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SENATOR JOHN MCCAIN, REPRESENTATIVE TAMMY

BALDWIN, REPRESENTATIVE CHRISTOPHER SHAYS, AND

REPRESENTATIVE MARTIN MEEHAN,

Appellants,

v.

WISCONSIN RIGHT TO LIFE, INC.,

Appellee.

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ROGER M. WITTEN

SHANE T. STANSBURY

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

PRATIK A. SHAH

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. MOSS

DANIELLE SPINELLI

BRENT BICKLEY

KEVIN WHELAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 663-6000

Additional Counsel Listed On Inside Cover
DONALD J. SIMON

SONOSKY, CHAMBERS,

SACHSE, ENDRESON &

PERRY, LLC

1425 K Street, NW

Suite 600

Washington, D.C. 20005

(202) 682-0240

FRED WERTHEIMER

DEMOCRACY 21

1875 I Street, NW

Suite 500

Washington, D.C. 20006

(202) 429-2008

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street, NW

Washington, D.C. 20009

(202) 588-1000

ALAN B. MORRISON

Crown Quadrangle

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 725-9648

TREVOR POTTER

J. GERALD HEBERT

PAUL S. RYAN

CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., NW

Suite 650

Washington, D.C. 20036

(202) 736-2200

BRADLEY S. PHILLIPS

GRANT A. DAVIS-DENNY

MUNGER, TOLLES &

OLSON LLP

355 South Grand Avenue

35th Floor

Los Angeles, CA 90071

(213) 683-9100

CHARLES G. CURTIS, JR.

DAVID ANSTAETT

HELLER EHRMAN LLP

One East Main Street

Suite 201

Madison, WI 53703

(608) 663-7460
9*7,20 .;5,4<5689.89:

Page

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

I. APPLICATION OF SECTION 203 TO WRTL’S

ADVERTISEMENTS IS CONSTITUTIONAL UNDER MCCONNELL ................................................................ 2

II. SECTION 203 MAY CONSTITUTIONALLY BE

APPLIED TO ADS THAT ADDRESS LEGISLATIVE ISSUES IF THOSE ADS ALSO FUNCTION

AS ELECTION ADVOCACY .................................................. 8

III. THE COURT SHOULD NOT CREATE A BRIGHTLINE CONSTITUTIONAL EXEMPTION FOR

“PURE ISSUE ADS” IN THIS CASE .................................. 12

IV. WRTL AND ITS AMICI HAVE OFFERED NO

JUSTIFICATION FOR REVISITING MCCONNELL’S HOLDING THAT SECTIONS 203 AND 204

OF BCRA ARE FACIALLY CONSTITUTIONAL .............. 17

CONCLUSION.......................................................................... 20
ii

9*7,20 .;5,4=7>,9?,56-393.:

@*ABCB

Page(s)

Ashcroft v. ACLU, 535 U.S. 564 (2002) .................................. 15

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)......................................................... 7, 19

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............................. 16

Broadrick v. Oklahoma, 413 U.S. 601 (1973)......................... 19

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

(1985).................................................................................... 12

Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982).......................................................... 5

Buckley v. Valeo, 424 U.S. 1 (1976)............................... 5, 16, 19

Christian Civic League of Maine, Inc. v. FEC,

433 F. Supp. 2d 81 (D.D.C. 2006)....................................... 17

Eastern Railroad President Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961)........................... 9

FEC v. Beaumont, 539 U.S. 146 (2003).......................... 6, 7, 19

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 239 (1982)................................................... 7, 19, 20

FEC v. National Right to Work Committee,

459 U.S. 197 (1982)......................................................... 7, 20

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

765 (1978)........................................................................... 8, 9

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

2003)..................................................................................... 10

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

McCreary County v. ACLU of Kentucky, 545 U.S.

844 (2005)..................................................................................16

New York State Club Ass’n v. City of New York,

487 U.S. 1 (1988)................................................................. 19

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)....................15

United Mine Workers of America v. Pennington,

381 U.S. 657 (1965)............................................................... 9
iii

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Page(s)

United States v. IBM, 517 U.S. 843 (1996)............................. 18

United States v. Raines, 362 U.S. 17 (1960)............... 12, 13, 14

Virginia v. Hicks, 539 U.S. 113 (2003).................................... 19

BDAD*ID*CB,AVW"KCXIFAD*LGV,B

2 U.S.C. § 431.............................................................................12, 14

2 U.S.C. § 434........................................................................ 12, 14

2 U.S.C. § 441b ........................................................................... 19

26 U.S.C. § 527.............................................................................. 7

67 Fed. Reg. 51,131 (Aug. 7, 2002)........................................... 12

67 Fed. Reg. 65,190 (Oct. 23, 2002).......................................... 13

71 Fed. Reg. 52,295 (Sept. 5, 2006).................................... 13, 14

YLB@CFFAVCGI,B

Detailed Comments of BCRA Sponsors Sen. John

McCain et al. (Aug. 23, 2002), available at

http://www.fec.gov/pdf/nprm/electioneering_

comm/comments/us_cong_members.pdf......................12, 13

Holman & McLoughlin, Buying Time 2000: Television Advertising in the 2000 Federal Elections

(2001).................................................................................... 10

Krasno & Seltz, Buying Time: Television Advertising in the 1998 Congressional Elections (2000)................10
This case presents a single, narrow question: whether

three advertisements WRTL sought to broadcast just before

the 2004 election are the “functional equivalent of express advocacy.” McConnell v. FEC, 540 U.S. 93, 206 (2003). They

are, and WRTL therefore may constitutionally be required to

finance them with PAC funds. As McConnell recognized, ads

like WRTL’s—which, in the run-up to an election, criticize or

praise a candidate’s position on an issue, then urge the audience to contact the candidate about it—inevitably function as

electioneering and are within the constitutional scope of

BCRA’s funding-source restrictions. See id. at 126-127, 206.

