[REDACTED] 

Nos. 02-1674 et al. 

IN THE 

Supreme Court of the United States

MITCH MCCONNELL, UNITED STATES SENATOR, et al., 

Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees/Cross-Appellants. 

AND CONSOLIDATED CASES 

ON APPEALS FROM THE


UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA


BRIEF FOR INTERVENOR-DEFENDANTS 

SENATOR JOHN MCCAIN, SENATOR RUSSELL 

FEINGOLD, REPRESENTATIVE CHRISTOPHER 

SHAYS, REPRESENTATIVE MARTIN MEEHAN, 

SENATOR OLYMPIA SNOWE, AND SENATOR 

JAMES JEFFORDS 

ROGER M. WITTEN SETH P. WAXMAN 

WILMER, CUTLER & Counsel of Record 

PICKERING RANDOLPH D. MOSS 

399 Park Avenue EDWARD C. DUMONT 

New York, NY 10022 PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, DC 20037 

(202) 663-6000 

Additional counsel listed on inside cover 
BURT NEUBORNE


FREDERICK A.O. SCHWARZ, JR.


BRENNAN CENTER FOR


JUSTICE 

161 Avenue of the Americas, 

12th Floor 

New York, NY 10013 

CHARLES G. CURTIS, JR. 

DAVID J. HARTH 

MICHELLE M. UMBERGER 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street 

Suite 201 

Madison, WI 53703 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & 

OLSON LLP 

355 South Grand Ave. 

35th Floor 

Los Angeles, CA 90071 

E. JOSHUA ROSENKRANZ 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

120 West 45th Street 

New York, NY 10036 

ALAN B. MORRISON


SCOTT L. NELSON


PUBLIC CITIZEN LITIGATION


GROUP 

1600 20th Street, N.W. 

Washington, D.C. 20009 

ERIC J. MOGILNICKI 

MICHAEL D. LEFFEL 

A. KRISAN PATTERSON 

JENNIFER L. MUELLER 

STACY E. BECK 

JERROD C. PATTERSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

FRED WERTHEIMER


ALEXANDRA EDSALL


DEMOCRACY 21


1825 Eye Street, N.W. 


Suite 400


Washington, D.C. 20006


TREVOR POTTER


GLEN M. SHOR


CAMPAIGN LEGAL CENTER


1101 Connecticut Ave., N.W.


Suite 330


Washington, D.C. 20036

QUESTIONS PRESENTED 

The Bipartisan Campaign Reform Act of 2002 (BCRA), 

Pub. L. No. 107-155, 116 Stat. 81, is designed to protect the 

integrity of the federal election process, to guard against the 

corruption and appearance of corruption of federal officials 

and candidates for federal office, and to prevent a recurrence 

of the massive circumvention of longstanding regulations of 

campaign finance in the Federal Election Campaign Act 

(FECA) that occurred before enactment of BCRA. 

In light of the fact that the Solicitor General will comprehensively address the various plaintiffs’ constitutional 

objections to BCRA, the intervenor-defendants will address 

only the following questions in this brief: 

1. Whether Title I of BCRA—which prohibits national 

political parties, federal officeholders, candidates for federal 

office, and officers of national political parties from soliciting 

and using “soft money” (donations from prohibited sources 

such as corporations and labor unions or in amounts exceeding statutory contribution limits), and which restricts state 

and local political parties, state candidates, and state officials 

from using unlimited “soft money” for “federal election 

activity”—is constitutional. 

2. Whether Title II-A of BCRA—which prohibits the 

use of funds from corporate and labor union general treasuries for “electioneering communications,” and which imposes 

disclosure requirements with respect to “electioneering 

communications”—is constitutional. 

(i) 
TABLE OF CONTENTS 

Page


QUESTIONS PRESENTED................................................. i


TABLE OF AUTHORITIES................................................ v


INTRODUCTION................................................................. 1


STATEMENT ....................................................................... 3


SUMMARY OF ARGUMENT ............................................. 8


ARGUMENT....................................................................... 11


I. TITLE I OF BCRA IS CONSTITUTIONAL ...................... 11


A.	 Soft Money Has Undermined Democratic 


Institutions And Public Confidence In


Government .......................................................... 11


1. The Soft Money System In Operation........... 12


2.	 Circumvention Of FECA And The 


Use Of Soft Money To Influence


Federal Elections .......................................... 17


B.	 The Soft Money Restrictions Properly


Respond To The Dangers Of Unlimited 


Contributions ........................................................ 19


1.	 The Court Should Defer To Con­


gress’s Judgments Underlying Soft 


Money Restrictions ....................................... 19


2.	 Only Limited Judicial Scrutiny Is


Applicable To The Soft Money Provi­


sions Of Title I............................................... 20


3. The National-Party Soft Money Ban ............ 23


4.	 The State-Party Soft Money Restric­


tions ............................................................... 28


5.	 Related Anti-Corruption And Anti-


Circumvention Provisions ............................. 35


C. Political Parties Will Remain Vibrant.................. 40


(iii) 
iv 

TABLE OF CONTENTS—Continued 

Page 

II. TITLE II OF BCRA IS CONSTITUTIONAL .................... 42


A.	 Plaintiffs Aggressively Exploited The


“Express Advocacy” Test To Circumvent 


Longstanding Source And Disclosure 


Rules ..................................................................... 43


1. The Ads Themselves ..................................... 44


2.	 “Issue” Ads Were Designed To Influ­


ence Federal Elections .................................. 46


3. “Issue” Ads Concealed Sponsorship............. 52


4.	 Widespread Circumvention De­


stroyed The Efficacy Of The “Ex-


press Advocacy” Test.................................... 53


5. The Potential For Corruption....................... 54


B.	 Title II Is Narrowly Tailored To Serve 


Compelling Public Interests................................. 56


C.	 Buckley Did Not Establish “Express Ad­


vocacy” As A Constitutional Straitjacket ............ 60


D.	 Facial Invalidation Of Title II Would Be 


Especially Inappropriate...................................... 62


1.	 Plaintiffs Have Not Demonstrated


Substantial Overbreadth............................... 64


2.	 Title II Properly Reaches Nonprofit 


Corporations Unless They Qualify


For An As-Applied Exemption under 


MCFL............................................................ 73


CONCLUSION.................................................................... 75

v 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990)................................................ passim


Broadrick v. Oklahoma, 413 U.S. 601 (1973)................. 63, 64


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


(1985)............................................................................. 35


Brown v. Hartlage, 456 U.S. 45 (1982)................................. 43


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


Burroughs v. United States, 290 U.S. 534 (1934)............. 2, 32


Burson v. Freeman, 504 U.S. 191 (1992) ............................. 63


California Medical Ass’n v. FEC, 453 U.S. 182 


(1981)............................................................................. 17


Citizens Against Rent Control/Coalition for Fair 


Housing v. City of Berkeley, 454 U.S. 290 


(1981)............................................................................. 22


City Council v. Taxpayers for Vincent, 466 U.S. 


789 (1984) ...................................................................... 35


Colorado Republican Federal Campaign Commit-


tee v. FEC, 518 U.S. 604 (1996)................................. 4, 27


Ex parte Siebold, 100 U.S. 371 (1879).................................. 33


FCC v. Pacifica Foundation, 438 U.S. 726 (1978)............... 35


FEC v. Beaumont, 123 S. Ct. 2200 (2003).................... passim


FEC v. Colorado Republican Federal Campaign 


Committee, 533 U.S. 431 (2001)............................ passim 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)............................................ 61, 74, 75


FEC v. National Right to Work Committee,


459 U.S. 197 (1982)............................................ 22, 43, 61


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


765 (1978) .......................................................... 54, 57, 58


NEA v. Finley, 524 U.S. 569 (1998)............................... 35, 63


NLRB v. Catholic Bishop, 440 U.S. 490 (1979) ................... 35


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


(1964)............................................................................... 3


New York v. United States, 505 U.S. 144 (1992).................. 33

vi 

TABLE OF AUTHORITIES—Continued 

Page(s) 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000).................................... 3, 4, 12, 19, 40


Oregon v. Mitchell, 400 U.S. 112 (1970)............................... 33


Printz v. United States, 521 U.S. 898 (1997)........................ 33


Storer v. Brown, 415 U.S. 724 (1974) ................................... 63


Turner Broadcasting System v. FCC, 520 U.S. 180 


(1997)............................................................................. 20


United States v. UAW, 352 U.S. 567 (1957)........................... 3


Village of Hoffman Estates v. Flipside, Hoffman 


Estates, 455 U.S. 489 (1982).......................................... 64


Virginia v. Hicks, 123 S. Ct. 2191 (2003)....................... 62, 64


CONSTITUTION, STATUTES AND REGULATIONS 

U.S. Const. art. I .................................................................. 32


U.S. Const. art. III............................................................... 11


U.S. Const. amend. I.................................................... passim


U.S. Const. amend. X........................................................... 33


2 U.S.C. § 431(17)................................................................. 61


2 U.S.C. § 431(20)................................................................. 38


2 U.S.C. § 431(20)(A)................................................ 28, 31, 34


2 U.S.C. § 434(f)(2)(E)-(F).................................................... 74


2 U.S.C. § 434(f)(3)(B)(iv)..................................................... 65


2 U.S.C. § 441a(a)(1)(B)........................................................ 41


2 U.S.C. § 441a(a)(1)(D)........................................................ 41


2 U.S.C. § 441a(a)(4)............................................................. 23


2 U.S.C. § 441a(d)................................................................. 21


2 U.S.C. § 441b(c)(2) (superseded)....................................... 74


2 U.S.C. § 441b(c)(6)............................................................. 74


2 U.S.C. § 441i........................................................................ 4


2 U.S.C. § 441i(a).................................................................. 37


2 U.S.C. § 441i(a)(1).................................................... 7, 23, 28


2 U.S.C. § 441i(a)(2).............................................. 7, 37, 38, 39


2 U.S.C. § 441i(b)(1) ......................................................... 7, 28


2 U.S.C. § 441i(b)(2) ............................................................. 31


2 U.S.C. § 441i(b)(2)(B) ........................................................ 32


2 U.S.C. § 441i(b)(2)(C) ........................................................ 32

vii 

TABLE OF AUTHORITIES—Continued 

Page(s) 

2 U.S.C. § 441i(d)............................................................ 38, 39


2 U.S.C. § 441i(e)............................................................ 36, 37


2 U.S.C. § 441i(e)(1)(B)......................................................... 36


2 U.S.C. § 441i(e)(2).............................................................. 36


2 U.S.C. § 441i(e)(3).............................................................. 36


2 U.S.C. § 441i(e)(4).............................................................. 36


2 U.S.C. § 441i(f)................................................................... 39


2 U.S.C. § 441i(f)(2) .............................................................. 39


2 U.S.C. § 441i(e)(1)(A) ........................................................ 36


26 U.S.C. § 501(c) ........................................................... 36, 38


26 U.S.C. § 527 ..................................................................... 38


11 C.F.R. § 106.1 (2001)........................................................ 31


11 C.F.R. § 106.5 (2001)........................................................ 31


11 C.F.R. § 114.10(c), (d) ...................................................... 75


11 C.F.R. § 300.37(a)(3)(iv)............................................... 7, 38


67 Fed. Reg. 65,201-02 ......................................................... 65


144 Cong. Rec. S1048 (Feb. 26, 1998) (Sen. Glenn).............. 39


144 Cong. Rec. S977 (Feb. 25, 1998) (Sen. Levin)................ 39


144 Cong. Rec. S898 (Feb. 24, 1998) (Sen. Ford)................. 39


145 Cong. Rec. S12,661 (Oct. 15, 1999) (Sen. Fein-


stein) ............................................................................. 58


147 Cong. Rec. S252 (Apr. 2, 2001) (Sen. Thompson).......... 66


148 Cong. Rec. H409 (Feb. 13, 2002) (Rep. Shays).............. 20


S. Rep. No. 105-167 (1998)............................................ passim


The Bipartisan Campaign Reform Act of 2002, Pub. 


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

The Constitution and Campaign Reform: Hearings 


on S. 522 Before the Sen. Comm. on Rules and 


Admin., 106th Cong. 301, 2d Sess. (2000)..................... 29


MISCELLANEOUS 

Beck, D., et al., Issue Advocacy Advertising During 

the 1996 Campaign (Annenberg Pub. Pol’y Ctr. 

1997).............................................................................. 48


Buying Time 1998................................................................ 67


Buying Time 2000................................................................ 67

viii 

TABLE OF AUTHORITIES—Continued 

Page(s) 

Common Cause, You Get What You Pay For (2000)........... 12 

Cook & Co. Political Analysis, The Cook Political 

Report 2000: The Race for the White House 

(2000)............................................................................. 51 

Foley, “Narrow Tailoring” Is Not the Opposite of 

“Overbreadth,” 2 Elec. L. J. (forthcoming Oct. 

2003), available at http://www.liebertpub.com 

/ELJ/Foley1.pdf............................................................ 59 

La Raja, R., Sources and Uses of Soft Money, in A 

User’s Guide to Campaign Reform (G. Lubenow ed., 2001)................................................................ 19 

Root, Elihu, Political Contributions By Corporations (Sept. 3, 1894), in Addresses on Government and Citizenship (R. Bacon & J. Scott eds., 

1916)................................................................................ 1 
INTRODUCTION 

More than a century ago, Elihu Root decried massive 

donations to political parties and candidates as 

a constantly growing evil in our political affairs, 

which has . . . done more to shake the confidence of 

the plain people of small means in our political institutions[] than any other practice which has ever obtained since the foundation of our government. And 

I believe that the time has come when something 

ought to be done to put a check upon the giving of 

$50,000 or $100,000 by a great corporation toward 

political purposes, upon the understanding that a 

debt is created from a political party to it; a debt to 

be recognized and repaid with the votes of representatives in the legislature and in Congress, or by 

the actions of administrative or executive officers 

who have been elected in a measure through the 

use of the money so contributed.1 

The concerns about the vitality of our democratic system that lie at the heart of this case are thus “neither novel 

nor unfamiliar.” SA 479(K).2 Congress and the States have 

long wrestled with the problem that “aggregated capital 

[can] unduly influence[] politics, an influence not stopping 

short of corruption.” FEC v. Beaumont, 123 S. Ct. 2200, 

2205 (2003). To protect democracy, they have limited the 

size of campaign contributions; mandated public disclosure of 

contributions and expenditures; and required corporations 

and unions to use only funds voluntarily raised from individuals to make campaign-related contributions and expen1 Elihu Root, Political Contributions By Corporations (Sept. 3, 1894), 

in Addresses on Government and Citizenship 143-44 (R. Bacon & J. Scott 

eds., 1916). 

2 Citations to “SA” refer to the district court’s opinions reprinted in 

the supplemental appendix to the jurisdictional statements. We use the 

judges’ initials (H, L, K) to refer to their individual opinions, and “PC” for 

the per curiam opinion. “DEV” refers to the defendants’ exhibit volumes 

in the court below, and “IER” to the intervenors’ excerpts of record. 
2 

ditures. This Court has sustained many such measures. See 

id.; FEC v. Colorado Repub. Fed. Campaign Comm., 533 

U.S. 431 (2001) (Colorado II); Austin v. Michigan Chamber 

of Commerce, 494 U.S. 652 (1990); Buckley v. Valeo, 424 U.S. 

1 (1976) (per curiam); Burroughs v. United States, 290 U.S. 

534 (1934). 

In the 1970s, after the public learned that its government officials had granted favors, positions, and preferential 

access to campaign donors, Congress acted to restore integrity to a system that had suffered a dramatic loss of public 

confidence. Congress did not attempt to remove private 

money from politics. But it did seek to ensure that federal 

officials would not be induced to heed the wishes of $100,000 

donors, donors would not feel compelled to make massive 

contributions as insurance against official retaliation, corporations and unions would not use their war chests to advance 

the election of federal candidates in the hope of gaining influence with them, and citizens would not lose faith in their 

representatives out of concern that they were more responsive to the large moneyed interests that had assisted their 

election than to their constituents—or the public interest. 

Yet history teaches that political actors and those who 

control aggregations of wealth are always “test[ing] the limits of the current law,” Beaumont, 123 S. Ct. at 2207, and a 

generation later, Congress recognized that its work was on 

the brink of collapse. Although the Federal Election Campaign Act (FECA) worked well for a time, its effectiveness 

was undermined when the Federal Election Commission 

(FEC) created significant loopholes, which players of the 

political money game relentlessly exploited. By the 2000 

elections, political actors had ceased to observe anything like 

a prohibition against contributions or expenditures from 

corporations or unions, or against contributions in excess of 

statutory limits, for the purpose of influencing federal elections. The Bipartisan Campaign Reform Act (BCRA) is 

Congress’s attempt to restore FECA to working order. 

The plaintiffs’ position is that FECA, having fallen (or, 

more accurately, having been pushed), must, like Humpty 

Dumpty, remain forever smashed. They argue that the 
3 

Constitution permits only rules that would be ineffectual to 

counteract either the reality or the perception of a system in 

which donors give massive assistance to political parties on 

the understanding that they create—as Elihu Root stated— 

“a debt to be recognized and repaid.” In their view, Congress, this Court, and the public must accept a political system in which an overwhelming majority of Americans believe that Members of Congress disproportionately heed the 

views of large donors to political parties—even if those 

views do not coincide with what most constituents want, or 

what a Member thinks is best for the country. See SA 626-

28(K), 1289-92(L); Mellman/Wirthlin Rep. 6-9 (JA 1564-69). 

As this Court has observed, “[l]eave the perception of 

impropriety unanswered, and the cynical assumption that 

large donors call the tune could jeopardize the willingness of 

voters to take part in democratic governance.” Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 390 (2000). Nothing in 

BCRA casts the least doubt on “our profound national commitment to the principle that debate on public issues should 

be uninhibited, robust, and wide-open.” New York Times 

Co. v. Sullivan, 376 U.S. 254, 270 (1964). But BCRA serves 

public interests every bit as profound: “the integrity of our 

electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. 

This case thus raises issues not less than basic to a democratic society.” United States v. UAW, 352 U.S. 567, 570 

(1957). 

STATEMENT 

1. The Problem Congress Faced. FECA carried forward provisions, first enacted between 1907 and 1947, prohibiting corporations and unions from using their general 

treasury funds to make contributions or expenditures in 

connection with federal election campaigns. FECA permitted corporations and unions to establish separate segregated 

funds (PACs), to solicit voluntary contributions to those 

PACs from related individuals, and to use the PAC funds in 

federal campaigns. It limited other campaign contributions 
4 

and expenditures, required expanded disclosure of both, and 

established the FEC to enforce the law. 

In Buckley v. Valeo, this Court generally upheld 

FECA’s limits on contributions to candidates and political 

committees, 424 U.S. at 23-38; struck down its limits on expenditures, id. at 39-51; and upheld its disclosure requirements, id. at 60-84. In sustaining disclosure of expenditures 

by persons other than candidates or political committees 

(such as political parties), the Court construed the term “expenditure” to “reach only funds used for communications 

that expressly advocate the election or defeat of a clearly 

identified candidate.” Id. at 79-80. As examples, the Court 

pointed to words of “express . . . advocacy” such as “vote 

for” or “vote against.” Id. at 80 n.108 & 44 n.52. 

a. Soft Money. Two years after Buckley, the FEC embraced a legal fiction under which political parties effectively 

became able to use funds raised directly from corporations 

and unions and from individuals in amounts exceeding 

FECA’s contribution limits (“soft money”) for activities affecting federal elections. Under this loophole, political parties could use a combination of “hard” (FECA-compliant) 

and soft money for mixed-purpose activities that influenced 

both federal and state elections. FEC Adv. Op. 1978-10. 

