No. 02-1734 

IN THE 

SUPREME COURT OF THE UNITED STATES 

____________________ 

AMERICAN CIVIL LIBERTIES UNION, 

 

 Appellant, 

-vFEDERAL ELECTION COMMISSION, et al., 

 

 Appellees. 

_____________________ 

On Appeal from the United States District Court for the 

District of Columbia 

REPLY BRIEF OF APPELLANT ACLU 

 

Joel M. Gora 

Brooklyn Law 

School 

250 Joralemon 

Street 

Brooklyn, NY 

11201 

718-780-7926 

August 21, 2003 

Mark J. Lopez 

(Counsel of Record) 

Steven R. Shapiro 

AMERICAN CIVIL 

LIBERTIES

 UNION 

FOUNDATION, INC. 

125 Broad Street 

New York, NY 

10004 

(212) 549-2608 
TABLE OF CONTENTS 

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

I. The Right of Organizations Like the ACLU to 

Engage in Public Debate on Critical Issues of the 

Day Through Any Medium the Organization Deems 

Appropriate, Including Broadcast Ads, Lies at the 

Core of Constitutionally Protected Speech, as this

Court Recognized in Buckley v. Valeo, 

424 U.S. 1 (1976)................................................1 

A. Buckley and the First Amendment 

Tradition................................................3 

B. Elections and the First Amendment 

 Tradition................................................5 

II. Title II’s Regulation of Non-Candidate Expenditures 

Is Foreclosed by Buckley and Its Progeny, and Cannot 

Be Conditioned on the Establishment of a Segregated 

Fund or PAC.....................................................8 

A. Buckley and Its Progeny..........................8 

B. The PAC “Alternative”..........................15 

CONCLUSION................................................17 

ii
TABLE OF AUTHORITIES 

Cases 

 Page 

American Civil Liberties Union v. Jennings, 

366 F. Supp 1041 (D.D.C. 1973)(three judge court) 

vacated as moot sub nom. Staats v. American Civil Liberties

Union, 422 U.S. 1030 (1975)............................................4,16 

Austin v. Michigan Chamber of Commerce, 

 494 U.S. 652 (1990)........................................................9, 10 

Board of Airport Commissioners v. Jews for Jesus, Inc., 

482 U.S. 569 (1987)............................................................11 

Buckley v. Valeo, 

424 U.S. 1 (1976)......................................................... passim

Colorado Republican Federal Campaign Committee v. FEC, 

518 U.S. 604 (1996)...........................................................5, 9 

Connick v. Meyers, 

461 U.S. 138 (1983)...............................................................4 

FEC v. Beaumont, 

 __ U.S. ___ (2003)..............................................................13 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)..................................................... passim

FEC v. National Conservative PAC, 

 470 U.S. 480 (1985) .............................................9 

iii
 

 Page 

FEC v. National Rifle Association, 

254 F.3d. 173 (D.C. Circuit 2001)......................................14 

First National Bank v. Bellotti, 

435 U.S. 765 (1978).......................................................5, 6, 9 

Forsyth County v. National Movement, 

505 U.S. 123 (1992)............................................................14 

Garrison v. Louisiana,

379 U.S. 64 (1964).................................................................4 

Miami Herald Publishing Co. v. Tornillo, 

 418 U.S. 481 (1974)..............................................................6 

Mills v. Alabama, 

384 U.S. 214 (1966)...............................................................6 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964)...................................................1, 3, 4, 5 

Riley v. National Federation of the Blind, 

487 U.S. 781 (1988)..............................................................5 

Thomas v. Collins, 

 323 U.S. 516 (1945)........................................................5, 11 

Thornhill v. Alabama, 

310 U.S. 88 (1940).............................................................3, 5 

United States v. National Committee for Impeachment, 

 462 F. 2d 1135 (2d Cir. 1972).............................................16

iv
United States v. Playboy Entertainment Group, 

529 U.S. 803 (2000)..............................................................8 

 Page 

Virginia v. Hicks, 

 ___ U.S. ___ (2003)............................................................11 

West Virginia State Board of Education v. Barnette, 

 319 U.S. 624 (1943)............................................................15 

Wooley v. Maynard, 

430 U.S. 705 (1977).............................................................16 

Statutes 

2 U.S.C. § 441.....................................................12 

Regulations 

11 C.F.R. § 114.10 ...............................................................14 

11 C.F.R. Parts 102 - 105, 109..................................16 

v
REPLY BRIEF OF APPELLANT ACLU 

I. The Right of Organizations Like the ACLU to 

Engage in Public Debate on Critical Issues of the Day 

Through Any Medium the Organization Deems 

Appropriate, Including Broadcast Ads, Lies at the Core 

of Constitutionally Protected Speech, as this Court

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

The government’s and the intervenors’ conception of 

the First Amendment is stunningly at odds with this Court’s 

First Amendment and campaign finance jurisprudence.

