No. 02-1674 & Consolidated Cases 

IN THE 

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———— 

SENATOR MITCH MCCONNELL, et al., 

Appellants/Cross-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees/Cross-Appellants. 

———— 

On appeal from the United States District Court 

for the District of Columbia 

———— 

BRIEF OF AMICI CURIAE


INTERNATIONAL EXPERTS IN SUPPORT OF


APPELLEES/CROSS-APPELLANTS 


———— 

CHRISTOPHER J. WRIGHT * 


TIMOTHY J. SIMEONE


YUL J. KWON


HARRIS, WILTSHIRE & GRANNIS LLP 


1200 Eighteenth Street, N.W. 


Washington, DC 20036 


(202) 730-1300 


THOMAS D. GRANT 

LAUTERPACHT RESEARCH 

CENTRE FOR INTERNATIONAL LAW 

5 Cranmer Road 

Cambridge CB3 9BL 

United Kingdom 

* Counsel of Record 011 44 1223 691 664 

August 5, 2003 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001 
TABLE OF CONTENTS 

Page 

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

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

PRELIMINARY STATEMENT ................................... 3 

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

I. THE COURT SHOULD CONSIDER 

MEASURES TAKEN BY OTHER 

COUNTRIES TO LIMIT THE INFLUENCE 

OF MONEY IN ELECTORAL POLITICS. ..... 5 

A. 	 MEMBERS OF THE COURT 

INCREASINGLY RECOGNIZE THE 

VALUE OF CONSIDERING THE 

WORK OF FOREIGN DECISIONMAKERS. ................................................. 5 

B.	 THIS COURT’S OPINIONS HAVE 

EXAMINED FOREIGN LAW AND 

PRACTICES WHEN DEALING WITH 

COMPLEX ISSUES IN CAMPAIGN 

AND ELECTION LAW............................ 8 

II. PREVAILING INTERNATIONAL NORMS 

SUPPORT BCRA’S RESTRICTIONS ON 

THE USE OF CORPORATE AND LABOR 

UNION TREASURY FUNDS FOR 

ELECTIONEERING COMMUNICATIONS... 9 

A. 	OTHER DEMOCRACIES RESTRICT 

PAID POLITICAL ADVERTISING 

FAR MORE AGGRESSIVELY THAN 

BCRA ........................................................ 10 

(i) 
ii 

TABLE OF CONTENTS—Continued 

Page 

1. 	Direct Controls on Political 

Broadcasting During Election 

Periods Are Widespread Among 

Established Democracies................... 11 

2. 	 Indirect Limitations on Third-Party 

Political Advertising Through 

Spending Limits Are Also Widespread Among Democracies.............. 16 

A. 	 OTHER DEMOCRACIES HAVE 

FOUND THAT RESTRICTIONS ON 

PAID POLITICAL ADVERTISING 

ARE COMPATIBLE WITH FREE 

SPEECH. ................................................... 18 

1. 	 The Canadian Supreme Court Has 

Indicated That Restrictions on Paid 

Political Advertising by Third 

Parties Can Survive Constitutional 

Scrutiny.............................................. 18 

2. 	 The European Court of Human 

Rights Has Indicated That 

Restrictions on Paid Political 

Advertising by Third Parties Are 

Compatible with the Right to Free 

Speech................................................ 23 

III. NEARLY ALL MAJOR DEMOCRACIES 

IMPOSE RESTRICTIONS ON THE FLOW 

OF MONEY THAT ARE FAR MORE 

ONEROUS THAN BCRA’S RESTRICTIONS ON SOFT MONEY .............................. 27 

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

TABLE OF AUTHORITIES 

UNITED STATES JUDICIAL DECISIONS Page 

Bowers v. Hardwick, 478 U.S. 186 (1986) ............ 8 


Buckley v. Valeo, 424 U.S. 1 (1976)...................... 10 


Burson v. Freeman, 504 U.S. 191 (1992).............. 9 


FEC v. Beaumont, 123 S.Ct. 2200 (2003) ............. 5 


Holder v. Hall, 512 U.S. 874 (1994)...................... 8 


Knight v. Florida, 528 U.S. 990 (1999)................. 7 


Lawrence v. Texas, 123 S.Ct. 2472 (2003)............ 7, 8 


Malinski v. New York, 324 U.S. 401 (1945) .......... 7 


McIntyre v. Ohio Elections Commission, 514


U.S. 334 (1995).................................................. 8 


Miranda v. Arizona, 384 U.S. 436 (1966) ............. 7 


Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 


(2000)................................................................. 8, 23 


The Paquete Habana, 175 U.S. 677 (1900)........... 7 


Poe v. Ullman, 367 U.S. 497 (1961)...................... 7 


Printz v. United States, 521 U.S. 898 (1997)......... 9 


Thompson v. Oklahoma, 487 U.S. 815 (1988)....... 7 


United States v. Automobile Workers, 352 U.S. 


567 (1957).......................................................... 5 


Washington v. Glucksberg, 521 U.S. 702 (1997) .. 7 


Wright v. Rockefeller, 376 U.S. 52 (1964)............. 8 


FOREIGN JUDICIAL DECISIONS 

Australia 

Australian Capital Television v. Commonwealth, 

177 C.L.R. 106 (1992) ....................................... 14 


Canada 


Edmonton Journal v. Alberta (A.G.), [1989] 2 


S.C.R. 1326........................................................ 19 


Figueroa v. Canada (A.G.), 2003 S.C.C. 37.......... 23 


Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569,


151 D.L.R. (4th) 385......................................19, 20, 22 

iv 

TABLE OF AUTHORITIES—Continued 

Page 

Somerville v. Canada (A.G.) (1996), 136 D.L.R. 

(4th) 205............................................................. 21 

European Union 

Bowman v. United Kingdom, [1998] E.C.H.R. 

24839/94, (1998) 4 B.H.R.C. 25........................ 25, 26 

Fressoz and Roire v. France, (1999) 5 B.H.R.C. 

654...................................................................... 24 

Surek and another v. Turkey, (1999) 7 B.H.R.C. 

339...................................................................... 24 

Unabhängige Initiative Informationsvielfalt v. 

Austria, [2002] E.C.H.R. 28525/95 ................... 24 

Özgür Gündem v. Turkey, [2000] E.C.H.R. 

23144/93 ............................................................ 24 

Wierzbicki v. Poland, [2002] E.C.H.R. 24541/94.. 24 

India 

Godakh Yashwantrao Kankarro v. E.V. alias 

Balasaheb Vikhe Patil, 1994 A.I.R. (S.C.) 678 . 17 

Israel 

High Court of Justice Cases Nos. 869/92 and 

931/92 (1992).................................................13, 17, 26 

UNITED STATES STATUTE 

Bipartisan Campaign Reform Act of 2002, Pub. 

L. 107-155, 116 Stat. 81 (2002)......................... 3, 10 

FOREIGN STATUTES 

Argentina 

Ley 25.610, Reforma Código Nacional Electoral, 

art. 3 (2002)........................................................ 15 

Australia 

Broadcasting Services Act, 1992 (Cth), Sch. 2, 

Part 2, cl. 3A ...................................................... 14 

Special Broadcasting Services Act 1991 (Cth) 

§ 70(c) ................................................................ 14 
v 

TABLE OF AUTHORITIES—Continued 

Page 

Austria 

Bundesgesetz über den Österreichischen


Rundfunk (as amended, Bundesgesetzblatt, I


No. 83/2001), §§ 13 (1), 14-17 .......................... 13 


Belgium 

Loi du 4 juillet 1989 relative à la limitation et au


contrôle des dépenses électorales engagées


pour les elections des Chambres fédérales, 


ainsi qu’au financement et à la comptabilité


ouverte des parties politiques............................. 14, 17 


Bolivia 

Ley Electoral de 1984, con reformas, incluyendo 


la Ley No. 2232 (2001), art. 120........................ 15 


Brazil 

Lei No. 9.504, que estabelece normas paras as


eleiçoes, arts. 26, 44 (1997) ............................... 14 


Lei No. 4.737 Código Eleitoral de 1965, 


atualizado com as modificações da Lei


9504/97, art. 250 ................................................ 15 


Canada 

Canadian Charter of Rights and Freedoms, Part I 


of the Constitution Act, 1982, being Schedule


B to the Canada Act 1982 (U.K.), 1982, ch.


11, §§ 2(b) and 2(d). .......................................... 18 


Canada Elections Act, R.S.C., 1985, ch. E-2......... 20, 21 


Canada Elections Act, 2000 S.C., ch. 9 .............12, 21, 29 


Referendum Act, R.S.Q., ch. C-64.1 ..................... 19


Chile 

Ley Orgánica Constitucional No. 18.700/88, 


sobre votaciones populares y escrutinios, 


actualizada a octubre de 2001, art. 30(6) ........... 15 

vi 

TABLE OF AUTHORITIES—Continued 

Page 

Costa Rica 

Ley No. 1536, Código Electoral, actualizado con


las reformas de 1996 .......................................... 15, 16 


Dominica 

House of Assembly (Elections) Act, ch. 2:01, 


§§ 52, 54............................................................. 14 


European Union 

European Convention for the Protection of


Human Rights and Fundamental Freedoms,


312 U.N.T.S. 222 (1950) ................................... 23 


France 

C. élect. art. L. 52-1 ............................................... 11 


Germany


§ 5 cl. 1 Parteiengesetz.......................................... 12


§§ 7, 42 Rundfunkstaatsvertrag (RStV) ................. 11, 12 


§ 11 cl. 1 ZDF-Staatsvertrag für das Zweites


Deutsches Fernsehen ......................................... 11, 12 


Grenada 


Electoral Law, 1958, ch. 160, §§ 63(1), (3)........... 14 


Guatemala 

Ley Electoral y de Partidos Políticos de 1985, art.