This fiction allowed political parties to raise and use unlimited soft money to influence federal elections.3 

National-party soft money spending grew from $19 million in 1980 to $80 million in 1992, by which time a significant 

3 Plaintiffs object to the term “soft money.” Congress, however, 

used that term to refer to funds that are not subject to the limitations, 

prohibitions, and reporting requirements of FECA. 2 U.S.C. § 441i (“Soft 

money of political parties”). Members of this Court have used the term 

the same way. Colorado Repub. Fed. Campaign Comm. v. FEC, 518 U.S. 

604, 616 (1996) (opinion of Breyer, J.) (Colorado I); Shrink Mo., 528 U.S. at 

398 (Stevens, J., concurring). Plaintiffs prefer terms such as “state” or 

“state-regulated” money, but those locutions are premised on the very 

fiction that BCRA was enacted to address—that the hundreds of millions 

of dollars donated to parties’ “non-federal” accounts were not used to influence federal elections. See pp. 17-19, 25-26. 
5 

share was being spent to influence federal elections. SA 32-

35(PC); Mann Rep. 15-17 (JA 1548-51). The trend accelerated in the 1996 elections, when the national parties ran socalled “issue” ads prominently featuring presidential candidates, but funded in large part with soft money on the theory that they used no words “expressly advocating” any 

candidate’s election. SA 35-37 & nn.14-15(PC), 494-95(K), 

1191(L). By the 2000 election cycle, their soft money activity 

reached $498 million—42% of their total spending. SA 

38(PC). 

The FEC’s rules permitted state parties to use a greater percentage of soft money than national parties in funding 

mixed-purpose activities. The parties gained leverage by 

raising soft money at the national level, but transferring it to 

state parties to fund activities—including “issue” ads—that 

influenced federal elections. SA 33-37(PC), 517-19(K), 1231-

34(L). In 1996 the national parties transferred to state parties $115 million in soft money—two thirds of state-party 

soft money expenditures. By 2000, the amount rose to $280 

million—more than half the soft money the national parties 

raised. SA 490-91(K), 1188-89(L). 

To raise a half-billion dollars, the national parties turned 

to large donors. In the 2000 election cycle, 60% of their soft 

money came from just 800 donors—including 435 unions, 

corporations, and other organizations, and 365 individuals— 

each contributing at least $120,000. SA 287(H), 1189(L). 

These developments struck at the fundamental principle, 

sustained by this Court, that the threat of actual or apparent 

corruption can be minimized by regulating the source and 

amount of contributions made to influence federal elections. 

b. “Issue” Advocacy. Like the parties, corporations, 

unions, and others began sponsoring advertisements that 

supported or opposed federal candidates but avoided words 

of “express advocacy.” Following the lead of the AFL-CIO, 

corporations, unions, and interest groups spent millions of 

dollars in 1996 from their treasury funds and dues (not PAC 

funds) to pay for broadcast ads directed at specific federal 

candidates and aired in their districts in the final weeks before their elections. SA 38-40(PC), 678-99(K), 1316-17(L). 
6 

The record “unequivocally establishes” that despite the absence of “magic words,” such ads “not only [were] crafted for 

the specific purpose of directly affecting federal elections, 

but [were] very successful in doing just that.” SA 1161(L); 

see SA 810-21(K). Like soft money donations to parties, 

candidate-focused “issue” ads undermined core aspects of 

the campaign finance regime upheld in Buckley. They allowed corporations and unions to intervene in federal elections using general treasury funds rather than PAC funds, 

and enabled groups and individuals to make campaign expenditures without meeting FECA’s disclosure requirements. SA 39(PC), 657-58(K), 1306-08(L). 

2. Congress’s Response. BCRA responds to these 

wholesale evasions in a direct but tailored way. The details 

of BCRA are covered elsewhere. We note, however, that 

plaintiffs’ attacks on BCRA studiously ignore its core function of restoring public confidence in federal officials and 

elections by closing the soft money and “issue” ad loopholes. 

Instead, they imagine obscure applications of BCRA, and 

then suggest those applications lie at the heart of the law; 

they stretch to find the most draconian possible interpretation of the law, only then to complain of its harsh effect; and 

most significantly, they repeatedly mischaracterize the law’s 

provisions, and thus attack something that does not exist. 

For example, the political parties highlight their four 

most compelling examples of BCRA’s supposed excesses on 

the first page of their brief. None is addressed to BCRA’s 

core provisions, and each is premised on a misstatement of 

the law. First, the parties assert it is a crime under BCRA 

for “the Chairman of the RNC . . . to send a fundraising letter on behalf of his party’s . . . gubernatorial candidate in 

[an] off-year election.” But the FEC and Justice Department have made clear that national-party officials may solicit hard money on behalf of any candidate—federal, state, 

or local—and their parties also remain free to contribute 
7 

hard money to federal, state, and local candidates.4 Second, 

they assert that California state parties may not donate 

even hard money to PACs formed to support or oppose the 

current effort to recall the Governor. In fact, the relevant 

restriction has no application to the recall election, which the 

State of California has scheduled for October 7, 2003, five 

months away from any federal election. 5 Third, they assert 

that BCRA subjects to “pervasive federal regulation voter 

registration and get-out-the-vote . . . efforts by state and local parties.” Actually, BCRA does not regulate—much less 

“pervasive[ly]” regulate—these activities, but merely addresses the size and source of contributions used to finance 

them, when they are conducted in connection with federal 

elections.6 Most bewilderingly, plaintiffs assert that BCRA 

makes it a crime for the national parties to work with their 

state counterparts “to design, fund, and implement statewide voter mobilization programs.” In truth, BCRA does 

not prevent national and state parties from coordinating 

their activities for such efforts, so long as the national parties do not solicit soft money or control its expenditure.7 

Plaintiffs’ characterizations of BCRA’s new definition of 

“electioneering communications” are equally flawed. They 

persistently contend (e.g., McConnell Br. 39) that the electioneering communications provisions “seek to prohibit core 

political speech.” These provisions ban no speech. Corporations and unions remain free to run federal campaign ads, as 

4 2 U.S.C. § 441i(a)(1), (2) (national parties and their officers prohibited from soliciting funds that are not “subject to the limitations, prohibitions, and reporting requirements of this Act”); see pp. 36-37. 

5 11 C.F.R. 300.37(a)(3)(iv) (state parties may transfer funds to state 

political committees supporting only state or local candidates and not engaging in federal election activity); see p. 38 n.29. 

6 2 U.S.C. § 441i(b)(1) (amounts expended for federal election activity “shall be made subject to the limitations, prohibitions, and reporting 

requirements of this Act”); see pp. 27-28. 

7 2 U.S.C. § 441i(a)(1) (national party may not “solicit, receive, or direct to another person . . . or spend” soft money). 
8 

long as they pay for the ads from PAC funds voluntarily contributed by individuals for that purpose. 

Most fundamentally, plaintiffs mischaracterize BCRA as 

representing an epochal change in the law. In truth, BCRA 

merely strives to restore the efficacy of longstanding federal 

campaign finance laws, and to put an end to the evasion that 

has made a mockery of the law and left the public to believe 

that democracy is for sale. 

SUMMARY OF ARGUMENT 

BCRA’s aim is to restore public faith in federal officeholders and elections by closing the soft money and “issue” 

ad loopholes that had, in recent years, eviscerated the federal campaign finance laws. Prior to enactment of BCRA, 

corporations, unions, individuals, and political parties routinely evaded long-established contribution limits and source 

restrictions. Hundreds of millions of dollars of contributions 

were used to influence federal elections without complying 

with federal standards. Similarly, by running campaign ads 

that avoided words of “express advocacy,” corporations and 

unions routinely evaded federal restrictions on the use of 

their general treasury funds to influence federal elections, 

injecting many millions of dollars more of unregulated 

money into federal elections. BCRA responded to the collapse of the FECA regime in a considered and measured 

way. The law should be sustained in its entirety. 

I. Title I restores efficacy to the FECA structure of 

source prohibitions, amount limits, and disclosure requirements for contributions used to influence federal elections. 

It does so by banning soft money contributions to national 

political parties, regardless of how the money is used, and 

restricting state parties’ use of soft money for specified “federal election activity.” It imposes no spending limits on 

anyone, but rather addresses the risk that large political 

contributions will foster actual or apparent corruption of 

federal officeholders. Upholding Title I thus requires no 

more than reaffirming the principle of Buckley v. Valeo that 

Congress may limit contributions in a real and effective 

manner. 
9 

The Members of Congress who enacted BCRA correctly 

concluded, based on a substantial record and their own experiences, that the corrupting potential of soft money donated to national parties stems from the way in which it is 

raised, and from the close relationship between national parties and federal officeholders and candidates. Rather than 

insulating their officeholders from this corrupting potential, 

national parties acted as the conduit for that corruption, 

bringing soft money donors and officeholders together and 

urging officeholders to raise soft money and to entertain the 

policy wishes of the donors. Congress recognized that this 

system generated enormous damage to public confidence in 

our democratic system and public officials, and enabled candidates to engage in massive circumvention of FECA’s limits on sources and amounts of contributions. 

Congress knew that national parties had used state affiliates to deploy soft money for activities affecting federal 

elections. It understood that any effective reform measure 

had to address state-party use of soft money in federal elections, lest the problem immediately regenerate at the state 

party level. Congress delineated four categories of activities 

undertaken by state parties with the largest impacts on federal elections and determined they should be paid for with 

FECA-compliant money. Congress may protect the integrity of federal elections and officeholders in this manner, 

particularly since BCRA leaves state parties otherwise free 

to spend whatever money they may raise under state law. 

The balance of Title I guards against corruption and avoidance of the soft money restrictions by other well-tried devices known to Congress. 

II. Title II addresses the problem of candidate-focused 

“issue” ads. It bans no speech. It only restricts the source 

of the funds used for those ads and requires disclosure in 

certain circumstances. 

Before BCRA, unions, corporations, and others routinely created ads to support or oppose specific candidates, 

while avoiding “magic words” of “express advocacy.” They 

hired campaign consultants and pollsters to refine electioneering messages in these ads, and made clear in their own 
10 

statements what they were doing. These ads shared characteristics with parties’ and candidates’ ads that confirm their 

electioneering nature: they named specific candidates; they 

were concentrated in the last weeks before an election; and 

they were targeted to close races in a partisan way. The 

sponsors of these ads fundamentally undermined FECA’s 

source and disclosure rules for independent campaign expenditures—in reality, they conducted electioneering with 

unlimited corporate and union treasury funds, and without 

disclosing the sources of the funds. Their techniques also 

created opportunities for corruption in the exchange of “issue” ad campaign support for political favors. 

Title II responds narrowly and objectively to these 

problems by defining a new category of “electioneering 

communications” with specific reference to the demonstrated dimensions of the problem. Imposing source and 

disclosure rules on such ads serves the same compelling interests that sustain those rules as applied to “express advocacy”: preventing the distortions that arise when corporate 

and union treasuries become political “war chests”; providing information to the voting public; and preventing circumvention of other rules. Title II also serves the compelling 

First Amendment interest in using clear, objective statutory 

lines in this sensitive area. And it imposes only modest burdens—disclosure rules, and the requirement that corporations and unions fund some ads during the immediate preelection period with PAC funds. 

Buckley did not codify “express advocacy” as a constitutional test; it held only that a statutory line defining independent campaign spending should be clear, and directed at 

advocacy relating to the campaigns of particular federal candidates. Title II satisfies those precepts. Nor is Title II 

overbroad. It imposes only limited burdens of a sort this 

Court has already recognized may, in appropriate circumstances, be imposed even on political speech entitled to 

stringent protection under the First Amendment. That Title II applies only to limited categories of speech during the 

period just before elections is a virtue, not a tailoring flaw. 

Plaintiffs’ attack on a small portion of the empirical evidence 
11 

supporting Title II is misguided and irrelevant, and their 

examples of past ads supposedly demonstrating overbreadth 

offer them little support. Additional arguments raised by 

ideological nonprofit organizations do not support either the 

facial invalidation of any part of Title II or a blanket exemption.8 

ARGUMENT 

I. TITLE I OF BCRA IS CONSTITUTIONAL 

A. Soft Money Has Undermined Democratic Institutions And Public Confidence In Government 

Since the Tillman Act of 1907, which prohibited corporate campaign contributions, Congress has endeavored to 

prevent the corruption and appearance of corruption of federal elected officials by reducing their dependence on large 

campaign contributions. Congress’s concerns, as relevant 

now as they were in the time of Theodore Roosevelt, are 

that public officials will be particularly attentive to the interests of those who make large contributions to candidates 

and their political parties, and that citizens will perceive 

such official responsiveness to large donors as characteristic 

of a degraded system that does not deserve public confidence. Whether or not officeholders in fact yield to the 

temptation to assist large donors, “the opportunity for abuse 

inherent in the process of raising large monetary contributions” is plain. Buckley, 424 U.S. at 30. 

The 1990s made clear that the temptation facing politicians to assist large donors is not limited to helping those 

who have contributed directly to their own campaigns. The 

political fortunes of officeholders and candidates are intertwined with the fortunes of their parties. Green Rep. 7-10 

(JA 1195-1200). The Members of Congress who enacted 

BCRA learned through personal experience that office8 The NRLC plaintiffs argue (Br. 45-49) that intervenor-defendants 

lack Article III standing to defend the constitutionality of BCRA. The 

Court should reject that contention for the reasons set forth in the district 

court’s order of May 3, 2002. NRLC Reply Br. App. 4a-6a. 
12 

holders also have a powerful incentive to assist those who 

have contributed generously to their closest allies—their 

national and state political parties. 

1. The Soft Money System In Operation 

The political parties argue that Title I responds to a 

phantom—that the spectacle of 93 entities contributing 

$100,000 or more in soft money to both major national political parties in the 2000 election cycle alone does not even 

raise an appearance of corruption. 9 Although this Court has 

recognized that little evidence is required to support the 

self-evident proposition that “large contributions” pose a 

threat of actual or apparent corruption, see Shrink Mo., 528 

U.S. at 391, the record overwhelmingly establishes the reasonableness of Congress’s conclusion that soft money had 

fundamentally undermined public confidence in our democratic system and elected officials. That evidence includes 

testimony from current and former Members of Congress, 

current and former party officials, and experts, as well as 

many thousands of pages of documents, press reports, and 

studies chronicling how those exploiting the soft money 

loophole made a mockery of federal campaign finance laws 

and their goal of minimizing actual or apparent corruption of 

federal officeholders. 

There was no mystery in the way the soft money system worked. As Members of Congress who voted to end 

that system knew from personal experience, political parties 

routinely offered donors more extensive and more personal 

access to federal officeholders in exchange for larger donations. Often the parties explicitly offered donors opportunities to exchange views with officeholders on matters of policy in return for large contributions. On other occasions, the 

parties offered donors the opportunity to introduce themselves to officeholders for later follow-up. The most no9 Common Cause, You Get What You Pay For (2000) (analysis of 

FEC reports showing 93 donors gave $100,000 or more to both Democrats 

and Republicans between January 1, 1999 and June 30, 2000), DEV 31, 

Tab 52. 
13 

torious examples may be the “White House coffees” with 

President Clinton that the DNC facilitated for particularly 

generous contributors, but instances of such preferential access were numerous, if generally occurring in more prosaic 

settings. S. Rep. No. 105-167, at 191-224 (1998) (Thompson 

Comm. Rep.); SA 603-15(K), 1268-76(L). 

Party officials commonly offered to pass on the concerns 

of generous donors to appropriate persons on Capitol Hill, 

and asked Members to meet with donors to hear their proposals on pending issues. In that way, party officials directly 

linked donors’ generosity to Members’ willingness to entertain their positions. SA 603-07(K), 1269-71(L). And as former Senator Warren Rudman recounted (Rudman Dec. ¶ 7 

(JA 742)), the ensuing conversations between Members and 

donors were “not idle chit-chats about the philosophy of 

democracy”: 

Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way. No 

one says: “We gave money so you should do this to 

help us.” No one needs to say it—it is perfectly understood by all participants in every such meeting. 

Plaintiffs argue that there is no proof of a direct connection between large donations and floor votes on specific legislation. That can hardly be the test for actual corruption, 

and in any event, the evidence is to the contrary. Senator 

Feingold testified, for example, that a fellow Democrat (and 

member of the Senate leadership) urged him to end a filibuster of a pending bill because it contained a provision sought 

by Federal Express, which had made a $100,000 soft money 

contribution to their party. Feingold Dep. 62. Former 

Senator Paul Simon similarly recounted that members of his 

party caucus knew who was “buttering our bread” and acted 

accordingly. Simon Dec. ¶¶ 13-18 (JA 805-07). The legislative record, as well as testimony in this case by Members of 

Congress, connected soft money to Congress’s failure to enact generic drug legislation, tort reform, tobacco-control 

measures, and new accounting rules for stock options. Fein-
14 

gold Dep. 62; McCain Dec. ¶¶ 8-11 (JA 392-94); Meehan Dep. 

11-14; Shays Dep. 63-65, 228. 

As former Senator Alan Simpson explained (Simpson 

Dec. ¶ 10 (JA 811)): 

Too often, Members’ first thought is not what is 

right or what they will believe, but how it will affect 

fundraising. Who, after all, can seriously contend 

that a $100,000 donation does not alter the way one 

thinks about—and quite possibly votes on—an issue? Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from trial lawyers to Democrats stopped 

tort reform. 

There are also many ways other than floor votes, less open 

to public scrutiny, in which Members influence the legislative process—especially through control of the legislative 

calendar—and soft money often had its effect long before the 

votes were cast. McCain Dec. ¶ 5 (JA 390-91); Simon Dec. 

¶¶ 13-14 (JA 805). Experts confirmed that, even if only a 

small proportion of actual votes are directly influenced, contributions may have “a significant impact on legislative outcomes.” Green Rep. 24-25 (JA 1218-20); see Bok Rep. 3-5. 

Donors understood that soft money was “essential for 

developing relationships with Members of Congress, which 

in turn lead[s] to access, which in turn lead[s] to influence 

over policy.” SA 589(K); see SA 1265, 1277-81(L). A prominent lobbyist explained that, under the soft money system, 

traditional lobbying activities are “alone insufficient to be 

effective . . . . To have true political clout, the giving and 

raising of campaign money for candidates and political parties is often critically important.” Andrews Dec. ¶ 5 (JA 2); 

SA 589-95(K). 

Donors therefore viewed soft money contributions as a 

necessary investment toward favorable policy outcomes. As 

observed in one representative internal document from a 

Fortune 100 company, soft money donations were a “key to 

[the company’s] increased role and ability to get [its] views 

heard by the right policy makers on a timely basis; in other 

words, a smart investment.” SA 599(K), 1280(L). An execu-
15 

tive of another large company explained the need to contribute $1.4 million by noting that both parties believed soft 

money was “critical to their success in coming elections” and 

were “especially sensitive to which companies contribute 

soft money, and which don’t.” SA 618(K); see 1284(L). Many 

other documents in the record are to the same effect; corporate employees justified soft money donations because they 

would “strengthen our relationship” with a Member, “get 

our relationship” with a Member “off to a good start,” or “establish[] goodwill.” SA 587-88(K); see SA 1280-81(L). 