Speech that refers to or discusses the qualifications of 

candidates lies at the core – not the fringes – of the First 

Amendment’s protection. In a participatory democracy, 

where an informed electorate is essential, any restrictions on 

speech that interfere with the ability to praise, criticize or 

debate the qualifications of candidates, or discuss the issues 

that they campaign on, necessarily reduces the candidates’ 

accountability by shielding them from scrutiny. Title II’s

restrictions take on greater significance when the candidate 

is already a public official and the effect of the restriction is

to stifle criticism of government itself. See New York Times

Co. v. Sullivan, 376 U.S. 254 (1964). Moreover, by targeting 

radio and television ads, the statute perversely bans the most

effective form of speech by suppressing information that is 

intended to reach the largest audience. Far from advancing 

the interests asserted by the government in this case, Title II 

disserves the goal of an informed electorate and thereby

undermines the democratic process. 

The defending parties’ startling response to this 

charge is that the problem of corruption justifies a ban on 

criticizing government or discussing the qualifications of 

candidates. This far-reaching argument is foreclosed by

1
Buckley v. Valeo, 424 U.S. 1 (1976). This Court’s opinion in 

Buckley repeatedly stressed that campaign finance laws must

be narrowly tailored to avoid “unnecessary abridgement of 

[First Amendment] freedoms.” Id. at 64. Both the 

government and the intervenors critically misperceive the 

substantial reach of Title II and its impact on heretofore

constitutionally protected speech. One aspect of Buckley is 

particularly critical here. Buckley held that the government’s 

regulation of expenditures must be limited to

“communications that in express terms advocate the election

or defeat of a clearly identified candidate....” Id. at 45. This 

“express advocacy” doctrine, which Buckley adopted to “

distinguish discussion of issues and candidates from more 

pointed exhortations to vote for particular persons....” FEC 

v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 

(1986), has played a critical role for almost three decades in

protecting issue-oriented speech by providing a bright line 

between permissible and impermissible government 

regulation. The ban on electioneering communications 

unapologetically targets issue advocacy and brushes aside 

the bright line distinction between words of express 

advocacy and all other speech that merely refers to a 

candidate. In an ill-conceived effort to avoid the vagueness 

problems present in Buckley, the defendants have targeted 

the very speech that the Court sought to protect in Buckley

when it drew a distinction between contributions which 

could be limited, and expenditures which could not. 

Nevertheless, the defendants maintain that the 

principles established in Buckley have been overtaken by 

time and experience and that the empirical judgment the 

Court made in that decision about the inherent worth of issue 

advocacy speech should be jettisoned. That judgment, 

however, is linked inextricably to broader and enduring First 

Amendment principles that were well established long before 

Buckley, and which have been reaffirmed by the Court many 

times since. Neither the government nor the intervenors 

2
make any attempt to grapple with those overriding First 

Amendment principles, and instead defend Title II as if the

Court’s campaign finance jurisprudence was developed 

completely untethered from those principles. This shortsighted approach represents an unalloyed assault on

traditional First Amendment analysis and on Buckley itself.

The Buckley decision has served as a bulwark against laws 

that masquerade as campaign finance reform, but which 

stifle criticism and debate over the qualifications of

candidates and elected officials. The careful balance made in 

Buckley between fully protected candidate-referred speech 

and more specific exhortations to vote serves the important

First Amendment interests that animate a free society and a 

participatory democracy.

