing a member of Congress in the way that Congress 

has determined to be impermissible, and for a wide variety of 

other “offenses.” FECA § 309(d)(1), Jur. St. App. at 69a. 

BCRA prohibits a member of Congress from signing a 

fundraising letter for a group that he or she supports to conduct 

issue advocacy or voter registration, and BCRA makes it 

virtually impossible for minor party candidates for federal and 

5 Judge Buckley of the U.S. Court of Appeals for the District of Columbia 

observed in 2000: “the argument is essentially between political insiders 

and political outsiders, as exemplified by the ideologically disparate group 

that joined Sen. Eugene McCarthy and me in challenging the 

constitutionality of the Campaign Reform Act of 1974. What we had in 

common was a concern that its restrictions on spending and giving would 

effectively squeeze independent voices and political reform movements 

out of the political process by making it even more difficult than it already 

was to raise effective challenges to the political status quo. The legislation 

was, in fact, so notoriously one-sided in this respect that it became known 

as the Incumbent Protection Act.” Cato Policy Report, March/April 2000, 

p. 1, Corruption, Campaign Finance, and Term Limits, 

http://www.cato.org/pubs/policy_report/v22n2/buckley.html (emphasis 

added). 
12

state office to run as a team to maximize their chance of 

gaining public attention and public support. FECA § 323(e) 

and (f), Jur. St. App. at 30a-33a. BCRA continues the FECA 

practice of severely limiting contributions by Americans to 

campaign committees, with an anemic, less-than-inflation 

increase in limitations, ensuring that effective challenges to 

incumbents will be virtually impossible. FECA § 315(a)(1), 

Jur. St. App. at 62a. BCRA continues and expands the FECA 

practice of compelling the disclosure of the identity of financial 

supporters so that incumbents may know the identity of those 

who would have the temerity to oppose them. 2 U.S.C. § 

434(b)(3)(A), Jur. St. App. at 12a, and new FECA § 304(f), Jur. 

St. App. at 37a-41a. Few Americans can be expected to 

understand these restrictions or how they are to be applied to 

decisions made in the heat of an election campaign.6 

In the face of the anti-competitive track record of FECA and 

the record below concerning BCRA, the time is right for this 

Court to entertain a broad challenge to the entire regulatory 

scheme for federal campaign finance.7 Such a challenge is 

BCRA makes FECA much more complex and difficult to work with. 

Even FEC employees often do not understand these restrictions. Paul 

Plaintiffs’ expert witness Walter J. Olson, CPA, stated that, even though he 

is an experienced consultant in the area of campaign finance regulation, he 

frequently must call the FEC advice line. A number of times, the FEC 

information specialist he has spoken to has not been able to answer his 

questions. On occasion, FEC employees actually admit that they have no 

advice to give and Mr. Olson, as treasurer facing personal liability for FECA 

violations, must act at his own peril. Olson Rep. ¶ 8, App. 67a-68a. 

7 It is particularly important that the campaign finance reformers be checked 

now, because they have made it clear that even the restrictions in BCRA do 

not satisfy them. For example, before the House of Representatives had 

even voted on BCRA, Senator McCain declared “This new law does not 

resolve all of the problems of our campaign finance system — but it was a 

historic and significant step forward.... Those of us who believe deeply in 

6 
13

presented by the Paul Plaintiffs. Their challenge differs from 

the challenges of all others in this litigation in three ways: (1) 

the Paul Plaintiffs base their challenge on the press clause of 

the First Amendment rather than the speech and association 

clauses, or equal protection or due process; (2) the Paul 

Plaintiffs seek the re-examination and overturning of Buckley 

v. Valeo based on a real record, not just congressional selfserving promotionals upon which Buckley relied, although 

these plaintiffs believe that Buckley could simply be set aside; 

and (3) the Paul Plaintiffs challenge contribution limits and 

disclosure requirements not challenged by other parties and 

never before challenged on freedom of press grounds. 

B. Claims of Corruption and the Appearance of 

Corruption Are Undefined and Mask a 

Constitutionally Illegitimate Purpose. 

In this case, as in Buckley, the federal government and 

intervening members of Congress maintain that so-called 

reform is justified to combat “corruption and the appearance of 

corruption” in government, lest the people lose faith in their 

government officials and in their current system of government. 

See Defendants’ Brief at 71-84 (Rec. No. 66). Rather than 

provide this Court with a precise definition of “corruption” and 

“appearance of corruption,” they prefer to invoke those terms 

as “judicial mantras,” hoping that by repetition this Court will 

simply accept the claims on the strength of this Court’s normal 

practice of according deference to Congress. As pointed out 

these reforms will not falter in our efforts to ... implement further reforms 

in the future.” McCain Declares Reform Crusade Continues, Press Release 

of John McCain, Nov. 14, 2001. His attitude is shared by his co-author of 

the Senate version of BCRA, Senator Feingold, who said, “[BCRA] is only 

a first step to cleaning up the system. There are many provisions we can 

consider down the road....” Statement of Sen. Feingold, 147 Cong. Rec. 

S2887 (daily ed. Mar. 26, 2001). 
14 

above, such deference should not be accorded Congress in this 

case because any presumption of constitutionality does not 

apply when Congress acts to protect itself and the current twoparty system. 

In Buckley, the Court was clear about what it meant by 

“corruption” — “large contributions ... given to secure political 

quid pro quo's from current and potential office holders.” Id., 

424 U.S. 26. But this is not what BCRA’s supporters meant by 

corruption. As FEC Commissioner Bradley Smith has written: 

What is meant by “corruption” in [the current 

“reform” debate] is not the common definition of 

the term, that is to say, personal enrichment of a 

legislator in exchange for a vote.... What 

reformers mean by “corruption” is that legislators 

react to the wishes of constituents; or what, in 

other circumstances, might be called 

“responsiveness.” What makes this particular 

incidence of responsiveness “corrupt” is that the 

constituents involved have taken an active role in 

supporting the candidate’s campaign for 

election.... In short, for at least some campaign 

regulation advocates, it appears that democracy 

itself is the problem. If individuals and groups are 

allowed to spend money campaigning, they might 

succeed in convincing voters to vote in certain 

ways; if they are allowed to lobby their 

representatives, they might persuade those 

representatives to support or oppose legislation. 

This “has really got to be changed.” Democracy 

itself is corrupt. [B. Smith, Unfree Speech 52, 214 

(Princeton Univ. Press: 2002).] 
15 

Although BCRA sponsors seek to define preventing the 

“appearance of corruption” as a compelling governmental 

interest justifying restrictions on the First Amendment rights 

of Americans, they are actually addressing a compelling 

political interest shared by all incumbents. When government 

is perceived as corrupt, it is the incumbents, not the 

challengers, who are at risk. Combating the “appearance of 

corruption,” then, is a ruse designed by incumbents to justify 

limits on the freedoms of others to further their own interests. 

Just two terms ago, this Court ruled that a state may not 

regulate the content of a campaign for elective judicial office 

without first defining specifically its goals. In Republican 

Party of Minn. v. White, 536 U.S. 765 (2002), this Court found 

that the claimed government interests of “preserving the 

impartiality of the state judiciary and preserving the appearance 

of the impartiality of the state judiciary” did not survive careful 

scrutiny. Id. at 773. Likewise here, the Government should not 

be allowed to claim an interest in preventing “corruption and 

the appearance of corruption” without defining those terms 

with the same precision as required in the White case. This is 

especially important here, where the government candidly 

admits that its overarching goal is to preserve the people’s 

“confidence” in the present system of representative 

government. See Buckley, 424 U.S. at 27. In the past, 

governments have attempted to achieve that same goal through 

laws prohibiting seditious libel, contending that the current 

government must have the power to preserve its reputation with 

the people, lest the people lose confidence in their government. 

See Rex v. Tutchin, Howell’s State Trials 1095 (1704) 

(sustaining seditious libel prosecution on the theory that “it is 

very necessary for all governments that the people should have 

a good opinion of it.” Id. at 1128). However, if it is 

constitutionally illegitimate for the government to pursue a 

seditious libel prosecution in order to protect the government’s 
16

reputation, as this Court ruled in New York Times v. Sullivan, 

376 U.S. 254 (1964), then the government cannot protect the 

government’s reputation by “preventive” measures such as 

those contained in BCRA/FECA, notwithstanding this Court’s 

opinion in Buckley. 

II. THE COURT BELOW ERRONEOUSLY 

DISMISSED THE PAUL PLAINTIFFS’ CLAIMS 

UNDER THE FREEDOM OF THE PRESS. 

Beginning with Buckley v. Valeo, and continuing through 

Federal Election Commission v. Beaumont, ___ U.S. ___, 123 

S. Ct. 2200 (2003), this Court has never addressed a freedom 

of the press challenge to the Federal Election Campaign Act. 