This Court need go no further to decide this case.

The Court should reject WRTL’s and its amici’s requests

that it create a bright-line exemption for “grassroots lobbying.” WRTL’s contention that the Constitution requires a

sweeping carve-out to Section 203 of BCRA—permitting corporations and unions to use general treasury funds for “grassroots lobbying” ads, run just before elections, even if the ads

attack a candidate’s position on an issue—is squarely at odds

with McConnell’s central holding. Moreover, it would gut

Section 203 and return the election laws to their state before

BCRA, when easy circumvention of an overly formalistic rule

rendered the rule a virtual nullity. Nor is a bright-line constitutional exemption necessary to provide a standard for future

as-applied challenges. Rather, courts should engage in the

common-sense inquiry suggested in McConnell: if an ad is

the “functional equivalent of express advocacy” for or against

a candidate—and, in particular, if an ad, taken in context,

promotes, attacks, supports, or opposes a candidate—

applying Section 203 to it is constitutional.

As a last resort, WRTL and its amici ask this Court to

overrule McConnell’s holding that Sections 203 and 204 of

BCRA are facially constitutional. But they provide no justification for abandoning this Court’s considered judgment,

based on an extensive record, just three Terms ago: that

those provisions are a constitutional means of furthering

Congress’s compelling interest in preventing corporations and

unions from undermining the integrity of elections through
2

the “corrosive and distorting effects” of wealth “accumulated

with the help of the corporate form.” 540 U.S. at 205.

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WRTL’s ads are just the sort of ads this Court identified

in McConnell as the “functional equivalent of express advocacy” for or against a candidate. 540 U.S. at 206. Because

Congress has a compelling interest in ensuring that such ads

are not financed by business corporations’ or unions’ general

treasury funds, see id. at 205-206, requiring WRTL to use

PAC funds to broadcast its ads is constitutional.

A. WRTL’s radio ads denounced a “group of Senators”

who had been “using the filibuster delay tactic to block federal judicial nominees,” “causing gridlock and backing up

some of our courts to a state of emergency.” JS App. 59a, 61a.

Its television ad similarly rebuked “a group of U.S. Senators”

for “blocking qualified nominees” and “causing gridlock.” Id.

at 62a. All the ads exhorted the audience to “[c]ontact Senators Feingold and Kohl and tell them to oppose the filibuster.”

Id. at 59a, 61a, 62a. It was a matter of public record that

Feingold was part of the “group of Senators” who had filibustered judicial nominees, and whom the ads criticized. And all

the ads concluded with the instruction to “visit BeFair.org,”

id., a website that contained press releases and “e-alerts” attacking Feingold by name for his role in the filibusters. See

Intervenors’ Opening Br. 27.

These facts are sufficient to decide this case. As McConnell recognized, ads like WRTL’s—which, in the immediate

pre-election period, criticize or praise a candidate’s position on

an issue and urge the audience to contact the candidate about

it—are precisely the kind of ads at which Section 203 was

aimed, and to which its funding-source restrictions may constitutionally be applied. As this Court explained: “Little difference exist[s] . . . between an ad that urge[s] viewers to

‘vote against Jane Doe’ and one that condemn[s] Jane Doe’s

record on a particular issue before exhorting viewers to ‘call

Jane Doe and tell her what you think.’” 540 U.S. at 126-127.

Such an ad is the “functional equivalent of express advocacy”
3

against Jane Doe, id. at 206—even though it focuses on an issue and does not expressly mention Jane Doe’s candidacy or

attack her fitness for office—because it criticizes her record

and thus effectively urges that she not be reelected.

1

The only arguable difference between WRTL’s ads and

the “Jane Doe” ad is that WRTL’s ads did not expressly say

that Senator Feingold was among the “group of Senators”

they denounced. But that circumlocution does not make application of Section 203 unconstitutional. There was no ambiguity regarding the “group of Senators” the ads attacked: the

group’s membership was an objectively ascertainable fact.

Because Senator Feingold was one of the group, the ads in

fact criticized his record, as any reasonably informed listener

would have known.

2

Indeed, even a listener who was previously unaware that Feingold had participated in the filibusters could have discerned it from the ads themselves. Their

sarcastic tone, and complaints about use of a recurring procedural device that had already caused “gridlock,” forcefully

implicated Feingold.

3

 

1 WRTL claims (Br. 5) that our observation that WRTL’s ads criticized Senator Feingold’s position reveals “that quashing criticism is the true

intent behind” Section 203. To the contrary, ads that criticize or praise a

candidate’s stance on an issue, broadcast just before an election, necessarily

function as electioneering, since voters choose between candidates based in

part on the candidates’ positions on issues.

2 Feingold’s involvement with the filibusters had been widely reported

in the local media—unsurprisingly, since both WRTL itself and Feingold’s

Republican opponents had publicly attacked him for it, see, e.g., JA 70-74,

97-98; Intervenors’ Opening Br. 24-27. A search of the LEXIS-NEXIS

“Wisconsin News Publications” database reveals that at least four editorials

and fifteen news articles published in major Wisconsin news sources during

2003 and 2004 linked Feingold to his support of judicial filibusters, and at

least four other news articles discussed general Democratic support of the

filibusters or Feingold’s role in the potential selection or filibuster of judicial

nominees.

3 As the ads themselves made clear, filibusters had already occurred.

Senators had either voted for them or not; and there would have been no

logical reason to direct an ad opposing the filibusters at a Senator who had

already declined to participate in them.
4

In addition, the ads expressly directed the audience to

visit BeFair.org; indeed, a visit to the website was the only

method the ads provided for obtaining Feingold’s contact information. And BeFair.org contained material denouncing

Feingold by name for “putting politics into the court system,

creating gridlock, and costing taxpayers money” by participating in the filibusters. See Intervenors’ Opening Br. 27.