A. Buckley and the First Amendment Tradition

Buckley’s central holding is that any regulation of 

non-candidate expenditures must stop short of stifling dissent 

or debate on public issues or criticism of our elected 

officials. That holding is firmly rooted in traditional and 

enduring First Amendment principles that reflect “our 

profound national commitment to the principle that debate 

on public issues should be uninhibited, robust, and wideopen...” New York Times Co. v. Sullivan, 376 U.S. 254, 270 

(1964). These principles and our unflagging commitment to 

debate on public issues are strained to the limit by the 

government’s defense of Title II. The very notion that 

advocacy groups like the ACLU can be prohibited from

using the broadcast medium to question the policy positions 

of our elected officials during an election season is

completely foreign to the First Amendment. 

“Freedom of discussion, if it would fulfill its historic

function in this nation, must embrace all issues about which 

information is needed or appropriate to enable the members 

of society to cope with the exigencies of their period.” 

Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). It is for 

3
this reason that debate on matters of public concern, lies at 

the very heart of the First Amendment. Connick v. Meyers, 

461 U.S. 138, 145 (1983). “[S]peech concerning public 

affairs is more than self-expression; it is the essence of selfgovernment.” Id. At 145 (quoting Garrison v. Louisiana,

379 U.S. 64, 74-75 (1964)). The debate on matters of public 

concern can fulfill its purpose in a democratic society only if

it is free and unrestrained. The First Amendment “was 

fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the 

people.” New York Times v. Sullivan, 376 U.S. at 269. 

By stark contrast, Congress has sought to moderate 

the debate over public issues and the qualification of 

candidates by adoption of the broadcast ban on terms that 

prohibit non-profit corporations – including thousands of 

traditional non-partisan issue advocacy organizations like the 

ACLU, Sierra Club, NOW, AARP, and the NRA -- from 

directly participating in that debate through the broadcast 

media. Laws that prohibit all corporations from engaging in 

otherwise constitutionally protected speech, for no other 

reason than that they hold corporate charters, threaten the 

ability of organizations like the ACLU and its members to

participate fully in the important national debates of our 

time.1

 

The speech of the ACLU and other issue advocacy

organizations on pending legislative matters and on the 

 

1

 No less so does the defendants’ response to this objection that the 

ACLU and other advocacy groups remain free to participate in the debate 

if they agree to be regulated as if they were political committees. The 

ACLU has resisted attempts to classify it as a political committee for 

reasons that have been affirmed by the Court in Buckley. See American

Civil Liberties Union v. Jennings, 366 F. Supp 1041 (D.D.C. 1973)(three 

judge court) vacated as moot sub nom. Staats v. American Civil Liberties 

Union, 422 U.S. 1030 (1975). The organization cannot be required to

forego its independence from FECA in order to participate in the debate

over the direction of this country. See Infra, Point II. B. 

4
positions of candidates is part of a nationwide debate in 

which the listener is being asked to make an important 

choice about the government’s policies, and to think more 

broadly about the role and responsibilities of our elected 

officials. The timeliness and significance of that discussion 

is clear. See Thornhill, 310 U.S. at 102-03. It is equally 

clear, however, that there is sharp disagreement over how 

those choices should be resolved. The ACLU’s right to 

participate in this debate is qualitatively different than the

interests Congress sought to address by adoption of Title II. 

The BCRA calls speech of this nature “electioneering 

communications” if they are made within the applicable

blackout periods. The government’s suggested labels, 

however, cannot control this Court’s First Amendment

analysis. See New York Times Co. v. Sullivan, 376 U.S. at 

269; Colorado Republican Federal Campaign Committee v.

FEC, 518 U.S. 604, 627-28 (1996)(Kennedy, J., concurring 

in part, dissenting in part). 

In a participatory democracy, the First Amendment

does not allow the government to substitute its judgment for 

the people’s in evaluating conflicting arguments on matters 

of public concern by suppressing the flow of information 

essential to informed decision making. First National Bank 

v. Bellotti, 435 U.S. 765, 777 (1978). It is “‘[t]he very 

purpose of the First Amendment....to foreclose public 

authority from assuming a guardianship of the public 

mind...”’ Riley v. National Federation of the Blind, 487 U.S. 

781, 791 (1988) (quoting Thomas v. Collins, 323 U.S. 516, 

545 (1945)(Jackson, J. concurring)). 

B. Elections and the First Amendment Tradition 

Congress is not free to interfere with the debate over 

the conduct of our elected officials on the grounds that the 

ACLU’s statements “refer” to a candidate or because they 

may be perceived as “supporting” or “opposing” a candidate. 