The most striking evidence on this point is that many 

corporations made massive soft money donations to both major political parties. See Mann Rep. tbls. 5-6 (App. 52a-55a). 

Donors who felt “increased pressure from party and congressional leaders” and who knew that “direct competitors 

and potential competitors are weighing in with big soft 

money donations” wanted to ensure that they had access to 

“both sides of the aisle.” SA 618(K), 1284-85(L). Indeed, the 

soft money system evolved to the point that donors feared 

retaliation unless they made contributions to both parties. 

Greenwald Dec. ¶ 9 (JA 282-83); Hassenfeld Dec. ¶ 23; SA 

584, 599(K). The parties promoted this fear; when they 

learned a donor had given to the other side, they would “get 

a message” to the donor asking, “Are you sure you want to 

be giving only to one side? Don’t you want to have friends 

on both sides of the aisle?” SA 619-23(K), 1284-86(L); 

Randlett Dec. ¶ 12 (JA 715). As former Senator Dale Bumpers stated, massive donations turned into a coercive kind of 

“insurance.” Bumpers Dec. ¶ 14 (JA 174-75). 

Soft money also gave rise to a widespread perception of 

corruption. A study conducted by two leading experts in 

public opinion (one Democrat, one Republican) found that 

71% of the public believed Members of Congress sometimes 

voted the way large donors to their parties wanted, even 

when that was not what people in their districts wanted or 

what Members thought best for the country. Similarly, 84% 

believed that Members of Congress would be more likely to 

listen to those who gave money to their political party in response to their solicitations for large donations, and 68% be-
16 

lieved that big donors sometimes blocked official decisions 

that could have improved the everyday lives of the public. 

Mellman/Wirthlin Rep. 7-9 (JA 1566-69). A 2000 survey of 

leading corporate executives likewise found that 74% believed businesses were pressured to make large political donations; half stated that businesses feared adverse legislative consequences if they turned down requests from highranking party officials and their surrogates; and 75% believed their donations gave them an advantage in shaping 

legislation. When asked why corporate America contributed 

to political campaigns, the surveyed executives’ most frequent answer was “to avoid adverse legislative consequences” (31%), followed by “to buy access to influence the 

legislative process” (23%). Kolb Dec. ¶ 9 & Ex. 6 (JA 349); 

SA 574(K). 

But the testimony of the true experts about public opinion—Members of Congress—is the most remarkable. Both 

in the legislative debates on BCRA and in sworn testimony 

in this case, Members reported that their constituents had 

become “as cynical about government as they have ever 

been because of the corrupting effects of unlimited soft 

money donations.” Simpson Dec. ¶ 14 (JA 812); see SA 630-

33(K), 1278, 1294-95(L) (quoting numerous Members of Congress). Members themselves described the soft money system as corrupting. Senators Boren, Brock, Bumpers, Feingold, Jeffords, McCain, Rudman, Simon, Simpson, Snowe 

and Wirth, and Representatives Meehan and Shays, among 

others, detailed the baneful effects of soft money on the 

working of our government.10 Former Senator Rudman 

described large soft money contributions as “inherently, 

endemically, and hopelessly corrupting,” and stated, “You 

can’t swim in the ocean without getting wet; you can’t be 

part of this system without getting dirty.” Rudman Dec. ¶ 

10 (JA 743). Given that senior elected officials perceived the 

10 See also DEV 32, Tab 70 (chart of statements in the Congressional 

Record by Sen. Feingold identifying ways in which soft money donors had 

apparently secured influence over legislation). 
17 

political system in which they operated as “dirty,” it is 

scarcely surprising that the public overwhelmingly agreed, 

or that Congress saw that BCRA was needed to restore 

public confidence. 

2.	 Circumvention Of FECA And The Use Of 

Soft Money To Influence Federal Elections 

Not only does the judicial and legislative record amply 

demonstrate that the raising of soft money—regardless of 

how that money was ultimately used—gave rise to both actual and apparent corruption, it also shows how the soft 

money system eviscerated FECA’s core restrictions on the 

size and source of contributions to influence federal elections. This Court has long recognized the danger of circumvention of contribution restrictions, noting only a few 

months ago that “experience demonstrates how candidates, 

donors, and parties test the limits of the current law, and it 

shows beyond serious doubt how contribution limits would 

be eroded if inducement to circumvent them were enhanced.” Beaumont, 123 S. Ct. at 2207. In light of that experience, the Court has consistently given effect to Congress’s judgment that these limits must be reinforced by related restrictions. See Buckley, 424 U.S. at 38; California 

Med. Ass’n v. FEC, 453 U.S. 182, 197-99 (1981) (plurality) 

(CalMed); id. at 203 (Blackmun, J., concurring in part and in 

the judgment). 

The Court and Congress have found a particularly serious danger of circumvention in the prospect that a donor 

might effectively “contribute massive amounts of money to a 

particular candidate through . . . huge contributions to the 

candidate’s political party.” Buckley, 424 U.S. at 38. The 

soft money system was exactly that form of circumvention. 

Although the parties and many donors were aware that outright earmarking of donations for the benefit of particular 

candidates would run afoul of FECA, they engaged in every 

activity short of express direction to ensure that federal 

candidates could receive the benefit of soft money. There 

was scarcely any pretense that soft money would not be 

used to assist in electing the parties’ federal candidates, in-
18 

cluding in many cases the candidates who actually solicited 

the funds. 

Indeed, soft money was largely not used for so-called 

“party building” functions, but rather was directed to activities related to the election of the parties’ candidates. SA 

495-501(K), 1198-1212(L). Lawmakers commonly asked donors who had reached their federal contribution limits to 

make soft money donations to national and state parties 

“solely in order to assist federal campaigns,” including their 

own.11 Parties kept close track of soft money raised by lawmakers, and “the amount of money a Member of Congress 

raise[d] for the national political party committees often affect[ed] the amount the committees g[a]ve to assist the 

Member’s campaign.” SA 555(K). Donors often requested 

that their soft money contributions be credited to particular 

candidates, and the parties obliged. It was of little significance to the donor whether funds were “hard” or “soft,” as 

long as it was understood that the funds were to benefit particular parties and candidates. SA 558-61(K), 1198-1202, 

1245-46(L); see SA 561-62(K), 1246-47(L) (“joint fundraising 

committees” established by parties and candidates). Just as 

the Court noted in Colorado II regarding hard money, so too 

with soft money: “[w]hat a realist would expect to occur has 

occurred. Donors give to the party with the tacit understanding that the favored candidate will benefit.” 533 U.S. 

at 458. 

The importance of soft money in influencing federal 

elections was confirmed by current and former party officials and the RNC’s own soft money expert. Former RNC 

Chair Brock acknowledged that “the parties by and large 

use [soft] money to help elect federal candidates.” Brock 

Dec. ¶ 6 (JA 170). The RNC’s soft money expert has similarly explained that “[n]ational parties allocate soft money to 

state organizations primarily with the intent to help federal 

11 Randlett Dec. ¶ 9 (JA 714); see SA 550-53, 565-66, 1237-38(L) 

(Members asked donors to contribute to state parties “to help that officeholder or other federal candidates”). 
19 

candidates in close races,” and that soft money “permits 

candidates, contributors, and parties to circumvent federal 

laws limiting campaign contributions.”12 In short, as congressional investigative reports on abuses in the 1996 federal elections found, “permitting [soft money] donations to 

political parties eviscerated FECA’s longstanding ability to 

prevent corporate and labor union treasury funds from influencing federal elections.” SA 37(PC). 

B. The Soft Money Restrictions Properly Respond 

To The Dangers Of Unlimited Contributions 

1.	 The Court Should Defer To Congress’s Judgments Underlying Soft Money Restrictions 

Title I reflects Congress’s determination that FECA’s 

regulatory structure had been undermined to the point of 

collapse by the parties’ burrowing at its vulnerable points. 

Members of Congress understood from personal and institutional experience how the soft money system functioned and 

what was needed to save FECA. This experience is particularly relevant in three respects, for “[w]here a legislature 

has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments.” Shrink Mo., 

528 U.S. at 402 (Breyer, J., concurring). 

First, Congress’s experience establishes a strong basis 

for its judgment that officeholders and candidates understand that their political fortunes are intimately connected 

to their political parties. Members of Congress knew that, 

as federal officeholders, they cannot be expected to ignore 

their party’s need for money or the expressed wishes of 

their party, including the wish that Members heed the concerns of large donors. Plaintiffs propose a theoretical construct in which parties shield their officeholders from the 

corrupting potential of large donations to the party. The 

12 La Raja Cross, Ex. 3 at 74; La Raja, Sources and Uses of Soft 

Money, in A User’s Guide to Campaign Reform 83, 105 (G. Lubenow ed., 

2001); SA 519-20(K), 1206, 1234, 1237(L). 
20 

Members who enacted BCRA knew otherwise. At the same 

time, given the close bonds between Members and their parties, it cannot be seriously maintained that Congress enacted 

BCRA to destroy the party system. 

Second, Members knew from personal experience that 

donations for certain campaign activities, although purportedly not used to influence federal elections, were intended to 

and did in fact do so. The indisputable record was that, 

through the 1990s, parties had used soft money for generic 

campaign advertising, voter registration drives, get-out-thevote (GOTV) activity, and “issue” ads mentioning federal 

candidates, with the intent to affect federal elections.13 Although the FEC treated these donations as though they 

were not used to influence federal elections, Congress saw 

through this loophole and closed it. 

Third, Title I includes anti-circumvention provisions 

that rest on Congress’s judgment about how political actors 

will inevitably test the limits of the law—a judgment informed by an extensive factual record demonstrating how 

they had behaved in the past. In the First Amendment context, as elsewhere, this Court has deferred to Congress’s 

predictive judgment about the need for regulation. See 

Turner Broad. Sys. v. FCC, 520 U.S. 180, 195-96 (1997). The 

case for deference is yet stronger here, where the law reflects how Members of Congress expect they (and their parties) would act in the future. 

2.	 Only Limited Judicial Scrutiny Is Applicable To The Soft Money Provisions Of Title I 

It is “settled” that regulations designed to buttress contribution restrictions need only be “closely drawn” to match 

the “sufficiently important” government interests in combating corruption and the appearance of corruption. Colorado 

II, 533 U.S. at 456. Plaintiffs nonetheless contend that Title 

13 E.g. Fowler Dec. ¶ 17 (JA 264); 148 Cong. Rec. H409 (Feb. 13, 

2002) (Rep. Shays); SA 525-26(K). 
21 

I is a restraint on speech and association that requires strict 

scrutiny. This assertion is meritless. 

After Buckley, it cannot be seriously contended that Title I’s reinforcement of the FECA structure abridges any 

contributor’s right of free speech. Buckley establishes that 

reasonable contribution restrictions work no impermissible 

restriction on the donor’s right to speak, for “the transformation of contributions into political debate involves speech 

by someone other than the contributor.” 424 U.S. at 21. Nor 

does Title I restrain anyone from engaging in “direct political expression” on his or her own rather than (or in addition 

to) through parties and candidates. Id. at 22. 

Title I also does not burden a political party’s free 

speech rights in any constitutionally problematic way. Although plaintiffs devote much effort to arguing that Title I 

acts as a limit on campaign spending, it in fact leaves political parties free to spend as much money as they wish on federal or state election activity, be it for advertising, GOTV 

activity, or voter registration drives.14 Title I regulates only 

the sources and amounts of funds that the parties may raise 

and use for federal election activities. Like the contribution 

limits in FECA to which they are tied, the soft money restrictions merely require parties “to raise funds from a 

greater number of persons,” and do not “reduce the total 

amount of money potentially available to promote political 

expression.” See Buckley, 424 U.S. at 22; id. at 29 (FECA 

contribution limits “do not undermine to any material degree 

the potential for robust and effective discussion of candidates and campaign issues”). 

That some of BCRA’s provisions are necessarily framed 

in terms of mirror-image restrictions on “solicitations” 

rather than “contributions” does not occasion strict scrutiny. 

14 BCRA separately limits coordinated expenditures by national 

parties on behalf of their nominees to federal office, if they also make independent expenditures for the same nominees during the general election. 2 U.S.C. § 441a(d). That provision is discussed by the Solicitor General. 
22 

These solicitation provisions merely ensure that the contribution restrictions are not readily evaded, as they were in 

the past, and thus operate functionally as a reinforcement of 

the contribution limits. Cf. Colorado II, 533 U.S. at 438 (noting that FECA employs a “functional,” not formal, understanding of contributions). The Court has previously sustained a provision of FECA that limits corporations and unions to soliciting contributions for their segregated PAC 

funds from certain persons, without suggesting that the 

statute’s focus on solicitations was important (and indeed 

FECA does not separately prohibit contributions from other 

individuals). FEC v. National Right to Work Comm., 459 

U.S. 197, 206-11 (1982) (NRWC). Nor did the Court apply 

strict scrutiny to that solicitation restriction in NRWC. See 

Beaumont, 123 S. Ct. at 2211 (discussing NRWC on this 

point). Rather, the Court upheld the solicitation restriction 

as a legitimate “prophylactic measure[].” NRWC, 459 U.S. 

at 210.15 

Nor does BCRA impermissibly burden any right of association. BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and 

15 Plaintiffs invoke Citizens Against Rent Control/Coalition for Fair 

Housing v. City of Berkeley , 454 U.S. 290 (1981), in support of strict scrutiny, but nowhere in that decision did the Court state that it was applying 

strict scrutiny. See id. at 299 (challenged contribution limit “does not advance a legitimate governmental interest significant enough to justify its 

infringement of First Amendment rights”); id. at 301 (Marshall, J., concurring) (“the Court is following our consistent position that this type of 

governmental action is subjected to less rigorous scrutiny than a direct 

restriction on expenditures”); id. at 302 (Blackmun & O’Connor, JJ., concurring in the judgment) (appropriate level of scrutiny requires only “a 

sufficiently important governmental interest” and “means ‘closely drawn 

to avoid unnecessary abridgment’ of First Amendment freedoms”; quoting Buckley). Moreover, that case involved a restriction on donations to 

groups promoting ballot measures, which the Court distinguished from 

Buckley on the ground that ballot measure groups had no nexus to corruption or appearance of corruption of officeholders or candidates. 454 

U.S. at 296-97. The record in this case demonstrates that political parties 

have a close connection to officeholders and candidates, which enables 

them to serve as highly efficient conduits of corruption. 
23 

fundraising goals with one another. The parties invoke a 

purported unlimited right to pass funds among one another, 

but no decision of this Court suggests this right has the elevated constitutional status that plaintiffs claim. See Beaumont, 123 S. Ct. at 2210 (restrictions on contributions subject to “relatively complaisant review”). In any event, nothing in BCRA prevents national and state parties from transferring unlimited amounts of hard money among one another. See 2 U.S.C. § 441a(a)(4). 

Title I also does not abridge any party’s right to associate with its donors. Contributions to candidates and political 

committees “lie closer to the edges than to the core of political expression.” Beaumont, 123 S. Ct. at 2210. Any associational right of political parties to solicit donations is surely 

no more weighty than the right of would-be contributors to 

make them. Indeed, unlike donors, who make a “symbolic 

expression of support” to a party by making a contribution, 

Buckley, 424 U.S. at 21, a political party generally does not 

signal support for, or even a desire to be associated with, its 

donors when it solicits funds—especially when the donors 

give to both parties (as was often true with soft money). 

3. The National-Party Soft Money Ban 

BCRA provides that a national committee of a political 

party may not solicit, receive, direct to another person, or 

spend funds that are not subject to the source prohibitions 

and amount restrictions of FECA. 2 U.S.C. § 441i(a)(1). 

This across-the-board prohibition against the national parties’ use of soft money is based on the judgment of Members 

of Congress, drawn from personal experience, that national 

political parties had acted as conduits of influence between 

party donors and the federal candidates and officeholders 

with whom the parties were connected, and that in consequence national parties had to be removed from the soft 

money business altogether. That judgment is amply supported by the legislative and judicial record. 

a. Contrary to plaintiffs’ contention, under the soft 

money system, political parties did not insulate their officeholders from importuning contributors or sanitize the effect 
24 

of large contributions. Quite the reverse: the parties frequently encouraged their officeholders to be attentive to 

their soft money donors’ positions on matters of policy, and 

brought their donors and officeholders together to meet privately. SA 603-15(K), 1269-76(L). Federal officeholders and 

candidates were routinely informed of the identities of large 

donors to their parties. In many cases, Members of Congress personally solicited large soft money donations; in 

other cases, the parties distributed lists of potential and actual donors to officeholders. SA 579-82(K), 1258-61(L). Donors also often informed officeholders that they had made 

contributions to their party. “[F]or a Member not to know 

the identities of these donors, he or she must actively avoid 

such knowledge as it is provided by the national political 

parties and the donors themselves.” SA 581(K); see SA 

1258(L). 

Indeed, in the soft money context, it is futile to look for 

any meaningful separation between federal officeholders and 

their national parties. All the members of four of the six 

major national-party committees (DCCC, DSCC, NRCC, 

and NRSC) are federal officeholders. The DSCC and NRSC 

also established “joint fundraising committees” with the official campaigns of federal candidates, effectively enabling 

candidates to raise both hard and soft money simultaneously, in their own names and for their own races. SA 561-

62(K), 1246-47(L); Krasno/Sorauf Rep. 13 (JA 1286). 

The other major national committees—the DNC and 

RNC—are also tightly connected to their parties’ federal 

officeholders. As former RNC Chair Haley Barbour stated, 

during presidential election years they make election of the 

President their “highest priority.” SA 1197(L); see SA 

545(K) (national committees assume “subsidiary role” to 

presidential candidate’s campaign committee). The DNC’s 

“issue” ad campaign on behalf of President Clinton in 1996 

forcefully bears that out, but that episode is merely illustrative of the point that the central function of the major national-party committees is to promote the election of the 

parties’ federal candidates. Any elected official also benefits 

considerably from a donor’s generosity to his or her party, 
25 

for an official’s power depends greatly on whether that party 

is in the majority or minority, and whether it controls another branch of the government or legislative chamber. Parties and their federal officeholders and candidates are thus 

connected by powerful bonds, and Congress recognized that 

elected officials are likely to be attentive to the concerns of 

generous donors to their parties. 

b. Although Judge Leon accepted the basic premise of 

Title I—that raising unlimited soft money from corporations, unions, and wealthy individuals creates the potential 

for corruption and appearance of corruption, SA 1132-35—he 

mistakenly concluded that the validity of the national soft 

money ban turns on how the soft money is spent. Judge 

Leon believed that the interests of preventing corruption 

and appearance of corruption do not sustain BCRA in the 

absence of “any perceived, or actual, benefit to a federal 

candidate.” SA 1103. He therefore concluded that, while 

Congress could prohibit national parties from using soft 

money to finance “public communications” that promote or 

attack clearly identified federal candidates, it could not ban 

the use of soft money for activities that do not “directly” affect federal elections, including disbursements for voter registration and GOTV activities undertaken within days of a 

federal election. SA 1119. 