For that reason alone, the per curiam opinion declined to 

determine the Paul Plaintiffs’ challenges to BCRA under the 

freedom of the press. Supp. App. at 104sa. Additionally, the 

court below dismissed the Paul Plaintiffs’ freedom of the press 

claims on the ground that the freedom of the press clause 

provides “no rights ... that are superior to or different than those 

under the other clauses of the First Amendment.” Id. at 103sa04sa. Thirdly, faulting the Paul Plaintiffs for failure “to 

provide the Court with a standard to apply” to their Press 

Clause claims,

8

 the court below “appl[ied] the same scrutiny to 

8 The per curiam opinion criticized the Paul Plaintiffs also for failing “to ... 

delineate the additional, substantive rights provided under the First 

Amendment Freedom of the Press Clause.” Supp. App. at 101sa, n.61. This 

simply is not correct. In the briefing below by the Paul Plaintiffs, the 

“substantive rights” guaranteed by the freedom of the press were addressed 

thoroughly, given the 30-, 20-, and 10-page limitations on briefs imposed by 

the district court (Order of Oct. 15, 2002, Rec. No. 51) (reduced from the 

Paul Plaintiff’s request of 45, 30, and 25 pages.) See Initial Brief at 8-12, 

Rec. No. 65, Opposition Brief at 10-11, Rec. No. 73, and Reply Brief at 1-6. 

The distinct judicial standard applied to violations of the press freedom are 

set forth in the several subparts of Section II.B, infra. 
17 

all First Amendment claims, whether presented under the 

Speech or Press Clauses.” Supp. App. at 102sa-03sa, 105sa. 

Finally, the court rejected the Paul Plaintiffs’ freedom of the 

press claims on the ground that “[i]f the Press Clause affords 

greater or different rights, it might force the courts to make a 

distinction between the ‘institutional’ and ‘general’ press,” 

which could prove difficult, if not impossible, under the 

freedom of the press guarantee.” Id. at 104sa, n.65. The court 

erred on all four points. 

A. The Paul Plaintiffs’ Freedom of the Press Claims Are 

Not Barred by Buckley and Its Progeny. 

The court below worried that, if the Paul Plaintiffs’ press 

claims were addressed on the merits, then “litigants could 

besiege the courts with a host of challenges to laws previously 

upheld by [this] Court ... merely by characterizing themselves 

in their complaints as members of the ‘press’ because their 

purpose is to disseminate information to the public.” Id. at 

104sa. To be sure, no plaintiff should be permitted to 

camouflage a free speech or association claim by wrapping it 

in freedom of the press clothing in order to escape the strictures 

of stare decisis. But that is not what the Paul Plaintiffs have 

done. Rather, on the basis of the unchallenged facts concerning 

their press activities — ranging from publication of public 

information to campaigning for public office — they have 

asserted that they are entitled to the discrete protections of the 

freedom of the press — including the prohibitions against 

government licensing, prior restraints, editorial control, forced 

identity disclosure and discriminatory economic burdens — all 

of which are different from either the “strict scrutiny” or 

“intermediate scrutiny” protections enjoyed by the free speech 

and association claimants who previously litigated Buckley and 

its progeny. See e.g., Amended Complaint §§ 41-45, App. at 

1a-4a; Paul Plaintiffs’ Proposed Findings of Fact §§ 12-20, 23-
18 

49, App. 109a-120a. See also itemization of record evidence 

on press claims in Statement of the Case, supra, at 3-4. 

Lack of a prior challenge to campaign finance laws based 

upon the freedom of the press guarantee is no bar to raising 

such a challenge now. If “no one acquires a vested or protected 

right in violation of the Constitution by long use, even when 

that span of time covers our entire national existence” (Walz v. 

Tax Comm. of New York, 397 U.S. 664, 678 (1970)), then 

surely the government does not acquire immunity from 

constitutional violations just because they have not been 

brought to the attention of the courts in previous litigation that 

stretches back only 27 years. Indeed, the fact that no one had 

previously raised a claim that campaign finance regulation 

“interferes with First Amendment freedoms” did not preclude 

this Court from addressing such a challenge in Buckley. See 

Buckley, 424 U.S. at 13-14. See also New York Times v. 

Sullivan, 376 U.S. 254, 268 (1964) (previous statements by the 

Court that the Constitution does not protect libelous 

publications is no bar to constitutional challenge to libel of 

government). 

B. The Freedom of the Press Is Subject to a Different 

and Higher Standard of Review. 

The court below concluded that the Paul Plaintiffs’ press 

claims were no different from those previously litigated in 

Buckley and its progeny, because, as a matter of law, there are 

“no rights under the Press Clause that are superior to or 

different than those under the other clauses of the First 

Amendment.” Supp. App. at 103sa-04sa. Thus, it reasoned, 

because “the Press Clause has largely been subsumed into the 

Speech Clause,” the Paul Plaintiffs’ claims are subject to “the 

same scrutiny” as other “First Amendment claims,” whether 

they be free speech or association. Id. at 102sa, 104sa. To 
19 

reach this conclusion, the court below disregarded a long line 

of this Court’s precedents applying a higher and different 

standard of review to the freedom of the press. 

The court below inferred from First National Bank of Boston 

v. Bellotti, 435 U.S. 765 (1978), that “in the context of an 

election law statute, as applied to a non-media corporation, the 

Supreme Court treated the Press and Speech Clauses as 

indistinct.” Supp. App. at 103sa. This is a misreading of 

Bellotti. First, the bank plaintiff in Bellotti did not raise a 

freedom of the press claim, but limited its claims to violations 

of the freedoms of speech and association. Bellotti, 438 U.S. 

at 767, 771, 776-77, 780. Second, this Court explicitly 

characterized the bank’s claim as one based upon the freedom 

of speech, without any reference whatsoever to any possible 

freedom of the press claim, and thus it applied the Buckley 

strict scrutiny test. Id. at 786-91. Third, although the Bellotti 

plurality referred to “press cases,” this Court did not — 

contrary to the claim of the per curiam opinion below (Supp. 

App. at 103sa) — engage in a careful discussion of the freedom 

of the press, much less consider the bank’s rights under the 

Press Clause to be indistinct from its claims under the Speech 

Clause. Rather, as Chief Justice Burger wrote in his concurring 

opinion, “[t]he meaning of the Press Clause, as a provision 

separate and apart from the Speech Clause, is implicated only 

indirectly by this case.” Bellotti, 438 U.S. at 802. 

No Licensing Standard. In his Bellotti concurrence, the 

Chief Justice proposed that the Press Clause, as distinguished 

from the Speech Clause, was designed to prohibit “official 

[government] restraints,” such as “licensing, censors, indices of 

prohibited books, and prosecutions for seditious libel....” Id. at 

795, 800. In particular, he noted that any effort to limit the 

reach of the Press Clause to “media corporations,” as had been 

suggested by some, would run afoul of “the abhorred licensing 
20 

system of Tudor and Stuart England — a system that the First 

Amendment was intended to ban in this country.” Id. at 801. 

To support this proposition, the Chief Justice cited Lovell v. 

Griffin, 303 U.S. 444 (1938), which found unconstitutional a 

city ordinance requiring a person to obtain a permit before 

disseminating literature because it “strikes at the very 

foundation of the freedom of the press by subjecting it to 

license and censorship.” Id. at 451. And the Court so ruled in 

Lovell without subjecting the ordinance to strict or other 

scrutiny to determine if the city had a compelling interest to 

impose its licensing system. 

In Watchtower Bible and Tract Society v. Village of Stratton, 

536 U.S. 150 (2002), this Court assessed the constitutionality 

of a licensing system requiring a mayoral permit before 

engaging in “door-to-door ... religious proselytizing [and] 

anonymous political speech and the distribution of handbills.” 