This is particularly true, where as here, Congress has acted to 

5
hobble an entire class of speakers in the debate based on 

their organizational form. As stated in Bellotti “the inherent

worth of speech in terms of its capacity for informing the 

public does not depend on the identity of its source, whether 

corporation, association, union, or individual.” 435 U.S. at 

777. Congress’ paternalistic instincts in this case about the 

worth and influence of speech communicated by corporate 

speakers, especially non-profit corporations, are simply

misplaced. Id. at 785-86. So too are its efforts to moderate 

the debate by controlling the timing of it, see Mills v. 

Alabama, 384 U.S. 214 (1966), and by closing off the

medium likely to reach the widest audience. Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 481 

(1974)(consolidation of the newspaper industry does not

justify Florida’s Right of Reply statute under the First 

Amendment). 

Under the defendants’ formulation of the First 

Amendment interests at stake in this case, the very same

speech that is entitled to full constitutional protection outside

the blackout period preceding an election, is entitled to no 

protection if uttered during the blackout period. This notion 

sets the First Amendment on its head. There is a direct and

inherent correlation between the substance and vigor of 

political debate and the conduct of elections. Both the 

government and the intervenors gloss over the importance of 

this correlation and the consequences for our democratic 

traditions. As recognized in Buckley, “[d]iscussion of public 

issues and debate on qualification of candidates are integral 

to the operation of the system of government established by 

our Constitution...,”424 U.S. 14-15. Moreover, “[n]ot only 

do candidates campaign on the basis of their positions on

various public issues, but campaigns themselves generate

issues of public interest.” 424 U.S. at 42. Thus, the 

electoral context of the debate provides less – not more -- 

justification for imposing restrictions on speech. What the 

defendants describe as narrow tailoring, in fact cuts a wide 

6
swath in the First Amendment by directly targeting the

content, timing, and mode of expression that is most closely 

linked to our democratic processes. Far from being narrowly 

tailored, the broadcast ban strikes a profound blow to the 

political discourse so essential to informed decision-making 

and government accountability. 

The sweepingly broad primary definition contained 

in the statute unavoidably captures speech that has no

electioneering purpose or message whatsoever, but instead is 

based solely on the proximity of the speech to a pending

election. As Judge Leon’s opinion correctly observed, this 

type of arbitrary line drawing cannot justify treating

otherwise constitutionally protected speech as an 

electioneering communication and bringing it within 

FECA’s coverage. The backup definition’s attempt to link 

the communication to an electioneering purpose is no less

flawed and, indeed, does more harm to First Amendment

interests because the blackout period is much longer than the 

30/60 rule applicable to the primary definition. The backup 

definition both as written and as construed by the lower 

court, is a return to the vague and imprecise efforts of the

past to regulate speech critical or supportive of public 

officials under the pretense of regulating campaign finances.2

 

Finally, it is no response to argue, as both the 

government and the intervenors do, that the electioneering 

communications provision falls short of a total ban on speech 

and thus, presumably, should be judged more

sympathetically under the First Amendment. That claim is 

misguided for three fundamental reasons. First, Title II 

effectively functions as a total ban on electioneering 

 

2

 Neither the government nor the intervenors make any effort to defend

the truncated, fallback definition of “electioneering communications” 

that the district court adopted. And, neither the government nor the 

intervenors make much of an effort to defend the fallback definition that

Congress adopted and that the district court found unconstitutionally

vague. That strategic judgment is well-warranted.

7
communications by nonprofit advocacy groups like the NRA 

and the ACLU given the strict reading of MCFL adopted by 

the FEC and endorsed by the government and the intervenors

in this case.3

 Second, this Court has recently rejected the 

notion that content-based regulations on speech are entitled

to greater judicial deference than content-based prohibitions. 

“When the purpose and design of a statute is to regulate

speech by reason of its content, special consideration or

latitude is not accorded to the Government merely because 

the law can somehow be described as a burden rather than

outright suppression.” United States v. Playboy

Entertainment Group, 529 U.S. 803, 826 (2000). Finally, the 

“alternative” of speaking through a PAC poses severe First 

Amendment problems as well. See Infra, Point II. B. 

II. Title II’s Regulation of Non-Candidate Expenditures 

is Foreclosed by Buckley and Its Progeny, and Cannot be

Conditioned on the Establishment of a Segregated Fund 

or PAC. 