223(c) & Decreto 1-90 del Tribunal Supremo


Electoral, 1990, art. 38....................................... 15 


Honduras 

Ley electoral y de las Organizaciones Políticas


del 19.05.1981, actualizada hasta DL No. 180-


92, art. 74 ........................................................... 15 


Hungary 

Act C of 1997 on Electoral Procedure ¶¶ 40-41,


§ (2).................................................................... 14


Italy 

Law No. 28 of February 28, 2000.......................... 13 


Law No. 515/1993, art. 7 ....................................... 29 

vii 

TABLE OF AUTHORITIES—Continued 

Page 

Japan 

Law No. 100, Apr. 15, 1950, as last amended by 

Law No. 54, May 8, 1998 ..............................12, 16, 29 

Mexico 

Código Federal de Instituciones y 

Procedimientos Electorales de 1994, con 

reformas de 1996................................................15, 16 

Nepal 

Election Code of Conduct, 2053 (1996) ............... 14, 17 

New Zealand 

Broadcasting Act, 1989 §§ 69, 70.......................... 14 

Electoral Act, 1993 §§ 210, 214B, 221.................. 17 

Nicaragua 

Ley Electoral de Nicaragua de 2000, art. 97.......... 15 

Paraguay 

Ley No. 834/96 de 1996, Código Electoral 

Paraguayo, art. 290 ............................................ 15 

Peru 

Ley No. 26859/97, Ley Orgánica de Elecciones 

de 1997, art. 190................................................. 15 

Russia 

Federal Law No. 19 F-3, On Election of the 

President of the Russian Federation, art. 50, 

point 3 ................................................................ 14 

Federal Law No. 175-F3, On Elections of 

Deputies of the State Duma of the Federal 

Assembly of the Russian Federation, art. 58, 

point 3 ................................................................ 14 

St. Vincent and the Grenadines 

Representation of the People Act, Electoral Law, 

1982, § 41........................................................... 14 

Sweden 

Law on Radio and Television, S.F.S. 1996:844 .... 13 
viii 

TABLE OF AUTHORITIES—Continued 

Page 

Switzerland 

Federal Law Concerning Radio and Television of 

21 June 1991, § 4, art. 18, ¶ 5 ............................ 15 

Turkey 

Const., art. 32 (as amended by Law No. 4756, 

May 21, 2002).................................................... 15 

United Kingdom 

Broadcasting Act, 1990, ch. 42, §§ 8(2)(a) and 

92(2)(a) .............................................................. 11 

Political Parties, Elections, and Referendums Act 

(PPERA), 2000, ch. 41....................................... 27, 29 

Representation of the People Act of 1983, §§ 5, 

75(1)................................................................... 25 

Venezuela 

Ley Orgánica de Sufragio y Participación 

Política, art. 209 (1997) ..................................... 16 

LAW REVIEWS AND JOURNALS 

Ruth Bader Ginsburg & Deborah Jones Merritt, 

Affirmative Action: An International Human 

Rights Dialogue, 21 Cardozo L. Rev. 253 

(1999)................................................................. 6 

Michael Pinto-Duschinsky, Financing Politics: A 

Global View, 13 J. Democracy 69 (2002).......... 15 

Sandra Day O’Connor, Keynote Address Before 

the Ninety-Sixth Annual Meeting of the 

American Society of International Law, 96 

Am. Soc’y Int’l L. Proc. 348 (2002).................. 6 

BOOKS 

Ian Brownlie, Basic Documents in Human Rights 

(1971)................................................................. 24 
ix 

TABLE OF AUTHORITIES—Continued 

Page 

Michael Pinto-Duschinsky, Handbook on Funding of Parties and Election Campaigns 

(Stockholm: International Institute for Democracy and Electoral Assistance, forthcoming 

2003) (overview available at http:// www. 

europexxi.kiev.ua/english/program/conference 

/007.html)........................................................... 28 

Fritz Plasser and Gunda Plasser, Global Political 

Campaigning: A Worldwide Analysis of 

Campaign Professionals and Their Practices 

(2002)................................................................. 18 

William H. Rehnquist, “Constitutional Courts – 

Comparative Remarks” (1989) (reprinted 

in Germany and its Basic Law: Past, Present 

and Future – a German-American Symposium 

(Paul Kirchhof & Donald P. Kommers eds., 

1993))................................................................. 

OTHER MATERIALS 

Barile, E. Cheli & S. Grassi, Istituzioni di diritto 

pubblico, Padova, CEDAM (2002).................... 13 

Committee on Standards in Public Life, Fifth 

Report (1998)..................................................... 27 

Council of Europe Recommendation No. 99 (15) . 10 

European Commission of Human Rights, 

Bowman Against the United Kingdom, 

Application No. 24839/94, Report of the 

Commission (adopted Sept. 12, 1996)............... 26 

European Platform of Regulatory Authorities, 

Working Group 2: Political Advertising, 

Background Paper EPRA/2002/09, available 

at http://www.epra.org/content/english/index2. 

html .................................................................... 15 

5 
x 

TABLE OF AUTHORITIES—Continued 

Page 

International Institute for Democracy and 

Electoral Assistance (IDEA) and the Office of 

Democratic Institutions and Human Rights of 

the OSCE, International Electoral Standards: 

Guidelines for Reviewing the Legal Framework of Elections (2002).................................... 10 

International Institute for Democracy and 

Electoral Assistance (IDEA) Voter Turnout 

Website, at http://www.idea.int/vt..................... 30 

Italian Communications Authority Decision No. 

200/00/CSP of June 22, 2000............................. 13 

Italian House of Parliament Scrutiny Committee 

on Public Broadcasting (RAI) Decision of 

December 18, 2002 ............................................ 13 

Law Library of Congress, Campaign Financing 

in Various Foreign Countries, Comparative 

Summary and Analysis (Document No. 2002-

14013) (2002).............................................3, 28, 29, 30 

Law Library of Congress, France: Campaign 

Financing in Various Foreign Countries 

(Document No. 2000-9042) (2000) ................... 29 

Notice No. 165 of the Japanese Ministry of 

Home Affairs, Nov. 29, 1994, as amended by 

Notice No. 150, July 12, 1996 ........................... 12 

Report on the Results of the Audit of the Party 

Groups for the Period of Elections for the 

Fifteenth Knesset (1997).................................... 17 

This Week with George Stephanopoulos (ABC 

television broadcast, July 6, 2003)..................... 6 
INTEREST OF AMICI CURIAE 1 

Amici, who include recognized authorities on campaign 

finance laws within their respective countries, are legal 

academics, political scientists, and present and former 

officials and advisors (acting in their individual capacities) of 

national electoral commissions from around the world 

(“International Experts”): 

Thomas D. Grant (Fellow, Lauterpacht Research Centre for 

International Law, and Senior Research Fellow, Wolfson 

College, Cambridge University); 

Verena Blechinger-Talcott (Assistant Professor, 

Department of Government, Hamilton College, New 

York, and former Deputy Director, German Institute for 

Japanese Studies, Tokyo); 

Manuel Lucas Durán (Profesor Titular de Derecho 

Financiero y Tributario Vicedecano de la Facultad de 

Derecho, Universidad de Alcalá, Madrid, Spain); 

Zsolt Enyedi (Assistant Professor, Political Science 

Department, Central European University, Budapest, 

Hungary); 

Keith Ewing (Professor of Public Law, King’s College, 

London); 

Colin Feasby (attorney, Osler, Hoskin & Harcourt LLP, 

Calgary, Alberta, Canada); 

Stefano Grassi (Chaired Professor of Constitutional Law, 

University of Florence, Faculty of Law); 

Andrew Geddis (Lecturer, Faculty of Law, University of 

Otago, Dunedin, New Zealand); 

Omer Farul Genckaya (Department of Political Science 

and Public Administration, Bilkent University, Ankara, 

Turkey); 

1

 Pursuant to Rule 37.6, counsel for amici state that no counsel for 

any party authored this brief in whole or in part. No persons other than 

amici or their counsel made a monetary contribution to the preparation of 

this brief. 
2 


Ellie Greenwood (Senior Registrar, UK Electoral 

Commission); 

Gábor Juhász (doctor of laws and editor, politicaleconomic weekly HVG, Budapest, Hungary); 

Prof. Dr. Bart Maddens (Department of Political Science, 

Catholic University of Leuven, Belgium); 

Prof. Dr. iur. Martin Morlok (Chair of Public Law, 

Sociology of Law, and Legal Theory, Director, Institute for German and European Law of Political 

Parties (PRUF), Heinrich-Heine-Universität, Düsseldorf, 

Germany); 

Víctor M. Navarrete Villarreal (Advisor to the President of 

the Tribunal, Tribunal Superior de Justicia del Distrito 

Federal, Mexico City); 

Graeme Orr (Lecturer in Law, Griffith University, 

Brisbane, Australia); 

Federico Ortino (Lecturer, European Union Law, 

University of Siena, Italy); 

Eugenia Perona (social scientist and private consultant, 

Buenos Aires, Argentina); 

DDr. Hubert Sickinger (Faculty, Universität Wien/Institut 

für Konfliktforschung, Austria); 

Surat Singh (constitutional lawyer, Bar of the Supreme 

Court of India, New Delhi); 

Daniel Smilov (Adjunct Professor, Department of Legal 

Studies, Central European University, Budapest, 

Hungary); 

Thilo Streit (Assistant Lecturer, PRUF, Heinrich-HeineUniversität, Düsseldorf, Germany); and 

Daniel Treisman (Assistant Professor of Political Science, 

University of California at Los Angeles). 