Even on its own terms, Judge Leon’s theoretical demarcation between activities that do and do not provide a “perceived” or “actual” benefit to federal candidates does not 

support the line he drew. Congress reasonably determined 

that many activities undertaken by both national and state 

parties with soft money beyond “public communications”— 

including all the activities that Congress defined as 

“[f]ederal election activity,” such as generic campaign activity and GOTV (even when it makes no express reference to a 

federal candidate)—actually benefit candidates in federal 

elections. Indeed, contrary to the picture drawn by the 

plaintiffs, soft money was generally not used for “party 

building” activity several steps removed from election cam-
26 

paigns, but was used in just these ways to affect federal elections. Green Rep. 14 n.17 (JA 1205).16 

But Judge Leon’s approach is also misguided in a more 

fundamental respect: it fails to apprehend that, for national 

parties, the potential for corruption comes from raising soft 

money and the close connections between the party and its 

federal officeholders and candidates, regardless of how the 

national party spends that money. Title I does not rest on 

any notion that voter registration or GOTV activity is suspect; national parties may continue to spend unlimited hard 

money on such activities, or may transfer unlimited hard 

money to state and local parties if they prefer. Rather, Title 

I is predicated on Congress’s well-supported recognition 

that, absent regulation to the contrary, corporations, unions, 

and individuals who want to obtain favors from federal officials will make large donations to be used by those officials 

and their parties as they perceive to be most advantageous 

to their political fortunes. And because of the close bonds 

between federal officeholders and their parties, unlimited 

donations threaten to corrupt federal officeholders even 

when they are made, not to assist the officeholders directly, 

but to help their political allies in the party. “[W]hether 

they like it or not, [parties] act as agents for spending on be16 Representatives of all four major congressional campaign committees acknowledged, for example, that their committees targeted GOTV 

efforts paid for with soft money in states where there were close federal 

races, and that those efforts did affect federal elections. SA 525(K). The 

parties also told donors that their soft money would be used for GOTV 

efforts to help the parties’ candidates in federal elections. SA 526(K). 

Similarly, the parties used soft money to conduct voter registration efforts that assisted federal as well as state and local candidates. SA 529-

30(K). Expert testimony confirmed that, when a political party conducts 

GOTV and voter registration efforts, as well as generic advertising, the 

effect on the federal election is not “indirect,” even when those activities 

do not expressly mention the federal candidate. In that situation, the parties expect and intend that efforts to mobilize voters “will produce a harvest of votes for [that party’s] candidates for both state and federal offices.” Green Rep. 14 (JA 1205-06); SA 527-29(K). 
27 

half of those who seek to produce obligated officeholders.” 

Colorado II, 533 U.S. at 452.17 

c. Plaintiffs suggest there is no danger of corruption or 

appearance of corruption if national parties raise soft money 

only for the purpose of spending those funds on state races 

(or transferring those funds to state parties for use in state 

races). This argument suffers from the same flaw as Judge 

Leon’s analysis: it fails to apprehend that the risk of corruption stems from the raising of the money. Moreover, in the 

past, the FEC allowed national parties to raise and use soft 

money purportedly for non-federal activity, but in fact that 

soft money was routinely used for activities affecting federal 

elections. Congress is not required to repeat that mistake. 

Nor does the Constitution require Congress to permit 

an earmarking regime under which national parties could 

accept unlimited donations for some purposes, but not others. Just as Congress may bar a group that receives only a 

small part of its funds from corporations from making any 

campaign contributions, and need not consider whether any 

of the group’s funding is earmarked for campaign purposes, 

Beaumont, 123 S. Ct. 2210 & n.7, Congress acted within its 

discretion in concluding that the only effective means to 

prevent the national parties from continuing to circumvent 

the law is an across-the-board rule against soft money. Indeed, given the fungibilty of money, if national parties could 

accept unlimited contributions purportedly for state purposes alone, donors could easily evade FECA’s restrictions 

by making large soft money contributions to national parties 

simply to free up hard money for the party to use for federal 

17 Plaintiffs have stressed that Justice Breyer’s lead opinion in Colorado I stated that “[w]e are not aware of any special dangers of corruption 

associated with political parties.” 518 U.S. at 616. The issue here, however, is not whether political parties themselves commonly seek to corrupt 

their own candidates and officeholders with lawfully raised money, as had 

been argued in Colorado I. Rather, the point in this case is that political 

parties can serve as effective instruments of corruption by others—a point 

the Court strongly endorsed in Colorado II, 533 U.S. at 452. 
28 

candidates, who could then owe a debt of gratitude to the 

soft money donors. 

In any event, the supposed impairment of the national 

parties’ ability to assist their state affiliates is minimal. 

Even though national parties may not themselves spend soft 

money on state elections, they may spend unlimited hard 

money on state races, and may consult with state parties 

about how the state party might spend its own soft money 

on purely state races (as long as the national party does not 

control the use of the soft money, 441i(a)(1)). Thus, although 

plaintiffs characterize BCRA as driving a wedge between 

national and state parties, that is simply not the case. 

4. The State-Party Soft Money Restrictions 

a. Whereas BCRA precludes national parties from raising and spending soft money at all, Title I restricts state 

parties from using soft money only for specific “[f]ederal 

election activity.” 2 U.S.C. § 441i(b)(1).18 This restriction 

reflects Congress’s determination—amply supported by the 

legislative and judicial record—that state parties had been 

pervasively used as conduits for soft money in federal elections.19 Even leading opponents of campaign finance reform 

18 “Federal election activity” includes voter registration activity 

during the 120-day period before a federal election, GOTV, voter identification, and generic campaign activity conducted “in connection with” an 

election in which a federal candidate is on the ballot, and “public 

communications” that promote or attack a “clearly identified candidate for 

Federal office.” 2 U.S.C. §431(20)(A). The definition excludes a broad 

range of state party activity. For example, Title I does not reach state 

party GOTV activity for elections with only state races on the ballot, state 

party contributions to state candidates, or “public communications” at any 

time that refer only to state and local candidates (other than GOTV and 

voter registration), because they are not “[f]ederal election activity.” 

19 Plaintiffs strain to find fault in the fact that the state party provision is framed in terms of activities on which state parties spend money. 

But Congress obviously framed § 441i(b)(1) in terms of funds “expended 

or disbursed for Federal election activity” to make clear that BCRA does 

not prohibit state parties from raising or using soft money, so long as state 

parties use such funds only for state or local election purposes. Section 

441i(b)(1) is thus functionally identical to a limit on soft money contribu-
29 

recognized that “a prohibition of soft money donations to national-party committees alone would be wholly ineffective.”20 

State parties played a central role in the soft money 

system. Indeed, state parties became the preferred conduits 

of soft money funds in federal elections, because FEC allocation regulations permitted them to spend a greater percentage of soft money on supposedly non-federal activity (such 

as GOTV, voter registration, and “issue” ads) than could be 

done if the national party spent the money. SA 516-22(K), 

1231-38(L); Magleby Rep. 37 (JA 1510). For that reason, in 

the 2000 election cycle alone, the national parties transferred 

$280 million in soft money to the state parties. SA 490-

91(K), 1188-89(L). 

State parties told their soft money donors that their 

generosity had “delivered Ohio for President George W. 

Bush,” see RNC OH 0410155 (IER, Tab 10), enabled the 

California Democratic Party to “increase the number of Californian Democrats in . . . Congress” and “deliver[ed] California’s 54 electoral votes for President Bill Clinton[],” SA 

526(K). National parties and federal candidates also routinely directed donors to contribute soft money to state parties for deployment in federal elections. Many state parties 

were effectively reduced to “offshore banks” for national 

parties, useful principally to inject soft money into federal 

elections in compliance with the national parties’ directions—a phenomenon well documented by the Thompson 

Committee that investigated abuses in the 1996 elections 

(and discussed in the amicus brief for former Senator 

Thompson, at 24-26).

21 

tions to state parties for federal election purposes. Cf. Colorado II, 533 

U.S. at 438. 

20 The Constitution and Campaign Reform: Hearings on S. 522 Before the Sen. Comm. on Rules and Admin., 106th Cong., 2d Sess. 301 

(2000) (statement of Bobby R. Burchfield, Partner, Covington & Burling). 

21 Green Rebuttal Rep. 10 (JA 1239); Thompson Comm. Rep. 4467-68 

(state parties acted as conduits to pay for DNC issue ads); id. at 8300 (minority views) (RNC memo described buying ads through state parties as 

“simply a book keeping hassle”); SA 522-25(K), 1234(L) (national parties 
30 

The record also shows that massive soft money donations to state parties gave rise to the familiar risks of actual 

and apparent corruption. For example, Carl Lindner, chair 

of Chiquita Brands and a longtime Republican donor, gave 

more than $500,000 to Democratic state parties only hours 

after the Clinton administration asked the World Trade Organization to examine European Union trade barriers 

against Chiquita bananas.22 The Thompson Committee 

found that, in exchange for $300,000 in soft money given to 

Democratic state parties and candidates and the DNC, the 

DNC assisted Roger Tamraz in his effort to win backing for 

an oil pipeline in the Caucasus by arranging meetings with 

government officials and with President Clinton—against 

the recommendation of National Security Council staff. 

Thompson Comm. Rep. 43-44, 2907-31; id. at 7519 (minority 

views). That Committee also found that Native American 

tribes that operated casinos gave significant soft money contributions to national and state Democratic committees after 

the DNC Chair contacted Clinton White House officials 

about those tribes’ opposition to the casino application of a 

rival tribe, and the Department of the Interior denied that 

casino application (overturning a contrary staff recommendation). Thompson Comm. Rep. 44-46, 3167-94. 

b. Plaintiffs implausibly suggest there is no danger of 

corruption or appearance of corruption when a corporation 

or union makes a $100,000 donation to a state party to engage in federal election activity supporting a federal candidate, and argue that Congress was not justified in bringing 

state parties within the prohibition of use of soft money in 

federal elections. But there is no reason to believe that a 

federal officeholder would be less willing to heed the wishes 

of a donor that generously funded activities assisting his 

election merely because the funds happened to be deployed 

retained control over soft money after it was transferred to state parties); 

La Raja Cross, Ex. 3 at 49 (state parties became “branch organizations” 

implementing “strategic decisions of party professionals in Washington”). 

22 McCain Dec., Ex. I (Weisskopf, The Busy Back Door Men, Time, 

Mar. 31, 1997, at 40 [INT 001289-90]). 
31 

through a state party. If, as plaintiffs suggest, Congress is 

constitutionally barred from regulating state parties that 

engage in federal election activity, then in the future, soft 

money donors will simply write their checks to state parties 

for use in federal election activity and make their generosity 

known to federal candidates. Thus it was essential for Congress to bring state parties’ federal election activity within 

the soft money restrictions, as opponents of the ban recognized. Congress’s constitutional authority to protect the integrity of federal elections is not diminished merely because 

the threat comes through state-party activity that indisputably affects federal elections.23 

Congress has also limited the effect of the soft money 

restrictions on state parties. First, BCRA’s definition of 

“[f]ederal election activity” in § 431(20)(A) excludes a broad 

range of state election activity, thus ensuring that the 

restrictions do not intrude too far into state-party activity 

(see p. 28 n.18). Second, Congress has allowed state parties 

to make some use of soft money even in federal elections. 

Just as, before BCRA, the FEC allowed state parties to use 

a combination of soft and hard money for activities that 

could affect both federal and state elections, the Levin 

Amendment, 2 U.S.C. § 441i(b)(2), authorizes a new kind of 

allocation formula permitting use of combinations of limited 

soft and hard money in federal elections. This authorization, 

however, is subject to provisos designed to prevent a resurgence of the pre-BCRA system in which state parties were 

23 Indeed, if Congress has no constitutional authority to regulate soft 

money used by state parties in connection with federal elections, then it is 

difficult to see how the FECA regime before BCRA could have been constitutional. Even then, both national and state parties that conducted 

GOTV, voter registration, and generic campaign activity in connection 

with an election in which a federal candidate was on the ballot were required to allocate their disbursements for such activity between hard and 

soft money, under the rationale that both federal and state interests were 

implicated by elections featuring both federal and state races. 11 C.F.R. 

§§ 106.1, 106.5 (2001). 
32 

used as conduits of unlimited soft money into federal elections.24 

When States opt to hold state elections simultaneously 

with federal elections, Title I incidentally restricts state parties from using soft money for some activities that affect 

state races. That does not establish, however, that Title I 

regulates the state elections or otherwise exceeds Congress’s Article I powers. Once Congress has balanced the 

competing policy considerations and has determined that the 

use of soft money in “[f]ederal election activity” so affects 

the integrity of federal elections as to warrant the exercise 

of its Article I powers, the courts have no warrant to reweigh the federal regulations against any incidental effect on 

the funding of state campaign activity. The necessary and 

proper scope of laws to ensure the integrity of federal elections “are matters for congressional determination alone.” 

Burroughs v. United States, 290 U.S. 534, 547-48 (1934). 

Thus, as the Court held more than a century ago, “[i]f for its 

own convenience a State sees fit to elect state and county 

officers at the same time and in conjunction with the election 

of [federal officials], Congress will not be thereby deprived 

24 Although plaintiffs have sought to portray the Levin Amendment 

as an onerous restriction on state parties, in fact it accommodates state 

parties by creating an exception to BCRA’s restrictions on their use of 

soft money for federal election activity. Like the provision upheld in 

Buckley that allowed individuals to contribute more to political committees than to candidates, the Levin Amendment thus “enhances the opportunity . . . to participate in the election process.” 424 U.S. at 35. 

Under the Levin Amendment, a state or local party committee may 

use combinations of hard money and soft money (including money obtained from corporations and unions), under allocation formulas established by the FEC, for certain kinds of federal election activity, such as 

voter registration and GOTV activity that does not refer to a clearly identified candidate for federal office. “Levin funds” (soft money used in the 

allocation) must be raised locally—i.e., by the state or local committee that 

makes the disbursements, and not solicited by or received from another 

party committee or a federal officeholder; a donor may not contribute 

more than $10,000 per year in Levin funds to any particular party committee; and Levin funds may not be used for any activity referring to a 

clearly identified federal candidate. 2 U.S.C. § 441i(b)(2)(B), (C). 
33 

of the right to make regulations in reference to the latter.” 

Ex parte Siebold, 100 U.S. 371, 393 (1879). Nor does Title I 

intrude on state sovereignty in any manner implicating the 

Tenth Amendment or other structural features of the Constitution. Unlike statutes this Court has found to contravene principles of state sovereignty, BCRA does not require 

the States to do or not do anything.25 

c. As with the national-party ban, Judge Leon concluded that the restrictions on state-party use of soft money 

could be validly applied only to those activities that, in his 

view, “directly” benefit candidates for federal office. SA 

1118-42. Again, Judge Leon’s reasoning is flawed. Congress 

determined, based on its experience, that GOTV, voter registration, and generic campaign activity conducted in connection with or close proximity to federal elections often are 

intended to and in fact do influence the outcome of such elections. Congress was therefore justified in acting to protect 

the integrity of federal elections by restricting state parties’ 

use of soft money for federal election activity. 

The parties point to an advertisement run by the California Democratic Party opposing Proposition 209 as an example of the purportedly excessive coverage of Title I. The 

parties do not dispute that such advertisements could well 

affect the outcome of a federal election, but they nonetheless 

contend that such advertisements cannot create a risk of 

corruption or appearance of corruption of a federal candidate. But Congress recognized that a donor can secure undue influence with a federal candidate by making a massive 

donation to a state party, intending that the state party then 

use those funds for “[f]ederal election activity” (such as 

GOTV activity or generic party advertising) in connection 

with that candidate’s election. It is not significant whether 

(for example) the state party’s GOTV activity funded with 

that soft money highlights a ballot initiative or a gubernatorial race; either form of GOTV activity affects a federal elec25 Cf. Printz v. United States, 521 U.S. 898 (1997); New York v. 

United States, 505 U.S. 144 (1992); Oregon v. Mitchell, 400 U.S. 112 (1970). 
34 

tion on the same ballot—as the press understood in the context of Proposition 209.26 The risks of corruption and appearance of corruption inhere in both, and stem from the fact 

that the donor can make it known to the federal candidate 

that his election was assisted by the donor’s generosity. 

The parties contend (Br. 54-56) that even that part of 

the soft-money restrictions that Judge Leon would have left 

intact, which prohibits parties from using soft money for any 

“public communication” referring to a clearly identified candidate for federal office (§ 431(20)(A)(iii)), is unconstitutional 

because it applies even when parties do not engage in “express advocacy” for or against a candidate, and thus could 

intrude on pure issue advocacy. That argument is meritless. 

This Court made clear in Buckley that political parties exist 

for the purpose of engaging in campaign activity, and so 

there is no need to differentiate between their campaigns 

and other activity. In Buckley, the Court construed a provision limiting independent expenditures by individuals and 

interest groups to cover only express advocacy. 424 U.S. at 

40-42. But when the Court considered a separate provision 

requiring reporting and disclosure by political committees 

(including political parties) making campaign-related expenditures, the Court noted that the term “political committees” 

in that context reached only “organizations that are under 

the control of a candidate or the major purpose of which is 

the nomination or election of a candidate,” not groups “engaged purely in issue discussion.” Id. at 79. The Court explained that “[e]xpenditures of candidates and of ‘political 

26 Press reports indicated that the state parties’ political activity 

over Proposition 209 was closely connected to their efforts to affect the 

1996 presidential election, which was on the same ballot. “[P]olitical partisans promoted [Proposition 209 and similar measures] as a way of getting 

‘their’ voters to the polls,” and “the California Republican Party subsumed 

backing of [Proposition 209] into a get-out-the-vote drive for Bob Dole.” 

Stall & Morain, Prop. 209 Wins, Bars Affirmative Action Initiatives, L.A. 

Times, Nov. 6, 1996, at A1; see Wooster, California Fights The Race 

Wars, Am. Enter. 54 (2000). The ad in question decried Proposition 209 as 

a “Republican Scheme,” urged voters not to “let the Republicans get away 

with it,” and exhorted voters to go to the polls. Feingold Dep., Ex. 15. 
35 

committees’ so construed . . . are, by definition, campaign 

related.” Id. Buckley thus establishes that, because political 

parties are presumed to engage in campaign activity, regulation of their financing does not intrude on pure issue advocacy. 

5.	 Related Anti-Corruption And Anti-Circumvention Provisions 

Congress enacted further measures in Title I to ensure 

that political actors do not continue established means of circumventing FECA’s hard money restrictions. Plaintiffs devote a significant portion of their briefing to challenging 

these measures. The pattern in their briefs is to urge the 

broadest imaginable construction of each provision, posit its 

application to a remotely conceivable situation, and then 

contend that that application would be unconstitutional, and 

so the entirety of Title I must fall. The irony in this position 

is striking: one can imagine the reaction of one of the political party plaintiffs if the FEC advanced such expansive 

readings of the statute in an enforcement action against it— 

in contrast to this case, where it serves the parties’ goals to 

make Title I seem draconian. And of course, the duty of the 

courts is to save the law, not to adopt constructions that 

might imperil it. NLRB v. Catholic Bishop, 440 U.S. 490, 

500 (1979). 

Plaintiffs are essentially attempting to convert a preenforcement facial challenge to BCRA into an as-applied 

challenge to factual scenarios that may never arise. Even 

under the relatively generous standards of First Amendment doctrine, statutes are not to be invalidated based on 

“hypothetical application to situations not before the Court.” 

FCC v. Pacifica Found., 438 U.S. 726, 743 (1978); see Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02 (1985). 