A. Buckley and Its Progeny 

Even if the broadcast ban is analyzed on the 

government’s own terms as involving campaign activity and 

nothing more, Title II cannot be reconciled with Buckley and

would upset the balance made in that case between

expenditures that are entitled to full constitutional protection 

and other campaign activity. The regulation of expenditures 

for political speech runs head long into numerous decisions 

of this Court holding that the First Amendment forbids the 

imposition of expenditure limits on candidates, individuals, 

and groups B including political parties, political committees, 

and issue advocacy organizations. The only departure from 

this steadfast rule is the prohibition against expenditures that 

exhort the listener to vote for or against a candidate when 

 

3 See MCFL discussion Infra, Point II. A. and n. 7. 

8
paid for from corporate treasury funds in the narrow 

circumstances present in Austin v. Michigan Chamber of

Commerce 494 U.S. 652 (1990). That case provides no 

support for expanding FECA=s coverage to the immensely 

broader goal of prohibiting all broadcast communications

that simply Arefer[] to@ a clearly identified candidate if paid

for from corporate treasury funds. Austin, with its concern

over aggregate corporate wealth, provides even less support

for regulating the speech of membership organizations, 

comprised of individuals, like the ACLU, during the 60 days 

prior to a general election or 30 days before a primary. To 

argue that Austin provides the very source of the power to 

regulate the ACLU=s activities, distorts the holding in Austin

and ignores the fundamental interest at stake in this Court=s 

cases striking down expenditure limits as a violation of the 

First Amendment. 

In crafting the argument that Congress may 

legitimately place temporal limits on the ACLU=s broadcast 

communications during the period before federal elections, 

the defending parties cast aside the clear import of this 

Court=s numerous decisions involving expenditure limits

imposed on candidates and non-candidates alike. We know 

from Buckley that expenditure limits of any kind may not be 

imposed on individuals, groups, or candidates. FEC v.

National Conservative PAC, 470 U.S. 480 (1985) teaches 

that they may not be imposed on political committees (in that 

case one which was a non-membership, nonprofit 

corporation), and FEC v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238 (1986) instructs that they may not be 

imposed on traditional issue advocacy groups that are not 

linked with for-profit corporate interests. In Colorado 

Republican Federal Campaign Committee v. FEC, 518 U.S. 

604 (1996) (Colorado I), the Court reaffirmed that 

expenditure limits operate as direct restraints on speech and 

that they may not be imposed on political parties. See also 

Bellotti, which protects a corporation’s right to engage in 

9
issue advocacy. Indeed, direct or temporal limits have never 

been upheld by this Court, except in the narrow 

circumstances presented in Austin. 

As these cases make clear, under no conception of 

the First Amendment is it permissible to stifle dissent or

debate on public issues or criticism of our elected officials 

simply because the debate occurs in the context of elections

or based on the identity of the speaker. Nothing in Austin or 

in the Court’s broader First Amendment jurisprudence

remotely supports such a far-reaching conclusion. The 

defendants have lost sight of the First Amendment principles 

at work in this Court=s political expenditure cases and which 

fully protect political advocacy by organizations constituted

for that purpose. If anything, groups like the ACLU, whose 

commentary on public issues is divorced from any partisan

purpose, merit greater B not lesser B protection than 

individuals and organizations seeking to influence electoral

outcomes. For this reason, neither Title II=s ban on 

electioneering communications nor its disclosure 

requirements can be constitutionally applied to the ACLU 

and organizations like it. 

To be sure, this Court twice has been called upon to 

define the permissible reach of expenditure limits as they 

affect issue advocacy groups not organized as political 

committees. See FEC v. Massachusetts Citizens For Life, 

Inc., supra; Austin v. Michigan Chamber of Commerce, 

supra. Two limiting principles emerge from those cases. 

First, when the Court reaffirmed the express 

advocacy rule in MCFL, limiting the reach of FECA, it 

specifically noted that the rule had been crafted “in order to 

avoid problems of overbreadth”. Id. at 248. 4 The BCRA 

 

4

 Contrary to the defendants’ view, the express advocacy doctrine reflects

more than a concern about vagueness. It embodies a substantive and

fundamental principle of First Amendment law. If any mention of a

candidate in the context of a discussion about issues subjected the 

10
does not avoid problems of overbreadth, it embraces them as

supposedly essential to addressing the proliferation of socalled “sham” issues ads. The primary definition of

“electioneering communications” may be more specific than 

the expenditure provisions struck down in Buckley, but 

specificity alone does not resolve the overbreadth problem. 