Any visitor to the site who might initially have been uncertain

whether Feingold was one of the “group of Senators” the ads

disparaged would quickly have had any confusion dispelled.

WRTL contends (Br. 58 n.68) that it is improper to examine the content of the website to which its ads expressly directed listeners, because “the FEC [cannot] combine[] different communications to create . . . electioneering communications.” That contention misses the point. The BeFair.org

website is not itself an “electioneering communication,” but

WRTL’s ads unquestionably are. In evaluating whether

those ads nevertheless are constitutionally exempt from

BCRA’s requirements, it is appropriate to consider that they

not only attack a candidate’s record—albeit employing the

thin veil of referring to him as a member of a “group of Senators”—but also expressly direct the audience to a website

that attacks him by name.

WRTL’s accusation (Br. 36) that Appellants “treat[] the

actual text of the communication as essentially irrelevant,”

“an empty vessel into which they pour discovered intent from

an external context . . . beyond the speaker’s control,” is thus

peculiarly inapt. Far from being irrelevant, the text of

WRTL’s ads—together with the undisputed fact that Feingold was one of the “group of Senators” the ads attacked—

demonstrates that the ads are the functional equivalent of

express advocacy. By ignoring the ads’ real-world meaning,

and examining the ads only from the perspective of the wholly

“untutored viewer[]” (JS App. 15a), the district court erred.

4

 

4 WRTL and its amici spend many pages reiterating that application of

Section 203 to WRTL must satisfy strict scrutiny, and contending (WRTL

Br. 29) that Appellants have improperly attempted to “shift their strict
5

B. While this case can be decided based solely on the

foregoing, ample additional evidence confirms the ads’ electioneering nature: (1) WRTL and WRTL-PAC publicly opposed Senator Feingold’s candidacy (indeed, WRTL identified

“send[ing] Feingold packing” as one of its “top election priorities”) and invoked the filibuster issue as a reason to remove

him from office; (2) Feingold’s Republican opponents made

the filibusters a major campaign issue and repeatedly attacked him for participating in the filibusters; and (3) the ads

at issue were aired not when any cloture vote was imminent,

but only after Congress had recessed, and WRTL never

sought to run them after the election. See Intervenors’ Opening Br. 24-28.

5

 

scrutiny burden to WRTL.” Appellants have never contended that strict

scrutiny is inapplicable. Here, however, this Court has already conducted

strict-scrutiny analysis in upholding Section 203 on its face. Where a statute

has already been upheld against a facial overbreadth challenge, and the

Court has affirmed that it serves a compelling governmental interest, the

plaintiff in an as-applied challenge should be required to produce evidence

demonstrating that its own particular situation falls outside the range of

constitutional applications identified by the Court. See Buckley v. Valeo,

424 U.S. 1, 74 (1976) (after upholding FECA’s disclosure requirement on its

face, noting that parties in future as-applied challenges would need to offer

specific evidence demonstrating a reasonable probability that the statute’s

application “will subject them to threats, harassment, or reprisals”); Brown

v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 99 (1982) (deciding

party’s as-applied challenge based on “proof of specific incidents of private

and government hostility toward the [minor party] and its members”); see

also McConnell, 540 U.S. at 173 (after upholding facial constitutionality of

BCRA’s restrictions on soft-money contributions to state and local party

committees, noting that “as-applied challenges remain available” if “state or

local parties can make . . . a showing” that the statute would effectively silence them). WRTL has failed to make such a showing here.

5 WRTL asserts (Br. 13) that it timed its ads to coincide with “public

interest” in the filibuster issue, but cites no record evidence showing that

public interest in the issue was present only, or primarily, during the preelection period. On the contrary, WRTL admits (Br. 15) that the filibusters

had been publicly debated since early 2003; yet WRTL did not run its ads

until after the last 2004 cloture vote, when the Senate had left for summer

recess. And WRTL never ran the ads at issue after the election, although

public debate on the issue peaked in the spring of 2005. When WRTL was

last before this Court, it attributed its sudden silence on the filibusters after
6

WRTL does not dispute these facts, but contends (Br. 59-

61) that the district court correctly refused to consider them

because doing so would have amounted to an improper inquiry into WRTL’s subjective intent. On the contrary, these

facts are objective evidence demonstrating that, in the political context in which they were aired, the ads would have functioned as electioneering. They reinforce the conclusion that is

necessarily drawn from the ads themselves: the audience for

WRTL’s ads would reasonably have understood them as criticizing Feingold—and suggesting that he was unfit for office—

because of his position on an important campaign issue.

6

C. Nor does WRTL make any plausible argument that

the PAC option would have been inadequate for funding its

electioneering communications. WRTL’s suggestion that, as

applied to it, “[t]he PAC requirement . . . is a complete ban”

(Br. 35), and its repeated reference to BCRA’s purported

“prohibition” of its advertising (e.g., Br. 5), ignore this Court’s

admonition that it “is simply wrong” to characterize the statute’s funding-source restrictions as “a complete ban.” FEC v.

Beaumont, 539 U.S. 146, 162 (2003); accord McConnell, 540

U.S. at 204. This Court has repeatedly held that the PAC option is a constitutionally sufficient means for corporations to

engage in election advocacy. That is as true for non-profit

advocacy organizations that accept money from for-profit

 

the election to a change in priorities. See Tr. of Oral Arg. at 9-10, Wisconsin

Right to Life, Inc. v. FEC, 546 U.S. 410 (2006). It now claims (Br. 16) that in

the spring of 2005, the issue had shifted from the filibusters themselves to

whether Senate rules should be changed to preclude them. But clearly the

filibusters themselves, not merely the proposed rule change, remained an

issue in the spring of 2005, when other groups spent more than $8.5 million

for advertising on the issue. FEC SJ Ex. 1 at 7-8, 29-30; Ex. 7 at 18-19, 26-

27.