Id. at 153. Relying primarily upon its “World War II-era 

cases” (id. at 164), including Lovell (id. at 161), it placed 

special emphasis upon Schneider v. State, 308 U.S. 147, 164 

(1939), quoting therefrom as follows: 

[P]amphlets have proved the most effective 

instruments in the dissemination of opinion. And 

perhaps the most effective way of bringing them 

to the notice of individuals is their distribution at 

the homes of the people. On this method of 

communication the ordinance imposes censorship, 

abuse of which engendered the struggle in 

England which eventuated in the establishment of 

the doctrine of the freedom of the press.... To 

require a censorship through license which 

makes impossible the free and unhampered 

distribution of pamphlets strikes at the very heart 
21 

of the constitutional guarantees. [Watchtower, 

536 U.S. at 162 (emphasis added).] 

The Watchtower Court then concluded that it was 

unnecessary to resolve the “standard of review ... assessing the 

constitutionality of this ordinance” — whether strict or 

intermediate or some lesser scrutiny — because “the breadth of 

speech affected by the ordinance and the nature of the 

regulation” offends “the very notion of a free society — that 

in the context of everyday public discourse a citizen must first 

inform the government of her desire to speak to her neighbors 

and then obtain a permit to do so,” notwithstanding the 

government’s claimed countervailing interests of preventing 

fraud and other crime, or protecting privacy. Id. at 164-166 

(emphasis added). In essence, this Court in Watchtower 

concluded that the ordinary free speech or association standards 

of strict or intermediate scrutiny do not apply to a law 

“requiring a permit” to engage in “everyday public discourse,” 

even if “the issuance of permits ... is a ministerial task that is 

performed promptly.” Id. at 166. In so ruling, this Court 

recognized that, even if a government official has absolutely no 

discretion not to issue a permit, any “statute purporting to 

license the dissemination of ideas” is inherently “evil,” and 

therefore, unconstitutional on its face. Thornhill v. Alabama, 

310 U.S. 88, 97 (1940). 

Prior Restraint Standard. In addition to outlawing the 

licensing and censorship of publications and dissemination of 

ideas, the freedom of the press applies a more stringent 

standard than free speech to previous restraints upon 

publications. During their long tenures on this Court, Justices 

Black and Douglas concluded that all such restraints violated 

the freedom of the press. See New York Times Co. v. United 

States, 403 U.S. 713, 717, 720 (1971). Although their view 

never prevailed, the press doctrine of “no prior restraints” has 
22 

laid down a much higher standard than the strict scrutiny 

standard applied to free speech and association. In Near v. 

Minnesota, 283 U.S. 697 (1931), Chief Justice Charles Evans 

Hughes observed that “the chief purpose of the guaranty [of the 

liberty of the press is] to prevent previous restraints upon 

publication.” Id. at 713. While the Chief Justice 

acknowledged that “the protection even as to previous 

restraints is not absolutely unlimited,” he maintained that “only 

in exceptional cases” could the government impose such a 

restraint. Id. at 716. In the 1971 Pentagon Papers case, this 

Court ruled that “‘any system of prior restraints ... bear[s] a 

heavy presumption against its constitutionality.’” New York 

Times, 403 U.S. at 714 (internal cites omitted). To overcome 

this presumption, it was not enough for the government to show 

a “compelling state interest.” Rather, as Justice Brennan noted 

in a separate opinion, “only government allegation and proof 

that publication must inevitably, directly and immediately 

cause the occurrence of an event kindred to imperiling the 

safety of a transport already at sea can support even the 

issuance of an interim restraining order.” Id. at 726-27. See 

also id. at 730-31. 

No Government Editorial Control. Additionally, the 

freedom of the press posits editorial control in the people, not 

in the government. As Blackstone put it: “Every freeman has 

an undoubted right to lay what sentiments he pleases before the 

public: to forbid this, is to destroy the freedom of the press.” 

IV Blackstone’s Commentaries at 151-52. Indeed, the very 

purpose of prohibiting the licensing of publications is to 

prevent government officials, executive, administrative, or 

judicial, from assuming the function of editors. See Near v. 

Minnesota, 283 U.S. at 711-17. As Justice Black put it in the 

Pentagon Papers case: 
23 

In the First Amendment the Founding Fathers 

gave the free press the protection that it must have 

to fulfill its essential role in our democracy. The 

press was to serve the governed, not the 

governors. The Government’s power to censor 

the press was abolished so that the press would 

remain forever free to censure the Government. 

The press was protected so that it could bare the 

secrets of government and inform the people. 

Only a free and unrestrained press can effectively 

expose the deception in government. [New York 

Times, 403 U.S. at 717.] 

Thus, in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241 (1974), a Florida right-to-reply statute was struck down as 

an unconstitutional intrusion upon the editorial function of 

newspaper, even though the statute, by requiring that a 

candidate for election to office have access to a monopoly news 

outlet to reply to charges against him, was designed to ensure 

a more fully informed electorate. Id. at 245, 258. This Court 

reasoned that, no matter how strong the interest of the state to 

counter the entrenched economic concentration of power in 

newspapers in order to “ensure that a wide variety of views 

reach the public,” the freedom of the press guaranteed the 

private exercise of editorial discretion. Id. at 247-56. Thus, it 

is clear that the press guarantee of private editorial control is 

not subject to any overriding government interest, compelling 

or otherwise. See id. at 259-61 (White, J., concurring). 

No Forced Identity Disclosure. Concomitant with the 

press guarantee of private editorial control is the right to 

publish and disseminate anonymously. As Justice Black 

opined in Talley v. California, 362 U.S. 60 (1960), the 

constitutional right to communicate anonymously is rooted, 

firstly, in the no licensing/no censorship principle of the 
24 

freedom of the press, and only secondarily in the privacy 

protection afforded by the guarantee of free association. See id. 

at 62-65. While the anonymity protection of free association 

may be subject to overriding state interests, where applicable, 

the anonymity protection of the freedom of the press is not. 

Compare id. at 62-65 with id. at 66 (Harlan, J., concurring) and 

id. at 69 (Clark, J., dissenting). 

In Buckley v. Valeo, plaintiffs challenged the forced 

disclosure of the identities of contributors (publishers) of 

campaign literature solely on the ground that such disclosure 

violated the privacy protection afforded by free association. 

424 U.S. at 11. Therefore, this Court analyzed FECA’s forced 

disclosure provisions under the strict scrutiny standard 

applicable to free association anonymity claims. See id. at 64-

68. After Buckley, this Court has had the opportunity to review 

forced disclosure laws on four occasions. Brown v. Socialist 

Workers ‘74 Campaign Comm., 459 U.S. 87 (1982); McIntyre 

v. Ohio Elections Comm., 514 U.S. 334 (1995); Buckley v. 

Amer. Const. Law Found., 525 U.S. 599 (1999); and 

Watchtower v. Stratton, supra. In the Socialist Workers and 

American Constitutional Law Foundation cases, this Court 

applied the strict scrutiny test because the challenging parties 

had rested their anonymity claim upon freedom of association. 

Brown, 459 U.S. at 91-102; Amer. Const. Found., 525 U.S. at 

200-05. 

In McIntyre, however, an Ohio statute prohibiting the 

distribution of “anonymous campaign literature” was 

challenged as a violation of the freedom of speech. McIntyre, 

514 U.S. at 336. In his majority opinion striking down the 

Ohio statute, Justice Stevens eschewed reliance on the privacy 

protection of free association, in favor of the free press 

principle of private editorial control, relying heavily upon 

Talley and Miami Herald. Id. at 341-45, 347-49. Although the 
25 

majority claimed that it was applying “strict scrutiny” to the 

Ohio statute as in Buckley v. Valeo (id. at 347, 352-57), Justice 

Scalia, in dissent, found the majority opinion’s attempt “to 

distinguish Buckley unconvincing.” Id. at 382-84 (Scalia, J., 

dissenting). Concurring with the majority, Justice Thomas 

discarded any attempt at strict scrutiny, finding the anonymity 

principle protected, without exception, in the freedom of the 

press. Id. at 359-71. See also Watchtower, 536 U.S. at 164. 

No Discriminatory Economic Burdens. To confine the 

freedom of the press to freedom from licensing and censorship 

alone would be “too narrow a view of the liberty of the press.” 

Grosjean v. American Press Co., Inc., 267 U.S. 233, 245-47 

(1936). As the Grosjean Court observed, after the English 

monarchy gave up its licensing power to control the flow of 

information about the government, it turned to its taxing power 

to impose economic burdens upon “the publication of 

comments and criticisms objectionable to the Crown.” Id. at 

246. While the Parliament imposed stamp duties upon 

advertising revenue and printed publications “‘avowedly for the 

purpose of repressing libels,’” in reality, “the dominant and 

controlling aim was to prevent, or curtail the opportunity for, 

the acquisition of knowledge by the people with respect of their 

government affairs.” Id. at 247 (internal cites omitted). 

Writing in opposition to the infamous Stamp Act of 1765, John 

Adams noted that the Act imposed “restraints and duties” upon 

the press to “strip us in a great measure of the means of 

knowledge.” J. Adams, “A Dissertation of the Canon and 

Feudal Law,” reprinted in J. Adams, The Revolutionary 

Writings of John Adams 21, 34 (Liberty Fund, Indianapolis: 

2000). According to Adams, such taxes transferred the wealth 

of the people to the government in violation of the freedom of 

the press which was rooted in the “divine right” of the people 

“to know ... the characters and conduct of their rulers.” Id. at 

28. 
26

Anytime the government imposes an economic burden upon 

publications, whether by tax or regulation, the costs of 

publication increase, and where such an economic burden is 

discriminatorily placed upon some, and not others, it is a 

violation of the freedom of the press. Grosjean, 297 U.S. at 

240-41, 250-51; Arkansas Writer’s Project, Inc. v. Ragland, 

481 U.S. 221, 230 (1987) (“[O]fficial scrutiny of the content of 

publications as the basis for imposing a tax is entirely 

incompatible with the First Amendment’s guarantee of freedom 

of the press.”); Miami Herald, 418 U.S. at 256. (“The Florida 

statute exacts a penalty on the basis of the content of a 

newspaper. The first phase of the penalty resulting from the 

compelled printing of a reply exacted in terms of the cost in 

printing and composing time and materials....”). According to 

Grosjean and Miami Herald, the imposition of such a 

discriminatory economic burden is a per se violation of the 

freedom of the press.9 

As Justice Frankfurter so forcefully put it: 

9 Despite these press precedents, the court below concluded that Austin v. 

Michigan State Chamber of Commerce, 494 U.S. 652 (1990), “settled” the 

question that, under the First Amendment, the government may impose 

discriminatory economic burdens on the “general press,” as contrasted with 

the “‘institutional’ media,” because “the [institutional] press’ unique societal 

role ... provide[s] a compelling reason for the State to exempt media 

corporations from the scope of political expenditure limitations.” Supp. 