Board of Airport Commissioners v. Jews for Jesus, Inc.,, 482 

U.S. 569 (1987)(striking down policy that barred all “First 

Amendment activities” at Los Angeles International 

Airport). Furthermore, unlike the statute involved in last

Term’s decision in Virginia v. Hicks, ___ U.S. ___ (2003), 

Title II is targeted at expressive activity and has been 

challenged by groups, including the ACLU, that seek to 

engage in core political speech.5

 

speaker to campaign finance controls, the consequences for “free 

discussion” would be intolerable and speakers would be compelled to

"hedge and trim.” Buckley, 424 U.S. at 43, quoting Thomas v. Collins, 

323 U.S. 516, 535 (1945). Accordingly, all speech that does not “in 

express terms advocate the election or defeat of a clearly identified 

candidate” is outside the scope of permissible regulation. Id. at 44. 

5 The overbreadth of the primary definition is amply demonstrated in

Judge Leon’s opinion. It is also demonstrated by its impact on the 

ACLU itself. The government and the intervenors attempt to dismiss the

significance of the ACLU’s experience by claiming that we have pointed

to only a single radio ad that would be prohibited under Title II. 

However, two separate declarations submitted in this case by Anthony 

Romero, the ACLU’s Executive Director, make clear that the ACLU has 

recently raised new funds that it plans to use, in part, for broadcast ads

designed to promote the organization’s legislative agenda. J.A. 721-722;

J.A. 1817. In fact, the ACLU has just purchased five radio spots that are

scheduled to run over the Labor Day Weekend. These spots highlight a 

recent House vote repealing the “sneak and peek” provisions of the USA 

PATRIOT Act, and urge critical Senators to take a similar position when

they return from the August recess. Under the BCRA, these ads would 

be illegal if the legislative calendar had been different and this vote had

occurred within the 30/60 day period set forth in Title II. Nor is that 

possibility speculative or unlikely. As pointed out in an exhibit attached 

to the declaration of Laura Murphy, Director of the ACLU’s Washington 

Office, many important civil liberties issues are debated and voted upon 

11
Second, in both cases the Court drew the critical 

distinction between the permissible regulation of certain 

types of nonprofit groups linked to traditional business 

corporations and other nonprofit groups that are more like 

political advocacy organizations and that do not function as a 

conduit for the types of business corporations subject to 

FECA regulation under 2 U.S.C. § 441. The distinction is 

justified by, among other things, the absence of plausible 

concerns over concentrated corporate wealth, and the fact 

that membership in the organization is both voluntary and 

based on ideological agreement with the organization=s views 

and activities. MCFL, 479 U.S. at 257-58. This of course 

perfectly describes the ACLU. Indeed, people join the 

ACLU and contribute their membership dues precisely

because they want the organization to use those funds to 

advocate on their behalf and to praise or criticize public 

officials for their positions on important civil liberties 

issues.6

 The fact that the ACLU receives a de minimis

amount of corporate or union support does not change the 

fundamental character of the organization or justify treating 

it as the type of organization under consideration in Austin. 

Contrary to the position advanced by both the government

and the intervenors in this case, the factors identified by the

Court in MCFL are not rigid criteria defining the outer limits 

of permissible regulation of issue advocacy groups, but 

 

in the period immediately preceding congressional elections. J.A. 613, 

622 - 626. It is fanciful to suggest that such advertisements by the 

ACLU and other similar groups implicate the concerns with corporate 

corruption of the political system in any real or substantial way or that if 

they were run in September 2004, rather than September 2003, they 

would warrant prohibition. 

6

 Following the September 11, 2001 terrorist attacks, there was a 

significant increase in the ACLU’s membership that reflected concern 

with the subsequent attack on civil liberties. See Declaration of Anthony 

Romero J.A. 1817. 

12
general guideposts for insuring that true issue advocacy 

groups remain free to express their views. 