The substantial interest of amici in this case arises from 

their citizenship in nations forming a community of shared 

democratic values, and the unavoidable impact of legal developments in the United States upon representative democracy 

worldwide. Amici collectively possess a formidable breadth 
3 

of theoretical knowledge and practical experience in the 

field of campaign financing, and are uniquely qualified to 

assist the Court by situating the Bipartisan Campaign Reform 

Act of 20022 (“BCRA”) within the broader international 

legal landscape. 

PRELIMINARY STATEMENT 

This brief examines campaign finance laws in foreign 

countries to inform the Court with respect to two central 

issues: (1) the constitutionality of BCRA’s limitations on 

paid political advertising by third parties; and (2) the 

constitutionality of BCRA’s prohibitions on “soft money.” 

The information presented here was contributed by amici, and 

supplemented by data from a variety of publicly available 

sources, including a survey of foreign campaign finance 

regimes conducted by the Library of Congress on behalf of 

Congress in 2000.3 

SUMMARY OF ARGUMENT 

The United States is not alone in struggling with the 

problem of how to curtail inappropriate financial influence in 

electoral politics. Every major democracy recognizes that 

money can distort politics, and each restricts campaigning to 

mitigate corruption in the electoral system. A comparative 

understanding of such efforts may aid this Court’s review of 

Congress’s efforts to close loopholes in the American 

campaign finance regime. Considering parallel efforts by 

2

 Pub. L. 107-155, 116 Stat. 81 (2002) 

3 In 2000, the Library of Congress surveyed eighteen countries— 

Argentina, Australia, Canada, the Czech Republic, France, Greece, India, 

Iran, Israel, Italy, Japan, Mexico, the Netherlands, the Russian Federation, 

Singapore, Taiwan, Turkey, and the United Kingdom. The results of that 

survey are provided in both a “Comparative Summary and Analysis,” see 

Law Library of Congress, Campaign Financing in Various Foreign 

Countries, Comparative Summary and Analysis (Document No. 2002-

14013) (2002) (“LOC Comparative Summary”), and reports on individual 

countries. 
4 

other countries around the world is consistent with the 

Court’s established practice of drawing on foreign 

experiences to address issues of common constitutional 

concern. 

Two pillars of BCRA are its limitations on third-party paid 

political advertising by unions and corporations, and its 

restrictions on so-called “soft money.” With respect to paid 

political advertising, the United States has adopted a far more 

lenient regime than its peers. Most democracies, including all 

of the other members of the Group of Seven (G-7) nations, 

strictly limit or even prohibit the broadcast of paid political 

advertisements. An analysis of judicial opinions in other 

countries, moreover, suggests that the United States’ isolated 

posture does not follow ineluctably from the American 

commitment to freedom of speech. To the contrary, other 

democracies with deeply ingrained traditions of free speech 

analogous to the First Amendment have recognized that 

preserving the integrity of the political process requires some 

restrictions on paid political advertising. 

With respect to the American soft money problem, there is 

no direct analogue overseas. Nevertheless, it is instructive to 

consider this problem within the larger context of how other 

nations control the flow of money into political campaigns. 

Most major democracies, again including all of the other G-7 

nations, have far more restrictive regulatory regimes than the 

United States. As a general rule, other countries have chosen 

to implement either public financing of elections, or strict 

limits on campaign expenditures, or both. The United States 

has, of course, taken the more permissive approach of merely 

limiting federal campaign contributions. While amici take no 

issue with that basic approach, we would urge the Court—in 

considering whether to uphold congressional efforts to plug 

the gaping soft money loophole—to be cognizant of the fact 

that the United States occupies an extreme end of the 

spectrum in regulating the flow of money in electoral politics. 

Upholding BCRA’s limits on soft money would only 
5 


incrementally nudge the American system of campaign 

financing away from the fringe of international practice. 

I. 	 THE COURT SHOULD CONSIDER MEASURES 

TAKEN BY OTHER COUNTRIES TO LIMIT 

THE INFLUENCE OF MONEY IN ELECTORAL 

POLITICS. 

The problem of how to limit “deleterious influences on 

federal elections”4 arising from the political activities of 

corporations and other sources of aggregated wealth is not 

unique to the United States. In reviewing the constitutionality 

of BCRA, this Court should consider other countries’ treatment of the issues underlying the statute. 

A. Members Of The Court Increasingly Recognize The Value Of Considering The Work Of 

Foreign Decision-Makers. 

The value of looking beyond our national boundaries on 

matters of common constitutional concern has been increasingly recognized and affirmed by members of the Court. 

Chief Justice Rehnquist spoke forcefully to this issue over a 

decade ago: 

For nearly a century and a half, courts in the United 

States exercising the power of judicial review had no 

precedents to look to save their own, because our courts 

alone exercised this sort of authority. . . . But now that 

constitutional law is solidly grounded in so many 

countries, it is time that the United States courts begin 

looking to the decisions of other constitutional courts to 

aid in their own deliberative process.5 

4 FEC v. Beaumont, 123 S.Ct. 2200, 2205 (2003) (quoting United 

States v. Automobile Workers, 352 U.S. 567, 585 (1957)). 

5 William H. Rehnquist, “Constitutional Courts—Comparative Remarks” (1989) (reprinted in Germany and its Basic Law: Past, Present 

and Future—a German-American Symposium 411, 412 (Paul Kirchhof & 

Donald P. Kommers eds., 1993)). 
6 

Chief Justice Rehnquist’s statement has been echoed and 

elaborated by other Justices. In 1999, Justice Ginsberg gave a 

lecture in which she stated the importance of comparative 

analysis in constitutional interpretation: 

Experience in one nation or region may inspire or inform 

other nations or regions . . . . In my view, comparative 

analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.6 

Last year, Justice O’Connor similarly urged attention to the 

work of foreign decision-makers and the opportunities they 

afford the Court to learn from their well-considered opinions: 

[C]onclusions reached by other countries and by the 

international community should at times constitute persuasive authority in American courts. . . . While ultimately we must bear responsibility for interpreting our 

own laws, there is much to learn from other 

distinguished jurists who have given thought to the same 

difficult issues that we face here.

7 

More recently, Justice Breyer correctly observed that the 

process of examining “our Constitution and how it fits into 

the governing documents of other nations . . . will be a 

challenge for the next generation.”8 Such comments by 

sitting Justices signal an appropriate interest on the part of 

this Court in expanding the universe of data upon which its 

deliberations rely. 

Significantly, however, applying foreign law and experience to calibrate American constitutional norms is hardly a 

new practice. To the contrary, “this Court has long con6

 Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: 

An International Human Rights Dialogue, 21 Cardozo L. Rev. 253, 281-

82 (1999). 

7

 Sandra Day O’Connor, Keynote Address Before the Ninety-Sixth 

Annual Meeting of the American Society of International Law, 96 Am. 

Soc’y Int’l L. Proc. 348, 350 (2002). 

8 This Week with George Stephanopoulos (ABC television broadcast, 

July 6, 2003). 
7 

sidered as relevant and informative the way in which foreign 

courts have applied standards roughly comparable to our own 

constitutional standards in roughly comparable circumstances.”9 Starting with the celebrated case of The Paquete 

Habana, in which the Court declared that “international law 

is a part of our law,”10 the Court has regularly referenced 

decisions in kindred democracies to illuminate its understanding of shared democratic values and universal human 

standards.11 Most recently, in Lawrence v. Texas,

12 the Court 

directly relied on the conclusions of the European Court of 

9 Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting 

from denial of certiorari). 10 175 U.S. 677, 700 (1900). 11 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 710, 718 n.16, 

785-87 (1997) (Rehnquist, C.J.) (declaring that “in almost every State— 

indeed, in almost every western democracy—it is a crime to assist a 

suicide” and citing the Canadian Supreme Court, the British House of 

Lords Select Committee, New Zealand’s Parliament, the Australian 

Senate, and the Colombian Constitutional Court); Thompson v. Oklahoma, 

487 U.S. 815, 830 (1988) (Stevens, J.) (stating that the execution of 

juveniles violates norms shared “by other nations that share our AngloAmerican heritage, and by the leading members of the Western European 

community”); id. at 868 n.4 (Scalia, J., dissenting) (noting that the 

“practices of other nations, particularly other democracies, can be relevant 

to determining whether a practice uniform among our people is not merely 

a historical accident”); Miranda v. Arizona, 384 U.S. 436, 488-89, 521-22 

(1966) (comparing U.S. practice with that in India, Sri Lanka, and 

Scotland); Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., 

dissenting) (delimiting notion of privacy in the home by looking to 

“common understanding throughout the English-speaking world”); 

Malinski v. New York, 324 U.S. 401, 413-14 (1945) (Frankfurter, J., 

concurring) (“The safeguards of ‘due process of law’ and ‘the equal 

protection of the laws’ summarize the history of freedom of Englishspeaking peoples . . . .”). 