App. at 103sa, n.64. Such a reading of Austin is wholly unwarranted. In 

Austin, this Court did not even address the discriminatory strictures of the 

freedom of the press, much less, contrary to the court below’s claim, “settle” 

the question that the “media exemptions” contained in BCRA and FECA are 

justified by a “compelling” state interest. Id. The Austin plaintiff raised no 

freedom of the press claim, relying instead upon free speech and equal 

protection. Austin, 494 U.S. at 657-58. Thus, this Court applied the strict 

scrutiny test of Buckley and the Equal Protection Clause’s compelling state 

interest test to the plaintiff’s claims (id. at 658-66, 666-68), not this Court’s 

distinctive rules governing freedom of the press. 
27

[T]he purpose of the Constitution was not to erect 

the press into a privileged institution but to protect 

all persons in their right to print what they will as 

well as to utter it. “[T]he liberty of the press is no 

greater and no less than the liberty of every 

subject of the Queen.” Regina v. Gray, [1900] 2 

Q.B. 36, 40, and in the United States, it is no 

greater than the liberty of every citizen of the 

Republic. [Pennekamp v. Florida, 328 U.S. 331, 

364 (1946) (Frankfurter, J., concurring, emphasis 

added).10] 

C. The Freedom of the Press Is Not a Subset of the 

Freedom of Speech. 

In disregard of the rich legacy of the distinct and higher 

standard of review applied to the freedom of the press, the per 

curiam opinion decided that the freedom of the press had been 

“‘subsumed into the Speech Clause.’” Supp. App. at 102sa. In 

doing so, the court below violated the first principle of 

constitutional interpretation, which commands that: 

In expounding the Constitution of the United 

States [citation omitted], every word must have 

its due force, and appropriate meaning; for it is 

evident from the whole instrument, that no word 

was unnecessarily used, or needlessly added. 

[Wright v. United States, 302 U.S. 583, 588 

(1938) (emphasis added).] 

To rule that there is no real difference between the Speech 

and Press Clauses would not only undermine the integrity of 

10 Accord, Lovell, 303 U.S. at 451-52; Bellotti, 435 U.S. at 781, n.17, 782, 

n.18, 790-91, n.30 (majority op.), and at 798-802 (Burger, C.J., concurring). 
28

the constitutional text, but would also rest upon a profound 

misreading of history of the two freedoms. Not only was the 

freedom of the press extended to the people a century before 

the freedom of speech,11 but it was the freedom of the press, not 

the freedom of speech, that served as the American 

“palladium”12 of liberty through the war for independence and 

into the late 18th century constitution-making. Thus, in the 

early state declarations of right, the freedom of the press was 

secured to the people,13 but not the freedom of speech, the latter 

being secured only to the elected members of the state 

legislature assembled.14 Whatever security the people enjoyed 

to speak freely came solely from the protection afforded by the 

freedom of the press.15 Thus, according to this early history of 

the constitutional treatment of the freedoms of speech and of 

the press, free speech was subsumed under the freedom of the 

press, not the other way around. 

11 By the end of the 17th century, the liberty of the press was a right of all 

Englishmen (IV Blackstone’s Commentaries at 152, n.a.), whereas the 

freedom of speech was enjoyed only by members of Parliament assembled. 

English Bill of Rights, Declaration 9 (Dec. 16, 1689), reprinted in Sources 

of Our Liberties 247 (Perry, ed., Rev. ed., American Bar Foundation, 

Chicago: 1978) (hereinafter “Sources”). 

12 See P. Payson, A Sermon (Boston, 1778), reprinted in I American 

Political Writing during the Founding Era (“American Founding Era”) 

1760-1805 523, 530 (C. Hyneman and D. Lutz, eds., Liberty Press, 

Indianapolis: 1983). 

13 See, e.g., Section 12, Constitution of Virginia (1776), reprinted in 

Sources at 312. 

14 See, e.g., Articles XVI and XXI, Constitution of Massachusetts (1780), 

reprinted in Sources at 376,77. 

15 See, e.g., Section XII of the 1776 Constitution of Pennsylvania, reprinted 

in Sources at 330. 
29

Indeed, James Madison and other opponents of the Sedition 

Act of 1798 enlisted the freedom of the press to ban seditious 

libel prosecutions. See, e.g., J. Madison, Report on the Virginia 

Resolutions, reprinted in 5 The Founders’ Constitution 141, 

142 (P. Kurland and R. Lerner, eds., Univ. Chicago: 1987). It 

was not until the 20th century that the ban on seditious libel 

was linked to the freedom of speech. See Abrams v. United 

States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). 

Not until 45 years later did this Court rule that seditious libel 

laws violated “freedom of expression,” and even then it 

expressly approved of Madison’s claim that such laws violated 

the freedom of the press. Compare New York Times v. 

Sullivan, 376 U.S. at 269-72 with id. at 273-77. To rule, as the 

court below ruled, that the Press Clause has somehow been 

absorbed by the Speech Clause is, therefore, neither historically 

nor textually sound. 

Nor is the view of the court below sound as a matter of 

constitutional policy. Although the licensing system banned by 

the freedom of the press extended to all publications, no matter 

what the subject, the central design was to prevent the 

publication and dissemination of information “raising a 

disaffection to His most Excellent Majesty and His 

Government,”16 to the end of protecting the reputation of the 

current regime. T. Cooley, A Treatise on Constitutional 

Limitations 516 (5th ed. Little, Brown, Boston: 1883); Sources 

at 242-43. Not surprisingly, the leaders of the American 

independence movement realized the importance of the 

freedom of the press in ridding the colonies of the hated 

English licensing system. Thus, in the Continental Congress’ 

1774 appeal to the inhabitants of Quebec for support of the war 

16 “An Act for Preventing the Frequent Abuses in Printing Seditious 

Treasonable and Unlicensed Books and Pamphlets and for Regulating 

Printing and Printing Presses,” reprinted in 5 Founders’ Const. 112. 
30 

for independence, they stressed the “importance” of the 

freedom of the press for “its diffusion of liberal sentiments on 

the administration of Government, its ready communication of 

thoughts between subjects, and its consequential promotion of 

union among them, whereby oppressive officers are shamed or 

intimidated into more honourable and just modes of conducting 

affairs.” I Journals of the Continental Congress, reprinted in 

I American Founding Era 233-34. Indeed, nine years earlier, 

John Adams, writing against the Stamp Act, likewise praised 

the freedom of the press as essential to save the people from 

“tyrants,” warning especially against those in government who 

attempt to “wheedle[] [you] out of your liberty by ... pretences 

of politeness, delicacy or decency.” J. Adams, “A Dissertation 

on the Canon and Feudal Law,” reprinted in J. Adams’ 

Revolutionary Writings 28, 29. 

Even after a more representative form of government was 

established in America, James Madison invoked the freedom of 

the press against the Sedition Act of 1798, which he maintained 

was designed to “repress[] information and communication 

among the people” in relation to congressional and presidential 

elections: 

Let it be recollected ... that the right of electing 

members of the Government constitutes more 

particularly the essence of a free and responsible 

government. The value and efficacy of this right 

depends on the knowledge of the comparative 

merits and demerits of the candidates for public 

trust and on the equal freedom, consequently, of 

examining and discussing these merits and 

demerits of the candidates... [J. Madison, Report 

on Va. Resolutions, reprinted in 5 Founders’ 

Const. 145, emphasis added.] 
31 

St. George Tucker echoed Madison’s view, advising elected 

officials that, if they cannot stand the criticism that comes with 

elective office, they ought to retire, not impair “the absolute 

freedom of inquiry.” Otherwise, the American government will 

be “instantly changed from a federal union of representative 

democracies, in which the people of the several states are 

sovereign ... to a consolidated oligarchy..., according to the 

prevailing caprice of the constituted authorities or of those who 

may usurp them.” St. G. Tucker, “Of the Right of Conscience; 

and of the Freedom of Speech and of the Press,” reprinted in St. 

G. Tucker, Views of the Constitution of the United States with 

Selected Writings, 371, 381 (Liberty Fund, Indianapolis: 1999). 