It is true that the Court has expressed concern that 

certain politically powerful and influential advocacy groups 

could act as a conduit for large corporate contributions. FEC 

v. Beaumont, __ U.S. ___ (2003). But such groups are 

hardly representative of the ACLU or thousands of nonprofit

issue advocacy groups which do not seek in any way to 

influence elections. Moreover, the Court’s concern in 

Beaumont came in the context of the FECA’s longstanding 

prohibition against corporate contributions. Accordingly 

the perceived danger of corporate contributions to the 

political process was sufficient to justify the statutes 

prophylactic approach under the lesser standard of First 

Amendment scrutiny that this Court applies in cases

upholding limits on contributions. Under the heightened 

scrutiny applicable to independent expenditures, however, 

Congress is not free to regulate so broadly. See MCFL, 479 

U.S. at 260. Beaumont reaffirmed this Court’s holding in 

MCFL by hewing to the constitutional distinction between 

permissible regulation of contributions and impermissible 

regulation of expenditures by non-profit corporations. The 

concerns that animate the Court’s decision in Beaumont are 

largely absent in the case of expenditures because those 

expenditures – unlike contributions to candidates -- are

independent and in many cases totally unrelated to any

electioneering purpose or motive. While some non-profit

advocacy groups may engage in more focused candidate or

campaign related expenditures, that cannot provide the

justification for broadly regulating the speech of the ACLU 

and other advocacy organizations that receive a modest 

amount of corporate money or have not adopted a formal

policy of returning all corporate contributions – regardless of

the size or identity of the corporate contributor. 

The District Court was obviously constrained by 

MCFL and construed Title II to exclude qualified MCFL

13
corporations. At the very least, this Court should affirm that 

holding. But the real danger that inheres in the lower court’s 

analysis is that it contemplates that pure issue advocacy 

organizations like the ACLU may not qualify for an MCFL

exemption. In fact, under recently promulgated FEC 

regulations, the ACLU presumably does not qualify for 

exemption because it has not returned the exceedingly 

modest amount of money that has been contributed to the 

organization in recent years from sources other than 

individuals. See Brief of Appellant ACLU, p. 9, n.8.; 11 

C.F.R. § 114.10. See also, FEC v. National Rifle 

Association, 254 F.3d. 173 (D.C. Circuit 2001). The 

possibility that the ACLU might not qualify for an MCFL

exception cannot provide the justification for treating the 

organization as if it were General Motors or Microsoft. 

Rather it highlights the extraordinary breadth of the statute.7

 

7

 We agree that this case is not the proper vehicle to determine whether 

the ACLU qualifies for an MCFL exception, or whether the nature of the 

organization and the controversial positions it takes entitles it to an

exemption from any obligation to disclose its members and contributors. 

However, if only MCFL corporations will be allowed to engage in

“electioneering communications,” we do think it is appropriate for this 

Court to clarify the scope of the MCFL rule. Specifically, we urge this

Court to hold that nonprofit advocacy groups, like the ACLU, are entitled 

to be treated as MCFL corporations, even if they receive de minimis

corporate or union contributions. In particular, it is clear from Austin that 

the ban on corporate express advocacy has been justified by two related 

concerns: the fact that corporations can amass significant fortunes as a

result of the unique legal benefits conferred upon them, and the fact that 

the resources of a business corporation do not measure the extent of its

ideological support. Neither of those concerns applies to the ACLU, 

which received less than 1% of its budget from non-individual sources

and whose membership directly reflects the level of support for its

ideological positions. Requiring the ACLU to forgo the modest amount

of support it receives from non-individual sources, amounting to $85,000

in 2001 (although none of those contributions exceeded $500), is 

tantamount to exacting an excessive fee as a condition of exercising First 

Amendment rights. See Forsyth County v. National Movement, 505 U.S.

123 (1992). See Appellant ACLU’s Brief, pg. 29, n. 15. 