12 123 S.Ct. 2472 (2003). 
8 

Human Rights and other foreign nations in overturning its 

prior holding in Bowers v. Hardwick.

13 

B. This Court’s Opinions Have Examined Foreign 

Law And Practices When Dealing With Complex Issues In Campaign And Election Law. 

Justices of this Court have frequently looked overseas to 

benefit from the real world lessons of foreign democracies in 

the specific context of campaign and election law.

14 For 

example, in Wright v. Rockefeller, the dissent by Justices 

Douglas and Goldberg examined a system for apportioning 

electoral districts used in Lebanon, Cyprus, and British India 

in order better to evaluate a similar system that had been 

implemented in Manhattan.15 In McIntyre v. Ohio Elections 

Commission, Justice Scalia, joined by Chief Justice 

Rehnquist, dissented from an opinion striking down an Ohio 

statute that prohibited the distribution of anonymous 

campaign literature. Pointing to a number of foreign 

democracies that banned anonymous campaigning, Justice 

Scalia sharply criticized the majority’s decision to ignore “the 

real-life experience of elected politicians” from “around the 

country and around the world.”16 

13 See id. at 2475, 2481, 2483 (overturning Bowers, 478 U.S. 186 

(1986). 

14 See, e.g., Holder v. Hall, 512 U.S. 874, 906 n.14 (1994) (Thomas, J., 

concurring) (mentioning the voting systems of Belgium, Cyprus, 

Lebanon, New Zealand, West Germany, and Zimbabwe in assessing raceconsciousness in the U.S. voting system); Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 403 (2000) (Breyer, J., concurring) (finding the Court’s 

First Amendment jurisprudence consistent with the decisions of the 

European Court of Human Rights and the Canadian Supreme Court). 

15 376 U.S. 52, 63-66 (1964) (Douglas, J., dissenting). 16 514 U.S. 334, 381-82 (1995) (Scalia, J., dissenting) (“[R]elevant to 

our decision is whether the prohibition of anonymous campaigning is 

effective in protecting and enhancing democratic elections . . . . Australia, 

Canada, and England, for example, all have prohibitions upon anonymous 

campaigning. How is it, one must wonder, that all of these elected 
9 

Particularly relevant here is Burson v. Freeman, upholding 

the constitutionality of a Tennessee statute that prohibited 

both the solicitation of votes and the display or distribution of 

campaign materials within 100 feet of the entrance to a 

polling place.

17 The Court observed that “[s]everal other 

countries were attempting to work out satisfactory solutions 

to these same [election process] problems,” 18 and embarked 

upon a detailed examination of the Australian electoral 

system, which had previously been adopted in England and 

Belgium.19 The Court found it compelling that “all 50 States, 

together with numerous other Western democracies, settled 

on the same solution;” it therefore concluded that “this 

widespread and time-tested consensus [among the states and 

foreign countries] demonstrates that some restricted zone is 

necessary.”20 Burson confirms Justice Breyer’s observation 

that the experiences of other countries may “cast an empirical 

light on the consequences of different solutions to a common 

legal problem,” 21 and represents persuasive authority for 

looking to the international community in evaluating BCRA. 

II. 	 PREVAILING INTERNATIONAL NORMS 

SUPPORT BCRA’S RESTRICTIONS ON THE 

USE OF CORPORATE AND LABOR UNION 

TREASURY FUNDS FOR ELECTIONEERING 

COMMUNICATIONS. 

Nearly every democracy acknowledges that significant 

restrictions on advertising are necessary to preserve the 

legislators, from around the country and around the world, could not see 

what six Justices of this Court see so clearly [?]”). 17 504 U.S. 191 (1992). 18 Id. at 202. 

19 See id. at 202-205. 20 Id. at 206 (emphasis added). 21 Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., 

dissenting). 
10 

integrity of the political process.22 When measured against 

those restrictions adopted in other countries, BCRA’s sixty 

and thirty-day constraints on corporate and labor union 

advertising23 are clearly located toward the extreme end of 

permissiveness. Most major democracies have implemented 

far stronger solutions—including categorical prohibitions on 

paid political advertisements—to prevent well-funded entities 

from dominating broadcast media during elections. 

A. Other Democracies Restrict Paid Political 

Advertising Far More Aggressively Than 

BCRA. 

Plaintiffs-Appellants in this case state that “unfettered issue 

advocacy enjoys international support.”24 If, in making this 

assertion, Plaintiffs-Appellants suggest that other countries do 

not generally impose restrictions on paid political advertising, 

they are simply wrong.

25 The substantial majority of 

22 In the United States, justifications for campaign finance reform have 

focused primarily on the “actuality and potential for corruption absent 

regulation.” Buckley v. Valeo, 424 U.S. 1, 28 (1976). Notably, while 

other countries certainly recognize that interest, the need to “level the 

playing field”—so that a diversity of groups may express themselves and 

so that a single dominant group does not curtail the rights of others to 

political expression by overwhelming the most important channels of 

mass communication—also enjoys widespread recognition as a legitimate 

goal of an electoral system. See, e.g., International Institute for 

Democracy and Electoral Assistance (IDEA) and the Office of 

Democratic Institutions and Human Rights of the OSCE, International 

Electoral Standards: Guidelines for Reviewing the Legal Framework of 

Elections 65-66 (2002) (“[T]here should be a level playing field among 

the parties or candidates”); see also Council of Europe Recommendation 

No. (99)15 (“on measures concerning media coverage of election 

campaigns”). 

23 See Pub. L. 107-155 (H.R. 2356, 107th Cong.) §§ 201, 203. 

24 Brief of Plaintiffs-Appellants/Cross-Appellees National Right to Life 

Committee et al., at 15 n.18. 

25 An alternative reading of Plaintiffs-Appellants’ proclamation is that 

other countries do not restrict the advertisement of issue-oriented (and 
11 

developed nations, including all the other G-7 democracies— 

the United Kingdom, France, Canada, Germany, Italy, and 

Japan—impose burdens on paid political advertising that are 

much more restrictive than those mandated under BCRA. 

Some countries directly fetter paid political advertising by 

third parties, while others impose ceilings on third-party 

spending that indirectly but substantially curtail the ability of 

third parties to broadcast political advertisements. 

1. 	 Direct Controls on Political Broadcasting 

During Election Periods Are Widespread 

Among Established Democracies. 

Even with the adoption of BCRA, the United States 

possesses by far the most permissive regime regulating paid 

political advertising within the G-7. In the United Kingdom, 

the Broadcasting Act of 1990 prohibits all paid political 

advertising in broadcast media—whether funded by 

candidates, political parties, or third parties.26 Similarly, 

France proscribes all paid political advertising on television 

during the three months preceding an election.27 Germany 

also imposes a general ban on paid political advertisement in 

broadcast media,28 with one exception. During the six weeks 

leading up to a national or European Union election, public 

stations are required to provide free airtime to the political 

non-election-related) political messages. Whether this claim is true or not, 

it is irrelevant to the case at hand. There is no question here as to whether 

BCRA may proscribe the use of such funds for true issue-oriented 

advertisements, because the statute does not attempt to limit such 

advertisements by unions and corporations. The degree to which other 

countries support issue-oriented, non-election-related advocacy therefore 

does not speak to the question before the Court. 

26 See Broadcasting Act, 1990, ch. 42, §§ 8(2)(a) and 92(2)(a). 

27 See C. élect. art. L. 52-1. 

28 See §§ 7, 42 Rundfunkstaatsvertrag (RStV); § 11 cl. 1 ZDFStaatsvertrag für das Zweites Deutsches Fernsehen. 
12 


parties.29 National private stations may offer advertising time 

to the political parties during this period as well, but may 

charge no more than cost, which naturally discourages 

widespread paid advertising.

30 In Japan, political advertising 

is heavily regulated. Candidates cannot purchase television 

or radio airtime, although they are allowed to advertise free of 

charge during the campaign period on either the Japan 

Broadcasting Corporation (NHK) or at government expense 

on any privately owned radio or television station.31 Political 

parties (and other qualified political groups) may purchase 

advertising time, but they may only broadcast advertisements 

emphasizing policy positions without reference to specific 

candidates.32 Canada requires radio and television networks 

to provide free advertising time to registered parties.33 Third 

parties are not prohibited from purchasing airtime in 

broadcast media, but they must conform to strict spending 

limits which, as a practical matter, foreclose meaningful 

third-party broadcast advertising.