To prevent such a transformation, Tucker maintained, “the 

absolute freedom of the press” had been especially designed, 

being far more effectual to this task than the freedom of speech. 

Id. at 382. 

This historic link between the freedom of the press and free 

elections has not been lost on this Court. In Mills v. Alabama, 

384 U.S. 214 (1966), this Court struck down an Alabama 

corrupt practices law prohibiting the solicitation of a vote for 

or against a proposition on election day on the sole ground that 

it violated the freedom of the press, and without subjecting the 

law to strict or any other kind of scrutiny. Id. at 218-20. The 

Court affirmed that the absolute freedom of the press was 

essential to “the free discussion of governmental affairs [which] 

of course includes discussion of candidates” (id. at 218): 

Suppression of the right of the press to praise or 

criticize governmental agents and to clamor and 

contend for or against change, which is all that 

this editorial did, muzzles one of the very agencies 

the Framers of our Constitution thoughtfully and 

deliberately selected to improve our society and 

keep it free. [Id. at 219.] 
32 

It is the freedom of the press, then, not free speech and 

association, that America’s founders declared to be “one of the 

great bulwarks [against] despotic governments.” See Section 

12, Virginia Constitution (1776), reprinted in Sources 312. 

Indeed, it was the “absolute” freedom of the press — 

unconstrained by government licensing, previous restraints, 

editorial control, forced disclosures, and discriminatory 

economic burdens, not contained by licensing, limitations, 

controls, disclosures, and burdens such as are imposed by 

BCRA/FECA — that was deliberately designed by America’s 

founders to protect the people from government corruption. 

III. BCRA TITLE II VIOLATES THE PAUL 

PLAINTIFFS’ FREEDOM OF THE PRESS. 

Coining a new term, “electioneering communications,” 

Congress has, by BCRA Title II, extended the reach of FECA 

beyond communications that meet the formulaic test of 

“express advocacy” as defined in Buckley v. Valeo, 424 U.S. 

at 44, n.52. Claiming that federal candidates and their 

supporters were “evading” the law by “sham issue” advertising 

on radio and television, Congress enacted Title II, to place 

under FEC control “any broadcast, cable, or satellite 

communication which ... refers to a clearly identified candidate 

for Federal office,” and which is broadcast within a specified 

period leading up to an election, or in the alternative — should 

this Court find the regulation unconstitutional — any such 

communication “which promotes or supports a candidate for 

[Federal] office, or attacks or opposes [such] a candidate.” 

New FECA § 304(f)(3)(A)(i) and (ii), Jur. St. App. at 38a-39a 

(emphasis added). In a split decision, the court below found 

the primary definition of electioneering communication 

unconstitutional, but the “backup” definition constitutional. 

Supp. App. at 12sa (Per curiam op.). Had the court below 

applied the freedom of the press standard of review, it should 
33 

have found the entire BCRA Title II regulatory scheme 

unconstitutional. 

A. Title II Is an Unconstitutional Licensing System. 

BCRA § 203(a) (Jur. St. App. at 42a-44a) purports to impose 

a broad and absolute ban on all corporate and labor union 

disbursements for “electioneering communications.” In fact, it 

does not. Rather, by its definitions of “electioneering 

communications” including its statutory and regulatory 

exemptions thereto, Title II functions as a comprehensive 

licensing system permitting some corporate and labor union 

expenditures of funds that influence federal elections, while 

denying that same privilege to others, including plaintiffs 

Citizens United, Gun Owners of America, Inc., and 

RealCampaignReform.org. 

As Judge Henderson pointed out in dissent below, BCRA 

Title II does not ban all communications that refer to a federal 

candidate within the statutory specified periods, nor all 

communications that either promote or support the election or 

defeat of a federal candidate. Supp. App. at 364sa. Indeed, as 

the FEC has expressly provided, Title II does not apply to “a 

newspaper or magazine, handbill, brochure, bumper sticker, 

yard sign, poster, billboard, and other written materials, 

including mailings; communications over the Internet, 

including electronic mail; or telephone communications.” 11 

C.F.R. § 100.29(c)(1). Second, as Judge Henderson also 

observed, Title II does not even apply to all such 

communications that are broadcast by radio and television. 

Supp. App. at 365sa-66sa. 

Third, Title II does not apply to “a candidate debate or 

forum” approved by the FEC or “to any other communication 

exempted under such regulations as the [FEC] may 
34

promulgate” so long as such exemption is consistent with Title 

II. New FECA § 304(f)(3)(B)(iii) and (iv), Jur. St. App. at 40a. 

Fourth, according to the court below, some nonprofit and 

political advocacy corporations are exempted from Title II’s 

ban on electioneering communications under FEC v. 

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

See Supp. App. at 13sa, 368sa-70sa, and 1166sa-69sa (Leon 

Op.). Accordingly, the FEC has extended its regulations 

governing the MCFL exception to electioneering 

communications, by which the FEC exercises enormous 

discretionary power over whether a nonprofit corporation 

qualifies. 11 C.F.R. § 114.10. 

By absolutely exempting some publications (11 C.F.R. § 

100.29(c)(1) and (2)), qualifiedly excepting others (11 C.F.R. 

§§ 100.29(c), 114.10), and permitting still others so long as 

they meet the registration and reporting requirements of 

FECA/BCRA (11 C.F.R. § 104.20), Title II “strikes at the very 

foundation of the freedom of the press by subjecting it to 

license and censorship.” Lovell, 303 U.S. at 451. By 

conferring special privileges upon some to publish and 

disseminate their ideas in ways not permitted to others,17 Title 

II engages in the kind of discrimination that is “reminiscent of 

the abhorred licensing system of Tudor and Stuart England — 

a system the [freedom of the press] was intended to ban from 

this country.” Bellotti, 435 U.S. at 801 (Burger, C.J., 

concurring). 

B. Title II Is an Unconstitutional Prior Restraint. 

17 For example, any incorporated television or radio broadcasting outlet may 

publish without restriction a news story, editorial or commentary containing 

an electioneering communication, but plaintiffs Citizens United, Gun 

Owners of America, Inc., and RealCampaignReform.org may not broadcast 

any electioneering communication unless they fit within the MCFL 

exception set forth in 11 C.F.R.§ 114.10. 
35

Title II imposes a prior restraint not only upon those 

corporations and labor unions banned by § 203(a) (Jur. St. App. 

at 42a) from expending money for “electioneering 

communications,” but upon those like the plaintiffs Gun 

Owners of America Political Victory Fund (“GOAPVF”) and 

Citizens United Political Victory Fund (“CUPVF”) who are 

permitted by Title II to engage in electioneering 

communications, but are not exempted from the onerous 

reporting, disclosure, and financial burdens imposed upon them 

as political committees. See new FECA § 304(f)(1) and (2), 

Jur. St. App. at 37a-38a. 

There is no question that the ban on plaintiffs Gun Owners of 

America, Inc., Citizens United, and RealCampaignReform.org 

operates as a prior restraint. Not only does the statute, on its 

face, prohibit such organizations from making any expenditures 

towards certain press activities, which are now defined as 

electioneering communications, but, by 11 C.F.R. § 114.10(a) 

and (e), the FEC requires such organizations to “demonstrat[e] 

qualified nonprofit corporation status” under MCFL by 

certification to the FEC. And the FEC is empowered to seek a 

court injunction against them should they fail to meet the 

certification requirement, or otherwise to evade the ban on 

electioneering communications. See 2 U.S.C. § 

437g(a)(6)(A).18 Such an injunctive action would also be 

available to the FEC to enforce the reporting requirements of 

Title II, as applied to GOAPVF and CUPVF should either 

18 Such restraints cannot be characterized as “time, place and manner” 

restrictions, as the per curiam opinion below maintained. Supp. App. at 

107sa, n.69. The ban on electioneering communications by corporate 

entities, coupled with the administrative regulations requiring certification 

meeting the MCFL exception, are designed “to prevent the dissemination of 

ideas or opinions thought dangerous or offensive” and, therefore, are well 

within the definition of “prior restraint.” See Blue Canary Corp. v. City of 

Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001). 
36 

disburse funds “for the direct costs of producing and airing 

electioneering communications in an aggregate amount in 

excess of $10,000 during any calendar year.” New FECA § 

304(f)(1), Jur. St. App. at 37a. Indeed, such reports are due 

within 24 hours after the first and each subsequent aggregation 

of any excess over $10,000 during each calendar year. See 

Supp. App. at 66sa. While such reports need not be made 

“until after the advertisements have been publicly distributed” 

(id. at 108sa), there is no question that they are a significant 

factor in the making of any decision to “produce,” much less 

“air,” an electioneering communication as defined by Title II. 

As Judge Henderson observed in her dissent on this point, the 

reporting and disclosure requirements laid down in Title II are 

“intrusive,” “inhibiting,” and “cumbersome.” Id. at 372sa73sa, 375sa. 