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B. The PAC “Alternative” 

The defendants’ answer to the First Amendment

objections raised in this case is that the ACLU can 

reconstitute as a PAC if it wants to speak. But, Congress 

cannot circumvent Buckley by requiring the ACLU to 

finance constitutionally protected speech through a 

segregated fund or PAC. While this requirement may be

understandable in the context of contributions made by nonprofit corporations to candidates, see Beaumont, it cannot be 

justified in the context of independent expenditures, see 

MCFL – much less those expenditures that do not purport to

seek to influence elections. Political committees are

regulated as such because their primary purpose is to 

influence federal elections. The ACLU and thousands of 

other organizations like it are not created for this purpose 

and therefore should not be required to operate as if they 

were. If at some time it is determined that the ACLU has 

crossed the line and become an organization whose primary 

purpose is to influence federal elections, it would then 

become subject to the obligations and restrictions applicable

to political committees. See MCFL, 479 U.S. at 262. That 

time has not come and there is no justification for advancing 

FECA’s coverage to the organization’s speech. 

The consequences are not insignificant. Creating a

PAC would compel the ACLU to adopt a partisan form in 

order to speak, which is prohibited by our corporate charter, 

is at fundamental odds with our 82-year tradition of nonpartisan advocacy of civil liberties and casts us in a false 

light of partisanship. Thus, for the ACLU and other

organizations like it, the mandatory creation of a PAC is a 

form of compelled speech that cannot be the price of 

exercising our rights under the First Amendment. West 

Virginia State Board of Education v. Barnette, 319 U.S. 624 

(1943). Similarly, the new “electioneering communication” 

regulations would require us to file a statement disclosing,

inter alia, “all clearly identified candidates referred to in the 

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electioneering communication and the elections in which 

they are candidates.” 11 CFR ¶ 104.20 (c) (1). Being 

thereby forced to characterize our criticism of government 

officials as election-related is an athema to the non-partisan 

stance that is at the core of our organizational identity. See 

Wooley v. Maynard, 430 U.S. 705 (1977). It is particularly 

offensive to First Amendment principles for the government

to dictate the format of speech that tends to be critical of the 

government itself. The intervenors’ suggestion that we can 

avoid any misimpression of partisanship by labeling our

PAC the “ACLU Election-Period Non-Partisan Legislative

Advocacy Fund,” Intervenors’ Brief at 73, borders on the 

frivolous. It also ignores the administrative burdens

associated with establishing and maintaining a PAC that this 

Court found significant in MCFL. The basic compliance

regulations governing political committees are incredibly

detailed and span over fifty densely-packed pages in the 

Code of Federal Regulations. See 11 CFR, Parts 102-105, 

109. They would also subject the organization to 

impermissible disclosure requests. See FEC v. MCFL;

supra; ACLU v. Jennings, supra. Finally, political 

committees are subject to FECA restrictions limiting the 

amount of money that can be contributed to the organization 

from any single source – even though the ACLU has no 

political purpose. 

As we have emphasized throughout, the ACLU has 

consistently resisted the persistent attempts to use the FECA 

to regulate and restrain issue advocacy in a manner violating 

time-honored First Amendment principles. The New York 

Civil Liberties Union was a party in Buckley itself

challenging the FECA’s expenditure limitations and 

disclosure provisions. See also, United States v. National 

Committee for Impeachment, 462 F. 2d 1135 (2d Cir. 1972); 

American Civil Liberties Union v. Jennings, supra. Those 

cases helped fashion the critical principles designed to limit 

the impermissible reaches of the FECA and to establish

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without doubt that non-partisan, issue-oriented organizations 

cannot be subject to campaign finance controls. Building on 

those principles, this Court has repeatedly reaffirmed, in 

Buckley and elsewhere, not only the bright line distinction 

between issue advocacy and more focused campaign activity

that the BCRA now seeks to obliterate, but also the 

impermissible reach of campaign finance regulation to 

organizations like the ACLU which are non-partisan and do 

not seek to influence elections. 

In those early ACLU cases, Congress attempted to 

control and limit even newspaper ads that mentioned and 

criticized federal candidates. Now, Congress seeks to 

control and limit broadcast ads that mention and criticize

federal candidates. If this Court interprets the First

Amendment to uphold the latter, can efforts to reassert 

control over the former be far behind? 

CONCLUSION 

For the reasons stated above, the challenged 

provisions of Title II of the BCRA should be declared 

unconstitutional. 

 

Joel M. Gora Mark J. Lopez 

Brooklyn Law School Counsel of Record 

250 Joralemon Street Steven R. Shapiro 

Brooklyn, NY 11201 American Civil 

 Liberties Union

August 21, 2003 Foundation, Inc. 

 125 Broad Street 

 New York, NY 10004 

 (212) 549- 2608 

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