34 Italy altogether prohibits 

29 See id. 

30 See §§ 7, 42 RStV. For all advertising, whether on public or private 

channels, the “principle of gradated equality of chances”—a balancing 

and fairness rule—obtains. § 5 cl. 1 Parteiengesetz. 

31 See Notice No. 165 of the Ministry of Home Affairs, Nov. 29, 1994, 

as amended by Notice No. 150, July 12, 1996; Law No. 100, art. 150, 

Apr. 15, 1950, as last amended by Law No. 54, May 8, 1998 (Japanese 

Election Law (Kôshoku Senkyohô—“JEL”)). JEL arts. 150, 150.1, 150.2 

and JEL Enforcement Order arts. 111.4, 111.6 provide for five 

advertisements of five and a half minutes each, plus a one-time 

advertisement presenting a candidate’s biography. 

32 See, e.g., JEL arts. 139-200; JEL Enforcement Order arts. 108-128. 

33 See 2000 S.C., ch. 9, § 345. 

34 Third-party advertising expenditures are capped at $150,000 during a 

general election, of which no more than $3,000 can be used in any one 

electoral district. See id. § 350. 
13 

paid political advertising in the national media while strictly 

regulating political advertisements in other media channels.35 

Outside the G-7, limitations on paid political advertising 

during election periods are equally widespread. Sweden 

allows no paid advertising on its broadcast television 

channels and mandates impartiality in political reporting.

36 In 

Austria, paid political advertising is not permitted on the 

public network.37 Israel has legislated a complex and 

restrictive regime governing political broadcasts, sustained 

under challenge before the High Court.38 New Zealand limits 

political broadcasts on television and radio to state-funded 

timeslots near election day, and Australia imposes a complete 

ban on radio and television campaigning, including issue 

35 See Law No. 28 of February 28, 2000 (statute on equal access to 

media during election period and on political broadcasting); Italian 

Communications Authority Decision No. 200/00/CSP of June 22, 2000 

(implementing Law No. 28 of February 28, 2000); and House of 

Parliament Scrutiny Committee on Public Broadcasting (RAI) Decision of 

December 18, 2002 (implementing Law No. 28 of February 28, 2000). 

Local private broadcasters, if they so elect, may allocate airtime to parties 

free of charge, but only on an equal access basis and not in excess of two 

advertisements per day per party. Local private broadcasters may also sell 

time for political advertisements, but they may not charge more than 50% 

of the normal commercial rate or sell more time than they have voluntarily 

allocated for free broadcasting. See also P. Barile, E. Cheli & S. Grassi, 

Istituzioni di diritto pubblico, Padova, CEDAM, 103- 104, 295-296 

(2002). 

36 See Law on Radio and Television, S.F.S. 1996:844. 

37 See Bundesgesetz über den Österreichischen Rundfunk (as amended, 

Bundesgesetzblatt, I No. 83/2001), §§ 13 (1), 14-17 (enumerating 

exhaustive list of permitted advertising subjects). 

38 See High Court of Justice Cases Nos. 869/92 and 931/92 (1992) (M. 

Shamgar, Pres.): “But in the said periods before elections, there is a 

limitation on election propaganda that is broadcast on the radio or 

television . . . . This limitation is . . . an unavoidable necessity.” 
14 


advocacy, for the three days prior to election day.

39 In 

Belgium, the limitation extends to three months before 

election day and encompasses virtually all paid media and all 

political matter.40 Broadcast and electioneering limitations of 

shorter duration are also in place in Russia and Hungary,

41 as 

well as Grenada, Dominica, St. Vincent and the Grenadines, 

and Nepal.42 Other countries that severely limit paid political 

advertising in broadcast media include Brazil,43 the Czech 

39 See Broadcasting Act, 1989 §§ 69, 70 (N.Z.); Broadcasting Services 

Act, 1992 (Cth), Sch. 2, Part 2, cl. 3A (Austl.); Special Broadcasting 

Services Act 1991 (Cth) § 70(c) (Austl.). In Australian Capital Television 

v. Commonwealth, 177 C.L.R. 106 (1992), the High Court of Australia 

struck down an omnibus ban on the broadcast of political advertising on 

the ground that it unconstitutionally limited political expression. 

However, the court left intact a three-day blackout period. Justices 

Brennan, Deane, and Toohey volunteered positive views on the 

constitutionality of the three-day blackout period. See id. at 159, 175. No 

challenges have been made to the blackout period since this decision. 

40 The limitation extends to paid billboards, telephone campaigns, and 

television, radio, and cinema. See Loi du 4 juillet 1989 relative à la 

limitation et au contrôle des dépenses électorales engagées pour les 

élections des Chambres fédérales, ainsi qu’au financement et à la 

comptabilité ouverte des parties politiques, art. 5. 

41 See Federal Law No. 19 F-3, On Election of the President of the 

Russian Federation, art. 50, point 3; Federal Law No. 175-F3, On 

Elections of Deputies of the State Duma of the Federal Assembly of the 

Russian Federation, art. 58, point 3 (Russ.); Act C of 1997 on Electoral 

Procedure ¶¶ 40-41, § (2) (Hung.). 

42 These jurisdictions ban all or most forms of electioneering on polling 

day, or on polling day and the day before. See Electoral Law, 1958, ch. 

160, §§ 63(1), (3) (Gren.); House of Assembly (Elections) Act, ch. 2:01, 

§§ 52, 54 (Dominica); Representation of the People Act, Electoral Law, 

1982, § 41 (St. Vincent and the Grenadines); Election Code of Conduct, 

2053 (1996) § A, ¶ 5 (Nepal). 

43 See Lei No. 9.504, que estabelece normas paras as eleições, arts. 26, 

44 (1997). 
15 

Republic, Denmark, Ireland, Malta, Malaysia, Norway,

44 

Portugal, Senegal, Seychelles, Singapore, Slovakia, Sri 

Lanka, Switzerland,45 and Turkey.

46 In the Americas as a 

whole—with the exception of the United States, of course— 

election period restrictions on paid advertising are essentially 

ubiquitous.47 

44 In Norway, an advertisement paid for by the National Norwegian 

Union of Nurses was found to violate the advertising prohibition. See 

European Platform of Regulatory Authorities, Working Group 2: Political 

Advertising, Background Paper EPRA/2002/09, at 6-7, available at 

http://www.epra.org/content/english/index2.html. 

45 See Federal Law Concerning Radio and Television of 21 June 1991, 

§ 4, art. 18, ¶ 5 (“La propagande religieuse ou politique est prohibée”). 

46 See Michael Pinto-Duschinsky, Financing Politics: A Global View, 

13 J. Democracy 69, 76-77 tbl.2 (2002); European Platform of Regulatory 

Authorities, supra note 44, at 1. Turkey prohibits all political broadcasting for seven days before elections. See Const., art. 32 (as amended 

by Law No. 4756, May 21, 2002) (Turk.). 

47 See Ley 25.610, Reforma Código Nacional Electoral, art. 3 (2002) 

(Arg.) (32-day ban on broadcasts with “the purpose of promoting the 

acquisition of votes by candidates for public office”); Ley Electoral de 

1984, con reformas, incluyendo la Ley No. 2232 (2001), art. 120 (Bol.) 

(election day ban); Lei No. 4.737 Código Eleitoral de 1965, atualizado 

com as modificações da Lei 9504/97, art. 250 (Braz.) (2-day ban); Ley 

Orgánica Constitucional No. 18.700/88, sobre votaciones populares y 

escrutinios, actualizada a octubre de 2001, art. 30(6) (Chile) (“electoral 

propaganda” broadcasts allowed only from the 30th to the 3rd day before 

election); Ley No. 1536, Código Electoral, actualizado con las reformas 

de 1996, art. 79 (Costa Rica) (ban for day before election and month of 

December); Ley Electoral y de Partidos Políticos de 1985, art. 223(c) & 

Decreto 1-90 del Tribunal Supremo Electoral, 1990, art. 38 (Guat.) (36-

hour ban); Ley electoral y de las Organizaciones Políticas del 19.05.1981, 

actualizada hasta DL No. 180-92, art. 74 (Hond.) (5-day ban on attack 

ads); Código Federal de Instituciones y Procedimientos Electorales de 

1994, con reformas de 1996 (“COFIPE”), art. 190(2) (Mex.) (3-day ban); 

Ley Electoral de Nicaragua de 2000, art. 97 (Nicar.) (3-day ban); Ley No. 

834/96 de 1996, Código Electoral Paraguayo, art. 290 (Para.) (political 

advertising allowed only for 60 days leading up to 2-day ban); Ley No. 

26859/97, Ley Orgánica de Elecciones de 1997, art. 190 (Peru) (24-hour 
16 


2. 	 Indirect Limitations on Third-Party Political 

Advertising Through Spending Limits Are 

Also Widespread Among Democracies. 