6 WRTL attempts (Br. 18-22) to sow confusion regarding the FEC’s

experts’ testimony below. Although the experts acknowledged that interest groups use ads to engage in lobbying, they flatly rejected the notion that

such lobbying ads cannot also function as electioneering. Indeed, the experts concluded that WRTL’s ads would have influenced the election, with

Bailey opining that they were “obvious . . . campaign ad[s].” JA 148-149; see

also FEC SJ Ex. 1 at 35-36 (Franklin Report).
7

corporations and unions as it is for those corporations and unions themselves. See McConnell, 540 U.S. at 211; Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 664-665

(1990); see also Beaumont, 539 U.S. at 163 (upholding application of PAC requirement to contributions by non-profit

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

209-210 (1982) (NRWC) (same).

WRTL cannot show that its ability to use its PAC is any

different from that of non-profit advocacy groups this Court

has considered in the past. It argues (Br. 34) that “[w]hen a

legislative issue arises on short notice, as here, there is no

time for corporations without a PAC to organize one.” But

WRTL already had a functioning PAC in 2004, and had used

it to advocate Senator Feingold’s defeat in the 1992, 1998, and

2004 elections. FEC SJ Ex. 3 at 128-131; Ex. 4 at 125-126; Ex.

11; Ex. 12. And although WRTL states (Br. 35) that “the

PAC alternative is untenable where there is inadequate time

to raise sufficient funds by appeals to existing members,” it

points to no evidence that this was true in its case. Indeed,

WRTL raised over $150,000 for its PAC in the 2000 election

cycle. FEC SJ Ex. 10 at 2.

7

In any event, if WRTL has difficulty raising funds for its ads from its members—and must

instead rely on large donations from business corporations—

that in no way suggests that the funding-source restrictions

are unconstitutional as applied to WRTL. The very purpose

of the restrictions is to ensure that election advocacy is

funded by an organization’s members and reflects their willingness to contribute to such advocacy—not the greater resources that can be amassed by corporations. See McConnell,

540 U.S. at 205; FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238, 258 (1986) (MCFL).

8

 

7 WRTL contends (Br. 33-34 & n.44) that it would have had to pay

taxes on any funds spent on its ads had it financed them through its PAC.

That argument assumes that WRTL’s ads are not electioneering. PAC

funds spent for electioneering purposes are not taxable. See 26 U.S.C. § 527.

8

If WRTL did not wish to use its PAC, it had other means to convey

its message without contravening BCRA. See Intervenors’ Opening Br. 29-

31. WRTL does not show otherwise. It contends, for example (Br. 45), that
8

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WRTL contends that the Constitution prohibits restricting the use of corporate funds for any advertisement that

constitutes “grassroots lobbying,” regardless of its potential

to function as electioneering. WRTL thus advocates (Br. 56-

57) a sweeping constitutional carve-out to Section 203 for any

ad that (1) “focuses on a current legislative branch matter,

takes a position on the matter, and urges the public to ask a

legislator to take a particular position or action with respect

to the matter,” and (2) “does not mention any election, candidacy, political party, or challenger, or the official’s character,

qualifications, or fitness for office.” If that test is met, WRTL

contends (Br. 57), it is immaterial that the ad “say[s] that the

public official is wrong or right on the issue,” so long as it does

not expressly say he is “wrong for [the] office.”

That argument rests on premises this Court has already

rejected. McConnell made clear that “the speech involved in

so-called issue advocacy is [no] more core political speech than

are words of express advocacy.” 540 U.S. at 205. And it disavowed the notion that any sharp distinction can or should be

drawn between the two categories. “[T]he First Amendment

erects [no] rigid barrier between express advocacy and socalled issue advocacy.” Id. at 193; see also id. at 126 (“the two

categories of advertisements” are “functionally identical in

important respects”).

9

 

running the ads outside the electioneering communications period would

have been inadequate because “[g]rassroots lobbying is customarily done

when a bill or matter . . . is directly before the Congress.” That statement is

irrelevant here, where WRTL sought to run its advertisements when the

Senate was in recess, rather than when any cloture vote was imminent, and

did not resume running the ads when debate over the issue peaked in 2005

and BCRA posed no obstacle to airing them.

9 WRTL and its amici rely heavily on First National Bank of Boston

v. Bellotti, 435 U.S. 765 (1978), to argue that corporations’ ability to spend

general treasury funds on “issue advocacy” is sacrosanct. But Bellotti was

about referenda, not candidate elections, and, as the Court there explained,
9

The fallacy at the heart of WRTL’s argument is its misunderstanding of the Court’s use of the term “genuine issue

ad” in McConnell. The Court recognized that some issue ads

fitting the definition of “electioneering communication” might

not function as election advocacy, and it “assume[d] that the

interests that justify the regulation of campaign speech might

not apply” to such “genuine issue ads.” 540 U.S. at 206 n.88.

But it concluded that “[f]ar from establishing that BCRA’s

application to pure issue ads is substantial . . . the record

strongly supports the contrary conclusion.” Id. at 207.

WRTL contends that, by thus referring to “genuine issue

ads” (or “pure issue ads”), McConnell indicated that any ad

that addresses a “genuine” legislative issue, and does not employ express advocacy, necessarily falls outside Section 203’s

legitimate scope. That seriously misreads McConnell. The

Court there held that Section 203 could constitutionally be

applied to “issue ads” that are the “functional equivalent of

express advocacy.” 540 U.S. at 206. And it endorsed the

common-sense proposition that a pre-election ad saying a candidate is right or wrong on an issue is the functional

equivalent of express advocacy for or against the candidate.