As prior restraints, BCRA § 201's reporting and disclosure 

requirements (Jur. St. App. at 37a-38a) must be justified, if at 

all, by the kind of imminent and serious danger to the survival 

of the nation as was required in the publication of the Pentagon 

Papers. See New York Times v. United States, 403 U.S. at 714, 

718, 725-27, 730. The government has made no such showing 

here, nor has it even attempted such a showing. See Supp. App. 

at 112sa-13sa, 823sa-30sa, 835sa-40sa. 

C. Title II Unconstitutionally Establishes Government 

Editorial Control. 

In the political marketplace, the First Amendment, 

particularly the freedom of the press, demands a wide berth for 

speakers and their audience, writers and their readers. Not only 

must governments refrain from paternalistic suppression of 

truthful information, but they also cannot suppress ideas on the 

ground that they may be misleading, or even “false.” See New 

York Times v. Sullivan, 376 U.S. at 271-73. Otherwise, the 
37 

government would intrude upon the constitutional right of 

private editorial control of both the publisher and his reader, the 

speaker and his listener. See Martin v. City of Struthers, 319 

U.S. 141, 141-44, 147-49 (1943). Thus, governments may not 

generally force a speaker or writer to disclose his or her identity 

as a deterrent against the dissemination of misleading, false, or 

even fraudulent ideas. See, e.g., McIntyre v. Ohio Elections 

Comm., 514 U.S. 334, 349-53 (1995). 

The court below, however, assumed the opposite. The per 

curiam opinion chided some plaintiffs for having run television 

and radio issue ads “while hiding under dubious and misleading 

names,” claiming that the First Amendment’s commitment to 

“uninhibited, robust, and wide-open” debate justified — 

indeed, compelled — government-enforced disclosure of 

speaker and publisher identities, lest such “organizations hide 

themselves from the scrutiny of the voting public.” Supp. App. 

at 106sa. Such a paternalistic view of the role of government 

in the marketplace of political ideas, as Judge Henderson amply 

demonstrated, is totally foreign to the First Amendment. Id. at 

346sa-47sa, 378sa-80sa. Indeed, forcing the disclosure of the 

names of the major publishers (the $1,000 contributors) and 

publishers is a direct abridgment of the editorial discretion 

guaranteed to the people by the freedom of the press. See 

McIntyre, 514 U.S. at 348. 

But the forced disclosure of publisher identities is not the 

only unconstitutional intrusion that BCRA Title II makes upon 

the people’s editorial prerogatives. By imposing its view on 

whether a political ad that “refers” to a clearly identified 

candidate for Federal office, or one that “supports” or 

“promotes” the election of a candidate or “attacks” or 

“opposes” such a candidate, is a “sham issue” ad, the 

government has robbed both the producer of the ad, and the 

viewer thereof, of their editorial powers secured by the freedom 
38

of the press. See Martin, 319 U.S. at 143-44. The freedom of 

the press secures to the people the right to make such editorial 

judgments for themselves. See Miami Herald, 418 U.S. at 247-

54, 256, 258. 

Additionally, Congress has conferred upon the FEC 

significant editorial judgment, through the issuance of advisory 

opinions, to determine whether an “issue ad” is a regulated 

“electioneering communication.” According to Judge Leon, 

such editorial discretion “saves” the back-up definition from a 

constitutional challenge of vagueness. See Supp. App. at 

1166sa. Judge Leon has overlooked, however, that the grant of 

such power is the very essence of censorship, wresting from the 

people the right to draw the line between “candidacy advocacy” 

and genuine issue advocacy. See id. at 1138sa-39sa.19 The 

exercise of such editorial control is per se an unconstitutional 

abridgment of the freedom of the press. See Miami Herald, 418 

U.S. at 258. 

D. Title II Imposes Discriminatory Economic Burdens. 

There is no question that Title II discriminates. The statute 

expressly exempts altogether “a news story, commentary, or 

19 The exercise of such editorial discretion by means of advisory opinions, 

under the threat of civil penalties and injunctive relief, would be even more 

pronounced under Title II’s primary definition of “electioneering 

communications.” As Judge Henderson observed, the statutory definition 

which turns on whether a communication “refers to a clearly identified 

candidate for Federal office” is open-ended. Supp. App. at 358sa-59sa. She 

is right. The FEC has already exercised its editorial powers, promulgating 

a regulation containing examples of what meets the statutory definition, 

which, unsurprisingly, is open-ended. See 11 C.F.R. § 100.29(b)(2). Under 

the Buckley regime, this Court put a tight rein on the FEC, requiring the 

“magic words” of express candidate advocacy. Under the new BCRA 

regime, the FEC is loosed as editor-at-large of political advertising related 

to federal election campaigns. 
39 

editorial distributed through the facilities of any broadcasting 

station, unless such facilities are owned or controlled by any 

political party, political committee, or candidate.” New FECA 

§ 304(f)(3)(B)(i), Jur. St. App. at 39a. Thus, media 

corporations that own television and radio stations “need not 

make separably identifiable expenditures to communicate their 

views” on the issues; rather, “[t]hey accomplish the same 

objective each day within the framework of their usual 

protected communications.” See Bellotti, 435 U.S. at 783, 

n.17. As Judge Henderson observed, BCRA exempts a “class 

of privileged speakers” from having to comply with the 

reporting and disclosure requirements of Title II. Supp. App. 

at 365sa-366sa. 

Such discriminatory treatment is an unconstitutional violation 

of the Paul Plaintiffs’ freedom of the press. The increased costs 

of compliance with the reporting and disclosure requirements 

of Title II are obvious. See MCFL, 479 U.S. at 254-55. Such 

costs operate like a “tax on knowledge,” imposing economic 

burdens that adversely impact the quality and quantity of 

communications on the issues related to campaigns for election 

to federal office. See Cloud Decl. ¶¶ 7, 10, 14, App. 83a-85a, 

89a. See also Willis Rep. ¶¶ 13c, 14, App. 60a-62a; Miller 

Rep. at 22-24, App. 33a-36a; Olson Rep. ¶ 116, App. 68a. By 

imposing these costs on some, and not on others, BCRA Title 

II crosses a fixed line of unconstitutionality. See Grosjean, 297 

U.S. at 251. 

IV. BCRA TITLE I, CREATING NEW FECA § 323(e) 

AND § 323(f) RESTRICTIONS, VIOLATES THE 

FREEDOM OF THE PRESS. 

A. New FECA § 323(e) Imposes Unconstitutional 

Editorial Controls. 
40

New FECA § 323(e) (Jur. St. App. 30a-32a.) singles out for 

special limitations the political activities of somewhat more 

than 1,100 Americans each biennium — federal office holders 

and their challengers — whether they act directly or through 

agents and organizations. Under BCRA, Congressman Paul, a 

federal office holder, could be sentenced for up to five years in 

federal prison if he were to knowingly and wilfully sign a letter 

for Gun Owners of America, Inc. soliciting funds to pay for 

radio ads criticizing identified Congressmen who voted against 

a bill sponsored by Congressman Paul.20 Congressman Paul 

testified that such limits adversely impact his “ability as a 

federal office holder and candidate for election to federal office 

to help raise money for organizations that promote [his] 

positions on policy issues.” Paul Decl. ¶ 16, App. 75a. If 

Congressman Paul is so restricted, then he is obviously 

handicapped in his ability to legislate. Also harmed is Gun 

Owners of America, Inc., which has used congressional signers 

for solicitation letters in the past, intends to do so in the future, 

and uses the funds for “issue advocacy” which BCRA classifies 

as “federal election activity.” Pratt Decl. ¶ 10, Rec. No. 60. 

See also Bossie Decl. ¶ 9, Rec. No. 60, as to the activities of 

Citizens United, and Babka Decl. ¶¶ 7-9, Rec. No. 60, as to the 

activities of RealCampaignReform.org. 

20 How these rules actually operate could not be more confusing. The 

statute clearly permits some solicitations to be made for I.R.C. § 501(c) 

organizations, subject only to the requirement that the “solicitation does not 

specify how the funds will or should be spent.” Section 323(e)(4), Jur. St. 

App. 32a. However, the FEC implemented rules that allow solicitations that 

are “not to obtain funds for activities in connection with an election,” which 

could be read to require that the solicited funds not be used for activities in 

connection with an election rather than the statutory requirement that the 

solicitation not make reference to such an intended use. 11 C.F.R. § 

300.65(a)(2). 
41 

These restrictions are not limited to uses of funds which 

affect only federal elections, but rather extend to “any 

election.” Section 323(e)(1)(B), Jur. St. App. at 31a. If BCRA 

had been in effect in 2002, Michael Cloud, the Libertarian 

candidate for U.S. Senate from Massachusetts, could have been 

fined up to $50,000 for a knowing and wilful solicitation of 

contributions to the campaign committees of his Libertarian 

colleagues who were candidates for statewide office in 

Virginia, where unlimited individual contributions are lawful 

for state races. Virginia State Board of Elections, Campaign 

Finance in Virginia (rev. July 2003), 18. 