While direct constraints on the use of broadcast media for 

political advertising are common, many countries also impose 

general ceilings on third-party spending that indirectly but 

effectively serve the same purpose. As noted earlier, Canada 

places a $3,000 limit on spending by third parties within each 

electoral district. This functions de facto as a near-complete 

ban on paid television advertising by third parties.48 Italy, 

Japan, Mexico, and Costa Rica take a more extreme 

position—they simply bar independent expenditures altogether. An automatic and far-reaching ban on third-party 

advertising obviously follows in these countries from their 

prohibitions.49 In still other jurisdictions, spending by third 

parties counts against the spending limits of the candidates 

they support, making it difficult for wealthy third parties to 

flood broadcast media with paid advertisements. The laws of 

ban); Ley Orgánica de Sufragio y Participación Política, art. 209 (1997) 

(Venez.) (48 hours before start of elections, “all electoral publicity 

will cease”). 

48 See supra note 34 and accompanying text. 

49 In Costa Rica, to undertake political-electoral publicity in any form, 

a person must be designated by a political party to the Supreme Tribunal 

of Elections. See Ley No. 1536, art. 85(d). Mexican law provides: “The 

contracting of advertising in radio and television, either in favor or against 

any party or candidate, by means of third persons, will not be allowed in 

any case.” COFIPE, art. 48(13). Italian broadcasters may air paid 

political advertisements only if they clearly identify the political party 

paying for them—by direct implication, a ban on selling political airtime 

to independent individuals or groups. See, supra note 35. Under Japanese 

law, only groups and persons specifically permitted by statute to do so 

may engage in electioneering activities (i.e., political parties, qualified 

political groups, and candidates). See JEL, art. 151.5. 
17 

New Zealand, Belgium, and Nepal are examples of this 

approach.50 

Israel has been particularly proactive in recognizing that 

any effort to mitigate corruption or imbalance is undone if the 

regulatory ambit fails to reach independent expenditures. 

Israeli law regulates “election propaganda,” and the High 

Court of Justice took pains to define the term broadly.

51 

Widespread evasion of the intent behind campaign finance 

rules led State Comptroller and former Supreme Court Justice 

Eliezer Goldberg to emphasize in an official report after the 

2000 Knesset elections that “extra-party propaganda” constitutes prohibited contributions under article 8 of the 

Financing Law.52 

BCRA, of course, does not come close to imposing the farreaching limitations on independent expenditures that are so 

common to the rest of the world. It is exponentially more 

selective, restricting specific entities (corporations and 

unions) from using specific funds (treasury funds) for specific 

activities (paid advertising) during specific time periods 

(thirty or sixty days prior to an election). Before the passage 

of BCRA, one scholar noted that although “[a]ccess to 

political television advertising is . . . a matter dealt with in 

50 See Electoral Act, 1993 §§ 210, 214B, 221 (N.Z.); Loi du 4 juillet 

1989, art. 4, § 2 (Belg.); Election Code of Conduct, 2053 § B, ¶ 5 (1996) 

(Nepal). Notably, India does regulate campaign spending by candidates 

but not third parties; as a result, its Supreme Court has observed that the 

restrictions on candidates are “mere eye wash and no practical check on 

election expenses” as needed “to attain a meaningful democracy.” 

Godakh Yashwantrao Kankarro v. E.V. alias Balasaheb Vikhe Patil, 1994 

A.I.R. (S.C.) 678. 51 See Case No. 869/92 (defining “electoral propaganda” as “[a] 

broadcast that contains direct preaching for parties or lists of candidates; 

an attack on a rival party or list; and also, any broadcast, whose dominant 

effect is propaganda-wise”). 52 See Report on the Results of the Audit of the Party Groups for the 

Period of Elections for the Fifteenth Knesset ¶¶ 7-8 (1997). 
18 


virtually all regulatory frameworks of campaigns[,] the 

United States is truly exceptional.”53 While BCRA’s targeted 

limitations on paid advertising by corporations and unions 

during election periods represent very modest steps by 

international standards, they move the United States 

incrementally towards the mainstream of democracies that 

regulate third-party political advertising to safeguard the 

integrity of their electoral systems. 

B. Other Democracies Have Found That Restrictions On Paid Political Advertising Are 

Compatible With Free Speech. 

The United States is not the only jurisdiction whose courts 

have addressed restrictions on third-party paid political 

advertising within the framework of a constitutionally 

enshrined right to freedom of expression. Both Canada and 

many European nations enjoy a well-developed free speech 

jurisprudence, and courts in both places have asked whether 

free speech can accommodate restrictions on third-party 

political advertising. An analysis of Canadian and European 

judicial opinions yields a qualified answer in the affirmative. 

1. 	 The Canadian Supreme Court Has Indicated 

That Restrictions on Paid Political 

Advertising by Third Parties Can Survive 

Constitutional Scrutiny. 

In Canada, rights to freedom of expression and freedom of 

association are protected under the Canadian Charter of 

Rights and Freedoms.54 The Charter reflects a commitment 

to these freedoms similar in scope and vigor to that of the 

53 Fritz Plasser and Gunda Plasser, Global Political Campaigning: A 

Worldwide Analysis of Campaign Professionals and Their Practices 205, 

216 (2002) (emphasis in original). 

54 Canadian Charter of Rights and Freedoms, Part I of the Constitution 

Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch. 11, 

§§ 2(b) and 2(d) (declaring as “fundamental” the “freedom of thought, 

belief, opinion and expression” and the “freedom of association”). 
19 


U.S. Constitution. In the words of the Canadian Supreme 

Court: 

[This] Court has consistently and frequently held that 

freedom of expression is of crucial importance in a 

democratic society. . . . “It is difficult to imagine a 

guaranteed right more important to a democratic society 

than freedom of expression. Indeed a democracy cannot 

exist without that freedom to express new ideas and to 

put forward opinions about the functioning of public 

institutions. The concept of free and uninhibited speech 

permeates all truly democratic societies and institutions. 

The vital importance of the concept cannot be overemphasized.”55 

Clearly, freedom of expression is deeply embedded in 

Canadian jurisprudence. 

The seminal Canadian Supreme Court decision applying 

constitutional scrutiny to restrictions on paid political advertising by third parties is Libman v. Quebec (A.G.).

56 In 

Libman, the court considered a constitutional challenge to 

Quebec’s Referendum Act, which required groups wishing to 

participate in a referendum campaign to either join or affiliate 

with a national committee formed for the purpose of 

supporting one of the referendum options.57 The Act also 

provided for the financing of national committees and 

allowed them and their affiliated groups to incur expenses (up 

to prescribed limits) for the purpose of promoting or opposing 

a referendum option. Groups that did not join or affiliate with 

a national committee, however, were permitted to incur only 

minor expenses, and were essentially banned from all paid 

55 Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 

385, ¶ 28 (quoting Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 

1326, 1336). 

56 Id. 

57 See Referendum Act, R.S.Q., ch. C-64.1, §§ 402, 403, 404, 406, 

¶¶ 3, 413, 414, 416, 417 of Appendix 2 (as cited in Libman, 3 S.C.R. 569). 
20 


advertising.

58 The appellant in Libman argued that this 

limitation unconstitutionally infringed his right to freedom of 

expression under the Charter. 

The Canadian Supreme Court recognized the need for such 

restrictions and agreed with them in principle: 

Freedom of political expression, so dear to our democratic tradition, would lose much value if it could only 

be exercised in a context in which the economic power 

of the most affluent members of society constituted the 

ultimate guidepost of our political choices. Nor would it 

be much better served by a system that undermined the 

confidence of citizens in the referendum process.59 

Nevertheless, the court reluctantly concluded that the Referendum Act’s near-total ban on third-party spending by 

“individuals and groups who can neither join the national 

committees nor participate in the affiliation system” went 

too far.60 

Significantly, however, in addition to evaluating the Referendum Act itself, the Libman court went out of its way to 

address a separate federal statute, the Canada Elections Act.61 

Like the Referendum Act, the Canada Elections Act imposed 

strict limits on third-party spending, but in a manner that did 

allow for limited paid political advertising. Specifically, the 

Act allowed third parties to spend up to $1,000 on political 

“advertising expenses,” defined to include all costs incurred 

“for the production, publication, broadcast and distribution of 

any advertising for the purpose of promoting or opposing” a 

party or candidate during an election.62 The statute also 

58 See Libman, 3 S.C.R. ¶ 12 (setting forth strictly limited permissible 

expenses). 

59 Id. ¶ 84. 

60 Id. ¶ 77. 

61 R.S.C., 1985, ch. E-2. 

62 Id. § 259. 
21 

designated certain “blackout” periods during which all 

persons were enjoined from election advertising.

63 

By the time the Canadian Supreme Court took up Libman, 

the Canada Elections Act’s $1,000 limit on third-party 

advertising expenditures had been held unconstitutional by 

the Alberta Court of Appeal in Somerville v. Canada 64 

Because the Canadian government decided not to appeal the 

lower court judgment in Somerville, however, the Canadian 

Supreme Court could not review the lower court decision 

directly. As a result, it took the highly unusual step in 

Libman of expressing its clear disapproval of a ruling not 

before it: 

In Somerville v. Canada (Attorney General), the Alberta 

Court of Appeal declared [the Canada Election Act’s 

restrictions on third party advertising] to be unconstitutional. With respect, we have already mentioned that 

we cannot accept the Alberta Court of Appeal’s point of 

view because we disagree with its conclusion regarding 

the legitimacy of the objective of the provisions.65 

The court explained: 

We agree . . . with the analysis of the Lortie Commission 66 . . . regarding the need to limit spending both 

63 See Somerville v. Canada (A.G.) (1996), 136 D.L.R. (4th) 205, ¶ 6 

(summarizing the black-out provisions codified as subsection 213(1) of 

the Canada Elections Act, R.S.C., 1985, ch. E-2). The black-out periods 

prohibited election advertising “for approximately the first 18 of 47 days 

of a federal election campaign. This is followed by a period of 28 days 

when advertising is permitted, up until the day prior to polling day, after 

which it is again prohibited.” Id. ¶ 58. 