Rather, to prevail in their facial challenge, plaintiffs must 

demonstrate “a substantial risk that application of the provision will lead to the suppression of speech.” NEA v. Finley, 

524 U.S. 569, 580 (1998); see City Council v. Taxpayers for 

Vincent, 466 U.S. 789, 800 (1984) (stressing that a statute is 

not facially invalid merely because “one can conceive of some 
36 

impermissible applications”). Plaintiffs have not made that 

showing. 

a. Solicitations By Federal Candidates. BCRA added 

2 U.S.C. § 441i(e), which imposes fundraising restrictions on 

federal candidates (including federal officeholders). Section 

441i(e)(1)(A) prohibits federal candidates from raising, 

transferring, or spending soft money (whether for a national 

or a state party or otherwise) in connection with a federal 

election. Section 441i(e)(1)(B) then extends to non-federal 

elections the requirement that federal candidates solicit only 

funds subject to FECA’s rules on sources and amounts. 

Thus, a federal candidate may raise money for others to use 

in federal and state races as long as the funds raised would 

not contravene the federal contribution limits or the prohibitions on contributions by corporations and unions.27 

These provisions are aimed at the core problems of corruption and appearance of corruption that underlie FECA in 

general and the party contribution limits of Title I in particular. Large donations made at the request of federal candidates and officeholders create the risk that the donor will 

acquire (or appear to acquire) undue influence as a result of 

27 Congress further narrowed these quite reasonable restrictions 

with three exceptions that accommodate competing policy considerations. 

Section 441i(e)(2) makes the general rule against solicitation of soft money 

inapplicable if the money is to be used only for a state race in which the 

federal officeholder is running. Under § 441i(e)(3), a federal candidate 

may “attend, speak, or be a featured guest at a fundraising event for a 

State, district or local committee of a political party.” Under 

§ 441i(e)(4)(A), federal candidates may solicit unlimited funds for organizations that are tax exempt under IRC § 501(c)—even groups that engage 

in some “federal election activity,” so long as that is not their principal 

purpose—if the solicitation does not specify how the funds will be spent. 

Under § 441i(e)(4)(B), candidates may explicitly solicit funds for use by 

IRC § 501(c) groups for voter registration or GOTV activity, or for 501(c) 

groups principally organized to engage in such activity, if the solicitation 

is made only to individuals and the amount solicited from any individual 

does not exceed $20,000 in a calendar year. These closely drawn measures 

serve the valid goal of eliminating the appearance of corruption of federal 

candidates through contributions that are excessive or from impermissible 

sources, while avoiding overreaching into state political activity. 
37 

the requester’s gratitude. Indeed, when soft money was solicited, links were often drawn between massive donations 

and pending legislation—as demonstrated by national-party 

documents in the record, including “call sheets” prepared for 

fundraising calls, which emphasized legislative and regulatory matters of interest to solicitation targets. See IER, 

Tabs 1.A., 1.E., 3. These risks are also present when a federal officeholder asks a corporation or union to donate 

$100,000 to a state party or candidate. A federal officeholder 

cannot be expected to ignore the fact that a donor has made 

a substantial contribution at his request to a political ally. 

b. Solicitations By National-Party Officers. Plaintiffs 

spill much ink over § 441i(a)(2), which extends the nationalparty soft money solicitation ban to the national parties’ officers. This provision recognizes that political parties, like all 

artificial entities, necessarily act through their officers and 

agents. It thus ensures that a national party may not circumvent the basic soft money solicitation ban by claiming 

that the fundraising was done by its officers, not itself. 

The parties strain to manufacture a constitutional flaw 

in this provision by arguing that it broadly prohibits national-party officers from soliciting even hard money for 

state candidates, even in a year in which no federal candidate is on the ballot (see Br. 1). This construction is, to say 

the least, not compelled by the language of § 441i(a), which 

bars national-party officers from soliciting only funds that 

are not “subject to the limitations, prohibitions, and reporting requirements of this Act”—much as § 441i(e) applies to 

bar solicitation of soft money by federal officeholders. Although some of the intervenors gave differing responses in 

their depositions when asked about the reach of 

§ 441i(a)(2),28 the Justice Department and the FEC, which 

are responsible for enforcing the campaign finance laws, 

28 Compare Feingold Dep. 166-67 (appearance of corruption when 

party officer is “in a position to seek unlimited contributions”) and 

Meehan Dep. 236 (party officer may not “ask[] for unlimited amounts of 

money for a local election”), with Shays Dep. 237-40 (solicitation ban more 

restrictive for party officers than federal officeholders). 
38 

have made clear § 441(a)(2) does not prevent the national 

parties or their officers from soliciting hard money for state 

parties or candidates. Gov’t D.Ct. Opp. Br. 25-26, 38 n.37; 

Gov’t D.Ct. Reply Br. 30 n.34. Nor does the provision limit 

the amount of hard money a national party may raise and 

contribute to state candidates. It is quite revealing that the 

very first example of the supposed excesses of BCRA contained in the political parties’ brief relies on a reading of the 

law that has been rejected by those responsible for enforcing 

it. 

c. Solicitations For And Transfers To Tax-Exempt 

Groups. Section 441i(d) prevents political parties and their 

officers and agents from soliciting money for, or directing 

money to, certain organizations that are tax-exempt under 

§ 501(c) and § 527 of the Internal Revenue Code. In the case 

of § 501(c) organizations, the prohibition applies only if the 

organization makes expenditures in connection with federal 

elections, including “[f]ederal election activity” as defined in 

§ 431(20). Section 527 groups by definition are involved in 

election activities, and § 441i(d) forbids party fundraising for 

them only if they do not qualify as candidate committees or 

“political committees.”29 

29 Plaintiffs contend that § 441i(d) prevents state parties from donating funds to state groups formed to support or oppose the impending California gubernatorial recall election. In fact, § 441i(d) has no such application. California has scheduled the election for Oct. 7, 2003, which is not 

simultaneous with or near any federal election. Any activity undertaken 

by such § 527 groups concerning the recall therefore would not constitute 

“[f]ederal election activity,” and § 441i(d) would accordingly not apply. 

See 11 C.F.R. § 300.37(a)(3)(iv). But even if California chose to hold the 

recall election with or near a federal election, § 441i(d) would impose only 

minimal burdens. To support or oppose the recall, state parties could 

themselves use soft money for many activities (including ad campaigns 

directed at the recall), Levin funds on other activities, and hard money on 

any remaining activities. State parties could also donate funds to § 527 

groups formed to support or oppose the recall, provided those groups do 

not engage in “[f]ederal election activity” or are subject to FECA’s reporting requirements. In short, all § 441i(d) prevents state parties from 

doing is funding federal election activity in a manner that evades FECA’s 

contribution limits and reporting requirements. 
39 

Section 441i(d) prevents circumvention of FECA’s disclosure requirements by ensuring that national and state 

parties do not direct or transfer hard or soft money to outside groups that are not subject to those disclosure rules, for 

use in federal election activities. In the past, Congress had 

witnessed exactly such evasions.30 It also prevents circumvention of the requirement that state parties use only hard 

money and Levin funds for federal election activities. Absent § 441i(d), state parties could sidestep that requirement 

by soliciting soft money for, or directing or transferring soft 

money to, tax-exempt groups that undertake voter mobilization campaigns concentrated on core party voters. 

d. Public Communications About Federal Candidates 

By State Candidates And Officeholders. Finally, § 441i(f) 

deals with the very narrow situation in which a candidate for 

state office or state officeholder makes a “public communication” that refers to a clearly identified candidate for federal 

office and either promotes or opposes that candidate.31 In 

that instance, hard money must be used to finance the communication, for the obvious reason that it relates directly to 

a federal election. This provision is analogous to the stateparty hard money requirement for “public communications” 

of this type. It also serves to close a potential loophole: 

without it, state parties could shift soft money to their 

closely allied state candidates and officeholders to use for 

“public communications” promoting or attacking federal 

candidates. 

30 144 Cong. Rec. S1048 (Feb. 26, 1998) (Sen. Glenn), S977 (Feb. 25, 

1998) (Sen. Levin), S898 (Feb. 24, 1998) (Sen. Ford); Thompson Comm. 

Rep. 4013; id. at 4568, 5974-81 (minority views). 

31 The restriction in § 441i(f) presumably does not apply when a state 

officeholder makes a communication in his public capacity with public 

funds. Section 441i(f)(2) also provides an exception if the federal candidate or officeholder referred to is also a candidate for state office and the 

communication refers to such person in connection with the state election 

in which he or she is participating. 
40


C. Political Parties Will Remain Vibrant 

Although the First Amendment affords protection to 

the right to “amass[] the resources necessary for effective 

advocacy,” that right is not infringed by contribution limits 

unless they are “so radical in effect as to render political association ineffective . . . and render contributions pointless.” 

Shrink Mo., 528 U.S. at 397; see Buckley, 424 U.S. at 21-22. 

Plaintiffs have not made even a colorable showing that the 

soft money restrictions will impair the ability of political 

parties to engage in effective advocacy, or to assist their 

candidates in doing so. Their Chicken Little assertions 

about the impending demise of political parties are implausible and contrary to experience. 

As former DNC Chair Donald Fowler (who was also a 

state party chair) and former RNC Chair William Brock 

stated, restricting soft money is likely to strengthen both 

national and state parties—by encouraging them to reinvigorate their support among numerous smaller contributors 

and volunteers, rather than rely on a few donors who are 

willing to write massive checks but who are often more interested in promoting particular federal candidates than in 

the party’s long-term health. See Fowler Dec. ¶¶ 12, 17 (JA 

262, 264); Brock Dec. ¶¶ 6-7 (JA 170-71). Former Senator 

Brock explained (JA 170): 

The reliance of the major national parties on soft 

money donations does not in fact strengthen the 

parties, it weakens them. The focus on raising and 

spending soft money to affect federal elections divorces both the national and state parties from 

their roots. The money by and large is not used for 

“party building.” To the contrary, the parties by 

and large use the money to help elect federal candidates . . . . Far from reinvigorating the parties, soft 

money has simply strengthened certain candidates 

and a few large donors, while distracting parties 

from traditional and important grassroots work. 

Moreover, political parties are highly flexible organizations 

that have successfully adapted to previous regulations and 

can adapt to new ones. La Raja Cross, Ex. 3 at 37, 148; 
41 

Green Rep. 5-6, 30 (JA 1193-95, 1226). In many States, political parties have long been subject to restrictions far more 

stringent than those imposed by federal law, yet state parties have thrived. Id. at 33-34 (JA 1229-32). 

Nor will the soft money restrictions starve the parties 

of funds needed for effective campaigning. Soft money represented a small percentage of the national parties’ resources before the mid-1990s, yet they performed robustly. 

SA 32-35(PC); Mann Rep. 18 (JA 1551), tbl. 2 (App. 51a); id. 

at chart 1; Brock Dec. ¶ 7 (JA 170-71); Fowler Dec. ¶ 12 (JA 

262). The parties have also been very successful at increasing their hard money receipts. The national parties almost 

doubled their hard money between the 1992 elections and 

the 2000 elections, and raised $741 million in hard money in 

the 2000 election cycle. Green Rep. 30 (JA 1226). State parties’ hard money receipts rose from $111.2 million in 1991-92 

to $309.6 million in 2000. Biersack Dec. tbl. 11. 

The parties will continue to have access to enormous financial resources. BCRA expands their access to hard 

money: it increases the amount an individual may contribute 

to any national-party committee by 25%, to $25,000 per year, 

and to any state party committee by 100%, to $10,000 per 

year. 2 U.S.C. § 441a(a)(1)(B), (D). There is no reason to 

doubt the parties will take advantage of these increased limits and step up their efforts to raise hard money from a 

broader array of individuals, instead of the narrow group of 

corporations, unions, and large donors that provided soft 

money in the past. Green Rebuttal Rep. 5-6 (JA 1193-95). 

As Mark Twain might have said, then, plaintiffs’ reports of 

the death of the political parties are greatly exaggerated.32 

32 Indeed, information from FEC disclosure reports from the first 

half of 2003 confirms that the six major national-party committees raised 

more hard money ($160 million) in those six months than they raised in 

combined hard and soft money ($138 million) in the first six months of the 

last presidential election cycle (January-June 1999). This hard money take 

in 2003 is double the $80 million in hard money that the parties raised in 

the first half of 1999. If the parties continue to double their hard money 
42


II. TITLE II OF BCRA IS CONSTITUTIONAL 

Unlike political parties, whose expenditures “are, by definition, campaign related,” Buckley, 424 U.S. at 79, corporations, unions, and other interest groups sponsor both communications that are related to federal election campaigns, 

and others that are not. As to the former, Congress may 

impose both disclosure rules and requirements that corporations and unions use only money voluntarily contributed by 

individuals for political use. Id. at 74-75; Austin, 494 U.S. at 

668-69. For many years, the “express advocacy” test that 

Buckley fashioned to identify which communications were 

campaign-related worked reasonably well. Despite isolated 

instances of circumvention, it was generally understood that 

ads praising or criticizing federal candidates were required 

to honor FECA’s disclosure and source restrictions. 

Beginning in 1995, however, that understanding completely changed. A trickle of marginal abuses became a tidal 

wave of circumvention. “Express advocacy” as a standard 

for electioneering became worse than irrelevant: it became 

an object of public derision. Here, for example, is the chair 

of the NRA’s PAC, speaking in 1997 SA 673-74(K): 

Today, there is erected a legal . . . wall between issue advocacy and political advocacy. And the wall 

is built of the same sturdy material as the emperor’s clothing. Everyone sees it. No one believes it. 

Title II of BCRA seeks to re-clothe the emperor by supplying an effective, objective standard for whether an ad is 

campaign-related. Under Title II, an ad is subject to disclosure and source requirements if it is broadcast, mentions a 

candidate, is geographically targeted to the candidate’s electorate, and is run in the 60 days before a federal general 

election or the 30 days before a primary. That bright-line 

test is the product of objective data and experience, which 

confirm the common-sense reality that in these carefully limited circumstances, ads naming a candidate are very likely 

take, they will raise $1.5 billion in hard money during the 2004 cycle. See 

http://www.opensecrets.org/parties/index.asp. 
43 

intended to convey—and almost certainly will convey—an 

electioneering message. 

Plaintiffs contend that any test other than “express advocacy” is invalid on its face. The Court should evaluate that 

contention in the light of the overwhelming evidence that in 

recent years interest groups, prominently including several 

of the plaintiffs, utterly buried the test they now come to 

praise. Nothing in the Constitution required Congress to 

resign itself to the open evasion of FECA’s source and disclosure rules. In Title II, it made another “‘cautious advance’” in the long history of “careful legislative adjustment 

of the federal electoral laws” to reflect ongoing experience. 

NRWC, 459 U.S. at 209. It drew new lines that respond directly to the demonstrated problem, in a way that honors 

First Amendment values of clarity and objectivity, and does 

not “unnecessarily circumscrib[e] protected expression.” 

Brown v. Hartlage, 456 U.S. 45, 54 (1982). 

Plaintiffs’ rhetoric notwithstanding, nothing in Title II 

“bans” any speech. For individuals it requires only disclosure, and only when expenditures for campaign ads exceed 

$10,000 per year. Corporations and unions remain entirely 

free to run any ad at any time—even in the targeted circumstances addressed by Title II, so long as they use funds 

raised by their PACs. As the Court recently reiterated, it is 

“simply wrong” to characterize that limitation as a “complete ban.” Beaumont, 123 S. Ct. at 2211. The Court has 

upheld just such modest burdens on independent campaign 

expenditures as narrowly tailored to serve compelling public 

interests in informing the electorate and preventing corruption of the electoral process. It should similarly reject plaintiffs’ facial challenge to reforms carefully designed to make 

FECA’s source and disclosure rules effective once again. 

A. Plaintiffs Aggressively Exploited The “Express 

Advocacy” Test To Circumvent Longstanding 

Source And Disclosure Rules 

The record shows that beginning in earnest with the 

1996 election, corporations and unions found that under the 

“express advocacy” test they could easily design broadcast 
44 

campaign ads that focused on candidates and swayed elections, while avoiding FECA’s source and disclosure rules.33 

1. The Ads Themselves 

The most direct evidence is the ads themselves. The 

district court quoted the following ad, run by the AFL-CIO 

during the 60 days before the 1996 election in the district of 

a targeted Republican Congressman, as just one example of 

the type of “issue” ads run by unions and corporations: 

[Narrator] What’s important to America’s families? 

[Middle-aged man] “My pension is very important 

because it will provide a significant amount of my 

income when I retire.” [Narrator] And where do 

the candidates stand? Congressman Steve Stockman voted to make it easier for corporations to raid 

employee pension funds. Nick Lampson opposes 

that plan. He supports new safeguards to protect 

employee pension funds. When it comes to your 

pension, there is a difference. Call and find out. 

SA 38-39(PC). There is no doubt this was a campaign ad, 

specifically intended to influence votes in the upcoming election. Yet because it did not actually say “Vote for Lampson,” the AFL could pay for it with general treasury funds, 

and make no disclosures under FECA. 

Here are a few more examples. Each avoids the “magic 

words” of “express advocacy,” and each could be said to address some “issue”—yet each was also clearly intended to 

influence a federal election: 

• An ad run by “Citizens for Reform” during the 1996 

Montana congressional race involving candidate Bill 

Yellowtail: “Who is Bill Yellowtail? He preaches 

33 The history and nature of the “issue” ad problem, the need for reform, and related evidence are discussed in the opinions below at SA 38-

40, 92-99, 106-128(PC); 651-770, 776-886(K); 1146-1159, 1296-1379(L). The 

expert discussions of Kenneth Goldstein, Jonathan Krasno and Frank 

Sorauf (testifying jointly), and David Magleby are excerpted at JA 1150, 

1272, 1476, and may be found in the record at DEV 1, Tabs 2 and 7, and 

DEV 4, Tab 8. 
45 

family values but took a swing at his wife. And Yellowtail’s response? He only slapped her. But ‘her 

nose was not broken.’ He talks law and order . . . 

but is himself a convicted felon. And though he 

talks about protecting children, Yellowtail failed to 

make his own child support payments—then voted 

against child support enforcement. Call Bill Yellowtail. Tell him to support family values.” Thompson Comm. Rep. 6304-05 (minority views). 

• An ad run on the eve of the 2000 presidential election, alleging that Myanmar used “slave labor to assist the building of an oil pipeline by American 

company Haliburton” under Dick Cheney’s leadership. The tag-line: “[W]e just can’t trust Dick Cheney a heartbeat away from the presidency.”34 

• An Americans for Job Security ad, run close to the 

2000 election in Washington State, criticizing Senate candidate Maria Cantwell’s legislative voting 

record on taxes from 1993, even though she was not 

in office in 2000, and could not vote on any issue 

unless elected to the Senate. The tag-line: “Can we 

afford politicians like Maria Cantwell?” App. 2a. 

There are many, many more. We have included “storyboards” for some others in an Appendix to this brief (at 1a10a). In addition, Volume 48 of the defendants’ exhibits below contains audio and video copies of some ads, and storyboards for virtually every distinct television ad sponsored by 

an interest group in 1998 and 2000 that referred to a federal 

candidate and ran within 60 days of the general election. By 

way of comparison, it also includes examples of the very different ads that do not mention candidates, and of the very 

similar ads run by candidates. This volume by itself demonstrates the problem Congress faced. 