In an opinion by Judge Henderson, the court below dismissed 

the claims of the Paul Plaintiffs on the ground that such 

restrictions on federal officeholders “do ... not exert ‘editorial 

control’ on anyone’s press activities.” Supp. App. at 460sa, 

n.175. This is not correct. Although Judge Henderson has 

conceded that “solicitation” of funds to support the 

dissemination of ideas is constitutionally protected (Supp. App. 

at 459sa), she has failed to recognize that a “cap” on such 

solicitation, however “moderate,” impairs the editorial function 

that the freedom of the press confers upon federal office 

holders and candidates. See Miami Herald, 418 U.S. at 254-58. 

Furthermore, she ignored § 323(e)(1)’s limit on “spend[ing] 

funds,” notwithstanding this Court’s affirmation in New York 

Times v. Sullivan that such expenditures are crucial to the free 

press guarantee of “‘the widest possible dissemination of 

information from diverse and antagonistic sources.’” New York 

Times, 376 U.S. at 266. 

It is difficult even to understand the Congressional purpose 

of such a limitation. According to Judge Henderson, “a federal 

candidate’s solicitation of large donations from wealthy 

individuals, corporations, and labor organizations — whether 

or not the funds are used ‘for the purpose of influencing’ a 
42

federal election — can raise an appearance of corruption of the 

candidate.” Judge Henderson relied on the defense testimony 

of two corporate CEO’s who resent being asked for 

contributions, two senators who resent asking, and a witness 

who testified that the public perceived candidate fundraising to 

be corrupt. Supp. App. at 456sa-57sa. If testimony such as this 

is the basis for § 323(e), it undermines the very purpose of the 

freedom of the press. The free press guarantee posits editorial 

control and accountability in the people, not in the government. 

See Miami Herald, 418 U.S. at 254-58. Just because the 

senators and businessmen would rather that the government 

make their editorial decisions for them does not mean that they 

can enlist Congress to deny that press right to others.21 To the 

contrary, the freedom of the press was designed to ban such 

paternalistic legislation to ensure that the people remained the 

censors of the government, not the other way around. See Arg. 

II, supra, at 30-32. 

Actually, § 323(e) operates to protect incumbents by placing 

a discriminatory economic burden upon their challengers. By 

denying to challengers the freedom to solicit, it will make it 

more difficult for interest groups, such as Gun Owners of 

America, Inc. and Citizens United, to raise funds necessary to 

attack incumbents for how they have voted, and will encumber 

greatly minor party federal candidates like Michael Cloud to 

21 Indeed, the exclusive focus of § 323(e) appears to have been incumbents, 

not their challengers, yet the prohibitions apply equally to both. Never 

discussed in the legislative history, the record below, or any of the court 

opinions was how the BCRA ban on fundraising by challengers — who 

have neither power to pressure potential donors nor valuable access to buy 

— could be justified. Senator McCain’s justification that this provision 

prevents “Federal officeholders from using their offices or positions of 

power to solicit money” as being analogous to “federal laws and ethical 

rules” simply does not apply to challengers. Statement of Sen. McCain, 148 

Cong. Rec. S2138 (Mar. 20, 2002). 
43

pool their resources with candidates of that same party seeking 

election to state office. 

B. New FECA § 323(f) Imposes Unconstitutional 

Editorial Controls. 

New FECA § 323(f) (Jur. St. App. at 32a) precludes state and 

local officeholders, or candidates therefor, from spending any 

funds except FECA/BCRA-regulated “funds” for a “public 

communication that refers to a clearly identified candidate for 

Federal office ... and that promotes or supports a candidate for 

that office, or attacks or opposes a candidate for that office 

(regardless of whether the communication expressly advocates 

a vote for or against a candidate).” Jur. St. App. at 32a-33a. 

According to 11 C.F.R. § 100.26, a “public communication,” 

means “a communication by means of any broadcast, cable or 

satellite communication, newspaper, magazine, outdoor 

advertising facility, mass mailing or telephone bank to the 

general public, or any other form of general public political 

advertising [but not] communications over the Internet.”22 

According to Judges Kollar-Kotelly and Leon, § 323(f)’s 

restrictions on state and local officeholders and candidates are 

permissible as limits on “the use of soft money ... for the 

purpose of directly influencing a federal election.” Supp. App. 

1146sa, 993sa. If § 323(f) had been in effect for the last 

election cycle, plaintiff Carla Howell, the 2002 Libertarian 

candidate for Governor of Massachusetts, would likely have 

been financially precluded from promoting plaintiff Michael 

Cloud, the 2002 Libertarian candidate for U.S. Senate from 

22 The legislative record is devoid of any debate on this provision, except 

for a brief reference in the section-by-section analysis of BCRA entered into 

the Congressional Record by Sen. Feingold, 148 Cong. Rec. S1992 (Mar. 

18, 2002). 
44 

Massachusetts, in her campaign literature or her media 

advertisements, or cooperative mailings supporting their joint 

candidacies. Cloud Decl. ¶ 20, App. 90a-91a; Howell Decl. ¶ 

7, App. 97a-98a; Paul Decl. ¶ 16, App. 75a. Further, Ms. 

Howell could not reasonably have afforded to air an 

endorsement of her candidacy by a member of Congress (who 

was a candidate for federal office) with a supportive reference 

to any such congressman, even one from another state, even 

though his constituents would never see the communication. 

Amazingly, in a Presidential election year, Ms. Howell, for 

example, could not, for lack of funding necessary to comply 

with § 323(f) attack a President running for reelection as a big 

spender of the type that she would not be if elected. 

A more comprehensive effort by Congress to ensconce the 

FEC as editor-in-chief of American election campaigns is 

difficult to imagine. By placing upon state and local 

officeholders and state and local candidates the onerous FECA 

contribution limits and reporting burdens, Congress has 

imposed an unconstitutional penalty upon such officeholders 

and candidates in their exercise of editorial discretion. See 

Miami Herald, 418 U.S. at 254-58. This burden falls especially 

hard upon minor party candidates, such as Mr. Cloud and Ms. 

Howell, because the pooling of scarce resources is essential if 

minor party state, local, and federal candidates are to get their 

message to the electorate. See Cloud Decl. ¶ 20, App. 90a. 

V. THE FECA/BCRA CONTRIBUTION LIMITS AND 

DISCLOSURE REQ UI REMENTS ARE 

UNCONSTITUTIONAL. 

A. The Paul Plaintiffs Have Standing to Challenge the 

Constitutionality of BCRA § 307. 

The district court held that the Paul Plaintiffs lacked standing 

to challenge the constitutionality of BCRA § 307. Supp. App. 
45

at 8sa. Judge Henderson opined that “no person who 

challenges either set of provisions” in BCRA increasing the 

FECA contribution limits “has standing to do so” (id. at 472sa), 

and specifically, that the “Paul plaintiffs lack standing to 

challenge BCRA’s failure to index certain contribution limits 

for inflation,” because the Paul Plaintiffs’ evidence constituted 

“mere allegations.” Id. at 475sa. This ruling is erroneous. 

First, it mistakenly assumes that the Paul Plaintiffs’ 

complaint was limited to the failure of BCRA to raise and 

index the contribution limits for PACs. 2 U.S.C. § 

441a(a)(1)(C), Jur. St. App. at 19a. The Paul Plaintiffs’ 

constitutional attack upon BCRA § 307 also contained the 

claim that the administration of the BCRA-amended FECA 

individual contribution limits violates the freedom of the press 

rights of candidates Ron Paul, Michael Cloud, and Carla 

Howell. See Paul Plaintiffs’ Amended Complaint ¶¶ 11(b), 

13(a)-(b), 16(a)-(b), 41, 43, 44, 53, and 57, App. 1a-4a, 6a. See 

also Paul Plaintiffs’ Initial Brief at 27-30, Rec. No. 65; 

Opposition Brief at 15, Rec. No. 74; and Reply Brief at 7-10. 

Second, the court below disregarded the more than ample 

evidence proffered by the Paul Plaintiffs in support of their 

claims. Addressing first their challenge to the contribution 

limits with respect to political committees, there is concrete 

evidence of injury in fact in the record. Both CUPVF’s 

Michael Boos and GOAPVF’s Lawrence Pratt represented that 

their respective political committees were injured by virtue of 

the FECA/BCRA $5,000 per-election maximum contribution 

the committees were permitted to make to federal candidates 

and committees. 2 U.S.C. § 441a(a)(2)(A), Jur. St. App. at 19a. 

Pratt Decl. ¶¶ 18-19, App. 105a-06a, Boos Decl. ¶¶ 13-14, App. 