64 See id. 65 Id. ¶ 79. 66 The Royal Commission on Electoral Reform and Party Financing 

chaired by Pierre Lortie (“Lortie Commission”) was appointed to analyze 

the role of money in the Canadian electoral process in response to 

concerns about the levels and sources of expenditures during the 1988 

federal election. Many of the Lortie Commission’s recommendations 

were adopted in the new Canada Elections Act, 2000 S.C., ch. 9. 
22 

by the principal parties (the national committees in the 

case of a referendum) and by independent individuals 

and groups in order to preserve the fairness of elections 

and, in the present case, referendums.67 

The court further suggested that the Canada Elections Act’s 

limits on third-party advertising were tailored narrowly 

enough to pass constitutional muster, in contrast to the 

Referendum Act’s more severe restrictions on third-party 

spending.

68 

Libman’s potential contribution to this Court’s analysis lies 

in its explicit recognition that campaign finance laws 

implicate multiple constitutional values, and that arriving at a 

sensible solution requires a careful balancing of those 

interests. In the context of third-party expenditures, this 

necessarily entails moderating the otherwise broad right to 

free speech in order to preserve the integrity of the 

democratic process. Of course, Libman’s premise is not 

foreign to this Court’s deliberations. Rather, this Court has 

implicitly adopted a nuanced balancing framework in many 

of its own cases. As Justice Breyer noted during a discussion 

on contribution limits: 

[T]his is a case where constitutionally protected interests 

lie on both sides of the legal equation . . . . In such 

circumstances—where a law significantly implicates 

competing constitutionally protected interests in complex ways—the Court has ... balanced interests. And in 

practice, that has meant asking whether the statute 

burdens any one such interest in a manner out of 

proportion to the statute’s salutary effects upon the 

others. . . This approach is that taken in fact by Buckley 

67 Libman, 3 S.C.R. ¶ 55-56. 68 Id. ¶ 77 (“In our view, there are alternative solutions far better than 

[the Referendum Act’s near-complete ban on unaffiliated third party 

spending]. . . . The Lortie Commission’s recommendation on third party 

expenses [which was incorporated into the Canada Elections Act as the 

$1,000 spending limit] is one possible solution.”). 
23 


for contributions, and is found generally where 

competing constitutional interests are implicated, such as 

privacy, First Amendment interests of listeners or 

viewers, and the integrity of the electoral process.69 

The Court should apply that approach in the present case, 

recognizing that the fundamental constitutional value of preserving the integrity of the democratic process justifies 

BCRA’s modest imposition on speech. 

In sum, Libman is a well-considered effort by the Canadian 

Supreme Court to accommodate third-party spending 

restrictions within constitutional parameters. It stands not 

only for the proposition that constitutionally protected free 

speech can tolerate restrictions on third-party political 

activities, but that such restrictions are integral to a robust 

democratic polity. In reviewing BCRA’s restrictions on paid 

political advertising, this Court should take into account the 

Canadian Supreme Court’s thoughtful analysis of a shared 

constitutional concern.70 

2. 	 The European Court of Human Rights Has 

Indicated That Restrictions on Paid Political 

Advertising by Third Parties Are Compatible 

with the Right to Free Speech. 

In forty-four European countries, the right to freedom of 

expression is guaranteed under Article 10 of the European 

Convention for the Protection of Human Rights and 

Fundamental Freedoms (the “Convention”).71 The Conven69 Nixon, 528 U.S. at 400, 402-403 (2000) (Breyer, J., concurring) 

(internal citations omitted). 

70 The Canadian Supreme Court on June 27, 2003 cited Libman 

approvingly for its holdings on fairness in the electoral process. See 

Figueroa v. Canada (A.G.), 2003 S.C.C. 37, ¶¶ 49, 51. 

71 312 U.N.T.S. 222 (1950) (hereinafter “Convention”). The key provisions of Article 10 provide: 

(1) Everyone has the right to freedom of expression. This right shall 

include freedom to hold opinions and to receive and impart 
24 

tion was the first document that gave “specific legal content 

to human rights in an international agreement, and combined 

this with the establishment of machinery for supervision and 

enforcement.”

72 Violations of rights guaranteed under the 

Convention are adjudicated by the European Court of Human 

Rights (ECHR), which was established under the Convention. 

As in the United States and Canada, the right to free speech is 

considered by the ECHR to be of paramount importance: 

“According to the Court’s case-law, freedom of expression 

constitutes one of the essential foundations of a democratic 

society and one of the basic conditions for its progress and 

each individual’s self-fulfilment.”73 “The Court recalls the 

key importance of freedom of expression as one of the 

preconditions for a functioning democracy.”

74 

information and ideas without interference by public authority and 

regardless of frontiers. 

(2) The exercise of these freedoms, since it carries with it duties and 

responsibilities, may be subject to such . . . restrictions or penalties 

as are prescribed by law and are necessary in a democratic society 

. . . for the protection of the reputation or rights of others . . . . 

72 Ian Brownlie, Basic Documents in Human Rights 338 (1971). 

73 Unabhängige Initiative Informationsvielfalt v. Austria, [2002] 

E.C.H.R. 28525/95, ¶ 34; see also Wierzbicki v. Poland, [2002] E.C.H.R. 

24541/94, ¶ 31 (referring to “principles established in the case-law of the 

Convention organs concerning freedom of expression, which constituted 

one of the essential foundations of a democratic society”); Surek and 

another v. Turkey, (1999) 7 B.H.R.C. 339, ¶ 45 (“The court reiterates the 

fundamental principles under its judgments relating to art 10. . . . Freedom 

of expression constitutes one of the essential foundations of a democratic 

society.”); Fressoz and Roire v. France, (1999) 5 B.H.R.C. 654, ¶ 45 

(same). 

74 Özgür Gündem v. Turkey, [2000] E.C.H.R. 23144/93, ¶ 43 

(“Freedom of expression constitutes one of the essential foundations of a 

democratic society and one of the basic conditions for its progress and for 

each individual’s self-fulfilment. . . . Such are the demands of the 

pluralism, tolerance and broadmindedness without which there is no 

“democratic society.” Id. at ¶ 57). 
25 

Limitations on third-party spending were addressed by the 

ECHR in Bowman v. United Kingdom.

75 Bowman, a political 

activist, challenged a British statute that prohibited 

unauthorized third parties from spending more than five 

pounds (“GBP”)—less than $10—during the period before an 

election to convey information “with a view to promoting or 

procuring the election or defeat of a candidate.”76 

Plaintiffs-Appellants in their brief cite Bowman to support 

their assertion that “unfettered issue advocacy enjoys 

international support.”77 Purporting to quote directly from 

Bowman, Plaintiffs-Appellants summarize the ECHR’s 

opinion as follows: 

[The ECHR decided] that a London woman could not be 

charged with a campaign law violation for distributing 

1.5 million copies of a voter guide . . . even though it 

was . . . “distributed with a view to promoting the 

election of the candidate with the stand on abortion most 

acceptable to the [plaintiff]” and “might in fact have the 

tendency to influence certain voters in different 

directions,” because “freedom of expression constitutes 

one of the essential foundations of a democratic society, 

[sic] and the government had failed to prove that such 

“‘single’ issue campaigning . . . would distract voters 

[or] “‘distort’ election results.”78 

But that is not what the ECHR said in Bowman. In fact, 

these statements were never made by the ECHR at all. 

Plaintiffs-Appellants miscite and misattribute these quotes, 

which actually come from a report made by a now-defunct 

75 [1998] E.C.H.R. 24839/94, (1998) 4 B.H.R.C. 25. 

76 Id. ¶ 13 (quoting subsections 75(1) and (5) of the Representation of 

the People Act of 1983: “No expenses shall, with a view to promoting or 

procuring the election of a candidate . . . at an election, be incurred by any 

person other than the candidate, his election agent and persons authorized 

in writing by the election agent.”). 77 Brief of Plaintiffs-Appellants/Cross-Appellees National Right to Life 

Committee et al., at 15 n.18. 78 Id. 
26 

investigative body that referred the case to the ECHR for 

adjudication.79 What the ECHR actually said in Bowman was 

the following: 

Free elections and freedom of expression, particularly 

freedom of political debate, together form the bedrock of 

any democratic system . . . . Nonetheless, in certain 

circumstances the two rights may come into conflict and 

it may be considered necessary, in the period preceding 

or during an election, to place certain restrictions, of a 

type which would not usually be acceptable, on freedom 

of expression, in order to secure the “free expression 

of the opinion of the people in the choice of the 

legislature.”80 

The ECHR ultimately did strike down the British statute, but 

on grounds similar to those articulated in Libman—that the 

spending limit of 5 GBP “operated, for all practical purposes, 

as a total barrier to Mrs. Bowman’s publishing information 

with a view to influencing the [election].”81 

Like Libman, Bowman is widely understood to affirm the 

principle that countervailing constitutional interests must be 

balanced in reviewing campaign finance limitations, and that 

such balancing permits restrictions short of a complete ban.