34 App. 1a. Data about ads from 1998 and 2000 are generally derived 

from the “CMAG database.” See Goldstein Rep. 5-8 (JA 1157-61). 
46


2.	 “Issue” Ads Were Designed To Influence 

Federal Elections 

This case might have a different cast if plaintiffs could 

credibly claim that the candidate-centered ads they ran before BCRA, and that would now be covered by Title II, were 

designed only to spread their views on public issues—with 

perhaps some dim awareness that they “[might] in some 

cases indirectly influence election outcomes by addressing 

issues of interest to the electorate.” AFL Br. 7. Instead, the 

record demonstrates that plaintiffs and other sponsors of 

candidate-specific “issue” ads designed, tested, and ran them 

with an unmistakable electioneering purpose. See SA 678-

99(K), SA 1315-26(L). 

a. Consultants And Pollsters. The seasoned professionals that sponsors hired for their “issue” ad campaigns understood the mission: Devising hard-hitting electioneering messages that would sway the conduct of voters in federal elections. For example, as part of the AFL’s pioneering “issue” 

ad campaign in 1996, which involved a series of ads criticizing Republican incumbents for having cast votes contrary to 

the AFL’s positions, a firm called “Campaign Consulting” 

assessed potential political advertising agencies. SA 680(K). 

It assured the union 

RED ACTED 

Mitchell Dep., Ex. 6 (JA 2169). 

In evaluating “political media consultants,” the same advisor 

noted that 

REDACTED Mitchell 

Dep., Ex. 7 (JA 2166); SA 680(K). 

Business interests 

REDACTED 

Josten Dep. 20 -21. They 

formed “The Coalition: Americans Working for Real 

Change” to respond in kind. SA 685-86(K); see 1320-23(L). 

The consultant who landed the job of assisting The Coalition 

opened his proposal, “Thank you for the opportunity to present two 30 second television and one 60 second radio 

scripts, as requested, to your campaign to re-elect a probusiness Congress.” SA 686(K), 1321(L). Similarly, in Au-
47 

gust 2000 the NRA’s media consultant produced a memo entitled “NRA National Election Media Recommendations,” 

listing, as the first objective, “influence outcome of presidential election and . . . key congressional seats in 10 ‘battle 

ground’ states.” SA 693(K), 1324(L). 

Sponsors’ polling tells the same story. Before running 

its 1996 “electronic voter guides,” the AFL evaluated possible ads comparing an incumbent (identified as a Republican) 

and a challenger (identified as a Democrat). 

REDACTED 

Mitchell Dep., Ex. 9 (JA 2176). 

REDACTED 

Id. (JA 2176). 

REDACTED 

Mitchell Dep., Ex. 10 (JA 2178); see SA 679(K). 

Likewise, The Coalition surveyed “voter attitudes nationwide,” measuring reactions to “the AFL-CIO’s claims.”35 A 

survey of “swing voters” showed that test “response ads” 

moved “25% of participants . . . closer to voting for a Republican candidate.”36 

b. Sponsors’ Statements. Ad sponsors’ own statements 

confirm that influencing voters was a prominent goal of their 

candidate-centered “issue” ads. In 1996, the AFL-CIO did 

not hide its objectives. As the press reported: 

35 Huard Dep., Ex. 2, at TC513 (JA 2153); see id. at TC514 (JA 2154) 

(“Most voters view the AFL-CIO as first and foremost a political entity . . . .”); id. at TC538 (JA 2158) 

REDACTED 

36 SA 687(K); Huard Dep., Ex. 4, at AV139 (JA 2127) (purpose of research is “[f]inding a message for” an “outside voice” to “come to the[] 

defense” of Republicans “under attack by AFL-CIO advertising,” to “even 

[the] playing field during the 1996 election”); see Huard Dep. 37-38, 103, 

Ex. 6B (JA 2159-60), REDACTED 

Ex. 18 (JA 2131-32). 
48 

[U]nion leaders . . . said they believe they have a legitimate chance to reverse the Republican majority 

in the House. . . . AFL-CIO President John 

Sweeney, who presented the election plans to a 

closed-door meeting of the federation’s ruling executive council, said unions would spend $35 million 

in the election campaign.37 

Much of that $35 million was spent on broadcast “issue” advertising. SA 681-82(K). After the election, the AFL’s political director reiterated that one of its “major [campaign] 

goals” in running the ads had been “to try to help defeat 

some of those members of Congress and replace them with 

some members who would be more friendly to working people.”38 AFL President Sweeney boasted that by spending 

“our money on an independent, issue-based television, direct 

mail, and door-knocking campaign, rather than donating it to 

any political party,” the AFL had “defeated 17 of the ugliest 

Americans ever to serve in the United States House of Representatives.” Mitchell Dep., Ex. 12 (emphasis added). 

Similarly, the NRA’s Executive Vice President agreed 

that defeating Al Gore was the “overriding NRA objective” 

in 2000. LaPierre Dep. 55-56; see id. at 237-42. An NRA 

fundraising letter declares: “If the NRA had remained silent during the final 60 days of the last election, Al Gore 

would be president today.” NRA02586 [DEV 120]. And another explains that the “millions” the NRA “spent . . . to defeat Al Gore . . . got our message out, drove our supporters 

37 Mitchell Dep., Ex. 5 (Swoboda, AFL-CIO to Target 75 House Districts, Wash. Post, Jan 25, 1996, at A16); see also, e.g., Gugliotta, Interest 

Groups’ Spending Had Varied Success, Wash. Post., Nov. 7, 1996, at A28 

(“‘Incumbents with anti-working family records were defeated in 19 congressional districts where the labor movement ran aggressive ground 

and/or ad campaigns around working family issues,’ said AFL-CIO President John Sweeney. ‘Working families are back as a political force.’”). 

38 Talk of the Nation (NPR radio broadcast, Nov. 27, 1996) (quoting 

AFL’s political director, Steven Rosenthal); D. Beck et al., Issue Advocacy Advertising During the 1996 Campaign 11-13 (Annenberg Pub. Pol’y 

Ctr. 1997). 
49 

to the polls, and changed history.” LaPierre Dep., Ex. 3 (JA 

924); see LaPierre Dep. 100 (indicating that spending referred to included money for “infomercials and spot ads, both 

on television and radio”); SA 693-97(K) (discussing evidence 

that NRA used “issue” ads to influence 2000 election). 

A major Democratic contributor also testified: 

I have been approached by interest groups, such as 

NARAL and the League of Conservation Voters, 

with appeals for large donations to be used for 

broadcast advertisements that will help federal candidates whom the groups know I support. Groups 

like these know of my interest in the Senate, and 

they can be opportunistic in saying things like, “We 

think we can get Bill Bradbury elected in Oregon,” 

or in talking about how they’re going to go in and 

really help Debbie Stabenow. 

Buttenwieser Dec. ¶ 19. Another recounted how “[t]he [Democratic] party recommended that I donate to certain 

groups that were running effective ads in the effort to elect 

Vice-President Gore, such as NARAL. The assumption was 

that the funds would be used for television ads or some other 

activity that would make a difference in the Presidential 

election.” Kirsch Dec. ¶ 10. 

c. Naming Candidates. Certain common features of 

candidate-centered “issue” ads also demonstrate that they 

are intended—and overwhelmingly likely—to convey an 

electioneering message. They also help explain the choices 

Congress made when it framed Title II. Most obviously, 

such ads “almost always refer to specific candidates.” SA 

1312(L); see id. at 719(K). This is significant in part because, 

particularly in conjunction with other factors such as timing 

and targeting, it ties each ad directly to an upcoming election. Moreover, as veteran campaign consultants testified, 

“there is usually no reason to mention a candidate’s name 

unless the point is to influence an election.” SA 1312(L); 

Strother Dec. ¶ 7 (JA 2148); see Bailey Dec. ¶ 9 (JA 26). 

Rather, if the aim were only to address an issue, “invoking 

[candidates] might unnecessarily politicize the underlying 
50


message . . . and undermine [an ad’s] effectiveness.” 

Krasno/Sorauf Rep. 63 (JA 1345). 

A related feature of many candidate-centered ads was a 

tag-line exhorting the viewer or listener to call and “thank” 

the named candidate, or “ask” or “tell” the candidate something. Campaign professionals know that, in context, these 

exhortations are equivalent to urging a vote for or against 

the named candidate. Beckett Dec. ¶ 8; Pennington Dec. 

¶ 10 (JA 672-73); Lamson Dec. ¶ 6. As a senior NRA political operative put it, discussing an ad that urged viewers to 

call and “thank [a Congressman] for fighting crime”: 

Guess what? We really hoped people would vote 

for the Congressman, not just thank him. And people did. . . . [T]hree months away from an election, 

there’s not a dime’s worth of difference between 

“thanking” elected officials and “electing” them. 

SA 674(K); see Josten Dep. 230; G. Shea Dep. 46. 

d. Timing. “Issue” ads naming candidates were heavily 

concentrated in the final weeks before an election. SA 725-

28(K). The appendix to this brief includes (p. 11a) a graph 

from Judge Kollar-Kotelly’s opinion vividly illustrating how 

ads mentioning federal candidates spiked in the weeks immediately before the 2000 election. The data confirm that 

78% of interest group ads mentioning a federal candidate— 

and 85% of ads mentioning a presidential candidate—were 

aired within 60 days of the general election. Goldstein Rep. 

19 tbl. 4 (JA 1169-71). In contrast, group ads that did not 

mention candidates were distributed fairly evenly throughout the year. Id. at 3 (JA 1155). Equally tellingly, candidate-specific ads stopped—cold—on Election Day. Id. 

As an election nears, interest groups substitute ads that 

mention a candidate for ads that do not. SA 721-26(K). 

From January 1, 2000, through September 4, 2000, for example, a pharmaceutical industry-funded group called Citizens for Better Medicare (CBM) aired 23,867 television ads, 

without once mentioning a candidate. SA 690, 722(K). Between September 4 and the election, it ran 10,876 candidatespecific spots. SA 721(K). A similar pattern appears in the 

advertising of other groups, including the Chamber of Com-
51 

merce, Planned Parenthood, EMILY’s List, the Business 

Roundtable, and the League of Conservation Voters. SA 

722-25(K). 

Former consultant Douglas Bailey sums up: “In my decades of experience in national politics, nearly all of the ads 

that I have seen that both mention specific candidates and 

are run in the days immediately preceding the election were 

clearly designed to influence elections. From a media consultant’s perspective, there would be no reason to run such 

ads if your desire was not to impact an election.” SA 720(K); 

see Bailey Dec. ¶ 12 (JA 27); Pennington Dec. ¶ 10 (JA 672-

73); Goldstein Rep. 33 (JA 1186-87). 

e. Targeting. Interest groups that ran candidate-specific 

ads close to elections also targeted candidates in close contests—and almost invariably in a partisan manner. SA 728-

31(K). The AFL-CIO, for example, targeted its “legislative 

issue ads” in part based on whether they could have a “big 

impact” in “marginal district[s]”—that is, districts where 

races were likely to be close.39 

REDACTED 

Huard Dep., Ex. 7; id. at 45-46 (JA 2172-73). 

REDACTED 

Josten Dep. 269, 298 & Ex. 25. The NRA “target[ed] states 

. . . where they intended to hopefully have an impact on the 

election.” LaPierre Dep. 24-25; see id. Ex. 3 (“critical swing 

states”) (JA 923). 

The AFL’s 1996 campaign targeted 32 freshman Republicans, SA 681(K), aiming to “reclaim the Congress from the 

extremists that snatched control in 1994.”40 The AFL’s ad 

39 Mitchell Dep. 17-20. The AFL’s ads targeting then-Governor 

Bush ran in the nine states rated as “toss-ups” that had the most electoral 

votes at stake. CMAG Database; Cook & Co. Political Analysis, The Cook 

Political Report 2000: The Race for the White House (2000) [DEV 38 Tab 

17]. 

40 Mitchell Dep., Ex. 11. See, e.g., Mitchell Cross 174, 178-79, 182 (no 

Democrat targeted in a broadcast ad in the 60-day period in 2000 or 1996). 
52 

campaigns also generally targeted candidates to whom it 

assigned the lowest lifetime voting “scores” on its issues. 

Compare G. Shea Cross, Ex. 2 (ratings), with Mitchell Dec., 

Ex. 1 (targeting). 

RED ACTED 

Monroe Cross 13-15. 

REDACTED 

Monroe Cross 25, 26. A group intent on changing legislators’ 

minds would not likely choose the hardest targets—nor focus its ads on candidates’ past votes. 

3. “Issue” Ads Concealed Sponsorship 

The use of “issue” ads allowed sponsors to avoid 

FECA’s disclosure requirements. See SA 91-99(PC) (summarizing evidence), 675-77(K), 1308(L). One prominent example is the Bill Yellowtail ad quoted above (p. 43-44), which 

was part of a campaign focused on various congressional 

races, mounted by a group calling itself “Citizens for Reform.” Thompson Comm. Rep. 6305 (minority views). Recently organized as a nonprofit corporation, the group had 

“no . . . offices, staff [or] telephones,” and it never disclosed 

under FECA the identity of its principals, what it spent on 

electioneering ads, or the sources of funds. Id. at 6301-05. 

Similarly, CBM spent $65 million on television advertising in 1999 and 2000. SA 655(K), 1307(L). It held itself 

out as “a broad-based, bipartisan group representing the interests of patients, seniors, pharmaceutical research companies, doctors, caregivers, hospitals, employers, health care 

experts and many others concerned with . . . our Medicare 

system.”41 But its fundraising was conducted by the Pharmaceutical Research and Manufacturers of America, and almost all its funds for the 2000 elections came from corporate 

interests. SA 690-91(K), 1323(L). Yet before BCRA, no dis41 Citizens for Better Medicare, Who We Are, available at http:// 

web.archive.org/web/20000815061032/www.bettermedicare.org/who 

(archiving the CBM website as of Aug. 15, 2000). 
53 

closure was required so long as CBM’s ads did not use the 

“magic words.” 

There are many other examples of identities, relationships, and interests masked from voters by ad sponsors using names such as “American Family Voices,” “Voters for 

Campaign Truth,” or “American Seniors, Inc.” Krasno/ 

Sorauf Rep. 71-72 (JA 1355-56); see also, e.g., SA 97-99(PC) 

(“Republicans for Clean Air”), 643-44(K), 1252-53(L); 

Magleby Rep. 18-19 (JA 1484-85). Where ads named candidates, in their districts, just before elections, that practice 

deprived voters of just the sort of information that disclosure provisions are intended to provide. See Buckley, 424 

U.S. at 66-68, 81-82. 

4.	 Widespread Circumvention Destroyed The 

Efficacy Of The “Express Advocacy” Test 

The development, long after Buckley, of candidate-centered “issue” ads quickly destroyed the efficacy of the “express advocacy” test as a means of identifying independent 

campaign expenditures. It is now clear that words of express advocacy are not necessary, or even necessarily desirable, to frame a campaign message. SA 658-64(K), 1296-

99(L). Indeed, candidates, whose advertising is all electioneering, hardly ever use such words in their own ads, any 

more than companies tell consumers to “buy” their products. 

SA 1033(K), 1160 n.114(L). The absence of “express advocacy” thus indicates nothing about whether an ad is intended 

to or does convey an electioneering message. SA 664-75(K), 

1299-1306(L). That is why the AFL’s political director could 

comment, during the 1996 campaign, “If somebody handed 

me a magic wand and said there is no election law, I would 

do exactly what I am doing now.” Clymer, System Governing Election Spending Found in Shambles, N.Y. Times, 

June 16, 1996, at A1 (quoting Steven Rosenthal). And it is 

why by early 1997 the Chair of the NRA’s PAC could characterize the legal standard separating “issue advocacy and 

political advocacy” as “a line in the sand drawn on a windy 

day.” SA 673-74(K), 1305(L). 
54 

Not surprisingly, groups’ use of electioneering “issue” 

ads began “to rival, and in some cases outpace, advertising 

by federal candidates,” Krasno/Sorauf Rep. 51 (JA 1331), 

and political parties themselves, Magleby Rep. 20 (JA 1487). 

One study of 17 competitive congressional races in 2000 

found that interest-group spending on candidate-specific ads 

amounted to as much as two-thirds of what candidates 

themselves spent on radio and television ads. Magleby Rep. 

22 (JA 1491). In the 60 days before the 2000 election, in 

eight battleground States, groups aired more than half as 

many ads about presidential candidates as did the candidates 

themselves. Goldstein Rep. 12 (JA 1164). And groups ran 20 

“issue” ads naming candidates for every such ad run by their 

PACs. SA 656(K). In sum, as Judges Leon and KollarKotelly concluded, widespread manipulation of the “express 

advocacy” test thoroughly sapped the force of the type of 

source and disclosure rules for independent expenditures 

that this Court approved in Buckley and Austin. SA 657-

58(K), 1296-1302(L). 

5. The Potential For Corruption 

This Court has recognized that “Congress might well be 

able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” First National Bank 

of Boston v. Bellotti, 435 U.S. 765, 788 n.26 (1978). Although 

the Court has previously found it unnecessary to rely on that 

specific type of corruption in order to uphold source restrictions on corporate expenditures, see Austin, 494 U.S. at 659-

60, the record here shows just such a threat. See SA 708-19, 

835-40(K), 1161-62(L). 

“[T]he people who admit to running these ads will later 

remind Members of how the ads helped get them elected.” 

Simpson Dec. ¶ 13 (JA 812). Indeed, any reminder may be 

superfluous: 

REDACTED 

Huard Dep. 92. 

From the candidates’ point of view, “[a]n important element 

running through modern campaign plans is consideration of 
55 

what role political parties and interest groups are going to 

play in your campaign.” Pennington Dec. ¶ 4 (JA 669). In 

1996, for example, 

REDACTED 

Josten Dep. 19-21. 

REDACTED 

Josten Dep. 270; see SA 711-

13(K). 

Independent ad campaigns can thus be used to seek access and influence in much the same way as contributions. 

Candidates “pay very close attention to the political advertisements broadcast in their districts,” and “keep track of 

who is helping them.”42 Former legislators confirm that 

“members realize how effective these ads are, and they may 

well express their gratitude to the individuals and groups 

who run them.”43 Lobbyist Wright Andrews, who advises a 

broad array of corporations and other groups, describes candidate-specific “issue” ads as simply “[a]nother practice used 

to secure influence in Washington.” Andrews Dec. ¶ 17 (JA 

6). In his well-informed view, “[a]n effective advertising 

campaign may have far more effect on a member than a direct campaign contribution or even a large soft money donation to his or her political party.” Id. 

Thus, candidates can be as beholden to corporations or 

unions for an ad campaign as for a check. Yet before BCRA, 

42 SA 709(K); Strother Dec. ¶ 13 (JA 2150); see Magleby Rep. 15; 

Pennington Dec. ¶ 8 (JA 671-72) (“In addition to trying to elect candidates, these groups are often trying to create appreciation or even obligation on the part of successful candidates.”); Beckett Dec. ¶ 16 (“Of course 

candidates often appreciate the help that these interest groups can provide, such as running attack ads for which the candidate has no responsibility.”); Chapin Dec. ¶ 16 (“Federal candidates appreciate interest group 

electioneering ads . . . that benefit their campaigns, just as they appreciate 

large donations that help their campaigns.”); Bloom Dec. ¶ 17 (JA 54-55); 

Lamson Dec. ¶ 19. 

43 Simpson Dec. ¶ 13 (JA 811-12); see Bumpers Dec. ¶ 27 (“Members 

will also be favorably disposed to those who finance these groups when 

they later seek access to discuss pending legislation.”) (JA 178). 
56 

expenditures on ads, unlike direct contributions, could be 

made with treasury funds, and without public disclosure. 