 

“a corporation’s right to speak on issues of general public interest implies no

comparable right in the quite different context of participation in a political

campaign for election to public office.” Id. at 788 n.26. As McConnell observed, Bellotti thus casts no doubt on the proposition that when issue advocacy is election-related, Congress has a compelling interest in ensuring

that it is not financed with corporations’ general treasuries. See 540 U.S. at

206 & n.88.

WRTL’s reliance on the Noerr-Pennington line of cases is inapt for a

similar reason. Those cases applied the principle of constitutional avoidance

to construe the Sherman Act not to forbid entities from joining forces to

persuade the legislature or executive to take particular legal action that

could affect their competition. See Eastern R.R. Presidents Conf. v. Noerr

Motor Freight, Inc., 365 U.S. 127, 137-138 (1961); United Mine Workers of

Am. v. Pennington, 381 U.S. 657, 670 (1965). Like Bellotti, they hold that

corporate speech on matters of public concern is protected by the First

Amendment. They do not, however, establish a principle that the funding of

corporate lobbying can never be regulated under any circumstances.

McConnell makes plain that it can be, where—as here—the lobbying also

functions as electioneering.
10

See id. at 126-127 (an ad that “condemn[s] Jane Doe’s record

on a particular issue” is tantamount to “urg[ing] viewers to

‘vote against Jane Doe’”). Congress’s compelling interest in

ensuring that corporate monies do not exercise a “corrosive

and distorting” effect on federal elections justifies application

of BCRA’s funding-source restrictions to such ads. See id. at

205.

WRTL relies heavily on the terminology employed in the

two Buying Time studies that were part of the record in

McConnell. Those studies asked respondents to review advertisements broadcast during the 1998 and 2000 election cycles. One question in the studies asked respondents to code

ads as falling into one of two categories: those whose purpose

was to “generate support or opposition for a particular candidate,” and those whose purpose was to “provide information

about or urge action on a bill or issue.”

10 The studies labeled

the former category “electioneering ads,” and the latter

“genuine issue ads.”

11 WRTL contends that any ad coded in

the Buying Time studies as a “genuine issue ad” ipso facto

cannot function as election advocacy and must be constitutionally exempt from Section 203’s reach. But the studies do

not support that conclusion, and this Court in McConnell did

not rely on them for any such proposition. As both sides in

the McConnell litigation acknowledged, the studies did not

permit participants to code an ad as falling into both categories—although many ads both “urge action on a bill or issue”

and “generate support or opposition for a particular candidate.”

12 Thus, the percentage of ads the studies characterized

 

10

See Holman & McLoughlin, Buying Time 2000: Television Advertising in the 2000 Federal Elections 99 (2001); Krasno & Seltz, Buying Time:

Television Advertising in the 1998 Congressional Elections 193 (2000).

11

See McConnell v. FEC, 251 F. Supp. 2d 176, 726 (D.D.C. 2003) (Kollar-Kotelly, J.) (citing Goldstein Expert Report 24-26).

12

See Br. of Sen. McConnell at 55 (“The survey form provided no way

for a student to conclude that an ad’s ‘purpose’ was to do both.”); Br. of Intervenor-Defendants at 69 (“[R]espondents [were asked] to identify ‘the

purpose’ of each ad. Respondents were not allowed to answer ‘both.’

Yet . . . many if not most campaign ads . . . also discuss issues.”). The issue
11

as “genuine issue ads” necessarily overstates the number of

“issue ads” lacking an electioneering message, and the studies’ labeling of an ad as a “genuine issue ad” does not mean the

ad would not also function as election advocacy.

WRTL’s error is thrown into sharp relief by the ad it

chooses as its “gold standard” (Br. 62) for the “grassroots lobbying” ads it says corporations and unions must constitutionally be permitted to pay for with general treasury funds.

That ad (which WRTL calls the “PBA ad”) states, in part:

Killing late in the third trimester, killing just inches

away from full birth. Partial-birth abortion puts a

violent death on thousands of babies every year.

Your Senators, Russ Feingold and Herb Kohl voted

to continue this grizzly [sic] procedure. Contact

Senators Feingold and Kohl today and insist they

change their vote and oppose partial birth abortion.

WRTL Br. 56 n.65. To be sure, this ad addressed a current

legislative issue and did not expressly mention an election or

urge a vote against a candidate. But the notion that such an

ad would have no “cognizable electoral effect” (WRTL Br. 57),

when broadcast just before an election and targeted to the

relevant electorate, is self-evidently absurd.

13 That WRTL’s

own “gold standard” “grassroots lobbying” ad launched an

emotionally freighted attack on the record of the Senators it

discussed—and thereby plainly attacked their fitness to serve

in the Senate—is reason enough to reject WRTL’s contentions.

 

was also remarked on at oral argument. See Tr. of Oral Arg. at 125,

McConnell v. FEC, 540 U.S. 93 (2003) (“QUESTION: . . . [M]ost of these

ads, I think everybody would agree, are hybrids. Sure, they really do address issues, and there is also a very clear implication about what they want

you to do in the ballot booth.”)

13 WRTL emphasizes (Br. 7 n.11, 55-56) that the Buying Time coders

coded the PBA ad as a “genuine issue ad.” As discussed above, however,

that in no way suggests that it did not also function as electioneering.
12

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It is, of course, possible that there could be ads that fall

within BCRA’s definition of “electioneering communication,”

yet do not function as election advocacy. To decide this asapplied challenge, it suffices to recognize that WRTL’s ads do

not fall into that category. As a rule, this Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it” or “formulate a rule of constitutional

law broader than is required by the precise facts to which it is

to be applied.” United States v. Raines, 362 U.S. 17, 21 (1960)

(citation omitted); see also Brockett v. Spokane Arcades, Inc.,

472 U.S. 491, 501-502 (1985). The Court should thus decline

the invitation by WRTL and its amici to use this case to formulate a bright-line constitutional carve-out to Section 203.