107a-08a. Those unrebutted declarations were supported by 

testimony that their respective committees likely would receive 

more contributions if the contribution limit had been 
46 

raised/indexed for inflation, or simply did not exist at all. See 

Pratt Decl. ¶¶ 12, 18, App. 105a; Pratt Dep. at 22-25; Boos 

Decl. ¶ 14; Boos Dep. at 32-33, Rec. No. 60. The plaintiff 

committees’ FEC reports, demonstrating a history of maximum 

contributions under FECA in certain years, supported the 

testimony that higher contributions would have been made if 

allowed. Pratt Decl. ¶¶ 18-19, App. 105a-06a, and Exhibit A 

(Rec. No. 60); Boos Decl. ¶¶ 13-14, App. 107a-08a, and 

Exhibit B (Rec. No. 60). These ongoing, active multicandidate 

political committees clearly were impacted adversely by FECA, 

which limited contributions to such PACs per calendar year, as 

well as by such PACs per candidate, per election, to $5,000, 

and by BCRA, which failed to raise such contribution limits or 

to index such contributions for inflation. Such fact-based 

testimony is clearly sufficient to meet the “injury in fact” 

requirement for standing. See Lujan v. National Wildlife 

Federation, 504 U.S. 555, 561-62 (1992). 

As for the impact of BCRA § 307 upon the Paul Plaintiff 

candidates and their committees, Congressman Paul and Mr. 

Cloud both testified that their press activities were impaired by 

the BCRA/FECA individual and PAC contribution limits. See 

Paul Plaintiffs’ Proposed Findings of Fact ¶¶ 12-13, 19-20, 37-

39, 41-42 and 48-49, App. 109a-110a, and 113a-120a; Paul 

Decl. ¶¶ 12-16, App. 72a-75a; Lizardo Decl. ¶¶ 3-5, App. 77a78a; Anonymous Witness No. 1 Decl. ¶¶ 3-5, App. 79a-80a; 

Cloud Decl. ¶¶ 13-15, App. 87a-89a. Without question, such 

evidence that the individual contribution limits adversely 

impact on the quantity and quality of their campaign 

communication meets the Lujan standing test. 

In sum, the Paul Plaintiffs submitted unrebutted testimony 

that establishes, concretely and with particularity, the invasion 

of a legally protected interest, which is actual (under FECA) 

and imminent (under BCRA), there being no doubt about either 
47 

a causal connection between those injuries and the limitations 

imposed by the statutes complained of or the fact that future 

injury will be redressed by a favorable decision. 

B. The BCRA/FECA Contribution Limits and 

Disclosure Requirements Unconstitutionally Abridge 

the Paul Plaintiffs’ Rights under the Freedom of the 

Press. 

Heretofore, limits upon individual contributions have been 

sustained upon the factual assumption that “contribution 

limitations in themselves do not undermine to any material 

degree the potential for robust and effective discussion of 

candidates and campaign issues by individual citizens, 

associations, the institutional press, candidates, and political 

parties.” Buckley, 424 U.S. at 29. Thus, constitutional 

orthodoxy holds that limits on contributions, constituting only 

a “marginal restriction ... upon free communication,” are 

constitutional and to be measured solely by the First 

Amendment guarantees of free speech and free association. 

Buckley, 424 at 20-22. The evidence adduced by the Paul 

Plaintiffs, however, shatters both the factual and legal 

assumptions in Buckley, particularly when contribution limits 

are measured by the freedom of the press. 

Unrebutted testimony has established that Congressman Paul 

has labored through several campaigns hampered by limits on 

individuals who desire to contribute beyond the maximum, 

cutting into the quantity and quality of his efforts to reach the 

public to support his candidacy and his position on the issues. 

Paul Decl. ¶¶ 14-15, App. 73a-74a; Elam Decl. ¶ 5, Rec. No. 

60. In like manner, plaintiffs Cloud and Howell have been 

hampered in their recent campaigns for federal office. Cloud 

Decl. ¶ 15, App. 89a; Howell Decl. ¶ 15, App. 101a. In each of 

his races, plaintiff Paul has faced opposition from the 
48 

“institutional press” in the major markets of his congressional 

district (Paul Decl. ¶ 13, App. 72a-73a) and plaintiffs Cloud 

and Howell have been virtually ignored by the press. Cloud 

Decl. ¶¶ 25-28, App. 92a-94a; Howell Decl. ¶ 8, App. 98a. See 

also Willis Rep. ¶ 5, App. 46a-48a. Under FECA the Paul 

Plaintiffs have been, and continue to be, subject to the 

contribution limits imposed by 2 U.S.C. § 441a(a). Yet, the 

institutional press is exempted from the BCRA/FECA 

contribution limits for expenditures for news stories, 

commentaries, and editorials attacking candidates, or 

supporting the opposition. 2 U.S.C. § 431(9)(B)(i). See 

Bellotti, 435 U.S. at 781, n.17. 

Such disparate treatment of the “institutional press” and the 

Paul, Cloud, and Howell candidacies has resulted directly from 

the press exemption enjoyed by the former, first established by 

FECA (2 U.S.C. § 431(9)(B)(i)), and extended by BCRA Title 

II (new FECA § 304(f)(3)(B)(i), Jur. St. App. at 39a). By 

imposing economic burdens upon the Paul Plaintiffs, but not 

upon the institutional media, BCRA/FECA violates the 

freedom of the press which commands equal treatment of all 

forms of communicative activity: 

Freedom of the press is a “fundamental personal 

right” which “is not confined to newspapers and 

periodicals.... The press in its historic connotation 

comprehends every sort of publication which 

affords a vehicle of information and opinion.” 

[Branzburg v. Hayes, 408 U.S. 665, 704 (1972), 

quoting Lovell v. Griffin (emphasis added).] 

Additionally, the enforcement mechanism employed by 

FECA/BCRA to assure compliance with individual 

contribution limits intrude upon the editorial function of 

candidates and their campaign committees, requiring disclosure 
49

of the identities of their major “publishers,” i.e., their individual 

contributors of more than $200. See 2 U.S.C. §§ 434(b)(3), 

431(13). Over 50 percent of Americans believe that politicians 

want disclosure requirements so they can see who is giving 

money to their challengers. By a two-to-one margin, 

Americans believe that incumbents use agencies to harass the 

supporters of challengers. J. Miller, Monopoly Politics 104-

05.23 As noted in Part II above, the protective shield of 

anonymity provided by the First Amendment is not limited to 

freedom of association. Indeed, since Buckley, this Court has 

applied the anonymity principle where the claim of “privacy” 

was clearly attenuated, demonstrating that forced disclosure of 

the identities of publishers, editors, and disseminators is based 

upon the freedom of the press, not just free association. See, 

e.g., McIntyre, 514 U.S. at 341-44; Watchtower, 536 U.S. at 

166-68. 

In Watchtower, this Court noted that Talley and McIntyre 

stand for the proposition that the principle of anonymity applies 

to “persons who support causes,” as well as to persons who 

engage in the actual communicative activity promoting such 

causes. Watchtower, 536 U.S. at 166 (emphasis added). 

Indeed, those who contribute money to enable the writers and 

editors, the circulators and the speakers are their “publishers.” 

All alike are equally protected by the freedom of the press from 

forced disclosure of their identities. See McIntyre, 514 U.S. at 

360-67 (Thomas, J., concurring). To allow the government, in 

23 Moreover, incumbents have an advantage in fundraising because they are 

in a position to intimidate prospective donors once their identities are 

disclosed. They “often remind major contributors that even if they lose, 

they will be around long enough to help them or hurt them.” J. Miller, 

Monopoly Politics 79-80. As a result, some groups have a blanket policy of 

never contributing to non-incumbents in primaries and some PACs feel 

compelled to give money to candidates who hold views in direct opposition 

to their founding principles. Id. 
50 

the name of “corruption and the appearance of corruption,” to 

sacrifice this time-honored principle of anonymity is to 

disregard the central purpose of the freedom of the press, as 

articulated by Sir William Blackstone: “Every freeman has an 

undoubted right to lay what sentiments he [ not the 

government] pleases before the public: to forbid this, is to 

destroy the freedom of the press.” IV W. Blackstone’s 

Commentaries 151-52 (emphasis added). 

CONCLUSION 

For the reasons stated, the judgment of the district court 

should be reversed, Buckley v. Valeo should be either 

overturned or set aside, freedom of the press be established as 

the governing constitutional principle for evaluation of 

campaign finance legislation, and the challenged sections of 

BCRA/FECA should be stricken. 

Respectfully submitted, 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

RICHARD WOLF 

MOORE & LEE, LLP 

1750 Tysons Boulevard 

Suite 1450 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

GARY G. KREEP 

U.S.JUSTICE FOUNDATION 

Suite 1-C 

2091 E. Valley Parkway 
McLean, VA 22102 

(703) 506-2050 

PERRY B. THOMPSON 

629 High Knob Road 

Front Royal, VA 22630 

(540) 305-0012 

Attorneys for Appellants 

*Counsel of Record 

July 8, 2003 

Escondido, CA 92027 

(760) 741-8086