That situation “create[d] enormous opportunities . . . for favors to be exchanged between issue advocates and public 

officials.” Krasno/Sorauf Rep. 74 (JA 1357). And whether or 

not any actual exchange takes place, the appearance of corruption can be just the same. SA 713(K) (80% of poll respondents believed that a Member of Congress would likely 

give “special consideration” to the views of an individual, 

group, corporation, or union that spent $50,000 on broadcast 

political ads benefiting the Member). 

B.	 Title II Is Narrowly Tailored To Serve Compelling Public Interests 

Confronted with the collapse of the “express advocacy” 

test as an effective regulatory dividing line, Congress had a 

choice. It could accept that source and disclosure rules had 

been rendered a dead letter—despite this Court’s decisions 

upholding the constitutionality of such rules when applied to 

campaign spending. It could create a new statutory definition of “campaign” spending that depended on some finding 

of electoral intent or effect—but that would surely be attacked as too vague and subjective in application. Or it could 

rely on available data, and its Members’ experience, to frame 

an objective definition that would address the problem, 

without imposing even the modest burden of source and disclosure rules on any more speech than was necessary to restore the effectiveness of longstanding rules. 

Title II responds narrowly and objectively to the circumvention problem. It does not “ban” any speech, and neither its disclosure rules nor its requirement that corporations and unions use their PAC funds imposes any great 

burden. Its definition of “electioneering communications” is 

limited to broadcast ads, because that is where abuse was 

most prevalent. It is further limited to candidate-specific 

ads that are targeted to the candidate’s electorate, because 

those are the ads sponsors used in their electioneering campaigns. And it is still further limited to ads run in the final 

weeks before an election, because the objective empirical 
57 

evidence makes clear that, so limited, it will reach the vast 

majority of candidate-specific issue ads, at the time when 

they are almost certain to convey an electioneering message—while imposing even its modest burdens only during 

the carefully circumscribed period when they are most 

clearly necessary to serve compelling public interests. 

This careful, experience-based adjustment of the definition of which advertising expenditures are campaign-related 

serves precisely the same interests that the Court has recognized in sustaining source and disclosure rules as applied 

to “express advocacy.” Source restrictions prevent the conversion of organizational treasuries into political “war 

chests” that could be used to incur political debts from legislators. Beaumont, 123 S. Ct. at 2206.44 They protect the individuals “‘who have paid money into a corporation or union 

for purposes other than the support of candidates from having that money used to support political candidates whom 

they may oppose.’” Id. And they address the “corrosive and 

distorting effects” on elections that could otherwise arise 

when corporations and unions amass “aggregations of 

wealth” that may have “little or no correlation to [individuals’] support for the [organization’s] political ideas.” Austin, 

494 U.S. at 660. Rules that permit campaign spending only 

from PAC funds are “precisely targeted to eliminate the distortion caused by corporate spending while also allowing 

corporations to express their political views.” Id.; see also 

Beaumont, 123 S. Ct. at 2211.45 

44 Beaumont dealt with a limitation on contributions, but its discussion of the interests served by source restrictions draws on cases involving expenditures (including Austin), and those interests are largely the 

same in both situations. See 123 S. Ct. at 2206-07. 

45 Plaintiffs argue (McConnell Br. 47) that under Bellotti, which involved corporate spending on an issue referendum, these interests do not 

support source rules for “political advocacy.” Apart from distinctions between Title II and the law at issue in Bellotti which had, for instance, no 

temporal limitation, applied to all media, and did not provide for PAC 

spending, see 435 U.S. at 767-68 & n.2, that argument begs the question at 

issue here: How Congress may identify expenditures that relate to candidate elections. See id. at 788 n.26 (“[O]ur consideration of a corpora-
58 

Disclosure rules, for their part, “shed the light of publicity on spending that is unambiguously campaign related but 

would not otherwise be reported because it takes the form of 

independent expenditures.” Buckley, 424 U.S. at 81. Knowing who is spending money to support or oppose candidates 

“allows voters to place each candidate in the political spectrum more precisely,” “alert[s] the voter to the interests to 

which a candidate is most likely to be responsive” while in 

office, and “deter[s] actual corruption and avoid[s] the appearance of corruption by exposing large . . . expenditures to 

the light of publicity.” Id. at 66. Disclosure thus provides “a 

reasonable and minimally restrictive method of furthering 

First Amendment values by opening the basic processes of 

our federal election system to public view.” Id. at 82; see 

also, e.g., Bellotti, 435 U.S. at 792 n.32. And both source restrictions and disclosure serve the interest in preventing circumvention of other campaign finance rules. Beaumont, 123 

S. Ct. at 2207; Buckley, 424 U.S. at 67-68.46 

Source and disclosure rules serve these interests not 

only when an ad is run with the express or principal purpose 

of affecting an election, but also when it is likely to have such 

an effect. The record shows how Title II addresses widespread, conscious circumvention, involving ads run with unmistakable electioneering intent. Plaintiffs, however, focus 

on potential applications of BCRA’s objective definition at 

its margins, where intent might be difficult to discern, or in a 

tion’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 public election to office”). 

46 Title II’s rules help prevent circumvention of Title I, which prohibits the raising of soft money that parties spent in part on campaign 

“issue” ads. That reform would be undermined if corporations or unions 

could substitute their own ad spending for party contributions, or if parties could divert contributions to nominally independent groups that 

would design and run such ads. See 145 Cong. Rec. S12,661-62 (Oct. 15, 

1999) (Sen. Feinstein) (“Instead of giving soft money to political parties, 

the same dollars [could] be turned into ‘independent’ ads.”); see also 

Thompson Comm. Rep. 5927 (minority views) (RNC contributions to nonprofit groups), 5967, 5974-79 (RNC cooperation with such groups). 
59 

few cases might even be absent. It is therefore important to 

recognize that an ad’s likely electoral effect is as salient as 

its sponsor’s subjective motives in determining whether the 

burdens imposed by source and disclosure rules are constitutionally proportionate to the public benefits they provide. See Center for Gov’tl Studies Br. 13-15, 26-28. 

It is also important to recognize that Title II’s standards 

for defining which ads will be treated as campaign-related 

squarely serve a compelling interest in using clear and objective lines to frame any rule that affects speech. It was, 

after all, principally a concern for clarity that first led this 

Court to adopt the “express advocacy” test as a gloss on 

FECA’s language. Buckley, 424 U.S. at 40-44, 79-80; see pp. 

60-62. Twenty years later, that test proved too open to manipulation to remain effective. In responding, Congress 

heeded the Court’s admonitions concerning vagueness. 

Plaintiffs have conspicuously failed to suggest any way in 

which Congress could better have reconciled the twin compelling goals of adequate coverage and necessary clarity.47 

Finally, the nicety with which legal requirements must 

be tailored depends in part on the magnitude of the burdens 

they impose. See, e.g., Beaumont, 123 S. Ct. at 2211 (“the 

difference between a ban and a limit” on speech is to be considered “when applying scrutiny at the level selected”); 

Buckley, 424 U.S. at 68 (in determining whether disclosure 

requirements are justified by the interests they serve, “we 

must look to the extent of the burden that they place on individual rights”). The burdens imposed by source and disclosure rules are modest—as this Court has recognized. See 

Beaumont, 123 S. Ct. at 2211 (“the PAC option allows corporate political participation without the temptation to use 

corporate funds for political influence”); Austin, 494 U.S. at 

660-61; Buckley, 424 U.S. at 68, 82 (disclosure is “minimally 

restrictive”). Particularly in light of that circumstance, Title 

47 See Foley, “Narrow Tailoring” Is Not the Opposite of “Overbreadth,” 2 Elec. L. J. (forthcoming Oct. 2003), available at http://www. 

liebertpub.com/ELJ/Foley1.pdf (temporary pp. 7-12). 
60 

II’s requirements are narrowly tailored to serve their compelling public goals.48 

C.	 Buckley Did Not Establish “Express Advocacy” 

As A Constitutional Straitjacket 

Plaintiffs argue that however ineffective the “express 

advocacy” test may have become, Buckley established it as a 

constitutional limit. The district court properly rejected 

that argument. SA 783-799(K), 1147(L). Buckley adopted a 

practical, limiting construction of particular statutory language that was impermissibly vague—not a constitutional 

standard that would foreclose Congress from redrawing the 

statutory lines as necessary to reflect experience and to 

make them effective. 

Buckley explained that a provision imposing an absolute 

cap on independent campaign expenditures “‘relative to’ a 

candidate fail[ed] to clearly mark the boundary between permissible and impermissible speech.” 424 U.S. at 41. Similarly, a provision for disclosure of independent expenditures 

made “for the purpose . . . of influencing” nominations or 

elections raised “serious problems of vagueness,” because it 

“could be interpreted to reach groups engaged purely in is48 Appending a supposedly “representative” sample of legislative 

history, the NRA argues at length that Congress’s purpose in enacting 

Title II was not, as in Title I, to prevent corruption and circumvention, 

but to protect incumbents from public attack. That is incorrect. As reflected in the excerpts from the legislative history collected in the appendix to this brief (at 12a-27a), Congress enacted Title II to serve the very 

purposes that underlie the preexisting independent expenditure provisions: bringing campaign spending of the “issue” ad variety within the 

scope of longstanding source and disclosure rules. See, e.g., App. 14a (Sen. 

Snowe: “The record .. . will show these advertisements constitute campaigning every bit as much as any advertisements run by candidates 

themselves or any ad currently considered to be express advocacy and 

therefore subject to Federal election laws.”); id. (Sen. McCain: “This bill 

would simply subject soft money-funded campaign ads that masquerade 

as issue discussion to the same laws that have long governed campaign 

ads.”). As Senator Thompson’s amicus brief confirms (26-28), his Committee’s path-marking investigation resulted in similar conclusions. See App. 

22a-26a. 
61 

sue discussion,” as well as those whose speech also involved 

“advocacy of a political result.” Id. at 76, 79 (emphasis 

added). In each instance, the Court addressed the vagueness problem by construing the statutory language to “reach 

only funds used for communications that expressly advocate 

the election or defeat of a clearly identified candidate.” Id. 

at 80 (footnote omitted); see id. at 44 & n.52. 

In adopting the “express advocacy” construction, Buckley never purported to render all “issue” speech immune 

from source or disclosure rules. Even campaign speech that 

uses “express advocacy” typically also conveys issue messages—and, conversely, the Court recognized that electoral 

advocacy could be effective without being “express.” 424 

U.S. at 45 (noting that “express advocacy” test could permit 

circumvention of expenditure caps). Thus, the principal virtue of the “express advocacy” test was its clarity, not any 

perfect differentiation between campaign speech and pure 

“issue” speech.49 Title II shares that same cardinal virtue— 

and does a much better job of identifying campaign speech, in 

light of extensive experience with the realities of the political marketplace. Such periodic statutory repair is a normal 

process—and the natural province of legislatures, not of 

courts. See Beaumont, 123 S. Ct. at 2205-06; NRWC, 459 

U.S. at 209-10. It would make no sense to read any of this 

49 As plaintiffs point out (McConnell Br. 40, 42), both Buckley and 

the Court’s later opinion in FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) (MCFL), which extended the “express advocacy” construction to the provision that imposes source restrictions on corporate 

and union campaign expenditures, linked the problem of statutory vagueness with that of overbreadth. That is hardly surprising. See p. 63. 

MCFL’s decision to adopt a parallel construction of two statutory provisions is equally unremarkable—particularly given Congress’s own adoption of the “express advocacy” standard, after Buckley, in FECA’s definition of “independent expenditure.” See 2 U.S.C. § 431(17). Nothing in 

Buckley or MCFL suggests that any different congressional approach to 

defining campaign-related spending is automatically invalid. 
62 

Court’s cases in a way that would disable Congress from acting on the lessons of experience.50 

To the contrary, Buckley is more a roadmap than a constitutional stop sign. Two general concerns emerge from the 

Court’s discussion: Statutory requirements in this area 

should be clear rather than vague, in part so they will not 

“dissolve in practical application,” 424 U.S. at 42; and they 

should be “directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate,” id. at 80; see id. at 76-82. Those are precisely the 

precepts to which Congress adhered in framing Title II. 

D. Facial Invalidation Of Title II Would Be Especially Inappropriate 

Plaintiffs contend that Title II is “overbroad under the 

First Amendment, and cannot be applied to [them]—or anyone else.” Virginia v. Hicks, 123 S. Ct. 2191, 2196 (2003). 

They attack Congress’s use of an objective definition of 

“electioneering communications,” pointing to a few marginal 

examples of ads that would fall within the definition, yet 

might have no electioneering purpose or likely effect. 

Such a challenge cannot succeed unless plaintiffs carry 

“the burden of demonstrating, ‘from the text of [the law] and 

from actual fact,’” that Title II, “taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep.” Hicks, 123 S. Ct. at 2198. They must show 

that the “substantial social costs created by the overbreadth 

doctrine,” when it results in the facial invalidation of a law 

that would have many valid applications, are outweighed by 

any potential “chilling effect” on speech in circumstances 

that might support an as-applied challenge. Id. at 2196-97; 

50 Buckley did not discuss independent expenditure provisions as 

applied to corporations or unions. In light of the long history of special 

treatment of these entities in campaign finance law, it surely makes no 

sense to read Buckley , or the simple adoption of a parallel construction in 

MCFL, to preclude Congress from taking further action to address the 

sort of massive corporate and union expenditures on campaign advertising 

that began in earnest ten years after MCFL. 
63 

see Broadrick v. Oklahoma, 413 U.S. 601, 614-15 (1973). 

“Facial invalidation ‘is, manifestly, strong medicine,’” to be 

used “‘sparingly and only as a last resort.’” NEA v. Finley, 

524 U.S. at 580. 

That cautious approach is particularly appropriate here. 

Plaintiffs argue as though source and disclosure rules may 

be applied only to conduct or to “unprotected” speech, and 

the question is whether Title II might stray beyond that 

line. See McConnell Br. 50. That approach is fundamentally 

misconceived. “Discussion of public issues,” while surely 

protected speech, cannot be any more protected than speech, 

including “express advocacy,” that relates directly to “‘the 

conduct of campaigns for political office.’” Buckley, 424 U.S. 

at 14-15. Yet this Court has already made clear that it is 

consistent with the First Amendment for Congress to impose source and disclosure rules on independent campaign 

speech—in part because such rules involve no censorship, 

but only the source and transparency of campaign funding. 

At the margins, Congress’s new, objective definition of 

campaign-related speech might result in source and disclosure rules applying in a few situations in which the public 

interests they serve are not strongly implicated. But the 

manifestly compelling need for clear line-drawing in this 

sensitive area counsels deference to Congress’s placement of 

the line—especially where, as here, its application never 

prohibits any speech, and imposes only limited burdens that 

are acceptable even as applied to fully protected speech.51 In 

these special circumstances, the cost of facially invalidating 

rules of a sort this Court has previously held to be justified 

would be particularly high, while the benefits to be gleaned 

in terms of speech protection would be unusually low. 

51 See, e.g., Burson v. Freeman, 504 U.S. 191, 208-10 (1992) (upholding, under strict scrutiny, a ban on campaign-related speech within 100 

feet of polling places); Storer v. Brown, 415 U.S. 724, 736 (1974) (recognizing “compelling” interest in bright-line one-year disaffiliation rule for candidates seeking to switch party sponsorship for ballot access). 
64 

Similarly, Title II poses little risk of the sort of chilling 

effect that can justify the facial invalidation of an overbroad 

law. See Hicks, supra. That effect is of most concern when a 

law is vague. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 n.6 (1982) (“[T]he 

vagueness of a law affects overbreadth analysis.”). Here, 

Title II was specifically designed to avoid vagueness. Cf. 

Broadrick, 413 U.S. at 607. Moreover, at most, the law requires only that groups like the Chamber of Commerce, the 

AFL, and the NRA pay for some ads using PAC funds, 

rather than treasury funds. These corporate and union 

plaintiffs, which have or can easily establish PACs, are not 

likely to be chilled in their speech, or to be unable to assert 

their rights if and when there is a realistic threat that the 

Act may be applied to them in some unconstitutional way. 

In these circumstances, awaiting as-applied challenges, arising in specific factual contexts, is by far the wiser course. 

1.	 Plaintiffs Have Not Demonstrated Substantial Overbreadth 

In addressing plaintiffs’ overbreadth challenges, we address first arguments of more general applicability, and then 

those involving the special situation of ideological nonprofit 

corporations such as the NRA and ACLU (see pp. 73-75). 

a. The Period Just Before Elections. One conspicuous 

virtue of Title II is its narrow, evidence-based focus on the 

final weeks leading up to a specific federal election, involving 

the specific candidate named in a covered ad. See pp. 49-51, 

56. Remarkably, plaintiffs attempt to use that important 

aspect of narrow tailoring as evidence of overbreadth. They 

argue that Title II would restrict their ability to address legislative issues that might arise in the period just before elections. Yet, any ad that triggers Title II is very likely to have 

some actual effect on an election, whatever its intent. In any 

event, BCRA does not stop anyone from speaking during the 

covered period. Sponsors may run even candidate-specific 

ads, targeted at the relevant electorate, so long as they disclose their sponsorship and funding, and use no corporate or 

union treasury funds. They can also craft ads addressing 
65 

legislative issues in ways that do not trigger Title II— 

avoiding candidate references, or using non-broadcast media, or avoiding the districts of mentioned candidates in the 

final weeks before their elections.52 

It might be possible to describe a small category of ads 

that are facially covered by Title II, but have no likely electioneering intent or effect—for instance because they refer 

only to pending legislative issues, and refer to candidates 

only by saying, generically, “Call your Congressman.” 

BCRA expressly authorizes the FEC to adopt regulatory 

exemptions if it is satisfied that they can be framed in a way 

that meets statutory criteria and does not open paths for 

abuse. 2 U.S.C. §434(f)(3)(B)(iv). Indeed, as the NRA 

points out (Br. 36), the intervenor-defendants suggested to 

the FEC a narrow exemption of the sort just noted. The 

FEC determined, however, that the proposed exemption 

would leave room to design ads that nonetheless promoted 

or opposed candidates. 67 Fed. Reg. 65,201-02. No plaintiff 

appealed that decision. In any event, even without an exemption, plaintiffs cannot show that the burden of complying 

with Title II will be disproportionate to the compelling interests it serves in anything like enough cases to justify 

striking the law on its face. 