As WRTL and its amici note, Congress granted the FEC

the authority to create regulatory exemptions from BCRA’s

definition of “electioneering communication,” so long as they

do not permit ads that promote, attack, support, or oppose a

candidate for federal office. 2 U.S.C. § 434(f)(3)(B)(iv) (citing

id. § 431(20)(A)(iii)). In 2002, the FEC solicited comments on

various proposed exemptions for issue advertising under that

provision. See 67 Fed. Reg. 51,131, 51,144-51,145 (Aug. 7,

2002). BCRA’s sponsors, including three of the Intervenors,

commented, noting that the FEC had the authority to adopt a

bright-line exemption for such ads, provided that “the ads exempted are ‘plainly and unquestionably’ ‘wholly unrelated’ to

an election.”

14 The sponsors concluded, however, that none of

the proposed exemptions met that standard, and instead proposed an alternative rule.

15 After considering all the com-

 

14 Detailed Comments of BCRA Sponsors Sen. John McCain et al.

(“McCain Comments”) at 8 (Aug. 23, 2002) (quoting 148 Cong. Rec. H410-

411 (Feb. 13, 2002) (statement of Rep. Shays)), available at http://www.fec.

gov/pdf/nprm/electioneering_comm/comments/us_cong_members.pdf.

15

The sponsors’ proposed exemption would have required, among

other things, that “the communication refers to the candidate only by use of

the term ‘Your Congressman,’ ‘Your Senator,’ ‘Your Member of Congress’
13

ments, the FEC decided not to adopt any exemption, including that proposed by the sponsors. It concluded that each of

the proposals could permit ads that promote, attack, support,

or oppose a federal candidate, in contravention of the statutory mandate. 67 Fed. Reg. 65,190, 65,201-65,202 (Oct. 23,

2002). Subsequently, in 2006, certain organizations, including

several amici, petitioned the FEC to initiate a rulemaking to

adopt a proposed exemption for “grassroots lobbying.” The

FEC declined to do so, noting the pendency of as-applied challenges to the statute by WRTL and the Christian Civic

League of Maine, but stated that it “may consider initiating a

rulemaking on this subject in the future.” 71 Fed. Reg.

52,295, 52,295-52,296 (Sept. 5, 2006).

A number of amici now urge this Court to adopt the 2006

proposal or a similar bright-line exemption for “grassroots

lobbying” as a constitutional mandate. That proposal fails to

appreciate the difference between a regulatory exemption

adopted by the agency charged with administering a statute

and a constitutional rule imposed by a court. The former can

be altered by the agency if experience reveals that it permits

evasion of the statute’s goals; the latter cannot be so easily

revised. Moreover, this Court sits to resolve concrete disputes, not to issue abstract pronouncements on facts not before it. The Court thus ordinarily deems it “undesirable . . . to

consider every conceivable situation which might possibly

arise in the application of complex and comprehensive legislation” so as to identify unconstitutional applications of the legislation before such cases arise. Raines, 362 U.S. at 21 (cita-

 

or a similar reference and does not include the name or likeness of the candidate in any form.” McCain Comments at 10. That was a key feature of the

proposed exemption, because “allowing the use of the candidate’s name in a

communication that runs within the 30 or 60 day window makes it almost

impossible to assure that the communication ‘plainly and unquestionably’ is

‘wholly unrelated’ to an election.” Id. Because WRTL’s ads named Senator

Feingold, they would not have satisfied the terms of the exemption. In any

event, the sponsors’ proposal was to create a regulatory exemption that

could be rescinded if it proved to allow evasion of the statute’s goals, not the

immutable constitutional exemption that WRTL and its amici ask this

Court to establish.
14

tion omitted). In the absence of facial overbreadth, “[t]he

delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical

cases.” Id. at 22. At a minimum, any attempt to articulate a

constitutional carve-out to Section 203 should await a meritorious as-applied challenge.

Moreover, the exemption amici proposed to the FEC in

2006—like WRTL’s proposed “grassroots lobbying” carveout—would seriously undermine the statutory scheme, because it would permit corporations and unions to fund ads

that promote, support, attack, or oppose candidates and

therefore function as election advocacy. An ad that “discusses

a current legislative or executive branch matter,” discusses

the candidate’s record on the matter (even if only by quoting

the candidate or reciting his or her vote on the issue), and

then urges the audience to call the candidate, see 71 Fed. Reg.

52,295, provides ample scope for electioneering. The “Jane

Doe” ad McConnell identified as the prototypical electioneering “issue ad,” see 540 U.S. at 126-127, would seemingly meet

this test, as would the PBA ad quoted above, see supra p. 11.

WRTL and its amici contend that this Court must create

a bright-line rule because the ordinary mode of case-by-case

adjudication is too uncertain and too burdensome. Those concerns are unwarranted. The absence of a bright-line rule to

govern as-applied challenges does not render those challenges

standardless. Rather, courts should apply the standard articulated in McConnell: Congress may constitutionally restrict corporate funding of ads that are the “functional equivalent of express advocacy” for or against a candidate. 540 U.S.

at 206. That is, Section 203 constitutionally encompasses

ads—regardless of their form—that function as electioneering by influencing voters’ decisions. In particular, as Congress recognized in BCRA, any ad that can reasonably be understood to promote, attack, support, or oppose a candidate—

even if it also urges action on an issue—necessarily functions

as electioneering. See 2 U.S.C. § 434(f)(3)(B)(iv) (citing id.

§ 431(20)(A)(3)).

Although the district court purported to incorporate that

statutory standard into its five-part “test” (JS App. 18a), its
15

erroneous insistence on approaching WRTL’s ads in a contextual vacuum—ignoring the real-world meaning of the ads’

language—led it to miss the obvious: that the ads attacked

Senator Feingold’s record. As this case demonstrates, that

blinkered approach is fundamentally flawed. This Court recognized in McConnell that electioneering cannot be defined

through the presence or absence of particular formal indicia.