82 

The United Kingdom, for example, has interpreted the 

ECHR’s decision as allowing reformulated statutory 

restrictions on paid third-party expression; the Parliament 

recently enacted a comprehensive election reform bill that 

79 See European Commission of Human Rights, Bowman Against the 

United Kingdom, Application No. 24839/94, Report of the Commission 

(adopted Sept. 12, 1996). 80 Bowman, [1998] E.C.H.R. 24839/94, ¶¶ 42-43. 

81 Id. ¶ 47. 

82 The High Court of Justice of Israel also has endorsed a balancing 

approach. See Cases Nos. 869/92 and 931/92 (Nissim Zvili v. Chairman 

of the Ctrl. Elections Com., Ass’n for Human Rights v. Dir. Gen’l of the 

Broadcasting Service) (Aharon Barak, J.) (“The solution is to be found in 

an appropriate balance among the contradictory purposes.”). 
27 

modestly raises expenditure limits for third parties to meet the 

Bowman standard.83 

III. 	 NEARLY ALL MAJOR DEMOCRACIES 

IMPOSE RESTRICTIONS ON THE FLOW OF 

MONEY THAT ARE FAR MORE ONEROUS 

THAN BCRA’S RESTRICTIONS ON SOFT 

MONEY. 

There is no obvious analogue to the American soft money 

problem overseas, for the problem relates to unique aspects of 

the relationship in the United States between federal and state 

political parties and between federal and state fundraising 

rules. As explained in detail in the record developed at the 

district court level, soft money relates to the unregulated 

raising, transfer, and expenditure of nonfederal funds to 

influence federal elections. Most other countries simply do 

not have a dual system of government that provides 

opportunities for funneling money from one level to the other 

in contravention of the spirit and purpose of the campaign 

finance laws. 

The soft money problem, however, is one manifestation of 

a larger problem common to many democracies: how to 

prevent the massive influx of unregulated money into cam83 See Political Parties, Elections, and Referendums Act (PPERA), 

2000, ch. 41, § 131(3). PPERA amends a “permitted sum” exception to § 

75(1) of RPA 1983, so as to elevate that sum from 5 GBP to 500 GBP, 

plus one half pence for each elector in the district, for independent 

expenditures supporting an individual candidate for Parliament. The limit 

applies both to an individual making such an independent expenditure and 

to groups of individuals acting as part of a “concerted plan of action.” 

Part VI, § 94(5) of PPERA imposes a separate limit on spending money 

“supporting or opposing registered political parties or parties that put 

forward particular policies or unnamed candidates who hold particular 

views or advocate particular policies.” The limit on such third-party 

expenditures is 10,000 GBP for England and 5,000 GBP each for 

Scotland, Wales, and Northern Ireland. See also Committee on Standards 

in Public Life, Fifth Report at 10.59 (1998) (proposing how to implement 

Bowman standards). 
28 

paigns from undermining the democratic process. Significantly, most foreign countries address that issue with a range 

of regulations far more proscriptive than the closing of the 

soft money loophole contemplated by BCRA. 

First, as discussed above, nearly every major industrialized 

country has far-reaching restrictions or bans on paid advertising. Since advertising is an enormous component of campaign expenditures, such laws dramatically reduce incentives 

for introducing unregulated funds into the campaign process. 

Moreover, most countries furnish public funds for campaigns, further reducing the incentive for candidates and 

parties to find fundraising loopholes. The G-7 nations 

generally provide public funds to parties and candidates for 

most or all national elections. Indeed, in the Library of 

Congress survey, every country except India, Iran, and 

Singapore had a system of direct public funding.

84 In a 

separate survey of sixty countries—including many lessdeveloped countries with little regulatory infrastructure— 

fully 70% were found to provide some form of direct public 

funding.

85 The United States is thus again the exception to 

the rule insofar as, apart from presidential campaigns, it does 

not provide public funds for parties or candidates. 

84 See LOC Comparative Summary, supra note 3, at 4. Most calculate 

the amount of support using a flat-rate formula, while a minority base 

their calculation on a certain percentage of qualified expenditures. The 

countries using flat-rate formulas are: Argentina, Australia, the Czech 

Republic, France (with regard to parties), Israel, Italy, Japan, Mexico, the 

Netherlands, Taiwan, and Turkey, and the United Kingdom. The 

countries using a percentage of qualified expenditures are: Canada, 

Greece, and France (with regard to candidates). See id. at 4-5. 85 See Michael Pinto-Duschinsky, Handbook on Funding of Parties 

and Election Campaigns (Stockholm: International Institute for 

Democracy and Electoral Assistance (IDEA), forthcoming 2003) 

(overview available at http://www.europexxi.kiev.ua/english/program/ 

conference/007.html). 
29 


Finally, unlike the United States, most other major 

democracies limit campaign expenditures. By controlling 

campaign funding through the more aggressive means of 

expenditure limits rather than—or in addition to— 

contribution limits, other countries minimize incentives to 

pursue ways of overcoming contribution limits. Among the 

other Group of Seven nations, all with the exception of 

Germany establish ceilings on campaign expenditures. 

Canada places expenditure limits on candidates and political 

parties (based on the number of eligible voters) as well as on 

third parties.86 Italy establishes limits on expenditures by 

candidates based on the number of citizens in a district, and 

for parties based on the number of eligible voters.87 The 

United Kingdom imposes separate limitations for candidates, 

parties, and third parties for different types of expenditures.

88 

In France, the law sets a general ceiling on campaign 

expenditures for candidates and also imposes special 

limitations on different types of expenditures to promote 

fairness and prevent runaway election costs.89 Japan imposes 

spending limits for candidates according to a complex 

formula based on the number of registered voters and the 

number of seats in a district.90 France, Italy, and Japan also 

impose a second layer of control by imposing contribution 

limits on top of expenditure limits.91 

Widening the circle beyond the G-7 nations, the Library of 

Congress found in its comparative survey of campaign 

86 See 2000 S.C., ch. 9, § 441. 87 See Law No. 515/1993, art. 7. 88 See PPERA §85. 

89 See Law Library of Congress, France: Campaign Financing of 

National Elections (Document No. 2000-9042) at 6 (2000). 

90 See Law No. 100, art. 194, Apr. 15, 1950, as last amended by Law 

No. 54, May 8, 1998 (JEL); art. 194 JEL, arts. 126, 127 of JEL 

Enforcement Order. 

91 See LOC Comparative Summary, supra note 3, at 3. 
30 

finance laws in eighteen countries that expenditure limits are 

maintained by a substantial majority of those surveyed.92 The 

expenditure ceilings are either set amounts, as in Greece, 

Israel, and Russia, or based on the number of voters or 

constituencies, as in Canada, India, France, Japan, Taiwan, 

and the United Kingdom.93 

Amici do not recount these facts to urge this Court to 

disavow Buckley v. Valeo and uphold expenditure limits. 

Amici recognize that the United States’ exceptionally 

permissive system is motivated by the laudable desire to 

protect First Amendment values and to promote political 

discourse and participation. Rather, amici seek to illustrate 

that the United States is located toward one extreme of the 

democratic continuum with respect to how it regulates money 

in its electoral system.

94 Against this backdrop, it is clear that 

BCRA’s modest efforts to stem the flow of soft money that 

continues to erode the democratic process are both permissible and desirable. BCRA is a badly needed step that 

will begin to pull campaign finance in the United States back 

from the fringe of international practice. 

CONCLUSION 

For the foregoing reasons, the provisions of the Bipartisan 

Campaign Reform Act of 2002 relating to third-party political 

advertising and soft money should be affirmed. 

92 See id. at 4. 

93 See id. 

94 The United States is also located at one extreme in terms of voter 

participation—it ranked 140 out of 163 countries in voter turnout during 

the 1990s, behind Tanzania, Madagascar, Jamaica, Cameroon, and Chad, 

and just ahead of Botswana, Kenya, Haiti, Mauritania, Ivory Coast, and 

Pakistan. See International Institute for Democracy and Electoral 

Assistance (IDEA) Voter Turnout Website, at http://www.idea.int/vt/ 

survey/voter_turnout_pop1.cfm. 
Respectfully submitted, 

CHRISTOPHER J. WRIGHT * 


TIMOTHY J. SIMEONE


YUL J. KWON


HARRIS, WILTSHIRE & GRANNIS LLP 


1200 Eighteenth Street, N.W. 


Washington, DC 20036 


(202) 730-1300 


THOMAS D. GRANT 

LAUTERPACHT RESEARCH 

CENTRE FOR INTERNATIONAL LAW 

5 Cranmer Road 

Cambridge CB3 9BL 

United Kingdom 

* Counsel of Record 011 44 1223 691 664 

August 5, 2003