Plaintiffs also argue that the public is most receptive to 

issue advocacy just before elections. If they mean that election time is ideal for public policy discussions wholly divorced from the electoral context, their argument is both 

52 The NRA argues (Br. 44-50) that the statutory exemption for 

broadcast news and editorials is unconstitutional, because the world has 

changed so much in 13 years that this Court should revisit its rejection of 

that argument in Austin, 494 U.S. at 666-68. If and when Congress concludes that corporations are abusing their ownership of media outlets to 

interfere in federal elections using their treasury funds, it may consider 

whether it is necessary to adopt some statutory adjustment. Nothing in 

the NRA’s submissions concerning the growth of the internet or changes 

in corporate ownership calls into serious question the unique role of the institutional press, or the permissibility of a media exemption as a matter of 

constitutional law. Indeed, an important purpose of that exemption is to 

avoid the sort of overbreadth concerns that plaintiffs otherwise voice. 
66 

implausible and contrary to the testimony of an expert and 

two experienced practitioners. See pp. 50. A period when 

airtime is particularly expensive and the airwaves are 

crowded with campaign ads is generally not the best time to 

address the public with issue messages that in fact have 

nothing to do with elections. If instead plaintiffs mean that 

broadcasting ads discussing issues and referring to a candidate, targeted to the candidate’s electorate, at the time that 

voters are deciding whom to elect, best allows them to “influenc[e] the electoral issue climate” and “generat[e] popular 

pressure on candidates,” because especially at that moment 

“electoral considerations motivate officeholders” (and their 

challengers), see AFL Br. 21, then they are simply restating 

the rationale for Title II. 

b. The Empirical Evidence. Congress knew from Members’ own experience that the vast majority of ads BCRA 

covers have an electioneering purpose or effect. It also considered empirical evidence, including studies by the Annenberg Public Policy Center (which plaintiffs have never contested), SA 652-57(K); Professor Magelby’s study “Dictum 

Without Data,” see 147 Cong. Rec. S252-53 (Apr. 2, 2001) 

(Sen. Thompson); and the CMAG database of political advertising, in the form of the 1998 and 2000 Buying Time studies 

much discussed below, see SA 1031-73(K), 1327-56(L), 238-

48(H). Apart from an ad hominem attack (McConnell Br. 53 

n.18), plaintiffs do not dispute that the CMAG data represent the most comprehensive body of research on political 

television advertising ever conducted.53 

Indeed, plaintiffs do not challenge the vast majority of 

the findings based on the CMAG data—including the central 

findings, summarized above and in the opinions below, that: 

the extent of political advertising by interest groups grew 

53 With regard to plaintiffs’ personal aspersions, we note only that 

Judge Leon, after carefully reviewing the matter, concluded that any interest the Buying Time authors had in campaign finance reform did not 

“skew[] the results” of their research, and that any “flaws and shortcomings .. . do not detract from the studies’ credibility and reliability.” SA 

1335; see also League of Women Voters Br. 18-29. 
67 

explosively during and after the 1996 election cycle; candidates and political parties, whose electioneering purposes 

are undisputed, do not use “express advocacy” in their ads; 

candidate-centered “issue” ads run by interest groups are 

overwhelmingly concentrated in the final weeks before elections; groups target such ads at close campaign races and in 

a partisan manner inconsistent with protestations that they 

mean to address only “issues”; and these patterns are different for ads that do not name candidates. See, e.g., pp. 49-53; 

SA 678-708(K), 1315-26(L). These unchallenged findings, 

based entirely on objective data, refute plaintiffs’ wishful 

assertion that the defense of Title II “relie[s] almost exclusively” on the single aspect of the empirical evidence that 

they attack. McConnell Br. 53. 

Plaintiffs focus on one question in each Buying Time 

study, in which student coders were shown ads (out of the 

context in which they ran) and asked whether, in their view, 

“the purpose” of each ad reviewed was to provide information about or urge action on an issue, or to generate support 

for or opposition to a candidate. Buying Time 1998 at 193 

(Q. 6); Buying Time 2000 at 99 (Q. 11). Responses to that 

question allowed researchers to estimate the percentage of 

issue-focused ads aired by interest groups over the whole 

year that BCRA would have covered, and the percentage of 

all interest group ads covered by BCRA that were classed 

by the student respondents as issue-focused rather than 

campaign-focused. The first test explores how much issuefocused speech over the course of an election year BCRA 

leaves completely unaffected, while the second seeks to get 

at how effective BCRA is in covering what it intends to 

cover. Defendants’ expert witnesses estimated that of all 

airings of issue-focused ads by interest groups in the two 

election years studied, only 6.1% in 1998 and 3.1% in 2000 

would have been treated as “electioneering communications.” The estimated proportion of ads BCRA would have 

covered that were coded as issue-focused was 2.3% in 2000; 

14.7% in 1998 (when there was no presidential election); and 

3% for the two years combined. Krasno/Sorauf Rep., App. at 
68 

C (for 1998), 60 n.143; Goldstein Rep. 25 (for 2000) (JA 1383, 

1342, 1179). 

Although both plaintiffs and the opinions below discuss 

these particular figures at some length (see, e.g., McConnell 

Br. 53-57), only four essential points need be made. First, 

experts defend the disputed subjective component of the 

empirical evidence as one instructive measure strongly suggesting that Title II “does a good job hitting what it is aiming at . . . and missing what it is not.” Krasno/Sorauf Rep. 

60-61 (JA 1343). Nonetheless, given all the objective evidence defining the problem of candidate-centered “issue” 

ads and demonstrating the tailoring of Congress’s response, 

the subjective evidence is in no way essential. Indeed, the 

dispute over it supports Congress’s decision to adopt an entirely objective definition of what constitutes “electioneering.” 

Second, Judge Leon based his overbreadth analysis in 

part on the misunderstanding that defendants’ expert Dr. 

Goldstein “testified on cross examination that he had reevaluated the results of the [2000] study . . . and concluded 

that, in fact, 17 percent” of ad airings that would have been 

covered by BCRA in 2000 “were genuine issue advocacy.” 

SA 1157(L); see SA 767(K). As the amicus brief filed by the 

League of Women Voters demonstrates (24-25), it simply 

misreads the record to attribute to Dr. Goldstein a figure 

generated by plaintiffs, and only through an implausible recoding of the underlying data.54 

54 Briefly, the 2000 study included seven similar CBM ads. Student 

respondents originally coded six of them as campaign-focused and one as 

issue-focused. See Goldstein Rebuttal Rep. 16-17; Goldstein Cross 159, 

216. During cross-examination, Dr. Goldstein explained that although all 

the ads should have been classified as electioneering, his report adopted 

the conservative approach of honoring the original, anomalous coding of 

the seventh ad. See Goldstein Cross 127, 159, 217-20. Plaintiffs’ counsel 

demonstrated that if one instead treated all seven as “issue” ads, one 

could mathematically generate the 17% figure. Id. at 160-69. Dr. Goldstein never suggested that, given the actual original coding of the ads, 

that approach would make any sense. See id. at 216-20 (confirming he had 

“[no] doubt at all that these ads should be classified as electioneering”). 
69 

Third, plaintiffs, who bear the burden of proving that 

Title II is so overbroad that it should be struck down on its 

face, produced no empirical evidence of their own. See SA 

764, 856(K). Nor have they challenged any of the objective 

evidence put forward in support of Title II. 

Fourth, and most important, whatever their real or 

imagined flaws, the subjective research results cannot demonstrate the invalidity of Title II. They are based on questions that asked respondents to identify “the purpose” of 

each ad. Respondents were not allowed to answer “both.” 

Yet, as both sides have emphasized, many if not most campaign ads—including ads run by candidates, and ads that use 

“express advocacy”—also discuss issues. Source and disclosure rules serve their purposes so long as one material purpose or effect of an ad is to influence a federal election. Thus, 

if the survey results presented by defendants’ experts correctly identify the percentage of ads whose principal focus 

was electioneering, then they are strong evidence of extremely narrow tailoring. But even if some or all of plaintiffs’ criticisms are correct, then whatever recomputation is 

justified would identify only a larger percentage of ads 

whose principal focus was on issues. Because ads with that 

focus might nonetheless have influencing elections as another material purpose or effect, such results would neither 

support plaintiffs’ claim of overbreadth, nor undercut any of 

the record’s other evidence of proper tailoring. 

c. Plaintiffs’ Examples. Finally, plaintiffs offer a few 

examples—presumably the best they could find—of ads they 

claim “powerfully illustrate[]” the overbreadth of Title II. 

McConnell Br. 50. Their examples are, indeed, telling. 

One ad featured by the McConnell plaintiffs (Br. 51, 1a) 

complains about “Washington politicians,” advocates term 

limits, points out that one candidate has “signed the pledge 

to limit her terms” but that the other “refused,” and ends by 

urging viewers to “[c]all David Wu and tell him to sign” the 

pledge. What really “seem[s] unthinkable” (Br. 51) about 

this ad is that plaintiffs would seriously suggest that when 

broadcast in Wu’s district, just before an election, it might 
70 

have had no electioneering purpose or effect. See p. 49 (discussing use of “call” or “tell” tag-lines). 

The McConnell plaintiffs also feature (Br. 52, 3a) an ad 

run by the Michigan Chamber of Commerce naming Senate 

challenger Debbie Stabenow. The ad aired between September 20 and five days before the 2000 election. It says 

families risk losing their businesses “[b]ecause of the Death 

tax”; criticizes Stabenow for “vot[ing] twice against getting 

rid of the Death tax”; and asks viewers to “Call Debbie Stabenow” and “[t]ell her our working families need a break.” 

It highlights past votes in the House, not an upcoming vote. 

A Chamber official acknowledged that voters “would negatively perceive” Stabenow in light of such ads, and that the 

reason for running them was that “she was in that time . . . a 

candidate for public office and we felt that the people of . . . 

Michigan needed” the ad as “necessary information” for 

their “decision-making process.” LaBrant Dep. 34-35, 37. 

The “decision” in question was what Senator to elect. 

We certainly agree with plaintiffs that this ad, and the 

others like it that are attached to the McConnell plaintiffs’ 

brief, are “speech fully protected by the First Amendment.” 

McConnell Br. 52. They also serve quite well to illustrate 

just the sort of obviously campaign-focused ads that interest 

groups were airing before BCRA—without complying with 

the FECA provisions meant to preclude groups like the 

Chamber of Commerce from using treasury funds to run 

campaign ads, and without disclosing to the public just who 

was funding the campaign activities of groups with names 

like “Coalition for the Future American Worker” (Br. 6a) or 

“Americans for Job Security” (Br. 12a). 

There are a few examples of spot ads that may have 

been designed and run without any material electioneering 

purpose, despite naming candidates, reaching a targeted 

electorate, and running close to an election.55 The AFL, for 

55 The ACLU submits (Br. 10-11) one example of an ad that it claims 

falls in this category. As Judge Kollar-Kotelly explained, this is the only 
71 

instance, ran two “cookie cutter” ads that targeted numerous Members of Congress, only some of whom were candidates. One urged opposition to granting China permanent 

most-favored-nation status. See McConnell Br. 51, 2a. Another alleged denial of benefits by HMOs, and criticized “Republicans in Washington” for “pushing an empty HMO proposal that won’t stop these abuses.” AFL Br. 6 (“Deny”) 

(included in DEV 48, Tab 3 as “HMO Said No”). When targeted at incumbents not then running for reelection, these 

ads would not have been covered by BCRA. (The China ad, 

for example, would have triggered Title II in only two of 

fourteen market locations in which it ran. See Mitchell Dec., 

Ex. 1 at 92-93.) Where the target was a candidate, there is 

every reason to assume that the ads did have an electoral 

effect—and quite possibly some electoral purpose as well. 

Plaintiffs make much of any uncertainty concerning actual electoral intent or effect in such marginal cases. Similarly, in their discussion of Title II’s back-up definition (Br. 

59-61), the McConnell plaintiffs argue that reasonable people 

could disagree about whether some ads “support or oppose” 

a candidate. Avoiding subjective judgments in individual 

cases is, of course, one principal reason Congress chose to 

enact an objective primary definition to define the coverage 

of Title II—a choice that honors this Court’s emphasis on 

avoiding vagueness in regulations that touch on speech. But 

if one attempts such judgments, then as the AFL itself emphasizes (Br. 18), evaluation of the likely intent or effect of a 

particular ad requires consideration of the full context surrounding its use.56 Accordingly, a court would need to have 

ad in the ACLU’s history that satisfied Title II’s criteria—and the ACLU 

manufactured it just so it could be a plaintiff in this case. SA 748-51. 

56 The ad “AAHP/Look Out for the Lawyers” (McConnell Br. 9a), for 

example, praises then-incumbent Senator Lauch Faircloth for “fighting to 

stop the trial lawyers,” who “want[ed] Congress to pass new liability 

laws” that would “make trial lawyers richer” but “make healthcare unaffordable for millions.” As Judge Kollar-Kotelly explains, in context, that 

ad clearly conveyed an electioneering message supporting Faircloth 

against his opponent, prominent trial lawyer John Edwards. SA 733-34. 
72 

a more complete and focused picture of all relevant circumstances before concluding that applying source and disclosure rules to a particular ad like any of those cited by plaintiffs would be constitutionally invalid. 

As this discussion underscores, Congress could have 

achieved greater precision of the sort plaintiffs profess to 

seek only by using a flexible statutory standard—one inevitably tied to more subjective factors, such as those that 

plaintiffs criticize in attacking the back-up definition. In effect, plaintiffs seek to create a legal dead zone in which Congress cannot, as a practical matter, avoid either facial overbreadth or facial vagueness. The Court should not tolerate 

that cynical contention. It would be an odd Constitution that 

theoretically allowed Congress to impose source and disclosure rules on independent campaign spending, but restricted 

it to means that have proven wholly ineffective. 

Finally, the NRA refers to some of its 30-minute “infomercial” ads, in which some references to candidates might 

be deemed incidental. See Br. 37-43. (Among plaintiffs, only 

the NRA runs such ads. In a 30- or 60-second ad, no image 

or word is “incidental.”) Understandably, it does not focus 

on any of its unabashedly partisan infomercials, such as the 

one that led with Charlton Heston’s observation that “[t]his 

election could come down to battleground states,” and continued with repeated references to Al Gore. See McQueen 

Dep. 113-30 (JA 960-70) (text of ad). Nor does it dwell on 

ads such as the two spots set out side-by-side at SA 695-

96(K), one funded from the NRA’s treasury and the other by 

its PAC. The difference? The PAC ad ends with “Vote 

George W. Bush for President,” while the “issue” ad makes 

do with Charlton Heston observing—just before the 2000 

election—that “the day of reckoning is at hand.” See also SA 

697(K). Whatever Title II’s impact on the exceedingly small 

universe of 30-minute ads with truly incidental candidate 

references run just before elections, it cannot support a 
73 

claim that Title II is facially invalid as to all ads to which it 

applies.57 

2.	 Title II Properly Reaches Nonprofit Corporations Unless They Qualify For An AsApplied Exemption under MCFL 

The NRA and the ACLU argue that nonprofit, ideological corporations should not be treated like other corporations for purposes of campaign finance regulation. That 

argument is incorrect as a general matter, and this litigation 

is not the place for as-applied challenges by these plaintiffs. 

To begin with, neither organization demonstrates that 

compliance with Title II would impose any great burden. 

The NRA claims that BCRA would reduce its members’ 

“collective voice” to a “whisper” (Br. 25), but there is no reason that should be so—if, in fact, the members do support 

the group’s electoral speech. Nothing prevents the NRA 

from reducing its membership dues by some amount, and 

asking its four million members to contribute that amount to 

its Political Victory Fund. In any event, during the 2000 

election cycle, the PVF’s own fundraising was already so 

successful that it used its own funds to pay for administrative expenses that could legally have been paid with NRA 

treasury funds. Adkins Cross 41-43. The ACLU, meanwhile, complains principally (Br. 17) that it does not want to 

set up a segregated fund to comply with BCRA, because it 

“is not a partisan organization and does not choose to present itself as one.” It never explains why there is any “presentation” issue. FECA does not require that segregated 

funds adopt a partisan name, make political contributions, or 

engage in partisan conduct. No one need misunderstand the 

purposes of the “ACLU Election-Period Non-Partisan Legislative Advocacy Fund.” 

57 The NRA also argues (Br. 38-41) that it uses broadcast advertising to respond to public attacks and raise funds. It does not demonstrate 

that these efforts would be materially impeded by complying with Title II, 

or explain why such ads would not raise source and disclosure concerns if 

they name candidates and run in their districts just before elections. 
74 

In contrast to these imagined burdens, the risks posed 

by an “issue” advocacy exemption for nonprofits are very 

real. This Court has expressly recognized that the basic 

reasons for limiting corporate and union campaign spending 

to segregated funds apply to ideological nonprofits—specifically including the NRA. Beaumont, 123 S. Ct. at 2209-10. 

Such organizations, “like their for-profit counterparts, benefit from significant ‘state-created advantages,’” and their 

fundraising and political prowess “show that ‘political “war 

chests’” may be amassed simply from member contributions.” Id. at 2209 & n.6. If exempt from source and disclosure rules, they could quickly become easy-to-use, hard-topolice conduits for unlimited campaign spending by unions 

and for-profit corporations. Id. at 2209-10; Austin, 494 U.S. 

at 664; FEC v. Massachusetts Citizens for Life, Inc., 479 

U.S. 238, 264 (1986) (MCFL) (nonprofits could “serv[e] as 

conduits for the type of direct spending that creates a threat 

to the political marketplace”). And individuals who support 

a nonprofit’s basic mission—or join because membership 

provides various benefits—do not necessarily want their 

funds to be used to support or oppose candidates. See 

Beaumont, 123 S. Ct. at 2209 n.5. BCRA’s coverage of nonprofits is not only reasonable, but indispensable. 

As the NRA emphasizes (Br. 28-33), BCRA contains superseded provisions that would have required simply that 

nonprofit corporations pay for electioneering communications only out of funds contributed by individuals. See 2 

U.S.C. §§ 434(f)(2)(E)-(F), 441b(c)(2), superseded by 2 U.S.C. 

§ 441b(c)(6). That approach would have been significantly 

more complicated to administer and enforce—and significantly less effective. Money is fungible, so corporate or union contributions could be used to fund all the organization’s 

non-campaign activities, freeing individual contributions for 

electioneering communications. See Beaumont, 123 S. Ct. at 

2210 n.7 (rejecting argument that “earmarking” rules adequately addressed conduit problem in contribution context). 

As to any argument that specific organizations should 

not be subject to Title II, MCFL already establishes that 

restrictions on the use of treasury funds cannot be applied to 
75 

certain nonprofits. MCFL and the FEC’s regulations establish the basic criteria for exemption—including that the corporation engage in no “business activities,” not be “established by a business corporation or a labor union,” and have 

“a policy not to accept contributions from such entities.” 479 

U.S. at 264; see 11 C.F.R. § 114.10(c), (d) (recognizing that 

Title II is subject to the same as-applied exemption under 

MCFL). Later decisions reaffirm, however, both that 

MCFL’s requirements are to be strictly construed, and that 

FECA’s requirements may properly be applied to most 

“nonprofit ideological corporations.” See Austin, 494 U.S. at 

661-65; Beaumont, 123 S. Ct. at 2204, 2207-11. 

These requirements suggest that neither the NRA nor 

the ACLU is entitled to a constitutional exemption, because 

each accepts corporate funding.58 More fundamentally, 

given MCFL and Austin, BCRA’s electioneering communications provisions may not be challenged on their face on the 

ground that some nonprofit corporations might be entitled to 

an as-applied exemption. After all, MCFL, which upheld 

such a challenge, did not therefore invalidate the application 

of FECA’s source restrictions to all corporations. A corporation that believes it falls within MCFL, or that the MCFL 

exemption should be expanded, may pursue that claim on an 

as-applied basis, before the FEC and then in the courts. 

Whatever the merits of such arguments, they are out of 

place in this case. 

CONCLUSION 

BCRA should be sustained in its entirety. 

Respectfully submitted, 

58 Each argues that its corporate funding is comparatively modest— 

which suggests that neither would be terribly burdened by forgoing corporate donations to qualify for an exemption. See SA 834 n.123(K). But 

the absolute amounts involved—$85,000 for the ACLU (Br. 9 n.8, 17), and 

$385,000 for the NRA (Br. 3)—are not trivial, and could quickly increase if 

the organizations became conduits for corporate or labor electioneering. 
ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park Avenue 

New York, NY 10022 

AUGUST 2003 

SETH P. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

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PICKERING 

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