Rather, the constitutional question is whether an ad is the

“functional equivalent of express advocacy” for or against a

candidate. 540 U.S. at 206 (emphasis added). To answer that

question, a court must undoubtedly start by examining the

text of the ad. But it must also take into account at least the

contextual evidence necessary to permit it to understand the

meaning the ad will have to its audience.

Such an approach does not require an unmanageable inquiry into subjective intent. As explained in our opening brief

(Br. 40-41), the constitutionality of applying Section 203’s

funding-source restrictions should turn not on the advertiser’s

subjective motivations, but rather on an objective examination of whether the ad will function as the equivalent of express advocacy for or against a candidate and thus implicate

Congress’s compelling interest in restricting corporate and

union funding of such ads. In particular, courts should ask

whether the ad’s audience would reasonably understand the

ad, in the context of the campaign, to promote or attack the

candidate; such an ad, broadcast just before an election, will

inevitably function as election advocacy. There is nothing unusual or improper, particularly in the context of an as-applied

challenge, about such a common-sense inquiry into the meaning of speech.

16

 

16

In other contexts, courts determining whether the First Amendment permits regulation of particular speech have examined the context

of the speech to determine the effect the speech will have on its hearer.

See, e.g., Ashcroft v. ACLU, 535 U.S. 564, 574 (2002) (speech is proscribable obscenity when “the average person, applying contemporary community standards, would find,” inter alia, “that the work, taken as a whole,

appeals to the prurient interest”) (citation omitted); NLRB v. Gissel

Packing Co., 395 U.S. 575, 617 (1969) (scope of First Amendment protec-
16

Nor does adjudication of as-applied challenges under

such a standard render the statutory scheme impermissibly

vague. For that proposition, WRTL and its amici rely on

Buckley, but there the Court’s concern was the vagueness of

a statute that regulated primary conduct. See 424 U.S. at 41-

44. Here, by contrast, Section 203 employs a bright-line, easily understandable definition of “electioneering communication,” and no speaker is compelled to “hedge and trim,” id. at

43, based on uncertainty as to whether an ad falls within the

statute’s scope. On the contrary, would-be advertisers can

readily conform their conduct to the statute: they know that

any ad meeting the definition of “electioneering communication” will trigger the statute, and that they must either fund

such an ad through a PAC, modify it so that it does not meet

the definition of “electioneering communication,” or bring an

as-applied challenge. To be sure, the outcome of every asapplied challenge may not be predictable in advance; but that

is simply the nature of adjudication, as opposed to legislation.

Moreover, McConnell concluded that BCRA’s bright-line

definition of “electioneering communication” is constitutional

in the “vast majority” of its applications. 540 U.S. at 206-207.

Any area of uncertainty will thus be small. Given the existence of a statutory bright-line definition that is well-tailored

to Congress’ goals, there is no basis for the Court to adopt a

second-tier bright-line rule to govern as-applied challenges.

Finally, WRTL and its amici have provided no reason to

believe that an inflexible bright-line rule is needed because

as-applied challenges decided on their facts will be so lengthy

 

tion of employer’s anti-union speech must be assessed in context, “tak[ing]

into account the economic dependence of the employees on their employers and the necessary tendency of the former . . . to pick up intended implications of the latter” other hearers might miss); Brandenburg v. Ohio,

395 U.S. 444, 447 (1969) (a state may proscribe speech “directed to inciting

or producing imminent lawless action and . . . likely to incite or produce

such action” in its hearers); cf. McCreary County v. ACLU of Ky., 545

U.S. 844, 866 (2005) (whether religious display constitutes government

endorsement of religion is assessed from the perspective of a “reasonable

observer . . . aware of the history and context of the community and forum

in which the religious display appears”) (citation omitted).
17

and burdensome that meritorious challenges will be mooted

before the ads can be broadcast. District courts decide

equally complicated matters on motions for preliminary injunctions every day. If an advertiser can show a likelihood of

prevailing on the merits and irreparable injury from not being

able to broadcast its ad, it should be able to obtain injunctive

relief permitting it to do so.

17 WRTL points out (Br. 65) that

in the two as-applied challenges to Section 203 brought since

McConnell, the plaintiffs were denied preliminary injunctions. But the failure of meritless as-applied challenges does

not demonstrate the inadequacy of the as-applied approach.

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WRTL and its amici urge this Court to overturn McConnell’s holding that Sections 203 and 204 of BCRA are facially

constitutional. They have offered no valid reason for doing so,

and stare decisis counsels strongly against it. “[E]ven in constitutional cases, the [stare decisis] doctrine carries such persuasive force that we have always required a departure from

 

17 Contrary to WRTL’s accusations of “scorched-earth litigation” tactics (Br. 66), the two cases litigated thus far demonstrate that such motions

for preliminary relief need not be burdensome, discovery-intensive proceedings. WRTL filed its complaint and motion for a preliminary injunction on

July 28, 2004. No discovery was conducted on that motion. The district

court held a hearing on August 12, 2004, and decided the motion that same

day—before BCRA’s electioneering-communications period began on August 15. In CCLM’s case, CCLM filed its complaint and motion for a preliminary injunction on April 3, 2006. A hearing was held, after very limited

discovery (one deposition, nine document requests and thirteen interrogatories), on April 24, 2006, and the motion was decided on May 9, 2006—again,

before the relevant electioneering-communications period began. The district court found that CCLM had not established a likelihood of success on

the merits and denied preliminary relief. See Christian Civic League of

Maine, Inc. v. FEC, 433 F. Supp. 2d 81, 87-90 (D.D.C. 2006). There is no

reason to believe district courts considering future cases cannot likewise act

promptly on motions for preliminary injunctions and take appropriate action

to prevent discovery from imposing undue burden or delay.
18

precedent to be supported by some special justification.”

United States v. IBM, 517 U.S. 843, 856 (1996).

WRTL and its amici can point to no such justification.

This Court upheld Sections 203 and 204 only after careful consideration of a voluminous record. To redecide those questions now in the context of an as-applied challenge, without

any developed record pertinent to a facial challenge, would be

unwise at best. Indeed, WRTL’s primary argument—that

Section 203 has proven practically unworkable—is based

solely on the incorrect conclusions WRTL draws from the two

as-applied challenges its counsel has brought since McConnell. WRTL identifies no changed circumstances of law or

fact that could justify overruling McConnell’s considered

holding, and none exist.

WRTL raises two specific arguments as to why this

Court should now reverse course and strike down Section 203

on its face. First, it contends (Br. 62-65) that this Court was

wrong in McConnell when it held that, “[f]ar from establishing that BCRA’s application to pure issue ads is substantial . . . the record strongly supports the contrary conclusion.”

540 U.S. at 207. But WRTL offers no new evidence that calls

that conclusion into doubt. WRTL seems to contend that Appellants have somehow led this Court astray by arguing in

McConnell that Section 203 would capture very few issue ads

that did not function as election advocacy, but now arguing

that Section 203 may constitutionally be applied to issue ads

like WRTL’s. But that argument merely begs the ultimate

question whether WRTL’s ads function as election advocacy.

Second, WRTL rehashes its argument that as-applied

challenges are too burdensome to protect speech effectively.

Br. 65-67. But WRTL identifies no case in which a court has

found that a statute is not overbroad, yet struck it down because of the risk that as-applied challenges would not provide

adequate protection in the small number of hypothetical cases

as to which application of the statute might be improper. To

the contrary, all the cases WRTL invokes reaffirm that where

a statute is not substantially overbroad, “whatever overbreadth may exist should be cured through case-by-case

analysis of the fact situations to which its sanctions, assert-
19

edly, may not be applied.” Broadrick v. Oklahoma, 413 U.S.

601, 615-616 (1973); accord New York State Club Ass’n v. City

of New York, 487 U.S. 1, 15 (1988); Virginia v. Hicks, 539 U.S.

113, 124 (2003). This Court has endorsed the same principle in

the campaign-finance context. See Buckley, 424 U.S. at 73-74

(refusing to adopt a “blanket exemption” to FECA’s disclosure requirements for minor parties based on the fear that asapplied challenges would prove too burdensome). In any

event, as discussed above, see supra Part III, there is no reason to believe that as-applied challenges, in practice, will

prove overly burdensome or otherwise inadequate.

Finally, WRTL (Br. 48) and certain amici suggest that

this Court should overrule McConnell’s holding sustaining

Section 204 of BCRA, which makes Section 203’s fundingsource restrictions on electioneering communications applicable to non-profit corporations. See 540 U.S. at 209-211.

18 They

contend that those restrictions cannot constitutionally be applied to non-profit advocacy organizations that finance electioneering communications through individual donations. The

district court never reached that question, and it is not properly presented in this case, because WRTL accepted substantial contributions from business corporations to finance the

very ads at issue here. See FEC SJ Ex. 3 at 143-145.

In any event, that argument, recycled from the McConnell litigation, should be rejected. This Court has long recognized that the PAC requirement may constitutionally be applied to non-profit advocacy groups as well as to business corporations and unions, in part because of the risk that such

groups could serve as a conduit for unregulated corporate

funds. See, e.g., Beaumont, 539 U.S. at 159-160; Austin, 494

U.S. at 664; MCFL, 479 U.S. at 264. That rationale does not

apply where a political advocacy organization without share-

 

18

Section 204 superseded Section 203(c)(2) of BCRA, which had provided an exception to the PAC requirement for 501(c)(4) groups that paid

for electioneering communications “exclusively by funds provided directly

by individuals who are United States citizens or nationals” or permanent

residents. 2 U.S.C. § 441b(c)(2); McConnell, 540 U.S. at 209 & n.90.
20

holders accepts no money from business corporations or unions. See MCFL, 479 U.S. at 264. But Congress may constitutionally require organizations, like WRTL, that do accept

corporate contributions to finance their election-related

spending through a PAC consisting of funds donated by

members specifically for that purpose and kept wholly distinct from funds raised and used for the organization’s operating costs. See, e.g., McConnell, 540 U.S. at 211; NRWC, 459

U.S. at 209-211. Because money is fungible, a contrary holding would permit an organization to solicit and accept new

donations from business corporations or unions to fund its ordinary program activities, freeing up individual contributions

that would otherwise be used for that purpose to fund its electioneering ads. As a practical matter, the corporate or union

contributions would still be funding the ads. Such a separate

regulatory scheme for 501(c)(4) organizations would also be

significantly more complicated to police and administer. As

discussed above, WRTL has made no showing that the PAC

requirement is unduly burdensome on the facts here; indeed,

it has for many years maintained a PAC and used it to fund

election advocacy. It has provided no reason, not already considered and rejected in McConnell, to hold that the Constitution requires Congress to adopt an alternative and less effective means of pursuing its goals.

19

,,

This Court should reverse the district court’s judgment

and remand for the entry of summary judgment in favor of

appellants.

 

19 A number of amici make arguments specific to groups organized under Section 501(c)(3) of the Internal Revenue Code. Because WRTL, the

plaintiff in this as-applied challenge, is a 501(c)(4) organization, this is not an

appropriate case for considering issues relating to 501(c)(3) organizations.
Respectfully submitted,

ROGER M. WITTEN

SHANE T. STANSBURY

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

PRATIK A. SHAH

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. MOSS

DANIELLE SPINELLI

BRENT BICKLEY

KEVIN WHELAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 663-6000

Additional Counsel Listed On Inside Cover

APRIL 2007